AIXC 8-K
AIxCrypto Holdings, Inc. (AIXC)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported):
(Exact Name of Registrant as Specified in Charter)
| (State or Other Jurisdiction | (Commission | (I.R.S. Employer | ||
| of Incorporation) | File Number) | Identification No.) |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s
Telephone Number, Including Area Code:
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement
Entry into a Consulting Agreement
On January 28, 2026, AIxCrypto Holdings, Inc. (the “Company”) entered into a consulting services agreement (the “Consulting Agreement”), effective as of November 1, 2025, with FF Global Partners LLC (“Consultant”).
Pursuant to the Consulting Agreement, the Company has engaged Consultant to provide a range of consulting services to support the Company’s strategic goals. The services to be provided by Consultant include supporting the Company’s strategic planning and execution framework, assisting with the development of funding strategies and engagement of potential investors, consultation on blockchain architecture and technical strategy, and general support in developing the Company’s operations and risk management framework, as further detailed in the Consulting Agreement.
The Consulting Agreement provides for an initial term commencing on November 1, 2025 and ending on December 31, 2026. Prior to the expiration of the initial term, the parties have agreed to engage in good faith discussions regarding a potential two-year extension of the engagement, subject to agreement on a new schedule of work and the approval of the Company. Under the terms of the Consulting Agreement, Consultant will receive a fixed fee of $100,000 per month, payable on the last day of each month beginning November 30, 2025. In addition, the Company’s management and Board of Directors may, at their sole discretion, award a quarterly bonus of up to $1,000,000 based on Consultant’s performance. The Company has also agreed to reimburse Consultant for reasonable and documented out-of-pocket expenses incurred in connection with the services, subject to a cap of $50,000 without the Company’s prior written consent.
The Consulting Agreement may be terminated by either party upon one (1) month’s prior written notice. The Consulting Agreement also includes customary termination provisions for material breach, fraud, or insolvency. All intellectual property and work product developed by Consultant in connection with the services will be the sole property of the Company.
The foregoing description of the Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Consulting Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K (this “Form 8-K”) and incorporated herein by reference.
Entry into an Entrusted Investment Agreement
On January 30, 2026, the Company entered into an entrusted investment agreement (the “Entrusted Investment Agreement”) with GOLD KING ARTHUR HOLDING LIMITED (“GKA”) and Song Wang (“Song”), under which the Company entrusted to GKA to manage an investment of shares (“FFAI Shares”) of Class A common stock, par value $0.0001 per share (“FFAI Class A Common Stock”), of Faraday Future Intelligent Electric Inc. (“FFAI”), a Delaware corporation with its FFAI Class A Common Stock traded on The Nasdaq Stock Market LLC (“Nasdaq”). Such management would include the potential purchase, holding, tokenization and disposition of the FFAI Shares. Pursuant to and in connection with the Entrusted Investment Agreement, on January 30, 2026, GKA and FFAI entered into a securities purchase agreement (the “SPA”), for the purchase of FFAI Shares at an aggregate consideration of $10,000,000. The closing of the SPA is subject to the satisfaction of the conditions precedent as set out under the SPA, and the number of FFAI Shares to be issued shall be calculated using a per share purchase price equivalent to the closing price of FFAI Class A Common Stock on Nasdaq on the trading day immediately prior to the closing date.
Both the Entrusted Investment Agreement and the SPA contain customary representations, warranties, and covenants by the respective parties thereto. The SPA also provides for customary indemnification by FFAI for losses or damages arising out of or in connection with the SPA and the investment contemplated thereunder.
The foregoing descriptions of the Entrusted Investment Agreement and the SPA do not purport to be complete and are qualified in its entirety by reference to the full text of the Entrusted Investment Agreement and the SPA, which are filed as Exhibit 10.2 and 10.3, respectively, to this Form 8-K and incorporated herein by reference.
Item 8.01. Other Events
On January 27, 2026, the Company entered into a non-binding letter of intent (“LOI”) with Aster Foundation, a Cayman Islands foundation company (“Aster”), under which the Company and Aster would use commercially reasonable efforts to collaborate on general business opportunities and to share such capabilities with proposed areas and scope of collaboration as agreed between the parties, which includes collaboration on efforts relating to the Sei blockchain infrastructure.
Additionally, the Company issued a press release on February 2, 2026, announcing this collaboration with Aster, a copy of which is attached as Exhibit 99.1 to this Form 8-K and incorporated herein by reference.
Forward-Looking Statements
Exhibit 99.1 attached hereto contains, and may implicate, forward-looking statements regarding the Company, and include cautionary statements identifying important factors that could cause actual results to differ materially from those anticipated.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
| Exhibit No. | Description | |
| 10.1 | Consulting Services Agreement, dated January 28, 2026, by and between AIxCrypto Holdings, Inc. and FF Global Partners LLC. | |
| 10.2 | Entrusted Investment Agreement, dated January 30, 2026, by and between AIxCrypto Holdings, Inc., GOLD KING ARTHUR HOLDING LIMITED, and Song Wang. | |
| 10.3 | Securities Purchase Agreement, dated January 30, 2026, by and between FARADAY FUTURE INTELLIGENT ELECTRIC INC. and GOLD KING ARTHUR HOLDING LIMITED. | |
| 99.1 | Press Release, dated February 2, 2026. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AIxCrypto Holdings, Inc. | ||
| Date: February 2, 2026 | By: | /s/ Koti Meka |
| Name: | Koti Meka | |
| Title: | Chief Financial Officer | |
Exhibit 10.1
Consulting Services Agreement
This Consulting Services Agreement (“Agreement”) is entered into on January 26, 2026 and effective as of November 1, 2025 (“Effective Date”), by and between AIxCrypto Holdings, Inc. (the “Company”) and FF Global Partners LLC (“Consultant”).
1. Services. The Company hereby engages Consultant, and Consultant hereby accepts such engagement, to provide the services set forth on Schedule 1 hereto (the “Services”) pursuant to the terms and conditions set forth in this Agreement. The Company shall not control the manner or means by which Consultant performs the Services, including, but not limited to, the time and place that Consultant performs the Services. The Company shall provide Consultant with reasonable access to its premises and equipment to the extent necessary for the performance of the Services. To the extent Consultant performs any Services on the Company’s premises or using the Company’s equipment, Consultant shall comply with all applicable policies of the Company relating to business and office conduct, health and safety and use of the Company’s facilities, supplies, information technology, equipment, networks and other resources, as communicated to Consultant.
2. Compensation.
2.1 Fees. As compensation for the Services and the rights granted to the Company under this Agreement, the Company agrees to pay the Consultant a fee in the amount set forth on Schedule 1 hereto (the “Fees”). The Company shall do a monthly review of Consultant’s work before submitting payments based on the payment schedule.
2.2 Expenses. The Company will reimburse Consultant for the actual amount of its reasonable and documented out-of-pocket expenses incurred in connection with the performance of the Services hereunder; provided, however, that any expenses in excess of $100 must be pre-approved by the Company in order to be reimbursed hereunder, except as specifically provided in Schedule 1.
3. Independent Contractor. Consultant’s relationship with the Company is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employee relationship. Consultant shall have no authority to bind the Company, and Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent. Consultant is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of compensation under this Agreement. Consultant is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement. No part of Consultant’s compensation, if any, will be subject to withholding by the Company for the payment of any social security, federal, state or any other employee payroll taxes. Without limiting the foregoing, Consultant shall not be eligible to participate in any paid time off, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker’s compensation insurance on Consultant’s behalf. Consultant shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed by Consultant in connection with the performance of the Services shall be Consultant’s employees, and Consultant shall be fully responsible for them.
| 1 |
4. Representations and Warranties.
4.1 Consultant. Consultant represents and warrants to the Company that: (a) Consultant has the right to enter into this Agreement and to perform fully all of Consultant’s obligations under this Agreement; (b) the Services performed by Consultant, and any work product or deliverables created as a result of the Services, do not and shall not infringe any patent, trademark, copyright, or other intellectual property rights of any third party; (c) Consultant has the required skill, experience and qualifications to perform the Services, and shall use its reasonable best efforts to perform the Services in a professional and workmanlike manner in accordance with industry standards for similar services; (d) Consultant shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner; and (e) Consultant shall perform the Services in compliance with all applicable federal, state and local laws and regulations.
4.2 Company. The Company represents and warrants to Consultant that: (a) the Company has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and (b) the execution of this Agreement has been duly authorized by all necessary corporate action.
5. Intellectual Property Rights.
5.1 Inventions and Innovations.
(a) Ownership. Consultant agrees that all right, title, and interest in and to any and all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by Consultant, solely or in collaboration with others, within the scope of Consultant’s Services for the Company under this Agreement, or with the use of Company’s equipment, supplies, facilities, or with information of the Company specifically provided to Consultant in connection with the provision of the Services, and any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (collectively, “Inventions and Innovations”), are the sole property of the Company.
(b) Disclosure and Assignment. Consultant agrees to promptly make full written disclosure to the Company of any Inventions and Innovations, and hereby irrevocably assigns fully to the Company, all of Consultant’s right, title, and interest in and to Inventions and Innovations. Consultant agrees that this assignment includes a present conveyance to the Company of ownership of Inventions and Innovations that are not yet in existence. Consultant further acknowledges and agrees that all original works of authorship that are made by Consultant (solely or jointly with others) within the scope of Consultant’s Services for the Company under this Agreement and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. Consultant understands and agrees that the decision whether or not to commercialize or market any Inventions and Innovations is within the Company’s sole discretion and for the Company’s sole benefit, and that no royalty or other consideration will be due to Consultant as a result of the Company’s efforts to commercialize or market any such Inventions and Innovations.
(c) Moral Rights. Any assignment to the Company of Inventions and Innovations includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under applicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.
| 2 |
(d) Assistance. Consultant agrees to assist the Company in any reasonable manner, at the Company’s sole expense, to obtain and enforce for the Company’s benefit patents, copyrights, mask works, and other property rights in any and all countries, and Consultant agrees to execute, when requested, patent, copyright or similar applications and assignments to the Company and any other lawful documents deemed necessary by the Company to carry out the purpose of this Agreement. If called upon to render assistance under this paragraph, Consultant will be entitled to a fair and reasonable fee in addition to reimbursement of authorized expenses incurred at the prior written request of the Company. In the event that the Company is unable for any reason to secure Consultant’s signature to any document required to apply for or execute any patent, copyright or other applications with respect to any Intellectual Property (including improvements, renewals, extensions, continuations, divisions or continuations in part thereof), Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant’s agents and attorneys-in-fact to act for and in Consultant’s behalf and instead of Consultant, to execute and file any such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, mask works or other rights thereon with the same legal force and effect as if executed by Consultant. Nothing in this paragraph shall require Consultant or any of its affiliates or related persons to participate in any legal proceedings other than as set forth in Section 5.1(d).
5.2 Confidential Information. Consultant will keep all confidential information provided by the Company to Consultant in connection with this Agreement confidential.
Consultant shall not communicate any information to the Company in violation of the proprietary rights of any third party.
5.3 Return of the Company’s Property. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, design and lists) furnished to Consultant by the Company, whether delivered to Consultant by the Company or made by Consultant in the performance of Services under this Agreement (“Company Property”), are the sole and exclusive property of the Company or its suppliers or customers. Consultant agrees to promptly deliver the original and any copies of Company Property to the Company at any time upon the Company’s request. Upon termination of this Agreement by either party for any reason, Consultant agrees to promptly deliver to the Company or destroy, at the Company’s option, the original and any copies of Company Property; provided that Consultant may keep copies of Company Property for legal or compliance purposes. Consultant agrees to certify in writing that Consultant has so returned or destroyed all such Company Property.
6. No Conflict of Interest. Consultant represents and warrants that it has no agreements, relationships or commitments to any other person or entity that conflict with the provisions of this Agreement, Consultant’s obligations to the Company under this Agreement, or Consultant’s ability to perform the Services hereunder. During the term of this Agreement, Consultant will not enter into any agreements, relationships or commitments with any other person or entity that conflict with the provisions of this Agreement, Consultant’s obligations to the Company under this Agreement, or Consultant’s ability to perform the Services hereunder.
7. Noninterference with Business. To the fullest extent permitted under applicable law, Consultant agrees that during the term of this Agreement and for a period of one (1) year immediately following its termination, Consultant will not directly or indirectly (i) solicit any of the Company’s employees to leave their employment at the Company; nor (ii) solicit any of the Company’s customers, vendors or distributors to breach any contractual agreement it may have in place with Company. During the Term and thereafter, Consultant will not defame or disparage the Company, its management or employees in connection with the Services (and the Company shall not defame or disparage Consultant, its management or employees in connection with the Services), except as may be required by applicable law.
| 3 |
8. Term and Termination.
8.1 Term. This Agreement is effective as of the Effective Date set forth above and shall remain in effect unless and until terminated in accordance with this Section. This Agreement is intended to serve as a Master Services Agreement that governs all present and future services performed by Consultant for the Company. Additional Statements of Work or work orders may be entered into from time to time, and each shall be governed by the terms of this Agreement unless expressly stated otherwise.
8.2 Termination. Either party may terminate this Agreement upon one (1) month prior written notice to the other party. Upon any termination of this Agreement, the Company shall promptly pay Consultant any accrued but unpaid fees hereunder, and shall reimburse Consultant for any unreimbursed expenses that are reimbursable hereunder.
8.3 Either party may terminate this Agreement immediately upon written notice to the other party if the other party:
(a) materially breaches this Agreement and fails to cure such breach within ten (10) days after receiving written notice thereof;
(b) engages in fraud, gross negligence, willful misconduct, or any act that materially harms or is reasonably likely to materially harm the terminating party’s business, reputation, or operations; or
(c) becomes insolvent, files for bankruptcy, or is subject to any liquidation or similar proceeding.
Termination under this Section 8.3 shall not relieve the Company of its obligation to pay any accrued but unpaid fees and reimbursable expenses incurred prior to the effective date of termination.
8.4 Survival. The rights and obligations contained in Sections 3 through 11, and Schedule 1 hereof will survive any termination or expiration of this Agreement.
9. [Intentionally Deleted]
10. Limitation of Liability. Neither party nor any such party’s person, including officers, directors, employees, managers, direct or indirect shareholders, direct or indirect members, or representatives (collectively as “Party Person”) will be liable to the other for any consequential, indirect, punitive, special incidental, speculative or remote damages (including lost profits, loss of revenue, loss of goodwill, loss of reputation) in connection with or arising out of any breach of or performance of the Agreement. In no event will Company’s liability or Company’s recovery under or with respect to the Agreement exceed the fees and expenses actually paid to Consultant by Company under the Agreement. In no event will Consultant’s and its Party Person’s liability (taken together) or Consultant’s recovery under or with respect to the Agreement exceed the fees and expenses actually paid to Consultant by Company under the Agreement. Notwithstanding the foregoing or anything else to the contrary in this Agreement, Consultant shall not have any liability under or in connection with this Agreement (i) to the extent it has followed any direction given to it by the Company or (ii) to the extent the Company has failed to give Consultant sufficient timely direction, or sufficient timely and accurate information. Notwithstanding the foregoing, the limitation of liability set forth in this Section 10 shall not apply with respect to either Party’ s indemnification obligations under Section 9 of this Agreement or breach of either Party’s confidentiality obligations under Section 5.2 of this Agreement.
| 4 |
11. Miscellaneous.
11.1 Successors and Assigns. Consultant shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Company’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. The Company may freely assign its rights and obligations under this Agreement any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the Parties hereto and their respective successors and permitted assigns.
