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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 22, 2023
Nxu, Inc. |
(Exact Name of Registrant as Specified in Charter) |
Delaware |
|
001-41509 |
|
92-2819012 |
(State or Other Jurisdiction
of Incorporation |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
1828 N. Higley Rd. Ste 116, Mesa, AZ 85205 |
(Address of Principal Executive Offices) (Zip Code) |
Registrant’s telephone number, including
area code: (602) 309-5425
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each Class |
Trading
Symbol(s) |
Name of each exchange on which
registered |
Class A Common Stock, par value $0.0001 per share |
NXU |
NASDAQ |
Indicate by checkmark whether the registrant is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) of Rule 12B-2 of the Securities
Exchange act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company x
If an emerging growth company, indicate by check
mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive
Agreement.
Share
Exchange
On December
27, 2023, Nxu, Inc. (the “Company”) entered into a share exchange agreement (the “Share Exchange
Agreement”) with Lynks Motor Corporation (d/b/a Lynx Motor Corporation), a Delaware corporation (“Lynx”),
pursuant to which Lynx sold to the Company, and the Company purchased from Lynx, a number of newly issued shares of Lynx representing
15% of the issued and outstanding equity interests in Lynx as of, and after giving effect to, the Closing (as defined below), in exchange
for 1,000 newly issued shares of Series A convertible preferred stock, par value $0.0001 per share, of the Company (the “Series
A Preferred Stock”), which are convertible into shares of Class A common stock, par value $0.0001 per share, of the Company
(“Class A Common Stock”) upon the terms and subject to the conditions set forth in the Certificate of Designations
(as defined below) (such transaction, the “Private Placement”). The Share Exchange Agreement contains customary representations
and warranties by the Company. The Private Placement closed upon the signing of the Share Exchange Agreement (the “Closing”).
Concurrently with the Closing, the Company also entered into a registration
rights agreement (the “Registration Rights Agreement”) with Lynx, pursuant to which the Company agreed to file a registration
statement (a “Registration Statement”) with the Securities and Exchange Commission (the “Commission”)
registering the resale of the Class A Common Stock issuable upon conversion of the Series A Preferred Stock within forty-five (45) days
after the Closing, and to cause any such Registration Statement to become effective as promptly as practicable after filing.
Also concurrently with the Closing, (i) Lynx issued
a non-interest bearing promissory note in the principal amount of $250,000 to the Company in exchange for $250,000 in immediately available
funds from the Company, which shall be due and payable by Lynx on the six-month anniversary of the Closing, and (ii) Lynx agreed to provide
the Company with the right to designate one person to serve on the board of directors of Lynx so long as the Company owns equity interests
in Lynx that comprise, in the aggregate, more than 3.0% of the issued and outstanding equity interests in Lynx.
The foregoing description of the Share Exchange Agreement and the Registration
Rights Agreement do not purport to be complete and is qualified in its entirety by reference to the complete text of the Share Exchange
Agreement and the Registration Rights Agreement, copies of which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report
on Form 8-K and are incorporated by reference herein.
Item 3.02. Unregistered Sale of Equity Securities.
The information set forth in Item 1.01 of this
Current Report on Form 8-K is incorporated herein by reference. The Company offered and sold the Series A Preferred Stock pursuant
to an exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended.
Item 5.03. Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year.
Series A Preferred Stock
The Certificate of Incorporation of the Company
(the “Certificate of Incorporation”) authorizes the Company to issue 100,000,000
shares of preferred stock, $0.0001 par value per share, from time to time in or more series. On December 22, 2023, the Company filed a
Certificate of Designations of Series A Convertible Preferred Stock (the “Certificate of
Designations”) with the Secretary of State of the State of Delaware, which sets forth the rights, preferences, and privileges
of the Series A Preferred Stock. Five thousand (5,000) shares of Series A Preferred Stock, with a stated value of $3,000 per share (the
“Stated Value”), were authorized under the Certificate of Designations.
Each share of Series A Preferred Stock is convertible,
without the payment of any additional consideration by the holder thereof, into a number of shares of Class A Common Stock as is determined
by dividing the Stated Value by the Series A Conversion Price (as defined in the Certificate of Designations) in effect at the time of
conversion and then multiplying such quotient by the number of shares of Series A Preferred Stock to be converted. The Company may not
effect the conversion of any shares of Series A Preferred Stock if, after giving effect to the conversion or issuance, the holder, together
with its affiliates, would beneficially own more than 19.99% of the outstanding common stock or voting power of the Company, unless
and until the Company receives the approval of stockholders (“Stockholder Approval”) required by the applicable rules
and regulations of The Nasdaq Stock Market LLC (“Nasdaq”).
All outstanding shares of Series A Preferred Stock
will automatically convert into shares of Class A Common Stock, at the then-effective conversion rate, on the first trading day immediately
following the effective date of any Stockholder Approval.
Other than those rights provided by law, the holders
of Series A Preferred Stock will not have any voting rights.
The foregoing description
of the Certificate of Designations is not complete and is qualified in its entirety by reference to the complete text of the Certificate
of Designations, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Certificate of Amendment
On December 26, 2023,
the Company filed a Certificate of Amendment to the Certificate of Incorporation (the “Certificate
of Amendment”) with the Secretary of State of the State of Delaware to effect a reverse stock split (the “Reverse
Stock Split”) of the Class A Common Stock at a ratio of 1-for-150 (the “Reverse
Stock Split Ratio”).
The Reverse Stock Split
was previously approved by the Company’s board of directors and a majority of the Company’s stockholders. The Reverse Stock
Split became effective immediately after the close of trading on Nasdaq on December 26, 2023 (the “Effective Time”),
and the Class A Common Stock began trading on Nasdaq on a split-adjusted basis at the opening of trading on December 27, 2023, under new
CUSIP number 62956D204 and new ISIN number US62956D2045.
At the Effective Time, every 150 shares of Class
A Common Stock issued and outstanding were automatically combined and converted into one share of Class A Common Stock, without any change
in the number of authorized shares or the par value per share.
In addition, equitable adjustments corresponding
to the Reverse Stock Split Ratio were made to the number of shares of Class A Common Stock underlying the Company’s outstanding
equity awards and the number of shares issuable under the Company's equity incentive plan. Equitable adjustments corresponding to the
Reverse Stock Split Ratio were also made to issued and outstanding shares of the Company’s Class B common stock, par value $0.0001
per share, and to the number of shares of Class A Common Stock underlying the Company’s outstanding warrants, as well as the applicable
exercise price.
No fractional shares
were issued in connection with the Reverse Stock Split. Any stockholder who would otherwise be entitled to receive a fractional share
instead became entitled to receive one whole share in lieu of such fractional share.
The foregoing description of the Certificate of
Amendment does not purport to be complete and is qualified in its entirety by reference to the complete text of the Certificate of Amendment,
a copy of which is filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated by reference herein.
Item 7.01. Regulation FD Disclosure.
On December 27, 2023, the Company filed a press release announcing
the closing of the Private Placement. A copy of the press release is attached hereto as Exhibit 99.1 and incorporated herein by reference.
The information in this Item 7.01 (including the exhibit hereto)
is being furnished under “Item 7.01. Regulation FD Disclosure.” Such information (including the exhibit hereto)
shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be
deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth
by specific reference in such filing.
Item 8.01. Other Events.
Automatic Incorporation by Reference
The information provided in Item 5.03 under the heading “Certificate
of Amendment” is hereby incorporated by reference.
The Company has effective registration statements on Form S-3 (File
No. 333-275059) and Form S-8 (File Nos. 333-268729 and 333-272020) on file with the Commission. The Commission regulations
permit the Company to incorporate by reference future filings made with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, prior to the termination of the offerings covered by registration statements filed on Form S-3 or Form S-8. The information
incorporated by reference is considered to be part of the prospectus included within each of those registration statements. Information
in this Item 8.01 of this Current Report on Form 8-K under the heading “Automatic Incorporation by Reference” is therefore
intended to be automatically incorporated by reference into each of the effective registration statements of the Company described above,
thereby amending them. Pursuant to Rule 416(b) under the Securities Act, the amount of undistributed shares of Class A Common Stock deemed
to be covered by the effective registration statements of the Company described above are proportionately reduced as of the Effective
Time to give effect to the Reverse Stock Split.
Nasdaq Compliance
As previously disclosed, on December 18, 2023,
the Company received notice from the Nasdaq Hearings Panel that it granted the Company’s request for continued listing on Nasdaq,
subject to the Company demonstrating compliance with the minimum bid price and stockholders’ equity requirements for continued listing
on Nasdaq on or before April 7, 2024.
As a result of the consummation of the Reverse
Stock Split and the Private Placement, the Company believes that, as of the date of this Current Report on Form 8-K, it has regained compliance
with the minimum bid price requirement and stockholders’ equity requirement, respectively, for continued listing on Nasdaq. The
Company awaits Nasdaq’s confirmation of the same.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
|
Description |
3.1 |
|
Certificate of Designations of Series A Convertible Preferred Stock of Nxu, Inc., dated December 22, 2023 |
3.2 |
|
Certificate of Amendment to the Certificate of Incorporation of Nxu, Inc., dated December 26, 2023 |
10.1 |
|
Share Exchange Agreement, dated as of December 27, 2023, by and between Nxu, Inc. and Lynks Motor Corporation. |
10.2 |
|
Registration Rights Agreement, dated as of December 27, 2023, by and between Nxu, Inc. and Lynks Motor Corporation. |
99.1 |
|
Press Release, dated December 27, 2023. |
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
Nxu, Inc. |
|
|
|
Date: December 27, 2023 |
By: |
/s/ Mark Hanchett |
|
|
Mark Hanchett
Chief Executive Officer |
Exhibit 3.1
CERTIFICATE OF DESIGNATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
NXU, INC.
Pursuant to Section 151 of the General Corporation
Law
of the State of Delaware
The undersigned, Mark Hanchett,
Chief Executive Officer of Nxu, Inc., a Delaware corporation (the “Corporation”), hereby certifies that, pursuant
to the authority expressly vested in the Board of Directors of the Corporation (the “Board”) by the Certificate
of Incorporation of the Corporation, and in accordance with the provisions of Sections 103 and 151 of the General Corporation Law of the
State of Delaware, the Board has duly adopted the following resolutions:
RESOLVED, that, pursuant to
Article IV of the Certificate of Incorporation (as such may be amended, modified or restated from time to time, the “Certificate
of Incorporation”) (which authorizes 10,000,000 shares of preferred stock, par value $0.0001 per share, of the Corporation
(“Preferred Stock”)), a series of preferred stock be, and it hereby is, established, and the designation and
number of shares of such series, and the voting and other powers, rights, preferences, and privileges, and the qualifications, limitations
and restrictions thereof are set forth in this Certificate of Designations (as such may be amended, modified or restated from time to
time, this “Certificate”) as follows:
1. Definitions. For purposes of
this Certificate the following definitions shall apply and shall be equally applicable to both the singular and plural forms of the defined
terms:
1.1. “Affiliate”
of any Person shall mean any Person who directly or indirectly controls, is controlled by, or is under common control with, the indicated
Person. For the purposes of this definition, “control” has the meaning specified as of the date hereof for that word in Rule
405 promulgated by the United States Securities and Exchange Commission under the Securities Act of 1933, as amended.
1.2. “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by a Holder’s
investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of such Holder or any of the foregoing,
(iii) any Person acting or who could be deemed to be acting as a Group together with such Holder or any of the foregoing and (iv) any
other Persons whose beneficial ownership of the Corporation’s Common Stock would or could be aggregated with such Holder’s
and the other Attribution Parties for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended. For clarity, the purpose
of the foregoing is to subject collectively such Holder and all other Attribution Parties to the Exchange Cap.
1.3. “Board”
shall have the meaning set forth in the recitals.
1.4 “Certificate”
shall have the meaning set forth in the recitals.
1.5 “Certificate
of Incorporation” shall have the meaning set forth in the recitals.
1.6. “Common
Stock” shall mean the Class A common stock, par value $0.0001 per share, of the Corporation.
1.7. “Corporation”
shall have the meaning set forth in the recitals.
1.8. “Exchange
Cap” shall have the meaning set forth in Section 6.5(A) below.
1.9. “Holder”
or “Holders” shall have the meaning set forth in Section 3 below.
1.10. “Junior
Security” shall mean any class or series of capital stock of the Corporation hereafter created that does not, by its terms,
rank senior to or pari passu with the Series A Preferred Stock.
1.11. “Liquidation
Event” shall have the meaning set forth in Section 5.1 below.
1.12. “Liquidation
Payment” shall mean the product of (i) the Stated Value per share of Series A Preferred Stock multiplied by (ii) the total
number of shares of Series A Preferred Stock issued under the Certificate as of the date of such Liquidation Event.
1.13. “Mandatory
Conversion Date” shall have the meaning set forth in Section 7.1 below.
1.14. “Person”
shall include all natural persons, corporations, business trusts, associations, limited liability companies, partnerships, joint ventures
and other entities, governments, agencies and political subdivisions.
1.15. “Preferred
Stock” shall have the meaning set forth in the recitals.
1.16. “Sale”
means any sale of the Corporation to one or more third party purchasers who or which are not Affiliates of the Corporation, whether by
way of (i) the sale or other disposition of all or substantially all of the assets of the Corporation, (ii) the merger or consolidation
of the Corporation with or into another Person, or (iii) the sale or other transfer of greater than a majority of the capital stock of
the Corporation.
1.17. “Senior
Security” shall mean any class or series of capital stock of the Corporation hereafter created that, by its terms, ranks
senior to the Series A Preferred Stock.
1.18. “Series
A Conversion Price” shall have the meaning set forth in Section 6.1 below.
1.19. “Series
A Preferred Stock” shall have the meaning set forth in the recitals.
1.20. “Stated
Value” shall mean $3,000.00.
1.21. “Stockholder
Approval” shall have the meaning set forth in Section 6.5(A) below.
1.22. “Trading
Day” means a day on which the principal Trading Market is open for trading.
1.23. “Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the
date in question: the NYSE American, The Nasdaq Stock Market, LLC and The New York Stock Exchange (or any successors to any of the foregoing)
..
2. Designation and Number of Shares.
Pursuant to the Certificate of Incorporation, there is hereby created out of the authorized and unissued shares of Preferred Stock of
the Corporation a series of Preferred Stock consisting of five thousand (5,000) shares of Preferred Stock designated
as the “Series A Convertible Preferred Stock” (the “Series A Preferred Stock”). Such number of shares
may be decreased by resolution of the Board or any duly authorized committee thereof, subject to the terms and conditions hereof; provided that
no decrease shall reduce the number of shares of the Series A Preferred Stock to a number less than the number of shares then outstanding.
3. Voting Rights. Other than those
rights provided by law, the holders of the Series A Preferred Stock (each a “Holder” and, collectively, the
“Holders”) shall not have any voting rights.
4. Dividends.
4.1. Dividends. The
Holders shall be entitled to receive a pro-rata portion, on an as-if converted basis, of any dividends payable on Common Stock. Dividends
on shares of capital stock of the Corporation shall be payable, whether payable in cash or other property, only out of funds legally available
therefor.
4.2. Non-Cash Dividends.
Whenever a dividend provided for in this Section 4 shall be payable in property other than cash, the value of such dividend shall be deemed
to be the fair market value of such property as determined in good faith by the Board.
5. Liquidation Rights.
5.1. Preference of Series
A Preferred Stock. In the event of any liquidation, dissolution, winding up or Sale of the Corporation, whether voluntary or involuntary
(each, a “Liquidation Event”), after payment of all amounts required under Section 4 hereunder, the Holders
(as a class) shall be entitled to receive out of the assets of the Corporation available for distribution to its shareholders, whether
such assets are capital, surplus, or earnings, before any payment, declaration, or setting apart for payment of any amount shall be made
in respect of the Common Stock or any Junior Security (but after payment to any Senior Security) of the Corporation, an aggregate amount
equal to the Liquidation Payment. Each individual Holder will receive that amount of the Liquidation Payment equal to the product of (i)
the Liquidation Payment multiplied by (y) the ratio of (1) shares of Series A Preferred Stock held by such Holder divided by (2) the total
shares of Series A Preferred Stock then outstanding, at the time of such Liquidation Event with respect to such Liquidation Event. If,
upon any Liquidation Event, the assets to be distributed to the Holders shall be insufficient to permit the payment to such shareholders
of the full Liquidation Payment, then all of the assets of the Corporation (after payment to any Senior Security) shall be distributed
solely and ratably to the Holders.
5.2. Remaining Assets.
If the assets of the Corporation available for distribution to the Corporation’s shareholders exceed the aggregate amount payable
to the Holders pursuant to Section 4.1 hereof, then after the payments required by Section 4.1 shall have been made the Corporation’s
remaining assets shall be distributed pro rata, on a per share basis, among the holders of the Common Stock.
5.3. Notice. Written
notice of such liquidation, dissolution or winding up, stating a payment date and the place where said payments shall be made, shall be
given by mail, postage prepaid, or, if to non-U.S. residents, by facsimile, not less than twenty (20) days prior to the payment date stated
therein, to the Holders of record, such notice to be addressed to each such Holder at its address as shown by the records of the Corporation.
5.4. Determination of Consideration.
To the extent any distribution pursuant to Section 5.1 or Section 5.2 consists of property other than cash, the value thereof shall, for
purposes of Section 5.1 or Section 5.2, be the fair value at the time of such distributions as determined in good faith by the Board.
5.5. Conversion Prior to
Liquidating Distributions. Any Holder may, at its option, convert all or a portion of its shares into Common Stock upon a liquidation,
dissolution or winding up of the Corporation and thereby receive distributions with the holders of the Common Stock in lieu of receiving
distributions as a Holder.
6. Conversion. The Holders shall
have the following conversion rights:
6.1. Optional Conversion
of the Series A Preferred Stock. Any or all shares of the Series A Preferred Stock shall be convertible, without the payment of any
additional consideration by the Holder thereof and at the option of the Holder thereof, at any time after the first issuance of shares
of Series A Preferred Stock by the Corporation and from time to time, subject to Section 6.5. below, at the office of the Corporation
or any transfer agent for the Common Stock, into such whole number of fully paid and nonassessable shares of Common Stock as is determined
by dividing the Stated Value by the Series A Conversion Price (determined as hereinafter provided) in effect at the time of conversion
and then multiplying such quotient by the number of shares of Series A Preferred Stock to be converted. The Conversion Price at which
shares of Common Stock shall be deliverable upon conversion without the payment of any additional consideration by the Holder thereof
shall initially be $0.02 (the “Series A Conversion Price”). Such initial Series A Conversion Price shall be
subject to adjustment, as hereinafter provided.
6.2 Fractional Shares.
No fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock, and the number of shares of Common
Stock to be issued shall be determined by rounding to the nearest whole share (a half share being treated as a full share for this purpose).
Such conversion shall be determined on the basis of the total number of shares of Series A Preferred Stock the Holder is at the time converting
into Common Stock and such rounding shall apply to the number of shares of Common Stock issuable upon such aggregate conversion.
6.3. Mechanics of Optional
Conversion. Before any Holder shall be entitled to convert the same into full shares of Common Stock, such Holder shall surrender
the certificate or certificates therefor, endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory
to the Corporation, duly executed by the registered Holder or by such Holder’s attorney duly authorized in writing, at the office
of the Corporation or of any transfer agent for the Common Stock, and shall give at least five (5) days’ prior written notice (in
the form attached hereto as Schedule I) to the Corporation at such office that such Holder elects to convert the same or such portion
thereof as such Holder elects to convert and shall state therein such Holder’s name or the name of the nominees in which such Holder
wishes the certificate or certificates for shares of Common Stock to be issued,. The Corporation shall, as soon as practicable thereafter,
issue and deliver to such Holder, or to such Holder’s nominee or nominees, a certificate or certificates for the number of shares
of Common Stock to which such Holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of such surrender of the shares of Series A Preferred Stock to be converted, and the person or persons
entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record Holder or Holders
of such shares of Common Stock on such date. From and after such date, all rights of the Holder with respect to the Series A Preferred
Stock so converted shall terminate, except only the right of such Holder, upon the surrender of his, her or its certificate or certificates
therefor, to receive certificates for the number of shares of Common Stock issuable upon conversion thereof. Upon conversion of only a
portion of the number of shares covered by a certificate representing shares of Series A Preferred Stock surrendered for conversion, the
Corporation shall issue and deliver to the Holder of the certificate so surrendered for conversion, at the expense of the Corporation,
a new certificate covering the number of shares of the Series A Preferred Stock representing the unconverted portion of the certificate
so surrendered, which new certificate shall entitle the record Holder thereof to all rights in respect of the shares of Series A Preferred
Stock represented thereby to the same extent as if the portion of the certificate theretofore covering such unconverted shares had not
been surrendered for conversion.
6.4. Certain Adjustments
to Conversion Price for Stock Splits, Dividends, Mergers, Reorganizations, Etc.
A. Adjustment for Stock
Splits, Stock Dividends and Combinations of Common Stock. In the event the outstanding shares of Common Stock shall be subdivided
(split), or combined (reverse split), by reclassification or otherwise, or in the event of any dividend or other distribution payable
on the Common Stock in shares of Common Stock, the Series A Conversion Price in effect immediately prior to such subdivision, combination,
dividend or other distribution shall be adjusted so that the registered Holder of any share of Series A Preferred Stock thereafter surrendered
for conversion shall be entitled to receive the number and kind of shares of Common Stock and other securities which such Holder would
have owned or have been entitled to receive after the happening of any of the events described above had such share been converted immediately
prior to the happening of such event. An adjustment made pursuant to this subparagraph (A) shall become effective immediately after the
record date in the case of a dividend or other distribution and shall become effective immediately after the effective date in the case
of a subdivision or combination.
B. Adjustment for Merger
or Reorganization, Etc. In the event of a reclassification, reorganization, or exchange (other than described in Section 5.5(A)
above) or any merger, acquisition, consolidation, or reorganization of the Corporation with another Corporation, each share of Series
A Preferred Stock shall thereafter be convertible into the kind and number of shares of stock or other securities or property to which
a holder of the number of shares of Common Stock of the Corporation deliverable upon conversion of the Series A Preferred Stock would
have been entitled upon such reclassification, reorganization, exchange, consolidation, merger or acquisition had the conversion occurred
immediately prior to the event; and, in any such case, appropriate adjustment (as determined in good faith by the Board) shall be made
in the application of the provisions herein set forth with respect to the rights and interests thereafter of the Holders, to the end that
the provisions set forth herein (including provisions with respect to changes in and other adjustments of the applicable Series A Conversion
Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter
deliverable upon the conversion of the Series A Preferred Stock.
6.5. Conversion Limitations.
A. The Corporation shall
not effect the conversion of any shares of Series A Preferred Stock held by a Holder, and such Holder shall not have the right to convert
any of the Series A Preferred Stock held by such Holder pursuant to the terms and conditions of this Certificate of Designations and any
such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, such Holder
together with the other Attribution Parties collectively would beneficially own in excess of 19.99% (the “Exchange Cap”)
of the outstanding common stock or voting power of the Corporation immediately after giving effect to such conversion, unless and until
the Corporation receives the approval required (“Stockholder Approval”) by the applicable rules and regulations
of any Trading Market on which any securities of the Corporation (or any successor entity) from the stockholders of the Corporation of
the provisions of this Certificate.
B. No Holder shall be
entitled to convert the same into shares of Common Stock pursuant to Section 6.1, and no conversion of Series A Preferred Stock
into shares of Common Stock pursuant to Section 7.1 shall occur, to the extent such conversion would require the Corporation to
issue shares of Common Stock in excess of the Corporation’s then sufficient authorized and unissued shares of Common Stock.
6.6. Notices of Record
Date. In the event of any taking by the Corporation of a record of the Holders of any class of securities for the purpose of determining
the Holders thereof who are entitled to receive any dividend or other distribution, any capital reorganization of the Corporation, any
reclassification or recapitalization of the Corporation’s capital stock, any consolidation or merger with or into another Corporation,
any transfer of all or substantially all of the assets of the Corporation or any dissolution, liquidation or winding up of the Corporation,
the Corporation shall mail to each Holder at least ten (10) days prior to the date specified for the taking of a record, a notice specifying
the date on which any such record is to be taken for the purpose of such dividend or distribution.
6.7. Additional Notices.
In the event the Corporation shall propose to take any action of the types described in Sections 6.4, 6.5 or 6.6
the Corporation shall give notice to each Holder, which notice shall specify the record date, if any, with respect to such action and
the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably
necessary to indicate the effect of such action (to the extent such effect may be at the date of such notice) on the Series A Conversion
Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence
of such action or deliverable upon conversion of shares of Series A Preferred Stock. In the case of any action which would require the
fixing of a record date, such notice shall be given at least ten (10) days prior to the date so fixed, and in case of all other action,
such notice shall be given at least ten (10) days prior to the taking of such proposed action.
6.8. Pro Rata Conversion.
In the event that the Corporation receives a Conversion Notice, in the form attached hereto as Annex A, from more than one Holder
for the same conversion date and the Corporation can convert some, but not all, of such shares of Series A Preferred Stock submitted for
conversion, the Corporation shall convert from each Holder electing to have Series A Preferred Stock converted on such date a pro rata
amount of such Holder’s Series A Preferred Stock submitted for conversion on such date based on the number of shares of Series Preferred
Stock submitted for conversion on such date by such Holder relative to the aggregate number of shares of Series A Preferred Stock submitted
for conversion on such date.
6.9. Payment of Taxes.
The Corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect
to the issue or delivery of shares of Common Stock upon conversion of shares of Series A Preferred Stock, other than any tax or other
charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that
in which the shares of Series A Preferred Stock so converted were registered.
7. Mandatory Conversion.
7.1. Triggering Event. On
the Trading Day immediately following the effective date of any Stockholder Approval (the “Mandatory Conversion Date”),
(i) all outstanding shares of Series A Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective
conversion rate as calculated pursuant to Section 6, and (ii) such shares may not be reissued by the Corporation.
