FF EAI Robotics Ecosystem Inc 8-K, filed Oct 14, 2026
FF EAI Robotics Ecosystem Inc. (FFR)
About this 8-K
FF EAI Robotics Ecosystem Inc filed this 8-K on October 14, 2026.
FF EAI Robotics Ecosystem Inc. agreed on October 12, 2026 to acquire Faraday Future Intelligent Electric Inc.’s robotics business for a US$200 million formula-based purchase price, payable in 1,315,313 common shares and 65,475 preferred shares. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
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 of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s
Telephone Number, Including Area Code:
AIxCrypto Holdings, Inc.
(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:
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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
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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.
Transaction Agreement
In its Current Report on Form 8-K filed on September 28, 2026, FF EAI Robotics Ecosystem Inc. (formerly known as AIxCrypto Holdings, Inc.) (the “Company”) disclosed its entry into a non-binding term sheet with Faraday Future Intelligent Electric Inc. (“FFAI”), the Company’s majority stockholder, concerning the proposed acquisition by the Company of FFAI’s robotics business (the “Robotics Business”).
On October 12, 2026, the Company entered into that certain transaction agreement (the “Transaction Agreement”) with Smart Technology Holdings Ltd., a Cayman Islands company (the “Cayman Seller”), FFAI (together with the Cayman Seller, the “Seller Parties”), FF EAI Robotics Inc., a California corporation (“RobotCo”), and FFR Acquisition Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of the Company (“Merger Sub”), pursuant to which the Company agreed to acquire the Robotics Business from the Seller Parties.
Due to the related-party nature of the transactions contemplated under the Transaction Agreement and other transaction documents (the “Transactions”) as FFAI is the Company’s majority stockholder, a special committee of the Company’s board of directors (the “Board”), composed of independent directors Chen Shi and Jason E. Dodier (the “Special Committee”), unanimously determined that the Transactions are fair to, and in the best interests of, the Company, and unanimously recommended that the Board approve the Transaction Agreement and the Transactions. Based on the Special Committee’s recommendation, the Board unanimously (i) determined that the Transactions are fair to, and in the best interests of, the Company, and (ii) approved entry into the Transaction Agreement and the consummation of the Transactions. The Special Committee and the Board received a fairness opinion from the Special Committee’s financial advisor, Advanture Capital Solutions LLC.
At the closing of the Transactions (the “Closing”), the Company will acquire all issued and outstanding shares of RobotCo from the Cayman Seller in exchange for shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), and non-voting convertible preferred stock, par value $0.001 per share (the “Preferred Stock”) (the “Equity Exchange”). Immediately following the Equity Exchange, RobotCo will merge with and into Merger Sub, with Merger Sub surviving as a wholly owned direct subsidiary of the Company (the “Merger”).
The purchase price payable to the Cayman Seller is (a) US$200 million multiplied by (b)(i) one minus (ii)(A) the number of shares of RobotCo common stock issuable upon exercise of outstanding options immediately before the Closing divided by (B) the number of shares of RobotCo common stock outstanding immediately before the Closing on a fully diluted basis (the “Purchase Price”). The Purchase Price excludes consideration attributable to those outstanding options of RobotCo, which will be assumed by the Company as described below. The consideration share price is US$2.246 per share. The Transaction Agreement does not provide for the special stock dividend contemplated by the previously announced term sheet.
The Purchase Price will be paid through the issuance of 1,315,313 shares of Common Stock and 65,475 shares of Preferred Stock. Each share of Preferred Stock will be convertible into one thousand shares of Common Stock. The Preferred Stock will be non-voting and will have no discount, interest, preferential dividend, redemption right or other special economic rights. Before issuance, the Company will adopt and file a certificate of designation specifying its terms. No Common Stock or Preferred Stock may be issued in excess of the amount authorized by the Company’s certificate of incorporation or, without the requisite stockholder approval, the maximum amount permitted under applicable Nasdaq Listing Rules, including Rules 5635(a), (b) and (d), as applicable. The Preferred Stock may not be converted into Common Stock, and voting rights arising from conversion may not be exercised, unless and until the requisite stockholder approval of the Company is obtained. This absolute blocker applies to the Seller Parties, their affiliates and subsequent holders, including upon distributions, transfers or pledges, and cannot be circumvented through cash settlement, waiver, amendment or another arrangement.
At the effective time of the Merger, each outstanding and unexercised option to acquire RobotCo common stock, whether vested or unvested, will be converted into an option to acquire Common Stock. The exchange ratio is 0.89, subject to adjustment for specified corporate actions. The number of shares underlying each assumed option will equal the current number of underlying RobotCo shares multiplied by the exchange ratio, and its per-share exercise price will equal its existing exercise price divided by the exchange ratio.
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Before the Closing, FFAI and RobotCo are required to complete an internal restructuring (the “Internal Restructuring”) that transfers the Robotics Business and related assets, data, contracts, employees and liabilities to RobotCo or its subsidiaries. Certain identified shared software and technology will be licensed under long-term intellectual property license agreements. In addition, the Company will cooperate with the Seller Parties and RobotCo in completing employee transition and onboarding of employees of RobotCo and the Robotics Business, effective as of the Closing or the applicable transfer date. In anticipation of the entry into the Transaction Agreement, FFAI, RobotCo and the Company entered into that certain transition services agreement (the “Transition Services Agreement”), effective on October 1, 2026, pursuant to which FFAI will provide transition services to RobotCo in (i) EAI Device; (ii) EAI Brain & Open Source and Open Developer Platform; (iii) Data Factory; and (iv) Industry Solutions, and other relevant services. Fees for the services equal FFAI’s actual, direct and documented costs of providing the services, without markup. No fees are payable before the date of the Transaction Agreement. The Company will be liable for service fees during the period from October 1, 2026, until the earlier of (i) the date of the Closing, or (ii) termination of the Transaction Agreement. The initial term of the Transition Services Agreement is twelve months, and FFAI and RobotCo may extend the term upon mutual consent. The foregoing description of the Transition Services Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Transition Services Agreement, attached hereto as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by this reference.
The Transactions are subject to closing conditions, including completion of the Internal Restructuring; required regulatory, corporate and third-party approvals and consents; absence of specified restraints and material adverse effects; accuracy of representations and warranties and performance of covenants; arrangements with specified key employees; and execution and delivery of the ancillary transaction documents.
The Transaction Agreement contemplates that, as promptly as reasonably practicable after the Closing, the Company will obtain stockholder approval by written consent in lieu of a meeting, in accordance with Section 228 of the Delaware General Corporation Law (the “DGCL”), of (i) the issuance of the consideration securities and the Common Stock issuable upon conversion of the Preferred Stock for purposes of applicable Nasdaq Listing Rules, including Rules 5635(a), (b) and (d), as applicable, and (ii) any amendment to the Company’s certificate of incorporation, as amended, required to authorize sufficient shares (collectively, the “Stockholder Proposals”). Following receipt of the written consent, the Company will file an information statement on Schedule 14C with the SEC. Shares of Common Stock issued as consideration before the requisite stockholder approval will not be entitled to vote or consent on the Stockholder Proposals to the extent prohibited by applicable Nasdaq Listing Rules.
Upon written request at any time following the twelve-month anniversary of the Closing, the Company will prepare and file a resale registration statement with the SEC covering the resale of the Common Stock issued, or issuable upon conversion of the Preferred Stock, under the Transaction Agreement and held by the Seller Parties or any permitted transferee.
The Company and the Seller Parties have agreed to cooperate in a potential concurrent private placement financing consisting solely of equity securities, with gross proceeds of no more than US$30 million and a purchase price at the “Minimum Price” determined in accordance with Nasdaq Listing Rule 5635(d). The Transactions are not conditioned on that financing or any other financing.
The Transaction Agreement contains representations, warranties, interim operating covenants, exclusivity obligations, termination, and post-Closing indemnification provisions that are customary for transactions of this type. Furthermore, for a period of two years after the Closing, the Seller Parties and their affiliates will be subject to noncompetition and nonsolicitation restrictions, subject to specified exceptions for non-robotics electric vehicle and automotive businesses, related software and services and aftermarket activities.
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The Transaction Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company. In particular, the representations and warranties contained in the Transaction Agreement were made only for the purposes of the Transaction Agreement as of the specific dates therein, and were solely for the benefit of the parties to the Transaction Agreement. The representations and warranties contained in the Transaction Agreement may be subject to limitations agreed upon by the parties to the Transaction Agreement and are qualified by information in confidential disclosure schedules provided in connection with the signing of the Transaction Agreement. These confidential disclosure schedules contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Transaction Agreement. Moreover, certain representations and warranties in the Transaction Agreement may be subject to a standard of materiality provided for in the Transaction Agreement and have been used for the purpose of allocating risk among the parties, rather than establishing matters of fact. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Transaction Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
The foregoing description of the Transaction Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Transaction Agreement, attached hereto as Exhibit 2.1 to this Current Report on Form 8-K, which is incorporated herein by this reference.
Lock-up Agreement
The Transaction Agreement contemplates that a lock-up agreement (the “Lock-up Agreement”) will be executed and delivered by each Seller Party on or prior to the Closing. Under the Lock-up Agreement, each Seller Party will be subject to restrictions for a period of eighteen months following the Closing with respect to 100% of the consideration securities received pursuant to the Transaction Agreement, including Common Stock issued or issuable upon conversion of the Preferred Stock and securities issued in respect thereof in specified corporate events. The restrictions prohibit sales, transfers, hedging and public announcements of an intention to engage in such transactions, subject to specified consent and transfer exceptions. The Lock-up Agreement terminates automatically upon termination of the Transaction Agreement in accordance with its terms.
The foregoing description of the Lock-up Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the form of the Lock-up Agreement, attached hereto as Exhibit 10.2 to this Current Report on Form 8-K, which is incorporated herein by this reference.
Support Agreement
The Transaction Agreement contemplates that a support agreement (the “Support Agreement”) will be entered into by and among the Company, FFAI, Yueting Jia and Jiawei Wang on or prior to the Closing. Each undersigned stockholder undertakes to approve the stockholder proposals described above by written consent and, if a meeting is held, to attend for quorum purposes and vote in favor of the proposals and against specified competing or obstructive actions. These voting obligations apply to shares that each undersigned stockholder is entitled to vote and exclude proposals that would materially and disproportionately adversely affect such stockholder compared with other Company stockholders. The Support Agreement also restricts transfers, subject to specified exceptions, and prohibits inconsistent voting arrangements. The voting and transfer obligations continue until the earlier of receipt of all approvals of the stockholder proposals and termination of the Transaction Agreement in accordance with its terms.
The foregoing description of the Support Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the form of the Support Agreement, attached hereto as Exhibit 10.3 to this Current Report on Form 8-K, which is incorporated herein by this reference.
Amended and Restated Lead Investor Agreement
On October 12, 2026, the Company entered into that certain amended and restated lead investor agreement (the “Lead Investor Agreement”) with FF Global Partners LLC (“FFGP” or the “Lead Investor”), FFAI, Yueting Jia and Jiawei Wang (together with FFGP and FFAI, the “Group Members”). The Lead Investor Agreement constitutes the investor rights agreement contemplated by the Transaction Agreement and amends and restates the lead investor agreement, dated September 19, 2025, by and between the Company and FFAI (the “Original Agreement”). Except for specified provisions effective as of signing, the Lead Investor Agreement will become effective automatically upon satisfaction of specified conditions, including consummation of the Transactions and approval by the Board and the applicable governing bodies of FFAI and FFGP (the “Amendment Effective Date”), at which time FFAI’s rights as lead investor under the Original Agreement will be assigned to FFGP. Until then, the Original Agreement remains in full force and effect.
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Upon the Amendment Effective Date, FFAI, Yueting Jia and Jiawei Wang will grant FFGP an irrevocable proxy to exercise, in FFGP’s sole discretion, all voting and consent rights attaching to Company securities now or subsequently owned of record or beneficially owned by them or their affiliates, subject to specified transfer exceptions and their obligations under any support agreement entered into in connection with the Transactions, including the Support Agreement. Each of them retains all other rights of ownership, including the right to receive dividends and distributions. If the Closing has not occurred within 180 days after signing, each grantor may revoke the proxy. The Group Members have acknowledged that they may be deemed to constitute a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As a result of the proxy, FFGP will hold more than 50% of the voting power for the election of directors, and the Company will qualify as a “controlled company” under the Nasdaq Listing Rules. Upon FFGP’s request, the Company must rely on available controlled company exemptions and may not cease such reliance without FFGP’s consent.
The Board will have seven members, subject to specified exceptions and FFGP’s consent to changes in size. FFGP may designate four directors and, in any event, a Board majority until the aggregate Group Shares (as defined in the Lead Investor Agreement) fall below 3,339,270 shares of Common Stock on an as-converted basis (equal to 25% of FFAI’s beneficially owned Common Stock at signing, adjusted for specified corporate actions) for 365 consecutive days (the “Majority Designation Period”), subject to an exception for specified financing facilitation transactions. Company issuances do not adjust this share threshold. Thereafter, FFGP retains proportional designation rights based on the Group Members’ voting percentage under the Lead Investor Agreement, calculated on an as-converted basis without giving effect to conversion caps or voting blockers, rounded up, with at least one designee. FFGP is also entitled, to the extent permitted by applicable SEC and Nasdaq requirements, to proportional representation, rounded up, on each Board committee and at least one designee on each committee. FFGP may select the Chairperson during the Majority Designation Period and may remove and replace its designees at any time. If an FFGP designee is not elected at a stockholder meeting, FFGP may require the Company to temporarily expand the Board and appoint a replacement designee. FFGP designees are not required to qualify as independent directors, and their appointment or nomination is subject only to limited review by the Board’s nominating and corporate governance committee, with a designee deemed approved if the committee does not respond within 15 business days, subject to tolling while requested information necessary to assess a designee remains outstanding. The Company must cause the Board to include sufficient independent directors to satisfy Nasdaq listing standards, taking into account any controlled company exemptions. Each designee must deliver to FFGP an undated, pre-signed resignation and reassignment letter, which FFGP may deliver to the Company at any time. The Company must amend its bylaws to reflect the fixed Board size after the Amendment Effective Date.
While FFGP has director designation rights, the appointment, removal or replacement of, and any material change to the title, authority, reporting line or compensation of, the Chairperson and the Chief Executive Officer, including any Co-Chief Executive Officer, are reserved to the full Board, may not be delegated, and require approval by a majority of FFGP’s serving designees. Designees may share information with FFGP, subject to Delaware law, confidentiality undertakings for material nonpublic information and Board restrictions where a Group Member or its affiliate is adverse to the Company.
During the Majority Designation Period, FFGP has consent rights over specified equity issuances, including issuances of 15% or more over a rolling twelve-month period, subject to exceptions; transactions requiring a vote under Nasdaq Listing Rule 5635; below-Minimum Price issuances; issuances of securities ranking senior to or on parity with, or amendments to the terms of, the Company’s Series B Convertible Preferred Stock; anti-takeover arrangements; and new equity incentive plans or reserve increases exceeding 10% of outstanding Common Stock annually. The Company also may not amend its organizational documents in a manner adverse to the rights of FFGP or the other Group Members under the Lead Investor Agreement without FFGP’s prior approval and, upon FFGP’s request, must take specified actions to conform its organizational documents to those rights. In addition, during the Majority Designation Period, FFGP has rights to participate in subsequent equity and debt financings, subject to specified exclusions, and a top-up right, exercisable by FFGP or another Group Member or affiliate, to purchase additional securities to restore the Group Members’ pre-issuance voting percentage following issuances that reduce it, including certain issuances excluded from the participation right. If any such purchase requires stockholder approval under Nasdaq rules, the Company must call a stockholder meeting within 60 days, and the Board must recommend approval. The Company is also prohibited from taking actions intended to, or that would reasonably be expected to, impair FFGP’s rights, and must provide substantially identical rights with respect to any spin-off or similar entity in which a Group Member receives equity.
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The term is 99 years from the Amendment Effective Date. The Lead Investor Agreement automatically terminates if the Closing does not occur within 180 days after signing, in which case the Original Agreement continues in effect with FFAI as lead investor. FFGP may terminate the Lead Investor Agreement in its sole discretion on five days’ written notice, or by mutual agreement with the Company; the Company has no unilateral termination right. The proxy terminates upon termination of the Lead Investor Agreement.
The foregoing description of the Lead Investor Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Lead Investor Agreement, attached hereto as Exhibit 10.4 to this Current Report on Form 8-K, which is incorporated herein by this reference.
PIPE Securities Purchase Agreement
On October 12, 2026, the Company entered into a securities purchase agreement (the “PIPE SPA”) with the investors named therein (the “PIPE Investors”) for a private placement of Common Stock and, to the extent required by the beneficial ownership limitation described below, Series D non-voting convertible preferred stock, par value $0.001 per share (the “PIPE Preferred Stock”), for aggregate gross proceeds of up to US$10 million (the “PIPE”). There is no minimum aggregate funding condition. The subscription price is the lower of (i) the Nasdaq Official Closing Price immediately preceding execution of the PIPE SPA and (ii) US$2.246. Schedule I to the PIPE SPA specifies a subscription price of US$1.50 per share of Common Stock.
The PIPE closing is conditioned on, among other things, and is to occur substantially concurrently with, the consummation of the Transactions. Each investor may fund its subscription amount on or before the fifteenth business day following the Closing without a funding default. The Company may accept a lesser amount actually funded in full satisfaction of an investor’s commitment; otherwise, the investor remains obligated to fund its subscription amount. Securities will be issued only against receipt of the applicable subscription amount. The Transactions are not conditioned on the PIPE. Net proceeds will be used entirely for the development and operations of the Company’s robotics business following the consummation of the Transactions.
Issuance of Common Stock, including upon conversion of the PIPE Preferred Stock, is subject to a 4.99% beneficial ownership limitation, which an investor may increase to no more than 9.99% on at least 61 days’ prior written notice. An investor whose allocation would exceed that limitation will receive the maximum permitted whole number of Common Stock shares and PIPE Preferred Stock representing the balance on an as-converted basis, subject to rounding. The PIPE Preferred Stock will be convertible into Common Stock in accordance with its certificate of designation. Issuances are also subject to the applicable Nasdaq issuance cap unless and until any required stockholder approval becomes effective.
The Company will file a resale registration statement covering the Common Stock issued in the PIPE and issuable upon conversion of the PIPE Preferred Stock within 30 calendar days after the Closing and use best efforts to obtain effectiveness within 60 calendar days after filing, subject to specified extensions, cut-backs and suspension rights. The PIPE securities are not subject to a contractual lock-up and remain subject to applicable securities-law transfer restrictions.
The foregoing description of the PIPE SPA does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the form of the PIPE SPA, attached hereto as Exhibit 10.5 to this Current Report on Form 8-K, which is incorporated herein by this reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form 8-K regarding the consideration securities, the conversion terms of the Preferred Stock and the assumption of RobotCo options is incorporated by reference into this Item 3.02.
The Company intends to issue the consideration securities to the Cayman Seller in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). The Company is relying on the private nature of the negotiated transaction with the Cayman Seller, the Cayman Seller’s access to information concerning the Company, and its investment and transfer-restriction representations. The Company will receive all issued and outstanding RobotCo shares in exchange for the consideration securities and will receive no cash proceeds from that issuance. No underwriting discounts or commissions will be paid in connection with the issuance of the consideration securities.
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The information set forth in Item 1.01 of this Current Report on Form 8-K regarding the PIPE is incorporated by reference into this Item 3.02.
The Company intends to offer and sell the PIPE securities in reliance on Regulation S under the Securities Act for offshore sales to non-U.S. persons, based on the PIPE Investors’ investment, non-U.S.-person and transfer-restriction representations and the absence of directed selling efforts. No underwriting discounts or commissions will be paid in connection with the issuance of the PIPE securities.
Item 7.01. Regulation FD Disclosure.
On October 14, 2026, the Company issued a press release announcing entry into the Transaction Agreement. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference. Also on October 14, 2026, the Company will make an investor presentation relating to the Transactions. A copy of the investor presentation is furnished as Exhibit 99.2 to this Current Report on Form 8-K and incorporated herein by reference.
The information in this Item 7.01, including Exhibits 99.1 and 99.2, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.
This Current Report on Form 8-K does not constitute an offer to sell or a solicitation of an offer to buy any securities.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements include statements regarding the Transactions and their structure, consideration, timing and completion; the Internal Restructuring; stockholder, Nasdaq, regulatory and third-party approvals; the issuance and conversion of consideration securities and the assumption of options; the ancillary agreements, including the Lead Investor Agreement, and resale registration; any related financing; and the Company’s transition to and operation of the Robotics Business. These statements are based on current expectations and assumptions and are subject to risks and uncertainties.
Risks and uncertainties include failure to satisfy closing conditions or obtain required approvals under the Transaction Agreement or the PIPE SPA; termination of the Transaction Agreement or the PIPE SPA; conflicts of interest arising from the related-party nature of the Transactions; the effects of the Lead Investor Agreement, including concentration of voting and governance rights in FFGP and the other Group Members, the Company’s reliance on controlled company exemptions and contractual limitations on the Board’s and the Company’s ability to take certain corporate and financing actions; inability to complete the Internal Restructuring; dilution from the consideration securities, assumed options, the PIPE or other contemplated financing; failure to obtain stockholder approval permitting conversion of the Preferred Stock or other share issuance; inability to complete financing or fund operations; dependence on FFAI for transition services and shared technology; disruption from the announcement or pendency of the Transactions or the PIPE; transaction costs; integration and operating risks; and other risks described in the Company’s SEC filings, including its Annual Report on Form 10-K for the year ended December 31, 2025, and subsequent filings. Actual results may differ materially. Forward-looking statements speak only as of the date of this report. Except as required by law, the Company undertakes no obligation to update them.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
† Certain schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to provide a copy of any omitted schedule to the SEC or its staff upon request.
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SIGNATURES
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.
| FF EAI Robotics Ecosystem Inc. | ||
| Date: October 14, 2026 | By: | /s/ Jiawei Wang |
| Jiawei Wang | ||
Chief Executive Officer and Director (Principal Executive Officer) | ||
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Exhibit 2.1
TRANSACTION AGREEMENT
by and among
Faraday Future Intelligent Electric Inc.
Smart Technology Holdings Ltd.
FF EAI Robotics Ecosystem Inc.
FFR Acquisition Sub LLC
and
FF EAI Robotics Inc.
October 12, 2026
TABLE OF CONTENTS
| Page | |||
| Article I Purchase Transactions | 2 | ||
| 1.1 | Purchase Price | 2 | |
| 1.2 | Closing | 2 | |
| 1.3 | Equity Exchange; Merger | 3 | |
| 1.4 | Purchaser Preferred Stock and Blocker | 6 | |
| 1.5 | Withholding | 6 | |
| Article II Representations and Warranties REGARDING the Seller Parties | 7 | ||
| 2.1 | Organization | 7 | |
| 2.2 | Authorization; No Breach; Valid and Binding Agreement | 7 | |
| 2.3 | Title to Company Stock | 8 | |
| 2.4 | Actions | 8 | |
| 2.5 | Compliance with Law | 8 | |
| 2.6 | Brokerage | 8 | |
| 2.7 | Acquisition Proposals | 8 | |
| 2.8 | Shareholder Information | 9 | |
| 2.10 | Governance, Information and Other Rights. | 9 | |
| 2.11 | HSR Act Matters. | 9 | |
| Article III Representations and Warranties Regarding the Target Companies | 10 | ||
| 3.1 | Organization | 10 | |
| 3.2 | Share Capital and Related Matters | 11 | |
| 3.3 | Authorization; No Breach; Valid and Binding Agreement | 11 | |
| 3.4 | Financial Statements | 12 | |
| 3.5 | Absence of Certain Developments | 13 | |
| 3.6 | Actions | 14 | |
| 3.7 | Title to Properties; Sufficiency | 14 | |
| 3.8 | Solvency | 15 | |
| 3.9 | Taxes | 15 | |
| 3.10 | Contracts and Commitments | 18 | |
| 3.11 | Intellectual Property Rights; Information Technology; Privacy | 20 | |
| 3.12 | Government Licenses and Permits | 23 | |
| 3.13 | Litigation | 24 | |
| 3.14 | Brokerage | 24 | |
| 3.15 | CFIUS Matters; U.S. Business Activities. | 24 | |
| 3.16 | Export Controls; Critical Technologies. | 25 | |
| 3.17 | Sensitive Personal Data; Data Security. | 25 | |
| 3.18 | Government Contracts; Federal Funding; Security. | 25 | |
| 3.19 | Insurance | 26 | |
| 3.20 | Employees | 27 | |
| 3.21 | Compliance with Laws | 27 | |
| 3.22 | Environmental and Safety Matters | 28 | |
| 3.23 | Customers | 29 | |
| 3.24 | Affiliated Transactions | 29 | |
| 3.25 | Investment Company Act | 29 | |
| 3.26 | Company Information | 30 | |
| - i - |
TABLE OF CONTENTS (Continued)
| Page | |||
| Article IV Representations and Warranties Regarding the Purchaser | 30 | ||
| 4.1 | Organization | 30 | |
| 4.2 | Authorization; No Breach; Valid and Binding Agreement | 30 | |
| 4.3 | Actions | 31 | |
| 4.4 | Compliance with Law | 31 | |
| 4.5 | Capitalization | 32 | |
| 4.6 | Absence of Certain Developments | 32 | |
| 4.7 | Brokerage | 33 | |
| 4.8 | Continuity of Business Enterprise | 33 | |
| Article V Survival; Indemnification | 33 | ||
| 5.1 | Survival of Representations and Warranties | 33 | |
| 5.2 | Indemnification | 33 | |
| 5.3 | Insurance Etc. Offset | 38 | |
| 5.4 | Waiver | 38 | |
| Article VI Noncompetition and Nonsolicitation | 38 | ||
| Article VII Tax Matters | 39 | ||
| 7.1 | Tax Periods Beginning Before and Ending After the Closing Date | 39 | |
| 7.2 | Cooperation on Tax Matters | 40 | |
| 7.3 | Transfer Taxes | 40 | |
| 7.4 | Tax Sharing Agreements | 40 | |
| 7.5 | Computation of Liabilities | 40 | |
| 7.6 | Tax Contest | 41 | |
| 7.7 | Intended Tax Treatment | 42 | |
| Article VIII Additional Agreements | 42 | ||
| 8.1 | Conduct of Business of the Target Companies | 42 | |
| 8.2 | Efforts | 45 | |
| 8.3 | Stockholder Written Consent; Information Statement | 46 | |
| 8.4 | Financial Statements | 48 | |
| 8.5 | Exclusivity | 49 | |
| 8.6 | Press Releases and Announcements | 50 | |
| 8.7 | Further Transfers | 50 | |
| 8.8 | Access to Books and Records | 50 | |
| 8.9 | Confidentiality | 51 | |
| 8.10 | Expenses | 51 | |
| 8.11 | Transaction Litigation | 51 | |
| 8.12 | Directors’ and Officers’ Indemnification and Insurance | 52 | |
| 8.13 | Registration Covenant | 53 | |
| 8.14 | Internal Restructuring | 55 | |
| 8.15 | Financing Cooperation | 55 | |
| 8.16 | Employee Matters | 55 | |
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TABLE OF CONTENTS (Continued)
| Article IX Conditions to Closing | 57 | ||
| 9.1 | Conditions Precedent to Obligations of the Purchaser | 57 | |
| 9.2 | Conditions Precedent to Obligations of the Seller Parties | 58 | |
| 9.3 | Frustration of Certain Closing Conditions | 59 | |
| Article X TERMINATION | 59 | ||
| 10.1 | Termination | 59 | |
| 10.2 | Effect of Termination | 60 | |
| Article XI Definitions; Cross-References to Other Defined Terms | 61 | ||
| 11.1 | Definitions | 61 | |
| 11.2 | Cross-References | 72 | |
| 11.3 | Construction | 73 | |
| Article XII Miscellaneous | 74 | ||
| 12.1 | Consent to Jurisdiction; Waiver of Jury Trial | 74 | |
| 12.2 | Consent to Amendments | 75 | |
| 12.3 | Successors and Assigns; Benefits | 75 | |
| 12.4 | Counterparts | 75 | |
| 12.5 | Governing Law | 76 | |
| 12.6 | Notices | 76 | |
| 12.7 | No Strict Construction | 77 | |
| 12.8 | Entire Agreement | 77 | |
| 12.9 | Severability | 77 | |
| 12.10 | Remedies; Specific Performance | 77 | |
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INDEX OF SCHEDULES AND EXHIBITS
| Schedule A | Seller Disclosure Schedule |
| Schedule B | Purchaser Disclosure Schedule |
| Exhibit A | Form of Lock-up Agreement |
| Exhibit B | Form of Support Agreement |
| Exhibit C | Form of Transition Service Agreement |
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TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT (this “Agreement”) is made as of October 12, 2026, by and among Smart Technology Holdings Ltd., a company incorporated under the Laws of the Cayman Islands (the “Cayman Seller”), Faraday Future Intelligent Electric Inc., a corporation incorporated under the Laws of the State of Delaware (“FFAI” and, together with the Cayman Seller, collectively, the “Seller Parties” and each, a “Seller Party”), FF EAI Robotics Ecosystem Inc. (formerly known as AIxCrypto Holdings, Inc.), a corporation incorporated under the Laws of the State of Delaware (the “Purchaser”), FF EAI Robotics Inc., a corporation incorporated under the Laws of the State of California (the “Company”), and FFR Acquisition Sub LLC, a limited liability company formed under the Laws of Delaware (“Merger Sub”). The Cayman Seller, FFAI, the Purchaser, the Company and Merger Sub are referred to herein collectively as the “Parties” and individually as a “Party.” Capitalized terms used herein, but not defined herein, are defined in Article XI below.
WHEREAS, the Seller Parties and the Company have completed, or shall complete before the Closing in accordance with Section 8.14, an internal restructuring pursuant to which the robotics business currently owned and operated by FFAI, and all assets, intellectual property, data, contracts, employees and liabilities related thereto, have been or shall be contributed to the Company and its Subsidiaries (the “Internal Restructuring”);
WHEREAS, the authorized share capital of the Company consists of 150,000,000 shares of common stock without par value, of which 75,000,000 shares of the common stock are issued and outstanding (the “Company Stock”);
WHEREAS, the Cayman Seller owns beneficially and of record all of the issued and outstanding Company Stock;
WHEREAS, the Purchaser desires to acquire from the Cayman Seller, and the Cayman Seller desires to transfer to the Purchaser, all of the Company Stock, in each case upon the terms and conditions set forth herein;
WHEREAS, immediately following the transfer of the Company Stock to the Purchaser in exchange for the Purchaser Stock Consideration (the “Equity Exchange”), the Company shall merge with and into Merger Sub, with Merger Sub surviving as a wholly owned direct Subsidiary of the Purchaser (the “Merger”), as part of an integrated transaction;
WHEREAS, the board of directors of the Purchaser (the “Purchaser Board”) has, upon unanimous recommendation of its special committee consisting of independent directors (the “Purchaser Special Committee”), and after receipt of the written opinion of the Purchaser Special Committee’s financial advisor to the effect that the consideration to be paid by the Purchaser is fair, from a financial point of view, to the Purchaser and its stockholders (other than the Seller Parties and their Affiliates) (the “Fairness Opinion”), unanimously determined that it is in the best interest of the Purchaser and its stockholders, and declared it advisable, to approve this Agreement and the Transactions;
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WHEREAS, the board of directors of FFAI (the “FFAI Board”) has, upon unanimous recommendation of its special committee consisting of independent and disinterested directors (the “FFAI Special Committee”), unanimously determined that it is in the best interest of FFAI and its shareholders, and declared it advisable, to approve this Agreement and the Transactions;
WHEREAS, the Purchaser, as the sole member of Merger Sub, has approved and adopted this Agreement concurrently with its execution pursuant to Delaware Limited Liability Company Act; and
WHEREAS, for U.S. federal income tax purposes, it is intended that the Equity Exchange and the Merger, taken together as integrated transactions, qualify as a “reorganization” within the meaning of Section 368(a) of the Code and in accordance with Revenue Ruling 2001-46 (the “Intended Tax Treatment”), and that this Agreement constitute and be adopted as a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) (a “Plan of Reorganization”).
NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and covenants which are to be made and performed by the respective Parties, the receipt and sufficiency of which are hereby acknowledged, each of the Parties hereto, intending to be legally bound, hereby agrees as follows:
Article I
Purchase Transactions
1.1 Purchase Price
The aggregate consideration to be paid by the Purchaser to the Cayman Seller, for the Company Stock pursuant to this Agreement (the “Purchase Price”) shall be (a) US$200,000,000 multiplied by (b)(i) one minus (ii)(A) the number of shares of Company Stock issuable upon exercise of the Outstanding Options outstanding immediately prior to Closing divided by (B) the aggregate number of shares of Company Stock issued and outstanding immediately prior to the Closing, calculated on a fully-diluted basis, which shall be payable in Purchaser Common Stock and Purchaser Preferred Stock pursuant to Section 1.3.1.
1.2 Closing
Unless another date, location or time is mutually agreed upon by the Parties, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place remotely via exchange of documents and signatures by electronic transmission in PDF format at 10:00 a.m. on the fifth (5th) Business Day after satisfaction or, if permissible, waiver, of the conditions to the obligations of the Parties set forth in Article IX other than such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, if permissible, waiver, of those conditions. The date and time of the Closing are referred to herein as the “Closing Date.” The Equity Exchange shall be completed first and the Merger shall become effective immediately thereafter on the Closing Date; neither step shall be completed unless all documents, approvals and other actions necessary to complete both steps are in place.
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1.3 Equity Exchange; Merger
1.3.1 Equity Exchange. On the basis of the representations, warranties, covenants and other agreements contained herein and subject to the terms and conditions of this Agreement, at the Closing, the Purchaser shall purchase from the Cayman Seller, and the Cayman Seller shall, and FFAI shall cause the Cayman Seller to, sell, assign, transfer, convey and deliver to the Purchaser, free and clear of all Encumbrances, all of the Company Stock, in exchange for (i) 1,315,313 shares of Purchaser Common Stock and (ii) 65,475 shares of Purchaser Preferred Stock (collectively, the “Purchaser Stock Consideration”). The aggregate number of shares of Purchaser Common Stock represented by the Purchaser Stock Consideration on an as-converted basis shall equal the quotient of (A) the Purchase Price, divided by (B) the Purchaser Stock Price. Each share of Purchaser Preferred Stock shall be convertible into one thousand shares of Purchaser Common Stock, subject to Section 1.4. The Purchase Price excludes any consideration attributable to the outstanding options to purchase equity in the Company identified in Section 3.2.1 of the Seller Disclosure Schedule (the “Outstanding Options”), which shall be assumed by the Purchaser in accordance with Section 1.3.3(b).
1.3.2 The Merger. Subject to and immediately following the Equity Exchange on the Closing Date, the Company shall merge with and into Merger Sub in accordance with the applicable corporation and limited liability company Laws of their respective jurisdictions. The Company’s separate corporate existence shall cease and Merger Sub shall continue as the surviving entity (the “Surviving Company”) and a wholly-owned direct Subsidiary of the Purchaser. The Company and Merger Sub shall execute and file the certificate or certificates of merger and any other required instruments with the applicable Secretary of State or other filing authority. The Merger shall become effective upon filing and acceptance of such certificate or certificates or at the later time specified therein, immediately following the Equity Exchange (the “Effective Time”).
1.3.3 Effect of the Merger.
(a) At the Effective Time, the Merger shall have the effects prescribed by this Agreement and applicable Law: all property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company, and all debts, liabilities, obligations and duties of each shall become those of the Surviving Company. Each share of Company Stock then held by the Purchaser shall be canceled without additional consideration, and the outstanding membership interests of Merger Sub shall remain outstanding as membership interests of the Surviving Company. The Organizational Documents and management of Merger Sub immediately before the Effective Time shall continue as those of the Surviving Company. References in this Agreement to the Company after the Effective Time shall include the Surviving Company as its successor.
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(b) At the Effective Time, each Outstanding Option that is outstanding and unexercised immediately prior to the Effective Time, whether or not vested, shall be converted into and become an option to purchase Purchaser Common Stock (each, an “Assumed Option”), and the Purchaser shall assume the Assumed Option and the terms of the stock option agreement (including the terms of the applicable incentive plan referenced in such agreement) by which such Outstanding Option is evidenced (but with changes to such documents as the Purchaser and the Seller Parties mutually agree are appropriate to reflect the substitution of the Outstanding Options by the Purchaser to purchase Purchaser Common Stock). Accordingly, from and after the Effective Time: (i) each Outstanding Option assumed by the Purchaser may be exercised solely for Purchaser Common Stock; (ii) the number of shares of Purchaser Common Stock subject to each Outstanding Option assumed by the Purchaser shall be determined by multiplying (x) the number of shares of Company Stock that were subject to such Outstanding Option, as in effect immediately prior to the Effective Time by (y) the Exchange Ratio and rounding the resulting number down to the nearest whole number of shares of Purchaser Common Stock; (iii) the per share exercise price for the Purchaser Common Stock issuable upon exercise of each Outstanding Option assumed by the Purchaser shall be determined by dividing (x) the per share exercise price of Company Stock subject to such Outstanding Option, as in effect immediately prior to the Effective Time, by (y) the Exchange Ratio and rounding the resulting exercise price up to the nearest thousandth of a cent; and (iv) any and all vesting schedule and restrictions on the exercise of any Outstanding Option shall continue in full force and effect and be included in the terms of the Assumed Options, and the term, exercisability, method of exercise, vesting schedule, and other provisions of such Outstanding Option shall otherwise remain unchanged; provided, however, that: (1) to the extent provided under the terms of an Outstanding Option, such Outstanding Option assumed by the Purchaser in accordance with this Section 1.3.3(b), such Outstanding Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Purchaser Common Stock subsequent to the Effective Time; and (2) the Purchaser Board or a committee thereof shall succeed to the authority and responsibility with respect to each Outstanding Option assumed by the Purchaser. Notwithstanding anything to the contrary in this Section 1.3.3(b), the conversion of each Outstanding Option (regardless of whether such option qualifies as an “incentive stock option” within the meaning of Section 422 of the Code) into an option to purchase shares of Purchaser Common Stock shall be made in a manner consistent with Treasury Regulation Section 1.424-1, such that the conversion of an Outstanding Option will not constitute a “modification” of such Outstanding Option for purposes of Section 409A or Section 424 of the Code. It is the intention of the parties that each Outstanding Option so assumed by the Purchaser shall qualify following the Effective Time as an incentive stock option as defined in Section 422 of the Code to the extent permitted under Section 422 of the Code and to the extent such Outstanding Option qualified as an incentive stock option prior to the Effective Time. As soon as reasonably practicable following the Closing Date (but in no event later than five (5) Business Days after the Purchaser first becomes eligible to use Form S-8 for the Assumed Options), the Purchaser will file an appropriate registration statement on Form S-8 (or such other appropriate form, if required) with respect to the offering of the Purchaser Common Stock issuable upon the exercise of the Assumed Options, to the extent that are permitted by Form S-8, and will use reasonable best efforts to maintain the effectiveness of registration statement thereafter for so long as any of such Assumed Options remain outstanding.
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1.3.4 Closing Transactions. At the Closing:
(a) The Purchaser shall issue the Purchaser Stock Consideration to the Cayman Seller.
(b) The Seller Parties shall deliver to the Purchaser:
(i) a copy of resolutions and actions taken by the FFAI Board (including the FFAI Special Committee) in connection with the approval of this Agreement and the Transactions;
(ii) a copy of resolutions and actions taken by the board of directors and the stockholder of the Cayman Seller in connection with the approval of this Agreement and the Transactions;
(iii) a copy of resolutions and actions taken by the board of directors and the stockholder of the Company in connection with the approval of this Agreement and the Transactions;
(iv) a copy of the instrument of transfer with respect to the Company Stock, duly executed by the Cayman Seller;
(v) all share certificates representing the Company Stock, if any;
(vi) the updated stock ledger or register of members, as applicable, of the Company, reflecting the transfer of the Company Stock to the Purchaser;
(vii) the executed resignation letter of each director and officer of the Company, effective as of the Closing Date;
(viii) with respect to the Company, a duly executed certificate conforming to the requirements of Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3)(i) of the Treasury Regulations, and a notice to be delivered to the United States Internal Revenue Service as required under Section 1.897-2(h)(2) of the Treasury Regulations, each dated no more than thirty (30) days prior to the Closing Date and in form and substance reasonably acceptable to the Purchaser;
(ix) a copy of each Transaction Document (other than this Agreement), duly executed by all parties listed thereto (other than the Purchaser and Merger Sub); and
(x) (A) all other documents, instruments or certificates required to be delivered by the Seller Parties and the Target Companies at or prior to the Closing pursuant to Section 9.1, and (B) such other documents or certificates as shall reasonably be required by the Purchaser and its counsel to consummate the Transactions.
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(c) The Purchaser shall deliver to the Seller Parties:
(i) a copy of resolutions and actions taken by the Purchaser Board (including the Purchaser Special Committee) in connection with the approval of this Agreement and the Transactions;
(ii) a copy of each Transaction Document (other than this Agreement), duly executed by the Purchaser and Merger Sub, as applicable; and
(iii) (A) all other documents, instruments or certificates required to be delivered by the Purchaser at or prior to the Closing pursuant to Section 9.2, and (B) such other documents or certificates as shall reasonably be required by the Seller Parties and their respective counsel to consummate the Transactions.
1.4 Purchaser Preferred Stock and Blocker
The Purchaser Preferred Stock shall be non-voting convertible preferred stock, par value US$0.001 per share, with no discount, interest, preferential dividend, redemption right or other special economic rights. Before issuance, the Purchaser shall duly adopt and file a certificate of designation specifying its terms (the “Certificate of Designation”), in a form approved by the Purchaser and FFAI. Notwithstanding anything to the contrary in this Agreement or any Transaction Document, (i) no Purchaser Common Stock or Purchaser Preferred Stock shall be issued in excess of the amount authorized by the Purchaser’s certificate of incorporation or the maximum amount permitted without the requisite stockholder approval under applicable Nasdaq Listing Rules, including Rules 5635(a), (b) and (d), as applicable, and (ii) no Purchaser Preferred Stock shall be convertible into Purchaser Common Stock, and no voting rights arising from such conversion may be exercised, unless and until the requisite stockholder approval has been obtained. The blocker shall be absolute and apply to the Seller Parties and their Affiliates and their respective subsequent holders, including upon any upstream distribution, transfer or pledge, and shall be reflected in the Certificate of Designation. No cash settlement, waiver, amendment or other arrangement may circumvent the blocker.
1.5 Withholding
The Purchaser (and any other Person that has any withholding obligation with respect to any payment made pursuant to this Agreement) shall be entitled to deduct and withhold from the payments to be made pursuant to this Agreement an amount or amounts equal to any Taxes required to be deducted and withheld with respect to the making of such payments under the Code, Treasury Regulations, or any other applicable Law. To the extent that amounts are so deducted and withheld and timely remitted to the appropriate taxing authority, such deducted and withheld amounts are to be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. To the extent any Party becomes aware of any obligation to deduct or withhold from amounts otherwise payable, issuable or transferable pursuant to this Agreement, such Party shall notify the other Parties at least ten (10) days prior to the date of the relevant payment (or, if such obligation becomes known less than ten (10) days before such date, promptly upon becoming aware of it), and the Parties shall use commercially reasonable efforts to cooperate to obtain any certificates or other documentation required in respect of such deduction or withholding obligation and to reduce or eliminate any applicable deduction or withholding.
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Article II
Representations and Warranties REGARDING the Seller Parties
As a material inducement to the Purchaser to enter into this Agreement and to acquire the Company Stock from the Cayman Seller in accordance with the terms hereof, each Seller Party hereby represents and warrants to the Purchaser as follows:
2.1 Organization
Each Seller Party is an entity duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation, and has all requisite power and authority and all authorizations, licenses and permits necessary to own, lease and operate its properties and to carry on its businesses as now conducted and is qualified to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification. No Seller Party is in breach of its Organizational Documents.
2.2 Authorization; No Breach; Valid and Binding Agreement
2.2.1 Each Seller Party has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement and other Transaction Documents by such Seller Party and the consummation of the Transactions have been duly and validly authorized by all requisite actions, and no other Proceedings on its part are necessary to authorize the execution, delivery or performance of this Agreement or other Transaction Documents and the consummation of the Transactions.
2.2.2 The execution, delivery and performance of this Agreement and each other Transaction Document to which a Seller Party is a party and the consummation of the Transactions do not and will not conflict with or result in any breach of, constitute a default (or an event that, with or without notice or lapse of time or both, would become a default) under, result in a violation of, result in the creation of any Lien upon any assets or properties of such Seller Party under, give rise to any right of payment, penalty, modification, amendment or termination, cancellation or acceleration with respect to, or loss or impairment of any right under, or require any authorization, consent, approval, exemption or other action by, notice to or filing with any court or other Governmental Authority under (i) the provisions of such Seller Party’s Organizational Documents, (ii) any Contract or instrument or Permit to which such Seller Party or its properties or assets is bound, or (iii) any Law, statute, rule or regulation or order, judgment or decree to which such Seller Party or its properties or assets are subject.
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2.2.3 The execution and delivery of this Agreement and the performance of this Agreement or any other Transaction Document by either Seller Party shall not require any Regulatory Approval.
