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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): November 6, 2024
FREYR Battery, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
|
333-274434 |
|
93-3205861 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
6&8 East Court Square, Suite 300,
Newnan, Georgia 30263
(Address of principal executive offices, including zip code)
Registrant’s
telephone number, including area code: (678) 632-3112
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant
to Section 12(b) of the Act:
Title of each
class |
|
Trading Symbol(s) |
|
Name of each
exchange on which registered |
Common Stock, $0.01 par value |
|
FREY |
|
The New York Stock Exchange |
Warrants, each whole warrant exercisable for one Common Stock at an exercise price for $11.50 per share |
|
FREY WS |
|
The New York Stock Exchange |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§ 240.12b-2).
Emerging growth company ☐
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
General
On
November 6, 2024, FREYR Battery, Inc., a Delaware corporation (the “Company” or “FREYR”) entered
into a transaction agreement (the “Transaction Agreement”) with Trina Solar (Schweiz) AG, an entity organized under
the laws of Switzerland (the “Seller”) for the acquisition of all legal and beneficial ownership in the shares of capital
stock of Trina Solar US Holding Inc., a Delaware corporation, which owns, directly or indirectly, all legal and beneficial ownership in
the shares of capital stock of, or other ownership, membership or equity interest in (a) Trina Solar US Manufacturing Holding Inc., a
Delaware corporation (“TUMH”), (b) Trina Solar US Manufacturing Module Associated Entity 1, LLC, a Texas limited liability
company (“TUMA”), (c) Trina Solar US Manufacturing Module 1, LLC, a Texas limited liability company (“TUM
1”), and (d) Trina Solar US Manufacturing Cell 1, LLC, an Oklahoma limited liability company (“TUM 2”, and
together with TUMH, TUMA and TUM 1, the “Acquired Companies”) (and such acquisition, the “Purchase”).
The
Transaction Agreement further contemplates the entry at Closing of the Purchase into certain other agreements, including: (a) certain
agreements with respect to the development, operation and services of the solar cell and solar module manufacturing facilities pursuant
to the Solar Cell Term Sheet and Solar Module Term Sheets included as Schedules A-7 and A-8 to the Transaction Agreement), to be entered
into with Trina Solar Co., Ltd., a company incorporated in China (“Trina Parent”) or certain other subsidiaries and
affiliates of Trina Parent (the “Related Agreements”), (b) a Note Instrument, (c) a Convertible Note Instrument, (d)
a Cooperation Agreement and (e) a Registration Rights Agreement (the Purchase, together with (a) through (e) collectively, the “Transaction”).
Capitalized terms used in this Current Report on Form 8-K but not otherwise defined herein have the meanings given to them in the Transaction
Agreement.
Transaction Agreement
Consideration
Under the Transaction Agreement,
FREYR will acquire the Acquired Companies for (i) $100.0 million cash consideration (subject to an adjustment for any leakage); (ii)
15,437,847 shares of common stock, par value $0.01 per share of FREYR (the “Common Stock”) (the “Share Consideration”);
(iii) a $150.0 million one percent (1%) per annum senior unsecured note due in five (5) years (the “Note Instrument”);
and (iv) an $80.0 million seven percent (7%) unsecured convertible note due in five (5) years (the “Convertible Note Instrument”),
which, subject to CFIUS approval, is convertible in up to two conversions into 30.4 million shares of Common Stock, in aggregate (the
“Conversion Shares”). The Second Conversion is also subject to the Requisite Stockholder Approval.
Conditions to Closing
The Transaction is
subject to customary Closing conditions including, among other things, (i) the absence of any laws, government orders or injunctions
that prohibit, restrict, enjoin or otherwise make illegal the Closing; (ii) the parties’ certification that the
representations and warranties are true and correct; (iii) the absence of any material adverse effect on FREYR or the Acquired
Companies; (iv) the receipt by the Acquired Companies of certain necessary consents, waivers and approvals; (v) FREYR having
isolated, deleted, destroyed, terminated or sold, in each case, all material assets, equipment, and licenses relating to 24M
Technologies, Inc.; (vi) the Seller’s completion of a certain internal reorganization (the “Reorganization”);
(vii) the first tranche of $50.0 million of the equity financing into FREYR, to be implemented on or prior to Closing pursuant to
the Preferred Stock Purchase Agreement (the “Purchase Price”); and
(viii) the submission of a supplemental listing application to New York Stock Exchange (the “NYSE”)
in connection with the proposed issuance of the Share Consideration and the Conversion Shares, among other conditions.
Representations and Warranties
The Transaction
Agreement contains customary representations and warranties of the Seller, including in respect of the Acquired Companies. The
Transaction Agreement also contains customary representations and warranties of FREYR. No representations and warranties will survive
Closing except that the Seller’s fundamental representations shall survive until the third (3rd) anniversary of the
Closing.
Pre-Closing Covenants
During the period from the
date of the Transaction Agreement through the earlier of the Closing and the termination of the Transaction Agreement in accordance with
its terms, subject to certain exceptions, each of the parties must comply with certain covenants that include (i) conducting its respective
business, in all material respects, in the ordinary course of business consistent with past practice and (ii) complying with all applicable
laws in all material respects.
The parties further agreed
that for two (2) weeks from the date of the Transaction Agreement they will continue to conduct due diligence in good faith. To the extent
either party identifies a potential material liability of $10.0 million or more in any given 12-month period or of $25.0 million or more
in the aggregate, the parties shall discuss such potential material liability for ten (10) days. If following such discussion, the identifying
party establishes it has identified a material liability, such party shall be entitled to terminate the Transaction Agreement.
From the date of the Transaction Agreement to the Closing, the Seller, its Affiliates and the Acquired Companies, subject to limited exceptions,
shall not permit any leakage to occur. If any leakage occurs that is not permitted, it will lead to a reduction to the Purchase Price.
Prior to Closing, the Seller
shall prepare and timely file all tax returns of the of the Acquired Company as required by applicable law. All taxes due on or before
Closing shall be paid by the Seller or applicable Acquired Company. FREYR shall not, and shall not cause, without the prior written consent
of the Seller, which shall not be unreasonably withheld, the Acquired Companies to amend, refile or modify any tax return that would reasonably
be expected to increase the tax liability of the Seller during the pre-closing period. Prior to Closing, FREYR, the Seller and the Acquired
Companies shall reasonably cooperate in connection with determining tax liability, the preparation and filing of any tax returns and any
audit, litigation, or other proceeding with respect to taxes.
Prior to Closing, (a)
each of the parties shall use its commercially reasonable efforts to take all necessary actions to consummate the Purchase; and (b)
the Seller shall use reasonable best efforts and shall cause the Acquired Companies to (i) use reasonable best efforts to obtain all
required third-party consents, waivers and approvals (ii) complete the Reorganization, and (iii) provide all cooperation reasonably
requested by FREYR in connection with the satisfaction of any of the settlement conditions under the Preferred Stock Purchase
Agreement; (c) the parties shall negotiate and agree the Related Agreements, based on the Solar Module Term Sheets; (d) the parties
shall negotiate in good faith the Solar Cell Operational Support Agreement, based on the Solar Cell Term Sheet and (e) the parties
shall and shall cause their employees to negotiate and agree certain other employment or consultancy terms for FREYR’s Deputy
Chief Financial Officer. Chief Operating Officer and Chief Strategy Officer prior to Closing.
Post-Closing Covenants
Post-Closing, the parties agree to use reasonable best efforts to obtain
CFIUS approval. FREYR shall use its reasonable best efforts to obtain the Requisite Stockholder Approval as a condition to the Second
Conversion of the Convertible Note Instrument.
In the event that, between
Closing and the date of First Conversion of the Convertible Note Instrument or a CFIUS Turndown (as defined below), as applicable, FREYR
pays a dividend on its Common Stock, it must pay Seller within five (5) business days of the payment date for the dividend, the amount
of such dividend that is paid per share of Common Stock multiplied by the number of Conversion Shares.
If, within twelve (12) months
following Closing, any person discovers any right, title or interest in any assets or liability (a “Wrong Pocket Asset”
and a “Wrong Pocket Liability,” respectively) that as of Closing related to (i) the business of the Acquired Companies,
but was not transferred or assumed by FREYR or any Acquired Company at Closing or (ii) the business of the Seller and its Affiliates
other than the business of the Acquired Companies, but was transferred to FREYR or an Acquired Company at Closing, in each case except
as a result of a transaction occurring after the Closing consented to by the parties, the parties shall cause (i) such Wrong Pocket Asset
to be transferred to the appropriate person and (ii) such Wrong Pocket Liability to be assumed by the right person, as promptly as reasonably
practicable for no additional consideration.
FREYR may elect to obtain
a representations and warranties insurance policy with respect to the Seller’s representations.
Within six (6) months
post-Closing, FREYR will also use its reasonable efforts to dispose, divest, transfer or otherwise sell the assets and operations
that constitute its European business (the “Divestiture”), and in case
the consideration received is less than $45.0 million, FREYR shall pay to the Seller an amount equal to nineteen and nine tenths
percent (19.9%) of the shortfall between such consideration and $50.0 million. If such Divestiture is not completed within six (6)
months from Closing (the “Divestiture Date”), unless waived by the
Seller, FREYR shall pay to the Seller a fee of $2.0 million for each calendar month from the Divestiture Date until completion of
the Divestiture.
Following Closing, and in
the event that any of the Preferred Stock (as defined below) issued under the Preferred Stock Purchase Agreement is converted into FREYR
Common Stock, the Seller shall have the right to acquire from FREYR such number of shares of Common Stock so that the Seller’s proportionate
ownership of Common Stock following the conversion of the Preferred Stock will be the same as before the conversion at a price equal to
$2.50 per share of Common Stock or such other price as is used in the conversion of the Preferred Stock.
After Closing, FREYR shall,
or shall cause TUM 1 to repay a certain Production Reserve Fee equal to $220.0 million in five installments to TUS and fully
owned by Seller, pursuant to the TUS Offtake Agreement between these TUS and TUM 1, in five installments of $44.0 million, to be paid
on each successive anniversary of the Closing Date, subject to certain exceptions and acceleration provisions.
Following Closing, FREYR shall
prepare and timely file all tax returns of the Acquired Company as required by applicable law.
CFIUS Turndown
Following Closing, in the event the parties, after reasonable best
efforts, fail to receive CFIUS approval with respect to the Conversions (the “CFIUS Turndown”), if CFIUS requires the
Seller to divest, dispose, or otherwise sell the shares of Common Stock acquired as Share Consideration pursuant to the Transaction Agreement,
within sixty (60) days following the date of the CFIUS Turndown, FREYR shall purchase or redeem from the Seller all such shares of Common
Stock and issue to the Seller an unsecured loan note with a term of ten (10) years and an interest rate lower than the Note Instrument,
with an aggregate principal amount equal to the 30-day VWAP of the Share Consideration prior to the issue of such unsecure loan note (the
“Secondary Note”).
In the event of a CFIUS Turndown
or if the Convertible Note Instrument does not become eligible for conversion within twelve (12) months following Closing (as may be extended
by the Seller in it is sole discretion), FREYR shall redeem and repay the Convertible Note Instrument with a newly issued unsecured senior
note substantially on the same terms as the Secondary Note.
The foregoing description of the Secondary Note is qualified in its entirety by reference to the full text of the form of the Secondary
Note, a copy of which is filed as Exhibit 10.4 hereto and incorporated by reference.
Indemnification
FREYR shall have no recourse
against the Seller other than in respect of fundamental representations, certain pre-Closing tax representations, the Reorganization,
and breach of pre-Closing and post-Closing covenants and the Seller shall have no recourse against FREYR other than in respect of breach
of covenants. FREYR is otherwise considering obtaining a representation and warranty insurance policy after the date of the Transaction
Agreement. The aggregate liability of the Seller’s indemnification obligation for breach of fundamental representations, the Reorganization,
certain pre-Closing tax representations, and leakage shall not exceed the Purchase Price. The aggregate liability of the Seller or FREYR
for breach of any covenant under the Transaction Agreement shall not exceed $200.0 million.
Termination
The Transaction Agreement
may be terminated under certain circumstances by mutual agreement of the parties or by either party in the following events: (i) Closing
shall not have occurred 120 days after the date of the Transaction Agreement; (ii) a permanent injunction or other government order prohibits
or enjoins the Transaction; (iii) the other party’s uncured breach of its representations, warranties or covenants under the Transaction
Agreement; or (iv) the identification of a material liability through an ongoing two-week post-signing diligence review entitling the
identifying party to terminating the Transaction Agreement.
The foregoing description of the Transaction Agreement is qualified in its entirety by reference to the full text of such agreement, a
copy of which is attached hereto as Exhibit 2.1, and is incorporated herein in its entirety by reference. The representations, warranties,
and covenants contained in such agreement were made only for purposes of such agreement and as of specific date, were solely for the benefit
of the parties to such agreement and may be subject to limitations agreed upon by the contracting parties.
Note Instrument and Convertible
Note Instrument
At Closing, FREYR and the
Seller shall execute the Note Instrument and the Convertible Note Instrument.
Pursuant to the Note Instrument,
FREYR will repay the principal amount in cash with quarterly repayments of $7.5 million per quarter starting on the first calendar quarter
ending after the one-year anniversary of the date of issuance of the Note Instrument and $30.0 million at maturity. Interest will accrue
quarterly in arrears at one percent (1%) per annum and will be paid in cash on a quarterly basis starting at Closing. FREYR, in its discretion,
may prepay the Note Instrument, in whole or in part, at any time prior to maturity date without premium or penalty.
Within five (5) days of obtaining CFIUS approval, the Convertible Note
Instrument shall partially convert into 12.5 million shares of FREYR’s Common Stock (the “First Conversion”).
Within five (5) days of obtaining Requisite Stockholder Approval, the remaining balance of the Convertible Note Instrument shall convert
into 18.0 million additional shares of FREYR’s Common Stock. Interest shall accrue quarterly at seven percent (7%) per annum
commencing on the issuance date, subject to certain adjustments; however, the Convertible Note Instrument shall never convert to more
than 30.4 million shares of Common Stock.
The foregoing descriptions of the Note Instrument and Convertible Note Instrument are qualified in their entirety by reference to the
full text of the forms of the Note Instrument and Convertible Note Instrument, copies of which are filed respectively as Exhibits 10.2
and 10.3 hereto and incorporated by reference.
Cooperation Agreement
At Closing, FREYR and the Seller shall enter into a Cooperation Agreement,
pursuant to which, among other things, for so long as the Seller holds 15.4 million shares of FREYR’s Common Stock, it shall be
entitled to designate for nomination one (1) director to FREYR’s board of directors (the “FREYR Board”) and (ii)
for as long as the Seller holds fifteen percent (15%) or more of FREYR’s Common Stock, it shall be entitled to designate for nomination
two (2) directors to the FREYR Board. For so long as there is at least one (1) director designated by the Seller on the FREYR Board and
at least one (1) such director is an independent director in accordance with the applicable stock exchange listing rules, the FREYR Board
shall appoint a director designated by the Seller to each of (i) the nominating and corporate governance committee and (ii) the compensation
committee.
Pursuant to the Cooperation Agreement, the Seller shall further agree to customary standstill provisions for so long as the Seller holds
the Share Consideration. In addition, subject to limited exceptions, the Seller shall not transfer any shares of Common Stock during the
1-year lock-up period. For as long as the Seller holds securities in the Company, it shall also be entitled to certain anti-dilution rights.
The foregoing description of the Cooperation Agreement is qualified in its entirety by reference to the full text of the form of the Cooperation
Agreement, a copy of which is filed as Exhibit 10.5 hereto and incorporated by reference.
Registration Rights Agreement
At Closing, FREYR and the Seller
shall enter into a Registration Rights Agreement, pursuant to which FREYR shall grant the Seller certain registration rights on Form S-3
or other forms of registration statements, including Form S-1, as available, with respect to the shares of Common Stock issued to the
Seller pursuant to the Transaction Agreement and the Convertible Note Instrument.
The foregoing description of the Registration Rights Agreement is qualified
in its entirety by reference to the full text of the form of the Registration Rights Agreement, a copy of which is filed as Exhibit 10.6
hereto and incorporated by reference.
Preferred Stock Purchase
Agreement
On November 6, 2024, in
connection with the Company’s efforts to finance in part the construction, commissioning and ramp-up related to the solar cell
manufacturing facility to be developed by TUM 2, including general corporate purposes related to the assets to be acquired by the
Company pursuant to the Transaction, FREYR and certain funds and accounts managed by Encompass Capital Advisors LLC entered into a
Preferred Stock Purchase Agreement, pursuant to which such funds purchased non-voting preferred stock of FREYR (the “Preferred
Stock”) in exchange for $100.0 million, to be funded across two tranches of $50.0 million each, upon Closing and
thereafter upon FREYR’s sole discretion upon proceeding to a final investment decision on TUM 2. The Preferred Stock has a
term of three (3) years from the Closing Date and a conversion price of $2.50 per share of Common Stock or such other price as is
used in the conversion of the Preferred Stock. FREYR will redeem the Preferred Stock at maturity at par value plus any accrued and
unpaid interest. The Preferred Stock will rank senior to the Common Stock but junior to all debt obligations of the Company and will
have a liquidation preference equal to $10.00 per share of Preferred Stock plus accrued but unpaid dividends. FREYR also agreed to
provide certain registration rights with respect to the Preferred Stock and the shares of Common Stock underlying the Preferred
Stock. The Preferred Stock carries 6% cash interest, accruing on the funding of the first tranche and payable in arrears (i) on the
dividend date 18 months after the first tranche funding and (ii) every six months after such dividend payment date. Other customary
representations and warranties, closing conditions and terms were included in the Preferred Stock Purchase Agreement.
The foregoing description of the Preferred Stock Purchase Agreement
does not purport to be complete and is qualified in its entirety by the terms and conditions of the Preferred Stock Purchase Agreement,
a copy of which is filed as Exhibit 10.1 hereto and incorporated by reference.
Voting Agreement
On November 6, 2024, in
connection with the Transaction Agreement and the Convertible Note Instrument, FREYR and Encompass Capital
Advisors LLC entered into a voting and support agreement pursuant to which such funds agreed to vote the shares of Common Stock it
beneficially owns in favor of the Second Conversion at FREYR’s meeting of stockholders to approve such Second Conversion.
The foregoing description of the Voting Agreement does not purport
to be complete and is qualified in its entirety by the terms and conditions of the Voting Agreement, a copy of which is filed as Exhibit
10.8 hereto and incorporated by reference.
Securities Purchase Agreement
On November 6, 2024, FREYR and Ms. Chunyan Wu, a co-founder and significant shareholder of Trina Solar,
entered into a Securities Purchase Agreement pursuant to which Ms. Wu subscribed for approximately $14.8 million of shares of
FREYR’s Common Stock at a price of $1.05 per share (which constitutes a premium to “Minimum Price” as defined
under applicable NYSE Rules), representing an aggregate private placement of ten percent (10%) of FREYR’s Common Stock
outstanding on the date hereof. FREYR also agreed to provide certain registration rights with respect to the shares issued pursuant
to the Securities Purchase Agreement. The obligation of the parties to consummate the purchase and sale of the shares covered by the
Securities Purchase Agreement is conditioned upon, amongst other things, CFIUS approval of the transaction. Other customary
representations and warranties, closing conditions and terms were included in the Securities Purchase Agreement. The funds will be
used for general operational and working capital purposes.
The foregoing description of the Securities Purchase Agreement does
not purport to be complete and is qualified in its entirety by the terms and conditions of the Securities Purchase Agreement, a copy of
which is filed as Exhibit 10.7 hereto and incorporated by reference.
Item 5.02. Departure of Directors
or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Tom Einar Jensen’s
Departure as Chief Executive Officer and as a Director
On November 6, 2024, FREYR announced
that Tom Einar Jensen, the Company’s Chief Executive Officer (“CEO”), would be resigning from his position as
CEO and as a director of the Company, effective immediately, and will continue with the Company as a consultant in the role of CEO - Europe.
Mr. Jensen’s resignation is not related to any disagreements with the Company on any matter relating to its operations, policies,
practices (financial or otherwise) or any issues regarding financial disclosures, accounting, or legal matters. FREYR Battery Norway AS,
a wholly-owned subsidiary of the Company, entered into an employment termination and consulting contract with Mr. Jensen, reflecting his
transition, effective immediately (the “Jensen Transition Contract”). Under the Jensen Transition Contract, Mr. Jensen
will receive (i) a monthly service fee of $30,000 (pro-rated for any partial months) and (ii) in accordance with Mr. Jensen’s previously
disclosed employment contract, a severance payment equal to six months of Mr. Jensen’s current base salary at the time of his termination
of employment as the Company’s CEO. Furthermore, upon the closing of the Transaction, one-third of Mr. Jensen’s outstanding
performance stock options will immediately vest and the remaining unvested portion of the performance stock options will vest 50% on each
of the first and second anniversaries of the Closing Date.
The foregoing description of the Jensen Transition Contract does not
purport to be complete and is qualified in its entirety by the terms and conditions of the Jensen Transition Contract, a copy of which
is filed as Exhibit 10.9 hereto and incorporated by reference.
Appointment of New Chief
Executive Officer
In connection with Mr. Jensen’s
departure, on November 6, 2024, the FREYR Board appointed Daniel Barcelo as its CEO, effective on November 6, 2024. Mr. Barcelo will continue
to serve as a member of the FREYR Board, and as Chair of the FREYR Board, but will no longer serve as a member of the Nominating and Governance
Committee or the Audit and Risk Committee.
Mr. Barcelo, 54, has served
as a director of FREYR since the consummation of the business combination in 2021. He is also the founder and CEO of Alussa Energy LLC.
Prior to founding Alussa Energy in 2019, he was a Director of Research and Portfolio Manager at Moore Capital Management from 2008 to
2011 and an Equity Research Analyst with Lehman Brothers from 1998 to 2004, Bank of America from 2004 to 2008, and Managing Director and
Head of Oil & Gas at Renaissance Capital in Moscow, Russia from 2011 to 2012. He has also served as Chief Financial Officer of Ruspetro
plc in Russia from 2012 to 2014, Head of Corporate Finance of Lekoil Limited in Nigeria from 2015 to 2016 and co-founder, Director, and
Chief Financial Officer of Invicti Terra Argentina Limited in Argentina from 2017 to 2019. Mr. Barcelo is a graduate of Syracuse University
with a Bachelor of Science in Finance and is also a Chartered Financial Analyst® charter holder.
The Company and Mr. Barcelo
intend to enter into an employment agreement outlining Mr. Barcelo’s compensation for his new role as CEO of the Company, which
will be disclosed at such time.
As FREYR’s CEO, Mr. Barcelo will not be considered independent
under the NYSE’s listing standards and applicable federal and state securities laws. There are no family relationships between Mr.
Barcelo and any director or other executive officer, nor are there any transactions to which the Company was or is a participant and in
which Mr. Barcelo has a material interest subject to disclosure under Item 404(a) of Regulation S-K. There are no arrangements or understandings
between Mr. Barcelo and any other persons pursuant to which he was selected as an officer.
Appointment of Chief Operating
Executive Officer
In connection with the Transaction,
on November 6, 2024, the FREYR Board appointed David Gustafson, currently an employee of TUM 1, as its Chief Operating Officer, effective
as of, and subject to, the Closing of the Transactions.
Mr. Gustafson is a Co-General Manager at Trina Solar Co. Ltd, a China-based photovoltaics
company. He has over 25 years of experience in industrial manufacturing, engineering, and operations, with a strong background in lean
thinking and doing, six sigma problem solving, technical recruiting and team building, automation, and change management. Mr. Gustafson
has successfully led multi-factory, multi-national, and multi-business unit operations, delivering customer-focused solutions, driving
process improvement, and implementing digital factory technologies. He has also raised capital from venture and board level engagements,
negotiated commercial and technical contracts, and launched new products and projects. In 2024, Mr. Gustafson was a registered agent and
managing partner at Greywing Advisors, LLC, an operations consulting company. From 2023 to 2024, he was President of CubicPV Inc., an
innovative solar company and MIT-affiliated startup. Between 2012 and 2023, Mr. Gustafson served as Vice President of Commercial Manufacturing
at Bridgestone Corporation, a multinational manufacturing company. Between 2010 and 2012, he was a Maintenance and Services Manager at
Tenaris S.A., a global manufacturing company. Between 2000 and 2009, he was a Manufacturing/Operations Manager at Deere & Company
Inc., an agricultural machinery manufacturing company. Mr. Gustafson began his career in 1992 as a Civil Engineer Corps Officer in the
US Navy. He holds a BSc in Mechanical Engineering from the Massachusetts Institute of Technology and MS in Materials Science and Engineering
from Vanderbilt University and has completed executive education in Technology and Operations Management from Stanford Business School.
The Company and Mr. Gustafson
intend to enter into an employment agreement outlining Mr. Gustafson’s compensation for his new role as Chief Operating Officer
of the Company, which will be disclosed at such time.
Appointment of New Director
On November 4, 2024, the FREYR
Board and all applicable committees thereof voted to appoint W. Richard Anderson as an independent director of the Company with an initial
term expiring at the Company’s 2025 annual meeting of stockholders. The FREYR Board appointed Mr. Anderson as a member/chairperson
of the Audit and Risk Committee and member of the Nominating and Corporate Governance Committee.
Mr. Anderson will receive
the Company’s standard compensation provided for service as a non-employee director and will enter into the Company’s standard
form of indemnification agreement for directors and executive officers.
