Filed by ECARX Holdings, Inc.
Pursuant to Rule 425 under the Securities Act of 1933,
as amended, and deemed filed pursuant to Rule 14a-12
under the Securities Exchange Act of 1934, as amended
Subject Company: COVA Acquisition Corp.
Commission File No.: 001-40012
STRATEGIC INVESTMENT AGREEMENT
This
STRATEGIC INVESTMENT AGREEMENT (this “Agreement”) is entered into on May 26, 2022, by and between ECARX
Holdings Inc., an exempted company incorporated with limited liability in the Cayman Islands (the “Issuer”), and Geely
Investment Holding Ltd., a company incorporated under the laws of the British Virgin Islands
(the “Investor”). Capitalized terms used and not defined in this Agreement have the meanings ascribed
to such terms in the Transaction Agreement (as defined below).
WHEREAS,
this Agreement is being entered into in connection with that certain Agreement and Plan of Merger, dated as of the date hereof (as may
be amended, modified, supplemented or waived from time to time in accordance with its terms, the “Transaction Agreement”),
by and among the Issuer, COVA Acquisition Corp., an exempted company incorporated with limited liability in the Cayman Islands (“SPAC”),
Ecarx Temp Limited, an exempted company incorporated with limited liability in the Cayman Islands and a direct wholly owned subsidiary
of the Issuer (“Merger Sub 1”), and Ecarx&Co Limited, an exempted company incorporated with limited liability
in the Cayman Islands and a direct wholly owned subsidiary of the Issuer (“Merger Sub 2”), pursuant to which, on the
terms and subject to the conditions set forth therein, among other things, (a) Merger Sub 1 will merge with and into SPAC (the “First
Merger”), with SPAC as the surviving company in the First Merger and, after giving effect to the First Merger, becoming a wholly
owned subsidiary of the Issuer, and (b) SPAC will merge with and into Merger Sub 2 (the “Second Merger,” and
together with the First Merger and the other transactions contemplated by the Transaction Agreement, the “Transaction”),
with Merger Sub 2 as the surviving company in the Second Merger and, after giving effect to the Second Merger, becoming a wholly owned
subsidiary of the Issuer;
WHEREAS,
in connection with, and contingent on the closing of, the Transaction, the Investor desires to subscribe for and purchase and the Issuer
desires to issue and sell to the Investor, on the Closing Date, 2,000,000 Class A ordinary shares in the Issuer, par value $0.000005
per share (the “Shares”) at a purchase price of $10.00 per share (the “Per Share Purchase Price”),
for the aggregate purchase price of US$20,000,000 (the “Subscription Amount”), all on the terms and conditions set
forth herein; and
WHEREAS, in connection with
the Transaction, the Issuer and/or SPAC (a) are entering into subscription agreements on the date hereof, and may enter into after
the date hereof, Subsequent Equity Subscription Agreements (together with the subscription agreements entered into on the date hereof,
the “Equity Subscription Agreements”) with certain investors (the “Other Equity Investors,” together
with the Investor, collectively, the “Equity Investors”), pursuant to which the Other Equity Investors have agreed
to or will agree to subscribe for and purchase, and the Issuer has agreed to or will agree to issue and sell to the Other Equity Investors,
on the Closing Date, the Shares at the Per Share Purchase Price, and (b) may enter into certain Permitted Financing Agreements (other
than the Equity Subscription Agreements) with certain parties (each, a “Financing Party”, and collectively, the “Financing
Parties”, together with the Equity Investors, the “Ecarx Investors”) pursuant to which the Issuer may agree
to, among other matters, issue Equity Securities of the Issuer to such Financing Parties.
NOW, THEREFORE, in consideration
of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending
to be legally bound hereby, the parties hereto hereby agree as follows:
| 1. | Subscription.
Subject to the terms and conditions hereof, the Investor hereby irrevocably subscribes for
and agrees to purchase from the Issuer, and the Issuer hereby agrees to issue and sell to
the Investor, the Shares, on the terms and subject to the conditions provided for herein. |
| 2.1 | The
closing of the issuance and sale of the Shares contemplated hereby (the “Closing”)
shall occur on the closing date of the Transaction (the “Closing Date”)
and substantially concurrent with (and subject to), the consummation of the Transaction and
satisfaction or waiver of the other conditions set forth in Section 3 hereof. |
| 2.2 | At
least five (5) business days before the expected Closing Date, the Issuer shall deliver
written notice to the Investor (the “Closing Notice”) specifying
the expected Closing Date and that the Issuer reasonably expects all conditions to the closing
of the Transaction to be satisfied or waived on an expected closing date that is not less
than five (5) business days from the date on which the Closing Notice is delivered to
the Investor, (a) the Investor shall deliver to the Issuer, (i) three (3) business
days prior to the expected closing date specified in the Closing Notice, the Subscription
Amount by wire transfer of U.S. dollars in immediately available funds to the account in
an escrow bank specified by the Issuer in the Closing Notice, to be held in a segregated
escrow account on behalf of the Investor until the closing of the First Merger, or (ii) on
the expected closing date specified in the Closing Notice, the Subscription Amount to an
account specified by the Issuer, or otherwise mutually agreed by the Investor and the Issuer
due to regulatory reasons that apply to the Investor, by wire transfer of U.S. dollars in
immediately available funds, and (b) as soon as practicable following, but not later
than one (1) business day after the Closing Date, the Issuer shall (i) issue the
Shares to the Investor, free and clear of any liens or other restrictions (other than those
arising under applicable securities laws) and subsequently (but not later than two (2) business
days thereafter) cause the Shares to be registered in book-entry form in the name of the
Investor on the Issuer’s register of members and (ii) provide to the Investor
evidence of such issuance from the Issuer’s transfer agent. |
| 2.3 | If the Closing does not occur within five
(5) business days following the expected closing date specified in the Closing Notice,
unless otherwise agreed to by the Issuer and the Investor, the Issuer shall promptly (but
not later than two (2) business days following the expected closing date specified in
the Closing Notice) cause the escrow agent to return the Subscription Amount in full, without
any deduction or penalty of any kind, for or on account of any tax, withholding, charges,
set-off or otherwise, to the Investor by wire transfer of U.S. dollars in immediately available
funds to the account specified by the Investor, and any book-entries for the Shares shall
be deemed cancelled; provided that unless this Agreement has been terminated pursuant
to Section 6, such return of funds shall not terminate this Agreement or relieve
the Investor of its obligation to purchase the Shares at the Closing upon delivery by the
Issuer of a subsequent Closing Notice in accordance with the terms of this Section 2. |
| 2.4 | Prior to or on the Closing Date, the Investor
shall deliver to the Issuer any other information that is reasonably requested in order for
the Issuer to issue the Shares , including, without limitation, the legal name of the person
in whose name such Shares are to be issued and a duly executed Internal Revenue Service Form W-9
or W-8, as applicable. For purposes of this Agreement, “business day” shall mean
any day other than a Saturday, Sunday or other day on which commercial banks in New York,
New York, the Cayman Islands, Hong Kong and mainland China are authorized or required by
law to close. |
| 3.1 | Conditions to Closing of the Issuer.