11.2 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by electronic mail upon receipt thereof; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or such other address as either party may specify in writing.
11.3 Governing Law and Jurisdiction. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the state of California, as such laws are applied to agreements entered into and to be performed entirely within California. Subject to Section 11.4, each party expressly consents (and waives any objection) to the venue and jurisdiction of the state courts of Los Angeles County, California and the federal courts located in the Central District of California for all litigation which may be brought with respect to this Agreement.
11.4 Injunctive Relief for Breach. Consultant’s obligations under this Agreement are of a unique character that gives them particular value, and breach of any of such obligations will result in irreparable and continuing damage to the Company for which there will be no adequate remedy at law. Accordingly, in the event of such breach, the Company will be entitled to injunctive relief and/or specific performance, and such other and further relief as may be proper (including monetary damages if appropriate), without the requirement to post a bond or other security.
11.5 Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the invalid or unenforceable terms will be modified to allow maximum enforceability of such provisions, and the legality, validity and enforceability of the remaining provisions of this Agreement shall not be otherwise affected or impaired thereby.
11.6 Amendments; Waivers. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto, and any of the terms hereof may be waived only by a written document signed by the party or parties waiving compliance. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by such other party.
11.7 Entire Agreement. This Agreement, together with any documents incorporated herein by reference and related exhibits and schedules, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Services undertaken by Consultant for the Company.
11.8 Counterparts. This Agreement may be executed in multiple counterparts and by electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument.
| 5 |
IN WITNESS WHEREOF, the parties have executed this Consulting Services Agreement as of the date first written above.
| Company: | AIxCrypto Holdings, Inc. | |
| By: | /s/ Kevin A. Richardson II | |
| Name: | Kevin A. Richardson II | |
| Title: | CEO | |
| Date: | January 28, 2026 | |
| Consultant: | FF Global Partners LLC | |
| By: | /s/ Chaoying Deng | |
| Name: | Chaoying Deng | |
| Title: | Managing Partner | |
| Date: | January 28, 2026 | |
| 6 |
SCHEDULE 1
STATEMENT OF WORK
Services
Consultant shall assist the Company by providing consultation and integrating resources to assist the Company in achieving the Company’s strategic goals, including the following Services during the Term:
| ● | Support the Company’s top-level strategic planning and strategy execution framework | |
| ● | Assist the Company in developing its funding strategy. Identify and profile suitable investor categories and actively engage with potential investors to achieve fund raising and support EGM/AGM including but not limited to soliciting investors. | |
| ● | Assist the Company in developing its crypto and Web3 ecosystem build-up | |
| ● | Support the Company in developing and enhancing its financing strategy across both traditional stockholders and crypto-native investor groups, including retail participants. | |
| ● | Consultation on the Blockchain Architecture and Technical Strategy. Support the Company in aligning its technical roadmap with market needs, token utility, ecosystem design, and long-term growth objectives. | |
| ● | Support on communications regarding the Company’s shareholder meetings | |
| ● | Assist in developing a structured risk management framework | |
| ● | Assist in the company’s operation and capability build-up, provide consultancy to improve the company operation efficiency and provide operational methodologies, mechanism, and tools AIXC requires. | |
| ● | Assist the integration and coordination of the company’s external resources |
The addition of any Service not specifically set forth above shall require the prior consent of Consultant.
Term.
| ● | Phase 1: Nov 1, 2025 through December 31, 2026. | |
| ● | Phase 2: Subject to the Agreement’s automatic renewal provisions in Section 8.1, the parties agree to engage in good faith discussions by the end of 2026 regarding a potential two-year continuation of Services under a new schedule of work, subject to the requirements and approval of the Company. |
Additional Services.
The addition of any Service not specifically set forth above shall require the prior consent of Consultant.
| 7 |
Specifically Excluded Services
For the avoidance of doubt, the Services do not include, and shall not be deemed to include:
| ● | any service, support, analysis or advice in respect of any tax matters; legal, compliance or regulatory matters; or intellectual property, information technology, data protection or data privacy matters; or |
| ● | any service, support, analysis or advice the provision of which would require the Consultant or any of its affiliates or related persons to obtain any license from any third party or register with any governmental authority or self-regulatory organization. |
| ● | Consultant shall not be required to perform any Service to the extent that providing such Service in the manner requested by the Company would require it to hire additional employees (or would require the Consultant to incur expenses that the Company does not agree to promptly reimburse). |
Certain Other Provisions
CONSULTANT MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE NATURE OR QUALITY OF THE SERVICES TO BE PROVIDED BY CONSULTANT OR THE RESULTS THAT WILL BE OBTAINED BY USING OR APPLYING THE CONSULTANT’S SERVICES.
Monthly Payment and Expenses:
As consideration for the Services to be performed by the Consultant pursuant to this Agreement, the Company hereby agrees to provide the Consultant
(i) Monthly Fee: a fixed monthly fee of $100,000 per month, due and payable on the last day of each month beginning on Nov 30, 2025 (the “Monthly Payment”); the Monthly Payment for Services provided for the month of November 2025; and
(ii) Quarterly Bonus: The Company’s management team and Board of Directors shall evaluate the Consultant’s actual performance on a quarterly basis and may, at their sole discretion, determine whether to award an additional one-time bonus for that quarter. The maximum amount of any such bonus shall not exceed $1,000,000.
In addition to any Monthly Payment that may be payable, the Company hereby agrees:
| ● | from time to time, upon written request of the Consultant, to reimburse Consultant for all reasonable and documented out-of-pocket travel, legal, and other out-of-pocket expenses incurred in connection with the Service (including reasonable fees and disbursements of Consultant’s external legal counsel), which out-of-pocket expenses shall not exceed $50,000 without the prior written consent of the Company (which consent shall be in the sole and absolute discretion of the Company). In the event Company declines to provide such requested consent, Consultant may terminate the Agreement immediately upon written notice to the Company and in accordance with the other terms of Section 8 of the Agreement. Any such termination shall not relieve the Company of its obligation to pay any fees or reimbursable expenses incurred prior to the effective date of termination. The payment shall be made by the Company no later than two weeks after receiving an opportunity to review under appropriate protections a reasonably detailed invoice from the Consultant, unless the Parties agree otherwise. |
| ● | in the event any director, officer or employee of Consultant (each, a “Consultant Person”) is required by law to attend or participate in judicial or other legal proceedings relating to the Services to which Consultant and/or any of its Affiliates (other than the Company and its subsidiaries) is not a party, the Company agrees to reimburse Consultant for all reasonable and documented out-of-pocket travel, legal, and other expenses incurred by Consultant in respect of preparation for and participation by Consultant Persons in any such proceedings. |
| 8 |
Exhibit 10.2
Entrusted Investment Agreement
This Entrusted Investment Agreement (this “Agreement”) is entered into as of January 30, 2026 by and among the following parties (hereinafter referred to as the “Parties” and each a “Party”):
(1) AIXC, a limited liability company incorporated in AIxCrypto Holdings, Inc., a Delaware corporation, whose principal executive office is situated at 5857 Owens Avenue, Suite 300, Carlsbad, California 92008 (“AIXC”);
(2) GOLD KING ARTHUR HOLDING LIMITED, a limited liability company incorporated in Hong Kong, whose registered office is situated at H020 3/F PHASE 2 KWAI SHING IND BUILDING 42-46 TAI LIN PAI RD, KWAI CHUNG, HONG KONG. (“GKA”); and
(3) Song Wang, a PRC individual with PRC personal identification card number 110108198309276338. (“Shareholder”).
WHEREAS:
(A) AIXC intends to entrust GKA to manage its investment, including the potential purchase, holding, tokenization and disposition of certain Class A common stock of Faraday Future Intelligent Electric Inc. (Nasdaq: FFAI), a Delaware corporation listed on the Nasdaq Stock Market LLC (“FFAI”).
(B) GKA agrees to and accepts the entrustment arrangement and intends to acquire FFAI Shares pursuant to one or more securities purchase agreements or other instruments with FFAI or other eligible sellers (collectively, the “Transaction Agreements”).
(C) As of the date hereof, the Shareholder holds all or a majority of the equity interests in GKA and agrees to and accepts the entrustment arrangement between AIXC and GKA.
(D) The Parties intend to provide for the terms and conditions of the entrustment in this Agreement.
Now in consideration of these premises and the mutual covenants, conditions and agreements herein contained, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties hereby covenant and agree as follows:
1. Definitions and Interpretation
1.1 Definitions
Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall have the following meanings:
“Affiliate” means with respect to a Person, any other Person that directly or indirectly Controls, is Controlled by or is under common Control with such Person, including without limitation the controlling shareholder of such Person; in the case of an individual, his/her Affiliates shall include his/her close family members, such as his/her parents, children and spouse. “Control” mentioned above means, with respect to a Person, (i) directly or indirectly owns more than fifty percent (50%) of the voting shares, equity, registered capital or other similar interest in such Person, whether through the ownership of voting securities, by contract or otherwise, or (ii) notwithstanding owning no more than fifty percent (50%) of the aforesaid interest, owns the power to appoint the general manager or any other senior management member in charge of the daily operation of such Person (excluding only having a veto right in respect of the appointment and removal of such personnel) or a majority of the members of such Person’s management committee, board of directors or other similar decision-making body (excluding only having a veto right in respect of the appointment and removal of such personnel), or has the actual and sole power or authority to direct, authorize or cause the direction of, the business, management and policies of such Person through agreement or other arrangements, whether or not such power or authority is exercised. Controlled shall be construed accordingly.
“Business Day” means any day that is not a Saturday, Sunday, public holiday or other day on which commercial banks are required or authorized by applicable Laws to be closed in the United States, Hong Kong or the British Virgin Islands.
“FFAI Shares” means the Class A common stock of FFAI, par value $0.0001, acquired, held, converted (if applicable) or disposed of by GKA in connection with the Investment pursuant to this Agreement and the Transaction Agreements.
“Investment” means the investment activities contemplated herein, including the purchase, holding, tokenization and disposition of FFAI Shares, and the management and distribution of proceeds therefrom.
“Law” means any federal, state, municipal or local law, statute, code, ordinance, rule, decree, regulation, securities exchange rules or any common law of any government authority or jurisdiction.
“Net Profits” means the aggregate proceeds realized from sale, monetization or other disposition of FFAI Shares and/or Tokenized Shares, minus (i) return of AIXC’s Principal, and (ii) any accrued but unpaid Management Fees payable under this Agreement, and (iii) taxes and transaction costs that are necessarily incurred and directly attributable to the Investment (if any), in each case to the extent actually paid or withheld.
“Person” shall be construed as broadly as possible and shall include an individual, a partnership (including a limited liability partnership), a company, an association, a joint stock company, a limited liability company, a trust, a joint venture, a legal person, an unincorporated organization and a governmental authority.
“Principal” means the total cash amount actually contributed/advanced by AIXC for the acquisition of FFAI Shares and for any other purpose explicitly approved by AIXC in writing under this Agreement.
“PRC” means the People’s Republic of China, which solely for the purposes hereof, shall not include Hong Kong, Taiwan or Macau.
“Security Interests” shall include securities, mortgages, third party’s rights or interests, any stock options, acquisition right, right of first refusal, right to offset, ownership retention or other security arrangements.
“Start Date” shall mean January 30, 2026.
“Tokenization” means any arrangement to create, issue, or facilitate instruments, derivatives, or contractual rights (whether represented by blockchain-based tokens, digital receipts, or otherwise) that reference, are backed by, or economically linked to FFAI Shares (including any structuring, issuance, minting, wrapping, custody, and redemption mechanics), as determined by GKA subject to AIXC’s instructions.
“Tokenized Shares” means any instruments, tokens, or rights created through Tokenization of a portion of the FFAI Shares.
“Transfer” means directly or indirectly, sell, assign, transfer, cha, hypothecate, encumber or otherwise dispose of all or any part of any interest.
“USD” means United States Dollar, the legal tender of the United States of America.
1.2 Interpretation
Headings are for convenience only and shall not affect interpretation. “including” means “including without limitation”.
2. Entrusted Investment
2.1 Scope of Entrustment
AIXC entrusts GKA as its fiduciary, and GKA accepts the entrustment from AIXC as AIXC’s fiduciary, to make and manage the Investment in the best interests of AIXC, including to acquire, hold, tokenize and dispose of the FFAI Shares in compliance with the terms and conditions set forth in this Agreement. The scope of AIXC’s entrustment (the “Entrustment Scope”) shall include the following matters:
(1) to execute the Transaction Agreements as a signing party thereto and acquire the FFAI Shares;
(2) to make payments of the purchase price for the FFAI Shares in accordance with the terms and conditions of the Transaction Agreements;
(3) to exercise its rights in the capacity of holder of the FFAI Shares of FFAI (including voting, corporate actions, and receipt of dividends, if any);
(4) to tokenize a portion of the FFAI Shares and manage any Tokenized Shares as part of the Investment;
(5) to dispose any or all part(s) of FFAI Shares and/or Tokenized Shares pursuant to the terms and conditions stated herein; and
(6) other matters related to the entrustment services hereunder.
2.2 Further Terms of the Entrusted Investment
The Parties further acknowledge and agree that:
(1) subject to the terms and conditions hereof and applicable Laws, GKA shall have the right and discretion to control and make investment decisions relating to the FFAI Shares, including decisions regarding retention, tokenization and disposal, in whole or in part, provided GKA acts in good faith for the benefit of AIXC as AIXC’s fiduciary;
(2) any Tokenization and any disposition or monetization of FFAI Shares and/or Tokenized Shares shall be made in compliance with this Agreement, the Transaction Agreements and applicable Laws;
(3) GKA shall use its best efforts and good faith judgment in rendering services related to the Entrustment Scope, in a way that complies with industry norms and seeks to maximize the investment return for AIXC;
(4) the Parties will not share with each other any non-public information regarding FFAI (or any of its business operations or securities) except to the extent necessary for the performance of this Agreement and subject to applicable Law and confidentiality obligations;
(5) all Transfers and distributions shall be conducted in compliance with Section 9 and Section 10 of this Agreement; and
(6) GKA shall exercise all rights, remedies, and powers under the Transaction Agreements (including enforcing the MFN provisions and collecting any Penalties) solely in accordance with the written instructions of AIxC. GKA shall not waive, amend, or compromise any right under the Transaction Agreements without AIxC’s prior written consent.
3. Contribution of Entrusted Investment
3.1 Total Entrusted Amount
The Parties acknowledge and agree that the total amount of entrusted investment (the “Total Entrusted Amount”) shall be the amount actually contributed by AIXC as investment principal for the acquisition of FFAI Shares and other investment purposes expressly approved in writing by AIXC, excluding any Management Fees payable to GKA under this Agreement.
For the avoidance of doubt, where AIXC contributes an amount that includes both (i) investment principal and (ii) Management Fees payable to GKA, only the portion attributable to investment principal shall constitute the Total Entrusted Amount for purposes of this Agreement.
3.2 Capital Contribution
AIXC shall contribute the investment principal portion of the Total Entrusted Amount (the “Principal”) in one or more installments as reasonably required for the Investment.
In addition, AIXC shall pay the Management Fee pursuant to Section 5.1, for example:
(a) where AIXC intends to invest USD 10,000,000 as Principal,
(b) AIXC shall pay a total amount of USD 10,100,000,
(c) of which USD 10,000,000 shall constitute Principal, and
(d) USD 100,000 shall constitute the Management Fee for the first year, payable upfront to GKA.