7.2. Procedural Requirements.
All Holders of record shall be sent written notice of the Mandatory Conversion Date and the place designated for mandatory conversion
of all such shares of Series A Preferred Stock pursuant to this Section 7. Such notice need not be sent in advance of the occurrence
of the Mandatory Conversion Date. Upon receipt of such notice, each Holder of shares of Series A Preferred Stock in certificated form
shall surrender his, her, or its certificate or certificates for all such shares (or, if such Holder alleges that such certificate has
been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation
against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to
the Corporation at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion
shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed
by the registered Holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series A Preferred
Stock converted pursuant to Section 7.1, including the rights, if any, to receive notices and vote (other than as a holder of Common
Stock), will terminate on the Mandatory Conversion Date (notwithstanding the failure of the Holder or Holders thereof to surrender any
certificates at or prior to such time), except only the rights of the Holders thereof, upon surrender of any certificate or certificates
of such Holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this
Section 7.2. As soon as practicable after the Mandatory Conversion Date and, if applicable, the surrender of any certificate or
certificates (or lost certificate affidavit and agreement) for Series A Preferred Stock, the Corporation shall (a) issue and deliver to
such Holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such
conversion in accordance with the provisions hereof and (b) pay cash as provided in Section 6.2 in lieu of any fraction of a share
of Common Stock otherwise issuable upon such conversion and the payment of any declared but unpaid dividends on the shares of Series A
Preferred Stock converted. Such converted Series A Preferred Stock shall be retired and cancelled and may not be reissued as shares of
such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary
to reduce the authorized number of shares of Series A Preferred Stock accordingly.
8. No Reissuance of Series A Preferred Stock.
No share or shares of Series A Preferred Stock acquired by the Corporation by reason of redemption, purchase, conversion, or otherwise
shall be reissued.
9. Notices. Unless otherwise specified
in the Corporation’s Amended and Restated Articles of Incorporation or By-Laws, all notices or communications given hereunder shall
be in writing and, if to the Corporation, shall be delivered to it as its principal executive offices, and if to any Holder, shall be
delivered to it at its address as it appears on the stock books of the Corporation.
10. No Preemptive Rights. Holders
of Series A Preferred Stock shall have no preemptive rights except as granted by the Corporation pursuant to written agreements.
11. Reservation of Stock Issuable Upon Conversion.
The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the
purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding shares of the Series A Preferred Stock; and if at any time
the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding
shares of the Series A Preferred Stock, in addition to such other remedies as shall be available to the Holder, the Corporation will take
such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock
to such number of shares as shall be sufficient for such purposes.
12. Special Approval Rights. Until
all shares of the Series A Preferred Stock are converted to Common Stock, without the consent of the Holders of at least a majority of
the Series A Preferred Stock, given in writing or by vote as a separate class, amending, altering, or repealing any provision of the Certificate
of Incorporation, Bylaws, this Certificate or any other organizational documents of the Corporation if it would adversely alter the rights,
preferences, privileges, or powers of or restrictions on the Series A Preferred Stock.
13. Amendment. Notwithstanding any
provision in this Certificate to the contrary, any provision contained herein and any right of the Holders granted hereunder may be amended,
altered, supplemented or repealed as to all shares of Series A Preferred Stock (and the Holders thereof) upon the written consent of the
Holders of at least a majority of the issued and outstanding Series A Preferred Stock. Without the consent of the Holders, the Corporation
may amend, alter, supplement or repeal any terms of the Series A Preferred Stock by amending or supplementing this Certificate or
any stock certificate representing shares of the Series A Preferred Stock (i) to cure any ambiguity, omission, inconsistency or mistake
in any such agreement or instrument; (ii) to make any provision with respect to matters or questions relating to the Series A Preferred
Stock that is not inconsistent with the provisions of this Certificate and that does not materially and adversely affect the rights
of any Holder; or (iii) to make any other change that does not materially and adversely affect the rights of any Holder (other than
any Holder that consents to such change).
14. No Impairment. For as long as
any Series A Preferred Stock is outstanding and unless otherwise agreed to or waived in writing by the Holders of the majority of the
issued and outstanding Series A Preferred Stock, the Corporation will not, by amendment of this Certificate or through any reorganization,
transfer of assets, consolidation, merger, dissolution or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying
out of all the provisions of this Section 14 and in the taking of all such action as may be necessary or appropriate in order to
protect the conversion rights of the Holders of the Series A Preferred Stock against impairment.
IN WITNESS WHEREOF, the Corporation has
caused Certificate of Designations to be executed this 22nd day of December, 2023.
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Chief Executive Officer |
ANNEX A
NXU,
INC.
CONVERSION NOTICE
Reference is made to the Certificate
of Designations of the Series A Preferred Stock of Nxu, Inc. (the “Certificate of Designations”). In accordance
with and pursuant to the Certificate of Designations, the undersigned hereby elects to convert the number of shares of Series A Preferred
Stock, $0.0001 par value per share (the “Preferred Shares”), of Nxu, Inc., a Delaware corporation (the “Corporation”),
indicated below into shares of Class A common stock, $0.0001 value per share (the “Common Stock”), of the Corporation,
as of the date specified below.
Date of Conversion: |
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Aggregate Stated Value of such Preferred Shares to be converted: |
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Aggregate accrued and unpaid Dividends with respect to such Preferred Shares and such Aggregate Dividends to be converted: |
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AGGREGATE CONVERSION AMOUNT TO BE CONVERTED: |
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Please confirm the following information: |
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Number of shares of Common Stock to be issued: |
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Please issue the Common Stock into which the applicable Preferred Shares
are being converted to Holder, or for its benefit, as follows:
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Exhibit 3.2
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
NXU, INC.
December 26, 2023
Nxu, Inc. (the “Corporation”), a corporation
duly organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY CERTIFY THAT:
| 1. | The Certificate of Incorporation of the Corporation as heretofore in effect is hereby amended by inserting
Subsection C at the end of ARTICLE IV, which shall read as follows: |
“C. REVERSE STOCK SPLIT
Upon this Certificate of Amendment
becoming effective pursuant to the DGCL (the “Amendment Effective Time”), the shares of the Corporation’s Class
A Common Stock (the “Old Class A Common Stock”) and the shares of the Corporation’s Class B Common Stock (the
“Old Class B Common Stock”), issued and outstanding immediately prior to the Amendment Effective Time will automatically
be reclassified by combining such shares into a lesser number of shares such that (i) each 150 shares of Old Class A Common Stock will,
at the Amendment Effective Time, be combined into one validly issued, fully paid and non-assessable share of Class A Common Stock, par
value $0.0001 per share (the “New Class A Common Stock”), of the Corporation, and (ii) each 150 shares of Old Class
B Common Stock will, at the Amendment Effective Time, be combined into one validly issued, fully paid and non-assessable share of Class
B Common Stock, par value $0.0001 per share (the “New Class B Common Stock”), of the Corporation, in each case, without
any further action by the Corporation or the holder thereof, subject in each case to the treatment of fractional share interests as described
below (the “Reverse Stock Split”). No fractional shares of New Class A Common Stock or New Class B Common Stock shall
be issued in connection with the Reverse Stock Split. Stockholders who otherwise would be entitled to receive fractional shares of New
Class A Common Stock or New Class B Common Stock shall be entitled to receive the number of shares of New Class A Common Stock or New
Class B Common Stock to which each such stockholder is entitled in connection with the Reverse Stock Split, in each case rounded up to
the next whole number. Any stock certificate that, immediately prior to the Amendment Effective Time, represented shares of Old Class
A Common Stock or Old Class B Common Stock will, from and after the Amendment Effective Time, automatically and without the necessity
of presenting the same for exchange, represent the number of shares of New Class A Common Stock or New Class B Common Stock, respectively,
as such shares of Old Class A Common Stock and Old Class B Common Stock, as applicable, have been combined, subject to the elimination
of fractional share interests as described above. As soon as practicable following the Amendment Effective Time, the Corporation will
cause the transfer agent to issue new certificates representing the appropriate number of whole shares of New Class A Common Stock and
New Class B Common Stock following the Reverse Stock Split for every one share of Old Class A Common Stock or Old Class B Common Stock,
respectively, that is transmitted and held of record as of the Amendment Effective Time.”
| 2. | The forgoing amendment was duly adopted in accordance with the provisions of Section 242 of the DGCL,
by written consent of the stockholders of the Corporation in accordance with the provisions of Section 228 of the DGCL. |
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused
this Certificate of Amendment to be executed by its duly authorized officer on this 26th day of December, 2023.
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Chief Executive Officer |
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Exhibit 10.1
EXECUTION VERSION
SHARE EXCHANGE AGREEMENT
This Share Exchange
Agreement (this “Agreement”) is made and entered into as of December 27, 2023 by and between Nxu, Inc., a Delaware
corporation (the “Company”), and Lynks Motor Corporation, a Delaware corporation d/b/a Lynx Motors (“Lynx”).
The Company and Lynx are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”.
Capitalized terms, unless otherwise defined, shall have the meanings ascribed to such terms in Article X hereof.
RECITALS:
WHEREAS,
upon the terms and subject to the conditions set forth in this Agreement, Lynx desires to sell to the Company, and the Company desires
to purchase from Lynx, a number of newly issued shares of common stock, par value $0.001 per share, of Lynx representing 15% of the issued
and outstanding equity interests in Lynx as of, and after giving effect to, the Closing (the “Purchased Shares”),
in exchange for an aggregate of one thousand (1,000) newly issued shares of Series A convertible preferred stock, par value $0.0001 per
share (the “Exchange Shares”), of the Company, which shall be convertible into Class A Shares upon the terms
and subject to the conditions set forth in the Certificate of Designations;
WHEREAS,
concurrently with the Closing, the Company and Lynx will enter into the Registration Rights Agreement, pursuant to which the Company has
agreed to provide certain registration rights with respect to the Conversion Shares;
WHEREAS,
concurrently with the Closing, the Company and Lynx will enter into the Board Designation Agreement, pursuant to which Lynx has agreed
to provide the Company with the right to designate one person to serve on the board of directors of Lynx;
WHEREAS,
concurrently with the Closing, Lynx will issue to the Company the Promissory Note in exchange for $250,000 in immediately available funds;
WHEREAS,
the board of directors of the Company has (i) determined that the transactions contemplated by this Agreement would be advisable and fair
to, and in the best interests of, its stockholders and (ii) approved and adopted this Agreement, the issuance of the Exchange Shares (as
defined below) and the other transactions contemplated by this Agreement in accordance with the DGCL, subject to obtaining Stockholder
Approval; and
WHEREAS,
the board of directors of Lynx has approved and adopted this Agreement, the issuance of the Purchased Shares and the Promissory Note and
the other transactions contemplated by this Agreement.
NOW, THEREFORE,
in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations,
warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties hereto agree as
follows:
ARTICLE I
THE SHARE EXCHANGE
1.1 Purchase
and Sale of Shares. At the Closing and subject to and upon the terms and conditions of this Agreement, Lynx shall sell, transfer,
convey, assign and deliver to the Company and the Company shall purchase, acquire and accept from Lynx, the Purchased Shares, free and
clear of all Liens (other than potential restrictions on resale under applicable securities Laws).
1.2 Consideration.
At the Closing and subject to and upon the terms and conditions of this Agreement, in full payment for the Purchased Shares, the Company
shall issue and deliver to Lynx the Exchange Shares.
ARTICLE II
CLOSING
2.1 Closing. The consummation
of the transactions contemplated by this Agreement (the “Closing”) shall take place on the date hereof after
all the Closing conditions to this Agreement have been satisfied or waived at 10:00
a.m. Eastern time, or at such other date, time or place
as Lynx and the Company may agree (the date and time at which the Closing is actually held being, the “Closing Date”).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to Lynx as follows:
3.1 Due
Organization and Good Standing. The Company is a company duly incorporated, validly existing and in good standing under the Laws of
Delaware. The Company has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business
as now being conducted. The Company is duly qualified or licensed and in good standing to conduct business in each jurisdiction in which
the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or
licensing necessary, except for any deviations from any of the foregoing that would not reasonably be expected to have a Material Adverse
Effect on the Company.
3.2 Authorization;
Binding Agreement. The Company has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary
Document to which it is a party, to perform the Company’s obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement and each Ancillary Document to which it is a party and the
consummation of the transactions contemplated hereby and thereby (a) have been duly and validly authorized by the board of directors of
the Company and (b) no other corporate proceedings, other than as set forth elsewhere in the Agreement, on the part of the Company, are
necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate
the transactions contemplated hereby and thereby. This Agreement has been, and each Ancillary Document to which the Company is a party
shall be when delivered, duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery
of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute,
the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that
enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general
application affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation or by any valid
defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are
subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”).
3.3 Governmental
Approvals. No Consent of or with any Governmental Authority, on the part of the Company is required to be obtained or made in connection
with the execution, delivery or performance by the Company of this Agreement and each Ancillary Document to which it is a party or the
consummation by the Company of the transactions contemplated hereby and thereby, other than (a) such filings as may be required in any
jurisdiction where the Company is qualified or authorized to conduct business as a foreign corporation in order to maintain such qualification
or authorization, (b) such filings as contemplated by this Agreement and the Ancillary Agreements, (c) any filings required with Nasdaq
with respect to the transactions contemplated by this Agreement and the Ancillary Agreements, (d) applicable requirements, if any, of
the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder,
and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to
have a Material Adverse Effect on the Company.
3.4 Non-Contravention.
The execution and delivery by the Company of this Agreement and each Ancillary Document to which it is a party, the consummation by
the Company of the transactions contemplated hereby and thereby, and compliance by the Company with any of the provisions hereof and
thereof, will not (a) conflict with or violate any provision of the Company’s Organizational Documents, (b) subject to
obtaining the Consents from Governmental Authorities referred to in Section 3.3 hereof, and any condition precedent to such
Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable to the Company or any of its
properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension,
cancellation or modification of, (iv) accelerate the performance required by the Company under, (v) result in a right of termination
or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation
of any Lien upon any of the properties or assets of the Company under, (viii) give rise to any obligation to obtain any third party
consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a
rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any
right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any material contract, except for any
deviations from any of the foregoing clauses (b) or (c) that would not reasonably be expected to have a Material Adverse Effect on
the Company.
3.5 Capitalization.
(a) The
Company is authorized to issue 4,000,000,000 Class A Shares, 1,000,000,000 shares of Class B common stock, par value $0.0001 per share,
and 10,000,000 shares of preferred stock, par value $0.0001 per share. All outstanding capital stock of the Company has been duly authorized,
validly issued, fully paid and non- assessable and not subject to or issued in violation of any purchase option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Charter or any Contract to which
the Company is a party. None of the outstanding capital stock of the Company has been issued in violation of any applicable securities
Laws.
(b) Except
as set forth in the SEC Reports, there are no (i) outstanding options, warrants, puts, calls, convertible securities, preemptive or similar
rights, (ii) bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible or exchangeable into
securities having such rights or (iii) subscriptions or other rights, agreements, arrangements, Contracts or commitments of any character
(A) relating to the issued or unissued shares of the Company, or (B) obligating the Company to issue, transfer, deliver or sell or cause
to be issued, transferred, delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for such
shares, or (C) obligating the Company to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement,
arrangement or commitment for such capital shares. Other than as expressly set forth in this Agreement, or in the SEC Reports, there are
no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any shares of the Company or to provide funds to
make any investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as set forth in the SEC Reports,
there are no shareholders agreements, voting trusts or other agreements or understandings to which the Company is a party with respect
to the voting of any shares of the Company.
3.6 SEC Filings and Company Financials.
(a) The
Company, since September 27, 2022, has filed all forms, reports, schedules, statements, prospectuses and other documents required to
be filed or furnished by the Company with the SEC under the Securities Act and/or the Exchange Act, together with any amendments,
restatements or supplements thereto. Except to the extent otherwise available on the SEC’s web site through EDGAR, the Company
has delivered to Lynx copies in the form filed with the SEC of all of the following: (i) the Company’s Annual Reports on Form
10-K for each fiscal year of the Company beginning with the year ended December 31, 2022, (ii) the Company’s Quarterly Reports
on Form 10-Q for each fiscal quarter that the Company filed such reports to disclose its quarterly financial results in each of the
fiscal years of the Company referred to in clause (i) above, (iii) all other forms, reports, registration statements, prospectuses
and other documents (other than preliminary materials) filed by the Company with the SEC since September 27, 2022 (the forms,
reports, registration statements, prospectuses and other documents referred to in clauses (i), (ii) and (iii) above, whether or not
available through EDGAR, are, collectively, the “SEC Reports”) and (iv) all certifications and statements
required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350 (Section 906 of SOX) with respect to any
report referred to in clause (i) above (collectively, the “Public Certifications”). The SEC Reports (y)
were prepared in all material respects in accordance with the requirements of the Securities Act and the Exchange Act, as the case
may be, and the rules and regulations thereunder and (z) did not, as of their respective effective dates (in the case of SEC Reports
that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed with the
SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they
were made, not misleading. The Public Certifications are each true as of their respective dates of filing. As of the date of this
Agreement, the Class A Shares are listed on Nasdaq.
(b) The
financial statements and notes contained or incorporated by reference in the SEC Reports (the “Company Financials”),
fairly present in all material respects the financial position and the results of operations, changes in shareholders’ equity, and
cash flows of the Company at the respective dates of and for the periods referred to in such financial statements, all in accordance with
(i) GAAP methodologies applied on a consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation S-K, as applicable
(except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of unaudited quarterly
financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).
(c) Except
as and to the extent reflected or reserved against in the Company Financials, the Company has not incurred any Liabilities or obligations
of the type required to be reflected on a balance sheet in accordance with GAAP that is not adequately reflected or reserved on or provided
for in the Company Financials, other than Liabilities of the type required to be reflected on a balance sheet in accordance with GAAP
that have been incurred in the ordinary course of business.
3.7 Absence
of Certain Changes. As of the date of this Agreement, the Company has not received a notice of a Material Adverse Effect.
3.8 Actions;
Orders; Permits. There is no pending or, to the Knowledge of the Company, threatened Action to which the Company is subject which
would reasonably be expected to have a Material Adverse Effect on the Company. There is no material Action that the Company has pending
against any other Person. The Company is not subject to any material Orders of any Governmental Authority, nor are any such Orders pending.
The Company holds all Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets
and properties, all of which are in full force and effect, except where the failure to hold such Permit or for such Permit to be in full
force and effect would not reasonably be expected to have a Material Adverse Effect on the Company.
3.9 Ownership.
All Exchange Shares and Conversion Shares have been duly authorized and, upon issuance and delivery of such Exchange Shares, shall be
validly issued, fully paid and non-assessable, free and clear of all Liens, other than restrictions arising from applicable securities
Laws and any Liens incurred by Lynx, and the issuance and sale of such Exchange Shares and Conversion Shares pursuant hereto will not
be subject to or give rise to any preemptive rights or rights of first refusal.
3.10 Independent
Investigation. The Company has conducted its own independent investigation, review and analysis of the business, results of operations,
prospects, condition (financial or otherwise) or assets of Lynx and acknowledge that it has been provided adequate access to the personnel,
properties, assets, premises, books and records, and other documents and data of Lynx for such purpose. The Company acknowledges and agrees
that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, it has relied solely
upon its own investigation and the express representations and warranties of Lynx set forth in Article IV (including the related
portions of the Lynx Disclosure Schedules (as defined below)) and (b) neither Lynx nor its Representatives have made any representation
or warranty as to Lynx or this Agreement, except as expressly set forth in Article IV (including the related portions of the Lynx
Disclosure Schedules).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF LYNX
Lynx was formed
as a Delaware corporation on April 14, 2023 (the “Formation Date”). Lynx conducted no business operations prior
to the Formation Date and there are no predecessor entities to Lynx. Except as set forth in the disclosure schedules delivered by Lynx
to the Company on the date hereof (the “Lynx Disclosure Schedules”), the Section numbers of which are numbered
to correspond to the Section numbers of this Agreement to which they refer, Lynx represents and warrants to the Company as follows:
4.1 Due
Organization and Good Standing. Lynx is a business company duly organized, validly existing and in good standing under the Laws of
the State of Delaware and has all requisite power and authority to own, lease and operate its properties and to carry on its business
as now being conducted. Schedule 4.1 lists all jurisdictions in which Lynx is qualified to conduct business and all names other
than its legal name under which Lynx does business. Lynx has provided to the Company accurate and complete copies of its Organizational
Documents, as amended to date and as currently in effect. Lynx is not in violation of any provision of its Organizational Documents.
4.2 Authorization;
Binding Agreement. Lynx has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary
Document to which it is or is required to be a party, to perform Lynx’s obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each Ancillary Document to which Lynx
is or is required to be a party and the consummation of the transactions contemplated hereby and thereby, (a) have been duly and validly
authorized by Lynx’s board of directors and Lynx’s shareholders to the extent required by Lynx’s Organizational Documents,
any other applicable Law or any Contract to which Lynx or any of its shareholders is a party or by which it or its securities are bound
and (b) no other proceedings on the part of Lynx are necessary to authorize the execution and delivery of this Agreement and each Ancillary
Document to which it is a party or to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each
Ancillary Document to which Lynx is or is required to be a party shall be when delivered, duly and validly executed and delivered by
Lynx and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties
hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of Lynx, enforceable against
Lynx in accordance with its terms, subject to the Enforceability Exceptions.
4.3 Capitalization.
(a) Lynx
is authorized to issue 10,000,000 shares of its common stock, $0.001 par value per share. The Purchased Shares to be delivered by Lynx
to the Company at the Closing shall constitute 15% of the issued and outstanding equity interests in or of Lynx, as of, and after giving
effect to, the Closing. All of the outstanding equity interests in or of Lynx have been duly authorized, validly issued, fully paid and
non-assessable and not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription
right or any similar right under any provision of any applicable Law, the Lynx Charter or any Contract to which Lynx is a party. Lynx
holds no shares or other equity interests in or of Lynx in its treasury. None of the outstanding equity interests in or of Lynx were issued
in violation of any applicable securities Laws.
(b) There
are no options, warrants or other rights to subscribe for or purchase any shares or other equity interests in or of Lynx or securities
convertible into or exchangeable for, or that otherwise confer on the holder any right to acquire any shares or other equity interests
in or of Lynx, or preemptive rights or rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements
or restrictions to which Lynx or any of its shareholders is a party or bound relating to any equity securities of Lynx, whether or not
outstanding. There are no outstanding or authorized equity appreciation, phantom equity or similar rights with respect to Lynx. There
are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of Lynx’s
shares or other equity interests. There are no outstanding contractual obligations of Lynx to repurchase, redeem or otherwise acquire
any shares or other equity interests or securities in or of Lynx, nor has Lynx granted any registration rights to any Person with respect
to Lynx’s equity securities. All of Lynx’s securities have been granted, offered, sold and issued in compliance with all applicable
securities Laws. As a result of the consummation of the transactions contemplated by this Agreement, no equity interests in or of Lynx
are issuable and no rights in connection with any interests, warrants, rights, options or other securities of Lynx accelerate or otherwise
become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(c) Lynx
has not declared or paid any distribution or dividend in respect of its equity interests and has not repurchased, redeemed or otherwise
acquired any shares or other equity interests in or of Lynx, and the board of directors of Lynx has not authorized any of the foregoing.
4.4 Subsidiaries.
(a) Schedule
4.4(a) sets forth the name of each Subsidiary of Lynx, and with respect to each Subsidiary (a) its jurisdiction of organization,
(b) its authorized shares or other equity interests (if applicable), (c) the number of issued and outstanding shares or other equity
interests and the record holders and beneficial owners thereof and (d) its Tax election to be treated as a corporate or a
disregarded entity under the Code and any state or applicable non-U.S. Tax laws, if any. All of the outstanding equity securities of
each Subsidiary of Lynx are duly authorized and validly issued, fully paid and non-assessable (if applicable), and were offered,
sold and delivered in compliance with all applicable securities Laws, and owned by Lynx or one of its Subsidiaries free and clear of
all Liens (other than those, if any, imposed by such Subsidiary’s Organizational Documents). There are no Contracts to which
Lynx or any of its Affiliates is a party or bound with respect to the voting (including voting trusts or proxies) of the shares or
other equity interests of any Subsidiary of Lynx other than the Organizational Documents of any such Subsidiary. There are no
outstanding or authorized options, warrants, rights, agreements, subscriptions, convertible securities or commitments to which any
Subsidiary of Lynx is a party or which are binding upon any Subsidiary of Lynx providing for the issuance or redemption of any
shares or other equity interests in or of any Subsidiary of Lynx. There are no outstanding equity appreciation, phantom equity,
profit participation or similar rights granted by any Subsidiary of Lynx. No Subsidiary of Lynx has any limitation on its ability to
make any distributions or dividends to its equity holders, whether by Contract, Order or applicable Law. Except for the equity
interests of the Subsidiaries listed on Schedule 4.4(a), Lynx does not own or have any rights to acquire, directly or
indirectly, any shares or other equity interests of any Person. None of Lynx or its Subsidiaries is a participant in any joint
venture, partnership or similar arrangement. There are no outstanding material contractual obligations of Lynx or its Subsidiaries
to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person (other
than loans to customers in the ordinary course of business).
4.5 Governmental
Approvals. No Consent of or with any Governmental Authority on the part of Lynx is required to be obtained or made in connection
with the execution, delivery or performance by Lynx of this Agreement or any Ancillary Documents to which it is a party or the consummation
by Lynx of the transactions contemplated hereby or thereby other than such filings as contemplated by this Agreement.
4.6 Non-Contravention.
The execution and delivery by Lynx of this Agreement and each Ancillary Document to which Lynx is a party or otherwise bound, and
the consummation by Lynx of the transactions contemplated hereby and thereby and compliance by Lynx with any of the provisions
hereof and thereof, will not (a) conflict with or violate any provision of Lynx’s Organizational Documents, (b) subject to
obtaining the Consents from Governmental Authorities referred to in Section 4.5 hereof, and any condition precedent to such
Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable to Lynx or any of its
properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension,
cancellation or modification of, (iv) accelerate the performance required by Lynx under, (v) result in a right of termination or
acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of
any Lien upon any of the properties or assets of Lynx under, (viii) give rise to any obligation to obtain any third party consent or
provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate,
chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right,
benefit, obligation or other term under, any of the terms, conditions or provisions of, a Lynx Material Contract.
4.7 Financial Statements.
(a) Lynx
maintains financial statements on a modified accrual basis of accounting. As used herein, the term “Lynx
Financials” means the unaudited financial statements, consisting of the balance sheet of Lynx as of November 30, 2023
(the “Interim Balance Sheet Date”) and the related income statement for the period from the Formation Date
through such date. Lynx Financials shall (i) accurately reflect the books and records of Lynx as of the times and for the periods
referred to therein and (ii) be prepared in accordance with the Company’s historic method of accounting, consistently
applied throughout and among the periods involved.