Mr. Anderson has been Chief Executive Officer of Coastline Exploration
Limited (formerly SOMA Oil and Gas), with exploration license interests in deep water, offshore Somalia. Mr. Anderson has over 40 years’
experience in the financial aspects of energy related companies, and started his career in audit with PricewaterhouseCoopers, followed
by 16 years as a managing and tax partner of Hein & Associates LLP focused on mergers and acquisitions, cross-border transactions
and numerous initial and secondary public offerings. From December 1998 to August 2007, he was President and Chief Executive Officer of
Prime Natural Resources, Inc. an independent oil and gas exploration and production company, active in the U.S., South America and Kurdistan.
From 2008 to 2015 he was Chief Financial Officer of Eurasia Drilling Company Ltd (LSE: EDCL), a large oil and gas drilling company in
Russia. Mr. Anderson led the company in various executive and director capacities from its initial public offering in 2007 to a privatization
in 2015. For the past 25 years, Mr. Anderson has also been a director of various public companies in the energy, exploration and resource
extraction industries, assisting companies with initial public offerings and debt issuances, sourcing of other third party financing,
reorganizations, trade sales, pay outs of special dividends, issuing special awards to management teams and conducting internal investigations
with the assistance of outside counsel and forensic accountants. His involvement has frequently been on Audit Committees and as Chairman
of the Audit Committee. From April 2014 to April 2019 he has served as a Director and Chairman of the Compensation Committee of Gulf Marine
Services (LON: GMS); from August 2008 to the present as a Director of Eurasia Drilling Company Limited and member of the Audit Committee
(LON: EDCL) and from December 2013 to the present as a Director of Coastline Exploration Limited (formerly SOMA Oil and Gas). Mr. Anderson’s
professional qualifications include membership in the AICPA, Texas Society of Certified Public Accountants, Houston Chapter of Texas Society
of CPAs and the Society of Exploration Geophysicists. Mr. Anderson graduated from the University of Colorado, magna cum laude, in 1978
and then obtained a masters in taxation from the University of Denver in 1985.
The FREYR Board believes Mr.
Anderson is well qualified to serve as a director due to his extensive operational, public company director and finance experience in
the energy, exploration and resource extraction industries.
The FREYR Board has determined that Mr. Anderson is independent under
the NYSE’s listing standards and applicable law. There are no arrangements or understandings between Mr. Anderson and any other
persons pursuant to which Mr. Anderson was appointed as a director of the Company. In addition, there are no family relationships between
Mr. Anderson and any director, executive officer, or person nominated or chosen by the Company to become a director or executive officer.
There are no related party transactions between the Company and Mr. Anderson that are required to be disclosed pursuant to Item 404(a)
of Regulation S-K.
Item 7.01. Regulation FD
Disclosure.
On November 6, 2024, the Company
issued a press release announcing that the execution of the Transaction Agreement. A copy of the press release is attached hereto as Exhibit
99.1.
Furnished as Exhibit 99.2
is a copy of an investor presentation to be used by the Company in connection with the Transaction.
The information in this Item 7.01, including Exhibit 99.1 attached
hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act nor shall it be
deemed incorporated by reference in any filling under the Securities Act, except as shall be expressly set forth by specific reference
in such filing.
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements”
within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. The Company’s
actual results may differ from its expectations, estimates and projections and consequently, you should not rely on these forward looking
statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,”
“forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,”
“should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions
are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, the Company’s
expectations with respect to future performance and anticipated financial impacts of the Transaction, the satisfaction of the Closing
conditions to the Purchase and the timing of the completion of the Transaction. These forward-looking statements involve significant risks
and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside
the Company’s control and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1)
the occurrence of any event, change or other circumstances that could give rise to the termination of the Transaction Agreement or could
otherwise cause the Transaction to fail to close; (2) the outcome of any legal proceedings that may be instituted against the Company
following the announcement of the Transaction; (3) the inability to complete the Transaction, including due to failure to satisfy conditions
to Closing in the Transaction Agreement; (4) the risk that the Transaction disrupts current plans and operations as a result of the announcement
and consummation of the Transaction; (5) the ability to recognize the anticipated benefits of the Transaction; (6) costs related to the
Transaction; (7) changes in applicable laws or regulations; (8) the possibility that the Company may be adversely affected by other economic,
business, and/or competitive factors; and (9) other risks and uncertainties indicated from time to time, including those under “Risk
Factors” therein, and in the Company’s other filings with the Securities and Exchange Commission. The Company cautions that
the foregoing list of factors is not exclusive. The Company cautions readers not to place undue reliance upon any forward-looking statements,
which speak only as of the date made. The Company does not undertake or accept any obligation or undertaking to release publicly any updates
or revisions to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances
on which any such statement is based.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. |
|
Description |
2.1 |
|
Transaction Agreement by and among FREYR Battery, Inc. and Trina Solar (Schweiz) AG, dated as of November 6, 2024.*/++ |
10.1 |
|
Preferred Stock Purchase Agreement by and between FREYR Battery,
Inc. and certain funds and accounts managed by Encompass Capital Advisors LLC, dated as of November 6,
2024. */++ |
10.2 |
|
Form of Note Instrument. |
10.3 |
|
Form of Convertible Note Instrument. |
10.4 |
|
Form of Secondary Note. |
10.5 |
|
Form of Cooperation Agreement. |
10.6 |
|
Form of Registration Rights Agreement. |
10.7 |
|
Securities Purchase Agreement by and among FREYR Battery, Inc., and Trinaway Investment Second Ltd. dated as of November 6, 2024. |
10.8 |
|
Voting Agreement by and between FREYR Battery, Inc. and Encompass Capital Advisors LLC, dated as of November 6, 2024. |
10.9 |
|
Jensen Transition Contract between FREYR Battery Norway AS and Tom Einar Jensen, dated as of November 6, 2024. |
99.1 |
|
Press Release, dated November 6, 2024, announcing entry into Transaction Agreement. |
99.2 |
|
Investor Presentation, dated November 6, 2024. |
104 |
|
Cover Page Interactive Data File (embedded within the
Inline XBRL document). |
| * | Schedules and exhibits omitted pursuant to Item 601(a)(5) of
Regulation S-K. FREYR will furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission
upon request. FREYR may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for
any schedules or exhibits so furnished. |
| | |
| ++ | Certain portions of this exhibit (indicated by “[***]”) have been omitted pursuant to Item 601(b)(10)(iv) of Regulation
S-K because it is not material and is the type of information that the registrant treats as private or confidential. |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
FREYR Battery, Inc. |
|
|
|
By: |
/s/ Daniel Barcelo |
|
|
Name: |
Daniel Barcelo |
|
|
Title: |
Chairman of the Board of Directors |
|
|
|
|
|
Dated: November 6, 2024 |
|
9
Exhibit 2.1
EXECUTION VERSION
[CERTAIN INFORMATION IN THIS EXHIBIT IDENTIFIED BY [***] IS CONFIDENTIAL AND HAS BEEN EXCLUDED BECAUSE IT (I) IS NOT MATERIAL AND (II)
THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THAT INFORMATION AS PRIVATE OR CONFIDENTIAL.]
TRANSACTION AGREEMENT
by and among
FREYR BATTERY, INC.
AND
TRINA SOLAR (SCHWEIZ) AG
November 6, 2024
TABLE OF CONTENTS
|
|
PAGE |
ARTICLE I |
DEFINITIONS |
|
Section 1.1 |
Capitalized Terms |
1 |
Section 1.2 |
Section References |
16 |
|
|
|
ARTICLE II |
PURCHASE AND SALE |
|
Section 2.1 |
Purchase and Sale |
21 |
Section 2.2 |
Purchase Price; Cash Consideration Adjustment for Leakage |
21 |
Section 2.3 |
Withholding Taxes |
22 |
Section 2.4 |
Taking of Necessary Action; Further Action |
22 |
|
|
|
ARTICLE III |
CLOSING AND CLOSING CONSIDERATION |
|
Section 3.1 |
Closing & Parties Closing Deliveries |
22 |
|
|
|
ARTICLE IV |
REPRESENTATIONS AND WARRANTIES OF THE SELLER |
|
Section 4.1 |
Organizational Existence of the Acquired Companies |
24 |
Section 4.2 |
Power and Authorization; Enforceable Agreement |
25 |
Section 4.3 |
Governmental Approvals |
25 |
Section 4.4 |
Conflicts |
25 |
Section 4.5 |
Capitalization |
26 |
Section 4.6 |
Financial Information |
27 |
Section 4.7 |
Sufficiency of Asset |
28 |
Section 4.8 |
No Undisclosed Liabilities |
28 |
Section 4.9 |
Absence of Changes |
28 |
Section 4.10 |
Intellectual Property |
28 |
Section 4.11 |
Privacy Obligations, Data Protection |
30 |
Section 4.12 |
Material Contracts |
31 |
Section 4.13 |
Employee Benefit Plans |
33 |
Section 4.14 |
Employment Matters |
35 |
Section 4.15 |
Tax Matters |
36 |
Section 4.16 |
Subsidies and Grants |
39 |
Section 4.17 |
Environmental Matters |
39 |
Section 4.18 |
Real Property |
39 |
Section 4.19 |
Property |
40 |
Section 4.20 |
Litigation |
40 |
Section 4.21 |
Insurance |
40 |
Section 4.22 |
Compliance with Laws and Permits |
41 |
Section 4.23 |
Anti-Bribery and Corruption, Customs & Trade Laws, Sanctions and Compliance |
41 |
Section 4.24 |
Directors and Managing Directors |
42 |
Section 4.25 |
Top Suppliers |
43 |
Section 4.26 |
Related Party Claims |
43 |
Section 4.27 |
Complete Copies of Materials |
43 |
Section 4.28 |
Brokers |
43 |
Section 4.29 |
Investment Representation |
43 |
Section 4.30 |
Restricted Securities |
43 |
Section 4.31 |
Resale of Shares |
44 |
Section 4.32 |
Adequate Information |
44 |
Section 4.33 |
No Other Representations or Warranties |
44 |
TABLE OF CONTENTS
(continued)
|
|
PAGE |
ARTICLE V |
REPRESENTATIONS AND WARRANTIES OF ACQUIROR |
|
Section 5.1 |
Organization and Good Standing |
45 |
Section 5.2 |
Power and Authorization; Enforceable Agreement |
46 |
Section 5.3 |
Governmental Approvals |
46 |
Section 5.4 |
Conflicts |
46 |
Section 5.5 |
Acquiror Capital Structure |
46 |
Section 5.6 |
Valid Issuance |
46 |
Section 5.7 |
SEC Filings; Financial Statements |
47 |
Section 5.8 |
Absence of changes |
47 |
Section 5.9 |
Sufficiency of Funds |
47 |
Section 5.10 |
Solvency |
47 |
Section 5.11 |
Intellectual Property |
47 |
Section 5.12 |
Material Contracts |
48 |
Section 5.13 |
Tax Matters |
48 |
Section 5.14 |
Environmental Matters |
49 |
Section 5.15 |
Litigation |
49 |
Section 5.16 |
Insurance |
49 |
Section 5.17 |
Compliance with Laws and Permits |
50 |
Section 5.18 |
Anti-Bribery and Corruption, Sanctions and Compliance |
50 |
Section 5.19 |
No Acquiror Vote |
50 |
Section 5.20 |
Brokers |
50 |
Section 5.21 |
Adequate Information |
51 |
Section 5.22 |
No Other Representations or Warranties |
51 |
|
|
|
ARTICLE VI |
PRE-CLOSING COVENANTS |
|
Section 6.1 |
Commercially Reasonable Efforts; Consents |
51 |
Section 6.2 |
Third-Party Contract Notices, Consents |
52 |
Section 6.3 |
Restrictions on Acquired Companies Activities |
52 |
Section 6.4 |
Restrictions on Acquiror |
55 |
Section 6.5 |
Access to Premises and Information. Due Diligence |
56 |
Section 6.6 |
Seller Reorganization. |
57 |
Section 6.7 |
Preferred Stock Purchase Agreement. |
57 |
Section 6.8 |
24M Isolation |
57 |
Section 6.9 |
Related Agreements |
57 |
Section 6.10 |
Executives |
58 |
Section 6.11 |
Notification |
58 |
Section 6.12 |
No Leakage |
58 |
Section 6.13 |
NYSE Approval |
58 |
TABLE OF CONTENTS
(continued)
|
|
PAGE |
ARTICLE VII |
Additional POST-CLOSING Covenants |
|
Section 7.1 |
Best Efforts; Governmental Approvals |
58 |
Section 7.2 |
CFIUS Condition |
58 |
Section 7.3 |
Proxy Statement. |
59 |
Section 7.4 |
Acquiror Stockholders Meeting |
61 |
Section 7.5 |
Europe Business Divestiture |
62 |
Section 7.6 |
Wrong Pockets |
62 |
Section 7.7 |
Tax Matters |
63 |
Section 7.8 |
Waivers and Releases of Claims |
66 |
Section 7.9 |
R&W Insurance Policy; Cooperation |
68 |
Section 7.10 |
Partnership; Battery Energy Storage |
69 |
Section 7.11 |
CFIUS Turndown |
69 |
Section 7.12 |
Dividends |
69 |
Section 7.13 |
Production Reserve Fee Repayment |
69 |
Section 7.14 |
Equity Contribution Agreement |
70 |
Section 7.15 |
Solar Cell Agreement |
70 |
Section 7.16 |
Seller’s Option |
70 |
Section 7.17 |
Trina Employee Shares |
70 |
Section 7.18 |
Lock-Up Agreement Waiver Notification |
70 |
|
|
ARTICLE VIII |
Conditions to close |
|
Section 8.1 |
Mutual Conditions |
70 |
Section 8.2 |
Additional Acquiror Conditions |
71 |
Section 8.3 |
Additional Seller Conditions |
71 |
Section 8.4 |
Frustration of Closing Conditions |
72 |
|
|
ARTICLE IX |
PRE-CLOSING TERMINATION OF AGREEMENT |
|
Section 9.1 |
Termination |
72 |
Section 9.2 |
Effect of Termination |
73 |
|
|
ARTICLE X |
POST-CLOSING INDEMNIFICATION |
|
Section 10.1 |
Survival |
73 |
Section 10.2 |
Indemnification |
74 |
Section 10.3 |
Indemnification Limitations and Qualifications |
75 |
Section 10.4 |
Fraud. |
75 |
Section 10.5 |
Claim Procedures |
76 |
Section 10.6 |
Tax Treatment |
77 |
Section 10.7 |
Exclusive Remedy |
77 |
Section 10.8 |
No Rescission |
77 |
|
|
ARTICLE XI |
GENERAL PROVISIONS |
|
Section 11.1 |
Certain Interpretations |
78 |
Section 11.2 |
Notices |
78 |
Section 11.3 |
Confidentiality |
79 |
Section 11.4 |
Public Statements and Disclosure |
80 |
Section 11.5 |
Expenses |
80 |
Section 11.6 |
Amendment |
80 |
Section 11.7 |
Assignment |
80 |
Section 11.8 |
Severability |
80 |
Section 11.9 |
Specific Performance and Other Remedies |
81 |
Section 11.10 |
Governing Law |
81 |
Section 11.11 |
Consent to Jurisdiction |
81 |
Section 11.12 |
WAIVER OF JURY OF TRIAL |
82 |
Section 11.13 |
Entire Agreement |
82 |
Section 11.14 |
Third-Party Beneficiaries |
82 |
Section 11.15 |
Counterparts |
82 |
INDEX OF ANNEXES, EXHIBITS AND SCHEDULES
Annex |
Description |
Annex A |
Acquired Companies |
Annex B |
Excluded Companies |
|
|
Exhibit |
Description |
Exhibit A-1 |
Form of Convertible Note Instrument |
Exhibit A-2 |
Form of Cooperation Agreement |
Exhibit A-3 |
Form of Lock-Up Agreement |
Exhibit A-4 |
Form of Note Instrument |
Exhibit A-5 |
Form of Registration Rights Agreement |
Exhibit A-6 |
Form of Secondary Note Instrument |
|
|
Schedule |
Description |
Schedule A-1 |
Acquiror Knowledge Persons |
Schedule A-2 |
List of Acquired Companies Resignees |
Schedule A-3 |
List of Acquiror Executive Management Appointments |
Schedule A-4 |
Lock-Up Individuals |
Schedule A-5 |
Seller Account |
Schedule A-6 |
Seller Knowledge Persons |
Schedule A-7 |
Solar Cell Term Sheet |
Schedule A-8 |
Solar Module Term Sheets |
Schedule 4.15(a) |
Employee Census |
Schedule 6.3(a) |
Specific Prohibitions |
Schedule 7.2(a) |
CFIUS Burdensome Condition |
Schedule 8.2(d) |
Consents and Waivers |
TRANSACTION AGREEMENT
This TRANSACTION AGREEMENT
(this “Agreement”) is made and
entered into as of November 6, 2024 (the “Agreement
Date”), by and among FREYR Battery, Inc., a Delaware corporation (“Acquiror”),
and Trina Solar (Schweiz) AG, an entity organized under the laws of Switzerland (the “Seller”).
RECITALS
WHEREAS, the Seller owns,
directly or indirectly, all legal and beneficial ownership in the shares of capital stock of, or other ownership, membership, partnership,
joint venture or equity interest in, the companies set out on Annex A (each, an “Acquired
Company” and, collectively, the “Acquired
Companies”), and has agreed to sell to Acquiror all of the outstanding Target Shares on the terms set forth herein.
WHEREAS, the Seller or the
Acquired Companies own Equity Interests in the companies set out on Annex B (each, an “Excluded
Company” and, collectively, the “Excluded
Companies”), which are not intended to be sold or transferred to Acquiror in the Contemplated Transactions, and which
will be transferred to entities other than the Acquired Companies prior to the Closing.
WHEREAS, Acquiror and the
Seller desire to make certain representations, warranties, indemnities, covenants and agreements, as more fully set forth herein, in connection
with the Purchase and the other Contemplated Transactions.
NOW, THEREFORE, in consideration
of the mutual agreements, covenants and other premises set forth herein, the mutual benefits to be gained by the performance thereof,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, the Parties
hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.1 Capitalized
Terms. For all purposes of and pursuant to this Agreement, the following capitalized terms have the following respective meanings:
“24M”
means 24M Technologies, Inc., a Delaware corporation.
“24M
Assets” means the tangible and intangible assets of Acquiror or any of its Subsidiaries, comprised of proprietary technology,
licenses, research and development, equipment and investments relating to the platform technology utilized under the 24M Licenses, including,
to (i) the 24M Equipment, (ii) the 24M Licenses, and (iii) 6,975,956 shares of Series G Preferred Stock of 24M issued to
Acquiror by 24M on March 24, 2023.
“24M
Equipment” means all the equipment relating to the lithium-ion battery production line using the SemiSolidTM
technology licensed from 24M to Acquiror, through its Subsidiaries, located at Acquiror’s customer qualification plant in Mo i Rana,
Norway.
“24M
Licenses” means (i) the license and services agreement dated December 15, 2020, by and among 24M and FREYR
Battery Norway AS, a Norwegian limited liability corporation, as amended on January 18, 2021, April 27, 2022, and December 21,
2022; and (ii) the license and services agreement dated October 8, 2021, by and among 24M and FREYR Battery KSP JV, LLC, a Delaware
limited liability company.
“Acquired
Company Employee Plan” means each “employee benefit plan” (as defined in Section 3(3) of ERISA, whether
or not subject to ERISA) and all other compensation and benefits plans, programs, policies, agreements or arrangements, whether written
or unwritten and whether or not funded, including each employment, individual consulting, cash or equity-based bonus or incentive, change
in control, transaction-based, severance, retention, vacation, sick leave, fringe benefit, pension or retirement, profit sharing, deferred
compensation, employee loans, life insurance, accident, disability, health, medical, dental or vision plan, program, policy, agreement
or arrangement, in each case, in each case, (i) that is or has been maintained, contributed to, or required to be contributed to,
by any Acquired Company, or (ii) with respect to which any Acquired Company has or may have any Liability or obligation.
“Acquired
Company IP” means any Intellectual Property that is Acquired Company Owned IP or otherwise used or held for use in, or
necessary for, the conduct of the Acquired Companies’ business as currently conducted or contemplated to be conducted.
“Acquired
Company Owned IP” means any and all Intellectual Property that is (a) owned by, or purported to be owned by, any
Acquired Company, or (b) owned (or purported to be owned) by Seller or any of its Affiliates (other than any Acquired Company) and
used or held for use in, or necessary for, the conduct of the Acquired Companies’ business as currently conducted or contemplated
to be conducted.
“Acquiror
Common Stock” means the common stock, par value $0.01 per share, of Acquiror.
“Acquiror
Fundamental Representations” means the representations and warranties of Acquiror set forth in Section 5.1 (Organization
and Good Standing), Section 5.2 (Power and Authorization; Enforceable Agreement), Section 5.4 (Conflicts)
and Section 5.6 (Valid Issuance).
“Acquiror
Material Adverse Effect” means any change, event, violation, inaccuracy, circumstance, occurrence, result, state of facts
or effect (any such item, an “Effect”),
individually or when taken together with all other Effects that have occurred prior to the date of determination of the occurrence of
such Effect, that is or would reasonably be expected to (a) materially impede the authority or ability of Acquiror to consummate
the Contemplated Transactions and the Conversions in accordance with the terms hereof and applicable Law, or (b) be materially adverse
to the business, assets (including intangible assets) and liabilities, financial condition, results of operations of Acquiror, other than,
in the case of this clause (b), any Effect resulting from (i) changes in general economic conditions, (ii) changes or developments
in any of the industries in which Acquiror operates, (iii) changes in any Laws or legal or regulatory conditions (or the interpretation
or enforcement thereof) or changes in GAAP or other applicable accounting standards, or the interpretation or enforcement thereof, (iv) political
or social conditions, international diplomatic or trade relations (including US-China relations), or changes in the foregoing, (v) acts
of war, sabotage or terrorism (including cyberterrorism), (vi) any natural disaster, hurricane, pandemic, epidemic or act of God,
and any actions taken by Governmental Authorities in connection with such events, (vii) the public announcement of this Agreement
or the Contemplated Transactions (including by reason of the identity of the Seller or any communication by the Seller regarding its plans
or intentions, and including the impact thereof on relationships with customers, suppliers, distributors, partners, employees or others
having relationships with any of Acquiror’s Subsidiaries), or (viii) the taking of any action expressly contemplated by this
Agreement or (ix) any failure by Acquiror to meet any projections, budgets or estimates of revenue or earnings (it being understood that
the facts and circumstances giving rise to such failure may be taken into account in determining whether there has been an Acquiror Material
Adverse Effect if otherwise eligible pursuant to this definition); provided that such Effects referenced in clauses (i) through
(vi) do not, individually or when taken together with all other such Effects, have a disproportionate or unique effect on Acquiror as
compared to its competitors.
“Acquiror
Material Contracts” means any Contract in effect as of the date of the Closing Date, to which Acquiror or any of its
Subsidiaries is a party or by which it is bound, which is required to be furnished or filed with the SEC pursuant to Item 601(b)(10)
of Regulation S-K promulgated under the Exchange Act, other than those agreements and arrangements described in Item 601(b)(10)(iii)
of Regulation S-K.
“Acquiror
Stockholders” means the holders of shares of Acquiror Common Stock.
“Action”
means any demand, claim, charge, action, suit, investigation, proceeding (whether at law or in equity), hearing, inquiry, audit, examination
petition, complaint, notice of violation, arbitration or other litigation or similar proceeding, whether arbitral, civil, criminal, administrative,
investigative or appellate proceeding, commenced, brought, conducted or heard by or before, or otherwise involving, any court or other
Governmental Authority or any arbitrator or arbitration panel.
“Affiliate”
of any Person means another Person that directly or indirectly through one of more intermediaries Controls, is Controlled by or is under
common Control with, such first Person.
“Anti-Corruption
Laws” means the Foreign Corrupt Practices Act of 1977, as amended, the United Kingdom Bribery Act of 2010 and any other
applicable Laws concerning anti-corruption, anti-bribery, or anti-money laundering of any other jurisdiction in which any Acquired Company
conducts business, including, without limitation, applicable laws passed pursuant to the Organization of Economic Cooperation and Development
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
“Anti-Money
Laundering Laws” means the financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, the money laundering Laws (including any licensing or registration requirements applicable to money services businesses
and payment institutions as well as statutes criminalizing money laundering such as 18 U.S.C. §§ 1956 and 1957) of all
jurisdictions in which any Acquired Company or Acquiror, conducts business, and any related or similar rules or guidelines issued, administered
or enforced by any Governmental Authority.
“Base
Cash Consideration” means $100,000,000.
“Burdensome
Condition” means any condition or remedy required to obtain CFIUS Approval other than those set out in Schedule 7.2(a).
“Business
Day” means each day that is not (a) a Saturday, Sunday, or (b) other day on which banking institutions located
in Shanghai, People’s Republic of China, New York, New York, are or obligated by law or executive order to close.
“Cash
Consideration” means the Base Cash Consideration less the any Leakage.
“CFIUS”
means the Committee on Foreign Investment in the United States and each member agency thereof acting in such capacity.
