Form S-1 PHOENIX MOTOR INC.

 

Exhibit 3.1

 

	Delaware	Page 1
	The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “PHOENIX MOTOR INC.”, FILED IN THIS OFFICE ON THE TWENTIETH DAY OF OCTOBER, A.D. 2020, AT 4:40 O'CLOCK P.M.

 

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State

 

3929882  8100		Authentication: 203905267
SR# 20207933737		Date: 10-21-20
You may verify this certificate online at corp.delaware.gov/authver.shtml

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 04:40 PM 10/20/2020
FILED 04:40 PM 10/20/2020
SR 20207933737 - File Number 3929882

 

CERTIFICATE OF INCORPORATION

 

OF

 

PHOENIX MOTOR INC.

 

THE UNDERSIGNED, for the purpose of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, does hereby execute this Certificate of Incorporation and does hereby certify as follows:

 

FIRST: The name of the corporation is Phoenix Motor Inc.(hereinafter called the “Corporation”).

 

SECOND: The registered office of the Corporation is to be located at 3411 Silverside Road, Tatnall Building, #104, in the City of Wilmington, in the County of New Castle, Delaware 19810. The name of its Registered Agent at such address is Corporate Creations Network Inc.

 

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

FOURTH: The name and mailing address of the incorporator is: Jaszick Maldonado, c/o Loeb & Loeb LLP, 345 Park Avenue, New York NY 10154.

 

FIFTH: The total number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, $0.0001 par value.

 

SIXTH: A Director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director of the Corporation, except to the extent that exculpation from liability is not permitted under the General Corporation Law of the State of Delaware as in effect at the time such liability is determined. No amendment or repeal of this paragraph shall apply to or have any effect on the liability or alleged liability of any Director of the Corporation for or with respect to any acts or omissions of such Director occurring

 

SEVENTH: In furtherance and not in imitation of the powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation; provided, however, that no By-Laws hereafter adopted by the Board of Directors or stockholders shall invalidate any prior act of the Directors which would have been valid if such By-Laws had not been adopted.

 

 

EIGHTH: The Corporation shall, to the maximum extent permitted from time to time under the law of the State of Delaware, indemnify and upon request advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was or has agreed to be a Director or officer of the Corporation or while a Director or officer is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees and expenses), judgments, fines, penalties and amounts paid in settlement incurred (and not otherwise recovered) in connection with the investigation, preparation to defend or defense of such action, suit, proceeding or claim; provided, however, that the foregoing shall not require the Corporation to indemnify or advance expenses to any person in connection with any action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any By-Law, agreement, vote of Directors or stockholders or otherwise and shall inure to the benefits of the heirs and legal representatives of such person. Any person seeking indemnification under this paragraph shall be deemed to have met the standard of conduct required for such indemnification unless the contrary shall be established. Any repeal or modification of the foregoing provisions of this paragraph shall not adversely affect any right or protection of a Director or officer of the Corporation with respect to any acts or omissions of such Director or officer occurring prior to such repeal or modification.

 

NINTH: In furtherance of and not in limitation of powers conferred by statute, it is further provided:

 

1.            Election of Directors need not be by written ballot unless the By-Laws of the Corporation so provide.

 

2.            Meetings of stockholders may be held within or without the State of Delaware, as the By Laws may provide.

 

3.           To the extent permitted by law, the books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation.

 

TENTH: Except as otherwise provided herein, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

IN WITNESS WHEREOF, the undersigned, being the incorporator herein before named, has executed this Certificate of Incorporation this 20^th day of October, 2019.

 

	/s/ Jaszick Maldonado
	Jaszick Maldonado, Incorporator

 

 

Exhibit 3.2 

 

Delaware

Page 1

The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “PHOENIX MOTOR INC.”, FILED IN THIS OFFICE ON THE THIRD DAY OF AUGUST, A.D. 2021, AT 12:28 O'CLOCK P.M.

 

		/s/ Jeffrey W. Bullock
		Jeffrey W. Bullock, Secretary of State
3929882  8100			Authentication: 203829029
SR# 20212874888			Date: 08-03-21
You may verify this certificate online at corp.delaware.gov/authver.shtml

 

 

State of Delaware
Secretary of State	CERTIFICATE OF AMENDMENT
Division of Corporations	OF
Delivered 12:28 PM 08/03/2021	CERTIFICATE OF INCORPORATION
FILED 12:28 PM 08/03/2021	OF
SR 20212874888 - File Number 3929882	PHOENIX MOTOR INC.

 

I, Xiaofeng Peng, being the Chief Executive Officer of Phoenix Motor Inc., a corporation existing under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:

 

FIRST:          The name of the Corporation is: Phoenix Motor Inc.

 

SECOND:   The certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on October 20, 2020 (the “Certificate of Incorporation”).

 

THIRD:        The Certificate of Incorporation is hereby amended by striking Article FIFTH thereof in its entirety and substituting in lieu thereof a new Article FIFTH which shall read in its entirety as follows:

 

“FIFTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is five hundred million (500,000,000) shares of which (i) four hundred fifty million (450,000,000) shares shall be common stock, par value $0.0001 per share (the “Common Stock”), and (ii) fifty million (50,000,000) shares shall be preferred stock, par value $0.0001 per share (the “Preferred Stock”). Shares of Preferred Stock may be issued from time to time in one or more series as may be established from time to time by resolution of the Board of Directors of the Corporation (the “Board of Directors”), each of which series shall consist of such number of shares and have such distinctive designation or title as shall be fixed by resolutions of the Board of Directors prior to the issuance of any shares of such series. Each such class or series of Preferred Stock shall have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated in such resolutions of the Board of Directors providing for the issuance of such series Preferred Stock. The Board of Directors is further authorized to increase or decrease (but not below the number of shares of such class or series then outstanding) the number of shares of any series subsequent to the issuance of shares of that series.”

 

FOURTH:    This Certificate of Amendment of Certificate of Incorporation has been duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law.

 

FIFTH:          Pursuant to a resolution of the Board of Directors and in accordance with Section 228 of the Delaware General Corporation Law, a written consent of the stockholders of the Corporation approved the amendment by a vote of the necessary number of shares required by statute.

 

 

IN WITNESS WHEREOF, the undersigned affirms that the statements made herein are true under the penalties of perjury, this 30 day of June, 2021.

 

	/s/ Xiaofeng Peng
	Xiaofeng Peng
	Chief Executive Officer

 

 

Exhibit 3.3

 

BYLAWS

 

OF

 

Phoenix Motor inc.

 

- A Delaware Corporation -

 

 

BY-LAWS

 

OF

 

Phoenix Motor inc.

 

ARTICLE I

OFFICES

 

SECTION 1. Principal Office. The registered office of the corporation shall be located in such place as may be provided from time to time in the Certificate of Incorporation.

 

SECTION 2. Other Offices. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or as the business of the corporation may require.

 

ARTICLE II

STOCKHOLDERS

 

SECTION 1. Annual Meetings. The annual meeting of the stockholders of the corporation shall be held wholly or partially by means of remote communication or at such place, within or without the State of Delaware, on such date and at such time as may be determined by the board of directors and as shall be designated in the notice of said meeting.

 

SECTION 2. Special Meetings. Special meetings of the stockholders for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be held wholly or partially by means of remote communication or at any place, within or without the State of Delaware, and may be called by resolution of the board of directors, or by the Chairman or the President.

 

SECTION 3. Notice and Purpose of Meetings. Written or printed notice of the meeting stating the place, day and hour of the meeting and, in case of a special meeting, stating the purpose or purposes for which the meeting is called, and in case of a meeting held by remote communication stating such means, shall be delivered not less than 10 nor more than 60 days before the date of the meeting, either personally, or by mail, or if prior consent has been received by a stockholder by electronic transmission, by or at the direction of the Chairman or the President, the Secretary, or the persons calling the meeting, to each stockholder of record entitled to vote at such meeting.

 

SECTION 4. Quorum. The holders of a majority of the shares of capital stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.

 

 

SECTION 5. Voting Process. If a quorum is present or represented, the affirmative vote of a majority of the shares of stock present or represented at the meeting, by ballot, proxy or electronic ballot, shall be the act of the stockholders unless the vote of a greater number of shares of stock is required by law, by the Certificate of Incorporation or by these by-laws. Each outstanding share of stock having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders. A stockholder may vote either in person, by proxy executed in writing by the stockholder or by his duly authorized attorney-in-fact, or by an electronic ballot from which it can be determined that the ballot was authorized by a stockholder or proxyholder. The term, validity and enforceability of any proxy shall be determined in accordance with the General Corporation Law of the State of Delaware.

 

SECTION 6. Written Consent of Stockholders Without a Meeting. Whenever the stockholders are required or permitted to take any action by vote, such action may be taken without a meeting, without prior notice and without a vote, if a written consent or electronic transmission, setting forth the action so taken, shall be signed or e-mailed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting called for such purpose.

 

ARTICLE III

DIRECTORS

 

SECTION 1. Powers. The business affairs of the corporation shall be managed by its board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these by-laws directed or required to be exercised or done by the stockholders. The board of directors may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation or these by-laws or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation.

 

SECTION 2. Number, Qualifications, Term. The board of directors shall consist of one or more members. The number of directors shall be fixed by the board of directors and may thereafter be changed from time to time by resolution of the board of directors. Directors need not be residents of the State of Delaware nor stockholders of the corporation.

 

SECTION 3. Vacancies. Vacancies and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify. A vacancy created by the removal of a director by the stockholders may be filled by the stockholders.

 

SECTION 4. Place of Meetings. Meetings of the board of directors, regular or special, may be held either within or without the State of Delaware.

 

 

SECTION 5. Regular Meetings. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board.

 

SECTION 6. Special Meetings. Special meetings of the board of directors may be called by the Chairman or the President or by the number of directors who then legally constitute a quorum. Notice of the time and place of all special meetings of the board of directors shall be orally or in writing, by telephone, including a voice messaging system or other system or technology designed to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other electronic means, during normal business hours, at least 24 hours before the date and time of the meeting. If notice is sent by U.S. mail, it shall be sent by first class mail, charges prepaid, at least three days before the date of the meeting. .

 

SECTION 7. Notice; Waiver. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting.

 

SECTION 8. Quorum. A majority of the directors then in office shall constitute a quorum for the transaction of business unless a greater number is required by law, by the Certificate of Incorporation or by these by-laws. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

 

SECTION 10. Action Without A Meeting. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing or by electronic transmission, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. In addition, meetings of the board may be held by means of conference telephone or voice communication as permitted by the General Corporation Law of the State of Delaware.

 

SECTION 11. Action. Except as otherwise provided by law or in the Certificate of Incorporation or these by-laws, if a quorum is present, the affirmative vote of a majority of the members of the board of directors will be required for any action.

 

SECTION 12. Removal of Directors. Subject to any provisions of applicable law, any or all of the directors may be removed by vote of the stockholders.

 

ARTICLE IV

COMMITTEES

 

SECTION 1. Designation of Committees. The board of directors may, by resolution adopted by a majority of the whole board, designate one or more committees, each of which shall, except as otherwise prescribed by law, have such authority of the board of directors as shall be specified in the resolution of the board designating such committee. The board of directors shall have the power at any time to change the membership of, to fill all vacancies in and to discharge any such committee, either with or without cause.

 

 

SECTION 4. Procedure; Meetings; Quorum. Committee meetings, of which no notice shall be necessary, may be held at such times and places as shall be fixed by resolution adopted by a majority of the members thereof. So far as applicable, the provisions of Article III of these by-laws relating to notice, quorum and voting requirements applicable to meetings of the board of directors shall govern meetings of any committee of the board. Each committee of the board of directors shall keep written minutes of its proceedings and circulate summaries of such written minutes to the board of directors before or at the next meeting of the board.

 

ARTICLE V

OFFICERS

 

SECTION 1. Number. The board of directors at its first meeting after each annual meeting of stockholders shall choose a Chief Executive Officer, a Secretary and a Treasurer, none of whom need be a member of the board. The board of directors may also choose a Chairman from among the directors, one or more Executive Vice Presidents, one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. More than two offices may be held by the same person.

 

SECTION 2. Compensation. The salaries or other compensation of all officers of the corporation shall be fixed by the board of directors. No officer shall be prevented from receiving a salary or other compensation by reason of the fact that he is also a director.

 

SECTION 3. Term; Removal; Vacancy. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors.

 

SECTION 4. Chairman. The Chairman shall, if one be elected, preside at all meetings of the board of directors.

 

SECTION 5. Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors in the absence of the Chairman, shall have general supervision over the business of the corporation and shall see that all directions and resolutions of the board of directors are carried into effect.

 

SECTION 6. President. The President shall, in the absence or disability of the Chief Executive Officer, perform the duties and exercise the powers of the Chief Executive Officer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.

 

 

SECTION 7. Vice President. The Executive Vice Presidents shall, in the absence or disability of the President, perform the duties and exercise the powers of the President and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. If there shall be more than one Executive Vice President, the Executive Vice Presidents shall perform such duties and exercise such powers in the absence or disability of the President, in the order determined by the board of directors. The Vice Presidents shall, in the absence or disability of the President and of the Executive Vice Presidents, perform the duties and exercise the powers of the President and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. If there shall be more than one vice president, the vice presidents shall perform such duties and exercise such powers in the absence or disability of the President and of the Executive Vice President, in the order determined by the board of directors.

 

SECTION 8. Secretary. The Secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or President, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have the authority to affix the same to an instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature.

 

SECTION 9. Assistant Secretary. The Assistant Secretary, if there shall be one, or if there shall be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such powers as the board of directors may from time to time prescribe.

 

SECTION 10. Treasurer. The Treasurer or Chief Financial Officer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the Chairman, the President and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all of his transactions as Treasurer and of the financial condition of the corporation.

 

SECTION 11. Assistant Treasurer. The Assistant Treasurer, if there shall be one, or, if there shall be more than one, the Assistant Treasurers in the order determined by the board of directors, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.

 

 

ARTICLE VI

CAPITAL STOCK

 

SECTION 1. Form. The shares of the capital stock of the corporation shall be represented by certificates in such form as shall be approved by the board of directors and shall be signed by the Chairman, the President, an Executive Vice President or a Vice President, and by the Treasurer or an assistant treasurer or the Secretary or an Assistant Secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof.

 

SECTION 2. Lost and Destroyed Certificates. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed.

 

SECTION 3. Transfer of Shares. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation.

 

ARTICLE VII

INDEMNIFICATION

 

SECTION 1. (a) The corporation shall indemnify, subject to the requirements of subsection (d) of this Section, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

 

 

(b) The corporation shall indemnify, subject to the requirements of subsection (d) of this Section, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.

 

(c) To the extent that a director, officer, employee or agent of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this Section, or in defense of any claim, issue or matter therein, the corporation shall indemnify him against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.

 

(d) Any indemnification under subsections (a) and (b) of this Section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this Section. Such determination shall be made (1) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders.

 

(e) Expenses incurred by a director, officer, employee or agent in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this Section. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.

 

(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this Section shall not limit the corporation from providing any other indemnification or advancement of expenses permitted by law nor shall they be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.

 

(g) The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Section.

 

 

(h) For the purposes of this Section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

 

(i) For purposes of this Section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to any employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Section.

 

(j) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall, unless otherwise provided when authorized or ratified by the Board of Directors, continue as to a person who has ceased to be a director, officer, employee or agent of the corporation and shall inure to the benefit of the heirs executors and administrators of such a person.

 

(k) The officers and directors of the Company, as individuals, shall not be liable until all funds of the Company have been distributed, with the exception of the proceeds contained in a trust account, that is subject to the trust agreement to be entered into by the Company.

 

ARTICLE VIII

GENERAL PROVISIONS

 

SECTION 1. Checks. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate.

 

SECTION 2. Fiscal Year. The fiscal year of the corporation shall be determined, and may be changed, by resolution of the board of directors.

 

SECTION 3. Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced.

 

 

ARTICLE IX

AMENDMENTS

 

SECTION 1. These by-laws may be altered, amended, supplemented or repealed or new by-laws may be adopted (a) at any regular or special meeting of stockholders at which a quorum is present or represented, by the affirmative vote of the holders of a majority of the shares entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by a resolution adopted by a majority of the whole board of directors at any regular or special meeting of the board. The stockholders shall have authority to change or repeal any by-laws adopted by the directors.

 

 

 

Exhibit 3.4

 

		Delaware		Page 1
		The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “PHOENIX MOTOR INC.”, FILED IN THIS OFFICE ON THE FOURTH DAY OF AUGUST, A.D. 2021, AT 10:51 O'CLOCK A.M.

 

 

		/s/ Jeffrey W. Bullock
		Jeffrey W. Bullock Secretary of State
3929882 8100		Authentication: 203838963
SR# 20212885865		Date: 08-04-21
You may verify this certificate online at corp.delaware.gov/authver.shtml

 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 10:51 AM 08/04/2021
FILED 10:51 AM 08/04/2021		CERTIFICATE OF AMENDMENT
SR 20212885865 - File Number 3929882

TO

 

AMENDED CERTIFICATE OF INCORPORATION

 

OF

 

PHOENIX MOTOR INC.

 

PHOENIX MOTOR INC. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify:

 

FIRST: The name of the Corporation is: Phoenix Motor Inc.

 

SECOND: The amended certificate of incorporation of the Corporation was filed with the Secretary of State on August 3, 2021 (“Amended Certificate of Incorporation”);

 

THIRD: The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware, adopted resolutions amending its Amended Certificate of Incorporation as follows:

 

Article V shall be amended to add the following provision in its entirety to the existing provisions of Article V, after the first paragraph:

 

“Upon the effective time (the “Effective Time”) of the filing of this Certificate of Amendment, each one (1) share of the Corporation’s Common Stock that is issued and outstanding or held by the Corporation as treasury stock immediately prior to the Effective Time (which shall include each fractional interest in Common Stock in excess of one (1) share held by any stockholder), is and shall be subdivided and reclassified into seventy thousand (70,000) fully paid, nonassessable shares of Common Stock (the “Forward Stock Split”). Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”) shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been subdivided and reclassified. The authorized number of shares, and par value per share, of Common Stock shall not be affected by the Forward Stock Split.”

 

FOURTH: This Certificate of Amendment to the Amended Certificate of Incorporation was submitted to the stockholders of the Corporation and was duly adopted and approved in accordance with the provisions of Sections 228 and 242 of the General Corporate Law of the State of Delaware at the annual meeting of the stockholders of the

 

Corporation.

 

IN WITNESS WHEREOF, Phoenix Motor Inc. has caused this Certificate of Amendment to be signed by its Chief Executive Officer as of August 3, 2021.

 

		/s/ Xiaofeng Peng
		Xiaofeng Peng
		Chief Executive Officer

 

 

Exhibit 4.1

 

NUMBER

SHARES

 

C ______

 

PHOENIX MOTOR INC.

 

INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE

 

COMMON STOCK

 

PAR VALUE $0.0001 PER SHARE

 

SEE REVERSE FOR

CERTAIN DEFINITIONS

 

CUSIP

 

This Certifies that

 

is the owner of

 

FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF

 

PHOENIX MOTOR INC.

 

transferable on the books of the Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed.

 

This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.

Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.

 

[Corporate Seal]

 

Dated:

 

CHAIRMAN		SECRETARY

 

 

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM –	as tenants in common	UNIF GIFT MIN ACT - _____ Custodian ______
TEN ENT –	as tenants by the entireties		(Cust)	(Minor)
JT TEN –	as joint tenants with right of survivorship		under Uniform Gifts to Minors
	and not as tenants in common		Act ________________
				(State)

 

Additional Abbreviations may also be used though not in the above list.

 

PHOENIX MOTOR INC.

 

The Company will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of shares or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Company’s Amended and Restated Certificate of Incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of preferred stock (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents.

 

For value received, ___________________________ hereby sell(s), assign(s) and transfer(s) unto

 

PLEASE INSERT SOCIAL SECURITY OR OTHER

IDENTIFYING NUMBER OF ASSIGNEE(S)

 

 

 

(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE(S))

 

 

 

 

shares

of common stock represented by the within Certificate, and do hereby irrevocably constitute and appoint

 

Attorney

 

 

to transfer the said stock on the books of the within named Company will full power of substitution in the premises.

 

Dated

Notice:

The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever.

 

Signature(s) Guaranteed:

 

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).

 

 

 

Exhibit 4.3

 

Stock Option Agreement

 

This Stock Option Agreement (this “Agreement”) is dated as of January 24, 2021 by and between Phoenix Motors, Inc., a Delaware corporation (the “Company”) and Xiaofeng Peng (“Optionee”). 

 

For value received, parties agree as follows:

 

1.                  Grant of Option. The Company hereby grants to Optionee, an option (the “Option”) to purchase from the Company Four Million Two Hundred Thousand (4,200,000) shares of its common stock, $0.0001 par value per share (the “Common Stock”) for a period ending seven (7) years from the date hereof. The number, type of security and Exercise Price (as defined below) of shares issuable upon the exercise of this Option are subject to adjustment as set forth in Section 12 below.

 

2.                  Exercise Price. The exercise price per share at which this Option may be exercised shall equal $0.43 per share of Common Stock (the “Exercise Price”), as adjusted pursuant to Section 12 hereof if applicable.

 

3.                  Exercise of Option.

 

(a)   Exercise. The purchase rights represented by this Option are only exercisable by Optionee, at the option of Optionee at any time, by the surrender of this Agreement and the Notice of Exercise annexed hereto duly completed and executed on behalf of Optionee (the “Notice of Exercise”) at the address of the Company (or such other address or agency of the Company as it may designate by notice in writing to Optionee at the address of Optionee hereunder), upon payment in cash, by cashier’s check acceptable to the Company, or by wire transfer of immediately funds in the amount of the full Exercise Price of the shares of Common Stock to be purchased.

 

(b)   Effective Date of Exercise. This Option shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the person entitled to receive the shares of Common Stock issuable upon such exercise shall be treated for all purposes as the holder of record of such shares as of the close of business on such date. As promptly as practicable on or after such date, the Company at its expense shall cause the Company to issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of shares issuable upon such exercise.

 

4.                  No Fractional Shares. No fractional shares of capital stock shall be issued upon the exercise of this Option. If any fractional interest in a share would, except for the provision of this Section 4, be delivered upon such exercise, the Company, in lieu of delivery of a fractional share thereof, shall pay to Optionee an amount in cash equal to the current market price of such fractional share.

 

5.                  Rights of Stockholder. Nothing contained in this Option shall be construed as conferring upon the Optionee hereof the right to vote or to consent or to receive notice as a stockholder of the Comapny or any other matters or any rights whatsoever as a stockholder of the Company. No dividends or interest shall be payable or accrued in respect of this Option or the interest represented hereby or the Option hereunder until, and only to the extent that, this Option shall have been exercised and the Common Stock paid for in full.

 

 

6.                 Option Not Transferable. This Option and the rights hereunder are not transferable and/or assignable, in whole or in part, by Optionee; provided, however, that Optionee may assign this Option and the rights hereunder to one or more of its affiliates.

 

7.                  Compliance with Securities Laws.

 

(a)               Optionee acknowledges that this Option and the shares of Common Stock to be issued upon exercise hereof are being acquired solely for Optionee’s own account and not as a nominee for any other party, and for investment, and that Optionee will not offer, sell, or otherwise dispose of this Option or any shares of Common Stock to be issued upon exercise hereof or conversion thereof except under circumstances that will not result in a violation of the Securities Act of 1933 (the “Act”), or any state securities laws. Upon exercise of this Option, Optionee shall, if reasonably requested by the Company, confirm in writing, in a form reasonably satisfactory to the Company, that the shares of Common Stock so purchased are being acquired solely for Optionee’s own account and not as a nominee for any other party, for investment, and not with a view toward distribution or resale.

 

(b)               Optionee further acknowledges that it is familiar with the definition of “accredited investor” in Rule 501 of Regulation D promulgated under the Act and certifies that Optionee is an accredited investor as defined in such rule.

 

(c)               Optionee understands that neither this Option nor the Common Stock have been registered under the Act, and therefore they may not be sold, assigned or transferred unless (i) a registration statement under the Act is in effect with respect thereto or (ii) an exemption from registration is found to be available to the satisfaction of the Company.

 

(d)               Optionee further acknowledges and agrees that the stock certificates evidencing the Common Stock shall bear a restrictive legend, substantially in the following form (in addition to such other restrictive legends as are required or deemed advisable under the provisions of this Option and any applicable law or any other agreement to which Optionee is a party):

 

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND/OR APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”

 

8.                  Notice of Certain Events. Whenever the Exercise Price, type or number of shares purchasable hereunder shall be adjusted pursuant to Section 12 hereof, the Company shall, within ten (10) days of such adjustment event, issue a certificate setting forth in reasonable detail the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated and the Exercise Price, type and number of shares purchasable hereunder after giving effect to such adjustment and shall cause a copy of such certificate to be delivered to Optionee.

 

 

9.                  Valid Issuance of Option and Common Stock. With respect to the exercise of this Option, the Company hereby represents, covenants and agrees (as applicable):

 

(a)               This Option is, and any Option issued in substitution for or replacement of this Option shall be, upon issuance, duly authorized, validly issued and fully vested; and

 

(b)               All shares of Common Stock issuable upon the exercise of this Option pursuant to the terms hereof shall be, upon issuance, and the Company shall take all such actions as may be necessary or appropriate in order that such shares of Common Stock are, validly issued, fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all taxes, liens and charges.

 

10.              Amendments; Waivers.

 

(a)               The provisions of this Agreement may be amended (either generally or in a particular instance and either retroactively or prospectively), only by an instrument in writing signed by the Company and Optionee.

 

(b)               No waivers of or exceptions to any term, condition or provision of this Option, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition or provision.

 

11.              Lock-Up Agreement. The Optionee agrees, in connection with the Company’s initial public offering of the Company’s securities, upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of this Option or any of the Common Stock or other Company securities issuable upon exercise of this Option or upon conversion of any Common Stock (other than those included in the registration) without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed one hundred eighty (180) days) from the effective date of such registration as may be requested by the underwriters; provided however that such 180 day period may be extended to the extent necessary to permit any managing underwriter to comply with NASD Rule 2711(f)(4). The holder of this Option acknowledges that the Company will be caused to be placed on any securities issued directly or indirectly upon exercise this Option the following legend:

 

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP PERIOD FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION STATEMENT OF THE COMPANY FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH LOCKUP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.”

 

 

12.              Adjustments. The Company has 450 million shares of Common Stock authorized and has 70 million shares of Common Stock issued and outstanding. The Exercise Price and the number and type of shares purchasable hereunder are subject to adjustment from time to time as follows:

 

(a)               If, while this Option remains outstanding and unexpired, the Company shall, by reclassification of securities or otherwise, change any of the securities as to which purchase rights under this Option exist into the same or a different number of securities of any other class or classes, this Option shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities which were subject to the purchase rights under this Option immediately prior to such reclassification or other change and the Exercise Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 12.

 

(b)               If, while this Option remains outstanding and unexpired, the Company shall split, subdivide or combine the securities as to which purchase rights under this Option exist into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination. Upon an adjustment in the Exercise Price pursuant to this Section 12(b), the number of shares subject to this Option (which were the subject of such split, subdivision or combination) shall be adjusted accordingly such that the aggregate Exercise Price payable for the purchase of such shares shall remain the same as before such split, subdivision or combination.

 

13.              Headings. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

 

14.              Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware. With respect to any disputes arising out of or related to this Agreement, the Company and the Optionee consent to the exclusive jurisdiction of the federal or state courts located in the State of Delaware.

 

15.              Notices. Any notice required or permitted hereunder shall be in writing and shall be deemed to have been given (a) when delivered personally, (b) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (c) 48 hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and in each case, addressed to the party to be notified at such party’s address or email as set forth below or as subsequently modified by written notice.

 

 

If to the Company:	Phoenix Motors Inc. 401 Doubleday Ave Ontario, CA 91761 Phone: (909) 987-0815 Attn: Joe Mitchell, Chief Executive Officer E-mail:
with a copy to:	Loeb & Loeb LLP 345 Park Avenue New York, NY 10154 Attention: David Fischer, Esq. Phone: (212) 407-4827 E-mail: [email protected]
If to the Optionee:	Xiaofeng Peng Phone: E-mail:

 

16.              Entire Agreement. This Agreement, including the exhibits attached thereto, constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. The Optionee and the Company agree that no party shall be liable or bound to any other party in any manner with regard to the subjects hereof or thereof by any warrants, representations or covenants except as specifically set forth herein or therein.

 

[SIGNATURE PAGE FOLLOWS]

 

 

The parties have executed this Agreement as of the date first set forth above.

 

	Company
	PHOENIX MOTOR INC.
	By:	/s/ Joseph Mitchell
	Name: Joseph Mitchell
	Title: Chief Executive Officer
	Optionee
	By:	/s/ Xiaofeng Peng
	Name: Xiaofeng Peng

 

[Signature Page to Stock Option Agreement]

 

 

NOTICE OF EXERCISE

 

 

 

TO:

Phoenix Motors Inc.

401 Doubleday Ave

Ontario, CA 91761

Attn: Joe Mitchell, Chief Executive Office

 

(1)               The undersigned (“Optionee”), pursuant to the provisions set forth in the Stock Option Agreement dated ________, 2021 (the “Option”), hereby elects to exercise the Option in whole at an Exercise Price of $0.43 per share, pursuant to Section 3(a) of the Option.

 

(2)               In exercising the Option, the Optionee confirms and acknowledges that (a) the shares of Common Stock are being acquired solely for the account of the Optionee and not as a nominee for any other party, and for investment, and (b) the Optionee will not offer, sell, or otherwise dispose of any such shares of Common Stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws.

 

(3)               Please cause the Company to issue a certificate representing said shares of Common Stock in the name of Optionee.

 

		LDK New Energy Holding Limited
		By:
		Name:
		Title:
[Date]

 

 

 

 

Exhibit 10.1 

 

PRIVILEGED AND CONFIDENTIAL 

 

PHOENIX MOTOR, INC.

 

2021 OMNIBUS EQUITY INCENTIVE PLAN

 

 

PHOENIX MOTOR, INC.

 

2021 OMNIBUS EQUITY INCENTIVE PLAN

 

Article I
PURPOSE

 

The purpose of this Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan (the “Plan”) is to benefit Phoenix Motor, Inc., a Delaware corporation (the “Company”) and its stockholders, by assisting the Company and its subsidiaries to attract, retain and provide incentives to key management employees, directors, and consultants of the Company and its Affiliates, and to align the interests of such service providers with those of the Company’s stockholders. Accordingly, the Plan provides for the granting of Non-qualified Stock Options, Incentive Stock Options, Restricted Stock Awards, Restricted Stock Unit Awards, Stock Appreciation Rights, Performance Stock Awards, Performance Unit Awards, Unrestricted Stock Awards, Distribution Equivalent Rights or any combination of the foregoing.

 

Article II
DEFINITIONS

 

The following definitions shall be applicable throughout the Plan unless the context otherwise requires:

 

2.1            “Affiliate” shall mean any corporation which, with respect to the Company, is a “subsidiary corporation” within the meaning of Section 424(f) of the Code or other entity in which the Company has a controlling interest in such entity or another entity which is part of a chain of entities in which the Company or each entity has a controlling interest in another entity in the unbroken chain of entities ending with the applicable entity.

 

2.2            “Aggregate Number of Shares Available for Awards” shall mean 10% of the Company’s outstanding Shares on a fully diluted basis.

 

2.3            “Award” shall mean, individually or collectively, any Option, Restricted Stock Award, Restricted Stock Unit Award, Performance Stock Award, Performance Unit Award, Stock Appreciation Right, Distribution Equivalent Right or Unrestricted Stock Award.

 

2.4            “Award Agreement” shall mean a written agreement between the Company and the Holder with respect to an Award, setting forth the terms and conditions of the Award, as amended.

 

2.5            “Board” shall mean the Board of Directors of the Company.

 

2.6            “Base Value” shall have the meaning given to such term in Section 14.2.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

2.7            “Cause” shall mean (i) if the Holder is a party to an employment or service agreement with the Company or an Affiliate which agreement defines “Cause” (or a similar term), “Cause” shall have the same meaning as provided for in such agreement, or (ii) for a Holder who is not a party to such an agreement, “Cause” shall mean termination by the Company or an Affiliate of the employment (or other service relationship) of the Holder by reason of the Holder’s (A) intentional failure to perform reasonably assigned duties, (B) dishonesty or willful misconduct in the performance of the Holder’s duties, (C) involvement in a transaction which is materially adverse to the Company or an Affiliate, (D) breach of fiduciary duty involving personal profit, (E) willful violation of any law, rule, regulation or court order (other than misdemeanor traffic violations and misdemeanors not involving misuse or misappropriation of money or property), (F) commission of an act of fraud or intentional misappropriation or conversion of any asset or opportunity of the Company or an Affiliate, or (G) material breach of any provision of the Plan or the Holder’s Award Agreement or any other written agreement between the Holder and the Company or an Affiliate, in each case as determined in good faith by the Board, the determination of which shall be final, conclusive and binding on all parties.

 

2.8            “Change of Control” shall mean, except as otherwise provided in an Award Agreement, (i) for a Holder who is a party to an employment or consulting agreement with the Company or an Affiliate which agreement defines “Change of Control” (or a similar term), “Change of Control” shall have the same meaning as provided for in such agreement, or (ii) for a Holder who is not a party to such an agreement, “Change of Control” shall mean the satisfaction of any one or more of the following conditions (and the “Change of Control” shall be deemed to have occurred as of the first day that any one or more of the following conditions shall have been satisfied):

 

(a)            Any person (as such term is used in paragraphs 13(d) and 14(d)(2) of the Exchange Act, hereinafter in this definition, “Person”), other than the Company or an Affiliate or an employee benefit plan of the Company or an Affiliate, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities;

 

(b)            The closing of a merger, consolidation or other business combination (a “Business Combination”) other than a Business Combination in which holders of the Shares immediately prior to the Business Combination have substantially the same proportionate ownership of the common stock or ordinary shares, as applicable, of the surviving corporation immediately after the Business Combination as immediately before;

 

(c)            The closing of an agreement for the sale or disposition of all or substantially all of the Company’s assets to any entity that is not an Affiliate;

 

(d)            The approval by the holders of shares of Shares of a plan of complete liquidation of the Company, other than a merger of the Company into any subsidiary or a liquidation as a result of which persons who were stockholders of the Company immediately prior to such liquidation have substantially the same proportionate ownership of shares of common stock or ordinary shares, as applicable, of the surviving corporation immediately after such liquidation as immediately before; or

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

(e)            Within any twenty-four (24) month period, the Incumbent Directors shall cease to constitute at least a majority of the Board or the board of directors of any successor to the Company; provided, however, that any director elected to the Board, or nominated for election, by a majority of the Incumbent Directors then still in office, shall be deemed to be an Incumbent Director for purposes of this paragraph (e), but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, entity or “group” other than the Board (including, but not limited to, any such assumption that results from paragraphs (a), (b), (c), or (d) of this definition).

 

Unless otherwise provided in an applicable Award Agreement, solely for the purpose of determining the timing of any payments pursuant to any Award constituting a “deferral of compensation” subject to Code Section 409A, a Change of Control shall be limited to a “change in the ownership of the Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.

 

2.9            “Code” shall mean the United States of America Internal Revenue Code of 1986, as amended. Reference in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to any section and any regulation under such section.

 

2.10            “Committee” shall mean a committee comprised of two (2) or more members of the Board who are selected by the Board as provided in Section 4.1.

 

2.11            “Company” shall have the meaning given to such term in the introductory paragraph, including any successor thereto.

 

2.12            “Consultant” shall mean any natural person that provides bona fide services as an independent contractor and who qualifies as a consultant or advisor under Instruction A.1.(a)(1) of Form S-8 of the Securities Act of 1933, as amended.

 

2.13            “Director” shall mean a member of the Board or a member of the board of directors of an Affiliate, in either case, who is not an Employee.

 

2.14            “Distribution Equivalent Right” shall mean an Award granted under Article XIII of the Plan which entitles the Holder to receive bookkeeping credits, cash payments and/or Share distributions equal in amount to the distributions that would have been made to the Holder had the Holder held a specified number of Shares during the period the Holder held the Distribution Equivalent Right.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

2.15            “Distribution Equivalent Right Award Agreement” shall mean a written agreement between the Company and a Holder with respect to a Distribution Equivalent Right Award.

 

2.16            “Effective Date” shall mean _______, 2021.¹

 

2.17            “Employee” shall mean any employee, including any officer, of the Company or an Affiliate.

 

2.18            “Exchange Act” shall mean the United States of America Securities Exchange Act of 1934, as amended.

 

2.19            “Fair Market Value” shall mean, as of any specified date, the closing sales price of the Shares for such date (or, in the event that the Shares are not traded on such date, on the immediately preceding trading date) on the NASDAQ Stock Market (“NASDAQ”), as reported by NASDAQ, or such other domestic or foreign national securities exchange on which the Shares may be listed. If the Shares are not listed on NASDAQ or on a national securities exchange, but are quoted on the OTC Bulletin Board or by the National Quotation Bureau, the Fair Market Value of the Shares shall be the mean of the highest bid and lowest asked prices per Share for such date. If the Shares are not quoted or listed as set forth above, Fair Market Value shall be determined by the Board in good faith by any fair and reasonable means (which means may be set forth with greater specificity in the applicable Award Agreement). The Fair Market Value of property other than Shares shall be determined by the Board in good faith by any fair and reasonable means consistent with the requirements of applicable law.

 

2.20            “Family Member” of an individual shall mean any child, stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, any person sharing the Holder’s household (other than a tenant or employee of the Holder), a trust in which such persons have more than fifty percent (50%) of the beneficial interest, a foundation in which such persons (or the Holder) control the management of assets, and any other entity in which such persons (or the Holder) own more than fifty percent (50%) of the voting interests.

 

2.21            “Holder” shall mean an Employee, Director or Consultant who has been granted an Award or any such individual’s beneficiary, estate or representative, who has acquired such Award in accordance with the terms of the Plan, as applicable.

 

2.22            “Incentive Stock Option” shall mean an Option which is intended by the Committee to constitute an “incentive stock option” and conforms to the applicable provisions of Section 422 of the Code.

 

2.23            “Incumbent Director” shall mean, with respect to any period of time specified under the Plan for purposes of determining whether or not a Change of Control has occurred, the individuals who were members of the Board at the beginning of such period.

 

¹ TBD

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

2.24            “Non-qualified Stock Option” shall mean an Option which is not an Incentive Stock Option or which is designated as an Incentive Stock Option but does not meet the applicable requirements of Section 422 of the Code.

 

2.25            “Option” shall mean an Award granted under Article VII of the Plan of an option to purchase Shares and shall include both Incentive Stock Options and Non-qualified Stock Options.

 

2.26            “Option Agreement” shall mean a written agreement between the Company and a Holder with respect to an Option.

 

2.27            “Performance Criteria” shall mean the criteria selected by the Committee for purposes of establishing the Performance Goal(s) for a Holder for a Performance Period.

 

2.28            “Performance Goals” shall mean, for a Performance Period, the written goal or goals established by the Committee for the Performance Period based upon the Performance Criteria, which may be related to the performance of the Holder, the Company or an Affiliate.

 

2.29            “Performance Period” shall mean one or more periods of time, which may be of varying and overlapping durations, selected by the Committee, over which the attainment of the Performance Goals shall be measured for purposes of determining a Holder’s right to, and the payment of, a Performance Stock Award or a Performance Unit Award.

 

2.30            “Performance Stock Award” or “Performance Stock” shall mean an Award granted under Article XII of the Plan under which, upon the satisfaction of predetermined Performance Goals, Shares are paid to the Holder.

 

2.31            “Performance Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Stock Award.