The Issuer’s obligations to sell and issue the Shares at the Closing are subject to
the fulfillment or (to the extent permitted by applicable law) written waiver, on or prior
to the Closing Date, of each of the following conditions: |
| (a) | Closing of the Transaction. All
conditions precedent to effect the closing of the Transaction shall have been satisfied or
waived (other than those conditions that, by their nature, may only be satisfied at the consummation
of the closing of the Transaction but subject to satisfaction or waiver thereof). |
| (b) | Representations and Warranties Correct.
The representations and warranties made by the Investor in Section 4.2 shall
be true and correct in all material aspects as of the Closing Date other than (i) such
representations and warranties qualified by materiality, Investor Material Adverse Effect
or similar qualification, which shall be true and correct in all respects as of the Closing
Date and (ii) such representations and warranties which speak as to an earlier date,
which representations and warranties shall be true and correct in all material respects (or,
if qualified by materiality, Investor Material Adverse Effect or similar qualification,
in all respects) as of such date. |
| (c) | Legality. There shall not be in
force any order, judgment, injunction, decree, writ, stipulation, determination or award,
in each case, entered by or with any governmental authority, law, statute, rule or regulation
enjoining or prohibiting the issuance and sale of the Shares under this Agreement. |
| (d) | Performance and Compliance under the
Agreement. The Investor shall have wired the Subscription Amount in accordance with Section 2
of this Agreement and otherwise performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by it at or prior to the Closing, except where the failure of
such performance or compliance would not or would not reasonably be expected to prevent,
materially delay, or materially impair the ability of the Investor to consummate the Closing. |
| 3.2 | Conditions to Closing of the Investor.
The Investor’s obligation to subscribe for and purchase the Shares at the Closing is
subject to the fulfillment or (to the extent permitted by applicable law) written waiver,
on or prior to the Closing Date, of each of the following conditions: |
| (a) | Closing of the Transaction. All
conditions precedent to effect the Transaction shall have been satisfied or waived (other
than those conditions that, by their nature, may only be satisfied at the closing of the
Transaction but subject to satisfaction or waiver thereof) and the consummation of the Transaction
shall have occurred. |
| (b) | Representations and Warranties Correct.
The representations and warranties made by the Issuer in Section 4.1 shall be
true and correct in all material aspects as of the Closing Date other than (i) such
representations and warranties qualified by materiality, Issuer Material Adverse Effect
(as defined below) or similar qualification, which shall be true and correct in all respects
as of the Closing Date and (ii) such representations and warranties which speak as to
an earlier date, which representations and warranties shall be true and correct in all material
respects (or, if qualified by materiality, Issuer Material Adverse Effect or similar
qualification, in all respects) as of such date. |
| (c) | Legality. There shall not be in
force any order, judgment, injunction, decree, writ, stipulation, determination or award,
in each case, entered by or with any governmental authority, law, statute, rule or regulation
enjoining or prohibiting the issuance and sale of the Shares under this Agreement. |
| (d) | Performance and Compliance under the
Agreement. The Issuer shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by it at or prior to the Closing, except where the failure of
such performance or compliance would not or would not reasonably be expected to prevent,
materially delay, or materially impair the ability of the Issuer to consummate the Closing. |
| (e) | Transaction Agreement. The terms
of the Transaction Agreement (including the conditions thereto) shall not have been amended
or waived in a manner that materially and adversely affect the economic benefits the Investor
reasonably expects to receive under this Agreement. |
| 4. | Representations,
Warranties and Agreements. |
| 4.1 | Issuer’s Representations, Warranties
and Agreements. The Issuer hereby represents and warrants to the Investor as follows: |
| (a) | The Issuer is an exempted company duly
incorporated, validly existing and in good standing under the laws of the Cayman Islands.
The Issuer has all power (corporate or otherwise) and authority to own, lease and operate
its properties and conduct its business as presently conducted and contemplated to be conducted
and to enter into, deliver and perform its obligations under this Agreement. |
| (b) | At the Closing, the Shares will have been
duly authorized, and when issued and delivered to the Investor against full payment in cash
for the Shares in accordance with the terms of this Agreement and registered in the Issuer’s
register of members, the Shares will be validly issued and allotted and fully paid and non-assessable,
free and clear of any liens or other encumbrances (other than those arising under applicable
securities laws) and will not have been issued in violation of or subject to any preemptive
or similar rights created under the Issuer’s organizational documents (as in effect
at such time of issuance) or the laws of the Cayman Islands. |
| (c) | This Agreement has been duly authorized,
executed and delivered by the Issuer and, assuming that this Agreement constitutes the valid
and binding obligation of the Investor, is enforceable against it in accordance with its
terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting
the rights of creditors generally and (ii) principles of equity, whether considered
at law or equity. |
| (d) | The
issuance and sale of the Shares and the compliance by the Issuer with all of the provisions
of this Agreement and the consummation of the transactions contemplated herein, will not
(i) conflict with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of the Issuer pursuant to the terms of
any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement
or instrument to which the Issuer is a party or by which the Issuer is bound or to which
any of the property or assets of the Issuer is subject, which would reasonably be expected
to have a material adverse effect on the ability of the Issuer to enter into and timely perform
its obligations under this Agreement (an “Issuer Material Adverse Effect”),
(ii) result in any violation of the provisions of the organizational documents of the
Issuer or (iii) result in any violation of any statute or any judgment, order, rule or
regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction
over the Issuer or any of its properties that would reasonably be expected to have an Issuer
Material Adverse Effect. |
| (e) | Assuming
the accuracy of the Investor’s representations and warranties set forth in Section 4.2,
in connection with the offer, sale and delivery of the Shares in the manner contemplated
by this Agreement, no registration under the Securities Act of 1933, as amended (the “Securities
Act”) is required for the offer and sale of the Shares by the Issuer to the Investor.
The Shares (i) were not offered to the Investor by any form of general solicitation
or general advertising, including methods described in section 502(c) of Regulation
D under the Securities Act and (ii) are not being offered in a manner involving a public
offering under, or in a distribution in violation of, the Securities Act, or any state securities
laws. |
| (f) | The Issuer will use the cash proceeds
of the sale of the Shares contemplated by the Equity Subscription Agreements and this Agreement
exclusively to operate the Issuer’s business post-Closing and will not, directly or
indirectly, or in any way, use the proceeds, or lend, contribute or otherwise make available
such proceeds to any affiliates, subsidiaries, or its parent or other person or entity, for
the purpose of financing the activities of any person, entity or country currently subject
to sanctions imposed by any of the laws of a relevant and applicable jurisdiction, including
the jurisdiction(s) in which the Agreement will take place, the United States (including
sanctions programs administered by the US Department of the Treasury’s Office of Foreign
Assets Control), United Kingdom and the European Union. |
| (g) | The
Issuer is not (i) a person or entity named on the Specially Designated Nationals and
Blocked Persons List administered by the U.S. Treasury Department’s Office of Foreign
Assets Control (“OFAC”) or in any Executive Order issued by the President
of the United States and administered by OFAC, or a person or entity prohibited by any OFAC
Sanctions program, or any similar list of sanctioned persons administered by the European
Union or the United Kingdom (collectively, “Sanctions Lists”);
(ii) directly or indirectly, owned or controlled by, or acting on behalf of, one or
more persons that are named on the Sanctions Lists; (iii) organized, incorporated, established,
located, resident or born in, or a citizen, national or the government, including any political
subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria,
the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial
trade restrictions by the United States, the European Union or the United Kingdom; (iv) a
Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515;
or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S.
