ACHR Archer Aviation Inc

 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT 

Pursuant to Section 13 or 15(d) 

of the Securities Exchange Act of 1934

 

Date of Report: December 11, 2024

 

 

Archer Aviation Inc.

(Exact Name of Registrant as Specified in its Charter)

 

 

Delaware		001-39668		85-2730902
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

190 West Tasman Drive San Jose, CA		95134
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code: 650-272-3233

 

N/A

(Former Name or Former Address, if Changed Since Last Report)

 

 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Class A common stock, par value $0.0001 per share		ACHR		New York Stock Exchange
Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share		ACHR WS		New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

Item 1.01 Entry Into a Material Definitive Agreement

 

Subscription Agreements

 

On December 11, 2024, Archer Aviation Inc. (“Archer” or the “Company”) entered into subscription agreements (the “Subscription Agreements”) with certain accredited investors (the “Investors”) pursuant to which the Company agreed to sell and issue to the Investors in a private placement (the “Private Placement”) an aggregate of 63,909,776 shares (the “Private Placement Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), at a purchase price of $6.65 per share (the “PIPE Share Price”). The Private Placement is anticipated to close on or about December 13, 2024 (the “PIPE Closing”), subject to the satisfaction of customary closing conditions.

 

On December 11, 2024, the Company also entered into a subscription agreement (the “Stellantis Subscription Agreement”) with Stellantis N.V. (“Stellantis”) pursuant to which the Company agreed to sell and issue to Stellantis in a private placement an aggregate of 751,879 shares (the “Stellantis Shares”) of the Company’s Common Stock at the PIPE Share Price (the “Stellantis Private Placement” and, together with the Private Placement, the “Private Placements”). The closing of the Stellantis Private Placement (the “Stellantis Closing”) is subject to the satisfaction of customary closing conditions, including approval by the Company’s stockholders (the “Stockholder Approval”) in accordance with the rules and regulations of the New York Stock Exchange, which Stockholder Approval is expected to occur at the Company’s 2025 Annual Meeting of Stockholders.

 

The Company anticipates receiving gross proceeds from the Private Placements of approximately $430 million, $5 million of which is subject to the Stockholder Approval. The Company intends to use the net proceeds from the Private Placements for funding the joint development with Anduril (as defined below) of an aircraft for defense applications and for other general corporate purposes in support of the Company’s continued efforts to commercialize its business, including the ramp up of its manufacturing and test facilities and planned operational infrastructure.

 

In connection with the Private Placements, the Company’s executive officers and directors entered into lock-up agreements (the “Lock-up Agreements”) pursuant to which they have agreed, subject to customary exceptions, to certain transfer restrictions with respect to their shares of Common Stock and securities convertible or exchangeable for Common Stock for the later of 60 days following the date of effectiveness of the Subscription Agreements and 30 days following the date of effectiveness of the Registration Statement (as defined below).

 

The foregoing description of the Subscription Agreements, the Stellantis Subscription Agreement and the Lock-up Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of those agreements, the forms of which are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.

 

Registration Rights Agreement

 

In connection with the Private Placement, the Company and the Investors also entered into a Registration Rights Agreement, dated as of December 11, 2024 (the “PIPE Registration Rights Agreement”), providing for the registration for resale of the Private Placement Shares. The Company has agreed to prepare and file with the Securities and Exchange Commission (the “SEC”) a registration statement (the “Registration Statement”) promptly, and in any event within 5 days of the PIPE Closing date, and to use commercially reasonable efforts to have the Registration Statement declared effective by the earlier of (i) the 45th calendar day following the PIPE Closing date and (ii) the fifth (5th) business day after the date the Company is notified by the SEC that the Registration Statement will not be reviewed or will not be subject to further review.

 

In connection with the Stellantis Private Placement, the Company and Stellantis also entered into a Registration Rights Agreement, dated as of December 11, 2024 (the “Stellantis Registration Rights Agreement” and, together with the PIPE Registration Rights Agreement, the “Registration Rights Agreements”), providing for the registration for resale of the Stellantis Shares. The Company has agreed to prepare and file with the SEC a registration statement (the “Stellantis Registration Statement”) promptly, and in any event within 10 days of the Stellantis Closing date, and to use commercially reasonable efforts to have the Stellantis Registration Statement declared effective by the earlier of (i) the 45th calendar day following the Stellantis Closing date and (ii) the fifth (5th) business day after the date the Company is notified by the SEC that the Stellantis Registration Statement will not be reviewed or will not be subject to further review.

 

The Company has granted the Investors and Stellantis customary indemnification rights in connection with the Registration Rights Agreements. The Investors and Stellantis have also granted the Company customary indemnification rights in connection with the Registration Rights Agreements.

 

The foregoing description of the PIPE Registration Rights Agreement and the Stellantis Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of those agreements, the forms of which are filed as Exhibits 10.4 and 10.5, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.

 

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The information contained above under Item 1.01, to the extent required by Item 3.02 of Form 8-K, is hereby incorporated by reference herein. Based in part upon the representations of the Investors in the Subscription Agreements and Stellantis in the Stellantis Subscription Agreement, the offer and sale of the Private Placement Shares and the Stellantis Shares were each made in reliance on the exemption afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) and corresponding provisions of state securities or “blue sky” laws. The Private Placement Shares and the Stellantis Shares have not been registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration with the SEC or an applicable exemption from the registration requirements. The sale of the Private Placement Shares and the Stellantis Shares did not involve a public offering and was made without general solicitation or general advertising. Each of the Investors and Stellantis represented that such Investor and Stellantis is an accredited investor, as such term is defined in Rule 501(a) of Regulation D under the Securities Act, and that such Investor and Stellantis is acquiring the Private Placement Shares and the Stellantis Shares for investment purposes only and not with a view to any resale, distribution or other disposition of the Private Placement Shares and the Stellantis Shares in violation of the U.S. federal securities laws.

 

Neither this Current Report on Form 8-K nor any exhibit attached hereto is an offer to sell or the solicitation of an offer to buy shares of Common Stock or other securities of the Company.

 

Item 7.01 Regulation FD Disclosure.

 

On December 12, 2024, the Company announced that it has entered into a strategic collaboration agreement with Anduril Industries Inc. (“Anduril”) to jointly develop a next-generation aircraft for military applications. The first product from this program is planned to be a hybrid-propulsion, vertical take-off and landing (VTOL) aircraft targeting an expected program of record from the U.S. Department of Defense. The initial term of the collaboration extends through May of 2026 and is exclusive in nature, such that neither party may work with another third party on a substantially similar project.

 

A copy of the press release is attached hereto as Exhibit 99.1 and incorporated herein by reference in this Item 7.01.

 

In addition, attached as Exhibit 99.2 and incorporated herein by reference is the investor presentation, dated as of December 2024, used by the Company in meetings with the Investors with respect to the Private Placement, as described in this Current Report on Form 8-K.

 

The information furnished with this Item 7.01, including Exhibits 99.1 and 99.2, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities under that section, nor shall it be deemed to be incorporated by reference into any filing of the Company under the Securities Act, or the Exchange Act, except as expressly set forth by specific reference in such a filing.

 

Item 8.01 Other Events.

 

Risk Factor Update

 

The Company is also providing the following updates to the Risk Factors set forth in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and subsequently filed Quarterly Reports on Form 10-Q:

 

We are in the early stages of developing our defense program and have not developed, and may be unable to develop a VTOL aircraft that meets the requirements of the defense industry, and we can provide no assurance that we will achieve some or any of the expected benefits of the program.

 

Our defense program is in its early stages and we have not previously developed our aircraft to meet the requirements of the defense industry. The success of our defense program and related aircraft depends on a number of factors including, among other things, anticipating and effectively addressing demands and requirements of the defense industry; timely and successful research and development; appropriate pricing strategies; effective forecasting and management of product demand, purchase commitments, and inventory levels, including relating to the U.S. government budgetary considerations; effective management of manufacturing and supply costs; and the quality of or any defects in our aircraft. Any impact to the overall success of our defense program would also impact our ability to realize the anticipated benefits of the program.

 

Unanticipated problems in developing aircraft for our defense program could also divert substantial research and development and other resources, which may impair our ability to develop new aircraft, or enhancements of existing aircraft, and could substantially increase our costs. Problems in the design or quality of our aircraft may also have an adverse effect on our business, financial condition, and operating results.

 

Accordingly, if we fail to successfully manage our defense program, including the development, manufacturing, and marketing our defense-related aircraft, we may incur higher than expected costs, weaker than anticipated demand for our defense program and aircraft, and changes in demand for existing aircraft, and our business, financial condition, and operating results could be harmed.

 

 

Forward-Looking Statements

 

This Current Report on Form 8-K contains certain statements that are not historical facts but are forward-looking statements for purposes of the safe harbor provisions under The Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding the Company’s future business plans and expectations and liquidity, including the pace at which the Company intends to design, develop, certify, conduct test flights, manufacture and commercialize its aircraft, its plans with respect to its strategic partnership with Anduril, including whether the projected program of record with the Department of Defense will materialize and whether the parties’ aircraft will be selected, the Company’s planned use of its capital and future need for additional capital, the results of the Stockholder Approval and other statements that are not historical facts. These statements are based on the current expectations of the management of and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on, by any investor as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of the Company. These statements are subject to a number of risks and uncertainties regarding the business of Archer and actual results may differ materially. These risks and uncertainties include, but are not limited to, Archer’s ability to obtain expected or required certifications, licenses, approvals, and authorizations from transportation authorities; regulatory risks related to evolving laws and regulations in Archer’s industries; and those factors discussed in the Company’s Annual Report on Form 10-K as of and for the year ended December 31, 2023, under the heading “Risk Factors,” and other documents of the Company filed, or to be filed, with the SEC. If any of these risks materialize or if assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that the Company does not presently know or that the Company currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect the Company’s expectations, plans or forecasts of future events and views as of the date of this communication. The Company anticipates that subsequent events and developments will cause the Company’s assessments to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the Company’s assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements.

 

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit Number		Description
10.1		Form of Subscription Agreement
10.2		Form of Stellantis Subscription Agreement
10.3		Form of Lock-up Agreement
10.4		Form of Registration Rights Agreement
10.5		Form of Stellantis Registration Rights Agreement
99.1		Press Release issued by Archer Aviation Inc., dated December 12, 2024
99.2		Investor Presentation, dated as of December 2024
104		Cover Page Interactive Data File (formatted in the Inline XBRL and contained in Exhibit 101)

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	ARCHER AVIATION INC.
Date: December 12, 2024	By:	/s/ Eric Lentell
	Name:	Eric Lentell
	Title:	General Counsel

 

 

 

Exhibit 10.1

 

SUBSCRIPTION AGREEMENT

 

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into as of December 11, 2024, by and between Archer Aviation Inc., a Delaware corporation (the “Company”), and the undersigned subscriber (the “Investor”).

 

WHEREAS, the Company and the Investor are executing and delivering this Subscription Agreement in reliance upon the exemption from securities registration afforded by the provisions of Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”).

 

WHEREAS, subject to the terms and conditions of this Subscription Agreement, the Investor desires to subscribe for and purchase from the Company, and the Company desires to sell and issue to the Investor, in a private placement, that number of shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) set forth on the signature page hereto (the “Shares”) for a purchase price of $[●] per share (the “Per Share Purchase Price”), for the aggregate purchase price set forth on the signature page hereto (the “Subscription Amount”).

 

WHEREAS, on or about the date of this Subscription Agreement, the Company is entering into separate subscription agreements in substantially the same form and containing the same Per Share Purchase Price as this Subscription Agreement (the “Other Subscription Agreements” and, together with this Subscription Agreement, the “Subscription Agreements”) with certain other “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and certain other “accredited investors” (as defined in Rule 501(a) under the Securities Act) (the “Other Investors” and, together with the Investor, the “Investors”), pursuant to which the Investors have agreed, severally and not jointly, to purchase on the Closing Date (as defined below), inclusive of the Shares subscribed for by the Investor, an aggregate amount of up to [●] shares of Class A Common Stock at the Per Share Purchase Price.

 

WHEREAS, concurrently with the execution of this Subscription Agreement, the Company and the Investor are entering into a separate registration rights agreement (the “Registration Rights Agreement”).

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, subject to the conditions set forth herein, and intending to be legally bound hereby, each of the Investor and the Company acknowledges and agrees as follows:

 

1.            Subscription. The Investor hereby irrevocably subscribes for and agrees to purchase from the Company, and the Company hereby agrees to issue and sell to the Investor upon payment of the Subscription Amount, the Shares on the terms and subject to the conditions provided for herein.

 

 

2.            Closing.

 

(a)            The closing of the purchase and sale of the Shares contemplated hereby (the “Closing”) shall occur on the second (2nd) business day following the execution and delivery of this Subscription Agreement and the Registration Rights Agreement by the Investor and the Company, or such other date as mutually agreed upon in writing (email being sufficient) by the Company and Investor (the “Closing Date”). At least three (3) business days prior to the Closing Date, the Company shall provide written notice to the Investor (the “Closing Notice”) containing wire instructions for the payment of the Subscription Amount, a completed and signed Internal Revenue Service Form W-9 or W-8BEN-E, as applicable and any other wire “know your client” information as may be reasonably requested by the Investor. At the Closing, the Investor shall deliver to the Company the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice. At the Closing and immediately after receiving the Subscription Amount, the Company shall issue and deliver the Shares to the Investor (registered in the name of the Investor or its nominee(s) in accordance with such Investor’s delivery instructions) or to a custodian designated by the Investor or its nominee(s), free and clear of any liens or other restrictions whatsoever (other than those arising from this Subscription Agreement and applicable securities laws). The Shares shall be delivered to the Investor (or such nominee(s) or custodian), via book entry record through Continental Stock Transfer & Trust Company (the “Transfer Agent”), and the Company shall cause the Transfer Agent to deliver to the Investor (or such nominee(s) or custodian), on or promptly after the Closing Date, a copy of the records of the Transfer Agent confirming the issuance and delivery of the Shares to the Investor (or such nominee(s) or custodian) on and as of the Closing Date. For purposes of this Subscription Agreement, “business day” shall mean any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close in the City of New York, New York. In the event that the Closing has not occurred on or before the fifth business day after the date of this Subscription Agreement, any payment by the Investor hereunder will be immediately returned by the Company to the Investor by wire transfer in immediately available funds to the account specified by the Investor and the obligations of the Company, on the one hand, and the Investor, on the other, to effect the Closing shall terminate. Notwithstanding anything in this Subscription Agreement to the contrary and as may be agreed to among the Company and the Investor if the Investor informs the Company that (a) it is an investment company registered under the Investment Company Act of 1940, as amended, (b) that it is advised by an investment adviser subject to regulation under the Investment Advisers Act of 1940, as amended, or (c) that its internal compliance policies and procedures so require it, then (1) prior to the delivery by the Investor of the Subscription Amount, the Company shall deliver to the Investor evidence of the issuance of the Investor 's Shares from the Transfer Agent in form and substance reasonably acceptable to the Investor and (2) following receipt of such evidence, such Investor shall deliver the Subscription Amount.

 

(b)            Prior to or at the Closing, the Investor shall deliver to the Company a duly completed and executed Internal Revenue Service Form W-9 or W-8BEN-E, as applicable.

 

(c)            Prior to or at the Closing, the Company shall deliver to the Investor a certificate, duly executed by its secretary and dated as of the Closing Date, certifying as to (x) all resolutions adopted by the Company in connection with this Subscription Agreement and the Registration Rights Agreement, and the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Shares), and that (y) all such resolutions remain in full force and effect.

 

3.            Closing Conditions. The obligation of the Investor to consummate the purchase of Shares pursuant to this Subscription Agreement is subject to the satisfaction (or valid waiver by Investor in writing) of the following conditions that, at the Closing:

 

(a)            no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby;

 

 

(b)            the Company shall have, prior to the Closing Date, prepared and filed a supplemental listing application with the New York Stock Exchange ( “NYSE”) to list the Shares and the NYSE shall have conditionally authorized, subject to official notice of issuance, the listing of the Shares;

 

(c)            no suspension of the qualification of the shares of Class A Common Stock listed on the NYSE for any offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any such purposes, shall have occurred;

 

(d)            the Company shall have caused all of the Company’s directors and executive officers to execute lock-up agreements, in a form reasonably acceptable to the Placement Agent, for a lock-up period until the later of (i) 60 days commencing on the date hereof and (ii) the date of effectiveness of the registration statement required to be filed pursuant to the Registration Rights Agreement (subject to customary exceptions) and each such lock-up agreement shall be in full force and effect on the Closing Date and shall have been furnished to the Investor;

 

(e)            the Company shall have furnished all required materials to the Transfer Agent (as defined below) to reflect the issuance of the Shares at the Closing;

 

(f)            all representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties contained in Sections 5(a), 5(b) and 5(c) and those representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined below), which representations and warranties shall be true in all respects) at and as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects, or in all respects, as applicable, as of such earlier date), and consummation of the Closing by the Company shall constitute a reaffirmation by the Company of each of the representations and warranties of the Company contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects, or in all respects, as applicable, as of such earlier date);

 

 

(g)            the Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing Date;

 

(h)            the delivery to Moelis & Company LLC or any of its respective affiliates (collectively, the “Placement Agent”) of an opinion of Company counsel, in a form reasonably acceptable to the Placement Agent;

 

(i)            since the date of this Subscription Agreement, no event or series of events shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect;

 

(j)            the Company shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Exhibit A (the “Registration Rights Agreement”) to the Investor; and

 

(k)            there shall have been no amendment, waiver or modification to the Other Subscription Agreements that materially economically benefits any of the Other Investors unless the Investor has been offered substantially the same benefits.

 

4.            Further Assurances. At and after the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties may reasonably deem to be practical and necessary to consummate the transactions contemplated by the Subscription Agreements.

 

5.            Company Representations and Warranties. The Company represents and warrants to the Investor that:

 

(a)            The Company is a corporation validly existing and in good standing under the laws of the State of Delaware, and the Company has the power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under the terms of the Transaction Documents (as defined below), including the issuance and sale of the Shares.