(b) Lynx
maintains accurate books and records reflecting its assets and Liabilities and maintains proper and adequate internal accounting
controls that provide reasonable assurance that (i) Lynx does not maintain any off-the-book accounts and that Lynx’s assets
are used only in accordance with Lynx’s management directives, (ii) transactions are executed with management’s
authorization, (iii) transactions are recorded as necessary to permit preparation of the financial statements of Lynx and to
maintain accountability for Lynx’s assets, (iv) access to Lynx’s assets is permitted only in accordance with
management’s authorization, (v) the reporting of Lynx’s assets is compared with existing assets at regular intervals and
verified for actual amounts and (vi) accounts, notes and other receivables are recorded accurately, and proper and adequate
procedures are implemented to effect the collection of accounts, notes and other receivables on a current and timely basis. Lynx has
not been subject to or involved in any material fraud that involves management or other employees who have a significant role in the
internal controls over financial reporting of Lynx. Since the Formation Date, neither Lynx nor its Representatives has received any
written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or
methods of Lynx or its internal accounting controls, including any material written complaint, allegation, assertion or claim that
Lynx has engaged in questionable accounting or auditing practices.
(c) All
material Indebtedness of Lynx shall be disclosed in the financial statements and related notes previously delivered to the Company. No Indebtedness
of Lynx contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by Lynx, or
(iii) the ability of Lynx to grant any Lien on their respective properties or assets.
(d) Lynx
is not subject to any Liabilities or obligations (whether or not required to be reflected on a balance sheet prepared in accordance with
GAAP), except for those that are either (i) adequately reflected or reserved on or provided for in the consolidated balance sheet of Lynx
and its Subsidiaries as of the Interim Balance Sheet Date contained in the Lynx Financials or (ii) not material and that were incurred
after the Interim Balance Sheet Date in the ordinary course of business consistent with past practice (other than Liabilities for breach
of any Contract or violation of any Law).
(e) All
financial projections with respect to Lynx that will be delivered by or on behalf of Lynx to the Company or its Representatives will
be prepared in good faith using assumptions that Lynx believes to be reasonable.
4.8 Absence
of Certain Changes. Since the Formation Date, Lynx has (a) conducted its business only in the ordinary course of business consistent
with past practice, (b) not been subject to a Material Adverse Effect and (c) has not taken any action or committed or agreed to take
any action that would be prohibited by Section 5.2(b) if such action were taken on or after the date hereof without the consent
of the Company.
4.9 Compliance
with Laws. Lynx is not or has not been in material conflict or non-compliance with, or in material default or violation of, nor has
Lynx received, since the Formation Date, any written or, to the Knowledge of the Company, oral notice of any material conflict or non-compliance
with, or material default or violation of, any applicable Laws by which it or any of its properties, assets, employees, business or operations
are or were bound or affected.
4.10 Company
Permits. Lynx (and its employees who are legally required to be licensed by a Governmental Authority in order to perform his or her
duties with respect to his or her employment with Lynx), holds all Permits necessary to lawfully conduct in all material respects its
business as presently conducted and as currently contemplated to be conducted, and to own, lease and operate its assets and properties
(collectively, the “Lynx Permits”). All of the Lynx Permits are in full force and effect, and no suspension
or cancellation of any of the Lynx Permits is pending or, to Lynx Knowledge, threatened. Lynx is not in violation in any material respect
of the terms of any Lynx Permit.
4.11 Litigation.
Set forth on Schedule 4.11 is a complete list of litigation matters. Except as disclosed in Schedule 4.11, there is no (a)
Action of any nature pending or, to the Lynx’ Knowledge, threatened, nor is there any reasonable basis for any Action to be made,
or (b) Order pending now or rendered by a Governmental Authority since the Formation Date, in either case of (a) or (b) by or against
Lynx, its current or former directors, officers or equity holders (provided, that any litigation involving the directors, officers or
equity holders of Lynx must be related to Lynx’s business, equity securities or assets), its business, equity securities or assets.
The items listed on Schedule 4.11, if finally determined adverse to Lynx, will not have, either individually or in the aggregate,
a Material Adverse Effect upon Lynx. Since the Formation Date, none of the current or former officers, senior management or directors
of Lynx have been charged with, indicted for, arrested for, or convicted of any felony or any crime involving fraud.
4.12 Material Contracts.
(a) Schedule
4.12(a) sets forth a true, correct and complete list of each Contract to which Lynx is a party or by which Lynx, or any of its properties
or assets are bound or affected (each contract required to be set forth on Schedule 4.12(a), a “Lynx Material Contract”)
that:
(i) contains
covenants that limit the ability of Lynx (A) to compete in any line of business or with any Person or in any geographic area or to sell,
or provide any service or product or solicit any Person, including any non-competition covenants, employee and customer non-solicit covenants,
exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire an interest in any other
Person;
(ii) involves
any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement relating to the formation,
creation, operation, management or control of any partnership or joint venture;
(iii) involves
any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative
financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever,
whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) evidences
Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of Lynx having an outstanding principal amount in excess
of $100,000;
(v) involves
the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $25,000
(other than in the ordinary course of business consistent with past practice) or shares or other equity interests in or of another Person;
(vi) relates
to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity
or its business or material assets or the sale of Lynx, its business or material assets;
(vii) by
its terms, individually or with all related Contracts, calls for aggregate payments or receipts by Lynx under such Contract or Contracts
of at least $50,000 per year or $150,000 in the aggregate;
(viii) obligates
Lynx to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess of $100,000;
(ix) is between
Lynx and any Top Customer or Top Supplier (other than in the ordinary course of business);
(x) is
between Lynx and any directors, officers or employees of Lynx (other than at-will employment arrangements with employees entered into
in the ordinary course of business consistent with past practice), including all non-competition, severance and indemnification agreements,
or any Related Person;
(xi) obligates
Lynx to make any capital commitment or expenditure in excess of $25,000 (including pursuant to any joint venture);
(xii) relates
to a material settlement entered into within three (3) years prior to the date of this Agreement or under which Lynx has outstanding obligations
(other than customary confidentiality obligations or in the ordinary course of business);
(xiii) provides
another Person (other than another Lynx or any manager, director or officer of Lynx) with a power of attorney;
(xiv) relates
to the development, ownership, licensing or use of any Intellectual Property by, to or from Lynx;
(xv) relates
to any real estates, including, without limitation, leases, lease guarantees, agreements and documents related thereto;
(xvi) evidences any Liens; or
(xvii) is otherwise material to Lynx and not described in clauses (i) through (xvi) above.
(b) With
respect to each Lynx Material Contract: (i) such Lynx Material Contract is valid and binding and enforceable in all respects against Lynx
party thereto (subject to the Enforceability Exceptions) and, to the Knowledge of Lynx, each other party thereto, and is in full force
and effect; (ii) neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will
affect the validity or enforceability of any Lynx Material Contract; (iii) Lynx is not in breach or default in any respect, and no event
has occurred that with the passage of time or giving of notice or both would constitute a breach or default by Lynx, or permit termination
or acceleration by the other party thereto, under such Lynx Material Contract; (iv) to the Knowledge of Lynx, no other party to such Lynx
Material Contract is in breach or default in any respect, and no event has occurred that with the passage of time or giving of notice
or both would constitute such a breach or default by such other party, or permit termination or acceleration by Lynx, under such Lynx
Material Contract; (v) Lynx has not received written or, to the Knowledge of Lynx, oral notice of an intention by any party to any such
Lynx Material Contract that provides for a continuing obligation by any party thereto to terminate such Lynx Material Contract or amend
the terms thereof, other than modifications in the ordinary course of business that do not adversely affect Lynx; and (vi) Lynx has not
waived any rights under any such Lynx Material Contract.
4.13 Intellectual
Property.
(a) Schedule
4.13(a)(i) sets forth: (i) all Patents, Trademarks, Internet Assets and Copyrights owned or licensed by Lynx or otherwise used or
held for use by Lynx in which Lynx is the owner, applicant or assignee (“Lynx Registered IP”), specifying as
to each item, as applicable: (A) the nature of the item, including the title, (B) the owner of the item, (C) the jurisdictions in which
the item is issued or registered or in which an application for issuance or registration has been filed and (D) the issuance, registration
or application numbers and dates; and (ii) all material unregistered Intellectual Property owned or purported to be owned by Lynx. Schedule
4.13(a)(ii) sets forth all licenses, sublicenses and other agreements or permissions (“Lynx IP Licenses”),
which are not required to be listed, although such licenses are “Lynx IP Licenses” as that term is used herein), under which
Lynx is a licensee or otherwise is authorized to use or practice any Intellectual Property. Lynx owns, free and clear of all Liens (other
than Permitted Liens), has valid and enforceable rights in, and has the unrestricted right to use, sell, license, transfer or assign,
all Intellectual Property currently used, licensed or held for use by such Lynx, and previously used or licensed by such Lynx, except
for the Intellectual Property that is the subject of the Lynx IP Licenses. For each Patent and Patent application in the Lynx Registered
IP, Lynx has obtained valid assignments of inventions from each inventor.
(b) Lynx
has a valid and enforceable license to use all Intellectual Property that is the subject of the Lynx IP Licenses applicable to such Lynx.
Lynx has performed all obligations imposed on it in the Lynx IP Licenses, has made all payments required to date, and such Lynx is not,
nor, to the Knowledge of Lynx, is any other party thereto, in breach or default thereunder, nor has any event occurred that with notice
or lapse of time or both would constitute a default thereunder. All registrations for Copyrights, Patents and Trademarks that are owned
by or exclusively licensed to Lynx are valid and in force, and all applications to register any Copyrights, Patents and Trademarks are
pending and in good standing, all without challenge of any kind.
(c) No
Action is pending or, to the Lynx’ Knowledge, threatened that challenges the validity, enforceability, ownership, or right to use,
sell, license or sublicense any Intellectual Property currently licensed, used or held for use by Lynx in any material respect. Lynx has
not received any written or, to the Knowledge of Lynx, oral notice or claim asserting or suggesting that any infringement, misappropriation,
violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be occurring or has or may have occurred,
as a consequence of the business activities of Lynx, nor to the Knowledge of Lynx is there a reasonable basis therefor. To Lynx’
Knowledge, no third party is infringing upon, has misappropriated or is otherwise violating any Intellectual Property owned, licensed
by, licensed to, or otherwise used or held for use by Lynx (“Lynx IP”) in any material respect.
(d) All
employees and independent contractors of Lynx have assigned to Lynx all Intellectual Property arising from the services performed for
Lynx by such Persons. No current or former officers, employees or independent contractors of Lynx have claimed any ownership interest
in any Intellectual Property owned by Lynx.
(e) To
the Knowledge of Lynx, no Person has obtained unauthorized access to third party information and data in the possession of Lynx, nor has
there been any other compromise of the security, confidentiality or integrity of such information or data. Lynx has complied with all
applicable Laws relating to privacy, personal data protection, and the collection, processing and use of personal information and its
own privacy policies and guidelines. The operation of the business of Lynx has not and does not materially violate any right to privacy
or publicity of any third person, or constitute unfair competition or trade practices under applicable Law.
4.14 Taxes and Returns.
(a) Lynx
has or will have timely filed, or caused to be timely filed, all Tax Returns and reports required to be filed by it (taking into account
all available extensions), which Tax Returns are true, accurate, correct and complete in all material respects, and has paid, collected
or withheld, or caused to be paid, collected or withheld, all Taxes required to be paid, collected or withheld, other than such Taxes
for which adequate reserves in the Lynx Financials have been established. Lynx has complied with all applicable Laws relating to Tax.
(b) There
is no current pending or, to the Knowledge of Lynx, threatened Action against Lynx by a Governmental Authority in a jurisdiction where
Lynx does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c) Lynx
is not being audited by any Tax authority or has been notified in writing or, to the Knowledge of Lynx, orally by any Tax authority that
any such audit is contemplated or pending. There are no claims, assessments, audits, examinations, investigations or other Actions pending
against Lynx in respect of any Tax, and Lynx has not been notified in writing of any proposed Tax claims or assessments against it (other
than, in each case, claims or assessments for which adequate reserves in the Lynx Financials have been established).
4.15 Real
Property. Schedule 4.15 contains a complete and accurate list of all premises currently leased or subleased or otherwise used
or occupied by Lynx for the operation of the business of Lynx (the “Leased Premises”), and of all current leases,
lease guarantees, agreements and documents related thereto, including all amendments, terminations and modifications thereof or waivers
thereto (collectively, the “Lynx Real Property Leases”), as well as the current annual rent and term under each
Lynx Real Property Lease. Lynx has provided to the Company a true and complete copy of each of the Lynx Real Property Leases, and in the
case of any oral Lynx Real Property Lease, a written summary of the material terms of such Lynx Real Property Lease. The Lynx Real Property
Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge of Lynx, no
event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of any other event) would
constitute a default on the part of Lynx or any other party under any of Lynx Real Property Leases, and Lynx has not received notice of
any such condition. Lynx does not own nor has ever owned any real property or any interest in real property (other than the leasehold
interests in the Lynx Real Property Leases).
4.16 Personal
Property. All items of Personal Property currently owned, used or leased by Lynx with a book value or fair market value of greater
than $25,000 (“Lynx Personal Property Leases”) are in good operating condition and repair (reasonable wear
and tear excepted), and are suitable for their intended use in the business of Lynx. The operation of Lynx’s business as it is
now conducted or presently proposed to be conducted is not dependent upon the right to use the Personal Property of Persons other than
Lynx, except for such Personal Property that is owned by, or leased, licensed or otherwise contracted to, Lynx. The Lynx Personal Property
Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge of Lynx,
no event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of any other event)
would constitute a default on the part of Lynx or any other party under any of the Lynx Personal Property Leases, and Lynx has not received
notice of any such condition.
4.17 Title
to and Sufficiency of Assets. Lynx has good and marketable title to, or a valid leasehold interest in or right to use, all of its
assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests and (c) Liens
specifically identified on the Interim Balance Sheet. The assets (including Intellectual Property rights and contractual rights) of Lynx
constitute all of the assets, rights and properties that are used in the operation of the businesses of Lynx as it is now conducted and
presently proposed to be conducted or that are used or held by Lynx for use in the operation of the businesses of Lynx, and taken together,
are adequate and sufficient for the operation of the businesses of Lynx as currently conducted and as presently proposed to be conducted.
4.18 Employee Matters.
(a) Lynx
is not a party to any collective bargaining agreement or other Contract with any group of employees, labor organization or other representative
of any of the employees of Lynx and Lynx has no Knowledge of any activities or proceedings of any labor union or other party to organize
or represent such employees. There has not occurred or, to the Knowledge of Lynx, been threatened any strike, slow-down, picketing, work-stoppage,
or other similar labor activity with respect to any such employees. There are no unresolved labor controversies (including unresolved
grievances and age or other discrimination claims), if any, that are pending or, to the Knowledge of the Lynx, threatened between Lynx
and Persons employed by or providing services to Lynx. No current officer or employee of Lynx has provided Lynx written or, to the Knowledge
of Lynx, oral notice of his or her plan to terminate his or her employment with Lynx.
(b) Lynx
(i) is and has been in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms
and conditions of employment, health and safety and wages and hours, and other Laws relating to discrimination, disability, labor relations,
hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling,
occupational safety and health, family and medical leave, and employee terminations, and have not received written notice, or any other
form of notice, that there is any pending Action involving unfair labor practices against Lynx, (ii) is not liable for any material arrears
of wages or any material penalty for failure to comply with any of the foregoing, and (iii) is not liable for any material payment to
any Governmental Authority with respect to unemployment compensation benefits, social security or other benefits or obligations for employees,
independent contractors or consultants (other than routine payments to be made in the ordinary course of business and consistent with
past practice). There are no Actions pending or, to the Knowledge of Lynx, threatened against Lynx brought by or on behalf of any applicant
for employment, any current or former employee, any Person alleging to be a current or former employee, or any Governmental Authority,
relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment,
or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment relationship.
(c) There
are no independent contractors (including consultants) currently engaged by Lynx, along with the position, a description of responsibilities,
the entity engaging such Person, date of retention and rate of remuneration, most recent increase (or decrease) in remuneration and amount
thereof, for each such Person. Each such independent contractors are a party to a written Contract with Lynx. Each such independent contractor
has entered into customary covenants regarding confidentiality, non-competition and assignment of inventions and copyrights in such Person’s
agreement with Lynx, a copy of which has been provided to the Company by Lynx. For the purposes of applicable Law, including the Code,
all independent contractors who are currently, or within the period since the Formation Date have been, engaged by Lynx are bona fide
independent contractors and not employees of Lynx. Each independent contractor is terminable on fewer than thirty (30) days’ notice,
without any obligation of Lynx to pay severance or a termination fee.
4.19 Benefit Plans.
(a) With
respect to each Benefit Plan of Lynx (each, a “Lynx Benefit Plan”): (i) such Lynx Benefit Plan has been administered
and enforced in all material respects in accordance with its terms and the requirements of any and all applicable Laws, and has been maintained,
where required, in good standing with applicable regulatory authorities and Governmental Authorities; (ii) no breach of fiduciary duty
has occurred; (iii) no Action is pending, or to the Lynx’s Knowledge, threatened (other than routine claims for benefits arising
in the ordinary course of administration); and (iv) all contributions and premiums required to be made with respect to a Lynx Benefit
Plan have been timely made. Lynx has not incurred any obligation in connection with the termination of, or withdrawal from, any Lynx Benefit
Plan.
(b) The
present value of the accrued benefit liabilities (whether or not vested) under each Lynx Benefit Plan, determined as of the end of the
Lynx’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current
value of the assets of such Lynx Benefit Plan allocable to such benefit liabilities.
(c) The
consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance
pay, unemployment compensation or other benefits or compensation; or (ii) accelerate the time of payment or vesting, or increase the amount
of any compensation due, or in respect of, any individual.
(d) Except
to the extent required by applicable Law, Lynx does not provide health or welfare benefits to any former or retired employee or is obligated
to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(e) All
Lynx Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any liability to Lynx, the Company
or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or
liabilities.
4.20 Environmental Matters.
(a) Lynx
is and has been in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining in good
standing, and complying with all Permits required for its business and operations by Environmental Laws (“Environmental Permits”),
no Action is pending or, to Lynx’s Knowledge, threatened to revoke, modify, or terminate any such Environmental Permit, and, to
Lynx’s Knowledge, no facts, circumstances, or conditions currently exist that could adversely affect such continued compliance with
Environmental Laws and Environmental Permits or require capital expenditures to achieve or maintain such continued compliance with Environmental
Laws and Environmental Permits.
(b) Lynx
is not the subject of any outstanding Order or Contract with any Governmental Authority or other Person in respect of any (i) Environmental
Laws, (ii) Remedial Action, or (iii) Release or threatened Release of a Hazardous Material. Lynx has not assumed, contractually or by
operation of Law, any Liabilities or obligations under any Environmental Laws.
(c) No
Action has been made or is pending, or to the Lynx’s Knowledge, threatened against Lynx or any assets of Lynx alleging either or
both that Lynx may be in material violation of any Environmental Law or Environmental Permit or may have any material Liability under
any Environmental Law.
(d) Lynx
has not manufactured, treated, stored, disposed of, arranged for or permitted the disposal of, generated, handled or released any Hazardous
Material, or owned or operated any property or facility, in a manner that has given or would reasonably be expected to give rise to any
material Liability or obligation under applicable Environmental Laws. No fact, circumstance, or condition exists in respect of Lynx or
any property currently or formerly owned, operated, or leased by Lynx or any property to which Lynx arranged for the disposal or treatment
of Hazardous Materials that could reasonably be expected to result in Lynx incurring any material Environmental Liabilities.
(e) There
is no investigation of the business, operations, or currently owned, operated, or leased property of Lynx or, to Lynx’s Knowledge,
previously owned, operated, or leased property of Lynx pending or, to Lynx’s Knowledge, threatened that could lead to the imposition
of any Liens under any Environmental Law or material Environmental Liabilities.
(f) Lynx
has provided to the Company all environmentally related site assessments, audits, studies, reports and results of investigations that
have been performed in respect of the currently or previously owned, leased, or operated properties of Lynx.
4.21 Transactions
with Related Persons. Except as set forth in the financial statements and related notes previously delivered to the Company,
neither Lynx nor any of its Affiliates, nor any officer, director, manager, employee, trustee or beneficiary of Lynx or any of its
Affiliates, nor any immediate family member of any of the foregoing (whether directly or indirectly through an Affiliate of such
Person) (each of the foregoing, a “Related Person”) is presently, or since the Formation Date has been, a
party to any transaction with Lynx, including any Contract or other arrangement (a) providing for the furnishing of services by
(other than as officers, directors or employees of Lynx), (b) providing for the rental of real property or Personal Property from or
(c) otherwise requiring payments to (other than for services or expenses as directors, officers or employees of Lynx in the ordinary
course of business consistent with past practice), any Related Person or any Person in which any Related Person has an interest as
an owner, officer, manager, director, trustee or partner or in which any Related Person has any direct or indirect interest (other
than the ownership of securities representing no more than two percent (2%) of the outstanding voting power or economic interest of
a publicly traded company). Except as set forth in the financial statements and related notes previously delivered to the Company,
Lynx has no outstanding Contract or other arrangement or commitment with any Related Person, and no Related Person owns any real
property or Personal Property, or right, tangible or intangible (including Intellectual Property) which is used in the business of
Lynx.
4.22 Insurance.
All premiums due and payable under all insurance policies held by Lynx have been timely paid and Lynx and its Subsidiaries are otherwise
in material compliance with the terms of such insurance policies. All such insurance policies are in full force and effect, and to the
Knowledge of Lynx, there is no threatened termination of, or material premium increase with respect to, any of such insurance policies.
Lynx has no self-insurance or co- insurance programs. Since the Formation Date, Lynx has not received any notice from, or on behalf of,
any insurance carrier relating to or involving any adverse change or any change other than in the ordinary course of business, in the
conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy, or requiring or suggesting material alteration
of any of assets of Lynx, purchase of additional equipment or material modification of any of methods of doing business by Lynx.
4.23 Top
Customers and Suppliers. Schedule 4.23 lists, by dollar volume paid for the period from the Formation Date through November
30, 2023, the key customers of Lynx (the “Top Customers”) and the key suppliers of goods or services to Lynx
(the “Top Suppliers”). The relationships of Lynx with such suppliers and customers are good commercial working
relationships and (i) no Top Supplier or Top Customer since the Formation Date has cancelled or otherwise terminated, or, to the Company’s
Knowledge, intends to cancel or otherwise terminate, any relationships of such Person with Lynx, (ii) no Top Supplier or Top Customer
has since the Formation Date decreased materially or, to Lynx’s Knowledge, threatened to stop, decrease or limit materially, or
intends to modify materially its relationships with Lynx or intends to stop, decrease or limit materially its products or services to
Lynx or its usage or purchase of the products or services of Lynx, (iii) to the Lynx’s Knowledge, no Top Supplier or Top Customer
intends to refuse to pay any amount due to Lynx or seek to exercise any remedy against Lynx, (iv) Lynx has not since the Formation Date
been engaged in any material dispute with any Top Supplier or Top Customer, and (v) to the Lynx’s Knowledge, the consummation of
the transactions contemplated in this Agreement and the other Ancillary Documents will not affect the relationship of Lynx with any Top
Supplier or Top Customer.
4.24 Books
and Records. All of the financial books and records of Lynx are complete and accurate in all material respects and have been maintained
in the ordinary course consistent with past practice and in accordance with applicable Laws.
4.25 Accounts
Receivable. All accounts, notes and other receivables, whether or not accrued, and whether or not billed, of Lynx (the “Accounts
Receivable”) arose from sales actually made or services actually performed and represent valid obligations to Lynx. None
of the Accounts Receivable are, to the Knowledge of Lynx, subject to any right of recourse, defense, deduction, return of goods, counterclaim,
offset, or set off on the part of the obligor in excess of any amounts reserved therefor on the Lynx Financials. All of the Accounts Receivable
are, to the Knowledge of Lynx, fully collectible according to their terms in amounts not less than the aggregate amounts thereof carried
on the books of Lynx (net of reserves) within ninety (90) days.
4.26 Certain
Business Practices. Lynx, nor any of its respective Representatives acting on its behalf has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any
provision of the Foreign Corrupt Practices Act of 1977 or any comparable or similar Law of any other country or other jurisdiction,
or (iii) made any other unlawful payment. Lynx, nor any of its respective Representatives acting on its behalf has directly or
indirectly, given or agreed to give any gift or similar benefit in any material amount to any customer, supplier, governmental
employee or other Person who is or may be in a position to help or hinder Lynx or assist Lynx in connection with any actual or
proposed transaction. The operations of Lynx are and have been conducted at all times in compliance with laundering statutes in all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any Governmental Authority, and no Action involving Lynx with respect to the any of the foregoing is
pending or, to the Knowledge of Lynx, threatened. Lynx nor any of its respective directors or officers, or, to the Knowledge of
Lynx, any other Representative acting on behalf of Lynx is currently identified on the specially designated nationals or other
blocked person list or otherwise currently subject to any U.S. sanctions administered by OFAC, and Lynx has not, directly or
indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner
or other Person, in connection with any sales or operations in any country sanctioned by OFAC or for the purpose of financing the
activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC in the last
five (5) fiscal years. Lynx has not engaged in transactions with, or exported any of its products or associated technical data (i)
into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria or any other country to which the United States
has embargoed goods to or has proscribed economic transactions with or (ii) to the knowledge of the Company, to any Person included
on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s
Denied Persons List. Lynx has not, since the Formation Date, breached or been in violation of any Law regulating or covering conduct
in, or the nature of, the workplace, including regarding sexual harassment or, on any impermissible basis, a hostile work
environment.
4.27 Finders
and Investment Bankers. Lynx has not incurred or will not incur any Liability for any brokerage, finder’s or other fee or commission
in connection with the transactions contemplated hereby.
4.28 Independent
Investigation. Lynx has conducted its own independent investigation, review and analysis of the business, results of operations, prospects,
condition (financial or otherwise) or assets of the Company, and acknowledges that it has been provided adequate access to the personnel,
properties, assets, premises, books and records, SEC Reports and SEC Financial Statements and other documents and data of the Company
for such purpose. Lynx acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions
contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the Company set
forth in Article III; and (b) neither the Company nor any of its Representatives have made any representation or warranty as to
the Company or this Agreement, except as expressly set forth in Article III.
4.29 Information
Supplied. None of the information supplied or to be supplied by Lynx expressly for inclusion or incorporation by reference: (a) in
any Current Report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental
Authority with respect to the transactions contemplated by this Agreement or any Ancillary Documents; or (b) in the mailings or other
distributions to the Company’s shareholders and/or prospective investors with respect to the consummation of the transactions contemplated
by this Agreement or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed,
as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding
the foregoing, Lynx makes no representation, warranty or covenant with respect to any information supplied by or on behalf of the Company
or its Affiliates.