2.2.4 This Agreement has been, and at the Closing, each Transaction Document to which a Seller Party is a party will be, duly executed and delivered by such Seller Party and assuming that this Agreement and each other Transaction Document is a valid and binding obligation of the other parties hereto and thereto, this Agreement and each other Transaction Document to which such Seller Party is a party constitutes a valid and binding obligation of such Seller Party, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
2.3 Title to Company Stock
The Cayman Seller has good and valid title to all of the Company Stock, free and clear of all Encumbrances, and is the sole owner of the Company Stock. No shares of Company Stock are subject to any Contract restricting or otherwise relating to the voting, transfer or other disposition of such Company Stock. The Company Stock constitutes one hundred percent (100%) of the issued and outstanding equity of the Company. At the Closing, good and valid title to all of the Company Stock shall vest in the Purchaser free and clear of all Encumbrances.
2.4 Actions
There is no Proceeding or Governmental Order pending or, to the Knowledge of the Seller Parties, threatened in writing, by or against either Seller Party or any of their respective Affiliates, that seeks to delay or prevent the consummation of the Transactions.
2.5 Compliance with Law
Each Seller Party is in compliance in all material respects with all Laws applicable to its business, except for violations which would not, individually or in the aggregate, prevent, impair or delay the consummation of the Transactions.
2.6 Brokerage
Other than fees or commissions for which the Seller Parties will be jointly and severally responsible, there are no claims for, and the Target Companies, the Purchaser and their respective Affiliates have no liability or obligation to pay, brokerage commissions, finders’ fees or similar compensation in connection with the Transactions or the Transaction Documents based on any arrangement or agreement made by or on behalf of either Seller Party for which the Target Companies, the Purchaser or any of their respective Affiliates is or may be liable.
2.7 Acquisition Proposals
Neither Seller Party is a party to or bound by any agreement with respect to any Acquisition Proposal (other than this Agreement) and each Seller Party has terminated all discussions with any third party (other than the Purchaser), if any, regarding any Acquisition Proposal.
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2.8 Shareholder Information
To the Knowledge of the Seller Parties, none of the information supplied or to be supplied by either Seller Party for inclusion or incorporation by reference in the Information Statement will, at the date the definitive Information Statement (or any amendment or supplement thereto) is first mailed or otherwise furnished to stockholders of the Purchaser or at the time the corporate actions contemplated by the Purchaser Stockholder Proposals are implemented, so long as such corporate action is taken on the twentieth (20th) calendar day following the date on which such definitive Information Statement is first mailed or otherwise furnished to stockholders of the Purchaser, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
2.9 CFIUS Control. There will be no change in CFIUS or, or a covered investment (within the meaning of (within the meaning of 31 C.F.R. § 800.211) in, the Company, the Surviving Company, or the Purchaser as a result of the Transactions. No Contract, Proceeding, insolvency event, foreclosure, conversion or exercise of any security, or other arrangement is pending or, to the Knowledge of the Seller Parties, threatened that would reasonably be expected to change which Persons have CFIUS Control over FFAI, FF Top Holding LLC, FF Global Partners LLC, or the Cayman Seller before the Closing.
2.10 Governance, Information and Other Rights.
2.10.1 Post-Closing Technical Access. After the Closing, no Seller Group Person will have access to Material Nonpublic Technical Information of any Target Company except:
(a) as set forth in Section 2.9.3 of the Seller Disclosure Schedule; and
(b) under the Transition Service Agreement, only to the extent strictly necessary to provide the services and subject to a technology control plan reasonably acceptable to the Purchaser.
2.11 HSR Act Matters.
No filing, notification or waiting period under the HSR Act is required in connection with the execution, delivery or performance of this Agreement or the consummation of the Transactions.
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Article III
Representations and Warranties Regarding the Target Companies
As a material inducement to the Purchaser to enter into this Agreement and to acquire the Company Stock from the Cayman Seller in accordance with the terms hereof, the Seller Parties hereby jointly and severally represent and warrant to the Purchaser that, except as set forth in the seller disclosure schedule in Schedule A (the “Seller Disclosure Schedule”) (with specific reference to the particular Section or subsection of this Article III to which the information set forth in such section of the Seller Disclosure Schedule relates; provided that, any information set forth in one section of the Seller Disclosure Schedule shall be deemed to apply to each other Section or subsection of this Article III to which its relevance is reasonably apparent):
3.1 Organization
3.1.1 Section 3.1.1 of the Seller Disclosure Schedule contains a complete and accurate list of the Target Companies, their jurisdictions of incorporation or organization and the direct and indirect ownership of each. Except as set forth on Section 3.1.1 of the Seller Disclosure Schedule, no Target Company owns or holds the right to acquire any share, partnership interest or joint venture interest or other equity ownership interest in any other partnership, corporation, organization or entity.
3.1.2 Each Target Company is duly incorporated, validly existing and in good standing (to the extent such concept is applicable in such jurisdiction) under the Laws of its jurisdiction of incorporation or organization set forth on Section 3.1.1 of the Seller Disclosure Schedule. The Target Companies have full corporate or other applicable entity power and authority and all authorizations, licenses and permits necessary to conduct their respective businesses as they are now being conducted, to own or use their respective properties and assets that each purports to own or use and to perform all their respective obligations under the contracts to which each is a party. Each Target Company is duly qualified to do business as an organization, and is in good standing (to the extent such concept is applicable in such jurisdiction), under the Laws of each jurisdiction in which either the ownership or use of the properties owned or used by them, or the nature of the activities conducted by them, requires such qualification.
3.1.3 The Seller Parties have made available to the Purchaser correct and complete copies of the certificates of incorporation, the memorandum and articles of association (or analogous governing documents), business licenses, certificates of approval (as applicable) of each Target Company, which documents reflect all amendments made thereto at any time before the date hereof. Such documents are in full force and effect. Correct and complete copies of the minute books containing the records of meetings of the shareholders and boards of directors (or analogous parties), and the register of members (or equivalent documents) of the Target Companies have been made available to the Purchaser.
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3.2 Share Capital and Related Matters
3.2.1 Section 3.2.1 of the Seller Disclosure Schedule sets forth the authorized Share Capital of each Target Company, the name of each Person holding any such Share Capital (including any options, warrants or other rights to purchase any equity securities or Share Capital) and any securities convertible or exchangeable into any equity securities or Share Capital of any Target Company and the amount and type of such securities held by such Persons as of the date hereof. Except for the Outstanding Options disclosed in Section 3.2.1 of the Seller Disclosure Schedule, no Target Company has any outstanding shares or securities convertible or exchangeable for any Share Capital or other ownership interest or containing any profit participation features, nor, except for such Outstanding Options, does any Target Company have any outstanding rights or options to subscribe for or to purchase its Share Capital or other ownership interest or any shares or securities convertible into or exchangeable for its Share Capital or other ownership interest or any share appreciation rights or phantom share plans. No Target Company is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Share Capital or other ownership interest or any warrants, options or other rights to acquire its Share Capital. All of the issued and outstanding Share Capital or other equity interests of the Target Companies are owned of record, free and clear of any Encumbrances. The Company Stock and the issued and outstanding Share Capital or other equity interests of the Target Companies have been duly authorized and are validly issued, fully paid and nonassessable and have not been issued in violation of any statutory or contractual preemptive rights or similar restrictions.
3.2.2 Except as set forth on Section 3.2.2 of the Seller Disclosure Schedule, there are no statutory or contractual rights of first refusal or similar rights or restrictions with respect to the sale of any Company Stock hereunder.
3.2.3 Neither any Target Company nor any Affiliate, representative, officer, employee, director or agent of any Target Company is a party to or is bound by any agreement (other than this Agreement) with respect to any Acquisition Proposal, and each of the Target Companies and Affiliate, representative, officer, employee, director or agent of the Target Companies has terminated all discussion with any third party (other than the Purchaser), if any, regarding any Acquisition Proposal.
3.2.4 All Share Capital of each of the Target Companies has been fully paid in accordance with the terms of the applicable investment documents, the articles of association (or equivalent documents) of each Target Company and applicable Law.
3.3 Authorization; No Breach; Valid and Binding Agreement
3.3.1 Each Target Company has all requisite corporate or other applicable entity power and authority to execute and deliver this Agreement and the Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance by a Target Company of this Agreement and other Transaction Documents to which it is a party, and the consummation of the Transactions have been duly and validly authorized by all requisite corporate or other applicable entity action, and no other corporate or other applicable entity actions or proceedings on its part are necessary to authorize the execution, delivery or performance of this Agreement and other Transaction Documents to which it is a party and the consummation of the Transactions.
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3.3.2 The execution, delivery and performance of this Agreement and other Transaction Documents by a Target Company to which it is a party, and the consummation of the Transactions do not and will not conflict with or result in any breach of, constitute a default (or an event that, with or without notice or lapse of time or both, would become a default) under, result in a violation of, result in the creation of any Lien upon any assets or properties of such Target Company under, give rise to any right of payment, penalty, modification, amendment or termination, cancellation or acceleration with respect to, or loss or impairment of any right under, or require any authorization, consent, approval, exemption or other action by, notice to or filing with any court or other Governmental Authority under (i) the provisions of the Organizational Documents of any Target Company, (ii) any Contract or Permit to which any Target Company or its properties or assets is bound, or (iii) any Law, statute, rule or regulation or order, judgment or decree to which such Target Company is subject or its or their respective properties or assets are subject.
3.3.3 The execution and delivery of this Agreement or any other Transaction Document by the Target Companies do not, and the performance of this Agreement or any Transaction Document by the Target Companies will not, require any Regulatory Approval except for the Regulatory Approvals listed in Section 3.3.3 of the Seller Disclosure Schedule.
3.3.4 This Agreement has been duly executed and delivered by the Company, and at the Closing each other Transaction Document to which a Target Company is a party will have been duly executed and delivered by such Target Company, and assuming that this Agreement and each Transaction Document is a valid and binding obligation of the other parties hereto, each Transaction Document (including this Agreement) to which a Target Company is a party constitutes a valid and binding obligation of such Target Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
3.4 Financial Statements
3.4.1 Section 3.4.1 of the Seller Disclosure Schedule contains true, correct and complete copies of the following financial statements: (i) unaudited consolidated or combined balance sheet of the Robotics Business as of December 31, 2025 (the “Balance Sheet Date”) and statements of income, changes in shareholder equity and cash flows for the period from January 1, 2025 through December 31, 2025 (the “2025 Annual Financial Statements”), (ii) unaudited consolidated or combined balance sheet of the Robotics Business as of June 30, 2026 and statements of income, changes in shareholder equity and cash flows for the six (6)-month period then ended (the “Interim Financial Statements”, and together with the 2025 Annual Financial Statements, the “Financial Statements”), and (iii) the methodology used in preparation of the Financial Statements to allocate costs and expenses between the Robotics Business and the other businesses of the Seller Parties and their Affiliates, including the allocation of corporate overhead and shared services. Operations of the acquired Robotics Business commenced on December 1, 2025. True and correct copies of the Financial Statements have been provided to the Purchaser. The Financial Statements have been based upon the information contained in the books and records relating to the Robotics Business, have been prepared in accordance with the Accounting Standards, consistently applied throughout the periods indicated, and present fairly and accurately in all material respects the financial position, cash flows and results of operations of the Robotics Business as of the times and for the periods referred to therein.
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3.4.2 The PCAOB Audited Financial Statements when delivered by the Company in accordance with Section 8.4 will, when so delivered, be based upon, in all material respects, the information contained in the books and records relating to the Robotics Business, be prepared in accordance with the Accounting Standards, consistently applied throughout the periods indicated (except as may be indicated in the notes thereto), and present fairly in all material respects the financial position, cash flows and results of operations of the Robotics Business as of the times and for the periods referred to therein.
3.4.3 The Target Companies have no material Liabilities, except (i) Liabilities specifically and adequately reserved for on the balance sheet as of the Balance Sheet Date contained in the Financial Statements in accordance with the Accounting Standards, (ii) Liabilities that were incurred after the Balance Sheet Date in the Ordinary Course of Business and not arising from any breach of Contract by any Target Company (none of which is resulting from a material breach of contract, breach of warranty, tort, infringement or misappropriation), or (iii) Liabilities specifically disclosed in Section 3.4.3 of the Seller Disclosure Schedule.
3.4.4 All books, records and accounts of the Target Companies are maintained in all material respects in accordance with applicable Laws. The Target Companies maintain internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed with management’s general or specific authorizations as necessary, (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with the Accounting Standards, (iii) to the extent applicable, material information relating to the Target Companies is promptly made known to the officers responsible for establishing and maintaining the system of internal control over financial reporting, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any material difference and (v) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which reasonably could adversely affect the Target Companies’ ability to record, process, summarize and report financial information, and any fraud (whether or not material) that involves management or other employees who have a significant role in the Target Companies’ internal control over financial reporting, are, to the extent necessary, adequately and promptly disclosed to the Target Companies’ independent auditors and any audit committees of any of the Target Companies’ respective boards of directors. Since the Look-back Date, no Target Company has identified or been advised by its auditors of any fraud or allegation of fraud, whether or not material, that involves management or other employees who have a role in the Target Companies’ internal controls over financial reporting.
3.5 Absence of Certain Developments
Since the Balance Sheet Date until the date hereof, there has not been any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, has had or is reasonably expected to have a Company Material Adverse Effect. Since the Balance Sheet Date, (a) the Target Companies have operated in the Ordinary Course of Business, and (b) no Target Company has taken any action that would have been prohibited by Section 8.1.3 if it were taken after the date hereof and prior to the Closing Date.
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3.6 Actions
There is no Proceeding or Governmental Order pending or, to the Knowledge of the Seller Parties and the Target Companies, threatened in writing, by or against any Target Company, that seeks to delay or prevent the consummation of the Transactions.
3.7 Title to Properties; Sufficiency
3.7.1 Each Target Company owns good and marketable title to, or holds pursuant to valid and enforceable leases, all of the material, tangible personal property, used or held for use by it in the conduct of its business, free and clear of all Liens, except for Permitted Liens.
3.7.2 Section 3.7.2 of the Seller Disclosure Schedule sets forth a list of all of the leases, licenses and subleases of real property to which any Target Company is a party to or bound by (each a “Lease” and, collectively, the “Leases”; each leased, licensed and subleased parcel of real property in which the Company or any of the Target Companies has a leasehold or subleasehold interest, the “Leased Real Property”). The Leases are in full force and effect, and a relevant Target Company holds a legal, binding, valid, enforceable and existing leasehold interest in each parcel or tract of real property leased by it under each such Lease, subject to proper authorization and execution of such lease by the other party and the application of any bankruptcy or creditor’s rights Laws. The Seller Parties delivered or made available to the Purchaser complete and accurate copies of each of the Leases described on Section 3.7.2 of the Seller Disclosure Schedule and none of such Leases have been modified in any material respect, except to the extent that such modifications are disclosed by the copies delivered or made available to the Purchaser. No Target Company’s possession and quiet enjoyment of the Leased Real Property under such Leases has been disturbed, and to the Knowledge of the Seller Parties and the Target Companies, there are no disputes with respect to such Leases. No Target Company, and to the Knowledge of the Seller Parties and the Target Companies, no other party to any such Leases, is in default, or has delivered or received any notice of default, under any of such Leases and no event has occurred that with notice or the passage of time, or both, would constitute a default, or permit the termination, modification or acceleration of rent under any such Leases. No Target Company has subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof. No Target Company has collaterally assigned or granted any other security interest in such Leases or any interest therein.
3.7.3 No Target Company owns any real property.
3.7.4 Subject to the services to be provided pursuant to the Transition Service Agreement and the software and technology identified in Section 3.11.2 of the Seller Disclosure Schedule and licensed pursuant to the Intellectual Property License Agreements, the assets of the Target Companies to be acquired by the Purchaser in connection with the consummation of the Transactions are sufficient for the Target Companies to conduct the Business from and after the Closing Date, without interruption and in the Ordinary Course of Business, as it has been conducted by FFAI and the Target Companies prior to the Closing Date.
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3.8 Solvency
Immediately prior to and after giving effect to the consummation of the Transactions (including any financings being entered into in connection therewith), (i) the Fair Value (as defined below) of the assets of the Target Companies, on a consolidated basis, shall be greater than the total amount of the liabilities of the Target Companies (including all liabilities, whether or not reflected in a balance sheet prepared in accordance with the Accounting Standards, and whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed), on a consolidated basis; (ii) the Target Companies, on a consolidated basis, shall be able to pay their debts and obligations in the Ordinary Course of Business as they become due; and (iii) the Target Companies, on a consolidated basis, shall be able to have adequate capital to carry on their businesses and all businesses in which they are about to engage. For the purposes of this Section 3.8, “Fair Value” means the amount at which the assets (both tangible and intangible), in their entirety, of the Target Companies would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
3.9 Taxes
3.9.1 Each Target Company has timely filed or caused to be timely filed (taking into account applicable extensions) with the appropriate taxing authorities all income and all other material Tax Returns that are required to be filed by it, and all such Tax Returns are true, correct and complete in all material respects. All income and other material Taxes due and payable by the Target Companies (whether or not shown on any such Tax Return) have been duly and timely paid. Each Target Company has properly deducted, withheld and collected and timely remitted to the appropriate taxing authorities all Taxes required to be deducted, withheld or collected in respect of any amounts paid or owing to, or received or owing from, any employee, creditor or other third party, and has complied in all material respects with all Laws relating to payment, reporting, withholding, and collection of Taxes or remittance thereof.
3.9.2 The unpaid Taxes of the Target Companies (A) did not, as of the Balance Sheet Date, exceed the reserve for Tax liabilities (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Financial Statements and (B) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Target Companies in filing their Tax Returns. No Target Company has incurred any material liability for Taxes since the Balance Sheet Date, other than in the Ordinary Course of Business and consistent with amounts incurred and paid with respect to the most recent comparable prior period.
3.9.3 No Target Company (i) is or has been a member of an affiliated, consolidated, combined, unitary or similar Tax group (including, for clarity, any affiliated group within the meaning of Section 1504 of the Code (or any similar provision of state, local or non-U.S. Law)) for purposes of filing any Tax Return or paying Taxes, other than a group the common parent of which is FFAI, or (ii) has any liability for Taxes of any Person (other than any Target Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by Contract (other than customary indemnification provisions contained in commercial Contracts entered into in the Ordinary Course of Business, the principal purpose of which is not related to Taxes) or otherwise.
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3.9.4 There are no audits, disputes, investigations, claims, inquiries, examinations or other proceedings (whether civil, criminal, judicial, or administrative) with respect to any income Tax Return or other material Tax Return or income Taxes or other material Taxes of any Target Company pending, in progress, threatened in writing, or, to the Knowledge of the Seller Parties and the Target Companies, otherwise threatened, and there have not been any such audits, disputes, investigations, claims, inquiries, examinations or other proceedings within the past four years. No Target Company has received any written notice from any taxing authority of any Tax deficiency, assessment, adjustment, proposed adjustment, or other issue relating to any income Tax Return or other material Tax Return or income Taxes or other material Taxes, which has not been paid or otherwise resolved in full.
3.9.5 In the past six years, no written claim has been made by a Governmental Authority in any jurisdiction in which any Target Company does not file a Tax Return or pay Taxes that such entity is or may be subject to taxation or required to file Tax Returns in such jurisdiction. To the Knowledge of the Seller Parties and the Target Companies, no Target Company has, in the past six years, had a permanent establishment (within the meaning of an applicable Tax treaty or convention between the United States and such country, if any) or other taxable presence in any country other than a country in which it is incorporated, is resident for Tax purposes or is otherwise subject to Tax on a net income basis.
3.9.6 No Target Company has entered into an agreement or granted a waiver that is currently in effect or will be in effect after the date hereof or been requested to enter into an agreement or grant a waiver that could be in effect after the date hereof extending any statute of limitations or any period of time with respect to the payment, assessment or collection of any Taxes or the examination of any Tax Return. No Target Company is currently the beneficiary of any extension of time within which to file any Tax Return, other than extensions of time to file Tax Returns obtained in the Ordinary Course of Business.
3.9.7 There are no Liens for Taxes upon any of the Company Stock or any asset of any Target Company other than Permitted Liens; provided that, all Permitted Liens for or in respect of Taxes, other than statutory liens for real or personal property Taxes that are not yet due and payable or due and payable but not yet delinquent, are set forth in Section 3.9.7 of the Seller Disclosure Schedule.
3.9.8 No Target Company is a party to, or has any liability under, any Tax allocation, sharing, indemnification or similar Contract or arrangement or any other Contract or arrangement providing for payments in respect of Taxes or Tax benefits (other than customary indemnification provisions contained in commercial Contracts entered into in the Ordinary Course of Business, the principal purpose of which is not related to Taxes).
3.9.9 No Target Company will be required to include any amount in taxable income, or exclude any deduction in determining taxable income, for any taxable period (or portion thereof) beginning after the Closing Date as a result of: (i) any change in or use of an improper method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date or any adjustment pursuant to Section 481 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law); (ii) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) entered into on or prior to the Closing Date; (iii) any installment sale or open transaction disposition made prior to the Closing Date; (iv) any deferred revenue accrued, any advanced amount, or any prepaid amount received, or paid, on or prior to the Closing Date; or (v) any intercompany transaction or “excess loss account” described in the Treasury Regulations and/or under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) or applicable transfer pricing Laws in such Target Company’s jurisdiction of residence.
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3.9.10 The Target Companies are registered for value-added Tax, goods, sales, and services Taxes or any similar Tax in each jurisdiction where any of them are required to be so registered and have complied, in all material respects, with all Laws related to such Taxes, including any obligation to collect and remit any such Taxes in respect of sales or services provided by any Target Company. For any sales or services that are exempt from sales, use, value added, goods and services, or similar Taxes, or that were made without charging or remitting any such Taxes, the Target Companies have received and retained any appropriate Tax exemption certificates and other documentation qualifying such sale or service as exempt.
3.9.11 There are no Tax rulings, requests for rulings, technical advice memoranda, closing agreements or similar agreements or rulings relating to Taxes that have been requested or issued to or with respect to the Target Companies or into which any Target Company has entered into that would be binding on any Target Company in any taxable period (or portion thereof) after the Closing Date. No Target Company is the beneficiary of any Tax holidays, concessions, exemptions, incentives, credits, rebates or similar arrangements or agreements. No Target Company has granted a power of attorney with respect to Taxes that is currently in effect.
3.9.12 All material transactions between or among the Target Companies have complied in all material respects with transfer pricing Laws and have been and continue to be on arm’s-length terms for purposes of such transfer pricing Laws. All related documentation required by such Laws has been timely prepared or obtained and, if necessary, retained, in each case, in all material respects.
3.9.13 No Target Company organized or formed under the laws of a jurisdiction outside of the United States is a “surrogate foreign corporation” or “expatriated entity” within the meaning of Section 7874 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) or is treated as a U.S. corporation for U.S. federal Tax purposes by reason of the application of Sections 269B or 7874(b) of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law).
3.9.14 No Target Company is, or has been in the past six years, or is a shareholder in, a passive foreign investment company as defined in Section 1297 of the Code.
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3.9.15 No Target Company is, or has been in the past six years, a U.S. real property holding corporation (as defined in Section 897(c)(2) of the Code).
3.9.16 Section 3.9.16 of the Seller Disclosure Schedule sets forth the U.S. federal Tax classification of each Target Company since formation and each election made with respect to it pursuant to Treasury Regulations Section 301.7701-3.
3.9.17 Except as set forth on Section 3.9.17 of the Seller Disclosure Schedule, no Target Company owns, directly or indirectly, any shares of capital stock or other equity interests in any corporation, limited liability company, partnership, joint venture, or other entity.
3.9.18 No Target Company has been a party to any “listed transaction” or failed to report any “reportable transaction” as such terms are defined in Section 6707A(c) of the Code and Treasury Regulations Section 1.6011-4(b) and as such reporting is required pursuant thereto.
3.9.19 No Target Company has been a party to any transaction treated by the parties as a distribution of stock qualifying under Section 355 of the Code in the five years prior to the date of this Agreement.
3.9.20 Less than fifty percent (50%) of the value of the Company’s total assets (after excluding cash, cash items (including receivables), and government securities for purposes of computing total assets) consists of stock or securities (within the meaning of Section 368(a)(2)(F)(vii) of the Code). For purposes of this representation, any stock and securities of any subsidiary corporation of the Company (within the meaning of Section 368(a)(2)(F)(iii) of the Code) are disregarded and the Company is deemed to own its ratable share of such subsidiary corporation’s assets. The Company is not otherwise an “investment company” within the meaning of Section 368(a)(2)(F)(iii) of the Code.
3.10 Contracts and Commitments
3.10.1 Except as expressly contemplated by this Agreement or as set forth in Section 3.10.1 of the Seller Disclosure Schedule or in the Seller SEC Reports, no Target Company is a party to or bound by any of the following Contracts, whether written or oral (each a “Material Contract”):
(a) collective bargaining agreement or any other Contract with any labor union;
(b) any Contracts with any Governmental Authorities;
(c) Contract, agreement or indenture relating to any indebtedness or to mortgaging, pledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, any Target Company has incurred or may incur indebtedness exceeding US$2,500,000 for which any Target Company will be liable following the Closing, or (B) relating to any Liens on assets of any Target Company;
(d) guaranty of any indebtedness or other material guaranty;
(e) Contract, lease or agreement under which it is lessee of, or holds, uses or operates any real or personal property or assets owned by any other party, for which the annual rental or payment commitment exceeds US$2,500,000;
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(f) Contracts or group of related Contracts with any customer for which calendar year of 2026 sales exceeded US$1,000,000 or any supplier for which calendar year of 2026 spending exceeded US$1,000,000;
(g) Contracts or agreements relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company since the Look-back Date or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company or, pursuant to which any Target Company has any continuing “earn out” or other contingent payment obligations or any surviving material indemnification obligations;
(h) joint venture, partnership, limited liability company or similar agreement with any third party (including any agreement providing for joint development or marketing);
(i) (A) Contract pursuant to which any Target Company licenses, or is otherwise permitted by a third party to practice, use or register, or receive any other rights under, any material Intellectual Property Rights (other than “shrink wrap licenses,” “click through” licenses and licenses to off-the-shelf Software on standard commercial terms with fees of less than US$1,000,000 per year), (B) Contract pursuant to which a third party licenses, or is permitted to use or register, or granted any other rights under, any Company-Owned IP Rights (other than non-exclusive licenses granted to customers in the Ordinary Course of Business), or (C) Contract affecting any Target Company’s ability to use, enforce, or disclose any material Intellectual Property Rights, such as covenant-not-to-sue, coexistence, consent-to-use, concurrent use, or settlement agreements;
(j) distribution, sales representative, marketing or similar Contract or agreement that required any Target Company to make commission payments under such agreement in excess of US$1,000,000 during the twelve (12)-month period ended on the Balance Sheet Date;
(k) Contract or agreement pursuant to which any Target Company would be required to make, in the aggregate, capital expenditures in excess of US$2,500,000;
(l) Contract or agreement that (A) limits or purports to limit the ability of any Target Company to compete in any line of business or with any product or with any Person or in any geographic area or market or during any period of time or (B) contains covenants that restrict the business activity of any Target Company in any material respect (other than non-disclosure agreements entered into in the ordinary course of business, consistent with past practice);
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(m) Contract or agreement that contains “most-favored-nation” obligations or restrictions, or rights of first refusal or offer or any similar requirement or right, in each case binding any Target Company in favor of any third party;
(n) Contract or agreement where any Target Company is subject to a requirement of exclusive dealing or any similar exclusivity obligation;
(o) any interest, currency or hedging derivatives or similar Contracts;
(p) Contract or agreement that limits the incurrence of indebtedness or the declaration or payment of any dividends or other distributions;
(q) Contract or agreement that involves payment to or by any Target Company in excess of US$1,000,000 annually;
(r) Contract or agreement whose termination (other than those terminating by passage of time) would reasonably be expected to have a Company Material Adverse Effect;
(s) employment, severance or consulting Contract that is not terminable at will by any Target Company and which will require the payment of amounts by any Target Company after the date hereof in excess of US$1,000,000 in total compensation annually; or
(t) Contract or agreement that relates to the settlement of any Proceeding (A) with any Governmental Authority since the Look-back Date, (B) that materially restricts or imposes obligations upon any Target Company or (C) requires payment by any Target Company of more than US$2,500,000 after the date hereof.
3.10.2 The Purchaser either has been supplied with, or has been given access to, a true and correct copy of all Material Contracts, together with all supplements, amendments, waivers or other changes thereto.
3.10.3 Neither any Target Company nor, to the Knowledge of the Seller Parties and the Target Companies, any other party thereto is in material breach of, violation of or default under any Material Contract. No event has occurred that with notice or lapse of time or both would constitute a material breach of, violation of or default under, any Material Contract by any Target Company, or, to the Knowledge of the Seller Parties and the Target Companies, any counterparty. All Material Contracts are valid and in full force and effect and constitute legal, valid and binding obligations of the applicable Target Company and each counterparty, and are enforceable against the applicable Target Company and the counterparty thereto in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
3.11 Intellectual Property Rights; Information Technology; Privacy
3.11.1 Section 3.11.1 of the Seller Disclosure Schedule sets forth a list of (i) all Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, included in the Company-Owned IP Rights (the “Company Registered IP”) and (ii) material unregistered Marks and material Software included in the Company-Owned IP Rights.
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3.11.2 None of the Company-Owned IP Rights is subject to any Governmental Order adversely affecting the use thereof or rights thereto by the Target Companies in any material respect. There is no Proceeding pending or, to the Knowledge of the Seller Parties and the Target Companies, threatened against any Target Company concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Target Companies have not received any written notices regarding the foregoing.
3.11.3 Since the Look-back Date, there has been, and there is, no infringement or misappropriation, or other violation by a third party, or written allegation made by any Target Company thereof, of any Company-Owned IP Rights.
3.11.4 To the Knowledge of the Seller Parties and the Target Companies, the operation of the Business, as currently conducted as of the date hereof and as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No written notice has been received since the Look-back Date alleging that the operation of the Business infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person. There is no Proceeding pending or, to the Knowledge of the Seller Parties and the Target Companies, threatened against any Target Company alleging that the operation of the business of any Target Company has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third party. No Target Company has received any written notice regarding the foregoing (including any unsolicited demand or request from a third party that any Target Company license any Intellectual Property Rights).
3.11.5 The Target Companies have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under the direction or supervision of, the Target Companies (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Target Companies do not otherwise own by operation of law. No Contributor owns or, to the Knowledge of the Seller Parties and the Target Companies, claims any rights, licenses, claims or interest whatsoever with respect to any such Intellectual Property Rights. Without limiting the foregoing, Affiliates of the Seller Parties have obtained written and enforceable Contracts, forms of which have been provided to the Purchaser, with respect to protection of proprietary information and invention disclosure and assignments of such Intellectual Property Rights, from all current and former Contributors.
3.11.6 The Target Companies have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP Rights, and to the Knowledge of the Seller Parties and the Target Companies, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Target Companies have entered into reasonable confidentiality agreements with each Person having access to the Target Companies’ Trade Secrets. To the Knowledge of the Seller Parties and the Target Companies no such Person is in violation of any such agreement.
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3.11.7 No Target Company has combined Open Source Software with any Software, the copyright in which is owned by any Target Company and which is material to the Target Companies (the “Company Software”), and distributed such combined Software such that such Company Software would become subject to the terms of the license under which such Open Source Software is licensed in a manner or relation that has or would require any public distribution of any such Software, create obligations for any Target Company to grant, or purport to grant, to any third party any rights or immunities under any Company-Owned IP Rights (including any patent non-asserts or patent licenses), or impose any present economic limitations on any Target Company’s commercial exploitation thereof. The Target Companies are in material compliance with the terms and conditions of all relevant licenses for Open Source Software used by the Target Companies, including notice and attribution obligations. No Target Company has delivered, licensed or made available, or is under a duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any Company Software to any escrow agent or other Person who is not an employee or consultant acting on behalf of any Target Company subject to a valid and enforceable confidentiality agreement.
3.11.8 The Company’s Software systems (the “Company Systems”) (i) do not, to the Knowledge of the Seller Parties, contain any malware or security vulnerability that would reasonably be expected to interfere with the ability of the Target Companies to conduct their business in any material respect or present a material risk of unauthorized access, disclosure, use, corruption, or loss of any Personal Information or other material non-public information, and (ii) since the Look-back Date, have not been affected by any material failure, breakdown, persistent substandard performance or unauthorized access or use that has not been remediated in all material respects as of the date hereof. The Target Companies (x) have taken commercially reasonable steps to audit the Company Systems for malware and security vulnerabilities, and such audits have not identified any material issues that remain unremediated in any material respect; and (y) have not been notified in writing of, and to the Knowledge of the Seller Parties and the Target Companies there are not any, material cybersecurity or data and information security deficiency with respect to the Company Systems (including in any Company Systems audit or by any Governmental Authority or other third Person) that has not been remediated in all material respects as of the date hereof. The Company Systems are sufficient for the immediate and currently anticipated future needs of the Target Companies, including as to capacity, scalability and ability to process current and anticipated peak volumes in a timely manner, and are in sufficiently good working condition to effectively perform all information technology operations and include a sufficient number of license seats for all Software as necessary for the operation of the business of the Target Companies as currently conducted.
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3.11.9 The Seller Parties (i) have implemented and comply with commercially reasonable written data and information security, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and (ii) have taken commercially reasonable steps to assess and test such plans and procedures on no less than an annual basis, and such assessments and tests have not identified any material issues that remain unremediated.
3.11.10 The Seller Parties (and any third Person using Personal Information on their behalf) comply in all material respects with their respective internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal Information), the Seller Parties’ Contracts, and applicable Privacy Laws, including by providing and making accessible a privacy statement and terms of use regarding the receipt, collection, retention, storage, protection, security, use, disclosure, distribution, transmission, analysis, monitoring, maintenance, modification, processing and disposal (collectively, “use”) of all Personal Information used by the Seller Parties to individuals from whom such Personal Information was collected or to whom such Personal Information relates. Since the Look-back Date, no Seller Party has received any written claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements regarding the Seller Parties, or the Seller Parties’ information practices or the use of any Personal Information, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from any Governmental Authority and there is no Proceeding pending, or, to the Knowledge of the Seller Parties, threatened against any Seller Party relating to any of the foregoing. Since the Look-back Date, neither any Seller Party, nor any Person to whom any Seller Party has provided Personal Information or processes such Personal Information on behalf of any Seller Party, has been subject to any breach or unauthorized access to or use, disclosure or destruction of, Personal Information used by any Seller Party. The Seller Parties have (i) taken appropriate actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Information used by the Seller Parties against any unauthorized use, access or disclosure and (ii) entered into written agreements with all third-party service providers, outsources, processors or other third Persons who use Personal Information on behalf of the Seller Parties that obligate such Persons to comply with all applicable Privacy Laws and to take steps to protect and secure Personal Information from loss, theft, misuse or unauthorized use, access, modification or disclosure (and to the Knowledge of the Seller Parties, no such Person has violated any such agreement).
3.11.11 Each Seller Party has cybersecurity and data breach insurance that is adequate and suitable in respect of the Company Systems and the nature and volume of Personal Information and other non-public information that any of them (or a third Person on behalf of any of them) uses.
3.12 Government Licenses and Permits
The Target Companies hold all Permits that are required by any Governmental Authority to conduct the business as now conducted and all such Permits are valid and in full force and effect, except where the failure to hold any such Permit or where the failure of such Permit to be valid and in full force and effect would not be material to the Business. The Business is in compliance, in all material respects, and has been, since the Look-back Date, in compliance, in all material respects, with all material Permits that are required by any Governmental Authority to conduct the business as now conducted. Section 3.12 of the Seller Disclosure Schedule contains a complete listing of all such Permits. No written notice has been received from any Governmental Authority or any other Person regarding (A) any actual or alleged violation of or failure to comply with any term or requirement of any Permit, or (B) any actual or proposed revocation, withdrawal, suspension, cancellation, termination of, or modification to any Permit, except where such occurrence would not be material to the business. To the Knowledge of the Seller Parties and the Target Companies, no facts, circumstances or conditions exist that would reasonably be expected to cause any material Permit not to be renewed in the ordinary course by any applicable Governmental Authority.
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3.13 Litigation
Since the Look-back Date, there have been no, and there currently are no, material Proceedings, pending or, to the Knowledge of the Seller Parties and the Target Companies, threatened against the Target Companies, at law or in equity, before or by any Governmental Authority, and no Target Company is subject to any material outstanding judgment, order, investigation, decree, injunction, ruling, decision or award of any court or any other Governmental Authority. The Business is not, and since the Look-back Date, has not been, subject to any material Proceeding, at law or in equity, before or by any Governmental Authority, with respect to any products or services that are marketed, advertised, offered or sold on their behalf on any theory, including product liability, defect, failure to warn, breach of representation or warranty or indemnity, other than individual customer complaints in the Ordinary Course of Business that were resolved without material cost or liability.
3.14 Brokerage
There are no claims for, and the Target Companies have no liability or obligation to pay, brokerage commissions, finders’ fees or similar compensation in connection with the Transactions or the Transaction Documents based on any arrangement or agreement made by or on behalf of any Target Company for which such Target Company is or may be liable.
3.15 CFIUS Matters; U.S. Business Activities.
3.15.1 Prior reviews. Since the inception of the Business, none of the Target Companies, the Business, or, with respect to the Business, any Seller Party has: (a) been a party to any transaction that was the subject of a CFIUS declaration or notice, a CFIUS review, or a CFIUS inquiry (including a non-notified transaction inquiry); (b) been subject to any CFIUS mitigation agreement, national security agreement, letter of assurance, interim order, or condition; (c) held a facility or personnel security clearance under 32 C.F.R. Part 117, or been subject to any Foreign Ownership, Control or Influence mitigation or negation instrument; or (d) received any inquiry under 15 C.F.R. Part 791 (information and communications technology and services supply chain), or any inquiry from Team Telecom. To the Knowledge of the Seller Parties, no facts exist that would reasonably be expected to give rise to any of the foregoing.
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3.15.2 Critical infrastructure. No Target Company performs any function listed in Appendix A to 31 C.F.R. Part 800 with respect to Covered Investment Critical Infrastructure.
3.16 Export Controls; Critical Technologies.
3.16.1 No Critical Technologies. No Target Company produces, designs, tests, manufactures, fabricates, or develops any Critical Technology.
3.16.2 Export compliance. Since the Look-back Date: the Business has complied with all Export Control Laws and Sanctions; no export, reexport, transfer, or release has been made without a required authorization, including any deemed export to foreign-national employees, contractors, or Seller Group Persons; and there has been no voluntary disclosure, investigation, or penalty relating to the Business under Export Control Laws or Sanctions.
3.16.3 No ITAR. No Target Company is, or is required to be, registered with the Directorate of Defense Trade Controls. No Target Company possesses any defense article or technical data controlled under the USML.
3.16.4 Restricted parties. None of the following is identified on, or is fifty percent (50%) or more owned by one or more Persons identified on, the Entity List, the Military End-User List, the Unverified List, the Denied Persons List, the SDN List, the NS-CMIC List, the Section 1260H list, the FCC Covered List, or the UFLPA Entity List: any Target Company; any Seller Group Person; any Top Customer; or any Top Supplier.
3.17 Sensitive Personal Data; Data Security.
3.17.1 CFIUS data thresholds. No Target Company: (a) maintains or collects, or has a demonstrated business objective to maintain or collect, identifiable data within the categories of 31 C.F.R. § 800.241 on more than one million individuals; or (b) targets or tailors products or services to any U.S. Government agency or military department with intelligence, national security, or homeland security responsibilities, or to its personnel or contractors.
3.17.2 Data Security Program Rule. Neither any Target Company nor any Seller Party (with respect to the Business) has engaged in any covered data transaction with a country of concern or covered person involving bulk U.S. sensitive personal data or government-related data. For reference, the bulk thresholds include biometric identifiers on more than 1,000 U.S. persons and precise geolocation data on more than 1,000 devices; the rule took effect April 8, 2025.
3.18 Government Contracts; Federal Funding; Security.
3.18.1 Government contracts and funding. No Target Company is, or since the Look-back Date has been, a party (as prime contractor or subcontractor at any tier) to any: Government Contract or bid; SBIR or STTR award; other transaction agreement (OTA) or cooperative research and development agreement (CRADA); grant; or federally funded university subaward.
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3.18.2 No CUI or DFARS obligations. No Contract of any Target Company includes DFARS 252.204-7012 or 252.204-7021, FAR 52.204-21, or any other obligation to handle Controlled Unclassified Information or covered defense information. No Target Company possesses Controlled Unclassified Information or classified information.
3.18.3 Section 889. No Robotics Product uses or incorporates covered telecommunications equipment or services within the meaning of Section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 and FAR 52.204-25.
3.19 Insurance
All material policies of insurance maintained by or on behalf of each Target Company (the “Insurance Policies”) are set forth on Section 3.19 of the Seller Disclosure Schedule and true and complete copies of such policies have been provided to the Purchaser. All such Insurance Policies are, and since the Look-back Date have been, in full force and effect and all premiums due and payable in respect thereof have been timely paid and no written notice of cancellation, termination, material amendment or denial of coverage has been received by any Target Company with respect to any such policy. All such Insurance Policies and all fidelity bonds maintained by the Target Companies are in full force and effect and no Target Company is in material default with respect to the provisions of any such policies and its payment obligations under any such policies. There is no claim pending under such Insurance Policies as to which any Target Company has received written notice that coverage has been denied.
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3.20 Employees
No Target Company has experienced any, nor to the Knowledge of the Seller Parties and the Target Companies, has there been any threatened, strike, work stoppage, unfair labor practice charge, labor grievance, labor arbitration, lockout, slowdown, picketing, handbilling or other material labor dispute, in each case since the Look-back Date. None of the employees of the Target Companies are represented by any union, works council, labor organization, employee association or representative with respect to their employment with any Target Company. Since the Look-back Date, (a) to the Knowledge of the Seller Parties and the Target Companies, there has been no labor organizing effort pending or threatened with respect to employees of any Target Company and (b) no union, works council, labor organization, employee association or representative or group of employees of the Target Companies has made a demand for recognition or certification, and there have been no representation or certification proceedings or petitions seeking representation pending before any labor relations tribunal or authority or any other Governmental Authority. No Target Company is party to or otherwise bound by any collective bargaining agreement or bargaining relationship with any union, works council, labor organization, employee representative or association and no collective bargaining agreements are currently being negotiated by any Target Company. Since the Look-back Date, the Target Companies have been in material compliance with all applicable Laws respecting labor and employment, including Laws respecting terms and conditions of employment, occupational safety and health requirements, wages and hours (including the classification of independent contractors and exempt and non-exempt employees), meal and rest breaks, withholding of Taxes, employment discrimination, harassment, retaliation, equal opportunity, classification of workers, immigration, whistleblowing, disability rights or benefits, employee trainings and notices, employee leave issues, paid time off, affirmative action, plant closures and layoffs, workers’ compensation, unemployment insurance, and related matters. Except as would not result in material Liability for any Target Company: (i) the Target Companies have, since the Look-back Date, properly classified each of its current and former employees, officers, consultants, independent contractors, and directors, as “employees” or “independent contractors” and, if applicable, as “exempt” or “non-exempt” for all purposes (including with respect to eligibility for minimum wage and overtime under applicable Laws) and have properly reported all compensation paid to such persons for all purposes, and (ii) the Target Companies have fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, severance and termination payments, fees, and other compensation that have come due and payable to their current or former employees and independent contractors under applicable Law, Contract or company policy. To the Knowledge of the Seller Parties and the Target Companies, no current or former employee or independent contractor of any Target Company is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, nonsolicitation agreement, restrictive covenant or other obligation: (i) owed to any Target Company; or (ii) owed to any third party with respect to such person’s right to be employed or engaged by any Target Company. To the Knowledge of the Seller Parties and the Target Companies, no current employee of any Target Company with annualized salary at or above US$500,000, intends to terminate his or her employment prior to the one (1) year anniversary of the Closing. The Target Companies have promptly, thoroughly and impartially investigated all sexual harassment, or other discrimination, retaliation or policy violation allegations of which any of them is or was aware since the Look-back Date. With respect to each such allegation with potential merit, the Target Companies have taken prompt corrective action that is reasonably calculated to prevent further improper action. The Target Companies do not reasonably expect any material Liability with respect to any such allegations and are not aware of any allegations relating to officers, directors, employees, contractors, or agents of the Target Companies, that, if known to the public, would bring the Target Companies into material disrepute. No employee layoff, facility closure or shutdown, reduction-in-force, furlough, temporary layoff, material work schedule change or reduction in hours, or reduction in salary or wages, or other workforce changes affecting employees of any Target Company has occurred since the Look-back Date or is currently contemplated, planned or announced.
3.21 Compliance with Laws
3.21.1 The Business is being conducted, and since the Look-back Date has been conducted, in compliance in all material respects with all applicable Laws of any Governmental Authority. Since the Look-back Date, neither Seller Party nor any Target Company has received any written notice of any Proceeding against any of them alleging any failure to comply with any applicable Law relating to the Business.
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3.21.2 Since the Look-back Date, relating to the Business, (i) neither Seller Party nor any Target Company has violated any Law relating to anti-bribery or anticorruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended and as in effect at the time of such action (all such Laws, “Anticorruption Laws”), (ii) no director, officer, or employee, or, to the Knowledge of the Seller Parties and the Target Companies, representative, consultant or other Person acting for or on behalf of any Target Company has violated any Anticorruption Law, and (iii) no director, officer, or employee, or, to the Knowledge of the Seller Parties and the Target Companies, representative, consultant or other Person acting for or on behalf of either Seller Party or any Target Company has been the subject of any investigation, inquiry, or enforcement proceeding by any court, governmental, administrative or regulatory body, or any customer regarding any violation or alleged violation of any Anticorruption Law, and no such investigation, inquiry or proceeding is pending or, to the Knowledge of the Seller Parties and the Target Companies, threatened and there are no circumstances likely to give rise to any such investigation, inquiry or proceeding. Each Target Company has adopted and maintains adequate policies, procedures and controls to comply with all applicable Anticorruption Laws in all material respects, including policies and procedures relating to prevention of bribery, accounting for financial transactions, due diligence on third parties and training of personnel.
