FORM OF AMENDMENT NO. 1 TO BUSINESS COMBINATION AGREEMENT
[FORM — NOT FOR EXECUTION]
This form is a template prepared for potential pre-closing amendments to the Business Combination Agreement. All bracketed text requires completion prior to execution. This form should not be circulated to any counterparty or filed with any governmental authority without prior review and approval by the responsible partner. This form does not constitute legal advice and must be tailored to the specific facts and circumstances of the applicable transaction.
AMENDMENT NO. 1 TO BUSINESS COMBINATION AGREEMENT
This Amendment No. 1 to Business Combination Agreement (this "Amendment") is made and entered into as of [●], 2025, by and among:
(i) [Insert full legal name of SPAC], a [insert entity type, e.g., Cayman Islands exempted company, Delaware corporation] organized under the laws of [insert jurisdiction] (the "Acquiror");
(ii) [Insert full legal name of Merger Sub], a [insert entity type, e.g., Delaware limited liability company, Cayman Islands exempted company] organized under the laws of [insert jurisdiction] ("Merger Sub"); and
(iii) [Insert full legal name of Target], a [insert entity type, e.g., Delaware corporation, Delaware limited liability company] organized under the laws of [insert jurisdiction] (the "Company").
Each of the Acquiror, Merger Sub, and the Company is sometimes referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Parties entered into that certain Business Combination Agreement, dated as of [insert date of original BCA] (as may be amended, supplemented, or otherwise modified from time to time in accordance with its terms, the "Business Combination Agreement"), providing for a business combination on the terms and conditions set forth therein, pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of the Acquiror (or such other transaction structure as described in the Business Combination Agreement);
[Instruction to preparer: Insert the execution date of the original Business Combination Agreement. If the Business Combination Agreement has been previously amended, supplemented, or modified, reference each such prior amendment, supplement, or modification by date and title.]
WHEREAS, Section [●] of the Business Combination Agreement provides that the Business Combination Agreement may be amended, modified, or supplemented at any time prior to the Closing by a written instrument executed and delivered by each of the Parties thereto;
[Instruction to preparer: Insert the specific section number of the BCA's amendment provision. This provision is typically found in the Miscellaneous or General Provisions article (e.g., Section 11.9, Section 12.5, or similar). Verify any procedural requirements set forth in such section, including whether board approval, stockholder approval, or third-party consents are required as a precondition to amendment.]
WHEREAS, the Parties desire to amend certain provisions of the Business Combination Agreement as more fully set forth herein; and
[Instruction to preparer: Optionally add additional recitals describing the specific business rationale for the amendment, if desired. Examples of additional recitals include:
"WHEREAS, the Parties desire to extend the Outside Date (as defined in the Business Combination Agreement) to provide additional time for the satisfaction or waiver of certain conditions to the Closing;"
"WHEREAS, the Parties desire to modify the Minimum Cash Condition to reflect the revised financing arrangements for the Transactions;"
"WHEREAS, the Parties desire to adjust the Merger Consideration payable to the Company Stockholders to reflect updated valuations and the revised capital structure of the Company;"
"WHEREAS, the Parties desire to amend certain interim operating covenants to permit the Company to enter into the transactions described herein;"
"WHEREAS, the Parties desire to amend the Earnout provisions to reflect revised milestone targets and measurement periods;"
Add or remove recitals as appropriate to the circumstances of the particular amendment.]
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 *Definitions.*
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Business Combination Agreement. As used in this Amendment, the following terms shall have the meanings set forth below:
"[Insert any new defined term]" means [insert definition].
[Insert any new defined term]" means [insert definition].
[Instruction to preparer: Add additional defined terms as needed for each new defined term introduced by this Amendment. If no new defined terms are introduced, this section may be simplified to state only that capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Business Combination Agreement. Consider whether any existing defined terms in the Business Combination Agreement need to be amended by this Amendment (e.g., the definition of "Outside Date," "Merger Consideration," "Minimum Cash Amount," "Earnout Shares," etc.), in which case such amendments should be set forth in Article II below.]