 

(b)            The Shares are duly authorized and, when issued and delivered to the Investor (or its nominee(s) or custodian, as applicable) after full payment thereof in accordance with the terms of this Subscription Agreement, the Shares will be validly issued, fully paid and non-assessable and will be delivered free and clear of any lien or restriction on transfer (other than those provided in this Subscription Agreement or in the Registration Rights Agreement), and will not have been issued (i) in violation of or subject to any preemptive or similar rights created under the Company’s Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws (the “Bylaws”) in effect as of the time the Shares are issued or under Delaware General Corporation Law, or (ii) in violation of applicable law.

 

(c)            Each of this Subscription Agreement, the Other Subscription Agreements and the Registration Rights Agreement (the “Transaction Documents”) have been duly authorized, validly executed and delivered by a duly authorized representative of the Company. The signature of the Company on each of the Transaction Documents is genuine, and such signatory has been duly authorized to execute each of the Transaction Documents. Assuming that each applicable Transaction Document is validly executed and delivered by a duly authorized representative of the Investor or the applicable Other Investor, such Transaction Document constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally.

 

 

(d)            The execution, delivery and performance of this Subscription Agreement, including the issuance and sale by the Company of the shares of Class A Common Stock pursuant to the Transaction Documents, are within the corporate powers of the Company, and do not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of any contract, indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the Company’s organizational documents, including, without limitation, its Amended and Restated Certificate of Incorporation or Bylaws, as may be applicable, or (iii) result in a breach, default or any other violation of any applicable statute or any judgment, order, rule or regulation of any court, other tribunal or any governmental commission, agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties (or that of any of its subsidiaries), except in the case of each of (i) and (iii) any such breach, default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(e)            As of their respective filing dates, all reports required to be filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) since September 17, 2021 (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder. None of the SEC Reports, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the 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 SEC with respect thereto as in effect at the time of filing 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 financial statements, to normal, year-end audit adjustments. A copy of each SEC Report is available to the Investor via the SEC’s EDGAR system. There are no material outstanding or unresolved comments in comment letters received by the Company (or any affiliate or subsidiary thereof) from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. As of the most recent determination date (as determined pursuant to Rule 405 of the Securities Act), the Company qualifies (as of the Closing Date) as a well-known seasoned issuer.

 

(f)            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 other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Company of the Transaction Documents (including, without limitation, the issuance of the shares of Class A Common Stock pursuant to the Subscription Agreements), other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, (iii) the filings required in accordance with Section 10 of this Subscription Agreement, and (iv) those required by the NYSE.

 

 

(g)            As of the date hereof, the authorized share capital of the Company consists of 1,010,000,000 shares of capital stock, consisting of (i) 1,000,000,000 shares of common stock, including (A) 700,000,000 shares of Class A Common Stock and (B) 300,000,000 shares of the Company’s Class B Common Stock, par value $0.0001 per share (the “Class B Common Stock”) and (ii) 10,000,000 shares of Company’s preferred stock, $0.0001 par value per share (“Preferred Stock”). As of close of business on the date immediately preceding the date hereof (the “Measurement Time”), (i) 401,620,292 shares of Class A Common Stock and 36,110,992 shares of Class B Common Stock, respectively, were issued and outstanding, all of which are validly issued, fully paid and non-assessable and not subject to any preemptive rights, (ii) no shares of Class A Common Stock or Class B Common Stock are held in the treasury of the Company, (iii) 46,244,244 warrants are issued and outstanding at a weighted-average exercise price of $6.32 per share, and (iv) no shares of Preferred Stock were issued and outstanding. Between the Measurement Time and the date hereof, the Company has not issued, or agreed to issue, any shares of Class A Common Stock, Class B Common Stock or Preferred Stock, other than (i) any issuances to the Investors or their respective affiliates pursuant to the Subscription Agreements, (ii) any issuances to Stellantis N.V. and its affiliates pursuant to the Subscription Agreement between the Company and Stellantis N.V. dated as of even date herewith and (iii) the issuance of shares of Class A Common Stock in the ordinary course of business in connection with the exercise of warrants or to service providers pursuant to the Company’s 2019 Equity Incentive Plan, 2021 Amended and Restated Equity Incentive Plan and 2021 Employee Stock Purchase Plan. As of the date hereof, except as set forth above, pursuant to the Other Subscription Agreements or the Transaction Documents, and pursuant to the Company’s 2021 Amended and Restated Equity Incentive Plan and 2019 Equity Incentive Plan, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company any shares of Class A Common Stock or other equity interests in the Company (collectively, “Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests. There are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares or the shares of Class A Common Stock to be issued pursuant to any Other Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing.

 

(h)            As of the date hereof, the Company has not received any written communication from a governmental authority that seeks to enjoin the transactions contemplated by the Transaction Documents.

 

(i)            Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Company to the Investor and such Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.

 

(j)            Neither the Company nor any person acting on its behalf has offered the Shares by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act.

 

(k)            Other than the Subscription Agreements, the Company has not entered into any side letter or similar agreement with any Other Investor or in connection with such Other Investor’s direct or indirect investment in the Company. Except for any alternative settlement procedures, eligibility for qualified purchasers to invest, and other than terms particular to the regulatory requirements of such Other Investors or its affiliates or related funds, no Other Subscription Agreement includes terms and conditions that are materially more favorable to any such Other Investor than the terms and conditions applicable to the Investor hereunder, and such Other Subscription Agreements reflect the same Per Share Purchase Price. The Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement.

 

 

(l)            As of the date hereof, the issued and outstanding shares of Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE. There is no suit, action, proceeding or investigation pending or, to the Company’s knowledge, threatened against the Company (or any controlled affiliate or subsidiary thereof) by the NYSE or the SEC, including with respect to any intention by such entity to deregister such shares of Class A Common Stock or prohibit or terminate the listing of such shares of Class A Common Stock on the NYSE, excluding, for the purposes of clarity, the customary periodic review of certain periodic reports filed by the Company with the SEC. The Company has taken no action that would be reasonably expected to terminate, or lead to the termination or deregistration of such shares of Class A Common Stock under the Exchange Act within a reasonable period after Closing.

 

(m)            Except as previously and expressly disclosed in the SEC Reports or as otherwise disclosed to the Investors, there is no material (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or threatened in writing against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company. The Company has not received any written communication from a governmental authority that alleges that the Company is not in compliance with, or is in default or violation of, any applicable law, except where such non-compliance, default or violation would not be reasonably expected to have, individually or in the aggregate, (i) a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole or (ii) a material adverse effect on the performance by the Company of its obligations under this Subscription Agreement (a “Material Adverse Effect”).

 

(n)            The Company is not under any obligation to pay any broker’s or finder’s fee or commission (or similar fee) in connection with the sale of the Shares, other than to the Placement Agent. The Company is solely responsible for the payment of any fees or commissions of the Placement Agent. None of the Company nor its affiliates or subsidiaries have taken any action which could result in the Investor being required to pay any such fee or commission.

 

(o)            The Company is not and has not been in the past twelve (12) months an “investment company” or required to register as an “investment company,” in each case within the meaning of the Investment Company Act of 1940, as amended.

 

(p)            None of the Company, its subsidiaries nor, to the Company’s knowledge, any of its affiliates or any person acting on its behalf has, directly or indirectly, at any time within the applicable period set forth in Rule 152 promulgated under the Securities Act, made any offers or sales of any security or solicited any offers to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under the Securities Act in connection with the sale by the Company of the Shares as contemplated hereby or (ii) cause the sale of the Shares pursuant to this Subscription Agreement to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange on which any of the securities of the Company are listed or designated.

 

 

(q)            Neither the Company nor any of its officers or directors or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control, or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, including the United Kingdom (collectively, “Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, the non-government controlled areas of Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the United Kingdom, the European Union or any individual European Union member state; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). To the extent required by applicable law, the Company also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the United Kingdom, the European Union, or any individual European Union member state to the extent applicable to the Company.

 

(r)            The financial statements of the Company, as filed with the SEC, including the notes thereto and supporting schedules, fairly present the financial position and results of operations, stockholders’ equity and cash flows of the Company and its subsidiaries, on a consolidated basis, at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with accounting principles generally accepted in the United States (“GAAP”), applied on a consistent basis throughout the periods covered thereby; and the supporting schedules included therein present fairly the information required to be stated therein. Except as set forth in the financial statements of the Company, there are no off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons which would, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect.

 

(s)            To the knowledge of the Company, PricewaterhouseCoopers LLP, independent registered public accounting firm (the “Auditor”), whose report is filed with the SEC, is an independent registered public accounting firm as required by the Securities Act and the Regulations and the Public Company Accounting Oversight Board. The Auditor has not, during the periods covered by the financial statements it has audited, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.

 

(t)            The Company has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Company’s assets. The Company maintains, and has maintained, books and records of the Company in the ordinary course of business that are accurate and complete and properly reflect the revenues, expenses, assets and liabilities of the Company in all material respects. The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act applicable to the Company and is effective, and the Company is not aware of any material weaknesses in its internal control over financial reporting. The Company maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) under the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.

 

 

(u)            The Company has all approvals, licenses, permits and certificates (the “Material Permits”) that are required for it to own, lease or operate its properties and assets and to conduct its business as currently conducted, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company. Except as is not and would not reasonably be expected to be material to the Company, (i) each Material Permit is in full force and effect in accordance with its terms and (ii) no written notice of revocation, cancellation or termination of any Material Permit has been received by the Company. The Company is, and since the Company’s incorporation has been, in compliance in all material respects with the terms of all the Material Permits. To the Company’s knowledge, no event, circumstance, or state of facts has occurred which (with or without due notice or lapse of time or both) would reasonably be expected to result in the failure of the Company to be in compliance with the terms of the Material Permits.

 

(v)            The Company is, and since the Company’s incorporation has been, in compliance in all respects with all Environmental Laws. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company: (i) the Company has not received any written communication or notice or, to the Company’s knowledge, other communication from any governmental authority or any other person regarding any actual, alleged, or potential violation of, or liability under, any Environmental Laws; (ii) there is (and since the Company’s incorporation there has been) no proceeding or order pending or threatened in writing against the Company in respect to any Environmental Laws; and (iii) there has been no manufacture, release, treatment, storage, disposal, arrangement for disposal, transport or handling of, contamination by, or exposure of any Person to, any Hazardous Substances. “Environmental Laws” means all laws and orders concerning pollution, protection of the environment, or public or worker health or safety. “Hazardous Substances” means any material, substance or waste that is regulated by, or may give rise to a liability pursuant to, any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroalkyl substances, radiation, or radon.

 

(w)            Except as would not, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect, since the Company’s incorporation, neither the conduct of the business of the Company nor any of the Company’s products offered, marketed, licensed, provided, sold, distributed or otherwise exploited by the Company nor the design, development, manufacturing, reproduction, use, marketing, offer for sale, sale, importation, exportation, distribution, maintenance or other exploitation of any of such products infringes, constitutes or results from an unauthorized use or misappropriation of, dilutes or otherwise violates, or has infringed, constituted or resulted from an unauthorized use or misappropriation of, diluted or otherwise violated any Intellectual Property rights of any other person or entity. To the Company’s knowledge, since the Company’s incorporation, no person or entity is infringing, misappropriating, misusing, diluting or otherwise violating, or has infringed, misappropriated, misused, diluted or otherwise violated, any Intellectual Property owned by the Company, except as would not, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect. Since the Company’s incorporation, the Company has not made any written claim against any person or entity alleging any infringement, misappropriation, dilution or other violation of any such owned Intellectual Property, except any infringement, misappropriation, dilution or other violation of any such owned Intellectual Property as would not, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect. “Intellectual Property” means intellectual property rights protected, created or arising under the laws of the United States or any other jurisdiction or under any international convention, including all (i) patents and patent applications, patent disclosures, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention registrations, and any patents issuing on any of the foregoing and any reissues, reexaminations, substitutes, supplementary protection certificates, extensions of any of the foregoing; (ii) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing; (iii) copyrights and works of authorship, copyrightable works, database and design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing; (iv) trade secrets, know-how and confidential and proprietary information, including invention disclosures, inventions (whether patentable or not, and whether or not reduced to practice), ideas, formulae, source code, compositions, processes and techniques, methods, methodologies, algorithms, research and development information, drawings, specifications, architectures, designs, plans, proposals, technical data, financial and marketing plans and customer and supplier lists and information; (v) rights in or to software or other technology; and (vi) any other intellectual property rights protectable, arising under or associated with any of the foregoing, including those protected by any law anywhere in the world.

 

 

(x)            The Company has implemented commercially reasonable written policies relating to the processing of personal data as and to the extent required by applicable law.

 

6.            Investor Representations and Warranties. The Investor represents and warrants to the Company that:

 

(a)            The Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor 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) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information set forth on Schedule A). The Investor is not an entity formed for the specific purpose of acquiring the Shares.

 

 

(b)            The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, and that the Shares have not been registered under the Securities Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdiction of the United States. The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act. The Investor acknowledges that it has been advised to consult legal, tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Shares.

 

(c)            The Investor acknowledges and agrees that the book-entry position representing the Shares will bear or reflect, as applicable, the following legend (provided that such legend shall be subject to removal in accordance with this Subscription Agreement and the Registration Rights Agreement):

 

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR (B) AN OPINION OF COUNSEL THAT SUCH SALE, OFFER FOR SALE, TRANSFER, PLEDGE OR DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.”

 

(d)            The Investor acknowledges and agrees that the Investor is purchasing the Shares from the Company. The Investor further acknowledges that there have been no representations, warranties, covenants and agreements made to the Investor, by or on behalf of the Company and by any control person, officer, director, employee, agents or representative of the Company, or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company expressly set forth in (i) Section 5 of this Subscription Agreement, or (ii) the Registration Rights Agreement.

 

 

(e)            The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including information about the Company, its subsidiaries and their respective businesses. Without limiting the generality of the foregoing, the Investor acknowledges that it has access to the SEC Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. However, neither any such inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement.

 

(f)            The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any form of general solicitation or general advertising in violation of the Securities Act. The Investor acknowledges that, in making its investment decision to purchase the Shares, it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or entity (including, without limitation, the Company, the Placement Agent and any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives), other than the representations and warranties of the Company contained in (i) Section 5 of this Subscription Agreement or (ii) the Registration Rights Agreement.

 

(g)            The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision. The Investor will not look to the Placement Agent for all or part of any such loss or losses the Investor may suffer and is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges that the Investor shall be responsible for any of the Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company, nor any of its advisors or representatives, has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Subscription Agreement.

 

(h)            Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in the Company. The Investor acknowledges specifically that a possibility of total loss exists.

 

(i)            The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment.

 

(j)            The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

 

 

(k)            The execution, delivery and performance by the Investor of this Subscription Agreement and the Registration Rights Agreement are within the corporate powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and will not violate any provisions of the Investor’s organizational documents. The signature of the Investor on each of this Subscription Agreement and the Registration Rights Agreement is genuine, and the signatory has been duly authorized to execute the same, and, assuming that this Subscription Agreement and the Registration Rights Agreement have been validly executed and delivered by a duly authorized representative of the Company, this Subscription Agreement and the Registration Rights Agreement constitute a legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with their terms except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally.

 

(l)            Neither the Investor nor any of its officers or directors or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on a Sanctions List; (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the non-government controlled areas of Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other country or territory embargoed or subject to comprehensive sanctions by the United States, the United Kingdom, the European Union or any individual European Union member state; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R Part 515; or (v) a Prohibited Investor. To the extent required by applicable law, the Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the United Kingdom, the European Union, or any individual European Union member state to the extent applicable to the Investor. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor.

 

(m)            The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.

 

(n)            On the Closing Date, the Investor will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

 

(o)            The Investor further acknowledges that the Investor has not relied upon the Placement Agent in connection with the Investor’s due diligence review of the offering of the Shares and the Company. The Investor acknowledges and agrees that (i) it has been informed that the Placement Agent is acting solely as placement agent in connection with the transactions contemplated by this Subscription Agreement (the “Transaction”) and is not acting as an underwriter or in any other capacity in connection with the Transaction and is not and shall not be construed as a fiduciary for the Investor in connection with the Transaction, (ii) it has not relied on the Placement Agent in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referenced herein, (iii) it has not relied on any investigation that the Placement Agent, any of its affiliates or any other person acting on their behalf has conducted with respect to the Shares or the Company or any information contained in any research reports prepared by the Placement Agent or any of its affiliates, (iv) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice, including without limitation financial advice, or recommendation in connection with the Transaction, in each case, to the Investor, (v) the Placement Agent has not solicited any action from the Investor with respect to the offer and sale of the Shares, (vi) the Placement Agent will have no responsibility to the Investor with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, condition (financial and otherwise), management, operations, properties or prospects of the Company or the Transaction and (vii) the Placement Agent shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, or to any person claiming through the Investor, in respect of the Transaction. The Investor further acknowledges that the Placement Agent is acting as financial advisor to the Company in connection with the Transaction, and that the Placement Agent may receive fees both for their placement agent services and financial advisory services.

 

 

(p)            No disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares.

 

(q)            The Investor acknowledges that none of the Placement Agent, nor any of its respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to the Company or any of their subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by the Company, and do not make any representation or warranty with respect to the Company, the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by the Company.

 

(r)            The Investor acknowledges that (i) the Placement Agent may have acquired, or may acquire, nonpublic information with respect to the Company that is not known to the Investor and that may be material to a decision to enter into this transaction to purchase Shares (“Excluded Information”), and (ii) the Investor has determined to enter into the transaction to purchase the Shares notwithstanding its lack of knowledge of the Excluded Information.

 

(s)            The Investor acknowledges and agrees that it is not an underwriter within the meaning of Section 2(a)(11) of the Securities Act and that the purchase and sale of Shares hereunder meets the exemptions from filing under FINRA Rule 5123(b)(1).

 

7.            Miscellaneous.

 

(a)            Neither this Subscription Agreement nor any rights that may accrue to the Investor hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned to another person other than (i) an assignment by the Investor of its rights, benefits and obligations hereunder to (A) any fund or other entity or account managed by the same investment manager or investment advisor as the Investor or an affiliate thereof or (B) any affiliate of the Investor, in each case, without prior written consent of the Company, or (ii) with the prior written consent of Company, provided that, if such transfer or assignment is prior to the Closing, such transferee or assignee, as applicable, executes a joinder to this Subscription Agreement or a separate subscription agreement in substantially the same form as this Subscription Agreement, including with respect to the Subscription Amount and other terms and conditions, provided that, in the case of any such transfer or assignment made without the prior written consent of the Company, as applicable, the Investor shall remain bound by its obligations under this Subscription Agreement in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of Shares contemplated hereby. Neither this Subscription Agreement nor any rights that may accrue to the Company hereunder or any of the Company’s obligations may be transferred or assigned without the prior written consent of the Investor. Consistent with the Investor’s representation and warranty to the Company that it is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act, the Investor agrees that it shall not sell, transfer, or assign the Shares, except in a manner consistent with the restrictions on transfer set forth in the Registration Rights Agreement.