3.21.3 Since the Look-back Date, neither any Target Company, nor any director, officer or managing employee of any Target Company has been a Sanctioned Person.
3.22 Environmental and Safety Matters
3.22.1 The Business is being conducted, and since the Look-back Date has been conducted, in compliance with all applicable environmental, health or safety Laws, except where the failure to comply would not be material to the Target Companies.
3.22.2 The Target Companies have obtained and possess all material permits, licenses and other authorizations required under all applicable environmental, health or safety Laws for the operations of the Target Companies as currently conducted and are in compliance with all terms and conditions of such permits, licenses and authorizations in all material respects.
3.22.3 There are no suits or Proceedings pending or, to the Knowledge of the Seller Parties and the Target Companies, threatened against any Target Company, pursuant to applicable environmental, health or safety Laws that would be material to the Target Companies.
3.22.4 No Target Company is subject to any outstanding judgment, order or decree of any Governmental Authority relating to a violation of, or Liability under applicable environmental, health or safety Laws, and that would be material to the Target Companies.
3.22.5 No Target Company has received, since the Look-back Date, any written notice, report or other information indicating that it may be in violation of any environmental, health or safety matters or may have any liabilities for site investigation, cleanup, corrective action or related obligations.
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3.22.6 There are no underground storage tanks, asbestos containing materials or equipment containing polychlorinated biphenyls at any of the properties owned, leased or operated by any Target Company.
3.22.7 No Target Company has released any hazardous substance into the environment in violation of environmental laws or in a manner that would reasonably be expected to result in material liability under environmental laws, and to the Knowledge of the Seller Parties and the Target Companies, no other Person has released any hazardous substance into the environment at any property currently owned or operated by the Target Companies in violation of environmental laws or in a manner that would reasonably be expected to result in material liability to the Target Companies under environmental laws.
3.22.8 No Target Company has assumed any liabilities of any other Person under any applicable environmental, health or safety laws.
3.22.9 The Seller Parties (or the Company on their behalf) have made available to the Purchaser all environmental audits, assessments and reports, in each case relating to the past or current properties, facilities or operations of the Target Companies, which are in their possession or under their reasonable control.
3.23 Customers
Section 3.19 of the Seller Disclosure Schedule sets forth a complete and accurate list of the top ten customers of the Business based on calendar year of 2026 sales on a consolidated basis (the “Top Customers”). Since the Look-back Date, no notice has been received from any Top Customer to the effect that such customer will stop, or materially decrease the rate of, or seek to make a material change to the terms (whether related to payment, price or otherwise) with respect to, purchasing products relating to the Business.
3.24 Affiliated Transactions
Other than as disclosed on Section 3.21 of the Seller Disclosure Schedule or as disclosed in the Seller SEC Reports, none of the Seller Parties, any equityholder, partner, member, officer, director, employee or any Affiliate of either Seller Party (other than any Target Company) or any officer, director, manager, equityholder or Affiliate of any Target Company or any individual in the immediate family of any of the foregoing, is a party to any arrangement, agreement, Contract, commitment or transaction with or owes any money to any Target Company or has any interest in any material property, asset or right, tangible or intangible, used by the Target Companies, or has any material interest in a Person party to any arrangement, agreement, Contract, commitment or transaction with any Target Company.
3.25 Investment Company Act
No Target Company is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of a person subject to registration and regulation as an “investment company”, in each case within the meaning of the U.S. Investment Company Act of 1940.
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3.26 Company Information
To the Knowledge of the Seller Parties, the information relating to any Target Company supplied by the Company for inclusion in the Information Statement will not, as of the date on which the definitive Information Statement (or any amendment or supplement thereto) is first mailed or otherwise furnished to stockholders of the Purchaser or, so long as such corporate action is taken on the twentieth (20th) calendar day following the date on which such definitive Information Statement is first mailed or otherwise furnished to stockholders of the Purchaser, at the time the corporate actions contemplated by the Purchaser Stockholder Proposals are implemented, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
Article
IV
Representations and Warranties Regarding the Purchaser
As a material inducement to the Seller Parties to enter into this Agreement and for the Cayman Seller to sell the Company Stock to the Purchaser in accordance with the terms hereof, the Purchaser hereby represents and warrants to the Seller Parties that, except as set forth in the purchaser disclosure schedule in Schedule B (the “Purchaser Disclosure Schedule”) (with specific reference to the particular Section or subsection of this Article IV to which the information set forth in such section of the Purchaser Disclosure Schedule relates; provided that, any information set forth in one section of the Purchaser Disclosure Schedule shall be deemed to apply to each other Section or subsection of this Article IV to which its relevance is reasonably apparent):
4.1 Organization
The Purchaser is an entity duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation, and has all requisite power and authority and all authorizations, licenses and permits necessary to own, lease and operate its properties and to carry on its businesses as now conducted and is qualified to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification. The Purchaser is not in breach of its Organizational Documents. Merger Sub is a limited liability company duly formed, validly existing and in good standing under the Laws of its jurisdiction of formation, and has all requisite power and authority to execute and deliver this Agreement and consummate the Merger. Merger Sub is not in breach of its Organizational Documents.
4.2 Authorization; No Breach; Valid and Binding Agreement
4.2.1 The Purchaser has all requisite entity power and authority to execute and deliver this Agreement and each Transaction Document to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement and the Transaction Documents by the Purchaser and the consummation of the Transactions have been duly and validly authorized by all requisite actions, and no other actions or proceedings on its part are necessary to authorize the execution, delivery or performance of this Agreement or the Transaction Documents and the consummation of the Transactions at the Closing; provided that, following the Closing, the Purchaser Stockholder Approval will be required in order to permit the issuance or conversion of securities subject to the blocker set forth in Section 1.4 and to effect any amendment to the Purchaser’s certificate of incorporation included in the Purchaser Stockholder Proposals.
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4.2.2 The execution, delivery and performance of this Agreement and each other Transaction Document to which it is a party and the consummation of the Transactions do not and will not conflict with or result in any breach of, constitute a default (or an event that, with or without notice or lapse of time or both, would become a default) under, result in a violation of, result in the creation of any Lien upon any assets or properties of the Purchaser under, give rise to any right of payment, penalty, modification, amendment or termination, cancellation or acceleration with respect to, or loss or impairment of any right under, or require any authorization, consent, approval, exemption or other action by, notice to or filing with any court or other Governmental Authority under (i) the provisions of the Purchaser’s Organizational Documents, (ii) any Contract or instrument or Permit to which the Purchaser or its properties or assets is bound, or (iii) any Law, statute, rule or regulation or order, judgment or decree to which the Purchaser or its properties or assets are subject.
4.2.3 The execution and delivery of this Agreement or any Transaction Document and the performance of this Agreement or any Transaction Document by the Purchaser shall not require any Regulatory Approval.
4.2.4 This Agreement has been, and at the Closing each Transaction Document to which the Purchaser is a party will be, duly executed and delivered by the Purchaser and assuming that this Agreement and each Transaction Document is a valid and binding obligation of the other parties hereto, this Agreement and each Transaction Document to which the Purchaser is a party constitutes a valid and binding obligation of the Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
4.3 Actions
There is no Proceeding or Governmental Order pending or, to the Knowledge of the Purchaser, threatened in writing, by or against the Purchaser or any of its Affiliates, that seeks to delay or prevent the consummation of the Transactions.
4.4 Compliance with Law
The Purchaser is in compliance in all material respects with all Laws applicable to its business, except for violations which would not, individually or in the aggregate, prevent, impair or delay the consummation of the Transactions.
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4.5 Capitalization
4.5.1 As of the date of this Agreement, the authorized share capital of the Purchaser consists of 225,000,000 shares of Purchaser Common Stock and 15,000,000 shares of preferred stock, each with a par value of US$0.001 per share. Except as disclosed in Section 4.5 of the Purchaser Disclosure Schedule or contemplated by the Transactions, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued share capital of the Purchaser or obligating the Purchaser to issue or sell any share capital of, or other equity interests in, the Purchaser. All Purchaser Common Stock subject to issuance, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. The Purchaser Common Stock and Purchaser Preferred Stock comprising the Purchaser Stock Consideration, when issued to the Cayman Seller pursuant to this Agreement in compliance with Section 1.4 and following adoption and filing of the Certificate of Designation, shall be duly authorized, validly issued, fully paid and non-assessable. There are no outstanding contractual obligations of the Purchaser to repurchase, redeem or otherwise acquire any Purchaser Common Stock. Except for Merger Sub and as disclosed in Section 4.5 of the Purchaser Disclosure Schedule, the Purchaser does not own any equity securities in any other Person or have any right, option, warrant, conversion right, stock appreciation right, redemption right, repurchase right, agreement, arrangement or commitment of any character under which a Person is or may become obligated to issue or sell, or give any right to subscribe for or acquire, or in any way dispose of, any equity securities, or any securities or obligations exercisable or exchangeable for or convertible into equity securities of such Person. There are no outstanding contractual obligations of the Purchaser to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Person. Subject to receipt of the requisite stockholder approvals and compliance with the Certificate of Designation, Purchaser Common Stock issuable on conversion of the Purchaser Preferred Stock shall be duly authorized, validly issued, fully paid and nonassessable. The Purchaser shall reserve sufficient authorized Purchaser Common Stock for such conversion and the assumption of the Outstanding Options.
4.5.2 Except as disclosed in Section 4.5 of the Purchaser Disclosure Schedule or contemplated by the Transactions, there are no outstanding options, warrants, rights, convertible or exchangeable securities, “phantom” share rights, share appreciation rights, share-based performance units, commitments or Contracts of any kind to which the Purchaser is a party or by which it is bound obligating the Purchaser to issue or sell, or cause to be issued or sold, additional shares of Purchaser Common Stock or any other share capital or membership interests or other interest or participation in, or any security convertible or exercisable for or exchangeable into Purchaser Common Stock or any other shares or membership interests or other interest or participation in the Purchaser.
4.6 Absence of Certain Developments
Since the Balance Sheet Date until the date hereof, there has not been any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, has had or is reasonably expected to have a Purchaser Material Adverse Effect.
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4.7 Brokerage
Other than fees or commissions for which the Purchaser will be solely responsible, there are no claims for, and the Target Companies, the Seller Parties and their respective Affiliates have no liability or obligation to pay, brokerage commissions, finders’ fees or similar compensation in connection with the Transactions or the Transaction Documents based on any arrangement or agreement made by or on behalf of the Purchaser for which the Target Companies, the Seller Parties or any of their respective Affiliates is or may be liable.
4.8 Continuity of Business Enterprise
The Purchaser intends to continue the historic business of the Company or use a significant portion of the Company’s historic business assets in a business.
Article
V
Survival; Indemnification
5.1 Survival of Representations and Warranties
Each of the representations, warranties and covenants and agreements set forth in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (except for any such covenants or agreements that expire sooner in accordance with their terms) until the applicable survival date set forth in Section 5.2.2 or Section 5.2.3.
5.2 Indemnification
5.2.1 Indemnification Obligations of the Seller Parties. From and after the Closing, subject to the limitations set forth in Section 5.2.2, the Seller Parties shall jointly and severally indemnify and hold harmless the Purchaser and its Affiliates (including, after the Closing, the Target Companies), and each of its and their officers, directors, employees, agents, representatives, successors and permitted assigns (each a “Purchaser Indemnitee”), from and against all Losses which any Purchaser Indemnitee may suffer, sustain or become subject to, as and when incurred, as a result of:
(a) any breach or inaccuracy of any representation or warranty made in Article II or Article III of this Agreement;
(b) any breach of any covenant or agreement made by or in respect of either Seller Party under this Agreement;
(c) any and all Pre-Closing Taxes;
(d) any and all Liability arising out of or relating to the Internal Restructuring; and
(e) any agreement or arrangement entered into on or before the Closing between any Target Company, on the one hand, and either Seller Party or any of its Affiliates (other than the Target Companies), on the other hand, that was not disclosed in Section 3.25 of the Seller Disclosure Schedule.
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5.2.2 Survival Date. The Seller Parties shall not be liable with respect to any claim made pursuant to Section 5.2.1 unless written notice of a possible claim for indemnification with respect to such breach is given by a Purchaser Indemnitee to either Seller Party:
(a) on or before the date which is sixty (60) days after the expiration of the applicable statute of limitations (including any extension or waivers thereof) with respect to claims as a result of breach of any Seller Fundamental Representation, Company Fundamental Representation or any representation or warranty in Section 3.9, or claims arising under Section 5.2.1(c) or Section 5.2.1(d);
(b) on or before the date which is twelve(12) months after the Closing with respect to claims as a result of breach of any representation or warranty made in any Section of Article II or Article III other than any Seller Fundamental Representation, Company Fundamental Representation or any representation and warranty in Section 3.9;
(c) indefinitely with respect to any covenant made under Article VII; and
(d) on or before two (2) years after the date that performance of such covenant or agreement is contemplated, with respect to claims arising under Section 5.2.1(b) (such date as set forth in clauses (a), (b), (c), or (d) of this Section 5.2.2, as applicable, is referred to herein as its “Survival Date”);
provided that, any claim arising as a result of breach of any representation or warranty made in Article II or Article III which (or the delay in discovery of which) is the consequence of fraud, or willful or intentional breach by either Seller Party or any of their respective directors or officers or former directors or officers, shall terminate only upon the expiration of the statutory limitation period under the Laws of the applicable jurisdiction. Notwithstanding anything to the contrary in this Agreement, other than in respect of fraud, (i) the aggregate liability of the Seller Parties under Section 5.2.1(a) for any breach of any Seller Fundamental Representation, Company Fundamental Representation or representation or warranty in Section 3.9 and under Sections 5.2.1(b) and 5.2.1(c) shall not exceed US$200,000,000, (ii) the aggregate liability of the Seller Parties under Section 5.2.1(d) and 5.2.1(e) shall not exceed US$100,000,000, and (iii) the aggregate liability of the Seller Parties under Section 5.2.1(a) for any breach of representations or warranties other than Seller Fundamental Representations, Company Fundamental Representations or representation or warranty in Section 3.9 shall not exceed US$40,000,000.
It being understood that, so long as written notice is given on or prior to the applicable Survival Date with respect to any claim, such claim shall survive until it is resolved in accordance with this Article V.
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5.2.3 Indemnification Obligations of the Purchaser. From and after the Closing, the Purchaser shall indemnify and hold harmless the Seller Parties and their respective Affiliates (excluding, after the Closing, the Target Companies), and each of their respective officers, directors, employees, agents, representatives, successors and permitted assigns (each a “Seller Indemnitee”) from and against all Losses which any Seller Indemnitee may suffer, sustain or become subject to, as and when incurred, as the result of (i) any breach or inaccuracy of any representation or warranty made in Article IV or (ii) any breach of any covenant or agreement made by or in respect of the Purchaser under this Agreement. The Purchaser shall not be liable with respect to any claim for breach of any representation, warranty, covenant or agreement of the Purchaser contained in this Agreement unless written notice of a possible claim with respect to such breach is given by a Seller Indemnitee to the Purchaser (x) on or before the date which is sixty (60) days after the expiration of the applicable statute of limitations (including any extensions or waivers thereof) with respect to claims as a result of breach of any Purchaser Fundamental Representation, (y) on or before the date that is twelve (12) months after the Closing with respect to claims as a result of any breach of representation or warranty made in any Section of Article IV other than any Purchaser Fundamental Representation; and (z) on or before two (2) years after the date performance of such covenant or agreement is contemplated with respect to claims as a result of breach of any covenant or agreement made by or in respect of the Purchaser under this Agreement; provided that, any claim arising as a result of breach of representation or warranty made in Article IV which (or the delay in discovery of which) is the consequence of fraud, or willful or intentional breach by the Purchaser or its directors or officers or former directors or officers, shall terminate only upon the expiration of the statutory limitation period under the Laws of the applicable jurisdiction. It being understood that, so long as written notice is given on or prior to the applicable survival date with respect to any claim, such claim shall survive until it is resolved in accordance with this Article V. Notwithstanding anything to the contrary in this Agreement, (x) the aggregate liability of the Purchaser under this Section 5.2.3 (other than in respect of fraud) shall not exceed US$40,000,000, and (y) no Seller Indemnitee shall be entitled to indemnification for any Loss to the extent arising from, or measured by any decrease in the value of, its direct or indirect ownership of securities of the Purchaser.
5.2.4 Defense of Claims. If any Party seeks indemnification under this Section 5.2 (the “Indemnified Party”), such Party shall give written notice (an “Indemnification Notice”) to the other applicable Party (the “Indemnifying Party”) setting forth in reasonable detail all of the facts and circumstances giving rise to the claim.
(a) Claims Between the Purchaser and the Seller Parties. Following the applicable Party’s receipt of any Indemnification Notice, the Parties shall meet in person or via teleconference as soon as reasonably practicable following delivery of an Indemnification Notice in order to resolve or settle such claim. If the Parties are unable to resolve or settle such claim for money damages within ten (10) Business Days (unless an extension is agreed to in writing by the Parties to such claim), then the claim shall be determined as set forth in Section 12.1.
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(b) Third-Party Claims. If any Proceeding shall be brought or asserted by any third party (a “Third Party Proceeding”) which, if adversely determined, could entitle the Indemnified Party to indemnity pursuant to this Section 5.2, the Indemnified Party shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such Third Party Proceeding and the facts pertaining thereto and attaching a copy of any summons, complaint or other pleading served upon the Indemnified Party; provided that, the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have materially harmed the Indemnifying Party. The Indemnifying Party may, in its discretion, elect to assume and control the defense of such Third Party Proceeding (such election to be without prejudice to the right of the Indemnifying Party to dispute whether such Third Party Proceeding is an indemnifiable Loss under this Article V), which defense shall be prosecuted vigorously by the Indemnifying Party to a final conclusion or settled in accordance with this Section 5.2.4(b); provided that,
(i) the Indemnifying Party shall reasonably consult with the Indemnified Party with respect to the handling of such Third Party Proceeding and the Indemnifying Party must employ counsel reasonably satisfactory to the Indemnified Party;
(ii) the Indemnifying Party shall not settle or compromise any Third Party Proceeding without the express written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; and
(iii) if such Third Party Proceeding is one in which the named parties include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised by counsel that there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall be entitled, at the Indemnified Party’s sole cost, risk and expense, to separate counsel of its own choosing.
(c) If the Indemnifying Party is permitted to assume and control the defense of a Third Party Proceeding and elects to do so, it shall provide notice thereof to the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of the matter. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Proceeding which the Indemnifying Party elects to contest. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in (but not control) the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless the Indemnifying Party has agreed in writing to bear the fees and expenses of such counsel.
(d) If the Indemnifying Party fails to notify the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of a Third Party Proceeding that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 5.2.4(b), or if the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 5.2.4(b) but, upon petition by the Indemnified Party, the appropriate court, arbitral or other body determines that the Indemnifying Party has failed or is failing to vigorously prosecute or defend such Third Party Proceeding, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Proceeding by all appropriate Proceedings, which Proceedings shall be vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and Proceedings; provided that, the Indemnified Party may not enter into any compromise or settlement of such Third Party Proceeding, if indemnification is to be sought hereunder, without the express prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party may participate in, but not control, any such defense or settlement controlled by the Indemnified Party, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
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5.2.5 Payments
(a) Any payment pursuant to a claim for indemnification shall be made by wire transfer or delivery of other immediately available funds to the account(s) designated by the Indemnified Party(ies) no later than ten (10) days after the amount of such indemnifiable Loss is determined in accordance with this Article V; provided that, at the election of the Purchaser, any amount owed to a Purchaser Indemnitee may be satisfied, in whole or in part, by the surrender and cancellation for no additional consideration of shares of Purchaser Common Stock or Purchaser Preferred Stock held by the Seller Parties or their Affiliates, valued at the lower of the Purchaser Stock Price and the volume-weighted average closing price of the Purchaser Common Stock for the ten (10) trading days preceding the date of payment, and the Seller Parties shall, and shall cause their Affiliates to, take all actions necessary to effect such surrender and cancellation.
(b) All payments made under this Section 5.2 shall be made in full without any restriction or condition, and free and clear of any Taxes, deductions or withholdings of any nature (other than any Tax on the income or profits of the Indemnified Party). Where any such Taxes, deductions or withholdings are required by applicable Law, the amount of the payment shall be increased so that the amount received by the Indemnified Party shall (net of any such Taxes, withholdings or deductions (other than any Tax on the income or profits of the Indemnified Party)) equal the full amount of the payment that would have been received by the Indemnified Party if no Taxes, deductions or withholdings (other than any Tax on the income or profits of the Indemnified Party) were applicable.
(c) Any payment required under this Section 5.2 which is not made when due shall bear interest at the “Prime Rate” as listed in the Wall Street Journal from the date payment is due (compounded on an annual basis). In addition, such Party shall reimburse the other Party for reasonable attorneys’ fees incurred in seeking to collect such indemnifiable Losses after the date payment is due. All payments and related calculations of amounts due therefor of any amounts by any Person pursuant to this Article V shall, unless otherwise agreed to by Purchaser and the Seller Parties in writing, be made in U.S. dollars.
5.2.6 Adjustment For Tax Purposes. All payments made pursuant to this Section 5.2 shall be treated as an adjustment to the Purchase Price for Tax purposes unless otherwise required by applicable Law.
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5.2.7 Notwithstanding anything to the contrary contained in this Agreement, the procedures for all Pre-Closing Tax Matters shall be governed exclusively by Section 7.6 (and not this Section 5.2).
5.3 Insurance Etc. Offset
The amount of Losses subject to indemnification under Section 5.2.1 or Section 5.2.3, as applicable, shall be calculated net of any insurance proceeds (net of any costs associated therewith) received by the Indemnified Party on account of such Losses. An Indemnified Party shall first use its commercially reasonable efforts to pursue full recovery under all insurance policies with respect to any Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. If an Indemnified Party receives insurance proceeds in connection with Losses for which it has received indemnification, such party shall refund to the Indemnifying Party the amount of such insurance proceeds when received, up to the amount of indemnification received.
5.4 Waiver
The waiver of any condition based on the accuracy of the representations or warranties, or on the performance of or compliance with any covenant or obligation, shall not affect the right to indemnification, payment of Losses, or other remedy based on such representations, warranties, covenants and obligations.
Article
VI
Noncompetition and Nonsolicitation
In consideration of the Purchaser and the Seller Parties entering into the Transactions described herein and performing their obligations hereunder or under other Transaction Documents, the Seller Parties and the Purchaser hereby agree that:
6.1 During the period from the Closing Date to and including the second (2nd) anniversary of the Closing Date (the “Noncompete and Non-Solicitation Period”), each Seller Party shall not, and shall cause its Affiliates (which shall exclude the Purchaser and its Affiliates) not to, without the prior written consent of the Purchaser, directly or indirectly, (i) engage in any business that is competitive with the Robotics Business (the “Competitive Business”) in the territories that the Purchaser or any of its controlled Affiliates (such entity, each a “Covered Entity”) will have presence from time to time (such territory, each a “Covered Territory”), (ii) contact, solicit or develop any new customer in connection with the Competitive Business in any Covered Territory, or (iii) own any interest in, manage, control, participate in (whether as a partner, member, shareholder, lender, co-venturer, consultant or otherwise) any other Person that engages in a Competitive Business in any Covered Territory.
6.2 During the Noncompete and Non-Solicitation Period, each Seller Party shall not, and shall cause its Affiliates (which shall exclude the Purchaser and its Affiliates) not to, without the prior written consent of the Purchaser, directly or indirectly, (i) solicit, hire or retain any employee, consultant, independent contractor, sales or other representative of any Covered Entity to leave the employment of such Covered Entity, or (ii) cause, induce or attempt to cause or induce any customer, supplier, licensee, licensor, franchisee, lessor or other business relation of any Covered Entity to cease or refrain from doing business with such Covered Entity or otherwise interfere with relationship between such Covered Entity and any of its customers, suppliers, licensees, licensors, franchisees, lessors or other business relations.
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Notwithstanding the foregoing restrictions in Sections 6.1 and 6.2, the Seller Parties and their respective Affiliates may acquire and hold, solely as a passive investment, up to five percent (5%) of the outstanding equity securities of any publicly traded company that engages in a Competitive Business, provided that neither Seller Party nor any such Affiliate has any management, control, board representation or other active participation therein. The restrictions in Sections 6.1 and 6.2 shall not apply to FFAI’s and its Affiliates’ electric vehicle/automotive business, vehicle-related software and services or related aftermarket activities, to the extent such activities do not directly or indirectly involve the manufacturing, sale or development of, or provision of support or services to, robotics or any ancillary part thereto. The Seller Parties and their respective Affiliates shall not be deemed in violation with respect to any business, activity or industry that the Purchaser has agreed in writing is not a Competitive Business.
6.3 Each Party acknowledges and represents that: (i) sufficient consideration has been given by each Party to the other as it relates hereto; (ii) such Party has consulted with independent legal counsel regarding its rights and obligations under this Article VI; (iii) such Party fully understands the terms and conditions contained herein; (iv) the restrictions and agreements in this Article VI are reasonable in all respects and necessary for the protection of the Parties, and their businesses and goodwill and that, without such protection, the parties’ employees, customer and client relationships and competitive advantage would be materially adversely affected; and (v) the agreements in this Article VI are an essential inducement to the Parties to enter into this Agreement and they are in addition to, rather than in lieu of, any similar or related covenants to which the Parties are bound.
6.4 If the final judgment of a court of competent jurisdiction declares that any term or provision of this Article VI is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
Article
VII
Tax Matters
7.1 Tax Periods Beginning Before and Ending After the Closing Date
The Purchaser shall prepare, or cause to be prepared, and file, or cause to be filed, all Tax Returns of the Target Companies for any Tax periods which are due or filed after the Closing Date. At least ten (10) days prior to filing any such Tax Return relating to a Pre-Closing Tax Period, the Purchaser shall submit a copy of such Tax Return to the Seller Parties. The Seller Parties shall pay to the Purchaser (or, in coordination with the Purchaser, to the applicable taxing authority or agency) the total amount of Pre-Closing Taxes due with respect to such Tax Return no later than the due date for the payment of Taxes with respect to such Tax Return. The Purchaser shall consider in good faith any and all comments provided by the Seller Parties on such Tax Return.
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7.2 Cooperation on Tax Matters
Each Seller Party and the Purchaser shall retain (or cause to be retained) all of its books and records with respect to Tax matters pertinent to the Target Companies relating to any Pre-Closing Tax Period until ninety (90) days after the expiration of the statute of limitations with respect to such Tax period (including, to the extent notified by either Seller Party or the Purchaser, as the case may be, of any extensions thereof), and abide by all record retention agreements entered into with any taxing authority. The Purchaser shall allow each Seller Party (and its agents and representatives) to inspect, review and make copies of such records and information as such Seller Party or its agents and representatives reasonably request from time to time during normal business hours and after appropriate prior notification.
7.3 Transfer Taxes
All federal, state, national, provincial, municipal, local or non-U.S. or other excise, sales, use, transfer (including real property transfer), stamp duty, documentary, filing, recordation and other similar Taxes that may be imposed or assessed as a result of the Equity Exchange and the Merger, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties (the “Transfer Taxes”), shall be borne 50/50 by the Purchaser and jointly and severally by the Seller Parties. The Transfer Taxes as a result of the Internal Restructuring shall be solely borne by the Seller Parties. Any Tax Returns that shall be filed in connection with Transfer Taxes shall be prepared by the party primarily or customarily responsible under applicable Law for filing such Tax Returns, and such party will provide such Tax Returns to the other party for such other party’s review and approval at least ten (10) Business Days prior to the date such Tax Returns are due to be filed. The Purchaser and the Seller Parties shall cooperate in the timely completion and filing of all such Tax Returns. Each Party shall promptly pay all Transfer Taxes for which it is responsible pursuant to this Section 7.3.
7.4 Tax Sharing Agreements
Any Tax sharing agreement, Tax allocation agreement, Tax holiday agreement, Tax abatement agreement, Tax indemnity or other similar arrangement to which either Seller Party, on the one hand, and any Target Company, on the other hand, are parties, shall be terminated as of or prior to the Closing Date and, after the Closing Date, neither Seller Party nor any Target Company shall be bound thereby or have any Liability thereunder.
7.5 Computation of Liabilities
To the extent permitted or required, the taxable year of each of the Target Companies that includes the Closing Date shall close as of the end of the Closing Date. Taxes for a Straddle Period shall be allocated as follows:
7.5.1 For Taxes of the Target Companies that are imposed on a periodic basis (such as real property Taxes or other ad valorem Taxes), the determination of the Taxes of the Target Companies for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning and ending after, the Closing Date shall be calculated by allocating to the periods before and after the Closing Date pro rata, based on the number of days of the Straddle Period in the period before and ending on the Closing Date, on the one hand, and the number of days in the Straddle Period in the period after the Closing Date, on the other hand.
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7.5.2 For Taxes resulting from items attributable to a Straddle Period and included in the income of the Target Companies under Section 951(a) of the Code or Section 951A of the Code for such Straddle Period, the determination of Taxes for the portion of the Straddle Period ending on and including the Closing Date shall be calculated as though the taxable year of the applicable “controlled foreign corporation” (within the meaning of Section 957 of the Code) giving rise to such inclusion of income ended on the Closing Date.
7.5.3 For Taxes of the Target Companies not described in Section 7.5.1 or 7.5.2 (including, without limitation, (i) Taxes based on the income or receipts of any of the Target Companies for a Straddle Period, (ii) Taxes imposed in connection with any sale or other transfer or assignment of property (including all sales and use Taxes) for a Straddle Period, other than Transfer Taxes described in Section 7.3, and (iii) withholding and employment Taxes relating to a Straddle Period), the determination of the Taxes of the Target Companies for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning and ending after, the Closing Date shall be calculated by assuming that the Straddle Period consisted of two taxable periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Target Companies for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Target Companies were closed at the close of the Closing Date (and for such purpose, the taxable period of any partnership or other pass-through entity in which the Company holds a beneficial interest shall be deemed to terminate at such time).
7.6 Tax Contest
The Purchaser and the Target Companies on the one hand, and each Seller Party on the other hand, shall promptly notify each other upon receipt by such party of written notice of any inquiries, claims, assessments, audits or similar events with respect to Taxes relating to a Pre-Closing Tax Period (any such inquiry, claim, assessment, audit or similar event, a “Pre-Closing Tax Matter”). Any failure to so notify the other party of any Pre-Closing Tax Matter shall not relieve such other party of any liability with respect to such Pre-Closing Tax Matters except to the extent such party was actually prejudiced as a result thereof. The Seller Parties shall have the right to control the conduct and resolution of such Pre-Closing Tax Matter; provided that, the Seller Parties shall keep the Purchaser reasonably informed of the progress of such Pre-Closing Tax Matter and shall not effect any settlement or compromise of such Pre-Closing Tax Matter without obtaining the Purchaser’s prior written consent thereto, which shall not be unreasonably withheld, delayed or denied. Notwithstanding anything to the contrary contained in this Agreement, the procedures for all Pre-Closing Tax Matters shall be governed exclusively by this Section 7.6 (and not Section 5.2). If the Seller Parties do not assume control of a Pre-Closing Tax Matter within thirty (30) days after receipt of notice thereof, or fail to diligently conduct its defense, the Purchaser may assume control of such matter at the Seller Parties’ reasonable cost and expense, subject to the Seller Parties’ rights to information and to consent to any settlement, which consent shall not be unreasonably withheld, conditioned or delayed.
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7.7 Intended Tax Treatment
7.7.1 The Parties agree and acknowledge that for U.S. federal income tax purposes, the Equity Exchange and the Merger, taken together, are intended to qualify for the Intended Tax Treatment. The Parties agree to file all Tax Returns on a basis consistent with the Intended Tax Treatment, unless otherwise required by a Tax authority pursuant to a determination within the meaning of Section 1313(a) of the Code. The Parties adopt this Agreement as a Plan of Reorganization. Each Party shall (and shall cause its Affiliates to) cooperate to cause the Equity Exchange and the Merger to so qualify, and neither the Purchaser nor either Seller Party has taken or failed to take, or will take or fail to take, any action if such action or inaction would reasonably be expected to cause the Equity Exchange and the Merger to fail to qualify for the Intended Tax Treatment.
7.7.2 In the event the SEC requests or requires a tax opinion regarding whether the Equity Exchange and the Merger satisfy the Intended Tax Treatment, the Seller Parties shall use their commercially reasonable efforts to cause tax counsel to the Seller Parties to furnish such opinion. Each Party shall use reasonable best efforts to execute and deliver customary tax representation letters to such tax counsel in form and substance reasonably satisfactory to such tax counsel.
Article
VIII
Additional Agreements
8.1 Conduct of Business of the Target Companies
8.1.1 Except as expressly permitted by this Agreement or other Transaction Documents, during the period from the date hereof to the earlier of the Closing Date and the termination of this Agreement in accordance with Section 10.1, each Target Company shall, and each Seller Party shall cause each Target Company to, (i) operate in the Ordinary Course of Business, (ii) maintain its properties and other assets of the Target Companies in good working condition, and preserve intact the business organization and operations, rights, permits, franchises and goodwill and (iii) maintain the business and relationships with employees, customers, suppliers, distributors, licensors, licensees, lessors and other key Persons with whom it does business.
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8.1.2 Without limiting the generality of Section 8.1.1, except as expressly permitted by this Agreement or other Transaction Documents, or with the prior written approval of the Purchaser, each Target Company shall, and each Seller Party shall cause each Target Company to, manage working capital items in the Ordinary Course of Business and shall not accelerate the collection of any trade receivables, other receivables and deposits, prepaid liabilities or any other current assets or delay the payment of trade payables, other payables or any other current liabilities.
8.1.3 Without limiting the generality of Section 8.1.1, except as expressly permitted by this Agreement or other Transaction Documents, or with the prior written approval of the Purchaser, no Target Company shall, and each Seller Party shall cause each Target Company not to, take any of the following actions:
(i) amend the Organizational Documents of any Target Company or form any Subsidiaries that are not wholly owned Subsidiaries;
(ii) split, subdivide, combine or reclassify any share of Company Stock or any of the equity or equity-linked securities of any Target Company;
(iii) (A) deliver, encumber, mortgage, pledge, redeem, purchase, transfer, issue, sell or otherwise dispose of any equity securities, (B) grant or enter into any options, warrants, rights, agreements or commitments with respect to the issuance of its securities, or (C) amend any terms of any such equity securities or agreements;
(iv) (A) merge, consolidate or combine with any Person; or (B) acquire or agree to acquire by merging or consolidating with, purchasing any equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
(v) make any loans, advances, or capital contributions to, or investments in, any other Person;
(vi) make a change in any method of financial accounting or accounting practice of the Target Companies, except as required by the Accounting Standards or applicable Law;
(vii) sell, lease, license or otherwise dispose of any assets (whether by merger, sale of shares, sale of assets or otherwise), except in the Ordinary Course of Business;
(viii) (A) transfer, sell, assign, license, sublicense, grant other rights under, encumber, impair, abandon, fail to diligently maintain, or otherwise dispose of any right, title or interest of any Target Company in any Intellectual Property Rights; (B) amend, waive, cancel or modify any rights in or to any Intellectual Property Rights; or (C) divulge, furnish to or make accessible any Trade Secrets constituting Company IP Rights to any Person that is not subject to an enforceable written agreement to maintain the confidentiality of such Trade Secrets;
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(ix) issue or incur any additional indebtedness;
(x) amend or modify any agreements in respect of indebtedness;
(xi) (A) increase, decrease, make any changes in or grant any increase in the compensation of any current or former employee, director or independent contractor, except for any increases in the rate of base salary or wage made in the Ordinary Course of Business that does not exceed 10% individually or in the aggregate; (B) grant, promise, pay, or increase any severance, incentive awards (whether or not equity or equity-based), bonus, fringe, transaction, retention, change in control, or other compensation or benefits to any current or former employee, director or independent contractor; (C) take any action to accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits under any Plan or otherwise due to any of its current or former employees, directors, officers or other individual service providers; or (D) grant any equity or equity-based compensation awards;
(xii) hire, engage, terminate (other than for cause), furlough, or temporarily lay off any employee, consultant or other individual service provider with an annual base compensation in excess of US$500,000;
(xiii) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee or independent contractor;
(xiv) (A) negotiate, modify, extend, or enter into any collective bargaining agreement or (B) recognize or certify any labor union, labor organization, works council, employee representative or association or group of employees as the bargaining representative for any employees of any Target Company;
(xvi) (A) make, change, revoke, amend, or otherwise modify any income or other material Tax election other than an election to treat each of FF Intelligent Mobility Global Holdings Ltd. (Cayman) and Smart Technology Holdings Ltd. (Cayman) as an entity disregarded from its owner within the meaning of Treasury Regulation Section 301.7701-3, (B) change any Tax accounting period or adopt, change, or otherwise modify any method, principles, or practices of Tax accounting, (C) file any amended Tax Return, refile, or otherwise modify any previously filed Tax Return, (D) prepare, file, or take any position on any income or other Tax Return inconsistent with past practice in any material respect, (E) settle, consent to, or otherwise compromise (in whole or in part) any Tax audit, examination, investigation, or other proceeding or any Tax liability (including by entering into any closing agreement or other agreement with any tax authority), (F) seek or apply for any tax ruling, including any private letter ruling, (G) surrender any right to claim Tax refund, offset, or other reduction in liability, (H) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment or the collection of any Taxes, (I) participate in, initiate any discussion with respect to, or enter into any voluntary disclosure program (or similar program or agreement) with any Governmental Authority; (J) fail to pay any Tax that becomes due and payable (including any estimated Tax payments); (K) defer the payment of any Tax or claim a Tax credit; (L) enter into any Tax allocation, Tax sharing, Tax indemnity, closing agreement, or other binding written agreement relating to Taxes, other than commercial agreements entered into in the Ordinary Course of Business the primary purpose of which is not Taxes; or (M) grant any power of attorney relating to any Tax matter;
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(xvii) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, restructuring, recapitalization (or equity split or like change in capitalization), dissolution or winding-up of any Target Company;
(xviii) make any capital expenditure (or series of related capital expenditures) involving more than US$500,000 individually, or more than US$2,000,000 in the aggregate;
(xix) enter into, terminate (other than automatic termination in accordance with the terms thereof) or modify or amend in any material respect any Contract that, upon entry by any Target Company thereto, constitutes, or would constitute if it had been entered into prior to the date of this Agreement, a Material Contract;
(xx) declare or pay any dividend or distribution on, or make any payment on account of, the purchase, redemption, defeasance, retirement or other acquisition of, any of its shares, capital stock or common shares, as applicable, or make any other distribution in respect thereof, either directly or indirectly whether in cash or property;
(xxi) amend, modify, extend, renew or terminate any Lease or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property; or
(xxii) agree to do any of the foregoing, or take any action or omit to take any action which action or omission, respectively, would result in any of the foregoing.
8.2 Efforts
8.2.1 Upon the terms and subject to the conditions set forth in this Agreement, each Party agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Transactions, including using reasonable best efforts to accomplish the following: (i) the taking of all commercially reasonable acts necessary to cause the conditions precedent set forth in Article IX to be satisfied; (ii) the obtaining of all necessary actions, waivers, consents, approvals, orders and authorizations from Governmental Authorities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Authorities, if any) and the taking of all commercially reasonable steps as may be necessary to avoid any Proceeding; (iii) the obtaining of all consents, approvals or waivers from third parties required as a result of the Transactions; and (iv) the execution or delivery of any additional instruments reasonably necessary to consummate, and to fully carry out the purposes of, the Transactions. Notwithstanding anything to the contrary in this Section 8.2, neither the Purchaser nor Merger Sub shall be required to (i) waive any condition to its obligations to consummate the Transactions, (ii) take any action inconsistent with Section 8.3.4 or the fiduciary duties of the Purchaser Board or the Purchaser Special Committee under applicable Law, or (iii) pay any consideration to any third party or incur any cost in obtaining any necessary actions, waivers, consents, approvals, orders and authorizations from Governmental Authorities or any third party in connection with the Transactions. Notwithstanding anything to the contrary in this Section 8.2, neither Seller Party shall be required to (i) waive any condition to its obligations to consummate the Transactions or (ii) take any action inconsistent with the fiduciary duties of the FFAI Board or the FFAI Special Committee under applicable Law.
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8.2.2 Each Seller Party and the Purchaser shall promptly notify the other Parties of any communication it or any of its Affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permit the other party to review and comment in advance on any proposed communication by such Party or its Affiliates to any Governmental Authority. No such Party shall agree to participate in any meeting with any Governmental Authority in respect of any filing, investigation or other inquiry unless it consults with the other Parties in advance and, to the extent permitted by such Governmental Authority, gives the other Parties the opportunity to attend and participate at such meeting. Each Party will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing. To the extent permitted by such Governmental Authority or applicable Laws, the Parties shall provide each other Party with copies of all correspondence, filings or communications between them or any of their representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the Transactions.
8.2.3 Neither the Purchaser nor either Seller Party shall take any action that would reasonably be expected to delay, impair or impede the receipt of any such authorizations, consents, orders or approvals. Neither the Purchaser nor either Seller Party shall make any submission, notification or filing with any Governmental Authority in connection with the Transactions other than as contemplated by this Agreement, required by applicable Law or necessary to obtain the Regulatory Approvals or consents specified in Section 2.2.3 of the Seller Disclosure Schedule.
8.3 Stockholder Written Consent; Information Statement
8.3.1 As promptly as reasonably practicable after the Closing Date and the receipt of the Purchaser Stockholder Approval pursuant to Section 8.3.3, the Purchaser shall prepare and file with the SEC a preliminary information statement on Schedule 14C under the Exchange Act with respect to the Purchaser Stockholder Proposals (together with any amendments or supplements thereto, the “Information Statement”). The Purchaser shall, as promptly as reasonably practicable, notify the Seller Parties of the receipt of any oral or written comments from the SEC relating to the Information Statement and any request by the SEC for any amendment or supplement to the Information Statement or for additional information. The Purchaser shall use reasonable best efforts to cooperate and provide the Seller Parties with a reasonable opportunity to review and comment on the Information Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC and give due consideration to all comments reasonably proposed by the Seller Parties in respect of such documents and responses prior to filing such with or sending such to the SEC, and the Purchaser shall provide the Seller Parties with copies of all such filings made and correspondence with the SEC. The Purchaser shall use its reasonable best efforts to respond promptly to any comments made by the SEC with respect to the Information Statement. Following completion of the SEC review process, if any, the Purchaser shall file the definitive Information Statement with the SEC and mail or otherwise furnish the Information Statement to the stockholders of the Purchaser as promptly as reasonably practicable in accordance with Regulation 14C under the Exchange Act. The Purchaser shall not implement the corporate actions contemplated by the Purchaser Stockholder Proposals prior to the expiration of the applicable period prescribed by Rule 14c-2 under the Exchange Act.
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8.3.2 Each Seller Party acknowledges that a substantial portion of the Information Statement shall include disclosure regarding the Transactions, the Seller Parties, the Target Companies and the Robotics Business. Accordingly, each Seller Party shall, and shall cause the Target Companies to, as promptly as reasonably practicable after the date of this Agreement, provide the Purchaser with all information concerning the Seller Parties, the Target Companies, the Robotics Business and the Transactions that is required or reasonably requested by the Purchaser for inclusion in the Information Statement, including but not limited to (i) the required financial statements of the Target Companies or the Robotics Business prepared in accordance with the SEC Guidance, including the requirements of Regulation S-X and any required consent of the applicable independent public accountants, (ii) required management’s discussion & analysis for the periods required under applicable SEC Guidance, and (iii) such information as is necessary for the preparation of any pro forma financial information required under Article 11 of Regulation S-X. Without limiting the generality of the foregoing, each Seller Party shall, and shall cause the Target Companies to, cooperate with the Purchaser and its accountants in connection with the preparation for inclusion in the Information Statement of any pro forma financial statements that comply with SEC Guidance, including the requirements of Regulation S-X. Each Seller Party shall also provide such information and cooperation as the Purchaser may reasonably request in connection with disclosure concerning the Purchaser Special Committee’s consideration of the Transactions, including disclosure relating to the Fairness Opinion and the financial analyses underlying the Fairness Opinion, to the extent required by applicable SEC Guidance. Each Seller Party shall, and shall cause the Target Companies to, make the managers, directors, officers and employees of the Target Companies available to the Purchaser and its counsel, accountants and other Representatives in connection with the preparation of the Information Statement,, as reasonably requested by the Purchaser, and responding in a timely manner to comments on the Information Statement and such other filings from the SEC.
8.3.3 As promptly as reasonably practicable following the Closing Date, the Purchaser shall take all corporate action necessary or appropriate to obtain the Purchaser Stockholder Approval by written consent in lieu of a meeting in accordance with Section 228 of the Delaware General Corporation Law (“DGCL”), the applicable Nasdaq Listing Rules and the Organizational Documents of the Purchaser. The Purchaser shall obtain such written consent only from holders of shares of Purchaser capital stock that are entitled to vote on the applicable Purchaser Stockholder Proposal under applicable Law, the applicable Nasdaq Listing Rules and the Organizational Documents of the Purchaser. For the avoidance of doubt, no Purchaser Common Stock issued in connection with the Transactions prior to receipt of the Purchaser Stockholder Approval shall be entitled to vote or consent with respect to any Purchaser Stockholder Proposal to the extent prohibited by the applicable Nasdaq Listing Rules, including IM-5635-2. Promptly following receipt of written consents representing the requisite voting power to approve the Purchaser Stockholder Proposals, the Purchaser shall provide any notice of such action required by Section 228 of the DGCL and shall proceed with the preparation, filing and distribution of the Information Statement in accordance with Section 8.3.1.