4.30 Ownership.
All Purchased Shares issued and delivered in accordance with Article I to the Company shall be, upon issuance and delivery of such
Purchased Shares, duly authorized, duly authorized, validly issued, fully paid and non-assessable, free and clear of all Liens, other
than restrictions arising from applicable securities Laws and any Liens incurred by the Company, and the issuance and sale of such Purchased
Shares pursuant hereto will not be subject to or give rise to any preemptive rights or rights of first refusal.
4.31 Investment
Representations. Lynx: (a) is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under
the Securities Act; (b) is acquiring the Exchange Shares and the Conversion Shares for itself for investment purposes only, and not
with a view towards any resale or distribution of such Exchange Shares or Conversion Shares; (c) has been advised and understands
that the Exchange Shares and the Conversion Shares (i) are being issued in reliance upon one or more exemptions from the
registration requirements of the Securities Act and any applicable state securities Laws, (ii) have not been registered under the
Securities Act or any applicable state securities Laws and, therefore, and cannot be resold unless they are registered under the
Securities Act and all applicable state securities Laws, unless exemptions from registration are available, and (iii) will bear an
appropriate restrictive legend reflecting that they cannot be resold unless they are registered under the Securities Act and all
applicable state securities Laws, unless exemptions from registration are available; and (d) is aware that an investment in the
Company is a speculative investment and is subject to the risk of complete loss. Lynx does not have any Contract with any Person to
sell, transfer, or grant participations to such Person, or to any third Person, with respect to the Exchange Shares or the
Conversion Shares. By reason of Lynx business or financial experience, or by reason of the business or financial experience of
Lynx’s “purchaser representatives” (as that term is defined in Rule 501(h) under the Securities Act), Lynx is
capable of evaluating the risks and merits of an investment in the Company and of protecting its interests in connection with this
investment. Lynx has carefully read and understands all materials provided by or on behalf of the Company or its Representatives to
Lynx or its Representative pertaining to an investment in the Company, including without limitation the SEC Reports and SEC
Financial Statements and has consulted, as Lynx has deemed advisable, with its own attorneys, accountants or investment advisors
with respect to the investment contemplated hereby and its suitability for Lynx. Lynx acknowledges that the Exchange Shares and
Conversion Shares are subject to dilution for events not under the control of Lynx. Lynx has completed its independent inquiry and
has relied fully upon the advice of its own legal counsel, accountant, financial and other Representatives in determining the legal,
tax, financial and other consequences of this Agreement and the transactions contemplated hereby and the suitability of this
Agreement and the transactions contemplated hereby for Lynx and its particular circumstances, and, except as set forth herein, has
not relied upon any representations or advice by the Company or their Representatives. Lynx acknowledges and agrees that Lynx has
not been guaranteed or represented to by any Person, (i) any specific amount or the event of the distribution of any cash, property
or other interest in the Company or (ii) the profitability or value of the Exchange Shares or Conversion Shares in any manner
whatsoever. Lynx: (A) has been represented by independent counsel (or has had the opportunity to consult with independent counsel
and has declined to do so); (B) has had the full right and opportunity to consult with such Lynx’s attorneys and other
advisors and has availed itself of this right and opportunity; (C) has carefully read and fully understands this Agreement, the SEC
Reports and the SEC Financial Statements in their entirety and has had such documents and filings and financial statements fully
explained to it or him by such counsel; (D) is fully aware of the contents hereof and the meaning, intent and legal effect thereof;
and (E) is competent to execute this Agreement and has executed this Agreement free from coercion, duress or undue influence.
4.32 Disclosure.
No representations or warranties by Lynx in this Agreement (including the Lynx Disclosure Schedules) or the Ancillary Documents, (a)
contains or will contain any untrue statement of a material fact, or (b) omits or will omit to state, when read in conjunction with all
of the information contained in this Agreement, the Lynx Disclosure Schedules and the Ancillary Documents, any fact necessary to make
the statements or facts contained therein not materially misleading.
ARTICLE
V COVENANTS
5.1 No
Trading. Lynx acknowledges and agrees that it is aware, and that their respective Affiliates are aware (and each of their respective
Representatives is aware or, upon receipt of any material nonpublic information of the Company, will be advised) of the restrictions imposed
by the Federal Securities Laws and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about
a publicly traded company. Lynx hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase
or sell any securities of the Company (other than acquire the Exchange Shares or Conversion Shares), communicate such information to any
third party, take any other action with respect to the Company in violation of such Laws, or cause or encourage any third party to do
any of the foregoing.
5.2 Public
Announcements. The Parties agree that no public release, filing or announcement concerning this Agreement or the Ancillary Documents
or the transactions contemplated hereby or thereby shall be issued by any Party or any of their Affiliates without the prior written consent
of Lynx and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement
may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use
commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange for any required filing with respect
to, such release or announcement in advance of such issuance.
5.3 Stockholder
Approval. As promptly as practicable following the date of this Agreement, the Company shall prepare and file a preliminary
information statement containing the information specified in Schedule 14C under the Exchange Act in connection with the Stockholder
Approval. The Company shall use its reasonable best efforts to cause the definitive information statement to be filed with the SEC
as contemplated by Rule 14c-2 under the Exchange Act as promptly as practicable following the date on which the SEC has, orally or
in writing, confirmed that it has no further comments on the preliminary information statement or does not intend to review the
preliminary information statement, which confirmations shall be deemed to occur if the SEC has not affirmatively notified the
Company prior to the tenth calendar day after making the initial filing of the preliminary information statement that the SEC will
or will not be reviewing such preliminary information statement. If for any reason the Company cannot obtain Stockholder Approval
via written consent by the holders of a majority of the voting power of the Company’s issued and outstanding capital stock
entitled to vote thereon, the Company shall call a special meeting of stockholders (the “Stockholder
Meeting”) at the earliest practical date following the determination that Stockholder Approval via written consent is
not feasible, and the Company shall file a preliminary and definitive proxy statement for the Stockholder Meeting as promptly as
practicable thereafter and shall hold the Stockholder Meeting for the purpose of obtaining Stockholder Approval, with the
recommendation of the Company’s board of directors to the Company’s stockholders that such stockholders vote in favor of
the matters contemplated by the Stockholder Approval, and the Company shall solicit proxies from its stockholders in connection
therewith, and all management-appointed proxyholders shall vote their proxies in favor of such matters.
5.4 Sales
Volume Limitation. Lynx agrees that it shall not sell Conversion Shares that exceed than ten percent (10%) of the average daily trading
volume of the Class A Shares for the ten (10) consecutive Business Days ending on the last Business Day immediately prior to the date
of any such sale.
5.5 Reservation
of Shares. The Company shall reserve and keep available at all times the requisite aggregate number of authorized but unissued Class
A Shares to enable the Company to timely effect the issuance and delivery of the Conversion Shares to be pursuant to this Agreement and
the Ancillary Documents in full, in any case prior to the issuance to Lynx of the Conversion Shares.
5.6 Nasdaq
Application. The Company shall file with Nasdaq an application for the listing of the Conversion Shares on Nasdaq, and Nasdaq shall
have raised no objection with respect thereto.
5.7 Participation in Future Financing.
(a) From
and after the Closing Date until the 24-month anniversary of the Closing Date, upon any issuance by Lynx of equity interests in Lynx for
cash consideration, indebtedness or a combination thereof (a “Subsequent Financing”), the Company shall have
the right to participate in an aggregate amount of up to 100% of the Subsequent Financing on the same terms, conditions and price provided
for in the Subsequent Financing.
(b) At
least ten (10) Business Days prior to the closing of the Subsequent Financing, Lynx shall deliver to the Company a written notice of its
intention to effect a Subsequent Financing (“Subsequent Financing Notice”), which Subsequent Financing Notice
shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder
and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or
similar document relating thereto as an attachment.
(c) If
the Company desires to participate in such Subsequent Financing. it must provide written notice to Lynx by not later than 5:30 p.m. (Eastern
time) on the fifth (5th) Business Day after the Company has received the Subsequent Financing Notice that the Company is willing to participate
in the Subsequent Financing, the amount of the Company’s participation, and representing and warranting that the Company has such
funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice. If Lynx receives no such
notice from the Company as of such fifth (5th) Business Day, the Company shall be deemed to have notified Lynx that it does not elect
to participate.
(d) If
by 5:30 p.m. Eastern time on the fifth (5th) Business Day after the Company has received the Subsequent Financing Notice, notification
by the Company of its willingness to participate in the Subsequent Financing (or to cause its designees to participate) has been provided,
then Lynx may effect the remaining portion of such Subsequent Financing, if any, on the terms and with the Persons set forth in the Subsequent
Financing Notice.
(e) If the Subsequent
Financing subject to the Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent
Financing Notice within thirty (30) Business Days after the date of the Subsequent Financing Notice, Lynx must provide the Company
with a second Subsequent Financing Notice, and the Company will again have the right of participation set forth above in this Section
5.7.
5.8 Lynx Financials. Lynx shall deliver a copy of the Lynx Financials to the Company by January 31, 2024.
ARTICLE VI
SURVIVAL AND INDEMNIFICATION
6.1 Survival.
(a) All
representations and warranties of Lynx contained in this Agreement (including all schedules and exhibits hereto and all
certificates, documents, instruments and undertakings furnished pursuant to this Agreement) shall survive the Closing through and
until the second (2nd) anniversary of the Closing Date; provided, however, that the representations and warranties
contained in Sections 4.1 (Due Organization and Good Standing), 4.2 (Authorization; Binding Agreement), 4.3
(Capitalization), 4.4 (Subsidiaries), 4.27 (Finders and Investment Bankers), 4.28 (Independent Investigation) 4.30
(Ownership) will survive indefinitely. Additionally, Fraud Claims against Lynx shall survive indefinitely. If written notice of a
claim for breach of any representation or warranty has been given before the applicable date when such representation or warranty no
longer survives in accordance with this Section 6.1(a), then the relevant representations and warranties shall survive as to
such claim, until the claim has been finally resolved. All covenants, obligations and agreements of Lynx contained in this Agreement
(including all schedules and exhibits hereto and all certificates, documents, instruments and undertakings furnished pursuant to
this Agreement) shall survive the Closing and continue until fully performed in accordance with their terms.
(b) The
representations and warranties of the Company contained in this Agreement or in any certificate or instrument delivered pursuant to this
Agreement shall survive the Closing through and until the second (2nd) anniversary of the Closing Date. All covenants, obligations and
agreements of the Company contained in this Agreement (including all schedules and exhibits hereto and all certificates, documents, instruments
and undertakings furnished pursuant to this Agreement) shall survive the Closing and continue until fully performed in accordance with
their terms.
6.2 Indemnification
by Lynx. Subject to the terms and conditions of this Article VI, from and after the Closing, Lynx and its respective successors
and assigns (the “Indemnifying Parties”) will jointly and severally indemnify, defend and hold harmless the
Company and its Affiliates and their respective officers, directors, managers, employees, successors and permitted assigns (the “Indemnified
Parties”) from and against any and all losses, Actions, Orders, Liabilities, damages (including consequential damages),
diminution in value, Taxes, interest, penalties, Liens, amounts paid in settlement, costs and expenses (including reasonable expenses
of investigation and court costs and reasonable attorneys’ fees and expenses), (any of the foregoing, a “Loss”)
paid, suffered or incurred by, or imposed upon, any Indemnified Party to the extent arising in whole or in part out of or resulting directly
or indirectly from (whether or not involving a Third Party Claim): (i) the breach of any representation or warranty made by Lynx as set
forth in this Agreement or in any certificate delivered by Lynx pursuant to this Agreement; (ii) the breach of any covenant or agreement
on the part of Lynx as set forth in this Agreement or in any certificate delivered by Lynx pursuant to this Agreement; (iii) any Action
by Person(s) who were holders of equity securities of Lynx, including options, warrants, convertible debt or other convertible securities
or other rights to acquire equity securities of Lynx, prior to the Closing arising out of the sale, purchase, termination, cancellation,
expiration, redemption or conversion of any such securities; or (iv) any Fraud Claims.
6.3 General Indemnification Provisions.
(a) Solely
for purposes of determining the amount of Losses under this Section 7.3 (and, for the avoidance of doubt, not for purposes of determining
whether there has been a breach giving rise to the indemnification claim), all of the representations, warranties and covenants set forth
in this Agreement (including the Lynx Disclosure Schedules) or any Ancillary Document that are qualified by materiality, Material Adverse
Effect or words of similar import or effect will be deemed to have been made without any such qualification.
(b) No
investigation or knowledge by an Indemnified Party or its Representatives of a breach of a representation, warranty, covenant or
agreement of an Indemnifying Party shall affect the representations, warranties, covenants and agreements of the Indemnifying Party
or the recourse available to the Indemnified Parties under any provision of this Agreement, including this Section 6.3, with
respect thereto.
(c) The
amount of any Losses suffered or incurred by any Indemnified Party shall be reduced by the amount of any insurance proceeds paid to the
Indemnified Party or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to
any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), net of
the costs of collection and the increases in insurance premiums resulting from such Loss or insurance payment.
6.4 Indemnification Procedures.
(a) The
Company shall have the sole right to act on behalf of the Indemnified Parties with respect to any indemnification claims made pursuant
to this Article VI, including bringing and settling any claims hereunder and receiving any notices on behalf of the Indemnified
Parties. Lynx shall have the sole right to act on behalf of the Indemnifying Parties with respect to any indemnification claims made pursuant
to this Article VI, including defending and settling any claims hereunder and receiving any notices on behalf of the Indemnifying
Parties.
(b) In
order to make a claim for indemnification hereunder, the Company on behalf of an Indemnified Party must provide written notice (a “Claim
Notice”) of such claim to Lynx on behalf of the Indemnifying Parties, which Claim Notice shall include (i) a reasonable
description of the facts and circumstances which relate to the subject matter of such indemnification claim to the extent then known and
(ii) the amount of Losses suffered by the Indemnified Party in connection with the claim to the extent known or reasonably estimable (provided,
that the Company may thereafter in good faith adjust the amount of Losses with respect to the claim by providing a revised Claim Notice
to Lynx).
(c) In
the case of any claim for indemnification under this Article VI arising from a claim of a third party (including any
Governmental Authority) (a “Third Party Claim”), the Company must give a Claim Notice with respect to such
Third Party Claim to Lynx promptly (but in no event later than thirty (30) days) after the Indemnified Party’s receipt of
notice of such Third Party Claim; provided, that the failure to give such notice will not relieve the Indemnifying Party of
its indemnification obligations except to the extent that the defense of such Third Party Claim is materially and irrevocably
prejudiced by the failure to give such notice. Lynx will have the right to defend and to direct the defense against any such Third
Party Claim, at its expense and with counsel selected by Lynx, unless (i) Lynx fails to acknowledge fully to the Company the
obligations of the Indemnifying Party to the Indemnified Party within twenty (20) days after receiving notice of such Third Party
Claim or contests, in whole or in part, their indemnification obligations therefor or (ii) at any time while such Third Party Claim
is pending, (A) there is a conflict of interest between Lynx on behalf of the Indemnifying Party and the Company on behalf of the
Indemnified Party in the conduct of such defense, (B) the applicable third party alleges a Fraud Claim or (C) such claim is criminal
in nature, could reasonably be expected to lead to criminal proceedings, or seeks an injunction or other equitable relief against
the Indemnified Party. If Lynx on behalf of the Indemnifying Party elect, and are entitled, to compromise or defend such Third Party
Claim, they will within twenty (20) days (or sooner, if the nature of the Third Party Claim so requires) notify the Company of their
intent to do so, and the Company and the Indemnified Party will, at the request and expense of Lynx, cooperate in the defense of
such Third Party Claim. If Lynx on behalf of the Indemnifying Party elect not to, or at any time are not entitled under this Section
7.4 to, compromise or defend such Third Party Claim, fail to notify the Company of their election as herein provided or refuse
to acknowledge or contest their obligation to indemnify under this Agreement, the Company on behalf of the Indemnified Party may
pay, compromise or defend such Third Party Claim. Notwithstanding anything to the contrary contained herein, the Indemnifying Party
will have no indemnification obligations with respect to any such Third Party Claim which is settled by the Indemnified Party or the
Company without the prior written consent of Lynx on behalf of the Indemnifying Party (which consent will not be unreasonably
withheld, delayed or conditioned); provided, however, that notwithstanding the foregoing, the Indemnified Party will
not be required to refrain from paying any Third Party Claim which has matured by a final, non-appealable Order, nor will it be
required to refrain from paying any Third Party Claim where the delay in paying such claim would result in the foreclosure of a Lien
upon any of the property or assets then held by the Indemnified Party or where any delay in payment would cause the Indemnified
Party material economic loss. Lynx’s right on behalf of the Indemnifying Party to direct the defense will include the right to
compromise or enter into an agreement settling any Third Party Claim; provided, that no such compromise or settlement will
obligate the Indemnified Party to agree to any settlement that requires the taking or restriction of any action (including the
payment of money and competition restrictions) by the Indemnified Party other than the execution of a release for such Third Party
Claim and/or agreeing to be subject to customary confidentiality obligations in connection therewith, except with the prior written
consent of the Company on behalf of the Indemnified Party (such consent to be withheld, conditioned or delayed only for a good faith
reason). Notwithstanding Lynx’s right on behalf of the Indemnifying Party to compromise or settle in accordance with the
immediately preceding sentence, Lynx on behalf of the Indemnifying Party may not settle or compromise any Third Party Claim over the
objection of the Company on behalf of the Indemnified Party; provided, however, that consent by the Company on behalf of the
Indemnified Party to settlement or compromise will not be unreasonably withheld, delayed or conditioned. The Company on behalf of
the Indemnified Party will have the right to participate in the defense of any Third Party Claim with counsel selected by it subject
to Lynx’s right on behalf of the Indemnifying Party to direct the defense.
(d) With
respect to any direct indemnification claim that is not a Third Party Claim, Lynx on behalf of the Indemnifying Party, will have a period
of thirty (30) days after receipt of the Claim Notice to respond thereto. If Lynx on behalf of the Indemnifying Party do not respond within
such thirty (30) days, Lynx on behalf of the Indemnifying Party will be deemed to have accepted responsibility for the Losses set forth
in such Claim Notice subject to the limitations on indemnification set forth in this Article VI and will have no further right
to contest the validity of such Claim Notice. If Lynx on behalf of the Indemnifying Party respond within such thirty (30) days after the
receipt of the Claim Notice and reject such claim in whole or in part, the Company on behalf of the Indemnified Party will be free to
pursue such remedies as may be available under this Agreement, any Ancillary Documents or applicable Law.
ARTICLE
VII
CLOSING CONDITIONS
7.1 Conditions
to Obligations of Lynx. In addition to the conditions specified in Section 7.1, the obligations of Lynx to consummate the transactions
contemplated by this Agreement are subject to the satisfaction or written waiver (by the Company) of the following conditions:
(a) Representations
and Warranties. All of the representations and warranties of the Company set forth in this Agreement and in any certificate delivered
by the Company pursuant hereto shall be true and correct on and as of the date of this Agreement and on and as of the Closing Date as
if made on the Closing Date, except for (i) those representations and warranties that address matters only as of a particular date (which
representations and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that do not materially
and adversely affect the Company’s ability to consummate the transactions contemplated hereby.
(b) Agreements
and Covenants. The Company shall have performed in all material respects all of the Company’s obligations and complied in all
material respects with all of the Company’s agreements and covenants under this Agreement to be performed or complied with by the
Company on or prior to the Closing Date.
(c) No
Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Company (excluding the Subsidiaries of
the Company)) since the date of this Agreement.
(d) Closing Deliveries.
(i) Officer
Certificate. The Company shall have delivered to Lynx a certificate, dated as of the Closing Date, signed by an executive officer
of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Sections 7.1(a), 7.2(b)
and 7.2(c).
(ii) Secretary
Certificate. The Company shall have delivered to Lynx a certificate from its secretary certifying as to (A) copies of the
Company’s Organizational Documents as in effect as of the Closing Date, (B) the resolutions of the Company’s board of
directors authorizing the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a
party or by which it is bound, and the consummation of the transactions contemplated hereby and thereby and (C) the incumbency of
officers authorized to execute this Agreement or any Ancillary Document to which the Company is or is required to be a party or
otherwise bound.
(iii) Good
Standing. The Company shall have delivered to Lynx a good standing certificate for the Company certified as of the Closing Date from
the proper Governmental Authority of the Company’s jurisdiction of organization.
(iv) Share
Certificates and Transfer Instruments. Lynx shall have received from the Company share certificates representing the Exchange Shares
(or duly executed affidavits of lost stock certificates and indemnities in forms and substance reasonably acceptable to Lynx), together
with executed instruments of transfer in respect of the Exchange Shares in favor of Lynx (or its nominee) and in form reasonably acceptable
for transfer on the books of Lynx.
(v) Certificate
of Designations. The Company shall have delivered evidence that the Company has filed the Certificate of Designations with the Secretary
of State of the State of Delaware.
(v) Registration
Rights Agreement. The Company shall have delivered to Lynx a counterpart signature to the Registration Rights Agreement, which shall
have been duly executed by the Company.
(vi) Board
Designation Agreement. The Company shall have delivered to Lynx a counterpart signature to the Board Designation Agreement, which
shall have been duly executed by the Company.
(vii) Promissory
Note Proceeds. The Company shall have delivered to Lynx an amount equal to $250,000 in immediately available funds by wire transfer
to the account specified in writing by Lynx.
7.2 Conditions
to Obligations of the Company. In addition to the conditions specified in Section 8.1, the obligations of the Company to consummate
the transactions contemplated by this Agreement are subject to the satisfaction or written waiver (by the Company) of the following conditions:
(a) Representations
and Warranties. All of the representations and warranties of Lynx set forth in this Agreement and in any certificate delivered by
Lynx pursuant hereto shall be true and correct on and as of the date of this Agreement and on and as of the Closing Date as if made on
the Closing Date, except for (i) those representations and warranties that address matters only as of a particular date (which representations
and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that (without giving effect to
any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate, have not had and would
not reasonably be expected to have a Material Adverse Effect on, or with respect to, Lynx or adversely affects Lynx’s ability to
consummate the transactions contemplated hereby.
(b) Agreements
and Covenants. Lynx shall have performed in all material respects all of such Party’s obligations and complied in all material
respects with all of such Party’s agreements and covenants under this Agreement to be performed or complied with by it on or prior
to the Closing Date.
(c) No
Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to Lynx since the date of this Agreement.
(d) Closing Deliveries.
(i) Officer
Certificate. Lynx shall have delivered to the Company a certificate, dated as the Closing Date, signed by an executive officer of
Lynx in such capacity, certifying as to the satisfaction of the conditions specified in Sections 7.2(a), 7.3(b) and 7.3(c).
(ii) Secretary
Certificate. Lynx shall have delivered to the Company a certificate from its secretary certifying as to (A) copies of the Lynx’s
Organizational Documents as in effect as of the Closing Date, (B) the resolutions of the Lynx’s board of directors and shareholders
authorizing the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by
which it is bound, and the consummation of the transactions contemplated hereby and thereby, and (C) the incumbency of officers authorized
to execute this Agreement or any Ancillary Document to which Lynx is or is required to be a party or otherwise bound.
(iii) Good
Standing. Lynx shall have delivered to the Company a good standing certificate for Lynx certified as of the Closing Date from the
proper Governmental Authority of Lynx’s jurisdiction of organization.
(iv) Share
Certificates and Transfer Instruments. The Company shall have received from Lynx share certificates representing the Purchased Shares
(or duly executed affidavits of lost stock certificates and indemnities in forms and substance reasonably acceptable to the Company),
together with executed instruments of transfer in respect of the Purchased Shares in favor of the Company (or its nominee) and in form
reasonably acceptable for transfer on the books of the Company.
(v) Registration
Rights Agreement. Lynx shall have delivered to the Company a counterpart signature to the Registration Rights Agreement, which shall
have been duly executed by Lynx.
(vi) Board
Designation Agreement. Lynx shall have delivered to the Company a counterpart signature to the Board Designation Agreement, which
shall have been duly executed Lynx.
(vii) Promissory
Note. Lynx shall have delivered to the Company the Promissory Note, which shall have been duly executed by Lynx.
7.4 Frustration
of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth
in this Article VII to be satisfied if such failure was caused by the failure of such Party or its Affiliates (or with respect
to the Company or Lynx) to comply with or perform any of its covenants or obligations set forth in this Agreement.
ARTICLE VIII
TERMINATION AND EXPENSES
8.1 Termination.
This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) by mutual written consent of Lynx and the Company;
(b) by
written notice by Lynx, if (i) there has been a breach by the Company of any of its representations, warranties, covenants or agreements
contained in this Agreement, or if any representation or warranty of the Company shall have become untrue or inaccurate, in any case,
which would result in a failure of a condition set forth in Section 7.1(a) or Section 7.1(b) to be satisfied (treating the
Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy
is incapable of being cured or is not cured within five (5) Business Days after written notice of such breach or inaccuracy is provided
by the Lynx; provided, that Lynx shall not have the right to terminate this Agreement pursuant to this Section 8.1(b) if
at such time Lynx is in material uncured breach of this Agreement; or
(c) by
written notice by the Company, if (i) there has been a breach by Lynx of any of its representations, warranties, covenants or agreements
contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case,
which would result in a failure of a condition set forth in Section 7.2(a) or Section 7.2(b) to be satisfied (treating the
Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy
is incapable of being cured or is not cured within five (5) Business Days after written notice of such breach or inaccuracy is provided
by the Company; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(c)
if at such time the Company is in material uncured breach of this Agreement.
8.2 Fees
and Expenses. All expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by
the Party incurring such expenses. As used in this Agreement, “expenses” shall include all out-of-pocket
expenses (including all fees and expenses of counsel, accountants, investment bankers, financial advisors, financing sources,
experts and consultants to a Party hereto or any of its Affiliates) incurred by a Party or on its behalf in connection with or
related to the authorization, preparation, negotiation, execution or performance of this Agreement or any Ancillary Document related
hereto and all other matters related to the consummation of this Agreement.
ARTICLE
IX
MISCELLANEOUS
9.1 Notices.
All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when
delivered (i) in person, (ii) by facsimile or other electronic means, with affirmative confirmation of receipt, (iii) one Business Day
after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed,
if sent by registered or certified mail, pre- paid and return receipt requested, in each case to the applicable Party at the following
addresses (or at such other address for a Party as shall be specified by like notice):
If to the Company, to:
Nxu, Inc.