Section 1.2 *Interpretation.*
The rules of interpretation set forth in Section [●] of the Business Combination Agreement (including, without limitation, rules regarding the construction of certain terms and phrases, the use of the terms "include," "includes," and "including," the interpretation of headings and captions, and the effect of the recitals) shall apply mutatis mutandis to this Amendment as if fully set forth herein. For the avoidance of doubt, references in the Business Combination Agreement to "the date of this Agreement" or "the date hereof" (or words of similar import) shall continue to refer to the date of the Business Combination Agreement, and not to the date of this Amendment, unless the context otherwise requires or unless expressly stated otherwise in this Amendment.
[Instruction to preparer: Insert the applicable section number of the Business Combination Agreement that contains the interpretation and construction rules. This is typically Section 1.2 or an equivalent provision in Article I of the Business Combination Agreement.]
ARTICLE II
AMENDMENTS TO THE BUSINESS COMBINATION AGREEMENT
[General Instruction to Preparer: Set forth below are the specific amendments to the Business Combination Agreement. Each subsection should identify (i) the section or provision being amended, (ii) whether the provision is being amended and restated in its entirety, amended in part (by deletion and replacement of specified text), or deleted, and (iii) the full text of the amended provision. Use the format set forth below for each amendment. Repeat the subsection format as necessary for each separate provision of the Business Combination Agreement being amended.
Common amendments in de-SPAC transactions may include, without limitation:
• Extension of the Outside Date (i.e., the date on which either party may terminate the Business Combination Agreement if the Closing has not occurred)
• Modification of the Minimum Cash Condition threshold (including any reduction or elimination of the minimum trust or available cash condition)
• Adjustment to merger consideration, exchange ratio, per-share consideration, or aggregate transaction value
• Changes to earnout milestones, earnout share amounts, measurement periods, or earnout acceleration triggers
• Modification of closing conditions (including mutual conditions, Acquiror conditions, or Company conditions)
• Amendments to representations and warranties (including any updates, qualifications, or bring-down modifications)
• Changes to indemnification terms, including cap amounts, basket or deductible thresholds, survival periods, and indemnification escrow mechanics
• Modification of covenants (including interim operating covenants, non-solicitation covenants, access and information covenants, and regulatory covenants)
• Changes to the termination fee amount, reverse termination fee, or the events or triggers giving rise to the obligation to pay such fees
• Adjustments to sponsor forfeiture or earnback mechanics, including the number of founder shares subject to forfeiture and the conditions under which such shares may be earned back
• Updates to schedules or disclosure schedules
• Changes to the tax structure or characterization of the transaction (e.g., the intended tax-free reorganization qualification)
• Amendments to the post-closing governance provisions (e.g., board composition, director nomination rights, officer appointments)
• Modifications to registration rights, lock-up provisions, or other post-closing contractual arrangements
Consult with the lead partner before finalizing the scope and substance of any amendments set forth in this Article II.]
Section 2.1 *[Amendment to Section [●] — [Insert Descriptive Heading]].*
[Instruction to preparer: Insert the section number and title of the provision of the Business Combination Agreement being amended. The descriptive heading should identify the subject matter of the amendment (e.g., "Amendment to Section 10.1(b)(i) — Extension of Outside Date," "Amendment to Section 3.1 — Modification of Merger Consideration," "Amendment to Section 8.3(c) — Minimum Cash Condition," etc.).]
Section [●] of the Business Combination Agreement is hereby [amended and restated in its entirety / amended by deleting the [specified clause, sentence, or text] appearing therein and replacing it with the following / amended by adding the following language at the end thereof / amended by inserting the following language immediately [before/after] the [specified text]] to read as follows:
"[Insert full text of amended provision. The text should be set forth verbatim as it will appear in the Business Combination Agreement as amended. If the provision is being amended and restated in its entirety, include the full text of the restated provision. If only a portion of the provision is being amended, provide sufficient context to identify the precise location of the change within the existing provision.]"