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8.3.4 Prior to obtaining the Purchaser Stockholder Approval with respect to any amendment to the Purchaser’s certificate of incorporation included in the Purchaser Stockholder Proposals, the Purchaser Board shall duly adopt resolutions approving such amendment, declaring its advisability and submitting such amendment to the Purchaser’s stockholders for approval in accordance with Section 242 of the DGCL. The Purchaser shall take, or cause to be taken, all other corporate actions reasonably necessary to effect the Purchaser Stockholder Proposals following receipt of the Purchaser Stockholder Approval and compliance with Regulation 14C under the Exchange Act.
8.3.5 If at any time prior to the date on which the corporate actions contemplated by the Purchaser Stockholder Proposals are implemented, any event, circumstance or information relating to the Transactions, the Purchaser, the Seller Parties, the Target Companies or any of their respective officers or directors or other Representatives should be discovered by the Purchaser or either Seller Party, as applicable, that in the reasonable, good faith judgment of the Purchaser or either Seller Party, as applicable, should be set forth in an amendment or supplement to the Information Statement, so that the Information Statement would not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties, and an appropriate amendment or supplement describing such information shall be filed as promptly as reasonably practicable with the SEC by the Purchaser and, to the extent required by applicable Law, disseminated to stockholders of the Purchaser; provided that no information received by the Purchaser pursuant to this Section 8.3.5 shall be deemed to change, supplement or amend the Seller Disclosure Schedule.
8.3.6 Any going-private transaction involving the Purchaser or its affiliates, including a merger under DGCL Section 253 or Section 251(h) or any tender or exchange offer, shall be conditioned on (A) approval by a committee of independent and disinterested directors and (B) approval by a majority of the votes cast by disinterested stockholders.
8.4 Financial Statements
As promptly as reasonably practicable after the date of this Agreement, and in any event sufficiently in advance to permit the Purchaser to timely comply with its applicable SEC reporting and disclosure obligations in connection with the Transactions, each Seller Party shall, and shall cause the Company and the Target Companies to, deliver to the Purchaser the PCAOB Audited Financial Statements and any other audited and unaudited historical financial statements of the Target Companies or the Robotics Business required under Regulation S-X or other applicable SEC Guidance to be included in or filed with (i) any Current Report on Form 8-K or amendment thereto filed by the Purchaser in connection with the consummation of the Transactions, (ii) the Information Statement or (iii) any other filing required to be made by the Purchaser with the SEC in connection with the Transactions. Each Party shall (a) assist the other, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of any Target Company, or the Purchaser, in preparing in a timely manner any other financial information or statements (including customary pro forma financial statements) that are required to be included in the Information Statement and any other filings to be made by the Purchaser with the SEC in connection with the Transactions, and (b) obtain the consents of its auditors with respect thereto as may be required by applicable Law or requested by the SEC in connection therewith.
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8.5 Exclusivity
During the period starting on the date hereof and ending upon the earlier of (i) the Closing, or (ii) termination of this Agreement pursuant to Section 10.1:
8.5.1 Each Seller Party shall not, and shall cause the Target Companies and its and their respective Affiliates and Representatives not to, directly or indirectly (i) submit, solicit, initiate, discuss or negotiate with any Person with respect to any Acquisition Proposal or any matter that could reasonably be expected to lead to any Acquisition Proposal, (ii) provide information with respect to either Seller Party or any Target Company to any Person, other than the Purchaser, in connection with any Acquisition Proposal by any Person, (iii) enter into any Contract or accept any offer relating to any Acquisition Proposal or (iv) otherwise cooperate in any way, or assist, participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing. Each Seller Party shall, and shall cause the Target Companies and its and their respective Affiliates and Representatives to, immediately cease and terminate all discussions and negotiations that occurred or may have occurred on or prior to the date of this Agreement and terminate all agreements, in each case, with respect to any Acquisition Proposal. Each Seller Party shall, and shall cause the Target Companies and its and their respective Affiliates and Representatives to, take the necessary steps to promptly inform the Persons referred to in this Section 8.5.1 of the obligations undertaken in this Section 8.5.1.
8.5.2 Each Seller Party shall, and shall cause the Target Companies and its and their respective Affiliates and Representatives to, promptly notify (but in no event later than twenty-four (24) hours) the Purchaser of any Acquisition Proposal (including any amendments or modifications to any previously received Acquisition Proposal) or request for non-public information relating to any Target Company or for access to the properties, books or records, of any Target Company by any Person other than the Purchaser received after the date hereof. Such notice shall include: (i) the terms and conditions of such Acquisition Proposal and (ii) the identity of the Person making any such Acquisition Proposal.
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8.6 Press Releases and Announcements
Except as otherwise required by applicable Law, announcements to the employees, customers, suppliers, vendors or service providers of the Target Companies shall be issued with the prior written consent of the Seller Parties and the Purchaser. The Seller Parties and the Purchaser shall consult with each other and shall mutually agree upon any press release or public announcement with respect to this Agreement and the Transactions and shall not issue any such press release or make a public announcement prior to such consultation and agreement. Notwithstanding the foregoing, in the event that any Party is required by applicable Law or by obligations pursuant to any listing agreement with any securities exchange or any securities exchange regulation to issue a press release or otherwise make a public announcement related to the foregoing, such Party shall notify the other Parties in advance, provide the other Parties with the opportunity to review such press release or announcement and make all reasonable efforts to consult in good faith with the other Parties before issuing any such press release or making such public announcement.
8.7 Further Transfers
The Seller Parties will use commercially reasonable efforts to execute and deliver such further instruments of conveyance and transfer and take such additional actions as the Purchaser may reasonably request to effect, consummate, confirm and/or evidence the transfer of the Company Stock to the Purchaser and any other transactions contemplated hereby.
8.8 Access to Books and Records
Subject to Section 8.9, each Seller Party shall permit, and each Seller Party shall cause each Target Company to permit, Representatives of the Purchaser (including legal counsel, accountants and advisors) to have full access to all premises, properties, personnel, books, records, contracts, and documents of or pertaining to each Target Company. Subject to Section 8.9, each Seller Party shall, and each Seller Party shall cause each Target Company to furnish to the Purchaser such additional financial and operating information in their possession or control with respect to the Target Companies as the Purchaser may from time to time reasonably request.
In order to facilitate the resolution of any claims made against or incurred by the Seller Parties relating to the Target Companies, from and after the Closing Date until the second anniversary thereof, the Purchaser shall cause the Target Companies to provide the Seller Parties and their respective authorized representatives with reasonable access, during normal business hours, to the books and records of the Target Companies with respect to periods prior to the Closing Date in connection with any matter relating to or arising out of the Transaction Documents or the Transactions (including, without limitation, for audit purposes). Unless otherwise consented to in writing by the Seller Parties, the Purchaser shall not, and shall not permit any Target Company to, for a period of two (2) years following the Closing Date, destroy, alter or otherwise dispose of any books and records of any Target Company, or any portions thereof, relating to periods prior to the Closing Date without first giving reasonable prior notice to the Seller Parties and offering to surrender to the Seller Parties such books and records or such portions thereof.
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8.9 Confidentiality
The Seller Parties and the Purchaser agree to use their respective reasonable best efforts to maintain the confidentiality of all proprietary and other non-public information regarding the Target Companies, except (i) as required to file Tax Returns, (ii) as required by Law or obligations pursuant to any listing agreement with any securities exchange or any securities exchange regulation, (iii) to the extent any such information needs to be disclosed to such Party’s officers, directors, employees, professional advisors and potential financing sources in connection with this Agreement and the Transactions (who shall be advised of the confidential nature of such information) or (iv) as may be reasonably necessary to conduct the business of the Target Companies. In the event that any Party reasonably believes after consultation with counsel that it is required by Law or by obligations pursuant to any listing agreement with any securities exchange or any securities exchange regulation to disclose any confidential information described in this Section 8.9, the disclosing Party shall (i) provide the other Parties with prompt notice before such disclosure in order that such other Parties may attempt to obtain a protective order or other assurance that confidential treatment shall be accorded such confidential information and (ii) cooperate with the other Parties (at the sole expense of the other Parties) in attempting to obtain such order or assurance. The provisions of this Section 8.9 shall not apply to any information, documents or materials which are, as shown by appropriate written evidence, in the public domain or, as shown by appropriate written evidence, shall come into the public domain, other than by reason of a breach of this Section 8.9 by the applicable Party bound hereunder or its Affiliates.
8.10 Expenses
Except as otherwise specifically provided herein or in the Transition Service Agreement, each Party hereto shall pay all of its own costs, fees and expenses incurred in connection with the negotiation and preparation of this Agreement and the other Transaction Documents and the performance and compliance with all agreements and conditions contained hereunder and thereunder to be performed or complied with, including fees, commissions, expenses and disbursements of counsel, accountants, investment bankers and brokers, due diligence expenses, advisory and consulting fees, appraisal costs, fees and expenses and filing fees incurred in connection with the filing required to be made for Regulatory Approvals for the consummation of the Transactions, regardless of whether the Transactions have been consummated or not.
8.11 Transaction Litigation
The Purchaser, on the one hand, and the Seller Parties, on the other hand, shall cooperate with the other and use reasonable best efforts in the defense or settlement of any Proceeding relating to the Transactions which is brought or threatened in writing against (a) the Purchaser, any of its Subsidiaries and/or any of their respective directors or officers, or (b) either Seller Party, the Company, any of their respective Subsidiaries and/or any of their respective directors or officers. Such cooperation between the Parties shall include (i) keeping the other Parties reasonably and promptly informed of any developments in connection with any such Proceeding, (ii) giving the other Parties a reasonable opportunity to participate in any such Proceeding or settlement thereof (and consider in good faith the suggestions of the other Parties in connection therewith), (iii) utilizing counsel reasonably agreeable to the Parties (such agreement to counsel not to be unreasonably withheld, conditioned or delayed), and (iv) refraining from compromising, settling, consenting to any order or entering into any agreement in respect of, any such Proceeding without the written consent of the other Parties (such consent not to be unreasonably withheld, conditioned or delayed).
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8.12 Directors’ and Officers’ Indemnification and Insurance
8.12.1 The indemnification, advancement and exculpation provisions of the Purchaser’s Organizational Documents and indemnification agreements with its current or former directors and officers, including the members of the Purchaser Special Committee and any departing directors and officers, and any other persons covered by the Purchaser’s current directors’ and officers’ liability insurance policies (the “Purchaser D&O Indemnified Parties”), as in effect on the date hereof, shall survive the Closing and shall not be amended, repealed or otherwise modified for six (6) years from the Closing Date in any manner adversely affecting their rights, unless required by Law. Such indemnification agreements shall continue in full force and effect in accordance with their terms.
8.12.2 The Purchaser shall maintain in effect for six (6) years from the Closing Date its current directors’ and officers’ liability insurance policies with respect to matters occurring at or before the Closing, including acts or omissions in connection with this Agreement and the Transactions, on terms as to coverage and amount no less favorable to the Purchaser D&O Indemnified Parties than those in effect on the date hereof. The Purchaser may substitute policies of at least the same coverage with terms, conditions, retentions and limits of liability no less favorable than its current policies; provided that the Purchaser shall not be required to expend more per year than 300% of the current annual premiums paid by the Purchaser, being US$726,500 in the aggregate, and, if such insurance exceeds that amount, shall obtain the greatest coverage available for an amount not exceeding that cap. In addition, the Purchaser may, and at the request of the Purchaser Special Committee shall, purchase before the Closing a six (6)-year prepaid “tail” policy on terms, conditions, retentions and limits of liability no less advantageous than its existing policies. If such tail policy is obtained, the Purchaser shall maintain it in full force and effect and honor all obligations thereunder, and its other maintenance obligations under this Section 8.12 shall terminate.
8.12.3 From and after the Closing, the Purchaser shall comply, and shall cause its Subsidiaries to comply, with their respective obligations to indemnify and hold harmless, including advancement of expenses, the Purchaser D&O Indemnified Parties against costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened civil, criminal, administrative or investigative claim, action, suit, proceeding or investigation arising out of their service as a director, officer or other fiduciary of the Purchaser or its Subsidiaries, or acts or omissions occurring or alleged to have occurred at or before the Closing, including approval of this Agreement, the Transactions and actions to enforce indemnification or advancement rights, to the extent provided by the applicable Organizational Documents and indemnification agreements in effect on the date hereof and to the fullest extent permitted by applicable Law.
8.12.4 If the Purchaser or any successor or assign consolidates with or merges into any Person and is not the continuing or surviving entity, or transfers all or substantially all of its properties and assets to any Person, proper provision shall be made so that its successors and assigns assume the obligations in this Section 8.12.
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8.12.5 This Section 8.12 is in addition to any other rights of a Purchaser D&O Indemnified Party under the Purchaser’s or any Subsidiary’s Organizational Documents, any agreement or applicable Law. It shall survive the Closing and be enforceable by each Purchaser D&O Indemnified Party and their heirs and legal representatives as third-party beneficiaries. Its obligations shall not be terminated or modified adversely to any such Person without that Person’s consent. The claim procedures and survival periods of Article V do not limit this Section 8.12.
8.12.6 Nothing in this Agreement shall release, waive or impair any rights to directors’ and officers’ insurance claims under any current or former policy with respect to the Purchaser, its Subsidiaries or their officers, directors and employees; indemnification under this Section 8.12 is not prior to or in substitution for such insurance claims.
8.13 Registration Covenant
8.13.1 Subject to the following provisions of this Section 8.13, upon a written request from a holder of Registrable Securities made at any time following the twelve (12) month anniversary of the Closing Date, the Purchaser shall, as soon as reasonably practicable following such request, prepare and file with the SEC a resale registration statement on Form S-3 (or, if Form S-3 is not then available, Form S-1 or another appropriate form) under the Securities Act covering the resale from time to time of the Purchaser Common Stock issued as, or issuable upon conversion of, the Purchaser Stock Consideration and held from time to time by the Seller Parties or any permitted transferee bound by the Lock-up Agreement (the “Registrable Securities”). The Purchaser shall use commercially reasonable efforts to cause the registration statement to be declared effective under the Securities Act as soon as reasonably practicable after filing, but in no event later than the expiration of the lock-up period under the Lock-up Agreement, and to keep the registration statement effective and the related prospectus available until the earlier of (i) the sale of all Registrable Securities covered thereby and (ii) the date on which all Registrable Securities may be sold under Rule 144 under the Securities Act without volume or manner-of-sale limitations. Each holder of Registrable Securities shall furnish in writing such information regarding itself, the Registrable Securities held by it and the intended method of disposition and shall execute such customary documents as the Purchaser may reasonably request in connection with the registration.
8.13.2 Demand Limitations. The Purchaser shall not be required to effect more than six (6) demand registrations under this Section 8.13 in the aggregate for all holders of Registrable Securities. Each demand shall cover Registrable Securities having an aggregate market value of at least US$5,000,000, calculated using the closing price of the Purchaser Common Stock on the trading day immediately preceding the demand. A registration shall count toward this limit only when the registration statement becomes effective. No additional demand shall be required for amendments or supplements necessary to maintain a registration statement as required by this Section 8.13.
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8.13.3 Blackout and Suspension. Upon written notice to the holders, the Purchaser may defer the filing or effectiveness of a registration statement, or suspend its use, if the Purchaser Board determines in good faith, after consultation with outside legal counsel, that proceeding would require premature disclosure of material non-public information that would materially prejudice the Purchaser or materially interfere with a pending financing or other material transaction. The Purchaser may also defer a requested registration during the period beginning thirty (30) days before the anticipated filing of a registration statement for an offering by the Purchaser and ending sixty (60) days after its effectiveness, provided that the Purchaser is actively pursuing that offering. Such deferrals and suspensions shall not exceed forty-five (45) days on any one occasion or ninety (90) days in aggregate during any twelve-month period. These limits shall not apply to a suspension required by applicable Law or an SEC order. Upon receipt of a suspension notice, each holder shall discontinue offers and sales under the registration statement until the Purchaser notifies it that use may resume. The Purchaser shall give such notice promptly after the grounds for suspension cease to exist.
8.13.4 Cut-Backs. If the SEC requires a reduction in the number of Registrable Securities included in a registration statement, the Purchaser may reduce that number to the extent reasonably required. If an underwritten resale offering is separately agreed by the Purchaser and the managing underwriter advises in writing that the number of Registrable Securities requested to be included would materially adversely affect the offering, the number included may be reduced accordingly. Any reduction among holders of Registrable Securities shall be allocated pro rata based on the number requested to be included by each holder. The Purchaser shall use commercially reasonable efforts to register any securities excluded at the SEC’s request when permitted by the SEC, without treating the additional filing as a separate demand.
8.13.5 Expenses. The Purchaser shall bear the registration and filing fees, printing expenses and fees and expenses of its counsel and accountants incurred in performing its obligations under this Section 8.13. Each holder shall bear its own counsel and adviser fees, underwriting discounts and commissions, brokerage fees and transfer taxes attributable to its sales of Registrable Securities.
8.13.6 Holder Indemnification. Each holder participating in a registration shall, severally and not jointly, indemnify and hold harmless the Purchaser, its directors and officers and each Person controlling the Purchaser within the meaning of the Securities Act against Losses arising out of any untrue or alleged untrue statement of a material fact, or omission or alleged omission of a material fact required to be stated or necessary to make the statements not misleading, in the registration statement or related prospectus or any amendment or supplement thereto, but only to the extent made in reliance upon and in conformity with information furnished in writing by that holder expressly for use therein. Each holder shall also indemnify such Persons against Losses arising from its use of the registration statement or prospectus in violation of a suspension notice received under Section 8.13.3. Except in the case of fraud, a holder’s aggregate liability under this paragraph shall not exceed the net proceeds received by that holder from the sales giving rise to the claim. The claim procedures in Section 5.2.4 shall apply, mutatis mutandis, to claims under this paragraph.
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8.14 Internal Restructuring
FFAI and the Company shall, and shall cause their applicable Subsidiaries to, complete the Internal Restructuring before the date hereof or, to the extent not completed before signing, as a condition to Closing, in accordance with the agreed structure described in the Seller Disclosure Schedule and approved by the Purchaser Special Committee (such approval not to be unreasonably withheld, delayed or conditioned). All assets, intellectual property, data, contracts, employees and liabilities relating to the Robotics Business shall be vested in the Company or its Subsidiaries, with all required consents and assignments obtained. The Seller Parties shall deliver the restructuring instruments and evidence of completion to the Purchaser and shall not include liabilities unrelated to the Robotics Business without the Purchaser Special Committee’s prior written approval (such approval not to be unreasonably withheld, delayed or conditioned).
8.15 Financing Cooperation
The Purchaser and the Seller Parties shall use commercially reasonable efforts to cooperate in good faith in a private placement of Purchaser equity securities expected to close concurrently with the Transactions (the “Concurrent PIPE”), including investor outreach and negotiation, due diligence support, investment documentation and registration statement preparation. The Concurrent PIPE shall consist solely of equity securities, without convertible notes or other debt securities, for aggregate gross proceeds of not more than US$30,000,000, priced at the “Minimum Price” under Nasdaq Listing Rule 5635(d), being the lower of (i) the Nasdaq Official Closing Price of Purchaser Common Stock immediately preceding the signing of the binding Concurrent PIPE agreement and (ii) the average Nasdaq Official Closing Price of Purchaser Common Stock for the five (5) trading days immediately preceding such signing. The final pricing and allocations of the Concurrent PIPE, including any participation by either Seller Party or any of its Affiliates, shall require the prior approval of the Purchaser before any binding commitment is entered into. The Seller Parties shall identify any proposed participation by their Affiliates and provide the proposed investment amounts and allocations. Upon request of the Purchaser Special Committee prior to the Closing or the disinterested members of the Purchaser Board after the Closing, the Purchaser and the Seller Parties shall provide a twelve-month cash-flow forecast and liquidity analysis for the combined company, and the information relating to the Robotics Business reasonably required to prepare those materials. The Transactions shall not be conditioned on the Concurrent PIPE or any other financing.
8.16 Employee Matters
8.16.1 Employee Transition. The Purchaser shall cooperate with the Seller Parties and the Company in completing the employee transition documentation for, and onboarding of, each employee of the Target Companies or the Robotics Business identified on the transition list agreed in writing by FFAI and the Purchaser (the “Transition List” and such employees, the “Target Company Employees”), including by arranging valid work authorization (including any required visa or immigration sponsorship, transfer or filing) and applicable benefits coverage for each Target Company Employee, effective as of the Closing or the applicable transfer date. The Seller Parties shall deliver to the Purchaser before the Closing the Transition List, together with supporting records, quantifying each Target Company Employee’s accrued but unused vacation/PTO and sick leave balances and any bonus or commission amounts to be assumed under Sections 8.16.4 and 8.16.5, and shall update such balances and amounts as of the Closing and any applicable transfer date, subject to the Purchaser’s written agreement to the amounts to be assumed.
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8.16.2 Recognition of Prior Service. The Purchaser shall, and shall cause its Subsidiaries to, recognize each Target Company Employee’s original service date and prior tenure with FFAI, the Target Companies and their respective Affiliates and predecessors for all purposes under the employee benefit plans, programs, policies and arrangements of the Purchaser and its Subsidiaries in which such Target Company Employee participates, including for purposes of eligibility, vesting, level of benefits, vacation and paid time off accrual and severance.
8.16.3 Continuity of Compensation. Each Target Company Employee shall transfer to the Purchaser or its applicable Subsidiary on a flat-transfer basis and shall retain his or her existing compensation, consistent with such Target Company Employee’s current agreed terms. Any adjustment to the compensation of a Target Company Employee in connection with such transfer shall require the mutual written agreement of the human resources functions of FFAI and the Purchaser.
8.16.4 Accrued PTO and Sick Leave. The Purchaser shall, or shall cause its applicable Subsidiary to, assume and honor all accrued but unused vacation, paid time off and sick leave balances of each Target Company Employee as of the Closing or the applicable transfer date.
8.16.5 Outstanding Bonuses and Sales Commissions. Upon the transfer of the Target Company Employees, the Purchaser shall assume responsibility for (i) the remaining accrued performance bonuses for the second half of 2026, (ii) unpaid SOD and CEP bonuses, (iii) all outstanding earned but unpaid sales commissions and (iv) any other unsettled bonuses, in each case applicable to the Target Company Employees. Such payments shall be administered in accordance with the Purchaser’s human resources policies and subject to the applicable approvals of the Purchaser’s management and the Purchaser Board. Such amounts shall not be borne by the Seller Parties.
8.16.6 Equity Compensation for Salary Reductions. The Purchaser shall assume the equity compensation obligations arising from salary reductions accepted by the Target Company Employees identified on the Transition List, and shall satisfy such obligations through the grant of restricted stock units in respect of Purchaser Common Stock (“Purchaser RSUs”). Such arrangement shall be implemented in accordance with the equity plan previously agreed between FFAI and such Target Company Employees. If the Purchaser does not have sufficient shares of Purchaser Common Stock available under its equity incentive plan(s) to grant such Purchaser RSUs, the grant of such Purchaser RSUs may be deferred to the next applicable grant window in which sufficient shares are available.
8.16.7 No Third-Party Rights. Nothing in this Section 8.16, express or implied, shall (i) confer upon any Target Company Employee or any other Person (other than the Parties) any rights or remedies, including any right to employment or continued employment for any period, or (ii) be construed as an amendment to or establishment of any Plan or other benefit plan, program, agreement or arrangement.
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8.16.8 WARN Matters. Prior to the Closing, the Seller Parties and the Company shall not, and shall cause the Target Companies not to, implement or announce any plant closing, mass layoff, relocation, reduction in force or other termination of employment in respect of the Robotics Business that could result in obligations under any WARN Law without the Purchaser’s prior written consent (not to be unreasonably withheld, conditioned or delayed). As between the Parties, the Seller Parties shall be jointly and severally responsible for, and shall indemnify the Purchaser and its Affiliates, subject to the procedures and limitations applicable to claims under Section 5.2.1(b), against all Liabilities arising under any WARN Law to the extent resulting from (a) any action taken by either Seller Party or any Target Company in respect of the Robotics Business on or before the Closing, or (b) any employment loss in respect of the Robotics Business occurring on or before the Closing, including any such action or employment loss aggregated with an action or employment loss occurring after the Closing. The Purchaser shall be responsible for Liabilities under WARN Laws to the extent resulting solely from actions taken by the Purchaser after the Closing that were not required, committed to or announced by either Seller Party or any Target Company before the Closing. The Parties shall reasonably cooperate in providing any notices required under applicable WARN Laws.
Article IX
Conditions to Closing
9.1 Conditions Precedent to Obligations of the Purchaser
The obligations of the Purchaser to consummate the Transactions shall be subject to the satisfaction (or waiver by the Purchaser with the approval of the Purchaser Special Committee), at or prior to the Closing Date, of all of the following conditions:
9.1.1 Representations and Warranties regarding the Seller Parties. (i) The representations and warranties regarding the Seller Parties contained in Article II (other than the Seller Fundamental Representations), when read without any qualifications relating to “materiality” shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such specified date), and (ii) the Seller Fundamental Representations shall be true and correct in all respects on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such specified date).
9.1.2 Representations and Warranties regarding the Target Companies. (i) The representations and warranties regarding the Target Companies contained in Article III (other than the Company Fundamental Representations), when read without any qualifications relating to “materiality” or “Company Material Adverse Effect,” shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such specified date), and (ii) the Company Fundamental Representations shall be true and correct in all respects on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such specified date).
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9.1.3 Performance. The Seller Parties and the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them or the Target Companies prior to or on the Closing Date.
9.1.4 Regulatory Approvals and Consents. All Regulatory Approvals and the consents specified in Section 3.3.3 of the Seller Disclosure Schedule required to consummate the Transactions at the Closing shall have been obtained.
9.1.5 No Restraints. No Governmental Authority shall have commenced or threatened to commence a material Proceeding to challenge, restrain or otherwise interfere with the Transactions and no Law or Governmental Order prohibiting consummation of the Transactions shall be in effect.
9.1.6 No Company Material Adverse Effect. There shall not have occurred a Company Material Adverse Effect since the date hereof.
9.1.7 Key Employees. Each Key Employee shall have entered into that certain employment agreement, with the applicable Target Company, effective as of the Closing Date, in a form reasonably acceptable to the Purchaser (the “Employment Agreements”) or otherwise agree to continue employment with such Target Company on terms reasonably acceptable to the Purchaser.
9.1.8 Execution of Transaction Documents. The Seller Parties and their respective Affiliates (as applicable) shall have executed and delivered to the Purchaser counterparts to the Transaction Documents to which the Seller Parties and their respective Affiliates are parties, as applicable.
9.1.9 Internal Restructuring. The Internal Restructuring shall have been completed in accordance with Section 8.14.
9.1.10 Closing Certificate. Each Seller Party shall have delivered to the Purchaser a certificate, signed by an executive officer of such Seller Party, and dated as of the Closing Date, certifying as to the matters set forth in Sections 9.1.1, 9.1.2, 9.1.3 and 9.1.6.
9.2 Conditions Precedent to Obligations of the Seller Parties
The obligations of the Seller Parties to consummate the Transactions shall be subject to the satisfaction (or written waiver by both Seller Parties, where permissible, with any such waiver by either Seller Party given only with the approval of the FFAI Special Committee)), at or prior to the Closing Date, of all of the following conditions:
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9.2.1 Representations and Warranties regarding the Purchaser. (i) The representations and warranties regarding the Purchaser contained in Article IV (other than the Purchaser Fundamental Representations), when read without any qualifications relating to “materiality,” or “Purchaser Material Adverse Effect,” shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such specified date), and (ii) the Purchaser Fundamental Representations shall be true and correct in all respects on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such specified date).
9.2.2 Performance. The Purchaser shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed and complied with by it prior to or on the Closing Date.
9.2.3 No Restraints. No Governmental Authority shall have commenced or threatened to commence a material Proceeding to challenge, restrain or otherwise interfere with the Transactions and no Law or Governmental Order prohibiting consummation of the Transactions shall be in effect.
9.2.4 No Purchaser Material Adverse Effect. There shall not have occurred a Purchaser Material Adverse Effect since the date hereof.
9.2.5 Execution of Transaction Documents. The Purchaser and Merger Sub shall have executed and delivered to the Seller Parties counterparts to the Transaction Documents to which each is a party.
9.2.6 Closing Certificate. The Purchaser shall have delivered to the Seller Parties a certificate, signed by an executive officer of the Purchaser and dated as of the Closing Date, certifying as to the matters set forth in Sections 9.2.1, 9.2.2 and 9.2.4.
9.3 Frustration of Certain Closing Conditions
None of the Parties may rely on the failure of any condition set forth in this Article IX to be satisfied if such failure was caused by the failure of such Party (or an Affiliate thereof) to act in good faith or use its reasonable best efforts to satisfy all conditions set forth in this Article IX.
Article
X
TERMINATION
10.1 Termination
This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Closing as follows:
10.1.1 by the mutual written consent of the Purchaser, with the approval of the Purchaser Special Committee, and FFAI, with the approval of the FFAI Special Committee;
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10.1.2 by the Purchaser (if it is not in material breach of its representations, warranties or covenants under this Agreement), upon written notice to both Seller Parties, if there has been a violation, breach or inaccuracy of any representation, warranty or covenant of either Seller Party or the Company contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Sections 9.1.1, 9.1.2 or 9.1.3 not to be satisfied, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the applicable Seller Party or the Company within ten (10) days after receipt by both Seller Parties of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Termination Date;
10.1.3 by FFAI (if neither Seller Party is in material breach of its representations, warranties or covenants under this Agreement), upon written notice to the Purchaser, if there has been a violation, breach or inaccuracy of any representation, warranty or covenant of the Purchaser contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Sections 9.2.1 or 9.2.2 not to be satisfied, and such violation, breach or inaccuracy has not been waived by both Seller Parties or cured by the Purchaser within ten (10) days after receipt by the Purchaser of written notice thereof from the Seller Parties or is not reasonably capable of being cured prior to the Termination Date;
10.1.4 by the Purchaser or FFAI, if the Transactions have not been consummated on or before December 31, 2026 (the “Termination Date”); provided that, neither the Purchaser nor the Seller Parties shall be entitled to terminate this Agreement pursuant to this Section 10.1.4 if a material breach by the Purchaser (if it seeks to terminate) or either Seller Party (if the Seller Parties seek to terminate) of this Agreement has been the primary cause of the failure of the Closing to occur on or before such date; or
10.1.5 by the Purchaser or FFAI, if a permanent injunction or other permanent Governmental Order issued by a court of competent jurisdiction shall have become final and non-appealable, preventing the consummation of the Transactions; provided that, neither the Purchaser nor the Seller Parties shall be entitled to terminate this Agreement pursuant to this Section 10.1.5 if a material breach by the Purchaser (if it seeks to terminate) or either Seller Party (if the Seller Parties seek to terminate) of this Agreement has been the primary cause of the entry of such permanent injunction or other permanent Governmental Order, as applicable.
10.2 Effect of Termination
If this Agreement is terminated pursuant to this Article X, all further obligations of the Parties under this Agreement (other than those contained in Sections 8.9, 8.10, 10.2, Article XI and Article XII which shall continue in effect) shall be terminated and shall be of no further force and effect, and no Party or its respective Representatives or Affiliates shall have any further liability to any other Party; provided that, nothing herein shall relieve any Party from liability for such Party’s willful breach of this Agreement or fraud prior to such termination.
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Article
XI
Definitions; Cross-References to Other Defined Terms
11.1 Definitions
When used in this Agreement, the following terms have the meanings set forth below:
“Accounting Standards” means U.S. GAAP.
“Acquisition Proposal” means any proposal or offer to acquire all or a substantial part of the business or properties of the Target Companies, taken as a whole, or any Share Capital of any Target Company, whether by merger, tender offer, exchange offer, sale of assets or similar transaction involving the Target Companies, divisions or operating or principal business units.
“Affiliate” means, with respect to any particular Person, any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise. For the purposes of this Agreement, (i) unless otherwise set forth herein, in no event shall either Seller Party or, prior to the Closing, any Target Company be deemed as an Affiliate of the Purchaser, and (ii) in no event shall the Purchaser or its controlled Affiliates be deemed as an Affiliate of either Seller Party.
“Agreement” means this Transaction Agreement, including all Exhibits and Schedules hereto, as it may be amended from time to time in accordance with its terms.
“Business” means the Robotics Business.
“Business Day” means a calendar day on which banks are open for business in each of the States of New York and Delaware.
“CFIUS” means the Committee on Foreign Investment in the United States and each member agency thereof acting in such capacity.
“CFIUS Regulations” means 31 C.F.R. Parts 800 through 802, and “DPA” means Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4565).
“CFIUS Control” has the meaning given to “control” in 31 C.F.R. § 800.208; “Critical Technologies” has the meaning in § 800.215; “Covered Investment Critical Infrastructure” in § 800.212; “Foreign Government” in § 800.221; “Foreign Person” in § 800.224; “Material Nonpublic Technical Information” in § 800.232; “Sensitive Personal Data” in § 800.241; “Substantial Interest” in § 800.244; “Substantive Decisionmaking” in § 800.245; “TID U.S. Business” in § 800.248; and “U.S. Regulatory Authorization” in § 800.254, in each case of the CFIUS Regulations.
“Code” means the Internal Revenue Code of 1986, as amended.
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“Company-Owned IP Rights” means all Intellectual Property Rights owned or purported to be owned by any Target Company.
“Company Fundamental Representations” means Section 3.1 (Organization), Section 3.2 (Share Capital and Related Matters), Section 3.3 (Authorization; No Breach; Valid and Binding Agreement) and Section 3.14 (Brokerage).
“Company IP Rights” means (a) all Intellectual Property Rights, other than Company-Owned IP Rights, for which any Target Company holds or purports to hold, or has been granted, any licenses, immunities, or other rights, or which are used or held for use in, or necessary for, the operation of the businesses of the Target Companies as presently conducted; and (b) all Company-Owned IP Rights.
“Company Material Adverse Effect” means any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, (a) has had or is reasonably expected to have a materially adverse effect on the business, results of operations, prospects, condition (financial or otherwise) or assets of the Target Companies taken as a whole or (b) has or is reasonably expected to prevent, materially impair or materially delay either Seller Party or any Target Company from consummating the Transactions; provided that, with respect to clause (a), none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: any adverse change, effect, event, occurrence, state of facts or development attributable to (i) any downturn after the date hereof in general economic conditions, including changes in the credit, debt, securities, financial, capital markets, or in the industry in which the Target Companies operate; (ii) the taking of any action required by this Agreement; (iii) any change after the date hereof in applicable Laws or the interpretation thereof after the date hereof; (iv) any actual or potential sequester, stoppage, shutdown, default or similar event or occurrence by or involving any Governmental Authority affecting a national or federal government as a whole; (v) any change in the Accounting Standards after the date hereof; (vi) the commencement, continuation or escalation of a war, riots, material armed hostilities or other material international or national calamity or act of terrorism directly or indirectly involving any territory in which the Target Companies operate; (vii) effects arising from or relating to, following the date hereof, any earthquake, hurricane, tsunami, tornado, flood, mudslide or other natural disaster, weather condition, explosion or fire or other force majeure event; (viii) changes in, or effects arising from or relating to, any epidemic, pandemic or disease outbreak, curfews or other restrictions that relate to, or arise out of, any epidemic, pandemic or disease outbreak or material worsening of such conditions threatened or existing as of the date hereof; and (ix) the failure of the Target Companies to meet or achieve the results set forth in any internal projection (provided that, this clause (ix) shall not prevent a determination that any change or effect underlying such change has resulted in a Company Material Adverse Effect); provided that, in the case of clauses (i), (iii), (iv), (v), (vi), (vii), and (viii) above, if such change, effect, event, occurrence, state of facts or development disproportionately affects the Target Companies as compared to other Persons or businesses that operate in the industry in which the Target Companies operate, then the disproportionate aspect of such change, effect, event, occurrence, state of facts or development may be taken into account in determining whether a Company Material Adverse Effect has or will occur.
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“Contract” means any written or oral agreement, contract, indenture, lease, sublease, instrument, arrangement, license, sublicense, obligation or commitment, in each case, that is legally binding (and in each case, including any amendments and modifications thereto).
“Data Security Program Rule” means 28 C.F.R. Part 202, as amended, and the terms “country of concern,” “covered person,” “covered data transaction,” “bulk,” and “government-related data” have the meanings given in such rule.
“Encumbrances” means any Lien, voting agreement, voting trust, proxy, option, right of purchase, right of first refusal, right of first offer, restriction on transfer or any other similar arrangement or restriction of any kind whatsoever, including any restriction on transfer or other assignment, as security or otherwise, of or relating to use, voting, receipt of income or exercise of any other attribute of ownership.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Ratio” means 0.89 (subject to adjustment as appropriate to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Purchaser Common Stock prior to the Effective Time).
“Export Control Laws” means the Export Administration Regulations (15 C.F.R. Parts 730–774), the Export Control Reform Act of 2018 (50 U.S.C. § 4801 et seq.), the International Traffic in Arms Regulations (22 C.F.R. Parts 120–130), the Arms Export Control Act (22 U.S.C. § 2778), and all other applicable export, reexport, and transfer control Laws.
“Governmental Authority” means any federal, national, supranational, foreign, state, provincial, local, county, municipal or other government, any governmental, regulatory or administrative authority, agency, department, bureau, board, commission or official or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority, or any court, tribunal, judicial or arbitral body or arbitrator (public or private), or any Self-Regulatory Organization (in each case to the extent that the rules, regulations or orders of such body or authority have the force of Law).
“Governmental Order” means any judgment, ruling, order, writ, injunction, award or decree of any Governmental Authority.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (15 U.S.C. § 18a), and the rules promulgated thereunder (16 C.F.R. Parts 801–803).
“Intellectual Property Rights” means all (i) patents, patent applications, patent disclosures and inventions (whether patentable or unpatentable and whether or not reduced to practice) (collectively, “Patents”), (ii) trademarks, service marks, trade dress, trade names, logos and corporate names and registrations and applications for registration thereof, together with all of the goodwill associated therewith (collectively, “Marks”), (iii) copyrights (registered or unregistered) and copyrightable works and registrations and applications for registration thereof (collectively, “Copyrights”), (iv) computer software, data, data bases and documentation thereof, (v) trade secrets and other confidential information (including, ideas, formulas, compositions, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial and marketing plans and customer and supplier lists and information) (collectively, “Trade Secrets”), (vi) internet domain names and web sites, (vii) other intellectual property rights, (viii) registrations and applications for any of the foregoing, and (ix) copies and tangible embodiments thereof (in whatever form or medium).
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“Intellectual Property License Agreements” means the written, long-term license agreements for the shared software and technology identified in Section 3.11.2 of the Seller Disclosure Schedule, effective as of the Closing and in form and substance mutually approved by Seller Parties and the Purchaser Special Committee.
“Key Employees” means Yueting Jia and Jiawei (Jerry) Wang.
“Knowledge” means, with respect to an individual, the actual knowledge of such Person after due inquiry, and with respect to a Person who is not an individual, the actual knowledge after due inquiry of any director or officer of such Person.
“Law” means any law (statutory, common or otherwise), statute, ordinance, regulation, rule, code, treaty, directive, executive order, injunction, judgment, decree or other order of a Governmental Authority.
“Lien” or “Liens” means any mortgage, pledge, security interest, encumbrance, lien, limitation, condition, or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), or any subordination arrangement in favor of another Person (other than any subordination arising in the ordinary course of business).
“Liability” means any liability or obligation (whether known or unknown, absolute or contingent, whether liquidated or unliquidated and whether due or to become due).
“Lock-up Agreement” means that certain lock-up agreement to be entered into by and among the Purchaser and the Seller Parties, effective as of the Closing Date, in substantially the form attached hereto as Exhibit A.
“Look-back Date” means January 1, 2025.
“Loss” or “Losses” means all orders, decrees, rulings, damages, penalties, fines, costs, amounts paid in settlement in accordance with Article V, Liabilities, losses, expenses and fees (including arbitral tribunal costs and reasonable attorneys’ fees and expenses).
“Nasdaq” means the Nasdaq Stock Market.
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“Open Source Software” means any Software or Software component that is subject to an open-source copyright license agreement. Qualifying open-source copyright license agreements include, but are not limited to, Apache License 2.0, BSD 3-Clause “New” or “Revised” license, BSD 2-Clause “Simplified” or “FreeBSD” license, GNU General Public License, GNU Library or “Lesser” General Public License, MIT License, Mozilla Public License 2.0, Common Development and Distribution License, Eclipse Public License, and any other obligations, restrictions, or license agreements that substantially conform to the “Open Source Definition” as prescribed by the Open Source Initiative or otherwise may require third-party disclosure or licensing if any source code of such software components is used or compiled.
“Ordinary Course of Business” means, with respect to any Person, actions that are taken in the ordinary course and consistent with the past practices and normal day-to-day operations of such Person.
“Organizational Documents” means, with respect to a Person that is not an individual, its articles of incorporation, certificate of incorporation, certificate of formation, bylaws, memorandum and/or articles of incorporation, operating agreement, certificate of limited partnership, partnership agreement and/or similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation, incorporation or organization of such Person, including any amendments thereto.
“PCAOB” means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“PCAOB Audited Financial Statements” means the consolidated or combined balance sheet of the Robotics Business as of December 31, 2025 and statements of income, changes in shareholder equity and cash flows for 2025, audited in accordance with PCAOB auditing standards by a PCAOB-registered independent public accounting firm, together with any additional audited historical financial information required by the SEC Guidance.
“Permitted Liens” means (i) Tax Liens with respect to Taxes not yet due and payable or which are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with the Accounting Standards; (ii) deposits or pledges made in connection with, or to secure payment of, utilities or similar services, workers’ compensation, unemployment insurance, old age pensions or other social security obligations; (iii) interests or title of a lessor under any of the Leases; (iv) mechanics’, materialmen’s or contractors’ Liens or encumbrances or any similar Lien or restriction for amounts not yet due and payable; and (v) easements, rights-of-way, restrictions and other similar charges and encumbrances not interfering with the ordinary conduct of the business of such Person or detracting from the value of the assets of such Person.
“Permit” means any franchise, license, permit, consent and order of any Governmental Authority necessary for such applicable Person to own, lease and operate its properties or to carry on its business.
“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof.
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“Personal Information” means information that, alone or in combination with other information, allows the identification of an individual or can be used to contact an individual, directly or indirectly, including name; social security number; government-issued identification numbers or other identification numbers; health or medical information, including health insurance information; credit or payment card or financial account information; passport numbers; user names/email addresses in combination with a password or security code that would allow access to an online account; unique biometric identifiers (e.g., fingerprints, retinal scans, face scans, or DNA profile); employee ID numbers; date of birth; digital signature; Internet Protocol (IP) addresses or other information that is regulated by one or more Privacy Laws.
“Plan” means each benefit or compensation plan, policy, program, practice, agreement, understanding or arrangement, whether written or oral, (including all cash incentive, bonus, deferred compensation, profit sharing, equity appreciation, phantom equity, equity purchase, stock or share option or other incentive equity or equity or equity-based arrangement, and any employment, individual consulting, service, termination, retention, bonus, change in control, severance, retirement, pension, savings, vacation, fringe, paid time off, disability, health and welfare, post-termination or retiree health and welfare plan, program, policy, agreement, arrangement or Contract) that is: (A) sponsored, maintained, contributed to or required to be contributed to by any Target Company or (B) with respect to which any Target Company has or could reasonably be expected to have any actual or contingent liability or obligation.
“PRC” means the People’s Republic of China, including the Hong Kong and Macau Special Administrative Regions.
“PRC Government Person” means (i) any Governmental Authority of the PRC at any level, including the government of Hubei Province and of Huanggang Municipality and any of their agencies, instrumentalities, or investment vehicles; (ii) the Chinese Communist Party; and (iii) any Person in which any of the foregoing, individually or in the aggregate, holds directly or indirectly a 10% or greater equity or voting interest or over which it has CFIUS Control.
“Pre-Closing Fees” has the meaning set forth in the Transition Service Agreement.
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“Pre-Closing Taxes” means, without duplication, (i) any and all Taxes of or imposed on the Target Companies for any and all Pre-Closing Tax Periods (including, without limitation, any and all Taxes imposed on the Target Companies resulting from any Tax election made on or prior to Closing or by or at the direction of the Seller Parties), (ii) any and all Taxes of or imposed on the Target Companies for any and all portions of Straddle Periods ending on the Closing Date (determined in accordance with Section 7.5 hereof), (iii) any and all Taxes of an “affiliated group” (as defined in Section 1504 of the Code) (or affiliated, consolidated, unitary, combined or similar group under applicable state, local or non-U.S. Law) of which the Target Companies (or any predecessor of any such Person) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local or non-U.S. Tax Law), (iv) any and all Taxes of or imposed on either Seller Party or any of their respective Affiliates, including Taxes of either Seller Party or any of their respective Affiliates imposed on the Purchaser or any of its Affiliates, or the Target Companies as a result of transferee, successor or similar liability (including bulk transfer or similar Laws) or pursuant to any Law or otherwise, which Taxes relate to an event or transaction (including transactions contemplated by this Agreement) occurring on or before the Closing Date, (v) any and all Transfer Taxes required to be paid by the Seller Parties pursuant to Section 7.3, (vi) any and all Taxes of or imposed on the Purchaser or any of its Affiliates (including the Target Companies) as a result of an inclusion under Section 951(a) or Section 951A of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) attributable to (a) “subpart F income,” within the meaning of Section 952 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) of the Target Companies received or accrued on or prior to the Closing Date, (b) the holding of “United States property,” within the meaning of Section 956 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) by the Target Companies on or prior to the Closing Date, or (c) “global intangible low-taxed income” or “net CFC tested income,” as the case may be, within the meaning of Section 951A of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) received or accrued on or prior to the Closing Date that is attributable to any Target Company, in each case, determined as if the taxable years of the Target Companies ended on the Closing Date, (vii) Taxes of, or related to, the Target Companies resulting from an election pursuant to Section 965(h) of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) to pay the “net tax liability” (as defined under Section 965(h) of the Code) in installments, (viii) any and all withholding Taxes required to be deducted and withheld with respect to payments made by the Purchaser to either Seller Party (or by any Target Company to either Seller Party) pursuant to applicable Tax laws in connection with the transactions contemplated pursuant to this Agreement, and (ix) any and all amounts required to be paid by the Target Companies pursuant to any Tax sharing agreement, Tax allocation agreement, Tax holiday agreement, Tax abatement agreement, Tax indemnity or other similar arrangement to which either Seller Party or any of the Target Companies was a party on or prior to the Closing Date. Notwithstanding anything to the contrary herein, “Pre-Closing Taxes” shall not take into account and shall not be reduced by any carryback of any Tax attribute (including any net operating loss carryback) arising in any Tax period ending after the Closing Date.