1828 N. Higley Road, Suite 116
Mesa, Arizona 85205
Attention: Jordan Christensen, Chief Legal Officer
With copies to:
Michael J. Blankenship
Justin F. Hoffman
Winston &
Strawn LLP
800 Capitol St., Suite 2400
Houston, Texas 77002-2925
(713) 651-2600
If to Lynx, to:
Lynks Motor Corporation
3267 Bee Caves Rd., Suite 107-247,
Austin, TX 78746
Attention: Christian Okonsky, Chairman
9.2 Binding
Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without
the prior written consent of the Company and Lynx, and any assignment without such consent shall be null and void; provided that
no such assignment shall relieve the assigning Party of its obligations hereunder.
9.3 Third
Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions
contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party
hereto or thereto or a successor or permitted assign of such a Party.
9.4 Governing
Law; Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of
Delaware without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall
be heard and determined exclusively in any state or federal court located in Delaware (or in any court in which appeal from such
courts may be taken) (the “Specified Courts”). Each Party hereto hereby (a) submits to the exclusive
jurisdiction of any Specified Court for the purpose of any Action arising out of or relating to this Agreement brought by any Party
hereto and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim
that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from
attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court. Each Party agrees that a final
judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law. Each Party irrevocably consents to the service of the summons and complaint and any other process in any other
action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal
delivery of copies of such process to such Party at the applicable address set forth in Section 11.1. Nothing in this Section
11.4 shall affect the right of any Party to serve legal process in any other manner permitted by Law.
9.5 WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 11.6.
9.6 Specific
Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique,
recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching
Parties may have not adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly,
each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically
the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate,
this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
9.7 Severability.
In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified
or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity,
legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity,
legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision
a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid,
illegal or unenforceable provision.
9.8 Amendment.
This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by Lynx and the Company.
9.9 Waiver.
The Company on behalf of itself and its Affiliates, on the one hand, and Lynx on behalf of itself and its Affiliates, may in its sole
discretion (i) extend the time for the performance of any obligation or other act of any other non-Affiliated Party hereto, (ii) waive
any inaccuracy in the representations and warranties by such other non-Affiliated Party contained herein or in any document delivered
pursuant hereto and (iii) waive compliance by such other non-Affiliated Party with any covenant or condition contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby. Notwithstanding
the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9.10 Entire
Agreement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached hereto,
which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement
and understanding of the Parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred
to herein, which collectively supersede all prior agreements and the understandings among the Parties with respect to the subject matter
contained herein.
9.12 Interpretation.
The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement,
unless the context otherwise requires: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes
such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and
reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise
defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP; (d) “including”
(and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding
such term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,”
“hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer
to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (f) the word “if” and
other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (g)
the term “or” means “and/or”; (h) any reference to the term “ordinary course” or “ordinary course
of business” shall be deemed in each case to be followed by the words “consistent with past practice”; (i) any agreement,
instrument, insurance policy, Law or Order defined or referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in
the case of agreements or instruments) by waiver or consent and (in the case of statutes, regulations, rules or orders) by succession
of comparable successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated
therein; (j) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article”,
“Schedule”, and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement;
and (k) the term “Dollars” or “$” means United States dollars. Any reference in this Agreement to a Person’s
directors shall include any member of such Person’s governing body and any reference in this Agreement to a Person’s officers
shall include any Person filling a substantially similar position for such Person. Any reference in this Agreement or any Ancillary Document
to a Person’s shareholders shall include any applicable owners of the equity interests of such Person, in whatever form, including
with respect to the Company its shareholders under the DGCL or its Organizational Documents. The Parties have participated jointly in
the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provision of this Agreement.
9.12 Counterparts.
This Agreement may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and
by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
ARTICLE
X
DEFINITIONS
10.1 Certain
Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“Action”
means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint,
stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation,
by or before any Governmental Authority.
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such
Person.
“Ancillary
Documents” means each agreement, instrument or document attached hereto as an Exhibit, including the Registration Rights
Agreement, the Board Designation Agreement, the Certificate of Designations and the Promissory Note, and the other agreements, certificates
and instruments to be executed or delivered by any of the Parties in connection with or pursuant to this Agreement.
“Benefit
Plans” of any Person means any and all deferred compensation, executive compensation, incentive compensation, equity purchase
or other equity-based compensation plan, employment or consulting, severance or termination pay, holiday, vacation or other bonus plan
or practice, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, or
retirement plan, program, agreement, commitment or arrangement, and each other employee benefit plan, program, agreement or arrangement,
including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to or
required to be contributed to by a Person for the benefit of any employee or terminated employee of such Person, or with respect to which
such Person has any Liability, whether direct or indirect, actual or contingent, whether formal or informal, and whether legally binding
or not.
“Board
Designation Agreement” means the Board Designation Agreement to be dated the Closing Date and entered into by and between
Lynx and the Company, the form of which is attached as Exhibit B hereto.
“Business Day”
means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized
to close for business.
“Certificate of Designations”
means the Certificate of Designations to create the series of preferred stock constituting the Exchange Shares, the form of which is
attached as Exhibit C.
“Class A Shares” means the shares
of Class A common stock, $0.0001 per share, of the Company.
“Code”
means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended. Reference to a specific section of
the Code shall include such section and any valid treasury regulation promulgated thereunder.
“Company Charter” means the certificate
of incorporation of the Company, effective under the
DGCL.
“Consent”
means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority
or any other Person.
“Contracts”
means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses
(and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments
or obligations of any kind, written or oral (including any amendments and other modifications thereto).
“Control”
of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled”, “Controlling”
and “under common Control with” have correlative meanings. Without limiting the foregoing a Person (the “Controlled
Person”) shall be deemed Controlled by (a) any other Person (the “10% Owner”) (i) owning beneficially,
as meant in Rule 13d-3 under the Exchange Act, securities entitling such Person to cast ten percent (10%) or more of the votes for election
of directors or equivalent governing authority of the Controlled Person or (ii) entitled to be allocated or receive ten percent (10%)
or more of the profits, losses, or distributions of the Controlled Person; (b) an officer, director, general partner, partner (other than
a limited partner), manager, or member (other than a member having no management authority that is not a 10% Owner) of the Controlled
Person; or (c) a spouse, parent, lineal descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law,
or brother-in-law of an Affiliate of the Controlled Person or a trust for the benefit of an Affiliate of the Controlled Person or of which
an Affiliate of the Controlled Person is a trustee.
“Conversion
Shares” means the Class A Shares issuable upon conversion of the Exchange Shares pursuant to the terms of the Certificate
of Designations, without giving effect to any limitation or restriction on the conversion of the Exchange Shares.
“Copyrights”
means any works of authorship, mask works and all copyrights therein, including all renewals and extensions, copyright registrations and
applications for registration and renewal, and non-registered copyrights.
“DGCL” means the General Corporation
Law of the State of Delaware.
“Environmental
Law” means any Law in any way relating to (a) the protection of human health and safety, (b) the protection, preservation
or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling,
treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials.
“Environmental
Liabilities” means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Actions, Losses,
damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, and consultants and costs
of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand by any
other Person or in response to any violation of Environmental Law, whether known or unknown, accrued or contingent, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute, to the extent based upon, related to, or arising under
or pursuant to any Environmental Law, Environmental Permit, Order, or Contract with any Governmental Authority or other Person, that relates
to any environmental, health or safety condition, violation of Environmental Law, or a Release or threatened Release of Hazardous Materials.
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended. “Exchange Act” means the Securities Exchange Act of 1934,
as amended.
“Fraud
Claim” means any claim based in whole or in part upon fraud, willful misconduct or intentional misrepresentation.
“GAAP” means generally accepted
accounting principles as in effect in the United States of America.
“Governmental
Authority” means any federal, state, local, foreign or other governmental, quasi- governmental or administrative body, instrumentality,
department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body.
“Hazardous
Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous
substance”, “pollutant”, “contaminant”, “hazardous waste”, “regulated substance”,
“hazardous chemical”, or “toxic chemical” (or by any similar term) under any Environmental Law, or any other material
regulated, or that could result in the imposition of Liability or responsibility, under any Environmental Law, including petroleum and
its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
“Indebtedness”
of any Person means (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid
interest) or for the deferred purchase price of property or services, (b) any other indebtedness of such Person that is evidenced by a
note, bond, debenture, credit agreement or similar instrument, (c) all obligations of such Person under leases that should be classified
as capital leases in accordance with GAAP, (d) all obligations of such Person for the reimbursement of any obligor on any line or letter
of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (e)
all obligations of such Person in respect of acceptances issued or created, (f) all interest rate and currency swaps, caps, collars and
similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening
of a contingency, (g) all obligations secured by an Lien on any property of such Person and (h) any premiums, prepayment fees or other
penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (h) all obligation described in clauses
(a) through (g) above of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently
or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
“Intellectual
Property” means all of the following as they exist in any jurisdiction throughout the world: Patents, Trademarks, Copyrights,
Trade Secrets, Internet Assets, and other intellectual property, and all licenses, sublicenses and other agreements or permissions related
to the preceding property.
“Internet
Assets” means any all domain name registrations, web sites and web pages and related rights, items and documentation related
thereto.
“Knowledge”
means, with respect to (i) Lynx the actual knowledge of the executive officers or directors of Lynx after due inquiry or (ii) any other
Party, the actual knowledge of its directors and executive officers, after due inquiry.
“Law”
means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict,
decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that
is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the
authority of any Governmental Authority.
“Liabilities”
means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise,
whether known or unknown, whether direct or indirect, whether matured or unmatured and whether due or to become due), including Tax liabilities
due or to become due.
“Lien”
means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or charge
of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on
voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, any filing or agreement to
file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Lynx” means
each of Lynx and its direct and indirect Subsidiaries (if any).
“Lynx
Charter” means the certificate of incorporation of Lynx, effective under applicable Laws. “Lynx
Confidential Information” means all confidential or proprietary documents and information concerning Lynx or any of
its respective Representatives, furnished in connection with this Agreement or the transactions contemplated hereby; provided, however,
that Lynx Confidential Information shall not include any information which, (i) at the time of disclosure by Lynx, the Company, is
generally available publicly and was not disclosed in breach of this Agreement or (ii) at the time of the disclosure by Lynx or its
Representatives to the Company or its Representatives was previously known by such receiving party without violation of Law or any
confidentiality obligation by the Person receiving such Lynx Confidential Information.
“Material
Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has
had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business,
assets, Liabilities, results of operations, prospects or condition (financial or otherwise) of such Person and its Subsidiaries,
taken as a whole, or (b) the ability of such Person or any of its Subsidiaries on a timely basis to consummate the transactions
contemplated by this Agreement or the Ancillary Documents to which it is a party or bound or to perform its obligations hereunder or
thereunder; provided, however, that any changes or effects directly or indirectly attributable to, resulting from,
relating to or arising out of the following (by themselves or when aggregated with any other, changes or effects) shall not be
deemed to be, constitute, or be taken into account when determining whether there has or may, would or could have occurred a
Material Adverse Effect: (i) general changes in the financial or securities markets or general economic or political conditions in
the country or region in which such Person or any of its Subsidiaries do business; (ii) changes, conditions or effects that
generally affect the industries in which such Person or any of its Subsidiaries principally operate; (iii) changes in GAAP or other
applicable accounting principles or mandatory changes in the regulatory accounting requirements applicable to any industry in which
such Person and its Subsidiaries principally operate; (iv) conditions caused by acts of God, terrorism, war (whether or not
declared) or natural disaster; (v) any failure in and of itself by such Person and its Subsidiaries to meet any internal or
published budgets, projections, forecasts or predictions of financial performance for any period (provided that the underlying cause
of any such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected
to occur to the extent not excluded by another exception herein); provided further, however, that any event,
occurrence, fact, condition, or change referred to in clauses (i) - (iv) immediately above shall be taken into account in
determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event,
occurrence, fact, condition, or change has a disproportionate effect on such Person or any of its Subsidiaries compared to other
participants in the industries in which such Person or any of its Subsidiaries primarily conducts its businesses.
“Nasdaq” means The Nasdaq Stock
Market LLC.
“Organizational
Documents” means, with respect to the Company, the Company Charter and the Company’s Bylaws, and with respect to Lynx,
the Lynx Charter and Lynx’s Bylaws, or similar organizational documents, in each case, as amended.
“Order”
means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action
that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Patents”
means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions,
and other patent rights (including any divisionals, provisionals, continuations, continuations-in-part, substitutions, or reissues thereof,
whether or not patents are issued on any such applications and whether or not any such applications are amended, modified, withdrawn,
or refiled).
“Permits”
means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions,
licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations,
ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Permitted
Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent
or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto,
(b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and as
would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject
thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection with social security, (d) Liens on goods
in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, or
(v) Liens arising under this Agreement
or any Ancillary Document.
“Person”
means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership),
limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political
subdivision thereof, or an agency or instrumentality thereof.
“Personal
Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts
and other tangible personal property.
“Promissory
Note” means the Promissory Note to be dated the Closing Date and issued by Lynx to the Company, the form of which is attached
as Exhibit D hereto.
“Registration Rights Agreement”
means the Registration Rights Agreement to be dated the Closing Date and entered into by and between Lynx and the Company, the form of
which is attached as Exhibit A hereto.
“Release”
means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor
or outdoor environment, or into or out of any property.
“Remedial
Action” means all actions to (i) clean up, remove, treat, or in any other way address any Hazardous Material, (ii) prevent
the Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the indoor or outdoor
environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct a condition of
noncompliance with Environmental Laws.
“Representative”
means, as to any Person, such Person’s Affiliates and its and their managers, directors, officers, employees, agents and advisors
(including financial advisors, counsel and accountants).
“SEC” means the Securities and
Exchange Commission (or any successor Governmental Authority).
“Securities Act”
means the Securities Act of 1933, as amended. “SOX” means the Sarbanes-Oxley Act of 2002, as amended.
“Stockholder
Approval” means the approval by the Company’s stockholders, in accordance with Nasdaq’s listing rules, of the
issuance of the Conversion Shares that are in excess of the maximum number of Class A Shares permitted to be issued without such approval
under Nasdaq’s listing rules.
“Subsidiary”
means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a
majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority
of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person
or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a
majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority
of partnership, association or other business entity gains or losses or will be or control the managing director, managing member, general
partner or other managing Person of such partnership, association or other business entity.
“Tax
Return” means any return, declaration, report, claim for refund, information return or other documents (including any related
or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or
collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes”
means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added,
ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and
related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property,
windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment
of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for
any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as a
result of any tax sharing, tax group, tax indemnity or tax allocation agreement with, or any other express or implied agreement to indemnify,
any other Person.
“Trade
Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development information,
processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods,
know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, and other proprietary rights (whether or
not patentable or subject to copyright, trademark, or trade secret protection).
“Trademarks”
means any trademarks, service marks, trade dress, trade names, brand names, internet domain names, designs, logos, or corporate names
(including, in each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications
for registration and renewal thereof.
10.2 Section
References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in the Section
as set forth below adjacent to such terms:
Term | |
Section | |
Accounts Receivable | |
4.25 | |
Agreement | |
Preamble | |
Closing | |
2.1 | |
Closing Date | |
2.1 | |
Company | |
Preamble | |
Enforceability Exceptions | |
3.2 | |
Environmental Permit | |
4.20(a) | |
Exchange Shares | |
Preamble | |
expenses | |
8.2 | |
Formation Date | |
Article IV | |
Interim Balance Sheet Date | |
4.7(a) | |
Lynx Benefit Plan | |
4.19(a) | |
Lynx Disclosure Schedules | |
Article IV | |
Lynx Financials | |
4.7(a) | |
Lynx IP | |
4.13(c) | |
Lynx IP Licenses | |
4.13(a) | |
Lynx Material Contract | |
4.12(a) | |
Lynx Permits | |
4.10 | |
Lynx Personal Property Leases | |
4.16 | |
Lynx Real Property Leases | |
4.15 | |
Lynx Registered IP | |
4.13(a) | |
Party(ies) | |
Preamble | |
Public Certifications | |
3.6(a) | |
Purchased Shares | |
Preamble | |
Company Financials | |
3.6(b) | |
Related Person | |
4.21 | |
SEC Reports | |
3.6(a) | |
Specified Courts | |
9.4 | |
Top Customers | |
4.23 | |
Top Suppliers | |
4.23 | |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, each Party hereto
has caused this Agreement to be signed and delivered by its respective duly authorized officer as of the date first written above.
|
NXU, INC. |
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By: |
/s/ Mark Hanchett |
|
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Name: Mark Hanchett |
|
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Title: Chief Executive Officer |
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LY NKS MOTOR CORPORATION |
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By: |
/s/ Rod Keller |
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Name: Rod Keller |
|
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Title: Chief Executive Officer |
| 31 [Signature Page to Share Exchange Agreement] | |
EXHIBIT A
Form of Registration Rights
Agreement
REGISTRATION RIGHTS AGREEMENT
This Registration
Rights Agreement (this “Agreement”) is made as of December 27, 2023, by and between Nxu, Inc., a Delaware corporation
(the “Company”), and Lynks Motor Corporation, a Delaware corporation d/b/a Lynx Motors (“Lynx”
and together with those Persons who agree to become bound by the provisions of this Agreement in accordance with Section 3.5, collectively,
the “Holders”). The Company and the Holders are sometimes referred to herein individually as a “Party”
and, collectively, as the “Parties”. Capitalized terms used but not defined herein shall have the meaning assigned
to such term in the Share Exchange Agreement, dated as of the date hereof, by and between the Parties (the “Share Exchange
Agreement”).
RECITALS
WHEREAS, pursuant to, and subject
to the terms and conditions of, the Share Exchange Agreement, Lynx has agreed to sell to Nxu, and Nxu has agreed to purchase from Lynx,
a number of newly issued shares of common stock, par value $0.001 per share, of Lynx representing 15% of the issued and outstanding equity
interests in Lynx as of, and after giving effect to, the closing of the transactions contemplated by the Share Exchange Agreement (the
“Closing”) in exchange for an aggregate of 1,000 newly issued shares of Series A convertible preferred stock,
par value $0.0001 per share, of Nxu, which shall be convertible into Class A Shares upon the terms and subject to the conditions set forth
in the Certificate of Designation; and
WHEREAS, to induce the Parties to
enter into the transactions contemplated by the Share Exchange Agreement, each of the Parties is required to deliver this Agreement, duly
executed by each of the Parties, contemporaneously with the Closing.
NOW, THEREFORE,
in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by each of the Parties hereto, the Parties hereby agree as follows:
Section
1.
Definitions
1.1. Certain
Definitions. In addition to the terms defined elsewhere in this Agreement, as used in this Agreement, the following terms have the
respective meanings set forth below:
(a) “Board” shall mean the Board of Directors of the Company.
(b) “Commission”
shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.
(c) “Common Stock” shall mean the Class A common stock of the Company, par value $0.0001 per
share.
(d) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, or any similar successor federal statute and the rules
and regulations thereunder, all as the same shall be in effect from time to time.
(e) “Governmental
Entity” shall mean any federal, state, local or foreign government, or any department, agency, or instrumentality of any
government; any public international organization; any transnational governmental organization; any court of competent jurisdiction, arbitral,
administrative agency, commission, or other governmental regulatory authority or quasi-governmental authority; any political party; and
any national securities exchange or national quotation system.
(f) “Other Securities” shall mean securities of the Company, other than Registrable Securities.
(g) “Person”
shall mean any individual, partnership, corporation, company, association, trust, joint venture, limited liability company, unincorporated
organization, entity or division, or any government, governmental department or agency or political subdivision thereof.
(h) “Registrable
Securities” shall mean (i) shares of Common Stock underlying the Series A Preferred Shares issued or issuable pursuant to,
and in accordance with, the Share Exchange Agreement and (ii) any and all shares of Common Stock issued or issuable as (or issuable upon
the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, any shares of Common Stock referred to in any of the foregoing clause (i), including, without
limitation, by way of stock splits, stock dividends, stock combinations, recapitalizations or like occurrences. Registrable Securities
shall cease to be Registrable Securities upon the earliest to occur of the following events: (1) such Registrable Securities have been
sold pursuant to an effective Registration Statement; (2) such Registrable Securities have been sold by the Holders pursuant to Rule 144
(or other similar rule); (3) such Registrable Securities may be resold by the Holder holding such Registrable Securities without limitations
as to volume or manner of sale pursuant to Rule 144; or (4) three (3) years after the date of this Agreement.
(i) The
terms “register,” “registered” and “registration” shall
refer to a registration effected by preparing and filing a Registration Statement in compliance with the Securities Act, and such Registration
Statement becoming effective under the Securities Act.
(j) “Registration
Expenses” shall mean all expenses incurred by the Company in effecting any registration pursuant to this Agreement, including,
without limitation, all registration, qualification, and filing fees, printing expenses, and fees and disbursements of counsel for the
Company, but shall not include Selling Expenses.
(k) “Registration
Statement” means any registration statement of the Company filed with, or to be filed with, the Commission under the Securities
Act, including the related prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments,
and all exhibits and all material incorporated by reference in such registration statement as may be necessary to comply with applicable
securities laws, other than a registration statement (and related prospectus) filed on Form S-4 or Form S-8 or any successor forms thereto.
(l) “Rule
144” shall mean Rule 144 as promulgated by the Commission under the Securities Act, as such rule may be amended from time
to time, or any similar successor rule that may be promulgated by the Commission having substantially the same effect as such rule.
(m) “Securities
Act” shall mean the Securities Act of 1933, as amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(n) “Selling
Expenses” shall mean all underwriting discounts and selling commissions applicable to the sale of Registrable Securities,
the fees and expenses of any legal counsel and any other advisors any of the Holders engage and all similar fees and commissions relating
to the Holders’ disposition of the Registrable Securities.
(o) “Series
A Preferred” shall mean the Series A preferred stock, par value $0.0001 per share, of the Company.
Section 2.
Resale Registration Rights
2.1. Resale Registration Rights.
(a) On
or prior to the 45th calendar day following the date hereof, the Company shall prepare and file with the Commission a Registration
Statement on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in
which case such registration shall be on another appropriate form in accordance with the Securities Act) covering the resale of the
Registrable Securities by the Holders (the “Resale Registration Shelf”). The Resale Registration Shelf
shall include a “final” prospectus, including the information required by Item 507 of Regulation S-K of the Securities
Act, as provided by the Holders in accordance with Section 2.6. The Company’s obligation pursuant to this Section
2.1(a) is conditioned upon the Holders providing the information contemplated in Section 2.6. If the staff of the
Commission (the “Staff”) or the Commission seeks to characterize any offering pursuant to the Resale
Registration Shelf as constituting an offering of securities that does not permit such Resale Registration Shelf to become effective
and be used for resales by the Holders under Rule 415, or if after the filing of the Resale Registration Shelf with the Commission
pursuant to this Section 2.1(a), the Company is otherwise required by the Staff or the Commission to reduce the number of
Registrable Securities included in the Resale Registration Shelf, then the Company shall reduce the number of Registrable Securities
to be included in the Resale Registration Shelf until the Staff and the Commission shall so permit the Resale Registration Shelf to
become effective and be used as aforesaid. In the event of any reduction in Registrable Securities pursuant to the immediately
preceding sentence, the Company shall file, as soon as permitted by the Staff or the Commission, one or more additional Registration
Statements on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in
which case such registration shall be on another appropriate form in accordance with the Securities Act) covering the resale of
Registrable Securities by the Holders that have not previously been registered under the Securities Act for resale by the Holders
pursuant to Rule 415 until such time as all Registrable Securities have been included in such additional Registration Statement (or
in one of such additional Registration Statements) that has or have been declared effective and the prospectus contained therein is
available for use by the Holders. The provisions of this Agreement that are applicable to the Resale Registration Shelf shall also
be applicable to such additional Registration Statement or each of such additional Registration Statements to the same extent as if
such additional Registration Statement were the Resale Registration Shelf. Notwithstanding any provision in this Agreement to the
contrary, the Company’s obligations to register Registrable Securities (and any related conditions to the Holder’s
obligations) pursuant to this Agreement shall be qualified as necessary to comport with any requirement of the Commission or the
Staff as addressed above in this Section 2.1(a).
(b) The
Company shall use commercially reasonable efforts to cause the Resale Registration Shelf and related prospectuses to become effective
as promptly as practicable after filing (if not automatically effective upon filing). The Company shall use commercially reasonable efforts
to cause the Resale Registration Shelf to remain effective under the Securities Act until the earlier of the date (i) all Registrable
Securities covered by the Resale Registration Shelf have been sold or may be sold freely without limitations or restrictions as to volume
or manner of sale pursuant to Rule 144 or (ii) all Registrable Securities covered by the Resale Registration Shelf otherwise cease to
be Registrable Securities pursuant to the definition of “Registrable Securities”. The Company shall promptly, and within two
(2) business days after the Company confirms effectiveness of the Resale Registration Shelf with the Commission, notify the Holders of
the effectiveness of the Resale Registration Shelf.
(c) Deferral
and Suspension. At any time after being obligated to file the Resale Registration Shelf, or after the Resale Registration Shelf has
become effective, the Company may defer the filing of or suspend the use of the Resale Registration Shelf, upon giving written notice
of such action to the Holders with a certificate signed by the Principal Executive Officer of the Company stating that in the good faith
judgment of the Board, the filing or use of the Resale Registration Shelf would be seriously detrimental to the Company or its stockholders
at such time and that the Board concludes, as a result, that it is in the best interests of the Company and its stockholders to defer
the filing or suspend the use of the Resale Registration Shelf at such time. The Company shall have the right to defer the filing of or
suspend the use of the Resale Registration Shelf for a period of not more than one hundred twenty (120) days from the date the Company
notifies the Holders of such deferral or suspension; provided that the Company shall not exercise the right contained in this Section
2.1(c) more than once in any twelve (12) month period. In the case of the suspension of use of any effective Resale Registration Shelf,
the Holders, immediately upon receipt of notice thereof from the Company, shall discontinue any offers or sales of Registrable Securities
pursuant to the Resale Registration Shelf until advised in writing by the Company that the use of the Resale Registration Shelf may be
resumed. In the case of either a suspension of use of, or deferred filing of, the Resale Registration Shelf, the Company shall not, during
the pendency of such suspension or deferral, engage in any transaction involving the offer, be required to take any action hereunder with
respect to the registration or sale of any Registrable Securities pursuant to the Resale Registration Shelf.
(d) Other
Securities. The Resale Registration Shelf may include Other Securities; provided such Other Securities are excluded first from
the Resale Registration Shelf in order to comply with any applicable laws or request from any Governmental Entity, the New York Stock
Exchange or any applicable listing agency.