[Instruction to preparer: When drafting the amended text, ensure that (a) all defined terms used within the amended provision are either defined in the Business Combination Agreement or in Section 1.1 of this Amendment, (b) all internal cross-references within the amended provision remain accurate, and (c) the amended provision is consistent with the remainder of the Business Combination Agreement. If the amendment to this section necessitates conforming changes to other sections of the Business Combination Agreement, such conforming changes should be addressed in additional subsections of this Article II.]
Section 2.2 *[Amendment to Section [●] — [Insert Descriptive Heading]].*
[Instruction to preparer: Same format as Section 2.1 above. Insert the section number and title of the next provision of the Business Combination Agreement being amended.]
Section [●] of the Business Combination Agreement is hereby [amended and restated in its entirety / amended by deleting the [specified clause, sentence, or text] appearing therein and replacing it with the following / amended by adding the following language at the end thereof / amended by inserting the following language immediately [before/after] the [specified text]] to read as follows:
"[Insert full text of amended provision.]"
[Instruction to preparer: Add additional Sections 2.3, 2.4, 2.5, etc. as necessary for each separate provision of the Business Combination Agreement being amended. Each additional section should follow the same format as Sections 2.1 and 2.2 above. Number each section sequentially. Where multiple related amendments are being made to the same article or provision of the Business Combination Agreement, consider whether it is clearer to address all such amendments in a single subsection or to address each change in a separate subsection.]
Section 2.[●] *Amendments to Schedules and Exhibits.*
[Instruction to preparer: If any schedules, exhibits, or disclosure schedules to the Business Combination Agreement are being amended, identify each schedule or exhibit by reference and either (a) attach the amended version as an exhibit to this Amendment, or (b) set forth the revised text directly in this section. If disclosure schedules are being supplemented or updated (as opposed to amended and restated), confirm that the Business Combination Agreement permits such supplementation and identify the mechanism for delivery (e.g., delivery of updated disclosure schedules prior to Closing pursuant to Section [●] of the Business Combination Agreement). Note that updates to disclosure schedules may raise separate issues regarding the "bring-down" condition to Closing and should be carefully coordinated with the disclosure schedule update provisions of the Business Combination Agreement.]
(a) Schedule [●] to the Business Combination Agreement is hereby amended and restated in its entirety as set forth on Exhibit [●] attached hereto, which shall replace in its entirety the corresponding schedule attached to the Business Combination Agreement.
(b) Exhibit [●] to the Business Combination Agreement is hereby amended and restated in its entirety as set forth on Exhibit [●] attached hereto, which shall replace in its entirety the corresponding exhibit attached to the Business Combination Agreement.
[Instruction to preparer: Add additional paragraphs (c), (d), etc., as necessary for each schedule, exhibit, or disclosure schedule being amended. If no schedules or exhibits are being amended, this section may be deleted in its entirety and the subsequent sections of this Article II should be renumbered accordingly.]
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 *Representations and Warranties of Each Party.*
Each Party hereby represents and warrants to each other Party that, as of the date hereof:
(a) *Authority.* Such Party has all requisite corporate (or other applicable entity-level) power and authority to execute and deliver this Amendment and to perform its obligations hereunder. The execution, delivery, and performance of this Amendment are within such Party's corporate (or other applicable entity-level) powers.
(b) *Due Authorization.* The execution, delivery, and performance of this Amendment by such Party have been duly and validly authorized by all necessary corporate (or other applicable entity-level) action on the part of such Party, including, to the extent required, approval by the board of directors (or equivalent governing body) of such Party. No other corporate (or other applicable entity-level) proceedings on the part of such Party are necessary to authorize the execution, delivery, or performance of this Amendment.
(c) *Enforceability.* This Amendment has been duly and validly executed and delivered by such Party. Assuming due authorization, execution, and delivery by each of the other Parties, this Amendment constitutes a legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generally, (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and (iii) the discretion of the court before which any proceeding therefor may be brought.