shell bank (each, a “Prohibited Investor”). The Issuer agrees to provide
law enforcement agencies, if requested thereby, such records as required by applicable law;
provided that the Issuer is permitted to do so under applicable law. To the extent
required, the Issuer maintains procedures that it reasonably believes to be in compliance
with sanctions programs administered by the United States, the European Union and the United
Kingdom. To the extent required and from and after the closing of the Transaction, the Issuer
shall maintain procedures adequate and necessary to ensure its compliance with sanctions
programs administered by the United States, the European Union and the United Kingdom, and
the Issuer shall comply with such sanctions programs to which it is legally subject and with
which it is legally obligated to comply. |
| (h) | No broker, finder or other financial consultant
is acting on behalf of the Issuer in connection with this Agreement or the transactions contemplated
hereby in such a way as to create any liability of the Investor for the payment of any fees,
costs, expenses or commissions. |
| (i) | (i) The Equity Subscription Agreements
reflect or will reflect the same Per Share Purchase Price and other material terms and conditions
(including the registration rights) with respect to the purchase of the Shares that are no
more favorable to any Other Equity Investor thereunder in any material respect than the terms
of this Agreement, other than terms particular to the issuance of any Other Equity Investor’s
shares to the Issuer (if such Other Equity Investor elects to issue and sell its shares to
the Issuer), SPAC as a signing party thereto, the regulatory requirements of the Other Equity
Investors or their respective affiliates or related funds that are mutual funds or are otherwise
subject to regulations related to the timing of funding and the issuance of the related Shares
(collectively, the “Excluded Terms”), and (ii) any Permitted Financing
Agreement to the extent it provides for the issuance of Equity Securities of the Issuer,
other than (A) the convertible note purchase agreement dated May 9, 2022 by and
between the Issuer and Lotus Technology Inc. and the convertible note dated May 13,
2022 issued by the Issuer to Lotus Technology Inc., and (B) any Permitted Financing
Agreement pursuant to which (I) the Equity Securities of the Issuer to be issued thereunder
are convertible into the Shares at an effective conversion price of no less than the Per
Share Purchase Price, and (II) the Permitted Financing Proceeds thereunder will be funded
prior to (and not subject to) the consummation of the Transaction (the agreements in (A) and
(B) are collectively referred to as the “Excluded Subscription Agreements”),
will not contain any terms (other than the Excluded Terms as applied mutatis mutandis)
that provide a greater economic benefit with respect to such Equity Securities of the Issuer
to be received by the Financing Party than the benefits to be received by the Investor under
this Agreement. |
| (j) | None of the Equity Subscription Agreements
shall be amended, modified or terminated, and no provision thereof may be waived, in each
case, in any way which would adversely affect the rights of the Investor in a manner disproportionate
to any adverse effect such amendment, modification, termination or waiver would have on the
rights of any of the Other Equity Investors. In addition, no Permitted Financing Agreement
shall be entered into, amended, modified or terminated, and no provision thereof may be waived,
in each case, in any way which would adversely affect the rights of the Investor solely with
respect to the Shares in a manner disproportionate to any adverse effect such amendment,
modification, termination or waiver would have on the rights of any Financing Party solely
with respect to the Equity Securities of the Issuer to be received by such Financing Party
pursuant to the applicable Permitted Financing Agreement. In addition, if the Issuer provides
any terms more favorable to any of the Other Equity Investors with respect to the Shares
under the Equity Subscription Agreements (but excluding the Excluded Terms) or terms more
favorable to any of the Financing Parties with respect to the Equity Securities of the Issuer
under the Permitted Financing Agreements (but excluding the Excluded Terms as applied mutatis
mutandis) than those terms provided to the Investor, either directly or indirectly by
amendment, merger, consolidation, recapitalization, reclassification, or otherwise, the Issuer
shall promptly provide the Investor with written notice thereof, and, upon written request
of the Investor, any additional information related to such terms as may be reasonably requested
by the Investor. In the event the Investor determines that such terms are preferable to the
terms contemplated herein and seeks to receive any such terms, the Investor shall notify
the Issuer in writing within 10 days of the receipt of the Issuer’s notice. Promptly
after receipt of such written notice from the Investor, the Issuer agrees to amend and restate
any required documents to provide identical terms to the Investor. Notwithstanding anything
to the contrary in this Agreement, this Section 4.1(j) shall not apply to
the Excluded Subscription Agreements. |
| 4.2 | Investor’s Representations, Warranties
and Agreements. The Investor hereby represents and warrants to the Issuer and acknowledges
as follows: |
| (a) | The Investor is a company duly incorporated,
validly existing and in good standing under the laws of the British Virgin Islands. The Investor has all power (corporate or otherwise)
and authority to own, lease and operate its properties and conduct its business as presently conducted and contemplated to be conducted
and to enter into, deliver and perform its obligations under this Agreement. |
| (b) | This Agreement has been duly authorized,
executed and delivered by the Investor and, assuming that this Agreement constitutes the
valid and binding obligation of the Issuer, is enforceable against it in accordance with
its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting
the rights of creditors generally and (ii) principles of equity, whether considered
at law or equity. |
| (c) | The
compliance by the Investor with all of the provisions of this Agreement and the consummation
of the transactions contemplated herein will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any of the property
or assets of the Investor pursuant to the terms of any indenture, mortgage, deed of trust,
loan agreement, lease, license or other agreement or instrument to which the Investor is
a party or by which the Investor is bound or to which any of the property or assets of the
Investor is subject, which would reasonably be expected to have a material adverse effect
on the ability of the Investor to enter into and timely perform its obligations under this
Agreement (an “Investor Material Adverse Effect”), (ii) result
in any violation of the provisions of the organizational documents of the Investor or (iii) result
in any violation of any statute or any judgment, order, rule or regulation of any court
or governmental agency or body, domestic or foreign, having jurisdiction over the Investor
or any of its properties that would reasonably be expected to have an Investor Material Adverse
Effect. |
| (d) | The Investor (i) is not a “U.S.
Person” (as such term is defined in Regulation S promulgated under the Securities Act),
(ii) is acquiring the Shares only for its own account and not for the account of others,
and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act. |
| (e) | The Investor acknowledges and agrees that
the Shares were not offered by any form of general solicitation or general advertising and
are being offered in a transaction not involving any public offering within the meaning of
the Securities Act and, that the Shares have not been registered under the Securities Act
and the Issuer is not required to register the Shares except as set forth in Section 5.