2.2. Fees
and Expenses. All Registration Expenses incurred in connection with registrations pursuant to this Agreement shall be borne by the
Company. All Selling Expenses relating to securities registered on behalf of the Holders shall be borne by the Holders.
2.3. Registration
Procedures. In the case of each registration of Registrable Securities effected by the Company pursuant to Section 2.1 hereof,
the Company shall keep the Holders advised as to the initiation of each such registration and as to the status thereof, and the Company
shall use commercially reasonable efforts, within the limits set forth in this Section 2.3, to:
(a) prepare
and file with the Commission such amendments and supplements to the applicable Registration Statement and the prospectuses used in connection
with such Registration Statement, as may be necessary to keep such Registration Statement effective and current and comply with the provisions
of the Securities Act with respect to the disposition of all securities covered by such Registration Statement;
(b) furnish
to the Holders such numbers of copies of a prospectus, including preliminary prospectuses, in conformity with the requirements of the
Securities Act, and such other documents as the Holders may reasonably request in order to facilitate the disposition of Registrable Securities;
(c) use
commercially reasonable efforts to register and qualify (or file an exemption from such registration or qualification) the Registrable
Securities covered by the applicable Registration Statement under such other securities or blue sky laws of such jurisdictions in the
United States as shall be reasonably requested by the Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;
(d) notify
the Holders at any time when a prospectus relating to the applicable Registration Statement covering any Registrable Securities is required
to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. The Company shall
use commercially reasonable efforts to amend or supplement such prospectus in order to cause such prospectus not to include any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing;
(e) provide
a transfer agent and registrar for all Registrable Securities registered pursuant to the applicable Registration Statement and, if required,
a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration; and
(f) cause
all such Registrable Securities included in the applicable Registration Statement pursuant to this Agreement to be listed on each securities
exchange or other securities trading markets on which Common Stock is then listed.
2.4. Obligations
of the Holders.
(a) Discontinuance
of Distribution. The Holders agree that, upon receipt of any notice from the Company of the occurrence of any event of the kind described
in Section 2.3(d) hereof, the Holders shall immediately discontinue disposition of Registrable Securities pursuant to any Registration
Statement covering such Registrable Securities until the Holders’ receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.3(d) hereof or receipt of notice that no supplement or amendment is required and that the Holders’
disposition of the Registrable Securities may be resumed. The Company may provide appropriate stop orders to enforce the provisions of
this Section 2.4(a).
(b) Compliance
with Prospectus Delivery Requirements. The Holders covenant and agree that they shall comply with the prospectus delivery requirements
of the Securities Act as applicable to them or an exemption therefrom in connection with sales of Registrable Securities pursuant to any
Registration Statement filed by the Company pursuant to this Agreement.
(c) Notification
of Sale of Registrable Securities. The Holders covenant and agree that they shall notify the Company following the sale of Registrable
Securities to a third party as promptly as reasonably practicable, and in any event within thirty (30) days, following the sale of such
Registrable Securities.
2.5. Indemnification.
(a) To
the extent permitted by law, the Company shall indemnify the Holders, and, as applicable, their officers, directors and constituent partners,
legal counsel for each Holder and each Person controlling the Holders, with respect to which registration, related qualification, or related
compliance of Registrable Securities has been effected pursuant to this Agreement, and each underwriter, if any, and each Person who controls
any underwriter within the meaning of the Securities Act, against all claims, losses, damages, or liabilities (or actions in respect thereof)
to the extent such claims, losses, damages, or liabilities arise out of or are based upon (i) any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or other document (including any related Registration Statement) incident to
any such registration, qualification, or compliance, or (ii) any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities law applicable to the Company and relating to action or inaction required of the Company in connection
with any such registration, qualification, or compliance; and the Company shall pay as incurred to the Holders, each such underwriter,
and each Person who controls the Holders or underwriter, any legal and any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability, or action; provided, however, that the indemnity contained in this
Section 2.5(a) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or action if settlement
is effected without the consent of the Company (which consent shall not unreasonably be withheld); and provided, further,
that the Company shall not be liable in any such case to the extent that any such claim, loss, damage, liability, or expense arises out
of or is based upon any violation by such Holder of the obligations set forth in Section 2.4 hereof or any untrue statement or
omission contained in such prospectus or other document based upon written information furnished to the Company by the Holders, such underwriter,
or such controlling Person and stated to be for use therein.
(b) To
the extent permitted by law, each Holder (severally and not jointly) shall, if Registrable Securities held by such Holder are included
for sale in the registration and related qualification and compliance effected pursuant to this Agreement, indemnify the Company, each
of its directors, each officer of the Company who signs the applicable Registration Statement, each legal counsel and each underwriter
of the Company’s securities covered by any such Registration Statement, and each Person who controls the Company or such underwriter
within the meaning of the Securities Act, against all claims, losses, damages, and liabilities (or actions in respect thereof) arising
out of or based upon (i) any untrue statement (or alleged untrue statement) of a material fact contained in any such Registration Statement,
or related document, or (ii) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (iii) any violation or alleged violation by such Holder of Section 2.4 hereof,
the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any state securities law applicable to such Holder and relating to action or inaction required of such Holder in connection with
any such registration and related qualification and compliance, and shall pay as incurred to such persons, any legal and any other expenses
reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, in each case only
to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in (and such violation
pertains to) such Registration Statement or related document in reliance upon and in conformity with written information furnished to
the Company by such Holder and stated to be specifically for use therein; provided, however, that the indemnity contained
in this Section 2.5(b) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or action if settlement
is effected without the consent of such Holder (which consent shall not unreasonably be withheld); provided, further, that
such Holder’s liability under this Section 2.5(b) (when combined with any amounts such Holder is liable for under Section
2.5(d)) shall not exceed such Holder’s net proceeds from the offering of securities made in connection with such registration.
(c) Promptly
after receipt by an indemnified party under this Section 2.5 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 2.5, notify the indemnifying
party in writing of the commencement thereof and generally summarize such action. The indemnifying party shall have the right to participate
in and to assume the defense of such claim;
provided, however,
that the indemnifying party shall be entitled to select counsel for the defense of such claim with the approval of any parties entitled
to indemnification, which approval shall not be unreasonably withheld); provided, further, however, that if either party
reasonably determines that there may be a conflict between the position of the Company and the Holders in conducting the defense of such
action, suit, or proceeding by reason of recognized claims for indemnity under this Section 2.5, then counsel for such party shall
be entitled to conduct the defense to the extent reasonably determined by such counsel to be necessary to protect the interest of such
party. The failure to notify an indemnifying party promptly of the commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party, to the extent so prejudiced, of any liability to the
indemnified party under this Section 2.5, but the omission so to notify the indemnifying party shall not relive such party of any
liability that such party may have to any indemnified party otherwise than under this Section 2.5.
(d) If
the indemnification provided for in this Section 2.5 is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand
and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the Parties’
relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. In no event, however,
shall (i) any amount due for contribution hereunder be in excess of the amount that would otherwise be due under Section 2.5(a)
or Section 2.5(b), as applicable, based on the limitations of such provisions and (ii) a Person guilty of fraudulent misrepresentation
(within the meaning of the Securities Act) be entitled to contribution from a Person who was not guilty of such fraudulent misrepresentation.
(e) The
obligations of the Company and the Holders under this Section 2.5 shall survive the completion of any offering of Registrable Securities
in a Registration Statement under this Agreement or otherwise.
2.6. Information.
The Holders shall furnish to the Company such information regarding the Holders and the distribution proposed by the Holders as the Company
may reasonably request and as shall be reasonably required in connection with any registration referred to in this Agreement. The Holders
agree to, as promptly as practicable (and in any event prior to any sales made pursuant to a prospectus), furnish to the Company all information
required to be disclosed in order to make the information previously furnished to the Company by the Holders not misleading. The Holders
agree to keep confidential the receipt of any notice received pursuant to Section 2.3(d) and the contents thereof, except as required
pursuant to applicable law. Notwithstanding anything to the contrary herein, the Company shall be under no obligation to name a Holder
in any Registration Statement if such Holders has not provided the information required by this Section 2.6 with respect to such Holder
as a selling securityholder in such Registration Statement or any related prospectus.
2.7. Rule
144 Requirements. With a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the
Commission that may at any time permit the Holders to sell Registrable Securities to the public without registration, the Company agrees
to use commercially reasonable efforts to:
(a) make
and keep public information available, as those terms are understood and defined in Rule 144 at all times after the date hereof;
(b) file
with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange
Act;
(c) prior
to the filing of the Registration Statement or any amendment thereto (whether pre-effective or post-effective), and prior to the filing
of any prospectus or prospectus supplement related thereto, to provide the Holders with copies of all of the pages thereof (if any) that
reference the Holders; and
(d)
furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably
requested by an Holder in availing itself of any rule or regulation of the Commission which permits an Holder to sell any such
securities without registration.
Section
3.
Miscellaneous
3.1. Amendment.
The terms and provisions of this Agreement may be modified, amended or terminated, and any of the provisions hereof may be waived, temporarily
or permanently, pursuant to a writing executed by a duly authorized representative of the Company and Holders holding a majority of the
then outstanding Registrable Securities; provided that this Agreement may not be modified or amended, and no provision hereof may
be waived, in any way that would adversely affect the rights of any Holder(s) hereunder in a manner disproportionate to any adverse effect
such modification, amendment or waiver would have on the rights of all Holders as a whole, without also the prior written consent of such
Holders that are so disproportionately adversely affected.
3.2. Injunctive
Relief. It is hereby agreed and acknowledged that it shall be impossible to measure in money the damages that would be suffered if
the Parties fail to comply with any of the obligations herein imposed on them and that in the event of any such failure, an aggrieved
Person shall be irreparably damaged and shall not have an adequate remedy at law. Any such Person shall, therefore, be entitled (in addition
to any other remedy to which it may be entitled in law or in equity) to injunctive relief, including, without limitation, specific performance,
to enforce such obligations, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of
the Parties hereto shall raise the defense that there is an adequate remedy at law.
3.3. Notices.
All notices required or permitted under this Agreement must be in writing and sent to the address or facsimile number identified below.
Notices must be given: (a) by personal delivery, with receipt acknowledged; (b) by electronic mail followed by hard copy delivered by
the methods under clause (a), (c) or (d); (c) by prepaid certified or registered mail, return receipt requested;
or (d) by prepaid reputable overnight delivery service. Notices shall be effective upon receipt. Either Party may change its notice address
by providing the other Party written notice of such change. Notices shall be delivered as follows:
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If to Lynx: |
Lynks Motor Corporation
3267 Bee Caves Rd., Suite 107-247
Austin, TX 78746
Attn: Christian Okonsky, Chairman
Email: christian@lynks.co
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If to the Company: |
Nxu, Inc.
1828 N. Higley Rd. Suite 116
Mesa, AZ 85205
Attn: Jordan Christensen
Email:
jordan@nxuenergy.com |
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with a copy to: |
Winston & Strawn LLP
800 Capitol Street
Houston, TX 77002
Attn: Michael Blankenship
Email: mblankenship@winston.com
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3.4. Governing
Law; Jurisdiction; Venue; Jury Trial.
(a) This
Agreement shall be governed by, and construed in accordance with, the law 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 the State of Delaware.
(b) Each
of the Company and the Holders irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of
the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the United States
District Court for the District of Delaware or, to the extent that neither of the foregoing courts has jurisdiction, the Superior Court
of the State of Delaware, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement
and the transactions contemplated herein, or for recognition or enforcement of any judgment, and each of the Company and the Holders irrevocably
and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such courts. Each
of the Company and the Holders hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Each
of the Company and the Holders irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection
that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement and
the transactions contemplated herein in any court referred to in Section 3.4(b) hereof. Each of the Company and the Holders hereby
irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) EACH
OF THE COMPANY AND THE HOLDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH OF THE COMPANY AND THE HOLDERS (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT EACH OF THE COMPANY AND THE HOLDERS HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
3.5. Successors,
Assigns and Transferees. Any and all rights, duties and obligations hereunder shall not be assigned, transferred, delegated or sublicensed
by any Party hereto without the prior written consent of the other Party; provided, however, that the Holders shall be entitled
to transfer Registrable Securities to one or more of their affiliates, and, solely in connection therewith, may assign their rights hereunder
in respect of such transferred Registrable Securities, in each case, without the prior consent of the Company so long as such Holder is
not relieved of any liability or obligations hereunder. Any transfer or assignment made other than as provided in the first sentence of
this Section 3.5 shall be null and void. Subject to the foregoing and except as otherwise provided herein, the provisions of this
Agreement shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of
the Parties hereto.
3.6. Entire
Agreement. This Agreement, together with any exhibits hereto, constitute the entire agreement between the Parties relating to the
subject matter hereof and all previous agreements or arrangements between the Parties, written or oral, relating to the subject matter
hereof are superseded.
3.7. Waiver.
No failure on the part of either Party hereto to exercise any power, right, privilege or remedy under this Agreement, and no delay on
the part of either Party hereto in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver thereof;
and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or
of any other power, right, privilege or remedy.
3.8. Severability.
If any part of this Agreement is declared invalid or unenforceable by any court of competent jurisdiction, such declaration shall not
affect the remainder of the Agreement and the invalidated provision shall be revised in a manner that shall render such provision valid
while preserving the Parties’ original intent to the maximum extent possible.
3.9. Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement. All references in this Agreement to sections, paragraphs and exhibits shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits attached hereto.
3.10. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the Parties that execute such
counterparts (including by facsimile or other electronic means), and all of which together shall constitute one instrument.
3.11. Term
and Termination. The Holders’ rights to demand the registration of the Registrable Securities under this Agreement, as well
as the obligations hereunder of the Company and the Holders other than pursuant to Section 2.5 hereof, shall terminate automatically
once all Registrable Securities cease to be Registrable Securities pursuant to the terms of this Agreement.
[Remainder of Page Intentionally Left Blank; Signature
Page Follows]
IN WITNESS WHEREOF, the Parties hereto
have executed this Registration Rights Agreement effective as of the date first above written.
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[Signature Page to Registration Rights Agreement]
EXHIBIT B
Form of Board Designation
Agreement
BOARD DESIGNATION AGREEMENT
THIS BOARD DESIGNATION
AGREEMENT, dated as of December 27, 2023 (this “Agreement”), is entered into by and between Lynks Motor
Corporation, a Delaware corporation d/b/a Lynx Motors (“Lynx”), and Nxu, Inc., a Delaware corporation (“Nxu”).
Lynx and Nxu are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”.
Capitalized terms used but not defined herein shall have the meaning assigned to such term in the Share Exchange Agreement, dated as of
the date hereof, by and between the Parties (the “Share Exchange Agreement”).
Recitals
WHEREAS, pursuant to, and subject
to the terms and conditions of, the Share Exchange Agreement, Lynx has agreed to sell to Nxu, and Nxu has agreed to purchase from Lynx,
a number of newly issued shares of common stock, par value $0.001 per share, of Lynx representing 15% of the issued and outstanding equity
interests in Lynx as of, and after giving effect to, the closing of the transactions contemplated by the Share Exchange Agreement (the
“Closing”) in exchange for an aggregate of 1,000 newly issued shares of Series A convertible preferred stock,
par value $0.0001 per share, of Nxu, which shall be convertible into Class A Shares upon the terms and subject to the conditions set forth
in the Certificate of Designation; and
WHEREAS, to induce the Parties to
enter into the transactions contemplated by the Share Exchange Agreement, each of the Parties is required to deliver this Agreement, duly
executed by each of the Parties, contemporaneously with the Closing.
NOW, THEREFORE, in consideration
of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by each of the Parties hereto, the Parties hereby agree as follows:
Agreement
Section 1. Board Designation Rights.
(a) So
long as Nxu owns equity interests in Lynx that comprise in the aggregate, more than 3.0% of the issued and outstanding equity interests
in Lynx, Nxu shall have the right to designate one person to serve on the board of directors of Lynx (the “Board”
and such person and any other person designated to serve on the Board pursuant to this Agreement, a “Nxu Director”)
and Lynx shall take all actions necessary or advisable to effect the foregoing. If Nxu’s ownership interest in Lynx is at any time
less than 3.0% of the issued and outstanding equity interests in Lynx, then the director designation right set forth in this clause (a)
shall terminate and such Nxu Director designated pursuant to this clause (a) shall immediately resign from the Board; provided,
however, that at any time after the date of any such termination, if Nxu’s ownership interest in Lynx increases to 3.0% or
greater, then the director designation right set forth in this clause (a) shall be reinstated in all respects. The initial Nxu Director
designated to serve on the Board pursuant to this clause (a) is Mark Hanchett.
(b) Lynx
shall not take any action that directly or indirectly adversely affects the rights of Nxu to (i) designate the Nxu Director to the Board
pursuant to Sections 1(a) of this Agreement or (ii) seek indemnification pursuant to Section 3(a) of this Agreement.
Section 2. Director Qualifications. Any
Nxu Director shall, in the reasonable judgment of the Board, have the requisite skill and experience to serve as a director of a
private company. Any Nxu Director may be removed or replaced by Nxu at any time and may be removed by the Board acting by majority
at a meeting at which a Nxu Director shall have the right to attend, for “cause” (as defined below), but not by any
other Party; and any vacancy occurring by reason of the death, disability, resignation, removal or other cessation of a person
serving as an Nxu Director, shall be filled solely by a person designated by Nxu. As used herein, “cause”
means that (i) a Nxu Director is convicted by a court of competent jurisdiction of a felony while serving on the Board; (ii) a court
of competent jurisdiction has entered, a final, non-appealable judgment finding a Nxu Director liable for actual fraud or willful
misconduct against Lynx; (iii) a Nxu Director is determined by the Board acting as a majority at a meeting at which such Nxu
Director shall have the right to attend, to have acted intentionally or in bad faith in his or her capacity as a Nxy Director in a
manner that results in a material detriment to the assets, business or prospects of Lynx; (iv) a Nxu Director has failed to
immediately tender his or her resignation at the time Nxu is no longer entitled to designate such Nxu Director pursuant to Section
1(a) or 1(b); or (v) a Nxu Director does not meet the qualifications set forth above; provided, however, that in
no event will the participation of a Nxu Director in Nxu’s exercise of rights under the Share Exchange Agreement be deemed
“cause.” Any action by Nxu to designate, remove or replace the Nxu Director shall be evidenced in writing furnished to
Lynx, shall include a statement that the action has been approved by Nxu, and shall be executed by or on behalf of Nxu. While
serving as a Nxu Director, a Nxu Director shall be entitled to vote on all matters, including any matter on which independent
members of the Board are entitled to vote on. Notwithstanding any rights to be granted or provided to a Nxu Director hereunder or in
the Share Exchange Agreement, Lynx may exclude the Nxu Director from access to any Board or committee of the Board (a
“Committee”) materials or information or meeting or portion thereof or written consent if the Board
determines, in good faith, and includes the Nxu Director in discussions relating to such determination (but not requiring the
affirmative vote of such Nxu Director), that such access would reasonably be expected to result in a conflict of interest with Lynx
(other than a conflict of interest with respect to Nxu’s ownership interest in Lynx or rights under the Share Exchange
Agreement); provided, that such exclusion shall be limited to the portion of the Board or Committee material or information
and/or meeting or written consent that is the basis for such exclusion and shall not extend to any portion of the Board or Committee
material and/or meeting that does not involve or pertain to such exclusion. A Nxu Director shall receive the same information
provided to other similarly situated members of the Board, at the same time as such information is provided to other similarly
situated members of the Board and including monthly information packages, as well as being provided with reasonable access to
management and shall be entitled to receive customary reimbursement of fees and expenses incurred in connection with his or her
service as a member of the Board and/or any Committee thereof consistent with Lynk’s policies applicable to similarly situated
directors. A Nxu Director shall be entitled to receive the same compensation provided to other similarly situated members of the
Board from Lynx.
Section 3. Limitation of Liability; Indemnification;
Business Opportunities.
(a) At
all times while a Nxu Director is serving as a member of the Board, and following any such Nxu Director’s death, resignation, removal
or other cessation as a director in such former Nxu Director’s capacity as a former director, the Nxu Director shall be entitled
to (i) the same modification and restriction of traditional fiduciary duties, (ii) the same safe harbors for resolving conflicts of interest
transactions and (iii) all rights to indemnification and exculpation, in each case, as are made available to any other independent member
of the Board as at the date hereof, together with any and all incremental rights added to any of (i), (ii) or (iii) above as are subsequently
made available to any other independent members of the Board in their capacity as Board members.
(b) At
all times while a Nxu Director is serving as a member of the Board in accordance with Section 1 of this Agreement, such Nxu Director,
Nxu and their respective Affiliates may engage in, possess an interest in, or trade in the securities of, other business ventures of any
nature or description, independently or with others, similar or dissimilar to the business of Lynx, the Board and their respective Affiliates
shall have no rights by virtue of this Agreement in and to such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of Lynx, shall not be deemed wrongful or improper. None of any Nxu
Director, Nxu or their respective Affiliates shall be obligated to present any investment opportunity to Lynx even if such opportunity
is of a character that Lynx or any of their respective subsidiaries might reasonably be deemed to have pursued or had the ability or desire
to pursue if granted the opportunity to do so, and any Nxu Director, Nxu or their respective Affiliates shall have the right to take for
such person’s own account (individually or as a partner or fiduciary) or to recommend to others any such investment opportunity.
Notwithstanding the foregoing, each Nxu Director, Nxu and their respective Affiliates shall be subject to, and comply with, the requirement
to maintain confidential information.
(c) Lynx
shall use its best efforts to purchase and maintain insurance (“D&O Insurance”) on behalf of the Nxu Director,
consistent with the D&O Insurance currently maintained for Lynx’s directors and officers.
(d) For the avoidance of doubt, each Nxu Director shall constitute an “Indemnitee.”
Section 4. Miscellaneous.
(a) Entire
Agreement. This Agreement, the Share Exchange Agreement and the other agreements and documents referred to herein and therein are
intended by the Parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the Parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings other than those set forth or referred to herein or in the Share Exchange Agreement with respect to the rights
granted by Lynx or any of its Affiliates or Nxu or any of its Affiliates set forth herein or therein. This Agreement and the other agreements
and documents referred to herein or therein supersede all prior agreements and understandings between the Parties with respect to such
subject matter.
(b) Notices.
All notices and demands provided for in this Agreement shall be in writing and shall be given as provided in Section 9.1 of the Share
Exchange Agreement.
(c) Interpretation.
Section references in this Agreement are references to the corresponding Section to this Agreement, unless otherwise specified. All references
to instruments, documents, contracts and agreements are references to such instruments, documents, contracts and agreements as the same
may be amended, supplemented and otherwise modified from time to time, unless otherwise specified. The word “including” shall
mean “including but not limited to” and shall not be construed to limit any general statement that it follows to the specific
or similar items or matters immediately following it. Whenever any determination, consent or approval is to be made or given by a Party,
such action shall be in such Party’s sole discretion, unless otherwise specified in this Agreement. If any provision in this Agreement
is held to be illegal, invalid, not binding or unenforceable, (i) such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid, not binding or unenforceable provision had never comprised a part of this Agreement,
and the remaining provisions shall remain in full force and effect and (ii) the Parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest extent possible. When calculating the period of time before
which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference
date in calculating such period shall be excluded, and if the last day of such period is a non-Business Day, the period in question shall
end on the next succeeding Business Day. Any words imparting the singular number only shall include the plural and vice versa. The words
such as “herein,” “hereinafter,” “hereof” and “hereunder” refer to this Agreement as a
whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The division of this Agreement
into Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized
in construing or interpreting this Agreement.
(d) Governing
Law; Submission to Jurisdiction. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based
upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or
cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement),
will be construed in accordance with and governed by the Laws of the State of Delaware without regard to principles of conflicts of Laws.
Any action against any Party relating to the foregoing shall be brought in any federal or state court of competent jurisdiction located
within the State of Delaware, and the Parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state
court located within the State of Delaware over any such action. Each of the Parties hereby irrevocably waives, to the fullest extent
permitted by applicable Law, any objection that it may now or hereafter have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of such dispute. Each of the Parties hereto agrees that a judgment in any
such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
(e) Waiver
of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES, AND AGREES TO CAUSE ITS AFFILIATES TO WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR (ii)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES
TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(f) No Waiver; Modifications in Writing.
(i) Delay.
No failure or delay on the part of any Party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be
available to a Party at law or in equity or otherwise.
(ii) Specific
Waiver. Except as otherwise provided herein, no amendment, waiver, consent, modification or termination of any provision of this Agreement
shall be effective unless signed by each of the Parties hereto affected by such amendment, waiver, consent, modification or termination.
Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement and
any consent to any departure by a Party from the terms of any provision of this Agreement shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or
demand on a Party in any case shall entitle such Party to any other or further notice or demand in similar or other circumstances. Any
investigation by or on behalf of any Party shall not be deemed to constitute a waiver by the Party taking such action of compliance with
any representation, warranty, covenant or agreement contained herein.
(g) Execution
in Counterparts. This Agreement may be executed in any number of counterparts and by different Parties hereto in separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together,
shall constitute one and the same agreement.
(h) Binding
Effect; Assignment. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors
and permitted assigns, but will not be assignable or delegable by any Party hereto without the prior written consent of each of the other
Parties.
(i) Independent
Counsel. Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations
that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent
counsel. Each Party and its counsel cooperated in the drafting and preparation of this Agreement and the documents referred to herein,
and any and all drafts relating thereto will be deemed the work product of the Parties and may not be construed against any Party by reason
of its preparation. Accordingly, any rule of Law or any legal decision that would require interpretation of any ambiguities in this Agreement
against the Party that drafted it is of no application and is hereby expressly waived.
(j) Specific
Enforcement. Each of the Parties acknowledges and agrees that monetary damages would not adequately compensate an injured Party for
the breach of this Agreement by any Party, that this Agreement shall be specifically enforceable and that any breach or threatened breach
of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order without a requirement of posting
bond. Further, each Party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
(k) Liability
of Nxu. Nxu shall have no liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims,
causes of action, obligations or liabilities arising under, out of, in connection with, or related in any manner to, this Agreement.
Lynx shall be entitled to rely conclusively and without any inquiry on any and all instructions of, decisions of or action taken or
omitted to be taken by Nxu under this Agreement without any liability to Nxu or obligation to inquire as to such instructions,
decisions of, or actions or omissions including the authority or validity thereof, all of which instructions, decisions, actions or
omissions shall be legally binding on Nxu.
(l) Further
Assurances. Each of the Parties hereto shall, from time to time and without further consideration, execute such further instruments
and take such other actions as any other Party hereto shall reasonably request in order to fulfill its obligations under this Agreement
to effectuate the purposes of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties hereto execute this Agreement,
effective as of the date first above written.