(d) *No Conflicts.* The execution, delivery, and performance of this Amendment by such Party does not and will not (i) conflict with, or result in any breach or violation of, any provision of the certificate of incorporation, bylaws, memorandum and articles of association, operating agreement, or other comparable organizational documents of such Party, (ii) conflict with, or result in any breach or violation of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, modification, or acceleration of any obligation or to the loss of a benefit under, any contract, agreement, indenture, lease, license, permit, or other instrument or obligation to which such Party is a party or by which such Party or any of its properties or assets is bound, or (iii) conflict with or violate any applicable law, rule, regulation, order, judgment, decree, or governmental authorization applicable to such Party or any of its properties or assets, except, in the case of clauses (ii) and (iii), for any such conflicts, breaches, violations, defaults, terminations, cancellations, modifications, accelerations, or losses that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Party's ability to consummate the transactions contemplated by this Amendment or to perform its obligations hereunder.
ARTICLE IV
MISCELLANEOUS
Section 4.1 *Effect of Amendment.*
Except as expressly set forth in this Amendment, the Business Combination Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. Nothing in this Amendment shall be deemed to constitute a waiver by any Party of any right, power, or remedy available to such Party under the Business Combination Agreement, at law, or in equity. The Parties acknowledge and agree that this Amendment is not intended to, and shall not be construed to, constitute a novation of the Business Combination Agreement or any obligation thereunder. On and after the date hereof, each reference in the Business Combination Agreement to "this Agreement," "herein," "hereof," "hereunder," or words of similar import shall mean and refer to the Business Combination Agreement as amended by this Amendment, unless the context otherwise requires. To the extent there is any conflict or inconsistency between the terms and provisions of this Amendment, on the one hand, and the terms and provisions of the Business Combination Agreement (without giving effect to this Amendment), on the other hand, the terms and provisions of this Amendment shall govern and control.
Section 4.2 *No Other Amendments or Waivers.*
This Amendment shall not constitute an amendment or waiver of any provision of the Business Combination Agreement not expressly referred to herein, and shall not be construed as an amendment, waiver, or consent to any further or future action on the part of any Party that would require an amendment, waiver, or consent under the Business Combination Agreement, except as expressly set forth herein. No course of dealing between the Parties, and no failure or delay by any Party in exercising any right, power, or privilege under the Business Combination Agreement or this Amendment, shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided herein and in the Business Combination Agreement are cumulative and are not exclusive of any rights or remedies that any Party may otherwise have at law or in equity.
Section 4.3 *References to Business Combination Agreement in Other Transaction Documents.*
[Instruction to preparer: Consider whether any ancillary agreements (e.g., Sponsor Support Agreement, Company Stockholder Support Agreement, PIPE Subscription Agreements, Forward Purchase Agreement, Lock-Up Agreement, Backstop Agreement, Earnout Escrow Agreement, Registration Rights Agreement, Tax Receivable Agreement, Investor Rights Agreement, or other ancillary or transaction documents) contain cross-references to the Business Combination Agreement that may require conforming amendments, waivers, consents, or acknowledgments. If so, consider whether separate amendment agreements or consent letters should be prepared for such ancillary agreements, and coordinate with the relevant counterparties.]
For the avoidance of doubt, all references to the "Business Combination Agreement" (or words of similar import) in any Transaction Document (as defined in the Business Combination Agreement), including, without limitation, the [insert name(s) of ancillary agreement(s)], as applicable, shall be deemed to refer to the Business Combination Agreement as amended by this Amendment, unless the context otherwise requires.
Section 4.4 *Governing Law.*
This Amendment, and all claims or causes of action (whether at law, in equity, in contract, in tort, or otherwise) that may be based upon, arise out of, or relate to this Amendment or the negotiation, execution, or performance of this Amendment, shall be governed by and construed in accordance with the laws of the State of [insert governing law jurisdiction], without regard to conflicts of law principles thereof that would cause the application of the laws of any other jurisdiction.