“CFIUS
Approval” means (a) CFIUS has concluded that the Conversions is not a “covered transaction” and not
subject to review under the DPA, (b) CFIUS has issued a written notice that it has completed a review or investigation of the notification
voluntarily provided pursuant to the DPA with respect to the Conversions, and has concluded all action under the DPA or (c) if CFIUS
has sent a report to the President of the United States requesting the President’s decision and (i) the President has announced
a decision not to take any action to suspend or prohibit the Conversions or (ii) having received a report from CFIUS requesting the
President’s decision, the President has not taken any action after fifteen (15) days from the earlier of the date the President
received such report from CFIUS or the end of the investigation period.
“CFIUS
Notice” means a joint voluntary notice with respect to the Conversions submitted to CFIUS pursuant to 31 C.F.R. § 800.501.
“CFIUS
Turndown” shall be deemed to have occurred if (a) CFIUS has informed the Parties in writing, after reasonable best efforts
by the Parties to negotiate with CFIUS to receive CFIUS Approval, that it has unresolved national security concerns with respect to the
Conversions and that it intends to send or has sent a report to the President of the United States recommending that the President of
the United States act to suspend or prohibit the Conversions or (b) if after the Parties use reasonable best efforts to negotiate with
CFIUS in good faith, CFIUS has informed the Parties it will impose a Burdensome Condition as a condition of CFIUS Approval.
“Closing Cash
Consideration” means the Base Cash Consideration less the Known Leakage
Amount.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Commercial
Agreements” means (i) Solar Cells Supply Agreement; (ii) Polysilicon Supply Agreement; (iii) Module Operational Support
Agreement; (iv) IP License Agreement; (v) Trademark License Agreement; (vi) Sales Agency Agreement; (vii) TUS Offtake Agreement; and (viii)
Solar Cell Operational Support Agreement.
“Commercially
Available Software” means generally available, off-the-shelf Software licensed pursuant to click-through, click-wrap,
or other standard terms and conditions.
“Confidential
Information” means that information disclosed by each Party to the other Party, including in the case of the Seller,
the Seller Parent, in connection with the Contemplated Transactions, including the terms and conditions of this Agreement, the Related
Agreements and such Confidentiality Agreement, the existence of discussions between the Parties, trade secrets of each Party, any oral,
written, graphic or machine-readable information including, but not limited to, that which relates to patents, patent applications, research,
product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, research, development or know-how,
markets, software (including source and object code), hardware configuration, computer programs, algorithms, business or marketing plans,
business proposals, costs, prices, purchase or sales volume, agreements with third parties, services, actual or potential customers and
suppliers, marketing or finances of the disclosing Party, which information is designated in writing to be confidential or proprietary,
or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed
thirty (30) days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be
confidential or proprietary; provided, however, that Confidential Information will not include information that: (i) is as
of the date of the Confidentiality Agreement, or which thereafter became, through no act or failure to act on the part of the receiving
Party, generally known or readily ascertainable through proper means to persons knowledgeable in the relevant industry; (ii) was
acquired or lawfully in the possession of the receiving Party by proper means without restriction as to use or disclosure before receiving
such information from the disclosing Party; (iii) becomes available to the receiving Party on a non-confidential basis from a source
other than the disclosing Party; provided that such source is not known by the receiving Party to be bound by a confidentiality
agreement or otherwise prohibited from disclosing such information to the receiving Party by a contractual, legal or fiduciary obligation;
or (iv) was independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
“Confidentiality
Agreement” means the Non–Disclosure Agreement between Seller Parent and Acquiror, dated March 28, 2024, as
may be amended from time to time.
“Conflict”
means with respect to any Contract, Organizational Document, Acquired Company Authorization, instrument, document, interest Lien, Law
or Order (each, a “Subject Item”),
each and any of the following: (a) any conflict with, breach of, violation of or default under (with or without notice or lapse of
time, or both) such Subject Item, (b) any payment or other consideration (including any increase in any payment or consideration)
required to be made in connection with such Subject Item, (c) any actual (or right to) terminate, cancel, modify, or accelerate any
right or obligation with respect to or under, or loss of any benefit or right under such Subject Item, and (d) any notice, consent,
waiver, or approval required under such Subject Item.
“Consent”
means any approval, consent, ratification, waiver, clearance or other authorization of, notice to or registration, qualification, designation,
declaration or filing with any Person.
“Contemplated
Transactions” means the Purchase and the Conversions.
“Contract”
means any written or oral, legally binding agreement, contract, mortgage, indenture, lease, license, covenant, plan, insurance policy,
instrument, arrangement or commitment, permit, concession, franchise, license or similar arrangement.
“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”
and “under common Control with”
have correlative meanings.
“Controlled
Group Liability” means any and all Liabilities (i) under any Multiemployer Plan, (ii) under Title IV of
ERISA, (iii) under Section 302 of ERISA or Sections 412 and 4971 of the Code, (iv) as a result of the failure to comply
with the continuation of coverage requirements of ERISA Section 601 et seq., or Section 4980B of the Code, or (v) under
corresponding or similar provisions of any foreign Law.
“Conversion
Conditions” means (i) obtaining CFIUS Approval
with respect to the First Conversion and (ii) receiving the Requisite
Stockholder Approval at the Acquiror Stockholder Meeting with respect to the Second Conversion.
“Conversions”
means the First Conversion and the Second Conversion.
“Conversion
Shares” means the First Conversion Shares and the Second Conversion Shares.
“Convertible
Note” means $80,000,000 aggregate principal amount of Acquiror’s seven percent (7%) convertible unsecured note
due five (5) years of the Closing, issued pursuant to the Convertible Note Instrument.
“Convertible
Note Instrument” means the instrument to be executed on or before the Closing Date, by and between Acquiror and Seller,
substantially in the form attached hereto as Exhibit A-1.
“Cooperation
Agreement” means the cooperation agreement to be executed on or before the Closing Date, between Acquiror and Seller,
substantially in the form attached hereto as Exhibit A-2.
“Copyrights”
has the meaning given to it in the definition of “Intellectual Property.”
“Customs
& Trade Laws” means all applicable export, import, customs and trade, and anti-boycott Laws or programs administered,
enacted or enforced by any Governmental Authority, including: (a) the U.S. Export Administration Regulations, the U.S. International
Traffic in Arms Regulations, and the import Laws and regulations administered by U.S. Customs and Border Protection, including the Uyghur
Forced Labor Prevention Act; (b) the anti-boycott Laws and regulations administered by the U.S. Departments of Commerce and the Treasury;
and (c) any other similar export, import, anti-boycott, or other trade Laws or programs in any relevant jurisdiction to the extent
they are applicable to any Acquired Company or any of its Subsidiaries.
“Disclosed
Related Party Agreements” means the (a) the Intercompany Sales Agreement between TUM 1 and TVNW, dated July 16, 2024;
(b) Intercompany Sales Agreement between TED and TUM 1, dated July 16, 2024; (c) Agreement for the Provision of Service between TUS and
TUM 1, dated July 16, 2024; (d) Agreement for the Provision of Service between Seller Parent and TUM 1, dated July 16, 2024; (e) Intellectual
Property License Agreement between Seller Parent and TUM 1, dated July 16, 2024; (f) Trademark License Agreement between Seller Parent
and TUM 1, dated July 16, 2024; (g) Marketing and Service Agreement between TUS and TUM 1, dated July 16, 2024; and (h) TUS Offtake Agreement.
“DPA”
means Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations issued
and effective thereunder.
“Employee”
means any employee, worker, consultant, independent contractor, officer, director or other service provider of the Acquired Companies.
“Encompass
Capital” means [***].
“Environmental
Law” means any Law or Order relating to pollution, the protection of the environment or natural resources, the protection
of the public health and safety, or to Hazardous Materials, including the manufacture, processing, distribution, use, treatment, storage,
disposal, collection, recycling, labeling, packaging, sale, transport or handling of Hazardous Materials or products containing Hazardous
Materials.
“Equity
Financing” means the equity financing into Acquiror, to be implemented on or prior to Closing pursuant to the Preferred
Stock Purchase Agreement.
“Equity
Interests” means, with respect to any Person, (a) any share of capital stock of, or other ownership, membership,
partnership, joint venture or equity interest in, such Person, (b) any indebtedness, securities, options, warrants, call, subscription
or other rights of, or granted by, such Person or any of its Affiliates that are convertible into, or are exercisable or exchangeable
for, or giving any Person any right to acquire any such share of capital stock or other ownership, partnership, joint venture or equity
interest, in all cases, whether vested or unvested, (c) any stock appreciation right, phantom stock, interest in the ownership or
earnings of such Person or other equity equivalent or equity-based award or right, or (d) any Indebtedness having the right to vote
(or convertible into or exchangeable for securities having the right to vote) on any matters on which any holder of securities of such
Person may vote.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA
Affiliate” of any entity means each Person that at any relevant time would be treated as a single employer with such
entity for purposes of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
“European
Divestiture Target Amount” means $50,000,000.
“Exchange
Act” means the Securities Exchange Act of 1934.
“First Conversion”
means the conversion of the First Conversion Shares, pursuant to the Convertible Note Instrument.
“First
Tranche Equity Financing” means the first tranche of $50,000,000 of the equity financing into Acquiror, to be implemented
on or prior to Closing pursuant to the Preferred Stock Purchase Agreement.
“First
Conversion Shares” means 12,521,653 shares of Acquiror Common Stock, as may be adjusted as a result of any share consolidation,
stock split, stock dividend or similar event effected between the date hereof and the date of the First Conversion with respect to the
Acquiror Common Stock.
“Fraud”
means the making by a Party hereto, to the other Party hereto, of an representation or warranty expressly contained in this Agreement
that at the time such representation or warranty was made by such Party, (a) such representation or warranty was inaccurate, (b) such
Party had actual knowledge (and not imputed or constructive knowledge), without any duty of inquiry or investigation, of the inaccuracy
of such representation or warranty, (c) in making such representation or warranty such Party had the intent to deceive such other party
and to induce such other party to enter into this Agreement, and (d) such other Party acted in reasonable reliance on such representation
or warranty and suffered damages as a result of such reliance. For the avoidance of doubt, “Fraud” does not include equitable
fraud, promissory fraud, unfair dealings fraud, or any torts (including fraud) based on negligence or recklessness, and a claim for Fraud
may only be made against the Party hereto committing such Fraud.
“GAAP”
means generally accepted accounting principles in the United States, as in effect on the date or for the period with respect to which
such principles are applied.
“Governmental
Authority” means any (a) federal, state, provincial, local or other government (U.S. or non-U.S.), (b) any
federal, state, provincial, local, or other governmental or supra-national entity, regulatory or administrative authority, taxing authority,
agency, department, board, division, instrumentality or commission, educational agency, political party, body, or judicial or arbitral
body, board, tribunal, or court (U.S. or non-U.S.), (c) any public international organization (e.g., the World Bank), (d) any
industry self-regulatory authority or (e) any business, entity, or enterprise owned or controlled by any of the foregoing.
“Governmental
Official” means (a) an officer, agent or employee of any Governmental Authority, (b) any Person acting for
or on behalf of a Governmental Authority, (c) any candidate for any office of or position with any Governmental Authority, or (d) any
political party.
“Hazardous
Material” means any substance, material, emission or waste that has been listed, defined or designated by any Governmental
Authority or by any Environmental Law to be radioactive, toxic, hazardous or otherwise a danger to health or the environment, including
polychlorinated biphenyls, asbestos, petroleum, and urea-formaldehyde.
“Incident”
means any incident, security breach, or other unauthorized use, access or intrusion to any Systems or any Personal Information processed
by or on behalf of the Acquired Companies, including denial of service attacks, infection with malware (including ransomware, spyware,
worms, trojans and viruses), hacking, “man in the middle” attacks or similar incidents.
“Indebtedness”
means, with respect to any Person, and without duplication, the following consolidated Liabilities determined in accordance with GAAP:
(a) Indebtedness for borrowed money and other indebtedness in the forms of surety bonds or performance bonds; (b) the deferred
purchase price of property, assets, goods or services, including “earn-outs” and “seller notes” whether accrued
or not, but excluding, for the avoidance of doubt, any trade payables incurred in the ordinary course of business; (c) all reimbursement
and other obligations with respect to letters of credit, bank guarantees, bankers’ acceptances or other similar instruments, letters
of credit and bankers’ acceptances; (d) any capitalized lease obligations and sale leaseback obligations classified as such
under GAAP; (e) all Liabilities arising from the assignment or factoring of receivables or similar arrangements; (f) net intercompany
balance payables by the Acquired Companies to the Seller; (g) all Liabilities of the Acquired Companies with respect to (x) any
accrued or incurred and unpaid compensation and benefits and (y) any unfunded or underfunded pension, retirement, profit sharing,
retiree medical and deferred compensation, in each case, that relate to pre-Closing service but are unpaid as of the Closing and together
with the employer portion of any payroll, employment or similar Taxes attributable to such amounts; (h) obligations arising out of
interest rate, currency swap, hedging arrangements or any other arrangements designed to provide protection against fluctuations in interest
or currency rates; (i) all unpaid declared and approved dividends on any capital stock of such Person and its Subsidiaries; (j) all
indebtedness of a third-party secured by a lien on any property or assets of such Person and its Subsidiaries or otherwise assumed or
guaranteed by such Person or its Subsidiaries; (k) any payroll Taxes of such Person or its Subsidiaries accrued or payable prior
to the Closing Date; (l) guarantees of any of the foregoing; and (m) accrued interest, fees, premiums, penalties, indemnities,
costs, expenses or other amounts due in respect of any of the foregoing; provided that, “Indebtedness” shall
not include any intercompany indebtedness solely among the Acquired Companies.
“Indemnified
Party” mean a Person that may be entitled to be indemnified under this Agreement, including pursuant to Article X.
“Intellectual
Property” means any and all intellectual property, industrial property rights and rights in confidential information
of every kind and description throughout the world, including all U.S. and foreign (i) patents, patent applications, and all related
continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof (“Patents”),
(ii) trademarks, service marks, names, corporate names, trade names, domain names, logos, slogans, trade dress, design rights, and
other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (including all registrations
and applications for registration of the foregoing) (“Trademarks”),
(iii) copyrights (including all registrations, applications for registration and renewal rights) and copyrightable subject matter
(“Copyrights”), (iv) rights
in computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, technology supporting
the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing (“Software”),
(v) trade secrets and all other confidential information, ideas, know-how, inventions, proprietary processes, formulae, models, and
methodologies (“Trade Secrets”),
(vi) rights of publicity, privacy, and rights to Personal Information, (vii) moral rights and rights of attribution and integrity
and (viii) all rights in the foregoing and in other similar intangible assets.
“IP
License Agreement” means the Amended and Restated Intellectual Property License Agreement, to be executed on or before
the Closing Date, between Seller Parent, as licensor, and TUM 1, as licensee, amending and restating the Intellectual Property License
Agreement between Seller Parent and TUM 1 dated July 16, 2024.
“Knowledge,”
“Known” or “Knowingly”
means, with respect to Acquiror or Seller, the actual knowledge of the Persons set forth on Schedule A-1 and Schedule A-6,
respectively, after reasonable enquiry.
“Law”
means any U.S. or non-U.S. federal, state, provincial, local or other constitution, law, statute, ordinance, rule, directive, regulation,
published administrative position, policy or principle of common law issued, enacted, adopted, promulgated, implemented or otherwise put
into legal effect by or under the authority of any Governmental Authority and any judgments, decisions, orders and awards made in respect
of the foregoing.
“Leakage”
means without duplication: (a) any dividend or distribution declared, paid, or made (whether actual or deemed and in cash or in kind)
or any payments in lieu of any dividend declared, made or paid by any Acquired Company, directly or indirectly, to or for the benefit
of any Seller or any of its Affiliates or their respective shareholders; (b) any securities being redeemed, purchased or repaid, or any
other return of capital (whether by reduction of capital or otherwise and whether in cash or in kind and whether loan or share capital)
by any Acquired Company, directly or indirectly, to or for the benefit of the Seller or any of its Affiliates or their respective shareholders;
(c) any consultant, advisory, management, monitoring, service, shareholder or other fees, charges or compensation of a similar nature
paid to or for the benefit of the Seller or any of its Affiliates or their respective shareholders; (d) any amount owed to any Acquired
Company by the Seller or any of its Affiliates or their respective shareholders, which amount is waived or forgiven; (e) any assets or
rights transferred to, or liabilities assumed, guaranteed, indemnified, increased or incurred by any Acquired Company, directly or indirectly,
for the benefit of the Seller or any of its Affiliates or their respective shareholders; (f) the purchase by any Acquired Company, directly
or indirectly, of any assets from or for the benefit of any Seller or any of its Affiliates or their respective shareholders; (g) any
Seller Transaction Expenses incurred or paid by any Acquired Company; (i) any agreement or arrangement made or entered into by any Acquired
Company to do or give effect to any matter referred to in paragraphs; (a) through (h) (inclusive) above; or (j) without duplication, any
Tax payable on or with respect to any of the payments, matters, transactions or circumstances referred to in paragraphs (a) through
(i) above, but in each case, excluding any Permitted Leakage.
“Lease
Agreement” means any Contract for the leasing, use or occupancy of, or otherwise granting a right in or relating to the
Leased Real Property.
“Leased
Real Property” means all real property currently leased, subleased or licensed by or from any Acquired Company or otherwise
occupied by any Acquired Company.
“Liability”
means, with respect to any Person, any and all liabilities, obligations, claims, and deficiencies of any kind (whether known or unknown,
contingent, accrued, due or to become due, secured or unsecured, matured or otherwise), including accounts payable, all liabilities, obligations,
claims, and deficiencies related to Indebtedness or guarantees, costs, expenses, royalties payable, and other reserves, termination payment
obligations, and all other liabilities, obligations, claims, and deficiencies of such Person or any of its Affiliates, in each case, regardless
of whether or not such liabilities, obligations, claims, and deficiencies are required to be reflected on a balance sheet in accordance
with GAAP.
“Lien”
means any lien, pledge, charge, claim, mortgage, security interest or other encumbrance of any kind or character whatsoever.
“Loan
Repayment Amount” means $50,000,000 plus interest in accordance with the TUH Credit Facility.
“Lock-Up
Agreement” means one or more lock-up agreements to be entered into at Closing, by and among Acquiror and each of the
individuals set forth in Schedule A-4 and Encompass Capital, in respect of the preferred stock acquired under the Preferred
Stock Purchase Agreement, substantially in the form set out in Exhibit A-3.
“Losses”
means all claims, losses, liabilities, damages, deficiencies, Taxes, costs, interest, awards, judgments, settlements, penalties, fees
and expenses, including attorneys’, consultants’, experts’ and other professionals’ fees and expenses (including
in connection with investigation, defending against, prosecuting, or settling any of the foregoing) and court or arbitration costs but
in each case excluding any consequential, indirect, speculative, punitive or exemplary damages.
“Material
DD Item” means any Liability identified by either Party in due diligence, solely based on documentation or responses
provided by the other Party after 12:01 am (New York time) on October 29, 2024, where the value of such Liability is, or is reasonably
estimated to be, $10,000,000 in any given twelve (12) month period or $25,000,000 in the aggregate.
“Module Operational
Support Agreement” means the Operational Support Agreement, to be executed on or before the Closing Date, between TUS, as service
provider, and Acquiror, as manufacturer, amending, restating, replacing and renaming the Agreement for the Provision of Service between
Seller Parent and TUM 1 dated July 16, 2024.
“Note”
means the $150,000,000 aggregate principal amount of Acquiror’s senior unsecured note due five (5) years after the Closing Date,
issued pursuant to the Note Instrument.
“Note
Instrument” means the instrument to be executed on or before the Closing Date, by and between Acquiror and the Seller,
substantially in the form attached hereto as Exhibit A-4.
“NYSE”
means the New York Stock Exchange.
"NYSE Approval”
means the approval of NYSE for the listing of the Share Consideration and the Conversion Shares.
“NYSE Supplemental
Listing Application” means an NYSE supplemental listing application covering the Share Consideration and the Conversion Shares.
“Open
Source License” has the meaning given to it in the definition of “Open Source Materials.”
“Open
Source Materials” shall mean any Software or other material that is distributed as “free software,” “open
source software” or pursuant to any license identified as an open source license by the Open Source Initiative (www.opensource.org)
or on similar license terms (“Open Source Licenses”).
“Order”
means any order, judgment, injunction, ruling, edict, or other decree, whether non-final, final, temporary, preliminary or permanent,
enacted, issued, promulgated, enforced or entered by any Governmental Authority or Governmental Official (in the capacity as a Governmental
Official).
“Organizational
Documents” means, with respect to any Person (other than an individual), (a) the certificate or articles of incorporation
or organization or the limited liability company agreement, operating or partnership agreement adopted or filed in connection with the
creation, formation or organization of such Person and (b) all bylaws and equityholders agreements to which such Person is a party
relating to the organization or governance of such Person, in each case, as amended or supplemented.
“Party”
means each of Acquiror and the Seller.
“Permitted
Leakage” means, without duplication, (a) any payments expressly provided for under the terms of this Agreement, as well
as the redemption and transfer contemplated by the Reorganization, and any Disclosed Related Agreement; (b) any payment or accrual made
in the ordinary course of business in respect of the salary, bonus, pensions, contributions, life insurance payments, medical insurance,
expense reimbursements and vacation days accrued and due to any officer, employee, director or consultant of any Acquired Company and,
where such Person has a Contract or similar arrangement of employment, directorship, services or other consultancy with such Acquired
Company, under and in accordance with such Contract or arrangement, provided that each such Contract was made available, and provided,
further, that no such payment is made in connection with the Purchase or any other transaction contemplated hereby, and provided,
further, that Permitted Leakage shall include costs and expenses related to any visa workers or any other senior staff engaged by
Seller or any of its Affiliates providing services to TUM 1; (c) any payments made purely between the Acquired Companies; and (d) any
Leakage in relation to, or arising from, any payment made or agreed to be made or liability incurred in respect of any matter undertaken
at the specific written request or with the written consent of Acquiror after the Agreement Date.
“Permitted
Liens” means (a) statutory Liens securing payments not yet due, (b) Liens with respect to the payment of Taxes,
in all cases that are not yet due or payable, (c) statutory Liens of landlords and Liens of suppliers, mechanics, carriers, materialmen,
warehousemen, service providers or workmen and other similar Liens imposed by applicable Law created in the ordinary course of business
for amounts that are not yet due and payable, and (d) licenses of or other grants of rights to use or obligations with respect to
Intellectual Property.
“Person”
means any individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision
thereof).
“Personal
Information” means any information or data that (a) identifies (or could be used to identify), relates to, describes,
is reasonably capable of being associated with, or could reasonably be linked with a particular individual, device or household, or (b) is
defined as “personal data,” “personal
information” or “personally identifiable
information” or a similar term under applicable Privacy Laws pertaining to privacy or data security.
“Polysilicon Supply
Agreement” means the Sales Agreement (Polysilicon Products), to be executed on or before the Closing Date, between TUM 1, as
seller, and TVNW, as buyer, terminating and replacing the Intercompany Sales Agreement between TUM 1 and TVNW dated July 16, 2024.
“Pre-Closing
Tax Period” means any Tax period or portion thereof that ends on or prior to the Closing Date, including the portion
of any Straddle Period ending on the Closing Date.
“Pre-Closing
Taxes” means (A) any Taxes of or with respect to the Acquired Companies attributable to any Pre-Closing Tax Period,
provided the amounts described in this definition shall be determined (1) as if the Acquired Companies used the accrual method
of Tax accounting throughout all Pre-Closing Tax Periods, (2) treating any advance payments, deferred revenues or other prepaid amounts
received or arising in any Pre-Closing Tax Period as subject to Tax in such period regardless of when actually recognized for income Tax
purposes, (3) by including in the Pre-Closing Tax Period any Taxes, interest and penalties attributable to an adjustment in taxable
income or similar amounts required or permitted under any applicable provision of Law arising as a result of transactions, events or accounting
methods employed prior to the Closing (including any change of such an accounting method required as a result of the Contemplated Transaction),
regardless of when required to be taken into account under applicable Law, (4) by including any Taxes that would have been due or
payable on or prior to the Closing Date but for any provision of pandemic response Law, but only to the extent such Taxes are or become
due and payable following the Closing Date, and (5) by treating as a Pre-Closing Tax the amount of any payroll Tax credit claimed
under any provision of pandemic response Law that is received by any Acquired Company on or before the Closing Date, but only to the extent
such payroll Tax credits are subsequently not allowed or are recaptured; (B) any Taxes payable (1) by or with respect to an
Acquired Company by reason of such Acquired Company being liable for the Tax of any Person pursuant to Treasury Regulations Section 1.1502-6
or any analogous provision of non-U.S., state or local Tax Law, (2) by or with respect to an Acquired Company under an indemnification
agreement (other than this Agreement) or on a transferee or successor liability theory, in respect of any Taxes of any Person, which indemnification
agreement was entered into before the Closing Date or which application of transferee or successor liability theory relates to an acquisition,
disposition or similar transaction occurring on or prior to the Closing Date, (3) pursuant to Section 7.7(e); and (C) any
other Taxes attributable to the Contemplated Transactions, including any Taxes required to be deducted or withheld from any consideration
payable or otherwise deliverable pursuant to this Agreement. For purposes of this Agreement, in the case of Taxes based upon income, sales,
proceeds, profits, receipts, wages, compensation or similar items, the Taxes attributable to the portion of any Straddle Period that is
included in a Pre-Closing Tax Period shall be determined as though the applicable taxable year or period ended at the end of the day on
the Closing Date based on an interim closing of the books, except that exemptions, allowances or deductions that are calculated on an
annual basis (including depreciation and amortization deductions), other than with respect to property placed in service after the Closing,
shall be allocated on a per diem basis; and the amount of any other Taxes of the Acquired Companies attributable to the portion of any
Straddle Period that is included in a Pre-Closing Tax Period shall equal the amount of such Tax for the entire taxable period multiplied
by a fraction, the numerator of which is the number of days in the taxable period up to and including the Closing Date, and the denominator
of which is the total number of days in the taxable period.