“Pre-Closing Tax Period” means any taxable period ending on or prior to the Closing Date, and with respect to any Straddle Period, the portion of such period ending on (and including) the Closing Date.
“Privacy Laws” means all applicable Laws concerning the privacy, collection, receipt, storage, compilation, transfer, disposal, security (both technical and physical), disclosure, transfer, processing, protection, sharing, breach or other use of Personal Information, and all regulations promulgated thereunder.
“Proceeding” means any action, charge, claim, investigation, mediation, hearing, arbitration, suit, litigation, inquiry or other proceeding by or before any Governmental Authority or arbitrator.
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“Purchaser Common Stock” means common stock of the Purchaser, par value U.S. $0.001 per share.
“Purchaser Fundamental Representations” means Section 4.1 (Organization), Section 4.2 (Authorization; No Breach; Valid and Binding Agreement), Section 4.5 (Capitalization) and Section 4.7 (Brokerage).
“Purchaser Material Adverse Effect” means any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, (a) has had or is reasonably expected to have a materially adverse effect on the business, results of operations, prospects, condition (financial or otherwise) or assets of the Purchaser and its Subsidiaries taken as a whole or (b) has or is reasonably expected to prevent, materially impair or materially delay the Purchaser from consummating the Transactions; provided that, with respect to clause (a), none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Purchaser Material Adverse Effect: any adverse change, effect, event, occurrence, state of facts or development attributable to (i) any downturn after the date hereof in general economic conditions, including changes in the credit, debt, securities, financial, capital markets, or in the industry in which the Purchaser and its Subsidiaries operate; (ii) the taking of any action required by this Agreement; (iii) any change after the date hereof in applicable Laws or the interpretation thereof after the date hereof; (iv) any actual or potential sequester, stoppage, shutdown, default or similar event or occurrence by or involving any Governmental Authority affecting a national or federal government as a whole; (v) any change in the Accounting Standards after the date hereof; (vi) the commencement, continuation or escalation of a war, riots, material armed hostilities or other material international or national calamity or act of terrorism directly or indirectly involving any territory in which the Purchaser and its Subsidiaries operate; (vii) effects arising from or relating to, following the date hereof, any earthquake, hurricane, tsunami, tornado, flood, mudslide or other natural disaster, weather condition, explosion or fire or other force majeure event; (viii) changes in, or effects arising from or relating to, any epidemic, pandemic or disease outbreak, curfews or other restrictions that relate to, or arise out of, any epidemic, pandemic or disease outbreak or material worsening of such conditions threatened or existing as of the date hereof; and (ix) the failure of the Purchaser and its Subsidiaries to meet or achieve the results set forth in any internal projection (provided that, this clause (ix) shall not prevent a determination that any change or effect underlying such change has resulted in a Purchaser Material Adverse Effect); provided that, in the case of clauses (i), (iii), (iv), (v), (vi), (vii), and (viii) above, if such change, effect, event, occurrence, state of facts or development disproportionately affects the Purchaser and its Subsidiaries as compared to other Persons or businesses that operate in the industry in which the Purchaser and its Subsidiaries operate, then the disproportionate aspect of such change, effect, event, occurrence, state of facts or development may be taken into account in determining whether a Purchaser Material Adverse Effect has or will occur.
“Purchaser Preferred Stock” means the non-voting convertible preferred stock of the Purchaser, par value U.S. $0.001 per share, with the terms specified in Section 1.4 and the Certificate of Designation.
“Purchaser Stock Price” means US$2.246.
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“Purchaser Stockholder Approval” means the approval of the Purchaser Stockholder Proposals by written consent in lieu of a meeting of the holders of the requisite voting power entitled to vote thereon, in accordance with applicable Law, the applicable Nasdaq Listing Rules and the Organizational Documents of the Purchaser.
“Purchaser Stockholder Proposals” means, collectively, the following proposals, or such other proposals as may be agreed upon between the Purchaser and the Seller Parties, to be approved by written consent of the Purchaser’s stockholders following the Closing in accordance with Section 8.3.3: (i) approval, for purposes of applicable Nasdaq Listing Rules, including Rules 5635(a), (b) and (d), as applicable, of the issuance of the Purchaser Stock Consideration and Purchaser Common Stock issuable upon conversion of the Purchaser Preferred Stock; and (ii) any amendment to the Purchaser’s certificate of incorporation required to authorize sufficient shares to effect the foregoing.
“Regulatory Approvals” means any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority.
“Representatives” means the officers, directors, managers, employees, attorneys, accountants, advisors, representatives, consultants and agents of a Person.
“Robotics Business” means the robotics business owned and operated by FFAI before the Internal Restructuring.
“Robotics Products” means all products and services designed, developed, manufactured, sold, leased, licensed, or supported by or for the Business, including the FF Futurist and FF Master humanoid robots and the FX Aegis quadruped robot, and all components, subassemblies, firmware, Software (including AI models and model weights), cloud and remote services, and Technology relating to any of them.
“Sanctioned Person” means a Person that is (i) the subject of Sanctions, (ii) located in or organized under the Laws of a country or territory which has been the subject of country- or territory-wide Sanctions within the past five (5) years (namely, Cuba, Iran, North Korea, Syria and the Crimea region of Ukraine), or (iii) majority-owned or controlled by a Person described in clause (i) or clause (ii).
“Sanctions” means those trade, economic and financial sanctions Laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by the United States Department of the Treasury, Office of Foreign Assets Control and the U.S. Department of State.
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Guidance” means (i) any publicly available written or oral interpretations, questions and answers, guidance and forms of the SEC, (ii) any oral or written comments, requirements or requests of the SEC or its staff, (iii) the Securities Act and the Exchange Act, and (iv) any other rules, bulletins, releases, manuals and regulations of the SEC.
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“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Self-Regulatory Organization” means any securities exchange, futures exchange, contract market, any other exchange or corporation or similar self-regulatory body or organization applicable to a Party.
“Seller Fundamental Representations” means Section 2.1 (Organization), Section 2.2 (Authorization; No Breach; Valid and Binding Agreement), Section 2.3 (Title to Company Stock) and Section 2.6 (Brokerage).
“Seller SEC Reports” means all reports filed or furnished by FFAI with the SEC on or after March 31, 2025.
“Share Capital” means (i) in the case of a corporation, any and all share capital, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of share capital, (iii) in the case of a partnership or limited liability company, any and all partnership or membership interests (whether general or limited), (iv) in any case, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, and (v) in any case, any right to acquire any of the foregoing.
“Software” means any and all computer software, documentation and code, including assemblers, applets, compilers, source code, source code listings, object code, data (including image and sound data), design tools and user interfaces, in any form or format, however fixed.
“Straddle Period” means any taxable period that includes (but does not end on) the Closing Date.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, more than fifty (50) percent of the total voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of members of the board of directors or similar body governing the affairs of such entity, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, more than fifty (50) percent of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a more than fifty (50) percent ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated more than 50% of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other business entity.
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“Support Agreement” means that certain voting and support agreement to be entered into by and among the Purchaser, the Seller Parties, FF Global Partners LLC, Yueting Jia, Jiawei Wang and any of their respective Affiliates that own or control voting shares of the Purchaser, in substantially the form attached hereto as Exhibit B.
“Target Companies” or “Target Company” means the Company and its Subsidiaries, and, after the Closing, the Surviving Company and its Subsidiaries, which shall include those entities disclosed in Section 3.1.1 of the Seller Disclosure Schedule.
“Tax” and “Taxes” means (i) any federal and state (including any subdivision, municipality, province or locality or any agency thereof) or other non-U.S. taxes, charges, withholdings, fees, levies, imposts, duties and governmental fees or other like assessments or charges of any kind whatsoever in the nature of taxes imposed by any taxing authority or Governmental Authority (including those related to income, net income, gross income, receipts, capital, windfall profit, severance, property (real and personal), production, sales, goods and services, use, business and occupation, license, excise, registration, franchise, employment, payroll (including social security contributions), deductions at source, withholding, alternative or add-on minimum, intangibles, ad valorem, transfer, gains, stamp, customs, duties, estimated, transaction, title, capital, paid-up capital, profits, premium, value added, recording, inventory and merchandise, business privilege, federal highway use, commercial rent or environmental tax, qui tam suits (or any similar or comparable suits) brought by any Person which is related or attributable to taxes and any liability under unclaimed property, escheat, or similar Laws), whether disputed or not, (ii) interest, penalties, fines, additions to tax or additional amounts imposed by any taxing authority or Governmental Authority in connection with (a) any item described in clause (i) or (b) the failure to comply with any requirement imposed with respect to any Tax Return, and (iii) liability in respect of any items described in clause (i) and/or (ii) payable by reason of contract (including any tax indemnity agreement, tax sharing agreement, tax allocation, tax holiday or tax abatement agreement or similar contract or arrangement), assumption, transferee, successor or similar liability, bulk sales or similar liability, operation of law (including pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local, or non-U.S. Law)) or otherwise.
“Tax Returns” means any returns, declarations, reports, claims or filings for refund or payment, and any informational returns or statements or other documents filed or required to be filed with a taxing authority in connection with the determination, assessment or collection of Tax or the administration of any Laws, regulations or administrative requirements relating to Taxes, including any schedule or attachment thereto, and including any amendment thereto.
“Transaction Documents” means this Agreement, the Employment Agreements, the Lock-up Agreement, the Support Agreement, the Certificate of Designation, the Transition Service Agreement and the Intellectual Property License Agreements.
“Transactions” means the transactions contemplated under this Agreement and all other Transaction Documents.
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“Transition Service Agreement” means that certain transition service agreement entered into by and between FFAI and the Company, effective as of October 1, 2026, substantially in the form attached hereto as Exhibit C.
“Treasury Regulations” means the Treasury regulations promulgated under the Code, as such Treasury Regulations may be amended from time to time. Any reference herein to a particular provision of the Treasury Regulations means, where appropriate, the corresponding successor provision.
“U.S. dollar” or “U.S. dollars” or “US$” means the lawful currency of the United States of America, unless otherwise specified.
“WARN Laws” means the federal Worker Adjustment and Retraining Notification Act of 1988, and any similar state, local or foreign law relating to plant closings, relocations, mass layoffs, reductions in force or employee notifications, including any regulations issued thereunder.
11.2 Cross-References
The following terms are defined in the following Sections of this Agreement:
| Term | Section | |
| Agreement | Preface | |
| Anticorruption Laws | Section 3.22.2 | |
| Assumed Option | Section 1.3.3(b) | |
| Audited Financial Statements | Section 3.4.1 | |
| Balance Sheet Date | Section 3.4.1 | |
| Cayman Seller | Preface | |
| Certificate of Designation | Section 1.4 | |
| Closing | Section 1.2 | |
| Closing Date | Section 1.2 | |
| Company | Preface | |
| Company Registered IP | Section 3.11.1 | |
| Company Software | Section 3.11.9 | |
| Company Stock | Recitals | |
| Company Systems | Section 3.11.10 | |
| Competitive Business | Section 6.1 | |
| Concurrent PIPE | Section 8.15 | |
| Contributor | Section 3.11.6 | |
| Covered Entity | Section 6.1 | |
Covered Territory DGCL |
Section 6.1 Section 8.3.3 | |
| Dispute | Section 12.1.1 | |
| Effective Time | Section 1.3.2 | |
| Employment Agreements | Section 9.1.7 | |
| Equity Exchange | Recitals | |
| Fairness Opinion | Recitals | |
| Fair Value | Section 3.8 | |
| FFAI | Preface |
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| Term | Section | |
| FFAI Board | Recitals | |
| FFAI Special Committee | Recitals | |
| Financial Statements | Section 3.4.1 | |
| Indemnification Notice | Section 5.2.4 | |
| Indemnified Party | Section 5.2.4 | |
| Indemnifying Party | Section 5.2.4 | |
| Information Statement | Section 8.3.1 | |
| Insurance Policies |
Section 3.19 | |
| Intended Tax Treatment | Recitals | |
| Interim Financial Statements | Section 3.4.1 | |
| Internal Restructuring | Recitals | |
| Lease or Leases | Section 3.7.2 | |
| Leased Real Property | Section 3.7.2 | |
| Material Contract | Section 3.10.1 | |
| Merger | Recitals | |
| Merger Sub | Preface | |
| Noncompete and Non-Solicitation Period | Section 6.1 | |
| Outstanding Options | Section 1.3.1 | |
| Parties | Preface | |
| Plan of Reorganization | Recitals | |
| Pre-Closing Tax Matter | Section 7.6 | |
| Purchase Price | Section 1.1 | |
| Purchaser | Preface | |
| Purchaser Board | Recitals | |
| Purchaser D&O Indemnified Parties | Section 8.12.1 | |
| Purchaser Disclosure Schedule | Article IV | |
| Purchaser Indemnitee | Section 5.2.1 | |
| Purchaser RSUs | Section 8.16.6 | |
| Purchaser Special Committee | Recitals | |
| Purchaser Stock Consideration | Section 1.3.1 | |
| Registrable Securities | Section 8.13.1 | |
| Seller Disclosure Schedule | Article III | |
| Seller Indemnitee | Section 5.2.3 | |
| Seller Party or Seller Parties | Preface | |
| Survival Date | Section 5.2.2 | |
| Surviving Company | Section 1.3.2 | |
| Target Company Employees | Section 8.16.1 | |
| Termination Date | Section 10.1.4 | |
| Third Party Proceeding | Section 5.2.4 | |
| Top Customers | Section 3.24 | |
| Transfer Taxes | Section 7.3 | |
| Transition List | Section 8.16.1 |
11.3 Construction
Unless otherwise expressly provided, for purposes of this Agreement, the following rules of construction shall apply:
11.3.1 Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day.
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11.3.2 Schedules and Exhibits. The Schedules and Exhibits to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.
11.3.3 Gender and Number. Any reference in this Agreement to gender shall include all genders, and words importing the singular number only shall include the plural and vice versa.
11.3.4 Headings. The provision of a Table of Contents, the division of this Agreement into Sections and clauses and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Section” or “clause” are to the corresponding Section or clause of this Agreement unless otherwise specified.
11.3.5 Herein. The words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.
11.3.6 Including. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
Article XII
Miscellaneous
12.1 Consent to Jurisdiction; Waiver of Jury Trial
12.1.1 Any Proceeding that is based upon, arises out of, in connection with or relates to this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby (a “Dispute”) shall be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of the Parties irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction of each such court in any such Dispute, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Dispute shall be heard and determined only in any such court, and (iv) agrees not to bring any Dispute based upon, arising out of or relating to this Agreement or other Transaction Documents or the transactions contemplated hereby or thereby in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence Proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Proceeding brought pursuant to this Section 12.1.1.
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12.1.2 EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE.
12.2 Consent to Amendments
Except as otherwise expressly provided herein, the provisions of this Agreement may be amended only with the written consent of all Parties, with the Purchaser’s consent, which may be given only with the approval of the Purchaser Special Committee for the period prior to the Closing or the disinterested members of the Purchaser Board for the period after the Closing, and each Seller Party’s consent, which, prior to the Closing, may be given only with the approval of the FFAI Special Committee. Any consent, approval, waiver, election, determination or termination by, and any exercise, waiver or enforcement of any right or remedy of, the Purchaser under this Agreement or any other Transaction Document shall require the prior approval of the Purchaser Special Committee for the period prior to the Closing or the disinterested members of the Purchaser Board for the period after the Closing, which shall have exclusive authority to act on behalf of the Purchaser in respect thereof. Any consent, approval, waiver, election, determination or termination by, and any exercise, waiver or enforcement of any right or remedy of, either Seller Party under this Agreement or any other Transaction Document prior to the Closing shall require the prior approval of the FFAI Special Committee, which shall have exclusive authority to act on behalf of the Seller Parties in respect thereof. No course of dealing between or among any persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any person under or by reason of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver.
12.3 Successors and Assigns; Benefits
Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by either Seller Party, the Company or Merger Sub without the prior written consent of the Purchaser, or by the Purchaser without the prior written consent of both Seller Parties. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns and nothing herein expressed or implied shall give or be construed to give any Person, other than the Parties and such permitted successors and assigns, any legal or equitable rights hereunder, except that the Purchaser Indemnitees shall be third-party beneficiaries and entitled to enforce Section 5.2.1, the Seller Indemnitees shall be third-party beneficiaries and entitled to enforce Section 5.2.3, and the Purchaser D&O Indemnified Parties shall be third-party beneficiaries and entitled to enforce Section 8.12.
12.4 Counterparts
This Agreement may be executed simultaneously in counterparts (including by means of facsimiled signature pages), any one of which need not contain the signatures of more than one Party, but all such counterparts taken together shall constitute one and the same Agreement.
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12.5 Governing Law
All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the Laws of the State of Delaware without giving effect to any choice of law or conflict of law rules or provisions.
12.6 Notices
All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when delivered personally to the recipient, (ii) one Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), five days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, (iii) when sent by facsimile to the recipient if sent before 5:00 p.m. New York time on a Business Day, or (iv) on the date sent by email if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient. Such notices, demands and other communications shall be sent to the applicable Party at the addresses indicated below or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party:
To
the Purchaser or Merger Sub (including in its capacity as the Surviving Company):
FF EAI Robotics Ecosystem Inc.
1990 E. Grand Ave.
El Segundo, CA 90245
Email: legal@aixcrypto.ai
with copies (which shall not constitute notice) to:
Loeb & Loeb LLP
2206-19 Jardine House, 1 Connaught Place, Hong Kong
Attention: Henry Yin; Benjamin Yao
Email: ***
and
Loeb & Loeb LLP
10100 Santa Monica Boulevard, Suite 2200, Los Angeles, CA
Attention: Victor Chen
Email: ***
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To FFAI:
1990 E Grand Ave.
El Segundo, California 90245
Attention Legal Department
Email: legal@ff.com
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: ***
To the Cayman Seller:
1990 E Grand Ave.
El Segundo, California 90245
Attention: Jerry Wang
Email: ***
To the Company, prior to the Effective Time:
1990 E Grand Ave.
El Segundo, California 90245
Attention: Chris Chen
Email: ***
12.7 No Strict Construction
The Parties have participated jointly in the negotiation and drafting of this Agreement and the other agreements contemplated hereby. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
12.8 Entire Agreement
This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersede any prior understanding, agreements or representations by or between the Parties, written or oral, which may relate to the subject matter hereof in any way.
12.9 Severability
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance is held to be invalid, illegal or unenforceable in any respect under any applicable law in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
12.10 Remedies; Specific Performance
The Parties acknowledge that money damages would not be an adequate remedy at law if any Party fails to perform in any material respect any of its obligations hereunder and accordingly agree that each Party, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to seek an injunction or similar equitable relief restraining such Party from committing or continuing any such breach or threatened breach or to seek to compel specific performance of the obligations of any other Party under this Agreement, without the posting of any bond, in accordance with the terms and conditions of this Agreement in any court having jurisdiction, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the Parties shall raise the defense that there is an adequate remedy at law. No remedy shall be exclusive of any other remedy, and all available remedies shall be cumulative.
[remainder of page intentionally left blank – signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.
FFAI:
| ||
| Faraday Future Intelligent Electric Inc. | ||
| By: | /s/ Koti Meka | |
| Name: | Koti Meka | |
| Title: | CFO | |
THE CAYMAN SELLER:
| ||
| Smart Technology Holdings Ltd. | ||
| By: | /s/ Jerry Wang | |
| Name: | Jerry Wang | |
| Title: | Designated signatory | |
THE COMPANY:
| ||
| FF EAI Robotics Inc. | ||
| By: | /s/ Chris Chen | |
| Name: | Chris Chen | |
| Title: | Chief Executive Officer | |
Signature Page to Transaction Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.
THE PURCHASER:
| ||
| FF EAI Robotics Ecosystem Inc. | ||
| By: | /s/ Jay Sheng | |
| Name: | Jay Sheng | |
| Title: | President | |
MERGER SUB:
| ||
| FFR Acquisition Sub LLC | ||
| By: | /s/ Jay Sheng | |
| Name: | Jay Sheng | |
| Title: | Authorized Signatory | |
Schedule A Seller Disclosure Schedule
[Attached Separately]
Schedule B Purchaser Disclosure Schedule
[Attached Separately]
Exhibit 10.1
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this “Agreement”), effective as of October 1, 2026 (the “Effective Date”), is made by and between Faraday Future Intelligent Electric Inc. (the “Provider”), FF EAI Robotics Inc. (the “Recipient”) and FF EAI Robotics Ecosystem Inc (the “Purchaser”) (solely for purpose of Sections 2.1, 5.1, 5.2, 6.4 and 11.1). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Transaction Agreement (defined below).
WHEREAS, the Recipient desires to engage the Provider from time-to-time to provide certain services (the “Services”) as more fully described in a Statement of Work in substantially the same form as Exhibit A attached hereto, and the Provider is offering to provide such Services to the Recipient in accordance with the terms of this Agreement.
WHEREAS, since the Effective Date, the Provider has provided Services in support of the Robotics Business at the Recipient’s request in anticipation of this Agreement, and the parties hereto intend that such Services shall be governed by this Agreement.
WHEREAS, the Provider, the Recipient, the Purchaser and certain affiliates thereof intend to enter into that certain transaction agreement in connection with acquisition of the Recipient by the Purchaser (the “Transaction Agreement”).
NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Recipient and the Provider hereby agree as follows:
Section 1. Services and Work Product.
1.1 Description of Services. The Provider hereby agrees to provide to the Recipient, and the Recipient hereby specifically commissions the Provider to provide, the Services set out in one or more statements of work to be issued by the Recipient and accepted by the Provider (each, a “Statement of Work”). The Provider shall be under no obligation to provide Services under any Statement of Work unless Provider accepts, in writing, such Statement of Work. Each Statement of Work shall be in substantially the same form as Exhibit A attached hereto. In the event of a conflict between this Agreement and any Statement of Work, the Statement of Work shall control. Services provided hereunder may be provided globally, including but not limited to the United States, China and the Middle East region. Services provided hereunder may be provided by an affiliate of the Provider. The Provider and its affiliates may provide the Services hereunder through their employees, contractors, or designated partners throughout the world.
1.2 Intellectual Property and Confidentiality.
(a) Except as otherwise specifically provided below or in a Statement of Work, the Provider and the Recipient shall retain all right, title and interest in and to such party’s Intellectual Property and all improvements, modifications, enhancements thereto, derivative works therefrom and any Intellectual Property developed or created by such party in connection with performing its obligations hereunder, and all copies and embodiments thereof, including all rights in inventions, works of authorship, logos, brands, know-how, copyrights, trademarks, patents, patent applications (including reissues, renewals, continuations, continuations-in-part, or divisions of any patent or patent application), trade secrets, instructions, improvements, modifications and all proprietary information relating to such party’s products and services (collectively, all of the foregoing, “Intellectual Property”). Notwithstanding the above, the Recipient shall own all Intellectual Property first authored, conceived or reduced to practice by the Provider in the course of providing services hereunder or under any Statement of Work, but only to the extent such Intellectual Property covers, is embodied by or is derived from any Intellectual Property proprietary to, or otherwise provided to the Provider by the Recipient. Without limiting the generality of the foregoing, the Recipient shall not (i) decompile, reverse engineer, disassemble, or otherwise attempt to discover the source code of any deliverable, or other product or software of the Provider, (ii) reduce any deliverable, or other product or software of the Provider to a human-perceivable form, or (iii) adapt, modify, sublicense, rent, lease, resell for profit, distribute (except as may be otherwise provided in a Statement of Work) or create derivative works based on any deliverable or any component software code. Each of the Provider and the Recipient agrees that it shall not at any time apply for any registration of any patent, copyright or trademark or other designation, which would affect the other party’s exclusive ownership of such other party’s Intellectual Property, or file any document with any government authority or take any action, which would adversely affect such other party’s exclusive ownership thereof. The recipient has been advised that the Provider provides, or in the future may provide, similar services to other companies. Unless otherwise expressly provided in a Statement of Work, the Provider is entitled to apply the same ideas, inventions, and solutions that it creates under this Agreement to its work for other parties so long as the Provider does not reveal any Confidential Information belonging to the Recipient.
(b) For the purposes of this Agreement, the term “Confidential Information” shall mean any information not generally known or available to the public, which was disclosed by one party to this Agreement (the “Disclosing Party”) to the other party to this Agreement (the “Receiving Party”) in the course of the provision of Services hereunder. For so long as the Provider provides Services pursuant to this Agreement and thereafter for so long as the Confidential Information has not otherwise been publicly disclosed by the Disclosing Party, the Receiving Party agrees that (i) the Receiving Party shall not divulge Confidential Information, directly or indirectly, other than in the regular and proper course of providing Services to the Recipient pursuant to this Agreement and (ii) the Receiving Party shall not use, directly or indirectly, any Confidential Information for the benefit of anyone other than the Disclosing Party without the Disclosing Party’s prior written consent; provided, however, that the Receiving Party shall have no obligation, express or implied, to refrain from using or disclosing to others any Confidential Information which is or hereafter shall become generally available to the public other than through the Receiving Party’s breach of this Agreement. In the event the Receiving Party is or may foreseeably be compelled to disclose any Confidential Information pursuant to any law, regulation, order of a court of competent jurisdiction or other legal process, the Receiving Party shall give the Disclosing Party prior written notice, reasonable in light of the circumstances, of such compelled disclosure.
(c) The Provider and the Recipient acknowledge and agree that a breach of this Section 1.2 by the Receiving Party may cause harm to the Disclosing Party. However, the Provider and the Recipient agree that equitable relief, including injunctive relief or specific performance, shall only be available to the Disclosing Party if a court of competent jurisdiction determines that monetary damages would be inadequate and that such relief is warranted under the circumstances. Nothing in this Section shall be construed as a waiver of the Receiving Party’s right to contest the appropriateness or scope of any such relief.
(d) Robotics Business Work Product. Notwithstanding anything to the contrary in Section 1.2(a) or any Statement of Work, all Intellectual Property and other work product created by or for Provider or its affiliates in performing Services relating to the Robotics Business (the “Robotics Business Work Product”) shall be owned exclusively by the Recipient, and the Provider hereby assigns, and shall cause its affiliates and personnel to assign, all right, title and interest in the Robotics Business Work Product to the Recipient.
Section 2. Compensation.
2.1 Fees. Fees for Services shall be equal to the Provider’s actual, direct and documented costs of providing the Services, without markup. The Provider shall invoice monthly in arrears with reasonable supporting detail, and the Recipient shall pay within thirty (30) days after receipt. No fees shall be payable before the date of the Transaction Agreement. Notwithstanding anything to the contrary herein, the Purchaser shall be liable for all fees for Services during the period from the Effective Date until the earlier of (i) the Closing Date (such term as defined under the Transaction Agreement) or (ii) termination of this Agreement pursuant to Section 6.4.
2.2 Taxes. The Recipient shall be liable for all taxes (other than taxes on the Provider’s income) applicable to any products or services purchased or received from the Provider pursuant to this Agreement. The Provider’s price includes only those taxes and the amount specifically identified in a Statement of Work. The Recipient shall be liable for any other taxes that may be levied on the goods and services provided under the Agreement (or the use thereof) and for any increases of the taxes identified in a Statement of Work.
Section 3. Conflicts of Interest; Waiver. If the Provider believes, in its reasonable discretion, that the provision of Services hereunder would result or could result in a conflict of interest for the Provider, or would result or could result in the appearance of a conflict of interest for the Provider, the Provider may cease providing any such Services without liability to the Recipient. THE RECIPIENT ACKNOWLEDGES THAT THE INTERESTS OF THE PROVIDER AND THE RECIPIENT MAY CONFLICT AND THAT THE PROVISION OF SERVICES HEREUNDER MAY RESULT IN A CONFLICT OF INTEREST FOR THE PROVIDER. THE RECIPIENT HEREBY WAIVES ANY SUCH CONFLICT OF INTEREST AND AGREES THAT THE PROVIDER MAY PROVIDE ALL SERVICES HEREUNDER WITHOUT LIABILITY FOR ANY CONFLICT OF INTEREST.
Section 4. Non-Disparagement.
4.1 The Recipient and its directors and officers shall not make, publish or communicate to any person or entity in any forum any disparaging, defamatory, denigrating, critical or other statements, comments or remarks on the Services or the business, integrity, veracity, credibility, or personal or professional reputation of the Provider or any of its directors, officers, employees, affiliates, agents, investors, shareholders, customers or suppliers.
4.2 The Provider and its directors and officers shall not make, publish or communicate to any person or entity in any forum any disparaging, defamatory, denigrating, critical or other statements, comments or remarks on the Services or the business, integrity, veracity, credibility, or personal or professional reputation of the Recipient or any of its directors, officers, employees, affiliates, agents, investors, shareholders, customers or suppliers.
Section 5. Independent Contractor.
5.1 No Partnership or Joint Venture. In performing services pursuant to this Agreement or any Statement of Work, the Provider will be an independent contractor of the Recipient and neither this Agreement nor any Statement of Work will be deemed to create a partnership, joint venture, or other arrangement between the parties hereto.
5.2 Not An Agent. No party hereto is appointed as another party’s agent for any purpose whatsoever hereunder. No party hereto will hold itself out as the agent of another party or otherwise purport to bind another party to any third-party obligations without that other party’s express prior written consent.
5.3 Provider Employees. It is expressly understood and agreed that for all purposes, including but not limited to workers compensation, unemployment insurance, FICA, and Federal and State Tax withholding, the Provider’s employees shall be deemed independent contractors and not employees, partners, or agents of the Recipient. The Provider and/or its employees shall be solely responsible for providing all equipment (e.g., automobile, cell phone) necessary to provide the Services, and determining how and during what hours to provide the Services, provided the Services are in all instances provided in a manner reasonably acceptable to the Recipient.
5.4 No Signature Authority. The Provider’s personnel or agents shall not enter into contracts on behalf of, or execute contracts as employees or agents of, the Recipient, or bind the Recipient in any manner, written or oral, express, or implied.
Section 6. Term.
6.1 Term. The initial term of this Agreement shall be twelve (12) months commencing on the Effective Date (“Initial Term”). At the end of the Initial Term, the Provider and the Recipient shall mutually assess the nature and scope of this Agreement and may agree, by written amendment, to extend the term for a mutually agreed additional period of time (the “Extension Term”). The Provider and the Recipient agree to review Statements of Work on a monthly basis to determine whether any updates or modifications are necessary. (The Initial Term, together with any Extension Term, shall be referred to as the “Term”).
6.2 Termination of a Statement of Work by the Recipient. The Recipient may terminate any item in a Statement of Work at any time upon fifteen (15) days prior written notice to the Provider.
6.3 Termination by the Provider. The Provider, exercising reasonable discretion, may terminate this Agreement or any item in a Statement of Work at any time upon thirty (30) days prior written notice to the Recipient. The Recipient’s failure to make payment on undisputed invoices as provided herein or in any Statement of Work, which failure is not cured within ten (10) days after receiving written notice of the Provider, shall be considered a material breach of this Agreement and, notwithstanding any other rights or remedies otherwise available to the Provider hereunder, such material breach shall entitle the Provider to terminate this Agreement upon fifteen (15) days prior written notice to the Recipient. The Provider’s right to terminate for material breach is in addition and without prejudice to all other rights and remedies otherwise available to the Provider, including, without limitation, the Provider’s right to collect the outstanding amount owed to the Provider plus interest on amounts not timely paid.
6.4 Termination of Transaction Agreement. If the Transaction Agreement is terminated in accordance with its term before the Closing, all Services relating to the Robotics Business shall terminate automatically, and no fees shall accrue for such Services after such termination; provided that nothing in this Section 6.4 shall relieve the Purchaser from its obligation to pay to the Provider all unpaid fees for Services incurred prior to such termination and the Purchaser agrees to pay all such fees to the Provider within thirty (30) days following such termination.
Section 7. Indemnity and Limitation on Damages
7.1 The Provider shall indemnify, defend, and hold the Recipient harmless from any and all liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees, incurred in connection with claims brought by third parties resulting from any grossly negligent or intentionally wrongful acts or omissions of the Provider.
7.2 The Recipient shall indemnify, defend and hold the Provider harmless from any and all liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees, incurred in connection with claims brought by third parties resulting from (i) any breach of this Agreement or Statement of Work by the Recipient; or (ii) the Recipient’s negligence or intentional acts or omissions.
7.3 EXCEPT FOR THE PROVIDER’S INDEMNITY OBLIGATIONS AND ITS GROSS NEGLIGENCE OR INTENTIONALLY WRONGFUL CONDUCT, THE PROVIDER’S LIABILITY TO THE RECIPIENT FOR DAMAGES RESULTING FROM ANY CLAIMS ARISING FROM OR RELATING TO ANY ACTS OR OMISSIONS OF THE PROVIDER IN THE PERFORMANCE OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY THE RECIPIENT UNDER THE PARTICULAR STATEMENT OF WORK TO WHICH SUCH CLAIMS OR DAMAGES RELATE. Notwithstanding the foregoing, but without limiting the Provider’s indemnity obligations hereunder, the Provider’s liability with respect to a defective deliverable shall be limited exclusively to replacement, repair or modification of such deliverable.
7.4 No claim, suit, or action regardless of form, arising from or relating to the Provider’s acts or omissions in the performance of this Agreement may be brought or asserted by the Recipient more than one (1) year after the Recipient becomes aware that the cause of action has occurred.
7.5 Without prejudice to the generality of the foregoing, the Recipient is responsible for the repair, maintenance and all insurance against loss of the Recipient’s equipment, and the Provider shall not be liable for any loss of or impairment to the services provided hereunder or damages to any equipment due in whole or in part to a malfunction or defect in the Recipient’s equipment.
Section 8. Warranty Disclaimer. The Provider will perform the services described in this Agreement in a professional and commercially reasonable manner consistent with generally accepted industry standards. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. THE PROVIDER DOES NOT WARRANT THAT ANY DELIVERABLES OR RECOMMENDATIONS PROVIDED UNDER THIS AGREEMENT WILL ACHIEVE ANY PARTICULAR RESULT OR OUTCOME. ALL SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS-IS” BASIS.
Section 9. Non-Solicitation.
9.1 During the Term of this Agreement, and for the period of twelve (12) months after termination of this Agreement, the Recipient shall not directly or indirectly recruit or solicit for employment any employees of the Provider without the express, prior, written consent of the Provider.
9.2 During the Term of this Agreement, and for the period of twelve (12) months after termination of this Agreement, the Provider shall not directly or indirectly recruit or solicit for employment any employees of the Recipient without the express, prior, written consent of the Recipient.
Section 10. Force Majeure. The Provider shall not be responsible to the Recipient under this agreement for failure or delay in performing any obligation under this Agreement due to factors beyond its reasonable control, including, without limitation, war, terrorism, hostilities, sabotage, revolution, riot, civil commotion, national emergency, strikes, lockouts, failure of supplies of power or fuel, mechanical or equipment failures, prohibitions against imports or exports of any product, impossibility of obtaining components or a force majeure affecting a supplier of components that results in a shortage of supply of components, epidemics, explosion, fire, flood, earthquake, force of nature, natural disaster or any other act of God, law, proclamation, regulation, ordinance, embargo, or other act or order of court or governmental authority, each to the extent the same are beyond the reasonable control of Provider (each such factor a “Force Majeure”). Upon the occurrence of a Force Majeure, the Provider shall use commercially reasonable efforts to promptly notify the Recipient. The Provider shall resume performing its obligations under this Agreement as soon as reasonably practicable. Except as otherwise provided herein, if a Force Majeure occurs, the Provider shall be excused from performing and the time for performance shall be extended as long as the Provider is unable to perform as a result of the Force Majeure.
Section 11. Miscellaneous
11.1 Additional Provisions. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective lawful successors, assigns, heirs, and personal representatives. The Recipient shall not assign this Agreement without the prior, written consent of the Provider. Any assignment in violation of this provision shall be void ab initio and of no force or effect. This Agreement may be modified, amended, or supplemented only by means of a written instrument signed by all parties hereto. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral and prior written agreements and understandings. In the event that any provision of this Agreement shall, for any reason, be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision had not been included herein.
11.2 Notices. All notices, requests, demands and other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given upon the date of receipt if delivered by Fedex or UPS, or via email transmission (with automated confirmation of receipt) to the email addresses set forth below, in each case to the attention of the person identified below:
If to the Recipient:
1990 E Grand Ave.
El Segundo, California 90245
Attention: Chris Chen
Email: ***
If to the Provider:
1990 E Grand Ave.
El Segundo, California 90245
Attention: Legal Department
Email: *
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: ***
A party may change its designated notice information by notice to the other parties in the manner provided in this Section.
11.3 Consent to Jurisdiction; Waiver of Jury Trial.
11.3.1 Any Proceeding that is based upon, arises out of, in connection with or relates to this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby (a “Dispute”) shall be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of Provider and Recipient irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction of each such court in any such Dispute, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Dispute shall be heard and determined only in any such court, and (iv) agrees not to bring any Dispute based upon, arising out of or relating to this Agreement or other Transaction Documents or the transactions contemplated hereby or thereby in any other court. Nothing herein contained shall be deemed to affect the right of either Provider or Recipient to serve process in any manner permitted by Law or to commence Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Proceeding brought pursuant to this Section 11.3.1.
11.3.2 EACH OF THE PROVIDER AND THE RECIPIENT ACKNOWLEDGES AND AGREES THAT ANY DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE.
11.4 Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the Laws of the State of Delaware without giving effect to any choice of law or conflict of law rules or provisions.
[signature page follows]
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be executed as a binding agreement between the parties effective as of the date first written above.
| Faraday Future Intelligent Electric Inc. | ||
| By: | /s/ Koti Meka | |
| Name: | Koti Meka | |
| Title: | CFO | |
| FF EAI Robotics Inc. | ||
| By: | /s/ Chris Chen | |
| Name: | Chris Chen | |
| Title: | Chief Executive Officer | |
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be executed as a binding agreement between the parties effective as of the date first written above.
| FF EAI Robotics Ecosystem Inc. | ||
| By: | /s/ Jay Sheng | |
| Name: | Jay Sheng | |
| Title: | President | |
EXHIBIT A
STATEMENT OF WORK
[Attached separately]
Exhibit 10.2
FORM OF LOCK-UP AGREEMENT
FF EAI Robotics Ecosystem Inc.
1990 E. Grand Ave.
El Segundo, California 90245
This agreement (this “Lock-up Agreement”) is being delivered to FF EAI Robotics Ecosystem Inc. (formerly known as AIxCrypto Holdings, Inc.), a corporation incorporated under the Laws of the State of Delaware (the “Purchaser”), in connection with that certain transaction agreement dated [●], 2026 (the “Transaction Agreement”), by and among Smart Technology Holdings Ltd., a company incorporated under the Laws of the Cayman Islands (the “Cayman Seller”), Faraday Future Intelligent Electric Inc., a corporation incorporated under the Laws of the State of Delaware (“FFAI” and, together with the Cayman Seller, the “Seller” or “Seller Parties”; each, a “Seller Party”), the Company, FF EAI Robotics Inc., a corporation incorporated under the Laws of the State of California (the “Company”), and FFR Acquisition Sub LLC, pursuant to which the Purchaser will acquire the Company Stock from the Cayman Seller in exchange for the Purchaser Stock Consideration (such term as defined in the Transaction Agreement). Each Seller Party executing this Lock-up Agreement and each Person that becomes a party hereto by executing a joinder is referred to herein as the “undersigned” or “you”. Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Transaction Agreement.
In order to induce the Purchaser to enter into the Transaction Agreement, and in light of the benefits that the Transactions could confer upon you in your capacity as a Seller Party and a recipient, directly or indirectly, of the Purchaser Stock Consideration, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you hereby irrevocably agree that, without the prior written consent of the Purchaser with approval of the disinterested members of the Purchaser Board, during the period beginning on the Closing Date through and including the date that is eighteen (18) months following the Closing (the “Lock-Up Period”), with respect to one-hundred percent (100%) of the Purchaser Stock Consideration received pursuant to the Transaction Agreement, including any Purchaser Common Stock issued or issuable upon conversion of the Purchaser Preferred Stock, and any securities issued or issuable in respect thereof upon a stock split, stock dividend, recapitalization, reorganization or similar event (collectively, the “Undersigned’s Securities”), you will not, and will not cause or direct any of your Affiliates to, directly or indirectly, (1) offer for sale, sell, assign, transfer, pledge, contract to sell, lend or otherwise dispose of (or enter into any transaction or agreement that is designed to, or would reasonably be expected to, result in the disposition by any person at any time in the future of) the Undersigned’s Securities, (2) enter into any swap, hedge or similar agreement or arrangement (including, without limitation, the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivatives transaction or instrument, however described or defined) that transfers, is designed to transfer or reasonably could be expected to transfer (whether by the undersigned or someone other than the undersigned) in whole or in part, directly or indirectly, any of the economic benefits or risks of ownership of any Undersigned’s Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Purchaser Common Stock, Purchaser Preferred Stock or other securities of the Purchaser, in cash or otherwise, or (3) publicly disclose the intention to do any of the foregoing.
The foregoing restrictions are expressly agreed to preclude you from engaging in any hedging or other transaction which is designed to, or which reasonably could be expected to, lead to or result in a sale or disposition of any Undersigned’s Securities even if such Undersigned’s Securities would be disposed of by someone other than you, including, without limitation, any short sale or any purchase, sale or grant of any right (including without limitation any put or call option, forward, swap or any other derivative transaction or instrument) with respect to any Undersigned’s Securities or any other security of the Purchaser that includes, relates to, or derives any significant part of its value from any Undersigned’s Securities.
The foregoing restrictions, including without limitation the immediately preceding sentence, shall not apply to:
(a) any bona fide charitable gift or gifts, including, without limitation, to a charitable organization or educational institution; provided, that it shall be a condition to any transfer pursuant to this clause (a) that (1) the transferee/donee agrees to be bound by the terms of this Lock-up Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent as if the transferee/donee were a party hereto, (2) any such transfer shall not involve a disposition for value, and (3) each party (donor, donee, transferor or transferee) shall agree to not voluntarily make, any filing or public announcement of the gift, sale or other disposition prior to the expiration of the Lock-Up Period;
(b) the exercise or settlement of stock options or other equity awards granted pursuant to the Purchaser’s stock option/incentive plans or awards, provided, that the restrictions shall apply to any securities issued upon such exercise or settlement to the extent they constitute Undersigned’s Securities;
(c) bona fide gifts, sales or other dispositions of shares of any class of the Purchaser’s capital stock that are made exclusively between and among the undersigned and Affiliates of the undersigned, including its partners (if a partnership) or members (if a limited liability company); provided, that it shall be a condition to any transfer pursuant to this clause (c) that (1) the transferee/donee agrees to be bound by the terms of this Lock-up Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent as if the transferee/donee were a party hereto and (2) each party (donor, donee, transferor or transferee) shall agree to not voluntarily make, any filing or public announcement of the gift, sale or other disposition prior to the expiration of the Lock-Up Period;
(d) the conversion, exercise or exchange of any securities of the Company, into Purchaser Common Stock or any other securities of the Purchaser, provided, that such shares of Purchaser Common Stock or other securities issued upon conversion, exercise or exchange, to the extent they constitute Undersigned’s Securities, remain subject to the terms of this Lock-up Agreement;
(e) any transfers or commitments to transfer pursuant to a merger, consolidation, tender offer or other similar transaction involving a Change of Control (as defined below) or reverse merger, other than the Transactions, provided, that in the event that such merger, consolidation, tender offer or other such transaction involving a Change of Control or reverse merger is not completed, such Purchaser Common Stock or other securities held by the undersigned shall remain subject to the provisions of this Lock-up Agreement;
(f) transfers that are approved by the prior written consent of the Purchaser (with approval by disinterested directors of the Purchaser at that time);
(g) sales of Purchaser Common Stock purchased by the undersigned on the open market following the date of the Transaction Agreement, provided, that any required filing under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (g); and
(h) pledges of the Undersigned’s Securities in bona fide financing transactions, provided, that any transferee or foreclosing party shall, before acquiring any Undersigned’s Securities pursuant to such pledge, execute and deliver to the Purchaser a joinder to this Lock-up Agreement and agree to be bound by its terms for the remainder of the Lock-Up Period.
“Change of Control” shall mean (i) the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction, in one transaction or a series of related transactions, the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of at least 50% of the total voting power of the Purchaser (or the surviving entity) or (ii) the sale or other disposition (in one transaction or a series of transactions) of all or substantially all of the assets of the Purchaser.