[Instruction to preparer: The governing law should match the governing law provision of the original Business Combination Agreement. In most de-SPAC transactions, the governing law is the State of Delaware or the State of New York. Confirm the governing law provision in the Business Combination Agreement and insert the corresponding jurisdiction here.]
Section 4.5 *Jurisdiction; Venue.*
[Instruction to preparer: Insert the exclusive jurisdiction and venue provision, which should be consistent with the forum selection clause in the Business Combination Agreement. Common formulations include submission to the exclusive jurisdiction of the courts of the State of Delaware (including the Court of Chancery of the State of Delaware) and the United States District Court for the District of Delaware, or the courts of the State of New York located in the Borough of Manhattan and the United States District Court for the Southern District of New York.]
Any Action (as defined in the Business Combination Agreement) arising out of or relating to this Amendment or the transactions contemplated hereby shall be brought exclusively in the [insert courts], and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such Action, waives any objection it may now or hereafter have to the laying of venue of any such Action in such courts, and agrees not to plead or claim in any such court that any such Action brought in any such court has been brought in an inconvenient forum. Each Party agrees that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Each Party irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in this Section 4.5 in any such Action by mailing copies thereof by registered United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to the notice provisions of the Business Combination Agreement. However, the foregoing shall not limit the right of a Party to effect service of process on the other Parties by any other legally available method.
Section 4.6 *Waiver of Jury Trial.*
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.6.
Section 4.7 *Counterparts.*
This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), the federal ESIGN Act of 2000, the Uniform Electronic Transactions Act, or other applicable law), portable document format (.pdf), or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment. No Party shall raise the use of such electronic methods of delivery or the fact that any signature was transmitted or communicated through such electronic methods as a defense to the formation of this Amendment.
Section 4.8 *Entire Agreement.*
This Amendment, together with the Business Combination Agreement (as amended hereby) and the other Transaction Documents (including all schedules, exhibits, and annexes thereto), constitutes the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous negotiations, agreements, representations, warranties, commitments, and understandings, whether written or oral, relating to such subject matter.
Section 4.9 *Severability.*
If any provision of this Amendment is held to be invalid, illegal, or unenforceable under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of any other provision of this Amendment or the validity, legality, or enforceability of such provision in any other jurisdiction, and the remaining provisions of this Amendment shall remain in full force and effect. Upon such determination that any provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Amendment so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 4.10 *Successors and Assigns.*
This Amendment shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. No Party may assign or delegate any of its rights or obligations hereunder without the prior written consent of each other Party, and any attempted assignment or delegation without such consent shall be null and void.
Section 4.11 *Third-Party Beneficiaries.*
[Instruction to preparer: Specify whether this Amendment has any third-party beneficiaries. If the Business Combination Agreement provides for third-party beneficiary rights (e.g., D&O indemnification provisions benefiting directors and officers of the Company, non-recourse provisions benefiting related persons of the Parties, or provisions benefiting the Sponsor or its affiliates), confirm that such rights are preserved and not adversely affected by this Amendment. If the Business Combination Agreement contains a general "no third-party beneficiaries" provision with certain specified exceptions, mirror the same formulation here.]
Nothing in this Amendment, express or implied, is intended to or shall confer upon any Person (as defined in the Business Combination Agreement) other than the Parties hereto (and their respective successors and permitted assigns) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Amendment, except as expressly provided in Section [●] of the Business Combination Agreement (which provisions shall apply to this Amendment as if fully set forth herein).