“Preferred
Stock Purchase Agreement” means the preferred stock purchase agreement entered into concurrently with the execution of
this Agreement, between Acquiror and Encompass Capital, pursuant to which Encompass Capital will purchase non-voting preferred stock of
Acquiror (the “Preferred Stock”)
in exchange for $100,000,000, the first tranche of $50,000,000 of which will occur on or prior to the Closing Date.
“Privacy
Obligations” means collectively, all (i) Laws pertaining to privacy or data security (“Privacy
Laws”); (ii) obligations under Contracts that apply to or regulate privacy rights or Personal Information or the
processing of Personal Information; (iii) written privacy policies and other policies relating to the collection, storage, transfer,
disclosure, processing, protection and use of Personal Information; and (iv) any rules of self-regulatory bodies, industry groups
or other organizations with which Seller or any of its Affiliates are obligated to comply that relate to the collection, storage, transfer,
disclosure, processing, protection or use of Personal Information.
“Purchase”
means the purchase and sale of Target Shares pursuant to Section 2.1 and all other transactions contemplated by this Agreement
to occur at Closing, including entry into the Related Agreements.
“Redemption
Price” means the number of shares of Acquiror Common Stock constituting Share Consideration multiplied by the
VWAP for the period covering the thirty (30) trading days prior to the issuance of the Secondary Note Instrument pursuant to Section
7.11(a).
“Registration
Rights Agreement” means the registration rights agreement to be on or before the Closing Date, between Acquiror and the
Seller, substantially in the form attached as Exhibit A-5.
“Related
Agreements” means the Convertible Note Instrument, the Cooperation Agreement, the Note Instrument, the Commercial Agreements
and all other agreements, instruments and certificates contemplated hereby or thereby to which any Party is a party.
“Related
Party Agreement” means any agreement and other arrangements entered into between any Acquired Company, on the one hand,
and the Seller Group Company, including any of its Affiliates, on the other hand.
“R&W
Insurance Policy” means any Representations and Warranties Insurance Policy with respect to the Seller Representations
secured for the benefit of Acquiror as the named insured.
“Reorganization”
means that series of transactions whereby TUH will redeem a portion of its shares held by Seller in exchange for the transfer of (i) the
issued and outstanding shares of capital stock of, or equivalent ownership interests in, the Excluded Companies and (ii) certain assets,
Liabilities, Contracts, Permits and Licenses that are each not primarily related to the businesses of the Acquired Companies (other than
as may be explicitly set forth herein), from Acquired Companies to wholly owned Subsidiaries of the Seller, in accordance with Section
6.6.
“Representatives”
means, with respect to a Person, such Person’s Affiliates and the directors, managers, members, shareholders, officers, employees,
advisors, counsel, accountants, agents, consultants, intermediaries or other representatives of such Person and its Affiliates.
“Restricted
Person” means any Person on the U.S. Department of Commerce’s Entity List, Denied Persons List, Unverified List,
or Military End User List or the U.S. Department of State’s Debarred List.
“Sales Agency Agreement”
means the Sales Agency and Aftermarket Services Agreement, to be executed on or before the Closing Date, between TUS, as sales agent,
and TUM 1, as manufacturer, amending, restating and renaming the Marketing and Service Agreement between TUS and TUM 1 dated July 16,
2024.
“Sanctioned
Jurisdiction” means a country or territory that is itself the subject of comprehensive country- or territory-wide Sanctions
(at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, and Luhansk People’s
Republic regions of Ukraine), and the non-government controlled areas of Ukraine (in the oblasts of Kherson and Zaporizhzhia).
“Sanctioned
Person” means any Person that is a target of Sanctions, including as a result of being: (a) listed on any Sanctions
list maintained by (i) the United States (including, without limitation, the Department of the Treasury’s Office of Foreign
Assets Control and the Department of State), (ii) the European Union, (iii) any European Union member state, (iv) the United Nations,
(v) the United Kingdom, or (vi) any other Governmental Authority of a jurisdiction in which any Acquired Company conducts business; (b) located,
organized or resident in a Sanctioned Jurisdiction; or (c) directly or indirectly owned fifty percent or more, individually or in
the aggregate, by one or more Persons described in the foregoing clauses (a) or (b).
“Sanctions”
means all applicable trade, economic and financial sanctions, embargoes, Laws, and restrictive measures administered, enacted or enforced
by (i) the United States (including, without limitation, the Department of the Treasury’s Office of Foreign Assets Control
and the Department of State), (ii) the European Union, (iii) any European Union member state, (iv) the United Nations,
(v) the United Kingdom, or (vi) any other Governmental Authority of a jurisdiction in which any Acquired Company or Acquiror
conducts business.
“SEC”
means the Securities and Exchange Commission of the United States of America.
“Second Conversion”
means the conversion of the Second Conversion Shares, pursuant to the Convertible Note Instrument.
“Second
Conversion Shares” means 17,918,460 shares of Acquiror Common Stock, as may be adjusted as a result of any share consolidation,
stock split, stock dividend or similar event effected between the date hereof and the date of the Second Conversion with respect to the
Acquiror Common Stock.
“Securities
Act” means the Securities Act of 1933, as amended.
“Seller
Account” means the Seller’s bank account set out in Schedule A-5.
“Seller
Fundamental Representations” means the representations and warranties of the Seller set forth in Section 4.1
(Organizational Existence of the Acquired Companies), Section 4.2 (Power and Authorization; Enforceable Agreement),
Section 4.4 (Conflicts), and Section 4.5 (Capitalization).
“Seller
Group Company” and “Seller Group
Companies” means, collectively, Seller Parent and its Subsidiaries.
“Seller
IP Representations” representations and warranties of the Seller in Section 4.10 (Intellectual Property).
“Seller
Material Adverse Effect” means any Effect,
individually or when taken together with all other Effects that have occurred prior to the date of determination of the occurrence of
such Effect, that is or would reasonably be expected to (a) materially impede the authority or ability of the Seller or any Acquired
Company to consummate the Contemplated Transactions in accordance with the terms hereof, or (b) be materially adverse to the business,
assets (including intangible assets) and liabilities, financial condition, results of operations of the Acquired Companies taken as a
whole, other than, in the case of this clause (b), any Effect resulting from (i) changes in general economic conditions, (ii) changes
or developments in any of the industries in which any Acquired Company operates, (iii) changes in any Laws or legal or regulatory
conditions (or the interpretation or enforcement thereof) or changes in GAAP or other applicable accounting standards, or the interpretation
or enforcement thereof, (iv) political or social conditions, international diplomatic or trade relations (including US-China relations),
or changes in the foregoing, (v) acts of war, sabotage or terrorism (including cyberterrorism), (vi) any natural disaster, hurricane,
pandemic, epidemic or act of God, and any actions taken by Governmental Authorities in connection with such events, (vii) the public
announcement of this Agreement or the Contemplated Transactions (including by reason of the identity of Acquiror or any communication
by Acquiror regarding its plans or intentions, and including the impact thereof on relationships with customers, suppliers, distributors,
partners, employees or others having relationships with any Acquired Company), (viii) the taking of any action expressly contemplated
by this Agreement (including the Worker Transfer) or (ix) any failure by the Acquired Companies to meet any projections, budgets or estimates
of revenue or earnings (it being understood that the facts and circumstances giving rise to such failure may be taken into account in
determining whether there has been a Seller Material Adverse Effect if otherwise eligible pursuant to this definition); provided
that such Effects referenced in clauses (i) through (vi) do not, individually or when taken together with all other such Effects,
have a disproportionate or unique effect on any Acquired Company as compared to its competitors.
“Seller
Transaction Expenses” means all costs, fees and expenses of the Acquired Companies incurred or agreed to be paid at or
prior to the Closing Date that remain unpaid as of the Closing Date in connection with or in anticipation of the negotiation, execution
and delivery of this Agreement and the Related Agreements, the consummation of the Contemplated Transactions or the consummation of the
Reorganization, including (i) any legal, accounting, investment banking, advisory and other costs, fees and expenses, (ii) any
Transfer Taxes and (iii) all retention, transaction, change in control or similar bonuses or any other compensatory payment or benefit
to be paid or provided by any Acquired Company as a result of, or in connection with, the consummation of the Contemplated Transactions
(together with the employer portion of any payroll, employment or similar Taxes attributable to such amounts), but excluding (a) any
Liabilities arising as a result of affirmative action taken by (x) the Acquired Companies after the Closing Date or (y) Acquiror
prior to, at or after the Closing Date, (b) any Taxes that are not described in clause (ii) of this definition, and (c) any
costs and expenses incurred in obtaining the consents required under this Agreement.
“Seller
Parent” means Trina Solar Co., Ltd., a company incorporated in the People’s Republic of China.
“Seller
Tax Representations” means the representations and warranties of the Seller in Section 4.15 (Tax Matters).
“Senior
Employee” means any Employee with a basic annual salary or fee in excess of $200,000.
“Share
Consideration” means 15,437,847 shares of Acquiror Common Stock, as may be adjusted as a result of any share consolidation,
stock split, stock dividend or similar event effected between the date hereof and the Closing Date with respect to the Acquiror Common
Stock.
“Solar
Cell Operational Support Agreement” means the solar cell operational support agreement between TUS, as service provider
and TUM 2 as manufacturer.
“Solar
Cell Manufacturing Facility” means the solar cell manufacturing facility to be developed substantially in accordance
with the Solar Cell Term Sheets, and constructed by TUM 2, or any other Affiliate of the Acquired Companies or of Acquiror, after Closing,
to be located in the United States.
“Solar Cells Supply
Agreement” means the Amended and Restated Sales Agreement (Solar Cells), to be executed on or before the Closing Date, between
TED, as seller, and TUM 1, as buyer, amending and restating the Intercompany Sales Agreement between TED and TUM 1 dated July 16, 2024.
“Solar
Module Manufacturing Facility” means the solar module manufacturing facility currently under construction by TUM 1 and
located at 1200 North Sunrise Road in Wilmer, Texas.
“Solar
Cell Term Sheets” means each of the term sheets attached hereto as Schedule A-7 setting out the detailed
terms and conditions in relation with the development, operation and services of the Solar Cell Manufacturing Facility after the Closing
Date, which will be included in the Solar Cell Operational Support Agreement, as applicable.
“Solar
Module Term Sheets” means each of the term sheets attached hereto as Schedule A-8 setting out the detailed
terms and conditions in relation with the development, operation and services of the Solar Module Manufacturing Facility after the Closing
Date, which will be included in the Solar Cells Supply Agreement, Polysilicon Supply Agreement, Module Operational Support Agreement,
IP License Agreement, Trademark License Agreement, Sales Agency Agreement and the TUS Offtake Agreement, as applicable.
“Straddle
Period” means any taxable period beginning on or before the Closing Date and ending after the Closing Date.
“Subsidiary”
or “subsidiary” means, with respect
to any Person, any corporation or other organization or Person, whether incorporated or unincorporated, of which (a) such Person
or any other subsidiary of such Person is a general partner (excluding such partnerships where such Person or any subsidiary of such Person
does not have a majority of the voting interest in such partnership) or (b) such Person controls directly or indirectly.
“Systems”
means all networks, systems, equipment, databases, websites and other information technology or data processing assets, facilities, infrastructure
or services (including related Software and hardware) owned or controlled by or on behalf of any Acquired Company, and the data, including
Personal Information, processed thereby or thereon.
“Target
Shares” means, collectively, all of the shares of common stock or other securities of Trina Solar (U.S.) Holding Inc.,
a Delaware corporation (“TUH”).
For the avoidance of doubt, Target Shares do not include any shares of TUH that are redeemed as part of the Reorganization.
“Tax”
means (a) any income, alternative or add-on minimum tax, gross income, estimated, gross receipts, sales, use, ad valorem, value added,
transfer, franchise, capital stock, profits, license, registration, withholding, payroll, social security (or equivalent, including employer
and employees’ contributions), employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real,
tangible or intangible), environmental or windfall profit tax, escheat or unclaimed property, custom duty, tariff, or other tax, governmental
fee or other like assessment or charge in the nature of a tax, together with any interest or any penalty or addition to tax or additional
amount (whether disputed or not) imposed by any Governmental Authority responsible for the imposition of any such tax (domestic or foreign),
(b) any liability for the payment of any amounts of the type described in clause (a) of this sentence as a result of being a
member of an affiliated, consolidated, combined, unitary, aggregate or similar group for any taxable period, and (c) any liability
for the payment of any amounts of the type described in clause (a) or (b) of this sentence as a result of being a transferee of or
successor to any Person or as a result of any express or implied obligation to assume such Taxes or to indemnify any other Person, including
by operation of Law.
“Tax
Proceeding” means any action, audit, grievance, examination, investigation, lawsuit, administrative proceeding, litigation
or arbitration regarding Tax, in each case, by or before a Governmental Authority (whether civil, criminal or administrative).
“Tax
Return” means any return (including any information return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed with or submitted to, or required to be filed with or
submitted to, any Governmental Authority in connection with the determination, assessment, collection or payment of any Tax or in connection
with the administration, implementation or enforcement of or compliance with any Law relating to any Tax, including any schedule or amendment
thereof or attachment thereto.
“Taxing
Authority” means any Governmental Authority having or purporting to exercise jurisdiction with respect to any Tax.
“TED”
means Trina Solar Energy Development Pte. Ltd., a company organized under the laws of the Republic of Singapore.
“Trademark
License Agreement” means the Amended and Restated Trademark License Agreement, to be executed on or before the Closing
Date, between TUS, as licensor, and TUM 1, as licensee, amending, restating, replacing and renaming the Trademark License Agreement between
Seller Parent and TUM 1 dated July 16, 2024.
“Treasury
Regulations” means the United States Treasury regulations issued pursuant to the Code.
“TUH
Credit Facility” mean the credit facility with a principal amount of $50,000,000 between Seller and TUH dated October
18, 2024.
“TUM
1” means Trina Solar US Manufacturing Module 1 LLC, a limited liability company organized under the laws of Texas.
“TUM
2” means Trina Solar US Manufacturing Cell 1, LLC, a limited liability company organized under the laws of Oklahoma.
“TUS”
means Trina Solar (U.S.), Inc., a corporation organized under the laws of Delaware.
“TUS
Offtake Agreement” means the Supply Contract, , to be executed on or before the Closing Date, between TUM 1, as supplier,
and TUS, as purchaser, amending and restating the Supply Agreement between TUM 1 and TUS dated July 16, 2024.
“TVNW”
means Trina Solar (Viet Nam) Wafer Company Limited, a company organized under the laws of Vietnam.
“United
States” and “U.S.”
means the United States of America.
“Uyghur
Forced Labor Prevention Act” means The Uyghur Forced Labor Prevention Act enacted in the United States (Public Law 117
- 78).
“VWAP”
means the dollar volume-weighted average price for the shares of Acquiror Common Stock on the NYSE during the period beginning at 9:30:01
a.m., New York time (or such other time as the NYSE publicly announces is the official open of trading), and ending at 4:00:00 p.m., New
York time (or such other time as the NYSE publicly announces is the official close of trading), as reported by Bloomberg, L.P. through
its “Volume at Price” function or, if the foregoing does not apply, the dollar volume-weighted average price of such security
in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York
time (or such other time as the NYSE publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York City
Time (or such other time as the NYSE publicly announces is the official close of trading), as reported by Bloomberg, L.P. If the VWAP
cannot be calculated for the shares of Acquiror Common Stock on a particular date on any of the foregoing bases, the VWAP of the shares
of Acquiror Common Stock shall be the fair market value of the shares of Acquiror Common Stock on such date as determined by Acquiror’s
Board of Directors in good faith.
“Worker
Transfer” means the pre-Closing transfer from TUM 1 to Seller or its Affiliates of certain employees and service
providers who presently provide services to TUM 1, as may be agreed by Acquiror and Seller from time to time.
Section 1.2 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 Reference |
|
|
|
24M |
|
1.1 |
24M Assets |
|
1.1 |
24M Equipment |
|
1.1 |
24M Isolation |
|
6.8 |
24M Licenses |
|
1.1 |
Acquired Companies |
|
Recitals |
Acquired Companies Financials |
|
4.6(a) |
Acquired Companies Year-End Financials |
|
4.6(a) |
Acquired Company |
|
Recitals |
Acquired Company Authorizations |
|
4.22(b) |
Acquired Company Employee Plan |
|
1.1 |
Acquired Company IP |
|
1.1 |
Acquired Company Owned IP |
|
1.1 |
Acquired Company Registered IP |
|
4.10(a) |
Acquiror |
|
Preamble |
Acquiror Authorizations |
|
5.17(b) |
Acquiror Claims |
|
7.8(a)(iii) |
Acquiror Common Stock |
|
1.1 |
Acquiror Disclosure Statement |
|
V |
Acquiror Fundamental Representations |
|
1.1 |
Acquiror Material Adverse Effect |
|
1.1 |
Acquiror Material Contracts |
|
1.1 |
Acquiror Related Party |
|
7.9 |
Acquiror Released Parties |
|
7.9 |
Acquiror Releasing Parties |
|
7.9(b) |
Acquiror Representations |
|
5.22(a) |
Acquiror SEC Documents |
|
1.1(c) |
Acquiror Stockholders |
|
1.1 |
Acquiror Stockholders Meeting |
|
7.4(b) |
Action |
|
1.1 |
Affiliate |
|
1.1 |
Agreement |
|
Preamble |
Agreement Date |
|
Preamble |
Anti-Corruption Laws |
|
1.1 |
Anti-Money Laundering Laws |
|
1.1 |
Balance Sheet Date |
|
4.6(a) |
Base Cash Consideration |
|
1.1 |
Books and Records |
|
4.6(e) |
Burdensome Condition |
|
1.1 |
Business Day |
|
1.1 |
Cash Consideration |
|
1.1 |
CFIUS |
|
1.1 |
CFIUS Approval |
|
1.1 |
CFIUS Notice |
|
1.1 |
CFIUS Turndown |
|
1.1 |
Chosen Courts |
|
11.12 |
Claim Notice |
|
10.5(b) |
Claim Objection Notice |
|
10.5(c) |
Closing |
|
3.1(a) |
Closing Cash Consideration |
|
1.1 |
Closing Date |
|
3.1(a) |
Code |
|
1.1 |
Commercial Agreements |
|
1.1 |
Commercially Available Software |
|
1.1 |
Confidential Information |
|
1.1 |
Confidentiality Agreement |
|
1.1 |
Conflict |
|
1.1 |
Consent |
|
1.1 |
Contemplated Transactions |
|
1.1 |
Contract |
|
1.1 |
Control |
|
1.1 |
Controlled |
|
1.1 |
Controlled Group Liability |
|
1.1 |
Conversion Conditions |
|
1.1 |
Conversion Shares |
|
1.1 |
Conversions |
|
1.1 |
Convertible Note |
|
1.1 |
Convertible Note Instrument |
|
1.1 |
Cooperation Agreement |
|
1.1 |
Copyrights |
|
1.1 |
Current Balance Sheets. |
|
4.6(c) |
Customs & Trade Laws |
|
1.1 |
DD Discussion Period |
|
6.5(b) |
Definitive Proxy Statement |
|
7.3(c) |
Designated Accounting Firm |
|
7.7(a)(iii) |
Disclosed Related Party Agreements |
|
1.1 |
Dispute Notice |
|
7.7(a)(iii) |
DPA |
|
1.1 |
Effect |
|
1.1 |
Employee |
|
1.1 |
Encompass Capital |
|
1.1 |
End Date |
|
9.1(b) |
Environmental Law |
|
1.1 |
Equity Financing |
|
1.1 |
Equity Interests |
|
1.1 |
ERISA |
|
1.1 |
ERISA Affiliate |
|
1.1 |
Europe Divestiture |
|
7.5 |
European Divestiture Consideration |
|
7.5 |
European Divestiture Target Amount |
|
1.1 |
Exchange Act |
|
1.1 |
Excluded Companies |
|
Recitals |
Excluded Company |
|
Recitals |
Expert Determination |
|
7.7(a)(iii) |
First Conversion |
|
1.1 |
First Conversion Shares |
|
1.1 |
First Tranche Equity Financing |
|
1.1 |
Fraud |
|
1.1 |
GAAP |
|
1.1 |
Governmental Authority |
|
1.1 |
Governmental Official |
|
1.1 |
Hazardous Material |
|
1.1 |
Incident |
|
1.1 |
Indebtedness |
|
1.1 |
Indemnification Claim |
|
10.5(b) |
Indemnified Party |
|
1.1 |
Intellectual Property |
|
1.1 |
IP License Agreement |
|
1.1 |
Knowingly |
|
1.1 |
Knowledge |
|
1.1 |
Known |
|
1.1 |
Labor Agreement |
|
4.14(c) |
Labor Entity |
|
4.14(c) |
Law |
|
1.1 |
Leakage |
|
1.1 |
Lease Agreement |
|
1.1 |
Leased Real Property |
|
1.1 |
Liability |
|
1.1 |
Lien |
|
1.1 |
Loan Repayment Amount |
|
1.1 |
Lock-Up Agreement |
|
1.1 |
Losses |
|
1.1 |
Material Contract |
|
4.12(b) |
Material DD Item |
|
1.1 |
matter |
|
4.20(a) |
Module Operational Support Agreement |
|
1.1 |
Multiemployer Plan |
|
4.13(b) |
Note |
|
1.1 |
Note Instrument |
|
1.1 |
NYSE |
|
1.1 |
NYSE Approval |
|
1.1 |
NYSE Supplemental Listing Application |
|
1.1 |
Objection Deadline |
|
10.5(c) |
Open Source License |
|
1.1 |
Open Source Materials |
|
1.1 |
Order |
|
1.1 |
Organizational Documents |
|
1.1 |
Other Required Filing |
|
7.3(d) |
Party |
|
1.1 |
Patents |
|
1.1 |
PCAOB Audited Financials |
|
7.3(d)(ii) |
Permitted Leakage |
|
1.1 |
Permitted Liens |
|
1.1 |
Person |
|
1.1 |
personal data |
|
1.1 |
personal information |
|
1.1 |
Personal Information |
|
1.1 |
personally identifiable information |
|
1.1 |
Polysilicon Supply Agreement |
|
1.1 |
Pre-Closing Period |
|
6.1 |
Pre-Closing Tax Period |
|
1.1 |
Pre-Closing Taxes |
|
1.1 |
Preferred Stock |
|
1.1 |
Preferred Stock Purchase Agreement |
|
1.1 |
Preliminary Proxy Statement |
|
7.3(b) |
Privacy Laws |
|
1.1 |
Privacy Obligations |
|
1.1 |
Pro Forma Financials |
|
7.3(d)(ii) |
Production Reserve Fee |
|
7.13, 7.13 |
Purchase |
|
1.1 |
Purchase Price |
|
2.2(a) |
R&W Insurance Policy |
|
1.1 |
Redemption Price |
|
1.1 |
Registration Rights Agreement |
|
1.1 |
Related Agreements |
|
1.1 |
Related Party Agreement |
|
1.1 |
Reorganization |
|
1.1 |
Representatives |
|
1.1 |
Required Financials |
|
7.3(d)(ii) |
Requisite Stockholder Approval |
|
7.4(b) |
Restricted Person |
|
1.1 |
Right Pocket |
|
7.6(a)(ii) |
Sales Agency Agreement |
|
1.1 |
Sanctioned Jurisdiction |
|
1.1 |
Sanctioned Person |
|
1.1 |
Sanctions |
|
1.1 |
SEC |
|
1.1 |
Second Conversation |
|
1.1 |
Second Conversion Shares |
|
1.1 |
Secondary Note Instrument |
|
7.12(a) |
Securities Act |
|
1.1 |
Seller |
|
Preamble |
Seller Account |
|
1.1 |
Seller Claims |
|
7.8(a)(iii) |
Seller Disclosure Statement |
|
IV |
Seller Fundamental Representations |
|
1.1 |
Seller Group Companies |
|
1.1 |
Seller Group Company |
|
1.1 |
Seller IP Representations |
|
1.1 |
Seller Material Adverse Effect |
|
1.1 |
Seller Parent |
|
1.1 |
Seller Related Party |
|
7.9 |
Seller Released Parties |
|
7.9 |
Seller Releasing Parties |
|
7.8(a)(i) |
Seller Representations |
|
4.33(a) |
Seller Tax Representations |
|
1.1 |
Seller Transaction Expenses |
|
1.1 |
Senior Employee |
|
1.1 |
Settlement Memorandum |
|
10.5(c)(ii) |
Share Consideration |
|
1.1 |
Software |
|
1.1 |
Solar Cell Manufacturing Facility |
|
1.1 |
Solar Cell Operational Support Agreement |
|
1.1 |
Solar Cell Term Sheets |
|
1.1 |
Solar Cells Supply Agreement |
|
1.1 |
Solar Module Manufacturing Facility |
|
1.1 |
Solar Module Term Sheets |
|
1.1 |
Straddle Period |
|
1.1 |
Subject Item |
|
1.1 |
Subject Provision |
|
10.5(b) |
Subsidiary |
|
1.1 |
Systems |
|
1.1 |
Target Shares |
|
1.1 |
Tax |
|
1.1 |
Tax Claim |
|
7.8 |
Tax Proceeding |
|
1.1 |
Tax Return |
|
1.1 |
Taxing Authority |
|
1.1 |
TED |
|
1.1 |
Third-Party Claim |
|
10.5(e)(ii) |
Top Supplier |
|
4.25 |
Trade Secrets |
|
1.1 |
Trademark License Agreement |
|
1.1 |
Trademarks |
|
1.1 |
Transfer Taxes |
|
7.8 |
Treasury Regulations |
|
1.1 |
TUH |
|
1.1 |
TUH Credit Facility |
|
1.1 |
TUM 1 |
|
1.1 |
TUM 2 |
|
1.1 |
TUMH |
|
4.6(a) |
TUS |
|
1.1 |
TUS Offtake Agreement |
|
1.1 |
TVNW |
|
1.1 |
U.S. |
|
1.1 |
under common Control with |
|
1.1 |
United States |
|
1.1 |
Unobjected Claim |
|
10.5(c) |
Uyghur Forced Labor Prevention Act |
|
1.1 |
VWAP |
|
1.1 |
Worker Transfer |
|
1.1 |
Wrong Pocket |
|
7.6(a)(ii) |
Wrong Pocket Asset |
|
7.6(a)(i) |
Wrong Pocket Liability |
|
7.6(a)(i) |
ARTICLE
II
PURCHASE AND SALE
Section 2.1 Purchase
and Sale.