 

 

(b)            The Company may request from the Investor such additional information as the Company may reasonably deem necessary to register the resale of the Shares and evaluate the eligibility of the Investor to acquire the Shares and the eligibility of the offering for an exemption from registration under the Securities Act, and the Investor shall provide such information as may reasonably be requested, to the extent readily available and to the extent consistent with its internal policies and procedures, provided, that the Company agrees to keep any such information provided by the Investor confidential, except as may be required by applicable law, rule, regulation or in connection with any legal proceeding or regulatory request. The Investor acknowledges that the Company may file a form of this Subscription Agreement with the SEC as an exhibit to a current or periodic report or a registration statement of the Company.

 

(c)            The Investor acknowledges that the Company will rely on the acknowledgments, understandings, agreements, representations, and warranties of the Investor contained in this Subscription Agreement. The Company acknowledges that the Investor will rely on the acknowledgments, understandings, agreements, representations, and warranties of the Company contained in this Subscription Agreement. The Investor and Company acknowledge and agree that the Placement Agent is a third-party beneficiary hereof and no consent, waiver, modification or amendment hereunder or hereof may be given or agreed to by the Investor or the Company without the Placement Agent’s consent. Prior to the Closing, the Investor agrees to promptly notify the Company and the Placement Agent if any of the acknowledgements, understandings, agreements, representations and warranties set forth in Section 6 above are no longer accurate in any material respect (other than those acknowledgements, understandings, agreements, representations and warranties qualified by materiality, in which case the Investor shall notify the Company and the Placement Agent if they are no longer accurate in any respect). The Investor acknowledges and agrees that each purchase by the Investor of Shares from the Company will constitute a reaffirmation of the acknowledgements, understandings, agreements, representations and warranties herein (as modified by any such notice) by the Investor as of the time of such purchase.

 

(d)            The Company, the Investor and the Placement Agent are each entitled to rely upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

(e)            Other than consummating the transactions contemplated hereunder, the Investor has not, nor has any Person acting on behalf of or pursuant to any understanding with such Investor, directly or indirectly executed, nor will the Investor or any Person acting on behalf of or pursuant to any understanding with such Investor, directly or indirectly, execute, any purchases or sales, including short sales, of the securities of the Company during the period commencing as of the time that such Investor was first informed by the Company or Placement Agent regarding the transactions contemplated hereby and ending upon the public announcement by the Company of the transactions contemplated hereunder. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’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 Shares covered by this Subscription Agreement.

 

 

(f)            This Subscription Agreement may not be modified, waived or terminated except by an instrument in writing, signed by each of the parties hereto. No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

 

(g)            This Subscription Agreement (including the schedule hereto) and the agreements contemplated hereby including the Registration Rights Agreement constitute the entire agreement of the parties with respect to the subject matter of said agreements, and said agreements supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter thereof. This Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and permitted assigns.

 

(h)            Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.

 

(i)            If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect, provided that each party hereto intends that such invalid, illegal or unenforceable provision will be construed (or otherwise reformed) by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law.

 

(j)            This Subscription Agreement may be executed using manual or electronic signature, in one or more counterparts (including by electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement. “ELECTRONIC SIGNATURE” MEANS (A) THE SIGNING PARTY’S MANUAL SIGNATURE, CONVERTED BY THE SIGNING PARTY TO FACSIMILE OR INDUSTRY-ACCEPTED DIGITAL FORM (SUCH AS A .PDF FILE) AND RECEIVED FROM THE SIGNING PARTY’S CUSTOMARY EMAIL ADDRESS, CUSTOMARY FACSIMILE NUMBER, OR OTHER MUTUALLY AGREED-UPON AUTHENTICATED SOURCE; OR (B) THE SIGNING PARTY’S DIGITAL SIGNATURE EXECUTED USING A MUTUALLY AGREED-UPON DIGITAL SIGNATURE SERVICE PROVIDER, SUCH AS DOCUSIGN OR ADOBE SIGN, AND DIGITAL SIGNATURE PROCESS EACH PARTY TO THIS SUBSCRIPTION AGREEMENT (I) AGREES THAT IT WILL BE BOUND BY ITS OWN ELECTRONIC SIGNATURE, (II) ACCEPTS THE ELECTRONIC SIGNATURE OF EACH OTHER PARTY TO THIS SUBSCRIPTION AGREEMENT, AND (III) AGREES THAT SUCH ELECTRONIC SIGNATURES SHALL BE THE LEGAL EQUIVALENT OF MANUAL SIGNATURES.

 

 

(k)            The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise.

 

(l)            All of the representations and warranties contained in this Subscription Agreement shall survive the Closing. All of the covenants and agreements made by each party hereto in this Subscription Agreement shall survive the Closing.

 

(m)            THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE.

 

(n)           ALL LEGAL ACTIONS AND PROCEEDINGS ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT SHALL BE HEARD AND DETERMINED EXCLUSIVELY IN ANY DELAWARE CHANCERY COURT; PROVIDED, THAT IF JURISDICTION IS NOT THEN AVAILABLE IN THE DELAWARE CHANCERY COURT, THEN ANY SUCH LEGAL ACTION MAY BE BROUGHT IN ANY FEDERAL COURT LOCATED IN THE STATE OF DELAWARE OR ANY OTHER DELAWARE STATE COURT. THE PARTIES HERETO HEREBY (A)      IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS FOR THEMSELVES AND WITH RESPECT TO THEIR RESPECTIVE PROPERTIES FOR THE PURPOSE OF ANY ACTION ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT BROUGHT BY ANY PARTY HERETO, AND (B) AGREE NOT TO COMMENCE ANY ACTION RELATING THERETO EXCEPT IN THE COURTS DESCRIBED ABOVE IN DELAWARE, OTHER THAN ACTIONS IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE ANY JUDGMENT, DECREE OR AWARD RENDERED BY ANY SUCH COURT IN DELAWARE AS DESCRIBED HEREIN. EACH OF THE PARTIES FURTHER AGREES THAT NOTICE AS PROVIDED HEREIN SHALL CONSTITUTE SUFFICIENT SERVICE OF PROCESS AND THE PARTIES FURTHER WAIVE ANY ARGUMENT THAT SUCH SERVICE IS INSUFFICIENT. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION OR AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, (A) ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE COURTS IN DELAWARE AS DESCRIBED HEREIN FOR ANY REASON, (B)      THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM 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 (C) THAT (I) THE ACTION IN ANY SUCH COURT IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE OF SUCH ACTION IS IMPROPER OR (III) THIS SUBSCRIPTION AGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURTS.

 

 

8.            Non-Reliance and Exculpation. Each of the Investor and the Company acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation or any control person, officer, director, employee, partner, agent or representative of the Company, the Placement Agent or the Investor, as applicable, other than (i) with respect to the Investor, the representations and warranties of the Company expressly contained in (x) Section 5 of this Subscription Agreement, or (y) the Registration Rights Agreement, and (ii) with respect to the Company the representations and warranties of Investor expressly contained in (x) Section 6 of this Subscription Agreement, or (y) the Registration Rights Agreement. For purposes of this Subscription Agreement, each of the Investor and the Company acknowledges and agrees that neither party shall be liable to the other party or to any of its respective affiliates for any other statement, representation, or warranty. The Investor acknowledges and agrees that none of (a) any Other Investor pursuant to this Subscription Agreement or any Other Subscription Agreement (including the Investor’s respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) or (b) except in the case of gross negligence, willful misconduct, or fraud, the Placement Agent, its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the foregoing shall have any liability to the Investor, or to any Other Investor, pursuant to, arising out of or relating to this Subscription Agreement or any Other Subscription Agreement, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or with respect to any claim (whether in tort or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements, or omissions with respect to any information or materials of any kind furnished by the Company, the Placement Agent or any Non-Party Affiliate concerning the Company, the Placement Agents, any of their controlled affiliates, this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of the Company, any Placement Agent or any of the Company’s or any Placement Agent’s controlled affiliates or any family member of the foregoing.

 

9.            Subsequent Equity Sales. From the date of this Subscription Agreement until sixty (60) days after the Closing Date, the Company shall not (A) issue any Equity Interests or securities convertible or exchangeable or exercisable for Equity Interests. Notwithstanding the foregoing, the provisions of this Section 9 shall not apply to (i) the issuance of shares of Class A Common Stock pursuant to the Subscription Agreements; (ii) the issuance of shares of Class A Common Stock to Stellantis N.V. pursuant to that certain Subscription Agreement, dated August 8, 2024, between the Company and Stellantis N.V.; (iii) the issuance of Class A Common Stock to Stellantis N.V. pursuant to that certain Subscription Agreement, dated as of even date herewith, between the Company and Stellantis N.V.; (iv) the issuance of shares of Equity Interests or securities convertible or exchangeable or exercisable for Equity Interests in connection with the provision of goods or services from suppliers or third-party service providers; (v) the issuance of shares of Class A Common Stock in connection with the Company’s planned contract manufacturing agreement with Stellantis N.V. or its affiliates; (vi) the issuance of shares of Class A Common Stock pursuant to one or more “at the market” offerings; (vii) the issuance of Equity Interests upon the conversion, exercise or vesting of any securities of the Company outstanding on the date of this Subscription Agreement or outstanding pursuant to clause (viii) below or (viii) the issuance of any Equity Interests or securities convertible or exchangeable or exercisable for Equity Interests pursuant to any Company stock-based compensation plans.

 

 

10.            Press Releases. The Company shall, no later than 9:00 a.m. (New York time) on the first (1^st) business day after the date of this Subscription Agreement (or such earlier time as the parties agree to issue a press release), furnish or file with the SEC in a Current Report on Form 8-K or in a Quarterly Report on Form 10-Q (collectively, the “Disclosure Document”) disclosing the issuance of the Shares, including the information required by Item 3.02 of Form 8-K, and, to the extent required under applicable law (as determined by the Company’s legal counsel), all material terms of the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements, a copy of the press release (if any), and any other material, non-public information that the Company has provided to the Investor at any time prior to the filing of such Form 8-K or Quarterly Report on Form 10-Q, as applicable. The determination as to what information provided to the Investor is considered material-non public information shall be made in the Company’s sole discretion. From and after the disclosure of the Disclosure Document, to the knowledge of the Company, the Investor and its affiliates and their respective directors, officers, employees, agents or representatives shall not be in possession of any material, nonpublic information received from the Company or any of its officers, directors, employees, agents or representatives, and the Investor shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with the Company, the Placement Agent, or any of their affiliates in connection with the Transaction. All press releases or other public communications relating to the transactions contemplated hereby between the Company and the Investor, and the method of the release for publication thereof, shall be subject to the prior approval of both the Company and the Investor. The restriction in the third sentence of this Section 10 shall not apply to the extent, and only to the extent, that the public announcement is required by applicable securities law, any governmental authority with appropriate jurisdiction or applicable stock exchange rule; provided, that in such an event, the applicable party shall consult with the other party in advance as to its form, content and timing. Notwithstanding anything in this Subscription Agreement to the contrary, the Company shall not publicly disclose the name of the Investor or any of its affiliates or advisers, or include the name of the Investor or any of its affiliates or advisers in any press release or in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of the Investor, except (i) as required by the federal securities law or pursuant to other routine proceedings of regulatory authorities, (ii) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of any national securities exchange on which the Company s securities are listed for trading or (iii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 10, in which case for clauses (i)-(iii), the Company shall provide the Investor with prior written notice of such disclosure permitted under hereunder.

 

11.            Stock Splits, etc. If any change in the shares of the Company’s common stock shall occur between the date hereof and immediately prior to the Closing by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend, the number and type of Shares issued to the Investor and the Subscription Amount and the per-share purchase price of the Shares shall be appropriately adjusted to reflect such change.

 

 

12.            Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given: (i) when delivered, if delivered in person or by electronic mail (so long as such transmission does not generate an error message or notice of non-delivery); (ii) on the fifth (5^th) business day after dispatch by registered or certified mail; or (iii) on the next business day if transmitted by national overnight courier, in each case as follows (or at such other address for a party as shall be specified by like notice):

 

If to the Investor, to such address or addresses set forth on the signature page hereto.

 

If to the Company, to:

 

Archer Aviation Inc.

190 West Tasman Drive
San Jose, CA 95134

Attention: General Counsel
Email:   legal@archer.com

 

with copies (which shall not constitute notice) to:

 

Fenwick & West LLP

801 California Street

Mountain View, CA 94041

Attention: Patrick Grilli; Ran Ben-Tzur; Aman Singh

Email:   pgrilli@fenwick.com; rbentzur@fenwick.com; asingh@fenwick.com

 

or to such other address or addresses as the parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.

 

[SIGNATURE PAGES FOLLOW]

 

 

IN WITNESS WHEREOF, the Investor has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.

 

Name of Investor:

State/Country of Formation or Domicile:

 

By:
Name:
Title:
Date: _______________, 2024

 

Name in which Shares to be registered (if different):

 

Investor’s EIN: _______________

 

Business Address:

Mailing Address (if different):

 

 

Email Address:

 

Number of Shares subscribed for: [●] Shares of Class A Common Stock

 

Aggregate Subscription Amount: $[●]

 

Price Per Share: $[●]

 

Broker instructions for delivery of the shares via DWAC, including DTC number:

 

You must pay the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by Archer Aviation Inc. in the Closing Notice.

 

[Signature Page to Subscription Agreement]

 

 

IN WITNESS WHEREOF, the Company has accepted this Subscription Agreement as of the date set forth below.

 

ARCHER AVIATION INC.
By:
Name: Adam Goldstein
Title: Chief Executive Officer
Date: December 11, 2024

 

[Signature Page to Subscription Agreement]

 

 

SCHEDULE A

 

ELIGIBILITY REPRESENTATIONS OF THE INVESTOR

 

A.

QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the applicable subparagraphs):

 

¨

We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).

 

** OR **

 

B.

¨     INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs):

 

1.

We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.”

 

2.

We are not a natural person.

 

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”

 

¨

Any bank, registered broker or dealer, insurance company registered investment company, business development company, or small business investment company;

 

¨

Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;

 

¨

Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;

 

¨

Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;

 

¨

Any trust with assets in excess of $5,000,000, not formed to acquire the securities offered, whose purchase is directed by a sophisticated person; or

 

¨

Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests.

 

This page should be completed by the Investor
and constitutes a part of the Subscription Agreement

 

[Schedule A to Subscription Agreement]

 

 

Exhibit A

 

Form of Registration Rights Agreement

 

[Exhibit A to Subscription Agreement]

 

 

 

Exhibit 10.2

 

SUBSCRIPTION AGREEMENT

 

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into as of December 11, 2024, by and between Archer Aviation Inc., a Delaware corporation (the “Company”), and Stellantis N.V. (the “Investor”).

 

WHEREAS, the Company and the Investor are executing and delivering this Subscription Agreement in reliance upon the exemption from securities registration afforded by the provisions of Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”).

 

WHEREAS, subject to the terms and conditions of this Subscription Agreement, the Investor desires to subscribe for and purchase from the Company, and the Company desires to sell and issue to the Investor, in a private placement, that number of shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) set forth on the signature page hereto (the “Shares”) for a purchase price of $[ ] per share (the “Per Share Purchase Price”), for the aggregate purchase price set forth on the signature page hereto (the “Subscription Amount”).

 

WHEREAS, on or about the date of this Subscription Agreement, the Company is entering into separate subscription agreements in substantially the same form as this Subscription Agreement (the “Other Subscription Agreements” and, together with this Subscription Agreement, the “Subscription Agreements”) with certain other “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and certain other “accredited investors” (as defined in Rule 501(a) under the Securities Act) (the “Other Investors” and, together with the Investor, the “Investors”), pursuant to which the Other Investors have agreed, severally and not jointly, to purchase on or about December 13, 2024 an aggregate amount of up to [ ] shares of Class A Common Stock at the Per Share Purchase Price (the “Other Shares”).

 

WHEREAS, concurrently with the execution of this Subscription Agreement, the Company and the Investor are entering into a separate registration rights agreement (the “Registration Rights Agreement”).

 

WHEREAS, the Company and Investor have been negotiating the terms and conditions of a contract manufacturing agreement to be executed by Company and an affiliate of Investor to cover the contract manufacture of Company’s Midnight aircraft at Company’s Covington, Georgia facility (the “CMA”).

 

WHEREAS, the closing of the purchase of the Shares will be conditioned in part on the Company obtaining the required stockholder approval of the issuance of the Shares in accordance with the rules and regulations of the New York Stock Exchange by vote (the “Stockholder Approval”) at the annual meeting of stockholders of the Company to occur in 2025 (the “2025 Annual Meeting”).

 

WHEREAS, concurrently with the execution of this Subscription Agreement, the Company and the Other Investors are entering into a separate registration rights agreement (the “Other Investors Registration Rights Agreement”).

 

WHEREAS, the Company and the Other Investors are executing and delivering the Other Subscription Agreements in reliance upon the exemption from securities registration afforded by the provisions of Section 4(a)(2) of the Securities Act.

 

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, subject to the conditions set forth herein, and intending to be legally bound hereby, each of the Investor and the Company acknowledges and agrees as follows:

 

1.            Subscription. The Investor hereby irrevocably subscribes for and agrees to purchase from the Company, and the Company hereby agrees to issue and sell to the Investor upon payment of the Subscription Amount, the Shares on the terms and subject to the conditions provided for herein.