Section 4.12 *Specific Performance.*
The Parties acknowledge and agree that the provisions of Section [●] of the Business Combination Agreement relating to specific performance and other equitable remedies shall apply to this Amendment, mutatis mutandis, as if fully set forth herein. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated by the Business Combination Agreement (as amended by this Amendment) are unique and that money damages would not be an adequate remedy in the event that any of the provisions of this Amendment are not performed in accordance with their specific terms or are otherwise breached. Accordingly, in addition to any other remedies available at law or in equity, including money damages, each Party shall be entitled to seek and obtain an injunction or injunctions, or any other appropriate form of specific performance or equitable relief, to prevent breaches of this Amendment and to enforce specifically the terms and provisions hereof, and each Party hereby waives any requirement for the posting of any bond or other security in connection therewith.
[Instruction to preparer: Cross-reference the specific section number of the Business Combination Agreement containing the specific performance provision. This provision is typically found in the Miscellaneous article.]
Section 4.13 *Expenses.*
Except as otherwise expressly provided in the Business Combination Agreement or as may be separately agreed by the Parties in writing, each Party shall bear its own costs and expenses (including attorneys' fees and expenses, financial advisory fees, accounting fees, and other professional fees and expenses) incurred in connection with the negotiation, preparation, execution, and delivery of this Amendment and the consummation of the transactions contemplated hereby.
[Remainder of this page intentionally left blank.]
[Signature pages follow.]
IN WITNESS WHEREOF, each of the Parties has caused this Amendment No. 1 to the Business Combination Agreement to be duly executed and delivered as of the date first written above.
[Instruction to preparer: Signature blocks should mirror the signature page format of the Business Combination Agreement. Ensure that the signatory for each Party is an authorized officer with actual authority to execute this Amendment. Confirm that any required board resolutions or other authorizations have been obtained prior to execution. Each signature page should be on a separate page.]
ACQUIROR:
[INSERT FULL LEGAL NAME OF SPAC]
By: ________
Name: [Insert name]
Title: [Insert title]
MERGER SUB:
[INSERT FULL LEGAL NAME OF MERGER SUB]
By: ________
Name: [Insert name]
Title: [Insert title]
COMPANY:
[INSERT FULL LEGAL NAME OF TARGET]
By: ________
Name: [Insert name]
Title: [Insert title]
EXHIBITS
EXHIBIT A
[AMENDED AND RESTATED SCHEDULE [●]]
[Instruction to preparer: Attach revised schedules, disclosure schedules, or exhibits to the Business Combination Agreement, if any are being amended by this Amendment. Each such revised schedule, disclosure schedule, or exhibit should be clearly labeled and should indicate that it is an "Amended and Restated" version of the applicable schedule, disclosure schedule, or exhibit to the Business Combination Agreement. If disclosure schedules are voluminous, consider attaching them in a separate disclosure schedule supplement and incorporating such supplement by reference in this Amendment.]
[To be attached.]
EXHIBIT [●]
[ADDITIONAL EXHIBITS AS NEEDED]
[Instruction to preparer: Add additional exhibits as necessary. Each exhibit should be clearly labeled with a sequential letter designation (e.g., Exhibit B, Exhibit C, etc.) and should include a descriptive title indicating the subject matter of the exhibit.]
[To be attached.]
DRAFTING NOTES AND INSTRUCTIONS FOR PREPARER
[For internal use only — do not include in execution version]
General Guidance. This form is prepared as a template for use in the event a pre-closing amendment to the Business Combination Agreement becomes necessary. Prior to circulating any draft of this Amendment to opposing counsel, the preparer should complete each of the following steps:
1. Confirm Amendment Authority. Confirm the specific amendment provision of the Business Combination Agreement that authorizes amendments and verify any procedural requirements applicable thereto, including, without limitation, (a) whether board approval by all Parties is required prior to execution of the amendment, (b) whether the consent or approval of any third party (including the Sponsor, the Company Stockholders, the Acquiror's stockholders, any financing source, or any governmental authority) is required, (c) whether any limitations exist on the types of amendments that may be made without stockholder approval (e.g., amendments that would reduce the merger consideration payable to stockholders or that would alter or change the manner of conversion of Company shares), and (d) whether notice to any counterparty or other Person is required in connection with the execution of an amendment.