 

2.32            “Performance Unit Award” or “Performance Unit” shall mean an Award granted under Article XI of the Plan under which, upon the satisfaction of predetermined Performance Goals, a cash payment shall be made to the Holder, based on the number of Units awarded to the Holder.

 

2.33            “Performance Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Unit Award.

 

2.34            “Plan” shall mean this Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan, as amended from time to time, together with each of the Award Agreements utilized hereunder.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

2.35            “Restricted Stock Award” and “Restricted Stock” shall mean an Award granted under Article VIII of the Plan of Shares, the transferability of which by the Holder is subject to Restrictions.

 

2.36            “Restricted Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.

 

2.37            “Restricted Stock Unit Award” and “RSUs” shall refer to an Award granted under Article X of the Plan under which, upon the satisfaction of predetermined individual service-related vesting requirements, a payment in cash or Shares shall be made to the Holder, based on the number of Units awarded to the Holder.

 

2.38            “Restricted Stock Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.

 

2.39            “Restriction Period” shall mean the period of time for which Shares subject to a Restricted Stock Award shall be subject to Restrictions, as set forth in the applicable Restricted Stock Agreement.

 

2.40            “Restrictions” shall mean the forfeiture, transfer and/or other restrictions applicable to Shares awarded to an Employee, Director or Consultant under the Plan pursuant to a Restricted Stock Award and set forth in a Restricted Stock Agreement.

 

2.41            “Rule 16b-3” shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act, as such may be amended from time to time, and any successor rule, regulation or statute fulfilling the same or a substantially similar function.

 

2.42            “Shares” or “Stock” shall mean the Class A common stock of the Company, par value $0.0001 per share.

 

2.43            “Stock Appreciation Right” or “SAR” shall mean an Award granted under Article XIV of the Plan of a right, granted alone or in connection with a related Option, to receive a payment equal to the increase in value of a specified number of Shares between the date of Award and the date of exercise.

 

2.44            “Stock Appreciation Right Agreement” shall mean a written agreement between the Company and a Holder with respect to a Stock Appreciation Right.

 

2.45            “Tandem Stock Appreciation Right” shall mean a Stock Appreciation Right granted in connection with a related Option, the exercise of some or all of which results in termination of the entitlement to purchase some or all of the Shares under the related Option, all as set forth in Article XIV.

 

2.46            “Ten Percent Stockholder” shall mean an Employee who, at the time an Option is granted to him or her, owns shares possessing more than ten percent (10%) of the total combined voting power of all classes of shares of the Company or of any parent corporation or subsidiary corporation thereof (both as defined in Section 424 of the Code), within the meaning of Section 422(b)(6) of the Code.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

2.47            “Termination of Service” shall mean a termination of a Holder’s employment with, or status as a Director or Consultant of, the Company or an Affiliate, as applicable, for any reason, including, without limitation, Total and Permanent Disability or death, except as provided in Section 6.4. In the event Termination of Service shall constitute a payment event with respect to any Award subject to Code Section 409A, Termination of Service shall only be deemed to occur upon a “separation from service” as such term is defined under Code Section 409A and applicable authorities.

 

2.48            “Total and Permanent Disability” of an individual shall mean the inability of such individual to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months, within the meaning of Section 22(e)(3) of the Code.

 

2.49            “Unit” shall mean a bookkeeping unit, which represents such monetary amount as shall be designated by the Committee in each Performance Unit Agreement, or represents one Share for purposes of each Restricted Stock Unit Award.

 

2.50            “Unrestricted Stock Award” shall mean an Award granted under Article IX of the Plan of Shares which are not subject to Restrictions.

 

2.51            “Unrestricted Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to an Unrestricted Stock Award.

 

Article III
EFFECTIVE DATE OF PLAN

 

The Plan shall be effective as of the Effective Date, provided that the Plan is approved by the stockholders of the Company within twelve (12) months of such date.

 

Article IV
ADMINISTRATION

 

4.1            Composition of Committee. The Plan shall be administered by the Committee, which shall be appointed by the Board. If necessary, in the Board’s discretion, to comply with Rule 16b-3 under the Exchange Act or relevant securities exchange or inter-dealer quotation service, the Committee shall consist solely of two (2) or more Directors who are each (i) “non-employee directors” within the meaning of Rule 16b-3 and (ii) “independent” for purposes of any applicable listing requirements;. If a member of the Committee shall be eligible to receive an Award under the Plan, such Committee member shall have no authority hereunder with respect to his or her own Award.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

4.2            Powers. Subject to the other provisions of the Plan, the Committee shall have the sole authority, in its discretion, to make all determinations under the Plan, including but not limited to (i) determining which Employees, Directors or Consultants shall receive an Award, (ii) the time or times when an Award shall be made (the date of grant of an Award shall be the date on which the Award is awarded by the Committee), (iii) what type of Award shall be granted, (iv) the term of an Award, (v) the date or dates on which an Award vests, (vi) the form of any payment to be made pursuant to an Award, (vii) the terms and conditions of an Award (including the forfeiture of the Award, and/or any financial gain, if the Holder of the Award violates any applicable restrictive covenant thereof), (viii) the Restrictions under a Restricted Stock Award, (ix) the number of Shares which may be issued under an Award, (x) Performance Goals applicable to any Award and certification of the achievement of such goals, and (xi) the waiver of any Restrictions or Performance Goals, subject in all cases to compliance with applicable laws. In making such determinations the Committee may take into account the nature of the services rendered by the respective Employees, Directors and Consultants, their present and potential contribution to the Company’s (or the Affiliate’s) success and such other factors as the Committee in its discretion may deem relevant.

  

4.3            Additional Powers. The Committee shall have such additional powers as are delegated to it under the other provisions of the Plan. Subject to the express provisions of the Plan, the Committee is authorized to construe the Plan and the respective Award Agreements executed hereunder, to prescribe such rules and regulations relating to the Plan as it may deem advisable to carry out the intent of the Plan, to determine the terms, restrictions and provisions of each Award and to make all other determinations necessary or advisable for administering the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in any Award Agreement in the manner and to the extent the Committee shall deem necessary, appropriate or expedient to carry it into effect. The determinations of the Committee on the matters referred to in this Article IV shall be conclusive and binding on the Company and all Holders.

 

4.4            Committee Action. Subject to compliance with all applicable laws, action by the Committee shall require the consent of a majority of the members of the Committee, expressed either orally at a meeting of the Committee or in writing in the absence of a meeting. No member of the Committee shall have any liability for any good faith action, inaction or determination in connection with the Plan.

 

Article V
SHARES SUBJECT TO PLAN AND LIMITATIONS THEREON

 

5.1            Authorized Shares and Award Limits. The Committee may from time to time grant Awards to one or more Employees, Directors and/or Consultants determined by it to be eligible for participation in the Plan in accordance with the provisions of Article VI. Subject to Article XV, the aggregate number of Shares that may be issued under the Plan shall not exceed the Aggregate Number of Shares Available for Awards. Shares shall be deemed to have been issued under the Plan solely to the extent actually issued and delivered pursuant to an Award. To the extent that an Award lapses, expires, is canceled, is terminated unexercised or ceases to be exercisable for any reason, or the rights of its Holder terminate, any Shares subject to such Award shall again be available for the grant of a new Award. Notwithstanding any provision in the Plan to the contrary, the maximum number of Shares that may be subject to Awards of Incentive Stock Options shall not be more than the Aggregate Number of Shares Available for Awards (subject to adjustment in the same manner as provided in Article XV with respect to Shares subject to Awards then outstanding).

 

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

5.2            Types of Shares. The Shares to be issued pursuant to the grant or exercise of an Award may consist of authorized but unissued Shares, Shares purchased on the open market or Shares previously issued and outstanding and reacquired by the Company.

 

Article VI
ELIGIBILITY AND TERMINATION OF SERVICE

 

6.1            Eligibility. Awards made under the Plan may be granted solely to individuals who, at the time of grant, are Employees, Directors or Consultants. An Award may be granted on more than one occasion to the same Employee, Director or Consultant, and, subject to the limitations set forth in the Plan, such Award may include, a Non-qualified Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, an Unrestricted Stock Award, a Distribution Equivalent Right Award, a Performance Stock Award, a Performance Unit Award, a Stock Appreciation Right, a Tandem Stock Appreciation Right, or any combination thereof, and solely for Employees, an Incentive Stock Option.

 

6.2            Termination of Service. Except to the extent inconsistent with the terms of the applicable Award Agreement and/or the provisions of Section 6.3 or 6.4, the following terms and conditions shall apply with respect to a Holder’s Termination of Service with the Company or an Affiliate, as applicable:

 

(a)            The Holder’s rights, if any, to exercise any then exercisable Options and/or Stock Appreciation Rights shall terminate:

 

(i)            If such termination is for a reason other than the Holder’s Total and Permanent Disability or death, ninety (90) days after the date of such Termination of Service;

 

(ii)            If such termination is on account of the Holder’s Total and Permanent Disability, one (1) year after the date of such Termination of Service; or

 

(iii)            If such termination is on account of the Holder’s death, one (1) year after the date of the Holder’s death.

 

Upon such applicable date the Holder (and such Holder’s estate, designated beneficiary or other legal representative) shall forfeit any rights or interests in or with respect to any such Options and Stock Appreciation Rights. Notwithstanding the foregoing, the Committee, in its sole discretion, may provide for a different time period in the Award Agreement, or may extend the time period, following a Termination of Service, during which the Holder has the right to exercise any vested Non-qualified Stock Option or Stock Appreciation Right, which time period may not extend beyond the expiration date of the Award term.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

(b)            In the event of a Holder’s Termination of Service for any reason prior to the actual or deemed satisfaction and/or lapse of the Restrictions, vesting requirements, terms and conditions applicable to a Restricted Stock Award and/or Restricted Stock Unit Award, such Restricted Stock and/or RSUs shall immediately be canceled, and the Holder (and such Holder’s estate, designated beneficiary or other legal representative) shall forfeit any rights or interests in and with respect to any such Restricted Stock and/or RSUs.

 

6.3            Special Termination Rule. Except to the extent inconsistent with the terms of the applicable Award Agreement, and notwithstanding anything to the contrary contained in this Article VI, if a Holder’s employment with, or status as a Director of, the Company or an Affiliate shall terminate, and if, within ninety (90) days of such termination, such Holder shall become a Consultant, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of such termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had been a Consultant for the entire period during which such Award or portion thereof had been outstanding. Should the Committee effect such determination with respect to such Holder, for all purposes of the Plan, such Holder shall not be treated as if his or her employment or Director status had terminated until such time as his or her Consultant status shall terminate, in which case his or her Award, as it may have been reduced in connection with the Holder’s becoming a Consultant, shall be treated pursuant to the provisions of Section 6.2, provided, however, that any such Award which is intended to be an Incentive Stock Option shall, upon the Holder’s no longer being an Employee, automatically convert to a Non-qualified Stock Option. Should a Holder’s status as a Consultant terminate, and if, within ninety (90) days of such termination, such Holder shall become an Employee or a Director, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of such termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had been an Employee or a Director, as applicable, for the entire period during which such Award or portion thereof had been outstanding, and, should the Committee effect such determination with respect to such Holder, for all purposes of the Plan, such Holder shall not be treated as if his or her Consultant status had terminated until such time as his or her employment with the Company or an Affiliate, or his or her Director status, as applicable, shall terminate, in which case his or her Award shall be treated pursuant to the provisions of Section 6.2.

 

6.4            Termination of Service for Cause. Notwithstanding anything in this Article VI or elsewhere in the Plan to the contrary, and unless a Holder’s Award Agreement specifically provides otherwise, in the event of a Holder’s Termination of Service for Cause, all of such Holder’s then outstanding Awards shall expire immediately and be forfeited in their entirety upon such Termination of Service.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

Article VII
OPTIONS

 

7.1            Option Period. The term of each Option shall be as specified in the Option Agreement; provided, however, that except as set forth in Section 7.3, no Option shall be exercisable after the expiration of ten (10) years from the date of its grant.

 

7.2            Limitations on Exercise of Option. An Option shall be exercisable in whole or in such installments and at such times as specified in the Option Agreement

 

7.3            Special Limitations on Incentive Stock Options. To the extent that the aggregate Fair Market Value (determined at the time the respective Incentive Stock Option is granted) of Shares with respect to which Incentive Stock Options are exercisable for the first time by an individual during any calendar year under all plans of the Company and any parent corporation or subsidiary corporation thereof (both as defined in Section 424 of the Code) which provide for the grant of Incentive Stock Options exceeds One Hundred Thousand Dollars ($100,000) (or such other individual limit as may be in effect under the Code on the date of grant), the portion of such Incentive Stock Options that exceeds such threshold shall be treated as Non-qualified Stock Options. The Committee shall determine, in accordance with applicable provisions of the Code, Treasury Regulations and other administrative pronouncements, which of a Holder’s Options, which were intended by the Committee to be Incentive Stock Options when granted to the Holder, will not constitute Incentive Stock Options because of such limitation, and shall notify the Holder of such determination as soon as practicable after such determination. No Incentive Stock Option shall be granted to an Employee if, at the time the Incentive Stock Option is granted, such Employee is a Ten Percent Stockholder, unless (i) at the time such Incentive Stock Option is granted the Option price is at least one hundred ten percent (110%) of the Fair Market Value of the Shares subject to the Incentive Stock Option, and (ii) such Incentive Stock Option by its terms is not exercisable after the expiration of five (5) years from the date of grant. No Incentive Stock Option shall be granted more than ten (10) years from the earlier of the Effective Date or date on which the Plan is approved by the Company’s stockholders. The designation by the Committee of an Option as an Incentive Stock Option shall not guarantee the Holder that the Option will satisfy the applicable requirements for “incentive stock option” status under Section 422 of the Code.

 

7.4            Option Agreement. Each Option shall be evidenced by an Option Agreement in such form and containing such provisions not inconsistent with the other provisions of the Plan as the Committee from time to time shall approve, including, but not limited to, provisions intended to qualify an Option as an Incentive Stock Option. An Option Agreement may provide for the payment of the Option price, in whole or in part, by the delivery of a number of Shares (plus cash if necessary) that have been owned by the Holder for at least six (6) months and having a Fair Market Value equal to such Option price, or such other forms or methods as the Committee may determine from time to time, in each case, subject to such rules and regulations as may be adopted by the Committee. Each Option Agreement shall, solely to the extent inconsistent with the provisions of Sections 6.2, 6.3, and 6.4, as applicable, specify the effect of Termination of Service on the exercisability of the Option. Moreover, without limiting the generality of the foregoing, a Non-qualified Stock Option Agreement may provide for a “cashless exercise” of the Option, in whole or in part, by (a) establishing procedures whereby the Holder, by a properly-executed written notice, directs (i) an immediate market sale or margin loan as to all or a part of Shares to which he is entitled to receive upon exercise of the Option, pursuant to an extension of credit by the Company to the Holder of the Option price, (ii) the delivery of the Shares from the Company directly to a brokerage firm and (iii) the delivery of the Option price from sale or margin loan proceeds from the brokerage firm directly to the Company, or (b) reducing the number of Shares to be issued upon exercise of the Option by the number of such Shares having an aggregate Fair Market Value equal to the Option price (or portion thereof to be so paid) as of the date of the Option’s exercise. An Option Agreement may also include provisions relating to: (i) subject to the provisions hereof, accelerated vesting of Options, including but not limited to, upon the occurrence of a Change of Control, (ii) tax matters (including provisions covering any applicable Employee wage withholding requirements) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Option Agreements need not be identical.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

7.5            Option Price and Payment. The price at which an Share may be purchased upon exercise of an Option shall be determined by the Committee; provided, however, that such Option price (i) shall not be less than the Fair Market Value of an Share on the date such Option is granted (or 110% of Fair Market Value for an Incentive Stock Option held by Ten Percent Stockholder, as provided in Section 7.3), and (ii) shall be subject to adjustment as provided in Article XV. The Option or portion thereof may be exercised by delivery of an irrevocable notice of exercise to the Company. The Option price for the Option or portion thereof shall be paid in full in the manner prescribed by the Committee as set forth in the Plan and the applicable Option Agreement, which manner, with the consent of the Committee, may include the withholding of Shares otherwise issuable in connection with the exercise of the Option. Separate share certificates shall be issued by the Company for those Shares acquired pursuant to the exercise of an Incentive Stock Option and for those Shares acquired pursuant to the exercise of a Non-qualified Stock Option.

 

7.6            Stockholder Rights and Privileges. The Holder of an Option shall be entitled to all the privileges and rights of a stockholder of the Company solely with respect to such Shares as have been purchased under the Option and for which share certificates have been registered in the Holder’s name.

 

7.7            Options and Rights in Substitution for Stock or Options Granted by Other Corporations. Options may be granted under the Plan from time to time in substitution for stock options held by individuals employed by entities who become Employees, Directors or Consultants as a result of a merger or consolidation of the employing entity with the Company or any Affiliate, or the acquisition by the Company or an Affiliate of the assets of the employing entity, or the acquisition by the Company or an Affiliate of stock or shares of the employing entity with the result that such employing entity becomes an Affiliate. Any substitute Awards granted under this Plan shall not reduce the number of Shares authorized for grant under the Plan.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

7.8      Prohibition Against RePricing. Except to the extent (i) approved in advance by holders of a majority of the shares of the Company entitled to vote generally in the election of directors, or (ii) as a result of any Change of Control or any adjustment as provided in Article XV, the Committee shall not have the power or authority to reduce, whether through amendment or otherwise, the exercise price under any outstanding Option or Stock Appreciation Right, or to grant any new Award or make any payment of cash in substitution for or upon the cancellation of Options and/or Stock Appreciation Rights previously granted.

 

Article VIII
RESTRICTED STOCK AWARDS

 

8.1            Award. A Restricted Stock Award shall constitute an Award of Shares to the Holder as of the date of the Award which are subject to a “substantial risk of forfeiture” as defined under Section 83 of the Code during the specified Restriction Period. At the time a Restricted Stock Award is made, the Committee shall establish the Restriction Period applicable to such Award. Each Restricted Stock Award may have a different Restriction Period, in the discretion of the Committee. The Restriction Period applicable to a particular Restricted Stock Award shall not be changed except as permitted by Section 8.2.

 

8.2            Terms and Conditions. At the time any Award is made under this Article VIII, the Company and the Holder shall enter into a Restricted Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Company shall cause the Shares to be issued in the name of Holder, either by book-entry registration or issuance of one or more stock certificates evidencing the Shares, which Shares or certificates shall be held by the Company or the stock transfer agent or brokerage service selected by the Company to provide services for the Plan. The Shares shall be restricted from transfer and shall be subject to an appropriate stop-transfer order, and if any certificate is issued, such certificate shall bear an appropriate legend referring to the restrictions applicable to the Shares. After any Shares vest, the Company shall deliver the vested Shares, in book-entry or certificated form in the Company’s sole discretion, registered in the name of Holder or his or her legal representatives, beneficiaries or heirs, as the case may be, less any Shares withheld to pay withholding taxes. If provided for under the Restricted Stock Agreement, the Holder shall have the right to vote Shares subject thereto and to enjoy all other stockholder rights, including the entitlement to receive dividends on the Shares during the Restriction Period. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Restricted Stock Awards, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the Restriction Period. Such additional terms, conditions or restrictions shall, to the extent inconsistent with the provisions of Sections 6.2, 6.3 and 6.4, as applicable, be set forth in a Restricted Stock Agreement made in conjunction with the Award. Such Restricted Stock Agreement may also include provisions relating to: (i) subject to the provisions hereof, accelerated vesting of Awards, including but not limited to accelerated vesting upon the occurrence of a Change of Control, (ii) tax matters (including provisions covering any applicable Employee wage withholding requirements) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Restricted Stock Agreements need not be identical. All Shares delivered to a Holder as part of a Restricted Stock Award shall be delivered and reported by the Company or the Affiliate, as applicable, to the Holder at the time of vesting.

 

8.3            Payment for Restricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares received pursuant to a Restricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Shares received pursuant to a Restricted Stock Award, except to the extent otherwise required by law.

 

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

Article IX
UNRESTRICTED STOCK AWARDS

 

9.1            Award. Shares may be awarded (or sold) to Employees, Directors or Consultants under the Plan which are not subject to Restrictions of any kind, in consideration for past services rendered thereby to the Company or an Affiliate or for other valid consideration.

 

9.2            Terms and Conditions. At the time any Award is made under this Article IX, the Company and the Holder shall enter into an Unrestricted Stock Agreement setting forth each of the matters contemplated hereby and such other matters as the Committee may determine to be appropriate.

 

9.3            Payment for Unrestricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares received pursuant to an Unrestricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Shares received pursuant to an Unrestricted Stock Award, except to the extent otherwise required by law.

 

Article X
RESTRICTED STOCK UNIT AWARDS

 

10.1          Award. A Restricted Stock Unit Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of Shares) to the Holder at the end of a specified vesting schedule. At the time a Restricted Stock Unit Award is made, the Committee shall establish the vesting schedule applicable to such Award. Each Restricted Stock Unit Award may have a different vesting schedule, in the discretion of the Committee. A Restricted Stock Unit shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares prior to the time the Holder shall receive a distribution of Shares pursuant to Section 10.3.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

10.2          Terms and Conditions. At the time any Award is made under this Article X, the Company and the Holder shall enter into a Restricted Stock Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Restricted Stock Unit Agreement shall set forth the individual service-based vesting requirement which the Holder would be required to satisfy before the Holder would become entitled to distribution pursuant to Section 10.3 and the number of Units awarded to the Holder. Such conditions shall be sufficient to constitute a “substantial risk of forfeiture” as such term is defined under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Restricted Stock Unit Awards in the Restricted Stock Unit Agreement, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable vesting period. The terms and conditions of the respective Restricted Stock Unit Agreements need not be identical.

 

10.3          Distributions of Shares. The Holder of a Restricted Stock Unit shall be entitled to receive Shares or a cash payment equal to the Fair Market Value of a Share, or one Share, as determined in the sole discretion of the Committee and as set forth in the Restricted Stock Unit Agreement, for each Restricted Stock Unit subject to such Restricted Stock Unit Award, if the Holder satisfies the applicable vesting requirement. Such distribution shall be made no later than by the fifteenth (15^th) day of the third (3^rd) calendar month next following the end of the calendar year in which the Restricted Stock Unit first becomes vested (i.e., no longer subject to a “substantial risk of forfeiture”).

 

Article XI
PERFORMANCE UNIT AWARDS

 

11.1          Award. A Performance Unit Award shall constitute an Award under which, upon the satisfaction of predetermined individual and/or Company (and/or Affiliate) Performance Goals based on selected Performance Criteria, a cash payment shall be made to the Holder, based on the number of Units awarded to the Holder. At the time a Performance Unit Award is made, the Committee shall establish the Performance Period and applicable Performance Goals. Each Performance Unit Award may have different Performance Goals, in the discretion of the Committee. A Performance Unit Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares.

 

11.2          Terms and Conditions. At the time any Award is made under this Article XI, the Company and the Holder shall enter into a Performance Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Performance Unit Agreement the Performance Period, Performance Criteria and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled to payment pursuant to Section 11.3, the number of Units awarded to the Holder and the dollar value or formula assigned to each such Unit. Such payment shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Performance Unit Awards, including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable performance period. The terms and conditions of the respective Performance Unit Agreements need not be identical.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

11.3          Payments. The Holder of a Performance Unit shall be entitled to receive a cash payment equal to the dollar value assigned to such Unit under the applicable Performance Unit Agreement if the Holder and/or the Company satisfy (or partially satisfy, if applicable under the applicable Performance Unit Agreement) the Performance Goals set forth in such Performance Unit Agreement. All payments shall be made no later than by the fifteenth (15^th) day of the third (3^rd) calendar month next following the end of the Company’s fiscal year to which such performance goals and objectives relate.

 

Article XII
PERFORMANCE STOCK AWARDS

 

12.1          Award. A Performance Stock Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of Shares) to the Holder at the end of a specified Performance Period subject to achievement of specified Performance Goals. At the time a Performance Stock Award is made, the Committee shall establish the Performance Period and applicable Performance Goals based on selected Performance Criteria. Each Performance Stock Award may have different Performance Goals, in the discretion of the Committee. A Performance Stock Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any other rights associated with ownership of Shares unless and until the Holder shall receive a distribution of Shares pursuant to Section 12.3.

 

12.2          Terms and Conditions. At the time any Award is made under this Article XII, the Company and the Holder shall enter into a Performance Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Performance Stock Agreement the Performance Period, selected Performance Criteria and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled to the receipt of Shares pursuant to such Holder’s Performance Stock Award and the number of Shares subject to such Performance Stock Award. Such distribution shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. If such Performance Goals are achieved, the distribution of Shares (or the payment of cash, as determined in the sole discretion of the Committee), shall be made in accordance with Section 12.3, below. At the time of such Award, the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Performance Stock Awards, including, but not limited to, rules pertaining to the effect of the Holder’s Termination of Service prior to the expiration of the applicable performance period. The terms and conditions of the respective Performance Stock Agreements need not be identical.

 

12.3          Distributions of Shares. The Holder of a Performance Stock Award shall be entitled to receive a cash payment equal to the Fair Market Value of a Share, or one Share, as determined in the sole discretion of the Committee, for each Performance Stock Award subject to such Performance Stock Agreement, if the Holder satisfies the applicable vesting requirement. Such distribution shall be made no later than by the fifteenth (15^th) day of the third (3^rd) calendar month next following the end of the Company’s fiscal year to which such performance goals and objectives relate.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

Article XIII
DISTRIBUTION EQUIVALENT RIGHTS

 

13.1          Award. A Distribution Equivalent Right shall entitle the Holder to receive bookkeeping credits, cash payments and/or Share distributions equal in amount to the distributions that would have been made to the Holder had the Holder held a specified number of Shares during the specified period of the Award.

 

13.2          Terms and Conditions. At the time any Award is made under this Article XIII, the Company and the Holder shall enter into a Distribution Equivalent Rights Award Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Distribution Equivalent Rights Award Agreement the terms and conditions, if any, including whether the Holder is to receive credits currently in cash, is to have such credits reinvested (at Fair Market Value determined as of the date of reinvestment) in additional Shares or is to be entitled to choose among such alternatives. Such receipt shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code and, if such Award becomes vested, the distribution of such cash or Shares shall be made no later than by the fifteenth (15^th) day of the third (3^rd) calendar month next following the end of the Company’s fiscal year in which the Holder’s interest in the Award vests. Distribution Equivalent Rights Awards may be settled in cash or in Shares, as set forth in the applicable Distribution Equivalent Rights Award Agreement. A Distribution Equivalent Rights Award may, but need not be, awarded in tandem with another Award (other than an Option or a SAR), whereby, if so awarded, such Distribution Equivalent Rights Award shall expire, terminate or be forfeited by the Holder, as applicable, under the same conditions as under such other Award.

 

13.3          Interest Equivalents. The Distribution Equivalent Rights Award Agreement for a Distribution Equivalent Rights Award may provide for the crediting of interest on a Distribution Rights Award to be settled in cash at a future date (but in no event later than by the fifteenth (15^th) day of the third (3^rd) calendar month next following the end of the Company’s fiscal year in which such interest is credited and vested), at a rate set forth in the applicable Distribution Equivalent Rights Award Agreement, on the amount of cash payable thereunder.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

Article XIV
STOCK APPRECIATION RIGHTS

 

14.1          Award. A Stock Appreciation Right shall constitute a right, granted alone or in connection with a related Option, to receive a payment equal to the increase in value of a specified number of Shares between the date of Award and the date of exercise.

 

14.2          Terms and Conditions. At the time any Award is made under this Article XIV, the Company and the Holder shall enter into a Stock Appreciation Right Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate. The Committee shall set forth in the applicable Stock Appreciation Right Agreement the terms and conditions of the Stock Appreciation Right, including (i) the base value (the “Base Value”) for the Stock Appreciation Right, which shall be not less than the Fair Market Value of a Share on the date of grant of the Stock Appreciation Right, (ii) the number of Shares subject to the Stock Appreciation Right, (iii) the period during which the Stock Appreciation Right may be exercised; provided, however, that no Stock Appreciation Right shall be exercisable after the expiration of ten (10) years from the date of its grant, and (iv) any other special rules and/or requirements which the Committee imposes upon the Stock Appreciation Right. Upon the exercise of some or all of the portion of a Stock Appreciation Right, the Holder shall receive a payment from the Company, in cash or in the form of Shares having an equivalent Fair Market Value or in a combination of both, as determined in the sole discretion of the Committee, equal to the product of:

 

(a)            The excess of (i) the Fair Market Value of a Share on the date of exercise, over (ii) the Base Value, multiplied by,

 

(b)            The number of Shares with respect to which the Stock Appreciation Right is exercised.

 

14.3            Tandem Stock Appreciation Rights. If the Committee grants a Stock Appreciation Right which is intended to be a Tandem Stock Appreciation Right, the Tandem Stock Appreciation Right shall be granted at the same time as the related Option, and the following special rules shall apply:

 

(a)            The Base Value shall be equal to or greater than the per Share exercise price under the related Option;

 

(b)            The Tandem Stock Appreciation Right may be exercised for all or part of the Shares which are subject to the related Option, but solely upon the surrender by the Holder of the Holder’s right to exercise the equivalent portion of the related Option (and when a Share is purchased under the related Option, an equivalent portion of the related Tandem Stock Appreciation Right shall be canceled);

 

(c)            The Tandem Stock Appreciation Right shall expire no later than the date of the expiration of the related Option;

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

(d)            The value of the payment with respect to the Tandem Stock Appreciation Right may be no more than one hundred percent (100%) of the difference between the per Share exercise price under the related Option and the Fair Market Value of the Shares subject to the related Option at the time the Tandem Stock Appreciation Right is exercised, multiplied by the number of the Shares with respect to which the Tandem Stock Appreciation Right is exercised; and

 

(e)            The Tandem Stock Appreciation Right may be exercised solely when the Fair Market Value of the Shares subject to the related Option exceeds the per Share exercise price under the related Option.

 

Article XV
RECAPITALIZATION OR REORGANIZATION

 

15.1          Adjustments to Shares. The shares with respect to which Awards may be granted under the Plan are Shares as presently constituted; provided, however, that if, and whenever, prior to the expiration or distribution to the Holder of Shares underlying an Award theretofore granted, the Company shall effect a subdivision or consolidation of the Shares or the payment of an Share dividend on Shares without receipt of consideration by the Company, the number of Shares with respect to which such Award may thereafter be exercised or satisfied, as applicable, (i) in the event of an increase in the number of outstanding Shares, shall be proportionately increased, and the purchase price per Share shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding Shares, shall be proportionately reduced, and the purchase price per Share shall be proportionately increased. Notwithstanding the foregoing or any other provision of this Article XV, any adjustment made with respect to an Award (x) which is an Incentive Stock Option, shall comply with the requirements of Section 424(a) of the Code, and in no event shall any adjustment be made which would render any Incentive Stock Option granted under the Plan to be other than an “incentive stock option” for purposes of Section 422 of the Code, and (y) which is a Non-qualified Stock Option, shall comply with the requirements of Section 409A of the Code, and in no event shall any adjustment be made which would render any Non-qualified Stock Option granted under the Plan to become subject to Section 409A of the Code.

 

15.2          Recapitalization. If the Company recapitalizes or otherwise changes its capital structure, thereafter upon any exercise or satisfaction, as applicable, of a previously granted Award, the Holder shall be entitled to receive (or entitled to purchase, if applicable) under such Award, in lieu of the number of Shares then covered by such Award, the number and class of shares and securities to which the Holder would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the Holder had been the holder of record of the number of Shares then covered by such Award.

 

15.3          Other Events. In the event of changes to the outstanding Shares by reason of an extraordinary cash dividend, reorganization, merger, consolidation, combination, split-up, spin-off, exchange or other relevant change in capitalization occurring after the date of the grant of any Award and not otherwise provided for under this Article XV, any outstanding Awards and any Award Agreements evidencing such Awards shall be adjusted by the Board in its discretion in such manner as the Board shall deem equitable or appropriate taking into consideration the applicable accounting and tax consequences, as to the number and price of Shares or other consideration subject to such Awards. In the event of any adjustment pursuant to Sections 15.1, 15.2 or this Section 15.3, the aggregate number of Shares available under the Plan pursuant to Section 5.1 may be appropriately adjusted by the Board, the determination of which shall be conclusive. In addition, the Committee may make provision for a cash payment to a Holder or a person who has an outstanding Award.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

15.4          Change of Control. The Committee may, in its sole discretion, at the time an Award is made or at any time prior to, coincident with or after the time of a Change of Control, cause any Award either (i) to be canceled in consideration of a payment in cash or other consideration in amount per share equal to the excess, if any, of the price or implied price per Share in the Change of Control over the per Share exercise, base or purchase price of such Award, which may be paid immediately or over the vesting schedule of the Award; (ii) to be assumed, or new rights substituted therefore, by the surviving corporation or a parent or subsidiary of such surviving corporation following such Change of Control; (iii) accelerate any time periods, or waive any other conditions, relating to the vesting, exercise, payment or distribution of an Award so that any Award to a Holder whose employment has been terminated as a result of a Change of Control may be vested, exercised, paid or distributed in full on or before a date fixed by the Committee; (iv) to be purchased from a Holder whose employment has been terminated as a result of a Change of Control, upon the Holder’s request, for an amount of cash equal to the amount that could have been obtained upon the exercise, payment or distribution of such rights had such Award been currently exercisable or payable; or (v) terminate any then outstanding Award or make any other adjustment to the Awards then outstanding as the Committee deems necessary or appropriate to reflect such transaction or change. The number of Shares subject to any Award shall be rounded to the nearest whole number.

 

15.5          Powers Not Affected. The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or of the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change of the Company’s capital structure or business, any merger or consolidation of the Company, any issue of debt or equity securities ahead of or affecting Shares or the rights thereof, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act or proceeding.

 

15.6          No Adjustment for Certain Awards. Except as hereinabove expressly provided, the issuance by the Company of shares of any class or securities convertible into shares of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe therefor or upon conversion of shares or obligations of the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect previously granted Awards, and no adjustment by reason thereof shall be made with respect to the number of Shares subject to Awards theretofore granted or the purchase price per Share, if applicable.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

Article XVI
AMENDMENT AND TERMINATION OF PLAN

 

The Plan shall continue in effect, unless sooner terminated pursuant to this Article XVI, until the tenth (10^th) anniversary of the date on which it is adopted by the Board (except as to Awards outstanding on that date). The Board in its discretion may terminate the Plan at any time with respect to any shares for which Awards have not theretofore been granted; provided, however, that the Plan’s termination shall not materially and adversely impair the rights of a Holder with respect to any Award theretofore granted without the consent of the Holder. The Board shall have the right to alter or amend the Plan or any part hereof from time to time; provided, however, that without the approval by a majority of the votes cast at a meeting of stockholders at which a quorum representing a majority of the shares of the Company entitled to vote generally in the election of directors is present in person or by proxy, no amendment or modification of the Plan may (i) materially increase the benefits accruing to Holders, (ii) except as otherwise expressly provided in Article XV, materially increase the number of Shares subject to the Plan or the individual Award Agreements specified in Article V, (iii) materially modify the requirements for participation in the Plan, or (iv) amend, modify or suspend Section 7.7 (re-pricing prohibitions) or this Article XVI. In addition, no change in any Award theretofore granted may be made which would materially and adversely impair the rights of a Holder with respect to such Award without the consent of the Holder (unless such change is required in order to exempt the Plan or any Award from Section 409A of the Code).

 

Article XVII
MISCELLANEOUS

 

17.1          No Right to Award. Neither the adoption of the Plan by the Company nor any action of the Board or the Committee shall be deemed to give an Employee, Director or Consultant any right to an Award except as may be evidenced by an Award Agreement duly executed on behalf of the Company, and then solely to the extent and on the terms and conditions expressly set forth therein.

 

17.2          No Rights Conferred. Nothing contained in the Plan shall (i) confer upon any Employee any right with respect to continuation of employment with the Company or any Affiliate, (ii) interfere in any way with any right of the Company or any Affiliate to terminate the employment of an Employee at any time, (iii) confer upon any Director any right with respect to continuation of such Director’s membership on the Board, (iv) interfere in any way with any right of the Company or an Affiliate to terminate a Director’s membership on the Board at any time, (v) confer upon any Consultant any right with respect to continuation of his or her consulting engagement with the Company or any Affiliate, or (vi) interfere in any way with any right of the Company or an Affiliate to terminate a Consultant’s consulting engagement with the Company or an Affiliate at any time.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

17.3          Other Laws; No Fractional Shares; Withholding. The Company shall not be obligated by virtue of any provision of the Plan to recognize the exercise of any Award or to otherwise sell or issue Shares in violation of any laws, rules or regulations, and any postponement of the exercise or settlement of any Award under this provision shall not extend the term of such Award. Neither the Company nor its directors or officers shall have any obligation or liability to a Holder with respect to any Award (or Shares issuable thereunder) (i) that shall lapse because of such postponement, or (ii) for any failure to comply with the requirements of any applicable law, rules or regulations, including but not limited to any failure to comply with the requirements of Section 409A of this Code. No fractional Shares shall be delivered, nor shall any cash in lieu of fractional Shares be paid. The Company shall have the right to deduct in cash (whether under this Plan or otherwise) in connection with all Awards any taxes required by law to be withheld and to require any payments required to enable it to satisfy its withholding obligations. In the case of any Award satisfied in the form of Shares, no Shares shall be issued unless and until arrangements satisfactory to the Company shall have been made to satisfy any tax withholding obligations applicable with respect to such Award. Subject to such terms and conditions as the Committee may impose, the Company shall have the right to retain, or the Committee may, subject to such terms and conditions as it may establish from time to time, permit Holders to elect to tender, Shares (including Shares issuable in respect of an Award) to satisfy, in whole or in part, the amount required to be withheld.

 

17.4          No Restriction on Corporate Action. Nothing contained in the Plan shall be construed to prevent the Company or any Affiliate from taking any corporate action which is deemed by the Company or such Affiliate to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any Award made under the Plan. No Employee, Director, Consultant, beneficiary or other person shall have any claim against the Company or any Affiliate as a result of any such action.

 

17.5          Restrictions on Transfer. No Award under the Plan or any Award Agreement and no rights or interests herein or therein, shall or may be assigned, transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or disposed of by a Holder except (i) by will or by the laws of descent and distribution, or (ii) where permitted under applicable tax rules, by gift to any Family Member of the Holder, subject to compliance with applicable laws. An Award may be exercisable during the lifetime of the Holder only by such Holder or by the Holder’s guardian or legal representative unless it has been transferred by gift to a Family Member of the Holder, in which case it shall be exercisable solely by such transferee. Notwithstanding any such transfer, the Holder shall continue to be subject to the withholding requirements provided for under Section 17.3 hereof.

 

17.6           Beneficiary Designations. Each Holder may, from time to time, name a beneficiary or beneficiaries (who may be contingent or successive beneficiaries) for purposes of receiving any amount which is payable in connection with an Award under the Plan upon or subsequent to the Holder’s death. Each such beneficiary designation shall serve to revoke all prior beneficiary designations, be in a form prescribed by the Company and be effective solely when filed by the Holder in writing with the Company during the Holder’s lifetime. In the absence of any such written beneficiary designation, for purposes of the Plan, a Holder’s beneficiary shall be the Holder’s estate.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

17.7          Rule 16b-3. It is intended that the Plan and any Award made to a person subject to Section 16 of the Exchange Act shall meet all of the requirements of Rule 16b-3. If any provision of the Plan or of any such Award would disqualify the Plan or such Award under, or would otherwise not comply with the requirements of, Rule 16b-3, such provision or Award shall be construed or deemed to have been amended as necessary to conform to the requirements of Rule 16b-3.