 

2.            Closing.

 

(a)            The closing of the purchase and sale of the Shares contemplated hereby (the “Closing”) shall occur on the tenth (10^th) business day following the receipt of the Stockholder Approval by the Company, or such other date as mutually agreed upon in writing (email being sufficient) by the Company and Investor (the “Closing Date”). At least five business days prior to the Closing Date, the Company shall provide written notice to the Investor (the “Closing Notice”) containing wire instructions for the payment of the Subscription Amount. At the Closing, the Investor shall deliver to the Company the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice. At the Closing and immediately after receiving the Subscription Amount, the Company shall issue and deliver the Shares to the Investor (registered in the name of the Investor or its nominee(s) in accordance with such Investor’s delivery instructions) or to a custodian designated by the Investor or its nominee(s), free and clear of any liens or other restrictions whatsoever (other than those arising from this Subscription Agreement and applicable securities laws). The Shares shall be delivered to the Investor (or such nominee(s) or custodian), via book entry record through Continental Stock Transfer & Trust Company (the “Transfer Agent”), and the Company shall cause the Transfer Agent to deliver to the Investor (or such nominee(s) or custodian), on or promptly after the Closing Date, a copy of the records of the Transfer Agent confirming the issuance and delivery of the Shares to the Investor (or such nominee(s) or custodian) on and as of the Closing Date. For purposes of this Subscription Agreement, “business day” shall mean any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close in the City of New York, New York.

 

(b)            Prior to or at the Closing, the Investor shall deliver to the Company a duly completed and executed Internal Revenue Service Form W-9 or W-8BEN-E, as applicable.

 

(c)            Prior to or at the Closing, the Company shall deliver to the Investor a certificate, duly executed by its secretary and dated as of the Closing Date, certifying as to (x) all resolutions adopted by the Company in connection with this Subscription Agreement and the Registration Rights Agreement, and the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Shares), and that (y) all such resolutions remain in full force and effect.

 

3.            Closing Conditions. The obligation of the Investor to consummate the purchase of Shares pursuant to this Subscription Agreement is subject to the satisfaction (or valid waiver by Investor in writing) of the following conditions that, at the Closing:

 

(a)            no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby;

 

 

(b)            the Company shall have, prior to the Closing Date, prepared and filed a supplemental listing application with the New York Stock Exchange (the “NYSE”) to list the Shares and the NYSE shall have conditionally authorized, subject to official notice of issuance, the listing of the Shares;

 

(c)            no suspension of the qualification of the shares of Class A Common Stock listed on the NYSE for any offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any such purposes, shall have occurred;

 

(d)            the CMA shall have been executed by all parties thereto;

 

(e)            the Company shall have furnished all required materials to the Transfer Agent (as defined below) to reflect the issuance of the Shares at the Closing;

 

(f)            all representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties contained in Sections 5(a), 5(b) and 5(c) and those representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined below), which representations and warranties shall be true in all respects) at and as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects, or in all respects, as applicable, as of such earlier date), and consummation of the Closing by the Company shall constitute a reaffirmation by the Company of each of the representations and warranties of the Company contained in this Subscription Agreement as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects, or in all respects, as applicable, as of such earlier date);

 

 

(g)            the Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing Date;

 

(h)            the delivery to Moelis & Company LLC or any of its respective affiliates (collectively, the “Placement Agent”) of an opinion of Company counsel, in a form reasonably acceptable to the Placement Agent;

 

(i)             since the date of this Subscription Agreement, no event or series of events shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect;

 

(j)             the Company shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Exhibit A (the “Registration Rights Agreement”) to the Investor;

 

(k)            there shall have been no amendment, waiver or modification to the Other Subscription Agreements that materially economically benefits any of the Other Investors unless the Investor has been offered substantially the same benefits; and

 

(l)             the Company shall have obtained the Stockholder Approval.

 

4.            Further Assurances. At and after the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties may reasonably deem to be practical and necessary to consummate the transactions contemplated by the Subscription Agreement.

 

5.            Company Representations and Warranties. The Company represents and warrants to the Investor that:

 

(a)            The Company is a corporation validly existing and in good standing under the laws of the State of Delaware, and the Company has the power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under the terms of the Transaction Documents (as defined below), including the issuance and sale of the Shares.

 

(b)            The Shares are duly authorized and, when issued and delivered to the Investor (or its nominee(s) or custodian, as applicable) after full payment thereof in accordance with the terms of this Subscription Agreement, the Shares will be validly issued, fully paid and non-assessable and will be delivered free and clear of any lien or restriction on transfer (other than those provided in this Subscription Agreement or in the Registration Rights Agreement), and will not have been issued (i) in violation of or subject to any preemptive or similar rights created under the Company’s Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws (the “Bylaws”) in effect as of the time the Shares are issued or under Delaware General Corporation Law, or (ii) in violation of applicable law.

 

 

(c)            Each of this Subscription Agreement, the Other Subscription Agreements, the Registration Rights Agreement and the Other Investors Registration Rights Agreement (the “Transaction Documents”) have been duly authorized, validly executed and delivered by a duly authorized representative of the Company. The signature of the Company on each of the Transaction Documents is genuine, and such signatory has been duly authorized to execute each of the Transaction Documents. Assuming that each applicable Transaction Document is validly executed and delivered by a duly authorized representative of the Investor or the applicable Other Investor, such Transaction Document constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally.

 

(d)            The execution, delivery and performance of this Subscription Agreement, including the issuance and sale by the Company of the shares of Class A Common Stock pursuant to the Transaction Documents are within the corporate powers of the Company, and do not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of any contract, indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the Company’s organizational documents, including, without limitation, its Amended and Restated Certificate of Incorporation or Bylaws, as may be applicable, or (iii) result in a breach, default or any other violation of any applicable statute or any judgment, order, rule or regulation of any court, other tribunal or any governmental commission, agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties (or that of any of its subsidiaries), except in the case of each of (i) and (iii) any such breach, default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(e)            As of their respective filing dates, all reports required to be filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) since September 17, 2021 (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder. None of the SEC Reports, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the 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 SEC with respect thereto as in effect at the time of filing 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 financial statements, to normal, year-end audit adjustments. A copy of each SEC Report is available to the Investor via the SEC’s EDGAR system. There are no material outstanding or unresolved comments in comment letters received by the Company (or any affiliate or subsidiary thereof) from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. As of the most recent determination date (as determined pursuant to Rule 405 of the Securities Act), the Company qualifies (as of December 13, 2024) as a well-known seasoned issuer.

 

 

(f)             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 other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Company of the Transaction Documents (including, without limitation, the issuance of the shares of Class A Common Stock pursuant to the Subscription Agreements and the Other Subscription Agreements), other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, (iii) the filings required in accordance with Section 10 of this Subscription Agreement, and (iv) those required by the NYSE.

 

(g)            As of the date hereof, the authorized share capital of the Company consists of 1,010,000,000 shares of capital stock, consisting of (i) 1,000,000,000 shares of common stock, including (A) 700,000,000 shares of Class A Common Stock and (B) 300,000,000 shares of the Company’s Class B Common Stock, par value $0.0001 per share (the “Class B Common Stock”) and (ii) 10,000,000 shares of Company’s preferred stock, $0.0001 par value per share (“Preferred Stock”). As of close of business on the date immediately preceding the date hereof (the “Measurement Time”), (i) 401,620,292 shares of Class A Common Stock and 36,110,992 shares of Class B Common Stock, respectively, were issued and outstanding, all of which are validly issued, fully paid and non-assessable and not subject to any preemptive rights, (ii) no shares of Class A Common Stock or Class B Common Stock are held in the treasury of the Company, (iii) 46,244,244 warrants are issued and outstanding at a weighted-average exercise price of $6.32 per share, and (iv) no shares of Preferred Stock were issued and outstanding. Between the Measurement Time and the date hereof, the Company has not issued, or agreed to issue, any shares of Class A Common Stock, Class B Common Stock or Preferred Stock, other than (i) any issuances to the Other Investors or their respective affiliates pursuant to the Other Subscription Agreements or the Investor or its affiliates pursuant to this Subscription Agreement and (ii) the issuance of shares of Class A Common Stock in the ordinary course of business in connection with the exercise of warrants or to service providers pursuant to the Company’s 2019 Equity Incentive Plan, 2021 Amended and Restated Equity Incentive Plan and 2021 Employee Stock Purchase Plan. As of the date hereof, except as set forth above, pursuant to the Other Subscription Agreements or the Transaction Documents, and pursuant to the Company’s 2021 Amended and Restated Equity Incentive Plan and 2019 Equity Incentive Plan, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company any shares of Class A Common Stock or other equity interests in the Company (collectively, “Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests. There are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Shares or the shares of Class A Common Stock to be issued pursuant to any Other Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Closing.

 

(h)            As of the date hereof, the Company has not received any written communication from a governmental authority that seeks to enjoin the transactions contemplated by the Transaction Documents.

 

 

(i)             Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by the Company to the Investor and such Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.

 

(j)             Neither the Company nor any person acting on its behalf has offered the Shares by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act.

 

(k)            Other than the Other Subscription Agreements, the Company has not entered into any side letter or similar agreement with any Other Investor or in connection with such Other Investor’s direct or indirect investment in the Company. Except for any alternative settlement procedures, eligibility for qualified purchasers to invest, and other than terms particular to the regulatory requirements of such Other Investors or its affiliates or related funds, no Other Subscription Agreement includes terms and conditions that are materially more favorable to any such Other Investor than the terms and conditions applicable to the Investor hereunder, and such Other Subscription Agreements reflect the same Per Share Purchase Price. The Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement.

 

(l)             As of the date hereof, the issued and outstanding shares of Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE. There is no suit, action, proceeding or investigation pending or, to the Company’s knowledge, threatened against the Company (or any controlled affiliate or subsidiary thereof) by the NYSE or the SEC, including with respect to any intention by such entity to deregister such shares of Class A Common Stock or prohibit or terminate the listing of such shares of Class A Common Stock on the NYSE, excluding, for the purposes of clarity, the customary periodic review of certain periodic reports filed by the Company with the SEC. The Company has taken no action that would be reasonably expected to terminate, or lead to the termination or deregistration of such shares of Class A Common Stock under the Exchange Act within a reasonable period after Closing.

 

(m)           Except as previously and expressly disclosed in the SEC Reports or as otherwise disclosed to the Investors, there is no material (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or threatened in writing against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company. The Company has not received any written communication from a governmental authority that alleges that the Company is not in compliance with, or is in default or violation of, any applicable law, except where such non-compliance, default or violation would not be reasonably expected to have, individually or in the aggregate, (i) a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole or (ii) a material adverse effect on the performance by the Company of its obligations under this Subscription Agreement (a “Material Adverse Effect”).

 

(n)            The Company is not under any obligation to pay any broker’s or finder’s fee or commission (or similar fee) in connection with the sale of the Shares or the Other Shares, other than to the Placement Agent. The Company is solely responsible for the payment of any fees or commissions of the Placement Agent. None of the Company nor its affiliates or subsidiaries have taken any action which could result in the Investor being required to pay any such fee or commission.

 

 

(o)            The Company is not and has not been in the past twelve (12) months an “investment company” or required to register as an “investment company,” in each case within the meaning of the Investment Company Act of 1940, as amended.

 

(p)            None of the Company, its subsidiaries nor, to the Company’s knowledge, any of its affiliates or any person acting on its behalf has, directly or indirectly, at any time within the applicable period set forth in Rule 152 promulgated under the Securities Act, made any offers or sales of any security or solicited any offers to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under the Securities Act in connection with the sale by the Company of the Shares as contemplated hereby or (ii) cause the sale of the Shares pursuant to this Subscription Agreement to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange on which any of the securities of the Company are listed or designated.

 

(q)            Neither the Company nor any of its officers or directors or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control, or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, including the United Kingdom (collectively, “Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, the non-government controlled areas of Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the United Kingdom, the European Union or any individual European Union member state; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). To the extent required by applicable law, the Company also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the United Kingdom, the European Union, or any individual European Union member state to the extent applicable to the Company.

 

(r)             The financial statements of the Company, as filed with the SEC, including the notes thereto and supporting schedules, fairly present the financial position and results of operations, stockholders’ equity and cash flows of the Company and its subsidiaries, on a consolidated basis, at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with accounting principles generally accepted in the United States (“GAAP”), applied on a consistent basis throughout the periods covered thereby; and the supporting schedules included therein present fairly the information required to be stated therein. Except as set forth in the financial statements of the Company, there are no off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons which would, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect.

 

 

(s)            To the knowledge of the Company, PricewaterhouseCoopers LLP, independent registered public accounting firm (the “Auditor”), whose report is filed with the SEC, is an independent registered public accounting firm as required by the Securities Act and the Regulations and the Public Company Accounting Oversight Board. The Auditor has not, during the periods covered by the financial statements it has audited, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.

 

(t)             The Company has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Company’s assets. The Company maintains, and has maintained, books and records of the Company in the ordinary course of business that are accurate and complete and properly reflect the revenues, expenses, assets and liabilities of the Company in all material respects. The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act applicable to the Company and is effective, and the Company is not aware of any material weaknesses in its internal control over financial reporting. The Company maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) under the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.

 

(u)            The Company has all approvals, licenses, permits and certificates (the “Material Permits”) that are required for it to own, lease or operate its properties and assets and to conduct its business as currently conducted, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company. Except as is not and would not reasonably be expected to be material to the Company, (i) each Material Permit is in full force and effect in accordance with its terms and (ii) no written notice of revocation, cancellation or termination of any Material Permit has been received by the Company. The Company is, and since the Company’s incorporation has been, in compliance in all material respects with the terms of all the Material Permits. To the Company’s knowledge, no event, circumstance, or state of facts has occurred which (with or without due notice or lapse of time or both) would reasonably be expected to result in the failure of the Company to be in compliance with the terms of the Material Permits.

 

 

(v)            The Company is, and since the Company’s incorporation has been, in compliance in all respects with all Environmental Laws. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company: (i) the Company has not received any written communication or notice or, to the Company’s knowledge, other communication from any governmental authority or any other person regarding any actual, alleged, or potential violation of, or liability under, any Environmental Laws; (ii) there is (and since the Company’s incorporation there has been) no proceeding or order pending or threatened in writing against the Company in respect to any Environmental Laws; and (iii) there has been no manufacture, release, treatment, storage, disposal, arrangement for disposal, transport or handling of, contamination by, or exposure of any Person to, any Hazardous Substances. “Environmental Laws” means all laws and orders concerning pollution, protection of the environment, or public or worker health or safety. “Hazardous Substances” means any material, substance or waste that is regulated by, or may give rise to a liability pursuant to, any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroalkyl substances, radiation, or radon.

 

(w)           Except as would not, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect, since the Company’s incorporation, neither the conduct of the business of the Company nor any of the Company’s products offered, marketed, licensed, provided, sold, distributed or otherwise exploited by the Company nor the design, development, manufacturing, reproduction, use, marketing, offer for sale, sale, importation, exportation, distribution, maintenance or other exploitation of any of such products infringes, constitutes or results from an unauthorized use or misappropriation of, dilutes or otherwise violates, or has infringed, constituted or resulted from an unauthorized use or misappropriation of, diluted or otherwise violated any Intellectual Property rights of any other person or entity. To the Company’s knowledge, since the Company’s incorporation, no person or entity is infringing, misappropriating, misusing, diluting or otherwise violating, or has infringed, misappropriated, misused, diluted or otherwise violated, any Intellectual Property owned by the Company, except as would not, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect. Since the Company’s incorporation, the Company has not made any written claim against any person or entity alleging any infringement, misappropriation, dilution or other violation of any such owned Intellectual Property, except any infringement, misappropriation, dilution or other violation of any such owned Intellectual Property as would not, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect. “Intellectual Property” means intellectual property rights protected, created or arising under the laws of the United States or any other jurisdiction or under any international convention, including all (i) patents and patent applications, patent disclosures, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention registrations, and any patents issuing on any of the foregoing and any reissues, reexaminations, substitutes, supplementary protection certificates, extensions of any of the foregoing; (ii) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing; (iii) copyrights and works of authorship, copyrightable works, database and design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing; (iv) trade secrets, know-how and confidential and proprietary information, including invention disclosures, inventions (whether patentable or not, and whether or not reduced to practice), ideas, formulae, source code, compositions, processes and techniques, methods, methodologies, algorithms, research and development information, drawings, specifications, architectures, designs, plans, proposals, technical data, financial and marketing plans and customer and supplier lists and information; (v) rights in or to software or other technology; and (vi) any other intellectual property rights protectable, arising under or associated with any of the foregoing, including those protected by any law anywhere in the world.

 

 

(x)            The Company has implemented commercially reasonable written policies relating to the processing of personal data as and to the extent required by applicable law.

 

(y)            The Company shall use its commercially reasonable efforts to seek and obtain the Stockholder Approval.

 

6.            Investor Representations and Warranties. The Investor represents and warrants to the Company that:

 

(a)            The Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor 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) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information set forth on Schedule A). The Investor is not an entity formed for the specific purpose of acquiring the Shares.

 

(b)            The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, and that the Shares have not been registered under the Securities Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdiction of the United States. The Investor acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act. The Investor acknowledges that it has been advised to consult legal, tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Shares.

 

 

(c)            The Investor acknowledges and agrees that the book-entry position representing the Shares will bear or reflect, as applicable, the following legend (provided that such legend shall be subject to removal in accordance with this Subscription Agreement and the Registration Rights Agreement):

 

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR (B) AN OPINION OF COUNSEL THAT SUCH SALE, OFFER FOR SALE, TRANSFER, PLEDGE OR DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.”

 

(d)            The Investor acknowledges and agrees that the Investor is purchasing the Shares from the Company. The Investor further acknowledges that there have been no representations, warranties, covenants and agreements made to the Investor, by or on behalf of the Company and by any control person, officer, director, employee, agents or representative of the Company, or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company expressly set forth in (i) Section 5 of this Subscription Agreement, or (ii) the Registration Rights Agreement.

 

(e)            The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares, including information about the Company, its subsidiaries and their respective businesses. Without limiting the generality of the foregoing, the Investor acknowledges that it has access to the SEC Reports. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. However, neither any such inquiries, nor any due diligence investigation conducted by the Investor or any of the Investor’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect the Investor’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement.

 

(f)            The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any form of general solicitation or general advertising in violation of the Securities Act. The Investor acknowledges that, in making its investment decision to purchase the Shares, it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or entity (including, without limitation, the Company, the Placement Agent and any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives), other than the representations and warranties of the Company contained in (i) Section 5 of this Subscription Agreement or (ii) the Registration Rights Agreement.

 

 

(g)            The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision. The Investor will not look to the Placement Agent for all or part of any such loss or losses the Investor may suffer and is able to sustain a complete loss on its investment in the Shares. The Investor acknowledges that the Investor shall be responsible for any of the Investor’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company, nor any of its advisors or representatives, has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Subscription Agreement.