Except otherwise stated herein, all capital contributions and Management Fee payments by AIXC shall be in the form of immediately available cash and shall be paid to the account agreed by the Parties under Section 8 (the “Entrusted Account”), provided that GKA may promptly segregate or withdraw the Management Fee portion in accordance with this Agreement.
3.3 Additional Purchase / Additional Capital
AIXC may, at its sole discretion, approve additional purchases of FFAI Shares or additional capital contributions as Principal.
Any additional Management Fees applicable to subsequent years shall be handled in accordance with Section 5.1 of this Agreement and shall not be deemed part of the Total Entrusted Amount or Principal.
GKA shall not be obligated to advance any funds unless expressly agreed in writing by AIXC.
4. Entrustment Period
4.1 Initial Period of Entrustment
The initial period of entrustment (the “Initial Period”) under this Agreement shall be three (3) years, starting from the date when AIXC makes its first capital contribution to the Entrusted Account.
4.2 Extended Period
If, upon expiry of the Initial Period, there remain any unsold FFAI Shares and/or outstanding Tokenized Shares or any residual assets relating to the Investment (collectively, “Remaining Assets”), unless otherwise requested by AIXC in writing, the Initial Period shall be automatically extended for another one (1) year (the “Extended Period”) and thereafter, subject to mutual agreement between the Parties, may be further extended in periods of one (1) year each.
5. Management Fees and Additional Incentives
5.1 Management Fees
In consideration of the entrustment services rendered by GKA to AIXC under this Agreement, GKA will charge a one-time management fee (“Management Fee”) equal to one percent (1%) of the Principal amount of each Capital Contribution made by AIXC.
The Management Fee shall be calculated solely on the specific amount of new Principal contributed at such time and shall be payable as a one-time fee concurrently with the funding of such Principal. For the avoidance of doubt:
(1) One-Time Payment. The Management Fee is a one-time charge applicable only to the inflow of new capital. No annual, recurring, or maintenance fees shall be charged on the Total Entrusted Amount, the Remaining Assets, or any appreciation thereof.
(2) Calculation Example. If AIXC contributes USD $10,000,000 as Principal, the Management Fee shall be USD $100,000 (1% of $10M). If AIXC subsequently contributes an additional USD $20,000,000, the Management Fee shall be USD $200,000 (1% of $20M), resulting in no additional fee on the initial USD $10,000,000.
(3) Payment Method. Unless otherwise agreed, the Management Fee shall be paid by AIXC in addition to the Principal (e.g., AIXC wires Principal + 1% Fee) or, at AIXC’s election, deducted from the gross wire amount prior to the allocation of Principal to the Investment.
5.2 Additional Incentives (Carry)
In addition to the Management Fee under Section 5.1 above, GKA shall be entitled to a performance-based incentive in the form of ten percent (10%) carried interest (“Carry”) on Net Profits, to be distributed in accordance with Section 10.4.
5.3 No Other Fees
The Parties acknowledge and agree that, other than the Management Fee payable under Section 5.1 and the Carry distributable under Section 10.4, AIXC shall not be responsible for any other costs and expenses incurred by GKA and/or the Shareholder, except for (i) taxes and unavoidable transaction costs directly attributable to acquisition, tokenization or disposition of the Investment assets, and (ii) any other costs expressly approved by AIXC in writing in advance.
6. Share Charge
6.1 Share Charge Arrangement
The Shareholder agrees to charge all the shares/equity interests it owns in GKA to AIXC, as security for the obligations, covenants, promises, representations and warranties of the Shareholder and GKA under this Agreement (the “Share Charge”) upon the signing of this Agreement. The terms and conditions of the Share Charge will be governed by a separate agreement between the relevant Parties. As a condition to the Start Date, the Shareholder shall deliver to AIxC’s legal counsel, to be held in escrow, undated but duly executed instruments of transfer and bought and sold notes in respect of the Share Charge, which shall be released to AIxC immediately upon any exercise of the Call Option.
7. Call Option
7.1 Exclusive Call Option Right
Subject to Section 7.2 below, the Shareholder and GKA hereby irrevocably grant AIXC an irrevocable and exclusive right (the “Call Option Right”) to purchase, or to cause a party designated by AIXC (each, a “Designee”) to purchase the following optioned interests (“Optioned Interest”), under the conditions set forth in Section 7.2 below and at the price described in Section 7.3 below:
(1) all the equity interests in GKA held by the Shareholder; and
(2) all FFAI Shares, Tokenized Shares and any other assets held by GKA for the purpose of the Investment under this Agreement.
Except for AIXC and its Designee(s), no other Person shall be entitled to the Call Option Right or other rights with respect to the Optioned Interest.
7.2 Exercise of Call Option Right
The Call Option Right is exercisable only upon a material breach by the Shareholder and/or GKA of its or their respective obligations, liabilities, promises, representations and warranties to AIXC under this Agreement or any other documents ancillary to the subject matter hereof, and such breach remains uncured within a thirty (30) day period after written notice (if curable).
When the Call Option Right becomes exercisable, subject to applicable Laws, AIXC may exercise its Call Option Right by issuing a written notice to the Shareholder and GKA (the “Exercise Notice”), specifying the following:
(1) the obligations and/or warranties breached and the manner of such breach, and the failure to cure such breach (if curable);
(2) the portion of Optioned Interests to be purchased by AIXC or its Designee; and
(3) the date for purchasing and transferring the Optioned Interests.
7.3 Exercise Price
The purchase price of the Optioned Interests shall be US$1 (“Initial Exercise Price”). If applicable Laws require a higher price, the purchase price shall be increased to the minimum permitted price (“Adjusted Exercise Price”). Where applicable, the Shareholder shall transfer the difference between the Initial Exercise Price and the Adjusted Exercise Price as a gift to AIXC or the Designee immediately after receiving the Adjusted Exercise Price.
7.4 Further Obligations
The Shareholder and GKA shall, upon receipt of the Exercise Notice, take all necessary actions and execute all necessary documents to transfer valid ownership of Optioned Interests to AIXC (or its Designee), free and clear of any Security Interests (except those created under this Agreement), and cause AIXC and/or its Designee(s) to become the registered owner(s) of the Optioned Interests.
8. Account Management
8.1 Entrusted Accounts
The Parties agree that one or more bank accounts and brokerage/stock accounts opened and maintained by GKA solely for the Investment shall be maintained and operated as provided in this Agreement (“Entrusted Accounts”). A designee of AIXC shall be provided real-time reporting by default or, if otherwise agreed by AIXC, or at least monthly statements for each of the Entrusted Accounts (although such designee shall not have unilateral power to transfer funds or other assets unless otherwise agreed).
As of the date hereof, the Parties agree that the Entrusted Accounts shall initially include the following account(s) of GKA:
Entrusted Account I
Account Name: GOLD KING ARTHUR HOLDING LIMITED
Account No.: 988000055043131
Account Bank: OVERSEA-CHINESE BANKING CORPORATION LIMITED
SWIFT Code: OCBCSGSG
Address of Account Bank: 65 CHULIA STREET, OCBC CENTRE SINGAPORE 049513
8.2 Operations of Entrusted Accounts
Unless otherwise agreed by the Parties in writing, all inflow and outflow of funds and all investment-related transactions shall be processed through the Entrusted Accounts, including but not limited to:
(1) all cash contributed by AIXC shall be deposited directly into the Entrusted Accounts; and
(2) all payments for purchase, custody, tokenization structuring (if any), and other approved expenses shall be processed via the Entrusted Accounts.
8.3 No Other Accounts
Except for the Entrusted Accounts as stipulated in Section 8.1 above, GKA and its Shareholder shall not open, activate or maintain any other bank accounts and stock accounts for the Investment without the prior written consent of AIXC.
8.4 Further Obligations
GKA and its Shareholder shall take all necessary actions and execute all necessary documents to ensure that the Entrusted Accounts are at all times operated and managed in accordance with this Section 8.
9. Exit Mechanism
9.1 General Principle
GKA shall, in its good faith judgment and consistent with AIXC’s economic interests, tokenize and/or dispose of any or all of the FFAI Shares and/or Tokenized Shares in accordance with this Agreement and applicable Laws.
9.2 Disposal Rules in General
The Parties agree that the disposal of FFAI Shares and/or Tokenized Shares shall comply with the following rules:
(1) Tokenization vs Sale Split. Upon receipt of FFAI Shares, GKA may allocate a portion for Tokenization and a portion for direct sale/disposition, as agreed by the Parties, provided that GKA acts in good faith to maximize AIXC’s economic outcome.
(2) Execution Standard. Any sale or disposition shall be conducted using commercially reasonable methods and with due regard to market liquidity, compliance requirements, and transaction efficiency.
(3) Reporting. GKA shall provide AIXC with (i) a summary notice promptly after any material Tokenization event or material sale/disposition, and (ii) a monthly report summarizing holdings, tokenized amount, sold amount, proceeds, and fees.
9.3 Further Disposal Rules of Remaining Assets
Unless receiving written requests from AIXC to direct otherwise, GKA shall manage and dispose of any Remaining Assets based on its good faith judgment and in a way that maximizes AIXC’s investment return.
10. Distribution
10.1 General Principle
GKA shall make distributions in the most time efficient manner and in accordance with applicable Laws and this Agreement. If any tax is required to be paid/withheld in connection with the Investment under applicable Laws, such tax amount shall be prioritized before any amount is made available for distribution.
10.2 Application of Proceeds
All proceeds from sale/monetization/disposition of FFAI Shares and/or Tokenized Shares, and any dividends or other cash/assets available for distribution, shall be applied and distributed in accordance with Section 10.3 and Section 10.4 below.
10.3 Distribution Waterfall — Return of Principal and Fees
The proceeds available for distribution shall be applied in the following order:
(1) First, to pay any accrued and unpaid Management Fees due under Section 5.1 (if any); and
(2) Second, to return AIXC’s Principal in full.
10.4 Carry Distribution
After full satisfaction of Section 10.3 (i.e., after Management Fees and AIXC Principal have been fully paid/returned), any remaining proceeds constituting Net Profits shall be distributed as follows:
(1) 10% of Net Profits to GKA as Carry; and
(2) 90% of Net Profits to AIXC.
10.5 Timely Distribution
GKA and the Shareholder shall not unreasonably withhold from making distributions required under this Section 10. Any cash proceeds, dividends, or penalties received by GKA shall be distributed to AIXC within three (3) Business Days or receipt, subject to applicable Laws and operational constraints.
11. Representations and Warranties
11.1 Representations and Warranties of GKA and the Shareholder
GKA and the Shareholder (collectively, the “Joint Warrantors”) jointly and severally represent and warrant to AIXC that:
(1) the Joint Warrantors have all necessary power and capacity and have obtained all necessary approval, authorization and consents to enter into and perform this Agreement and the Transaction Agreements;
(2) all requisite resolutions (if applicable) have been duly and properly passed to authorize the execution and performance of this Agreement;
(3) this Agreement constitutes legal, valid and binding obligations on the Joint Warrantors in accordance with its terms;
(4) the execution, delivery and performance by the Joint Warrantors of this Agreement will not violate any applicable Laws;
(5) the Shareholder is the beneficial owner of and has good title to the equity interests of GKA, free of liens other than those created under this Agreement; and
(6) GKA shall conduct no business activities other than those necessary for the Investment under this Agreement, and shall not incur liabilities other than those reasonably necessary to perform this
Agreement and the Transaction Agreements.
11.2 Representations and Warranties of AIXC
AIXC represents and warrants to GKA and the Shareholder that:
(1) AIXC has all necessary power and capacity and has obtained all necessary approval, authorization and consents to enter into and perform this Agreement;
(2) all requisite resolutions (if applicable) have been duly and properly passed to authorize the execution and performance of this Agreement; and
(3) this Agreement constitutes legal, valid and binding obligations on AIXC in accordance with its terms.
12. Further Assurance
(1) GKA and the Shareholder will execute and do, and procure other parties to execute and do, such assurances, acts, agreements and things as AIXC may reasonably require, for the purposes of performing GKA and the Shareholder’s obligations hereunder.
(2) GKA and the Shareholder shall ensure that GKA shall conduct no business activities other than the Investment as contemplated herein and shall incur no liabilities other than those explicitly allowed herein or reasonably necessary to perform the Transaction Agreements.
13. Confidentiality
13.1 Confidential Obligation
Each Party shall, and shall cause each Party’s Affiliates to, keep confidential the existence and content of this Agreement, the Transaction Agreements and any related documentation, the identities of any of the Parties, and other information of a non-public nature received from any other Party or prepared by such Party exclusively in connection herewith (collectively, the “Confidential Information”).
For the avoidance of doubt, Confidential Information does not include information that (i) was already in the possession of the receiving Party before such disclosure, (ii) is or becomes available to the public other than as a result of disclosure in violation of this Agreement, or (iii) is received from a third party without confidentiality breach.
The Parties shall not make any announcement regarding the arrangements contemplated by this Agreement without the other Party’s prior written consent, except as required by applicable Laws.
13.2 Permitted Disclosure
Notwithstanding Section 13.1 above, any Party may disclose Confidential Information:
(1) to the extent compulsorily required by applicable Laws or legal process, subject to reasonable prior notice where practicable;
(2) to its officers, directors, employees, and professional advisors on a need-to-know basis subject to confidentiality; and
(3) to its bona fide prospective investors, financing sources or potential transferees subject to confidentiality obligations at least as stringent as herein.
14. Communications
14.1 Writing and Address
Each notice, demand or other communication given, delivered or made under this Agreement shall be in English and in writing and delivered or sent to other Parties at the address or email address set out below (or such other address or email address as the addressee has by five (5) Business Days’ prior written notice specified to the other Parties).
To AIxCrypto Holdings, Inc.
Address: 5857 Owens Avenue, Suite 300 , Carlsbad, California 92008
E-mail: [email protected]
Attention: Andrew Grossman
Telephone: +1 3104979549
To GOLD KING ARTHUR HOLDING LIMITED
Address: H020 3/F PHASE 2 KWAI SHING IND BUILDING 42-46 TAI LIN PAI RD, KWAI CHUNG, HONG KONG
E-mail: [email protected]
Attention: Wang Song
Telephone: +86 15801658770
To Shareholder
Address: H020 3/F PHASE 2 KWAI SHING IND BUILDING 42-46 TAI LIN PAI RD, KWAI CHUNG, HONG KONG
E-mail: [email protected]
Attention: Wang Song
Telephone: +86 15801658770
14.2 When received
Each notice, demand or other communication shall be deemed given: (1) if sent by registered or certified mail to another country, on the sixth Business Day after posting; (2) if sent by courier or personal delivery, when delivered; and (3) if sent by email, upon receipt of a delivery return mail from the correct address.
15. Partial Invalidity
The illegality, invalidity or unenforceability of any provision of this Agreement under any Law shall not affect its legality, validity or enforceability under any other Law nor the legality, validity or enforceability of any other provision.
16. Counterparts
This Agreement may be signed in any number of counterparts, all of which, when taken together, shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.
17. Governing Law and Jurisdiction
17.1 Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of New York, without regard to the principles of conflicts of law thereof.