The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred,
pledged or otherwise disposed of by the Investor absent an effective registration statement
under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to
non-U.S. persons pursuant to offers and sales that occur solely outside the United States
within the meaning of and in compliance with Regulation S under the Securities Act, or (iii) pursuant
to another applicable exemption from the registration requirements of the Securities Act,
and, in each case, in accordance with any applicable securities laws of the states of the
United States and other applicable jurisdictions, and that any book-entry position or certificates
representing the Shares shall contain a restrictive legend to such effect. The Investor acknowledges
and agrees that the Shares will be subject to transfer restrictions and, as a result of these
transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge
or otherwise dispose of the Shares and may be required to bear the financial risk of an investment
in the Shares for an indefinite period of time. The Investor acknowledges and agrees that
the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant
to Rule 144 promulgated under the Securities Act until at least six months from the
issuance date thereof and to the extent Rule 144 is available. The Investor acknowledges
and agrees that it has been advised to consult legal counsel and tax and accounting advisors
prior to making any offer, resale, transfer, pledge or disposition of any of the Shares. |
| (f) | The Investor acknowledges and agrees that
the Investor is purchasing the Shares directly from the Issuer. The Investor further acknowledges
that there have been no representations, warranties, covenants and agreements made to the
Investor by or on behalf of the Issuer, any of their respective affiliates or any control
persons, officers, directors, employees, partners, agents or representatives of any of the
foregoing or any other person or entity, expressly or by implication, other than those representations,
warranties, covenants and agreements of the Issuer expressly set forth in Section 4.1
of this Agreement. |
| (g) | The Investor acknowledges and agrees that
the Investor has received such information as the Investor deems necessary in order to make
an investment decision with respect to the Shares, including, with respect to the Issuer,
the Transaction and the business of the Issuer and its subsidiaries. The Investor has sufficient
knowledge and experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investment in the Issuer. The Investor is capable of bearing
the economic risks of such investment, including a complete loss of its investment. |
| (h) | The Investor acknowledges that certain
information provided to the Investor was based on projections, and such projections were
prepared based on assumptions and estimates that are inherently uncertain and are subject
to a wide variety of significant business, economic and competitive risks and uncertainties
that could cause actual results to differ materially from those contained in the projections. |
| (i) | The
Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed
the merits of the offering of the Shares or made any findings or determination as
to the fairness of this investment. |
| (j) | The
Investor is not a Prohibited Investor. The Investor agrees to provide law enforcement
agencies, if requested thereby, such records as required by applicable law; provided
that the Investor is permitted to do so under applicable law. To the extent required, it
maintains policies and procedures reasonably designed to ensure compliance with sanctions
programs administered by the United States, the European Union and the United Kingdom. |
| (k) | Except as expressly disclosed in a Schedule
13D or Schedule 13G (or amendments thereto) filed by the Investor with the SEC with respect
to the beneficial ownership of SPAC’s ordinary shares prior to the date hereof, the
Investor is not currently (and at all times through Closing will refrain from being or becoming)
a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act) acting for the purpose of acquiring, holding or disposing of equity securities
of SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). |
| (l) | The Investor has or has commitments to
have and, when required to deliver payment to the Issuer pursuant to Section 2,
will have, sufficient funds to pay the Subscription Amount and consummate the purchase and
sale of the Shares pursuant to this Agreement. |
| (m) | The Investor does not have, as of the
date hereof, and during the 30-day period immediately prior to the date hereof, the Investor
has not entered into, any “put equivalent position” as such term is defined in
Rule 16a-1 under the Exchange Act or end of day short sale positions with respect to
the securities of SPAC. |
| (n) | No broker, finder or other financial consultant
is acting on the Investor’s behalf in connection with this Agreement or the transactions
contemplated hereby in such a way as to create any liability of the Issuer or SPAC for the
payment of any fees, costs, expenses or commissions. |
| (o) | The
Investor agrees that, from the date of this Agreement until the Closing Date (or earlier
termination of this Agreement), none of the Investor or any person or entity acting on behalf
of the Investor or pursuant to any understanding with the Investor will engage in any Short
Sales with respect to securities of the Issuer or SPAC. For purpose of this Section 4.2(o),
“Short Sales” shall mean all “short sales” as defined in Rule 200
of Regulation SHO under the Exchange Act and all types of direct and indirect share pledges
(other than pledges in the ordinary course of business as part of prime brokerage arrangements),
forward sale contracts, options, puts, calls, swaps and similar arrangements (including on
a total return basis), and sales and other short transactions through non-U.S. broker dealers
or foreign regulated brokers. Notwithstanding the foregoing, (i) the restrictions in
this Section 4.2(o) shall not apply to any sale of securities of the Issuer
or SPAC (A) held by the Investor or any person or entity acting on behalf of the Investor
prior to the execution of this Agreement or (B) purchased by the Investor or any person
or entity acting on behalf of the Investor in an open market transaction after the execution
of this Agreement. Further, notwithstanding the foregoing, (ii) nothing herein shall
prohibit other entities under common management with the Investor that have no knowledge
of this Agreement or of the Investor’s subscription of the Shares (including the Investor’s
controlled affiliates and/or affiliates) from entering into any Short Sales. |
| 5.1 | The Issuer agrees that, within sixty (60)
calendar days after the Closing Date, it will file with the SEC (at the Issuer’s sole
cost and expense) a registration statement registering the resale of the Shares (the “Registration
Statement”), and it shall use its commercially reasonable efforts to have the Registration
Statement declared effective as soon as practicable after the filing thereof; provided,
however, that the Issuer’s obligations to include such shares in the Registration
Statement are contingent upon Investor furnishing in writing to the Issuer such information
regarding Investor, the securities of the Issuer beneficially owned by Investor and the intended
method of disposition of the Shares as shall be reasonably requested by the Issuer to effect
the registration of the Shares, and Investor shall execute such documents in connection with
such registration as the Issuer may reasonably request that are customary of a selling shareholder
in similar situations, including providing that the Issuer shall be entitled to postpone
and suspend the effectiveness or use of the Registration Statement as permitted hereunder. |
| 5.2 | The
Issuer agrees to, except for such times as the Issuer is permitted hereunder to suspend the
use of the prospectus forming part of an Registration Statement, use its commercially reasonable
efforts to cause such Registration Statement (including any post-effective amendment to such
Registration Statement), or another shelf registration statement that includes the Shares
to be issued pursuant to this Agreement, to remain effective until the earliest of (i) the
second anniversary of the Closing, (ii) the date on which the Investor ceases to hold
any Shares issued pursuant to this Agreement, or (iii) on the first date on which the
Investor is able to sell all of its Shares issued pursuant to this Agreement (or shares received
in exchange therefor) under Rule 144 promulgated under the Securities Act (“Rule 144”)
without the public information, volume or manner of sale limitations of such rule (such
date, the “End Date”). |
| 5.3 | The Issuer will use all commercially reasonable
efforts, at all times from the Closing Date through the End Date, to satisfy any applicable
continuing listing requirements of the Nasdaq Stock Market in respect of the Shares. The
Investor agrees to disclose its ownership to the Issuer upon request to assist it in making
the determination with respect to Rule 144 described in clause (iii) of Section 5.2
above. The Issuer may amend the Registration Statement so as to convert the Registration
Statement to an Registration Statement on Form F-3 at such time after the Issuer becomes
eligible to use such Form F-3. The Investor acknowledges and agrees that the Issuer
may suspend the use of any such registration statement if it determines that in order for
such registration statement not to contain a material misstatement or omission, an amendment
thereto would be needed to include information that would at that time not otherwise be required
in a current, quarterly, or annual report under the Exchange Act, provided that any
such suspension shall be for the shortest period of time, determined in good faith by the
Issuer’s Board of Directors to be necessary for such purpose. |