2. Review Ancillary Agreements. Determine whether any ancillary agreements, side letters, or other transaction documents require conforming amendments, waivers, acknowledgments, or consents in connection with the proposed amendments to the Business Combination Agreement. Particular attention should be paid to the Sponsor Support Agreement (which may contain commitments by the Sponsor that are tied to specific provisions of the Business Combination Agreement), any PIPE Subscription Agreements or Forward Purchase Agreements (which may contain closing conditions that are cross-referenced to the Business Combination Agreement), and any Lock-Up Agreements or Registration Rights Agreements (which may define terms by reference to the Business Combination Agreement).
3. Coordinate with Opposing Counsel. Coordinate with opposing counsel on the scope, substance, and text of the proposed amendments. Consider whether a term sheet or summary of proposed changes should be prepared and discussed prior to the preparation of a full draft of the Amendment. Maintain a comprehensive issues list and log of all open negotiation points.
4. SEC Filing Requirements. Confirm whether the proposed amendments require (a) the filing of a Current Report on Form 8-K under Item 1.01 (Entry into a Material Definitive Agreement) within four (4) business days of execution, (b) a post-effective amendment or supplement to the Registration Statement on Form S-4 (or Form F-4, as applicable) if the Form S-4 has not yet been declared effective or if the proposed amendments constitute a fundamental change to the information contained in the Registration Statement, (c) a supplement to the proxy statement/prospectus, or (d) any other filing with the U.S. Securities and Exchange Commission. If the Form S-4 has not yet been declared effective, the Amendment should be filed as an exhibit to an amendment to the S-4 prior to effectiveness.
5. Re-Solicitation Requirements. Evaluate whether the proposed amendments trigger any re-solicitation requirements under applicable law, including (a) whether the proposed amendments are material enough to require the recirculation of the proxy statement/prospectus to the Acquiror's stockholders, (b) whether any amendment to the merger consideration or other economic terms of the Business Combination Agreement would require a new vote of the Acquiror's stockholders or the Company's stockholders, and (c) whether applicable stock exchange rules or the Acquiror's organizational documents impose any incremental approval requirements.
6. Financial Opinions and Board Approvals. Consider whether any proposed amendment constitutes a material change to the economic terms of the transaction that may require (a) an updated or supplemental financial opinion (e.g., a fairness opinion bring-down or refresh letter from the financial advisor to the board of directors of the Acquiror or the Company), (b) updated board resolutions from the board of directors (or applicable committee thereof) of each Party, or (c) updated or supplemental solvency opinions or other third-party opinions that were delivered in connection with the execution of the original Business Combination Agreement.
7. Boilerplate Consistency. Verify that the governing law, jurisdiction, venue, waiver of jury trial, and other boilerplate provisions of this Amendment are consistent with the corresponding provisions in the original Business Combination Agreement. Ensure that no inadvertent conflicts or inconsistencies are introduced by this Amendment.
SEC Filing Considerations. If this Amendment is executed, the Acquiror should file a Current Report on Form 8-K within four (4) business days of execution reporting the Amendment under Item 1.01 (Entry into a Material Definitive Agreement). The Amendment should be filed as an exhibit to the Form 8-K. If the Form S-4 has not yet been declared effective, the Amendment should also be filed as an exhibit to an amendment to the S-4, and the prospectus disclosure should be updated to reflect the substance of the amendments. Coordinate with the SEC reporting team and outside securities counsel to ensure timely and accurate filings.
Distribution. Circulate the initial draft of this Amendment to the lead partner and lead associate for review and comment before transmitting to opposing counsel. Coordinate with the tax team if any amendment affects the tax structure, qualification, or characterization of the transaction as a reorganization under Section 368 of the Internal Revenue Code (or any analogous provision of state, local, or non-U.S. tax law). Coordinate with the regulatory team if any amendment affects the regulatory filings, approvals, or conditions applicable to the Closing.
[End of Form of Amendment No. 1 to Business Combination Agreement.]