 

17.8          Clawback Policy. Notwithstanding anything contained herein or in any incentive “performance based” award, Awards under the Plan shall be subject to reduction, forfeiture or repayment by reason of a correction or restatement of the Company’s financial information if and to the extent such reduction or repayment is required by any applicable law.

 

17.9          No Obligation to Notify or Minimize Taxes.  The Company shall have no duty or obligation to any Holder to advise such Holder as to the time or manner of exercising any Award. Furthermore, the Company shall have no duty or obligation to warn or otherwise advise such Holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised.  The Company has no duty or obligation to minimize the tax consequences of an Award to any person.

 

17.10        Section 409A. Notwithstanding any other provision of the Plan, the Committee shall have no authority to issue an Award under the Plan with terms and/or conditions which would cause such Award to constitute non-qualified “deferred compensation” under Section 409A of the Code unless such Award shall be structured to be exempt from or comply with all requirements of Code Section 409A. The Plan and all Award Agreements are intended to comply with the requirements of Section 409A of the Code (or to be exempt therefrom) and shall be so interpreted and construed and no amount shall be paid or distributed from the Plan unless and until such payment complies with all requirements of Code Section 409A. If an Award is subject to Section 409A of the Code, (i) distributions shall only be made in a manner and upon an event permitted under Section 409A of the Code, (ii) payments to be made upon a termination of employment or service shall only be made upon a “separation from service” under section 409A of the Code, (iii) unless the Award specifies otherwise, each installment payment shall be treated as a separate payment for purposes of Section 409A of the Code, and (iv) in no event shall a Holder, directly or indirectly, designate the calendar year in which a distribution is made except in accordance with Section 409A of the Code. Any Award that is subject to Section 409A of the Code and that is to be distributed to a Key Employee (as defined below) upon separation from service shall be administered so that any distribution with respect to such Award shall be postponed for six months following the date of the Holder’s separation from service (unless an earlier death), if required by Section 409A. The determination of Key Employees, including the number and identity of persons considered Key Employees and the identification date, shall be made by the Committee or its delegate each year in accordance with section 416(i) of the Code and the “specified employee” requirements of Section 409A of the Code. It is the intent of the Company that the provisions of this Plan and all other plans and programs sponsored by the Company be interpreted to comply in all respects with Code Section 409A, however, the Company shall have no liability to the Holder, or any successor or beneficiary thereof, in the event taxes, penalties or excise taxes may ultimately be determined to be applicable to any payment or benefit received by the Holder or any successor or beneficiary thereof.

 

 

Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan

 

17.11        Indemnification. Each person who is or shall have been a member of the Committee or of the Board shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred thereby in connection with or resulting from any claim, action, suit, or proceeding to which such person may be made a party or may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid thereby in settlement thereof, with the Company’s approval, or paid thereby in satisfaction of any judgment in any such action, suit, or proceeding against such person; provided, however, that such person shall give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive and shall be independent of any other rights of indemnification to which such persons may be entitled under the Company’s Articles of Incorporation or By-laws, by contract, as a matter of law, or otherwise.

 

17.12        Other Benefit Plans. No Award, payment or amount received hereunder shall be taken into account in computing an Employee’s salary or compensation for the purposes of determining any benefits under any pension, retirement, life insurance or other benefit plan of the Company or any Affiliate, unless such other plan specifically provides for the inclusion of such Award, payment or amount received. Nothing in the Plan shall be construed to limit the right of the Company to establish other plans or to pay compensation to its employees, in cash or property, in a manner which is not expressly authorized under the Plan.

 

17.13        Limits of Liability. Any liability of the Company with respect to an Award shall be based solely upon the contractual obligations created under the Plan and the Award Agreement. None of the Company, any member of the Board nor any member of the Committee shall have any liability to any party for any action taken or not taken, in good faith, in connection with or under the Plan.

 

17.14        Governing Law. Except as otherwise provided herein, the Plan shall be construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.

 

17.15        Subplans. The Board may from time to time establish one or more sub-plans under the Plan for purposes of satisfying applicable blue sky, securities or tax laws of various jurisdictions. The Board shall establish such sub-plans by adopting supplements to the Plan setting forth (i) such limitations on the Committee’s discretion under the Plan as the Board deems necessary or desirable and (ii) such additional terms and conditions not otherwise inconsistent with the Plan as the Board shall deem necessary or desirable. All supplements adopted by the Board shall be deemed to be part of the Plan, but each supplement shall apply only to Holders within the affected jurisdiction and the Company shall not be required to provide copies of any supplement to Holders in any jurisdiction that is not affected.

 

17.16        Severability of Provisions. If any provision of the Plan is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the Plan, and the Plan shall be construed and enforced as if such invalid or unenforceable provision had not been included in the Plan.

 

17.17        No Funding. The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of funds or assets to ensure the payment of any Award. Prior to receipt of Shares or a cash distribution pursuant to the terms of an Award, such Award shall represent an unfunded unsecured contractual obligation of the Company and the Holder shall have no greater claim to the Shares underlying such Award or any other assets of the Company or Affiliate than any other unsecured general creditor.

 

17.18        Headings. Headings used throughout the Plan are for convenience only and shall not be given legal significance.

 

 

Exhibit 10.2

 

PHOENIX MOTOR, INC.

 

2021 OMNIBUS EQUITY INCENTIVE PLAN

 

INCENTIVE STOCK OPTION AGREEMENT

 

THIS AGREEMENT made as of _____________, 2021 [insert date on which Committee grants the Option] (the “Grant Date”), by and between Phoenix Motor, Inc. (the “Company”), and ____________________ (the “Optionee”).

 

WITNESSETH:

 

WHEREAS, the Company has adopted and maintains the Phoenix Motor, Inc. 2021 Omnibus Equity Incentive Plan effective [____________], 2021 (the “Plan”), and

 

WHEREAS, the Committee has authorized the grant to the Optionee of an Option under the Plan, on the terms and conditions set forth in the Plan and as hereinafter provided,

 

NOW, THEREFORE, in consideration of the premises contained herein, the Company and the Optionee hereby agree as follows:

 

1.            Plan. This Option award is made pursuant to the terms of the Plan which are incorporated herein by reference. Terms used in this Agreement which are defined in the Plan shall have the same meaning as set forth in the Plan.

 

2.            Grant of Option. The Company hereby grants to the Optionee an option to purchase [insert # of shares] of the Company’s Shares for an Option price per Share equal to [insert price] (the Fair Market Value of a Share on the date of the grant of the Option) [for more than 10% shareholders must be at least 110% of FMV]. The Option is intended by the Committee to qualify as an Incentive Stock Option as provided in Section 9 and the provisions hereof shall be interpreted on a basis consistent with such intent.

 

3.            Exercise Period.

 

(a)           The Option shall be exercisable on or after vesting of the Option pursuant to the terms of the Plan and this Agreement.

 

(b)           All or any part of the Option may be exercised by the Optionee no later than the tenth (10th) anniversary of the Grant Date. [for more than 10% shareholders must be 5 years from Grant Date]

 

(c)           This Agreement and the Option shall terminate on the earlier of (i) the tenth (10th) anniversary of the Grant Date, or (ii) the date as of which the Option has been fully exercised.

 

 

Phoenix Motor, Inc. Omnibus Equity Incentive Plan Incentive Stock Option Agreement

 

4.            Vesting. Except as provided below and subject to the Optionee’s continuation of service with the Company during the vesting period, the Option shall vest and become exercisable pursuant to the following schedule:

 

[Insert Vesting Schedule]

 

5.            Termination of Service. In the event of the Optionee’s Termination of Service with the Company, the provisions of Article VI of the Plan shall control.

 

6.            [Change of Control. Notwithstanding the foregoing, upon a Change of Control, the Option shall automatically become fully vested and exercisable as of the date of such Change of Control.]¹

 

7.            Restrictions on Transfer of Option. This Agreement and the Option shall not be transferable otherwise than by will or by the laws of descent and distribution and the Option shall be exercisable, during the Optionee’s lifetime, solely by the Optionee.

 

8.            Exercise of Option.

 

(a)           The Option shall become exercisable at such time as shall be provided herein or in the Plan and shall be exercisable by written notice of such exercise, in the form prescribed by the Committee, to the Secretary of the Company, at its principal office. The notice shall specify the number of Shares for which the Option is being exercised.

 

(b)           Except as otherwise provided in Sections 8(c) and 8(d), Shares purchased pursuant to the Option shall be paid for in full at the time of such purchase in cash, in Shares, including Shares acquired pursuant to the Plan, or part in cash and part in Shares. Shares transferred in payment of the Option price shall be valued as of the date of transfer based on their Fair Market Value.

 

(c)           The Option price may be paid, in whole or in part, by (i) an immediate market sale or margin loan as to all or a part of the Shares which the Optionee shall be entitled to receive upon exercise of the Option, pursuant to an extension of credit by the Company to the Optionee of the Option price (or portion thereof to be so paid), (ii) the delivery of the Shares from the Company directly to a brokerage firm, and (iii) the delivery of the Option price from sale or margin loan proceeds from the brokerage firm directly to the Company.

 

(d)           The Option price may be paid, in whole or in part, by reducing the number of Shares to be issued upon exercise of the Option by the number of Shares having an aggregate Fair Market Value equal to the Option price (or portion thereof to be so paid) as of the date of the Option’s exercise.

 

¹ TBD

 

 

Phoenix Motor, Inc. Omnibus Equity Incentive Plan Incentive Stock Option Agreement

 

9.            Tax Status of Option.

 

(a)           Incentive Stock Option. This Option is intended to be an Incentive Stock Option within the meaning of Section 422(b) of the Code, but the Company does not represent or warrant that this Option qualifies as such. The Optionee should consult with the Optionee’s own tax advisor regarding the tax effects of this Option and the requirements necessary to obtain favorable income tax treatment under Section 422 of the Code, including, but not limited to, holding period requirements. If at any time the Option shall fail or cease to meet the requirements of Section 422 of the Code, it shall automatically convert to, and be treated as, a Non-qualified Stock Option under the terms of the Plan.

 

(b)           Exercise Limitation. An Option shall not be treated as an Incentive Stock Option to the extent the aggregate Fair Market Value (determined at the time the Option is granted) of the Shares with respect to which the Optionee may exercise the Option for the first time during any calendar year, when added to the aggregate Fair Market Value of the shares subject to any other options designated as Incentive Stock Options granted to the Optionee under all stock option plans of Company and any parent corporation or subsidiary corporation thereof (both as defined in Section 424 of the Code) prior to the Grant Date with respect to which such options are exercisable for the first time during the same calendar year, shall exceed One Hundred Thousand Dollars ($100,000), as and only to the extent necessary to comply with the limitations under Code Section 422(d). For purposes of the preceding sentence, options designated as Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of shares of stock shall be determined as of the time the option with respect to such shares is granted as required under Code Section 422(d).

 

(c)            Notice of Disqualifying Disposition. The Optionee shall promptly notify the Company if the Optionee disposes of any of the Shares acquired pursuant to the Option within one (1) year after the date the Optionee exercises all or part of the Option or within two (2) years after the Grant Date of Option. Until such time as the Optionee disposes of such Shares in a manner consistent with the provisions of this Agreement, unless otherwise expressly authorized by the Company, the Optionee shall hold all Shares acquired pursuant to the Option in the Optionee’s name (and not in the name of any nominee) for the one-year period immediately after the exercise of the Option and the two-year period immediately after the Grant Date of the Option. At any time during the one-year or two-year periods set forth above, the Company may place a legend on any certificate representing shares acquired pursuant to the Option requesting the transfer agent for the Company’s stock to notify the Company of any such transfers. The obligation of the Optionee to notify the Company of any such transfer shall continue notwithstanding that a legend has been placed on the certificate pursuant to the preceding sentence.

 

10.          Regulation by the Committee. This Agreement and the Option shall be subject to the administrative procedures and rules as the Committee shall adopt. All decisions of the Committee upon any question arising under the Plan or under this Agreement, shall be conclusive and binding upon the Optionee and any person or persons to whom any portion of the Option has been transferred by will, by the laws of descent and distribution.

 

 

Phoenix Motor, Inc. Omnibus Equity Incentive Plan Incentive Stock Option Agreement

 

11.          Rights as a Shareholder. The Optionee shall have no rights as a shareholder with respect to Shares subject to the Option until certificates for Shares are issued to the Optionee.

 

12.          Reservation of Shares. With respect to the Option, the Company hereby agrees to at all times reserve for issuance and/or delivery upon payment by the Optionee of the Option price, such number of Shares as shall be required for issuance and/or delivery upon such payment pursuant to the Option.

 

13.          Delivery of Share Certificates. Within a reasonable time after the exercise of the Option the Company shall cause to be delivered to the Optionee, his or her legal representative or his or her beneficiary, a certificate for the Shares purchased pursuant to the exercise of the Option.

 

14.          Withholding. In the event the Optionee elects to exercise the Option (or any part thereof), the Company or an Affiliate shall be entitled to deduct and withhold the minimum amount necessary in connection with the issuance of Shares to the Optionee to satisfy its withholding obligations under any and all federal, state or local tax rules or regulations.

 

15.          Amendment. The Committee may amend this Agreement at any time and from time to time; provided, however, that no amendment of this Agreement that would materially and adversely impair the Optionee’s rights or entitlements with respect to the Option shall be effective without the prior written consent of the Optionee.

 

16.          Optionee Acknowledgment. Optionee acknowledges and agrees that the vesting of Shares pursuant to this Option Agreement is earned only by continuing service with the Company. Optionee further acknowledges and agrees that nothing in this Agreement, nor in the Plan shall confer upon the Optionee any right to continue in the service of the Company, nor shall it interfere in any way with Optionee’s right or the Company’s right to terminate Optionee’s service at any time, with or without Cause. Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option and fully understands all provisions of the Option. By executing this Agreement, the Optionee hereby agrees to be bound by all of the terms of both the Plan and this Agreement.

 

	PHOENIX MOTOR, INC.
	By:
				Date
	Its:
		,Optionee
				Date

 

 

Phoenix Motor, Inc. Omnibus Equity Incentive Plan Incentive Stock Option Agreement

 

SAMPLE 

NOTICE OF EXERCISE

 

Phoenix Motor, Inc. Compensation Committee	Date of Exercise:

Ladies and Gentlemen:

 

This constitutes notice under my stock Option that I elect to purchase the number of Shares for the price set forth below.

 

Type of Option:	Incentive Stock Option
Grant Date:
Number of Shares as to which Option is exercised:
Certificates to be issued in name of:
Total exercise price:	$
Cash payment delivered herewith:	$

 

By this exercise, I agree (i) to execute or provide such additional documents as Phoenix Motor, Inc. (the “Company”) may reasonably require pursuant to the terms of this Notice of Exercise and the Company’s 2021 Omnibus Equity Incentive Plan (the “Plan”), and (ii) to provide for the payment by me to the Company (in the manner designated by the Company) of the Company’s withholding obligation, if any, relating to the exercise of this Option.

 

	Very truly yours,
	Optionee

 

 

Exhibit 10.3

 

 

 

PHOENIX CARS, LLC

OFFER OF EMPLOYMENT

 

Date: February 5, 2021

 

Joseph R. Mitchell

1460 W, 141st Way

Westminster, CO, 80023

 

Dear Mr. Joseph R. Mitchell.

 

We are very excited that you will be joining Phoenix Cars LLC, a California Limited Liability Company (the “company”), as Chief Executive Officer (CEO) reporting to Chairman Denton Peng, effective on February 15, 2021 (the “Effective Date”). This letter will confirm the terms of your employment.

 

Term of Employment. The initial term of your employment under this Agreement shall be at least twelve (12) months beginning from Effective Date.

 

At-Will Employment

Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time at the will of either you or the Company. Terms and conditions of employment with the Company may be modified at the sole discretion of the Company with or without cause and with or without notice. Other than the Company Chairman, no one has the authority to make any agreement for employment other than for employment at-will or to make any agreement limiting the Company’s discretion to modify the terms and conditions of employment. Only the Chairman has the authority to make any such agreement and then only in writing and signed by the Chairman and the respective employee. No implied contract concerning any employment-related decision or term, or condition of employment can be established by any other statement, conduct, policy, or practice.

 

Position and Duties

You shall serve in the position of CEO of the Company and shall perform all the duties assigned by the Board of Directors. Your position, job description, salary, duties and responsibilities may be modified from time to time in the sole discretion of the Company. You agree to strictly adhere to all of the rules and regulations of the Company as may be set forth in any Employee Manual or published policies of the Company now or in the future, including all amendments to the Manual which may be made in the future in the Company’s sole discretion (as published or amended from time to time, the “Manual”).

  

Phoenix Cars LLC, 401 S. Doubleday Ave, Ontario, Ca 91761 USA

Company Confidential

Page 2

  

No Other Employment

You agree to devote your full business time, attention, and best efforts to the business of the Company during the employment relationship. The Company’s normal business hours are from 8:00 a.m. to 5:00 p.m. PST. Monday through Friday.

 

Compensation of Employee

 

(a)

Salary - The Company shall pay you, and you agree to accept from the Company in payment for your services to the Company, a salary of $250,000 per year (the “Yearly Salary”), payable in equal bi-monthly installments on regular dates established by the Company, subject to applicable tax withholding requirements. Any proposed increase of your salary, compensation or benefits must be approved by the Chairman:

 

(b)

Annual Performance Bonus - You will be eligible to receive an annual bonus of 75% of base salary based or the Company’s performance and your individual performance. To incentivize you to remain employed with the Company, you must be employed on the date any bonus is paid in order to earn the bonus.

  

(c)

Stock Option - Subject to the approval of the Board and in accordance with the existing policies and plans of the Company governing the vesting practices, you will be granted 700,000 shares of stock options of Phoenix Motor Inc’s Common Stock.

 

(d)

Vacation; Sick Leave; Holidays - 5 weeks (25 days) Paid Time off (PTO) , accrued on a monthly basis for each full month of employment. PTO may be applied to vacations, sick days, doctor visits, or other personal leaves and time off as you may choose, not to exceed your total accrual. Prior supervisor approval should be obtained whenever possible; emergency situations notwithstanding. Standard company holidays are established by Company management during the first few weeks of each year. For the current year (2021) the Company currently recognizes nine (9) fixed holidays and one floating holiday. A list of approved holidays is included as an addendum to the employee handbook which will be provided by the Human Resources Department.

 

(e)

Insurance - Effective the first day of the month following 30 days of employment, you will be eligible to participate in the Company healthcare benefit plan which includes medical, dental and vision coverage for you and your family. The Company pays 75% of the Gold 0/30 BlueShield of California plan cost of employee and eligible Family member. 75% of the cost of coverage for you, as an employee and eligible family. The company will also contribute 75% of life insurance coverage for you equivalent to your base annual wage rate, subject to coverage limitations of the insurance carrier. Although you may be eligible for such benefits if they become available in the future, the Company does not promise or represent that such benefits will in fact become available or that once made available they will be continued.

 

(f)

401(k) Plan - The Company offers a 401K plan. You will be eligible to enter the plan at the beginning of the month, following completion of 90 days employment. There is no Company match for the plan at this time, but the Company may elect to make future contributions to the plan at its sole discretion.

 

Phoenix Cars LLC, 401 S. Doubleday Ave, Ontario, Ca 91761 USA

Company Confidential

Page 3

 

(g)

Employee Expenses - The Company will reimburse you for pre-approved business expenses (approved by the Chairman, as provided within the guidelines of the Company’s expense policy. All expenses shall be subject to review and approval by your direct report and shall require reasonable documentation.

 

Severance Benefits

In the event that the Company terminates your employment without “Cause,” or you terminate your employment with the Company for “Good Reason,” then, provided you enter into and do not revoke a binding release of claims in favor of the Company within 30 days of the date of your termination, which is reasonably acceptable to the Company, the Company shall pay to you, in accordance with the Company’s regular payroll practices, three (3) months of severance pay at your then applicable base salary.

 

For purposes of this Agreement, “Cause” shall mean your failure to substantially perform your services hereunder or a material breach of any provisions of this Agreement; your commission of any act of fraud, misappropriation, conversion, disloyalty or embezzlement; your commission of a felony or any crime involving an act of dishonesty; or your incompetence, insubordination or gross negligence or willful misconduct.

 

For purposes of this Agreement, “Good Reason” means the occurrence of one of the following:

 

(i) a material diminution or other material adverse change in your office, duties, salary, benefits or responsibilities made without your prior written consent;

 

(ii) a material breach by the Company of this Agreement;

 

All severance payments are subject to withholding of such amounts, if any, relating to tax and other payroll deductions as the Company reasonably determines are required pursuant to any applicable law or regulations.

 

Confidential Information and Invention Assignment Agreement

During your employment with the Company, you may have access to certain confidential and proprietary information. Your acceptance of this offer and commencement of employment is contingent upon the execution and delivery of the Company’s Confidential Information and Invention Assignment Agreement (the “Confidentiality Agreement”) to the Company prior to your start date, a copy of which has been enclosed for your review and execution.

 

Governing Law

This Agreement is made and shall he construed and enforced in accordance with the laws of the State of California. This Agreement and the Exhibits supersede and replace all prior agreements or understandings, oral or written, between the Company and you, except for prior confidentiality agreements, if any. This Agreement may not be modified except in writing signed both by the Company Chairman and by you.

 

You acknowledge that, prior to signing this Agreement; you have had an opportunity to seek the advice of independent counsel of your choice relating to the terms of this Agreement.

 

Phoenix Cars LLC, 401 S. Doubleday Ave, Ontario, Ca 91761 USA

Company Confidential 

Page 4

 

This employment offer will expire if not accepted within five days of the document posted date. To accept the offer before this expiration date, you must sign and date this letter in the space provided below and return it to me, along with a signed and dated copy of the Confidentiality Agreement. This letter, together with the Confidentiality Agreement, constitutes and contains the entire agreement, and replaces any and all prior discussions and agreements. This is an integrated agreement.

 

Please sign and date this letter below confirming your agreement to all the foregoing. This offer letter will expire on February 8, 2021 at 5 pm PST.

 

Sincerely,

 

/s/ Denton Peng
Denton Peng
Chairman

 

I accept the Company’s offer of employment as stated in this letter and I agree that the employment relationship is terminable at will by either the Company or me.

 

/s/ Joseph R. Mitchell
Joseph R. Mitchell

 

Date:

FEB 5, 2021

 

Phoenix Cars LLC, 401 S. Doubleday Ave, Ontario, Ca 91761 USA

Company Confidential 

WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized agents.

 

/s/ Xiaofeng Peng
Xiaofeng Peng
Chairman
Date:	FEB 08 / 2021

 

EMPLOYEE
/s/ Joseph R. Mitchell
Joseph R. Mitchell
Date:	FEB 5 / 2021

 

 

 

Exhibit 10.4

 

		FUTURE TECHNOLOGY TODAY

 

PHOENIX CARS, LLC

OFFER OF EMPLOYMENT

 

November 4, 2021

 

Dear Chris Wang:

 

We are very excited that you will be continuing with Phoenix Cars LLC, a California Limited Liability Company (the “Company”), as Chief Financial Officer of the Company reporting to Chief Executive Officer, effective on November 1, 2021. This letter will confirm the terms of your employment.

 

Position and Duties

You shall serve in the position of Chief Financial Officer of the Company and shall perform all the duties of that position as described on Exhibit A. Your position, job description, salary, duties and responsibilities may be modified from time to time in the sole discretion of the Company. You agree to strictly adhere to all of the rules and regulations of the Company as may be set forth in any Employee Manual or published policies of the Company now or in the future, including all amendments to the Manual which may be made in the future in the Company’s sole discretion (as published or amended from time to time, the “Manual”).

 

No Other Employment

You agree to devote your full business time, attention, and best efforts to the business of the Company during the employment relationship. The Company’s normal business hours are from 8:00 a.m. to 5:00 p.m. PST, Monday through Friday.

 

Compensation of Employee

 

(a)

Salary - The Company shall pay you, and you agree to accept from the Company in payment for your services to the Company, a salary of $200,000.00 per year (the “Yearly Salary”), payable in equal bi-monthly installments on regular dates established by the Company, subject to applicable tax withholding requirements. Any proposed increase of your salary, compensation or benefits must be approved by the CEO and/or CFO.

 

(b)

Vacation; Sick Leave; Holidays - 4 weeks Paid Time off (PTO). PTO is accrued on a monthly basis for each full month of employment after the completion of the 90-day introductory period. PTO may be applied to vacations, sick days, doctor visits, or other personal leaves and time off as you may choose, not to exceed your total accrual. Prior supervisor approval should be obtained whenever possible, emergency situations notwithstanding. Standard company holidays are established by Company management during the first few weeks of each year. For the current year (2021) the Company currently recognizes nine (9) fixed holidays and one floating holiday. A list of approved holidays is included as an addendum to the employee handbook which will be provided by the Human Resources Department.

 

 

		FUTURE TECHNOLOGY TODAY

 

(c)

Insurance - Effective the first day of the of employment, you will be eligible to participate in the Company healthcare benefit plan which includes medical, dental and vision coverage for you and your family. The Company pays 75% of the Gold 0/30 BlueShield of California plan cost of employee and eligible Family member. 75% of the cost of coverage for you, as an employee and eligible family. The company will also contribute 75% of life insurance coverage for you equivalent to your base annual wage rate, subject to coverage limitations of the insurance carrier. Although you may be eligible for such benefits if they become available in the future, the Company does not promise or represent that such benefits will in fact become available or that once made available they will be continued.

 

(d)

401(k) Plan - The Company offers a 401K plan. You will be eligible to enter the plan at the beginning of the month following completion of 90 days employment. There is no Company match for the plan at this time, but the Company may elect to make future contributions to the plan at its sole discretion.

 

(e)

Employee Expenses - The Company will reimburse you for pre-approved business expenses (approved by the CEO, COO and/or CFO), as provided within the guidelines of the Company’s expense policy. All expenses shall be subject to review and approval by your direct report and shall require reasonable documentation.

 

Confidential Information and Invention Assignment Agreement

During your employment with the Company, you may have access to certain confidential and proprietary information. Your acceptance of this offer and commencement of employment is contingent upon the execution and delivery of the Company’s Confidential Information and Invention Assignment Agreement (the “Confidentiality Agreement”) to the Company prior to your start date, a copy of which has been enclosed for your review and execution.

 

Governing Law

This Agreement is made and shall be construed and enforced in accordance with the laws of the State of California. This Agreement and the Exhibits supersede and replace all prior agreements or understandings, oral or written, between the Company and you, except for prior confidentiality agreements, if any. This Agreement may not be modified except in writing signed both by the Company CEO and/or CFO and by you.

 

At-Will Employment

Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time at the will of either you or the Company. Terms and conditions of employment with the Company may be modified at the sole discretion of the Company with or without cause and with or without notice. Other than the Company (“CEO, COO and/or CFO”), no one has the authority to make any agreement for employment other than for employment at-will or to make any agreement limiting the Company’s discretion to modify the terms and conditions of employment. Only the CEO, COO and/or CFO has the authority to make any such agreement and then only in writing and signed by the CEO, COO and/or CFO and the respective employee. No implied contract concerning any employment-related decision or term, or condition of employment can be established by any other statement, conduct, policy, or practice.

  

 

		FUTURE TECHNOLOGY TODAY

 

You acknowledge that, prior to signing this Agreement; you have had an opportunity to seek the advice of independent counsel of your choice relating to the terms of this Agreement.

 

This employment offer will expire if not accepted within five days of the document posted date. To accept the offer before this expiration date, you must sign and date this letter in the space provided below and return it to me, along with a signed and dated copy of the Confidentiality Agreement. This letter, together with the Confidentiality Agreement, constitutes and contains the entire agreement, and replaces any and all prior discussions and agreements. This is an integrated agreement.

 

Please sign and date this letter below confirming your agreement to all the foregoing.

 

Sincerely,
/s/ Joe Mitchell
Joe Mitchell

 

I accept the Company’s offer of employment as stated in this letter and I agree that the employment relationship is terminable at will by either the Company or me.

 

Wenbing Wang		11/10/21
[Print Name]		[Date]
/s/ Wenbing Wang
[Signature]

 

 

 

Exhibit 10.5

 

 

 

PHOENIX CARS, LLC

OFFER OF EMPLOYMENT

 

October 7, 2021

 

Ronald Iacobelli

5138 Cypress Street

Vancouver, BC, V6M 4J1

Cell (604)418-5603

[email protected]

 

Dear Mr. Iacobelli,

 

We are very excited that you will be joining Phoenix Cars LLC, a Delaware Limited Liability Company (the “Company”), as CTO reporting to the CEO Joseph R. Mitchell, effective on October 11, 2021 (the “Effective Date”). This letter will confirm the terms of your employment.

 

Position and Duties

You shall serve in the position of CTO of the Company and shall perform all the duties assigned by the CEO. Your position, job description, salary, duties and responsibilities may be modified from time to time in the sole discretion of the Company. You agree to strictly adhere to all of the rules and regulations of the Company as may be set forth in any Employee Manual or published policies of the Company now or in the future, including all amendments to the Manual which may be made in the future in the Company's sole discretion (as published or amended from time to time, the “Manual”).

 

Limited Other Employment

You agree to devote your full business time, attention, and best efforts to the business of the Company during the employment relationship. The Company’s normal business hours are from 8:00 a.m. to 5:00 p.m. PST, Monday through Friday. Notwithstanding the foregoing provisions of this paragraph, you may provide services only to INTGR8 in the same manner/scope of work as currently performing, so long as such services do not interfere with the performance of your obligations to the Company or the provision of such services has been approved in writing by the Company. The Company acknowledges that you are co-owner and executive of INTGR8 Technologies Inc. and agrees that you will continue only in that role and as within the terms of this paragraph.

 

Compensation of Employee

 

(a)

Salary - The Company shall pay you, and you agree to accept from the Company in payment for your services to the Company, a salary of $230,000 per year (the “Yearly Salary”), payable in equal bi-monthly installments on regular dates established by the Company, subject to applicable tax withholding requirements. Any proposed increase of your salary, compensation or benefits must be approved by the CEO.

 

(b)

Annual Performance Bonus - You will be eligible to receive an annual bonus of 50% of base salary based or the Company’s performance and your individual KPI performance. To incentivize you to remain employed with the Company, you must be employed on the date any bonus is paid in order to earn the bonus.

 

(c)

Stock Option - Subject to the approval of the Board and in accordance with the existing policies and plans of the Company governing the vesting practices, you will be granted 500,000 shares of stock options of Phoenix Motor Inc’s Common Stock.

 

(d)

Vacation; Sick Leave; Holidays - 4 weeks (20 days) Paid Time off (PTO) , accrued on a monthly basis for each full month of employment. PTO may be applied to vacations, sick days, doctor visits, or other personal leaves and time off as you may choose, not to exceed your total accrual. Prior supervisor approval should be obtained whenever possible; emergency situations notwithstanding. Standard company holidays are established by Company management during the first few weeks of each year. For the current year (2021) the Company currently recognizes nine (9) fixed holidays and one floating holiday. A list of approved holidays is included as an addendum to the employee handbook which will be provided by the Human Resources Department.

 

(e)

Insurance - Effective the first day of the month following 30 days of employment, you will be eligible to participate in the Company healthcare benefit plan or such other plan for foreign non- resident executive employee. The plan includes medical, dental and vision coverage for you and your family. The Company pays 75% of the Gold 0/30 BlueShield of California plan cost of employee and eligible Family member. 75% of the cost of coverage for you, as an employee and eligible family. The company will also contribute 75% of life insurance coverage for you equivalent to your base annual wage rate, subject to coverage limitations of the insurance carrier. Although you may be eligible for such benefits if they become available in the future, the Company does not promise or represent that such benefits will in fact become available or that once made available they will be continued.

 

(f)

401(k) Plan - The Company offers a 401K plan. You will be eligible to enter the plan at the beginning of the month following completion of 90 days employment. There is no Company match for the plan at this time, but the Company may elect to make future contributions to the plan at its sole discretion.

 

(g)

Employee Expenses - The Company will reimburse you for pre-approved business expenses (approved by the CEO), as provided within the guidelines of the Company’s expense policy. All expenses shall be subject to review and approval by your direct report and shall require reasonable documentation.

 

At-Will Employment

Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time at the will of either you or the Company. Terms and conditions of employment with the Company may be modified at the sole discretion of the Company with or without cause and with or without notice. Other than the Company CEO, no one has the authority to make any agreement for employment other than for employment at-will or to make any agreement limiting the Company’s discretion to modify the terms and conditions of employment. Only the CEO has the authority to make any such agreement and then only in writing and signed by the CEO and the respective employee. No implied contract concerning any employment-related decision or term, or condition of employment can be established by any other statement, conduct, policy, or practice.

 

Confidential Information and Invention Assignment Agreement

During your employment with the Company, you may have access to certain confidential and proprietary information. Your acceptance of this offer and commencement of employment is contingent upon the execution and delivery of the Company’s Confidential Information and Invention Assignment Agreement (the “Confidentiality Agreement”) to the Company prior to your start date, a copy of which has been enclosed for your review and execution.

 

Governing Law

This Agreement is made and shall be construed and enforced in accordance with the laws of the State of California. This Agreement and the Exhibits supersede and replace all prior agreements or understandings, oral or written, between the Company and you, except for prior confidentiality agreements, if any. This Agreement may not be modified except in writing signed both by the Company CEO and by you.

 

You acknowledge that, prior to signing this Agreement; you have had an opportunity to seek the advice of independent counsel of your choice relating to the terms of this Agreement.

 

This employment offer will expire if not accepted within five days of the document posted date. To accept the offer before this expiration date, you must sign and date this letter in the space provided below and return it to me, along with a signed and dated copy of the Confidentiality Agreement. This letter, together with the Confidentiality Agreement, constitutes and contains the entire agreement, and replaces any and all prior discussions and agreements. This is an integrated agreement.

 

Please sign and date this letter below confirming your agreement to all the foregoing. This offer letter will expire on October 8, 2021 at 5pm PST.

 

Sincerely,
/s/ Joseph R. Mitchell	10/7/2021
Joseph R. Mitchell
CEO

 

I accept the Company’s offer of employment as stated in this letter and I agree that the employment relationship is terminable at will by either the Company or me.

 

/s/ Ronald Iacobelli
Ronald Iacobelli
Date:	10/7/2021

 

 

 

Exhibit 10.6

 

Phoenix Motorcars Factory Direct Representative Agreement

 

This Phoenix Motorcars Factory Direct Representative Agreement (the “Agreement”) is made and entered into as of February 22nd, 2019, (the “Effective Date”) by and between Phoenix Cars, LLC, having its offices at 401 S. Doubleday Avenue, Ontario, CA 91761 (“PMC”), and Creative Bus Sales, Inc. (“FACTORY REP”), having a headquarters at 14740 Ramona Avenue, Chino, CA 91710, for themselves and on behalf of all of their successors and assigns. Each of PMC and FACTORY REP shall be referred to herein as a “Party”, and together as the “Parties”.

 

Recitals

 

WHEREAS, PMC is a manufacturer of all-electric powertrain and has experience in manufacturing and supplying all-electric powertrain buses for sale in the US market. PMC wishes to supply its models (“Vehicles”) in all the territories, as defined in this agreement, through FACTORY REP as its Authorized Factory Direct Representative;

 

WHEREAS, FACTORY REP has the experience in the transportation sector specifically in the sales, parts distribution and as a service provider of all types of vans and buses and wishes to act as the exclusive Authorized Factory Direct Representative for PMC’s Vehicles; and

 

WHEREAS, PMC desires to appoint FACTORY REP as its Authorized PMC Factory Direct Representative to represent, sell, distribute, and service its vehicles pursuant to the terms and conditions of this Agreement, and FACTORY REP accepts such appointment.

 

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

1.

APPOINTMENT AND ACCEPTANCE OF AUTHORIZED PMC FACTORY DIRECT REPRESENTATIVE

 

1.1           PMC hereby appoints FACTORY REP, and FACTORY REP hereby accepts the appointment, as its Authorized Factory Direct Representative of Vehicles (as defined in Section 1.3 below) in the Territory (as defined in Section 1.2 below). In furtherance thereto, PMC hereby grants to FACTORY REP the right to represent, market, distribute, sell, rent, lease, service and otherwise dispose (collectively, "Represent" or “Representation”) the Vehicles, in the Territory.

 

1.2           “Territory” shall mean the exclusive appointment of the FACTORY REP for all states in the United States, including Hawaii and Alaska.

 

1.3           “Vehicles” shall include all current models and variations built with body types manufactured by Forest River Inc. subsidiaries. FACTORY REP may purchase or order all models of Vehicles produced by PMC, its subsidiaries, and their respective successors, including all next generation and newly developed models, together with all parts, components, accessories, and equipment thereof or subsidiaries, and their respective successors, directly or indirectly, produce, convert, assemble, or manufacture presently or may in the future produce, convert, assemble, or manufacture. FACTORY REP shall be given the First Right of Refusal to exclusively represent and distribute any new products that PMC develops.

 

 

1.4           PMC hereby grants to the FACTORY REP during the term of this Agreement the fully- paid up and royalty free, non-transferable right and license to use the trademarks, trade names, service and other manuals, copyrighted materials, and other marketing and technical information (to the extent that utilization of such technical information does not impinge on the intellectual property rights of PMC) associated with Vehicles in connection with and in furtherance of FACTORY REP’s Representation of Vehicles. PMC requires that the FACTORY REP abide by PMC guidelines for brand usage and PMC approval of all related images, marketing and advertising collateral.

 

1.5

The Parties mutually agree to the following Sales Target for the initial term:

 

·

80 vehicles commencing on April 1st, 2019, up to December 31st, 2019.

·

180 vehicles on January 1st, 2020 up to December 31st, 2020.

·

240 vehicles on January 1st, 2021 up to December 31st, 2021.

 

1.6           After the conclusion of the initial term, this agreement will be renewed based on conditions set out in section 8.1. New annual sales targets will be agreed on 60 days prior to the renewal. The Parties agree that increases in annual sales targets shall be reasonable, and the determination of reasonableness shall be based on historic practice.

 

2.

GENERAL RESPONSIBILITIES OF FACTORY REP

 

2.1           In consideration of the rights granted to it under this Agreement and subject to the terms and conditions of this Agreement, FACTORY REP shall provide the following:

 

a.             FACTORY REP shall promote, market and sell PMC’s Vehicles in the Territory during the term of this agreement.

 

b.            FACTORY REP shall secure and maintain necessary permits and licenses for the operation of its business as contemplated by this Agreement. PMC shall assist FACTORY REP in obtaining and renewing any such permits and licenses.

 

c.             FACTORY REP shall assist customers with evaluating charging infrastructure needs in conjunction with PMC.

 

d.            FACTORY REP shall offer the customer the specific Electric Vehicle Supply Equipment (EVSE) as approved by PMC.

 

e.             FACTORY REP shall handle all California HVIP applications and other state voucher incentive programs as needed.

 

f.

FACTORY REP shall assist customers with all title and registration requirements.

 

3.

TERMS OF SALE AND PURCHASE OF VEHICLES

 

3.1           In the event of discontinuation of a Vehicle model, PMC shall fully support FACTORY REP with the discontinuation campaign, including, but not limited to, ongoing support for those discontinued Vehicle models as well as introduction of a new vehicle model in its place, if PMC so determines to introduce a new model. PMC fully understands the importance of developing and bringing new vehicle models to the market either as replacements for discontinued models or as newly introduced vehicle models as this effort relates to the financial well-being and growth of both PMC and FACTORY REP.

 

 

3.2           PMC agrees to assist FACTORY REP, as FACTORY REP may reasonably request based on prevailing industry practices in the marketing and launch of Vehicles and on-going Representation of Vehicles as communicated by FACTORY REP to PMC or as may be agreed by the Parties from time to time.

 

4.