| 5.4 | Notwithstanding the foregoing, if the SEC
prevents the Issuer from including any or all of the shares proposed to be registered under
the Registration Statement due to limitations on the use of Rule 415 of the Securities
Act for the resale of the Shares by the applicable shareholders or otherwise, such Registration
Statement shall register for resale such number of the Shares which is equal to the maximum
number of the Shares as is permitted by the SEC. In such event, the number of the Shares
to be registered shall be reduced (a) firstly, pro rata among all the selling shareholders
other than the Ecarx Investors; and (b) secondly, only if the number of the Shares to
be registered for the selling shareholders other than the Ecarx Investors has been reduced
to zero, pro rata among the Ecarx Investors, and the Issuer shall use its commercially reasonable
efforts to file with the SEC, as promptly as practicable and as allowed by the SEC, one or
more registration statements to register the resale of those Shares that were not registered
on the initial Registration Statement, as so amended. |
| 5.5 | Notwithstanding anything to the contrary in
this Agreement, the Issuer shall be entitled to delay or postpone the effectiveness of the
Registration Statement, and from time to time to require the Investor not to sell under the
Registration Statement or to suspend the effectiveness thereof, if (a) the use of the
Registration Statement would require the inclusion of financial statements that are unavailable
for reasons beyond the Issuer’s control, (b) the Issuer determines that in order
for the Registration Statement to not contain a material misstatement or omission, (i) an
amendment thereto would be needed to include information that would at that time not otherwise
be required in a current, quarterly, or annual report under the Exchange Act or (ii) the
negotiation or consummation of a transaction by the Issuer or its subsidiaries is pending
or an event has occurred, which negotiation, consummation or event that the Issuer reasonably
believes would require additional disclosure by the Issuer in the Registration Statement
of material information that the Issuer has a bona fide business purpose for keeping confidential
and the non-disclosure of which in the Registration Statement would be expected, in the reasonable
determination of the Issuer’s board of directors to cause the Registration Statement
to fail to comply with applicable disclosure requirements (each such circumstance, an “Suspension
Event”). Upon receipt of any written notice from the Issuer of the happening of
any Suspension Event during the period that the Registration Statement is effective or if
as a result of an Suspension Event the Registration Statement or related prospectus contains
any untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made (in the case of the prospectus) not misleading, the Investor agrees
that (i) it will immediately discontinue offers and sales of the Shares under the Registration
Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144)
until the Investor receives copies of a supplemental or amended prospectus that corrects
the misstatement(s) or omission(s) referred to above and receives notice that any
post-effective amendment has become effective or unless otherwise notified by the Issuer
that it may resume such offers and sales; provided, for the avoidance of doubt, that
the Issuer shall not include any material non-public information in any such written notice.
If so directed by the Issuer, the Investor will deliver to the Issuer or destroy all copies
of the prospectus covering the Shares in the Investor’s possession. The Issuer may
not delay or suspend any filing, initial effectiveness or continued use of an Registration
Statement pursuant to this Section 5.5 on more than three (3) occasions
or for more than sixty (60) consecutive days or for more than one hundred and twenty (120)
total calendar days, in each case, in any 12-month period. Notwithstanding anything to the
contrary in this Agreement, the Investor agrees and acknowledges that any offer or sale of
the Shares shall be in compliance with applicable securities laws, and if applicable, the
Issuer’s customary insider trading policy. |
| (a) | The Issuer agrees to indemnify and hold
harmless, to the extent permitted by law, the Investor, its directors, and officers, employees,
and agents, and each person who controls the Investor (within the meaning of the Securities
Act or the Exchange Act) from and against any and all losses, claims, damages, liabilities
and reasonable and documented out-of-pocket expenses (including, without limitation, any
reasonable and documented attorneys’ fees and expenses incurred in connection with
defending or investigating any such action or claim) caused by any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, prospectus included
in any Registration Statement or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Issuer by or on behalf
of the Investor expressly for use therein or such Investor has omitted a material fact from
such information or otherwise violated the Securities Act, Exchange Act or any state securities
law or any other law, rule or regulation thereunder; provided, however,
that the indemnification contained in this Section 5.6(a) shall not apply
to amounts paid by the Investor in settlement of any losses, claims, damages, liabilities
or out-of-pocket expenses if such settlement is effected without the consent of the Issuer,
which consent shall not be unreasonably withheld. In no event shall the liability of the
Issuer be greater than the dollar amount of the Subscription Amount. |
| (b) | In connection with any Registration Statement
in which the Investor is participating, the Investor agrees to indemnify and hold harmless
the Issuer, its directors and officers and agents and each person who controls the Issuer
(within the meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses (including, without limitation, reasonable and documented attorneys’ fees)
resulting from any untrue statement of material fact contained in the Registration Statement,
prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any
omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or omission is
contained (or not contained, in the case of an omission) in any information or affidavit
so furnished in writing by or on behalf of the Investor expressly for use therein; provided,
however, that the liability of the Investor shall be several and not joint with any other
selling shareholder and in no event shall the liability of the Investor be greater in amount
than the dollar amount of the net proceeds received by the Investor upon the sale of the
Shares purchased pursuant to this Agreement giving rise to such indemnification obligation. |
| (c) | Any person entitled to indemnification
herein shall (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any person’s right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) permit such indemnifying
party to assume the defense of such claim with counsel it elects in its sole discretion.
If such defense is assumed, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses incurred by the indemnified party and shall not be
subject to any liability for any settlement made by the indemnified party without its consent.
An indemnifying party who elects not to assume the defense of a claim shall not be obligated
to pay the fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment of legal
counsel to any indemnified party a conflict of interest exists between such indemnified party
and any other of such indemnified parties with respect to such claim. No indemnifying party
shall, without the consent of the indemnified party, consent to the entry of any judgment
or enter into any settlement which cannot be settled in all respects by the payment of money
(and such money is so paid by the indemnifying party pursuant to the terms of such settlement)
or which settlement does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in respect to such
claim or litigation. |
| (d) | The indemnification provided for under
this Agreement shall remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate
or controlling person of such indemnified party and shall survive the transfer of the Shares
purchased pursuant to this Agreement. |
| (e) | If the indemnification provided under
this Section 5.6 from the indemnifying party is unavailable or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages, liabilities
and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the
indemnified party, shall contribute to the amount paid or payable by the indemnified party
as a result of such losses, claims, damages, liabilities and expenses in such proportion
as is appropriate to reflect the relative fault of the indemnifying party and the indemnified
party, as well as any other relevant equitable considerations. The relative fault of the
indemnifying party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, was made by,
or relates to information supplied by or on behalf of, such indemnifying party or indemnified
party, and the indemnifying party’s and indemnified party’s relative intent,
knowledge, access to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses or other liabilities referred to above
shall be deemed to include, subject to the limitations set forth above, any legal or other
fees, charges or expenses reasonably incurred by such party in connection with any investigation
or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution pursuant to this Section 5.6(e) from
any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant
to this Section 5.6(e) by any seller of Shares shall be limited in amount
to the amount of net proceeds received by such seller from the sale of such Shares pursuant
to the Registration Statement. Notwithstanding anything to the contrary herein, in no event
will any party be liable for consequential, special, exemplary or punitive damages in connection
with this Agreement. |
| 6. | Termination.