17.2 Arbitration
Any dispute, controversy, or claim arising out of or relating to this Agreement shall be resolved exclusively by final and binding arbitration administered by JAMS. The arbitration shall be conducted by a single arbitrator, selected in accordance with its Comprehensive Arbitration Rules and Procedures, and shall take place in New York, New York. The arbitration and all related proceedings shall be confidential, except to the extent disclosure is required by law or necessary to enforce an arbitral award. Judgment upon the arbitrator’s award may be entered in any court of competent jurisdiction. The parties expressly agree that this arbitration provision shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”), and to the extent any state arbitration law is inconsistent with the FAA, the FAA shall govern. Except to the extent otherwise required pursuant to the applicable JAMS rules and procedures and applicable law, each party shall bear its own costs in any arbitration proceeding held hereunder and the parties shall share the costs of the arbitrator.
17.3 Service of Process
Each party irrevocably consents to the service of process, notices or other papers in connection with or in any way arising from the arbitration or the enforcement of any arbitral award, by use of any of the methods and to the addresses set forth for the giving of notices in Section 14. Nothing contained herein shall affect the right of any party to serve such processes, notices or other papers in any other manner permitted by applicable Laws.
[Signature page follows]
The Parties agree to the terms and conditions set forth above as demonstrated by their signatures as follows:
| AIxCrypto Holdings, Inc. | ||
| By: | /s/ Kevin A. Richardson ll | |
| Name: | Kevin A. Richardson ll | |
| Title: | CEO | |
| GOLD KING ARTHUR HOLDING LIMITED | ||
| By: | /s/ Wang Song | |
| Name: | Wang Song | |
| Title: | Director | |
| Song Wang | ||
| By: | /s/ Wang Song | |
Exhibit 10.3
SECURITIES PURCHASE AGREEMENT
DATED AS OF JANUARY 30, 2026
AMONG
FARADAY FUTURE INTELLIGENT ELECTRIC INC.,
as the Issuer
and
GOLD KING ARTHUR HOLDING LIMITED
ANNEXES, EXHIBITS AND SCHEDULES
| ANNEX | ||
| Annex A | - | Definitions |
| SCHEDULES | ||
| Schedule 3.1 | - | Existence, Organizational Identification Numbers, Foreign Qualification, Prior Names |
| Schedule 3.4 | - | Capitalization |
| Schedule 3.6 | - | Litigation |
| Schedule 3.7 | - | Ownership of Property |
| Schedule 3.8 | - | Labor Matters |
| Schedule 3.11 | - | Taxes |
| Schedule 3.12 | - | ERISA |
| Schedule 3.15 | - | Real Estate |
| Schedule 3.16 | - | Insurance |
| Schedule 3.17 | - | Debt |
| Schedule 3.22 | - | Listing and Maintenance Requirements |
| Schedule 8.6 | - | Certain Related Transactions |
| ii |
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT dated as of January 30, 2026 (the “Signing Date”), is by and among, FARADAY FUTURE INTELLIGENT ELECTRIC INC. (the “Issuer” or the “Company”), and GOLD KING ARTHUR HOLDING LIMITED , (the “Purchaser”).
RECITALS:
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act (as defined below) and Regulation D promulgated thereunder, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE 1 DEFINITIONS
Section 1.1 Certain Defined Terms.
Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms on Annex A to this Agreement.
Section 1.2 Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder (including without limitation determinations made pursuant to the exhibits hereto) shall be made, and all financial statements required to be delivered hereunder shall be prepared on a consolidated basis in accordance with GAAP consistently applied. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Issuer or any Subsidiary of the Issuer at “fair value.”
Section 1.3 Other Definitional Provisions and References.
References in this Agreement to “Articles”, “Sections”, “Annexes”, “Exhibits” or “Schedules” shall be to Articles, Sections, Annexes, Exhibits or Schedules of or to this Agreement unless otherwise specifically provided. Any term defined herein may be used in the singular or plural. “Include”, “includes” and “including” shall be deemed to be followed by “without limitation”. Except as otherwise specified or limited herein, references to any Person include the successors and assigns of such Person. References “from” or “through” any date mean, unless otherwise specified, “from and including” or “through and including”, respectively. Unless otherwise specified herein, the settlement of all payments and fundings hereunder between or among the parties hereto shall be made in lawful money of the United States and in immediately available funds. Time is of the essence for each performance obligation of the Issuer under this Agreement. All amounts used for purposes of financial calculations required to be made herein shall be without duplication. References to any statute or act shall include all related current regulations and all amendments and any successor statutes, acts and regulations. References to any statute or act, without additional reference, shall be deemed to refer to federal statutes and acts of the United States. References to any agreement, instrument or document shall include all schedules, exhibits, annexes and other attachments thereto. Unless otherwise expressly provided herein, references to agreements and other contractual instruments, including this Agreement, shall be deemed to include all subsequent amendments thereto, restatements and substitutions thereof and other modifications and supplements thereto which are in effect from time to time, but only to the extent such amendments and other modifications are not prohibited by the terms hereof. References to any statute or regulation may be made by using either the common or public name thereof or a specific cite reference and, except as otherwise provided with respect to FATCA, are to be construed as including all statutory and regulatory provisions related thereto or consolidating, amending, replacing, supplementing or interpreting the statute or regulation.
ARTICLE 2
PURCHASE AND SALE
Section 2.1 Closing.
(a) On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase the number of shares of Common Stock (the “Shares”) set forth under the heading “Subscription Amount” on the Purchaser’s signature page hereto (the “Subscription Amount”), at the Per Share Purchase Price.
(b) The Purchaser shall deliver to the Company, via wire transfer, immediately available funds equal to the Purchaser’s Subscription Amount as set forth on the signature page hereto executed by the Purchaser shall be made available for Delivery Versus Payment (“DVP”) settlement with the Company or its designees. The Company shall deliver to the Purchaser its Shares, and the Company and the Purchaser shall deliver the other items set forth in Section 2.2 at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 5.1, the Closing shall occur remotely via the exchange of documents and signatures or such other location as the parties shall mutually agree. The settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchaser’s name and address and released by the Transfer Agent directly to the account identified by the Purchaser. Upon receipt of such Shares, the payment therefor shall promptly be made by wire transfer to the Company.
(c) Notwithstanding anything to the contrary herein, the Company shall not issue any Shares pursuant to this Agreement and the Purchaser shall not have the obligation to purchase any Shares pursuant to this Agreement to the extent (but only to the extent) that after giving effect to such purchase and sale, the aggregate number of shares of Common Stock issued to the Purchaser pursuant to this Agreement would exceed the Maximum Percentage or otherwise exceed the aggregate number of shares of Common Stock which the Company may issue without breaching the Company’s obligations under the rules and regulations of Nasdaq.
| 2 |
Section 2.2 Deliverables.
(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to the Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a legal opinion of Company Counsel;
(iii) the Company’s wire instructions, on Company letterhead and executed by the Company’s Co-Chief Executive Officer or Chief Financial Officer;
(iv) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) the Purchaser’s Shares, registered in the name of the Purchaser; and
(v) a Secretary’s Certificate, certifying that (i) knowledge of such individual, the representations and warrants of the Company in this Agreement are true and correct in all material respects, as if made on and as of the date hereof and the Closing Date; (ii) each of the Third Amended and restated Certificate of the Company, as amended from time to time, and the Certificate of Incorporation, Certificate of Formation or Articles of Incorporation as applicable, for each Domestic Subsidiary, and all amendments thereto, as attached to such certificate is true and complete, has not been modified and is in full force and effect as of the date hereof; (iii) the bylaws of the Company and bylaws or operating agreements, as applicable of each Domestic Subsidiary, and all amendments thereto, are in full force and effect as of the date hereof;
(iv) that the resolutions of the Company’s board of directors relating to the Offering attached to such certificate are in full force and effect and have not been modified; and
(v) the good standings of the Company and each Domestic Subsidiary, issued by the Secretary of the State of Delaware and California, as applicable, are true and correct.
(b) On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this Agreement duly executed by such Purchaser; and
(ii) the Purchaser’s Subscription Amount, which shall be made available for DVP settlement with the Company or its designees.
| 3 |
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce the Purchaser to enter into this Agreement and to purchase the Shares and other transactions contemplated thereby, the Issuer hereby represents and warrants to the Purchaser that the following are true, correct and complete as of the Signing Date, and after giving effect to the consummation of the transactions contemplated by this Agreement will be, true, correct and complete as of the Closing Date:
Section 3.1 Existence and Power.
The Issuer and each of its Domestic Subsidiaries (a) is an entity duly organized, validly existing and in good standing (to the extent applicable in the relevant jurisdiction) under the laws of its jurisdiction of incorporation, organization, or formation, which, with respect to the Issuer and each such Domestic Subsidiary, in existence as of the Closing Date, is specified on Schedule 3.1, has the same legal name as it appears in such Person’s Organizational Documents and an organizational identification number (if any), in each case as of the Closing Date as specified on Schedule 3.1, and (b) has all powers and all governmental licenses, authorizations, registrations, permits, consents and approvals required under all applicable Laws and required in order to carry on its business as now conducted (collectively, “Permits”), except where the failure to have such Permits could not reasonably be expected to have a Material Adverse Effect. The Issuer and each of its Domestic Subsidiaries is qualified to do business as a foreign entity in each jurisdiction in which it is required to be so qualified, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 3.1 or in the SEC Reports, neither the Issuer nor any of its Domestic Subsidiaries has had, over the five (5) year period preceding the Closing Date, any name other than its current name or was incorporated or organized under the laws of any jurisdiction other than its current jurisdiction of incorporation or organization. As of the Closing Date, except for the Subsidiaries set forth on Schedule 3.1 or in the SEC Reports, no Subsidiary exists.
Section 3.2 Organizational Authority and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Issuer of this Agreement (a) are within its corporate powers, (b) have been duly authorized by all necessary action pursuant to its Organizational Documents, (c) require no further approval, consent, exemption, authorization or other action by or in respect of, or filing with, or notice to, any Governmental Authority with respect to any shares of Common Stock except for (i) the approvals, consents, exemptions, authorizations, actions, notices and filings that have been duly obtained, taken, given or made and are in full force and effect and (ii) those approvals, consents exemptions, authorization, actions, notices and filings, the failure of which to obtain or make has not resulted in, or could not reasonably be expected, individually or in the aggregate to result in a Material Adverse Effect and (d) do not violate, conflict with or cause a breach or a default under or a right of termination under (i) any of the Organizational Documents of the Issuer and each of its Domestic Subsidiaries; or (ii) any applicable Law or any contract, agreement, lease or other instrument binding upon it or its properties, except for such violations, conflicts, breaches or defaults or rights of termination as could not, with respect to this clause (d)(ii), reasonably be expected to have a Material Adverse Effect.
| 4 |
Section 3.3 Binding Effect.
This Agreement constitutes a valid and binding agreement or instrument of the Issuer, enforceable against the Issuer in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.
Section 3.4 Capitalization.
The authorized and issued and outstanding Capital Stock of each of the Issuer and each Domestic Subsidiary as of the Signing Date is as set forth on Schedule 3.4. Except as set forth on Schedule 3.4, all issued and outstanding Capital Stock of each such Person is duly authorized and validly issued, fully paid, non-assessable (to the extent that such concepts apply to such Capital Stock), free and clear of all liens and such Capital Stock was issued in compliance with all applicable laws. The identity of the holders of the Capital Stock of each Domestic Subsidiary and the percentage of the fully diluted ownership of the Capital Stock of each such Person as of the Signing Date is set forth on Schedule 3.4. Except as set forth on Schedule 3.4 or in the SEC Reports, as of the Signing Date there are no preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition of the Issuer or any Domestic Subsidiary of any Capital Stock of any such Person.
Section 3.5 Financial Information.
(a) Annual Financial Statements. The historical annual financial statements of the Issuer and its Subsidiaries as of December 31, 2024, copies of which have been delivered to the Purchaser (provided, that filing of such historical annual financials with the Commission shall constitute delivery to the Purchaser), (i) were prepared substantially in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present, in all material respects, the financial condition of such Persons as of such date and their results of operations for the periods covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of such Persons as of such date, including liabilities for taxes, material commitments and Debt.
(b) Unaudited Interim Financial Statements. The historical interim financial statement of the Issuer and its Subsidiaries as of March 31, 2025, June 30, 2025, and September 30, 2025, copies of which have been delivered to the Purchaser (provided, that filing of such historical interim financials with the Commission shall constitute delivery to the Purchaser), (i) were prepared substantially in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein, and (ii) fairly present, in all material respects, the financial condition of such Persons as of such date and their results of operations for the periods covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments and adjustments for purchase accounting.
| 5 |
Any such historical financials that the Issuer filed with the Commission via EDGAR shall be deemed to have been delivered to the Purchaser.
Section 3.6 Litigation.
Except as set forth on Schedule 3.6 or in the SEC Reports, there is no Litigation involving monetary damages in excess of $2,500,000 in the aggregate pending against, or, to the knowledge of the Issuer or any of its Domestic Subsidiaries, threatened in writing against the Issuer, any of its Domestic Subsidiaries or any of their respective properties.
Section 3.7 Ownership of Property.
Except as set forth on Schedule 3.7 or in the SEC Reports, the Issuer and each of its Domestic Subsidiaries is the lawful owner of, has good and marketable title to and is in lawful possession of, or has valid leasehold interests in, license to or right to use, all properties and other assets (except for real property interests, which is covered in Schedule 3.15) reported by the Issuer or such Domestic Subsidiary to be owned or leased (as the case may be) by such Person, except (i) for any such properties which are immaterial to the operations of the Issuer’s or such Domestic Subsidiary’s respective business or (ii) as may have been disposed of in the Ordinary Course of Business or otherwise in compliance with the terms hereof.
Section 3.8 Labor Matters.
There are no strikes or other labor disputes pending or threatened against the Issuer or any of its Domestic Subsidiaries, which could reasonably be expected to have a Material Adverse Effect. Since January 1, 2021, hours worked and payments made to the employees of the Issuer and each of its Domestic Subsidiaries have not been in violation, in any material respect, of the Fair Labor Standards Act or any other applicable Law dealing with such matters. All payments due from the Issuer and its Domestic Subsidiaries, or for which any claim may be made against any of them, on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or accrued as a liability on their books, as the case may be, except as could not reasonably be expected to have a Material Adverse Effect. As of each Closing Date, all pending strikes and material labor disputes related to any collective bargaining agreements to which the Issuer or any of its Domestic Subsidiaries is a party are set forth on Schedule 3.8 or in the SEC Reports. All material payments due from the Issuer or any of its Domestic Subsidiaries on account of (a) workers’ compensation, employee health plans, social security and welfare insurance and employee income tax source deductions and vacation pay; and (b) the equivalent plans of those specified in subsection (a) in each foreign (non-U.S.) jurisdiction where the Issuer or any such Domestic Subsidiary carries on business, in each case, have been paid in full to date or accrued as a liability on the books of the Issuer and each such Domestic Subsidiary . Neither the Issuer nor any of its Domestic Subsidiaries has any obligation under any collective bargaining agreement which would be reasonably expected to result in a Material Adverse Effect. There is no material organizing activity involving the Issuer or any of its Domestic Subsidiaries by any labor union or group of employees which would be expected to result in a Material Adverse Effect.
| 6 |
Section 3.9 Investment Company.
Neither the Issuer nor any of its Domestic Subsidiaries is an “investment company” or a company “controlled” by an “investment company” or a “subsidiary” of an “investment company,” all within the meaning of the Investment Company Act of 1940. The Issuer and its Domestic Subsidiaries are not subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other federal or state statute, rule or regulation limiting its ability to incur Debt, or which may render its obligations under this Agreement unenforceable.