PURCHASE ORDERS

 

4.1           FACTORY REP shall submit all Purchase Orders and customer requirements in written form via e-mail, U.S. mail, or via an agreed upon processing system. The Purchase Order represents the ordering dealer’s or buyer’s offer to purchase Vehicles under the terms and conditions of the Purchase Order. PMC may, in its sole discretion, accept or reject any Purchase Order within ten (10) business days of receipt of the Purchase Order. PMC may accept any Purchase Order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering the Vehicle, whichever occurs first. No Purchase Order is binding on PMC unless accepted by PMC as provided in this Agreement. FACTORY REP has the right to cancel or amend any Purchase Order on behalf of any purchaser if within ten (10) business days of PMC’s receipt of the Purchase Order FACTORY REP notifies PMC in writing of such amendment or cancellation

 

4.2           Each Purchase Order for the Vehicles shall constitute a separate contract, and any default, breach, or failure, including failure of timely delivery or payment, by PMC, FACTORY REP, or its dealers or ultimate buyers of Vehicles in relation to any individual Purchase Order shall not entitle a Party to treat this Agreement as terminated or breached.

 

4.3           PMC will provide the FACTORY REP with a standard form of Order Form, Customer Requirement Form and Change Request Form.

 

5.

SHIPMENT AND DELIVERY OF VEHICLE(S)

 

5.1           PMC agrees to provide a delivery schedule for the Vehicle(s) pursuant to the Purchase Order accepted by PMC. All Vehicles shall be affixed with all required labels and place in the compartments required documentation, publications, and other required materials, all of the forgoing in compliance of the applicable Federal and State Laws and regulations related to delivery and sale of new Vehicles in applicable markets. PMC and Factory Rep are equally responsible for determining compliance with applicable federal and state laws in order to sell vehicles manufactured by PMC. The Parties will mutually agree on what is needed in order to sell and deliver vehicles in order to guarantee compliance with such federal and state laws and regulations. For the avoidance of doubt, FACTORY REP is not responsible for PMC’s compliance with any applicable manufacturing standards and specifications required by applicable law for the manufacture of any vehicles manufactured by PMC. PMC shall timely deliver applicable Manufacturer's Statement of Origin (MSO) / Manufacturer's Certificate of Origin (MCO) for each Vehicle to facilitate sale of Vehicles upon Vehicle delivery.

 

5.2           FACTORY REP shall, in respect to each Purchase Order for the Vehicles to be supplied under this Agreement, be responsible for ensuring the accuracy of each Purchase Order and FACTORY REP will be responsible for any costs arising from any inaccuracies and providing PMC with information which is necessary for PMC to fulfill the order and to comply with all applicable legal requirements.

 

 

5.3           FACTORY REP may, in its discretion, either direct PMC to deliver completed Vehicles to FACTORY REP or pick up the completed Vehicles at PMC’s location. For delivered Vehicles, PMC agrees to deliver completed Vehicles to Factory Rep at 14740 Ramona Avenue, Chino, California 91710.

 

6.

PRICE AND PAYMENT

 

6.1           Any purchase of the Vehicles from PMC will be at the prices set out in PMC’s price list in effect when PMC accepts the related Purchase Order, provided, however, that PMC hereby agrees to provide a minimum of thirty (30) days prior written notice for any changes related to the price list. Applicable pricing for future vehicle types and models shall be determined by PMC and agreed upon by FACTORY REP.

 

6.2           Transportation and other related charges, insurance, taxes, duties and other charges of any kind imposed by Governmental Authority shall be listed as a separate line-item on PMC’s invoice, in accordance with reasonable commercial terms and in accordance with the customary practices of the commercial truck industry. The ultimate purchaser of the Vehicle is responsible for all charges, costs and taxes.

 

6.3           Parties understand that payment for the Vehicles by FACTORY REP to PMC shall take place as outlined in PMC’s price list. Subject to the foregoing, FACTORY REP will pay PMC for Vehicles by fed-wire to PMC prior to vehicles being released from PMC’s facility, and provided that allowance for this payment schedule shall be made for weekends and U.S. bank holidays. The title to the Vehicles shall pass in accordance with the terms set forth in the Purchase Order accepted by PMC.

 

6.4           The Parties shall notify the other in writing of any dispute with any invoice (along with a reasonably detailed dispute description) as soon as possible but no later than thirty days from the date of receipt of the invoice. The Parties shall seek to resolve all disputes expeditiously and in good faith. Notwithstanding anything to the contrary in this Agreement, the Parties shall continue performing their obligations under this Agreement during any dispute, unless the disputed invoice is in an amount that would constitute a material breach of this Agreement. Such amount shall be determined in the future by the Parties.

 

7.

VEHICLE WARRANTIES, RECALLS, PRODUCT LIABILITY, LEMON LAWS, OTHER REQUIREMENTS

 

7.1           Each Party shall as soon as reasonably possible inform the other Party of any condition that is or may be a safety related defect or regulatory non-compliance with respect to the Vehicles and other Vehicles of which it becomes aware. If either Party or a third party, including a government authority, such as NHTSA, determines that it is necessary to conduct a recall or other service campaign of Vehicles or other Vehicles at issue, PMC shall determine the nature of the corrective action to be taken and, if required, will undertake and coordinate the recall / service campaigns. For a fee to be agreed upon by the parties, FACTORY REP will assist PMC in such recall / service campaign actions.

 

 

7.2           As the designer, manufacturer and supplier of Vehicles, PMC shall provide a warranty of 3 years or 36,000 miles (whichever comes first). Additionally, the PMC electric drivetrain shall be warranted for 5 year or 60,000 miles and the lithium-ion battery system shall be warranted for 5 years or 150,000 miles. PMC shall indemnify, defend and hold completely harmless FACTORY REP and all other Persons in its chain of distribution of Vehicles from and against any and all losses, liabilities, damages, costs, fees and expenses, including legal costs and attorneys’ fees, resulting from any and all claims related to work performed by PMC on the Vehicles. In order to further facilitate the foregoing, PMC shall obtain and continue to maintain at all times from the initial launch of Vehicles in the U.S. Vehicles liability insurance coverage in an amount that is not less than Five Million Dollars ($5,000,000) until the units in operation within the Territory reaches 50 Vehicles and up to Ten Million Dollars ($10,000,000) thereafter, both in aggregate and per occurrence basis, with a deductible of not more than Two Hundred Fifty Thousand Dollars ($250,000) per occurrence, and name FACTORY REP as its additional insured and loss payee and provide FACTORY REP a Certificate of Insurance upon each renewal and upon FACTORY REP’s request. Parties hereby agree that the insurance coverage set forth herein shall provide a means for PMC’s indemnity and shall in no way limit or constitute as a waiver of any kind with respect to PMC’s indemnity obligations under this Agreement. An extended warranty is available based on the vendor and supplier terms and conditions.

 

7.3           As the designer, manufacturer and supplier of Vehicles, PMC shall be solely responsible for the Lemon Law claims, breach of express or implied warranty or similar laws. FACTORY REP agrees to deliver to PMC a copy of such notice and such other related information as is reasonably available to it, and PMC shall provide defense of such case on behalf of FACTORY REP and PMC shall indemnify and completely hold harmless FACTORY REP for any and all damages, including any money judgments or obligation to repurchase vehicles and out-of-pocket expenses incurred by FACTORY REP in defending or responding to such claims.

 

7.4           PMC shall furnish FACTORY REP with master electronic versions and hard copies of owner’s manuals, service manuals, parts catalogs, labor time guides, and other vehicle related publications for each and every make and model of Vehicles to be represented by FACTORY REP. PMC shall also notify FACTORY REP of all technical changes to any of the Vehicles promptly upon the occurrences of such changes. PMC shall furnish FACTORY REP with certified technical documents regarding the specification, operation and maintenance and special service tools (mechanical and electronic) required for the diagnosis and service/repair of the Vehicles. PMC shall send its engineers and other personnel for the purposes of technical support, training, and other support or coordination as needed in PMC’s discretion.

 

7.5           PMC shall provide FACTORY REP launch dates for any and all new buses for its Representation as soon as they become available.

 

7.6           PMC shall comply and maintain at all times continued compliance in regard to Vehicle manufacturing, safety, emission, and other quality standards for the Vehicles and other Vehicles being or to be supplied to FACTORY REP for Representation of Vehicles.

 

7.7           In the event of governmental inquiries or requests related to vehicle design, manufacturing, operational, or other characteristics pertaining to Vehicles or other Vehicles, PMC shall respond to all required design/development data, test data, engineering data and other documentation as needed to sufficiently respond to such inquiries or requests, using commercially reasonable efforts.

 

 

7.8           If PMC and Factory Rep agree that Factory Rep will perform any work related to routine maintenance, service, recalls, warranty repairs, lemon law repairs or any other work as deemed necessary by the Parties, Factory Rep shall indemnify, defend and hold completely harmless PMC from and against any and all losses, liabilities, damages, costs, fees and expenses, including legal costs and attorneys' fees, resulting from any and all claims related to work performed by Factory Rep on Vehicles covered by this Agreement. In order to further facilitate the foregoing, Factory Rep shall obtain and continue to maintain at all times from the initial execution of this Agreement liability insurance coverage in an amount that is not less than Five Million Dollars ($5,000,000) until the units in operation within the Territory reaches 50 Vehicles and up to Ten Million Dollars ($10,000,000) thereafter, both in aggregate and per occurrence basis, with a deductible of not more than Two Hundred Fifty Thousand Dollars ($250,000) per occurrence, and name PMC as its additional insured and loss payee and provide PMC a Certificate of Insurance upon each renewal and upon PMC’s request. Parties hereby agree that the insurance coverage set forth herein shall provide a means for Factory Rep’s indemnity and shall in no way limit or constitute as a waiver of any kind with respect to Factory Rep’s indemnity obligations under this Agreement.

 

8.

TERM AND DUTIES AFTER TERMINATION

 

8.1

TERM

 

The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of three (3) years (the “Term”). Thereafter, the Term shall automatically renew for additional one (1) year periods, as long as the FACTORY REP has met the Annual Sales Targets set forth in Section 1.5 and new sales targets agreed on as per section 1.6, unless terminated by mutual agreement of the parties or pursuant to the provisions of Section 8.2 below.

 

8.2

TERMINATION

 

Except for a material breach, as defined in Section 8.2(a) and 8.2(b), this Agreement is noncancelable for the initial three-year period. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.

 

Either Party may terminate this Agreement by providing written notice to the other Party:

 

(a)           if the other Party materially breaches any provision of this Agreement, and the breach is not cured by the breaching Party within thirty (30) days after its receipt of written notice of the breach; or

 

(b)           if the other Party becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due.

 

 

Any termination under this Section 8.2 is effective upon the breaching Party's receipt of the notice of termination, or as may be applicable, upon the breaching Party’s failure to cure during the 30-day cure period, or any later date set out in the notice.

 

8.3           Upon the expiration, non-renewal, or termination of this Agreement for any reason, FACTORY REP shall immediately cease to make any representations regarding its status as the distributor of Vehicles and coordinate with PMC, so that an orderly liquidation of the Vehicles and other Vehicles, and continued services for such Vehicles, can be made in the most commercially acceptable manner and with minimum inconvenience and damages incurred to the Vehicle owners.

 

8.4           Any expiration, non-renewal, or termination of this Agreement for any reason shall be without prejudice to the rights and remedies of either Party with respect to any provisions of this Agreement or arising out of a breach prior to such termination. In the event a Party materially breaches the terms and conditions of this Agreement or fails to perform its obligations under this Agreement, the non-breaching Party may pursue any and all rights and remedies available at law and/or in equity. Without limiting the generality of the foregoing, Section 3.2 and Section 7 and other provisions that by their nature are intended to survive termination shall survive termination of this Agreement.

 

9.

WARRANTIES & REPRESENTATIONS

 

9.1           Each Party represents to the other Party that it is an entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; it has all requisite power and authority to own and operate its properties, and to carry on its business as it is now being conducted; it has all requisite power and authority to enter into the transaction contemplated hereby; the execution, delivery and performance of this Agreement have been duly authorized by all requisite actions; this Agreement has been duly and validly executed and delivered to the other Party; and (if assuming this Agreement constitutes a valid and binding obligation of the other Party) this Agreement constitutes a valid and binding obligation of the Party enforceable against it in accordance with its terms.

 

9.2           PMC hereby continuously warrants and guarantees that at all times during the term of this Agreement, including any extensions and renewals periods thereof, (a) all Vehicles supplied to FACTORY REP, meet laws and regulations of the United States, (b) all such Vehicles will be merchantable, meet PMC’s design requirements, manufacture, and workmanship, (c) all such Vehicles are properly labeled and (d) all such Vehicles ordered shall be delivered timely and in good and undamaged condition and shall, when delivered, be merchantable and fit and safe for the purposes for which the same are intended to be used. Nothing contained in this Agreement shall be deemed a waiver of warranties implied by law as may be applied to FACTORY REP.

 

9.3           PMC warrants to FACTORY REP that the appropriate licenses, agreements and rights have been obtained from the respective parts, components, and accessory providers for use in its Vehicles. PMC represents and warrants, and hereby agrees to indemnify and hold FACTORY REP harmless from and against alleged infringement in relation to the Vehicles of the trademarks, patents, copyrights and other intellectual property rights of any third party.

 

9.4           FACTORY REP represents and warrants that it has extensive vehicle Representation and related business experience and functional and comprehensive know-how.

 

 

10.

ADDITIONAL TERMS & CONDITIONS

 

10.1         The Parties to this Agreement are independent contractors. No agency, partnership, franchise, employment, joint venture or other joint relation is created between the Parties by virtue of this Agreement. Neither Party has the authority to bind the other Party or to incur any obligation on the other Party’s behalf. Any joint venture or other joint business relations may be created only by subsequent agreement between the Parties in writing.

 

10.2         Any and all information exchanged between the Parties under this Agreement is confidential and may not be disclosed to any Person during the term of this Agreement and for a period of five (5) years thereafter, except: (A) to employees, legal advisors, auditors and other consultants of each Party or its related companies, and to third party service providers who require the information for the purposes of carrying out the terms and conditions of this Agreement; (B) with the consent of the disclosing Party; (C) if the information, as of the Effective Date of this Agreement, is lawfully in the possession of the other Party; (D) if required by law; (E) if required in connection with a financing or a proposed sale or transfer of business operations, but only if the party receiving such information agrees to keep such information confidential on the same terms provided herein; (F) if strictly and necessarily required in connection with legal proceedings relating to this Agreement; or (G) if the information becomes published or otherwise generally available to the public other than as a result of breach of confidence by a Party to the other. In the event FACTORY REP or PMC, or anyone to whom they may transmit any confidential information becomes legally compelled to disclose any of the confidential information, FACTORY REP or PMC, as the case may be, will provide the other Party with prompt written notice of not less than seven (7) business days from the receipt of such request, so that the pertinent Party can seek a protective order or other appropriate remedy. In the absence of a protective order, or the failure to quash the legal process requiring disclosure or other measure effectively removing such legal compulsion, neither PMC nor FACTORY REP shall have any duty to resist the production of confidential information, and the production thereof shall not constitute a breach of this Agreement.

 

10.3         Each Party shall indemnify, defend, and hold the other Party (including, without limitation, all of each Party’s respective directors, officers, shareholders, employees, managers, and agents) harmless from and against any and all losses, liabilities, damages, costs, fines, penalties, judgments, fees and expenses, including legal costs, expert costs and/or attorneys' fees, in relation to any of the following (the “Mutually Released Claims”):

 

(A)

Any act or omission of the Party for actual or alleged breach of any of the terms of this Agreement;

 

(B)

Any actual or alleged negligence or tortuous conduct in connection with this Agreement; and

 

(C)  Any claim or demand of any type or variety, whether made by a government, government agency, dealer, consumer, or any other person or entity, for which the Parties do not otherwise have an obligation to indemnify, defend, and/or hold harmless under the terms of this Agreement.

 

10.4         The Parties agree to provide written notice to each other within a reasonable time after receiving notice that any action related to Mutually Released Claims has been taken or threatened against any Party, and agree to reasonably cooperate with each other so that a Party can adequately defend itself against any Mutually Released Claim.

 

 

10.5         With respect to any provision of this Agreement providing that one party indemnify, defend, and hold harmless ("Indemnifying Party") the other party ("Indemnified Party"), the Indemnified Party agrees to extend these obligations to claims made against the Indemnified Party's officers, directors, shareholders, employees, managers, and agents. The Indemnifying Party shall provide defense of such case on behalf of Indemnified Party with Indemnifying Party’s choice of counsel, and indemnify, defend and hold harmless Indemnified Party for any and all claims, including any judgments and out-of-pocket expenses incurred by Indemnified Party in defending or responding to such claims. At the election of Indemnified Party, Indemnifying Party further agrees that Indemnified Party may employ attorneys of its own selection, at Indemnified Party's sole cost and expense, to appear and defend the claim or action on behalf of Indemnified Party. Indemnifying Party agrees to fully cooperate and provide any and all assistance necessary to adequately defend such claims and lawsuits.

 

10.6         Subject to the foregoing Section 10.5, neither Party shall be held responsible for any delay or failure in performance of this Agreement to the extent that such delay or failure is caused by war, civil unrest, strike, flood, or acts of God. Either Party shall promptly notify the other Party after becoming aware of the occurrence of any such cause and shall use its reasonable best efforts to minimize any resulting delay in, or interference with, the performance of this Agreement.

 

10.7         Both Parties acknowledge that the sales and distribution of the Vehicles is to an evolving market that could be subject to rapid changes in the technology, personnel requirements, support, maintenance, regulations or requirements from various government authorities, which could impact on the ability of either Party to fulfill its obligations under this Agreement. Should such changes occur then both Parties agree to negotiate in good faith any changes that might be required to this Agreement.

 

10.8         Any public announcement, media comment, and official referencing with regard to the contents, interpretation or subject matter of this Agreement by either Party (the “Public Disclosure”) shall be sent to the other Party for their review prior to the release of the Public Disclosure. The foregoing shall not restrict in any respect a Party’s ability to file appropriate information and issue press releases in compliance with its applicable regulatory or statutory requirements or to communicate information concerning this Agreement and the business affairs contemplated hereby. The foregoing shall also not restrict in any respect Party’s ability to communicate the information concerning this Agreement and the transactions contemplated hereby to its potential investors, funding sources, specific accounts or vehicle dealers.

 

10.9        Any notice permitted, required or desired to be given pursuant to this Agreement shall be deemed to have been given one (1) Business Day after sending by Federal Express or other comparable overnight express courier service (with proof of receipt available), or on the same Business Day if personally delivered (with confirmation), if addressed to the attention of the President or CEO at the principal place of business, which is stated on the first page of this Agreement or to such other address as any Party hereto shall from time to time designate by providing written notice to the other Party.

 

10.10       This Agreement shall be binding upon and inure to the benefit of both Parties and their respective successors and assigns. Neither Party shall assign or transfer any of its rights or obligations under this Agreement without prior written consent of the other Party, which consent may be withheld in the other Party’s absolute discretion. Notwithstanding anything to the contrary herein, PMC may use its subsidiaries and affiliates to manufacture the Vehicles hereunder in whole or in part.

 

 

10.11       In the event any provision of this Agreement, in whole or in part, is held to be invalid, unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, such provision will be replaced, to the extent possible, with a provision consistent with original business purposes of the provision in a valid and enforceable manner, and the remainder of this Agreement will remain unaffected and in full force. This Agreement and all related business transactions shall be governed by and construed in accordance with the laws of the State of Delaware and the Federal Laws of the United States applicable therein and each Party hereby submits to the exclusive jurisdiction of the United States District Court for Delaware for the purpose of enforcing or adjudicating such matters as are permitted to be submitted to civil court pursuant to this paragraph.

 

10.12       Unless otherwise agreed to by the Parties in writing for a specific transaction, this Agreement shall apply to any and all FACTORY REP's purchase of Vehicles from PMC (each such individual purchase transaction initiated by FACTORY REP referred to herein as “Individual Purchase(s)”) during the term of this Agreement. The terms and conditions of this Agreement shall apply to any and all such Individual Purchases whether or not this Agreement or its terms and conditions are expressly referenced in the Individual Purchase. Unless otherwise agreed to by the Parties in writing for a specific transaction, no inconsistent terms or condition in any Individual Purchase shall be applicable to Individual Purchases.

 

10.13      All section headings, titles or captions contained in this Agreement are for convenience only and shall not be deemed a part of this Agreement and shall not in any way limit or amplify the terms and provisions of this Agreement. The masculine, feminine or neuter gender and the singular or plural number shall be deemed to include the others whenever the context so requires or indicates. The word “including” means “including, but not limited to,” and the word “include” when used herein means “include, without limitation.” Each provision of this Agreement shall be construed according to its fair meaning and not strictly for or against any Party, regardless of whether such provision was drafted by or at the request of a particular Party or such Party’s counsel.

 

10.14      This Agreement shall constitute the entire and complete understanding and agreements between the Parties with respect to the subject matter hereof and supersedes all other prior or contemporaneous oral and written agreements and understandings. The terms and conditions of this Agreement may be amended, modified or waived only by an agreement in writing between the Parties. This Agreement may be executed in multiple original copies, each original having the same content and validity.

 

10.15       All vehicles sold under this agreement and liabilities thereof are subject to the terms of use as stipulated in the PMC ELECTRIC VEHICLES OWNER’S and WARRANTY MANUAL.

 

 

IN WITNESS WHEREOF, the Parties hereto execute this Agreement by their duly authorized officer on the date first above written.

 

	Phoenix Cars, LLC
	By
	Name:
	Title:
	Creative Bus Sales, Inc.

 

By

/s/ T.J. Matijevich

 

	Name: T.J. Matijevich
	Title: Vice President

 

 

Exhibit 10.7

 

ATTACHMENT 1

STATEMENT OF WORK FOR

Phoenix Motorcars

 

Southern California Airports – Zero Emission Shuttle Transportation

 

The 2016 AQMP identifies the need for NOx emission reductions as the most significant air quality challenge in meeting the upcoming ozone standard deadlines. Significant increases in NOx, PM and greenhouse gases emissions from airport shuttle buses are expected because airline passenger transportation and expansion of operations at various commercial airports are projected to increase in the near future. Staff has been working with Contractor, an electric vehicle manufacturer, to accelerate the development and deployment of battery electric shuttle buses. Contractor has made significant progress deploying over 36 battery electric shuttle buses operating at the Los Angeles World Airport and Ontario Airport for over two years and is committed to seeking funds from CARB’s Hybrid and Zero Emission Truck and Bus Voucher Incentive Project (HVIP) for battery electric shuttle bus replacement projects.

 

This project is to replace 29 diesel and gasoline airport shuttle buses with new battery electric buses manufactured by Contractor. The new electric buses are equipped with state-of-the-art electric drivetrain technology that delivers up to 100 miles range on a single charge. Combined with dual charging capability, the buses are well suited to meet the requirements of most fleets operating on a fixed route within close proximity of the airport. As part of the eligibility requirement, staff will inspect existing shuttle buses for operability and drivability before the buses can be replaced with battery electric buses. Upon successful inspection and replacement of the existing buses, Contractor will be required to destroy or render the existing buses useless without cannibalizing any parts from the old engines. In addition, staff will confirm that each replaced bus and its engine have been destroyed by an authorized scrap yard. Contractor will submit quarterly and annual reports during the project.

 

CONTRACTOR shall perform the following tasks:

 

Task 1 - Program Management

 

1.1.

CONTRACTOR shall plan, coordinate, and report as required to successfully achieve the overall objectives of the project. CONTRACTOR shall submit monthly status updates and quarterly reports as described in the Deliverables section of this contract.

 

1.2.

CONTRACTOR shall attend a “kick-off” meeting with the SCAQMD. The administrative and technical aspects of this Agreement will be discussed at the meeting. At a minimum, the meeting shall cover team introductions, project requirements and expectations as well as preliminary vehicle design, specifications, and performance targets.

 

1.3.

CONTRACTOR shall develop, document, and distribute a project management plan for this project. The project management plan shall include the objectives, work plan, success criteria, assumptions, dependencies, organizational structure, managerial process and communication plan, risk management, and any other plans associated with project management of this project.

 

 

1.4.

CONTRACTOR shall release request for proposal to solicit proposals from fleet operators and select awardees for replacement of shuttle.

 

Deliverables:

 

·

Project management plan

·

Project Management Update reports (Monthly and Quarterly)

·

Preliminary Vehicle Design, Specifications and Performance Targets

 

Task 2 – Preliminary Design Task

 

2.1.

CONTRACTOR shall review both the airport shuttle market requirements as well as data from currently operating electric vehicles in the market to determine optimum specifications of the vehicles to be deployed. CONTRACTOR shall develop a complete specification (proprietary information) allowing the vehicle to meet market requirements. Conduct a review of 2D and 3D mechanical drawings, electrical schematics, physical wiring diagrams, and installation instructions in order to fabricate and assemble the target vehicle.

 

Deliverables:

 

·

Airport shuttle bus market analysis and data analysis report on currently operating electric shuttles

·

Review of vehicle specifications and vehicle 3D integration model during dedicated meeting.

·

Vehicle system / design information (Confidential documents)

o

First level of Bill of Materials

o

Sub-Assembly drawings

o

Vehicle & main components specifications

o

Overview installation drawing

·

Targeted performance metrics

 

Task 3 - Vehicle Assembly, Testing and Deployment

 

3.1.

CONTRACTOR shall demonstrate ability to design & mass-produce, deploy and support high quality electric shuttles in the field. CONTRACTOR shall conduct verification testing on the first vehicle to be produced to confirm the following criteria:

 

·

Vehicle range: City and highway w/ & w/o A/C.

·

Vehicle acceleration: 0-20 mph, 0-30 mph, 0-50 mph.

·

Battery cell level information (TBC based on confirmation from supplier).

·

Motor design validation – list of tests done by supplier.

·

Simulated customer use test – Airport environment.

·

Vehicle drive by & interior noise.

·

Contractor shall present the Phoenix Motorcars vehicle limited warranty coverage information

 

 

CONTRACTOR shall provide a verification testing report to SCAQMD for review prior to commencing manufacture of the 29 vehicles.

 

3.2.

CONTRACTOR shall produce and submit the following reports with regard to vehicle manufacturing and deployment.

 

■

Sourcing: CONTRACTOR to produce Sourcing Plan for all 29 Vehicles and submit actual spending update on a monthly basis till the conclusion of Task

 

■

Manufacturing: CONTRACTOR to produce and submit Manufacturing Plan for all 29 Vehicles.

 

■

Quality and Testing: CONTRACTOR to produce and submit Quality and Testing Plan for all 29 Vehicles.

 

■

Vehicle Deployment: CONTRACTOR to produce and submit Deployment Plan for all 29 Vehicles. Deployment costs will be calculated and submitted at the end of February 2019 for reimbursement to SCAQMD.

 

■

Customer Training and Maintenance: CONTRACTOR to produce and submit Customer Training and Maintenance Plan for all 29 Vehicles.

 

3.3.

CONTRACTOR shall complete the manufacturing and deployment of 29 new battery electric buses, including EVSEs with the goal of delivering the vehicles within about 12 months of project start.

 

3.4.

CONTRACTOR shall deliver battery electric shuttle buses to end user fleets and prepare photos of delivered buses. CONTRACTOR shall provide SCAQMD with a list of participating end user fleets.

 

Deliverables:

 

·

Vehicle verification testing report based on prototype vehicle with identical specification - chassis and EV powertrain - to target vehicles

·

Sourcing plan and monthly Sourcing Report

·

Source base shuttle bus for first 13 units

·

Source base shuttle bus for next 5 units

·

Source base shuttle bus for next 6 units

·

Source base shuttle bus for next 5 units

·

Source battery packs for all 29 units

·

Complete shipping, tariff and duties for 29 battery packs

·

Complete testing of first 13 battery packs

·

Complete testing of next 11 battery packs

·

Complete testing of next 5 battery packs

·

Source Motor Components for all 29 units

·

Complete shipping, tariff and duties for 29 Motor Component Units

·

Source On-board Chargers for first 13 units

·

Source On-board Chargers for remaining 16 units

 

 

·

Source remaining Bill Of Materials and Labor Costs for 6 units

·

Source remaining Bill Of Materials and Labor Costs for next 7 units

·

Source remaining Bill Of Materials and Labor Costs for next 5 units

·

Source remaining Bill Of Materials and Labor Costs for next 6 units

·

Source remaining Bill Of Materials and Labor Costs for next 5 unit

 

·

Manufacturing plan and Monthly Manufacturing report

·

Quality & Testing plan and results

·

Deployment Plan and Monthly Deployment Report

·

Customer training &Maintenance plan

·

Complete Manufacturing, Deployment & Customer Training for first 6 units

·

Complete Manufacturing, Deployment & Customer Training for next 7 units

·

Complete Manufacturing, Deployment & Customer Training for next 5 units

·

Complete Manufacturing, Deployment & Customer Training for next 6 units

·

Complete Manufacturing, Deployment & Customer Training for next 5 units

·

Pictures of buses & corresponding VIN number at factory after completion of manufacture

·

Pre-delivery Inspection report of buses prior to delivery

·

Picture of the bus at the customer’s location

 

Task 4 – Vehicle Attrition Schedule and Engine/Bus Scrappage

 

4.1.

CONTRACTOR shall inspect and record the serial numbers, VINs, odometer readings, make, model, and year of the airport shuttles to be replaced. CONTRACTOR shall verify operability and drivability before the vehicle is replaced.

 

4.2.

CONTRACTOR shall destroy or render the existing buses along with the engines useless upon successful completion of replacing gasoline or diesel buses with battery electric buses. The destruction of each replaced bus will be confirmed by SCAQMD staff through photographs of destroyed engines and buses and a certificate signed and dated by an authorized scrap yard representative that a 6-inch hole was cut into the engine block and the chassis was cut through the frame/frame rails. The vehicles will be scrapped within a period of 4 months from the date of delivery of the vehicle to the customer.

 

Deliverables:

 

·

Vehicle inspection report - the serial numbers, VINs, odometer readings, make, model, year, operability and drivability

·

Vehicle scrappage report – photographs of destroyed engines and buses and a certificate signed and dated by an authorized scrap yard representative

 

Task 5 – Vehicle Operation Monitoring and Reporting

 

5.1.

CONTRACTOR shall assure that the electric shuttle bus will be fully deployed on the assigned route during the field demonstration.

 

 

5.2.

CONTRACTOR shall provide performance parameters and specifications on all deployed buses to monitor during the operation in Airport Shuttle service for at least 12 months with the goal of performance comparison with a representative conventional shuttle bus.

 

5.3.

CONTRACTOR shall develop and distribute surveys to gather driver and service feedback and perform interviews with operators, mechanics and fleet managers for user acceptance evaluation. CONTRACTOR shall prepare User deployment acceptance report.

 

Deliverables:

 

·

Operating route information

·

Operations report (distance driven, efficiency, energy charged)

·

Environmental reports (CO2 savings, NOx savings, Particle Matter savings)

·

Down-time frequency reports for scheduled maintenance

·

Estimated Mean Time Between Failure (MTBF) for major components (motor, inverter, battery system)

·

User deployment acceptance report

 

Task 6 – Installation of EVSEs

 

6.1.

CONTRACTOR shall assess infrastructure requirements and develop Infrastructure Implementation plan

 

Deliverables:

 

·

Infrastructure Plan

·

Monthly Infrastructure Installation Report

·

Complete EVSE & Infrastructure installation for first 12 buses

·

Complete EVSE & Infrastructure installation for next 12 buses

·

Complete EVSE & Infrastructure installation for remaining 5 buses

 

Task 7 – Final Report

 

7.1.

CONTRACTOR shall produce a final report that summarizes the complete analysis conducted on vehicle performance and user acceptance.

 

Deliverables: Final report with user acceptance survey and 2-page project synopsis on the completion of the project

 

 

DELIVERABLES

 

CONTRACTOR shall supply the following reports to the SCAQMD under this Contract. Each submitted report shall be submitted electronically in MS WORD format (.doc). CONTRACTOR is encouraged not to submit patentable material or protected data in these reports, but if there is such material or data in the report, you must: (1) clearly identify patentable or protected data on each page of the report; (2) identify such material on the cover of the report. Reports must not contain any limited rights data (proprietary data), classified information, information subject to export control classification, or other information not subject to release. Protected data is specific technical data, first produced in the performance of the award that is protected from public release for a period of time by the terms of the award agreement.

 

1.

Project Management Plan. CONTRACTOR shall provide a detailed Project Management Plan as described by Task 1.

 

2.

Monthly Status Update

During phase I of the project (Vehicle Assembly and deployment), CONTRACTOR shall submit an electronic copy in MS Word format (.doc) of each monthly progress report due by the 30^th day of each month following the reporting period. The monthly reports must provide a concise narrative assessment of the status of work, milestones achieved, and problems encountered and how they were resolved. The monthly reports shall be formatted and completed as follows:

 

a.

What was planned to be accomplished in the period by Task

b.

What was actually accomplished during the period by Task

c.

How the project is progressing to plan

d.

Significant problems or changes

e.

What is expected to be accomplished in the next period by Task

f.

Current and cumulative budget expenditures

g.

Photos to illustrate project performance

 

During phase II of the Project (Vehicle Operation Monitoring and reporting) CONTRACTOR shall submit an electronic copy in MS Word format (.doc) of each monthly progress report due by the 30^th day of each month following the reporting period. The monthly reports must provide a concise narrative assessment of the following:

 

a.

Operational report per client, per period and cumulative (distance driven - mile, efficiency - kWh/mile, energy charged – kWh)

b.

Environmental report per location, per period and cumulative (CO2 savings, NOx savings, Particle Matter savings).

c.

Down-time frequency reports for scheduled maintenance

d.

Failures report per client, per period and cumulative for major components (motor, inverter, battery system)

e.

Estimated Mean Time Between Failure (MTBF) for major components (motor, inverter, battery system).

 

 

3.

Quarterly Progress Reports. CONTRACTOR shall submit an electronic copy in MS Word format of each quarterly progress report due by the 30th day of each month following the reporting period. CONTRACTOR shall submit one copy of each progress report to AQMD’s Project Manager, and one copy to AQMD’s Contract Administrator- Technology Advancement.

 

During phase I of the project (Vehicle Assembly and deployment), the Quarterly Progress Report must provide a concise narrative assessment of the status of work and include the following information:

 

a.

The AQMD contract number and name of the recipient.

b.

The project title and name of the project director/principal investigator.

c.

Date of report and period covered by the report.

d.

A comparison of the actual accomplishments with the goals and objectives established for the period and reasons why any established goals were not met.

e.

A discussion of what was accomplished under these goals during this reporting period, including major activities, significant results, major findings or conclusions, key outcomes or other achievements. This section should not contain any proprietary data or other information not subject to public release. If such information is important to reporting progress, do not include the information, but include a note in the report advising the reader to contact the Principal Investigator or the Project Director for further information

f.

Cost Status. Show approved budget by budget period and actual costs incurred. Costs shall be broken out by AQMD share, recipient share, and total costs.

g.

Schedule Status. List milestones, anticipated completion dates and actual completion dates. If you submitted a project management plan with your application, you must use this plan to report schedule and budget variance. You may use your own project management system to provide this information.

h.

Any changes in approach or aims and reasons for change. Remember significant changes to the objectives and scope require prior approval by the contracting officer.

i.

Actual or anticipated problems or delays and actions taken or planned to resolve them.

j.

Any absence or changes of key personnel or changes in consortium/teaming arrangement.

 

During phase II of the Project (Vehicle Operation Monitoring and reporting), the Quarterly Progress Report must provide a concise narrative assessment of vehicle operation as the various customer sites and include the following information:

 

a.

The AQMD contract number and name of the recipient.

b.

The project title and name of the project director/principal investigator.

c.

Date of report and period covered by the report.

d.

A comparison of the actual environmental impact (CO2 savings, NOx savings, Particle Maters savings) with the objectives.

e.

A cumulative Operation report (miles driven, energy charge).

 

 

4.

Special Event/Status Report. CONTRACTOR must report the following events associated with this project by e-mail to SCAQMD Project Officer as soon as possible after they occur:

 

a.

Developments that have a significant favorable impact on the project.

b.

Problems, delays, or adverse conditions which materially impair CONTRACTOR’s ability to meet the objectives of the Contract or which may require SCAQMD to respond to questions relating to such events from the public.

c.

CONTRACTOR must report any of the following incidents and include the anticipated impact and remedial action to be taken to correct or resolve the problem/condition:

 

i.

Any single fatality or injuries requiring hospitalization of five or more individuals.

ii.

Any significant environmental permit violation.

iii.

Any verbal or written Notice of Violation of any Environmental, Safety, and Health statutes.

iv.

Any incident which causes a significant process or hazard control system failure.

v.

Any event which is anticipated to cause a significant schedule slippage or cost increase.

vi.

Any damage to Government-owned equipment in excess of $50,000.

vii.

Any other incident that has potential for high visibility in the media.

 

5.

Draft Final Report. CONTRACTOR shall submit an electronic copy of the draft final report in Microsoft Word format (.doc) for review and comment. The draft final report shall be submitted within 45 days of the conclusion of the project. This document shall be considered in the public domain, in conformance with the California Public Records Act (Government Code Section 6250 et seq.). Any trade secret information may be submitted to AQMD in a separate report in which the trade secret information is specifically identified. AQMD agrees to treat such trade secret information in accordance with its Public Records Act guidelines relating to trade secret information. AQMD shall complete its review of the draft final report within four weeks of its receipt from CONTRACTOR. The draft final report shall include, but not be limited to, the following:

 

a.

Identify the AQMD contract number; name of recipient; project title; name of project director/principal investigator; and consortium/teaming members.

b.

Display prominently on the cover of the report any authorized distribution limitation notices, such as patentable material or protected data. Reports delivered without such notices may be deemed to have been furnished with unlimited rights, and the AQMD assumes no liability for the disclosure, use or reproduction of such reports.

 

 

c.

Provide an executive summary, which includes 1) a customer feedback overview of the use of the electric shuttle bus technology, 2) an overview of major lessons learned from the project, 3) an assessment of the technical effectiveness and economic feasibility of the proposed solution and 4) how the project is otherwise of benefit to the public. The discussion should be a minimum of one paragraph and written in terms understandable by an educated layman.

d.

Provide a comparison of the actual accomplishments with the goals and objectives of the project.

e.

Summarize project activities for the entire period of funding, including solutions implemented, pictures, main challenges encountered during project, and recommendations for future deployments. Include, if applicable, facts, figures, analyses, and assumptions used during the life of the project to support the conclusions.

 

6.

Final Report. CONTRACTOR shall submit three stapled originals and an electronic copy in Microsoft Word format (.doc) of the final report, incorporating AQMD’s comments, within 90 days of the conclusion of the project. This document shall be considered in the public domain, in conformance with the California Public Records Act (Government Code Section 6250 et seq.). Any trade secret information may be submitted to AQMD in a separate report in which the trade secret information is specifically identified. AQMD agrees to treat trade secret information in accordance with its Public Records Act guidelines relating to trade secret information.

 

7.

Project Synopsis. CONTRACTOR shall submit a 2-page project synopsis, along with the final report. Attachment 3 to this contract provides the format and content to be used for this synopsis. In addition to a hard copy, CONTRACTOR shall provide the synopsis in an electronic version, using Microsoft WORD. All color photographs and images, if relevant to the project, shall be embedded within the synopsis AND provided separately in digital format, such as .ppt, .tif. or .jpg, on a CD or sent electronically.

 

 

ATTACHMENT 2

 

PAYMENT SCHEDULE FOR

 

Phoenix Motorcars

 

The total project cost is estimated to be $7,373,905, of which EPA’s cost share shall not exceed $3,184,875. Leveraged funding sources for the remaining $4,189,030 will include contribution from Phoenix Cars LLC OEM in conjunction with the Hybrid and Zero-Emission Truck and Bus Voucher Incentive Project (HVIP) available through the California Air Resource Board. CONTRACTOR shall submit an updated progress report with each invoice to provide documentation that work has been completed to justify the invoice payment. Each invoice shall also be accompanied with documentation to identify the CONTRACTOR’s cost share expenditures.