This Agreement shall terminate and be void and of no further force and effect, and all rights
and obligations of the parties hereunder shall terminate without any further liability on
the part of any party in respect thereof, upon the earliest to occur of (a) such date
and time as the Transaction Agreement is terminated in accordance with its terms without
being consummated, (b) upon the mutual written agreement of each of the parties hereto
to terminate this Agreement, and (c) on the 300th day after the date hereof (and if
such 300th day shall not be a business day, then the next following business day), if the
Closing has not occurred by such date other than as a result of a breach of the Investor’s
obligations hereunder; provided that nothing herein will relieve any party from liability
for any willful breach hereof prior to the time of termination, and each party will be entitled
to any remedies at law or in equity to recover losses, liabilities or damages arising from
any such willful breach. The Issuer shall notify the Investor in writing of the termination
of the Transaction Agreement promptly after the termination of such agreement. Upon the termination
of this Agreement in accordance with this Section 6, any monies paid by the Investor
to the Issuer in connection herewith shall be promptly (and in any event within two (2) business
days after such termination) returned to the Investor without any deduction for or on account
of any tax, withholding, charges, or set-off. |
| 7.1 | Assignment. Neither this Agreement
nor any rights, interests or obligations that may accrue to the parties hereunder (other
than the Shares acquired hereunder, if any) may be transferred or assigned without the prior
written consent of each of the other parties hereto, other than (a) an assignment by
the Investor to any affiliate of the Investor; provided that prior to such assignment
any such assignee shall agree in writing to be bound by the terms hereof; provided,
further, that no assignment pursuant to the foregoing terms shall relieve the Investor
of its obligations hereunder, (b) an assignment of the Investor’s rights under
Section 5 to an assignee or transferee of the Shares, and (c) an assignment
by the Issuer to any affiliate of the Issuer; provided that prior to such assignment
any such assignee shall agree in writing to be bound by the terms hereof; provided,
further, that no assignment pursuant to the foregoing terms shall relieve the Issuer
of its obligations hereunder. |
| 7.2 | Additional Information. The Issuer
may request from the Investor such additional information as is reasonably necessary for
SPAC or the Issuer, as applicable, to comply with public disclosure requirements of applicable
securities laws or any filing requirements pursuant to the rules of any stock exchange
or the Financial Industry Regulatory Authority, and the Investor shall provide such information;
provided that, subject to Section 5.5, the Issuer shall keep any such
information provided by the Investor confidential except (a) as necessary to include
in any registration statement the Issuer is required to file hereunder, (b) as required
by the federal securities law or pursuant to other routine proceedings of regulatory authorities
or (c) to the extent such disclosure is required by law, at the request of the staff
of the SEC or regulatory agency or under the regulations of any national securities exchange
on which SPAC’s securities are listed or the Issuer’s securities will be listed
for trading. The Investor acknowledges that SPAC and/or the Issuer may file a copy of the
form of this Agreement with the SEC as an exhibit to a current or periodic report or a registration
statement of SPAC or the Issuer, as applicable. The Issuer may request from the Investor
such additional information as the Issuer may reasonably deem necessary to register the resale
of the Shares and evaluate the eligibility of the Investor to acquire the Shares, and the
Investor shall promptly provide such information as may reasonably be requested to the extent
readily available. The Investor acknowledges and agrees that if it does not provide the Issuer
with such requested information, the Issuer may not be able to register the Investor’s
Shares for resale pursuant to Section 5 hereof. |
| (a) | The Investor acknowledges that the Issuer
will rely on the acknowledgments, understandings, agreements, covenants, representations
and warranties of the Investor contained in this Agreement. Prior to the Closing, the Investor
agrees to promptly notify the Issuer if any of the acknowledgments, understandings, agreements,
covenants representations and warranties made by the Investor set forth herein are no longer
accurate in all material respects. The Investor acknowledges and agrees that each purchase
by the Investor of the Shares from the Issuer will constitute a reaffirmation of the acknowledgments,
understandings, agreements, representations and warranties herein (as modified by any such
notice) by the Investor as of the time of such purchase. |
| (b) | The Issuer acknowledges that the Investor
will rely on the acknowledgements, understandings, agreements, covenants, representations
and warranties of the Issuer contained in this Agreement. Prior to the Closing, the Issuer
agrees to promptly notify the Investor if any of the acknowledgements, understandings, agreements,
covenants, representations and warranties made by the Issuer, as applicable, set forth herein
are no longer accurate in all material respects. The Issuer acknowledges and agrees that
each purchase by the Investor of the Shares from the Issuer will constitute a reaffirmation
of the acknowledgments, understandings, agreements, representations and warranties herein
(as modified by any such notice) by the Issuer as of the time of such purchase. |
| (c) | Each of the Investor and the Issuer is
irrevocably authorized to produce this Agreement or a copy hereof to any interested party
in any action, suit, hearing, claim, charge, audit, lawsuit, litigation, inquiry or proceeding
(in each case, whether civil, criminal or administrative or at law or in equity) with respect
to the matters covered hereby. |
| (d) | The
Investor acknowledges and agrees that none of any other party to the Transaction Agreement
(other than the Issuer) or any Issuer Non-Party Affiliate, shall have any liability (including
in contract, tort, under federal or state securities laws or otherwise) to the Investor pursuant
to this Agreement related to the private placement of the Shares, the negotiation hereof
or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby
or thereby, for any action heretofore or hereafter taken or omitted to be taken by any of
them in connection with the purchase of the Shares, or with respect to any claim (whether
in tort, contract or otherwise) for breach of this Agreement or in respect of any written
or oral representations made or alleged to be made in connection herewith, as expressly provided
herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect
to any information or materials of any kind furnished by the Issuer or any Issuer Non-Party
Affiliate concerning the Issuer, any of their respective controlled affiliates, this Agreement
or the transactions contemplated hereby. For purposes of this Agreement, “Issuer
Non-Party Affiliates” means each former, current or future officer,
director, employee, partner, member, manager, direct or indirect equityholder or affiliate
of the Issuer or any of the Issuer’s controlled affiliates or any family member of
the foregoing. |
| (e) | The
Issuer acknowledges and agrees that none of any other party to the Transaction Agreement
(other than the Investor) or any Investor Non-Party Affiliate, shall have any liability (including
in contract, tort, under federal or state securities laws or otherwise) to the Issuer pursuant
to this Agreement related to the negotiation hereof or thereof or the subject matter hereof
or thereof, or the transactions contemplated hereby or thereby, or with respect to any claim
(whether in tort, contract or otherwise) for breach of this Agreement or in respect of any
written or oral representations made or alleged to be made in connection herewith, as expressly
provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with
respect to any information or materials of any kind furnished by the Investor or any Investor
Non-Party Affiliate concerning the Investor, any of their respective controlled affiliates,
this Agreement or the transactions contemplated hereby. For purposes of this Agreement, “Investor
Non-Party Affiliates” means each former, current or future officer,
director, employee, partner, member, manager, direct or indirect equityholder or affiliate
of the Investor, or any of the Investor’s controlled affiliates or any family member
of the foregoing. |
| 7.4 | Survival of Representations and Warranties