(a) Purchase.
Upon the terms and subject to the conditions of this Agreement, at the Closing, the Seller shall sell, convey, assign, transfer and deliver,
or cause to be sold, conveyed, assigned, transferred and delivered, to Acquiror or Acquiror’s wholly-owned designee, and Acquiror
or Acquiror’s designee shall purchase from the Seller, all legal and beneficial right, title and interest in and to all the Target
Shares held by the Seller or any of its Affiliates free and clear of all Liens and as a result of such acquisitions Acquiror or Acquiror’s
designee will own all of the Target Shares previously held by the Seller or any of its Affiliates. No Party shall be obliged to complete
the purchase and sale of any Target Shares unless the purchase and sale of all of the Target Shares is completed simultaneously (subject
to the terms and conditions of this Agreement).
(b) Transfer
of Title. At the Closing, the ownership of the Target Shares held by the Seller or any of its Affiliates shall pass from the Seller
to Acquiror or Acquiror’s designee, in exchange for the payment of the Purchase Price to the Seller.
Section 2.2 Purchase
Price; Cash Consideration Adjustment for Leakage.
(a) Purchase
Price. The purchase price for the Target Shares shall be composed of (i) the Cash Consideration, (ii) the Share Consideration,
(iii) the Note and (iv) the Convertible Note ((i) to (iv), the “Purchase
Price”).
(b) Notification
and Adjustment of Leakage. Not less than five (5) Business Days prior to Closing, the Seller shall notify Acquiror in writing (such
notification, the “Leakage Statement”) of the amount of any Leakage having taken place from the date hereof until the
Closing Date (the “Known Leakage Amount”).
(c) Payment
of Purchase Price; Exchange Procedures. At Closing, Acquiror shall:
(i) deposit
(or cause to be deposited) the Closing Cash Consideration by bank wire transfer of immediately available funds to the Seller’s Account;
(ii) issue
and deliver to the Seller the Share Consideration (subject to the transfer restrictions contemplated in this Agreement and the Cooperation
Agreement);
(iii) issue
and deliver to the Seller the Note (subject to the transfer restrictions contemplated in the Note Instrument) by executing the Note Instrument;
and
(iv) issue
and deliver to the Seller the Convertible Note (subject to the transfer restrictions contemplated in the Convertible Note Instrument)
by executing the Convertible Note Instrument.
(d) Acquiror
Shares. Notwithstanding anything herein to the contrary, the shares of Acquiror Common Stock and issued in connection with the Contemplated
Transactions will be subject to (i) the terms and conditions of, including any restrictions and encumbrances provided for under,
this Agreement, Acquiror’s articles of association and other organizational documents, as may be amended, or amended and restated,
from time to time, and the Cooperation Agreement or any other Contract entered into by the Party to whom all such shares were issued,
and (ii) applicable securities and corporate Laws.
Section 2.3 Withholding
Taxes. Acquiror and its Affiliates (including the Acquired Companies following the Closing) shall be entitled to deduct and withhold
(or cause to be deducted and withheld) from any amount payable pursuant to this Agreement such amounts as are required to be deducted
or withheld therefrom under any applicable Law; provided, however, that if Acquiror or its Affiliates intend to deduct
or withhold from any amount payable pursuant to this Agreement (other than in respect of compensation), such Person shall notify the
Seller of such intent at least fifteen (15) Business Days prior to the applicable payment date or, if later, as soon as reasonably practicable
prior to the payment date, and shall cooperate with Seller in good faith to reduce or eliminate any such deduction or withholding to
the extent permitted under applicable Laws. Any amounts deducted, withheld and paid over to the appropriate tax Governmental Authority
shall be treated as having been paid to the Person in respect of whom such withholding was made for all purposes of this Agreement or
any other Related Agreement.
Section 2.4 Taking
of Necessary Action; Further Action. At and following the Closing, the Seller, at the request of Acquiror, and Acquiror, at
the request of the Seller, shall execute and deliver such other instruments and do and perform such other acts and things as may be reasonably
requested by the requesting Party in writing and reasonably necessary or desirable for effecting completely the consummation of the Purchase,
the Conversions and the other Contemplated Transactions.
ARTICLE
III
CLOSING AND CLOSING CONSIDERATION
Section 3.1 Closing
& Parties Closing Deliveries.
(a) Closing.
Unless this Agreement is validly terminated pursuant to Section 9.1, Acquiror and the Seller shall consummate the Purchase
at a closing (the “Closing”),
which shall occur at the close of business five (5) Business Days following satisfaction or waiver (if permissible hereunder) of the conditions
set forth in Section 8.1, Section 8.2, and Section 8.3 (other than those conditions that by their nature are
to be satisfied at the Closing, but subject to satisfaction or waiver (if permissible hereunder) of those conditions at the Closing),
by remote exchange of documents, unless another time and place is mutually agreed upon in writing by Acquiror and the Seller. The date
upon which the Closing occurs hereunder shall be referred to herein as the “Closing
Date.” With respect to the remote exchange of signatures or other actions required to complete the Closing, and notwithstanding
anything to the contrary in this Agreement, all closing deliveries, registrations and actions shall be deemed to have occurred simultaneously,
and no delivery, registration or action by any Party shall have any legal effect (and shall be null and void) unless all deliveries, registrations
and actions by all parties required to complete the Closing have been completed and released.
(b) Seller
Closing Deliveries. At or prior to the Closing, the Seller shall deliver to Acquiror the following:
(i) in
respect of the Target Shares, duly executed and delivered share or unit certificates, as applicable, and share or unit power;
(ii) a
copy of the updated shareholder or member register of TUH reflecting the Target Shares transferred and delivered to Acquiror or Acquiror’s
designee pursuant to this Agreement;
(iii) copy
of the resolutions (or action taken by unanimous written consent in lieu thereof) of the board of directors of the Seller approving the
execution, delivery and performance of this Agreement and the Related Agreements and the consummation of the Purchase, and a copy of the
resolutions (or action taken by written consent in lieu thereof) of the stockholders of the Seller approving the execution, delivery and
performance of this Agreement and the Related Agreements and the consummation of the Purchase;
(iv) resignations
duly executed by each director, officer or employee of the Acquired Companies included in Schedule A-2, as well as the revocation
of powers of attorney, if any, granted to such resignees;
(v) a
duly executed IRS Form W-8 from the Seller;
(vi) the
Convertible Note Instrument duly executed by the Seller;
(vii) the
Cooperation Agreement duly executed by the Seller;
(viii) the
IP License Agreement duly executed by Seller Parent and TUM 1;
(ix) the
Module Operational Support Agreement duly executed by TUS;
(x) the
Trademark License Agreement duly executed by TUS and TUM 1;
(xi) the
Note Instrument duly executed by the Seller;
(xii) the
Polysilicon Supply Agreement duly executed by TUM 1 and TVNW;
(xiii) the
Registration Rights Agreement duly executed by the Seller;
(xiv) Sales
Agency Agreement duly executed by TUM 1 and TUS;
(xv) the
Solar Cells Supply Agreement duly executed by TUM 1 and TED; and
(xvi) TUS
Offtake Agreement duly executed by TUM 1 and TUS.
(c) Acquiror
Closing Deliveries. At the Closing, Acquiror shall deliver to the Seller the following:
(i) the
Purchase Price in accordance with Section 2.2(a);
(ii) pay
the Loan Repayment Amount to the Seller Acount;
(iii) copy
of Acquiror’s resolutions (or action taken by written consent in lieu thereof) of the board of directors of Acquiror appointing
the executive management set forth in Schedule A-3 on the terms agreed pursuant to Section 6.10;
(iv) the
Convertible Note Instrument duly executed by Acquiror;
(v) the
Cooperation Agreement duly executed by Acquiror;
(vi) proof
of payment by Encompass Capital of the First Tranche Equity Financing under the Preferred Stock Purchase Agreement;
(vii) the
Note Instrument duly executed by Acquiror;
(viii) the
Module Operational Support Agreement duly executed by Acquiror; and
(ix) the
Registration Rights Agreement duly executed by Acquiror.
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Subject to such exceptions,
qualifications and other matters as are specifically set forth in the disclosure statement delivered by the Seller to Acquiror on the
Agreement Date (the “Seller Disclosure Statement”)
(it being understood and hereby agreed that (a) the information set forth in the Seller Disclosure Statement shall be disclosed under
separate section, subsection, and subclause references that correspond to the sections, subsections, and subclauses of this Article IV
to which such information relates, and (b) the information set forth in each section, subsection, and subclause of the Seller Disclosure
Statement shall qualify (i) the representations and warranties set forth in the corresponding section, subsection, and subclause
of this Article IV and (ii) any other representations and warranties set forth in this Article IV if, and
solely to the extent that, it is reasonably apparent on the face of such disclosure, without reference to the underlying documents referenced
therein and without independent knowledge of the matters described therein, that it applies to such other section, subsection or subclause
of this Article IV), the Seller hereby represents and warrants as of the Agreement Date and as of the Closing Date as follows:
Section 4.1 Organizational
Existence of the Acquired Companies.
(a) Each
Acquired Company is a legal entity duly organized, validly existing and, where relevant, in good standing, under the laws of the relevant
jurisdiction in which it was incorporated.
(b) Each
Acquired Company has full corporate power to own, lease and operate its properties and assets and to carry on its business in the manner
and to the extent conducted or contemplated to be conducted on the Agreement Date. Each Acquired Company is qualified to do business in
any jurisdiction in which it does business (to the extent the concept is applicable in such jurisdiction).
(c) No
order has been made and no resolution has been passed for or regarding the initiation of any insolvency proceedings or the winding-up
of the Acquired Companies, and no meeting has been convened and no petition has been presented for such purpose in respect to the Acquired
Companies. No administration order has been made in respect of the Acquired Companies, and no petition for such an order has been presented
in respect of the Acquired Companies. No trustee, liquidator, receiver, administrator, or other similar person has been appointed in respect
of the Acquired Companies or any of their respective assets. No Acquired Company is or has in the past been insolvent or unable to pay
its debts as they fall due. No creditor of the Acquired Companies has enforced any security over any assets of the Acquired Companies,
or is currently entitled to do so as a result of any breach by the Acquired Companies of any financing agreement.
(d) The
Organizational Documents of each Acquired
Company have been made available to Acquiror and are true, complete and current on the Agreement Date, and are kept by each Acquired Company
in all material respects in accordance with applicable Laws. No registration filings regarding the Organizational Documents of any Acquired
Company are pending, and no resolutions have been passed which should, but have not been, filed for registration with any authority. The
minutes of each Acquired Company (i) are complete and up-to-date and have been maintained in accordance with sound and prudent business
practice, (ii) contain true, correct and complete records of all actions taken, and summaries of all meetings held, by the respective
shareholders and board of directors of each Acquired Company (and any committees thereof) since the time of incorporation of each Acquired
Company and (iii) have been made available to Acquiror. At the Closing, the minute books and other Books and Records will be in the
possession of the Acquired Companies.
(e) No
Acquired Company has any Subsidiary, branch, representative office or place of business (whether or not amounting to a permanent establishment
under any relevant Laws) outside its jurisdiction of incorporation.
Section 4.2 Power
and Authorization; Enforceable Agreement.
(a) The
Seller has, and any of its Affiliates who are party to a Related Agreement, have, all requisite power and authority to enter into this
Agreement and any Related Agreements and each certificate and other instrument required to be executed and delivered by the Seller or
its Affiliates and to perform its obligations hereunder and thereunder. The execution and delivery of this Agreement, any Related Agreements,
and each certificate and other instrument required to be executed and delivered by the Seller or its Affiliates or to which the Seller,
or any of its Affiliates, is a party and the performance of its obligations hereunder and thereby have been duly authorized by all necessary
action on the part of the Seller, or its Affiliates, and no further action is required on the part of the Seller or its Affiliates to
authorize its execution, delivery and performance of this Agreement and any Related Agreements to which the Seller, or its Affiliates,
is a Party and the Contemplated Transactions.
(b) This
Agreement and each of the Related Agreements to which the Seller, or any of its Affiliates, is a Party have been (or in the case of Related
Agreements to be entered into at or prior to the Agreement Date, will be) duly executed and delivered by the Seller or its Affiliates
and, assuming the due authorization, execution and delivery by Acquiror (as applicable), constitute (or in the case of Related Agreements
to be entered into at or prior to the Agreement Date, will be) the valid and binding obligations of the Seller or its Affiliates enforceable
against it in accordance with their respective terms, subject to Laws of general application relating to bankruptcy, insolvency, moratorium,
the relief of debtors and enforcement of creditors’ rights in general.
Section 4.3 Governmental
Approvals. Except as set forth in Section 4.3 of the Seller Disclosure Statement, no consent, notice, waiver, approval,
Order or authorization of, or registration, declaration or filing with, any Governmental Authority, is required to be obtained by any
member of the Seller Group Company, in connection with the execution and delivery of this Agreement and any Related Agreement or the
consummation of the Contemplated Transactions, except for the Conversion Conditions or the Reorganization.
Section 4.4 Conflicts. Except
as set forth on Section 4.4 of the Sellers Disclosure Statement, the execution and delivery by the Seller of this Agreement
and any Related Agreement to which the Seller is (or will be) a Party, and the consummation of the Purchase and the other Contemplated
Transactions, will not (a) result in the creation or imposition of any Lien (other than Permitted Liens) upon the assets of any
Acquired Company and (b) result in or give rise to any Conflict in (i) any provision of the Organizational Documents of any Acquired
Company or Seller, as amended, (ii) any Material Contract, Acquired Company Authorization, or Lien to which any Acquired Company
is a party or by which any Acquired Company or any of their respective properties or tangible assets are bound or subject or (iii) any
Law or Order applicable to any Acquired Company or any of their respective properties or assets (whether tangible or intangible), except,
in each of clauses (a) and (b), as would not be material to the Acquired Companies taken as a whole.
Section 4.5 Capitalization.
(a) The
Seller is the sole legal and beneficial owner of the Target Shares designated, and the Seller has good and valid title with respect to,
and holds all right title and interest in and to, such Target Shares held by it.
(b) The
Target Shares represent all of the issued and outstanding equity securities (and rights to acquire equity securities) of TUH.
(c) All
Target Shares are duly authorized, validly issued, fully paid and non-assessable. The Target Shares are not subject to any Liens or to
any rights of first refusal of any kind, and no rights to purchase such Target Shares have been granted to any other Person. The Seller
has the sole right to transfer the Target Shares to Acquiror. The Target Shares owned by the Seller constitute the Seller’s entire
interest in TUH and the Seller does not have the right to acquire, directly or indirectly, any other Equity Interest in TUH. The Seller
is not a Party to any option, warrant, purchase right, or other Contract or commitment that could require it to sell, transfer, or otherwise
dispose of any Target Shares. The Seller has not previously granted or agreed to grant any ongoing power of attorney in respect of any
Target Shares or entered into any voting trust, vote pooling or other agreement with respect to the right to vote, call meetings of the
board of directors of TUH or give consents or approvals of any kind as to such Target Shares. At the Closing, upon payment of the Purchase
Price, Acquiror will receive good and valid title to such Target Shares, free and clear of all Liens.
(d) The
capital stock of each Acquired Company as of the Agreement Date is set forth in Annex A. All of the issued and outstanding
shares of each of the Acquired Companies have been duly authorized and validly issued, are fully paid and nonassessable and are owned
of record (both legally and beneficially) by the Seller or one of the Acquired Companies as indicated in Annex A. There are
no other outstanding (i) securities of any of the Acquired Companies, including any instrument convertible into or exchangeable for
shares of capital stock or voting securities of any of the Acquired Companies; or (ii) options, rights of first offer or refusal,
redemption or repurchase rights, or other rights in favor of third parties to acquire any securities from any of the Acquired Companies,
and there is no obligation of any of the Acquired Companies to issue any capital stock, voting securities, or securities or other instruments
convertible into or exchangeable for capital stock or voting securities of any of the Acquired Companies. Except as indicated on Section 4.5(d)
of the Seller Disclosure Statement, none of the Acquired Subsidiaries has any Subsidiaries or holds, directly or indirectly, an equity
interest in any other Person.
(e) No
Acquired Company holds any treasury shares or any other Equity Interest in any other Acquired Company.
(f) Other
than the Target Shares, there are no, and neither the Seller nor the Acquired Companies have unfilled promises or commitments (whether
or not binding) or Contract to issue or grant any securities or enter into any commitments or agreements of any character, written or
oral, for the issuance or grant of any securities of any Acquired Company or obligating any Acquired Company to issue, deliver, sell,
repurchase or redeem, or cause to be issued, sold, repurchased or redeemed, any securities or obligating any Acquired Company to grant,
extend, accelerate the vesting of, change the price of, otherwise amend or enter into any security. There are no outstanding or authorized,
and neither the Seller nor the Acquired Companies have unfulfilled promises or commitments (whether or not binding) or Contract to issue,
grant, or enter into any, stock appreciation, option, phantom stock, restricted stock, restricted stock unit, profit participation or
other similar rights with respect to any Acquired Company (whether payable in securities, cash or otherwise).
(g) Prior
to the Agreement Date no dividends have been declared, made or paid or agreed to be declared, made or paid, by any Acquired Company.
(h) There
are no issued or outstanding bonds, debentures, notes or other indebtedness of any Acquired Company (A) having the right to vote
on any matters on which the shareholders or unitholders, as applicable, of any Acquired Company may vote (or which is convertible into,
or exchangeable for, securities having such right), or (B) the value of which is in any way based upon or derived from capital or
voting stock of any Acquired Company.
Section 4.6 Financial
Information.
(a) Section 4.6(a)
of the Seller Disclosure Statement sets forth (i) the unaudited balance sheets of each TUH, Trina Solar US Manufacturing Holding,
Inc. (“TUMH”) and TUM 1 as of
December 31, 2023, and the related unaudited income statement for the twelve (12) month periods then ended (the “Acquired
Companies Year-End Financials”), and (ii) the unaudited balance sheet of each of TUH, TUMH and TUM 1 as of September 30,
2024 (the “Balance Sheet Date”),
and the related unaudited income statements for the nine (9) month period ended on the Balance Sheet Date (together with the Acquired
Companies Year-End Financials, the “Acquired Companies
Financials”). The Acquired Companies
Financials have been prepared in accordance with GAAP consistently applied throughout the periods indicated and consistent with each other.
(b) No
material change has been made to the accounting policies or to any other accounting treatment (including, for the avoidance of doubt,
any estimation techniques or approaches to the exercise of accounting discretion of judgment) of the Acquired Companies for at least two
(2) years prior to September 30, 2024. The Acquired Companies Financials give a true and fair view of the Acquired Companies’
assets, liabilities, financial condition, operating results and cash flows as of the dates and during the periods indicated therein.
(c) TUH’s,
TUMH’s and TUM 1’s unaudited balance sheet as of the Balance Sheet Date is referred to hereinafter as the “Current
Balance Sheets.” The books and records of TUH, TUMH and TUM 1 have been, and are being, maintained in all material respects
in accordance with applicable legal and accounting requirements (including, without limitation, GAAP) and the Acquired
Companies Financials are consistent with such books and records. All reserves that are set forth in or reflected in the Current
Balance Sheets have been established in accordance with GAAP consistently applied with the Acquired
Companies Financials.
(d) No
Acquired Company is a Party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement,”
where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities
of, any Acquired Company in the Acquired Companies
Financials.
(e) Each of the Acquired Companies
maintains accurate business records, financial books and records, personnel records, legers, sales accounting records, Tax records and
related work papers and other books and records (collectively the “Books
and Records”) reflecting its assets and liabilities and maintains internal accounting controls that provide reasonable
assurance that (i) transactions are executed with management’s authorization, (ii) transactions are recorded as necessary
to permit preparation of the Acquired Companies’ financial statements in conformity with GAAP and to maintain accountability of
its assets, (iii) access to its assets is permitted only in accordance with management’s authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. No Acquired Company has engaged in any material transaction or maintained any bank account except as reflected
in the Books and Records. The Books and Records (A) are in all material respects true, correct and complete, (B) have been
maintained in accordance with the Acquired Companies’ business practices on a basis consistent with prior years, and (C) fairly
reflect in all material respects the basis for the Acquired
Companies Financials. Each Acquired Company has filed their respective statutory financial statements with the relevant authorities
in compliance with applicable Laws.
(f) No
Acquired Company (including any Employee) has identified or been made aware of (i) any significant deficiency or material weakness
in the system of internal accounting controls utilized by any Acquired Company, (ii) any Fraud, whether or not material, that involves
any Acquired Company’s management or other Employees who have a role in the preparation of financial statements or the internal
accounting controls utilized by any Acquired Company or (iii) any claim or allegation regarding any of the foregoing.
Section 4.7 Sufficiency
of Assets. (a) Upon the Closing, the assets and properties of the Acquired Companies constitute all of the material assets and
properties used or held for use in the businesses of the Acquired Companies as currently conducted and all the Seller and all the assets
of the Seller connected to the business of the Acquired Companies, (b) at the Closing, Acquiror (through its direct or indirect
ownership of the Acquired Companies) will have sufficient rights, property and assets to conduct the operations of the businesses of
the Acquired Companies as currently conducted and (c) without prejudice to the provisions set forth in Section 7.6,
from and after the Closing, the Seller or their Representatives will not own any assets or properties used in or held for use in the
businesses of the Acquired Companies as currently conducted.
Section 4.8 No Undisclosed
Liabilities. No Acquired Company has any Liability, except for those that (a) have been specifically reflected and adequately
reserved for in the Current Balance Sheets, or (b) have arisen in the ordinary course of business since the Balance Sheet Date that
are not material relative to the ordinary course of business consistent with past practices in amount or significance, either individually
or in the aggregate, and do not result from a breach of Contract (including any representation or warranty therein), breach of warranty,
violation of Law, infringement, misappropriation, or other tort or (c) that would not be required to be set forth on a consolidated
balance sheet of the Acquired Companies or any Acquired Company prepared in accordance with GAAP.
Section 4.9 Absence
of Changes. Since September 30, 2024 (a) the operations of the Acquired Companies have been conducted in the ordinary
course of business, (b) no Seller Material Adverse Effect has occurred and (c) no Acquired Company has taken any action that
would be prohibited by Section 6.3 if proposed to be taken or actually taken after the Agreement Date.
Section 4.10 Intellectual
Property.
(a) Section 4.10(a)
of the Seller Disclosure Statement contains a true, complete and accurate list, as of the Agreement Date, of each registration (including
issued Patents) and application constituting Acquired Company Owned IP, including domain names (“Acquired
Company Registered IP”), setting forth, for each the jurisdiction where such Acquired Company Registered IP has been
registered or filed; the application, registration or serial number; the application, filing or registration date; the status; and the
record and beneficial owners. There are no actions that must be taken within four (4) months from the Agreement Date, including the payment
of fees or the filing of documents, for the purposes of obtaining, maintaining, perfecting, or renewing any rights in such registered
or applied for Intellectual Property.
(b) The
Acquired Company Registered IP is subsisting, valid and enforceable and there is no reasonable basis for a claim that any Acquired Company
Registered IP is invalid or unenforceable. Since January 1, 2021, no interference, opposition, reissue, reexamination, or other similar
Action has been pending or threatened in writing in which the ownership, validity, scope or enforceability of any Acquired Company Registered
IP has been contested or challenged.