 

(h)            Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in the Company. The Investor acknowledges specifically that a possibility of total loss exists.

 

(i)             The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment.

 

(j)             The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

 

(k)            The execution, delivery and performance by the Investor of this Subscription Agreement and the Registration Rights Agreement are within the corporate powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and will not violate any provisions of the Investor’s organizational documents. The signature of the Investor on each of this Subscription Agreement and the Registration Rights Agreement is genuine, and the signatory has been duly authorized to execute the same, and, assuming that this Subscription Agreement and the Registration Rights Agreement have been validly executed and delivered by a duly authorized representative of the Company, this Subscription Agreement and the Registration Rights Agreement constitute a legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with their terms except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally.

 

(l)             Neither the Investor nor any of its officers or directors or any other person acting in a similar capacity or carrying out a similar function, is (i) a person named on a Sanctions List; (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the non-government controlled areas of Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other country or territory embargoed or subject to comprehensive sanctions by the United States, the United Kingdom, the European Union or any individual European Union member state; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R Part 515; or (v) a Prohibited Investor. To the extent required by applicable law, the Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with sanctions administered by the United States, the United Kingdom, the European Union, or any individual European Union member state to the extent applicable to the Investor. The Investor further represents that the funds held by the Investor and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor.

 

 

(m)           The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law

 

(n)            On the Closing Date, the Investor will have sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

 

(o)            The Investor further acknowledges that the Investor has not relied upon the Placement Agent in connection with the Investor’s due diligence review of the offering of the Shares and the Company. The Investor acknowledges and agrees that (i) it has been informed that the Placement Agent is acting solely as placement agent in connection with the transactions contemplated by this Subscription Agreement (the “Transaction”) and is not acting as an underwriter or in any other capacity in connection with the Transaction and is not and shall not be construed as a fiduciary for the Investor in connection with the Transaction, (ii) it has not relied on the Placement Agent in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referenced herein, (iii) it has not relied on any investigation that the Placement Agent, any of its affiliates or any other person acting on their behalf has conducted with respect to the Shares or the Company or any information contained in any research reports prepared by the Placement Agent or any of its affiliates, (iv) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice, including without limitation financial advice, or recommendation in connection with the Transaction, in each case, to the Investor, (v) the Placement Agent has not solicited any action from the Investor with respect to the offer and sale of the Shares, (vi) the Placement Agent will have no responsibility to the Investor with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, condition (financial and otherwise), management, operations, properties or prospects of the Company or the Transaction and (vii) the Placement Agent shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor), whether in contract, tort or otherwise, to the Investor, or to any person claiming through the Investor, in respect of the Transaction. The Investor further acknowledges that the Placement Agent is acting as financial advisor to the Company in connection with the Transaction, and that the Placement Agent may receive fees both for their placement agent services and financial advisory services.

 

 

(p)            No disclosure or offering document has been prepared by the Placement Agent in connection with the offer and sale of the Shares.

 

(q)            The Investor acknowledges that none of the Placement Agent, nor any of its respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to the Company or any of their subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by the Company, and do not make any representation or warranty with respect to the Company, the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by the Company.

 

(r)            The Investor acknowledges that (i) the Placement Agent may have acquired, or may acquire, nonpublic information with respect to the Company that is not known to the Investor and that may be material to a decision to enter into this transaction to purchase Shares (“Excluded Information”), and (ii) the Investor has determined to enter into the transaction to purchase the Shares notwithstanding its lack of knowledge of the Excluded Information.

 

(s)            The Investor acknowledges and agrees that it is not an underwriter within the meaning of Section 2(a)(11) of the Securities Act and that the purchase and sale of Shares hereunder meets the exemptions from filing under FINRA Rule 5123(b)(1).

 

7.            Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) the mutual written agreement of each party hereto to terminate this Subscription Agreement; or (b) the Investor’s notification to the Company in writing that it is electing to terminate this Subscription Agreement, provided that the Closing has not occurred on or prior to the Long Stop Date or any of the conditions to Closing set forth in Section 3 of this Subscription Agreement are not satisfied or waived, or are not capable of being satisfied, on or prior to the Long Stop Date and, as a result thereof, the transactions contemplated by this Subscription Agreement will not be and are not consummated on or prior to the Long Stop Date and provided further that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such willful breach. “Long Stop Date” means the earlier of (i) ten (10) business days following the 2025 Annual Meeting and (ii) July 15, 2025.

 

 

8.            Miscellaneous.

 

(a)            Neither this Subscription Agreement nor any rights that may accrue to the Investor hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned to another person other than (i) an assignment by the Investor of its rights, benefits and obligations hereunder to (A) any fund or other entity or account managed by the same investment manager or investment advisor as the Investor or an affiliate thereof or (B) any affiliate of the Investor, in each case, without prior written consent of the Company, or (ii) with the prior written consent of Company, provided that, if such transfer or assignment is prior to the Closing, such transferee or assignee, as applicable, executes a joinder to this Subscription Agreement or a separate subscription agreement in substantially the same form as this Subscription Agreement, including with respect to the Subscription Amount and other terms and conditions, provided that, in the case of any such transfer or assignment made without the prior written consent of the Company, as applicable, the Investor shall remain bound by its obligations under this Subscription Agreement in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of Shares contemplated hereby. Neither this Subscription Agreement nor any rights that may accrue to the Company hereunder or any of the Company’s obligations may be transferred or assigned without the prior written consent of the Investor. Consistent with the Investor’s representation and warranty to the Company that it is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act, the Investor agrees that it shall not sell, transfer, or assign the Shares, except in a manner consistent with the restrictions on transfer set forth in the Registration Rights Agreement.

 

(b)            The Company may request from the Investor such additional information as the Company may reasonably deem necessary to register the resale of the Shares and evaluate the eligibility of the Investor to acquire the Shares and the eligibility of the offering for an exemption from registration under the Securities Act, and the Investor shall provide such information as may reasonably be requested, to the extent readily available and to the extent consistent with its internal policies and procedures, provided, that the Company agrees to keep any such information provided by the Investor confidential, except as may be required by applicable law, rule, regulation or in connection with any legal proceeding or regulatory request. The Investor acknowledges that the Company may file a form of this Subscription Agreement with the SEC as an exhibit to a current or periodic report or a registration statement of the Company.

 

(c)            The Investor acknowledges that the Company will rely on the acknowledgments, understandings, agreements, representations, and warranties of the Investor contained in this Subscription Agreement. The Company acknowledges that the Investor will rely on the acknowledgments, understandings, agreements, representations, and warranties of the Company contained in this Subscription Agreement. The Investor and Company acknowledge and agree that the Placement Agent is a third-party beneficiary hereof and no consent, waiver, modification or amendment hereunder or hereof may be given or agreed to by the Investor or the Company without the Placement Agent’s consent. Prior to the Closing, the Investor agrees to promptly notify the Company and the Placement Agent if any of the acknowledgements, understandings, agreements, representations and warranties set forth in Section 6 above are no longer accurate in any material respect (other than those acknowledgements, understandings, agreements, representations and warranties qualified by materiality, in which case the Investor shall notify the Company and the Placement Agent if they are no longer accurate in any respect). The Investor acknowledges and agrees that each purchase by the Investor of Shares from the Company will constitute a reaffirmation of the acknowledgements, understandings, agreements, representations and warranties herein (as modified by any such notice) by the Investor as of the time of such purchase.

 

(d)            The Company, the Investor and the Placement Agent are each entitled to rely upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

 

(e)            Other than consummating the transactions contemplated hereunder, the Investor has not, nor has any Person acting on behalf of or pursuant to any understanding with such Investor, directly or indirectly executed, nor will the Investor or any Person acting on behalf of or pursuant to any understanding with such Investor, directly or indirectly, execute, any purchases or sales, including short sales, of the securities of the Company during the period commencing as of the time that such Investor was first informed by the Company or Placement Agent regarding the transactions contemplated hereby and ending upon the public announcement by the Company of the transactions contemplated hereunder. Notwithstanding the foregoing, in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’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 Shares covered by this Subscription Agreement.

 

(f)            This Subscription Agreement may not be modified, waived or terminated except by an instrument in writing, signed by each of the parties hereto. No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

 

(g)            This Subscription Agreement (including the schedule hereto) and the agreements contemplated hereby including the Registration Rights Agreement constitute the entire agreement of the parties with respect to the subject matter of said agreements, and said agreements supersede all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter thereof. This Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and permitted assigns.

 

(h)            Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.

 

(i)             If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect, provided that each party hereto intends that such invalid, illegal or unenforceable provision will be construed (or otherwise reformed) by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law.

 

 

(j)             This Subscription Agreement may be executed using manual or electronic signature, in one or more counterparts (including by electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement. “ELECTRONIC SIGNATURE” MEANS (A) THE SIGNING PARTY’S MANUAL SIGNATURE, CONVERTED BY THE SIGNING PARTY TO FACSIMILE OR INDUSTRY-ACCEPTED DIGITAL FORM (SUCH AS A .PDF FILE) AND RECEIVED FROM THE SIGNING PARTY’S CUSTOMARY EMAIL ADDRESS, CUSTOMARY FACSIMILE NUMBER, OR OTHER MUTUALLY AGREED-UPON AUTHENTICATED SOURCE; OR (B) THE SIGNING PARTY’S DIGITAL SIGNATURE EXECUTED USING A MUTUALLY AGREED-UPON DIGITAL SIGNATURE SERVICE PROVIDER, SUCH AS DOCUSIGN OR ADOBE SIGN, AND DIGITAL SIGNATURE PROCESS EACH PARTY TO THIS SUBSCRIPTION AGREEMENT (I) AGREES THAT IT WILL BE BOUND BY ITS OWN ELECTRONIC SIGNATURE, (II) ACCEPTS THE ELECTRONIC SIGNATURE OF EACH OTHER PARTY TO THIS SUBSCRIPTION AGREEMENT, AND (III) AGREES THAT SUCH ELECTRONIC SIGNATURES SHALL BE THE LEGAL EQUIVALENT OF MANUAL SIGNATURES.

 

(k)            The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise.

 

(l)             All of the representations and warranties contained in this Subscription Agreement shall survive the Closing. All of the covenants and agreements made by each party hereto in this Subscription Agreement shall survive the Closing.

 

(m)           THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE.

 

(n)            ALL LEGAL ACTIONS AND PROCEEDINGS ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT SHALL BE HEARD AND DETERMINED EXCLUSIVELY IN ANY DELAWARE CHANCERY COURT; PROVIDED, THAT IF JURISDICTION IS NOT THEN AVAILABLE IN THE DELAWARE CHANCERY COURT, THEN ANY SUCH LEGAL ACTION MAY BE BROUGHT IN ANY FEDERAL COURT LOCATED IN THE STATE OF DELAWARE OR ANY OTHER DELAWARE STATE COURT. THE PARTIES HERETO HEREBY (A)      IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS FOR THEMSELVES AND WITH RESPECT TO THEIR RESPECTIVE PROPERTIES FOR THE PURPOSE OF ANY ACTION ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT BROUGHT BY ANY PARTY HERETO, AND (B) AGREE NOT TO COMMENCE ANY ACTION RELATING THERETO EXCEPT IN THE COURTS DESCRIBED ABOVE IN DELAWARE, OTHER THAN ACTIONS IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE ANY JUDGMENT, DECREE OR AWARD RENDERED BY ANY SUCH COURT IN DELAWARE AS DESCRIBED HEREIN. EACH OF THE PARTIES FURTHER AGREES THAT NOTICE AS PROVIDED HEREIN SHALL CONSTITUTE SUFFICIENT SERVICE OF PROCESS AND THE PARTIES FURTHER WAIVE ANY ARGUMENT THAT SUCH SERVICE IS INSUFFICIENT. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION OR AS A DEFENSE, COUNTERCLAIM OR OTHERWISE, IN ANY ACTION ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, (A) ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE COURTS IN DELAWARE AS DESCRIBED HEREIN FOR ANY REASON, (B) THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM 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 (C) THAT (I) THE ACTION IN ANY SUCH COURT IS BROUGHT IN AN INCONVENIENT FORUM, (II) THE VENUE OF SUCH ACTION IS IMPROPER OR (III) THIS SUBSCRIPTION AGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH COURTS.

 

 

(o)            Notwithstanding any provision in this Subscription Agreement to the contrary, the Company shall pay the reasonable fees and expenses of Dickinson Wright PLLC, counsel for the Investor, in an amount not to exceed $50,000 in the aggregate. The Company shall pay such fees and expenses directly to Dickinson Wright PLLC pursuant to invoices issued therefor.

 

9.            Non-Reliance and Exculpation. Each of the Investor and the Company acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation or any control person, officer, director, employee, partner, agent or representative of the Company, the Placement Agent or the Investor, as applicable, other than (i) with respect to the Investor, the representations and warranties of the Company expressly contained in (x) Section 5 of this Subscription Agreement, or (y) the Registration Rights Agreement, and (ii) with respect to the Company the representations and warranties of Investor expressly contained in (x) Section 6 of this Subscription Agreement, or (y) the Registration Rights Agreement. For purposes of this Subscription Agreement, each of the Investor and the Company acknowledges and agrees that neither party shall be liable to the other party or to any of its respective affiliates for any other statement, representation, or warranty. The Investor acknowledges and agrees that none of (a) any Other Investor pursuant to this Subscription Agreement or any Other Subscription Agreement (including the Investor’s respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) or (b) except in the case of gross negligence, willful misconduct, or fraud, the Placement Agent, its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the foregoing shall have any liability to the Investor, or to any Other Investor, pursuant to, arising out of or relating to this Subscription Agreement or any Other Subscription Agreement, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or the Other Shares or with respect to any claim (whether in tort or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements, or omissions with respect to any information or materials of any kind furnished by the Company, the Placement Agent or any Non-Party Affiliate concerning the Company, the Placement Agents, any of their controlled affiliates, this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of the Company, any Placement Agent or any of the Company’s or any Placement Agent’s controlled affiliates or any family member of the foregoing.

 

 

10.            Subsequent Equity Sales. From the date of this Subscription Agreement until sixty (60) days after December 13, 2024, the Company shall not (A) issue any Equity Interests or securities convertible or exchangeable or exercisable for Equity Interests. Notwithstanding the foregoing, the provisions of this Section 10 shall not apply to (i) the issuance of shares of Class A Common Stock pursuant to the Other Subscription Agreements; (ii) the issuance of shares of Class A Common Stock to the Investor pursuant to that certain Subscription Agreement, dated August 8, 2024, between the Company and the Investor; (iii) the issuance of Class A Common Stock to the Investor pursuant to this Subscription Agreement; (iv) the issuance of shares of Equity Interests or securities convertible or exchangeable or exercisable for Equity Interests in connection with the provision of goods or services from suppliers or third-party service providers; (v) the issuance of shares of Class A Common Stock in connection with the Company’s planned contract manufacturing agreement with the Investor or its affiliates; (vi) the issuance of shares of Class A Common Stock pursuant to one or more “at the market” offerings; (vii) the issuance of Equity Interests upon the conversion, exercise or vesting of any securities of the Company outstanding on the date of this Subscription Agreement or outstanding pursuant to clause (viii) below or (viii) the issuance of any Equity Interests or securities convertible or exchangeable or exercisable for Equity Interests pursuant to any Company stock-based compensation plans.

 

11.            Press Releases. The Company shall, no later than 9:00 a.m. (New York time) on the first (1^st) business day after the date of this Subscription Agreement (or such earlier time as the parties agree to issue a press release), furnish or file with the SEC in a Current Report on Form 8-K or in a Quarterly Report on Form 10-Q (collectively, the “Disclosure Document”) disclosing the conditional issuance of the Shares subject to the Stockholder Approval and the issuance of the Other Shares, including the information required by Item 3.02 of Form 8-K, and, to the extent required under applicable law (as determined by the Company’s legal counsel), all material terms of the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements, a copy of the press release (if any), and, in the Company’s sole discretion, any other material, non-public information that the Company has provided to the Investor at any time prior to the filing of such Form 8-K or Quarterly Report on Form 10-Q, as applicable. From and after the disclosure of the Disclosure Document, to the knowledge of the Company, the Investor and its affiliates and their respective directors, officers, employees, agents or representatives shall not be in possession of any material, nonpublic information received from the Company or any of its officers, directors, employees, agents or representatives, and the Investor shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with the Company, the Placement Agent, or any of their affiliates in connection with the Transaction. All press releases or other public communications relating to the transactions contemplated hereby between the Company and the Investor, and the method of the release for publication thereof, shall be subject to the prior approval of both the Company and the Investor. The restriction in the third sentence of this Section 11 shall not apply to the extent, and only to the extent, that the public announcement is required by applicable securities law, any governmental authority with appropriate jurisdiction or applicable stock exchange rule; provided, that in such an event, the applicable party shall consult with the other party in advance as to its form, content and timing. Notwithstanding anything in this Subscription Agreement to the contrary, the Company shall not publicly disclose the name of the Investor or any of its affiliates or advisers, or include the name of the Investor or any of its affiliates or advisers in any press release or in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of the Investor, except (i) as required by the federal securities law or pursuant to other routine proceedings of regulatory authorities, (ii) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of any national securities exchange on which the Company s securities are listed for trading or (iii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 11, in which case for clauses (i)-(iii), the Company shall provide the Investor with prior written notice of such disclosure permitted under hereunder.

 

 

12.            Stock Splits, etc. If any change in the shares of the Company’s common stock shall occur between the date hereof and immediately prior to the Closing by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend, the number and type of Shares issued to the Investor and the Subscription Amount and the per-share purchase price of the Shares shall be appropriately adjusted to reflect such change.

 

13.            Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given: (i) when delivered, if delivered in person or by electronic mail (so long as such transmission does not generate an error message or notice of non-delivery); (ii) on the fifth (5^th) business day after dispatch by registered or certified mail; or (iii) on the next business day if transmitted by national overnight courier, in each case as follows (or at such other address for a party as shall be specified by like notice):

 

If to the Investor, to:

 

Stellantis N.V.
Taurusavenue 1
2132 LS Hoofddorp
The Netherlands

Attention: General Counsel
Email: giorgio.fossati@stellantis.com

 

If to the Company, to:

 

Archer Aviation Inc.