This Lock-up Agreement shall become effective as of the Closing Date. This Lock-up Agreement, and the obligations of the undersigned hereunder, shall automatically terminate upon the termination of the Transaction Agreement pursuant to its terms.
This Lock-up Agreement and any transaction contemplated by this Lock-up Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflict of laws principles that would result in the application of any other law than the laws of the State of Delaware.
[Signature page follows]
Each undersigned hereby represents and warrants that it has full power and authority to enter into this Lock-up Agreement. Any obligations of an undersigned shall be binding upon its successors and assigns.
Dated: |
||
| [Name of Undersigned] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 10.3
FORM OF SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this “Agreement”) is entered into as of [●], 2026 by and between FF EAI Robotics Ecosystem Inc. (formerly known as AIxCrypto Holdings, Inc.), a corporation incorporated under the Laws of the State of Delaware (the “Company”), Faraday Future Intelligent Electric Inc., a corporation incorporated under the Laws of the State of Delaware (“FFAI”), Yueting Jia, an individual (“YT”), and Jiawei Wang, an individual (together with FFAI and YT, collectively, the “Stockholders” and each a “Stockholder”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Transaction Agreement (as defined below).
WHEREAS, the Company, FFAI, Smart Technology Holdings Ltd., a company incorporated under the Laws of the Cayman Islands (the “Cayman Seller” and together with FFAI, collectively, the “Seller Parties” and each, a “Seller Party”), FF EAI Robotics Inc., a corporation incorporated under the Laws of the State of California (the “Target”), and FFR Acquisition Sub LLC, a limited liability company to be formed under the Laws of Delaware (the “Merger Sub”), have, concurrently with the execution of this Agreement, entered into that certain transaction agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Transaction Agreement”), which provides, among other things, for acquisition of the Target from the Cayman Seller by the Company in exchange for the Purchaser Stock Consideration and merger of the Target with and into Merger Sub, in each case, upon the terms and subject to the conditions set forth in the Transaction Agreement;
WHEREAS, pursuant to the Transaction Agreement, no Purchaser Common Stock or Purchaser Preferred Stock shall be issued in excess of the amount authorized by the Company’s certificate of incorporation or the maximum amount permitted without the requisite stockholder approval under applicable Nasdaq Listing Rules, including Rules 5635(a), (b) and (d), as applicable, and no Purchaser Preferred Stock shall be convertible into Purchaser Common Stock, and no voting rights arising from such conversion may be exercised, unless and until the requisite Purchaser Stockholder Approval has been obtained;
WHEREAS, after the Closing, the Company intends to obtain the requisite Purchase Stockholder Approval to (i) approve, for purposes of applicable Nasdaq Listing Rules, including Rules 5635(a), (b) and (d), as applicable, of the issuance of the purchaser Stock Consideration and Purchaser Common Stock issuable upon conversion of the Purchaser Preferred Stock, and (ii) approve amendment to the Company’s certificate of incorporation required to authorize sufficient shares to effect the foregoing (the “Purchaser Stockholder Proposals”);
WHEREAS, as of the date hereof, each Stockholder is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and/or record owner of such shares of capital stock of the Company (“Shares”) set forth opposite such Stockholder’s name on Schedule A attached hereto (the “Owned Securities”) (the Owned Securities, together with any other Shares acquired (whether beneficially or of record) by such Stockholder after the date hereof and prior to the Expiration Time (as defined in Article IV), including any Shares acquired by means of purchase, pursuant to the Transaction Agreement, as a result of a stock dividend or distribution, stock split, recapitalization, combination or reclassification, or upon the exercise or conversion of any securities, being collectively referred to herein as the “Securities”);
WHEREAS, each Stockholder agrees to vote all of its Securities that Stockholder is entitled to vote in favor of the authorization and approval of the Purchaser Stockholder Proposals, upon the terms and subject to the conditions set forth herein; and
WHEREAS, each Stockholder acknowledges that the Company is entering into the Transaction Agreement in reliance on the representations, warranties, covenants and other agreements of the Stockholders set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING; RESTRICTIONS ON TRANSFERS
Section 1.1 Voting.
From and after the date hereof until the Expiration Time, each Stockholder shall, (i) approve and consent to any of the matters described in paragraphs (a) – (e) hereof by written consent of the holders of a majority of the voting power of the issued and outstanding capital stock of the Company in lieu of a meeting of stockholders, and (ii) to the extent a meeting (whether annual or special) of the stockholders of the Company, however called, at which any of the matters described in paragraphs (a) – (e) hereof is to be considered (and any adjournment or postponement thereof) is held, (A) cause its representative(s) to appear at such meeting or otherwise cause its Securities to be counted as present thereat for purposes of determining whether a quorum is present and (B) vote or cause to be voted (including by proxy or written consent, if applicable) its Securities:
(a) for the authorization, adoption and approval of the Purchaser Stockholder Proposals;
(b) against any transaction, proposal, agreement or action made in opposition to the authorization or approval of any Purchaser Stockholder Proposal or in competition or inconsistent with any Purchaser Stockholder Proposal;
(c) against any other action, agreement or transaction that is intended, that could reasonably be expected, or the effect of which could reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect any Purchaser Stockholder Proposal or the performance by such Stockholder of its obligations under this Agreement;
(d) against any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Transaction Agreement, or of such Stockholder contained in this Agreement, and
(e) in favor of any other matter necessary to authorize, adopt and approve the Purchaser Stockholder Proposals, including any proposal to adjourn or postpone a meeting of Purchaser’s stockholders to solicit additional votes in favor of the matters described in paragraph (a).
Notwithstanding anything to the contrary in this Agreement, the obligations of the Stockholders set out in this Section 1.1 shall not apply in respect of any proposal that would materially and disproportionately adversely impact such Stockholder compared to other stockholders of the Company. For the avoidance of doubt, the Seller Parties shall not be required or permitted by this Agreement to vote any Securities on any matter as to which such Securities are not entitled to vote under applicable Laws, Nasdaq Listing Rules, the Company’s certificate of incorporation or the certificate of designations.
Section 1.2 Restrictions on Transfers. Each Stockholder hereby agrees that, from the date hereof until the Expiration Time, it shall not, directly or indirectly, (a) offer for sale, sell (constructively or otherwise), transfer, assign, tender in any tender or exchange offer, pledge, grant, encumber, hypothecate or similarly dispose of (by merger, testamentary disposition, operation of Law or otherwise) (collectively, “Transfer”), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of, any Securities or any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any Securities (any such transaction, a “Derivative Transaction”), (b) deposit any Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, except pursuant to the Investor Rights Agreement, (c) convert or exchange, or take any action which would result in the conversion or exchange of, any Securities, (d) take any action that would make any representation or warranty of such Stockholder set forth in this Agreement untrue or incorrect or have the effect of preventing, disabling or delaying it from performing any of its obligations under this Agreement or that is intended, or would reasonably be expected, to impede, frustrate, interfere with, delay, postpone, materially and adversely affect or prevent authorization, adoption or approval of any Purchaser Stockholder Proposal or the performance by the Company of its obligations under the Transaction Agreement or by such Stockholder of its obligations under this Agreement, or (e) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a), (b), (c) or (d). The foregoing restrictions shall not apply to:
(i) any bona fide charitable gift or gifts, including, without limitation, to a charitable organization or educational institution; provided, that it shall be a condition to any transfer pursuant to this clause (a) that (1) the transferee/donee agrees to be bound by the terms of this Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent as if the transferee/donee were a party hereto, (2) any such transfer shall not involve a disposition for value, and (3) each party (donor, donee, transferor or transferee) shall agree to not voluntarily make, any filing or public announcement of the gift, sale or other disposition prior to the Expiration Time;
(ii) the exercise or settlement of stock options or other equity awards granted pursuant to the Company’s stock option/incentive plans or awards, provided, that the restrictions shall apply to any securities issued upon such exercise or settlement to the extent they constitute Securities;
(iii) bona fide gifts, sales or other dispositions of shares of any class of the Company’s capital stock that are made exclusively between and among the undersigned and Affiliates of the Stockholder; provided, that it shall be a condition to any transfer pursuant to this clause (iii) that (A) the transferee/donee agrees to be bound by the terms of this Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent as if the transferee/donee were a party hereto and (B) each party (donor, donee, transferor or transferee) shall agree to not voluntarily make, any filing or public announcement of the gift, sale or other disposition prior to the Expiration Time;
(iv) the conversion, exercise or exchange of any securities of the Seller Parties or Target, into Purchaser Common Stock or any other securities of the Company, provided, that such shares of Purchaser Common Stock or other securities issued upon conversion, exercise or exchange, to the extent they constitute Securities, remain subject to the terms of this Agreement;
(v) any transfers or commitments to transfer pursuant to a merger, consolidation, tender offer or other similar transaction involving a Change of Control (as defined below) or reverse merger, other than the transactions contemplated by the Transaction Agreement, provided, that in the event that such merger, consolidation, tender offer or other such transaction involving a Change of Control or reverse merger is not completed, such Purchaser Common Stock or other securities held by the Stockholder shall remain subject to the provisions of this Agreement;
(vi) transfers that are approved by the prior written consent of the Company (with approval by the disinterested directors of the Company at that time);
(vii) sales of Purchaser Common Stock purchased by the undersigned on the open market following the date of the Transaction Agreement, provided, that any required filing under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) made between the date hereof and the Expiration Time shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (vii); and
(viii) pledges of Securities in bona fide financing transactions, provided, that any transferee or foreclosing party shall, before acquiring any Securities pursuant to such pledge, execute and deliver to the Company a joinder to this Agreement and agree to be bound by its terms until the Expiration Time.
“Change of Control” shall mean (i) the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction, in one transaction or a series of related transactions, the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of at least 50% of the total voting power of the Company (or the surviving entity) or (ii) the sale or other disposition (in one transaction or a series of transactions) of all or substantially all of the assets of the Company.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF STOCKHOLDERS
Section 2.1 Representations and Warranties.
Each Stockholder, severally and not jointly, represents and warrants to the Company as of the date hereof:
(a) if such Stockholder is an entity, such Stockholder is duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation, and such Stockholder has full legal right, power, capacity and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
(b) this Agreement has been duly executed and delivered by such Stockholder and the execution, delivery and performance of this Agreement by such Stockholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Stockholder and no other actions or proceedings on the part of such Stockholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby;
(c) assuming due authorization, execution and delivery by the Company, this Agreement constitutes a legal, valid and binding agreement of such Stockholder, enforceable against Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) (i) such Stockholder (A) is the beneficial and/or record owner of, and has good and valid title to, the Owned Securities, in each case, free and clear of Liens other than as created by this Agreement, and (B) has voting power and power of disposition with respect to the Securities, with no limitations, qualifications or restrictions that would prevent Stockholder from performing its obligations hereunder, subject to the terms of this Agreement; (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which such Stockholder is a party relating to the pledge, disposition or voting of any of the Securities; (iii) the Securities are not subject to any voting trust agreement or other Contract to which Stockholder is a party restricting or otherwise relating to the voting or Transfer of the Securities other than this Agreement, the Lock-up Agreement or the Investor Rights Agreement; (iv) Stockholder has not Transferred any Securities or any interests therein pursuant to any Derivative Transaction; (v) as of the date hereof, other than the Securities, such Stockholder does not own, beneficially or of record, or have the right to acquire, any Shares or other securities of the Company, or any direct or indirect interest in any such securities (including by way of derivative securities); and (vi) such Stockholder has not appointed or granted any proxy or power of attorney that is still in effect with respect to any Securities, except as contemplated by this Agreement or the Investor Rights Agreement;
(e) except for the applicable requirements of the Exchange Act and the Laws of the State of Delaware and the Cayman Islands, neither the execution, delivery or performance of this Agreement by Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby, nor compliance by such Stockholder with any of the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of such Stockholder, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on property or assets of such Stockholder pursuant to any Contract to which such Stockholder is a party or by which Stockholder or any property or asset of Stockholder is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Stockholder or any of such Stockholder’s properties or assets; and
(f) there is no Action pending against such Stockholder or, to the knowledge of Stockholder, threatened against Stockholder that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by Stockholder of its obligations under this Agreement.
Section 2.2 Covenants. Each Stockholder hereby:
(a) agrees, prior to the termination of this Agreement, not to take any action that would make any representation or warranty of such Stockholder contained herein or under the Transaction Agreement untrue or incorrect in any material respect or have or could have the effect of preventing, impeding or interfering with or materially and adversely affecting the performance by such Stockholder of its obligations under this Agreement or under the Transaction Agreement;
(b) agrees to permit the Company to publish and disclose in any proxy statement or information statement relating to the Purchaser Stockholder Proposals (including all documents filed with the Securities and Exchange Commission in connection therewith), such Stockholder’s identity and beneficial ownership of Shares or other equity securities of the Company and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement, in each case, as required by applicable Law; and
(c) agrees and covenants that it shall promptly (and in any event within forty-eight (48) hours) notify the Company of any new Securities with respect to which beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by such Stockholder, including, without limitation, by means of purchase, as a result of a stock dividend or distribution, stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities of the Company after the date hereof and prior to the Expiration Time; and the Company and such Stockholder shall update Schedule A accordingly, provided that failure to update Schedule A shall not affect the application of this Agreement to such Securities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Representations and Warranties. The Company represents and warrants to the Stockholders that as of the date hereof and during the term until the Expiration Time:
(a) The Company is duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by the Company, and, assuming due authorization, execution and delivery by the Stockholders, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law); and
(b) Except for the applicable requirements of the Exchange Act, state Laws, Nasdaq Listing Rules and the approvals and filings contemplated by the Transaction Agreement, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of the Company for the execution, delivery and performance of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by the Company, nor the consummation by the Company of the transactions contemplated hereby, nor compliance by the Company with any of the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of the Company, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of the Company pursuant to any Contract to which the Company is a party or by which the Company or any of its property or assets is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any of its properties or assets.
ARTICLE IV
TERMINATION
This Agreement, and the obligations of the parties hereunder, shall terminate and be of no further force or effect immediately upon the earliest of (a) the receipt of all approvals of the Purchaser Stockholder Proposals, and (b) the termination of the Transaction Agreement in accordance with its terms (such earliest time, the “Expiration Time”); provided, that this Article IV and Article V shall survive any termination of this Agreement. Nothing in this Article IV shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices.
All notices and other communications hereunder shall be in writing in the English language and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt by facsimile or e-mail, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier, or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail (return receipt requested, postage prepaid). All notices hereunder shall be delivered to the addresses set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 5.1):
| (i) | If to the Company: |
FF EAI Robotics Ecosystem Inc.
1990 E. Grand Ave.
El Segundo, California 90245
E-mail: ***
| (ii) | If to Stockholders: |
[●]
Attention: [●]
E-mail: [●]
Section 5.2 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 5.3 Entire Agreement.
This Agreement and the Transaction Agreement constitute the entire agreement and understanding among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.
Section 5.4 Specific Performance.
Each party acknowledges and agrees that monetary damages would not be an adequate remedy in the event that any covenant or agreement in this Agreement is not performed in accordance with its terms, and therefore agrees that, in addition to and without limiting any other remedy or right available to the parties, each party will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof. Each party agrees not to oppose the granting of such relief in the event a court determines that such a breach has occurred, and to waive any requirement for the securing or posting of any bond in connection with such remedy. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by a party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by a party.
Section 5.5 Amendments; Waivers.
At any time prior to the Expiration Time, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Company and the Stockholders, or in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
Section 5.6 Governing Law; Dispute Resolution; Jurisdiction.
This Agreement shall be interpreted, construed and governed by and in accordance with the Laws of the State of Delaware without regard to the conflicts of law principles thereof. All actions arising out of or relating to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware and any state appellate court therefrom or, if the Court of Chancery declines to accept jurisdiction, any federal court within the State of Delaware or, if no such federal court has jurisdiction, any other state court within the State of Delaware. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action in the manner provided in Section 5.1 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby (a) submits to the exclusive jurisdiction of any of the above-named courts for the purpose of any action arising under the Laws of the State of Delaware out of or relating to this Agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any Action with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in accordance with this Section 5.6, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (A) the action in such court is brought in an inconvenient forum, (B) the venue of such action is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(b) Each party hereto hereby irrevocably and unconditionally waives to the fullest extent permitted by applicable Laws any right it may have to trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement.
Section 5.7 No Third Party Beneficiaries.
Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
Section 5.8 Assignment; Binding Effect.
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other party. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 5.9 No Presumption Against Drafting Party.
Each of the parties to this Agreement acknowledges that it has been represented by independent counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.
Section 5.10 Counterparts.
This Agreement may be executed in two or more consecutive counterparts (including by facsimile or email pdf format), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy, email pdf format or otherwise) to the other party.
[Signature Pages to follow]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
STOCKHOLDER | ||
[●] | ||
| By: | ||
Name: |
||
Title: |
||
[Signature Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
| COMPANY | ||
| FF EAI ROBOTICS ECOSYSTEM INC. | ||
| By: | ||
Name: |
||
Title: |
||
[Signature Page to Support Agreement]
SCHEDULE A
Owned Securities as of the Date Hereof
| Stockholder | Class or Series | Number of Shares | ||
| [●] | [●] | [●] |
Other securities and rights to acquire Shares (including options, warrants and convertible securities): [●].
[Schedule A to Support Agreement]
Exhibit 10.4
AMENDED AND RESTATED LEAD INVESTOR AGREEMENT
THIS AMENDED AND RESTATED LEAD INVESTOR AGREEMENT (this “Agreement”) is made and entered into as of October 12, 2026 (the “Signing Date”) by and among (i) FF EAI Robotics Ecosystem Inc. (formerly known as AIxCrypto Holdings, Inc., a Delaware corporation (the “Company”); (ii) FF Global Partners LLC, a Delaware limited liability company (“FFGP” or the “Lead Investor”); (iii) Faraday Future Intelligent Electric Inc., a Delaware corporation (“FFAI”); (iv) Yueting Jia, an individual (“YT”); and (v) Jiawei Wang, an individual (“Jerry” and, together with FFAI, YT and FFGP, the “Group Members” and each, a “Group Member”). The Company, the Lead Investor and the other Group Members are collectively referred to herein as the “Parties” and each, a “Party”.
RECITALS
WHEREAS, the Company and FFAI (then trading under the ticker symbol “FFIE”) entered into that certain Lead Investor Agreement, dated as of September 19, 2025 (the “Original Effective Date” and such agreement, the “Original Agreement”), pursuant to which FFAI committed to act as lead investor in a private offering (the “Private Placement”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), and shares of the Company’s Series B Convertible Preferred Stock, par value $0.001 per share (the “Series B Preferred Stock”), issued and sold pursuant to the subscription agreements between the Company and each of the purchasers identified in the signature pages thereto (collectively, the “Securities Purchase Agreements”);
WHEREAS, as of the Signing Date, (i) FFAI Beneficially Owns approximately 50.67% of the outstanding Common Stock, (ii) YT and Jerry collectively Beneficially Own approximately 6.67%% of the outstanding Common Stock, and (iii) the Group Members collectively Beneficially Own approximately 54.01% of the outstanding Common Stock, in each case as more particularly set forth on Schedule A;
WHEREAS, the Group Members desire to consolidate the exercise of all voting rights attaching to their respective shares of capital stock of the Company in FFGP, and FFAI desires to assign, and FFGP desires to assume, all of FFAI’s rights as “Lead Investor” under the Original Agreement, such that FFGP shall act as the Lead Investor under, and be entitled to exercise all rights of the Lead Investor pursuant to, this Agreement;
WHEREAS, the Board (as defined below), including a majority of the directors of the Company who are disinterested with respect to the transactions contemplated hereby, has (i) determined that this Agreement and the transactions contemplated hereby are advisable and in the best interests of the Company and its stockholders and (ii) approved this Agreement and the transactions contemplated hereby, including for purposes of Section 203 of the DGCL;
WHEREAS, concurrently with the execution of this Agreement, the Company and FFAI have entered into that certain Transaction Agreement (the “Transaction Agreement”), regarding the proposed acquisition by the Company of all of the outstanding equity interests of the Target Companies (as defined in the Transaction Agreement), which will hold the robotics business of FFAI (such acquisition, the “Proposed Transaction”), and this Agreement constitutes the “Investor Rights Agreement” contemplated by the Transaction Agreement, and the effectiveness and continued effectiveness of this Agreement are conditioned upon the Proposed Transaction as set forth in Article VIII; and
WHEREAS, the Company and FFAI, together with the other Parties, desire to amend and restate the Original Agreement in its entirety as set forth herein.
| 1 |
NOW, THEREFORE, in consideration of the foregoing, the commitment and investment of FFAI in the Private Placement, and the mutual promises, covenants and agreements of the Parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Securities Purchase Agreements. In addition, the following capitalized terms shall have the respective meanings set forth below:
“Affiliate” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act; provided that the Company and each of its Subsidiaries shall not be deemed to be Affiliates of any Group Member.
“Beneficially Own” (and correlative terms) has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act, but (i) without regard to the sixty (60) day limitation in Rule 13d-3(d)(1)(i) and (ii) without giving effect to any beneficial ownership limitation, conversion cap, exercise cap, voting blocker or similar restriction contained in the Series B Preferred Stock or any other Common Stock Equivalent.
“Board” means the Board of Directors of the Company.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or Los Angeles, California are authorized or required by Law to close.
“Chairperson” means the chairperson of the Board.
“Common Stock Equivalents” means any securities of the Company or any of its Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including 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 Organizational Documents” means the certificate of incorporation (including any certificate of designation) and bylaws of the Company, and the charters of each committee of the Board, in each case as amended from time to time.
“Control” (including its correlative meanings, “Controlled” and “Controlling”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.
“DGCL” means the General Corporation Law of the State of Delaware, as amended. “Director” means any member of the Board from time to time.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court or tribunal, and any national securities exchange (including Nasdaq).
| 2 |
“Group Shares” means, as of any date of determination and calculated on an as-converted basis, the aggregate number of shares of Common Stock (including shares of Common Stock issuable upon conversion, exercise or exchange of any Common Stock Equivalents) (i) Beneficially Owned by any Group Member, or (ii) the voting rights with respect to which (including with respect to the election of Directors) have been granted to the Lead Investor pursuant to Article II or pursuant to any other proxy, power of attorney or voting agreement (including any such grant that is revocable solely on the basis of the fiduciary duties of the grantor or its trustee), in each case without duplication.
“Group Voting Percentage” means, as of any date of determination, (i) the number of Group Shares, divided by (ii) the number of shares of Common Stock then outstanding plus the number of shares of Common Stock issuable upon conversion, exercise or exchange of any Common Stock Equivalents included in the Group Shares.
“Independent Director” means a Director who is “independent” as determined solely in accordance with the rules and regulations of (i) the Trading Market and (ii) the SEC.
“Independent Legal Counsel” means a nationally recognized law firm with significant experience in corporate governance applicable to Delaware public companies, and which neither presently is, nor in the thirty-six (36) months prior to such engagement has been, retained to represent the Company, any Group Member or any of their respective Affiliates in any matter material to any such Person. The Independent Legal Counsel shall be selected by the Company, subject to the prior written approval of the Lead Investor (which approval shall not be unreasonably withheld, conditioned or delayed).
“Investor Designee” means each individual whom the Lead Investor has the right to designate (whether for nomination for election or for appointment) to the Board pursuant to Article III, including any Non-Elected Designee and any replacement designee.
“Law” means any statute, law (including common law), treaty, code, ordinance, rule, regulation, injunction, order, judgment, decree, writ, directive, listing standard or other legal requirement of, or any interpretation or administration of any of the foregoing by, any Governmental Authority (including the SEC and Nasdaq).
“Majority Designation Period” has the meaning set forth in Section 3.2(a).
“Minimum Share Amount” means 3,339,270 shares of Common Stock, calculated on an as-converted basis (being equal to 25% of the number of shares of Common Stock Beneficially Owned by FFAI as of the Signing Date), as such number shall be proportionately adjusted solely for any stock split, reverse stock split, stock dividend, combination, reclassification or other similar corporate action occurring after the Signing Date, and shall not otherwise be adjusted for any issuance of securities by the Company.
“Nasdaq” means The Nasdaq Stock Market LLC.
“Necessary Action” means, with respect to any Party and a specified result, all actions (to the extent such actions are not prohibited by applicable Law and are within such Party’s control) necessary and desirable within his, her or its control to cause such result, including (i) promptly calling special meetings of the Board, any committee of the Board and the stockholders of the Company, and recommending that stockholders vote (and soliciting proxies) (x) in favor of the election to the Board of each Investor Designee and (y) in favor of the removal of any Investor Designee in respect of whom the Lead Investor has delivered a removal notice pursuant to Section 3.6, at all stockholder meetings; (ii) causing the Board or any committee of the Board to adopt relevant resolutions; (iii) voting or providing a proxy with respect to shares of Common Stock and other securities of the Company generally entitled to vote in the election of Directors Beneficially Owned by such Party; (iv) causing the adoption of stockholders’ resolutions and amendments to the Company Organizational Documents, including executing written consents in lieu of meetings; (v) executing agreements and instruments; (vi) causing members of the Board (to the extent such members were elected, nominated or designated by the Party obligated to undertake such action) to act in a certain manner or causing them to be removed in the event they do not act in such a manner; and (vii) making, or causing to be made, with Governmental Authorities, all filings, registrations or similar actions that are required to achieve such result.
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“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority.
“SEC” means the U.S. Securities and Exchange Commission.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which a majority of the total voting power of the equity interests entitled to vote in the election of directors, managers or trustees thereof is at the time owned or Controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person.
“Total Number of Directors” means the total number of Directors comprising the Board from time to time.
“Trading Day” means a day on which the Trading Market is open for trading.
“Trading Market” means Nasdaq or such other national securities exchange on which the Common Stock is then listed.
“Transfer” means, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, lend or otherwise transfer or dispose of any economic, voting or other rights in or to such security.
Section 1.2 Other Defined Terms. Each of the following terms is defined in the Section set forth opposite such term: “Amendment Effective Date” (Section 8.1); “Approval/Disapproval Notice” (Section 3.4(b)); “Closing” (Section 8.1); “Consent Period” (Section 5.1); “Covered Shares” (Section 2.1); “Criteria” (Section 3.4(a)); “Designee Board Expansion” (Section 3.5); “Excluded Issuance” (Section 5.4); “Financing Facilitation Transaction” (Section 3.2(c)); “Grantor” (Section 2.1); “Key Officer” (Section 4.1); “NewCo” (Section 6.3); “Non-Elected Designee” (Section 3.5); “Outside Date” (Section 8.1); “Pre-Notice” (Section 5.2(b)); “Proposed Transaction” (Recitals); “Proxy” (Section 2.1); “Subsequent Financing” (Section 5.2(a)); “Subsequent Financing Notice” (Section 5.2(b)); “Transaction Agreement” (Recitals); and “Top-Up Right” (Section 5.3).
Section 1.3 Construction. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party. Unless the context otherwise requires: (a) “or” is disjunctive but not exclusive; (b) words in the singular include the plural, and vice versa; (c) the words “hereof,” “herein,” “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision, and Article, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified; (d) the term “including” is not limiting and means “including without limitation”; and (e) whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms.
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ARTICLE II
VOTING PROXY
Section 2.1 Grant of Proxy. Each of FFAI, YT and Jerry (each, a “Grantor”) hereby, subject to the last sentence in Section 2.2, irrevocably and unconditionally constitutes and appoints FFGP (and any designee of FFGP, with full power of substitution and resubstitution) as such Grantor’s sole and exclusive proxy and attorney-in-fact (the “Proxy”), for and in the name, place and stead of such Grantor, to exercise all voting, consent and similar rights of such Grantor with respect to all shares of Common Stock, Series B Preferred Stock and any other securities of the Company entitled to vote (including upon conversion, exercise or exchange of any Common Stock Equivalent) that are now or hereafter owned of record or Beneficially Owned by such Grantor or any of its Affiliates (collectively, together with all shares held of record or Beneficially Owned by FFGP, the “Covered Shares”), on any and all matters (including the election and removal of Directors and any amendment to the Company Organizational Documents) that may be submitted to a vote, consent or other approval of the stockholders of the Company, at every annual or special meeting of stockholders (and at every adjournment or postponement thereof) and in every written consent in lieu of a meeting. FFGP shall directly exercise all voting rights attaching to any Covered Shares held of record or Beneficially Owned by FFGP, and all Covered Shares shall be voted by FFGP in its sole discretion. Each Group Member hereby acknowledges that FFGP shall exercise the voting rights of all Covered Shares as the Lead Investor under this Agreement.
Section 2.2 Revocability. Subject to the last sentence of this Section 2.2, each Grantor acknowledges and agrees that the Proxy (a) is given in consideration of the agreements and covenants of the Company and the other Parties set forth in this Agreement, (b) is coupled with an interest sufficient in law to support an irrevocable proxy, and is irrevocable to the fullest extent permitted by Law, including Section 212(e) of the DGCL, for so long as this Agreement remains in effect, and (c) shall survive, and shall not be affected by, the death, incapacity, dissolution, bankruptcy or insolvency of such Grantor and shall be binding upon the heirs, personal representatives, successors and assigns of such Grantor. Each Grantor hereby revokes any and all prior proxies or powers of attorney granted with respect to any Covered Shares and agrees not to grant any subsequent proxy or power of attorney, or enter into any voting agreement, voting trust or similar arrangement, with respect to any Covered Shares that is inconsistent with this Article II. Each Grantor shall, upon the request of FFGP, execute and deliver such further proxies and instruments as FFGP may reasonably request to give effect to the Proxy. Notwithstanding the foregoing, the Proxy shall be subject to, and FFGP shall vote the applicable Covered Shares in a manner consistent with the obligations of the applicable Group Member under, any voting and support agreement entered into by any Group Member with the Company in connection with the Proposed Transaction. In furtherance of the foregoing, if for any reason (including any determination that the Proxy is invalid, unenforceable or revocable, any revocation or purported revocation of the Proxy, or any refusal by the Company, its inspector of elections or any other Person to recognize the Proxy) FFGP is unable to vote or otherwise exercise the voting, consent or similar rights with respect to any Covered Shares pursuant to the Proxy, then each Grantor shall, and shall cause its Affiliates to, at every meeting of the stockholders of the Company (and at every adjournment or postponement thereof) and in every written consent in lieu of a meeting, (i) appear at such meeting or otherwise cause such Covered Shares to be counted as present for purposes of establishing a quorum, and (ii) vote (or cause to be voted), or deliver a written consent with respect to, such Covered Shares in the manner directed in writing by FFGP. The Parties intend that this Article II constitute a voting agreement among stockholders of the Company within the meaning of Section 218(c) of the DGCL, which shall be specifically enforceable in accordance with Section 9.8, independently of and in addition to the Proxy. Notwithstanding anything to the contrary in this Agreement, if the Closing (as defined below) has not occurred on or prior to the Outside Date (as defined below), any Grantor may revoke the Proxy with respect to its Covered Shares at any time thereafter by written notice to FFGP and the Company.
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Section 2.3 Retained Rights. Except for the voting, consent and similar rights granted to FFGP pursuant to this Article II, each Grantor shall retain all rights of ownership in its Covered Shares, including the right to receive dividends and distributions thereon. Nothing in this Agreement shall be construed as transferring to FFGP any economic interest in the Covered Shares of any other Group Member.
Section 2.4 Transfers of Covered Shares.
(a) No Grantor shall Transfer any Covered Shares to any of its Affiliates, or to any other Person that is Controlled by or under common Control with any Group Member, unless such transferee shall have first executed and delivered to the Company and FFGP a joinder agreement substantially in the form of Exhibit A, pursuant to which such transferee agrees to be bound by this Agreement as a Grantor, whereupon such transferee shall be deemed a Group Member for all purposes of this Agreement.
(b) Upon the consummation of a bona fide Transfer of Covered Shares by a Grantor to a Person that is not a Group Member or an Affiliate of a Group Member, the Proxy shall automatically terminate solely with respect to the Covered Shares so Transferred. Any pledge, hypothecation or grant of a security interest in any Covered Shares shall not terminate the Proxy with respect to such Covered Shares unless and until the pledgee forecloses upon or otherwise acquires title to such Covered Shares.
Section 2.5 Company Acknowledgment. The Company hereby (a) acknowledges receipt of the Proxy and shall record and give effect to the Proxy in accordance with its terms, including by causing its inspector of elections to recognize FFGP as the Person entitled to vote the Covered Shares at any meeting of stockholders and in any written consent; (b) irrevocably waives, and agrees not to assert, any right under any agreement (including the Securities Purchase Agreements), the Company Organizational Documents or otherwise to restrict any Group Member from granting the Proxy or from entering into any voting agreement or granting any voting proxy to FFGP; and (c) agrees that any holder of Company securities may grant a voting proxy to, or enter into a voting agreement with, FFGP on any terms, and the Company shall take all such further action as may be necessary to give full effect to the foregoing.
Section 2.6 Securities Law Filings. The Group Members acknowledge that they may be deemed to constitute a “group” within the meaning of Section 13(d)(3) of the Exchange Act. Each Group Member shall (a) cooperate in good faith in the preparation and timely filing of any Schedule 13D (or amendment thereto), Form 3, Form 4 or other filing required under the Exchange Act as a result of this Agreement, and (b) remain solely responsible for the accuracy of the information concerning itself contained in any such filing. The Company shall provide such information and assistance as the Group Members may reasonably request in connection therewith.
Section 2.7 Controlled Company. The Parties acknowledge that, as a result of the Proxy, FFGP holds more than fifty percent (50%) of the voting power for the election of Directors and the Company qualifies as a “controlled company” within the meaning of the rules of the Trading Market. Upon the written request of the Lead Investor, the Company shall elect to rely on, and shall make all disclosures necessary to avail itself of, any or all “controlled company” exemptions available under the rules of the Trading Market, and shall not cease to rely on any such exemption without the prior written consent of the Lead Investor.
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ARTICLE III
BOARD OF DIRECTORS
Section 3.1 Board Size. In addition to any vote or consent of the Board or the stockholders of the Company required by applicable Law or the Company Organizational Documents, and notwithstanding any other provision of this Agreement, for so long as this Agreement is in effect, the Total Number of Directors shall be established and remain at seven (7) (except as specifically provided in Section 3.5 in connection with a Designee Board Expansion), and any increase or decrease in the Total Number of Directors shall require the prior written consent of the Lead Investor, delivered in accordance with Section 9.2. It shall be reasonable for the Lead Investor to withhold its consent to any change in the size of the Board that would result in a decrease in the proportion of the Total Number of Directors that are Investor Designees, and it shall not be unreasonable for the Lead Investor to condition any consent to an increase in the size of the Board on a commensurate increase in the number of Investor Designees that the Lead Investor is entitled to designate hereunder, such that the percentage of the Total Number of Directors that are Investor Designees shall not be reduced following such increase. Within sixty (60) days after the Amendment Effective Date, the Company shall take all Necessary Action to amend its bylaws to reflect this Section 3.1.
Section 3.2 Designation Rights.
(a) Majority Designees. Until the first date on which the Group Members have ceased to Beneficially Own, in the aggregate, a number of Group Shares at least equal to the Minimum Share Amount for at least three hundred sixty-five (365) consecutive days (such period, the “Majority Designation Period”), the Lead Investor shall have the right, but not the obligation, to designate, and the individuals nominated for election as Directors by or at the direction of the Board (and, as applicable, the Nominating and Corporate Governance Committee) and any individuals appointed to the Board shall include, four (4) Investor Designees and, in any event, a number of Investor Designees that constitutes a majority of the Total Number of Directors.
(b) Proportional Designees. Following the expiration of the Majority Designation Period and for the remainder of the term of this Agreement, the Lead Investor shall continue to have the right, but not the obligation, to designate, and the individuals nominated for election as Directors by the Board shall include, a number of Investor Designees not less than the product of the Total Number of Directors multiplied by the Group Voting Percentage (rounding up to the next whole Director) and, in any event, not less than one (1).
(c) Financing Facilitation Transactions. In the event that the Group Members cease to Beneficially Own a number of Group Shares at least equal to the Minimum Share Amount as a result of a transaction entered into by any Group Member to facilitate a financing of the Company or any Group Member (including (x) the implementation or enforcement of a pledge of shares of Common Stock granted by any Group Member in favor of an investor in, or lender to, the Company or such Group Member or (y) the sale of Common Stock by any Group Member to raise cash to pay amounts owed under a guarantee entered into for the benefit of the Company) (a “Financing Facilitation Transaction”), the Group Members shall nonetheless be deemed to continue to hold the Minimum Share Amount until the Group Members dispose of further shares in a transaction (other than a Financing Facilitation Transaction) following which the Group Members do not Beneficially Own a number of Group Shares at least equal to the Minimum Share Amount. For the avoidance of doubt, any reduction in the Group Voting Percentage resulting solely from the issuance of securities by the Company shall not affect the Majority Designation Period, which is determined solely by reference to the Minimum Share Amount.
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(d) Chairperson. During the Majority Designation Period, one (1) Investor Designee, as selected by the Lead Investor from time to time, shall serve as Chairperson, and the Company shall take all Necessary Action to cause such Investor Designee to be so appointed and maintained.
Section 3.3 Independent Directors. No Investor Designee shall be required to qualify as an Independent Director, and officers, employees and other Affiliates of any Group Member shall be eligible to serve as Investor Designees. The Company shall cause the Board at all times to include a sufficient number of Independent Directors to comply with the applicable listing standards of the Trading Market (taking into account any “controlled company” exemption on which the Company relies pursuant to Section 2.7), and for such purpose (a) the Lead Investor shall inform the Company, at the time of each designation, whether it wishes any Investor Designee to be considered an Independent Director, and (b) the Company shall be responsible for identifying, nominating and appointing, from among the Directors that are not Investor Designees, such number of additional Independent Directors as is required to so comply, in each case without reducing the number of Investor Designees the Lead Investor is entitled to designate hereunder. Except as set forth in the immediately preceding sentence, the Company shall not take into account whether any Investor Designee would qualify as an Independent Director in determining whether to approve, nominate or appoint any Investor Designee.
Section 3.4 Review of Investor Designees.
(a) The appointment or nomination for election to the Board of any Investor Designee shall be subject solely to the prior reasonable verification and/or reasonable approval of the Nominating and Corporate Governance Committee (and no other verifications or approvals) that (A) such nominee’s criminal background check is reasonably satisfactory (it being understood that a criminal background check that identifies no criminal convictions or pending criminal prosecution (excluding traffic violations and other de minimis convictions and prosecutions) or SEC lawsuits against such nominee shall in all circumstances be reasonably satisfactory) and (B) Independent Legal Counsel specifically engaged for purposes of making such determination has not advised the Company in writing that (1) the service of such nominee on the Board would likely violate any Law applicable to the Company or cause the Company to cease to qualify for any material securities law exemption of which it then avails itself (e.g., due to any “bad actor” disqualifying event described in Rule 506(d)(1)(i)–(viii) promulgated under the Securities Act of 1933, as amended) ((A) and (B), the “Criteria”). In assessing whether a proposed Investor Designee satisfies the Criteria, the Company shall not subject such proposed Investor Designee to any more burdensome informational requests or other processes than those it would use in assessing whether a non-Investor Designee director candidate of similar background and qualifications satisfies the same Criteria (it being understood that it shall be reasonable for the Nominating and Corporate Governance Committee to request (x) customary written questionnaires that are the same in form and substance as those used for director candidates that are not Investor Designees, (y) the completion of a criminal background check customary in form and scope and (z) such other customary information as it may reasonably request in good faith).
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(b) Upon determining to designate an Investor Designee, the Lead Investor shall notify the Company in writing of the identity of such proposed Investor Designee, and reasonably promptly thereafter (and in any event within fifteen (15) Business Days after delivery of such notice, which period shall toll only for any period of time during which the proposed Investor Designee has been requested to provide, but has not provided, information reasonably necessary to assess whether the Criteria have been satisfied), the Nominating and Corporate Governance Committee shall notify the Lead Investor in writing whether it has approved or disapproved of such proposed Investor Designee (the “Approval/Disapproval Notice”). If the Nominating and Corporate Governance Committee fails to timely deliver an Approval/Disapproval Notice, the proposed Investor Designee shall be conclusively and finally deemed to have been approved. If the Nominating and Corporate Governance Committee disapproves of a proposed Investor Designee, the Approval/Disapproval Notice shall specify the Criteria on which such disapproval is based and the specific reasons for which the Nominating and Corporate Governance Committee believes such Criteria are not satisfied (which shall, in the case of any disapproval based on clause (B) of the definition of “Criteria”, attach a reasonably detailed summary, on the letterhead of the Independent Legal Counsel, of the legal advice of the Independent Legal Counsel referred to therein, including the reasons therefor). In the event of any such disapproval, the Lead Investor shall have the right to name a different person as a replacement designee, without prejudice to the Lead Investor’s right to dispute whether the Nominating and Corporate Governance Committee has permissibly disapproved of the originally proposed Investor Designee. Following approval or deemed approval, the Board shall appoint or nominate such Investor Designee, as applicable, within five (5) Business Days.
Section 3.5 Non-Elected Designees. In the event that any Investor Designee designated by the Lead Investor to stand for election (or re-election) at a meeting of the Company’s stockholders is, for any reason, not elected to serve on the Board at such meeting (any such person, a “Non-Elected Designee”), the Company shall, if the Lead Investor so requests in writing, promptly expand the size of the Board by a number of seats equal to the number of Non-Elected Designees (a “Designee Board Expansion”), and the Lead Investor shall have the exclusive right to fill the vacancy or vacancies created by such Designee Board Expansion with new Investor Designees in accordance with Section 3.4, which new Investor Designees shall be appointed to the Board by the Board promptly following their approval or deemed approval. Immediately prior to (and effective as of) the first meeting of the Company’s stockholders following such Designee Board Expansion, the Board shall cause the size of the Board to be decreased back to seven (7).
Section 3.6 Removal and Replacement; Vacancies.
(a) Removal. The Lead Investor has the right, at any time and from time to time, with or without cause, to remove any Investor Designee, and the Lead Investor has the exclusive right, but not the obligation, to designate a replacement Investor Designee to fill any vacancy so created. To the extent that an Investor Designee does not immediately resign upon the Lead Investor delivering to the Company a notice that the Lead Investor is exercising its right to remove such Investor Designee, the Company shall fully cooperate with the Lead Investor in all respects to cause the prompt removal of such Investor Designee, including by:
(i) immediately removing such Investor Designee from any Board committee membership, Board leadership position (including as Chairperson) and any other position held at the Company or any of its Subsidiaries;
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(ii) as promptly as reasonably practicable calling, setting a record date and meeting date for, and holding a special meeting of stockholders for purposes of removing such Investor Designee, it being understood that (A) the Company shall (1) commence a Rule 14a-13 compliant broker search for such meeting within five (5) Business Days after the date of delivery of the Lead Investor’s removal notice and (2) file its preliminary proxy statement in respect of such meeting within ten (10) Business Days after the date of delivery of such removal notice and diligently and expeditiously pursue clearance of any SEC comments with full transparency to the Lead Investor, and (B) unless prohibited by Law, such meeting shall in all circumstances be held within sixty (60) calendar days after the date of delivery of such removal notice, subject to extension solely as reasonably required to clear any SEC comments, provided that the Company is actively and diligently pursuing clearance of such comments;
(iii) to the extent permitted by the Company Organizational Documents and applicable Law, giving effect to any written consent of stockholders delivered by the Lead Investor effecting such removal and the election of the replacement Investor Designee, in lieu of a meeting; and
(iv) causing such Investor Designee not to be reappointed to the Board or nominated, recommended or supported in any way by the Board for re-election at any meeting of the Company’s stockholders (or written consent in lieu thereof).
(b) Vacancies. In the event that a vacancy is created at any time by the death, disability, retirement, removal, failure to be elected or resignation of any Investor Designee or for any other reason (including as a result of a Designee Board Expansion), any individual nominated or appointed by or at the direction of the Board or the Nominating and Corporate Governance Committee to fill such vacancy shall be, and the Company shall take all Necessary Action to cause such vacancy to be filled (including by appointment by the Board) as soon as possible by, a new Investor Designee designated by the Lead Investor who satisfies the Criteria. The Company shall not present to its stockholders, and the Board shall not appoint, any nominee not chosen by the Lead Investor to fill any vacancy created by the removal, resignation or departure of any Investor Designee.
(c) Subsequent Events. In the event that during the term of Board service of any Investor Designee there occurs any new fact or circumstance that would have resulted in such Investor Designee not satisfying clause (A) or (based on the written advice of Independent Legal Counsel, a reasonably detailed summary of which, including the reasons therefor, shall be provided to the Lead Investor on the letterhead of the Independent Legal Counsel) clause (B) of the definition of “Criteria” had such fact or circumstance existed prior to such Investor Designee’s most recent appointment or nomination, then (x) if the Company so requests in writing, the Lead Investor shall use commercially reasonable efforts to cause such Investor Designee to resign from the Board (it being understood that the Lead Investor shall have no liability if such Investor Designee refuses to resign) and (y) the Company may call a meeting of stockholders for purposes of voting on the removal of such Investor Designee; provided that the Company shall also include at such meeting a vote on the Lead Investor’s proposed replacement Investor Designee to the extent requested by the Lead Investor.
(d) Time of the Essence. The Parties expressly agree that time is of the essence in effecting the removal and replacement of any Investor Designee that the Lead Investor has determined to remove and/or replace pursuant to this Section 3.6.