and Covenants. All of the agreements, representations and warranties contained in this
Agreement shall survive the Closing. |
| 7.5 | Modifications and Amendments. This
Agreement may not be modified, waived or terminated (other than pursuant to the terms of
Section 6 above) except by an instrument in writing, signed by each of the parties
hereto. No failure or delay of either party in exercising any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such right or power, or any
course of conduct, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the parties hereunder are cumulative and
are not exclusive of any rights or remedies that they would otherwise have hereunder. |
| 7.6 | Entire Agreement. This Agreement (including
the schedule hereto) constitutes the entire agreement, and supersedes all other prior agreements,
understandings, representations and warranties, both written and oral, among the parties,
with respect to the subject matter hereof. Except as set forth in Section 5.6,
with respect to the persons specifically referenced therein, this Agreement shall not confer
any rights or remedies upon any person other than the parties hereto, and their respective
successors and assigns. |
| 7.7 | Benefit. Except as otherwise provided
herein, this Agreement shall be binding upon, and inure to the benefit of the parties hereto
and their heirs, executors, administrators, successors, legal representatives, and permitted
assigns, and the agreements, representations, warranties, covenants and acknowledgments contained
herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators,
successors, legal representatives and permitted assigns. |
| 7.8 | Severability. If any provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal
or unenforceable, the validity, legality or enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby and shall continue in
full force and effect. |
| 7.9 | Transaction Expenses. Subject to Section 5.1,
each party shall pay all of its own costs and expenses incurred in anticipation of, relating
to and in connection with the negotiation and execution of this Agreement and the transactions
contemplated hereby, whether or not such transactions are consummated. |
| 7.10 | Counterparts. This Agreement may be
executed in one or more counterparts (including by facsimile or electronic mail or in .pdf)
and by different parties in separate counterparts, with the same effect as if all parties
hereto had signed the same document. All counterparts so executed and delivered shall be
construed together and shall constitute one and the same agreement. |
| 7.11 | Remedies. The parties hereto acknowledge
and agree that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement, without posting a bond or undertaking
and without proof of damages, to enforce specifically the terms and provisions of this Agreement,
this being in addition to any other remedy to which such party is entitled at law, in equity,
in contract, in tort or otherwise. The parties hereto acknowledge and agree that it may be
difficult to prove damages with reasonable certainty, that it may be difficult to procure
suitable substitute performance, and that injunctive relief and/or specific performance will
not cause an undue hardship to the parties hereto. The parties hereto further acknowledge
that the existence of any other remedy contemplated by this Agreement does not diminish the
availability of specific performance of the obligations hereunder or any other injunctive
relief. Each party hereto further agrees that in the event of any action by the other party
for specific performance or injunctive relief, it will not assert that a remedy at law or
other remedy would be adequate or that specific performance or injunctive relief in respect
of such breach or violation should not be available on the grounds that money damages are
adequate or any other grounds. |
| 7.12 | Adjustment of Number of Shares. If
any change in the number, type or classes of authorized shares of the Issuer (including the
Shares), shall occur between the date hereof and immediately prior to the Closing by reason
of reclassification, recapitalization, stock split (including reverse stock split) or combination,
exchange or readjustment of shares, or any stock dividend, the number of the Shares issued
to the Investor shall be appropriately adjusted to reflect such change. |
| 7.13 | Governing Law. This Agreement, and
any claim or cause of action hereunder based upon, arising out of or related to this Agreement
(whether based on law, in equity, in contract, in tort or any other theory) or the negotiation,
execution, performance or enforcement of this Agreement, shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to the principles
of conflicts of laws that would otherwise require the application of the law of any other
state. |
| 7.14 | Dispute
Resolution. Any proceeding or action based upon, arising out of or related to this Agreement
or the transactions contemplated hereby must be referred to and finally settled by arbitration
administered by the International Centre for Dispute Resolution (the “ICDR”)
under the ICDR Rules in force at the time of commencement of the arbitration. The seat
of arbitration shall be New York. There shall be three arbitrators. The claimant and respondent
shall each nominate one (1) arbitrator and the third arbitrator shall be appointed by
the ICDR. The arbitration proceedings shall be conducted in English. The award of the arbitral
tribunal shall be final and binding upon the parties thereto, and the prevailing party may
apply to a court of competent jurisdiction for enforcement of such award. |
| 7.15 | Notice. Any notice or communication
required or permitted hereunder to be given to the Investor shall be in writing and either
delivered personally, emailed or sent by overnight mail via a reputable overnight carrier,
or sent by certified or registered mail, postage prepaid, to such address(es) or email address(es)
set forth on the signature page hereto, and shall be deemed to be given and received
(i) when so delivered personally, (ii) when sent, with no mail undeliverable or
other rejection notice, if sent by email, or (iii) three (3) business days after
the date of mailing to the address below or to such other address or addresses as the Investor
may hereafter designate by notice to the Issuer. |
| (a) | if to the Investor, to: |
Geely Investment Holding Ltd.
Attn:
Buqing Ma
Email: Buqing.Ma@geely.com
with a required copy (which copy shall not constitute notice)
to:
Zhejiang Geely Holding (Group) Co., Ltd.
Attn:
Tihua Huang
Email: Tihua.Huang@geely.com
ECARX Holdings Inc.
16/F, Tower 2, China Eastern Airline Binjiang Center
277 Longlan Road
Xuhui District, Shanghai 200041
People’s Republic of China
Attention: Tony Chen
Email: tony.chen@ecarxgroup.com
with a required copy (which will not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
30/F, China World Office 2
No. 1, Jian Guo Men Wai Avenue
Beijing 100004, China
Attention: Peter X. Huang, Esq.
Email: peter.huang@skadden.com
| 8. | Disclosure.
The Issuer shall cause the SPAC to by 9:00 a.m., New York City time, on the first (1st)
business day immediately following the date of the Transaction Agreement, issue one or more
press releases or file with the SEC a Current Report on Form 8-K (collectively, the
“Disclosure Document”) disclosing all material terms of the transactions
contemplated hereby and the Transaction and any other material, nonpublic information that
the Issuer or SPAC or their respective representatives have provided to Investor at any time
prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure
Document, to the Issuer’s knowledge, the Investor shall not be in possession of any
material, non-public information received from the Issuer or any of its respective officers,
directors, employees or agents relating to the transactions contemplated by this Agreement.
Notwithstanding anything in this Agreement to the contrary, the Issuer shall ensure that
the SPAC shall not publicly disclose the name of the Investor or any of its affiliates or
advisers, or include the name of the Investor or any of its affiliates or advisers in any
press release or in any filing with the SEC or any regulatory agency or trading market, without
the prior written consent of the Investor and the Issuer, except (i) as required by
the federal securities law or pursuant to other routine proceedings of regulatory authorities,
(ii) to the extent such disclosure is required by law, at the request of the staff of
the SEC or regulatory agency or under the regulations of any national securities exchange
on which SPAC’s securities are listed for trading or (iii) to the extent such
announcements or other communications contain only information previously disclosed in a
public statement, press release or other communication previously approved in accordance
with this Section 8. |
| 9. | Allocation.