190 West Tasman Drive
San Jose, CA 95134

Attention: General Counsel
Email: legal@archer.com

 

with copies (which shall not constitute notice) to:

 

Fenwick & West LLP

801 California Street

Mountain View, CA 94041

Attention: Patrick Grilli; Ran Ben-Tzur; Aman Singh

Email: pgrilli@fenwick.com; rbentzur@fenwick.com; asingh@fenwick.com

 

or to such other address or addresses as the parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.

 

[SIGNATURE PAGES FOLLOW]

 

 

IN WITNESS WHEREOF, the Investor has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.

 

Name of Investor:

State/Country of Formation or Domicile:

 

By:
Name:
Title:

Date:                          , 2024

 

Name in which Shares to be registered (if different):

 

Investor’s EIN:                         

 

Business Address:

Mailing Address (if different):

 

Email Address:

 

Number of Shares subscribed for:                              Shares of Class A Common

 

Stock Aggregate Subscription Amount: $                     

 

Price Per Share: $                      

 

You must pay the Subscription Amount by wire transfer of United States dollars in immediately
available funds to the account specified by Archer Aviation Inc. in the Closing Notice.

 

[Signature Page to Subscription Agreement]

 

 

IN WITNESS WHEREOF, the Company has accepted this Subscription Agreement as of the date set forth below.

 

ARCHER AVIATION INC.
By:
Name:	Adam Goldstein
Title:	Chief Executive Officer
Date:	December 11, 2024

 

[Signature Page to Subscription Agreement]

 

 

SCHEDULE A

 

ELIGIBILITY REPRESENTATIONS OF THE INVESTOR

 

A.

QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the applicable subparagraphs):

 

We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).

 

** OR **

 

B.

INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs):

 

1.

We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.”

 

2.

We are not a natural person.

 

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”

 

¨

Any bank, registered broker or dealer, insurance company registered investment company, business development company, or small business investment company;

 

¨

Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;

 

¨

Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;

 

¨

Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;

 

¨

Any trust with assets in excess of $5,000,000, not formed to acquire the securities offered, whose purchase is directed by a sophisticated person; or

 

¨

Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests.

 

This page should be completed by the Investor
and constitutes a part of the Subscription Agreement

 

[Schedule A to Subscription Agreement]

 

 

Exhibit A

 

Form of Registration Rights Agreement

 

 

 

Exhibit 10.3

 

LOCK-UP AGREEMENT

 

                      , 2024

 

Re:           Archer Aviation Inc. --- Private Placement of Class A Common Stock

 

Ladies and Gentlemen:

 

The undersigned is an owner of shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) and/or shares of Class B common stock, par value $0.0001 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”), of Archer Aviation Inc., a Delaware corporation (the “Company”), or of securities convertible into or exchangeable or exercisable for shares of Common Stock. The Company is contemplating a proposed private placement (the “Private Placement”) of shares of Class A Common Stock pursuant to those certain Subscription Agreements, dated [·], 2024, by and among the Company and the investors identified therein (the “Investors” and such subscription agreements, the “Subscription Agreements”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Subscription Agreement. For purposes of clarity, the term “Investors” shall not include Stellantis N.V.

 

In consideration of the foregoing, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of the Company, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business on the later of (x) 60 days after the date hereof and (y) 30 days following the effective date of the registration statement registering the securities issued and sold in the Private Placement (such period, the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for, or exercise any right with respect to, the registration of any Lock-Up Securities or (4) publicly disclose the intention to do any of the foregoing.

 

The undersigned acknowledges and agrees that the foregoing precludes the undersigned or any of its affiliates from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. The undersigned further confirms that it has furnished the Company with the details of any transaction the undersigned, or any of its affiliates, is a party to as of the date hereof, which transaction would have been restricted by this Letter Agreement if it had been entered into by the undersigned during the Restricted Period. Notwithstanding the foregoing, the undersigned may:

 

 

(a)

transfer or dispose of the undersigned’s Lock-Up Securities:

 

(i)

as a bona fide gift or gifts, or for bona fide estate planning purposes,

 

(ii)

by will or intestacy,

 

(iii)

to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin),

 

(iv)

to a corporation, partnership, limited liability company or other entity of which the undersigned and/or one or more of the immediate family members of the undersigned are, directly or indirectly, the legal and beneficial owner of all of the outstanding equity securities or similar interests,

 

(v)

to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above,

 

(vi)

if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution or other transfer or distribution to general or limited partners, to members or shareholders of, or other holders of equity interests in, the undersigned,

 

(vii)

by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement,

 

(viii)

to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee,

 

(ix)

to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Company’s Registration Statement on Form S-1 (File No. 333-260121), filed with the Commission on October 17, 2021 (the “Registration Agreement”),

 

 

(x)

pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereof, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement,

 

(xi)

pursuant to any trading plan that is established pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that is in effect as of the date of this Letter Agreement, or

 

(xii)

as a sale or sales into the open market to raise funds for the payment of tax and remittance payments due as a result of the vesting or settlement of restricted stock units issued prior to the date of this Letter Agreement;

 

provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Company a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v) and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Exchange Act, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than (i) a filing on a Form 5 or any required Schedule 13F, Schedule 13G or Schedule 13G/A, in each case made after the expiration of the Restricted Period referred to above or (ii) a filing in the case of a transfer pursuant to clause (a)(i) required pursuant to Section 16(a) of the Exchange Act, provided any such filing shall state that such transfer is a bona fide gift and that such shares remain subject to the restrictions set forth herein), and (C) in the case of any transfer, disposition or distribution pursuant to clause (a)(vii), (viii), (ix) and (xii), it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer and (D) in the case of any transfer or disposition pursuant to clause (xi), any related filing under the Exchange Act, or other public announcement (whether voluntarily or otherwise), made during the Restricted Period shall clearly state that such transfer or disposition was made pursuant to a previously established trading plan meeting the requirements of Rule 10b5-1 under the Exchange Act;

 

 

(b)

exercise outstanding options, settle restricted stock units, or other equity awards or exercise warrants pursuant to plans or other equity compensation arrangements described in the Registration Statement; provided that any Lock-Up Securities received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement; and

 

(c)

establish trading plans pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Lock-Up Securities; provided that (1) such plans do not provide for the transfer of Lock-Up Securities during the Restricted Period and (2) no filing by any party under the Exchange Act or other public announcement shall be made voluntarily in connection with such trading plan.

 

If the undersigned is not a natural person, the undersigned represents and warrants that no single natural person, entity or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) beneficially owns, directly or indirectly, 50% or more of the common equity interests, or 50% or more of the voting power, in the undersigned.

 

In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.

 

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

 

The undersigned understands that, if the Subscription Agreements do not become effective by [·], 2024 or if the Subscription Agreements (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, the undersigned shall be released from all obligations under this Letter Agreement. The undersigned understands that the Investors are entering into the Subscription Agreements and proceeding with the Private Placement in reliance upon this Letter Agreement. This Letter Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.

 

	Very truly yours,
	[NAME OF STOCKHOLDER]
	By:	/s/
		Name:
		Title:

 

 

Exhibit 10.4

 

REGISTRATION RIGHTS AGREEMENT

 

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made as of December 11, 2024, by and among Archer Aviation, Inc., a Delaware corporation (the “Company”), and the Investors (each an “Investor,” and collectively, the “Investors,” and together with the Company, the “Parties”) named in those certain Subscription Agreements by and among the Company and the Investors, dated as of the date hereof (the “Subscription Agreements”). Any term used but not defined herein will have the meaning ascribed to such term in the Subscription Agreements. For the sake of clarity, the term “Investors” shall not include Stellantis N.V.

 

RECITALS

 

WHEREAS, this Agreement is being entered into in connection with those certain Subscription Agreements.

 

WHEREAS, in connection with the transactions contemplated by the Subscription Agreements, the Company is issuing to the Investors in a private placement, [·] shares (the “Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), at a per-share purchase price equal to $[·] for an aggregate purchase price of approximately [·] million dollars ($[·]).

 

WHEREAS, the Parties desire to enter into this Agreement to establish certain rights of the Investors with respect to the Shares.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties agree as follows:

 

1.             Definitions. For purposes of this Agreement:

 

1.1            “Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, is Controlled by, Controls or is under common Control with such specified Person.

 

1.2            “Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined under SEC Rule 405.

 

1.3            “Control” or “Controlled” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

 

1.4            “Effectiveness Deadline” means, with respect to the Registration Statement, the earlier of (a) the 45th calendar day following the Closing Date and (b) the fifth (5^th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review; provided, however, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next business day on which the SEC is open for business.

 

 

1.5            “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

1.6            “Form S-1” means such form of registration statement under the Securities Act as in effect on the date hereof or any successor form under the Securities Act subsequently adopted by the SEC.

 

1.7            “Form S-3” means such form of registration statement under the Securities Act as in effect on the date hereof or any successor form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.

 

1.8            “Person” means any individual, general partnership, limited partnership, limited liability company, limited liability partnership, joint venture, firm, corporation, association, incorporated organization, unincorporated organization, trust or other enterprise, or any governmental authority.

 

1.9            “Registrable Securities” means the Shares and any other equity security of the Company issued or issuable with respect to any such Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided however, that the Shares shall cease to be Registrable Securities when: (A) a Registration Statement with respect to the sale of the Shares shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged either in accordance with such Registration Statement or under SEC Rule 144; (B) such securities shall have been otherwise transferred, new certificates or book entry positions for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; or (D) such securities shall have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

 

1.10          “Registration Statement” means the Form S-1 or Form S-3 required to be filed pursuant to this Agreement, including (in each case) the prospectus, amendments and supplements to such registration statement or prospectus, including pre- and post-effective amendments, all exhibits thereto, and all materials incorporated by reference or deemed to be incorporated by reference in such registration statement.

 

1.11          “Restricted Securities” means the securities of the Company required to be notated with the legend set forth in Section 2.12(b) hereof.

 

1.12          “SEC” means the U.S. Securities and Exchange Commission.

 

1.13          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

1.14          “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act and any successor provision.

 

1.15          “SEC Rule 405” means Rule 405 promulgated by the SEC under the Securities Act and any successor provision.

 

1.16          “Selling Expenses” means all underwriting discounts, selling commissions, stock transfer taxes or similar fees or arrangement applicable to the sale of Registrable Securities, and fees and disbursements of counsel for the Investors.

 

 

2.              Registration. The Company covenants and agrees as follows:

 

2.1           Registration Statements.

 

(a)            Promptly following, but no later than five (5) days after, the Closing Date (the “Filing Deadline”), the Company shall prepare and file with the SEC a Registration Statement covering the resale of all of the Registrable Securities. Such Registration Statement shall also cover, to the extent allowable under the Securities Act (including Rule 416 of the Securities Act), such indeterminate number of additional shares of Class A Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement may include any number of shares of Class A Common Stock or other securities for the account of any other holder of shares of Class A Common Stock possessing registration rights, without the prior written consent of the Investors.

 

(b)            The Registration Statement referred to in Section 2.1(a) shall be on Form S-3 and, if the Company is a well-known seasoned issuer (“WKSI”) as of the filing date, the Registration Statement shall consist of an Automatic Shelf Registration Statement, or a prospectus supplement to an effective Automatic Shelf Registration Statement, that shall become effective upon filing with the SEC pursuant to Rule 462(e) of the Securities Act. In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on Form S-1 or such other form of registration statement as is available to the Company and (ii) so long as Registrable Securities remain outstanding, promptly following the date upon which the Company becomes eligible to use a Form S-3 to register the Registrable Securities for resale (the “Qualification Date”), but in no event more than ten (10) business days after the Qualification Date (the “Qualification Deadline”), the Company shall file a Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to a Form S--1) (a “Shelf Registration Statement”); provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time as a Shelf Registration Statement covering the Registrable Securities has been declared effective by the SEC.

 

(c)            If at any time following the filing of a Shelf Registration Statement when the Company is required to re-evaluate its Form S-3 eligibility or WKSI status, the Company determines that it is not eligible to register the Registrable Securities on Form S-3 or is not a WKSI, the Company shall use its reasonable best efforts to (i) as promptly as possible but in no event more than ten (10) business days after such determination: (A) if the Shelf Registration Statement is an Automatic Shelf Registration Statement, post-effectively amend the Automatic Shelf Registration Statement to a Shelf Registration Statement that is not automatically effective or file a new Shelf Registration Statement on Form S-3, or (B) if the Company is not eligible at such time to file a Shelf Registration Statement on Form S-3, post-effectively amend the Shelf Registration Statement to a Shelf Registration Statement on Form S-1 or file a new Shelf Registration Statement on Form S-1; (ii) have such post-effective amendment or Shelf Registration Statement declared effective by the SEC; and (iii) keep such Shelf Registration Statement effective during the period during which such Shelf Registration Statement is required to be kept effective in accordance with this Agreement.

 

(d)            The Company shall prepare and file a supplemental listing application with the New York Stock Exchange (“NYSE”) (or such other national securities exchange on which the Class A Common Stock is then listed and traded) to list the Shares covered by a Registration Statement and shall use commercially reasonable efforts to have such Shares approved for listing on the NYSE (or such other national securities exchange on which the Class A Common Stock is then listed and traded) by the effective date of such Registration Statement.

 

 

(e)            The Investor shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Registrable Securities, except the restrictions on transfer set forth in Section 2.12 below or otherwise pursuant to the requirements of the Securities Act.

 

2.2           Expenses.

 

(a)            The Company will pay all expenses associated with the filing of any Registration Statement, including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities laws and listing fees, but excluding discounts, commissions and fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Registrable Securities being sold. It is acknowledged by the Investors that each Investor shall bear all incremental Selling Expenses relating to the resale of Registrable Securities, including but not limited to any underwriters’ commissions and discounts, brokerage fees, underwriting marketing costs and all fees and expenses of any legal counsel representing such Investor.

 

2.3           Effectiveness.

 

(a)            The Company shall use reasonable best efforts to cause the Registration Statement to be declared effective as soon as practicable after filing, but no later than the Effectiveness Deadline (it being agreed that if the Company is a WKSI as of the filing date, the Registration Statement shall be an Automatic Shelf Registration Statement, or a prospectus supplement to an effective Automatic Shelf Registration Statement, that shall become effective upon filing with the SEC pursuant to Rule 462(e) of the Securities Act). As promptly as practicable and, in any event, within one (1) business day of any Registration Statement being declared effective, the Company shall notify the Investors by e-mail using the email addresses set forth on Schedule A hereto and, upon request by an Investor, the Company shall simultaneously provide such Investor with copies of any related prospectus to be used in connection with the sale or other disposition of the securities covered thereby.

 

(b)            On not more than two (2) occasions and for not more than thirty (30) consecutive days or for a total of not more than sixty (60) total calendar days in any twelve (12)-month period, the Company may suspend the use of any prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related prospectus so that such Registration Statement or prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay or subject such Investor to any duty of confidentiality, (b) advise the Investors in writing to cease all sales under such Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable best efforts to terminate an Allowed Delay as promptly as practicable. Each Investor agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay pursuant to this Section 2.3(b) or (ii) the happening of an event pursuant to Section 2.5(j) hereof, such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement covering such Registrable Securities, until the Investor is advised by the Company that such dispositions may again be made, provided that each Investor may deliver shares to settle trades placed prior to receipt of such notice from the Company. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended securities to a transferee of an Investor in connection with any sale of Registrable Securities with respect to which the Investor has entered into a contract for sale, prior to such Investor’s receipt of the notice of an Allowed Delay and for which such Investor has not yet settled.

 

 

2.4           Rule 415; Cutback.

 

(a)            If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Investor to be named as an “underwriter,” the Company shall use reasonable best efforts to persuade the SEC that the offering contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 of the Securities Act and that none of the Investors is an “underwriter.” The Investors shall have the right to together select one legal counsel designated by the holders of a majority of the Registrable Securities then outstanding to review and oversee any registration or matters pursuant to this Section 2.4(a), including participation in any meetings or discussions with the SEC regarding the SEC’s position and to comment on any written submission made to the SEC with respect thereto. No such written submission with respect to this matter shall be made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2.4(a), the SEC refuses to alter its position, the Company shall (i) remove from such Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and other securities of the Company (together, the “Registered Securities”) to reduce the number of securities to be registered on the Registration Statement in order to include (A) first, the Registrable Securities held by the Investors and (B) second, the securities held by any other security holder of the Company and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registered Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415 under the Securities Act (collectively, the “SEC Restrictions”); provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor. Any cut-back imposed on the Investors pursuant to this Section 2.4(a) shall be allocated among the Investors on a pro rata basis and shall be applied first to any of the Registrable Securities of such Investor as such Investor shall designate, unless the SEC Restrictions otherwise require or provide or the Investors otherwise agree.

 

2.5           Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

 

(a)            use commercially reasonable efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the date on which no Registrable Securities covered by such Registration Statement are outstanding (the “Effectiveness Period”);

 

 

(b)            prepare and file with the SEC such amendments and supplements to all such Registration Statements, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such Registration Statement;

 

(c)            provide to Investors and their counsel, as far in advance as reasonably practicable and, in no case, less than one day before filing with the SEC, drafts of a Registration Statement or any other registration statement contemplated by this Agreement or any supplement or amendment thereto proposed to be filed; provide the Investors and counsel the opportunity to review all such documents proposed to be filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC); and not file any document to which the Investors or such counsel reasonably objects;

 

(d)            furnish to the Investors such numbers of copies of a prospectus, including a preliminary prospectus, and such other documents (including amendments and supplements to the Registration Statement) as the Investors may reasonably request in order to facilitate the disposition of such Registrable Securities;

 

(e)            use reasonable best efforts to register and qualify the securities covered by such Registration Statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by Investors; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

 

(f)            use reasonable best efforts to cause all such Registrable Securities covered by such Registration Statement to be listed on the NYSE or such other national exchange or trading system where the Class A Common Stock then trade;

 

(g)            provide Continental Stock Transfer & Trust Company, in its capacity as the transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement (the “Transfer Agent”) CUSIP number(s) for all such Registrable Securities, in each case not later than the effective date of such registration;

 

(h)            notify the Investors promptly (and in any event within two business days) after the Company receives notice thereof of the time when such Registration Statement has been declared effective or a supplement to any prospectus forming a part of such Registration Statement has been filed;

 

(i)             upon request and subject to appropriate confidentiality obligations, furnish to each Investor copies of any and all transmittal letters or other correspondences with the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange, as applicable) relating to the Registrable Securities;

 

(j)            promptly notify the Investors, at any time prior to the end of the Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the prospectus forming a part of such Registration Statement includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to such holder a supplement to or an amendment of such prospectus as may be necessary so that such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

 

(k)            after such Registration Statement becomes effective, notify the Investors of any request by the SEC that the Company amend or supplement such Registration Statement or prospectus;

 

(l)             cooperate with the Investors to facilitate the timely preparation of book-entry positions representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Class A Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement;

 

(m)            use its best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practical; and

 

(n)            subject to receipt from an Investor by the Company and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith, including, if required by the Transfer Agent, an opinion of the Company’s counsel, in a form reasonably to the Transfer Agent, to the effect that the removal of any restrictive legends in such circumstances as may be effected under the Securities Act, the Company shall remove any legend from the book entry position evidencing the Shares within a reasonable time, and in no event later than one business day, following the earliest of such time as the Shares (i) are subject to an effective Registration Statement, (ii) have been or are about to be sold or transferred pursuant to SEC Rule 144 or (iii) may be sold without restriction under SEC Rule 144, including, without limitation, any volume, information and manner of sale restrictions. If restrictive legends are no longer required for the Shares pursuant to the foregoing, the Company shall, in accordance with the provisions of this section and reasonably promptly, and in no event later than one business day, following any request therefor from an Investor accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the Transfer Agent irrevocable instructions, any authorizations, certificates, opinions or other directions required by the Transfer Agent which authorize and direct the Transfer Agent to transfer Registrable Securities without legend upon request by such Investor holding such Registrable Securities. The Company shall be solely responsible for the fees of the Transfer Agent associated with such issuance.