Section 3.10 Compliance With Laws; Anti-Terrorism Laws.
(a) Laws Generally. The Issuer and each Domestic Subsidiary is in compliance with the requirements of all applicable Laws, except to the extent such noncompliance could not reasonably be expected to have a Material Adverse Effect.
(b) Anti-Terrorism Laws. Neither the Issuer nor any of its Domestic Subsidiaries, or, to the knowledge of the Issuer and its Domestic Subsidiaries, none of their Affiliates (i) is in violation of any Anti-Terrorism Law, or (ii) is a Blocked Person, or is controlled by a Blocked Person. Neither the Issuer nor any of its Domestic Subsidiaries, or, to the knowledge of the Issuer and its Domestic Subsidiaries, none of their Affiliates, (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (B) deals in any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law. No part of the proceeds from the issuance of the Shares will be used directly or, to the knowledge of the Issuer and its Domestic Subsidiaries, indirectly for any payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA or any other applicable Law dealing with such matters.
Section 3.11 Taxes.
Except as set forth on Schedule 3.11 or in the SEC Reports, all federal, state and foreign tax returns, reports and statements required to be filed by or on behalf of the Issuer or any Domestic Subsidiary have been timely filed with the appropriate Governmental Authorities in each jurisdiction in which such returns, reports and statements are required to be filed and, except to the extent subject to a Permitted Contest, all taxes (including sales, employment and real property taxes) and other charges shown to be due and payable in respect thereof or otherwise due from the Issuer or any Domestic Subsidiary in any material amount have been timely paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof.
| 7 |
Section 3.12 Compliance with ERISA; Foreign Benefit Plans.
(a) ERISA Plans. Schedule 3.12 lists all Pension Plans and Multiemployer Plans of the Issuer and its Domestic Subsidiaries. Except as could not reasonably be expected to have a Material Adverse Effect, each ERISA Plan (and the related trusts and funding agreements) complies in form and in operation with, has been administered in material compliance with, and the terms of each ERISA Plan satisfies, the applicable requirements of ERISA and the Code in all material respects. Each ERISA Plan which is intended to be qualified under Section 401(a) of the Code is so qualified, and the United States Internal Revenue Service has issued a favorable determination letter with respect to each such ERISA Plan which may be relied on currently. Neither the Issuer nor any of its Domestic Subsidiaries has incurred liability for any material excise tax under any of Sections 4971 through 5000 of the Code.
(b) Pension Plans and Multiemployer Plans. During the thirty-six (36) month period prior to the issuance of the Shares, (i) no steps have been taken to terminate any Pension Plan and (ii) no failure to make contributions with respect to any Pension Plan sufficient to give rise to a Lien under the Code has occurred. All amounts required by Code Sections 412 and 430 to be funded by the Issuer or any Domestic Subsidiary or any member of a Controlled Group with respect to a Pension Plan have been made in compliance therewith. No condition exists or event or transaction has occurred with respect to any Pension Plan which could result in the incurrence by the Issuer and Domestic Subsidiaries, taken as a whole, of any liabilities, fines and penalties exceeding $500,000 (excluding, for the avoidance of doubt, current PBGC premiums or other contributions required by ERISA or other applicable Law in the ordinary course). The Issuer and Domestic Subsidiaries, taken as a whole, have not incurred liabilities exceeding $500,000 to the PBGC (other than for current premiums) with respect to any Pension Plan. All contributions (if any) have been made on a timely basis to any Multiemployer Plan that are required to be made by the Issuer, any of its Domestic Subsidiaries or any member of the Controlled Group under the terms of such plan, any collective bargaining agreement, or by applicable Law. Neither the Issuer, any of its Domestic Subsidiaries nor any member of the Controlled Group (A) has withdrawn or partially withdrawn from any Multiemployer Plan, (B) has incurred any withdrawal liability with respect to any such plan, or (C) has received notice of any claim or demand for withdrawal liability or partial withdrawal liability from any such plan (in each case with respect to which there is any unsatisfied withdrawal liability). No member of the Controlled Group has received any written notice that a Multiemployer Plan is in reorganization or termination, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 or Section 431 of the Code, that any such plan is or may be terminated, or that any such plan is or is expected to become insolvent.
(c) With respect to each program, plan or arrangement mandated by a government other than the United States providing for post-employment benefits (each a “Foreign Government Benefit Plan”) and with respect to each employee benefit plan maintained or contributed to by the Issuer or any Domestic Subsidiary that is not subject to Laws of the United States providing for post-employment benefits (each, a “Foreign Plan”), to the Issuer’s and its Domestic Subsidiaries’ knowledge: (i) all employee and employee contributions required by Law or by the terms of any Foreign Government Benefit Plan or any Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices, (ii) the liability of the Issuer or any Domestic Subsidiary with respect to a Foreign Plan is reflected in accordance with normal accounting practices or the financial statements of the Issuer or such Domestic Subsidiary, as the case may be and (iii) each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities unless in each case under the foregoing clauses (i), (ii) and (iii), the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
| 8 |
Section 3.13 Environmental Compliance.
(a) Hazardous Materials. No Hazardous Materials (i) are currently located on any properties owned, leased or operated by the Issuer or any Domestic Subsidiary in violation of any Environmental Law, except for violations which could not reasonably be expected to have a Material Adverse Effect, or (ii) have been released into the environment, or deposited, discharged, placed or disposed of at, on, under or near any of such properties in a manner that would require the taking of any action by the Issuer or any Domestic Subsidiary under any Environmental Law and have resulted in, or could reasonably be expected to result in, a Material Adverse Effect. No portion of any such property is being used, or to the Issuer’s or its Domestic Subsidiaries’ knowledge, has been used at any previous time, for the disposal, storage, treatment, processing or other handling of Hazardous Materials in material violation of any Environmental Law nor to the Issuer’s or its Domestic Subsidiaries’ knowledge is any such property affected by any Hazardous Materials Contamination, which in each case, would reasonably be expected to result in a Material Adverse Effect. All written notifications of a release of Hazardous Materials required to be filed by or on behalf of the Issuer or any Domestic Subsidiary under any applicable Environmental Law have been filed or are in the process of being timely filed by or on behalf of the Issuer or Domestic Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) Notices Regarding Environmental Compliance. No written notice, notification, demand, request for information, citation, summons, complaint or order has been issued, no complaint has been filed, no penalty has been assessed and no investigation or review is pending, or to the Issuer’s or and its Domestic Subsidiaries’ knowledge, threatened by any Governmental Authority or other Person with respect to any (i) alleged violation by the Issuer or any Domestic Subsidiary of any Environmental Law, (ii) alleged failure by the Issuer or any such Domestic Subsidiary to have any Permits required in connection with the conduct of its business or to comply with the terms and conditions thereof, (iii) any generation, treatment, storage, recycling, transportation or disposal of any Hazardous Materials or (iv) release of Hazardous Materials, except in each case of the foregoing to the extent as would not reasonably be expected to have a Material Adverse Effect.
(c) Properties Requiring Remediation. No property now owned or leased by the Issuer or any Domestic Subsidiary and, to the Issuer’s or its Domestic Subsidiaries’ knowledge, no such property previously owned or leased by the Issuer or any such Domestic Subsidiary, to which the Issuer or any such Domestic Subsidiary has, directly or indirectly, transported or arranged for the transportation of any Hazardous Materials, is listed or, to the Issuer’s or any of its Domestic Subsidiaries’ knowledge, proposed for listing, on the National Priorities List promulgated pursuant to SEMS or any state list or is the subject of federal, state or local enforcement actions or other investigations which may lead to claims against the Issuer or any such Domestic Subsidiary for clean-up costs, remedial work, damage to natural resources or personal injury claims, including, but not limited to, claims under CERCLA or RCRA, except, in each case of the foregoing, to the extent as would not reasonably be expected to have a Material Adverse Effect.
| 9 |
(d) Underground Storage Tanks. Neither the Issuer nor any of its Domestic Subsidiaries operates any underground storage tanks on any property owned or leased by the Issuer or any Domestic Subsidiary that are not registered or permitted in accordance with applicable Environmental Laws or that the Issuer or any of its Domestic Subsidiaries is required to monitor, maintain, retrofit, upgrade, investigate, abate, remediate or remove under Environmental Law, except to the extent as could not reasonably be expected to have a Material Adverse Effect.
(e) Environmental Liens. No Liens exist under or pursuant to any applicable Environmental Laws on any real property or other assets owned by the Issuer or any Domestic Subsidiary, and to the Issuer’s or any of its Domestic Subsidiaries’ knowledge no actions by any Governmental Authority have been taken or are in process which could subject any of such properties or assets to such Liens, except to the extent as could not reasonably be expected to have a Material Adverse Effect.
Section 3.14 Intellectual Property.
The Issuer and each Domestic Subsidiary owns, is licensed to use or otherwise has the right to use, all Intellectual Property Rights that are material to the business or operations of the Issuer or such Domestic Subsidiary as currently conducted.
Section 3.15 Real Property Interests.
Except as set forth on Schedule 3.15 or in the SEC Reports, neither the Issuer nor any Domestic Subsidiary has any ownership, leasehold or other possessory interest in real property. Schedule 3.15 sets forth, with respect to each parcel of real estate owned or leased by the Issuer or any Domestic Subsidiary, the street address of each such parcel.
Section 3.16 Insurance. Except as set forth on Schedule 3.16 or in the SEC Reports, the Issuer does not maintain any other insurance policies.
Section 3.17 Debt.
Set forth on Schedule 3.17 or in the SEC Reports is a true and complete list of all Debt of the Issuer and such Schedule accurately sets forth the aggregate principal amount of such Debt as of the Signing Date.
Section 3.18 Material Non-Public Information. All material non-public information regarding the Issuer or any Domestic Subsidiary that has been disclosed to the Purchaser on or prior to the date hereof, has been disclosed, or will be disclosed, in the 8-K filing to be made by the Issuer prior to the commencement of trading on the first Trading Day following the date hereof.
| 10 |
Section 3.19 Private Offering. Assuming the accuracy of the Purchaser’s representations and warranties contained in Article 8, no registration of the Shares pursuant to the provisions of the Securities Act or state securities or “blue sky” laws will be required for the offer, sale or issuance of the Shares by the Issuer to the Purchaser pursuant to this Agreement.
Section 3.20 Sanctions; Anti-Corruption.
(a) Neither the Issuer nor any of its Domestic Subsidiaries, nor, to the knowledge of the Issuer or any Domestic Subsidiary, any employee, agent, or affiliate of the Issuer or any of its Domestic Subsidiaries is an individual or entity that is, or is owned or controlled by persons that are: (i) the subject of any sanctions administered or enforced by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, the Government of Canada, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (including Crimea, Cuba, Iran, North Korea and Syria).
(b) The Issuer, its Domestic Subsidiaries and their respective directors and officers and, to the knowledge of the Issuer and any Domestic Subsidiary, any employees and the agents of the Issuer and its Domestic Subsidiaries, are in compliance with all applicable Sanctions and with the FCPA and any other applicable anti-corruption law. The Issuer and their Domestic Subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance with applicable Sanctions, the FCPA, and any other applicable anti-corruption laws.
Section 3.21 Issuance of the Securities. The Shares have been duly authorized and when issued in accordance with this Agreement, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Issuer other than restrictions on transfer provided for in this Agreement.
Section 3.22 Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Issuer has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Issuer received any notification that the Commission is contemplating terminating such registration. Except as set forth on Schedule 3.22 or in the SEC Reports, the Issuer is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through The Depository Trust Company or another established clearing corporation and the Issuer is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
Section 3.23 No Integrated Offering. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Article 8, neither the Issuer, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Issuer for purposes of (i) the Securities Act which would require the registration of any such securities under the Securities Act, or (ii) any applicable stockholder approval provisions of Nasdaq on which any of the securities of the Issuer are listed or designated.
| 11 |
Section 3.24 Acknowledgment Regarding Purchaser’s Purchase of Securities. The Issuer acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Issuer further acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of the Issuer (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any advice given by the Purchaser or any of its respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is merely incidental to the Purchaser’s purchase of the Shares. The Issuer further represents to the Purchaser that the Issuer’s decision to enter into this Agreement has been based solely on the independent evaluation of the transactions contemplated hereby by the Issuer and its representatives.
Section 3.25 Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding, it is understood and acknowledged by the Issuer that: (i) the Purchaser has not been asked by the Issuer to agree, nor has the Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Issuer, or “derivative” securities based on securities issued by the Issuer or to hold the Shares for any specified term, (ii) past or future open market or other transactions by the Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Issuer’s publicly-traded securities, (iii) the Purchaser, and counter-parties in “derivative” transactions to which the Purchaser is a party, directly or indirectly, may presently have a “short” position in the Common Stock and (iv) the Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction by virtue of this Agreement.
Section 3.26 Regulation M Compliance. The Issuer has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Issuer.
Section 3.27 Compliance with PRC Oversea Investment and Listing Rules and Regulations. Except as otherwise disclosed in Schedule 3.27, the Company and Subsidiaries have taken reasonable steps to cause the Company’s shareholders, directors and officers that is, or directly or indirectly controlled by, a PRC resident or citizen, to comply with any applicable rules and regulations of relevant PRC government agencies (including but not limited to the Ministry of Commerce, the National Development and Reform Commission, the China Securities Regulatory Commission (“CSRC”), and the State Administration of Foreign Exchange (“SAFE”) relating to such persons’ shareholding with the Company (collectively, the “PRC Oversea Investment and Listing Rules and Regulations”), including, without limitation, taking reasonable steps to require each such person that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen to complete any registration, to timely report material changes, and other procedures required under any applicable PRC Oversea Investment and Listing Rules and Regulations.
| 12 |
ARTICLE 4
AFFIRMATIVE COVENANTS
Until all the Shares have been sold by the Purchaser, the Issuer agrees:
Section 4.1 Transfer Restrictions.
(a) The Shares issuable hereunder may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of the Shares issuable hereunder other than pursuant to an effective registration statement or Rule 144 (defined below), to the Company or to an Affiliate of the Purchaser without payment of consideration therefor or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act.
(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Shares issuable hereunder in substantially the following form:
THE SHARES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY THE SHARES.
The Company acknowledges and agrees that the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares to a financial institution or, in connection with a bona fide pledge, other Person that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, the Purchaser may transfer pledged or secured Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares may reasonably request in connection with a pledge or transfer of the Shares, including, if the Shares are subject to registration pursuant to Section 4.19 of this Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling stockholders thereunder.
| 13 |
(c) Subject to the remainder of this paragraph, legends (including the legend set forth in Section 4.1(b) hereof) on certificates evidencing the Shares may be removed: (i) following any sale of the Shares pursuant to a registration statement (including the Registration Statement (defined below)) covering the resale of the Shares that is effective and usable under the Securities Act, (ii) following any sale of the Shares pursuant to Rule 144, (iii) if requested by any holder who is not an affiliate of the Company under Rule 144, if the Shares have been held for over a year (after giving effect to any “tacking” of the Purchaser’s holding period of the Shares that may be permissible under Rule 144, such as may be available in the case of cashless exercises) and are eligible for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). Upon the occurrence of any of the events set forth in clauses (i), (ii) or (iii) in the preceding sentence, the Company shall cause its counsel to issue a legal opinion and an instruction letter to the Transfer Agent or the Purchaser reasonably promptly after request by the Purchaser, if required by the Transfer Agent, to effect the removal of the legend hereunder, conditioned upon the prior completion and submission by the Purchaser or its broker, as applicable, of customary certificates or representation letters. The Company agrees that following such time as such legend is no longer required under this Section 4.1(d), the Company will, no later than the later of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by the Purchaser to the Company or the Transfer Agent of a certificate representing the Shares, as the case may be, issued with a restrictive legend together with any customary certificate or representation letter from the Purchaser or the Purchaser’s broker, as applicable (such date when all such conditions are satisfied, the “Legend Removal Date”), deliver or cause to be delivered to the Transfer Agent an instruction letter with respect to the removal of legends, if required by the Transfer Agent. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.1. Certificates for Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on Nasdaq with respect to the Common Stock as in effect on the date of delivery of a certificate representing Shares issued with a restrictive legend.