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NXU, INC. |
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By: |
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Name: Mark Hanchett |
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Title: Chief Executive Officer |
EXHIBIT C
Form of Certificate of Designations
CERTIFICATE OF DESIGNATIONS
OF
SERIES A CONVERTIBLE PREFERRED
STOCK
OF
NXU, INC.
Pursuant to Section 151 of
the General Corporation Law of the State of Delaware
The undersigned,
Mark Hanchett, Chief Executive Officer of Nxu, Inc., a Delaware corporation (the “Corporation”), hereby certifies
that, pursuant to the authority expressly vested in the Board of Directors of the Corporation (the “Board”)
by the Certificate of Incorporation of the Corporation, and in accordance with the provisions of Sections 103 and 151 of the General Corporation
Law of the State of Delaware, the Board has duly adopted the following resolutions:
RESOLVED, that,
pursuant to Article IV of the Certificate of Incorporation (as such may be amended, modified or restated from time to time, the “Certificate
of Incorporation”) (which authorizes 10,000,000 shares of preferred stock, par value $0.0001 per share, of the Corporation
(“Preferred Stock”)), a series of preferred stock be, and it hereby is, established, and the designation and
number of shares of such series, and the voting and other powers, rights, preferences, and privileges, and the qualifications, limitations
and restrictions thereof are set forth in this Certificate of Designations (as such may be amended, modified or restated from time to
time, this “Certificate”) as follows:
1. Definitions.
For purposes of this Certificate the following definitions shall apply and shall be equally applicable to both the singular and plural
forms of the defined terms:
1.1. “Affiliate”
of any Person shall mean any Person who directly or indirectly controls, is controlled by, or is under common control with, the indicated
Person. For the purposes of this definition, “control” has the meaning specified as of the date hereof for that word in Rule
405 promulgated by the United States Securities and Exchange Commission under the Securities Act of 1933, as amended.
1.2. “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by a Holder’s
investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of such Holder or any of the foregoing,
(iii) any Person acting or who could be deemed to be acting as a Group together with such Holder or any of the foregoing and (iv) any
other Persons whose beneficial ownership of the Corporation’s Common Stock would or could be aggregated with such Holder’s
and the other Attribution Parties for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended. For clarity, the purpose
of the foregoing is to subject collectively such Holder and all other Attribution Parties to the Exchange Cap.
1.3. “Board”
shall have the meaning set forth in the recitals.
1.4. “Certificate” shall have the meaning set forth in the recitals.
1.5. “Certificate
of Incorporation” shall have the meaning set forth in the recitals.
1.6. “Common Stock” shall mean the Class A common stock, par value $0.0001 per share, of the Corporation.
1.7. “Corporation” shall have the meaning set forth in the recitals.
1.8. “Exchange Cap” shall have the meaning set forth in Section 6.5(A) below.
1.9. “Holder” or “Holders” shall have the meaning set forth in Section 3 below.
1.10. “Junior
Security” shall mean any class or series of capital stock of the Corporation hereafter created that does not, by its terms,
rank senior to or pari passu with the Series A Preferred Stock.
1.11. “Liquidation
Event” shall have the meaning set forth in Section 5.1 below.
1.12. “Liquidation
Payment” shall mean the product of (i) the Stated Value per share of Series A Preferred Stock multiplied by (ii) the total
number of shares of Series A Preferred Stock issued under the Certificate as of the date of such Liquidation Event.
1.13. “Mandatory Conversion Date” shall have the meaning set forth in Section 7.1 below.
1.14. “Person”
shall include all natural persons, corporations, business trusts, associations, limited liability companies, partnerships, joint ventures
and other entities, governments, agencies and political subdivisions.
1.15. “Preferred Stock” shall have the meaning set forth in the recitals.
1.16. “Sale”
means any sale of the Corporation to one or more third party purchasers who or which are not Affiliates of the Corporation, whether by
way of (i) the sale or other disposition of all or substantially all of the assets of the Corporation, (ii) the merger or consolidation
of the Corporation with or into another Person, or (iii) the sale or other transfer of greater than a majority of the capital stock of
the Corporation.
1.17. “Senior
Security” shall mean any class or series of capital stock of the Corporation hereafter created that, by its terms, ranks
senior to the Series A Preferred Stock.
1.18. “Series A Conversion Price” shall have the meaning set forth in Section 6.1 below.
1.19. “Series A Preferred Stock” shall have the meaning set forth in the recitals.
1.20. “Stated Value” shall mean $3,000.00.
1.21. “Stockholder Approval” shall have the meaning set forth in Section 6.5(A) below.
1.22. “Trading Day” means a day on which the principal Trading Market is open for trading.
1.23. “Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the
date in question: the NYSE American, The Nasdaq Stock Market, LLC and The New York Stock Exchange (or any successors to any of the foregoing)
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2. Designation
and Number of Shares. Pursuant to the Certificate of Incorporation, there is hereby created out of the authorized and unissued
shares of Preferred Stock of the Corporation a series of Preferred Stock consisting of five thousand (5,000) shares of Preferred Stock
designated as the “Series A Convertible Preferred Stock” (the “Series A Preferred Stock”). Such
number of shares may be decreased by resolution of the Board or any duly authorized committee thereof, subject to the terms and conditions
hereof; provided that no decrease shall reduce the number of shares of the Series A Preferred Stock to a number less than the number
of shares then outstanding.
3. Voting
Rights. Other than those rights provided by law, the holders of the Series A Preferred Stock (each a “Holder”
and, collectively, the “Holders”) shall not have any voting rights.
4. Dividends.
4.1. Dividends.
The Holders shall be entitled to receive a pro-rata portion, on an as-if converted basis, of any dividends payable on Common Stock. Dividends
on shares of capital stock of the Corporation shall be payable, whether payable in cash or other property, only out of funds legally available
therefor.
4.2. Non-Cash
Dividends. Whenever a dividend provided for in this Section 4 shall be payable in property other than cash, the value of such dividend
shall be deemed to be the fair market value of such property as determined in good faith by the Board.
5. Liquidation Rights.
5.1. Preference
of Series A Preferred Stock. In the event of any liquidation, dissolution, winding up or Sale of the Corporation, whether voluntary
or involuntary (each, a “Liquidation Event”), after payment of all amounts required under Section 4 hereunder,
the Holders (as a class) shall be entitled to receive out of the assets of the Corporation available for distribution to its shareholders,
whether such assets are capital, surplus, or earnings, before any payment, declaration, or setting apart for payment of any amount shall
be made in respect of the Common Stock or any Junior Security (but after payment to any Senior Security) of the Corporation, an aggregate
amount equal to the Liquidation Payment. Each individual Holder will receive that amount of the Liquidation Payment equal to the product
of (i) the Liquidation Payment multiplied by (y) the ratio of (1) shares of Series A Preferred Stock held by such Holder divided by (2)
the total shares of Series A Preferred Stock then outstanding, at the time of such Liquidation Event with respect to such Liquidation
Event. If, upon any Liquidation Event, the assets to be distributed to the Holders shall be insufficient to permit the payment to such
shareholders of the full Liquidation Payment, then all of the assets of the Corporation (after payment to any Senior Security) shall be
distributed solely and ratably to the Holders.
5.2. Remaining
Assets. If the assets of the Corporation available for distribution to the Corporation’s shareholders exceed the aggregate amount
payable to the Holders pursuant to Section 4.1 hereof, then after the payments required by Section 4.1 shall have been made the Corporation’s
remaining assets shall be distributed pro rata, on a per share basis, among the holders of the Common Stock.
5.3. Notice.
Written notice of such liquidation, dissolution or winding up, stating a payment date and the place where said payments shall be made,
shall be given by mail, postage prepaid, or, if to non-U.S. residents, by facsimile, not less than twenty (20) days prior to the payment
date stated therein, to the Holders of record, such notice to be addressed to each such Holder at its address as shown by the records
of the Corporation.
5.4. Determination
of Consideration. To the extent any distribution pursuant to Section 5.1 or Section 5.2 consists of property other than cash, the
value thereof shall, for purposes of Section 5.1 or Section 5.2, be the fair value at the time of such distributions as determined in
good faith by the Board.
5.5. Conversion
Prior to Liquidating Distributions. Any Holder may, at its option, convert all or a portion of its shares into Common Stock upon a
liquidation, dissolution or winding up of the Corporation and thereby receive distributions with the holders of the Common Stock in lieu
of receiving distributions as a Holder.
6. Conversion. The
Holders shall have the following conversion rights:
6.1. Optional
Conversion of the Series A Preferred Stock. Any or all shares of the Series A Preferred Stock shall be convertible, without the payment
of any additional consideration by the Holder thereof and at the option of the Holder thereof, at any time after the first issuance of
shares of Series A Preferred Stock by the Corporation and from time to time, subject to Section 6.5. below, at the office of the Corporation
or any transfer agent for the Common Stock, into such whole number of fully paid and nonassessable shares of Common Stock as is determined
by dividing the Stated Value by the Series A Conversion Price (determined as hereinafter provided) in effect at the time of conversion
and then multiplying such quotient by the number of shares of Series A Preferred Stock to be converted. The Conversion Price at which
shares of Common Stock shall be deliverable upon conversion without the payment of any additional consideration by the Holder thereof
shall initially be $0.02 (the “Series A Conversion Price”). Such initial Series A Conversion Price shall be
subject to adjustment, as hereinafter provided.
6.2 Fractional
Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock, and the number of shares
of Common Stock to be issued shall be determined by rounding to the nearest whole share (a half share being treated as a full share for
this purpose). Such conversion shall be determined on the basis of the total number of shares of Series A Preferred Stock the Holder is
at the time converting into Common Stock and such rounding shall apply to the number of shares of Common Stock issuable upon such aggregate
conversion.
6.3. Mechanics
of Optional Conversion. Before any Holder shall be entitled to convert the same into full shares of Common Stock, such Holder shall
surrender the certificate or certificates therefor, endorsed or accompanied by written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered Holder or by such Holder’s attorney duly authorized in writing,
at the office of the Corporation or of any transfer agent for the Common Stock, and shall give at least five (5) days’ prior written
notice (in the form attached hereto as Schedule I) to the Corporation at such office that such Holder elects to convert the same or such
portion thereof as such Holder elects to convert and shall state therein such Holder’s name or the name of the nominees in which
such Holder wishes the certificate or certificates for shares of Common Stock to be issued,. The Corporation shall, as soon as practicable
thereafter, issue and deliver to such Holder, or to such Holder’s nominee or nominees, a certificate or certificates for the number
of shares of Common Stock to which such Holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the shares of Series A Preferred Stock to be converted, and the person
or persons entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record Holder
or Holders of such shares of Common Stock on such date. From and after such date, all rights of the Holder with respect to the Series
A Preferred Stock so converted shall terminate, except only the right of such Holder, upon the surrender of his, her or its certificate
or certificates therefor, to receive certificates for the number of shares of Common Stock issuable upon conversion thereof. Upon conversion
of only a portion of the number of shares covered by a certificate representing shares of Series A Preferred Stock surrendered for conversion,
the Corporation shall issue and deliver to the Holder of the certificate so surrendered for conversion, at the expense of the Corporation,
a new certificate covering the number of shares of the Series A Preferred Stock representing the unconverted portion of the certificate
so surrendered, which new certificate shall entitle the record Holder thereof to all rights in respect of the shares of Series A Preferred
Stock represented thereby to the same extent as if the portion of the certificate theretofore covering such unconverted shares had not
been surrendered for conversion.
6.4. Certain
Adjustments to Conversion Price for Stock Splits, Dividends, Mergers, Reorganizations, Etc.
A. Adjustment
for Stock Splits, Stock Dividends and Combinations of Common Stock. In the event the outstanding shares of Common Stock shall
be subdivided (split), or combined (reverse split), by reclassification or otherwise, or in the event of any dividend or other distribution
payable on the Common Stock in shares of Common Stock, the Series A Conversion Price in effect immediately prior to such subdivision,
combination, dividend or other distribution shall be adjusted so that the registered Holder of any share of Series A Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number and kind of shares of Common Stock and other securities which such
Holder would have owned or have been entitled to receive after the happening of any of the events described above had such share been
converted immediately prior to the happening of such event. An adjustment made pursuant to this subparagraph (A) shall become effective
immediately after the record date in the case of a dividend or other distribution and shall become effective immediately after the effective
date in the case of a subdivision or combination.
B. Adjustment
for Merger or Reorganization, Etc. In the event of a reclassification, reorganization, or exchange (other than described in Section
5.5(A) above) or any merger, acquisition, consolidation, or reorganization of the Corporation with another Corporation, each share of
Series A Preferred Stock shall thereafter be convertible into the kind and number of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock of the Corporation deliverable upon conversion of the Series A Preferred Stock
would have been entitled upon such reclassification, reorganization, exchange, consolidation, merger or acquisition had the conversion
occurred immediately prior to the event; and, in any such case, appropriate adjustment (as determined in good faith by the Board) shall
be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the Holders, to the
end that the provisions set forth herein (including provisions with respect to changes in and other adjustments of the applicable Series
A Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property
thereafter deliverable upon the conversion of the Series A Preferred Stock.
6.5. Conversion
Limitations.
A. The
Corporation shall not effect the conversion of any shares of Series A Preferred Stock held by a Holder, and such Holder shall not have
the right to convert any of the Series A Preferred Stock held by such Holder pursuant to the terms and conditions of this Certificate
of Designations and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to
such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 19.99% (the
“Exchange Cap”) of the outstanding common stock or voting power of the Corporation immediately after giving
effect to such conversion, unless and until the Corporation receives the approval required (“Stockholder Approval”)
by the applicable rules and regulations of any Trading Market on which any securities of the Corporation (or any successor entity) from
the stockholders of the Corporation of the provisions of this Certificate.
B. No
Holder shall be entitled to convert the same into shares of Common Stock pursuant to Section 6.1, and no conversion of Series A
Preferred Stock into shares of Common Stock pursuant to Section 7.1 shall occur, to the extent such conversion would require the
Corporation to issue shares of Common Stock in excess of the Corporation’s then sufficient authorized and unissued shares of Common
Stock.
6.6. Notices
of Record Date. In the event of any taking by the Corporation of a record of the Holders of any class of securities for the purpose
of determining the Holders thereof who are entitled to receive any dividend or other distribution, any capital reorganization of the Corporation,
any reclassification or recapitalization of the Corporation’s capital stock, any consolidation or merger with or into another Corporation,
any transfer of all or substantially all of the assets of the Corporation or any dissolution, liquidation or winding up of the Corporation,
the Corporation shall mail to each Holder at least ten (10) days prior to the date specified for the taking of a record, a notice specifying
the date on which any such record is to be taken for the purpose of such dividend or distribution.
6.7. Additional
Notices. In the event the Corporation shall propose to take any action of the types described in Sections 6.4, 6.5 or
6.6 the Corporation shall give notice to each Holder, which notice shall specify the record date, if any, with respect to such
action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the extent such effect may be at the date of such notice) on the Series
A Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon
the occurrence of such action or deliverable upon conversion of shares of Series A Preferred Stock. In the case of any action which would
require the fixing of a record date, such notice shall be given at least ten (10) days prior to the date so fixed, and in case of all
other action, such notice shall be given at least ten (10) days prior to the taking of such proposed action.
6.8. Pro
Rata Conversion. In the event that the Corporation receives a Conversion Notice, in the form attached hereto as Annex A, from
more than one Holder for the same conversion date and the Corporation can convert some, but not all, of such shares of Series A Preferred
Stock submitted for conversion, the Corporation shall convert from each Holder electing to have Series A Preferred Stock converted on
such date a pro rata amount of such Holder’s Series A Preferred Stock submitted for conversion on such date based on the number
of shares of Series Preferred Stock submitted for conversion on such date by such Holder relative to the aggregate number of shares of
Series A Preferred Stock submitted for conversion on such date.
6.9. Payment
of Taxes. The Corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed
with respect to the issue or delivery of shares of Common Stock upon conversion of shares of Series A Preferred Stock, other than any
tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other
than that in which the shares of Series A Preferred Stock so converted were registered.
7. Mandatory Conversion.
7.1. Triggering
Event. On the Trading Day immediately following the effective date of any Stockholder Approval (the “Mandatory Conversion
Date”), (i) all outstanding shares of Series A Preferred Stock shall automatically be converted into shares of Common Stock,
at the then effective conversion rate as calculated pursuant to Section 6, and (ii) such shares may not be reissued by the Corporation.
7.2. Procedural
Requirements. All Holders of record shall be sent written notice of the Mandatory Conversion Date and the place designated for
mandatory conversion of all such shares of Series A Preferred Stock pursuant to this Section 7. Such notice need not be sent
in advance of the occurrence of the Mandatory Conversion Date. Upon receipt of such notice, each Holder of shares of Series A
Preferred Stock in certificated form shall surrender his, her, or its certificate or certificates for all such shares (or, if such
Holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably
acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of
the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so
required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered Holder or by his, her or its
attorney duly authorized in writing. All rights with respect to the Series A Preferred Stock converted pursuant to Section
7.1, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate on the
Mandatory Conversion Date (notwithstanding the failure of the Holder or Holders thereof to surrender any certificates at or prior to
such time), except only the rights of the Holders thereof, upon surrender of any certificate or certificates of such Holders (or
lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section
7.2. As soon as practicable after the Mandatory Conversion Date and, if applicable, the surrender of any certificate or
certificates (or lost certificate affidavit and agreement) for Series A Preferred Stock, the Corporation shall (a) issue and deliver
to such Holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable
on such conversion in accordance with the provisions hereof and
(b) pay cash as provided in Section
6.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but
unpaid dividends on the shares of Series A Preferred Stock converted. Such converted Series A Preferred Stock shall be retired and cancelled
and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for
stockholder action) as may be necessary to reduce the authorized number of shares of Series A Preferred Stock accordingly.
8. No
Reissuance of Series A Preferred Stock. No share or shares of Series A Preferred Stock acquired by the Corporation by reason of
redemption, purchase, conversion, or otherwise shall be reissued.
9. Notices.
Unless otherwise specified in the Corporation’s Amended and Restated Articles of Incorporation or By- Laws, all notices or communications
given hereunder shall be in writing and, if to the Corporation, shall be delivered to it as its principal executive offices, and if to
any Holder, shall be delivered to it at its address as it appears on the stock books of the Corporation.
10. No
Preemptive Rights. Holders of Series A Preferred Stock shall have no preemptive rights except as granted by the Corporation pursuant
to written agreements.
11. Reservation
of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number
of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series
A Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Series A Preferred Stock, in addition to such other remedies as shall be available to
the Holder, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes.
12. Special
Approval Rights. Until all shares of the Series A Preferred Stock are converted to Common Stock, without the consent of the Holders
of at least a majority of the Series A Preferred Stock, given in writing or by vote as a separate class, amending, altering, or repealing
any provision of the Certificate of Incorporation, Bylaws, this Certificate or any other organizational documents of the Corporation if
it would adversely alter the rights, preferences, privileges, or powers of or restrictions on the Series A Preferred Stock.
13. Amendment.
Notwithstanding any provision in this Certificate to the contrary, any provision contained herein and any right of the Holders granted
hereunder may be amended, altered, supplemented or repealed as to all shares of Series A Preferred Stock (and the Holders thereof) upon
the written consent of the Holders of at least a majority of the issued and outstanding Series A Preferred Stock. Without the consent
of the Holders, the Corporation may amend, alter, supplement or repeal any terms of the Series A Preferred Stock by amending or supplementing
this Certificate or any stock certificate representing shares of the Series A Preferred Stock (i) to cure any ambiguity, omission, inconsistency
or mistake in any such agreement or instrument; (ii) to make any provision with respect to matters or questions relating to the Series
A Preferred Stock that is not inconsistent with the provisions of this Certificate and that does not materially and adversely affect
the rights of any Holder; or (iii) to make any other change that does not materially and adversely affect the rights of any Holder (other
than any Holder that consents to such change).
14. No
Impairment. For as long as any Series A Preferred Stock is outstanding and unless otherwise agreed to or waived in writing by
the Holders of the majority of the issued and outstanding Series A Preferred Stock, the Corporation will not, by amendment of this Certificate
or through any reorganization, transfer of assets, consolidation, merger, dissolution or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times
in good faith assist in the carrying out of all the provisions of this Section 14 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of the Holders of the Series A Preferred Stock against impairment.
IN WITNESS WHEREOF, the Corporation has caused Certificate
of Designations to be executed this day of December, 2023.
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NXU, INC. |
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By: |
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Name: |
Mark Hanchett |
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Title: |
Chief Executive Officer |
ANNEX A
NXU, INC.
CONVERSION NOTICE
Reference is
made to the Certificate of Designations of the Series A Preferred Stock of Nxu, Inc. (the “Certificate of Designations”).
In accordance with and pursuant to the Certificate of Designations, the undersigned hereby elects to convert the number of shares of Series
A Preferred Stock, $0.0001 par value per share (the “Preferred Shares”), of Nxu, Inc., a Delaware corporation
(the “Corporation”), indicated below into shares of Class A common stock, $0.0001 value per share (the “Common
Stock”), of the Corporation, as of the date specified below.
Date of Conversion: |
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Aggregate number of Preferred Shares to be converted |
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Aggregate Stated Value of such Preferred Shares to be converted: |
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Aggregate accrued and unpaid Dividends with respect to such
Preferred Shares and such Aggregate Dividends to be converted: |
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AGGREGATE CONVERSION AMOUNT TO BE CONVERTED: |
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Please confirm the following information: |
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Conversion Price: |
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Number of shares of Common Stock to be issued: |
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Please issue the Common Stock into which the applicable
Preferred Shares are being converted to Holder, or for its benefit, as follows:
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Check here if requesting delivery as a certificate to the following name and to the following address: |
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Issue to: |
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Check here if requesting delivery by Deposit/Withdrawal
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DTC Participant: |
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EXHIBIT D
Form of Promissory Note
THIS PROMISSORY NOTE (“NOTE”)
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR
INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES
ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
Principal Amount: $250,000 |
December 27, 2023 |
FOR VALUE RECEIVED,
the undersigned, Lynks Motor Corporation, a Delaware corporation (together with its successors and assigns, the “Maker”),
having a principal business address of 3267 Bee Caves Rd., Suite 107- 247, Austin, TX 78746, hereby promises to pay to the order of Nxu,
Inc., a Delaware corporation (together with its successors and assigns, the “Payee”), having a principal business
address of 1828 N. Higley Rd., Suite 116, Mesa, AZ 85205, the aggregate principal sum of Two Hundred Fifty Thousand Dollars ($250,000)
upon the terms and subject to the conditions set forth below. All payments on this Note shall be made by check or wire transfer of immediately
available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice
in accordance with the provisions of this Note. The Maker and the Payee together shall be referred to as the “Parties.”
1. PAYMENT
AND PREPAYMENT. The Maker shall repay the principal amount of this Note in one lump sum on the earlier of (i) June 27, 2024 or (ii)
an Event of Default (as defined hereinafter). This Note shall be non-interest bearing. Any amounts due under this Note may be prepaid
in full at any time. If the due date of any required payment under this Note is not a “business day” (for this purpose, any
day other than a Saturday, Sunday or legal holiday, such required payment shall be due and payable on the immediately succeeding business
day.
2. EVENTS
OF DEFAULT. The occurrence and continuation of any one or more of the following events shall constitute an event of default under
this Note (“Event of Default”): (a) the Maker shall fail to make any required payment of principal on this Note,
or (b) the Maker shall (i) commence any case, proceeding or other action relating to seeking to have an order for relief entered with
respect to it or its debts, or seeking reorganization, liquidation, dissolution, or other such relief with respect to it or its debts,
or seeking appointment of a receiver or other similar official (each of the foregoing, a “Bankruptcy Action”);
(ii) become the debtor named in any Bankruptcy Action which results in the entry of an order for relief or any such adjudication or appointment
described in the immediately preceding clause (i); or (iii) make a general assignment for the benefit of its creditors.
In each and
every Event of Default under clause (a) or (b) of this Section 2, the Payee may, without limiting any other rights it may have
at law or in equity, by written notice to the Maker, declare the unpaid principal of this Note due and payable, whereupon the same shall
be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which the Maker hereby expressly
waives, and the Payee may proceed to enforce payment of such principal or any part thereof in such manner as it may elect in its discretion.
In each and every Event of Default, the unpaid principal of this Note shall be immediately due and payable without presentment, demand,
protest or notice of any kind, all of which the Maker hereby expressly waives, and the Payee may proceed to enforce payment of such principal
or any part thereof in such manner as it may elect in its discretion.
3. NOTICES.
All notices, requests, demands or communications required or permitted under this Note shall be given in writing to the Parties at their
addresses as set forth at the beginning of this Note.
4. WAIVERS.
No delay on the part of the Payee in exercising any right, power or privilege under this Note shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder preclude the simultaneous or later exercise of any other right,
power or privilege hereunder. The Maker hereby waives to the extent not prohibited by applicable law any requirement of diligence or promptness
on the part of the Payee to enforce its rights under this Note.
5. RIGHTS
AND REMEDIES. The rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which the
Payee may otherwise have.
6. AMENDMENT.
No amendment or other modification of this Note may be made without the written consent of both Parties.
7. GOVERNING
LAW. This Note shall be governed by and construed in accordance with the laws of Delaware, and both Parties agree that any dispute
related to this Note shall be heard in the courts of Delaware.
[Signature Page Follows]
IN WITNESS WHEREOF, the
Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first
above written.
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Name: |
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Title: |
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3
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made as of December 27, 2023, by and between Nxu, Inc., a Delaware corporation (the “Company”),
and Lynks Motor Corporation, a Delaware corporation d/b/a Lynx Motors (“Lynx” and together with those Persons
who agree to become bound by the provisions of this Agreement in accordance with Section 3.5, collectively, the “Holders”).
The Company and the Holders are sometimes referred to herein individually as a “Party” and, collectively, as
the “Parties”. Capitalized terms used but not defined herein shall have the meaning assigned to such term in
the Share Exchange Agreement, dated as of the date hereof, by and between the Parties (the “Share Exchange Agreement”).
RECITALS
WHEREAS, pursuant to, and subject to the terms
and conditions of, the Share Exchange Agreement, Lynx has agreed to sell to Nxu, and Nxu has agreed to purchase from Lynx, a number of
newly issued shares of common stock, par value $0.001 per share, of Lynx representing 15% of the issued and outstanding equity interests
in Lynx as of, and after giving effect to, the closing of the transactions contemplated by the Share Exchange Agreement (the “Closing”)
in exchange for an aggregate of 1,000 newly issued shares of Series A convertible preferred stock, par value $0.0001 per share, of Nxu,
which shall be convertible into Class A Shares upon the terms and subject to the conditions set forth in the Certificate of Designation;
and
WHEREAS, to induce the Parties to enter into the
transactions contemplated by the Share Exchange Agreement, each of the Parties is required to deliver this Agreement, duly executed by
each of the Parties, contemporaneously with the Closing.