 

2.6           Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities that the Investors shall furnish to the Company such information regarding itself, such Registrable Securities held by it, the intended method of disposition of such securities and such other information as is reasonably required to effect the registration of the Investors’ Registrable Securities.

 

2.7           Delay of Registration. The Investors shall have no right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

 

 

2.8            Indemnification.

 

(a)            The Company agrees to indemnify, to the extent permitted by law, each Investor, its officers, directors, employees and agents and each person who controls such Investor (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Investor expressly for use therein.

  

(b)            In connection with any Registration Statement in which an Investor is participating, such Investor shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of 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 or omission is contained in any information or affidavit so furnished in writing by such Investor expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Investors, and the liability of each such Investor shall be in proportion to and limited to the net proceeds received by such Investor from the sale of Registrable Securities pursuant to such Registration Statement.

 

(c)            Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(d)            The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities. The Company and each Investor participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Investor’s indemnification is unavailable for any reason.

 

 

(e)            If the indemnification provided under Section 2.8 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Investor under this Section 2.8(e) shall be limited to the amount of the net proceeds received by such Investor in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 2.8(a), 2.8(b) and 2.8(c) above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.8(e) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 2.8(e). No person guilty of fraudulent misrepresentation under Section 11(f) of the Securities Act shall be entitled to contribution pursuant to this Section 2.8(e) from any person who was not guilty of such fraudulent misrepresentation.

 

2.9           Reports Under Exchange Act. With a view to making available to the Investors the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit Investors to sell securities of the Company to the public without registration, the Company shall:

 

(a)            use reasonable best efforts to make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144 at all times;

 

(b)            use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and

 

(c)            furnish to Investors, so long as an Investor owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144, the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so qualifies); (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company; and (iii) such other information as may be reasonably requested in availing Investor of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).

 

 

2.10         Limitations on Subsequent Registration Rights. Other than the registration rights granted in (i) the Registration Rights Agreement, dated August 10, 2023, by and among the Company and certain of its investors, (ii) the Registration Rights Agreement, dated as of January 3, 2023, by and among the Company and certain of its investors, (iii) the Amended and Restated Registration Rights Agreement, dated as of September 16, 2021, by and among the Company and certain of its investors, (iv) the subscription agreements with various investors, dated as of September 16, 2021 (in each case as previously filed by the Company with the SEC since September 17, 2021), (v) the Registration Rights Agreement, dated August 8, 2024, by and among the Company and certain of its investors, (vi) the Registration Rights Agreement, dated August 8, 2024, by and between the Company and Stellantis N.V. and (vii) the Registration Rights Agreement, dated December [_], 2024, by and between the Company and Stellantis N.V., which is in substantially the same form as this Agreement, the Company does not have, and shall not, without the prior written consent of the majority of the Registrable Securities then outstanding held by the Investors hereto, enter into, any agreement with any holder or prospective holder of any securities of the Company that provide or would provide to such holder registration rights and the terms of which would materially and adversely impact the rights of the Investors under this Agreement.

 

2.11         [Reserved.]

 

2.12         Restrictions on Transfer. The Investors agree:

 

(a)            Such Registrable Securities shall not be sold, pledged, or otherwise transferred except to a wholly-owned subsidiary of an Investor, without the prior written consent of the Company, and the Company shall not recognize and shall issue stop-transfer instructions to the Transfer Agent with respect to any such sale, pledge, or transfer, other than to a wholly owned subsidiary of an Investor, except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. For the avoidance of doubt, the foregoing does not restrict any sale, pledge, or transfer covered by a Registration Statement which is effective under the Securities Act or made pursuant to an applicable exemption from registration under the Securities Act. A transferring Investor will cause any proposed purchaser, pledgee, or transferee and the Registrable Securities held by such Investor to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement. Notwithstanding the foregoing, the Company shall not require any purchaser of shares pursuant to an effective Registration Statement to be bound by the terms of this Agreement.

 

(b)            Subject to the obligations of the Company in accordance with Section 2.5(l) each certificate, instrument, or book entry representing (i) the Registrable Securities, and (ii) any other securities issued in respect of the securities referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Section 2.12(c)) be notated with the following legend:

 

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR (B) AN OPINION OF COUNSEL THAT SUCH SALE, OFFER FOR SALE, TRANSFER, PLEDGE OR DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.

 

 

The Investors consent to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Section 2.12.

 

(c)            The holder of such Restricted Securities, by acceptance of ownership thereof, agrees to comply in all respects with the provisions of this Section 2. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a Registration Statement under the Securities Act covering the proposed transaction, the Investor thereof shall give notice to the Company of such Investor’s intention to effect such sale, pledge, or transfer. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at the Investor’s expense by either (i) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration under the Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto; or (iii) any other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities Act, whereupon an Investor of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by such Investor to the Company The Company will not require such a legal opinion or “no action” letter (x) in any sale in compliance with SEC Rule 144 (in which case an Investor shall not be required to provide the prior notice described above of such sale to the Company); or (y) in any transaction in which an Investor distributes Restricted Securities to an Affiliate of an Investor for no consideration; provided that, with respect to transfers under the foregoing clause (y), each transferee agrees in writing to be subject to the terms of this Section 2.12. Each certificate, instrument, or book entry representing the Restricted Securities transferred, except if such transfer is made pursuant to SEC Rule 144, shall be notated with the appropriate restrictive legend set forth in Section 2.12(b) except that such certificate, instrument, or book entry shall not be notated with such restrictive legend if, in the opinion of counsel for an Investor and the Company, such legend is not required in order to establish compliance with any provisions of the Securities Act.

 

3.             [Reserved.]

 

4.             Miscellaneous.

 

4.1           Entire Agreement. This Agreement and the Subscription Agreements, together with any documents, instruments and writings that are delivered pursuant hereto or referenced herein, constitutes the entire agreement and understanding of the Parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the Parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.

 

 

4.2           Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given: (i) when delivered, if delivered in person or by electronic mail (so long as such transmission does not generate an error message or notice of non-delivery); (ii) on the fifth (5th) business day after dispatch by registered or certified mail; or (iii) on the next business day if transmitted by national overnight courier, in each case addressed to and in accordance with the notice information set forth on Schedule A hereto.

 

4.3           Assignment; No Third-Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of each Investor hereunder may be freely assigned or delegated by such Investor holding Registrable Securities in conjunction with and to the extent of any transfer of Registrable Securities by any such Investor; provided, however, that an Investor may not assign or delegate its registration rights under Section 2, other than to an Affiliate of such Investor, without the prior written consent of the Company. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the Parties and the permitted assigns of the applicable holder of Registrable Securities or of any assignee of the applicable holder of Registrable Securities. This Agreement is not intended to confer any rights or benefits on any Persons that are not party hereto other than as expressly set forth in Section 2.8 and this Section 4.4. No assignment by any Party hereto of such Party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement).

 

4.4           Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart and such counterparts may be delivered by the Parties hereto via facsimile or electronic transmission.

 

4.5           Amendment; Waiver. This Agreement may be amended or modified, and any provision hereof may be waived, in whole or in part, at any time pursuant to an agreement in writing executed by the Company and the holders of a majority of the Registrable Securities outstanding at such time; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that materially and adversely affects one Investor, solely in his, her or its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Investors (in such capacity) shall require the consent of the Investor so affected. Any failure by any party at any time to enforce any of the provisions of this Agreement shall not be construed a waiver of such provision or any other provisions hereof.

 

4.6           Severability. In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties hereto.

 

 

4.7           Governing Law; Venue; Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All legal actions and proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the Delaware Chancery Court, then any such legal action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The Parties hereto hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any action arising out of or relating to this Agreement brought by any Party hereto, and (b) agree not to commence any action relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from 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 (c) that (i) the action in any such court is brought in an inconvenient forum, (ii) the venue of such action is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. The Parties hereto hereby waive any right to a jury trial in connection with any litigation pursuant to this Agreement and the transactions contemplated hereby.

  

4.8           Specific Performance. Each Party acknowledges and agrees that the other Parties hereto would be irreparably harmed and would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed by such first Party in accordance with their specific terms or were otherwise breached by such first Party. Accordingly, each Party agrees that the other Parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such Party is entitled at law or in equity.

 

4.9           Effectiveness. This Agreement shall become effective as of the Closing (as defined in the Subscription Agreements) and only if such Closing occurs.

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

 

	COMPANY:
	ARCHER AVIATION INC.
	By:
		Name: Adam Goldstein
		Title: Chief Executive Officer

 

[Signature Page to Registration Rights Agreement]

 

 

	INVESTOR:
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

Schedule A

 

INVESTORS

 

Investor Name	Investor Mailing Address	Investor E-mail Address

 

 

Exhibit 10.5

 

REGISTRATION RIGHTS AGREEMENT

 

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made as of December 11, 2024, by and between Archer Aviation, Inc., a Delaware corporation (the “Company”), and Stellantis N.V. (the “Investor,” and together with the Company, the “Parties”). Any term used but not defined herein will have the meaning ascribed to such term in that certain Subscription Agreement, dated December 11, 2024, by and between the Company and the Investor.

 

RECITALS

 

WHEREAS, this Agreement is being entered into in connection with the Subscription Agreement.

 

WHEREAS, in connection with the transactions contemplated by the Subscription Agreement, the Company is issuing to the Investor in a private placement, [  ] shares (the “Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), at a per-share purchase price equal to $[      ] for an aggregate purchase price of approximately $[   ] million dollars ($[   ]).

 

WHEREAS, the Parties desire to enter into this Agreement to establish certain rights of the Investor with respect to the Shares.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties agree as follows:

 

1.             Definitions. For purposes of this Agreement:

 

1.1            “Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, is Controlled by, Controls or is under common Control with such specified Person.

 

1.2            “Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined under SEC Rule 405.

 

1.3            “Control” or “Controlled” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

 

1.4            “Effectiveness Deadline” means, with respect to the Registration Statement, the earlier of (a) the 45th calendar day following the Closing Date and (b) the fifth (5^th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review; provided, however, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next business day on which the SEC is open for business.

 

1.5            “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

 

1.6            “Form S-1” means such form of registration statement under the Securities Act as in effect on the date hereof or any successor form under the Securities Act subsequently adopted by the SEC.

 

1.7            “Form S-3” means such form of registration statement under the Securities Act as in effect on the date hereof or any successor form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.

 

1.8            “Person” means any individual, general partnership, limited partnership, limited liability company, limited liability partnership, joint venture, firm, corporation, association, incorporated organization, unincorporated organization, trust or other enterprise, or any governmental authority.

 

1.9            “Registrable Securities” means the Shares and any other equity security of the Company issued or issuable with respect to any such Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided however, that the Shares shall cease to be Registrable Securities when: (A) a Registration Statement with respect to the sale of the Shares shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged either in accordance with such Registration Statement or under SEC Rule 144; (B) such securities shall have been otherwise transferred, new certificates or book entry positions for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; or (D) such securities shall have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

 

1.10          “Registration Statement” means the Form S-1 or Form S-3 required to be filed pursuant to this Agreement, including (in each case) the prospectus, amendments and supplements to such registration statement or prospectus, including pre- and post-effective amendments, all exhibits thereto, and all materials incorporated by reference or deemed to be incorporated by reference in such registration statement.

 

1.11          “Restricted Securities” means the securities of the Company required to be notated with the legend set forth in Section 2.12(b) hereof.

 

1.12          “SEC” means the U.S. Securities and Exchange Commission.

 

1.13          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

1.14          “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act and any successor provision.

 

1.15          “SEC Rule 405” means Rule 405 promulgated by the SEC under the Securities Act and any successor provision.

 

 

1.16          “Selling Expenses” means all underwriting discounts, selling commissions, stock transfer taxes or similar fees or arrangement applicable to the sale of Registrable Securities, and fees and disbursements of counsel for the Investor.

 

2.             Registration. The Company covenants and agrees as follows:

 

2.1            Registration Statements.

 

(a)            Promptly following, but no later than ten (10) days after, the Closing Date (the “Filing Deadline”), the Company shall prepare and file with the SEC a Registration Statement covering the resale of all of the Registrable Securities. Such Registration Statement shall also cover, to the extent allowable under the Securities Act (including Rule 416 of the Securities Act), such indeterminate number of additional shares of Class A Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement may include any number of shares of Class A Common Stock or other securities for the account of any other holder of shares of Class A Common Stock possessing registration rights, without the prior written consent of the Investor.

 

(b)            The Registration Statement referred to in Section 2.1(a) shall be on Form S-3 and, if the Company is a well-known seasoned issuer (“WKSI”) as of the filing date, the Registration Statement shall consist of an Automatic Shelf Registration Statement, or a prospectus supplement to an effective Automatic Shelf Registration Statement, that shall become effective upon filing with the SEC pursuant to Rule 462(e) of the Securities Act. In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on Form S-1 or such other form of registration statement as is available to the Company and (ii) so long as Registrable Securities remain outstanding, promptly following the date upon which the Company becomes eligible to use a Form S-3 to register the Registrable Securities for resale (the “Qualification Date”), but in no event more than ten (10) business days after the Qualification Date (the “Qualification Deadline”), the Company shall file a Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to a Form S--1) (a “Shelf Registration Statement”); provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time as a Shelf Registration Statement covering the Registrable Securities has been declared effective by the SEC.

 

(c)            If at any time following the filing of a Shelf Registration Statement when the Company is required to re-evaluate its Form S-3 eligibility or WKSI status, the Company determines that it is not eligible to register the Registrable Securities on Form S-3 or is not a WKSI, the Company shall use its reasonable best efforts to (i) as promptly as possible but in no event more than ten (10) business days after such determination: (A) if the Shelf Registration Statement is an Automatic Shelf Registration Statement, post-effectively amend the Automatic Shelf Registration Statement to a Shelf Registration Statement that is not automatically effective or file a new Shelf Registration Statement on Form S-3, or (B) if the Company is not eligible at such time to file a Shelf Registration Statement on Form S-3, post-effectively amend the Shelf Registration Statement to a Shelf Registration Statement on Form S-1 or file a new Shelf Registration Statement on Form S-1; (ii) have such post-effective amendment or Shelf Registration Statement declared effective by the SEC; and (iii) keep such Shelf Registration Statement effective during the period during which such Shelf Registration Statement is required to be kept effective in accordance with this Agreement.

 

 

(d)            Subject to the Company receiving the Stockholder Approval at the 2025 Annual Meeting, the Company shall prepare and file a supplemental listing application with the New York Stock Exchange (“NYSE”) (or such other national securities exchange on which the Class A Common Stock is then listed and traded) to list the Shares covered by a Registration Statement and shall use commercially reasonable efforts to have such Shares approved for listing on the NYSE (or such other national securities exchange on which the Class A Common Stock is then listed and traded) by the effective date of such Registration Statement.

 

(e)            The Investor shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Registrable Securities, except the restrictions on transfer set forth in Section 2.12 below or otherwise pursuant to the requirements of the Securities Act.

 

2.2            Expenses.

 

(a)            The Company will pay all expenses associated with the filing of any Registration Statement, including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities laws and listing fees, but excluding discounts, commissions and fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Registrable Securities being sold. It is acknowledged by the Investor that the Investor shall bear all incremental Selling Expenses relating to the resale of Registrable Securities, including but not limited to any underwriters’ commissions and discounts, brokerage fees, underwriting marketing costs and all fees and expenses of any legal counsel representing the Investor.

 

2.3            Effectiveness.

 

(a)            The Company shall use reasonable best efforts to cause the Registration Statement to be declared effective as soon as practicable after filing, but no later than the Effectiveness Deadline (it being agreed that if the Company is a WKSI as of the filing date, the Registration Statement shall be an Automatic Shelf Registration Statement, or a prospectus supplement to an effective Automatic Shelf Registration Statement, that shall become effective upon filing with the SEC pursuant to Rule 462(e) of the Securities Act). As promptly as practicable and, in any event, within one (1) business day of any Registration Statement being declared effective, the Company shall notify the Investor by e-mail using the email addresses set forth on Schedule A hereto and, upon request by the Investor, the Company shall simultaneously provide the Investor with copies of any related prospectus to be used in connection with the sale or other disposition of the securities covered thereby.

 

 

(b)            On not more than two (2) occasions and for not more than thirty (30) consecutive days or for a total of not more than sixty (60) total calendar days in any twelve (12)-month period, the Company may suspend the use of any prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related prospectus so that such Registration Statement or prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify the Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material non-public information giving rise to an Allowed Delay or subject the Investor to any duty of confidentiality, (b) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable best efforts to terminate an Allowed Delay as promptly as practicable. The Investor agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay pursuant to this Section 2.3(b) or (ii) the happening of an event pursuant to Section 2.5(j) hereof, the Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement covering such Registrable Securities, until the Investor is advised by the Company that such dispositions may again be made, provided that the Investor may deliver shares to settle trades placed prior to receipt of such notice from the Company. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended securities to a transferee of the Investor in connection with any sale of Registrable Securities with respect to which the Investor has entered into a contract for sale, prior to such Investor’s receipt of the notice of an Allowed Delay and for which such Investor has not yet settled.