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(e) Pre-Signed Resignation and Reassignment Letters. As a condition to the appointment, nomination or election of any Investor Designee to the Board, such Investor Designee shall execute and deliver to the Lead Investor an undated, pre-signed letter of resignation and reassignment, in form and substance satisfactory to the Lead Investor, providing for such Investor Designee’s resignation from the Board and each committee thereof and from any other position held at the Company or any of its Subsidiaries, or such Investor Designee’s reassignment, as applicable. The Lead Investor may, in its sole discretion, date and deliver any such letter to the Company at any time in connection with the removal, replacement or reassignment of such Investor Designee pursuant to this Section 3.6, whereupon such resignation or reassignment shall become effective automatically without any further action by any Person. Each Investor Designee serving on the Board as of the Amendment Effective Date shall execute and deliver such a letter to the Lead Investor within ten (10) Business Days after the Amendment Effective Date.
Section 3.7 Nomination and Support. The Company shall, to the fullest extent permitted by Law and subject only to Section 3.4, take all Necessary Action to (a) include each Investor Designee in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors (or consent in lieu of meeting), (b) include each Investor Designee in the proxy statement prepared by management of the Company with respect to the election of Directors and at every adjournment or postponement thereof, and (c) support each Investor Designee for election to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees, including by soliciting proxies in favor of the election of each Investor Designee. Except in accordance with Section 3.6, the Company shall not submit to its stockholders any resolution that would result in the removal of an Investor Designee and, in the event that a stockholder proposal is submitted that could result in the removal of an Investor Designee, the Company shall take all Necessary Action to oppose such resolution, including evaluating whether such proposal was properly and duly submitted and soliciting proxies against it.
Section 3.8 Committees. For so long as this Agreement is in effect, the Company shall take all Necessary Action to cause to be appointed to each committee of the Board a number of Investor Designees such that the number of Investor Designees serving on each such committee is proportionate (rounding up to the next whole Director) to the number of Directors that the Lead Investor is entitled to designate to the Board (as compared to the Total Number of Directors), and in any event not less than one
(1) Investor Designee on each committee, in each case to the extent such Investor Designees are permitted to serve on such committees under the applicable rules and regulations of the SEC and the Trading Market (after giving effect to any “controlled company” exemption on which the Company relies). The Lead Investor shall not be required to have Investor Designees represented on any committee, and any failure to exercise such right in a prior period shall not constitute a waiver of such right in a subsequent period. The Board shall not establish any committee, or delegate any authority to any committee, for the purpose or with the effect of circumventing the rights of the Lead Investor or the Investor Designees hereunder.
Section 3.9 Rights of Investor Designees.
(a) Compensation and Expenses. Except to the extent the Lead Investor may otherwise notify the Company, each Investor Designee that is not an employee of the Company or any of its Subsidiaries shall be entitled to compensation consistent with the compensation received by other non-employee Directors, and the Company shall pay the reasonable and documented out-of-pocket expenses incurred by each Investor Designee in connection with his or her service to the Company.
(b) Indemnification and Insurance. Each Investor Designee shall be entitled to the same rights and privileges as all other Directors. The Company shall indemnify, exculpate and advance expenses to each Investor Designee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and shall provide each Investor Designee with directors’ and officers’ liability insurance coverage reasonably satisfactory to the Lead Investor, in each case to the same extent as it does for the other Directors. The Company hereby agrees that it is the indemnitor of first resort with respect to each Investor Designee (i.e., its and its insurers’ obligations are primary, and any obligation of any Group Member or its Affiliates or their insurers to indemnify or advance expenses to such Investor Designee is secondary and excess), and each Group Member shall be an express third-party beneficiary of this Section 3.9(b).
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(c) Information Sharing. Each Investor Designee shall have the right to communicate and share information with the Lead Investor without any prior Board or other Company approval, to the extent not prohibited by Delaware law (and irrespective of any Company policy or organizational document to the contrary); provided that (i) no material non-public information shall be shared with the Lead Investor unless the Lead Investor shall have agreed to keep such information confidential, and (ii) the Board may restrict Investor Designees from sharing information that relates to a matter in which a Group Member or its Affiliate is adverse to the Company.
(d) Corporate Opportunities. Subject to applicable Law, no Investor Designee shall be obligated to present to the Company any particular business opportunity that he or she becomes aware of by virtue of his or her position as a director, officer, employee or member of any Group Member or any of its Affiliates.
Section 3.10 Non-Waiver; Information. Any election by the Lead Investor not to exercise (in whole or in part) the right to designate one or more Investor Designees shall not constitute a permanent waiver or relinquishment of such right, and the Company shall have no right to fill any such undesignated seat. The Lead Investor shall use reasonable best efforts to cause the Investor Designees to timely provide the Company with accurate and complete information relating to the Group Members and the Investor Designees that may be required to be disclosed by the Company under the Securities Act or the Exchange Act.
Section 3.11 Organizational Documents. The Company shall not, and shall not recommend to its stockholders or the Board, adopt or approve any amendment to the Company Organizational Documents that would alter or modify in an adverse manner any of the rights of the Lead Investor or the Group Members under this Agreement without the prior written approval of the Lead Investor. At the request of the Lead Investor, the Company shall take all Necessary Action to amend the Company Organizational Documents to reflect the rights of the Lead Investor under this Agreement, including (a) to fix the Total Number of Directors in accordance with Section 3.1, (b) to permit the Lead Investor to designate, remove and replace Investor Designees, and the stockholders to act, by written consent, and (c) to reflect the Board approval requirements set forth in Article IV. The Company shall take all actions within its power to cause the composition and powers of the Board and its committees to at all times satisfy the requirements of applicable Law, this Agreement and the Company Organizational Documents.
ARTICLE IV
MANAGEMENT AND OPERATIONAL MATTERS
Section 4.1 Key Officers. For so long as the Lead Investor is entitled to designate at least one
(1) Investor Designee pursuant to Section 3.2, the appointment, removal or replacement of, and any material change to the title, authority, reporting line or compensation of, the Chairperson and the Chief Executive Officer (including any Co-Chief Executive Officer) (each, a “Key Officer”) shall be a matter reserved exclusively to the full Board, shall not be delegated to any committee of the Board or to any officer of the Company, and shall require the affirmative vote of a majority of the Investor Designees then serving on the Board.
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ARTICLE V
ANTI-DILUTION PROTECTIONS
Section 5.1 Consent Rights. From the Amendment Effective Date until the expiration of the Majority Designation Period (the “Consent Period”), the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, without the prior written consent of the Lead Investor:
(a) issue, sell or agree to issue or sell any shares of Common Stock or Common Stock Equivalents in any single transaction or series of related transactions (and aggregating all issuances within any rolling twelve (12) month period) representing, on an as-converted basis, fifteen percent (15%) or more of the shares of Common Stock outstanding immediately prior to the first such issuance, other than Excluded Issuances described in Section 5.4(a), Section 5.4(b) and Section 5.4(c);
(b) enter into any transaction or series of related transactions that would require a stockholder vote under Nasdaq Listing Rule 5635 (without giving effect to Nasdaq Listing Rule 5635(f));
(c) issue, sell or agree to issue or sell any shares of Common Stock or Common Stock Equivalents at an effective price per share (including any conversion, exercise or exchange price, and after giving effect to any discount, fee, warrant coverage, price reset, variable pricing or similar feature) that is less than the “Minimum Price” (as defined in Nasdaq Listing Rule 5635(d)) measured as of the date of execution of the binding agreement with respect to such issuance;
(d) authorize, create, designate or issue any class or series of capital stock (or any security convertible into or exercisable for any such class or series) ranking senior to or pari passu with the Series B Preferred Stock with respect to dividends, distributions, liquidation preference, redemption or voting rights, or amend the certificate of designation of the Series B Preferred Stock;
(e) adopt any stockholder rights plan, “poison pill” or similar arrangement, or take any action that would cause Section 203 of the DGCL (or any similar anti-takeover Law) to apply to any Group Member or any transaction contemplated hereby; or
(f) adopt any new equity incentive plan or increase the number of shares reserved under any existing equity incentive plan by more than ten percent (10%) of the outstanding Common Stock in any fiscal year.
Section 5.2 Participation in Future Financings.
(a) During the Majority Designation Period, upon any issuance by the Company or any of its Subsidiaries of Common Stock, Common Stock Equivalents or indebtedness, or any combination or units thereof (a “Subsequent Financing”), the Lead Investor (directly or through any Group Member or Affiliate designated by it) shall have the right to participate in such Subsequent Financing up to an amount equal to the greater of (i) the Group Voting Percentage as of the date of closing of such Subsequent Financing and (ii) such amount as is necessary to maintain the Group Shares at not less than the Minimum Share Amount, in each case on the same terms, conditions and price provided for in the Subsequent Financing.
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(b) At least twenty (20) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to the Lead Investor a written notice of its intention to effect a Subsequent Financing (a “Pre-Notice”), which Pre-Notice shall ask the Lead Investor if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of the Lead Investor, the Company shall promptly, but no later than five Trading Day after such request, deliver a Subsequent Financing Notice to the Lead Investor, which shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected, and shall attach a term sheet or similar document relating thereto.
(c) The Lead Investor must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the fifteenth (15th) Trading Day after the Lead Investor has received the Pre-Notice that it is willing to participate in the Subsequent Financing and the amount of its participation. If the Company receives no such notice by such time, the Lead Investor shall be deemed to have elected not to participate in such Subsequent Financing (without prejudice to its rights under Sections 5.1 and 5.3).
(d) The Company must provide the Lead Investor with a second Subsequent Financing Notice, and the Lead Investor will again have the right of participation set forth in this Section 5.2, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth therein within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice.
(e) If the Lead Investor elects to participate in a Subsequent Financing, the transaction documents related thereto shall not include any term or provision whereby any Group Member shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of the Lead Investor.
(f) Unless otherwise agreed by the Lead Investor, the Company shall either confirm in writing to the Lead Investor that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner that no Group Member will be in possession of any material, non-public information, by the tenth (10th) Trading Day following delivery of the Subsequent Financing Notice. If by such tenth (10th) Trading Day no such public disclosure has been made and no such notice of abandonment has been received, such transaction shall be deemed to have been abandoned and no Group Member shall be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries.
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Section 5.3 Top-Up Right. In addition to, and not in limitation of, Section 5.2, during the Majority Designation Period and upon any issuance by the Company of Common Stock or Common Stock Equivalents (including any Excluded Issuance) that results in a reduction of the Group Voting Percentage, the Lead Investor (directly or through any Group Member or Affiliate designated by it) shall have the right (the “Top-Up Right”) to purchase from the Company such number of shares of Common Stock (or, at the Lead Investor’s election, Common Stock Equivalents having substantially the same terms as the securities so issued) as is necessary to restore the Group Voting Percentage to the Group Voting Percentage in effect immediately prior to such issuance, at a price per share equal to (i) in the case of an issuance for cash, the price per share at which such securities were issued, and (ii) in the case of any other issuance (including any Excluded Issuance), the “Minimum Price” (as defined in Nasdaq Listing Rule 5635(d)) as of the date of such issuance. The Company shall notify the Lead Investor in writing of any such issuance within five (5) Business Days thereafter (or, in the case of issuances pursuant to Section 5.4(a) or Section 5.4(b), within five (5) Business Days after the end of each fiscal quarter with respect to all such issuances during such quarter), and the Lead Investor may exercise the Top-Up Right by written notice delivered within twenty (20) Trading Days after receipt of such notice. The closing of any purchase pursuant to the Top-Up Right shall occur within ten (10) Business Days after such exercise notice (subject to extension for any required regulatory or stockholder approval, which the Company shall use reasonable best efforts to obtain as promptly as practicable).
Section 5.4 Excluded Issuances. Section 5.2 (but not Section 5.3 and, except as expressly provided therein, not Section 5.1) shall not apply in respect of the following issuances (each, an “Excluded Issuance”):
(a) shares of Common Stock or options to employees, officers, directors or consultants of the Company pursuant to any equity incentive plan of the Company approved by the Board (including the affirmative vote of a majority of the Investor Designees), within the limits set forth in Section 5.1(f);
(b) securities issued as consideration in a bona fide acquisition or strategic transaction with an operating company (or the owner of an asset) in a business synergistic with the business of the Company, provided that (i) such transaction is approved by the Board, including the affirmative vote of a majority of the Investor Designees, (ii) the securities issued in such transaction and all other transactions under this clause (b) in the preceding twelve (12) months do not exceed, in the aggregate, five percent (5%) of the outstanding Common Stock (on an as-converted basis), and (iii) such transaction is not one in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; and
(c) securities issued to FFAI or any of its Affiliates as consideration in the Proposed Transaction (including the Purchaser Stock Consideration (as defined in the Transaction Agreement) and any shares of Common Stock issued upon conversion thereof) and any Special Stock Dividend (as defined in the Transaction Agreement).
Section 5.5 Listing Rule Compliance. To the extent any purchase by a Group Member pursuant to Section 5.2 or Section 5.3 requires the approval of the Company’s stockholders under the rules of the Trading Market, the Company shall promptly (and in any event within sixty (60) days) call a meeting of its stockholders to obtain such approval, the Board shall recommend that stockholders approve such issuance and the Company shall solicit proxies in favor thereof; and pending such approval, the Company shall issue to the applicable Group Member the maximum number of securities that may be issued without such approval, with the balance issued promptly following receipt of such approval.
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ARTICLE VI
ADDITIONAL COVENANTS
Section 6.1 No Circumvention. To the fullest extent permitted by Law, the Company shall not, directly or indirectly, take any action (including any amendment to the Company Organizational Documents, any reorganization, recapitalization, reclassification, merger, conversion, domestication, transfer of assets to a Subsidiary, creation or delegation of authority to any committee, or issuance of securities) that is intended to, or would reasonably be expected to, result in the Lead Investor or any Group Member being deprived of, or impair the exercise or benefit of, the rights contemplated by this Agreement.
Section 6.2 Pledges. Upon the written request of any Group Member to pledge, hypothecate or grant security interests in any or all of its shares of Common Stock or other securities of the Company, including to banks or financial institutions as collateral for loans, advances or extensions of credit, the Company shall cooperate with such Group Member in taking any action reasonably necessary to consummate any such pledge, hypothecation or grant, including delivery of letter agreements to lenders in form and substance reasonably satisfactory to such lenders and, subject to applicable Law, instructing the transfer agent to transfer any such shares into the facilities of The Depository Trust Company without restrictive legends.
Section 6.3 Spin-Offs or Split-Offs. In the event that the Company effects the separation of any material portion of its business into one or more entities (each, a “NewCo”), whether existing or newly formed, including by way of spin-off, split-off, carve-out, demerger, recapitalization, reorganization or similar transaction, and any Group Member will receive equity interests in any such NewCo as part of such separation, the Company shall cause each such NewCo, as a condition to such separation, to enter into an agreement with the Lead Investor and the applicable Group Members that provides them with rights vis-à-vis such NewCo that are substantially identical to those set forth in this Agreement.
Section 6.4 Regulatory Challenge. In the event that the Company’s compliance with any provision of this Agreement is questioned or challenged by a Governmental Authority of competent jurisdiction or by the Trading Market, the Company shall promptly notify the Lead Investor of such questioning or challenge and thereafter shall, in consultation and cooperation with the Lead Investor, use reasonable best efforts to take or cause to be taken all such actions, and do or cause to be done all such things, as shall be required, necessary, proper or advisable to give full effect to the intent of the Parties as set forth herein (including by explaining the Company’s position and/or initiating or defending any legal proceeding). The Lead Investor shall be entitled to participate, at its own expense, in all legal proceedings and other interactions with any Governmental Authority or the Trading Market related to this Section 6.4, and shall be entitled to review and advise on any documents or materials to be submitted in connection therewith. If, notwithstanding the foregoing and after having exhausted all available appeals, the Company is compelled by applicable Law to amend any provision of this Agreement in order to comply therewith, the Parties shall reasonably cooperate to so amend such provision, but only to the minimum extent required and while preserving, to the maximum extent possible, the intent of the Parties as set forth herein.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Mutual Representations. Each Party represents and warrants to each other Party that: (a) if such Party is an entity, it is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and if such Party is an individual, he has full legal capacity to enter into this Agreement; (b) it has the full right, power and authority to enter into and perform its obligations under this Agreement, and the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate, limited liability company or other action; (c) this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms; and (d) its execution, delivery and performance of this Agreement will not violate any applicable Law, its organizational documents (if applicable), or any agreement to which it is a party or by which it or its securities are bound.
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Section 7.2 Representations of the Company. The Company represents and warrants to the Lead Investor and each other Group Member that: (a) the Board, including a majority of its disinterested Directors, has approved this Agreement and the transactions contemplated hereby (including the grant of the Proxy and the acquisition by FFGP of voting power over the Covered Shares) for all purposes of Section 203 of the DGCL, such that the restrictions of Section 203 of the DGCL do not and will not apply to any Group Member or any such transaction; (b) no stockholder rights plan, “poison pill” or similar arrangement is in effect with respect to the Company; (c) the Company has not granted any Person any right that conflicts with the rights granted to the Lead Investor hereunder.
Section 7.3 Representations of the Group Members. Each Group Member, severally and not jointly, represents and warrants to the Company and each other Party that (a) Schedule A sets forth a true and complete list of all securities of the Company owned of record or Beneficially Owned by such Group Member as of the Signing Date; (b) such Group Member has sole voting power (except as granted hereunder) over its Covered Shares, and its Covered Shares are free and clear of any proxy, voting trust or voting agreement other than this Agreement and any voting and support agreement entered into in connection with the Proposed Transaction; and (c) in the case of FFAI, the execution, delivery and performance of this Agreement have been approved by its board of directors and by its audit committee (or other committee of independent and disinterested directors) in accordance with its related party transaction policy and applicable Law.
Section 7.4 Disclaimer. Except as expressly set forth in this Agreement, no Party makes any representation or warranty, express or implied.
ARTICLE VIII
EFFECTIVENESS; TERM AND TERMINATION
Section 8.1 Conditions to Effectiveness. This Agreement (other than Section 7.1, this Article VIII and Article IX, which shall be effective as of the Signing Date) shall become effective automatically, without any further action by any Party, at the time at which all of the following conditions have been satisfied (such time, the “Amendment Effective Date”): (a) the definitive agreement for the Proposed Transaction shall have been duly executed and delivered and the Closing shall have occurred; (b) this Agreement shall have been approved by the Board; (c) this Agreement shall have been approved by the board of directors of FFAI; and (d) this Agreement shall have been approved by the managing member or board of managers of FFGP (or its equivalent governing body). Until the Amendment Effective Date, the Original Agreement shall remain in full force and effect in accordance with its terms. If the closing of the Proposed Transaction (the “Closing”) has not occurred on or prior to the date that is one hundred eighty (180) days after the Signing Date (the “Outside Date”), then (i) this agreement shall be terminated automatically and (ii) the Original Agreement shall continue in full force and effect in accordance with its terms, with FFAI as the Lead Investor thereunder.
Section 8.2 Term. The term of this Agreement is ninety-nine (99) years from the Amendment Effective Date, subject to Section 8.1. The rights of the Lead Investor under each provision hereof shall continue for the period specified in such provision (or, if no period is specified, for the term of this Agreement).
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Section 8.3 Termination. This Agreement may be terminated (a) by the Lead Investor, in its sole discretion, upon five (5) days’ written notice of termination to the Company and the other Group Members, or (b) by the mutual written agreement of the Company and the Lead Investor. The Company shall have no right to terminate this Agreement.
Section 8.4 Effect of Termination. Upon termination of this Agreement, the Proxy shall automatically terminate. Termination of this Agreement will not relieve any Party of its obligations hereunder accruing prior to such termination or of liability for any breach hereof prior to such termination. Article I and Article IX shall survive any termination of this Agreement.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Amendment and Restatement; Assignment of Lead Investor Rights. Subject to Section 8.1, effective as of the Amendment Effective Date, the Original Agreement is hereby amended and restated in its entirety by this Agreement. This Agreement shall not constitute a novation of the Original Agreement, and all rights and obligations of the parties thereto accrued prior to the Amendment Effective Date shall be preserved. FFAI hereby assigns, transfers and conveys to FFGP all of FFAI’s rights, title and interest as the “Lead Investor” under the Original Agreement, and FFGP hereby accepts such assignment and agrees to be bound by the obligations of the Lead Investor hereunder. The Company hereby consents to such assignment. Each Investor Designee serving on the Board as of the Amendment Effective Date shall be deemed to have been designated by FFGP as an Investor Designee hereunder. Any reference to the “Lead Investor” in the Securities Purchase Agreements or any other agreement entered into in connection with the Private Placement shall, to the extent relating to the rights set forth herein, be deemed to refer to FFGP.
Section 9.2 Notices. Any notice, designation, request, consent or approval required or permitted under this Agreement shall be in writing and shall be personally delivered, sent by electronic mail or sent by reputable overnight courier service (charges prepaid) to the addresses set forth on the signature pages hereto (or to such other address as a Party may designate by prior written notice to the other Parties). Notices shall be deemed to have been given when delivered personally or sent by electronic mail during normal business hours of the recipient (and otherwise as of the immediately following Business Day), and one (1) Business Day after deposit with a reputable overnight courier service.
Section 9.3 Amendment; Waiver. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company and the Lead Investor; provided that any amendment to Article II, or any amendment that would disproportionately and adversely affect any Group Member (other than the Lead Investor) relative to the other Group Members, shall additionally require the written consent of such Group Member. Neither the failure nor any delay on the part of any Party to exercise any right, remedy, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof. No waiver shall be effective unless it is in writing and signed by the Party against whom it is asserted.
Section 9.4 Assignment. This Agreement may not be assigned by the Company (by operation of Law, merger or otherwise) without the prior written consent of the Lead Investor, and any attempted assignment without such consent shall be null and void. The Lead Investor may assign any or all of its rights hereunder, without the consent of any other Party, to any of its Affiliates or to any other Group Member, and following such assignment such assignee shall be deemed to be the Lead Investor for all purposes hereof. This Agreement shall inure to the benefit of and be binding on the Parties and their respective heirs, successors and permitted assigns.
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Section 9.5 Third Parties. Except as provided in Section 3.9(b), this Agreement does not create any rights, claims or benefits inuring to any Person that is not a Party hereto nor create or establish any third-party beneficiary hereto.
Section 9.6 Governing Law. THIS AGREEMENT AND ITS ENFORCEMENT AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE MAKING OR PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
Section 9.7 Jurisdiction; Waiver of Jury Trial. Each Party hereby (a) agrees that any action, directly or indirectly, arising out of, under or relating to this Agreement (including any action under Section 225 or Section 211 of the DGCL relating to the composition of the Board or the conduct of any meeting of stockholders) shall exclusively be brought in and heard and determined by the Court of Chancery of the State of Delaware (or, solely if such court lacks subject matter jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware); (b) irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts; (c) irrevocably waives any objection to the laying of venue in, and agrees not to plead or claim that any such court is an inconvenient forum or lacks personal jurisdiction over it; and (d) agrees that service of process in the manner provided for notices in Section 9.2 or in any other manner permitted by applicable Law shall be valid and sufficient. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM OR ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
Section 9.8 Specific Performance. Each Party acknowledges and agrees that in the event of any breach or threatened breach of this Agreement, the other Parties would be irreparably harmed and could not be made whole by monetary damages. Accordingly, each Party agrees to waive the defense in any action for specific performance that a remedy at law would be adequate, and agrees that the other Parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to seek an injunction or injunctions and to seek specific performance of the terms hereof, without the necessity of proving actual damages or posting any bond or other security.
Section 9.9 Entire Agreement. This Agreement (together with the Schedules and Exhibits hereto) sets forth the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect thereto, including the Original Agreement (subject to Sections 8.1 and 9.1).
Section 9.10 Severability. If any provision of this Agreement, or the application thereof to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (a) the remainder of this Agreement shall not be affected thereby and each other provision hereof shall be valid and enforceable to the fullest extent permitted by Law, (b) as to such Person, circumstance or jurisdiction, such provision shall be reformed (pursuant to Section 6.4 in the circumstances in which Section 6.4 applies) to be valid and enforceable to the fullest extent permitted by Law so as to preserve, to the maximum extent possible, the intent of the Parties, and (c) the application of such provision to other Persons, circumstances or jurisdictions shall not be affected thereby.
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Section 9.11 Conflict with Organizational Documents. In the event of a conflict between this Agreement and the Company Organizational Documents, the Company shall take all Necessary Action to amend the Company Organizational Documents to eliminate such conflict and, as among the Parties and to the fullest extent permitted by applicable Law, the provisions of this Agreement shall control.
Section 9.12 Further Assurances. The Parties shall sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things as may be necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof.
Section 9.13 Time is of the Essence. The Parties agree that time is of the essence in the performance of each of their obligations pursuant to this Agreement.
Section 9.14 Grant of Consent. Any vote, consent, approval, designation or other action of the Lead Investor hereunder shall be effective if notice thereof is provided by the Lead Investor in accordance with Section 9.2, and no consent or action of any other Group Member shall be required therefor except as expressly provided in Section 9.3.
Section 9.15 Headings. The headings and captions contained in this Agreement are included for convenience of reference only and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
Section 9.16 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by electronic mail (including .pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com) shall be effective as delivery of an original counterpart hereof.
[Remainder of page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, the Parties have executed this Amended and Restated Lead Investor Agreement as of the date first written above.
| COMPANY: | ||
| FF EAI ROBOTICS ECOSYSTEM INC. | ||
| (formerly known as AIxCrypto Holdings, Inc.) | ||
| By: | /s/ Jie Sheng | |
| Name: | JIE SHENG | |
| Title: | President | |
| Address: | 1990 E. Grand Avenue, El Segundo, CA 90245 | |
| Email: | *** | |
| LEAD INVESTOR: | ||
| FF GLOBAL PARTNERS LLC | ||
| By: | /s/ Jia Wei Wang | |
| Name: | JIA WEI WANG | |
| Title: | President | |
| Address: | 1990 E Grand Ave, El Segundo, CA 90245 | |
| Email: | *** | |
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| GROUP MEMBERS: | ||
| FARADAY FUTURE INTELLIGENT ELECTRIC INC. | ||
| By: | /s/ Koti Meka | |
| Name: | KOTI MEKA | |
| Title: | CFO | |
| Address: | 1990 E. Grand Avenue, El Segundo, CA 90245 | |
| Email: | *** | |
| YUETING JIA | ||
| /s/ Yueting Jia | ||
| Name: | YUETING JIA | |
| Address: | 1990 E grant ave, El Segundo, CA 90245 | |
| Email: | *** | |
| JIAWEI WANG | ||
| /s/ Jiawei Wang | ||
| Name: | JIAWEI WANG | |
| Address: | 1990 E Grand Ave, El Segundo, CA 90245 | |
| Email: | *** | |
[Signature Page to Amended and Restated Lead Investor Agreement]
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SCHEDULE A
GROUP MEMBERS AND COVERED SHARES
(as of the Signing Date)
| Group Member | Common Stock (record / beneficial) | Series B Preferred Stock (as-converted Common) | Other Common Stock Equivalents | % of Outstanding Common Stock | ||||||||||||
| Faraday Future Intelligent Electric Inc. | 13,357,079 | 50.67 | % | |||||||||||||
| Yueting Jia | 33,163 | 1,747,781 | 6.34 | % | ||||||||||||
| Jiawei Wang | 1,658 | 87,389 | 0.34 | % | ||||||||||||
| FF Global Partners LLC | 0 | 0 | % | |||||||||||||
| Total (Group Shares) | 13,391,900 | 1,835,170 | 54.01 | % | ||||||||||||
Minimum Share Amount: 3,339,270 shares of Common Stock (as-converted basis).
Outstanding Common Stock as of October 12, 2026: 26,358,983 shares.
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EXHIBIT A
FORM OF JOINDER
The undersigned hereby acknowledges that it has received and reviewed a copy of the Amended and Restated Lead Investor Agreement, dated as of October 12, 2026 (as amended from time to time, the “Agreement”), by and among FF EAI Robotics Ecosystem Inc., FF Global Partners LLC, Faraday Future Intelligent Electric Inc., Yueting Jia and Jiawei Wang. Capitalized terms used but not defined herein have the meanings given to them in the Agreement.
By executing this Joinder, the undersigned hereby (a) agrees to become a party to, and to be bound by and comply with all provisions of, the Agreement as a “Grantor” and a “Group Member” thereunder, (b) irrevocably constitutes and appoints FF Global Partners LLC as its proxy and attorney-in-fact with respect to all Covered Shares now or hereafter owned of record or Beneficially Owned by it, on the terms set forth in Article II of the Agreement, which proxy is coupled with an interest and irrevocable, and (c) makes, as of the date hereof, the representations and warranties set forth in Sections 7.1 and 7.3 of the Agreement.
This Joinder shall be governed by and construed in accordance with the laws of the State of Delaware.
| [NAME OF TRANSFEREE] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Date: | ||
| Address / Email for Notices: | ||
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Exhibit 10.5
FORM OF SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of October 12, 2026 by and among FF EAI Robotics Ecosystem Inc. (formerly known as “AIxCrypto Holdings, Inc.”), a Delaware corporation (the “Company”) and the purchasers listed on Schedule I hereto (each, a “Purchaser” and collectively, the “Purchasers”). Each of the Company and the Purchasers is referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, concurrently with the execution of this Agreement, on October 12, 2026, the Company has entered into the Acquisition Agreement, pursuant to which, among other things, the Company will acquire from Smart Technology Holdings Ltd., a wholly owned subsidiary of FFAI, all of the issued and outstanding capital stock of RobotCo in exchange for the FF Consideration Securities, and RobotCo will thereafter merge with and into a wholly owned subsidiary of the Company;
WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, certain 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 each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Acquisition Agreement” means that certain transaction agreement, dated as of October 12, 2026, by and among the Company, FFAI, Smart Technology Holdings Ltd., FF EAI Robotics Inc. and FFR Acquisition Sub LLC (as merger sub), providing for, among other things, the Business Combination, as may be amended from time to time.
“Action” shall have the meaning ascribed to such term in Section 3.1(h).
“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.
“Applicable Nasdaq Cap” shall have the meaning ascribed to such term in Section 2.4.
“Beneficial Ownership Limitation” shall have the meaning ascribed to such term in Section 4.6.
“Board of Directors” means the board of directors of the Company.
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“Business Combination” means, collectively, (i) the acquisition by the Company from Smart Technology Holdings Ltd. of all of the issued and outstanding capital stock of FF EAI Robotics Inc., a California corporation and, following the internal restructuring contemplated by the Acquisition Agreement, the holding company of FFAI’s robotics business (“RobotCo”), in exchange for the FF Consideration Securities, and (ii) the subsequent merger of RobotCo with and into a wholly owned subsidiary of the Company, in each case pursuant to the Acquisition Agreement.
“Business Day” means any day other than a Saturday, Sunday or a day on which commercial banks in New York, New York are authorized or required by law to close.
“Certificate of Designation” means the Certificate of Designation of Preferences, Rights and Limitations of the Preferred Stock, substantially in the form attached hereto as Exhibit A, as duly adopted by the Board of Directors and filed with the Secretary of State of the State of Delaware.
“Closing” means the closing of the purchase and sale of the Purchased Shares pursuant to Section 2.1, which shall occur on the Closing Date substantially concurrently with the consummation of the Business Combination, subject to settlement of each Purchaser’s purchase of its Purchased Shares on its Funding Date in accordance with Section 2.1.
“Closing Date” means the date on which the Business Combination is consummated, subject to the satisfaction or waiver of the conditions set forth in Section 2.3 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing).
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the Company’s common stock, par value $0.001 per share, currently listed on the Trading Market under the symbol “FFR”.
“Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire Common Stock at any time, including, without limitation, any debt, preferred share, 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.
“Disclosure Schedules” means the disclosure schedules of the Company delivered concurrently with the execution of this Agreement.
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Company, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Company.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
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“Fairness Opinion” means the opinion delivered by Advanture Capital Solutions LLC to the special committee of independent directors of the Board of Directors as to the fairness, from a financial point of view, of the consideration in the Business Combination, together with any bring-down or update thereof and any summary or description of such opinion or the related financial analyses included in any filing or other disclosure by the Company.
“FF” or “FFAI” means Faraday Future Intelligent Electric Inc., a Delaware corporation and the majority stockholder of the Company, and/or its applicable Affiliates that will receive the FF Consideration Securities.
“FF Consideration Securities” means the shares of Common Stock, preferred stock and any other equity securities of the Company issued or issuable to FF or its applicable Affiliates as consideration in the Business Combination, including any shares of Common Stock issuable upon conversion thereof.
“Funding Date” means, with respect to each Purchaser, the date on which the Company receives such Purchaser’s Subscription Amount in full, which shall be no later than the Funding Deadline, or, if the Company accepts a reduction pursuant to Section 2.1, the later of such receipt and the date of the Company’s written notice accepting such reduction.
“Funding Deadline” means the fifteenth (15th) Business Day following the Closing Date.
“Governmental Authority” means any governmental authority, agency, instrumentality, department, commission, board, bureau, central bank, authority, court or other tribunal, in each case whether executive, legislative, judicial, regulatory or administrative, having jurisdiction over the Company, any of its subsidiaries or their respective property.
“Information Statement” means an information statement on Schedule 14C under the Exchange Act relating to the Stockholder Approval.
“Laws” means all applicable laws, statutes, ordinances, rules, regulations, orders, judgments and decrees of any Governmental Authority.
“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” means (a) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (b) a material adverse effect on the results of operations, assets, business, or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole, or (c) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document; provided that, with respect to clause (b), none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Effect: any adverse change, effect, event, occurrence, state of facts or development attributable to (i) any downturn after the date hereof in general economic conditions, including, without limitation, changes in the credit, debt, securities, financial, capital markets, or in the industry in which the Company and its subsidiaries operate; (ii) the taking of any action required by this Agreement or any other Transaction Document; (iii) any change after the date hereof in applicable Laws; (iv) any actual or potential sequester, stoppage, shutdown, default or similar event or occurrence by or involving any Governmental Authority affecting a national or federal government as a whole; (v) any change in GAAP (as defined in Section 3.1(g)) after the date hereof; (vi) the commencement, continuation or escalation of a war, riots, material armed hostilities or other material international or national calamity or act of terrorism directly or indirectly involving countries in which the Company and its subsidiaries operate; (vii) effects arising from or relating to, following the date hereof, any earthquake, hurricane, tsunami, tornado, flood, mudslide or other natural disaster, weather condition, explosion or fire or other force majeure event; (viii) changes in, or effects arising from or relating to, any epidemic, pandemic or disease outbreak, curfews or other restrictions that relate to, or arise out of, any epidemic, pandemic or disease outbreak or material worsening of such conditions threatened or existing as of the date hereof; and (ix) the failure of the Company and its subsidiaries to meet or achieve the results set forth in any internal projection.
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“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preferred Stock” means the Company’s Series D Non-Voting Convertible Preferred Stock, par value $0.001 per share, having the rights, preferences and limitations set forth in the Certificate of Designation.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Purchased Shares” means, collectively, the shares of Common Stock and Preferred Stock to be purchased by the Purchasers pursuant to this Agreement, the number of which, as to each Purchaser, is set forth opposite such Purchaser’s name in Schedule I hereto, as adjusted pursuant to Sections 2.1 and 4.6.
“Reference Price” means $2.246, being the per share price of the Common Stock used to determine the FF Consideration Securities under the Acquisition Agreement.
“Registrable Securities” shall have the meaning ascribed to such term in Section 4.4(b).
“Registration Statement” shall have the meaning ascribed to such term in Section 4.4(a).
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(d).
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(g).
“Securities” means the Purchased Shares and the shares of Common Stock issuable upon conversion of the Preferred Stock.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
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“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing Common Stock).
“Stockholder Approval” means the approval by the requisite holders of the Company’s voting securities, in accordance with applicable Law and the rules of the Trading Market, of the issuance or potential issuance of the Securities (together with, to the extent required under the rules of the Trading Market, the FF Consideration Securities) in excess of the Applicable Nasdaq Cap and any other matter requiring stockholder approval under the rules of the Trading Market, including Nasdaq Listing Rule 5635.
“Stockholder Approval Effective Time” means the first time at which the Company may effect the corporate action approved by the Stockholder Approval following compliance with Regulation 14C under the Exchange Act, including the expiration of the applicable twenty (20) calendar day period under Rule 14c-2.
“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Purchased Shares purchased by such Purchaser hereunder, which is set forth opposite such Purchaser’s name in Schedule I hereto, as reduced, if applicable, pursuant to Section 2.1.
“Subscription Price” means, per share of Common Stock, the lower of (i) the Nasdaq Official Closing Price of the Common Stock on the Trading Market immediately preceding the execution of this Agreement and (ii) the Reference Price; provided that no additional discount shall apply and the same Subscription Price shall apply to all Purchasers. The purchase price per share of Preferred Stock shall equal the Subscription Price multiplied by the number of shares of Common Stock into which one share of Preferred Stock is convertible as of the applicable Funding Date under the Certificate of Designation, without regard to any conversion limitations.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means the Nasdaq Capital Market of The Nasdaq Stock Market LLC, on which the Common Stock trades under the symbol “FFR”.
“Transaction Documents” means this Agreement, the Certificate of Designation and all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent” means Continental Stock Transfer & Trust Company, LLC and any successor transfer agent of the Company.
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ARTICLE II.
PURCHASE AND SALE
2.1 Closing. Upon the terms and subject to the conditions set forth herein, the Company agrees to issue and sell to the Purchasers, and the Purchasers, severally and not jointly, agree to purchase from the Company, for an aggregate Subscription Amount of up to US$10,000,000, with no minimum aggregate funding condition, such number of Purchased Shares as is determined in accordance with this Section 2.1 and Section 4.6. The number of shares of Common Stock represented by each Purchaser’s Purchased Shares on an as-converted basis shall equal its Subscription Amount divided by the Subscription Price, and shall be allocated between Common Stock and Preferred Stock pursuant to Section 4.6. No fractional shares of Common Stock or Preferred Stock shall be issued. Any fractional share of Common Stock or Preferred Stock resulting from the calculations contemplated by this Section 2.1 or Section 4.6 shall be rounded down to the nearest whole share, and the applicable Subscription Amount shall be correspondingly reduced to reflect the aggregate purchase price of the whole Purchased Shares actually issued. Any amount received in excess of such reduced Subscription Amount shall be promptly returned to such Purchaser, and Schedule I shall be deemed automatically amended accordingly. The Closing shall take place on the Closing Date remotely via the exchange of documents and signatures, or at such other location as the Parties may mutually agree, substantially concurrently with the consummation of the Business Combination, and shall be conditioned upon the consummation of the Business Combination. Each Purchaser acknowledges and agrees that the consummation of the Business Combination is not conditioned upon, and may occur irrespective of, the consummation of the transactions contemplated hereby or any other financing, and that no Purchaser shall have any right to delay, condition or otherwise affect the Business Combination. Each Purchaser shall pay its Subscription Amount on the Closing Date; provided that such Purchaser may instead pay its Subscription Amount at any time after the Closing Date and on or prior to the Funding Deadline, and payment within such period shall not constitute a breach of or default under this Agreement. No Purchaser shall be required to pay its Subscription Amount prior to the Closing Date or if the Business Combination is not consummated. The Company may, in its discretion and by written notice to a Purchaser, accept the lesser amount actually funded by such Purchaser on or prior to the Funding Deadline in full satisfaction of such Purchaser’s subscription commitment, in which case such Purchaser’s Subscription Amount shall be reduced to the amount so accepted, subject to the rounding adjustment above, and the Company shall issue Purchased Shares based on that amount and the remaining subscription commitment shall be cancelled without a funding default. Such reduction shall require no separate amendment or consent of any Purchaser, and Schedule I shall be deemed automatically amended accordingly. Unless the Company accepts such reduction, each Purchaser shall remain obligated to pay its original Subscription Amount, subject only to the rounding adjustment above. On each Purchaser’s Funding Date, the Company shall deliver, or cause the Transfer Agent to deliver, such Purchaser’s Purchased Shares to such Purchaser against, and only upon, receipt of such Purchaser’s Subscription Amount in full, and no Purchased Shares shall be issued to any Purchaser prior to such receipt.
2.2 Deliveries.
(a) On or prior to the Closing Date (or, in the case of clause (iii), on or prior to the applicable Funding Date), the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement with all exhibits and schedules thereto duly executed by the Company;
(ii) the Company’s wire instructions, on the Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
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(iii) a copy of irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver to such Purchaser, in book-entry form and promptly following receipt of such Purchaser’s Subscription Amount in full, the number of Purchased Shares set forth opposite such Purchaser’s name in Schedule I, as adjusted pursuant to Section 2.1 and allocated pursuant to Section 4.6, registered in the name of such Purchaser; and
(iv) a copy of the Certificate of Designation, as duly adopted by the Board of Directors and filed with the Secretary of State of the State of Delaware.
(b) Each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) on or prior to the Closing Date, this Agreement with all exhibits and schedules thereto duly executed by such Purchaser; and
(ii) on or prior to the Funding Deadline, such Purchaser’s Subscription Amount by wire transfer of immediately available funds to the bank account designated by the Company in accordance with Section 2.2(a)(ii).
2.3 Closing Conditions.
(a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date of the representations and warranties of each Purchaser contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by each Purchaser of the item set forth in Section 2.2(b)(i);
(iv) the Business Combination shall have been consummated or shall be consummated substantially concurrently with the Closing;
(v) to the extent the Stockholder Approval is required under the rules of the Trading Market for the issuance of the Purchased Shares, the Stockholder Approval Effective Time shall have occurred;
(vi) the Certificate of Designation shall have been duly filed with and become effective with the Secretary of State of the State of Delaware prior to issuance of any Preferred Stock;
(vii) the Company shall have obtained all consents, waivers and approvals required under any material agreement binding upon the Company in connection with the issuance and sale of the Purchased Shares, including under any lead investor, investor rights, voting or similar agreement then in effect; and
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(viii) each Purchaser shall have completed such Know Your Customer (KYC), Anti-Money Laundering (AML), sanctions and Office of Foreign Assets Control (OFAC) diligence as the Company may reasonably require.
(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement (other than the item set forth in Section 2.2(a)(iii), which shall be delivered on or prior to the applicable Funding Date);
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) the Business Combination shall have been consummated, or shall be consummated substantially concurrently with the Closing;
(vi) the Certificate of Designation shall have been duly filed with and become effective with the Secretary of State of the State of Delaware prior to issuance of any Preferred Stock; and
(vii) the Common Stock shall remain listed on the Trading Market and the Company shall remain in good standing with the Trading Market.
2.4 Applicable Nasdaq Cap.
Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, unless and until the Stockholder Approval Effective Time has occurred, the Company shall not issue, and no Purchaser shall be entitled to receive, any Purchased Shares or shares of Common Stock issuable upon conversion thereof if such issuance (taking into account, to the extent required under the rules of the Trading Market, the issuance or potential issuance of any FF Consideration Securities or other securities of the Company that would be aggregated with the transactions contemplated hereby) would exceed the maximum number of shares of Common Stock or amount of voting power that may be issued without stockholder approval under Nasdaq Listing Rule 5635 (the “Applicable Nasdaq Cap”). The Company shall determine in good faith, in consultation with its counsel and based on the applicable rules of the Trading Market, whether the Stockholder Approval is required in connection with the issuance of the Purchased Shares. Nothing in this Section 2.4 shall be construed as an acknowledgment or agreement by any Party that the transactions contemplated hereby are required to be aggregated with the Business Combination for purposes of Nasdaq Listing Rule 5635.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as set forth in the SEC Reports or in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or warranty otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Organization and Qualification. The Company is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Company is not in violation or default of any of the provisions of its certificate or articles of incorporation, bylaws or other organizational or charter documents. The Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in a Material Adverse Effect and, except as disclosed in the SEC Reports or in Schedule 3.1(a) of the Disclosure Schedules, no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(b) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
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(c) No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Purchased Shares and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) subject to the Required Approvals, conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company debt or otherwise) or other understanding to which the Company is a party or by which any property or asset of the Company is bound or affected, including any consent, participation, preemptive, top-up or similar right arising under any lead investor agreement, investor rights agreement, voting agreement or other stockholder arrangement binding upon the Company; or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or Governmental Authority to which the Company is subject (including, without limitation, federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.
(d) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or Governmental Authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than (i) to the extent the Stockholder Approval is required, the Stockholder Approval and the filing and mailing of the Information Statement, (ii) the filing of a Form D with the Commission, (iii) the filing of the Registration Statement pursuant to Section 4.4, (iv) the submission of any Listing of Additional Shares notification and any other notice, application or filing required by the Trading Market in connection with the listing or issuance of the Purchased Shares, (v) any other filings as are required to be made under applicable United States federal and state securities laws and applicable rules of the Trading Market, (vi) any consent or waiver required under any material lead investor agreement, investor rights agreement, voting agreement or other stockholder agreement binding upon the Company, and (vii) the adoption by the Board of Directors and filing with the Secretary of State of the State of Delaware of the Certificate of Designation (the “Required Approvals”).
(e) Issuance of the Securities. The shares of Common Stock included in the Purchased Shares have been duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable. Upon effectiveness of the Certificate of Designation, the Preferred Stock will be duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable. The shares of Common Stock issuable upon conversion of the Preferred Stock have been duly authorized and reserved for issuance and, when issued upon conversion in accordance with the Certificate of Designation, will be duly and validly issued, fully paid and nonassessable. All of the Securities, when so issued, will be free and clear of all Liens imposed by the Company (other than restrictions on transfer under the Transaction Documents and applicable state and federal securities laws).