(d) The Purchaser agrees with the Company that the Purchaser will sell any Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if the Shares are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Shares as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
| 14 |
Section 4.2 Compliance with Laws.
The Issuer will comply, and cause each Subsidiary to comply, with the requirements of all applicable Laws, except to the extent that failure to so comply could not reasonably be expected to have a Material Adverse Effect.
Section 4.3 Use of Proceeds.
(a) The Issuer will use the proceeds from the issuance of Shares solely (a) to pay transaction fees and expenses incurred in connection with the consummation of the transactions contemplated by this Agreement and (b) for general working capital purposes and other corporate purposes.
(b) Without limiting the generality of Section 4.3(a) above, the Issuer does not intend to use nor shall it use any portion of the proceeds of the issuance of Shares, directly or, to the Issuer’s knowledge, indirectly, for any purpose in violation of the Trading with the Enemy Act or to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System) or for any related purpose governed by Regulations T, U or X of the Board of Governors of the Federal Reserve System.
Section 4.4 Sanctions; Anti-Corruption Laws.
The Issuer will maintain in effect policies and procedures designed to promote compliance by the Issuer and its Subsidiaries, and their respective directors, officers, employees, and agents with applicable Sanctions and with the FCPA and any other applicable anti-corruption laws.
Section 4.5 Price Protection, Issuance Restriction.
(a) Dilutive Issuance. If and whenever on or after the Closing Date, but prior to the Expiration Date, the Company grants, issues or sells (or enters into any agreement to grant, issue or sell) to any third party other than the Purchaser or an Affiliate thereof, any shares of Common Stock or Common Stock Equivalents (including the granting, issuance or sale of shares of Common Stock or Common Stock Equivalents owned or held by or for the account of the Company), but excluding any Excluded Securities, for consideration per share (the “New Issuance Price”) less than the Effective Per Share Price (as defined below) in effect immediately prior to such granting, issuance or sale or deemed granting, issuance or sale (the foregoing a “Dilutive Issuance”), then, within two (2) Business Days after the consummation of such Dilutive Issuance, the Issuer shall issue True-Up Shares (as defined below) to the Purchaser in accordance with Section 4.5(b). Notwithstanding anything to the contrary herein, in no event shall the Company issue to the Purchaser any True-Up Shares which, when issued, would otherwise cause the Aggregate Share Issuance to exceed the Maximum Percentage. As used herein, “Effective Per Share Price” means, initially, the Per Share Purchase Price, and thereafter, the New Issuance Price for the most recent Dilutive Issuance prior to the Expiration Date, if any, for which True-Up Shares have been issued to the Purchaser in accordance with this Section 4.5.
| 15 |
(b) True-Up Issuance and Issuance Restriction. Upon the consummation of a Dilutive Issuance, the Company shall issue to the Purchaser, for no additional consideration, a number of shares of Common Stock (the “True-Up Shares”), equal to (A) the quotient of (i) the Subscription Amount divided by (ii) the New Issuance Price, minus (B) the sum of (i) the number of Shares issued to the Purchaser at Closing plus (ii) the number of True-Up Shares, if any, previously issued to the Purchaser pursuant to this Section 4.5.
Section 4.6 Registration Statement.
(a) The Issuer shall use commercially reasonable efforts to, on or before April 20, 2026, file a registration statement (the “Registration Statement” and the date of such filing, the “Filing Date”) on the appropriate form providing for the resale by the Purchaser of the Shares. The Issuer shall use commercially reasonable efforts to cause such Registration Statement to become effective within forty-five (45) days following the Filing Date of the Registration Statement, and to keep such Registration Statement effective at all times until no Purchaser owns any Shares issued hereof.
(b) If after the date hereof but prior to the date the Registration Statement is declared effective, the Issuer enters into an agreement (each, an “MFN Agreement”), pursuant to which the signatory party thereto has the right to receive cash and/or securities of the Issuer in the event that a registration statement registering for resale by such signatory the securities of the Issuer issued to such signatory pursuant to such MFN Agreement is not timely filed, the Issuer and the Purchaser shall amend this Agreement such that the Purchaser shall have the right to receive cash and/or shares of Common Stock in the manner set forth in such MFN Agreement, in the event the Registration Statement is not filed on or prior to the Filing Date. Notwithstanding anything to the contrary herein, in no event shall the Issuer issue to the Purchaser any securities of the Issuer pursuant to this Section 4.6(b) which, when issued, would otherwise cause the Aggregate Share Issuance to exceed the Maximum Percentage.
Section 4.7 Furnishing of Information; Public Information.
(a) The Issuer covenants to use commercially reasonable efforts to maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Issuer after the date hereof pursuant to the Exchange Act even if the Issuer is not then subject to the reporting requirements of the Exchange Act.
| 16 |
Section 4.8 Securities Laws Disclosure; Publicity. The Issuer shall, on or prior to 5:30 p.m., Eastern Time, before the fourth (4th) Trading Day following the date hereof, file a Current Report on Form 8-K, including this Agreement as the exhibit thereto, with the Commission. In addition, effective upon the filing of such Current Report on Form 8-K, the Issuer acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Issuer, any of its Subsidiaries or any of their respective officers, directors, agents, employees, Affiliates or agents, on the one hand, and the Purchaser or any of its Affiliates on the other hand, shall terminate and be of no further force or effect. The Issuer understands and confirms that the Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Issuer. The Issuer and the Purchaser shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Issuer nor the Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Issuer, with respect to any press release of the Purchaser, or without the prior consent of the Purchaser, with respect to any press release of the Issuer, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law or requested by a governmental authority or self-regulatory organization, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Issuer shall not publicly disclose the name of the Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Nasdaq, without the prior written consent of the Purchaser, except (a) as required by federal securities law in connection with (i) any registration statement under the Securities Act and (ii) the filing of this Agreement with the Commission and (b) to the extent such disclosure is required by law or Nasdaq rules and regulations or requested by a governmental authority or self-regulatory organization, in which case the Issuer shall provide the Purchaser with prior notice of such disclosure permitted under this clause (b) and reasonably cooperate with the Purchaser regarding such disclosure.
Section 4.9 Shareholder Rights Plan. No claim will be made or enforced by the Issuer or, with the consent of the Issuer, any other Person, that the Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Issuer, or that the Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under this Agreement or under any other agreement between the Issuer and the Purchaser.
Section 4.10 [Reserved].
Section 4.11 Reservation and Listing of Securities.
(a) The Issuer shall, if applicable: (i) in the time and manner required by Nasdaq, prepare and file with Nasdaq an additional shares listing application covering the Shares, and (ii) use commercially reasonable efforts to take all steps necessary to cause the Shares to be approved for listing or quotation on Nasdaq as soon as possible thereafter. The Issuer agrees to use commercially reasonable efforts to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to The Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
| 17 |
Section 4.12 Certain Transactions and Confidentiality. The Purchaser covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales, of any of the Issuer’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the filing of the Current Report on Form 8-K as described in Section 4.8. The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Issuer pursuant to the filing of the Current Report on Form 8-K as described in Section 4.8, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules (other than as disclosed to its legal and other representatives). Notwithstanding the foregoing, and subject to anything contained in this Agreement to the contrary including Section 4.1 and Section 4.13, the Issuer expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Issuer after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the filing of the Current Report on Form 8-K as described in Section 4.8, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Issuer in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the filing of the Current Report on Form 8-K as described in Section 4.8 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Issuer to the Issuer, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agent, after the issuance of the filing of the Current Report on Form 8-K as described in Section 4.8.
Section 4.13 Blue Sky Filings. The Issuer shall take such action as the Issuer shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Shares for, sale to the Purchaser at the Closing under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of any Purchaser.
ARTICLE 5
CONDITIONS
Section 5.1 Conditions to Closing.
The obligation of the Purchaser under Section 2.1(a) to purchase the Shares hereunder shall be subject to the receipt by the Purchaser of each agreement, document and instrument set forth in Section 2.2 and to the satisfaction of the following conditions precedent, each in form and substance reasonably satisfactory to, and to the satisfaction of, the Purchaser:
(a) the representations and warranties contained in this Agreement are true and correct in all material respects (without duplication of any materiality qualifier) as of the Closing Date, both before and after giving effect to the transactions contemplated by this Agreement;
(b) receipt of a customary legal opinion of Pryor Cashman LLP, as special counsel to the Issuer; and
(c) receipt of all customary resolutions or written consents of the Issuer’s board of directors approving and authorizing the transactions contemplated hereby.
| 18 |
For purposes of determining whether the conditions specified in this Section 5.1 have been satisfied, by funding amounts for the purchase of the Shares hereunder at the Closing, the Purchaser shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Purchaser.
ARTICLE 6
EXPENSES AND INDEMNITY
Section 6.1 Fees and Expenses.
Except as expressly set forth in this Agreement to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. Notwithstanding the foregoing, the Company shall reimburse the Purchaser for up to $100,000 of bona fide, reasonable and documented, out-of-pocket costs and expenses incurred by it in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by this Agreement. The Company shall pay all Transfer Agent fees. The Company shall pay any issuance, stamp or documentary taxes (other than transfer taxes) or charges imposed by any governmental body, agency or official (other than income taxes) by reason of the issuance of the Shares to the Purchaser.
Section 6.2 Indemnity.
The Company will indemnify and hold the Purchaser and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable and documented attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur caused by or based upon (a) any material breach of any of the representations or warranties made by the Company in this Agreement or (b) any action instituted against a Purchaser Party in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to the transactions contemplated hereby (except to the extent such action is solely based upon a material breach of such Purchaser Party’s representations, warranties or covenants under this Agreement or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party that is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel to the applicable Purchaser Party, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable and documented fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 6.2 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred; provided, that if any Purchaser Party is finally judicially determined not to be entitled to indemnification or payment under this Section 6.2, such Purchaser Party shall promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
| 19 |
ARTICLE 7
MISCELLANEOUS
Section 7.1 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for a period of three (3) years from the Closing.
Section 7.2 No Waivers; Remedies Cumulative.
No failure or delay by the Purchaser in exercising any right, power or privilege under this Agreement 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 herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.
Section 7.3 Notices.
(a) All notices, requests and other communications to any party hereunder shall be in writing (including prepaid overnight courier, facsimile transmission, e-mail, electronic submissions or similar writing, but in no event by text message) and shall be given to such party at its address, facsimile number or e-mail address set forth on the signature pages hereof (or, in the case of a party who becomes the Purchaser after the date hereof, in an Assignment Agreement or in a notice delivered to the Issuer by the assignee Purchaser forthwith upon such assignment) or by electronic submissions, as provided below, or at such other address, facsimile number or e-mail address as such party may hereafter specify for the purpose by notice to the Issuer; provided, that notices, requests or other communications shall be permitted by e-mail or other electronic submissions (but in no event by text message) only in accordance with the provisions of Section 7.3(b). Each such notice, request or other communication shall be effective (i) if given by facsimile, when such notice is transmitted to the facsimile number specified by this Section and the sender receives a confirmation of transmission from the sending facsimile machine, (ii) if given by e-mail or other electronic submissions, as set forth in Section 7.3(c) or (iii) if given by mail, prepaid overnight courier or any other means, when received at the applicable address specified by this Section.
(b) Notices and other communications to the parties hereto may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, but in no event by text message); provided, that the foregoing shall not apply to notices sent directly to any party hereto if such party has notified the other parties in writing that it has elected not to receive notices by electronic communication (which election may be limited to particular notices).
(c) (i) Notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor, provided, that if any such notice or other communication is not sent or posted during normal business hours, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day.
Section 7.4 Severability.
In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 7.5 Amendments and Waivers.
No provision of this Agreement may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by the Issuer and the Purchaser. Any waiver of any provision of this Agreement shall be effective only in the specific instance and for the specific purpose for which it is given. No delay on the part of the Purchaser in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by the Purchaser of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
| 20 |
Section 7.6 Headings.
Headings and captions used in this Agreement (including the Exhibits, Schedules and Annexes hereto) are included for convenience of reference only and shall not be given any substantive effect.
Section 7.7 Waiver of Consequential and Other Damages.
To the fullest extent permitted by applicable Law, the Issuer shall not assert, and the Issuer hereby waives, any claim against any Purchaser Party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of this Agreement, or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Purchaser Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the transactions contemplated hereby or thereby.
Section 7.8 GOVERNING LAW; SUBMISSION TO JURISDICTION.
THIS AGREEMENT, AND ALL MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN NEW YORK CITY, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PARTY BY CERTIFIED OR REGISTERED MAIL, ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH IN OR IN ACCORDANCE WITH THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
Section 7.9 WAIVER OF JURY TRIAL.
THE ISSUER AND THE PURCHASER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE ISSUER AND THE PURCHASER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT IT HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT IT WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. THE ISSUER AND THE PURCHASER WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
| 21 |
Section 7.10 Counterparts; Signatures; Integration.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signatures by facsimile or other electronic communication shall bind the parties to the same extent as would a manually executed counterpart. This Agreement constitute the entire agreement and understanding among the parties hereto and supersede any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
Section 7.11 No Strict Construction.
The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
Section 7.12 USA PATRIOT Act Notification.
The Purchaser hereby notifies the Issuer that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record certain information and documentation that identifies the Issuer, which information includes the name and address of the Issuer and such other information that will allow the Purchaser, as applicable, to identify the Issuer in accordance with the USA PATRIOT Act.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants as follows:
Section 8.1 Authorization; No Contravention.
The execution, delivery and performance by the Purchaser of this Agreement: (a) is within its power and authority and has been duly authorized by all necessary action; (b) does not contravene the terms of its Organizational Documents or any amendment thereof; and (c) will not violate, conflict with or result in any breach or contravention of any of its contractual obligations, or any order or decree directly relating to it.
| 22 |
Section 8.2 Binding Effect.
This Agreement has been duly executed and delivered by the Purchaser and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
Section 8.3 No Legal Bar.
The execution, delivery and performance of this Agreement by the Purchaser will not violate any requirement of Law applicable to it.
Section 8.4 Securities Laws.
(a) The Shares are being or will be acquired by the Purchaser hereunder for the purpose of investment for its own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof in any transaction which would be in violation of the Securities Act or state securities laws or which would require the issuance and sale of the Securities hereunder to be registered under the Securities Act, subject, however, to the disposition of the Purchaser’s property being at all times within its control. The Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the Shares in violation of the Securities Act. The Purchaser does not have any agreement or understanding, whether or not legally binding, direct or indirect, with any other Person to sell or otherwise distribute the securities to be issued to it hereunder.
(b) The Purchaser is an “accredited investor” as (as defined in Rule 144A under the Securities Act of 1933 as amended (the “Securities Act”)), or (2) an institutional “accredited investor” (as described in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act) with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Shares, and understands that the offer and sale of the Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J); and (i) the Purchaser (1) is an institutional account as defined in FINRA Rule 4512(c), (2) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (3) has exercised independent judgment in evaluating its participation in the purchase of the Shares, and accordingly, understands that the issuance of the Shares meets (x) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b).