 

Tasks		EPA Share				Contractor share				Total Budget				Estimated Completion Date (Not to exceed)
SCAQMD Admin Fee		$	62,449			$	0				62,449
1.1, 1.2, 1.3, 1.4 (Program Management)		$	0			$	60,000				60,000
2.1 (Preliminary Design Task)		$	0			$	150,000				150,000
3.1, 3.2 (Sourcing, Manufacturing & Quality Testing)		$	2,298,515			$	2,842,424				5,140,939			10 months after contract execution
Please see Table 1 for detailed subtasks under Task 3.1, 3.2
3.3, 3.4 (Vehicle Deployment, Customer Training / Maintenance)		$	463,911			$	449,650				913,561			18 months after contract execution
Please see Table 2 for detailed subtasks for Task 3.3 & 3.4
4.1, 4.2 (Vehicle scrappage)		$	0			$	11,600				11,600
5.1 (Monitoring & Reporting)		$	20,000			$	6,880				26,880			30 months after contract execution
6.1 (EVSE Installation)		$	290,000			$	654,476				944,476			18 months after contract execution
Please see Table 3 for detailed subtasks for Task 6.1
7.1 Final Report & Post-Project Completion		$	50,000			$	14,000				64,000			36 Months after contract execution
Total not to exceed amount			3,184,875				4,189,030				7,373,905

 

 

Table 1: Detailed subtasks under Task 3.2

 

Task		Description		EPA Share				Contractor Share				Total Budget
Task 3.1		Vehicle verification testing		$	0			$	0			$	0
Task 3.2.1		Source base shuttle buses - 13 units		$	373,509			$	458,644			$	832,153
Task 3.2.2		Source Battery Packs - 29 units		$	698,212			$	857,357			$	1,555,569
Task 3.2.3		Source Motor Components - 29 units		$	112,191			$	137,763			$	249,953
Task 3.2.4		Shipping, Tariff & Duties for 29 Motor Components		$	30,130			$	36,998			$	67,128
Task 3.2.5		Source base shuttle buses - 5 units		$	147,670			$	181,330			$	329,000
Task 3.2.6		Source base shuttle buses - 6 units		$	177,205			$	217,595			$	394,800
Task 3.2.7		Source base shuttle buses - 5 units		$	147,670			$	181,330			$	329,000
Task 3.2.8		Test Battery Packs - 13 units		$	55,234			$	67,823			$	123,057
Task 3.2.9		Test Battery Packs - 11 units		$	46,736			$	57,389			$	104,125
Task 3.2.10		Test Battery Packs - 5 units		$	21,244			$	26,086			$	47,330
Task 3.2.11		Duties & Shipping for 29 Battery Packs		$	55,888			$	68,627			$	124,515
Task 3.2.12		Source of On Board Charger - 13 units		$	38,278			$	47,002			$	85,280
Task 3.2.13		Source of On Board Charger - 16 units		$	47,111			$	57,849			$	104,960
Task 3.2.14		Source remaining BOM & Labor Cost for 6 buses		$	72,284			$	88,760			$	161,044
Task 3.2.15		Source remaining BOM & Labor Cost for 7 buses		$	89,221			$	109,557			$	198,778
Task 3.2.16		Source remaining BOM & Labor Cost for 5 buses		$	58,104			$	71,348			$	129,452
Task 3.2.17		Source remaining BOM & Labor Cost for 6 buses		$	69,725			$	85,618			$	155,342
Task 3.2.18		Source remaining BOM & Labor Cost for 5 buses		$	58,104			$	71,348			$	129,452
TOTAL				$	2,298,515				2,822,424			$	5,120,939

 

 

Table 2: Detailed subtasks under Task 3.3 and Task 3.4

 

Task		Description		EPA Share				Contractor Share				Total Budget
Task 3.3.1 /3.4.1		Complete Manufacturing, Deployment & Customer Training – 6 units		$	95,982			$	93,031			$	189,013
Task 3.3.2/ 3.4.2		Complete Manufacturing, Deployment & Customer Training – 7 units		$	111,979			$	108,536			$	220,515
Task 3.3.3 /3.4.3		Complete Manufacturing, Deployment & Customer Training – 5 units		$	79,985			$	77,526			$	157,511
Task 3.3.4 /3.4.4		Complete Manufacturing, Deployment & Customer Training – 6 units		$	95,982			$	93,031			$	189,013
Task 3.3.5 /3.4.5		Complete Manufacturing, Deployment & Customer Training – 5 units		$	79,985			$	77,526			$	157,511
TOTAL				$	463,911			$	449,650			$	913,561

 

Table 3: Detailed subtasks under Task 6.1

 

Task		Description		EPA Share				Contractor Share				Total Budget
Task 6.1.1		EVSE & Infrastructure - 12 buses		$	120,000			$	270,818			$	390,818
Task 6.1.2		EVSE & Infrastructure - 12 buses		$	120,000			$	270,818			$	390,818
Task 6.1.3		EVSE & Infrastructure - 5 buses		$	50,000			$	112,840			$	162,840
TOTAL				$	290,000			$	654,476			$	944,476

 

 

 

Exhibit 10.8

 

ROMEO SYSTEMS, INC.
PRODUCT SUPPLY MASTER AGREEMENT

 

This ROMEO PRODUCT SUPPLY MASTER AGREEMENT (this “Agreement”) is entered into as of 8 September , 2020 by and between Romeo Systems, Inc., a Delaware corporation (“Romeo”) and Phoenix Cars LLC dba Phoenix Motorcars, a Delaware limited liability company (“Purchaser”), with reference to the following facts:

 

A.

Romeo has developed and manufactures the Orion line of battery products described in Exhibit B.

 

B.

Purchaser desires to purchase such products from Romeo, and Romeo desires to supply such products to Purchaser, subject to the terms and conditions of this Agreement.

 

NOW, THEREFORE, the Parties hereby agree as follows:

 

1.

Definitions. The following terms shall have the meanings indicated.

 

(a)

“Affiliate” of any individual or entity means a Person that controls, is controlled by or is under common control with such individual or entity.

 

(b)

“Failure Rate” means the percentage of Severity Level 1 and Severity Level 2 occurrences, as defined in the Service Level Agreement, as determined at the end of each calendar year, to be calculated by dividing the number of Products Units and Safety Tested Battery Units (if applicable) where a Severity Level 1 and/or Severity Level 2 event occurred, shipped by Romeo to Purchaser overall Product Units and Safety Tested Battery Units (if applicable) shipped to date that are still under warranty.

 

(c)

“Initial Term” has the meaning provided in Section 7.

 

(d)

“Lead Time” means sixteen (16) weeks from PO submission date.

 

(e)

“Minimum Volume Commitment” means, for each calendar year during the Initial Term, the number of Product Units ordered, shipped and accepted as specified as such in Exhibit B for such year, and for any Renewal Term, the number of Product Units ordered, shipped and accepted as determined pursuant to Section 7.

 

(f)

“Party” means a party to this Agreement.

 

(g)

“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental authority.

 

(h)

“PO” means a purchase order submitted by Purchaser to Romeo hereunder.

 

(i)

“Product” means, with respect to any PO accepted by Romeo pursuant to Section 2, any Product Unit, Prototype Unit or Safety Tested Battery Unit ordered pursuant to such PO.

 

(j)

“Product Unit” means one Orion v1 battery pack unit as defined in Exhibit B that had its design and performance validated through the successful conclusion of the Test Campaign.

 

(k)

“Prototype Unit” means one Orion v1 battery pack unit as defined in Exhibit B that has not had its design and performance validate through the Test Campaign. Prototype Units do not have any Warranty.

 

(l)

“Purchaser Authorized Product” means the vehicle, machine, device or other product that will be powered by the Product and into which the Product will be incorporated as specified in the applicable PO. All of Purchaser’s products that may be Purchaser Authorized Products are described in Exhibit C.

 

 

(m)

“Quality Standard” means a Failure Rate equal to or less than five percent (5%) in the applicable calendar year in the Initial Term.

 

(n)

“Renewal Term” has the meaning provided in Section 7.

 

(o)

“Safety Tested Battery Unit” means one Orion v1 battery pack unit as defined in Exhibit B that had its design and performance validated through the successful conclusion of the Functional and Safety Testing segment of the Test Campaign per Exhibit A (which shall be completed no later than November 20, 2020). A Safety Tested Battery Unit becomes a Product Unit upon completion of the Performance & Reliability segment of the Test Campaign.

 

(p)

“Service Level Agreement” means the signed Service Level Agreement between Romeo and Purchaser for the Product Units.

 

(q)

“Test Campaign” means the testing and validation plan to validate Product performance described in Exhibit A which is expected to last sixteen (16) weeks per the Project Plan in Exhibit F.

 

(r)

“Term” means the Initial Term and any Renewal Term.

 

(s)

“Warranty” means the meaning provided in Exhibit D (Product Warranty) and Section 8(a).

 

2.

Purchase Orders.

 

(a)

POs. From time to time Purchaser shall order Products by issuing POs to Romeo in written form via email to Account Receivables ([email protected]) and Program Management ([email protected]) or other means of which Romeo notifies Purchaser in writing, all in accordance with the terms and conditions of this Agreement. The terms and conditions of every PO may be reviewed by Romeo for conformance to this Agreement (e.g. Product specifications, pricing, due dates within lead time, etc.). Within three (3) business days after Purchaser submits any PO, Romeo shall accept or reject such PO by written notice to Purchaser via email (to the contact email address stated on the PO) or other means of communication of which Romeo notifies Purchaser in writing. For the avoidance of doubt, any PO that is rejected by Romeo due to non-conforming PO terms shall be corrected by Purchaser and resubmitted with accurate terms. Any PO that is not expressly accepted or rejected by written notice during such three (3) business day period shall be deemed to have been rejected. Neither Party shall have any obligation under or with respect to any PO that is not accepted by Romeo, and Romeo may accept or reject POs in the exercise of its sole discretion. The quantities specified on POs rejected by Romeo without an opportunity for Purchaser to rectify the PO will count towards the Minimum Volume Commitment. Accepted POs shall be binding on the Parties (and may not be cancelled or changed by either Party without the written consent of the other Party). Romeo shall not be deemed to violate any obligation hereunder (including, without limitation, under any PO) if it delivers any Products after the delivery date specified in the applicable PO, provided that Romeo provides Purchaser with prompt written notice of such delayed delivery date and uses commercially reasonable efforts to ship such Products as close to such scheduled delivery date as is reasonably practicable. A PO Project Plan for the Prototype Units is attached as Exhibit F.

 

(b)

POs for Safety Tested Battery Units. Purchaser has agreed to the Test Campaign. Purchaser may order Safety Tested Battery Units for delivery while the Performance & Reliability segment of the Test Campaign is in progress.

 

(c)

Form of PO. Each PO submitted by Purchaser shall (i) identify the Product (by product number or other means specified by Romeo), (ii) the quantity ordered, (iii) the requested shipment date (which shall be at sixteen (16) weeks from PO submission date), (iv) the ship to address, (v) the price of each unit of Product and total amount due for the applicable order, and (vi) for each Product, the applicable Purchaser Authorized Product. No PO shall include any terms other than those referenced in this Section 2 and, if any PO does include any other terms, such terms shall be of no force or effect whatsoever.

 

 

(d)

Manufacture and Supply. During the Term, Romeo shall manufacture and supply to Purchaser the Products that are ordered by Purchaser pursuant to POs accepted by Romeo, and Purchaser shall purchase such Products, in each case subject to the terms and conditions of this Agreement.

 

(e)

Incoterms and Delivery. All deliveries shall be Ex Works Romeo’s facility, except to the extent otherwise specified in the applicable PO. The ship-to address for any Product purchased hereunder shall be in North America.

 

3.

Review and Acceptance. Purchaser shall promptly review any shipment received from Romeo and shall notify Romeo promptly (and in any event within ten (10) business days of receipt of the shipment) of any failure of such shipment materially to conform to the applicable PO or to Product Units, Prototype Units or Safety Tested Battery Units in accordance with Exhibit B (the “Specifications”). Unless Purchaser timely provides notice of such a failure with respect to any delivery, such delivery shall be conclusively presumed to be accepted. If any shipment does fail to conform to the applicable PO or Specifications and Purchaser timely so notifies Romeo, Romeo shall make commercially reasonable efforts to cure such failure within ten (10) business days (which cure may include a correction of any error in the Specifications). For avoidance of doubt, Purchaser shall accept any order delivered hereunder that materially conforms to the applicable PO and Specifications.

 

4.

Prices and Payment.

 

(a)

Price. The price at which Purchaser may purchase each Product hereunder shall be the amount specified in Exhibit B attached hereto.

 

(b)

Periodic Cost Review. In April and September of each year during the Term, Romeo and Purchaser shall jointly review the Romeo bill of materials for the Product Units (the “BOM”) to determine if the BOM has decreased since the prior review. The BOM costs to be reviewed will include, without limitation, battery cells, pack enclosure, electrical components, plastic components, cold plate, and printed circuit board assemblies. The BOM costs to be reviewed will be supported by invoices and other relevant documentation from Romeo’s BOM vendors, though vendor names and other confidential information may be redacted. If, as determined in any such review, the BOM has decreased over the one (1) year period ending on the date of such review by at least 1%, Romeo will reduce the Product Unit price to Purchaser by .3% for every 1% reduction in BOM costs.

 

(c)

Shortfall Payment. If Purchaser orders fewer Product Units than ninety percent (90%) of the applicable Minimum Volume Commitment during any calendar year of this Agreement, Romeo may invoice Purchaser in an amount equal to the product obtained by multiplying (i) the amount by which ninety percent (90%) of such Minimum Volume Commitment exceeds number of Product Units that Purchaser ordered during such calendar year by (ii) five thousand dollars ($5,000). Purchaser will pay any invoice submitted pursuant to this Section 4(c) within thirty (30) days of the date thereof. For avoidance of doubt, a Product Unit will be deemed to be ordered by Purchaser for purposes of this Section 4(c) if (i) it is accepted by Romeo pursuant to Sections 2 (Purchase Orders) and 3 (Review and Acceptance) above; (ii) it was ordered by Purchaser but rejected by Romeo without an opportunity for Purchaser to rectify the PO; or (iii) it conforms in all respects to the lead time, pricing, specification, warranty and other terms of this Agreement. Any Shortfall Payment is contingent upon Satisfactory Completion of the Test Campaign and Romeo supplying Product Units materially in compliance with the Lead Time, Specifications and meeting the Quality Standard in the prior calendar year. For avoidance of doubt, Purchaser will not be liable for any Shortfall Payment until (1) Satisfactory Completion of the Test Campaign and (2) Romeo’s compliance with this Subsection 4(c).

 

(d)

Invoices. Purchaser will pay invoices submitted by Romeo for Products within thirty (30) days after the invoice date unless certain items require prepayment, which terms shall be agreed upon in advance in writing and on a case-by-case basis.

 

 

(e)

Late Fees and Discounts. Purchaser shall pay Romeo late fees accruing at the rate of one percent (1.0%) per month or the highest rate permitted under applicable law, whichever is lower, on any amounts that are not paid when due hereunder. Romeo will provide a discount to Purchaser for early payment of invoices at a rate of two percent (2%) per invoice paid within ten (10) days of invoice receipt.

 

(f)

Taxes. Purchaser shall pay any sales, use, excise or other tax, duty or assessment incurred in connection with the manufacture and delivery of Purchaser Authorized Products or the performance under this Agreement which are customary for product supply transactions, other than taxes based solely on Romeo’s net income.

 

5.

Compliance.

 

(a)

Purchaser Authorized Products. Subject to Satisfactory Completion, Romeo hereby grants Purchaser the nonexclusive right and license under the patents and other intellectual property rights held or controlled by Romeo to incorporate the Product into, and use the Product to power, only Purchaser Authorized Products. No right or license is granted to incorporate the Product into any other vehicle, machine, device or other product. Purchaser shall not incorporate any Product into, or use any Product to power, any vehicle, machine, device or other product other than the applicable Purchaser Authorized Product. Purchaser shall use reasonable efforts to ensure that no reseller or other Person that purchases or otherwise obtains any Product from Purchaser incorporates any Product into, or uses any Product to power, any vehicle, machine, device or other product other than the applicable Purchaser Authorized Product. For purposes of this Agreement reasonable efforts means delivering the installed Product to Purchaser’s customers and/or end users.

 

(b)

Compliance with Law. Purchaser shall ensure that its use, sale or other commercialization of Product shall comply in all respects with applicable law and regulation, including, without limitation, laws or regulations relating to the export of Products.

 

6.

Intellectual Property. As between Romeo and Purchaser, Romeo does and shall own all patents and other intellectual property rights in or relating to the Products. Purchaser does and shall own all patents and other intellectual property rights in any of its own vehicles, machines, devices or other products in which the Products are used.

 

7.

Term & Termination. The initial term of this Agreement shall commence upon the date hereof and shall continue through December 31, 2022 (the “Initial Term”). This Agreement shall automatically renew for successive terms of one (1) year each (each, a “Renewal Term”) unless either party notifies the other in writing that this Agreement shall not renew at least one hundred eighty (180) days before the end of the Initial Term or the then current Renewal Term, as the case may be. The Minimum Volume Commitment and Price for any Renewal Term shall be reviewed in good faith by both Parties starting two hundred and seventy (270) days before the end of the Initial Term or the then current Renewal Term, as the case may be and agreed in writing prior to one hundred eighty (180) days before the end of the Initial Term or the then current Renewal Term, as the case may be. The rights, obligations and duties of the Parties shall survive any termination of this Agreement with respect to any PO submitted by Purchaser and accepted by Romeo during the Term. Further, Sections 4(c), 4(d), 4(e), 4(f), 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive any termination of this Agreement and remain fully effective and enforceable thereafter. The Purchaser may terminate this Agreement for cause, in writing with a ninety (90) days written notice, if: (a) Romeo has failed to meet the Quality Standard to the provision of such termination notice; or (b) Romeo consistently fails to satisfy deliveries within the Lead Time; provided, however, (i) the written termination notice must describe in sufficient detail the reasons and events leading to the termination and steps proposed by Purchaser for avoiding termination; (ii) upon receiving such notice, Romeo will be given thirty (30) days to execute on commercially reasonable proposed steps to remedy any default leading to Purchaser’s termination notice; and (iii) Purchaser shall not terminate this Agreement if Romeo achieves the proposed steps within the thirty (30) days (or longer timeframe, if agreed by the Parties in writing) Purchaser may terminate this Agreement in the event of a Purchaser change of control with no less than one hundred twenty (120) days written notice to Romeo..

 

 

8.

Warranties.

 

(a)

By Romeo. Romeo shall provide Purchaser the warranty with respect to the Products set forth on Exhibit D, subject to all of the terms, conditions and restrictions set forth therein.

 

(b)

By Purchaser. Purchaser warrants that its use of all Products shall comply with all applicable laws and regulations and shall satisfy all of the conditions to the warranty provided in Exhibit D.

 

(c)

Disclaimer. Except as expressly provided in this Section 8 and Exhibit D, Romeo neither makes nor provides any additional warranty hereunder, and Purchaser’s use or other commercialization of any Product shall be at Purchaser’s sole risk. Without limiting the foregoing, Romeo expressly disclaims any implied warranties, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement

 

9.

Powered By Credit. Purchaser may, at Purchaser’s full discretion, credit Romeo as the manufacturer of the battery products used in Purchaser Authorized Products in accordance with Exhibit E. If Exhibit E is blank as of the date hereof, Romeo may at any time during the Term add a new Exhibit E with Purchaser’s consent.

 

10.

Indemnification.

 

(a)

General. Each Party (the “Indemnifying Party”) shall (i) defend the other Party, its Affiliates and their respective employees, officers, directors, representatives and agents (the “Indemnified Parties”) against any claim asserted or threatened by any third party that is based on any allegation of a fact, thing, circumstance or condition that would, if confirmed, constitute a breach by the Indemnifying Party of this Agreement or the gross negligence, willfulness or intentional misconduct of the Indemnifying Party or any Affiliate thereof (a “Claim”) and (ii) pay any settlement of or final judgment awarded for any Claim; provided in each case that the applicable Indemnified Parties promptly notify the Indemnifying Party in writing of the Claim, tender sole control of the defense and settlement thereof to the Indemnifying Party, and reasonably cooperate in such defense. Notwithstanding the foregoing, the Indemnifying Party shall not settle any Claim without the Indemnified Party’s prior written consent, not to be unreasonably withheld, delayed or conditioned.

 

(b)

Intellectual Property Infringement. Romeo shall (i) defend Purchaser, its Affiliates and their respective employees, officers, directors, representatives and agents (the “IP Indemnified Parties”) against any claim asserted or threatened by any third party that any Product infringes any United States patent or other Intellectual Property Right arising under the laws of the United States (an “IP Claim”) and (ii) pay any settlement of or final judgment awarded for any IP Claim; provided in each case that the applicable IP Indemnified Parties promptly notify Romeo in writing of the IP Claim, tender sole control of the defense and settlement thereof to Romeo, and reasonably cooperate in such defense. Notwithstanding any other provision hereof, Romeo may cancel any PO for any Products that are subject to any IP Claim. Further, Purchaser shall reasonably cooperate with Romeo’s efforts to address, settle or mitigate the damages, potential damages or other actual or potential liability associated with any IP Claim, including, without limitation, by making or allowing Romeo to make, at Romeo’s expense, any changes to any Products subject to such Claim or to the use thereof, or by accepting any restrictions regarding the use or other commercialization of any such Products, as reasonably requested by Romeo. Notwithstanding the provisions of Section 10(b), Romeo assumes no liability for any IP Claim arising out of or resulting from: (1) Purchasers combination or use of the Products with hardware, software, systems, technology, products, services, intellectual property, data, or materials not provided or approved by Romeo, if such IP Claim could have been avoided by the non-combined or independent use of the Product; (2) modification of the Product by anyone other than Romeo, if such IP Claim would have been avoided by use of the unmodified Product; (3) Romeo’s modification of the Product at Purchaser’s sole direction, if such IP Claim would have been avoided by use of the unmodified Product; or (4) Purchaser’s use of the Product in a manner unauthorized by Romeo or inconsistent with this Agreement.

 

 

(c)

Personal Injury or Property Damage: At any time during the term of this Agreement and thereafter, Romeo shall indemnify and hold Purchaser, its parent, subsidiaries and affiliates, and their respective officers and directors harmless from and against any and all Claims arising out of personal injury (including death) or property damage alleged to have been solely caused by a defect in design, materials or workmanship of a Product. However, Romeo shall have no liability to Purchaser with respect to damages caused solely by Purchaser’s integration of the Product into Purchaser Authorized Products.

 

11.

Safety Risks; Recalls. In the event that an unacceptable risk to property or human safety from the use of any Product is identified or brought to the attention of either Party (each a “Risk Event”), such Party shall promptly inform the other Party in writing. Romeo may take necessary or appropriate measures, as determined by Romeo in its sole discretion, to address any Risk Event, including, without limitation, recall of Product that is identified as presenting an unacceptable risk to property or human safety. Furthermore, Romeo may, in its sole discretion, notify competent authorities, agencies, and other notified bodies (“Agencies”) of Risk Events. Purchaser shall cooperate with Romeo and any Agency in any response to any Risk Event. Purchaser shall promptly provide Romeo notice and copies of any communications received by Purchaser or any Affiliate thereof from any Agency. Except for Risk Events or other issues caused by or attributable to any Purchaser Authorized Product or the use thereof or Purchaser’s breach of this Agreement, negligence or misconduct, Romeo shall be responsible for all costs, expenses, fees, damages, and liability incurred in connection with addressing or resolving any Risk Event. Purchaser shall be responsible for all costs, expenses, fees, damages, and liability incurred by Romeo in connection with addressing or resolving any Risk Event caused by or attributable to any Purchaser Authorized Product or the use thereof or Purchaser’s breach of this Agreement, negligence or misconduct.

 

12.

Confidentiality.

 

(a)

Definitions.

 

(i)

“Confidential Information” means the trade secret or other confidential information of a Party that is or has been disclosed to the other Party, orally or in writing, including, without limitation, any such information of which the Party receiving the disclosure may obtain knowledge through or as a result of the relationship with the disclosing Party, access to the disclosing Party’s premises, or communication with the disclosing Party’s employees or independent contractors, including any such information that is designated as confidential at the time of disclosure or that should, under the circumstances, be understood to be confidential by the Parties.

 

(ii)

For all purposes of this Agreement, (i) Romeo will be referred to as “Discloser” with respect to its Confidential Information and “Recipient” with respect to Confidential Information of Purchaser, and (ii) Purchaser will be referred to as “Discloser” with respect to its Confidential Information and “Recipient” with respect to Confidential Information of Romeo.

 

(iii)

Notwithstanding any other provision hereof, Confidential Information shall not include information that Recipient shows (i) is now or later becomes generally known to the trade (other than as a result of a breach of this Agreement), (ii) is independently developed by Recipient without reference to any information supplied by Discloser; or (iii) Recipient lawfully obtains from any third party without restriction on use or disclosure.

 

(b)

No Unauthorized Use or Disclosure. Recipient agrees not to use any of the Confidential Information of Discloser for any purpose at any time, other than for the purpose of exercising its rights and performing its obligations under this Agreement (the “Purpose”). Recipient shall at all times hold in confidence and not disclose or reveal to any Person any such Confidential Information without the clear and express prior written consent of a duly authorized representative of Discloser. Recipient shall at all times protect the confidentiality of such Confidential Information using at least such care as Recipient uses to protect its own confidential and proprietary information of like importance, but in no event less care than a prudent business person would employ under similar circumstances. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent reasonably required in connection with the Purpose, provided that any such disclosure is made (i) solely with and subject to Discloser’s prior written consent, not to be unreasonably withheld, delayed or conditioned, and (ii) subject to written obligations of confidentiality that are at least as protective of the Confidential Agreement as this Agreement.

 

 

(c)

Subpoena. If Recipient is served with a subpoena or similar order, interrogatories, requests for information or documents, civil investigative demand or other order or process which seeks to compel the production of Confidential Information, Recipient shall, to the extent permitted under applicable law, promptly notify Discloser in writing thereof. The Parties shall then cooperate with one another for the purpose of obtaining such relief as will protect the Confidential Information. Should either Party file any timely motion for a protective order or similar motion with respect to the Confidential Information, Recipient shall not comply with such subpoena or similar order, interrogatories, requests for information or documents, civil investigative demand or other order or process until after such time as the court rules on such motion. Recipient shall protect the Confidential Information to the maximum extent possible consistent with such ruling.

 

(d)

For avoidance of doubt, this Section 12 supersedes any confidentiality agreement between the Parties entered into before the date hereof solely with respect to the Parties’ respective obligations regarding Confidential Information that is used to exercise rights or perform obligations under this Agreement. This Agreement shall not be deemed to supersede any pre-existing obligations with respect to any other information.

 

13.

Limitation of Liability.

 

(a)

Except as otherwise provided herein, neither Party nor its Affiliates, licensors, suppliers or service providers nor any of their respective officers, directors, owners, employees, agents, suppliers or representatives will be liable for any special, incidental, consequential or exemplary damages, including, but not limited to, damages for loss of use or lost profits, arising out of or in connection with (i) the Products or their use, (ii) any maintenance, support or other services that relate in any way to the Products or their use, or (iii) this Agreement, even if such Party has been advised of the possibility of such damages.

 

(b)

Except as otherwise provided herein, in no event will the aggregate liability of either Party for any claims relating to the Product or its use, to any maintenance, support or other services that relate in any way to the Products or their use, or to this Agreement, whether sounding in contract, tort or any other theory of liability, exceed, in the aggregate for all claims, the aggregate payments that Romeo receives from Purchaser under this Agreement.

 

14.

Insurance.

 

(a)

Each Party shall, by the end of the Functional and Safety Testing segment of the Test Campaign per Exhibit A (which shall be no later than November 20, 2020), obtain and maintain, throughout the Term, Commercial General Liability insurance satisfactory to each Party using the Insurance Service Office (ISO) policy form CG 00 01 04 13 or such form as provides equivalent coverage. Such policy shall have minimum limits of $1,000,000 per occurrence, $2,000,000 products/completed operations aggregate and $2,000,000 aggregate including Broad Form Property Damage, Premises and Operations coverage, Products and Completed Operations coverage, advertising injury, Personal Injury coverage, and Blanket Contractual Liability coverage.

 

(b)

The Commercial General Liability Policy shall be further endorsed to provide, to the fullest extent permitted by law:

 

o

additional insured coverage to the other Party;

 

 

o

that coverage available to the additional insureds shall apply on a primary and non-contributing basis as respects any other insurance, deductibles, or self-insurance available to the additional insureds;

o

a waiver of subrogation in favor of the other Party; and

o

that defense costs shall be in addition to and not erode the limits of liability.

 

(c)

Each Party shall obtain and maintain, throughout the Term, Commercial Automobile Liability covering all owned, non-owned, and hired vehicles - $1,000,000 combined single limit of liability for bodily injury or death and property damage, including loss of use thereof. Such policy or policies of automobile liability insurance shall be written on an "occurrence" (as opposed to a "claims made") basis. The Commercial Auto Liability Policy shall be further endorsed to:

 

o

include the other Party as additional insured on a primary and non-contributing basis; and

o

include a waiver of subrogation in favor of the other Party.

 

(d)

Each Party shall obtain and maintain, throughout the Term, Workers' Compensation and Employers Liability complying with the applicable statutory requirements and Employers Liability insurance with limits of $1,000,000 bodily injury by accident (each accident); $1,000,000 bodily injury by disease (policy limit); and $1,000,000 bodily injury by disease (each employee). Policy shall include a waiver of subrogation in favor of the other Party.

 

(e)

Each Party shall obtain and maintain, throughout the Term, Umbrella/Excess Liability in excess of and follow form to the General Liability, Auto Liability and Employers Liability policies required here within in an amount not less than $5,000,000 each occurrence and in the aggregate.

 

(f)

All insurance required by this Section 14 shall be in such form and with such companies as shall be reasonably satisfactory to the other Party, provided that such company shall have a minimum A.M. Best rating of A- Class IX. All insurance required under Section 14 shall name the other Party as an additional insured. Policies of insurance (to the extent applicable) shall (i) provide that the insurance company will have no right of subrogation against the other Party or any of their respective affiliated or subsidiary companies or the agents or employees thereof and (ii) provide that the proceeds thereof in the event of loss or damage shall, to the extent payable to the other Party, be payable notwithstanding any act of negligence or breach of warranty by the other Party which might otherwise result in the forfeiture or nonpayment of such insurance proceeds. All coverage limits and deductible amounts set forth in this Agreement shall be reviewed by the parties from time to time for the purpose of determining the coverage limits and deductible amounts then appropriate for industries similar in type and for the nature of the business being conducted. The parties shall cooperate reasonably to arrive at an agreement on such matters.

 

(g)

For the purpose of ensuring compliance with the provisions of this Section 14, Each Party shall furnish to the other Party certificates of all insurance and renewals as required to be maintained pursuant to this Section 14 including all endorsements. All such certificates shall specify that the policies to which they relate cannot be canceled, modified or non-renewed on less than thirty (30) days prior written notice to the other Party or ten (10) days for non-payment and at least ten (10) days prior to their respective expiration dates.

 

(h)

Neither Party in any way represents, warrants or advises that the insurance or the limits of insurance specified herein are sufficient or adequate to protect the other Party’s interests or cover all of the other Party’s liabilities.

 

 

15.

Force Majeure.

 

(a)

No Party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder to the extent resulting from any acts of God, fire, pandemic, epidemic, explosion, accident, strike, lock-out, civil disorder, terrorist attacks, civil or military authority or any other event or cause beyond such Party’s reasonable control (each an "Event"). To the extent reasonably practicable, each Party shall promptly give notice to the other Party of the occurrence of any Event and shall describe such Event in reasonable detail, including, to the extent possible, the expected duration of the Event and its anticipated impact on such Party’s performance of its obligations under this Agreement.

 

(b)

Each Party acknowledges that, in entering into this Agreement, it has taken into consideration the current and anticipated future effect of the COVID-19 pandemic (the “Pandemic”) on its business. In particular, Romeo has taken the Pandemic into account in connection with production planning for purposes of meeting Purchaser’s demand for Products hereunder, and Purchaser has taken the Pandemic into account in its sales forecasts to manage its risk associated with the provisions of this Agreement relating to the Minimum Volume Commitment (the “Minimum Commitment Provisions”). If the direct negative effects of the Pandemic on the business of either Party eventually become greater than such Party reasonably anticipated on the date hereof, such Party may so notify the other Party in writing. Upon such notice, the Parties shall confer and endeavor in good faith to mutually agree on any amendments to the Minimum Commitment Provisions that are reasonably necessary and equitable in light of such unanticipated negative effects.

 

16.

Miscellaneous.

 

(a)

Agreement. This Agreement constitutes the entire agreement between Romeo and Purchaser with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications relating to such subject matter. There being no expectations to the contrary between the Parties, no usage of trade or other regular practice or method of dealing between the Parties shall be used to modify, interpret, supplement or alter in any manner any express terms of this Agreement. Except as otherwise provided herein, this Agreement shall not be amended except by a writing executed by both Parties. No waiver of any provision of this Agreement or any rights or obligations of either Party hereunder shall be effective, except pursuant to a written instrument signed by the Party or Parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. A Party shall not assign or otherwise transfer this Agreement or any rights hereunder, and any purported assignment or other transfer without the other Party’s prior written consent (which shall not be unreasonably withheld) shall be null and void ab initio and of no force or effect.

 

(b)

Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the state of California applicable to contracts entered into and fully performed in California by residents thereof. Application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. Any action or proceeding brought by either Party against the other arising out of or in connection with this Agreement or the breach or alleged breach hereof, the Product, or the use or commercialization of any Product shall be brought only in a state or federal court located in the state of California, county of Los Angeles, and Purchaser hereby irrevocably submits and consents to the personal jurisdiction of and to venue in such courts for purposes of any such action or proceeding. Notwithstanding the foregoing, Romeo or any Affiliate thereof may bring any claim or action of any type to enforce, or otherwise address any infringement, misappropriation, misuse or other violation of, any patent, trade secret or other intellectual property right owned or controlled by Romeo or any Affiliate thereof in any court, agency or tribunal, anywhere in the world.

 

(c)

Severability. If all or part of any provision of this Agreement shall be deemed invalid or unenforceable under applicable law, such provision, or the invalid or unenforceable part thereof, shall be deemed stricken from this Agreement, and the remainder of this Agreement shall continue in full force and effect.

 

(d)

No Joint Venture; No Third-Party Beneficiary. Nothing contained herein shall be deemed to create a joint venture or partnership or agency relationship between Romeo and Purchaser. Neither Party shall assume or create or have the right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party. Nothing in this Agreement shall be deemed to confer upon any Person other than the Parties and their respective assigns or other successors in interest a right of action either under this Agreement or in any manner whatsoever.

 

 

(e)

Press Releases; Confidentiality of Terms. If either Party wishes to issue a press release or otherwise publicly announce this Agreement, it shall first obtain the other Party’s written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, each Party shall hold in confidence and shall not disclose the terms of this Agreement, except that disclosure by a Party shall be permitted to its employees, lawyers, accountants and other advisors who reasonably require access to such terms and to actual or potential regulators, licensees, licensors, acquirors or other Persons with a reasonable interest in the disclosing Party's business arrangements, provided that any Person acquiring knowledge of such terms shall first agree in writing to maintain the confidentiality of such terms and to use his or her knowledge of such terms only for the purposes for which such terms are disclosed hereunder. In any event, Purchaser shall be entitled to publicly disclose that Romeo is its supplier of the Products.

 

(f)

Failure of Essential Purpose. The Parties acknowledge and agree that the provisions hereof that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Agreement that are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach or other occurrence hereunder. Without limiting the generality of the foregoing, Purchaser agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under this Agreement to fail of its essential purpose.

 

(g)

Notices. Any notice or communication required or permitted to be given pursuant to any provision of this Agreement shall be in writing and shall be (i) delivered personally, (ii) sent by certified mail, return receipt requested, or (iii) delivered by nationally recognized overnight courier, addressed as follows:

 

a.

If to Phoenix, to:

 

401 S. Doubleday Ave, Ontario, CA 91761

 

Attn: Gillray M. Cadet, CFO & Interim CEO ([email protected]) & Tarek Helou, COO ([email protected])

 

b.

If to Romeo, to:

 

4380 Ayers Ave, Vernon, CA 90058

 

Attn: Lauren Webb, Chief Finance Officer ([email protected]) and Lionel Selwood Jr., President ([email protected])

 

Any such communication shall be deemed to be delivered, given and received for all purposes hereof (i) on the date of receipt if delivered personally by courier, (ii) five (5) days after posting if transmitted by certified mail, return receipt requested, or (iii) the day following deposit with a nationally recognized express overnight delivery service such as FedEx.

 

 

[Signatures Follow]

 

 

IN WITNESS WHEREOF, the Parties hereby enter into this Agreement as of the date hereof:

 

PURCHASER			ROMEO
By:	/s/ Gillray Cadet		By:	/s/ Lauren Webb
Title:	CFO & Interim CEO		Title:	CFO

 

Print Name:

Gillray Cadet

Print Name:

Lauren Webb

 

 

Exhibit A

 

Test Campaign

 

Romeo will conduct a Test Campaign, for the tests as described below, to validate road-readiness of Product Units.

 

The tests, which will be conducted in parallel (see Exhibit F), will include but may not be limited to:

 

Functional & Safety Testing* (which shall be no later than November 20, 2020)	~ 28 business days
Altitude Simulation Test
Thermal Test
Vibration Test
Shock Test
External Short Circuit Test
Impact Test
Overcharge Test
*Following UN38.3 Standards

 

Performance & Reliability (Engineering Verification Testing (EVT))**	~ 80 business days
Overcharge Test
Short Circuit Test
Overcharge Protection Test
Temperature Test
Imbalanced Charging Test
Dielectric Withstand Test
Isolation Resistance Test
Continuity Test
Failure Test
Rotation Test
Vibration Endurance Test
Shock Test
Drop Test
Crush Test
Thermal Cycling Test
Salt Spray Test
Immersion Test
External Fire Test
Internal Fire Test
**Following UL2580 Standards

 

 

Exhibit B

 

Prices, Minimum Commitments, Lead Time

 

Product Unit

 

Romeo Power 31.36 kWh Orion v1 Liquid Cooled Pack containing three (3) 32S18P Hermes Modules in a 3S1P configuration. The pack includes a Battery Management System (BMS) with Vehicle CAN Interface using J1939-71 protocols.

 

Lead Time

 

Lead Time, as specified in Section 1(d) of this agreement, is 16 weeks from PO submission. However, a Lead Time exception has been made for the two (2) Prototype Units which will be delivered on September 28, 2020 and the first PO for the Minimum Volume Commitment for 2020 (see below table) which will have a Lead Time according to Exhibit F. For the avoidance of doubt, Romeo has accepted the PO for the two (2) Prototype Units and the first PO for the Minimum Volume Commitment for 2020.