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(f) Capitalization. The capitalization of the Company as of the end of the period covered by its most recently filed periodic report under the Exchange Act was set forth in such periodic report. Except as set forth in Schedule 3.1(f) of the Disclosure Schedules, the Company has not issued any securities since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth in the SEC Reports, no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as set forth in Schedule 3.1(f) of the Disclosure Schedules, except for options granted under the Company’s stock option plans, other than pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding disclosed in the Company’s SEC Reports, and other than the FF Consideration Securities issuable pursuant to the Acquisition Agreement, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any share of Common Stock, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional Common Stock or Common Stock Equivalents. Except as set forth in the SEC Reports, the issuance and sale of the Purchased Shares will not obligate the Company to issue Common Stock or other securities to any Person (other than the Purchasers). Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company. Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Purchased Shares, except for the Required Approvals. Except as set forth in the SEC Reports and other than the Acquisition Agreement and the governance arrangements between the Company and FFAI and/or its Affiliates contemplated in connection with the Business Combination, there are no shareholder agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
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(g) SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including, without limitation, pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials being collectively referred to herein as the “SEC Reports”). As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(h) Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, before or by any court, arbitrator, governmental or administrative agency or regulatory authority (whether federal, state, county, local or foreign) (collectively, an “Action”) that (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Purchased Shares or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect.
(i) Disclosure. Except with respect to material non-public information concerning (i) the transactions contemplated by the Transaction Documents, (ii) the Business Combination and the Acquisition Agreement, (iii) RobotCo and the FF robotics business, (iv) FFAI, and (v) the governance and financing arrangements contemplated in connection with the Business Combination, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not disclosed in the SEC Reports. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
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(j) Legend. Each certificate or book-entry statement representing the Securities shall be endorsed with the following legends, in addition to any other legend required to be placed thereon by applicable federal or state securities laws:
THIS SECURITY HAS 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. THIS SECURITY 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 SUCH SECURITIES.
Each Purchaser consents to the Company making a notation in its records or giving instructions to the Transfer Agent in order to implement the restrictions on transfer of the Securities set forth in this Section 3.1(j).
3.2 Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants to the Company as of the date hereof, as of the Closing Date and as of such Purchaser’s Funding Date as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
(a) Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which such Purchaser is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(b) No Registration. Such Purchaser is aware that the sale of the Securities has not been registered under the Securities Act, or any state securities laws or regulations, in reliance upon the exemption set forth in Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder and/or the safe harbor set forth in Regulation S that provides that certain offerings conducted outside the United States of America are not subject to the registration requirements of the Securities Act, and similar exemptions under state law. Such Purchaser will not offer, sell or otherwise transfer the Securities unless they are registered or are exempt from registration under the Securities Act and any applicable state securities laws or regulations.
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(c) Understandings or Arrangements. Such Purchaser is acquiring the Purchased Shares as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Purchased Shares. Such Purchaser is acquiring the Purchased Shares hereunder in the ordinary course of its business.
(d) Accredited Investor. Unless such Purchaser has indicated on its signature page that it is acquiring the Securities in reliance on Regulation S pursuant to Section 3.2(i), at the time such Purchaser was offered the Purchased Shares, it was, and as of the date hereof it is, (i) an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (ii) acquiring the Purchased Shares only for its own account and not for the account of others, or if such Purchaser is subscribing for the Purchased Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and such Purchaser has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) not acquiring the Purchased Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act.
(e) No General Solicitation. Such Purchaser is not purchasing or acquiring the Purchased Shares as a result of any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Purchased Shares.
(f) Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Purchased Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Purchased Shares and, at the present time, is able to afford a complete loss of such investment.
(g) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including, without limitation, all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Purchased Shares and the merits and risks of investing in the Purchased Shares; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment; and (iv) the opportunity to consult such professionals, including, without limitation, such Purchaser’s legal counsel, as such Purchaser deemed fit. No representations, assurances or warranties have been made to such Purchaser, or any of its advisers or Affiliates, by the Company or by any of its respective officers, directors, agents, employees or Affiliates, nor anyone else on their behalf, concerning, among others, the future profitability of the Company or the Purchaser’s investment in it, and in entering into this transaction such Purchaser has relied solely upon its own independent investigation and the representations and warranties of the Company expressly set forth in this Agreement, and has not relied upon any other representation or warranty, express or implied, of the Company or any other Person.
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(h) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including, without limitation, Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Purchased Shares covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including, without limitation, the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
(i) Regulation S. If such Purchaser has indicated on its signature page that it is acquiring the Securities in reliance on Regulation S under the Securities Act, such Purchaser represents and warrants that:
it is not a “U.S. person” as defined in Rule 902(k) under the Securities Act and is not acquiring the Securities for the account or benefit of any U.S. person;
| (a) | it was outside the United States at the time the offer to purchase the Securities was made and at the time it executed and delivered this Agreement; |
| (b) | the offer and sale of the Securities to such Purchaser were made in an “offshore transaction” within the meaning of Rule 902(h) under the Securities Act and neither the Company nor, to such Purchaser’s knowledge, any Person acting on behalf of the Company engaged in any “directed selling efforts” within the meaning of Rule 902(c) under the Securities Act with respect to the Securities; |
| (c) | it is acquiring the Securities for investment purposes and not with a view to, or for resale in connection with, any distribution thereof in violation of the Securities Act; |
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| (d) | it understands that the Securities have not been registered under the Securities Act and are being offered and sold in reliance on Regulation S and that the Securities may not be offered, sold, pledged or otherwise transferred 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; |
| (e) | it understands that, to the extent required by Regulation S, the Securities will be subject to the applicable distribution compliance period and transfer restrictions under Regulation S, and it agrees not to engage in any offer, sale, pledge or other transfer of the Securities during such period except in accordance with Regulation S or another available exemption from registration under the Securities Act; |
| (f) | it agrees that any certificates or book-entry positions representing the Securities may bear such legends, and the Company may issue such stop-transfer instructions, as are reasonably necessary to comply with Regulation S and applicable securities Laws; and |
| (g) | it will provide such additional certifications and documentation as the Company or the Transfer Agent may reasonably request to establish compliance with Regulation S in connection with any transfer of the Securities. |
(j) Relationship with FFAI. Except as disclosed on Schedule I, such Purchaser (i) is not an Affiliate of, and is not acting on behalf of or as part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with, FFAI, FF Global Partners LLC, Yueting Jia, Jiawei Wang, RobotCo or any of their respective Affiliates, and (ii) will pay its Subscription Amount in cash from funds that are not loaned, provided or guaranteed, directly or indirectly, by the Company, FFAI, RobotCo or any of their respective Affiliates. For the avoidance of doubt, clause (ii) does not restrict such Purchaser from using its own funds, including proceeds from its conversion of convertible notes of FFAI or its sale of securities of FFAI held by it.
(k) Brokers and Finders. No broker, finder or other Person is entitled to any fee or commission from the Company in connection with such Purchaser’s investment based upon any arrangement made by or on behalf of such Purchaser.
(l) No Reliance on Fairness Opinion. Such Purchaser acknowledges and agrees that the Fairness Opinion issued by Advanture Capital Solutions LLC is entirely independent of the PIPE financing contemplated by this Agreement and has not been prepared for the benefit of any Purchaser. Such Purchaser acknowledges that it is not entitled to rely, and has not relied, upon the Fairness Opinion in making its investment decision, and that Advanture Capital Solutions LLC owes no duty to such Purchaser in connection with the Fairness Opinion or the transactions contemplated hereby. Such Purchaser shall have no right to assert reliance upon the Fairness Opinion as a basis for any claim against Advanture Capital Solutions LLC arising solely from the preparation, delivery or disclosure of the Fairness Opinion. Such Purchaser further acknowledges that the Fairness Opinion does not address, evaluate or support the terms or pricing of the Securities or such Purchaser’s investment decision, and that any disclosure of the Fairness Opinion by the Company, including in any filing with the Commission, does not create any right of reliance by such Purchaser.
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ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release and/or file a Current Report on Form 8-K disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K with the Commission within the time required by the Exchange Act announcing the execution and the closing of this Agreement, in each case as required under U.S. securities laws. From and after such public announcement, the Company shall have publicly disclosed all material, non-public information delivered to any Purchaser by or on behalf of the Company in connection with the transactions contemplated by the Transaction Documents, including the information described in clauses (i) through (v) of Section 3.1(i), such that no Purchaser shall be restricted by such information. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company with respect to the transactions contemplated hereby, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law or Trading Market regulations, 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 Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission, (b) in the Registration Statement, the Information Statement and any filing with the Commission or the Trading Market relating to the Business Combination, and (c) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with notice of such disclosure permitted under this sub-clause (c).
4.2 Use of Proceeds. The Company shall use the net proceeds from the sale of the Purchased Shares hereunder entirely for the development and operations of the robotics business of the Company and its subsidiaries following the Business Combination.
4.3 Certain Transactions and Confidentiality. Each Purchaser acknowledges that it has received material, non-public information regarding the Company, RobotCo, FFAI and the transactions contemplated by the Transaction Documents. Each Purchaser, severally and not jointly with the other Purchasers, 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, without limitation, Short Sales, of any of the securities of the Company or of FFAI 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 Section 4.1. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to Section 4.1, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules, and will not disclose the transaction to any third party. In the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Purchased Shares covered by this Agreement. Nothing in this Section 4.3 shall permit any Purchaser or any of its Affiliates to trade in securities of the Company or FFAI while in possession of material non-public information in violation of applicable securities Laws.
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4.4 Registration Rights.
(a) Filing and Effectiveness. Within thirty (30) calendar days following the Closing Date (the “Filing Deadline”), the Company shall prepare and file with the Commission a registration statement on Form S-3 (or, if Form S-3 is not then available to the Company, on Form S-1 or another appropriate form) providing for the resale by the Purchasers of the Registrable Securities on a continuous basis pursuant to Rule 415 under the Securities Act (the “Registration Statement”), and shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act within sixty (60) calendar days following the filing thereof (the “Effectiveness Deadline”); provided that the Filing Deadline and the Effectiveness Deadline shall each be extended for any period of delay resulting from (i) the unavailability of financial statements or pro forma financial information relating to RobotCo required to be included therein, (ii) any Purchaser’s failure to timely provide information reasonably required for inclusion therein, or (iii) circumstances outside the Company’s reasonable control; and provided further that the Effectiveness Deadline shall be extended for any period of delay resulting from review or comments by the Commission. The Company shall not be required to include in the Registration Statement any Registrable Securities of a Purchaser that has not paid its Subscription Amount in full (as reduced, if applicable, pursuant to Section 2.1) by the Filing Deadline, provided that such Registrable Securities shall be included in a subsequent registration statement or post-effective amendment as promptly as reasonably practicable following issuance of the related Purchased Shares. The rights and obligations set forth in this Section 4.4 constitute the complete agreement of the Parties with respect to registration rights relating to the Registrable Securities, and no separate registration rights agreement shall be required.
(b) Registrable Securities. “Registrable Securities” means (i) the shares of Common Stock included in the Purchased Shares, (ii) the shares of Common Stock issuable upon conversion of the Preferred Stock and (iii) any securities issued with respect to the foregoing by way of stock split, stock dividend, recapitalization or similar event; provided that any such securities shall cease to be Registrable Securities upon the earliest to occur of (A) their sale pursuant to an effective registration statement, (B) their sale pursuant to Rule 144, or (C) the date on which they may be sold under Rule 144 without volume or manner-of-sale limitations or current public information requirements.
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(c) Purchaser Information. As a condition to the inclusion of any Purchaser’s Registrable Securities in the Registration Statement, such Purchaser shall furnish to the Company such information regarding such Purchaser, its beneficial ownership of the Company’s securities, the Registrable Securities held by it, the intended method or methods of disposition thereof and such other information as the Company may reasonably request and as is required by applicable Law or Commission rules for inclusion in the Registration Statement. Each Purchaser shall promptly notify the Company of any material change in any such information previously furnished by such Purchaser. The Company shall have no obligation to include or maintain the inclusion of a Purchaser’s Registrable Securities in the Registration Statement during any period in which such Purchaser has failed to provide information reasonably required pursuant to this Section 4.4(c).
(d) Maintenance; Cutbacks. The Company shall use commercially reasonable efforts to keep the Registration Statement continuously effective until all securities covered thereby have ceased to be Registrable Securities. If at any time the Commission takes the position that the offering of some or all of the Registrable Securities pursuant to the Registration Statement is not eligible to be made on a delayed or continuous basis under Rule 415 under the Securities Act, or otherwise requires a reduction in the number of Registrable Securities that may be included in the Registration Statement, the Company shall reduce the number of Registrable Securities included therein to the extent required by the Commission. Any such reduction shall be applied pro rata among the Purchasers based on the number of Registrable Securities requested to be registered by each Purchaser. The Company shall use commercially reasonable efforts to file one or more additional registration statements covering Registrable Securities excluded from the Registration Statement as promptly as reasonably practicable after the Company is permitted to do so under applicable Commission rules and guidance.
(e) Registration Expenses. The Company shall bear all reasonable and customary expenses incident to the performance of or compliance with its obligations under this Section 4.4, including all Commission registration and filing fees, Trading Market fees, fees and expenses of the Transfer Agent and fees and expenses of counsel and independent registered public accountants for the Company; provided that each Purchaser shall bear all underwriting discounts, selling commissions, brokerage fees and similar selling expenses attributable to the sale of its Registrable Securities and the fees and expenses of any legal counsel or other adviser separately retained by such Purchaser.
(f) Indemnification by the Company. To the extent permitted by applicable Law, the Company shall indemnify and hold harmless each Purchaser whose Registrable Securities are included in the Registration Statement, and its officers, directors, partners, members, managers, employees and each Person, if any, who controls such Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any losses, claims, damages, liabilities and reasonable out-of-pocket expenses (including reasonable attorneys’ fees) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any prospectus included therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that such loss, claim, damage, liability or expense arises out of or is based upon information furnished in writing to the Company by or on behalf of such Purchaser expressly for use in the Registration Statement or prospectus.
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(g) Indemnification by Purchasers. Each Purchaser whose Registrable Securities are included in the Registration Statement shall, severally and not jointly, indemnify and hold harmless the Company, its directors and officers and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any losses, claims, damages, liabilities and reasonable out-of-pocket expenses arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any prospectus included therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement, alleged untrue statement, omission or alleged omission was made in reliance upon and in conformity with information furnished in writing by or on behalf of such Purchaser expressly for use therein; provided that the liability of any Purchaser under this Section 4.4(g) shall not exceed the net proceeds actually received by such Purchaser from the sale of Registrable Securities giving rise to such liability.
(h) Contribution. If the indemnification provided for in Sections 4.4(f) and 4.4(g) is unavailable to an indemnified party or insufficient to hold such indemnified party harmless in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result thereof in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; provided that no Purchaser shall be required to contribute an amount in excess of the net proceeds actually received by such Purchaser from the sale of Registrable Securities giving rise to such liability. No Person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(i) Suspension of Use. Upon receipt of notice from the Company of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of any proceeding for that purpose, of which the Company has actual knowledge, or of the occurrence of any event as a result of which the prospectus included in the Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, each Purchaser shall immediately discontinue dispositions of Registrable Securities pursuant to the Registration Statement until the Company notifies such Purchaser that use of the applicable prospectus may be resumed. The Company may also suspend the use of the Registration Statement for a period during which the Board of Directors determines in good faith that the continued use of the Registration Statement would require the Company to disclose material non-public information that the Company has a bona fide business purpose for preserving as confidential or would otherwise materially interfere with a material financing, acquisition, corporate development or other transaction; provided that the Company shall not suspend use of the Registration Statement pursuant to this sentence for more than thirty (30) consecutive calendar days or more than sixty (60) aggregate calendar days in any twelve-month period, except to the extent a longer suspension is required by applicable Law or Commission requirements. The Company shall use commercially reasonable efforts to terminate any such suspension as promptly as reasonably practicable.
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(j) Termination of Registration Obligations. The Company’s obligations under this Section 4.4 with respect to any Registrable Securities shall terminate when such securities cease to constitute Registrable Securities pursuant to Section 4.4(b).
4.5 Stockholder Approval. To the extent the Stockholder Approval is required under the rules of the Trading Market, the Company shall use commercially reasonable efforts to (a) obtain the Stockholder Approval by written consent of the holders of a majority of the voting power of the Company and (b) prepare, file with the Commission and mail the Information Statement in accordance with Regulation 14C under the Exchange Act, in each case as promptly as reasonably practicable following the date hereof, so that the Stockholder Approval Effective Time occurs prior to the issuance of any Purchased Shares.
4.6 Beneficial Ownership Limitation. Notwithstanding anything to the contrary herein, the Company shall not issue to any Purchaser, and no Purchaser shall be entitled to receive, any shares of Common Stock hereunder, including upon conversion of the Preferred Stock, to the extent that, after giving effect to such issuance, such Purchaser (together with its Affiliates and any other Persons whose beneficial ownership would be aggregated with such Purchaser’s for purposes of Section 13(d) of the Exchange Act) would beneficially own in excess of 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to such issuance (the “Beneficial Ownership Limitation”). If the issuance of all of the Common Stock represented by a Purchaser’s Purchased Shares on an as-converted basis would cause such Purchaser to exceed the Beneficial Ownership Limitation, such Purchaser shall receive (i) the maximum whole number of shares of Common Stock permitted by the Beneficial Ownership Limitation and (ii) such number of shares of Preferred Stock as would, based on the then-applicable conversion ratio under the Certificate of Designation and disregarding the Beneficial Ownership Limitation, represent the remaining shares of Common Stock otherwise issuable to such Purchaser, at the applicable purchase price determined pursuant to Section 1.1, subject to rounding and the corresponding reduction of its Subscription Amount pursuant to Section 2.1, and Schedule I shall be deemed automatically amended to reflect such allocation. The Company shall reflect the Beneficial Ownership Limitation, including the notice mechanism below, in the Certificate of Designation. A Purchaser may increase the Beneficial Ownership Limitation to not more than 9.99% upon not less than sixty-one (61) days’ prior written notice to the Company. Beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder.
4.7 Transfer Restrictions. The Securities are “restricted securities” under the Securities Act and may not be transferred prior to the effectiveness of a registration statement covering their resale or the availability of an exemption from registration. The Securities shall not be subject to any lock-up. With respect to any Registrable Securities, following the effectiveness of a registration statement covering the resale of such Registrable Securities, and with respect to any other Securities, when such Securities may be sold pursuant to Rule 144 or another available exemption from registration without restriction, the Company shall use commercially reasonable efforts to cause the applicable restrictive legend to be removed upon request of a Purchaser and receipt of customary representations.
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ARTICLE V.
MISCELLANEOUS
5.1 Termination. This Agreement may be terminated by the Company or any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other party(ies), if the Closing has not been consummated on or before November 12, 2026; provided that the right to terminate under this sentence shall not be available to a Party whose material breach caused the failure of the Closing to occur. This Agreement shall terminate automatically and be of no further force or effect if the Acquisition Agreement is terminated prior to the Closing. If, following the Funding Deadline, a Purchaser has not paid its Subscription Amount in full and the Company has not accepted a reduced Subscription Amount pursuant to Section 2.1, the Company may terminate such Purchaser’s rights and obligations under this Agreement by written notice to such Purchaser, without affecting the rights or obligations of any other Purchaser, and no Purchased Shares shall be issued to such Purchaser.
5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents 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. The Company shall pay all Transfer Agent’s fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company) in connection with the delivery of any Purchased Share to the Purchasers.
5.3 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile or email attachment at the facsimile number or email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via facsimile or email attachment at the facsimile number or email address set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. The Company shall make any disclosures and filings required by applicable U.S. securities laws and the rules of the Trading Market in connection with any notice provided pursuant to any Transaction Document within the applicable deadlines.
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5.5 Amendments; Waivers. Except for a reduction accepted by the Company pursuant to Section 2.1, no provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers representing at least 50.1% of the aggregate Subscription Amounts then in effect, after giving effect to any reductions accepted pursuant to Section 2.1 or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Purchased Shares and the Company. Notwithstanding the foregoing, no amendment or waiver (other than a reduction accepted by the Company pursuant to Section 2.1) that disproportionately and adversely affects a Purchaser relative to the other Purchasers with respect to the Subscription Price, number of Purchased Shares or Beneficial Ownership Limitation shall be effective against such Purchaser without its written consent.
5.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. No Purchaser may assign this Agreement or any rights or obligations hereunder without the prior written consent of the Company.
5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except that Advanture Capital Solutions LLC is an express third-party beneficiary of, and may enforce, Section 3.2(l).
5.9 Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware without giving effect to any choice of law or conflict of law rules or provisions.
5.10 Dispute Resolution. Any Proceeding that is based upon, arises out of, in connection with or relates to this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby (a “Dispute”) shall be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of the Parties irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction of each such court in any such Dispute, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Dispute shall be heard and determined only in any such court, and (iv) agrees not to bring any Dispute based upon, arising out of or relating to this Agreement or other Transaction Documents or the transactions contemplated hereby or thereby in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence Proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Proceeding brought pursuant to this Section 5.10.
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EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE.
5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of 2000, the Uniform Electronic Transactions Act, or other applicable law (e.g., www.docusign.com), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, “.pdf,” or electronic signature page were an original thereof.
5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has had the opportunity to consult with its own legal, tax, financial and other advisers in connection with the Transaction Documents and the transactions contemplated hereby. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.
5.14 Saturdays, Sundays, Holidays, etc. If the last or appointed day for taking any action or exercising any right hereunder is not a Business Day (or, where the applicable provision expressly refers to Trading Days, a Trading Day), then such action may be taken or such right may be exercised on the next succeeding Business Day (or Trading Day, as applicable).
5.15 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and number of shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
(Signature Pages Follow)
| 24 |
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| FF EAI Robotics Ecosystem Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
Address for notice
1990 E Grand Ave,
El Segundo, CA, 90245
With a copy to (which shall not constitute notice):
Loeb & Loeb LLP
2206-19 Jardine House
1 Connaught Place
Central, Hong Kong SAR
Attention: Henry Yin
Email: ***
and
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
Attention: Hermione Krumm
Email:
***
Signature Page
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
PURCHASER:
[NAME OF PURCHASER] | ||
| By: | ||
| Name: | ||
| Title: | ||
Address for notice
Attention:
Address:
E-mail:
Signature Page
Acquiring Securities in reliance on Regulation S: [Yes][No]
SCHEDULE I
SCHEDULE OF PURCHASERS AND PURCHASED SHARES
| No. | Name of Purchaser |
Subscription Amount (US$) |
Common Stock Subscription Price (US$) |
Purchased Shares (Common Stock) |
Purchased Shares (Preferred Stock) |
Notice Address / |
Reg D / Reg S |
Beneficial Ownership Limitation (4.99% / 9.99%) |
Exceptions to Section 3.2(j), if any | |||||||||
| 1 | ||||||||||||||||||
| 2 | ||||||||||||||||||
| Total | [●] | [●] | [●] |
Exhibit A
Certificate of Designation of Preferences, Rights and Limitations of the Series D
Non-Voting Convertible Preferred Stock
Exhibit 99.1
FF EAI Robotics Ecosystem Signs Definitive Agreements to Combine FFAI’s Full Robotics Business at About $200 Million and $2.246 Per Share, an Approximate 50 Percent Premium; Becoming the First U.S.-Listed Humanoid and Bionic EAI Robotics Pure Play
| ● | FF EAI Robotics Ecosystem Inc. (NASDAQ: FFR) (formerly AIxCrypto Holdings, Inc. and AIXC) and Faraday Future Intelligent Electric Inc. (NASDAQ: FFAI) (“FFAI”) signed definitive agreements on October 12, 2026, for FFR to acquire FFAI’s robotics assets and business in an all-stock transaction. The parties agreed on a valuation of approximately $200 million for FFAI’s robotics business and approximately $60 million for FFR on a fully diluted basis. All closings are expected to be completed by the end of October 2026. | |
| ● | FFR will issue shares to FFAI at $2.246 per share, representing a premium of approximately 50% to FFR’s closing price of $1.50 on the signing date of October 12, 2026 and approximately 55% to closing price of $1.45 on October 13, 2026. | |
| ● | The transaction was approved by the respective Board special committees comprising disinterested independent directors of FFAI and FFR, and is supported by a fairness opinion issued by the independent financial advisor engaged by the FFR special committees. | |
| ● | FFR has secured its first round of PIPE financing of up to $10 million. The financing is priced at market, with no discount or no warrants, and low associated financing costs. To support investor interests, FFR limited this round’s financing to no more than $10 million to meet its current funding needs while reducing unnecessary equity dilution. Upon closing of the acquisition transaction and PIPE financing, on an as-converted, fully diluted basis, FFAI will hold approximately 65.7% of FFR, with all newly issued shares received in this transaction subject to an 18-month lockup, management and employees approximately 18.2%, PIPE investors approximately 5.5%, and other FFR stockholders approximately 10.7%. PIPE investors may not sell their shares within six months or before the resale registration statement becomes effective. FFAI, management and employees, and PIPE investors will collectively hold approximately 89.3%. Excluding these holdings, the freely tradable public float will consist of approximately 13 million shares, representing approximately 10.7% of the total. |
| ● | FFR will become the first U.S.-listed pure-play “Four-Core Full-Stack AI” humanoid and bionic EAI robotics ecosystem company, targeting a top-three overall ranking in the EAI robotics industry over the next five years. As the first U.S. company to deliver both humanoid and bionic robots, FF is turning its first-mover advantage into a competitive advantage, drawing on its “Four-Core Full-Stack AI” Ecosystem, EAI technology strengths, and “One Brain, Multiple Forms; Multiple Forms, Multiple Capabilities” approach to build a leading U.S. Physical AI and robotics ecosystem platform. The four cores, EAI Brain and Developer Platform, EAI Devices, Industry Productivity Solutions, and EAI Data Factory, will accelerate deployment across education and research, security and inspection, industrial and logistics, and commercial applications and services. The “Built in USA” Acceleration Program will translate these technology and ecosystem capabilities into U.S.-based R&D, compliance, supply chain, manufacturing, delivery, and service capabilities, creating a self-evolving flywheel of real-world deployment, data collection, EAI Brain model refinement, and updates to real-world deployments. | |
| ● | In less than a year, FFAI’s EAI robotics business has made progress exceeding expectations. The Company has completed Phase One of the “Built in USA” Acceleration Program and is advancing the “One-Brain Multi-Form Multi-Capability” FF EAI Robot World 2.0. FFAI has launched 24 products across three robot forms and begun customer deliveries. Its “Four-Core Full-Stack AI” Ecosystem is taking shape. By the end of September, cumulative EAI Device sales and shipments reached 817 units. In the second quarter, the average gross margin on FFAI’s robotics products exceeded 30%, and cumulative revenue was approximately $1.52 million. | |
| ● | Under FFAI’s robotics business plan, unaudited revenue for 2026 is projected to reach approximately $7 million, with a gross margin of 10%; revenue for 2027 is projected to reach approximately $45 million, with a gross margin of 30.5%. Cumulative revenue from 2026 through 2030 is projected to reach approximately $1.98 billion, with gross margin increasing annually to 54% in 2030 and cumulative EAI Device sales from 2026 to 2030 exceeding 130,000 units. Drawing on seven unique advantages, including its EAI technology strengths across “Four-Core Full-Stack AI” and its asset-light operating model, FFR aims to achieve positive operating cash flow no later than the third quarter of 2028, with cumulative financing requirements of no more than $150 million. | |
| ● | FFR’s governance framework will draw on the governance arrangements between FF Global Partners LLC and FFAI to support leadership continuity, strategic oversight, and long-term execution, with the aim of making the Company one of the most valuable EAI companies in the Physical AI era. | |
| ● | Through the merger and independent listing, FFR will sharpen its focus on Physical AI and EAI robotics, accelerate commercialization at scale, improve capital efficiency and financial transparency, and unlock value, with the goal of maximizing stockholder value as soon as possible. |
Los Angeles, CA (October 14, 2026) — FF EAI Robotics Ecosystem Inc. (“FFR” or the “Company”) (NASDAQ: FFR) today announced that it has signed definitive agreements with FFAI for FFR to acquire FFAI’s full robotics ecosystem business at an agreed valuation of approximately $200 million.
The transaction advances the parties’ previously announced transaction process to the definitive agreement stage. Its structure has been simplified to facilitate execution and closing. Following closing, FFR will become the first U.S.-listed pure-play “Four-Core Full-Stack AI” humanoid and bionic EAI robotics ecosystem company, with the goal of maintaining a top-three overall ranking in the EAI robotics industry over the next five years.
Share Issuance at $2.246 per Share, a Premium to Market Price, to Reduce Acquisition Dilution and Maximize Stockholder Value
Under the definitive agreements, the parties agreed on a valuation of approximately $200 million for FFAI’s robotics business and approximately $60 million for FFR on a fully diluted basis. The agreed transaction values reflect the parties’ mutual recognition of the strategic value of their respective businesses and are not based solely on prevailing market prices.
The definitive agreements advance the transaction from the previously announced non-binding term sheet to a signed contractual framework. The special stock dividend mechanism contemplated in the earlier term sheet is not part of the definitive transaction. Its removal simplifies the transaction structure and is intended to support efficient execution and closing.
The parties’ agreed valuation of approximately $60 million for FFR(previously AIxCrypto Holdings, Inc.) reflects its Nasdaq-listed platform, existing shareholder base and trading infrastructure, relatively simple balance sheet and capitalization structure, existing RoboShare business, and financial assets, including cash, cash equivalents, note receivables and certain investments, including investments in FFAI. FFR’s existing RoboShare platform also offers potential synergies with the acquired robotics business across sales, leasing, deployment and recurring services. Following the transaction, FFR will emerge as a Nasdaq-listed company with an established shareholder base, a relatively simple balance sheet, minimal debt, and no outstanding convertible notes, providing the robotics business with a direct access to U.S. capital markets.
Loeb & Loeb LLP serves as legal counsel to the FFR special committee. Advanture Capital Solutions LLC is acting as independent financial advisor to FFR special committee and has rendered a fairness opinion in connection with the acquisition transaction. Pryor Cashman serves as legal counsel to FFAI.
FFR Has Secured Up to $10 Million in PIPE Financing with No Discount
FFR has secured up to $10 million in its first-round of PIPE financing. The financing is priced at market, with no discount or no warrants, and low associated financing costs, and is structured to minimize equity dilution. To best support investor interests, FFR limited the offering to approximately $10 million to meet its current funding needs while reducing unnecessary equity dilution.
Upon closing, on an as-converted, fully diluted basis, FFAI will hold approximately 65.7% of FFR, with all newly issued shares received in this transaction subject to an 18-month lockup. Management and employees will hold approximately 18.2%, PIPE investors approximately 5.5%, and other FFR stockholders approximately 10.7%. PIPE investors may not sell their shares within six months or before the resale registration statement becomes effective. FFAI, management and employees, and PIPE investors will collectively hold approximately 89.3%. Excluding these holdings, the freely tradable public float will consist of approximately 13 million shares, representing approximately 10.7% of the total.
These estimates are subject to confirmation and may change based on the final transaction capitalization and PIPE terms.
The financing will further strengthen FFR’s capital base and provide resources to advance its “Four-Core Full-Stack AI” strategy, supporting product R&D, commercialization, and scaled deployment of the robotics ecosystem.
Upon completion of the financing, the Company will have additional resources for business development, R&D investment, and market expansion. For stockholders and investors, lower financing costs and limited equity dilution are expected to further improve the Company’s capital structure and support the realization of the robotics business’s long-term value.
The consummations of the acquisition transaction and the PIPE are subject to satisfaction or waiver of closing conditions set forth in the applicable transaction documents.
FFR Aims to Achieve and Maintain a Top-Three Comprehensive Ranking in the EAI Robotics Industry
The Company is building a full-lifecycle robotics business spanning research and development, supply chain, manufacturing, sales, deployment, data, and operations, centered on its “Four-Core Full-Stack AI” ecosystem.
Under preliminary projections prepared by FFAI management for the FF EAI Robotics business on a standalone basis, revenue is projected to reach approximately $7 million in 2026 and $45 million in 2027. The projections contemplate positive gross margin in 2026, gross margin of approximately 30% in 2027 and approximately 54% in 2030, cumulative revenue of approximately $1.98 billion from 2026 through 2030, and positive operating cash flow in the third quarter of 2028. Cumulative financing requirements before then are projected to be no more than $150 million, implying low dilution for stockholders and financing needs well below those of industry peers.
FFAI management projects EAI Device sales of 2,001 units in 2026 and 7,400 units in 2027, with cumulative sales exceeding 130,000 units over five years. The projections also contemplate more than 19 million hours of cumulative data supply over five years and approximately $300 million in cumulative research and development investment over the same time period.
As the EAI Brain and Developer Platform, Industry Productivity Solutions, EAI Data Factory and related services develop, ecosystem revenue is projected to grow from 22% of total revenue in 2026 to 49% by 2030. These projections were prepared by FFAI management and have not been adopted by FFR as Company guidance. Actual results may differ materially.
Board, Governance Framework and Employee Incentives Support Leadership Continuity and Long-Term Execution
To support the continuity and long-term execution of the robotics business after closing, the transaction includes arrangements covering employee incentives, key employee retention, governance, and Board composition. As part of these arrangements, outstanding employee stock-option incentives associated with the FF EAI Robotics business are expected to be assumed and converted, at the agreed exchange ratio, into stock options of FFR (“Assumed Options”). The structure is intended to align the long-term interests of the core team with FFR’s development and long-term value creation.
Key employees are expected to be retained and to enter into employment agreements, which are important conditions to closing. Key management will continue to support both FFR and FFAI, helping preserve the talent and business capabilities needed to support the robotics business .
FFR’s governance framework is expected to be similar to the governance arrangements between FF Global Partners LLC and FFAI, intended to support leadership continuity, strategic oversight and long-term execution under the founding team’s leadership, while providing additional protections at the Board level. The final arrangements will be described in FFR’s filings with the SEC.
Independent Listing Anchors the Value of the Robotics Business and Unlocks Its True Value
FFR will establish financial reporting and an operating framework focused on the robotics business, providing a clearer view of business performance, funding needs and uses of capital. Its balance sheet, income statement, and statement of cash flows will potentially provide greater clarity.
For two years following closing, FFAI and its affiliates have agreed to observe non-competition restrictions in territories where FFR and its affiliates conduct robotics business.
For FFR and its stockholders, the transaction provides a complete robotics ecosystem business acquired at an agreed valuation of approximately $200 million, a dedicated listed platform focused on the robotics ecosystem, and a premium issuance designed to reduce dilution. The secured PIPE provides additional capital for future business development.
For FFAI and its stockholders, the transaction anchors the agreed value of the robotics business and releases it through a standalone public-company platform, while FFAI continues to be the majority and controlling stockholder of FFR and continues to participate in the robotics business.
Next, FFR will advance financing and transaction closing in an orderly manner. All closings are expected to be completed by the end of October. Upon completion of the transaction, the Company will announce FFR’s next-stage strategy and business plan.
“The transaction will give the robotics business a dedicated public-company platform alongside RoboShare’s capabilities. We’re confident in the opportunity to build on customer deliveries and expand real-world applications creating a foundation to advance commercialization across products, deployments, data and services,” said Jerry Wang, Chief Executive Officer of FFR.
Management Conference Call
FFR will host a conference call and webcast to discuss the transaction, its strategic rationale, expected financial and operational benefits, and long-term growth plans, followed by a question-and-answer session.
Date: October 14, 2026
Time: 8:30 a.m. ET / 5:30 a.m. PT
Dial-In: 1-877-407-9208 or 1-201-493-6784
Call me™ Link:
https://callme.viavid.com/viavid/?callme=true&passcode=13763373&h=true&info=company&r=true&B=6
Webcast Participant Link:
https://viavid.webcasts.com/starthere.jsp?ei=1779329&tp_key=f3da5b6106
Telephone Replay
Replay Dial-In: 1-844-512-2921 or 1-412-317-6671
Access ID: 13763373
About FF EAI Robotics Ecosystem Inc.
FF EAI Robotics Ecosystem Inc. (NASDAQ: FFR) (renamed from AIxCrypto Holdings, Inc. and AIXC, effective September 30, 2026) is a U.S.-based Embodied AI (EAI) robotics company that is in the process of acquiring the FF EAI Robotics business. Upon completion of the acquisition, the Company will focus on the research and development, manufacturing, commercialization, and deployment of intelligent robotic technologies, products, and industry solutions.
The Company is committed to building a “Four-Core Full-Stack” AI ecosystem covering the full lifecycle of robotics, consisting of EAI Brain & Developer Platform, EAI Devices, Industry Productivity Solutions, and EAI Data Factory. Guided by the technology and product philosophy of “One Brain, Multi-forms, Multi-capabilities,” the Company aims to empower humanoid, biomimetic, and other robotic form factors through a unified EAI Brain, while continuously expanding their multi-task and multi-scenario capabilities. The ecosystem is designed to support the full robotics lifecycle, including R&D, deployment, data collection and training, operations, and commercial applications.
The FF EAI Robotics business has already achieved commercial deliveries of humanoid and biomimetic robotic products. Through its multi-form-factor robotic products, EAI technology platform, closed-loop data capabilities, and industry solutions, the business continues to advance the scaled adoption of robotics across real-world applications. The Company also operates RoboShare, a robot-sharing and services platform designed to connect robotic assets, service capabilities, customer demand, and ecosystem partners, further strengthening its robotics commercialization and service ecosystem.
For more information, visit www.ff.com.
Forward-Looking Statements
This communication, including any presentation, press release, investor materials or other document of which it forms a part (this “Communication”), contains “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995, as amended, and other securities laws, regarding FF EAI Robotics Ecosystem Inc. (“FFR,” the “Company,” “us,” “our,” or “we”) and our industry. All statements, whether written or oral, other than statements of historical fact, including any financial projections and any statements regarding future events, our strategy, our transition to robotics operations, our plans for RoboShare, our digital asset disposition plans, the proposed acquisition of the FF EAI Robotics business, the projections referenced in this communication, our name and ticker change, any related financing, and the anticipated benefits and timing of the foregoing, our objectives, expectations, or anticipated actions or results, are forward-looking statements. You can often identify forward-looking statements by words such as “may,” “might,” “will,” “shall,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “targets,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential,” “goal,” “objective,” “seeks,” “likely,” or “continue,” or the negative of these terms or other similar expressions; the absence of these words does not mean a statement is not forward-looking. These statements reflect our current expectations and projections about future events as of the date of this Communication and are necessarily based on estimates and assumptions that, while considered reasonable by management, are inherently uncertain. FFR can give no assurance that such forward-looking statements or financial projections will prove to be correct.
Actual results may differ materially from those expressed or implied by these forward-looking statements as a result of numerous risks and uncertainties, both general and specific, including, but not limited to:
The proposed acquisition transaction and PIPE. The definitive agreements may be terminated in accordance with their terms, and the proposed transactions may not be completed on the terms described or at all; the conditions to closing, including the completion of FFAI’s internal restructuring of the robotics business, the execution of key employee agreements and other customary conditions, and the parties’ ability to satisfy them; the risk that the stockholder approval required under Nasdaq listing rules for the conversion of the preferred stock issued as consideration is not obtained or is delayed, and the effect of the conversion restrictions and the information statement process on the timing of conversion; the timing of the transaction and the costs of pursuing it; the issuance of a substantial number of shares as consideration and the resulting dilution to existing stockholders; the fact that the counterparty is our controlling stockholder, that it will hold a substantial majority of our outstanding shares following closing, that certain members of management serve both companies, and the conflicts of interest inherent in the transaction; the risk that the agreed valuations do not reflect the market value of our shares or of the acquired business; our dependence on the counterparty for transition, supply and support following any closing; the scope and enforceability of the non-competition and governance arrangements; the consequences of the transaction under Nasdaq listing rules, including the possibility that Nasdaq determines that the transaction requires us to satisfy initial listing requirements in connection with a business combination, change of control or change in the nature of our business; the risk that the PIPE financing, on which the transaction is not conditioned, is not completed on the anticipated terms or at all; the risk of litigation relating to the transaction; our ability to integrate and operate the acquired business; and the risk that the acquired business performs differently than anticipated.
Projections. The projections referenced in this communication were prepared by FFAI management for the FF EAI Robotics business on a standalone basis and do not reflect our existing business, transaction-related expenses or the combined company. We have not independently verified them or adopted them as guidance. They were not prepared with a view toward public disclosure or toward compliance with the published guidelines of the Securities and Exchange Commission or the American Institute of Certified Public Accountants regarding prospective financial information, and no independent registered public accounting firm has examined, compiled or performed any procedures with respect to them, and none expresses an opinion or any other form of assurance with respect to them. The projections reflect estimates and assumptions that are inherently uncertain and subject to change, including through due diligence and the review of our special committee and its financial advisor. Actual results are likely to differ, and may differ materially.
Liquidity, capital and going concern. Our limited cash and liquidity position and our history of operating losses and negative operating cash flow; substantial doubt regarding our ability to continue as a going concern, as described in our periodic reports; our need to obtain additional financing on acceptable terms or at all, and the substantial dilution to existing stockholders that additional financing may cause, including any financing completed in connection with the proposed transaction, which may not be completed or may be on less favorable terms than anticipated; our ability to fund operations pending and following the disposition of our digital asset positions; and our ability to satisfy the continued listing requirements of The Nasdaq Stock Market, including stockholders’ equity, minimum bid price and other applicable standards.
Our strategic transition and the disposition of digital assets. Risks associated with a fundamental shift in our business strategy and the redeployment of resources from a digital asset treasury strategy to robotics operations; our ability to execute the disposition of our digital asset positions in an orderly manner and on acceptable terms; the risk that amounts realized on disposition are materially less than carrying value as a result of price volatility, market depth, execution timing, custody or transfer constraints, or other limitations; tax, accounting and regulatory consequences of the dispositions; the continued volatility and regulatory uncertainty associated with digital assets and cryptocurrencies during the wind-down period; the concentration of a substantial portion of our assets in a single equity investment, including an investment in a related party, and the illiquidity, valuation uncertainty, holding-period and transfer restrictions associated with that investment; and risks arising from our relationships and agreements with related parties and significant stockholders.
Our robotics operations business. Our limited operating history in robotics operations and commercialization and the absence of a meaningful revenue history; the early stage of RoboShare and the risk that customer demand, repeat demand, pricing, utilization or unit economics do not develop as anticipated; our dependence on a small number of customers, on a single initial geographic market, and on individual events or engagements, and the risk that the loss of, or a change in the terms of, any such relationship has a disproportionate effect; our dependence on third-party robot owners, operators, suppliers, original equipment manufacturers and local partners, and on their willingness to make robots available on our platform; risks relating to the availability, cost, quality, maintenance, transport, insurance and technological obsolescence of robots and related equipment, and to supply chains, tariffs and trade measures affecting them; and our ability to expand into additional markets and to attract and retain participants on both sides of our marketplace.
Operations, safety and liability. Risks of property damage, personal injury or death arising from the operation of humanoid robots, quadrupeds and other autonomous or semi-autonomous machines in proximity to performers, employees, guests and the public, including at live events and in uncontrolled environments; product liability, premises liability, negligence and related claims and the adequacy, scope, availability and cost of our insurance coverage and of contractual indemnities from customers, owners and suppliers; the allocation of responsibility among us, robot owners, venues, event producers and customers; permitting, licensing, occupational safety and event-specific regulatory requirements; and the reputational consequences of any safety incident.
Technology, data and intellectual property. Systems, network, telecommunications or service disruptions, failures, defects or cyber-attacks; the performance, reliability and autonomy limitations of robotic systems and of the software, models and networks that support them; our collection, use, storage, transmission and protection of personal information, including images and any biometric or biometric-adjacent data captured in the course of robot deployments, and evolving privacy, biometric and artificial intelligence laws and regulations across the jurisdictions in which we operate or intend to operate; our ability to obtain, maintain, protect and enforce our intellectual property rights and to defend against third-party claims of infringement or misappropriation; and our reliance on third-party technology, platforms and licenses.
Legal, regulatory and general. The regulated industries and jurisdictions in which we operate; current or future laws or regulations and new interpretations of existing laws or regulations, including those applicable to digital assets, robotics, autonomous systems, consumer protection, advertising and endorsements; the risk that our marketplace arrangements, or the manner in which they are described, are characterized differently than we intend by regulators or courts; the failure of counterparties to perform their contractual obligations; litigation, regulatory inquiries, investigations and enforcement actions, and their costs and outcomes; business, economic, market and capital-market conditions; competition in our industry; changes in market demand for, and the pricing of, our products and services; our ability to define, design and release new products and services in a timely manner that meet customer needs; our ability to attract, retain and motivate qualified personnel, including key management; our ability to manage our growth and our transition; and our ability to maintain effective internal control over financial reporting and disclosure controls and procedures.
This list of factors is not exhaustive. Additional risks and uncertainties are described more fully in our filings with the U.S. Securities and Exchange Commission (the “SEC”), including our Annual Report on Form 10-K for the year ended December 31, 2025, our Quarterly Reports on Form 10-Q, and our subsequent filings, which are available on the SEC’s website at www.sec.gov. Investors are urged to review the liquidity, capital resources and going concern disclosures contained in those reports.
The forward-looking statements in this Communication speak only as of the date hereof. Except as required by law, neither FFR nor any other person undertakes any obligation to update or revise any forward-looking statement or financial projection set out herein, whether as a result of new information, future events or otherwise. This Communication is provided for informational purposes only, does not constitute an offer to sell or the solicitation of an offer to buy any security, and does not constitute investment, tax or legal advice or any investment recommendation, and does not take into account the investment objectives or financial situation of any person. FFR reserves the right to amend or replace the information contained herein, in whole or in part, at any time, and undertakes no obligation to notify any recipient thereof. Readers are cautioned not to place undue reliance on these forward-looking statements. This caution is made under, and these forward-looking statements are intended to be covered by, the safe-harbor provisions of the Private Securities Litigation Reform Act of 1995.
Exhibit 99.2