 

2.4            Rule 415; Cutback.

 

(a)            If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires the Investor to be named as an “underwriter,” the Company shall use reasonable best efforts to persuade the SEC that the offering contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 of the Securities Act and that the Investor is not an “underwriter.” The Investor shall have the right to together select one legal counsel designated by the holders of a majority of the Registrable Securities then outstanding to review and oversee any registration or matters pursuant to this Section 2.4(a), including participation in any meetings or discussions with the SEC regarding the SEC’s position and to comment on any written submission made to the SEC with respect thereto. No such written submission with respect to this matter shall be made to the SEC to which the Investor’s counsel reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2.4(a), the SEC refuses to alter its position, the Company shall (i) remove from such Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and other securities of the Company (together, the “Registered Securities”) to reduce the number of securities to be registered on the Registration Statement in order to include (A) first, the Registrable Securities held by the Investor and (B) second, the securities held by any other security holder of the Company and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registered Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415 under the Securities Act (collectively, the “SEC Restrictions”); provided, however, that the Company shall not agree to name the Investor as an “underwriter” in such Registration Statement without the prior written consent of the Investor.

 

2.5            Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

 

 

(a)            use commercially reasonable efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the date on which no Registrable Securities covered by such Registration Statement are outstanding (the “Effectiveness Period”);

 

(b)            prepare and file with the SEC such amendments and supplements to all such Registration Statements, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such Registration Statement;

 

(c)            provide to the Investor and its counsel, as far in advance as reasonably practicable and, in no case, less than two days before filing with the SEC, drafts of a Registration Statement or any other registration statement contemplated by this Agreement or any supplement or amendment thereto proposed to be filed; provide the Investor and its counsel the opportunity to review all such documents proposed to be filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC); and not file any document to which the Investor or its counsel reasonably objects;

 

(d)            furnish to the Investor such numbers of copies of a prospectus, including a preliminary prospectus, and such other documents (including amendments and supplements to the Registration Statement) as the Investor may reasonably request in order to facilitate the disposition of such Registrable Securities;

 

(e)            use reasonable best efforts to register and qualify the securities covered by such Registration Statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by Investor; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

 

(f)             use reasonable best efforts to cause all such Registrable Securities covered by such Registration Statement to be listed on the NYSE or such other national exchange or trading system where the Class A Common Stock then trade;

 

(g)            provide Continental Stock Transfer & Trust Company, in its capacity as the transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement (the “Transfer Agent”) CUSIP number(s) for all such Registrable Securities, in each case not later than the effective date of such registration;

 

(h)            notify the Investor promptly (and in any event within two business days) after the Company receives notice thereof of the time when such Registration Statement has been declared effective or a supplement to any prospectus forming a part of such Registration Statement has been filed;

 

(i)             upon request and subject to appropriate confidentiality obligations, furnish to the Investor copies of any and all transmittal letters or other correspondences with the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange, as applicable) relating to the Registrable Securities;

 

 

(j)             promptly notify the Investor, at any time prior to the end of the Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the prospectus forming a part of such Registration Statement includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to such holder a supplement to or an amendment of such prospectus as may be necessary so that such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

(k)            after such Registration Statement becomes effective, notify the Investor of any request by the SEC that the Company amend or supplement such Registration Statement or prospectus;

 

(l)             cooperate with the Investor to facilitate the timely preparation of book-entry positions representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Class A Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement;

 

(m)           use its best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practical; and

 

(n)            subject to receipt from the Investor by the Company and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith, including, if required by the Transfer Agent, an opinion of the Company’s counsel, in a form reasonably to the Transfer Agent, to the effect that the removal of any restrictive legends in such circumstances as may be effected under the Securities Act, the Company shall remove any legend from the book entry position evidencing the Shares within a reasonable time, and in no event later than five business days, following the earliest of such time as the Shares (i) are subject to an effective Registration Statement, (ii) have been or are about to be sold or transferred pursuant to SEC Rule 144 or (iii) may be sold without restriction under SEC Rule 144, including, without limitation, any volume, information and manner of sale restrictions. If restrictive legends are no longer required for the Shares pursuant to the foregoing, the Company shall, in accordance with the provisions of this section and reasonably promptly, and in no event later than five business days, following any request therefor from the Investor accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the Transfer Agent irrevocable instructions, any authorizations, certificates, opinions or other directions required by the Transfer Agent which authorize and direct the Transfer Agent to transfer Registrable Securities without legend upon request by the Investor holding such Registrable Securities. The Company shall be solely responsible for the fees of the Transfer Agent associated with such issuance.

 

2.6            Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities that the Investor shall furnish to the Company such information regarding itself, such Registrable Securities held by it, the intended method of disposition of such securities and such other information as is reasonably required to effect the registration of the Investor’s Registrable Securities.

 

 

2.7            Delay of Registration. The Investor shall have no right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

 

2.8            Indemnification.

 

(a)            The Company agrees to indemnify, to the extent permitted by law, the Investor, its officers, directors, employees and agents and each person who controls the Investor (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, except insofar as the same are caused by or contained in any information furnished in writing to the Company by the Investor expressly for use therein.

 

(b)            In connection with any Registration Statement in which the Investor is participating, the Investor shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of 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 or omission is contained in any information or affidavit so furnished in writing by the Investor expressly for use therein.

 

(c)            Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

 

(d)            The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities. The Company and the Investor participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or the Investor’s indemnification is unavailable for any reason.

 

(e)            If the indemnification provided under Section 2.8 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of the Investor under this Section 2.8(e) shall be limited to the amount of the net proceeds received by the Investor in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 2.8(a), 2.8(b) and 2.8(c) above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.8(e) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 2.8(e). No person guilty of fraudulent misrepresentation under Section 11(f) of the Securities Act shall be entitled to contribution pursuant to this Section 2.8(e) from any person who was not guilty of such fraudulent misrepresentation.

 

2.9            Reports Under Exchange Act. With a view to making available to the Investor the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit the Investor to sell securities of the Company to the public without registration, the Company shall:

 

(a)            use reasonable best efforts to make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144 at all times;

 

(b)            use reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and

 

 

(c)            furnish to the Investor, so long as the Investor owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144, the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so qualifies); (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company; and (iii) such other information as may be reasonably requested in availing Investor of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).

 

2.10          Limitations on Subsequent Registration Rights. Other than the registration rights granted in (i) the Registration Rights Agreement, dated August 10, 2023, by and among the Company and certain of its investors, (ii) the Registration Rights Agreement, dated as of January 3, 2023, by and among the Company and certain of its investors, (iii) the Amended and Restated Registration Rights Agreement, dated as of September 16, 2021, by and among the Company and certain of its investors, (iv) the subscription agreements with various investors, dated as of September 16, 2021 (in each case as previously filed by the Company with the SEC since September 17, 2021), (v) the Registration Rights Agreement, dated August 8, 2024, by and among the Company and certain of its investors, (vi) the Registration Rights Agreement, dated August 8, 2024, by and between the Company and the Investor, and (vii) the Registration Rights Agreement, dated December 11, 2024, by and among the Company and certain of its investors, which is in substantially the same form as this Agreement, the Company is not a party to, and will not (without the prior written consent of the majority of the Registrable Securities then outstanding held by the Investor hereto) enter into, any agreement with any holder or prospective holder of any securities of the Company that provide or would provide to such holder registration rights the terms of which would materially and adversely impact the rights of the Investor under this Agreement.

 

2.11          [Reserved.]

 

2.12          Restrictions on Transfer. The Investor agrees:

 

(a)            Such Registrable Securities shall not be sold, pledged, or otherwise transferred except to a wholly-owned subsidiary of the Investor, without the prior written consent of the Company, and the Company shall not recognize and shall issue stop-transfer instructions to the Transfer Agent with respect to any such sale, pledge, or transfer, other than to a wholly owned subsidiary of the Investor, except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. For the avoidance of doubt, the foregoing does not restrict any sale, pledge, or transfer covered by a Registration Statement which is effective under the Securities Act or made pursuant to an applicable exemption from registration under the Securities Act. The Investor will cause any proposed purchaser, pledgee, or transferee and the Registrable Securities held by the Investor to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement. Notwithstanding the foregoing, the Company shall not require any purchaser of shares pursuant to an effective Registration Statement to be bound by the terms of this Agreement.

 

 

(b)            Subject to the obligations of the Company in accordance with Section 2.5(l) each certificate, instrument, or book entry representing (i) the Registrable Securities, and (ii) any other securities issued in respect of the securities referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Section 2.12(c)) be notated with the following legend:

 

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR (B) AN OPINION OF COUNSEL THAT SUCH SALE, OFFER FOR SALE, TRANSFER, PLEDGE OR DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.

 

The Investor consents to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Section 2.12.

 

(c)            The holder of such Restricted Securities, by acceptance of ownership thereof, agrees to comply in all respects with the provisions of this Section 2. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a Registration Statement under the Securities Act covering the proposed transaction, the Investor shall give notice to the Company of the Investor’s intention to effect such sale, pledge, or transfer. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at the Investor’s expense by either (i) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration under the Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto; or (iii) any other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities Act, whereupon the Investor of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by the Investor to the Company The Company will not require such a legal opinion or “no action” letter (x) in any sale in compliance with SEC Rule 144 (in which case the Investor shall not be required to provide the prior notice described above of such sale to the Company); or (y) in any transaction in which the Investor distributes Restricted Securities to an Affiliate of the Investor for no consideration; provided that, with respect to transfers under the foregoing clause (y), each transferee agrees in writing to be subject to the terms of this Section 2.12. Each certificate, instrument, or book entry representing the Restricted Securities transferred, except if such transfer is made pursuant to SEC Rule 144, shall be notated with the appropriate restrictive legend set forth in Section 2.12(b) except that such certificate, instrument, or book entry shall not be notated with such restrictive legend if, in the opinion of counsel for the Investor and the Company, such legend is not required in order to establish compliance with any provisions of the Securities Act.

 

 

3.             [Reserved.]

 

4.             Miscellaneous.

 

4.1            Entire Agreement. This Agreement and the Subscription Agreement, together with any documents, instruments and writings that are delivered pursuant hereto or referenced herein, constitutes the entire agreement and understanding of the Parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the Parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.

 

4.2            Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given: (i) when delivered, if delivered in person or by electronic mail (so long as such transmission does not generate an error message or notice of non-delivery); (ii) on the fifth (5th) business day after dispatch by registered or certified mail; or (iii) on the next business day if transmitted by national overnight courier, in each case addressed to and in accordance with the notice information set forth on Schedule A hereto.

 

4.3            Assignment; No Third-Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the Investor hereunder may be freely assigned or delegated by the Investor holding Registrable Securities in conjunction with and to the extent of any transfer of Registrable Securities by the Investor; provided, however, that the Investor may not assign or delegate its registration rights under Section 2, other than to an Affiliate of the Investor, without the prior written consent of the Company. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the Parties and the permitted assigns of the applicable holder of Registrable Securities or of any assignee of the applicable holder of Registrable Securities. This Agreement is not intended to confer any rights or benefits on any Persons that are not party hereto other than as expressly set forth in Section 2.8 and this Section 4.4. No assignment by any Party hereto of such Party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement).

 

4.4            Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart and such counterparts may be delivered by the Parties hereto via facsimile or electronic transmission.

 

4.5            Amendment; Waiver. This Agreement may be amended or modified, and any provision hereof may be waived, in whole or in part, at any time pursuant to an agreement in writing executed by the Company and the holders of a majority of the Registrable Securities outstanding at such time;. Any failure by any party at any time to enforce any of the provisions of this Agreement shall not be construed a waiver of such provision or any other provisions hereof.

 

 

4.6            Severability. In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties hereto.

 

4.7            Governing Law; Venue; Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All legal actions and proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the Delaware Chancery Court, then any such legal action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The Parties hereto hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any action arising out of or relating to this Agreement brought by any Party hereto, and (b) agree not to commence any action relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from 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 (c) that (i) the action in any such court is brought in an inconvenient forum, (ii) the venue of such action is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. The Parties hereto hereby waive any right to a jury trial in connection with any litigation pursuant to this Agreement and the transactions contemplated hereby.

 

4.8            Specific Performance. Each Party acknowledges and agrees that the other Parties hereto would be irreparably harmed and would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed by such first Party in accordance with their specific terms or were otherwise breached by such first Party. Accordingly, each Party agrees that the other Parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such Party is entitled at law or in equity.

 

4.9            Effectiveness. This Agreement shall become effective as of the Closing (as defined in the Subscription Agreement) and only if such Closing occurs.

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

 

	COMPANY:
	ARCHER AVIATION INC.
	By:
		Name:	Adam Goldstein
		Title:	Chief Executive Officer

 

[Signature Page to Registration Rights Agreement]

 

 

	INVESTOR:
	STELLANTIS N.V.
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

Schedule A

 

INVESTOR

 

Investor Name	Investor Mailing Address	Investor E-mail Address

 

Schedule A-1

 

 

Exhibit 99.1

 

Archer Announces Strategic Partnership With Anduril to Develop Hybrid VTOL Military Aircraft; Raises An Additional $430M

 

 

 

	-	Anduril Industries Inc. (“Anduril”) and Archer Aviation Inc. (“Archer”) announced today that they have entered into an exclusive agreement to jointly develop a next-generation aircraft for defense applications.
	-	The companies’ first product from this partnership is planned to be a hybrid-propulsion, vertical-take-off-and landing (“VTOL”) aircraft that will target a potential program of record from the United States Department of Defense (“DOD”)
	-	To help fund Archer Defense and for other general corporate purposes, Archer raised $430M in additional equity capital today, further solidifying Archer’s financial position, with participation from longtime strategic partners Stellantis and United Airlines as well as new institutional investors, including Wellington Management and Abu Dhabi investment holding company 2PointZero, a subsidiary of UAE’S largest listed entity, IHC

 

SANTA CLARA, CA, December 12, 2024—Today, Anduril and Archer (NYSE: ACHR) announced an exclusive partnership to jointly develop a hybrid VTOL aircraft for critical defense applications targeting a potential program of record from the DOD.

 

With Archer’s ability to rapidly develop advanced VTOL aircraft using existing commercial parts and supply chains and Anduril's deep expertise in artificial intelligence, missionization, and systems integration, the partnership will accelerate speed to market for critical hybrid VTOL capabilities at a fraction of the cost of more traditional alternatives.

 

 

Archer’s efforts on this project will be part of its new Archer Defense program. To support this initiative and for other general corporate purposes, Archer raised $430M in additional equity capital today, with participation from Stellantis, United Airlines, and new institutional investors, including Wellington Management and Abu Dhabi investment holding company 2PointZero, a subsidiary of UAE’S largest listed entity, IHC. Archer ended Q3’24 with $502M of cash and cash equivalents on its balance sheet and this raise brings Archer’s total capital raised to nearly $2B to date. Following this capital raise, and together with Archer's other announced financing arrangements, Archer believes it is now well-positioned with one of the sector's leading balance sheets with no near-term financing needs.

 

"Rapid innovation and scalable production are critical for maintaining technological superiority," said Shane Arnott, SVP of Engineering at Anduril. "Anduril and Archer share a common vision for advancing capabilities that meet urgent national security needs, and we look forward to partnering with Archer to bring advanced vertical lift aircraft to our customers."

 

Adam Goldstein, founder and CEO of Archer, said, “The Archer team has deep expertise in the rapid design, engineering, and production of next-generation vertical-lift aircraft. With Anduril by our side, and this new influx of capital, we will accelerate the development and deployment of advanced aerospace technologies at scale.”

 

Archer Defense will be led by its Head of Advanced Projects, Joseph Pantalone. Mr. Pantalone recently joined Archer and is a seasoned leader in military aviation with nearly 30 years of experience at Lockheed Martin and Sikorsky. He will draw from the continued support of Archer’s world-class Defense Advisory Board, which was formed in May of 2023 and is made up of highly decorated and distinguished retired military leaders.

 

Moelis & Company LLC acted as exclusive placement agent to Archer on this transaction.

 

About Archer

 

Archer is designing and developing the key enabling technologies and aircraft necessary to power the future of aviation. To learn more, visit www.archer.com.

 

About Anduril Industries

 

Anduril Industries is a defense technology company with the mission to transform US and allied military capabilities with advanced technology. Anduril utilizes advancements including AI, computer vision, sensor fusion, optics, and automation to solve complex national security challenges.

 

Archer Media Contacts

 

The Brand Amp - Archer@TheBrandAmp.com

Forward-Looking Statements

 

This press release contains forward looking statements regarding Archer’s future business plans and expectations and liquidity, including the pace at which Archer intends to design, develop, certify, conduct test flights, manufacture and commercialize its aircraft, its plans with respect to its strategic partnership with Anduril, including whether the projected program of record with the DOD will materialize and whether the parties aircraft will be selected, and Archer’s planned use of its capital and future need for additional capital. These forward-looking statements are only predictions and may differ materially from actual results due to a variety of factors. The risks and uncertainties that could cause actual results to differ from the results predicted are more fully detailed in Archer’s filings with the Securities and Exchange Commission, including its most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q, available at www.sec.gov. In addition, please note that any forward-looking statements contained herein are based on assumptions that Archer believes to be reasonable as of the date of this press release. Archer undertakes no obligation to update these statements as a result of new information or future events.

 

Source: Archer

Text: ArcherIR

 

 

v3.24.3

Cover	Dec. 11, 2024
Document Information [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Dec. 11, 2024
Entity File Number	001-39668
Entity Registrant Name	Archer Aviation Inc.
Entity Central Index Key	0001824502
Entity Tax Identification Number	85-2730902
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	190 West Tasman Drive
Entity Address, City or Town	San Jose
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	95134
City Area Code	650
Local Phone Number	272-3233
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Common Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	Class A common stock, par value $0.0001 per share
Trading Symbol	ACHR
Security Exchange Name	NYSE
Warrant [Member]
Document Information [Line Items]
Title of 12(b) Security	Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share
Trading Symbol	ACHR WS
Security Exchange Name	NYSE

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