(c) The Purchaser understands that (i) the Shares constitute “restricted securities” under the Securities Act, (ii) it must bear the economic risk of its investment in the Shares for an indefinite period of time because the Shares are not registered under the Securities Act or any applicable state securities law and may not be resold unless subsequently registered under the Securities Act and such other laws or unless an exemption from registration is available (iii) the offer and sale of the Shares hereunder is not registered under the Securities Act or under any “blue sky” laws in reliance upon certain exemptions from such registration and that the Issuer is relying on the representations made herein by the Purchaser in its determination of whether such specific exemptions are available, and (iv) the Shares may not be transferred except pursuant to an effective registration statement under the Securities Act, or under an exception from such registration available under the Securities Act, and under applicable “blue sky” laws or in a transaction exempt from such registration. Furthermore, the Purchaser understands that the Issuer may not be eligible to conduct an offering pursuant to Regulation D.
| 23 |
(d) The Purchaser and its advisors (i) have been furnished with or have had access to all material books and records of the Issuer and all of its material contracts, agreements and documents and (ii) have had an opportunity to ask questions of, and receive answers, and to obtain any additional information to verify the accuracy of any information previously furnished, from management and representatives of the Issuer and which representatives have made available to them such information regarding the Issuer and their current respective businesses, operations, assets, finances, financial results, financial condition and prospects in order to make a fully informed decision to purchase and acquire the Shares. Without limiting the generality of the foregoing, the Purchaser has not relied on any statements or other information provided by anyone other than the Company concerning the Company, the Shares or the offer and sale of the Shares. The Purchaser acknowledges that it has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Purchaser’s acquisition of the Shares.
(e) The Purchaser has generally such knowledge and experience in business and financial matters, and with respect to investments in securities of privately held companies, as to enable it to understand and evaluate the risks of an investment in the Shares and form an investment decision with respect thereto. The foregoing, however, does not limit or modify the representations and warranties set forth in Article 3 of this Agreement or the right of the Purchaser to rely thereon.
(f) The Purchaser understands that the exemption from registration of resales of the Shares afforded by Rule 144 (the provisions of which are known to the Purchaser) promulgated pursuant to the Securities Act depends on the satisfaction of various conditions, including the requirement that the Issuer has been subject to the reporting requirements of Section 13 or Section 15 of the Securities Act for at least ninety (90) days and that, if applicable, Rule 144 affords the basis for such sales only in limited amounts and that the Issuer does not now qualify under Rule 144 and may not ever. The Purchaser understands that nothing in this Agreement shall require the Issuer or any of its Subsidiaries to make any filing under the Securities Act or Exchange Act which the Issuer or its Subsidiaries are not otherwise obligated to make.
Section 8.5 Governmental Authorization; Third Party Consent.
No approval, consent, compliance, exemption or authorization of any Governmental Authority or any other Person in respect of any requirement of Law, and no lapse of a waiting period under a requirement of Law, is necessary or required in connection with the execution, delivery or performance by it or enforcement against the Purchaser of this Agreement or the transactions contemplated hereby. No consent is required to be obtained under any contractual obligation applicable to the Purchaser in connection with the execution, delivery or performance of this Agreement.
| 24 |
Section 8.6 No Related Party Relationships.
Except as set forth in Schedule 8.6, the transactions contemplated by or related to this Agreement will not directly or indirectly increase any Related Person’s ownership or voting power of the Issuer, and no Related Person will, directly or indirectly, participate in any of the post-closing operations or decisions of or have any other rights or obligations with respect to such Purchaser or any of its direct or indirect equityholders or any of their respective affiliates.
Section 8.7 Organization.
The Purchaser is duly organized, validly existing and in good standing under the laws of its state of organization, and except as has not had or would not reasonably be expected to have a material adverse effect on the Purchaser’s ability to perform its obligations under the Agreement or to consummate the transactions contemplated hereby on a timely basis. The Purchaser is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified.
Section 8.8 Independent Investment Decision.
The Purchaser has independently evaluated the merits of its decision to purchase the Shares pursuant to this Agreement and conducted and relied upon its own due diligence investigation of the Company and its own in-depth analysis of the merits and risks of the purchase of the Shares. The Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Issuer to the Purchaser in connection with the purchase of the Shares constitutes legal, tax or investment advice. The Purchaser is a sophisticated institutional accredited investor with extensive expertise and experience in financial and business matters and in evaluating private companies and purchasing and selling their securities and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
Section 8.9 No Governmental Review.
The Purchaser understands that no U.S. federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.
Section 8.10 Residency.
The Purchaser’s office in which its investment decision with respect to the Shares was made is located at the address set forth for the Purchaser set forth on the Purchaser’s signature page to this Agreement.
| 25 |
Section 8.11 Ownership.
The Purchaser and its Affiliates are not the direct or indirect owner of record or beneficial owner of shares of Common Stock, securities convertible into or exchangeable for Common Stock, or any other equity or equity-linked security of the Issuer.
Section 8.12 No Brokers.
No Person has, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Issuer or the Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Purchaser.
Section 8.13 No Reliance.
The Purchaser is not relying upon, and has not relied upon, any statement, representation or warranty made by any Person, except for the representations and warranties by the Issuer contained in this Agreement.
Section 8.14 Financial Capacity.
The Purchaser has, and as of the Closing Date will have, sufficient cash on hand in a U.S. or foreign bank account or uncalled capital commitments from creditworthy parties without any condition to fund the Subscription Amount on the terms and conditions set forth in this Agreement. Such cash has been obtained by the Purchaser in compliance with all applicable Laws.
Section 8.15 Non-Recourse.
The Purchaser’s contractual obligations hereunder shall be without recourse to its Affiliates, and the officers, directors, employees, managers, trustees and other agents of the Purchaser or its Affiliates. The Issuer’s contractual obligations hereunder shall be without recourse to its Affiliates, and the officers, directors, employees, managers, trustees and other agents of the Issuer or its Affiliates.
Section 8.16 Transfer or Resale. The Purchaser understands that: (i) the Shares have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) the Purchaser shall have delivered to the Company (if requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Shares to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) the Purchaser provides the Company with reasonable assurance that such Shares can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) (collectively, “Rule 144”); (ii) any sale of the Shares made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Shares under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Shares under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. Notwithstanding the foregoing, the Shares may be pledged in connection with a bona fide margin account or other loan or financing arrangement secured by the Shares and such pledge of Shares shall not be deemed to be a transfer, sale or assignment of the Shares hereunder, and no Purchaser effecting a pledge of the Shares shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement, including, without limitation, this Section 8.16.
[Signature Pages Follow.]
| 26 |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| Address for Notices | ISSUER | ||
| FARADAY FUTURE INTELLIGENT ELECTRIC INC. | |||
| 18455 South Figueroa Street | By: | /s/ Matthias Aydt | |
| Gardena, California 90248 | Name: | Matthias Aydt | |
| Attention: Legal Department | Title: | Co-Global Chief Executive Officer | |
| Email: [email protected] | |||
| with a copy (which shall not constitute notice) to: | |||
Pryor Cashman LLP |
|||
| 7 Times Square, 40th Floor | |||
| New York, New York 10036 | |||
| Attention: M. Ali Panjwani | |||
Email: [email protected] |
|||
PURCHASER SIGNATURE PAGES TO FARADAY FUTURE INTELLIGENT ELECTRIC INC.
SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Name of Purchaser: | Gold King Arthur Holding Limited |
| Signature of Authorized Signatory of Purchaser: | Shawn Wang |
| Name of Authorized Signatory: | Wang Song |
| Title of Authorized Signatory: | Director |
| Email Address of Authorized Signatory: | [email protected] |
| Address for Notice to Purchaser: | H020 3/F PHASE 2 KWAI SHING IND BUILDING 42-46 TAI LIN PAI RD KWAI CHUNG HK |
| Address for Delivery of Securities to Purchaser (if not same as address for notice): | Same as Address for Notice |
| Subscription Amount: | $10,000,000 |
| EIN Number: |
Annex A
Definitions
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Aggregate Share Issuance” means, from time to time, the aggregate number of shares of Common Stock issued to the Purchaser pursuant to this Agreement, including any True-Up Shares issued pursuant to Section 4.5 and any other securities of the Issuer issuable pursuant to Section 4.6(b).
“Agreement” means this Securities Purchase Agreement, as the same may be amended, supplemented, restated or otherwise modified from time to time.
“Anti-Terrorism Laws” means any Laws relating to terrorism or money laundering, including Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, the Laws administered by OFAC, the Criminal Code (Canada), and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).
“Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the Signing Date pursuant to which, among other things, shares of Common Stock and options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.
“Blocked Person” means any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) with which any Purchaser is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224; or (e) that is named, or owned or controlled by, a “specially designated national” or “blocked person” on the most current list published by OFAC or other similar list.
“Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day on which the Federal Reserve Bank of New York is closed and/or any of the following exchanges on which the Common Stock is traded and listed, or any successor(s) thereto, is not open for at least five (5) hours of trading: the Nasdaq Capital Market; the Nasdaq Global Market; the Nasdaq Global Select Market; the New York Stock Exchange; or the NYSE American; and any successor to any of the foregoing markets or exchanges.
“Capitalized Lease Obligations” shall mean any obligation under a Capital Lease.
“Capital Lease” of any Person means any lease of any property by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person and shall include, without limitation, all operating leases that are not leases for real property.
“Capital Stock” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“CFC” means a controlled foreign corporation within the meaning of Section 957 of the Code. Section 2.1.
‘Closing” means the closing of the purchase and sale of the Shares pursuant to
“Closing Date” means the date on which the Closing occurs.
“Commission” means the United States Securities and Exchange Commission. “Common Stock” means the Class A Common Stock of the Issuer, par value $0.0001 per share.
“Common Stock Equivalents” means any securities of the Issuer or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company” has the meaning set forth in the Preamble of this Agreement. “Controlled Group” means any organization which is a member of a controlled, affiliated or otherwise related group of entities within the meaning of Code Sections 414(b), (c), (m), or (o)).
“Debt” shall mean, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or long-term (including the Obligations hereunder and all Capitalized Lease Obligations), all obligations evidenced by bonds, debentures, notes or other similar instruments;
(b) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);
(c) all non-contingent obligations under letters of credit (including standby and commercial), bankers’ acceptances and similar instruments (including bank guaranties);
(d) the attributable principal amount of Capital Leases, Synthetic Leases, Securitization Transaction and sale leaseback transactions;
(e) all Debt of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed;
(f) all Guarantees in respect of Debt of another Person; and
(g) Debt of any partnership or joint venture or other similar entity in which such Person is a general partner or joint venturer, and, as such, has personal liability for such obligations, but only to the extent there is recourse to such Person for payment thereof.
For purposes hereof, the amount of Debt shall be determined (w) based on the outstanding principal amount in the case of borrowed money indebtedness under clause (a) and purchase money indebtedness and the deferred purchase obligations under clause (b), (x) based on the maximum amount available to be drawn in the case of letter of credit obligations and the other obligations under clause (c), (y) based on the amount of Debt that is the subject of the Guarantees and for which there is recourse to such Person in the case of Guarantees under clause (f) and (z) based on the lesser of the amount of Debt secured by such lien or the fair market value of the assets pledged in the case of Debt under clause (e).
“Dilutive Issuance” has the meaning set forth in Section 4.5(a).
“Domestic Subsidiary” means any Subsidiary of the Issuer organized, incorporated or otherwise formed under the laws of the United States or any state thereof, other than any such Subsidiary that has no assets (other than de minimis amounts) other than the Capital Stock or other equity interests of Foreign Subsidiaries that are CFCs.
“DVP” has the meaning set forth in Section 2.1(b). “DWAC” has the meaning set forth in Section 2.2(a)(iv).
“Effective Per Share Price” has the meaning set forth in Section 4.5(a).
“Environmental Laws” means any and all Laws relating to the environment or the effect of the environment on human health or to emissions, discharges or releases of pollutants, contaminants, Hazardous Materials or wastes into the environment, including ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, Hazardous Materials or wastes or the clean up or other remediation thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974. “ERISA Plan” means any “employee benefit plan”, as such term is defined in Section 3(3) of ERISA (other than a Multiemployer Plan), which the Issuer or any Subsidiary maintains, sponsors or contributes to, or, in the case of an employee benefit plan which is subject to Section 412 of the Code or Title IV of ERISA, to which the Issuer or any Subsidiary or any member of the Controlled Group may have any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Securities” means (i) shares of Common Stock, Common Stock Equivalents, or options to purchase Common Stock issued to directors, officers, employees or consultants of the Company and/or its Subsidiaries for services rendered to the Company and/or its Subsidiaries in their capacity as such pursuant to an Approved Stock Plan (as defined above); (ii) shares of Common Stock issued upon the conversion or exercise of convertible securities or options (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the Signing Date; and (iii) the Existing Senior Securities, Existing Unsecured Securities and any other securities issued after the date of this Agreement pursuant to any Existing SPAs and the shares of Common Stock issuable upon conversion or exercise of each of the foregoing.
“Existing Senior Securities” means those certain (i) senior secured convertible notes, issued from time to time, and accompanying common warrants, pursuant to that certain Securities Purchase Agreement, dated as of August 15, 2022, by and among the Company and FF Simplicity Ventures LLC, as such may be amended, modified, waived and/or supplemented, as applicable, from time to time (the “August 2022 SPA”) and (ii) secured convertible notes, issued from time to time, and accompanying common warrants, pursuant to that certain Securities Purchase Agreement, dated as of September 5, 2024, by and among the Company and certain investors party thereto, as such may be amended, modified, waived and/or supplemented, as applicable, from time to time (the “September 2024 SPA”).
“Existing SPAs” means collectively, the August 2022 SPA, the September 2024 SPA, the December 2024 SPA, the March 2025 SPA, the May 2023 SPA and the July 2025 SPA.
“Existing Unsecured Securities” means those certain (i) unsecured convertible notes, issued from time to time, and accompanying common warrants, pursuant to that certain Securities Purchase Agreement, dated as of December 21, 2024, by and among the Company and certain investors party thereto, as such may be amended, modified, waived and/or supplemented, as applicable, from time to time (the “December 2024 SPA”); (ii) unsecured convertible notes, issued from time to time, and accompanying common warrants, pursuant to that certain Securities Purchase Agreement, dated as of March 21, 2025, by and among the Company and certain investors party thereto, as such may be amended, modified, waived and/or supplemented, as applicable, from time to time (the “March 2025 SPA”); (iii) unsecured convertible notes, issued, or to be issued from time to time, and accompanying common warrants, pursuant to that certain Securities Purchase Agreement, dated as of May 8, 2023, by and among the Company and certain investors party thereto, as such may be amended, modified, waived and/or supplemented, as applicable, from time to time (the “May 2023 SPA”); and (iv) unsecured convertible notes, issued from time to time, and accompanying common warrants, pursuant to that certain Securities Purchase Agreement, dated as of July 14, 2025, by and among the Company and certain investors party thereto, as such may be amended, modified, waived and/or supplemented, as applicable, from time to time (the “July 2025 SPA”);
“Expiration Date” means the earlier of (i) the six (6) month anniversary of the Closing Date; or (ii) the date on which the Registration Statement is declared effective by the Commission.
“FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any applicable agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Filing Date” has the meaning set forth in Section 4.6.