 

Prototype Unit Price

 

Romeo Power Prototype Pack (up to 5 Prototype Units): $950/kWh ($29,640/pack)

 

Product Unit Price and Minimum Volume Commitment

 

Year		Price		Minimum Volume Commitment
2020		$479/kWh ($14,950/Product Unit)		35 Safety Tested Battery Units
2021		$368/kWh ($11,482/Product Unit)		800 Safety Tested Battery and/or Product Units
2022		$351/kWh ($10,951/Product Unit)		1,600 Product Units

 

Price Ceiling Clause

 

Prices communicated are ceilings or maximums. If Romeo is unable to deliver the Safety Tested Battery Units for the 2020 Minimum Volume Commitment within the timeframe identified in the Project Plan in Exhibit F, then the Price shall be reduced to the 2021 price of $368/kWh. If Romeo is unable to deliver the Safety Tested Battery Units and/or Product Units for the 2021 Minimum Volume Commitment, then the Minimum Volume Commitment for 2021 shall be reduced by 1/50 for each week of delay. The maximum prices for 2021 and 2022 are $368/kWh and $351/kWh respectively once the Minimum Committed Volume, specified above in this Exhibit B, is met. Romeo will partner with Purchaser in good faith to achieve lower prices for Product Units utilizing activities including Joint Open Book Cost Exercises, which will take place during an agreed on Periodic Cost Review time interval as defined on Section 4(b) of this agreement.

 

Tiered Pricing Table

 

If, during any calendar year of the Initial Term, the number of Product Units purchased hereunder exceeds the applicable Minimum Volume Commitment, then the price of Product Units purchased during such calendar year after Purchaser purchases the Minimum Volume Commitment for such year shall be determined based on the tiered pricing table set forth below. For example, if Purchaser purchases 1,300 Product Units in 2021, then Purchaser shall pay $368/kWh for each of the first 800 Product Units, $364/kWh for each of the next 200 Product Units, $361/kWh for the each of the next 200 Product Units after that, and $357/kWh for each of the final 100 Product Units purchased in that year. Accordingly, the total purchase price paid for Products purchased in 2021 in this example would be (800 x $11,482) + (200 * $11,367) + (200*11,252) + (100*$11,139) = $14,823,300.

 

Pack Volume				Price per Pack (USD)				Price per kWh (USD)
	800			$	11,482			$	368
	1,000			$	11,367			$	364
	1,200			$	11,252			$	361
	1,400			$	11,139			$	357
	1,600			$	11,014			$	353
	2,000			$	10,822			$	347
	2,500			$	10,660			$	342
	4,000			$	9,763			$	313

 

 

Exhibit C

 

Purchaser Authorized Products

 

1.

Purchaser electric drivetrain

 

2.

Class 4 Vehicles:

a.

Ford E-Series chassis

 

3.

Class 5 & 6 Vehicles:

a.

Ford F-Series chassis

 

 

Exhibit D

 

Product Warranty

 

1.

WARRANTY

 

Subject to Section 2 of this Limited Product Warranty (this “Warranty”), Romeo warrants to Purchaser that each Product Unit and each Safety Tested Battery Unit that has completed the Functional and Safety Testing segment of the Test Campaign per Exhibit A (which shall be no later than November 20, 2020) shall be free of defects in design, materials and workmanship during the period (the “Warranty Period”) commencing upon Purchaser’s receipt of the Product Unit and/or Safety Tested Battery Unit and ending upon the earliest to occur of the following: (i) fifty (50) months from the date that Purchaser receives the Product Unit and/or Safety Tested Battery Unit, and (ii) the occurrence of two thousand (2,000) cycles; provided, however, that if the Product Unit and/or Safety Tested Battery Unit fails to record the number of Cycles or if the Cycle count record shall become corrupted or unreadable, the Warranty Period shall end on the fiftieth (50^th) month from the date that Purchaser receives the Product Unit and/or Safety Tested Battery Unit. For the avoidance of doubt, Romeo defines a cycle as a full charge event followed by a drive event that consumes at least 50% of the Product Unit’s and/or Safety Tested Battery Unit’s usable energy capacity. Additionally, notwithstanding the foregoing, no warranties are provided for Safety Tested Battery Units that have not completed the Functional and Safety Testing segment of the Test Campaign per Exhibit A (which shall be no later than November 20, 2020).

 

2.

CONDITIONS

 

Notwithstanding any other provision hereof, this Warranty shall be void and of no force or effect if:

 

·

the Product is altered or repaired by any person other than Romeo or Romeo’s authorized service representative;

·

neither Purchaser nor any person that subsequently obtains the Product shall fail in any respect to (i) install, operate, maintain, store and transport the Product in accordance with any guidelines or instructions provided by Romeo or (ii) comply with Section 4 of this Warranty;

·

·

the Product is at any time exposed to operating temperatures above 60°C or below -20°C.

·

the Product is at any time exposed to charging temperatures above 50°C or below 0°C.

 

Further, Romeo shall have no liability or obligation under this Warranty, and no Product shall be deemed to violate this Warranty, as a result of any failure, condition or problem attributable to:

 

·

accident;

·

fire;

·

immersion in liquid;

·

natural disasters, war, riot, terrorism, or other events or occurrences that are beyond Romeo’s reasonable control; or

·

electrical overloading or external electrical shorts, power failure surges, inrush current or lightning.

 

Notwithstanding any other provision hereof, Romeo provides no warranty whatsoever with respect to (i) any prototypes provided hereunder or (ii) any Products that are not satisfactory as determined by the Test Campaign (i.e., any Products that may not be sold by Purchaser as provided in Section 2(b)).

 

3.

SERVICE LEVEL AGREEMENT

 

A Service Level Agreement has been released under Document Reference Number 20004.199.00. The Service Level Agreement shall be reviewed jointly by both Parties, at minimum once per calendar Year.

 

 

4.

POTENTIAL WARRANTY EXTENSION

 

The Parties shall discuss and in good faith consider whether this Agreement should be amended to extend the Warranty Period as of the first (1^st) anniversary of the first production use of any Product purchased hereunder by Purchaser, based on the parties analysis of relevant data supplied to Romeo by Purchaser, including, without limitation, the following recorded BMS variables, such as:

 

·

Timestamp

·

Pack Voltage

·

Pack Current

·

Module Block Voltage

·

Fault Monitoring Signals

·

Advertised SOC

·

Energy Throughput

·

Cycle Counter

·

Module Temperatures

·

Module Block Voltage Deltas

·

Vehicle Mileage

 

5.

CLAIM PROCESS AND EXCLUSIVE REMEDY

 

Purchaser shall promptly notify Romeo of any violation of this Warranty by telephone or email or physical letter as follows:

 

	Email:	[email protected]
	Phone:	323-675-2180
	Address:	Romeo Power Technology 4380 Ayers Ave Vernon, CA 90058

 

Such notice shall (i) describe the warranty violation in detail and (ii) specify the date that the Product was first shipped by Romeo, the date that the Product was first used and the serial number of the Product. If Romeo requests, Purchaser shall confer (or shall cause the then-current owner of the Product to confer) with a Romeo engineer or technician for the purpose of providing any requested information and endeavoring to resolve the warranty claim expeditiously. If requested by Romeo, Purchaser shall allow (or shall cause the then-current owner of the Product to allow) an authorized Romeo engineer or technician to inspect the Product at Purchaser’s (or such then-current owner’s) facility or will ship (or cause the then-current owner to ship) the Product to Romeo, FOB destination, to the address provided above or other address specified by Romeo.

 

If Romeo accepts the warranty claim, it will promptly make commercially reasonable efforts to repair or replace the Product and, if the Product is at Romeo’s facility, will ship the repaired or replaced Product to Purchaser FOB Purchaser’s address (or, if Purchaser requests, to the then-current owner of the Product FOB such current owner’s address). The repaired Product or replacement Product (as the case may be) will continue to be covered by this Warranty for the remainder of the original Warranty Period. (Accordingly, for purposes of determining the Warranty Period for a repaired or replacement Product, the ship date and first use date, respectively, of the repaired or replacement Product shall be deemed to be the same as the ship date and first use date of the original Product, and the Ah-throughput of the repaired or replacement Product as of the time that it is shipped or otherwise provided by Romeo shall be deemed to be the same as the Ah-throughput of the Product at the time of the applicable warranty claim.) Any Product or any components thereof that are replaced shall become the property of Romeo. The decision whether to repair a defective Product or replace it shall be made by Romeo in the exercise of its sole discretion. If the defective Product is replaced and the original Product is at Purchaser’s (or the then-current owner’s) facility, Purchaser will either ship the original Product back to Romeo or dispose of the original Product, in each case as Romeo instructs and at Romeo’s sole expense.

 

 

If Romeo rejects the warranty claim, it shall promptly so notify Purchaser in writing, which notice explains why Romeo rejected such claim. If the Product is at Romeo’s facility, Romeo will either ship the Product back to Purchaser (or, if Purchaser requests, to the then-current owner) or dispose of the Product, in each case as the Purchaser instructs and at Purchaser’s sole expense.

 

This Section 5 of this Warranty sets forth Romeo’s only obligation and liability and Purchaser’s sole and exclusive remedy for any breach of this Warranty.

 

 

Exhibit E

 

Powered By Credit

 

 

Exhibit F

 

Phoenix Motorcars – Project Plan

 

ID	Task Name	Duration	Start	Finish
1	i	128 days	Mon 3/2/20	Fri 8/28/20
2	Contracts	128 days	Mon 3/2/20	Fri 8/28/20
3	Proposal (LOI) Review	62 days	Mon 3/2/20	Wed 5/27/20
4	Proposal (LOI) Execution	0 days	Wed 5/27/20	Wed 5/27/20
5	Contract (MSA + SLA) Review	28 days	Thu 5/28/20	Tue 7/7/20
6	Contract (MSA + SLA) Execution	38 days	Wed 7/8/20	Fri 8/28/20
7	A-Sample Prototype & Testing	162 days	Thu 6/18/20	Mon 2/8/21
8	Prototype Purchase Orders	0 days	Thu 6/18/20	Thu 6/18/20
9	Issue Prototype PO	0 days	Thu 6/18/20	Thu 6/18/20
10	Design Release	4 days	Thu 6/18/20	Tue 6/23/20
11	Engineering Design Release	4 days	Thu 6/18/20	Tue 6/23/20
12	Prototype Packs Procurement	63 days	Wed 6/24/20	Tue 9/22/20
13	Pack Parts Procurement	58 days	Wed 6/24/20	Tue 9/15/20
14	Module Parts Procurement	63 days	Wed 6/24/20	Tue 9/22/20
15	Prototype Pack Builds	25 days	Wed 9/23/20	Tue 10/27/20
16	Build Week 1 (Packs 1, 2)	4 days	Wed 9/23/20	Mon 9/28/20
17	Build Week 2 (Packs 3, 4, 5)	5 days	Wed 10/7/20	Tue 10/13/20
18	Build Week 3 (Packs 6, 7, 8, 9)	5 days	Wed 10/14/20	Tue 10/20/20
19	Build Week 4 (Packs 10, 11)	5 days	Wed 10/21/20	Tue 10/27/20
20	Test Campaign	80 days	Wed 10/14/20	Mon 2/8/21
21	Performance & Reliability (EVT)	80 days	Wed 10/14/20	Mon 2/8/21
22	Functional & Safety (UN38.3)	28 days	Wed 10/14/20	Fri 11/20/20
23	A-Sample Production	81 days	Fri 8/28/20	Wed 12/23/20
24	Production Purchase Orders	1 day	Fri 8/28/20	Fri 8/28/20
25	Issue Production PO	1 day	Fri 8/28/20	Fri 8/28/20
26	Production Packs Procurement	60 days	Mon 8/31/20	Mon 11/23/20
27	Pack Parts Procurement	60 days	Mon 8/31/20	Mon 11/23/20
28	Module Parts Procurement	60 days	Mon 8/31/20	Mon 11/23/20
29	Production Pack Builds	20 days	Tue 11/24/20	Wed 12/23/20
30	Week 1 (10 packs)	5 days	Tue 11/24/20	Wed 12/2/20
31	Week 2 (10 packs)	5 days	Thu 12/3/20	Wed 12/9/20
32	Week 3 (10 packs)	5 days	Thu 12/10/20	Wed 12/16/20
33	Week 4 ( 5 packs)	5 days	Thu 12/17/20	Wed 12/23/20

 

 

 

Exhibit 10-9

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 1 of 11
Title: Service Level Agreement

 

Service Level Agreement (SLA)

 

for Phoenix Motorcars

 

by Romeo Systems, Inc.

 

20004.199.00

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 2 of 11
Title: Service Level Agreement

 

Revision Control

 

REVISION	DATE	SUMMARY	PREPARED	REVIEWED	APPROVED
0		Initial Issue

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 3 of 11
Title: Service Level Agreement

 

Table of Contents

 

Revision Control

2

 

1.

Overview

4

 

2.

Service Agreement

5

 

2.1.

Service Scope

5

 

2.2.

Service Levels and Response Times

7

 

2.3.

Purchaser Requirements

8

 

2.4.

Romeo Requirements

8

 

2.5.

Additional Fee Based Services Provided

8

 

2.6.

Exceptions and Limitations

9

 

3.

Periodic Review

10

 

4.

Acceptance

11

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 4 of 11
Title: Service Level Agreement

 

1.

Overview

 

This is a Service Level Agreement ( “SLA”) between Romeo Systems, Inc. (“Romeo”) and Phoenix Cars LLC dba Phoenix Motorcars (“Purchaser” or “PMC”) for the services required to support and sustain Orion v1 Battery Packs.

 

This Agreement shall go into effect upon the execution of a Product Supply Master Agreement (“Supply Agreement”) and remain valid for the Warranty Period defined within Exhibit D of the executed Product Supply Master Agreement. This SLA is incorporated into the Supply Agreement by reference and is subject to its terms and conditions. Capitalized terms not otherwise defined herein will have the same meaning as in the Supply Agreement. In the event of a conflict between this SLA and the Supply Agreement, the Supply Agreement will govern.

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 5 of 11
Title: Service Level Agreement

 

2.

Service Agreement

 

2.1.

Service Scope

 

The following services (“Services”) are covered by this SLA:

 

Telephone/email support

 

·

Technical issues will be reported through the Romeo Customer Portal (https://customers.romeopower.com) and troubleshooted via telephone and/or email support.

·

Acknowledgement and response times are set forth in the table in Section 2.2 (Service Levels and Response Times). A Path to Resolution will be provided by Romeo within the timeframes set forth in Section 2.2.

 

Rapid unit repair/replacement – Under Warranty

 

·

Reconditioned, refurbished, or new Product Unit (“Replacement Unit”) to be provided in exchange for a faulty Product Unit or faulty Safety Tested Battery Unit (“Product Unit” and “Safety Tested Battery Unit” are defined in the Supply Agreement)

·

Replacement Unit will have equal or greater energy capacity and a less than or equal number of cycles as the Product Unit or Safety Tested Battery Unit being replaced

·

Committed Turn-around Time (“TAT”):

o

Upon determination of a path forward within the time frames set forth in Section 2.2, if a return of a faulty unit occurs, Romeo shall provide a path to resolution as to whether it will repair or replace a faulty Product Unit or faulty Safety Tested Battery Unit within 10 business days after receipt of product.

o

Repair TAT subject to repair complexity.

 

Safety stock

 

·

Safety stock carried in Product Unit inventory to ensure minimal downtime

·

Safety stock level: 4 completed Product Units and component-level stock to build 2 additional Product Units. As volume of orders increase, the Safety stock level shall also increase and will be reviewed by the Parties every six (6) months.

·

Committed Turn-around Time (TAT):

o

5 business days for Romeo to ship finished Product Unit

o

Support outside of safety stock quantity to be determined by Romeo Power based on component lead times, which in no event will exceed 12 weeks.

 

Field engineer support

 

·

Field support team for PMC dealership visits.

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 6 of 11
Title: Service Level Agreement

 

·

Limited to 2 days of on-site support for initial delivery (i.e., 1st shipment of Safety Tested Battery Unit ) to PMC.

·

Future technical issue visits offered only for major issues that cannot be resolved via phone/email/telecon and safety stock replacements.

·

Paid upgrade option is available for additional support for PMC’s end customers – see Section 2.5 (Additional Fee Based Services Provided) below.

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 7 of 11
Title: Service Level Agreement

 

Firmware upgrades/updates

 

·

Firmware upgrades and updates may be made periodically on a when-and-if-available basis. A release will consist of the following:

o

Released software – This will be delivered via electronic delivery, to be flashed by Purchaser via CAN. A list of required equipment and instructions to perform upgrades and updates will be Provided by Romeo to PMC, or PMC’s third-party service centers at the time of a new Firmware release.

o

Release notes -- This will detail any changes made since the previous release of the software.

 

2.2.

Service Levels and Response Times

 

In support of services outlined in this Agreement, Romeo will respond to requests submitted by the Purchaser in accordance with the table below:

 

Severity Level	Description	Path to Resolution Timeframe
Level 1   High Priority	Issue that prevents operation of the Purchaser Authorized Product resulting in severe impact to the Purchaser’s business   Severity Level 1 issues could include but are not limited to the following characteristics:   ·      Multiple Purchaser Authorized Products are inoperable due to Product Unit or Safety Tested Battery Unit issue ·      Significant safety issue caused by Product Unit or Safety Tested Battery Unit	Within 1 business day
Level 2   Medium Priority	Issue that prevents the intended use of the Purchaser Authorized Product, but a workaround is available   Severity Level 2 issues could include but are not limited to the following characteristics:   ·      Isolated issue with Product Unit or Safety Tested Battery Unit and no major safety risk	Within 5 business days
Level 3	Issue that does not significantly prevent the Purchaser Authorized Product from working as intended	Within 10 business days
Low Priority	Severity Level 3 issues could include but are not limited to the following characteristics:   ·      Reduced functionality but no major reduction to operations

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 8 of 11
Title: Service Level Agreement

 

Normal operating business hours are Monday to Friday, 9 AM to 5 PM, Pacific Coast Time (PT).

 

·

Product issue tickets shall be submitted to the Romeo Customer Portal site, which includes a pre- defined form to report new issues, issue tracking and return merchandise authorization form (if applicable). The Romeo Customer Portal site can be used by an unlimited number of users authorized by PMC, including its third-party service partners. Each user shall be provided with unique login information by Romeo.

·

Priority level should initially be selected by the Purchaser during submittal of the ticket

·

Romeo personnel to review and reach out to Purchaser within 24 business hours of receipt to:

o

Align on appropriate Priority Level

o

Ensure full understanding of reported topic

o

Define next steps (e.g. additional data required, mitigation solution, final solution)

·

Path forward would include target final resolution date and interim solution (if applicable)

 

2.3.

Purchaser Requirements

 

Purchaser responsibilities and/or requirements in support of this SLA include:

 

·

Provide all necessary information related to the Product issue

·

Report issue or incident within 48 hours of occurrence via Romeo Customer Portal

 

2.4.

Romeo Requirements

 

Romeo shall act as the primary support provider of the Services herein identified except when third-party vendors are employed, in which case Romeo shall require such third parties to assume appropriate service support responsibilities accordingly. Romeo shall also meet the targets as outlined in Section 2.2 (Service Levels and Response Times).

 

2.5.

Additional Fee Based Services Provided

 

Training: Romeo shall provide a diagnostic flowchart and a troubleshooting guide to PMC. Additional product training beyond the standard operating documentation for the Purchaser is available on request. Training fees will be mutually agreed to in advance.

 

Field Engineering Support: A dedicated Field Engineering Support Team is available for end customer and/or dealer location visits beyond initial Product onboarding support. Support level and duration to be quoted on request.

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 9 of 11
Title: Service Level Agreement

 

Out of Warranty repairs: Products outside of Warranty may be submitted to Romeo for repair evaluation. A cost estimate or determination that product is Beyond Economical Repair (BER) will be provided to Purchaser for evaluation.

 

Recycling support: Upon notification from Purchaser of each Product Unit end-of-life, Romeo shall provide Purchaser with instructions for disposition of such end-of-life inventory.

 

2.6.

Exceptions and Limitations

 

Romeo’s support services are limited only to Product Units and Safety Tested Battery Units still within Warranty Period. Romeo will provide, at time of delivery, recommended Best Practices for maximizing battery life. PMC shall share these Best Practices with its customers and train them on Romeo’s recommended Best Practices.

The SLA does not apply to any repair, replacement, or correction caused by or related to, either directly or indirectly, accident, lack of or improper installation, transportation, storage, operation, maintenance; attempted repair of any Product Unit by Purchaser; Safety Tested Battery Units or Prototype Units; or any other misuse or negligence, including any of the following:

 

·

Electrical overloading or external electrical shorts, power failure surges, inrush current, lightning, flood, fire, accidental breakage, etc.

·

An Event as described in Section 15 (Force Majeure) of the Supply Agreement

·

Theft of Product or any components thereof

·

Repairs, modifications, disassembly, replacements or alternations performed by any party other than Romeo or a third party certified by Romeo, provided that Romeo has identified a Romeo-certified party or made itself available to perform such types of services. Romeo-certified parties shall be identified in the Romeo Customer Portal. Romeo shall provide PMC with its authorized certification program information when available and PMC may become a Romeo-certified party to perform repairs, modifications, disassembly, replacements or alternations.

·

The defect has resulted from the Purchaser's misuse of the Product provided by Romeo

·

The Product’s serial number is damaged

·

Exposing a Product to ambient temperatures above 60°C or below -30°C for more than twenty-four (24) hours at a time

·

Exposing any component of the Product to direct flame

·

Immersing any components of the Product in water or other fluids

·

Damage that occurs after the expiration or termination of the Warranty Period or that is reported more than ten (10) days after the expiration or termination of the Warranty Period

·

Failure of Purchaser’s equipment, including but not limited to the Purchaser Authorized Vehicle, unrelated to the Product

•

In the event of non-payment or delinquent payment by Purchaser

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 10 of 11
Title: Service Level Agreement

 

3.

Periodic Review

 

This SLA should be mutually reviewed every six (6) months. However, in the absence of a review during any period specified, the current SLA will remain in effect.

 

The Romeo Program Manager is responsible for facilitating regular reviews of this document.

 

Program Manager: PM responsible for Purchaser

Review Period: Minimum once per Calendar Year

Previous Review Date: 09/04/2020 

Next Review Date: 03/04/2021

 

 

4380 Ayers Avenue, Vernon, CA, 90058

DRN: 20004.199.00	Revision: 0	Date: 9/4/2020	Page 11 of 11
Title: Service Level Agreement

 

4.

Acceptance

 

Purchaser: Phoenix Cars LLC dba Phoenix Motorcars
Signature:	/s/ Gillray Cadet
Name:	Gillray Cadet
Company:	Phoenix Cars LLC
Date:	9/8/2020
Romeo Systems, Inc.
Signature:	/s/ Lauren Web
Name:	Lauren Webb
Company:	Romeo Power
Date:	9/8/2020

 

 

Exhibit 10.11

 

LOAN AUTHORIZATION AND AGREEMENT (LA&A)

 

A PROPERLY SIGNED DOCUMENT IS
REQUIRED PRIOR TO ANY
DISBURSEMENT

 

CAREFULLY READ THE LA&A:

This document describes the terms and conditions of your loan. It is your responsibility to comply with ALL the terms and conditions of your loan.

 

SIGNING THE LA&A:
All borrowers must sign the LA&A.
	·	Sign your name exactly as it appears on the LA&A. If typed incorrectly, you should sign with the correct spelling.
	·	If your middle initial appears on the signature line, sign with your middle initial.
	·	If a suffix appears on the signature line, such as Sr. or Jr., sign with your suffix.
	·	Corporate Signatories: Authorized representatives should sign the signature page.
Your signature represents your agreement to comply
with the terms and conditions of the loan.

 

 

U.S. Small Business Administration

 

Economic Injury Disaster Loan

 

LOAN AUTHORIZATION AND AGREEMENT

 

Date: 05.26.2020 (Effective Date)

 

On the above date, this Administration (SBA) authorized (under Section 7(b) of the Small Business Act, as amended) a Loan (SBA Loan #3463267808) to Phoenix Cars LLC (Borrower) of 401 S Doubleday Avenue Ontario California 91761 in the amount of one hundred and fifty thousand and 00/100 Dollars ($150,000.00), upon the following conditions:

 

PAYMENT

 

·

Installment payments, including principal and interest, of $731.00 Monthly, will begin Twelve (12) months from the date of the promissory Note. The balance of principal and interest will be payable Thirty (30) years from the date of the promissory Note.

 

INTEREST

 

·

Interest will accrue at the rate of 3.75% per annum and will accrue only on funds actually advanced from the date(s) of each advance.

 

PAYMENT TERMS

 

·

Each payment will be applied first to interest accrued to the date of receipt of each payment, and the balance, if any, will be applied to principal.

 

·

Each payment will be made when due even if at that time the full amount of the Loan has not yet been advanced or the authorized amount of the Loan has been reduced.

 

COLLATERAL

 

·

For loan amounts of greater than $25,000, Borrower hereby grants to SBA, the secured party hereunder, a continuing security interest in and to any and all “Collateral” as described herein to secure payment and performance of all debts, liabilities and obligations of Borrower to SBA hereunder without limitation, including but not limited to all interest, other fees and expenses (all hereinafter called “Obligations”). The Collateral includes the following property that Borrower now owns or shall acquire or create immediately upon the acquisition or creation thereof: all tangible and intangible personal property, including, but not limited to: (a) inventory, (b) equipment, (c) instruments, including promissory notes (d) chattel paper, including tangible chattel paper and electronic chattel paper, (e) documents, (f) letter of credit rights, (g) accounts, including health-care insurance receivables and credit card receivables, (h) deposit accounts, (i) commercial tort claims, (j) general intangibles, including payment intangibles and software and (k) as-extracted collateral as such terms may from time to time be defined in the Uniform Commercial Code. The security interest Borrower grants includes all accessions, attachments, accessories, parts, supplies and replacements for the Collateral, all products, proceeds and collections thereof and all records and data relating thereto.

 

·

For loan amounts of $25,000 or less, SBA is not taking a security interest in any collateral.

 

 

REQUIREMENTS RELATIVE TO COLLATERAL

 

·

Borrower will not sell or transfer any collateral (except normal inventory turnover in the ordinary course of business) described in the "Collateral" paragraph hereof without the prior written consent of SBA.

 

·

Borrower will neither seek nor accept future advances under any superior liens on the collateral securing this Loan without the prior written consent of SBA.

 

USE OF LOAN PROCEEDS

 

·

Borrower will use all the proceeds of this Loan solely as working capital to alleviate economic injury caused by disaster occurring in the month of January 31, 2020 and continuing thereafter and to pay Uniform Commercial Code (UCC) lien filing fees and a third-party UCC handling charge of $100 which will be deducted from the Loan amount stated above.

 

REQUIREMENTS FOR USE OF LOAN PROCEEDS AND RECEIPTS

 

·

Borrower will obtain and itemize receipts (paid receipts, paid invoices or cancelled checks) and contracts for all Loan funds spent and retain these receipts for 3 years from the date of the final disbursement. Prior to each subsequent disbursement (if any) and whenever requested by SBA, Borrower will submit to SBA such itemization together with copies of the receipts.

 

·

Borrower will not use, directly or indirectly, any portion of the proceeds of this Loan to relocate without the prior written permission of SBA. The law prohibits the use of any portion of the proceeds of this Loan for voluntary relocation from the business area in which the disaster occurred. To request SBA's prior written permission to relocate, Borrower will present to SBA the reasons therefore and a description or address of the relocation site. Determinations of (1) whether a relocation is voluntary or otherwise, and (2) whether any site other than the disaster-affected location is within the business area in which the disaster occurred, will be made solely by SBA.

 

·

Borrower will, to the extent feasible, purchase only American-made equipment and products with the proceeds of this Loan.

 

·

Borrower will make any request for a loan increase for additional disaster-related damages as soon as possible after the need for a loan increase is discovered. The SBA will not consider a request for a loan increase received more than two (2) years from the date of loan approval unless, in the sole discretion of the SBA, there are extraordinary and unforeseeable circumstances beyond the control of the borrower.

 

DEADLINE FOR RETURN OF LOAN CLOSING DOCUMENTS

 

·

Borrower will sign and return the loan closing documents to SBA within 2 months of the date of this Loan Authorization and Agreement. By notifying the Borrower in writing, SBA may cancel this Loan if the Borrower fails to meet this requirement. The Borrower may submit and the SBA may, in its sole discretion, accept documents after 2 months of the date of this Loan Authorization and Agreement.

 

COMPENSATION FROM OTHER SOURCES

 

·

Eligibility for this disaster Loan is limited to disaster losses that are not compensated by other sources. Other sources include but are not limited to: (1) proceeds of policies of insurance or other indemnifications, (2) grants or other reimbursement (including loans) from government agencies or private organizations, (3) claims for civil liability against other individuals, organizations or governmental entities, and (4) salvage (including any sale or re-use) of items of damaged property.

 

 

·

Borrower will promptly notify SBA of the existence and status of any claim or application for such other compensation, and of the receipt of any such compensation, and Borrower will promptly submit the proceeds of same (not exceeding the outstanding balance of this Loan) to SBA.

 

·

Borrower hereby assigns to SBA the proceeds of any such compensation from other sources and authorizes the payor of same to deliver said proceeds to SBA at such time and place as SBA shall designate.

 

·

SBA will in its sole discretion determine whether any such compensation from other sources is a duplication of benefits. SBA will use the proceeds of any such duplication to reduce the outstanding balance of this Loan, and Borrower agrees that such proceeds will not be applied in lieu of scheduled payments.

 

DUTY TO MAINTAIN HAZARD INSURANCE

 

·

Within 12 months from the date of this Loan Authorization and Agreement the Borrower will provide proof of an active and in effect hazard insurance policy including fire, lightning, and extended coverage on all items used to secure this loan to at least 80% of the insurable value. Borrower will not cancel such coverage and will maintain such coverage throughout the entire term of this Loan. BORROWER MAY NOT BE ELIGIBLE FOR EITHER ANY FUTURE DISASTER ASSISTANCE OR SBA FINANCIAL ASSISTANCE IF THIS INSURANCE IS NOT MAINTAINED AS STIPULATED HEREIN THROUGHOUT THE ENTIRE TERM OF THIS LOAN. Please submit proof of insurance to: U.S. Small Business Administration, Office of Disaster Assistance, 14925 Kingsport Rd, Fort Worth, TX. 76155.

 

BOOKS AND RECORDS

 

·

Borrower will maintain current and proper books of account in a manner satisfactory to SBA for the most recent 5 years until 3 years after the date of maturity, including extensions, or the date this Loan is paid in full, whichever occurs first. Such books will include Borrower's financial and operating statements, insurance policies, tax returns and related filings, records of earnings distributed and dividends paid and records of compensation to officers, directors, holders of 10% or more of Borrower's capital stock, members, partners and proprietors.

 

·

Borrower authorizes SBA to make or cause to be made, at Borrower's expense and in such a manner and at such times as SBA may require: (1) inspections and audits of any books, records and paper in the custody or control of Borrower or others relating to Borrower's financial or business conditions, including the making of copies thereof and extracts therefrom, and (2) inspections and appraisals of any of Borrower's assets.

 

·

Borrower will furnish to SBA, not later than 3 months following the expiration of Borrower's fiscal year and in such form as SBA may require, Borrower's financial statements.

 

·

Upon written request of SBA, Borrower will accompany such statements with an 'Accountant's Review Report' prepared by an independent public accountant at Borrower's expense.

 

·

Borrower authorizes all Federal, State and municipal authorities to furnish reports of examination, records and other information relating to the conditions and affairs of Borrower and any desired information from such reports, returns, files, and records of such authorities upon request of SBA.

 

 

LIMITS ON DISTRIBUTION OF ASSETS

 

·

Borrower will not, without the prior written consent of SBA, make any distribution of Borrower’s assets, or give any preferential treatment, make any advance, directly or indirectly, by way of loan, gift, bonus, or otherwise, to any owner or partner or any of its employees, or to any company directly or indirectly controlling or affiliated with or controlled by Borrower, or any other company.

 

EQUAL OPPORTUNITY REQUIREMENT

 

·

If Borrower has or intends to have employees, Borrower will post SBA Form 722, Equal Opportunity Poster (copy attached), in Borrower's place of business where it will be clearly visible to employees, applicants for employment, and the general public.

 

DISCLOSURE OF LOBBYING ACTIVITIES

 

·

Borrower agrees to the attached Certification Regarding Lobbying Activities

 

BORROWER’S CERTIFICATIONS

 

Borrower certifies that:

 

·

There has been no substantial adverse change in Borrower's financial condition (and organization, in case of a business borrower) since the date of the application for this Loan. (Adverse changes include, but are not limited to: judgment liens, tax liens, mechanic's liens, bankruptcy, financial reverses, arrest or conviction of felony, etc.)

 

·

No fees have been paid, directly or indirectly, to any representative (attorney, accountant, etc.) for services provided or to be provided in connection with applying for or closing this Loan, other than those reported on SBA Form 5 Business Disaster Loan Application'; SBA Form 3501 COVID-19 Economic Injury Disaster Loan Application; or SBA Form 159, 'Compensation Agreement'. All fees not approved by SBA are prohibited.

 

·

All representations in the Borrower's Loan application (including all supplementary submissions) are true, correct and complete and are offered to induce SBA to make this Loan.

 

·

No claim or application for any other compensation for disaster losses has been submitted to or requested of any source, and no such other compensation has been received, other than that which Borrower has fully disclosed to SBA.

 

·

Neither the Borrower nor, if the Borrower is a business, any principal who owns at least 50% of the Borrower, is delinquent more than 60 days under the terms of any: (a) administrative order; (b) court order; or (c) repayment agreement that requires payment of child support.

 

·

Borrower certifies that no fees have been paid, directly or indirectly, to any representative (attorney, accountant, etc.) for services provided or to be provided in connection with applying for or closing this Loan, other than those reported on the Loan Application. All fees not approved by SBA are prohibited. If an Applicant chooses to employ an Agent, the compensation an Agent charges to and that is paid by the Applicant must bear a necessary and reasonable relationship to the services actually performed and must be comparable to those charged by other Agents in the geographical area. Compensation cannot be contingent on loan approval. In addition, compensation must not include any expenses which are deemed by SBA to be unreasonable for services actually performed or expenses actually incurred. Compensation must not include charges prohibited in 13 CFR 103 or SOP 50-30, Appendix 1. If the compensation exceeds $500 for a disaster home loan or $2,500 for a disaster business loan, Borrower must fill out the Compensation Agreement Form 159D which will be provided for Borrower upon request or can be found on the SBA website.

 

 

·

Borrower certifies, to the best of its, his or her knowledge and belief, that the certifications and representations in the attached Certification Regarding Lobbying are true, correct and complete and are offered to induce SBA to make this Loan.

 

CIVIL AND CRIMINAL PENALTIES

 

·

Whoever wrongfully misapplies the proceeds of an SBA disaster loan shall be civilly liable to the Administrator in an amount equal to one-and-one half times the original principal amount of the loan under 15 U.S.C. 636(b). In addition, any false statement or misrepresentation to SBA may result in criminal, civil or administrative sanctions including, but not limited to: 1) fines, imprisonment or both, under 15 U.S.C. 645, 18 U.S.C. 1001, 18 U.S.C. 1014, 18 U.S.C. 1040, 18 U.S.C. 3571, and any other applicable laws; 2) treble damages and civil penalties under the False Claims Act, 31 U.S.C. 3729; 3) double damages and civil penalties under the Program Fraud Civil Remedies Act, 31 U.S.C. 3802; and 4) suspension and/or debarment from all Federal procurement and non-procurement transactions. Statutory fines may increase if amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

 

RESULT OF VIOLATION OF THIS LOAN AUTHORIZATION AND AGREEMENT

 

·

If Borrower violates any of the terms or conditions of this Loan Authorization and Agreement, the Loan will be in default and SBA may declare all or any part of the indebtedness immediately due and payable. SBA's failure to exercise its rights under this paragraph will not constitute a waiver.

 

·

A default (or any violation of any of the terms and conditions) of any SBA Loan(s) to Borrower and/or its affiliates will be considered a default of all such Loan(s).

 

DISBURSEMENT OF THE LOAN

 

·

Disbursements will be made by and at the discretion of SBA Counsel, in accordance with this Loan Authorization and Agreement and the general requirements of SBA.

 

·

Disbursements may be made in increments as needed.

 

·

Other conditions may be imposed by SBA pursuant to general requirements of SBA.

 

·

Disbursement may be withheld if, in SBA's sole discretion, there has been an adverse change in Borrower's financial condition or in any other material fact represented in the Loan application, or if Borrower fails to meet any of the terms or conditions of this Loan Authorization and Agreement.

 

·

NO DISBURSEMENT WILL BE MADE LATER THAN 6 MONTHS FROM THE DATE OF THIS LOAN AUTHORIZATION AND AGREEMENT UNLESS SBA, IN ITS SOLE DISCRETION, EXTENDS THIS DISBURSEMENT PERIOD.

 

 

PARTIES AFFECTED

 

·

This Loan Authorization and Agreement will be binding upon Borrower and Borrower's successors and assigns and will inure to the benefit of SBA and its successors and assigns.

 

RESOLUTION OF BOARD OF DIRECTORS

 

·

Borrower shall, within 180 days of receiving any disbursement of this Loan, submit the appropriate SBA Certificate and/or Resolution to the U.S. Small Business Administration, Office of Disaster Assistance, 14925 Kingsport Rd, Fort Worth, TX. 76155.

 

ENFORCEABILITY

 

·

This Loan Authorization and Agreement is legally binding, enforceable and approved upon Borrower’s signature, the SBA’s approval and the Loan Proceeds being issued to Borrower by a government issued check or by electronic debit of the Loan Proceeds to Borrower’ banking account provided by Borrower in application for this Loan.

 

	/s/ James E. Rivera
	James E. Rivera
	Associate Administrator
	U.S. Small Business Administration

 

The undersigned agree(s) to be bound by the terms and conditions herein during the term of this Loan, and further agree(s) that no provision stated herein will be waived without prior written consent of SBA. Under penalty of perjury of the United States of America, I hereby certify that I am authorized to apply for and obtain a disaster loan on behalf of Borrower, in connection with the effects of the COVID-19 emergency.

 

	Phoenix Cars LLC
	/s/ Gillary Cadet	Date:	05.26.2020
	Gillray Cadet, Owner/Officer

 

Note: Corporate Borrowers must execute Loan Authorization and Agreement in corporate name, by a duly authorized officer. Partnership Borrowers must execute in firm name, together with signature of a general partner. Limited Liability entities must execute in the entity name by the signature of the authorized managing person.

 

 

CERTIFICATION REGARDING LOBBYING

 

For loans over $150,000, Congress requires recipients to agree to the following:

 

1.

Appropriated funds may NOT be used for lobbying.

 

2.

Payment of non-federal funds for lobbying must be reported on Form SF-LLL.

 

3.

Language of this certification must be incorporated into all contracts and subcontracts exceeding $100,000.

 

4.

All contractors and subcontractors with contracts exceeding $100,000 are required to certify and disclose accordingly.

 

 

CERTIFICATION REGARDING
LOBBYING

 

Certification for Contracts, Grants, Loans, and Cooperative
Agreements

 

Borrower and all Guarantors (if any) certify, to the best of its, his or her knowledge and belief, that:

 

(1)      No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, or modification of any Federal contract, grant, loan, or cooperative agreement.

 

(2)     If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal loan, the undersigned shall complete and submit Standard Form LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

 

(3)     The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and co-operative agreements) and that all sub-recipients shall certify and disclose accordingly.

 

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000.00 and not more than $100,000.00 for each such failure.

 

 

	This Statement of Policy is Posted
	In Accordance with Regulations of the
	Small Business Administration

 

This Organization Practices

 

Equal Employment Opportunity

 

We do not discriminate on the ground of race, color, religion, sex, age, disability or national origin in the hiring, retention, or promotion of employees; nor in determining their rank, or the compensation or fringe benefits paid them.

 

This Organization Practices

 

Equal Treatment of Clients

 

We do not discriminate on the basis of race, color, religion, sex, marital status, disability, age or national origin in services or accommodations offered or provided to our employees, clients or guests.