(c) The
Acquired Companies are the sole and exclusive beneficial, and with respect to applications and registrations (including Patents), owner
of all Acquired Company Owned IP, and no other Person has any rights to such Intellectual Property. The Acquired Companies own or have
a valid right to use the Acquired Company IP, in each case free and clear of all Liens (other than Permitted Liens), in business of the
Acquired Companies as currently conducted and contemplated to be conducted. The Seller and its Affiliates have entered into valid and
enforceable written agreements with all Persons (including all past and present founders, employees, consultants and independent contractors)
who have contributed to the creation, generation, conception, discovery, development or reduction to practice of any Intellectual Property
related to the Acquired Companies’ business or, for or on behalf of any Acquired Company, (including Acquired Company Owned IP),
pursuant to which such Persons presently assign to an Acquired Company all of such Person’s rights, title and interest in and to
all Intellectual Property created, generated, conceived, discovered, developed or reduced to practice for the Acquired Company in the
course of their employment or retention thereby, without any exclusions or reservations, and no party thereto is in default or breach
of such agreement.
(d) No
funding, facilities or resources of any Governmental Authority, university, college, or other educational institution, or research center
were used in the creation, generation, conception, discovery, development or reduction to practice of any Acquired Company Owned IP. Neither
the Seller or its Affiliates (in connection with the operation of the Acquired Companies’ business) nor any of the Acquired Companies
is a member or promoter of, or a contributor to, any industry standards body or similar organization that obligates any Acquired Company
to grant or offer to any third party any license or similar immunity with respect to such Intellectual Property. No Person who contributed
to the creation, generation, conception, discovery, development or reduction to practice of any Acquired Company Owned IP was performing
services for any Governmental Authority, or for a university, college or other educational institution or research center, during the
period of time such Person was creating, generating, conceiving, discovering, developing or reducing to practice any Acquired Company
Owned IP.
(e) The
consummation of the Contemplated Transactions will not result in the loss or impairment of or payment of any additional amounts with respect
to, nor require the consent of any other Person in respect of, the Acquired Companies’ right to own, use, or hold for use any Intellectual
Property as owned, used, or held for use (including for defensive purposes) in the conduct of the business of the Acquired Companies as
currently conducted and contemplated to be conducted. All Acquired Company Owned IP is (and immediately following the Closing will be)
fully transferable, alienable and licensable by any Acquired Company without restriction (other than Permitted Liens) and without payment
of any kind to any third party. Other than with respect to the applicable rights granted under the IP License Agreement and the Trademark
License Agreement, neither Seller or any of its Affiliates (other than the Acquired Companies), nor any current or former owner, partner,
director, stockholder, officer, or employee of Seller or any of its Affiliates will, after giving effect to the Contemplated Transactions,
own, license, or retain any proprietary rights in any of the Intellectual Property owned, used, or held for use (including for defensive
purposes) by the Acquired Companies in the conduct of their business as currently conducted and contemplated to be conducted.
(f) Since
January 1, 2021, no Person has infringed, misappropriated, or otherwise violated any Acquired Company Owned IP, and no such Actions
have been asserted or threatened against any Person (including in the form of offers or invitations to obtain a license).
(g) The
conduct of the business of the Acquired Companies as currently conducted has not since January 1, 2021, and as contemplated to be
conducted, and the use of the products and technology of the Acquired Companies will not infringe, misappropriate, or otherwise violate
any Intellectual Property of any other Person, and no such Actions have been pending or threatened in writing since January 1, 2021,
against the Seller or any of its Affiliates or any other Person who is entitled to be indemnified, defended, held harmless or reimbursed
by the Seller or any of its Affiliates.
(h) The
Acquired Company IP constitutes all of the Intellectual Property reasonably necessary for the operation of the business of the Acquired
Companies as such business are currently conducted and as contemplated to be conducted.
(i) Neither
the Seller or any of its Affiliates nor any Acquired Company has used, modified, or distributed any Open Source Materials in a manner
that requires any Acquired Company Source Code to be publicly disclosed, publicly distributed, dedicated to the public or licensed to
any Person pursuant to a copyleft license or otherwise imposes any other material limitation, restriction or condition on the right or
ability of any Acquired Company to use, license or distribute any Acquired Company Owned IP. Seller and its Affiliates have complied with
the terms and conditions of all applicable Open Source Licenses in all material respects in connection with the conduct of the Acquired
Companies’ business.
(j) The
Seller and its Affiliates have taken reasonable steps to protect material Trade Secrets that are Acquired Company Owned IP, and there
has been no loss of, or unauthorized access to or disclosure of, any such Trade Secrets.
(k) Neither
the Seller or its Affiliates, nor any Person acting on its or their behalf, has disclosed, licensed or delivered to any third party, agreed
to disclose or deliver to any third party, or deposited or agreed to deposit with any escrow agent or other third party, any Acquired
Company Source Code. No third party has accessed or obtained any Acquired Company Source Code without authorization. No event has occurred,
and no circumstance or condition exists, that (with or without notice or lapse of time, or both) would reasonably be expected to require
the disclosure or delivery by the Seller or its Affiliates, any Acquired Company or, any other Person, of any Acquired Company Source
Code to any third party (including escrow agents).
Section 4.11 Privacy
Obligations, Data Protection.
(a) The
Seller and its Affiliates (solely in connection with the business of the Acquired Companies) and the Acquired Companies are in compliance
and since January 1, 2021, have complied in all material respects with Privacy Obligations. The Acquired Companies have implemented
and maintain appropriate technical and organizational policies, procedures and other measures to protect Personal Information owned, controlled
or processed by the Acquired Companies against personal data breaches.
(b) Neither
Seller or its Affiliates in connection with the business of the Acquired Companies, nor any Acquired Company has since January 1,
2021 (i) suffered any material breach of Personal Information; (ii) been subject to investigation or received any written notice
or other communication from any supervisory authority or Governmental Authority in relation to any alleged non-compliance with Privacy
Laws; or (iii) received any written claim, complaint or other communication from any Person claiming a right to compensation under
Privacy Laws or alleging non-compliance with Privacy Obligations; and (iv) no event has occurred and no circumstances exist which
could reasonably be expected to give rise to any of the consequences described in (i) through (iii) in this Section 4.11(b)
(inclusive).
(c) Since
January 1, 2021, there has been no material Incident, and to the Seller’s Knowledge, there are no circumstances that may give
rise to an Incident affecting any System owned or controlled by any of the Acquired Companies.
(d) The
Seller and its Affiliates carry out regular tests and vulnerability assessments of the Systems and promptly remediate all critical and
high-risk issues and vulnerabilities identified therein, in each case, in accordance with customary industry standards and practices for
entities operating businesses similar to the business of the Acquired Companies. The Seller and its Affiliates have used commercially
reasonable efforts to implement and maintain policies and practices to monitor, prevent and detect any Incident and protect the availability,
security and integrity of all Systems and data (including Personal Information processed thereby or thereon) used or held for use in connection
with the business of the Acquired Companies, and implement, maintain and regularly test appropriate disaster recovery and business continuity
plans, procedures and facilities, in each case, in accordance customary industry standards and practices for entities operating businesses
similar to the business of the Acquired Companies. The Systems are in good working condition in all material respects and perform all
functions necessary for the current operation of the Acquired Companies.
Section 4.12 Material
Contracts.
(a) Section 4.12(a)
of the Seller Disclosure Statement identifies, in each subpart that corresponds to the subsection listed below in this Section 4.12(a),
each of the following Contracts to which any Acquired Company is a party or by which any of its respective assets or properties are bound
as of the Agreement Date:
(i) Contracts
with a Top Supplier;
(ii) any
Contract relating to or involving (A) Liabilities or payment obligations of any party thereto other than the Acquired Companies,
in excess of $10,000,000 in any given twelve (12) month period after the Agreement Date or $25,000,000 in the aggregate over the term
of the Contract, including any Liability or payment obligation that may arise in the future upon the satisfaction or occurrence of any
terms, conditions, termination, event, covenants or otherwise or (B) the performance of services after the Agreement Date by any
party thereto other than the Acquired Companies for an amount, or having a value, in excess of $10,000,000 in the aggregate (or the equivalent
amount in local currency at the applicable exchange rate as of the Agreement Date), other than the Disclosed
Related Party Agreements;
(iii) all
Contracts relating to the acquisition, sale, transfer, development, use, exploitation or license (including coexistence agreements and
covenants not to sue) of any material Intellectual Property, excluding (A) contracts for generally commercially available Software
having license fees of less than $1,000,000 annually or in the aggregate, (B) employee and contractor confidentiality and invention
assignment agreements, and (C) non-disclosure agreements entered into in the ordinary course of business;
(iv) imposing
or purporting to impose any restriction on or limit on the right or ability or freedom of the Seller or Acquired Company (or that would
expressly impose or purport to impose any restriction on or limit the right or ability or freedom of Acquiror or any of its Affiliates
after the Purchase): (A) to engage in any business practices or other activities, (B) to compete with any other Person or to
engage in any line of business, market or geographic area, or to sell, license, manufacture or otherwise distribute any of its technology
or products, or from providing services, to customers or potential customers or any class of customers, in any geographic area, during
any period of time, or in any segment of the market, (C) to acquire any product, property or other asset (including Intellectual
Property), or any services, from any other Person, (D) to sell any product or other asset (including Intellectual Property) to or
perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (E) to license
or distribute any product, Software or technology;
(v) relating
to the provision of lending, consulting, development, sales or any other services to any Acquired Company, in each case, by any other
Person, involving payment obligations in excess of $10,000,000 in the prior twelve (12) month period;
(vi) relates
to the purchase, lease, license or rental of equipment in excess of $10,000,000 on a one-time basis or $25,000,000 on an annual basis;
(vii) that
is an Acquired Company Employee Plan, including any employment or services agreement, offer letter, or similar Contract that sets forth
the terms and conditions of employment or service with any Employee, that cannot be terminated within sixty (60) days after the delivery
of a termination notice by any Acquired Company without payment or other liability;
(viii) that
grants any retention, change of control, severance or termination pay or benefits (in cash, securities, or otherwise) to any Employee;
(ix) that
is an agreement with any current Senior Employee;
(x) any
Contract with a professional employer organization or similar party;
(xi) any
Labor Agreement;
(xii) that
is a lease, lease guaranty, sublease, Contract for the leasing, use or occupancy of, or otherwise granting a right in or relating to Leased
Real Property;
(xiii) relating
to capital expenditures and involving future payments in excess of $10,000,000 individually or $25,000,000 in the aggregate;
(xiv) relating
to any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts or instruments relating to
Indebtedness having a value in excess of $25,000,000 or the creation of any Lien (other than Permitted Liens) with respect to any asset
of any Acquired Company;
(xv) involving
or incorporating any guaranty, pledge, performance or completion bond, indemnity or surety arrangement;
(xvi) creating
or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(xvii) that
is with a Governmental Authority, or constitutes or relates to any quotation, bid or proposal submitted to any Governmental Authority
or higher-tier subcontractor of any Governmental Authority;
(xviii) relating
to any acquisition or agreement to acquire or dispose of (i) assets of any Person, other than acquisitions in the ordinary course
of business or the disposal of non-material assets of any Acquired Company in the ordinary course of business, or (ii) any Equity
Interest in any Person (including any Acquired Company) or any business or operations of any Person;
(xix) that
is a hedging, futures, exchange, options or other derivative Contract;
(xx) that
is with any investment banker, broker, financial advisor or similar party, retained by the Seller or any Acquired Company in connection
with this Agreement and the Contemplated Transactions; and
(xxi) that
otherwise involves payment by any Acquired Company of $10,000,000 individually or $25,000,000 in the aggregate or more and is not cancellable
without penalty within thirty (30) days.
(b) Each
Contract (x) set forth in the Seller Disclosure Statement, or (y) required to be set forth on the Seller Disclosure Statement
in order to make the corresponding section of this Article IV true, correct and complete, is referred to herein as a “Material
Contract.” The Seller has made available to Acquiror true, correct and complete copies of all Material Contracts, including
all material amendments, exhibits, schedules and other attachments thereto, in each case as of the Agreement Date. Each Material Contract
is valid and in full force and effect and is enforceable by the Seller or the Acquired Companies, as applicable, in accordance with its
terms, subject to Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and rules of law governing
specific performance, injunctive relief and other equitable remedies. No Acquired Company has materially violated or breached, or committed
any material default under, any Material Contract and, to the Seller’s Knowledge, no other Person that is party to a Material Contract
has materially violated or breached, or committed any material default under, such Material Contract. Since the latter of the respective
date of incorporation and January 1, 2021, no Acquired Company has received any written notice alleging a material breach of, or
material default under, any Material Contract. To the Seller’s Knowledge, no event has occurred, and no circumstance or condition
exists, with respect to a Material Contract that (with or without notice or lapse of time) would reasonably be expected to: (i) result
in a material violation or material breach of any of the provisions of such Material Contract by any Acquired Company or the counterparty
to such Material Contract; (ii) give any party to such Material Contract the right to declare a default or exercise any material
remedy under such Material Contract; (iii) give any party to such Material Contract the right to accelerate the maturity or performance
of such Material Contract; or (iv) give any Person the right to cancel prior to the specified expiration date thereof, terminate
prior to the specified expiration date thereof or materially modify such Material Contract. Since the latter of the respective date of
incorporation of the Acquired Companies and January 1, 2021, no Acquired Company has received any written notice of termination of
any Material Contract (regardless of whether such Person has the right to do so under such Contract) prior to the specified expiration
date thereof.
Section 4.13 Employee
Benefit Plans.
(a) Section 4.13(a)
of the Seller Disclosure Statement sets forth a true, correct and complete list of each Acquired Company Employee Plan. No Acquired Company
has made any plan or commitment to establish or enter into any new material Acquired Company Employee Plan or to modify any material Acquired
Company Employee Plan. No material promises or representations have been made to any Employees to increase their compensation or to continue
their employment for any specific duration and no Acquired Company is under any legal obligation to make any change in the compensation
or benefits of any Employee, except as required by law or the terms of the Acquired Company Employee Plan. The Seller has made available
to Acquiror true and complete copies of, to the extent applicable: (i) the plan document (including all amendments thereto) governing
each Acquired Company Employee Plan or, if such plan is not in writing, a written description of such Acquired Company Employee Plan,
(ii) if the Acquired Company Employee Plan is funded through a trust or any other funding arrangement, a copy of such trust or other
funding arrangement, (iii) each ERISA summary plan description and summary of material modifications, (iv) the most recent annual
report on Form 5500 including, if applicable, all schedules and attachments thereto prepared in connection with any such Acquired
Company Employee Plan, (v) the most recently received Internal Revenue Service determination letter (or opinion or advisory letter,
if applicable) and (vi) all non-routine correspondence to and from any Governmental Authority within the last three (3) years.
(b) Absence
of Certain Plans. Neither any Acquired Company nor any of its ERISA Affiliates maintains, sponsors or participates in, or contributes
to or is required to contribute to, (i) a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) (a “Multiemployer
Plan”), (ii) a “multiple employer plan” that is subject to Section 4063 or Section 4064 of
ERISA or Section 413(c) of the Code, (iii) a plan subject to Section 412 of the Code or Section 302 or Title IV
of ERISA or (iv) a “multiple employer welfare arrangement” (as defined in Section 3(4) of ERISA). No liability under
Title IV or Section 302 of ERISA has been incurred by the any Acquired Company or any of its Subsidiaries (including on account
of any ERISA Affiliate) that has not been satisfied in full and, to the Knowledge of the Seller, no condition exists that would reasonably
be expected to result in any Acquired Company or any of its Subsidiaries (including on account of any ERISA Affiliate) incurring any such
liability, other than any liability for premiums due to the Pension Benefit Guaranty Corporation (which premiums have been paid when due).
(c) Employee
Plan Compliance.
(i) Each
Acquired Company Employee Plan has been maintained, in all material respects, in compliance with its terms and all applicable Laws, including
the applicable provisions of ERISA, the Code and any applicable regulatory guidance issued by any Governmental Authority. There are no
Actions pending or threatened or reasonably anticipated (other than routine claims for benefits) against the Seller or any Acquired Company
relating to an Acquired Company Employee Plan. Each Acquired Company Employee Plan can be amended, terminated or otherwise discontinued
after the Closing in accordance with its terms, without liability as a result of such amendment termination or discontinuance to Acquiror,
or any Acquired Company.
(ii) Each
Acquired Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination
letter from the Internal Revenue Service or is the subject of a favorable opinion letter from the Internal Revenue Service on the form
of such Acquired Company Employee Plan and, to the Knowledge of the Seller, there are no facts or circumstances that would be reasonably
likely to adversely affect the determination of the qualified status of any such Acquired Company Employee Plan as set forth in such determination
letter.
(iii) Neither
any Acquired Company nor any of its Subsidiaries have incurred any liability for any Tax or civil penalty imposed under Chapter 43
of the Code or Sections 409 or 502 of ERISA with respect to any Acquired Company Employee Plan that has not been satisfied in full.
There does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability of any Acquired Company
or any of its Subsidiaries (including on account of any ERISA Affiliate) that could be a liability of Acquiror and its Affiliates (including
the Acquired Companies and their Subsidiaries) following the Closing.
(d) No
Prohibited Transactions. With respect to each Acquired Company Employee Plan, (i) none of the Acquired Companies, any of their Subsidiaries,
or, to the Knowledge of the Seller, any of their respective directors, officers, employees or agents has engaged in or been a party to
any non-exempt “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), and (ii) none
of the Acquired Companies or any of their Subsidiaries or, to the Knowledge of the Seller, any other “fiduciary” (as defined
in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with
the administration or investment of the assets of such plan.
(e) No
Post-Employment Obligations. No Acquired Company Employee Plan provides, or has any obligation or liability to provide, post-termination
or retiree or post-employment life insurance, health or other employee welfare benefits to any person for any reason other than required
under Section 601 et seq. of ERISA or Section 4980B of the Code or similar applicable state Law.
(f) Section 409A.
Each Acquired Company Employee Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A
of the Code) has (i) been maintained and operated in compliance with Section 409A of the Code and all applicable Treasury Regulations
promulgated thereunder so as to avoid any Tax, penalty or interest under Section 409A of the Code, and (ii) been in documentary
and operational compliance with Section 409A of the Code and all applicable Internal Revenue Service guidance promulgated thereunder.
(g) Change
of Control. Neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions (either alone
or upon the occurrence of any additional or subsequent events) will (i) result in any payment or benefit (including severance or
bonus) becoming due under any Acquired Company Employee Plan or otherwise to any Employee, (ii) result in any forgiveness of indebtedness
with respect to any Employee, (iii) increase any benefits otherwise payable by the Acquired Companies under any Acquired Company
Employee Plan, (iv) result in the obligation to fund benefits under any Acquired Company Employee Plan, (v) result in the acceleration
of the time of payment or vesting of any benefits provided under any Acquired Company Employee Plan or (vi) result in excess parachute
payments within the meaning of Section 280G(b) of the Code or a loss of deduction under Section 280G of the Code. Neither the
Seller nor the Acquired Companies have any obligation to gross-up, indemnify or otherwise reimburse any Employee or any other Person for
any Taxes, including under Section 409A or 4999 of the Code.
Section 4.14 Employment
Matters.
(a) Employee Census.
Schedule 4.15(a) contains an accurate and complete table of the following information for each current Employee as of the
Agreement Date: (i) anonymized ID, (ii) employing or engaging entity and employing entity following the Reorganization, (iii) date
of commencement of continuous employment or engagement, (iv) job title, (v) status (full-time or part-time), (vi) work
location (city, state), (vii) type of employer sponsored visa, if applicable, (viii) annual base compensation, (ix) any
commission and bonus opportunities (target, maximum and any amounts paid in respect of the current and immediately preceding calendar
years), (x) exempt or non-exempt status, (xi) employment status (whether such person is party to an employment agreement or
is employed “at will”) or independent contractor status, (xii) leave status, including type of leave and expected return
date, (xiii) union status, (xiv) notice period or term of employment or engagement (if applicable), and (xv) accrued but
unpaid vacation or other applicable paid time off balances. Notwithstanding the foregoing, following the Reorganization, certain employees
of TUS will (at least partially) be assigned to, or provide services with respect to, the Solar
Module Manufacturing Facility at Closing.
(b) Notice
of Termination. None of the current Senior Employees have given notice or been given notice of termination regarding their employment
or service relationship with any Acquired Company.
(c) Labor.
No Employees are represented by any labor union, works council, trade union, employee representatives, personnel delegates or similar
labor relations entity, labor organization or group of employees (each, a “Labor
Entity”) and the Acquired Companies are not party to or bound by any labor agreement, collective bargaining agreement
or any other labor-related agreements or arrangements with any Labor Entity (each a “Labor
Agreement”). Since the latter of the respective date of incorporation and eighteen (18) months preceding the Agreement
Date, no Labor Entity has made a pending demand for recognition or certification, and there are no representation or certification proceedings
or petitions seeking a representation proceeding presently pending or threatened to be brought or filed with the National Labor Relations
Board or any other labor relations tribunal or authority. Since the latter of the respective date of incorporation of each Acquired Company
and eighteen (18) months preceding the Agreement Date, there has been no actual, or to the Knowledge of the Seller, threatened, unfair
labor practice charge, material grievance, material arbitration, strike, lockout, slowdown, collective action (of whatever kind) concerted
refusal to work overtime, work stoppage, picketing, handbilling, or other labor dispute against or affecting any Acquired Company. To
the Knowledge of the Seller, there have been no activities or proceedings of any Labor Entity to organize any Employees.
(d) Compliance
with Employment Laws. Each of the Acquired Companies is in compliance in all material respects and since the latter of their respective
date of incorporation, has been in compliance in all material respects, with all Laws respecting employment and employment practices,
including, without limitation, all laws respecting terms and conditions of employment, health and safety, wages and hours, child labor,
immigration, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action,
workers’ compensation, labor relations, employee leave issues and unemployment insurance and any applicable Labor Agreement. All
individuals who are performing, and for the six-year period preceding the Agreement Date have performed, services for the Acquired Companies,
while classified as independent contractors have been properly so classified for all purposes. All Employees classified as “exempt”
under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., and applicable state wage and hour Laws are,
and for the six (6) year period preceding the Agreement Date have been, properly classified as “exempt.” The Acquired Companies
do not use automated employment decision tools (AEDTs) or other artificial intelligence in connection with hiring or promotion decisions.
The Acquired Companies are not delinquent in payments to any Employees for any services or amounts required to be reimbursed or otherwise
paid. No Acquired Company has a single employer, joint employer, alter ego or similar relationship with any other company.
(e) Employment-Related
Actions. There are no Actions by or against any of the Acquired Companies pending, or to the Seller’s Knowledge, threatened
to be brought or filed, by or with any Governmental Authority or arbitral tribunal in connection with the employment or termination of
employment of any Employee or applicant to become an Employee, including, without limitation, any claim relating to unfair labor practices,
employment discrimination, harassment, retaliation, equal pay or any other employment related matter arising under applicable Laws.
(f) Violation
of Restrictive Covenants. No Employee is in any respect in violation of any term of any employment agreement, non-disclosure agreement,
common law non-disclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to
the Acquired Companies or (ii) to a former employer of any such Employee relating (A) to the right of any such Employee to be
employed by the Acquired Companies or (B) to the knowledge or use of trade secrets or proprietary information.
(g) No
Harassment. None of the Acquired Companies is a party to a settlement agreement with a current or former Employee, director or officer
that involves allegations relating to sexual harassment, sexual misconduct or discrimination by either an officer or Employee. In the
last five years, no allegations of sexual harassment, sexual misconduct or discrimination have been made against any officer or Employee,
and to the Knowledge of the Seller, no such harassment, misconduct or discrimination has occurred.
(h) Government
Contractor. The Acquired Companies are not and have not been: (i) a “contractor” or “subcontractor” (as
defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or any other applicable Law requiring affirmative
action or other employment related actions for government contractors or subcontractors, or (iii) otherwise required to maintain
an affirmative action plan.
Section 4.15 Tax Matters.
(a) Tax
Returns and Payments. All income and other material Tax Returns required to be filed by or with respect to any Acquired Company have
been duly and timely filed with the appropriate Taxing Authority (taking into account any valid extensions of time within which to make
such filings). All such Tax Returns are true, correct and complete in all material respects, were prepared in substantial compliance with
all applicable Law and disclose all Taxes required to be paid for the periods covered thereby. Each Acquired Company has duly and timely
paid, or has caused to be duly and timely paid, all Taxes due and owing by it to the appropriate Governmental Authority (whether or not
shown on any Tax Return).
(b) Reserves
for Payment of Taxes. The Acquired Companies Financials reflect, in accordance with GAAP, adequate reserves for all Taxes payable
by or with respect to each Acquired Company for all taxable periods through the date of such financial statements, and since such date,
no Acquired Company has incurred any Liability for Taxes outside the ordinary course of business consistent with past practice.
(c) Statute
of Limitations. There are no outstanding agreements waiving or extending the statutory period of limitations applicable to any claim
for, or the period for the collection or assessment or reassessment of, Taxes of or with respect to any Acquired Company for any taxable
period (except for such agreements for which the applicable statutory period of limitations (after giving effect to any waiver or extension)
has already expired), and no request for any such waiver or extension made by any Governmental Authority is currently pending.
(d) Power
of Attorney. No power of attorney given by, or binding upon, any Acquired Company with respect to any matter relating to Taxes is
currently in force.
(e) Tax
Liens. There are no Liens for Taxes against any of the Acquired Companies’ assets, other than Liens for Taxes not yet due and
payable or that are being contested in good faith by appropriate proceedings.
(f) No
Beneficiary of Tax Return Extension. No Acquired Company is the beneficiary of any outstanding extension of time within which to file
any Tax Return and no request for such extension is currently pending.