Notwithstanding anything to the contrary in this Agreement, the Issuer shall have the right,
with the prior written consent of SPAC, to, by written notice to the Investor at least three
(3) business days before the Closing, reduce the number of the Shares to be issued to
the Investor pursuant to this Agreement, upon which the Subscription Amount shall be reduced
proportionally based on the Per Share Purchase Price; provided, however, that any reduction
shall also apply to the Other Equity Investors and such reduction shall apply pro rata to
the Equity Investors based on the number of the Shares to be purchased. |
[Signature Page Follows]
IN
WITNESS WHEREOF, the Investor has executed or caused this Agreement to be executed by its duly authorized representative as
of the date first written above.
|
GEELY INVESTMENT
HOLDING LTD. |
|
|
|
|
By: |
/s/ Donghui Li |
|
|
Name: Donghui Li |
|
|
Title: CEO |
[Signature Page to Strategic Investment Agreement]
IN
WITNESS WHEREOF, the Issuer has executed or caused this Agreement to be executed by its duly authorized representative as
of the date first set forth above.
|
ECARX HOLDINGS
INC. |
|
|
|
|
By: |
/s/ Ziyu Shen |
|
|
Name:Ziyu Shen |
|
|
Title: Director |
Important Additional Information Regarding the Transaction Will
Be Filed With the SEC
In connection with the proposed transaction, ECARX Holdings, Inc. (“ECARX”)
will file a registration statement on Form F-4 with the U.S. Securities and Exchange Commission (the “SEC”) that will include
a prospectus with respect to ECARX’s securities to be issued in connection with the proposed transaction and a proxy statement with
respect to the shareholder meeting of COVA Acquisition Corp. (“COVA”) to vote on the proposed transaction. Shareholders of
COVA and other interested persons are encouraged to read, when available, the preliminary proxy statement/prospectus as well as other
documents to be filed with the SEC because these documents will contain important information about COVA and ECARX and the proposed transaction.
After the registration statement is declared effective, the definitive proxy statement/prospectus to be included in the registration statement
will be mailed to shareholders of COVA as of a record date to be established for voting on the proposed transaction. Once available, shareholders
of COVA will also be able to obtain a copy of the F-4, including the proxy statement/prospectus, and other documents filed with the SEC
without charge, by directing a request to: COVA Acquisition Corp., 530 Bush Street, Suite 703 San Francisco, California 94108. The preliminary
and definitive proxy statement/prospectus to be included in the registration statement, once available, can also be obtained, without
charge, at the SEC’s website (www.sec.gov).
Participants in the Solicitation
COVA and ECARX and their respective directors and executive officers
may be considered participants in the solicitation of proxies with respect to the potential transaction described in this communication
under the rules of the SEC. Information about the directors and executive officers of COVA and their ownership is set forth in COVA’s
filings with the SEC. Additional information regarding the persons who may, under the rules of the SEC, be deemed participants in the
solicitation of COVA’s shareholders in connection with the potential transaction will be set forth in the registration statement
containing the preliminary proxy statement/prospectus when it is filed with the SEC. These documents are available free of charge at the
SEC’s website at www.sec.gov or by directing a request to COVA Acquisition Corp., 530 Bush Street, Suite 703 San Francisco, California
94108.
No Offer or Solicitation
This communication is not a proxy statement or solicitation of a proxy,
consent or authorization with respect to any securities or in respect of the potential transaction and does not constitute an offer to
sell or a solicitation of an offer to buy any securities of COVA or ECARX, nor shall there be any sale of any such securities in any state
or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the
Securities Act of 1933, as amended (the “Securities Act”).
Forward-Looking Statements
This communication contains forward-looking statements within the meaning
of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, that are based on beliefs and
assumptions and on information currently available to COVA and ECARX.
All statements other than statements of historical fact contained in
this communication are forward-looking statements. In some cases, you can identify forward-looking statements by the following words:
“may,” “will,” “could,” “would,” “should,” “expect,” “intend,”
“plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,”
“potential,” “continue,” “ongoing,” “target,” “seek” or the negative or plural
of these words, or other similar expressions that are predictions or indicate future events or prospects, although not all forward-looking
statements contain these words. These statements are based upon estimates and forecasts and reflect the views, assumptions, expectations,
and opinions of COVA and ECARX, which involve risks, uncertainties and other factors that may cause actual results, levels of activity,
performance or achievements to be materially different from those expressed or implied by these forward-looking statements. Any such estimates,
assumptions, expectations, forecasts, views or opinions, whether or not identified in this communication, should be regarded as preliminary
and for illustrative purposes only and should not be relied upon as being necessarily indicative of future results. Although each of COVA
and ECARX believes that it has a reasonable basis for each forward-looking statement contained in this communication, each of COVA and
ECARX caution you that these statements are based on a combination of facts and factors currently known and projections of the future,
which are inherently uncertain. In addition, there will be risks and uncertainties described in the proxy statement/prospectus on Form
F-4 relating to the proposed transaction, which is expected to be filed by ECARX with the SEC and other documents filed by COVA or ECARX
from time to time with the SEC. These filings may identify and address other important risks and uncertainties that could cause actual
events and results to differ materially from those expressed or implied in the forward-looking statements. Neither COVA nor ECARX can
assure you that the forward-looking statements in this communication will prove to be accurate. These forward-looking statements are subject
to a number of risks and uncertainties, including the ability to complete the business combination due to the failure to obtain approval
from COVA shareholders or satisfy other closing conditions in the merger agreement, the occurrence of any event that could give rise to
the termination of the merger agreement, the ability to recognize the anticipated benefits of the business combination, the amount of
redemption requests made by COVA public shareholders, costs related to the transaction, the impact of the global COVID-19 pandemic, the
risk that the transaction disrupts current plans and operations as a result of the announcement and consummation of the transaction, the
outcome of any potential litigation, government or regulatory proceedings and other risks and uncertainties, including those to be included
under the heading “Risk Factors” in the registration statement on Form F-4 to be filed by ECARX with the SEC and those included
under the heading “Risk Factors” in the final prospectus of COVA dated February 4, 2021 and in its subsequent filings with
the SEC. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation
or warranty by COVA or ECARX, their respective directors, officers or employees or any other person that COVA or ECARX will achieve their
objectives and plans in any specified time frame, or at all. The forward-looking statements in this communication represent the views
of COVA and ECARX as of the date of this communication. Subsequent events and developments may cause those views to change. However, while
COVA and ECARX may update these forward-looking statements in the future, COVA and ECARX specifically disclaim any obligation to do so,
except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements as representing the
views of COVA and ECARX as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed
upon the forward-looking statements.
COVA Acquisition (NASDAQ:COVA)
Historical Stock Chart
From May 2024 to Jun 2024
COVA Acquisition (NASDAQ:COVA)
Historical Stock Chart
From Jun 2023 to Jun 2024