 

These policies and this notice comply with regulations of the

United States Government.

 

Please report violations of this policy to:
	Administrator
	Small Business Administration Washington, D.C. 20416

 

In order for the public and your employees to know their rights under 13 C.F.R Parts 112, 113, and 117, Small Business Administration Regulations, and to conform with the directions of the Administrator of SBA, this poster must be displayed where it is clearly visible to employees, applicants for employment, and the public.

 

Failure to display the poster as required in accordance with SBA Regulations may be considered evidence of noncompliance and subject you to the penalties contained in those Regulations.

 

SBA FORM 722 (10-02) REF: SOP 9030 PREVIOUS EDITIONS ARE OBSOLETE	U.S. GOVERNMENT PRINTING OFFICE: 1994 0- 153-346
This form was electronically produced by Elite Federal Inc.

 

 

 

	Esta Declaración De Principios Se Publica
	De Acuerdo Con Los Reglamentos De La
	Agencia Federal Para el Desarrollo de la Pequeña Empresa

 

Esta Organización Practica

 

Igual Oportunidad De Empleo

 

No discriminamos por razón de raza, color, religión, sexo, edad, discapacidad o nacionalidad en el empleo, retención o ascenso de personal ni en la determinación de sus posiciones, salarios o beneficios marginales.

 

Esta Organización Practica

 

Igualdad En El Trato A Su Clientela

 

No discriminamos por razón de raza, color, religión, sexo, estado civil, edad, discapacidad o nacionalidad en los servicios o facilidades provistos para nuestros empleados, clientes o visitantes.

 

Estos principios y este aviso cumplen con los reglamentos del Gobierno
de los Estados Unidos de América.

 

Favor de informar violaciones a lo aquí indicado a:

 

	Administrador
	Agencia Federal Para el Desarrollo de la Pequeña Empresa
	Washington, D.C. 20416

 

A fin de que el público y sus empleados conozcan sus derechos según lo expresado en las Secciones 112, 113 y 117 del Código de Regulaciaones Federales No. 13, de los Reglamentos de la Agencja Federal Para el Desarrollo de la Pequeña Empresa y de acuerdo con las instrucciones del Administrador de dicha agencia, esta notificación debe fijarse en un lugar claramente visible para los empleados, solicitantes de empleo y público en general. No fijar esta notificación según lo requerido por los reglamentos de la Agencia Federal Para el Desarrollo de la Pequeña Empresa, puede ser interpretado como evidencia de falta de cumplimiento de los mismos y conllevará la ejecución de los castigos impuestos en estos reglamentos.

 

SBA FORM 722 (10-02) REF: SOP 9030 PREVIOUS EDITIONS ARE OBSOLETE	U.S. GOVERNMENT PRINTING OFFICE: 1994 0- 153-346
This form was electronically produced by Elite Federal Inc.

 

 

 

NOTE

 

A PROPERLY SIGNED NOTE IS

REQUIRED PRIOR TO ANY

DISBURSEMENT

 

CAREFULLY READ THE NOTE: It is your promise to repay the loan.
	·	The Note is pre-dated. DO NOT CHANGE THE DATE OF THE NOTE.
	·	LOAN PAYMENTS will be due as stated in the Note.
	·	ANY CORRECTIONS OR UNAUTHORIZED MARKS MAY VOID THIS DOCUMENT.

 

 

SIGNING THE NOTE: All borrowers must sign the Note.
	·	Sign your name exactly as it appears on the Note. If typed incorrectly, you should sign with the correct spelling.
	·	If your middle initial appears on the signature line, sign with your middle initial.
	·	If a suffix appears on the signature line, such as Sr. or Jr., sign with your suffix.
	·	Corporate Signatories: Authorized representatives should sign the signature page.

 

 

	U.S. Small Business Administration	Date: 05.26.2020
	NOTE	Loan Amount: $150,000.00
	(SECURED DISASTER LOANS)	Annual Interest Rate: 3.75%

 

SBA Loan # 3463267808

Application #3300872592

 

1.

PROMISE TO PAY: In return for a loan, Borrower promises to pay to the order of SBA the amount of one hundred and fifty thousand and 00/100 Dollars ($150,000.00), interest on the unpaid principal balance, and all other amounts required by this Note.

 

2.

DEFINITIONS: A) “Collateral” means any property taken as security for payment of this Note or any guarantee of this Note. B) “Guarantor” means each person or entity that signs a guarantee of payment of this Note. C) “Loan Documents” means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral.

 

3.

PAYMENT TERMS: Borrower must make all payments at the place SBA designates. Borrower may prepay this Note in part or in full at any time, without notice or penalty. Borrower must pay principal and interest payments of $731.00 every month beginning Twelve (12) months from the date of the Note. SBA will apply each installment payment first to pay interest accrued to the day SBA receives the payment and will then apply any remaining balance to reduce principal. All remaining principal and accrued interest is due and payable Thirty (30) years from the date of the Note.

 

4.

DEFAULT: Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower: A) Fails to comply with any provision of this Note, the Loan Authorization and Agreement, or other Loan Documents; B) Defaults on any other SBA loan; C) Sells or otherwise transfers, or does not preserve or account to SBA’s satisfaction for, any of the Collateral or its proceeds; D) Does not disclose, or anyone acting on their behalf does not disclose, any material fact to SBA; E) Makes, or anyone acting on their behalf makes, a materially false or misleading representation to SBA; F) Defaults on any loan or agreement with another creditor, if SBA believes the default may materially affect Borrower’s ability to pay this Note; G) Fails to pay any taxes when due; H) Becomes the subject of a proceeding under any bankruptcy or insolvency law; I) Has a receiver or liquidator appointed for any part of their business or property; J) Makes an assignment for the benefit of creditors; K) Has any adverse change in financial condition or business operation that SBA believes may materially affect Borrower’s ability to pay this Note; L) Dies; M) Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without SBA’s prior written consent; or, N) Becomes the subject of a civil or criminal action that SBA believes may materially affect Borrower’s ability to pay this Note.

 

5.

SBA’S RIGHTS IF THERE IS A DEFAULT: Without notice or demand and without giving up any of its rights, SBA may: A) Require immediate payment of all amounts owing under this Note; B) Have recourse to collect all amounts owing from any Borrower or Guarantor (if any); C) File suit and obtain judgment; D) Take possession of any Collateral; or E) Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement.

 

6.

SBA’S GENERAL POWERS: Without notice and without Borrower’s consent, SBA may: A) Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses; B) Collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney’s fees and costs. If SBA incurs such expenses, it may demand immediate reimbursement from Borrower or add the expenses to the principal balance; C) Release anyone obligated to pay this Note; D) Compromise, release, renew, extend or substitute any of the Collateral; and E) Take any action necessary to protect the Collateral or collect amounts owing on this Note.

 

 

7.

FEDERAL LAW APPLIES: When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law.

 

8.

GENERAL PROVISIONS: A) All individuals and entities signing this Note are jointly and severally liable. B) Borrower waives all suretyship defenses. C) Borrower must sign all documents required at any time to comply with the Loan Documents and to enable SBA to acquire, perfect, or maintain SBA’s liens on Collateral. D) SBA may exercise any of its rights separately or together, as many times and in any order it chooses. SBA may delay or forgo enforcing any of its rights without giving up any of them. E) Borrower may not use an oral statement of SBA to contradict or alter the written terms of this Note. F) If any part of this Note is unenforceable, all other parts remain in effect. G) To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that SBA did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale. H) SBA may sell or otherwise transfer this Note.

 

9.

MISUSE OF LOAN FUNDS: Anyone who wrongfully misapplies any proceeds of the loan will be civilly liable to SBA for one and one- half times the proceeds disbursed, in addition to other remedies allowed by law.

 

10.

BORROWER’S NAME(S) AND SIGNATURE(S): By signing below, each individual or entity acknowledges and accepts personal obligation and full liability under the Note as Borrower.

 

	Phoenix Cars LLC
	/s/ Gillray Cadet
	Gillray Cadet, Owner/Officer

 

 

SECURITY AGREEMENT

 

Read this document carefully. It grants the SBA a security interest (lien) in all the property described in paragraph 4.

 

This document is predated. DO NOT CHANGE THE DATE ON THIS DOCUMENT.

 

 

	U.S. Small Business Administration
	SECURITY AGREEMENT

 

SBA Loan #:	3463267808
Borrower:	Phoenix Cars LLC
Secured Party:	The Small Business Administration, an Agency of the U.S. Government
Date:	05.26.2020
Note Amount:	$150,000.00

 

1.

DEFINITIONS.

 

Unless otherwise specified, all terms used in this Agreement will have the meanings ascribed to them under the Official Text of the Uniform Commercial Code, as it may be amended from time to time, (“UCC”). “SBA” means the Small Business Administration, an Agency of the U.S. Government.

 

2.

GRANT OF SECURITY INTEREST.

 

For value received, the Borrower grants to the Secured Party a security interest in the property described below in paragraph 4 (the “Collateral”).

 

3.

OBLIGATIONS SECURED.

 

This Agreement secures the payment and performance of: (a) all obligations under a Note dated 05.26.2020, made by Phoenix Cars LLC , made payable to Secured Lender, in the amount of $150,000.00 (“Note”), including all costs and expenses (including reasonable attorney’s fees), incurred by Secured Party in the disbursement, administration and collection of the loan evidenced by the Note; (b) all costs and expenses (including reasonable attorney’s fees), incurred by Secured Party in the protection, maintenance and enforcement of the security interest hereby granted; (c) all obligations of the Borrower in any other agreement relating to the Note; and (d) any modifications, renewals, refinancings, or extensions of the foregoing obligations.

 

 

4.

COLLATERAL DESCRIPTION.

 

The Collateral in which this security interest is granted includes the following property that Borrower now owns or shall acquire or create immediately upon the acquisition or creation thereof: all tangible and intangible personal property, including, but not limited to: (a) inventory, (b) equipment, (c) instruments, including promissory notes (d) chattel paper, including tangible chattel paper and electronic chattel paper, (e) documents, (f) letter of credit rights, (g) accounts, including health-care insurance receivables and credit card receivables, (h) deposit accounts, (i) commercial tort claims, (j) general intangibles, including payment intangibles and software and (k) as-extracted collateral as such terms may from time to time be defined in the Uniform Commercial Code. The security interest Borrower grants includes all accessions, attachments, accessories, parts, supplies and replacements for the Collateral, all products, proceeds and collections thereof and all records and data relating thereto.

 

5.

RESTRICTIONS ON COLLATERAL TRANSFER.

 

Borrower will not sell, lease, license or otherwise transfer (including by granting security interests, liens, or other encumbrances in) all or any part of the Collateral or Borrower’s interest in the Collateral without Secured Party’s written or electronically communicated approval, except that Borrower may sell inventory in the ordinary course of business on customary terms. Borrower may collect and use amounts due on accounts and other rights to payment arising or created in the ordinary course of business, until notified otherwise by Secured Party in writing or by electronic communication.

 

6.

MAINTENANCE AND LOCATION OF COLLATERAL; INSPECTION; INSURANCE.

 

Borrower must promptly notify Secured Party by written or electronic communication of any change in location of the Collateral, specifying the new location. Borrower hereby grants to Secured Party the right to inspect the Collateral at all reasonable times and upon reasonable notice. Borrower must: (a) maintain the Collateral in good condition; (b) pay promptly all taxes, judgments, or charges of any kind levied or assessed thereon; (c) keep current all rent or mortgage payments due, if any, on premises where the Collateral is located; and (d) maintain hazard insurance on the Collateral, with an insurance company and in an amount approved by Secured Party (but in no event less than the replacement cost of that Collateral), and including such terms as Secured Party may require including a Lender’s Loss Payable Clause in favor of Secured Party. Borrower hereby assigns to Secured Party any proceeds of such policies and all unearned premiums thereon and authorizes and empowers Secured Party to collect such sums and to execute and endorse in Borrower’s name all proofs of loss, drafts, checks and any other documents necessary for Secured Party to obtain such payments.

 

7.	CHANGES TO BORROWER’S LEGAL STRUCTURE, PLACE OF BUSINESS, JURISDICTION OF ORGANIZATION, OR NAME.

 

Borrower must notify Secured Party by written or electronic communication not less than 30 days before taking any of the following actions: (a) changing or reorganizing the type of organization or form under which it does business; (b) moving, changing its place of business or adding a place of business; (c) changing its jurisdiction of organization; or (d) changing its name. Borrower will pay for the preparation and filing of all documents Secured Party deems necessary to maintain, perfect and continue the perfection of Secured Party’s security interest in the event of any such change.

 

8.

PERFECTION OF SECURITY INTEREST.

 

Borrower consents, without further notice, to Secured Party’s filing or recording of any documents necessary to perfect, continue, amend or terminate its security interest. Upon request of Secured Party, Borrower must sign or otherwise authenticate all documents that Secured Party deems necessary at any time to allow Secured Party to acquire, perfect, continue or amend its security interest in the Collateral. Borrower will pay the filing and recording costs of any documents relating to Secured Party’s security interest. Borrower ratifies all previous filings and recordings, including financing statements and notations on certificates of title. Borrower will cooperate with Secured Party in obtaining a Control Agreement satisfactory to Secured Party with respect to any Deposit Accounts or Investment Property, or in otherwise obtaining control or possession of that or any other Collateral.

 

 

9.

DEFAULT.

 

Borrower is in default under this Agreement if: (a) Borrower fails to pay, perform or otherwise comply with any provision of this Agreement; (b) Borrower makes any materially false representation, warranty or certification in, or in connection with, this Agreement, the Note, or any other agreement related to the Note or this Agreement; (c) another secured party or judgment creditor exercises its rights against the Collateral; or (d) an event defined as a “default” under the Obligations occurs. In the event of default and if Secured Party requests, Borrower must assemble and make available all Collateral at a place and time designated by Secured Party. Upon default and at any time thereafter, Secured Party may declare all Obligations secured hereby immediately due and payable, and, in its sole discretion, may proceed to enforce payment of same and exercise any of the rights and remedies available to a secured party by law including those available to it under Article 9 of the UCC that is in effect in the jurisdiction where Borrower or the Collateral is located. Unless otherwise required under applicable law, Secured Party has no obligation to clean or otherwise prepare the Collateral for sale or other disposition and Borrower waives any right it may have to require Secured Party to enforce the security interest or payment or performance of the Obligations against any other person.

 

10.

FEDERAL RIGHTS.

 

When SBA is the holder of the Note, this Agreement will be construed and enforced under federal law, including SBA regulations. Secured Party or SBA may use state or local procedures for filing papers, recording documents, giving notice, enforcing security interests or liens, and for any other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax or liability. As to this Agreement, Borrower may not claim or assert any local or state law against SBA to deny any obligation, defeat any claim of SBA, or preempt federal law.

 

11.

GOVERNING LAW.

 

Unless SBA is the holder of the Note, in which case federal law will govern, Borrower and Secured Party agree that this Agreement will be governed by the laws of the jurisdiction where the Borrower is located, including the UCC as in effect in such jurisdiction and without reference to its conflicts of laws principles.

 

12.

SECURED PARTY RIGHTS.

 

All rights conferred in this Agreement on Secured Party are in addition to those granted to it by law, and all rights are cumulative and may be exercised simultaneously. Failure of Secured Party to enforce any rights or remedies will not constitute an estoppel or waiver of Secured Party’s ability to exercise such rights or remedies. Unless otherwise required under applicable law, Secured Party is not liable for any loss or damage to Collateral in its possession or under its control, nor will such loss or damage reduce or discharge the Obligations that are due, even if Secured Party’s actions or inactions caused or in any way contributed to such loss or damage.

 

13.

SEVERABILITY.

 

If any provision of this Agreement is unenforceable, all other provisions remain in effect.

 

 

14.

BORROWER CERTIFICATIONS.

 

Borrower certifies that: (a) its Name (or Names) as stated above is correct; (b) all Collateral is owned or titled in the Borrower’s name and not in the name of any other organization or individual; (c) Borrower has the legal authority to grant the security interest in the Collateral; (d) Borrower’s ownership in or title to the Collateral is free of all adverse claims, liens, or security interests (unless expressly permitted by Secured Party); (e) none of the Obligations are or will be primarily for personal, family or household purposes; (f) none of the Collateral is or will be used, or has been or will be bought primarily for personal, family or household purposes; (g) Borrower has read and understands the meaning and effect of all terms of this Agreement.

 

15.

BORROWER NAME(S) AND SIGNATURE(S).

 

By signing or otherwise authenticating below, each individual and each organization becomes jointly and severally obligated as a Borrower under this Agreement.

 

Phoenix Cars LLC
/s/ Gillray Cadet		Date:	05.26.2020
Gillray Cadet, Owner/Officer

 

 

 

 

E-Sign Consent for Execution and Delivery of Electronic Documents

 

(Personal Financial Statement, Card Account, Loan Account, Deposit Account, Online Banking)

 

This E-Sign Consent for Execution and Delivery of Electronic Documents (“Consent”) applies to all electronic records for Personal Financial Statement (“PFS”) and disclosures, agreements or applications for deposit, lending, card and online banking products and services (“Services”). Specifically, if you would like to get or give a PFS and/or obtain one or more Services by electronic means, then we first need to obtain your consent. More specifically, we need to obtain your consent in order: (i) for you to provide either or both your electronic agreement or signature to one or more electronic agreements; and (ii) for us to deliver information to you in electronic rather than in paper form.

 

If you would like to provide your consent, then please read through this Consent and check the applicable check box indicating consent to this Consent. By consenting, you are agreeing and acknowledging: (i) to the terms and conditions of this Consent; (ii) that electronic execution and/or delivery, electronic communications, and electronic records shall have the same effect and authority as if hand signed by you and/or delivered in paper; and (iii) that electronic signatures shall have the same effect and authority as those hand-signed by the named signer.

 

Also, by providing your consent to this Consent, you confirm, represent and warrant to us that you have: (i) the system requirements described below; (ii) verified your hardware and software meets our system requirements; and (iii) the ability to access, view and print or electronically save (including taking screenshots) electronically executed and/or delivered Electronic Documents, which may include the format of HTML or PDF.

 

If you do not want to provide your consent, then do not check the applicable check box indicating consent to this Consent. However, if you would like to still get or give a PFS and/or obtain one or more Services but through non-electronic means, then contact us in the applicable manner as set forth below under the heading, “Requesting Paper Copies.”

 

Please Note: The consequences of not agreeing to this Consent and proceeding with paper delivery and execution of the applicable documents will be that transactions may take a longer time to process. Also, if you are a commercial card customer, then you will be required to execute an amendment to the Commercial Card Master Agreement.

 

Definitions. For purposes of this Consent, the following terms shall have the meanings set forth below:

 

“Account” means a deposit account, loan account or other account at the Bank which you have enrolled in one of more of the following: the eStatements service, the eNotices service, and/or the eTax Documents service.

 

 

“Bank,” “we,” “our” and other similar terms refers to Zions Bancorporation, N.A., including any Division.

 

“Division” refers to any one of the following divisions with trade names that the Bank operates through: (i) Amegy Bank; (ii) California Bank & Trust; (iii) The Commerce Bank of Oregon (“CBO”); (iv) The Commerce Bank of Washington (“CBW”); (v) National Bank of Arizona; (vi) Nevada State Bank; (vii) Vectra Bank Colorado; and (viii) Zions Bank.

 

“DocuSign” refers to the Bank’s third-party service provider, DocuSign Inc., who provides a platform for the Bank to deliver Electronic Documents to you and for you to provide your electronic signature on Electronic Documents through the DocuSign® electronic signature system.

 

“eCommunication” can be any periodic statement, notice, disclosure, agreement, fee schedule, transaction or event record, invoice, response to claim or other communication (collectively “information”) regarding your enrolled Account that the Bank chooses to provide by eStatement or eNotice instead of paper. “eCommunication” also includes eTax Documents that we make available for eligible Accounts. An eCommunication is viewed by logging into online banking or mobile banking. eCommunications may contain information that the Bank is required by law to give you, or information that the Bank chooses to give you.

 

“eNotice” means any eCommunication that is not an eStatement or eTax Documents. (Please note that “eNotice” includes any statement of transactions or balances in a loan account and is deemed an “e-Notice” rather than an “eStatement.”)

 

“eStatement” means an electronic version of the paper periodic statement of debits, credits and balances that the Bank mails to you for a deposit account that is not enrolled in the eStatements service. “eStatement” also includes notices, disclosures and other information that would be printed on the paper periodic statement or enclosed with a mailed paper periodic statement.

 

“eTax Document” means any IRS tax reporting form that the Bank makes available for electronic delivery for an eligible Account. The Bank may from time to time, in its discretion, add or delete which IRS forms are included as eTax Documents in the Service.

 

“Electronic Documents” refers to any information that we give in electronic form pursuant to this Consent, and as described below under the heading entitled, “Scope.” For example, this Consent is an “Electronic Document.” Also, “Electronic Documents” include any communication that you give us in connection with an Electronic Document. For example, if you file a claim, which we may require to be in written form rather than in electronic form, that your deposit account statement reflects an unauthorized electronic funds transfer from your deposit account, and you then send us an electronic email response in connection with that claim, the email you sent is an “Electronic Document.”

 

“Mobile Device” refers to any portable computing device that meets the system requirements set forth in this Consent, such as a smartphone or tablet. For purposes of mobile banking, “Mobile Device” means a cellular telephone, tablet or similar wireless communication device: (i) that is installed with mobile banking software that is permitted by us; or (ii) that can conduct mobile banking transactions by using other protocols we may choose to permit (e.g., Wireless Application Protocol (WAP) or text (SMS) messaging).

 

 

“you,” “your” and other similar terms refers to the person, in both his or her individual capacity and agency capacity, if applicable, giving consent to this Consent, and also each additional account owner or authorized principal of the business, Authorized Agent, Authorized Representative, Authorized User, user who has been granted Access Credentials, and user identified on any Bank product you enroll or apply for, use or access that is subject to an agreement or disclosure described in this Consent.

 

Scope. The scope of your consent for current and future delivery of Electronic Documents covers this Consent and the Electronic Documents listed below for each Service you have requested. Specifically, if you consent, then you are giving consent for the Bank to provide, if it decides to do so, and for you to electronically agree to and/or electronically receive the following Electronic Documents:

 

For consumer lending:

 

1.

Personal Financial Statement;

2.

Consumer Credit Application Addendum (only available at CBO and CBW);

3.

Home Equity Credit Line Early Disclosure;

4.

Disclosure of Right to Copy of an Appraisal or Right to Appraisal, as applicable;

5.

Fair Lending Notice;

6.

Notice Concerning Extensions of Credit;

7.

California Fair Lending Notice;

8.

When Your Home is on the Line Disclosure (also known as, “What you Should Know about Home Equity Lines of Credit”);

9.

Home Ownership Counseling Disclosure (also known as, “List of homeownership counseling organizations”);

10.

Check Reserve Overdraft Line Application or Check Reserve Overdraft Protection Application or Reddi-Reserve Overdraft Line Application or Credit Reserve Application or Money Reserve-Overdraft Line Application or Overdraft Line of Credit Application;

11.

Check Reserve Disclosure; and

12.

Check Reserve Agreement.

 

For business lending:

 

1.

Personal Financial Statement;

2.

Paycheck Protection Program Borrower Application Form;

3.

Paycheck Protection Program Loan Application and Agreement;

4.

Paycheck Protection Program PPP Loan Forgiveness Application (or similar SBA form);

5.

Promissory Note;

6.

Credit Agreement;

7.

Business Loan Agreement;

8.

SBA Addendum to Business Loan Agreement;

9.

Resolutions;

10.

Disbursement Request and Authorization;

11.

Business Access Loan Application & Agreement;

12.

Joint Application Declaration, Business Access Loan Application & Agreement;

13.

Personal Guarantee; and

14.

Business Access Loan Sweep Maintenance Form.

 

 

For deposit account(s):

 

1.

Banking Resolutions;

2.

Business Client Services Agreement;

3.

Zions Bancorporation, N.A. Deposit Account Agreement;

4.

Product Rates;

5.

Electronic Funding Authorization;

6.

Debit Card Overdraft Service (also known as, “What You Need to Know About Overdrafts and Overdraft Fees”)

7.

Account agreement (which provides a summary of the features for your account);

8.

Personal Accounts Schedule of Fees, as applicable;

9.

Business Accounts Schedule of Fees, as applicable;

10.

Service Charge Information, as applicable; and

11.

Deposit account disclosure, as applicable.

 

For consumer online and mobile banking:

 

1.

The Digital Banking Service Agreement;

2.

eDocuments Services Agreement (for one or more of the following: eStatements service; eNotices service; or eTax Documents service) which is subject to your specific separate enrollment in one or more services for eCommunications through online banking;

3.

Authorization to debit a checking or savings account held with the Bank or another financial institution in order to make a transfer to a deposit account or make a payment on one or more loans held with the Bank;

4.

Error resolution notices, billing rights notices, balance calculation notices, federal and state privacy notices, data breach notices and disclosures or notices that may be required under the Truth in Savings Act, Electronic Funds Transfer Act, Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Gramm Leach Bliley Act, and the Real Estate Settlement Procedures Act, including any amendments made to the foregoing laws, or other applicable federal or state law and regulations;

5.

Bill Pay Service Agreement;

6.

External Account Transfer Addendum or External Transfers Agreement or Personal Electronic External Transfers Agreement or DirectNETSM Consumer Online Banking External Account Transfers Addendum;

7.

External Transfer to a Friend Enrollment Form;

8.

Zelle® and Other Payment Services Agreement (rev April 2019);

9.

Wire Application for Personal Online Banking

10.

Wire Agreement for Online Banking; and

11.

Mobile Banking Privacy Policy.

 

 

For business online and mobile banking:

 

1.

Online and Mobile Banking Resolutions;

2.

The Digital Banking Service Agreement;

3.

eDocuments Services Agreement (for one or more of the following: eStatements service; eNotices service; or eTax Documents service) which is subject to your specific separate enrollment in one or more services for eCommunications through online banking;

4.

Digital Banking Service Application;

5.

Digital Banking Service Update;

6.

Multiple Party Addendum to Business Digital Banking Services;

7.

Bill Pay Agreement;

8.

Wire Application for Business Online Banking;

9.

Wire Agreement for Online Banking;

10.

Direct Connect Service Agreement (including, but not limited to ACH);

11.

Request for Commercial Loan Advance Function or Online Commercial Loan Advance Request Form or Request to Enable Online Commercial Loan Advance Function, any of which may contain a reaffirmation and acknowledgement of guaranty; and

12.

Authorization for Disbursement Service (ACH).

 

For treasury management products and services:

 

1.

Treasury Management Master Services Agreement (“MSA”);

2.

Acceptance of Treasury Management Agreements (“TMA”);

3.

Certification of Resolution and Authorization for Treasury Management Services (“TMR”);

4.

Authorization for Disbursement Services; and

5.

Treasury Management Specifications (“Specifications”).

 

For card products:

 

1.

VISA Business Check Card Application and Agreement;

2.

Agreements for using your debit or credit card in connection with virtual wallet, such as, but not limited to, Google Pay, Samsung Pay and Apple Pay;

3.

Consumer Credit Card Agreement & Disclosure Statement;

4.

Disclosure Statement;

5.

Commercial Card Master Agreement (“CMA”);

6.

Commercial Card Guaranty Agreement;

7.

Commercial Card Pledge of Deposit Account to Secure;

8.

Commercial Card Program Schedule of Fees;

9.

Sample Joinder Agreement; and

10.

Visa Commercial Cardholder Agreement.

 

 

For telephone calls:

 

1.

Authorizations to obtain prior express written or electronic consent for receiving autodialed and prerecorded message calls and text messages from the Bank or its third-party debt collector at the wireless telephone number provided by you to the Bank.

 

For all accounts:

 

1.

Request for Taxpayer Identification and Certification;

2.

Our substitute form for Request for Taxpayer Identification and Certification; and

3.

Privacy Notice.

 

For any one of the Services or Accounts:

 

1.

Error resolution notices, billing rights notices, balance calculation notices, federal and state privacy notices, data breach notices and disclosures or notices that may be required under the Truth in Savings Act, Electronic Funds Transfer Act, Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Gramm Leach Bliley Act, and the Real Estate Settlement Procedures Act, including any amendments made to the foregoing laws, or other applicable federal or state law and regulations;

2.

Any application (including joint or otherwise), notice or disclosure regarding: (i) preauthorized debits to your accounts that vary in amounts; (ii) pending or processed payment instructions; (iii) payments, deposits or adjustments made to your account or transactions involving your account; (iv) a debit, credit and/or a commercial card; (v) a loan account; (vi) a deposit account; and/or (vii) a product or service fee (such as a transaction fee, late fee, finance charge, an overdraft fee, a fee for a draft, check or electronic debit (returned for any reason, such as insufficient funds fee, a returned item fee or a fee as a result of a stop payment order));

3.

Any change, amendment or update in terms, including, but not limited to, adding new terms not previously contemplated, deleting existing terms and modifying current terms, to the foregoing described documents in this Consent or applicable to a loan or deposit accounts or products or services you obtain from us; and

4.

Any other document or other information we are required by law to provide “in writing” as it relates to: (i) a product or service subject to an Electronic Document; or (ii) your access or use of a product or service through electronic or non-electronic means.

 

Please Note: Your consent only pertains to the Electronic Documents that are described in this Consent. Therefore, your consent to this Consent is not applicable to any other consent you may have provided to the Bank in connection with other products or services. Also, additional consents may be required and presented for acceptance in connection with other Bank products and services.

 

Method of Providing Electronic Documents. All Electronic Documents, except for eStatements, eNotices, eTax Documents, that we provide to you will be delivered by: (i) email to any email address you have provided us in connection with a loan, deposit account or one or more Services, including attaching documents to the email or providing links to or instructions within the email for navigating to documents on the DocuSign system; (ii) by SMS text message to any Mobile Device telephone number you have provided in connection with a loan, deposit account or one or more Services; (iii) posting the information on our website (for example, on our initial web page where you log into the system that offers one or more Services or as an in product message (that displays within the system or Service after you have logged in)) that you access or use in connection with a loan, deposit account, commercial card or one or more Services; (iv) any other electronic means that you have authorized now or later; (v) any other electronic means that are or may be in the future made available to you that is commercially reasonable and within the systems requirements described below; or (vi) requesting that you download a PDF file containing an Electronic Document.

 

 

All Electronic Documents, under the eDocuments Services Agreement, which includes eStatements, eNotices and eTax Documents, that we provide to you will be delivered by: (i) by posting it to your Division’s website, an online banking message center, or in our mobile banking software; (ii) by message printed on the periodic statement for your eligible Accounts if you have agreed to receive that statement electronically; or (iii) by one of the methods described above for all other Electronic Documents.

 

How to Withdraw Your Consent and the Effect of Doing So. Except for those documents provided under the eDocuments Services Agreement, Notices, as defined in the CMA and provided in connection with commercial cards, and Specifications, this Consent applies only to the current documents provided immediately following your consent to this Consent and/or within the current DocuSign envelope. Therefore, once you provide consent to this Consent you cannot revoke it for the current documents. However, for those documents provided under the eDocuments Services Agreement or for Electronic Documents that do not immediately follow this Consent, including, but not limited to, Notices for commercial card and Specifications, you may withdraw your consent to this Consent at any time by calling us as provided below under the heading entitled, “How to Contact Us.”

 

Your withdrawal of consent will need to state clearly your full e-mail address, entire name, mailing address, telephone number and a statement indicating which future Electronic Documents and/or which one of the services you are withdrawing your Consent. For example, if you are withdrawing your Consent in connection with the eDocuments Services Agreement, then please tell us which eCommunication you would like in paper instead (however, we still reserve the right of also making electronic documents available to you).

 

The consequences of withdrawing your consent for future eCommunications, Notices (in connection with commercial card) or Specifications are: (i) it may take a longer time for the paper communication to be delivered and/or received by you; (ii) it may take a longer time for the particular product or service to be set up for use or access by you; (iii) you will be required to execute an amendment to the Commercial Card Master Agreement, if you are a commercial card customer; and (iv) some account types charge a monthly service fee for paper statements. (See the applicable deposit account disclosure for your account.)

 

Please Note: Any cancellation or withdrawal of this Consent: (i) is not applicable to any other consent that you may have provided the Bank in connection with other products and services; and (ii) is not retroactive and all past electronic agreements and delivered Electronic Documents in connection with this Consent are still valid.

 

 

How to Update Your Records. It is your responsibility to provide us with an accurate, up to date and complete email address. Specifically, you must immediately contact us to update changes to your email address, mobile device telephone number and postal address related to this Consent. You can do so by contacting your local branch in person or calling us at the applicable telephone number provided below under the heading entitled, “How to Contact Us.”

 

Hardware and Software Requirements. The following are the hardware and software requirements that apply if you are providing your consent to this Consent through the DocuSign platform: In order for you to provide consent to this Consent and execute and/or receive Electronic Documents, you must have certain computer capabilities and/or Mobile Device capabilities, which we may change from time to time without prior notice to you unless prohibited by applicable law. Generally, in order to consent to this Consent, you must have: (i) a computer/and/or a Mobile Device; (ii) an internet connection; (iii) a current operating system; (iv) an up to date browser with adequate security; (v) sufficient memory to download and retain Electronic Documents; (vi) a printer, if you want to be able to print your Electronic Documents; (vii) a valid and active email address; (viii) the ability to connect to websites via hyperlinks provided in an email; (ix) the ability to engage in SMS text messaging on your Mobile Device; and (x) up to date software for reading and saving PDF and HTML documents. The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: https://support.docusign.com/guides/signer-guide-signing-system-requirements.

 

In addition to the foregoing, to use the DocuSign system, you or your agents may be required to register with DocuSign as a user.

 

The following are the hardware and software requirements that apply if you are providing your consent to this Consent outside of the DocuSign platform: (i) you must have a computer and/or a Mobile device; (ii) a current operating system; (iii) a printer (if you want to be able to print your Electronic Documents); (iv) sufficient memory to download and retain Electronic Documents; (v) your computer and/or Mobile Device must use commonly accepted and recently updated software for reading and saving PDF and HTML documents; (vi) you must have an internet service provider and/or mobile communications data service provider; (vii) your computer or Mobile Device must use a commonly accepted and recently updated version of an HTML compliant web browser that supports the latest protocols for encryption; (viii) you must maintain, provide and update us with your active and valid email address(es) for use in sending, receiving and retaining disclosures and other communications; and (ix) you must be able to connect to websites via hyperlinks in email.

 

Also, you may be required to be enrolled in and actively be using online banking, mobile banking or treasury management services, as applicable (e.g. certain Services, such as eStatements, eNotices and eTax Documents services, require enrollment and activation in online banking, mobile banking or treasury management services). Further, for mobile banking you must also have: (i) the most recent version of our mobile banking software installed on your Mobile Device; (ii) your Mobile Device and mobile phone number registered with online banking or treasury management banking; and (iii) your Mobile Device enabled for SMS text messaging. Finally, you must regularly install updates as they become available to your computer’s and/or Mobile Device’s operating system, web browser and PDF reader (and, if applicable, your mobile banking software).

 

 

If you are not able to access, view and print or save the Electronic Documents, then please do not proceed with providing your Consent.

 

Requesting Paper Copies. For Electronic Documents subject to this Consent, you may request a paper copy by visiting or calling your local branch or calling the applicable phone number listed below under the heading entitled, “How to Contact Us.”

 

Generally, we do not send a paper copy of any Electronic Document unless you specifically request that we do so. There are no fees for sending you one or more paper copies of an Electronic Document through the United States Postal Service. However, if your request falls under statement/research services, then applicable fees apply.

 

How to Contact Us.

 

You can contact us by calling the telephone number for where your accounts are held.

 

Please note: commercial loan applicants or customers may choose to contact his or her Commercial Loan Banker directly.

 

For Customers of:	Call:
Amegy Bank	(888) 500-2960
California Bank & Trust	(888) 217-1265
National Bank of Arizona	(800) 497-8168
Nevada State Bank	(888) 835-0551
Vectra Bank Colorado	(800) 884-6725
Zions Bank	(800) 974-8800
Commerce Bank of Oregon	(866) 548-1020
Commerce Bank of Washington	(800) 998-4035

 

However, if you are a treasury management customer and need to contact us in connection with treasury management document(s), then you can contact us by calling or emailing us as set forth below.

 

For Customers of:	Call:	E-mail:
Amegy Bank	(888) 539-7928	[email protected]
California Bank & Trust	(888) 316-6500	[email protected]
National Bank of Arizona	(888) 241-5550	[email protected]
Nevada State Bank	(800) 693-7695	[email protected]
Vectra Bank Colorado	(800) 341-8156	[email protected]
Zions Bank	(800) 726-7503	[email protected]

 

 

Communications in Writing. All information provided by us in electronic form will be considered a “writing.” You should print or download for your records a copy of this Consent and any other Electronic Document that is important to you.

 

Federal Law. You acknowledge and agree that your consent to Electronic Documents is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (“Act”), and that you and we both intend that the Act to apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.

 

Termination and Changes. We reserve the right, in our sole discretion, to discontinue the provision of Electronic Documents, or to terminate or change the terms and conditions on which we provide Electronic Documents. We will provide you with notice of any such termination or change as required by law.

 

 

 

 

 

 

Exhibit 10.13

 

Page:             1

 

Purchase Order

 

Phoenix Cars LLC	P.O. Number: 2100860
401 S. Doubleday Ave	Order Date: 10/19/2021
Ontario CA 91761
(909) 987-0815
	Vendor Number: TM4INC

 

Vendor:	Ship To:
TM4 Inc.	Phoenix Motorcars
135 J.-A.-Bombardier	1500 Lakeview Loop
suite 25	Anaheim, CA 92807
J4B 8P1
Boucherville, Québec,
Confirm To:

 

Required Date 10/19/2021		Ship VIA		F.O.B.				Terms Net 30
Item Code		Unit		Ordered				Received				Backordered				Unit Cost				Amount
INV-HP2MV-0206-06
Whse: 100		EACH			30.0000				0.0000				0.0000				4,875.0000				146,250.00
MOTOR CONTROL UNIT, DRIVE, 2HP
MO-340_240-19
Whse: 100		EACH			30.0000				0.0000				0.0000				10,938.0000				328,140.00
MOTOR ASSY - IOTA EV MP 450V A
KIT-0141
Whse: 100		EACH			30.0000				0.0000				0.0000				8.0000				240.00
PHASE CABLE BOLTS
KIT-0108
Whse: 100		EACH			60.0000				0.0000				0.0000				53.0000				3,180.00
KIT CABLE END 47MM M8 AWG 1/0
KIT-0094
Whse: 100		EACH			30.0000				0.0000				0.0000				55.0000				1,650.00
CO200 PHASE CABLES AWG 1/0 HAR
KIT-0055
Whse: 100		EACH			30.0000				0.0000				0.0000				8.0000				240.00
DC CABLE BOLTS
KIT-0123
Whse: 100		PACK			30.0000				0.0000				0.0000				37.0000				1,110.00
M8 DC CABLES AWG 1/0 HARDWARE
WH-0665-L1000
Whse: 100		EACH			30.0000				0.0000				0.0000				133.0000				3,990.00
MOTOR SENSOR CABLE, I/F AMPHEN
3315-0253
Whse: 100		EACH			30.0000				0.0000				0.0000				158.0000				4,740.00
Flange

 

	Net Order:		489,540.00
	Sales Tax:		0.00
	Freight:		0.00
	Order Total:		489,540.00

 

 

Exhibit 14.1

 

FORM OF

CODE OF ETHICS
OF
PHOENIX MOTOR INC.

 

1.