(g) Tax
Incentives. No Acquired Company is the beneficiary of any Tax grant, abatement or incentive granted or made available by any Governmental
Authority that will terminate as a result of the consummation of the Contemplated Transactions. No Acquired Company is a party or subject
to any Tax exemption, Tax holiday or other Tax reduction agreement or order that will terminate as a result of the consummation of the
Contemplated Transactions.
(h) Audits.
No audit, examination, dispute, claim, investigation, proposed adjustment or judicial or administrative proceeding with respect to any
Tax Liability or Tax Return of, or with respect to, any Acquired Company is currently pending, contemplated, threatened or ongoing. All
deficiencies for Taxes asserted or assessed against or in respect of Acquired Company have been fully and timely paid or settled.
(i) No
Tax Ruling. No Person has received any Tax ruling, technical advice memoranda or similar agreements or rulings or entered into any
closing agreement (as described in Section 7121 of the Code or any corresponding, analogous or similar provision of state, local
or non-U.S. Law), settlement agreement or pending ruling request, in each case with respect to Taxes of or with respect to any Acquired
Company, and no request for any such ruling, settlement, or agreement is currently pending.
(j) Withholding.
Each Acquired Company has withheld from any payment to its respective employees, independent contractors, creditors, equityholders and
other applicable third parties, and timely remitted to the appropriate Governmental Authority, all amounts with respect to Taxes that
were required to be so withheld and remitted under applicable Tax Laws in all respects in substantial compliance with all Tax withholding
and remitting provisions of applicable Tax Laws.
(k) Tax
Residence. Each Acquired Company has been a resident for Tax purposes solely in the jurisdiction where its registered seat or office
is located. Without limiting the generality of the immediately preceding sentence, no written claim has been made by a Governmental Authority
in a jurisdiction where an Acquired Company does not file a Tax Return that such Acquired Company is or may be subject to taxation by
that jurisdiction. No Acquired Company has a “permanent establishment” (within the meaning of a relevant income Tax treaty)
or otherwise has an office or fixed place of business in a country other than its country of organization.
(l) Classification
of Entities. Each Acquired Company has, at all times since its formation, been properly classified either as a corporation or as an
entity disregarded from its owner for U.S. federal and applicable state and local income Tax purposes.
(m) Tax
Sharing Agreements. No Acquired Company is a party to or bound by or has any obligation under any Tax sharing, Tax indemnity, Tax
allocation or similar agreement or arrangement with any other Person (other than any customary Tax sharing, indemnity or allocation provisions
contained in a commercial agreement that is entered into in the ordinary course of business consistent with past practice, the primary
purpose of which does not relate to Taxes). No Acquired Company (i) is or has ever been a member of an affiliated group of corporations
(as defined in Section 1504(a) of the Code or any similar provision of state, local or non-U.S. Law) filing or included in a consolidated,
combined, joint, unitary or similar Tax Return or (ii) has Liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6
(or any similar provision of state, local or non-U.S. Law), as transferee or successor, by Contract (other than any customary commercial
agreement entered into in the ordinary course of business consistent with past practice, the primary purpose of which does not relate
to Taxes) or otherwise, in each case except for the consolidated group, for U.S. federal income tax purposes, of which TUH is the common
parent.
(n) Change
in Accounting Methods; Closing Agreements. No Person will be required to include or take into account any material item of income
in, or exclude any material item of deduction or loss from, taxable income in respect of any Acquired Company for any taxable period (or
portion thereof) for which Tax Returns have not yet been filed as a result of (i) any change in method of accounting for a taxable
period (or portion thereof) ending on or prior to the Closing Date, (ii) any use of an improper method of accounting for a taxable
period (or portion thereof) ending on or prior to the Closing Date, (iii) any “closing agreement” as described in Section 7121
of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) executed prior to the Closing, (iv) any deferred
intercompany gain or excess loss account, in each case described in Treasury Regulations under Section 1502 of the Code (or any corresponding
or similar provision or administrative rule of federal, state, local or non-U.S. Law) and existing at or prior to the Closing, (v) any
installment sale or open transaction disposition made prior to the Closing, (vi) any prepaid amount or deferred revenue accrued prior
to the Closing or (vii) an election under Section 108(i) of the Code (or any corresponding or similar provision of any state,
local or non-U.S. Tax Law).
(o) Transfer
Pricing. All related-party transactions involving any Acquired Company are at arm’s-length in compliance with Section 482
of the Code, the Treasury Regulations promulgated thereunder and any comparable, analogous or similar provision of state, local or non-U.S.
Law.
(p) Tax
Disclosure. No Acquired Company has participated in, or is currently participating in, or has ever been a party to, or promoter of,
any “listed transaction” as defined in Section 6707A(c)(2) of the Code and Treasury Regulations Section 1.6011-4
(or any comparable, analogous or similar provision of state, local or non-U.S. Tax Law).
(q) Seller
Tax Returns. Seller has delivered or made available to Acquiror copies of (i) the federal and state income Tax Returns and all
non-U.S. income Tax Returns relating to any Acquired Company (and amended Tax Returns, revenue agents’ reports and other notices
from the IRS or other Taxing Authorities) for each of the preceding three (3) taxable years and (ii) all other Tax Returns and other
reports and statements made or received by or on behalf of any Acquired Company that relate to Taxes arising during such periods, including
income tax audit reports, statements of income or gross receipts tax, franchise tax, sales tax and transfer tax received by or on behalf
of any Acquired Company.
(r) Sales,
Use and Payroll Taxes. Each Acquired Company has properly collected all sales, use and payroll Taxes required to be collected by or
with respect to such Acquired Company and remitted all such Taxes to the applicable Taxing Authority, in each case in the time and in
the manner required by applicable Law.
(s) Equity
Interests. No Acquired Company owns an equity interest in another Person (other than another Acquired Company) for Tax purposes.
(t) Target
Shares. The Target Shares represent the only equity interests in the Acquired Companies for Tax purposes.
(u) Distributions
of Stock. No Acquired Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction
that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code.
(v) Section 6417.
Neither the Acquired Companies, Seller nor any Affiliate of Seller has made an elective pay election under Section 6417 of the Code
with respect to any advanced manufacturing production credits under Section 45X of the Code eligible to be claimed with respect to the
Solar Module Manufacturing Facility or the Solar Cell Manufacturing Facility.
(w) Section 6418.
Neither the Acquired Companies, nor Seller nor any Affiliate of Seller has made an election or agreed to make an election under Section 6418(a)
of the Code to transfer any advanced manufacturing production credits under Section 45X of the Code eligible to be claimed with respect
to the Solar Module Manufacturing Facility or the Solar Cell Manufacturing Facility.
Section 4.16 Subsidies
and Grants. The terms and conditions of the public subsidies, grants, or other similar public benefits received by any Acquired
Company have been made available to Acquiror and the terms and conditions thereof have been complied with by the Acquired Companies,
except were such non-compliance would not have a Seller Material Adverse Effect.
Section 4.17 Environmental
Matters. As of the Agreement Date, each Acquired Company has been in material compliance with all applicable Environmental Laws.
No Acquired Company has received any written notices of actual or alleged violation or liability with respect to any applicable Environmental
Law that has not been resolved, including any written notices alleging that an Acquired Company is responsible for the investigation
or cleanup of any third-party site to which such Acquired Company has transported or arranged for the transportation of Hazardous Materials
for treatment or disposal.
Section 4.18 Real Property.
(a) No
Acquired Company (i) owns, or has ever owned, any real property and (ii) has entered into (and is not bound by or required to
enter into) any Contracts to purchase any real property.
(b) Except
as set forth in Section 4.18(b) of the Seller Disclosure Statement, no construction, alteration or other leaseholder improvement
work with respect to the Leased Real Property remains to be paid for, or performed by, any Acquired Company, and no Acquired Company has
entered into any commitments or agreements with respect to the design or construction of any leasehold improvements at any Leased Real
Property or is obligated to reimburse any landlord or other third party for the cost of any such leasehold improvements.
(c) No
Acquired Company has assigned, subleased, licensed or otherwise transferred all or any portion of its interests in any Lease Agreements
or any Leased Real Property. The Acquired Company expect to be able to continue to have the right to occupy the Leased Real Property through
the remainder of the term of the applicable Lease Agreement. The Leased Real Property is in good condition and repair in all material
respects, reasonable wear and tear excepted.
Section 4.19 Property. Each
Acquired Company has good and valid title to, or, in the case of leased or licensed properties and assets, valid leasehold interests
or license rights in, all properties and assets, real, personal and mixed, held by, used by or held for use by any Acquired Company in
their respective businesses, free and clear of any Liens, except (a) as reflected in the Current Balance Sheets, and (b) Permitted
Liens. All such items of property owned, leased, or licensed by any Acquired Company (i) are adequate for the conduct of the business
of the Acquired Companies as currently conducted and as currently contemplated to be conducted, and (ii) in good operating condition,
subject to normal wear and tear, and regularly and properly maintained. Such properties and assets (including any assets owned by the
Acquired Companies at, and as of immediately following the Closing), together with such properties and assets to which the Acquired Companies
have valid leasehold interests or license rights in, constitute all of the assets that are (and for the prior eighteen (18) months have
been) used in or held for use in, the conduct of the business of the Acquired Companies as such business is currently conducted (and
has been conducted for the prior eighteen (18) month period).
Section 4.20 Litigation.
(a) Since
the latter of the respective date of incorporation and January 1, 2021, there have been no Actions, audits, actions, suits,
demand letters, claims, cause of actions, arbitration proceedings or mediation proceedings, or, to the Knowledge of Seller, governmental
or regulatory inquiries or investigations, or administrative proceedings or other similar proceedings against any Acquired Company, any
of its respective properties or tangible assets or any of its officers or directors (in their capacity as such) as a party; provided
that no Action, governmental or regulatory inquiry or investigation, audit, action, suit, demand letter, claim, cause of action, arbitration
proceeding, mediation proceeding, administrative proceeding or similar proceeding (a “matter”)
that occurs for the first time after the Agreement Date shall constitute an “Action” for purposes of this Section 4.20
unless the damages sought or awarded in respect of such matter exceed $25,000,000.
(b) There
is no current, pending, or to the Knowledge of the Seller, threatened, Action of any nature against the Seller, arising out of or relating
to (i) the Seller’s beneficial ownership of the Target Shares, (ii) the Seller’s capacity as a Seller hereunder,
(iii) the Contemplated Transactions or (iv) any contribution of assets (tangible or intangible) by the Seller to any Acquired
Company. There is no current or pending or, to the Knowledge of the Seller, threatened investigation or proceeding, against the Seller
arising out of or relating to the matters noted in clauses (i) through (iv) of the preceding sentence by or before
any Governmental Authority. There is no current or pending or, to the Knowledge of the Seller, threatened Action against the Seller with
respect to which the Seller has a contractual right or a right to indemnification from any Acquired Company related to facts and circumstances
existing prior to the Closing.
(c) No
Governmental Authority has at any time challenged or overtly questioned (in each case in writing) the legal right of any Acquired Company
to conduct their respective operations as presently or previously conducted or as currently contemplated to be conducted. There is no
Action of any nature pending or, to the Seller’s Knowledge, threatened against any Person who has a contractual right or a right
pursuant to Law to indemnification from the Acquired Companies related to facts and circumstances existing prior to the Closing.
(d) There
is no Action by any Acquired Company pending or threatened against any other Person.
Section 4.21 Insurance. Section 4.21 of
the Seller Disclosure Statement lists all insurance policies and fidelity bonds covering the assets, business, equipment, properties,
operations, employees, officers and directors of any Acquired Company, including the type of coverage, the carrier, the amount of coverage,
the term and the annual premiums of such policies. There is no claim by any Acquired Company pending under any of such policies or bonds
as to which coverage has been denied or disputed. In addition, there is no pending claim of which its total value (inclusive of defense
expenses) would reasonably be expected to exceed the policy limits. All premiums due and payable under all such policies and bonds have
been timely paid (or if installment payments are due, will be timely paid if incurred prior to the Agreement Date), and the Acquired
Companies are otherwise in compliance with respect to its obligations under the terms of such policies and bonds. Such policies and bonds
are in full force and effect. To the Knowledge of the Seller, there has been no threatened, termination of, or material premium increase
with respect to, any of such policies. None of the Acquired Companies has ever maintained, established, sponsored, participated in or
contributed to any self-insurance plan.
Section 4.22 Compliance
with Laws and Permits.
(a) Compliance
with Laws. Since the latter of the respective date of incorporation and January 1, 2021, each Acquired Company has been, in all
material respects, in compliance with all applicable Laws to which any Acquired Company, or any of the properties, assets or business
activities of any Acquired Company are subject to or bound. Since the latter of the respective date of incorporation and January 1,
2021, no Acquired Company has received any written (or, to the Knowledge of the Seller, other) notice from a Governmental Authority of
any actual or alleged material non-compliance with any Law (other than with respect to any matter that is the subject of Section 4.20(c)).
(b) Permits.
Each Acquired Company holds all permits, franchises, authorizations, registrations, approvals and licenses of any Governmental Authority
required under applicable Laws for the conducting of its business, or the ownership or operation of assets, by such Acquired Company as
currently conducted (collectively, the “Acquired
Company Authorizations”), the absence of which would have a material impact on any Acquired Company, and no Acquired
Company is in default under any of the same. The Acquired Company Authorizations are in full force and effect. Since the latter of the
respective date of incorporation and January 1, 2021, each Acquired Company has been and is in compliance in all material respects
with the terms and conditions of the Acquired Company Authorizations. Since the latter of the respective date of incorporation and January 1,
2021, no Acquired Company has received any written (or, to the Knowledge of the Seller, other) notice of any breach, violation, or default
under or with respect to any Acquired Company Authorization. The Seller has made available to Acquiror true, correct and complete copies
of all the material Acquired Company Authorizations.
Section 4.23 Anti-Bribery
and Corruption, Customs & Trade Laws, Sanctions and Compliance.
(a) Sanctions
and Customs & Trade Laws. Since the latter of the respective date of incorporation and April 24, 2019: (i) no Acquired
Company, Seller Group Company, and none of their respective directors, officers, nor, to the Knowledge of the Seller, its employees or
agents, has violated any applicable Customs & Trade Laws or Sanctions; and (ii) no Acquired Company or Seller Group Company has
conducted, directly or indirectly, any business with, in, or involving any Sanctioned Jurisdiction, Sanctioned Person or Restricted Person.
No Acquired Company, Seller Group Company, nor any of their respective shareholders (direct or indirect), directors, officers, employees
or agents is a Sanctioned Person or a Restricted Person. Each Acquired Company and Seller Group Company has in place written policies,
controls, and systems reasonably designed to ensure compliance with all applicable Customs & Trade Laws and Sanctions. No Acquired
Company or Seller Group Company has (i) made any voluntary, directed or involuntary disclosure to any Governmental Authority with
respect to any actual, alleged or reasonably suspected violation of any Customs & Trade Laws or Sanctions, (ii) been the target
of a past, current, pending or threatened investigation, or enforcement proceeding by a Governmental Authority for any actual or alleged
violation of Customs & Trade Laws or Sanctions, or (iii) received any written or other notice concerning any actual or alleged
violation of any Customs & Trade Laws or Sanctions.
(b) Import
and Export Licenses. Since the latter of the respective date of incorporation and April 24, 2019, each Acquired Company and Seller
Group Company has obtained all required import and export licenses and all other necessary consents, notices, waivers, approvals, orders,
authorizations, and declarations, and completed all necessary registrations and filings, required under applicable Customs & Trade
Laws and Sanctions.
(c) Anti-Corruption
Laws. Since the latter of the respective date of incorporation and January 1, 2019, no Acquired Company, no Seller Group Company,
and none of their respective officers or directors, (or to the Knowledge of the Seller, the Acquired Companies’ or Seller Group
Company’ respective employees or agents) is in violation of any applicable Anti-Corruption Law or has directly or knowingly indirectly,
made, offered, promised, authorized, accepted or agreed to receive, any unlawful payment, gift, bribe or kickback: (i) to or for
the benefit of any person for the purposes of influencing any official act or decision; (ii) to secure any improper advantage; or
(iii) to induce any person to do or omit to do any act in violation of the lawful duty of such person. Each Acquired Company and
Seller Group Company has established and maintains a compliance program and adequate internal controls and procedures reasonably designed
to ensure that each Acquired Company, Seller Group Company and their respective Affiliates and Representatives (to the extent acting on
their behalf) do not violate any Anti-Corruption Laws. No Acquired Company, no Seller Group Company, and none of their officers or directors
or employees has (i) made any voluntary, directed or involuntary disclosure to any Governmental Authority with respect to any actual,
alleged or reasonably suspected violation of any Anti-Corruption Laws, (ii) been the target of a past, current, pending or threatened
whistleblower report, or investigation, or enforcement proceeding by a Governmental Authority for any actual or alleged violation of Anti-Corruption
Laws, or (iii) received any written or, to the Knowledge of the Seller, other notice concerning any actual or alleged violation of
any Anti-Corruption Laws. No Employee of, or holder of a financial interest in, any Acquired Company, their respective Affiliates, is
currently a Governmental Official.
(d) Anti-Money
Laundering Laws. Since the latter of the respective date of incorporation and January 1, 2019, no Acquired Company, no Seller
Group Company, and none of their respective directors, officers, employees or agents, has violated any applicable Anti-Money Laundering
Laws. Each Acquired Company and Seller Group Company has in place written policies, controls, and systems designed to ensure compliance
with all applicable Anti-Money Laundering Laws. No Acquired Company nor Seller Group Company has (i) made any voluntary, directed
or involuntary disclosure to any Governmental Authority with respect to any actual, alleged or reasonably suspected violation of any Anti-Money
Laundering Laws, (ii) been the target of a past, current, pending or threatened investigation or enforcement proceeding by a Governmental
Authority for any actual or alleged violation of Anti-Money Laundering Laws, or (iii) received any written or, to the Knowledge of
the Seller, other notice concerning any actual or alleged violation of any Anti-Money Laundering Laws.
Section 4.24 Directors
and Managing Directors.
(a) Section 4.24(a)
lists the members of the boards of directors of the Acquired Companies, none of which are employees of an Acquired Company.
(b) No
Acquired Company is a party to any agreement, obligation or commitment with respect to the election or appointment of any individual or
individuals as a managing director or a member of the board of directors of any Acquired Company and there is no voting agreement or other
arrangement among the shareholders of any Acquired Company.
(c) There
are no agreements, commitments and undertakings with respect to any compensation to be provided by any Acquired Company to any of the
Acquired Companies’ directors.
Section 4.25 Top Suppliers. Section 4.25 of
the Seller Disclosure Statement contains a true, correct and complete list, as of the Agreement Date, of the suppliers or vendors of
the Acquired Companies, whether of products, services or information technology or otherwise, for the calendar year 2023 and the nine
(9) month period ended September 30, 2024, with a spend in excess of $50,000,000 during each such period (or the equivalent amount
in local currency at the applicable exchange rate as of the Agreement Date), or such supplier is otherwise strategically important to
any Acquired Company (each such Person, a “Top
Supplier”). No Acquired Company has received written notice, nor do the Seller has Knowledge or reason to believe, that
any Top Supplier (i) intends to or in fact did cancel, terminate or otherwise materially and adversely modify its relationship with
any Acquired Company (whether related to payment, price or otherwise) for any reason, or (ii) is threatened with bankruptcy or insolvency
or is, or is reasonably likely to become unable to supply or support products or services to or for any Acquired Company in quantities
and manner consistent with past practice.
Section 4.26 Related Party
Claims. There are no Acquiror Claims that any Acquired Company has, or may now or hereafter have, including Acquiror Claims
arising under applicable Law, other than arising under this Agreement, any Related Agreement, when entered or any Disclosed Related Party
Agreement or in connection with the Contemplated Transaction (and such matters shall not constitute Acquired Claims).
Section 4.27 Complete
Copies of Materials. The Seller has made available to Acquiror true, correct and complete copies of each Contract, document,
or other information expressly required by a representation in this Article IV to be set forth or referenced in the
Seller Disclosure Statement.
Section 4.28 Brokers. Except
pursuant to the Contracts set forth on Section 4.28 of the Seller Disclosure Statement, no agent, broker, investment banker,
person or firm acting in a similar capacity on behalf of or under the authority of any Acquired Company is or will be entitled to any
broker’s, finder’s fee or any other commission or similar fee, directly or indirectly payable by any Acquired Company, directly
or indirectly, in connection with any of the Contemplated Transactions.
Section 4.29 Investment
Representation. The Seller is an “accredited investor” as defined in Regulation D promulgated under the Securities
Act. The Seller acknowledges that it is informed as to the risks of the ownership of the shares of Acquiror Common Stock and has such
knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of such ownership, and
is able to bear the economic risk of such ownership for an indefinite period of time. The Seller has been furnished access to such information
and documents as it has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of
Acquiror concerning the issuance of the shares of Acquiror Common Stock constituting the Share Consideration and when issued, the Conversion
Shares.
Section 4.30 Restricted
Securities. The Seller understands that neither the issuance of the shares of Acquiror Common Stock in connection with the Purchase
or Conversions nor the transfer of such shares to the Seller has been registered under the Securities Act, by reason of a specific exemption
from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of the Seller’s representations as expressed herein. The Seller understands that the shares of Acquiror
Common Stock are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Seller must hold the Acquiror Common Stock indefinitely unless and until they are registered with the SEC and qualified by
state authorities, or an exemption from such registration and qualification requirements is available. The Seller acknowledges that if
an exemption from registration or qualification is available, it may be conditioned on various requirements including the time and manner
of sale, the holding period for the Acquiror Common Stock, and on requirements relating to Acquiror which are outside of the Seller’s
control, which Acquiror is under no obligation, and may not be able, to satisfy.
Section 4.31 Resale of
Shares.
(a) The
Seller understands and agrees that it may not sell or otherwise transfer any shares of Acquiror Common Stock, except pursuant to an effective
registration under the Securities Act, or in a transaction which qualifies as an exempt transaction under the Securities Act and the rules
and regulations promulgated thereunder and in accordance with the restrictions set forth in this Agreement and the Cooperation Agreement.
(b) The
Seller acknowledges that each certificate or instrument evidencing the shares of Acquiror Common Stock constituting the Share Consideration
or Conversion Shares shall initially bear substantially the following restrictive legend, either as an endorsement, on the face thereof
or a comparable notation or other arrangement with respect to any uncertificated shares:
“THE SECURITIES REPRESENTED BY
THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION
AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH
ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS OR PURSUANT TO A VALID EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT
ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A TRANSACTION AGREEMENT, DATED AS OF NOVEMBER 6, 2024, BY AND AMONG FREYR BATTERY,
INC. AND CERTAIN OTHER PARTIES THERETO (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF FREYR BATTERY, INC.) AND THE COOPERATION AGREEMENT
BY AND AMONG FREYR BATTERY, INC. AND CERTAIN OTHER PARTIES THERETO, DATED AS OF THE CLOSING DATE (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF FREYR BATTERY, INC.).”
Section 4.32 Adequate
Information. The Seller has received, has had an opportunity to review and has reviewed, a copy of this Agreement and the documents
contemplated hereby and such other documents and information as it has deemed appropriate to make its own analysis and decision to enter
into this Agreement and to sell the Target Shares owned by the Seller to Acquiror on the basis of such analysis. The Seller has such
knowledge and experience in business and financial matters to enable the Seller to understand and evaluate this Agreement and form an
investment decision with respect thereto. The Seller understands and acknowledges that Acquiror is entering into this Agreement in reliance
upon the Seller’s execution and delivery of this Agreement and agreement to be bound hereby, including with respect to the Seller’s
indemnification obligations hereunder.
Section 4.33 No Other
Representations or Warranties.
(a) Except
for the representations and warranties made by the Seller in this Article IV (as qualified by the applicable items disclosed
in the Seller Disclosure Statement) (together, the “Seller
Representations”), neither the Seller nor any other Person makes or has made to Acquiror or any of its Affiliates any
representation or warranty, expressed or implied, at law or in equity, with respect to or on behalf of any Acquired Company, or their
respective businesses, operations, assets, liabilities, financial condition, results of operations, future operating or financial results,
estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections,
forecasts, plans or prospects) or the accuracy or completeness of any information regarding any Acquired Company or any other matter furnished
or provided to Acquiror or any of its Affiliates or Representatives or otherwise made available to Acquiror in any “data rooms,”
“virtual data rooms,” management presentations or in any other form in expectation of, or in connection with, this Agreement,
the Purchase or any other Contemplated Transactions. The Seller disclaims any other representations or warranties, whether made by any
of them or any of its Affiliates (including any Acquired Company) or their respective Representatives.
(b) The
Seller acknowledges and agrees that, except for the representations and warranties made by Acquiror in Article V, neither
Acquiror nor any other Person is making or has made any representations or warranty, expressed or implied, at law or in equity, with respect
to or on behalf of Acquiror or any of its Subsidiaries or Affiliates, or their respective businesses, operations, assets, liabilities,
financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects
(including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy
or completeness of any information regarding Acquiror or its Subsidiaries or Affiliates or any other matter furnished or provided or otherwise
made available to the Seller, or any of their respective Affiliates or Representatives, in any “data rooms,” “virtual
data rooms,” management presentations or in any other form in expectation of, or in connection with, this Agreement, or the Contemplated
Transactions. The Seller specifically disclaims that it is relying upon or has relied upon any such other representations or warranties
that may have been made by any Person and acknowledges and agrees that Acquiror and its Affiliates have specifically disclaimed and do
hereby specifically disclaim any such other representations and warranties.