“Flow of Funds” means the flow of funds for the Closing pursuant to the terms hereof and thereof, in a form mutually agreed between the Issuer and the Purchaser.
“Foreign Government Benefit Plan” has the meaning set forth in Section 3.12(c).
“Foreign Plan” has the meaning set forth in Section 3.12(c).
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any agency, department or Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation or other Person owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing, whether domestic or foreign.
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take or pay, or to maintain financial statement conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the Ordinary Course of Business. The term “Guarantee” used as a verb has a corresponding meaning.
“Hazardous Materials” means (a) any “hazardous substance” as defined in CERCLA, (b) any “hazardous waste” as defined in RCRA, (c) asbestos, (d) polychlorinated biphenyls, (e) petroleum, its derivatives, by products and other hydrocarbons, (f) toxic mold and
(g) any other pollutant, toxic, radioactive, caustic or otherwise hazardous substance regulated under Environmental Laws.
“Hazardous Materials Contamination” means contamination (whether now existing or hereafter occurring) of the improvements, buildings, facilities, personalty, soil, groundwater, air or other elements on or of the relevant property by Hazardous Materials, or any derivatives thereof, or on or of any other property as a result of Hazardous Materials, or any derivatives thereof, generated on, emanating from or disposed of in connection with the relevant property.
“Issuer” has the meaning set forth in the Preamble to this Agreement.
“Laws” means any and all federal, state, provincial, territorial, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, codes, injunctions, permits, concessions, grants, franchises, governmental agreements and governmental restrictions, whether now or hereafter in effect.
“Legend Removal Date” has the meaning set forth in the Section 4.1(c). “Litigation” means any claim, investigation, action, suit or proceeding before any court, mediator, arbitrator or Governmental Authority.
“Margin Stock” has the meaning assigned thereto in Regulation U of the Federal Reserve Board.
“Material Adverse Effect” means, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences, whether or not related, a material adverse change in, or a material adverse effect upon, any of (a) the business, operations, properties or condition (financial or otherwise) of the Issuer, (b) the rights and remedies of the Purchaser under this Agreement, or the ability of the Issuer, taken as a whole, to perform any of its obligations under this Agreement, or (c) the legality, validity or enforceability of this Agreement.
“Maximum Percentage” means 19.99% of the total outstanding shares of Common Stock immediately prior to the date hereof (subject to adjustment for any stock splits, combinations or the like).
“MFN Agreement” has the meaning set forth in Section 4.6(b).
“Multiemployer Plan” means a multiemployer plan, that is intended to meet the definition set forth in Section 3(37) or 4001(a)(3) of ERISA, to which the Issuer or any member of the Controlled Group may have any liability.
“Nasdaq” means, collectively, the Nasdaq Capital Market; the Nasdaq Global Market; the Nasdaq Global Select Market.
“New Issuance Price” has the meaning set forth in Section 4.5(a).
“Obligations” means all loans, debts, principal, interest (including any interest that accrues after the commencement of any bankruptcy, insolvency or other enforcement proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such proceeding), premiums, obligations (including indemnification obligations), fees, costs, expenses and other charges (including any costs, fees, expenses or other charges that accrue after the commencement of any bankruptcy, insolvency or other enforcement proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such proceeding), guaranties, and all covenants and duties of any other kind and description owing by the Issuer arising out of, under, pursuant to, in connection with, or evidenced by this Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that the Issuer is required to pay or reimburse by law or otherwise in connection with this Agreement. Any reference in this Agreement to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any bankruptcy, insolvency or other enforcement proceeding.
“OFAC” means the U.S. Department of Treasury Office of Foreign Assets Control.
“Ordinary Course of Business” means, in respect of any action or omission taken or not taken by any Person, the ordinary course of such Person’s business, as conducted by such Person in good faith and may include past practice, industry standards or customs, requirements of law or as may otherwise be determined from time to time in good faith by the board of directors (or other governing body) of such Person.
“Organizational Documents” means, with respect to any Person other than a natural person, the documents by which such Person was organized (such as a certificate of incorporation, certificate of limited partnership or articles of formation or organization, and including, without limitation, any certificates of designation for preferred stock or other forms of preferred equity) and the documents which relate to the internal governance of such Person (such as by-laws, a partnership agreement or an operating, limited liability company or members agreement).
“PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any or all of its functions under ERISA.
“Pension Plan” means any ERISA Plan that is subject to Section 412 of the Code or Title IV of ERISA to which the Issuer or any member of the Controlled Group may have a liability.
“Per Share Purchase Price” means the closing price of the Company’s Common Stock on Nasdaq on the Trading Day immediately prior to the Closing Date.
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof.
“Permits” has the meaning set forth in Section 3.1.
“Permitted Contest” means a contest maintained in good faith by appropriate proceedings promptly instituted and diligently conducted and with respect to which such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; provided that compliance with the obligation that is the subject of such contest is effectively stayed during such challenge.
“Purchaser” has the meaning set forth in the Preamble of this Agreement. “Purchaser Party” has the meaning set forth in Section 6.2.
“RCRA” means the Resource Conservation and Recovery Act of 1976.
“Related Person” means, collectively, director, officer, employee, manager, partner or equityholder, (or any of their respective immediate family members (as defined in 40 CFR § 170.305) or any affiliate or spouse of any such director, officer, employee, manager, partner, equityholder or immediate family member) of FF Global Partners LLC, FF Top Holding LLC, or any of their respective affiliates.
“Registration Statement” has the meaning set forth in Section 4.6. “Rule 144” has the meaning set forth in Section 8.16.
“Sanctions” has the meaning set forth in Section 3.20(a).
“SEC Reports” means all reports, schedules, forms, statements and other documents required to be filed by the Issuer under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years (or such shorter period as the Company was required by law or regulation to file such material) preceding the date hereof or the applicable Closing Date, as applicable.
“Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations thereunder as the same shall be in effect at the time.
“Securitization Transaction” shall mean any financing or factoring or similar transaction (or series of such transactions) entered by the Issuer or any of its Subsidiaries pursuant to which the Issuer or any of its Subsidiary may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate or any other Person.
“Shares” has the meaning set forth in Section 2.1(a).
“Signing Date” has the meaning set forth in the Preamble of this Agreement. “Standard Settlement Period” has the meaning set forth in Section 4.1(c). “Subscription Amount” has the meaning set forth in Section 2.1(a). “Subsidiary” means, with respect to any Person, any other Person of which an aggregate of more than 50% of the outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors (or other applicable governing body) of such other Person is at the time, directly or indirectly, owned legally or beneficially by such Person or one or more Subsidiaries of such Person, or a combination thereof, or with respect to which any such Person has the right to vote or designate the vote of more than 50% of such Capital Stock whether by proxy, agreement, operation of Law or otherwise. Unless the context otherwise requires, each reference to a Subsidiary shall mean a Subsidiary of the Issuer.
“Synthetic Lease” shall mean a lease transaction under which the parties intend that (a) the lease will be treated as an “operating lease” by the lessee pursuant to Statement of Financial Accounting Standards No. 13, as amended and (b) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.
“Trading Day” means a day on which the Common Stock is traded on Nasdaq.
“Transfer Agent” means Continental Stock Transfer & Trust Issuer, the current transfer agent of the Issuer and any successor transfer agent of the Issuer.
“True-Up Shares” has the meaning set forth in Section 4.5(b).
“U.S.” or “United States” means the United States of America.
Exhibit 99.1
AIxC and Sei Development Foundation Announce Strategic Collaboration
Los Angeles, CA (Feb 2, 2026) — AIxCrypto Inc. (NASDAQ: AIXC, “AIxC” or the “Company”), a U.S.-Nasdaq listed company dedicated to building a world-leading ecosystem that integrates AI and blockchain while bridging Web2 and Web3, and the Sei Development Foundation today announced a strategic technology collaboration to explore opportunities in high-performance blockchain infrastructure. Sei Development Foundation is an independent US non-profit dedicated to the advancement and adoption of open source, permissionless protocols like Sei Network – the fastest EVM Layer-1 blockchain built to support world-scale decentralized applications.
Both parties will engage in in-depth discussions on technical integration, infrastructure solutions, and ecosystem synergies to evaluate how to jointly advance the convergence and innovation of AI and blockchain technologies.
The partnership marks a critical step in AIxC’s exploration into building applications on Sei Network’ infrastructure across its product portfolio This includes applications designed for Faraday Future’s (NASDAQ: FFAI) mobility and embodied AI (EAI) robotics ecosystem, as part of the Companies’ joint ‘FFAI + AIXC’ strategy to bridge Web2 and Web3.
The Sei Network delivers sub-second finality and reports processing over five billion transactions to date—infrastructure built for the scale AIxC is targeting. Through this collaboration, the Sei Development Foundation and AIxC will work closely with teams across the Sei ecosystem to explore innovative infrastructure solutions, including on-chain identity and transaction primitives for future mobility and EAI initiatives. These initiatives aim to assess the utility of Sei’s sub-second finality for real-time DePIN applications.
This collaboration will focus on:
| ● | Evaluating the technical suitability of Sei Network for specific application scenarios within the AIxC ecosystem. |
| ● | Jointly exploring the possibilities of AI-driven decentralized EAI devices and applications on high-performance chains. | |
| ● | Exploring foundational protocol innovations for AI-autonomous trading, management, and verification within the context of a silicon-based economy. | |
| ● | Identifying technical synergies in areas including intelligent vehicles, robotics, and IoT devices. |
“We are committed to aligning with top-tier technology partners. Sei’s technical expertise in high-performance blockchain complements our exploration in AI and intelligent assets,” said Jerry Wang, Co-CEO of AIxCrypto Inc. “Both parties are pushing the boundaries of innovation in our respective fields, and this partnership gives us the opportunity to jointly explore some exciting technical directions.”
“We’re pleased to partner with AIxC as they build at the intersection of AI and Web3. Sei Network was designed to handle high-throughput applications with sub-second finality, and we look forward to working together to explore how that infrastructure can support their growing ecosystem,” said Jack Lipstone, Business Development Director of Sei Development Foundation.
This collaboration establishes a preliminary strategic framework and represents AIxC’s ongoing strategy to collaborate with leading technology providers in the blockchain space, ensuring the Company maintains access to best-in-class infrastructure as it scales its ecosystem and product offerings while maintaining the Company’s focus on regulatory compliance, security, and user-centric design.
About AIxCrypto:
AIxCrypto is a U.S. Nasdaq-listed company dedicated to building a world-leading ecosystem that integrates AI and blockchain while bridging Web2 and Web3. Its core products include the BesTrade DeAI Agent and the AIxC ecosystem products.
About Sei Network:
Sei is a blockchain designed for fast, cheap financial transactions, combining the network effects of Ethereum with the performance of Solana. Sei has processed more than five billion transactions across more than 95 million wallets and has become the #1 EVM chain by number of active users. The team is backed by top investors such as Multicoin, Jump, Coinbase Ventures, and Circle Ventures – and includes talent from companies like Robinhood, Google, Coinbase, Databricks, Uber, and Goldman Sachs. To learn more about Sei Network, visit https://www.sei.io/.
About Sei Development Foundation:
Sei Development Foundation is an independent US non-profit dedicated to the advancement and adoption of open source, permissionless protocols like Sei – the fastest EVM Layer-1 blockchain built to support world-scale decentralized applications. Through education, funding, and ecosystem support, the Foundation collaborates with a global community of builders and users to promote and expand the benefits of Sei and related projects. To learn more about Sei Development Foundation, visit www.seifdn.org.
FORWARD LOOKING STATEMENTS:
This press release contains “forward-looking statements”, including statements regarding AIxCrypto Holdings, Inc. (“AIxCrypto”) within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. All of the statements in this press release, including financial projections, whether written or oral, that refer to expected or anticipated future actions and results of AIxCrypto are forward-looking statements. In addition, any statements that refer to expectations, projections, or other characterizations of future events or circumstances are forward-looking statements. These forward-looking statements reflect our current projections and expectations about future events as of the date of this presentation. AIxCrypto cannot give any assurance that such forward-looking statements and financial projections will prove to be correct.
The information provided in this press release does not identify or include any risk or exposures of AIxCrypto that would materially and adversely affect the performance or risk of the company. By their nature, forward-looking statements and financial projections involve numerous assumptions, known and unknown risks and uncertainties, both general and specific, that contribute to the possibility that the predictions, forecasts, projections and other forward-looking information will not occur, which may cause the Company’s actual performance and financial results in future periods to differ materially from any estimates or projections of future performance or results expressed or implied by such forward-looking statements and financial projections. Important factors that could cause actual results to differ materially from expectations include, but are not limited to: business, economic and capital market conditions; the heavily regulated industry in which AIxCrypto carries on business; current or future laws or regulations and new interpretations of existing laws or regulations; the inherent volatility and regulatory uncertainty associated with cryptocurrency investments; legal and regulatory requirements; market conditions and the demand and pricing for our products; the availability of reaching an agreement for the purchase of FFAI common shares; our relationships with our customers and business partners; our ability to successfully define, design and release new products in a timely manner that meet our customers’ needs; our ability to attract, retain and motivate qualified personnel; competition in our industry; failure of counterparties to perform their contractual obligations; systems, networks, telecommunications or service disruptions or failures or cyber-attack; ability to obtain additional financing on reasonable terms or at all; litigation costs and outcomes; our ability to successfully maintain and enforce our intellectual property rights and defend third party claims of infringement of their intellectual property rights; and our ability to manage our growth. Readers are cautioned that this list of factors should not be construed as exhaustive.
All information contained in this press release is provided as of the date of the press release issuance and is subject to change without notice. Neither AIxCrypto, nor any other person undertakes any obligation to update or revise publicly any of the forward-looking statements and financial projections set out herein, whether as a result of new information, future events or otherwise, except as required by law. This is presented as a source of information and not an investment recommendation. This press release does not take into account nor does it provide any tax, legal or investment advice or opinion regarding the specific investment objectives or financial situation of any person. AIxCrypto reserves the right to amend or replace the information contained herein, in part or entirely, at any time, and undertakes no obligation to provide the recipient with access to the amended information or to notify the recipient thereof.
Readers are advised not to place undue reliance on forward-looking statements, as there is no guarantee that the plans, intentions, or expectations they are based on will be realized. While management believes these statements are reasonable at the time of preparation, actual results may differ materially. These forward-looking statements reflect the Company’s expectations as of the date of this presentation and are subject to change without notice. The Company is not obligated to update or revise these statements, unless required by law.
Forward-looking statements are often identified by words such as “may,” “could,” “would,” “might,” or “will,” indicating possible future actions, events, or outcomes. These statements involve known and unknown risks, uncertainties, and other factors that could cause actual results to differ significantly from what is expected.
Actual results may differ materially due to factors such as the ability to secure financing, complete transactions, meet exchange requirements, consumer demand, competition, and unexpected costs. These forward-looking statements are based on assumptions that may prove incorrect, and the Company does not assume any obligation to update them except as required by law. Given the uncertainties involved, readers should not place undue reliance on these statements.
You are cautioned not to place undue reliance on these forward-looking statements, which are made only as of the date of this news release. The Company disclaims any intent or obligation to update these forward-looking statements beyond the date of this news release, except as required by law. This caution is made under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Investor & Media Contact:
Investor Relations Department
AIxCrypto
5857 Owens Avenue, Suite 300, Carlsbad, CA 92008
Tel: +1 (760) 452-8111
Email: [email protected]
Sei’s Media Contact: [email protected]