NOW, THEREFORE, in consideration
of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by each of the Parties hereto, the Parties hereby agree as follows:
Section
1.
Definitions
1.1. Certain
Definitions. In addition to the terms defined elsewhere in this Agreement, as used in this Agreement, the following terms have the
respective meanings set forth below:
(a) “Board”
shall mean the Board of Directors of the Company.
(b) “Commission”
shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.
(c) “Common
Stock” shall mean the Class A common stock of the Company, par value $0.0001 per share.
(d) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, or any similar successor federal statute and the rules
and regulations thereunder, all as the same shall be in effect from time to time.
(e) “Governmental
Entity” shall mean any federal, state, local or foreign government, or any department, agency, or instrumentality of any
government; any public international organization; any transnational governmental organization; any court of competent jurisdiction, arbitral,
administrative agency, commission, or other governmental regulatory authority or quasi-governmental authority; any political party; and
any national securities exchange or national quotation system.
(f) “Other
Securities” shall mean securities of the Company, other than Registrable Securities.
(g) “Person”
shall mean any individual, partnership, corporation, company, association, trust, joint venture, limited liability company, unincorporated
organization, entity or division, or any government, governmental department or agency or political subdivision thereof.
(h) “Registrable
Securities” shall mean (i) shares of Common Stock underlying the Series A Preferred Shares issued or issuable pursuant to,
and in accordance with, the Share Exchange Agreement and (ii) any and all shares of Common Stock issued or issuable as (or issuable upon
the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, any shares of Common Stock referred to in any of the foregoing clause (i), including, without
limitation, by way of stock splits, stock dividends, stock combinations, recapitalizations or like occurrences. Registrable Securities
shall cease to be Registrable Securities upon the earliest to occur of the following events: (1) such Registrable Securities have been
sold pursuant to an effective Registration Statement; (2) such Registrable Securities have been sold by the Holders pursuant to Rule 144
(or other similar rule); (3) such Registrable Securities may be resold by the Holder holding such Registrable Securities without limitations
as to volume or manner of sale pursuant to Rule 144; or (4) three (3) years after the date of this Agreement.
(i) The
terms “register,” “registered” and “registration” shall
refer to a registration effected by preparing and filing a Registration Statement in compliance with the Securities Act, and such Registration
Statement becoming effective under the Securities Act.
(j) “Registration
Expenses” shall mean all expenses incurred by the Company in effecting any registration pursuant to this Agreement, including,
without limitation, all registration, qualification, and filing fees, printing expenses, and fees and disbursements of counsel for the
Company, but shall not include Selling Expenses.
(k) “Registration
Statement” means any registration statement of the Company filed with, or to be filed with, the Commission under the Securities
Act, including the related prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments,
and all exhibits and all material incorporated by reference in such registration statement as may be necessary to comply with applicable
securities laws, other than a registration statement (and related prospectus) filed on Form S-4 or Form S-8 or any successor forms thereto.
(l) “Rule
144” shall mean Rule 144 as promulgated by the Commission under the Securities Act, as such rule may be amended from time
to time, or any similar successor rule that may be promulgated by the Commission having substantially the same effect as such rule.
(m) “Securities
Act” shall mean the Securities Act of 1933, as amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(n) “Selling
Expenses” shall mean all underwriting discounts and selling commissions applicable to the sale of Registrable Securities,
the fees and expenses of any legal counsel and any other advisors any of the Holders engage and all similar fees and commissions relating
to the Holders’ disposition of the Registrable Securities.
(o)
“Series A Preferred” shall mean the Series A preferred stock, par value $0.0001 per share, of the Company.
Section
2.
Resale Registration Rights
2.1. Resale
Registration Rights.
(a) On
or prior to the 45th calendar day following the date hereof, the Company shall prepare and file with the Commission a Registration
Statement on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which
case such registration shall be on another appropriate form in accordance with the Securities Act) covering the resale of the Registrable
Securities by the Holders (the “Resale Registration Shelf”). The Resale Registration Shelf shall include a “final”
prospectus, including the information required by Item 507 of Regulation S-K of the Securities Act, as provided by the Holders in accordance
with Section 2.6. The Company’s obligation pursuant to this Section 2.1(a) is conditioned upon the Holders providing
the information contemplated in Section 2.6. If the staff of the Commission (the “Staff”) or the Commission
seeks to characterize any offering pursuant to the Resale Registration Shelf as constituting an offering of securities that does not permit
such Resale Registration Shelf to become effective and be used for resales by the Holders under Rule 415, or if after the filing of the
Resale Registration Shelf with the Commission pursuant to this Section 2.1(a), the Company is otherwise required by the Staff or
the Commission to reduce the number of Registrable Securities included in the Resale Registration Shelf, then the Company shall reduce
the number of Registrable Securities to be included in the Resale Registration Shelf until the Staff and the Commission shall so permit
the Resale Registration Shelf to become effective and be used as aforesaid. In the event of any reduction in Registrable Securities pursuant
to the immediately preceding sentence, the Company shall file, as soon as permitted by the Staff or the Commission, one or more additional
Registration Statements on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form
S-3, in which case such registration shall be on another appropriate form in accordance with the Securities Act) covering the resale of
Registrable Securities by the Holders that have not previously been registered under the Securities Act for resale by the Holders pursuant
to Rule 415 until such time as all Registrable Securities have been included in such additional Registration Statement (or in one of such
additional Registration Statements) that has or have been declared effective and the prospectus contained therein is available for use
by the Holders. The provisions of this Agreement that are applicable to the Resale Registration Shelf shall also be applicable to such
additional Registration Statement or each of such additional Registration Statements to the same extent as if such additional Registration
Statement were the Resale Registration Shelf. Notwithstanding any provision in this Agreement to the contrary, the Company’s obligations
to register Registrable Securities (and any related conditions to the Holder’s obligations) pursuant to this Agreement shall be
qualified as necessary to comport with any requirement of the Commission or the Staff as addressed above in this Section 2.1(a).
(b) The
Company shall use commercially reasonable efforts to cause the Resale Registration Shelf and related prospectuses to become effective
as promptly as practicable after filing (if not automatically effective upon filing). The Company shall use commercially reasonable efforts
to cause the Resale Registration Shelf to remain effective under the Securities Act until the earlier of the date (i) all Registrable
Securities covered by the Resale Registration Shelf have been sold or may be sold freely without limitations or restrictions as to volume
or manner of sale pursuant to Rule 144 or (ii) all Registrable Securities covered by the Resale Registration Shelf otherwise cease to
be Registrable Securities pursuant to the definition of “Registrable Securities”. The Company shall promptly, and within two
(2) business days after the Company confirms effectiveness of the Resale Registration Shelf with the Commission, notify the Holders
of the effectiveness of the Resale Registration Shelf.
(c) Deferral
and Suspension. At any time after being obligated to file the Resale Registration Shelf, or after the Resale Registration Shelf has
become effective, the Company may defer the filing of or suspend the use of the Resale Registration Shelf, upon giving written notice
of such action to the Holders with a certificate signed by the Principal Executive Officer of the Company stating that in the good faith
judgment of the Board, the filing or use of the Resale Registration Shelf would be seriously detrimental to the Company or its stockholders
at such time and that the Board concludes, as a result, that it is in the best interests of the Company and its stockholders to defer
the filing or suspend the use of the Resale Registration Shelf at such time. The Company shall have the right to defer the filing of or
suspend the use of the Resale Registration Shelf for a period of not more than one hundred twenty (120) days from the date the Company
notifies the Holders of such deferral or suspension; provided that the Company shall not exercise the right contained in this Section
2.1(c) more than once in any twelve (12) month period. In the case of the suspension of use of any effective Resale Registration Shelf,
the Holders, immediately upon receipt of notice thereof from the Company, shall discontinue any offers or sales of Registrable Securities
pursuant to the Resale Registration Shelf until advised in writing by the Company that the use of the Resale Registration Shelf may be
resumed. In the case of either a suspension of use of, or deferred filing of, the Resale Registration Shelf, the Company shall not, during
the pendency of such suspension or deferral, engage in any transaction involving the offer, be required to take any action hereunder with
respect to the registration or sale of any Registrable Securities pursuant to the Resale Registration Shelf.
(d) Other
Securities. The Resale Registration Shelf may include Other Securities; provided such Other Securities are excluded first from
the Resale Registration Shelf in order to comply with any applicable laws or request from any Governmental Entity, the New York Stock
Exchange or any applicable listing agency.
2.2. Fees
and Expenses. All Registration Expenses incurred in connection with registrations pursuant to this Agreement shall be borne by the
Company. All Selling Expenses relating to securities registered on behalf of the Holders shall be borne by the Holders.
2.3. Registration
Procedures. In the case of each registration of Registrable Securities effected by the Company pursuant to Section 2.1 hereof,
the Company shall keep the Holders advised as to the initiation of each such registration and as to the status thereof, and the Company
shall use commercially reasonable efforts, within the limits set forth in this Section 2.3, to:
(a) prepare
and file with the Commission such amendments and supplements to the applicable Registration Statement and the prospectuses used in connection
with such Registration Statement, as may be necessary to keep such Registration Statement effective and current and comply with the provisions
of the Securities Act with respect to the disposition of all securities covered by such Registration Statement;
(b) furnish
to the Holders such numbers of copies of a prospectus, including preliminary prospectuses, in conformity with the requirements of the
Securities Act, and such other documents as the Holders may reasonably request in order to facilitate the disposition of Registrable Securities;
(c) use
commercially reasonable efforts to register and qualify (or file an exemption from such registration or qualification) the Registrable
Securities covered by the applicable Registration Statement under such other securities or blue sky laws of such jurisdictions in the
United States as shall be reasonably requested by the Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;
(d) notify
the Holders at any time when a prospectus relating to the applicable Registration Statement covering any Registrable Securities is required
to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. The Company shall
use commercially reasonable efforts to amend or supplement such prospectus in order to cause such prospectus not to include any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing;
(e) provide
a transfer agent and registrar for all Registrable Securities registered pursuant to the applicable Registration Statement and, if required,
a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration; and
(f) cause
all such Registrable Securities included in the applicable Registration Statement pursuant to this Agreement to be listed on each securities
exchange or other securities trading markets on which Common Stock is then listed.
2.4. Obligations
of the Holders.
(a) Discontinuance
of Distribution. The Holders agree that, upon receipt of any notice from the Company of the occurrence of any event of the kind described
in Section 2.3(d) hereof, the Holders shall immediately discontinue disposition of Registrable Securities pursuant to any Registration
Statement covering such Registrable Securities until the Holders’ receipt of the copies of the supplemented or amended prospectus
contemplated by Section 2.3(d) hereof or receipt of notice that no supplement or amendment is required and that the Holders’
disposition of the Registrable Securities may be resumed. The Company may provide appropriate stop orders to enforce the provisions of
this Section 2.4(a).
(b) Compliance
with Prospectus Delivery Requirements. The Holders covenant and agree that they shall comply with the prospectus delivery requirements
of the Securities Act as applicable to them or an exemption therefrom in connection with sales of Registrable Securities pursuant to any
Registration Statement filed by the Company pursuant to this Agreement.
(c) Notification
of Sale of Registrable Securities. The Holders covenant and agree that they shall notify the Company following the sale of Registrable
Securities to a third party as promptly as reasonably practicable, and in any event within thirty (30) days, following the sale of such
Registrable Securities.
2.5. Indemnification.
(a) To
the extent permitted by law, the Company shall indemnify the Holders, and, as applicable, their officers, directors and constituent partners,
legal counsel for each Holder and each Person controlling the Holders, with respect to which registration, related qualification, or related
compliance of Registrable Securities has been effected pursuant to this Agreement, and each underwriter, if any, and each Person who controls
any underwriter within the meaning of the Securities Act, against all claims, losses, damages, or liabilities (or actions in respect thereof)
to the extent such claims, losses, damages, or liabilities arise out of or are based upon (i) any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or other document (including any related Registration Statement) incident to
any such registration, qualification, or compliance, or (ii) any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities law applicable to the Company and relating to action or inaction required of the Company in connection
with any such registration, qualification, or compliance; and the Company shall pay as incurred to the Holders, each such underwriter,
and each Person who controls the Holders or underwriter, any legal and any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability, or action; provided, however, that the indemnity contained in this
Section 2.5(a) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or action if settlement
is effected without the consent of the Company (which consent shall not unreasonably be withheld); and provided, further,
that the Company shall not be liable in any such case to the extent that any such claim, loss, damage, liability, or expense arises out
of or is based upon any violation by such Holder of the obligations set forth in Section 2.4 hereof or any untrue statement or
omission contained in such prospectus or other document based upon written information furnished to the Company by the Holders, such underwriter,
or such controlling Person and stated to be for use therein.
(b) To
the extent permitted by law, each Holder (severally and not jointly) shall, if Registrable Securities held by such Holder are included
for sale in the registration and related qualification and compliance effected pursuant to this Agreement, indemnify the Company, each
of its directors, each officer of the Company who signs the applicable Registration Statement, each legal counsel and each underwriter
of the Company’s securities covered by any such Registration Statement, and each Person who controls the Company or such underwriter
within the meaning of the Securities Act, against all claims, losses, damages, and liabilities (or actions in respect thereof) arising
out of or based upon (i) any untrue statement (or alleged untrue statement) of a material fact contained in any such Registration Statement,
or related document, or (ii) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (iii) any violation or alleged violation by such Holder of Section 2.4 hereof,
the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any state securities law applicable to such Holder and relating to action or inaction required of such Holder in connection with
any such registration and related qualification and compliance, and shall pay as incurred to such persons, any legal and any other expenses
reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, in each case only
to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in (and such violation
pertains to) such Registration Statement or related document in reliance upon and in conformity with written information furnished to
the Company by such Holder and stated to be specifically for use therein; provided, however, that the indemnity contained
in this Section 2.5(b) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability, or action if settlement
is effected without the consent of such Holder (which consent shall not unreasonably be withheld); provided, further, that
such Holder’s liability under this Section 2.5(b) (when combined with any amounts such Holder is liable for under Section
2.5(d)) shall not exceed such Holder’s net proceeds from the offering of securities made in connection with such registration.
(c) Promptly
after receipt by an indemnified party under this Section 2.5 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 2.5, notify the indemnifying
party in writing of the commencement thereof and generally summarize such action. The indemnifying party shall have the right to participate
in and to assume the defense of such claim; provided, however, that the indemnifying party shall be entitled to select counsel
for the defense of such claim with the approval of any parties entitled to indemnification, which approval shall not be unreasonably withheld);
provided, further, however, that if either party reasonably determines that there may be a conflict between the position
of the Company and the Holders in conducting the defense of such action, suit, or proceeding by reason of recognized claims for indemnity
under this Section 2.5, then counsel for such party shall be entitled to conduct the defense to the extent reasonably determined
by such counsel to be necessary to protect the interest of such party. The failure to notify an indemnifying party promptly of the commencement
of any such action, if prejudicial to the ability of the indemnifying party to defend such action, shall relieve such indemnifying party,
to the extent so prejudiced, of any liability to the indemnified party under this Section 2.5, but the omission so to notify the
indemnifying party shall not relive such party of any liability that such party may have to any indemnified party otherwise than under
this Section 2.5.
(d) If
the indemnification provided for in this Section 2.5 is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand
and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the Parties’
relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. In no event, however,
shall (i) any amount due for contribution hereunder be in excess of the amount that would otherwise be due under Section 2.5(a)
or Section 2.5(b), as applicable, based on the limitations of such provisions and (ii) a Person guilty of fraudulent misrepresentation
(within the meaning of the Securities Act) be entitled to contribution from a Person who was not guilty of such fraudulent misrepresentation.
(e) The
obligations of the Company and the Holders under this Section 2.5 shall survive the completion of any offering of Registrable Securities
in a Registration Statement under this Agreement or otherwise.
2.6. Information.
The Holders shall furnish to the Company such information regarding the Holders and the distribution proposed by the Holders as the Company
may reasonably request and as shall be reasonably required in connection with any registration referred to in this Agreement. The Holders
agree to, as promptly as practicable (and in any event prior to any sales made pursuant to a prospectus), furnish to the Company all information
required to be disclosed in order to make the information previously furnished to the Company by the Holders not misleading. The Holders
agree to keep confidential the receipt of any notice received pursuant to Section 2.3(d) and the contents thereof, except as required
pursuant to applicable law. Notwithstanding anything to the contrary herein, the Company shall be under no obligation to name a Holder
in any Registration Statement if such Holders has not provided the information required by this Section 2.6 with respect to such Holder
as a selling securityholder in such Registration Statement or any related prospectus.
2.7. Rule
144 Requirements. With a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the
Commission that may at any time permit the Holders to sell Registrable Securities to the public without registration, the Company agrees
to use commercially reasonable efforts to:
(a) make
and keep public information available, as those terms are understood and defined in Rule 144 at all times after the date hereof;
(b) file
with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange
Act;
(c) prior
to the filing of the Registration Statement or any amendment thereto (whether pre-effective or post-effective), and prior to the
filing of any prospectus or prospectus supplement related thereto, to provide the Holders with copies of all of the pages thereof (if
any) that reference the Holders; and
(d) furnish
to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested by an Holder
in availing itself of any rule or regulation of the Commission which permits an Holder to sell any such securities without registration.
Section
3.
Miscellaneous
3.1. Amendment.
The terms and provisions of this Agreement may be modified, amended or terminated, and any of the provisions hereof may be waived, temporarily
or permanently, pursuant to a writing executed by a duly authorized representative of the Company and Holders holding a majority of the
then outstanding Registrable Securities; provided that this Agreement may not be modified or amended, and no provision hereof may
be waived, in any way that would adversely affect the rights of any Holder(s) hereunder in a manner disproportionate to any adverse effect
such modification, amendment or waiver would have on the rights of all Holders as a whole, without also the prior written consent of such
Holders that are so disproportionately adversely affected.
3.2. Injunctive
Relief. It is hereby agreed and acknowledged that it shall be impossible to measure in money the damages that would be suffered if
the Parties fail to comply with any of the obligations herein imposed on them and that in the event of any such failure, an aggrieved
Person shall be irreparably damaged and shall not have an adequate remedy at law. Any such Person shall, therefore, be entitled (in addition
to any other remedy to which it may be entitled in law or in equity) to injunctive relief, including, without limitation, specific performance,
to enforce such obligations, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of
the Parties hereto shall raise the defense that there is an adequate remedy at law.
3.3. Notices.
All notices required or permitted under this Agreement must be in writing and sent to the address or facsimile number identified below.
Notices must be given: (a) by personal delivery, with receipt acknowledged; (b) by electronic mail followed by hard copy delivered by
the methods under clause (a), (c) or (d); (c) by prepaid certified or registered mail, return receipt requested;
or (d) by prepaid reputable overnight delivery service. Notices shall be effective upon receipt. Either Party may change its notice address
by providing the other Party written notice of such change. Notices shall be delivered as follows:
If to Lynx: |
Lynks Motor Corporation
3267 Bee Caves Rd., Suite 107-247
Austin, TX 78746
Attn: Christian Okonsky, Chairman
Email: christian@lynks.co
|
If to the Company: |
Nxu, Inc.
1828 N. Higley Rd. Suite 116
Mesa, AZ 85205
Attn: Jordan
Christensen
Email: jordan@nxuenergy.com
|
with a copy to: |
Winston & Strawn LLP
800 Capitol Street
Houston, TX 77002
Attn: Michael Blankenship
Email: mblankenship@winston.com
|
3.4. Governing
Law; Jurisdiction; Venue; Jury Trial.
(a) This
Agreement shall be governed by, and construed in accordance with, the law 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 the State of Delaware.
(b) Each
of the Company and the Holders irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of
the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the United States
District Court for the District of Delaware or, to the extent that neither of the foregoing courts has jurisdiction, the Superior Court
of the State of Delaware, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement
and the transactions contemplated herein, or for recognition or enforcement of any judgment, and each of the Company and the Holders irrevocably
and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such courts. Each
of the Company and the Holders hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Each
of the Company and the Holders irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection
that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement and
the transactions contemplated herein in any court referred to in Section 3.4(b) hereof. Each of the Company and the Holders hereby
irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) EACH
OF THE COMPANY AND THE HOLDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH OF THE COMPANY AND THE HOLDERS (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT EACH OF THE COMPANY AND THE HOLDERS HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
3.5. Successors,
Assigns and Transferees. Any and all rights, duties and obligations hereunder shall not be assigned, transferred, delegated or sublicensed
by any Party hereto without the prior written consent of the other Party; provided, however, that the Holders shall be entitled
to transfer Registrable Securities to one or more of their affiliates, and, solely in connection therewith, may assign their rights hereunder
in respect of such transferred Registrable Securities, in each case, without the prior consent of the Company so long as such Holder is
not relieved of any liability or obligations hereunder. Any transfer or assignment made other than as provided in the first sentence of
this Section 3.5 shall be null and void. Subject to the foregoing and except as otherwise provided herein, the provisions of this
Agreement shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of
the Parties hereto.
3.6. Entire
Agreement. This Agreement, together with any exhibits hereto, constitute the entire agreement between the Parties relating to the
subject matter hereof and all previous agreements or arrangements between the Parties, written or oral, relating to the subject matter
hereof are superseded.
3.7. Waiver.
No failure on the part of either Party hereto to exercise any power, right, privilege or remedy under this Agreement, and no delay on
the part of either Party hereto in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver thereof;
and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or
of any other power, right, privilege or remedy.
3.8. Severability.
If any part of this Agreement is declared invalid or unenforceable by any court of competent jurisdiction, such declaration shall not
affect the remainder of the Agreement and the invalidated provision shall be revised in a manner that shall render such provision valid
while preserving the Parties’ original intent to the maximum extent possible.
3.9. Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement. All references in this Agreement to sections, paragraphs and exhibits shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits attached hereto.
3.10. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the Parties that execute such
counterparts (including by facsimile or other electronic means), and all of which together shall constitute one instrument.
3.11. Term
and Termination. The Holders’ rights to demand the registration of the Registrable Securities under this Agreement, as well
as the obligations hereunder of the Company and the Holders other than pursuant to Section 2.5 hereof, shall terminate automatically
once all Registrable Securities cease to be Registrable Securities pursuant to the terms of this Agreement.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows]
IN WITNESS WHEREOF, the Parties
hereto have executed this Registration Rights Agreement effective as of the date first above written.
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NXU, INC. |
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Chief Executive Officer |
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LYNKS MOTOR CORPORATION |
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[Signature Page to Registration Rights Agreement]
Exhibit 99.1
Press Release
FOR RELEASE ON: Dec. 27, 2023, 12:30 p.m. ET
Nxu Executes Strategic Partnership and Investment
in Lynx Motors
Nxu finalizes transaction with Lynx
MESA, Ariz., Dec. 27, 2023 – Nxu, Inc., (NASDAQ: NXU)
(“Nxu”, “the Company”), a domestic technology company creating innovative EV charging and energy storage solutions
for the infrastructure we need to power our electrified future, has executed definitive documents to finalize its strategic investment
in Lynx Motors. This transaction both memorializes Nxu’s commitment to utilizing strategic partnerships to accelerate its mission
to develop superior highway electrification and demonstrates continued execution of Nxu’s Nasdaq compliance plan. The financial
impact of the transaction results in an increase in Nxu’s shareholder equity and helps to ensure that Nxu can achieve and maintain
Nasdaq’s continued listing standards by and beyond Nasdaq’s extension deadline of April 7, 2024.
“We’re excited to make this Lynx partnership official,
teaming up with a company that shares our vision for an electrified future,” said Nxu Founder, Chairman and CEO Mark Hanchett. “Leveraging
symbiotic industry knowledge and similarly ambitious goals, we look forward to joining forces with Lynx to supercharge our collective
impact on the future of EVs and charging infrastructure. As a byproduct of the transaction, we’re able to continue executing on
the compliance plan we presented to Nasdaq and further validate its decision to grant us an additional compliance period.”
Nxu’s investment is structured as a share exchange, whereby $3
million in Nxu shares will be exchanged for $3 million in Lynx shares. The value of Lynx shares become an asset on the Company’s
balance sheet. Additionally, Nxu now holds one seat on Lynx’s Board of Directors, allowing the Company a hands-on opportunity to
help develop Lynx and monitor the status of its investment. To expedite the electrification process, Lynx has issued an interest-free
promissory note of $250,000 to Nxu in exchange for a $250,000 bridge loan. The Agreement is subject to registration rights and representations
and warranties that survive the closing.
About Nxu, Inc.
Nxu, Inc. is a domestic technology company leveraging its intellectual
property and innovations to support e-Mobility and energy storage solutions. Driving the energy future, Nxu is developing an ecosystem
of industry-leading grid level energy storage solutions, charging infrastructure and over-air cloud management – encompassed by
Nxu’s seamless subscription-based models. For more information, visit www.nxuenergy.com.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995, including, but not limited to, statements regarding our future areas of focus and expectations for our business. These
forward-looking statements are based on our current assumptions, expectations and beliefs and involve substantial risks and uncertainties
that may cause results, performance or achievements to materially differ from those expressed or implied by these forward-looking statements.
Such forward-looking statements include statements regarding, among other things, Nxu’s expectations about its long term growth
strategy, future growth trajectory, revenue and operations; Nxu’s technology and alignment with broader trends in the EV market;
opportunities presented by electrification; beliefs about the general strength, weakness or health of Nxu’s business; and beliefs
about current or future trends in EV battery materials or other markets and the impact of these trends on Nxu’s business. A detailed
discussion of these factors and other risks that affect our business is included in filings we make with the Securities and Exchange Commission
(SEC) from time to time, including our most recent report on Form 10-K, particularly under the heading “Risk Factors.” Copies
of these filings are available online from the SEC or on the SEC Filings section of our Investor Relations website at www.nxuenergy.com.
All forward-looking statements in this press release are based on information currently available to us, and we assume no obligation to
update these forward-looking statements in light of new information or future events.
CONTACT:
Media Contact
press@nxuenergy.com
Investor Contact
Investors@nxuenergy.com
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NXU (NASDAQ:NXU)
過去 株価チャート
から 6 2024 まで 7 2024
NXU (NASDAQ:NXU)
過去 株価チャート
から 7 2023 まで 7 2024