Introduction

 

The Board of Directors (the “Board”) of Phoenix Motor Inc., a Delaware corporation (the “Company”), has adopted this code of ethics (this “Code”), as may be amended from time to time by the Board and which is applicable to all of the Company’s directors, officers and employees (to the extent that employees are hired in the future) to:

 

●

promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;

 

●

promote the full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “SEC”), as well as in other public communications made by or on behalf of the Company;

 

●

promote compliance with applicable governmental laws, rules and regulations;

 

●

deter wrongdoing; and

 

●

require prompt internal reporting of breaches of, and accountability for adherence to, this Code.

 

This Code may be amended and modified by the Board. In this Code, references to the “Company” mean Nocturne Acquisition Corporation and, in appropriate context, the Company’s subsidiaries, if any.

 

2.

Honest, Ethical and Fair Conduct

 

Each person owes a duty to the Company to act with integrity. Integrity requires, among other things, being honest, fair and candid. Deceit, dishonesty and subordination of principle are inconsistent with integrity. Service to the Company should never be subordinated to personal gain and advantage.

 

Each person must:

 

●

act with integrity, including being honest and candid while still maintaining the confidentiality of the Company’s information where required or when in the Company’s interests;

 

●

observe all applicable governmental laws, rules and regulations;

 

●

comply with the requirements of applicable accounting and auditing standards, as well as Company policies, in order to maintain a high standard of accuracy and completeness in the Company’s financial records and other business-related information and data;

 

●

adhere to a high standard of business ethics and not seek competitive advantage through unlawful or unethical business practices;

 

●

deal fairly with the Company’s customers, suppliers, competitors and employees;

 

●

refrain from taking advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice;

 

●

protect the assets of the Company and ensure their proper use;

 

  

●

Until the earliest of (i) the Company’s initial business combination (as such is defined in the Company’s initial registration statement filed with the U.S. Securities and Exchange Commission (“SEC”)), (ii) liquidation, or (iii) such time as such person ceases to be an officer or director of the Company, to first present to the Company for its consideration, prior to presentation to any other entity, any business opportunity suitable for the Company and presented to such person solely in his or her capacity as an officer or director of the Company, subject to any other fiduciary or contractual obligations such officer may have; and

 

●

Avoid conflicts of interest, wherever possible, except as may be allowed under guidelines or resolutions approved by the Board (or the appropriate committee of the Board) or as disclosed in the Company’s public filings with the SEC. Anything that would be a conflict for a person subject to this Code also will be a conflict for a member of his or her immediate family or any other close relative. Examples of conflict of interest situations include, but are not limited to, the following:

 

●

any significant ownership interest in any supplier or customer;

 

●

any consulting or employment relationship with any supplier or customer;

 

●

the receipt of any money, non-nominal gifts or excessive entertainment from any entity with which the Company has current or prospective business dealings;

 

●

selling anything to the Company or buying anything from the Company, except on the same terms and conditions as comparable officers or directors are permitted to so purchase or sell;

 

●

any other financial transaction, arrangement or relationship (including any indebtedness or guarantee of indebtedness) involving the Company; and

 

●

any other circumstance, event, relationship or situation in which the personal interest of a person subject to this Code interferes - or even appears to interfere - with the interests of the Company as a whole.

 

3.	Disclosure

 

The Company strives to ensure that the contents of and the disclosures in the reports and documents that the Company files with the SEC and other public communications shall be full, fair, accurate, timely and understandable in accordance with applicable disclosure standards, including standards of materiality, where appropriate. Each person must:

 

●

not knowingly misrepresent, or cause others to misrepresent, facts about the Company to others, whether within or outside the Company, including to the Company’s independent registered public accountants, governmental regulators, self-regulating organizations and other governmental officials, as appropriate; and

 

●

in relation to his or her area of responsibility, properly review and critically analyze proposed disclosure for accuracy and completeness.

 

In addition to the foregoing, the Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”) of the Company and each subsidiary of the Company (or persons performing similar functions), and each other person that typically is involved in the financial reporting of the Company must familiarize himself or herself with the disclosure requirements applicable to the Company as well as the business and financial operations of the Company.

 

Each person must promptly bring to the attention of the Chairman of the Board any information he or she may have concerning (a) significant deficiencies in the design or operation of internal and/or disclosure controls that could adversely affect the Company’s ability to record, process, summarize and report financial data or (b) any fraud that involves management or other employees who have a significant role in the Company’s financial reporting, disclosures or internal controls.

 

 

4.	Compliance

 

It is the Company’s obligation and policy to comply with all applicable governmental laws, rules and regulations. All directors, officers and employees of the Company are expected to understand, respect and comply with all of the laws, regulations, policies and procedures that apply to them in their positions with the Company. Employees are responsible for talking to their supervisors to determine which laws, regulations and Company policies apply to their position and what training is necessary to understand and comply with them.

 

Directors, officers and employees are directed to specific policies and procedures available to persons they supervise.

 

5.	Reporting and Accountability

 

The Board is responsible for applying this Code to specific situations in which questions are presented to it and has the authority to interpret this Code in any particular situation. Any person who becomes aware of any existing or potential breach of this Code is required to notify the Chairman of the Board promptly. Failure to do so is, in and of itself, a breach of this Code.

 

Specifically, each person must:

 

●

Notify the Chairman of the Board promptly of any existing or potential violation of this Code.

 

●

Not retaliate against any other person for reports of potential violations that are made in good faith.

 

The Company will follow the following procedures in investigating and enforcing this Code and in reporting on the Code:

 

●

The Board will take all appropriate action to investigate any breaches reported to it.

 

●

Upon determination by the Board that a breach has occurred, the Board (by majority decision) will take or authorize such disciplinary or preventive action as it deems appropriate, after consultation with the Company’s internal or external legal counsel, up to and including dismissal or, in the event of criminal or other serious violations of law, notification of the SEC or other appropriate law enforcement authorities.

 

No person following the above procedure shall, as a result of following such procedure, be subject by the Company or any officer or employee thereof to discharge, demotion suspension, threat, harassment or in any manner, discrimination against such person in terms and conditions of employment.

 

6.

Waivers and Amendments

 

Any waiver (defined below) or an implicit waiver (defined below) from a provision of this Code for the principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions or any amendment (as defined below) to this Code is required to be disclosed in a Current Report on Form 8- K filed with the SEC. In lieu of filing a Current Report on Form 8-K to report any such waivers or amendments, the Company may provide such information on a website, in the event that it establishes one in the future, and if it keeps such information on the website for at least 12 months and discloses the website address as well as any intention to provide such disclosures in this manner in its most recently filed Annual Report on Form 10-K.

 

A “waiver” means the approval by the Board of a material departure from a provision of the Code. An “implicit waiver” means the Company’s failure to take action within a reasonable period of time regarding a material departure from a provision of the Code that has been made known to an executive officer of the Company. An “amendment” means any amendment to this Code other than minor technical, administrative or other non-substantive amendments hereto.

 

 

All persons should note that it is not the Company’s intention to grant or to permit waivers from the requirements of this Code. The Company expects full compliance with this Code.

 

7.

Insider Information and Securities Trading

 

The Company’s directors, officers or employees who have access to material, non-public information are not permitted to use that information for securities trading purposes or for any purpose unrelated to the Company’s business. It is also against the law to trade or to “tip” others who might make an investment decision based on inside company information. For example, using non-public information to buy or sell the Company securities, options in the Company shares or the shares of any Company supplier, customer or competitor is prohibited. The consequences of insider trading violations can be severe. These rules also apply to the use of material, nonpublic information about other companies (including, for example, the Company’s customers, competitors and potential business partners). In addition to directors, officers or employees, these rules apply to such person’s spouse, children, parents and siblings, as well as any other family members living in such person’s home.

 

8.

Financial Statements and Other Records

 

All of the Company’s books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions and must both conform to applicable legal requirements and to the Company’s system of internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable law or regulation.

 

Records should always be retained or destroyed according to the Company’s record retention policies. In accordance with those policies, in the event of litigation or governmental investigation, please consult the Board or the Company’s internal or external legal counsel.

 

9.

Improper Influence on Conduct of Audits

 

No director or officer, or any other person acting under the direction thereof, shall directly or indirectly take any action to coerce, manipulate, mislead or fraudulently influence any public or certified public accountant engaged in the performance of an audit or review of the financial statements of the Company or take any action that such person knows or should know that if successful could result in rendering the Company’s financial statements materially misleading. Any person who believes such improper influence is being exerted should report such action to such person’s supervisor, or if that is impractical under the circumstances, to any of the Company’s directors.

 

Types of conduct that could constitute improper influence include, but are not limited to, directly or indirectly:

 

●

Offering or paying bribes or other financial incentives, including future employment or contracts for non-audit services;

 

●

Providing an auditor with an inaccurate or misleading legal analysis;

 

●

Threatening to cancel or canceling existing non-audit or audit engagements if the auditor objects to the Company’s accounting;

 

●

Seeking to have a partner removed from the audit engagement because the partner objects to the Company’s accounting;

 

●

Blackmailing; and

 

●

Making physical threats.

 

 

10.

Anti-Corruption Laws

 

The Company complies with the anti-corruption laws of the countries in which it does business, including the U.S. Foreign Corrupt Practices Act (“FCPA”). Directors, officers and employees will not directly or indirectly give anything of value to government officials, including employees of state-owned enterprises or foreign political candidates. These requirements apply both to Company employees and agents, such as third party sales representatives, no matter where they are doing business. If you are authorized to engage agents, you are responsible for ensuring they are reputable and for obtaining a written agreement to uphold the Company’s standards in this area.

 

11.

Violations

 

Violation of this Code is grounds for disciplinary action up to and including termination of employment. Such action is in addition to any civil or criminal liability which might be imposed by any court or regulatory agency.

 

12.

Other Policies and Procedures

 

Any other policy or procedure set out by the Company in writing or made generally known to employees, officers or directors of the Company prior to the date hereof or hereafter are separate requirements and remain in full force and effect.

 

13.

Inquiries

 

All inquiries and questions in relation to this Code or its applicability to particular people or situations should be addressed to the Company’s Secretary, or such other compliance officer as shall be designated from time to time by the Company.

 

PROVISIONS FOR
CHIEF EXECUTIVE OFFICER AND SENIOR FINANCIAL OFFICERS

 

The CEO and all senior financial officers, including the CFO and principal accounting officer, are bound by the provisions set forth therein relating to ethical conduct, conflicts of interest, and compliance with law. In addition to the Code, the CEO and senior financial officers are subject to the following additional specific policies:

 

1. Act with honesty and integrity, avoiding actual or apparent conflicts between personal, private interests and the interests of the Company, including receiving improper personal benefits as a result of his or her position.

 

2. Disclose to the CEO and the Board any material transaction or relationship that reasonably could be expected to give rise to a conflict of interest.

 

3. Perform responsibilities with a view to causing periodic reports and documents filed with or submitted to the SEC and all other public communications made by the Company to contain information that is accurate, complete, fair, objective, relevant, timely and understandable, including full review of all annual and quarterly reports.

 

4. Comply with laws applicable to the Company, including but not limited to rules and regulations of U.S. federal, state and other local governments and with the rules and regulations of private and public regulatory agencies having jurisdiction over the Company.

 

5. Act in good faith, responsibly, with due care, competence and diligence, without misrepresenting or omitting material facts or allowing independent judgment to be compromised or subordinated.

 

6. Respect the confidentiality of information acquired in the course of performance of his or her responsibilities except when authorized or otherwise legally obligated to disclose any such information; not use confidential information acquired in the course of performing his or her responsibilities for personal advantage.

 

7. Share knowledge and maintain skills important and relevant to the needs of the Company, its stockholders and other constituencies and the general public.

 

  

8. Proactively promote ethical behavior among subordinates and peers in his or her work environment and community.

 

9. Use and control all corporate assets and resources employed by or entrusted to him or her in a responsible manner.

 

10. Not use corporate information, corporate assets, corporate opportunities or his or her position with the Company for personal gain; not compete directly or indirectly with the Company.

 

11. Comply in all respects with this Code.

 

12. Advance the Company’s legitimate interests when the opportunity arises.

 

The Board will investigate any reported violations and will oversee an appropriate response, including corrective action and preventative measures. Any officer who violates this Code will face appropriate, case specific disciplinary action, which may include demotion or discharge.

 

Any request for a waiver of any provision of this Code must be in writing and addressed to the Chairman of the Board. Any waiver of this Code will be disclosed as provided in Section 6 of this Code.

 

It is the policy of the Company that each officer covered by this Code shall acknowledge and certify to the foregoing annually and file a copy of such certification with the Chairman of the Board.

 

OFFICER’S CERTIFICATION

 

I have read and understand the foregoing Code. I hereby certify that I am in compliance with the foregoing Code and I will comply with the Code in the future. I understand that any violation of the Code will subject me to appropriate disciplinary action, which may include demotion or discharge.

 

Dated:
Name:
Title:

 

 

 

Exhibit 21.1

Subsidiaries of Phoenix Motor, Inc.

 

Legal Name of Subsidiary		Jurisdiction of Organization
Phoenix Cars, LLC		Delaware
Phoenix Motorcars Leasing, LLC		California
EdisonFuture Motor, Inc.		Delaware

 

 

Exhibit 23.1

 

 

New York Office 7 Penn Plaza Suite 830 New York, New York, 10001 T 646.442.4845

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the inclusion in this Registration Statement of Phoenix Motor Inc. on Form S-1 of our report dated August 24, 2021, with respect to our audits of the consolidated financial statements of Phoenix Motor Inc. as of December 31, 2020 (Successor) and December 31, 2019 (Predecessor), the related consolidated statements of operations, changes in stockholders’ equity (deficit) and cash flows for the period from November 13, 2020 through December 31, 2020 (Successor), the period from January 1, 2020 through November 12, 2020 (Predecessor) and the year ended December 31, 2019 (Predecessor), which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.

 

/s/ Marcum Bernstein & Pinchuk llp

 

Marcum Bernstein & Pinchuk LLP

New York, NY

November 26, 2021

 

www.marcumbp.com

 

 

Exhibit 99.1

 

PHOENIX MOTOR INC.

 

AUDIT COMMITTEE CHARTER

 

I. Purpose

 

The Audit Committee (the “Committee”) of the Board of Directors (the “Board”) of Phoenix Motor Inc., a Delaware corporation (the “Company”), shall provide assistance to the Board in fulfilling its legal and fiduciary obligations to oversee:

 

(a) the integrity of the financial statements and other financial information provided by the Company to its stockholders, the public, any stock exchange and others;

 

(b) the Company’s compliance with legal and regulatory requirements;

 

(c) the qualifications and independence of the Company’s independent auditor;

 

(d) the performance of the Company’s internal audit function and its system of internal controls and independent auditor; and

 

(e) such other matters as are assigned to the Committee by the Board pursuant to this Charter or as mandated under applicable laws, rules and regulations (including the U.S. Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, as amended (the “Exchange Act”)) as well as listing standards of The Nasdaq Capital Market (together, the “Applicable Requirements”).

 

Although the Committee has the powers and responsibilities set forth in this Charter, the role of the Committee is oversight. The members of the Committee are not full-time employees of the Company and may or may not be accountants or auditors by profession or experts in the fields of accounting or auditing and, in any event, do not serve in such capacity. Consequently, it is not the duty of the Committee to conduct audits or to determine that the Company’s financial statements and disclosures are complete and accurate and are in accordance with U.S. Generally Accepted Accounting Principles (“GAAP”) and other Applicable Requirements. These are the responsibilities of management and the Company’s independent auditor.

 

II. Organization

 

The Committee shall consist of three or more directors, each of whom shall satisfy the independence, financial literacy, and other qualifications required by the Company’s corporate governance guidelines, Section 10A-3 of the Exchange Act and any other Applicable Requirements, subject to any phase-in periods or cure periods permitted by Rule 10A-3(b)(1)(iv)(A) under the Exchange Act and other Applicable Requirements. At least one member of the Committee shall be an “audit committee financial expert” (as defined by the U.S. Securities and Exchange Commission (the “SEC”)). Determinations of independence, financial literacy, experience and expertise shall be made by the Board as the Board interprets such qualifications in its business judgment.

 

No Committee member shall simultaneously serve on the audit committees of more than two other public companies unless the Board determines that such simultaneous service does not impair the ability of such member to effectively serve on the Committee and such determination is disclosed in accordance with the Applicable Requirements.

 

Members of the Committee shall be appointed by the Board. Members of the Committee may be removed at any time by action of the Board; provided, however, that if removing a member or members of the Committee would cause the Committee to have fewer than three members, then the Board must at the same time appoint enough additional members to the Committee so that the Committee will have at least three qualified members. The Committee’s chairperson shall be designated by the Board or, if not so designated, the members of the Committee shall elect a chairperson by a vote of the majority of the full Committee.

 

 

The Committee may form and delegate authority to subcommittees from time to time as it sees fit, provided that the subcommittees are composed entirely of directors who satisfy the applicable independence requirements of the Company’s corporate governance guidelines and the Applicable Requirements. The Committee shall not delegate to any such subcommittee any power or authority required by law, regulation or listing standard to be exercised by the Committee as a whole.

 

III. Meetings

 

The Committee shall meet at least four times per year on a quarterly basis, or more frequently as required. Meetings shall be called by the chairperson of the Committee or, if there is no chairperson, by a majority of the members of the Committee. Meetings may be held telephonically or by other electronic means to the extent permitted by the Company’s organizational documents and applicable law. Committee actions may be taken by unanimous written resolutions of all the members.

 

The Committee shall also meet periodically with management, the chief internal auditor and the Company’s independent auditor in separate executive sessions to discuss any matters that the Committee or each of these groups believe should be discussed privately.

 

The Committee shall maintain minutes of its meetings and records relating to those meetings.

 

IV. Authority and Responsibilities

 

In fulfilling its duties and responsibilities hereunder, the Committee will be entitled to rely reasonably on (a) the integrity of those persons within the Company and the professionals and experts (such as the Company’s independent auditor) from whom it receives information, (b) the accuracy of the financial and other information provided to the Committee by such persons and (c) representations made by the Company’s independent auditor as to any services provided by such firm to the Company.

 

To fulfill its responsibilities, the Committee shall:

 

With respect to the engagement of the Company’s independent and other auditors:

 

1.

Be directly responsible for (a) the appointment, compensation, retention, replacement, and oversight of the work of the independent auditors and any other independent registered public accounting firm engaged by the Company (including for the purpose of preparing or issuing an audit report or performing other audit, review or attestation services or other work for the Company), and (b) the resolution of any disagreements between management and any such firm regarding financial reporting.

 

2.

Have the sole authority to review in advance, and pre-approve (which may be pursuant to pre-approval policies and procedures) all audit or non-audit services to be provided by the Company’s independent auditors or any other registered public accounting firm as permitted by Section 10A of the Exchange Act and to approve all related fees and other terms of engagement. The Committee shall also review and approve disclosures required to be included by the Company in periodic reports filed with the Securities and Exchange Commission (the “SEC”) under Section 13(a) of the Exchange Act with respect to audit and non-audit services.

 

3.

At least annually, obtain and review a formal written report from the Company’s independent auditor (a) describing such firm’s internal quality control procedures, (b) describing any material issues raised by the most recent internal quality control review, peer review or Public Company Accounting Oversight Board (“PCAOB”) review or inspection of such firm, or by any inquiry or investigation by governmental or professional authorities, within the preceding five years, respecting one or more independent audits carried out by such firm, and any steps taken to deal with any such issues, and (c) assessing such firm’s independence, including delineating all relationships and engagements that may reasonably be thought to bear on the independence of the auditor, including those between the auditor and the Company. The Committee shall discuss this report with the Company’s independent auditor and shall take appropriate action to ensure the independence of the independent auditor and to address any other matters based on such report.

 

 

4.	Confirm that the “lead partner,” the “concurring partner” and the other “audit partner” rotation requirements under the Applicable Requirements, including Regulation S-X have been complied with and set clear policies for audit partner rotation in compliance with applicable laws and regulations.

 

5.	Review all reports and communications required to be submitted by the Company’s independent registered public accounting firm to the Committee under Section 10A of the Securities Exchange Act and other Applicable Requirements.

 

6.	At least annually, evaluate the performance of the Company’s independent auditor, including the lead audit partner. In making its evaluation, the Committee should take into account the opinions of management and the internal audit group.

 

7.	Review and discuss with the Company’s independent auditor all relationships the auditor has with the Company and evaluate the auditor’s continued independence.

 

8.	Review and approve the Company’s hiring policies regarding partners, employees and former partners and employees of the Company’s independent auditor.

 

With respect to the Company’s financial statements and other financial reporting:

 

9.

Review and discuss the Company’s annual audited and quarterly unaudited financial statements with management (including the Company’s internal audit group) and the Company’s independent auditor, including disclosures made in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” to be included in the Company’s annual report on Form 10-K or quarterly reports on Form 10-Q.

 

10.

Recommend to the Board whether the Company’s annual audited financial statements should be included in the Company’s annual report for filing with the SEC and timely prepare the report required by the SEC to be included in the Company’s annual proxy statement, if applicable, and any other reports of the Committee required by any Applicable Requirement.

 

11.

Review and discuss with management and the Company’s independent auditor (a) major issues regarding, or significant changes in, the Company’s accounting principles and financial statement presentations, (b) analyses prepared by management or the Company’s independent auditor concerning significant financial reporting issues and judgments made in connection with the preparation of the financial statements, (c) the effect of regulatory and accounting initiatives, as well as off-balance sheet structures, on the financial statements of the Company, and (d) the type and presentation of information to be included in earnings press releases and any financial information and earnings guidance provided to analysts and rating agencies.

 

12.

Prior to the filing of any audited financial statements with the SEC, review with management and the Company’s independent auditor (a) all critical accounting policies and practices used by the Company, (b) all alternative accounting treatments of financial information reported in GAAP related to material items that have been discussed with management, including the ramifications of the use of such alternative treatments and disclosures and the treatment preferred by the Company’s independent auditor, (c) any reports or communications (and management’s responses thereto) submitted to the Committee by the Company’s independent auditor in accordance with PCAOB Auditing Standard No. 16, Communications with Audit Committees, as amended or supplemented, and (d) any other material written communications between the Company’s independent auditor and management.

 

13.

Periodically review separately with each of management, the Company’s independent auditor and the internal audit group (a) any significant disagreement between management and the Company’s independent auditor or the internal audit group in connection with the preparation of the financial statements, (b) any audit problems or difficulties encountered during the course of the audit, including any restrictions on the scope of work or access to required information, and (c) management’s response to each. The Committee shall discuss with the independent auditor material issues on which the national office of the independent auditor was consulted by the Company’s audit team.

 

 

14.

Periodically discuss with the Company’s independent auditor, without management being present, (a) their judgment about the quality, integrity and appropriateness of the Company’s accounting principles and financial disclosure practices as applied in its financial reporting and (b) the completeness and accuracy of the Company’s financial statements.

 

15.

Review and discuss with management the Company’s earnings press releases, including the use of non-GAAP financial measures and other “pro forma” or “adjusted” presentations, as well as financial information and earnings guidance provided to analysts and rating agencies. Such discussions may be general (consisting of discussing the types of information to be disclosed and the types of presentations to be made), and each earnings release or each instance in which the Company provides earnings guidance need not be discussed in advance.

 

16.	Review and discuss with management all material off-balance sheet transactions, arrangements, obligations (including contingent obligations) and other relationships of the Company with unconsolidated entities or other persons.

 

17.

Review and approve the Company’s decision to enter into swaps and other derivatives transactions that are exempt from exchange-execution and clearing under “end-user exception” regulations established by the Commodity Futures Trading Commission; and review and approve the Company’s policies governing the Company’s use of swaps and other derivatives transactions subject to the end- user exception.

 

18.	Review and discuss with management and the internal audit group the Company’s major financial risk exposures and management’s risk assessment and risk management policies.

 

With respect to the internal audit function and internal controls:

 

19.

Review, based on the recommendation of the Company’s independent auditor and the person responsible for the Company’s internal audit group, the scope and plan of the work to be done by the internal audit group and the responsibilities, budget, audit plan, activities, organizational structure and staffing of the internal audit group as needed.

 

20.	Receive reports from the internal audit group on the status of significant findings and recommendations, and management’s responses.

 

21.	Review on an annual basis the performance of the internal audit group.

 

22.

In consultation with the Company’s management, independent auditor and the internal audit group, review the adequacy of the Company’s internal controls, disclosure processes and its procedures designed to ensure compliance with laws and regulations, and any special audit steps adopted in light of material control deficiencies.

 

23.

Review, at least annually, (a) the internal control report prepared by management, including management’s assessment of the effectiveness of the Company’s internal control over financial reporting and (b) the Company’s independent auditor’s attestation, and report, on the assessment made by management, in each case, as and when required by Section 404 of the U.S. Sarbanes-Oxley Act of 2002. Discuss with management, the internal audit group and the independent auditor any changes in internal control over financial reporting disclosed or considered for disclosure in the Company’s periodic filings with the SEC.

 

24.	Review with management and the Company’s independent auditor any reports or disclosure submitted by management to the Committee as contemplated by the certifications required under Section 302 of the U.S. Sarbanes-Oxley Act of 2002.

 

25.	Review with management any management letters and the steps management intends to take to address the issues raised by those letters.

 

 

With respect to the Company’s compliance programs:

 

26.

Monitor compliance with the Company’s Code of Ethics, and oversee, review and discuss with management, at least annually, the implementation and effectiveness of the Company’s compliance and ethics programs. Review and take appropriate action with respect to any reports to the Committee from legal counsel for the Company concerning any material violation of securities law or breach of fiduciary duty or similar violation by the Company, its subsidiaries or any person acting on their behalf. As appropriate, the Committee shall report and make recommendations to the Board with respect to these matters.

 

27.

Establish procedures for (a) the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters and (b) the confidential, anonymous submission by employees of the Company or any subsidiary or affiliate of the Company whose financial information is included in the Company’s financial statements of concerns regarding questionable accounting or auditing matters.

 

28.

Review and approve (a) any amendment to or waiver from the Company’s code of ethics for the chief executive officer and senior financial officers and (b) any public disclosure made regarding such change or waiver and advise the Board with respect to the Company’s policies and procedures regarding compliance with the Company’s Code of Ethics.

 

29.

Develop and recommend to the Board for approval policies and procedures for the review, approval or ratification of related person transactions required to be disclosed pursuant to Item 404 of Regulation S-K, as may be amended from time to time, and any other applicable requirements (the “Related Person Transactions Policy”). Review the Related Person Transactions Policy at least annually and recommend to the Board for approval any changes to the Policy. Oversee the implementation of and compliance with the Related Person Transactions Policy, including reviewing, approving or ratifying related person transactions, as appropriate pursuant to the Related Person Transaction Policy.

 

30.

Review with management, the independent registered public accounting firm, and legal advisors, as appropriate, any legal, regulatory or compliance matters, including any correspondence with regulators or government agencies and any employee complaints or published reports that raise material issues regarding the Company’s financial statements or accounting policies and any significant changes in accounting standards or rules promulgated by the Financial Accounting Standards Board, the SEC or other regulatory authorities.

 

With respect to the Committee’s other authorities and responsibilities:

 

31.	Review and assess annually its own performance and the adequacy of this Charter and recommend to the Board any changes to this Charter deemed appropriate by the Committee.

 

32.	Report regularly to the Board.

 

33.	Perform any other activities consistent with this Charter, the Company’s organizational documents, as required under the Applicable Requirements or as the Committee or the Board otherwise deems necessary or appropriate.

 

V. Resources

 

The Committee shall have the authority to retain or terminate, at its sole discretion, independent legal, accounting and other advisors, consultants or professionals (collectively, “Advisors”) to assist the Committee in its responsibilities and shall be directly responsible for overseeing the work of such Advisors. The chairperson of the Committee, at the request of any member of the Committee, may request any officer, employee or advisor of the Company or the Company’s independent auditor to attend a meeting of the Committee or otherwise respond to Committee requests.

 

The Committee shall have the sole authority to determine the terms of engagement and the extent of funding necessary (and to be provided by the Company) for payment of (a) compensation to the Company’s independent auditor engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company, (b) any compensation to any Advisors retained to advise the Committee and (c) ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties.

 

 

 

Exhibit 99.2 

 

PHOENIX MOTOR INC.

 

COMPENSATION COMMITTEE CHARTER

 

I.

Purpose

 

The Compensation Committee (the “Committee”) of the Board of Directors of Phoenix Motor Inc., a Delaware corporation (the “Company”), shall have responsibility for the compensation of the Company’s executive officers, including the Company’s Chief Executive Officer (the “CEO”), and for incentive compensation, equity-based and pension plans as further provided in this Charter.

 

II.	Organization

 

The Committee shall consist of two or more directors, each of whom shall satisfy the applicable independence and other compensation committee membership requirements of the Company’s corporate governance guidelines, The Nasdaq Capital Market and any other applicable regulatory requirements subject to any exceptions or cure periods that are applicable pursuant to the foregoing requirements and the phase-in periods permitted under the rules of The Nasdaq Capital Market under which the Committee is required to have only one independent member at the time of listing, a majority of independent members within 90 days of listing and all independent members within one year of listing.

 

At least one member of the Committee shall have experience in matters relating to executive compensation either as a professional or as a business executive. At least two members shall qualify as (a) “outside directors” within the meaning of Section 162(m) of the U.S. Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, including Treasury Regulations Section 1.162-27 (“Outside Directors”), and (b) “non-employee directors” within the meaning of Section 16 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder (“Non-Employee Directors”).

 

Members of the Committee shall be appointed by the Board and may be removed by the Board at any time; provided, however, that if removing a member or members of the Committee would cause the Committee to have fewer than two members, then the Board must at the same time appoint an additional member to the Committee so that the Committee will have at least two members who qualifies as an (a) Outside Directors and (b) Non-Employee Directors. The Committee’s chairperson shall be designated by the Board or, if not so designated, the members of the Committee shall elect a chairperson by a vote of the majority of the full Committee.

 

The Committee may form and delegate authority to subcommittees from time to time as it sees fit, provided that the subcommittees are composed entirely of directors who satisfy the applicable independence requirements of the Company’s corporate governance guidelines and The Nasdaq Capital Market.

 

III.

Meetings

 

The Committee shall meet as often as necessary to carry out its responsibilities. Meetings shall be called by the chairperson of the Committee or, if there is no chairperson, by a majority of the members of the Committee. Meetings may be held telephonically or by other electronic means to the extent permitted by the Company’s organizational documents and applicable law. Committee actions may be taken by unanimous written resolutions of all the members.

 

IV.	Authority and Responsibilities

 

To fulfill its responsibilities, the Committee shall:

 

1.	Review and make recommendations to the Board with respect to the Company’s compensation strategy to ensure it is appropriate to attract, retain and motivate senior management and other key employees.

 

2.

Review and make recommendations to the Board with respect to the executive compensation philosophy, policies and programs that in the Committee’s judgment support the Company’s overall business strategy and review and discuss, at least annually, the material risks associated with executive compensation structure, policies and programs to determine whether such structure, policies and programs encourage excessive risk-taking and to evaluate compensation policies and practices that could mitigate any such risk.

 

 

3.

On an annual basis, review and approve corporate goals and objectives relevant to the compensation of the Company’s CEO, evaluate the CEO’s performance in light of those goals and objectives and determine and approve CEO compensation based on this evaluation. In evaluating, determining and approving the long-term incentive component of CEO compensation, the Committee may consider, among such other factors as it may deem relevant, the Company’s performance, stockholder returns, the value of similar incentive awards to executive officers at comparable companies, the value of similar awards given to other executive officers of the Company, the results of the most recent stockholder advisory vote on executive compensation required by Section 14A of the Exchange Act (the “Say-on-Pay Vote”) and the awards given to the executive officer in past years. The CEO shall not be present during voting or deliberations relating to his or her compensation.

 

4.

On an annual basis, review and make recommendations to the Board with respect to corporate goals and objectives relevant to the compensation of the Company’s other executive officers, evaluate the executive officers’ performance in light of those goals and objectives and determine and make recommendations to the Board with respect to executive officer compensation based on this evaluation. In evaluating and making recommendations with respect to the long-term incentive component of executive officer compensation, the Committee may consider, among such other factors as it may deem relevant, the Company’s performance, stockholder returns, the value of similar incentive awards to executive officers at comparable companies, the value of similar awards given to other executive officers of the Company, the results of the most recent stockholder advisory vote on executive compensation required by Section 14A of the Exchange Act (the “Say-on-Pay Vote”) and the awards given to the executive officer in past years. No executive officer may be present during voting or deliberations relating to his or her compensation.

 

5.	Review on an annual basis and make recommendations to the Board with respect to the Company’s incentive compensation, equity-based and pension plans, if any. With respect to each such plan, the Committee shall have responsibility for:

 

(a)

implementing and administering the plan;

 

(b)

setting performance targets under all annual bonus and long-term incentive compensation plans as appropriate and committing to writing any and all performance targets for executive officers who may be “covered employees” under applicable laws and regulations;

 

(c)

if called for by the plan, certifying that any and all performance targets used for any performance-based equity compensation plans have been met before payment of any executive bonus or compensation or exercise of any executive award granted under any such plans;

 

(d)

approving all amendments to, and terminations of, all compensation plans and any awards under such plans;

 

(e)

granting any awards under any performance-based annual bonus, long- term incentive compensation and equity compensation plans to executive officers or current employees with the potential to become the CEO or an executive officer, including share options and other equity rights (e.g., restricted shares and share purchase rights);

 

(f)

approving which executive officers are entitled to awards under the Company’s stock option plans; and

 

(g)

approving repurchases of securities from terminated employees.

 

In reviewing the Company’s incentive compensation, equity-based and pension plans, the Committee may consider the plan’s administrative costs, current plan features relative to any proposed new features, the results of the most recent Say-on-Pay Vote and the performance of the plan’s internal and external administrators if any duties have been delegated.

 

 

6.	Review and recommend to the Board for approval any employment agreement or compensatory transaction with an executive officer of the Company involving compensation in excess of $120,000 per year.

 

7.

Establish and periodically review policies concerning perquisite benefits and approve all special perquisites, special cash payments and other special compensation and benefits arrangements for officers and employees of the Company and approve all special perquisites, special cash payments and other special compensation and benefit arrangements for officers and employees of the Company.

 

8.

Determine and recommend to the Board for approval the Company’s policy with respect to change-of-control or “parachute” payments. In reviewing the Company’s policy with respect to change of control or “parachute” payments, the Committee may consider, among such other factors as it may deem relevant, the results of the most recent Say-on-Pay Vote on “parachute” payments, if any.

 

9.	Review and make recommendations to the Board with respect to executive officer and director indemnification and insurance matters.

 

10.	Review and recommend to the Board for approval the compensation of directors for their service to the Board. Review, evaluate and recommend changes, if appropriate, to the remuneration of directors.

 

11.	Approve compensation awards, including individual awards, as may be required to comply with applicable tax and state corporate laws.

 

12.

Review the Company’s compensation disclosures in its annual proxy statement and its Annual Report on Form 10-K filed with the U.S. Securities and Exchange Commission (the “SEC”) and assist management in complying with proxy statement and annual report requirements. Review and discuss the Company’s Compensation Discussion and Analysis (“CD&A”) with management and based on such review and discussion, determine whether to recommend to the Board that such compensation disclosures and CD&A be disclosed in the Company’s Annual Report on Form 10-K or annual proxy statement filed with the SEC, as applicable.

 

13.

Review and recommend to the Board for approval the frequency with which the Company will conduct Say-on-Pay Votes, taking into account the results of the most recent stockholder advisory vote on frequency of Say-on-Pay Votes required by Section 14A of the Exchange Act, and review and recommend to the Board for approval the proposals regarding the Say-on-Pay Vote and the frequency of the Say-on-Pay Vote to be included in the Company’s proxy statement filed with the SEC.

 

14.

Prepare any report required by applicable rules and regulations or listing standards, including reports on executive compensation required by the SEC to be included in the Company’s annual proxy statement, or, if the Company does not file a proxy statement, in the Company’s Annual Report filed on Form 10-K with the SEC.

 

15.	Review and assess the adequacy of this Charter annually and recommend to the Board any changes deemed appropriate by the Committee.

 

16.	Review its own performance annually.

 

17.	Report regularly to the Board.

 

18.	Perform any other activities consistent with this Charter, the Company’s by-laws and governing law, as the Committee or the Board deems necessary or appropriate.

 

 

V.

Resources

 

The Committee shall have the authority to retain or terminate, at its sole discretion, compensation consultants, independent legal counsel or other advisors (collectively, “Advisors”) to assist the Committee in its responsibilities and shall be directly responsible for the appointment, compensation and oversight of the work of such Advisors. Before retaining an Advisor (other than in-house legal counsel and any Advisor whose role is limited to consulting on broad-based, non-discriminatory plans or providing information that is not customized in particular for the Company (as described in Item 407(e)(3)(iii) of Regulation S-K), the Committee shall consider the independence of such Advisor, including any independence factors that it is required to consider by law or The Nasdaq Capital Market rules.

 

The chairperson of the Committee, at the request of any member of the Committee, may request that any officer, employee or advisor of the Company attend a meeting of the Committee or otherwise respond to Committee requests.

 

The Committee shall have the sole authority to determine the terms of engagement and the extent of funding necessary (and to be provided by the Company) for payment of compensation to any Advisors or other professionals retained to advise the Committee and ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties.

 

 

Exhibit 99.3

 

Consent of Director Nominee of Phoenix Motor Inc.

 

I hereby consent to being identified as a director nominee in the Registration Statement on Form S-1 of Phoenix Motor Inc., a Delaware corporation, and all pre and post-effective amendments and supplements thereto, including the prospectus contained therein, and to all references to me in connection therewith and to the filing of this consent as an exhibit to such Registration Statement and any amendments or supplements thereto.

 

/s/ John F. Perkowski
Name: John F. Perkowski
Date: November 26, 2021

 

 

Exhibit 99.4

 

Consent of Director Nominee of Phoenix Motor Inc.

 

I hereby consent to being identified as a director nominee in the Registration Statement on Form S-1 of Phoenix Motor Inc., a Delaware corporation, and all pre and post-effective amendments and supplements thereto, including the prospectus contained therein, and to all references to me in connection therewith and to the filing of this consent as an exhibit to such Registration Statement and any amendments or supplements thereto.

 

/s/ Sam Van
Name: Sam Van
Date: November 26, 2021

 

 

 

Exhibit 99.5

 

Consent of Director Nominee of Phoenix Motor Inc.

 

I hereby consent to being identified as a director nominee in the Registration Statement on Form S-1 of Phoenix Motor Inc., a Delaware corporation, and all pre and post-effective amendments and supplements thereto, including the prospectus contained therein, and to all references to me in connection therewith and to the filing of this consent as an exhibit to such Registration Statement and any amendments or supplements thereto.

 

/s/ Zhenxing Fu
Name: Zhenxing Fu
Date: November 26, 2021

 

Exhibit 99.6

 

Consent of Director Nominee of Phoenix Motor Inc.

 

I hereby consent to being identified as a director nominee in the Registration Statement on Form S-1 of Phoenix Motor Inc., a Delaware corporation, and all pre and post-effective amendments and supplements thereto, including the prospectus contained therein, and to all references to me in connection therewith and to the filing of this consent as an exhibit to such Registration Statement and any amendments or supplements thereto.

 

/s/ Steven E. Stivers
Name: Steven E. Stivers
Date: November 26, 2021

 

 

Exhibit 99.7

 

Consent of Director Nominee of Phoenix Motor Inc.

 

I hereby consent to being identified as a director nominee in the Registration Statement on Form S-1 of Phoenix Motor Inc., a Delaware corporation, and all pre and post-effective amendments and supplements thereto, including the prospectus contained therein, and to all references to me in connection therewith and to the filing of this consent as an exhibit to such Registration Statement and any amendments or supplements thereto.

 

/s/ Liang Lance Zhou
Name: Liang Lance Zhou
Date: November 26, 2021