ARTICLE
V
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
Subject to such exceptions
(a) as are specifically set forth in the appropriate section, subsection or subclause of the disclosure schedule delivered by Acquiror
to the Seller on the Agreement Date (the “Acquiror
Disclosure Statement”) (it being understood and hereby agreed that (i) the information set forth in the Acquiror
Disclosure Statement shall be disclosed under separate section, subsection, and subclause references that correspond to the sections,
subsections, and subclauses of this Article V to which such information relates, and (ii) the information set forth in
each section, subsection, and subclause of the Acquiror Disclosure Statement shall qualify (A) the representations and warranties
set forth in the corresponding section, subsection, and subclause of this Article V, and (B) any other representations
and warranties set forth in this Article V if, and solely to the extent that, it is reasonably apparent on the face of such
disclosure, without reference to the underlying documents referenced therein and without independent knowledge of the matters described
therein, that it applies to such other section, subsection or subclause of this Article V), and (b) as disclosed in the
reports, statements and other documents, including any publicly filed schedules or exhibits thereto, filed by Acquiror with the SEC or
furnished by Acquiror to the SEC, in each case pursuant to the Exchange Act on or after January 1, 2022, and at least two (2) Business
Days prior to the Agreement Date (to the extent that the relevance of any such disclosure with respect to any section of this Agreement
is reasonably apparent on its face) (other than any disclosures contained or referenced therein under the captions “Risk Factors”
and “Quantitative and Qualitative Disclosures About Market Risk”, disclosure set forth in any “forward-looking statements”
disclaimer or any similar precautionary sections and any other disclosures contained or referenced therein that are predictive, cautionary
or forward-looking in nature or any non-public material), Acquiror hereby represents and warrants to the Seller, as of the Agreement Date
and as of the Closing Date as follows:
Section 5.1 Organization
and Good Standing. Acquiror and each Subsidiary of Acquiror is a corporation or other legal entity duly organized, validly existing
and, where relevant, in good standing under the Laws of the jurisdiction of its organization and Acquiror and each Subsidiary of Acquiror
has all requisite corporate or other organizational power and authority to carry on its businesses as now being conducted and is qualified
to do business and is, where relevant, in good standing as a foreign corporation or other legal entity in each jurisdiction where the
conduct of its business requires such qualification, in each case except as would not reasonably be expected to have, individually or
in the aggregate, an Acquiror Material Adverse Effect.
Section 5.2 Power and
Authorization; Enforceable Agreement.
(a) Acquiror has all requisite
corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and to consummate the Purchase
or any other Contemplated Transactions and Acquiror’s obligations hereunder (including the payment of the Share Consideration)
and thereunder, except, with respect to the Second Conversion, which is subject to Acquiror receiving the Requisite
Stockholder Approval at the Acquiror Stockholder Meeting. The execution and delivery by Acquiror of this Agreement and any Related
Agreements to which it is a party and the consummation of the Purchase and Acquiror’s obligations hereunder and thereunder have
been duly authorized by all necessary corporate or similar organizational and other action on the part of Acquiror.
(b) This
Agreement and any Related Agreements to which Acquiror is a party have been (or in the case of Related Agreements to be entered into at
or prior to the Closing Date, will be) duly executed and delivered by Acquiror and constitute the valid and binding obligations of Acquiror,
enforceable against Acquiror in accordance with their terms, subject to Laws of general application relating to bankruptcy, insolvency,
moratorium, the relief of debtors and enforcement of creditors’ rights in general.
Section 5.3 Governmental
Approvals. No consent, notice, waiver, approval, Order or authorization of, or registration, declaration or filing with, any
Governmental Authority, is required by, or with respect to, Acquiror in connection with the execution and delivery of this Agreement
and any Related Agreement or the consummation of the Contemplated Transactions (including the payment of the Share Consideration) and
thereby, except for the Conversion Conditions.
Section 5.4 Conflicts. The
execution and delivery by Acquiror of this Agreement and any Related Agreement to which Acquiror is a party (or will be), and the consummation
of the Contemplated Transactions, will not (a) result in the creation or imposition of any Lien (other than Permitted Liens) upon
the assets of Acquiror and (b) result in or give rise to any Conflict in (i) any provision of the Organizational Documents
of Acquiror, as amended, (ii) any Material Contract (as defined for purposes of this representation in Regulation S-K under
the Securities Act), or (iii) any Law or Order applicable to Acquiror or any of its properties or assets (whether tangible or intangible),
except, in each of clauses (a) and (b), as would not be expected to have an Acquiror Material Adverse Effect.
Section 5.5 Acquiror
Capital Structure.
(a) The
only authorized shares of capital stock of Acquiror as of June 30, 2024, are (a) 355,000,000 shares of Acquiror Common Stock, (b) 140,500,000
shares of which are issued and outstanding as of August 2, 2024, and (c) 10,000,000 shares of preferred stock, of which none are
issued and outstanding.
(b) Schedule
5.5(b) of Acquiror Disclosure Statement sets forth a true and complete list, as of the date hereof, of all of the issued and
outstanding warrants of Acquiror entitling the corresponding holders to purchase certain amount of shares of Common Stock of Acquiror
as detailed on Schedule 5.5(b) of Acquiror Disclosure Statement.
Section 5.6 Valid
Issuance. The Acquiror Common Stock issued as Share Consideration or Conversion Shares, are or will be duly authorized,
validly issued, fully paid and non-assessable, and are free of all Liens and restrictions on transfer, other than restrictions on
transfer under (a) this Agreement, the Related Agreements, Acquiror’s certificate of incorporation, as may be amended, or
amended and restated, from time to time in accordance with this Agreement, and any applicable Contract entered into by Acquiror and
(b) applicable securities Laws.
Section 5.7 SEC Filings;
Financial Statements.
(c) Since
January 21, 2022, Acquiror has filed or otherwise furnished on a timely basis all registration statements, prospectuses, forms, reports,
proxy statements, schedules, statements and documents required to be filed or furnished by it under the Exchange
Act, as the case may be, together with all certifications required pursuant to the Sarbanes-Oxley Act of 2002 (the “Acquiror
SEC Documents”). As of their respective filing dates, the Acquiror SEC Documents did not 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 therein,
in light of the circumstances under which they were made, not misleading, and complied as to form with the applicable requirements of
the Exchange Act or the Securities Act, as the case may be, and the applicable regulations of the SEC thereunder and the listing and corporate
governance rules and regulations of the NYSE.
(d) The
audited financial statements of Acquiror included in the Acquiror SEC Documents fairly present in all material respects the financial
position and results of operations of Acquiror as of the dates and for the periods referred to therein in accordance with GAAP applied
on a consistent basis during the periods involved.
Section 5.8 Absence of
changes. Since September 30, 2024, and prior to the Agreement Date, (a) the operations of Acquiror have been conducted
in the ordinary course of business, and (b) no Acquiror Material Adverse Effect has occurred.
Section 5.9 Sufficiency
of Funds. Acquiror has access to (directly or through one or more Affiliates) funds immediately available, as and when needed,
that are necessary to (a) consummate the Purchase, (b) consummate the Conversions, (c) otherwise perform its obligations
under this Agreement and (d) pay any fees, expenses or other amounts payable by Acquiror in connection with the consummation of
such transactions and the other Contemplated Transactions.
Section 5.10 Solvency. That
Acquiror’s economic situation is solvent and that the execution of this Agreement and Related Agreement and the payment of the
Purchase Price obligations included herein or in any of the other Related Agreements is not likely to and will not result in Acquiror
becoming insolvent.
Section 5.11 Intellectual
Property. Except as would not have an Acquiror Material Adverse Effect:
(a) Acquiror
owns or have a valid right to use the material Intellectual Property used in its business as currently conducted free and clear of all
Liens other than Permitted Liens; provided that the foregoing is not a representation or warranty with respect to infringement,
misappropriation or other violations of Intellectual Property.
(b) (i) Since
June 14, 2022, to Acquiror’s Knowledge, no Person has infringed, misappropriated, or otherwise violated any Intellectual Property
used by Acquiror in the conduct of its business, and no such Actions have been asserted or threatened against any Person (including in
the form of offers or invitations to obtain a license) by Acquiror and its Affiliates and (ii) to Acquiror’s Knowledge, the
conduct of Acquiror’s business as currently conducted has not since June 14, 2022, infringed, misappropriated, or otherwise
violated any Intellectual Property of any other Person and no such Actions have been pending or threatened in writing since June 14, 2022,
against Acquiror or any of its Affiliates.
(c) Acquiror
and its Affiliates have taken reasonable steps to protect material trade secrets that are owned by Acquiror and its Affiliates.
Section 5.12 Material
Contracts.
(a) List
of Material Contracts. Section 5.12(a) of the Acquiror Disclosure Statement contains a true, correct and complete list
of all the Acquiror Material Contracts. Acquiror has made available to Seller, or publicly filed with the SEC, a true, correct and complete
copy of each Acquiror Material Contract as in effect as of the Agreement Date required to be scheduled in Section 5.12(a)
of the Acquiror Disclosure Statement.
(b) Validity.
Each Acquiror Material Contract (other than any Acquiror Material Contract that has expired in accordance with its terms) is binding on
Acquiror or each Subsidiary of Acquiror that is a party thereto and is in full force and effect, and none of Acquiror, any of its Subsidiaries
party thereto or, to the Knowledge of Acquiror, any other party thereto is in breach of or default pursuant to any such Acquiror Material
Contract, except for such failures to be in full force and effect as have not had, and would not reasonably be expected to have, an Acquiror
Material Adverse Effect. Acquiror and each of its Subsidiaries, and, to the Knowledge of Acquiror, any other party thereto, has performed
all obligations required to be performed by it under each Acquiror Material Contract, except where the failure to fully perform has not
had, and would not reasonably be expected to have, an Acquiror Material Adverse Effect. No event has occurred that, with notice or lapse
of time or both, would constitute such a breach or default pursuant to any Acquiror Material Contract by Acquiror or any of its Subsidiaries,
or, to the Knowledge of Acquiror, any other party thereto, and neither Acquiror nor any of its Subsidiaries has received written notice
of the foregoing in each case that has not been cured or from the counterparty to any Acquiror Material Contract (or, to the Knowledge
of Acquiror, any of such counterparty’s Affiliates) regarding an intent to terminate any Acquiror Material Contract (whether as
a result of a change of control or otherwise), in each case, except for such breaches, defaults or terminations that have not had, and
would not reasonably be expected to have, an Acquiror Material Adverse Effect.
Section 5.13 Tax Matters. Except
as would not reasonably be expected to have an Acquiror Material Adverse Effect:
(a) Tax
Returns and Payments. All income and other material Tax Returns required to be filed by Acquiror have been duly and timely filed with
the appropriate Taxing Authority (taking into account any valid extensions of time within which to make such filings). All such Tax Returns
are true, correct and complete in all material respects, were prepared in substantial compliance with all applicable Law and disclose
all Taxes required to be paid for the periods covered thereby. Acquiror has duly and timely paid, or has caused to be duly and timely
paid, all Taxes due and owing by it to the appropriate Governmental Authority (whether or not shown on any Tax Return).
(b) Reserves
for Payment of Taxes. Acquiror’s most recent financial statements included in the Acquiror SEC Documents reflect, in accordance
with GAAP, an adequate reserve for all Taxes payable by Acquiror for all taxable periods through the date of such financial statements,
and since such date, Acquiror has not incurred any Liability for Taxes outside the ordinary course of business consistent with past practice.
(c) Audits;
Claims. Except as disclosed in Section 5.13 of the Acquiror Disclosure Statement, no audit, examination, dispute, claim, investigation,
proposed adjustment or judicial or administrative proceeding with respect to any Tax Liability or Tax Return of Acquiror is currently
pending, and to Acquiror’s knowledge, is contemplated, threatened or ongoing. All deficiencies for Taxes asserted or assessed against
Acquiror have been fully and timely paid or settled.
(d) Withholding.
Acquiror has withheld from any payment to its respective employees, independent contractors, creditors, equityholders and other applicable
third parties, and timely remitted to the appropriate Governmental Authority, all amounts with respect to Taxes that were required to
be so withheld and remitted under applicable Tax Laws in all respects in substantial compliance with all Tax withholding and remitting
provisions of applicable Tax Laws.
Section 5.14 Environmental
Matters. As of the Agreement Date, Acquiror has been in material compliance with all applicable Environmental Laws. Acquiror
has not received any written notices of actual or alleged violation or liability with respect to any applicable Environmental Law that
has not been resolved, including any written notices alleging that Acquiror is responsible for the investigation or cleanup of any third-party
site to which Acquiror has transported or arranged for the transportation of Hazardous Materials for treatment or disposal.
Section 5.15 Litigation.
(a) Since January 1, 2021,
to the Knowledge of Acquiror, there have been no material Actions
against Acquiror, any of its respective properties or tangible assets or any of its officers or directors (in their capacity as
such) as a party. There is no material outstanding Order, judgment, ruling, arbitral award, or other decision (including provisional
remedies and injunctions) that specifically relates to and binds Acquiror, any of its respective properties or tangible assets or any
of its officers or directors (in their capacity as such).
(b) There
is no current, pending, or to the Knowledge of Acquiror, threatened, Action of any nature against Acquiror, arising out of or relating
to (i) Acquiror’s capacity as an Acquiror hereunder, or (ii) the Contemplated Transactions. There is no current or pending
or, to the Knowledge of Acquiror, threatened investigation or proceeding, against Acquiror arising out of or relating to the matters noted
in clauses (i) through (ii) of the preceding sentence by or before any Governmental Authority.
(c) No
Governmental Authority has at any time challenged or overtly questioned (in each case in writing) the legal right of Acquiror to conduct
its respective operations as presently or previously conducted or as currently contemplated to be conducted. There is no Action of any
nature pending or, to Acquiror’ Knowledge, threatened against any Person who has a contractual right or a right pursuant to Law
to indemnification from Acquiror related to facts and circumstances existing prior to the Closing.
Section 5.16 Insurance. Section 5.16
of the Acquiror Disclosure Statement lists all insurance policies and fidelity bonds covering the assets, business, equipment, properties,
operations, employees, officers and directors of Acquiror and its Subsidiaries, including the type of coverage, the carrier, the amount
of coverage, the term and the annual premiums of such policies. There is no claim by Acquiror or any of its Subsidiaries pending under
any of such policies or bonds as to which coverage has been denied or disputed. In addition, there is no pending claim of which its total
value (inclusive of defense expenses) would reasonably be expected to exceed the policy limits. All premiums due and payable under all
such policies and bonds have been timely paid (or if installment payments are due, will be timely paid if incurred prior to the Agreement
Date), and Acquiror and its Subsidiaries are otherwise in compliance with respect to its obligations under the terms of such policies
and bonds. Such policies and bonds are in full force and effect. To the Knowledge of Acquiror, there has been no threatened, termination
of, or material premium increase with respect to, any of such policies. Acquiror has not ever maintained, established, sponsored, participated
in or contributed to any self-insurance plan.
Section 5.17 Compliance
with Laws and Permits.
(a) Compliance
with Laws. Since January 1, 2021, Acquiror has been, in all material respects, in compliance with all applicable Laws to which
Acquiror, or any of its properties, assets or business activities are subject to or bound. Since January 1, 2021, Acquiror has not
received any written notice from a Governmental Authority of any actual or alleged material non-compliance with any Law (other than with
respect to any matter that is the subject of Section 5.15(c)).
(b) Permits.
Acquiror holds all permits, franchises, authorizations, registrations, approvals and licenses of any Governmental Authority required under
applicable Laws for the conducting of its business, or the ownership or operation of assets, by Acquiror as currently conducted (collectively,
the “Acquiror Authorizations”),
the absence of which would have a material impact on Acquiror, and it is not in default under any of the same. The Acquiror Authorizations
are in full force and effect. Since January 1, 2021, Acquiror has been and is in compliance in all material respects with the terms
and conditions of the Acquiror Authorizations. Since January 1, 2021, Acquiror has not received any written notice of any breach,
violation, or default under or with respect to any Acquiror Authorization. Acquiror has made available to the Seller true, correct and
complete copies of all the material Acquiror Authorizations.
Section 5.18 Anti-Bribery
and Corruption, Sanctions and Compliance.
(a) Sanctions
and Trade Laws. Neither Acquiror, nor any of its directors, officers, employees or agents is a Sanctioned Person or a Restricted Person.
(b) Anti-Corruption
Laws. Since the latter of the date of incorporation and January 1, 2019, Acquiror, its respective officers or directors, (or to the
Knowledge of Acquiror, Acquiror’s employees or agents) are not in violation of any applicable Anti-Corruption Law or has directly
or knowingly indirectly, made, offered, promised, authorized, accepted or agreed to receive, any unlawful payment, gift, bribe or kickback:
(i) to or for the benefit of any person for the purposes of influencing any official act or decision; (ii) to secure any improper
advantage; or (iii) to induce any person to do or omit to do any act in violation of the lawful duty of such person; and (iv) in
relation to clauses (ii) through (iii) above, with the intention of winning or retaining business or a business advantage
for any person, including Acquiror or any of their Affiliates. Acquiror has established and maintains a compliance program and adequate
internal controls and procedures reasonably designed to ensure that Acquiror and its respective Affiliates and Representatives (to the
extent acting on their behalf) do not violate any Anti-Corruption Laws. Acquiror, its officers or directors or employees have (i) made
any voluntary, directed or involuntary disclosure to any Governmental Authority with respect to any actual, alleged or reasonably suspected
violation of any Anti-Corruption Laws, (ii) been the target of a past, current, pending or threatened whistleblower report, or investigation,
or enforcement proceeding by a Governmental Authority for any actual or alleged violation of Anti-Corruption Laws, or (iii) received
any written or, to the Knowledge of Acquiror, other notice concerning any actual or alleged violation of any Anti-Corruption Laws. No
Employee of, or holder of a financial interest in, Acquiror, or any of their respective Affiliates, is currently a Governmental Official.
(c) TID
Status. Acquiror represents that it has conducted an assessment and has determined that it is not a “TID U.S. business”,
as defined pursuant to 31 CFR § 800.248.
Section 5.19 No Acquiror
Vote. No vote or consent of the holders of any capital stock of, or other equity or voting interest in, Acquiror is necessary
to approve this Agreement or the Purchase.
Section 5.20 Brokers. Except
pursuant to the Contracts set forth on Section 5.20 of the Acquiror Disclosure Statement, no agent, broker, investment banker,
person or firm acting in a similar capacity on behalf of or under the authority of Acquiror is or will be entitled to any broker’s,
finder’s fee or any other commission or similar fee, directly or indirectly payable by Acquiror, directly or indirectly, in connection
with any of the Contemplated Transactions.
Section 5.21 Adequate
Information. Acquiror has received, has had an opportunity to review and has reviewed, a copy of this Agreement and the documents
contemplated hereby and such other documents and information as it has deemed appropriate to make its own analysis and decision to enter
into this Agreement and to acquire the Target Shares on the basis of such analysis. Acquiror has such knowledge and experience in business
and financial matters to enable Acquiror to understand and evaluate this Agreement and form an investment decision with respect thereto.
Acquiror understands and acknowledges that the Seller is entering into this Agreement in reliance upon Acquiror’s execution and
delivery of this Agreement and agreement to be bound hereby.
Section 5.22 No Other
Representations or Warranties.
(a) Except
for the representations and warranties made by Acquiror in this Article V (as qualified by the applicable items disclosed
in the Acquiror Disclosure Statement) (together, the “Acquiror
Representations”), neither Acquiror nor any other Person makes or has made to the Seller or any of its Affiliates any
representation or warranty, expressed or implied, at law or in equity, with respect to or on behalf of Acquiror or any of its Affiliates,
or their respective businesses, operations, assets, liabilities, financial condition, results of operations, future operating or financial
results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates,
projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding Acquiror or any of its Affiliates
or any other matter furnished or provided to the Seller or any of its Affiliates or Representatives or otherwise made available in any
“data rooms,” “virtual data rooms,” management presentations or in any other form in expectation of, or in connection
with, this Agreement, the Contemplated Transactions. Acquiror disclaims any other representations or warranties, whether made by it or
any of its Affiliates or their respective Representatives.
(b) Acquiror
acknowledges and agrees that, except for the representations and warranties made by the Seller in Article IV, neither the
Seller nor any other Person is making or has made any representations or warranty, expressed or implied, at law or in equity, with respect
to or on behalf of any Acquired Company, or their respective businesses, operations, assets, liabilities, financial condition, results
of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness
of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information
regarding any Acquired Company or any other matter furnished or provided or otherwise made available to Acquiror or any of its Affiliates
or their respective Representatives, in any “data rooms,” “virtual data rooms,” management presentations or in
any other form in expectation of, or in connection with, this Agreement, the Contemplated Transactions. Acquiror specifically disclaims
that it is relying upon or has relied upon any such other representations or warranties that may have been made by any Person and acknowledges
and agrees that the Seller has specifically disclaimed and do hereby specifically disclaim any such other representations and warranties.
ARTICLE
VI
PRE-CLOSING COVENANTS
Section 6.1 Commercially
Reasonable Efforts; Consents. Subject to the terms and conditions of this Agreement, from the date of this Agreement until the
earlier to occur of the Closing and the earlier termination of this Agreement pursuant to Section 9.1 (the “Pre-Closing
Period”), each of the Parties hereto shall use commercially reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate and make effective the
Purchase as promptly as practicable, including by using commercially reasonable efforts to (i) take all action necessary to satisfy
all of the conditions to the obligations of the other Party to effect the Purchase, and (ii) subject to the below provisions of
this Section 6.1, effect all necessary registrations and filings and remove any injunctions or other impediments or delays,
legal or otherwise, in each case in order to consummate and make effective the Purchase for the purpose of securing to the Parties the
benefits contemplated by this Agreement.
Section 6.2 Third-Party
Contract Notices, Consents. The Seller shall, and shall cause each Acquired Company to, send all notices and use reasonable
best efforts to obtain all consents, waivers and approvals of any third party as may be required pursuant to the terms of any Contract
set forth on Section 4.4 of the Sellers Disclosure Statement, and the Seller shall, and shall cause each Acquired Company
to, use reasonable best efforts to obtain any other consents, waivers and approvals of any third-party that may be required in connection
with the Purchase or the Related Agreements. No party shall be required to compensate any third party, commence or participate in any
Action or offer or grant any accommodations (financial or otherwise) to any third party to obtain any consent, waiver or approval with
respect to the Contracts set forth on Section 4.4 of the Seller Disclosure Statement pursuant to the first sentence of this
Section 6.2, except as required pursuant to the terms of the applicable Contract under which such consent, waiver or approval
is sought. Such notices, consents, modifications, waivers and approvals shall be in form and substance acceptable to Acquiror (acting
reasonably). In the event the Purchase or any other Contemplated Transaction hereby is not consummated for any reason, none of Acquiror,
or any of its Affiliates shall have any liability to the Seller, any Acquired Company or any other Person for any Liabilities resulting
from the Seller or any Acquired Company sending any such notice or seeking to obtain any such consents, modifications, waivers and approvals.
The Parties shall use reasonable best efforts to minimize any costs and expenses borne by any Party or the Acquired Companies in connection
with obtaining such consents.
Section 6.3 Restrictions
on Acquired Companies Activities.
(a) Conduct of the Acquired
Companies’ Businesses Generally. During the Pre-Closing Period, without the prior written consent of Acquiror, which shall not
be unreasonably withheld, conditioned or delayed, the Seller shall use its reasonable best efforts to conduct (and shall cause its Subsidiaries
to conduct) the business of the Acquired Companies in the ordinary course of business consistent with past practice and use commercially
reasonable efforts to (w) preserve intact the present business organizations of the Acquired Companies, (x) keep available
the services of the present Employees, other than with respect to the Worker Transfer, (y) preserve the assets (including intangible
assets) and properties of the Acquired Companies (other than with respect to the Excluded Companies) and (z) preserve the relationships
of the Acquired Companies with customers, suppliers, licensors, licensees, and others having business dealings with them, all with the
goal of preserving unimpaired the goodwill and ongoing businesses of the Acquired Companies at the Closing.
(b) Specific
Prohibitions. Without limiting the generality or effect of, during the Pre-Closing Period, except (i) to the extent described
on Schedule 6.3, (ii) as necessary to consummate the Reorganization, (iii) as otherwise contemplated by this Agreement,
(iv) in connection with the Worker Transfer; (v) as expressly required by any applicable Law or applicable Order or (vi) as
consented to or approved by Acquiror in writing, which consent or approval shall not be unreasonably withheld, conditioned or delayed,
the Seller shall not (and shall cause its Subsidiaries not to) take any of the following actions:
(i) amend
its organizational documents, effect any split, combination, reclassification or similar action with respect to its capital stock or other
Equity Interests or adopt or carry out any recapitalization, merger, plan of complete or partial liquidation or dissolution;
(ii) propose
or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization
of any Acquired Company;
(iii) declare,
set aside, make or pay any dividends or other distributions (whether in cash, stock or property) in respect of any shares of any Acquired
Company;
(iv) split,
combine or reclassify any Target Shares or any other Equity Interest of any Acquired Company or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for the Target Shares or any other Equity Interest of any Acquired Company,
or directly or indirectly repurchase, redeem or otherwise acquire any Target Shares or any other Equity Interest of any Acquired Company
(or options, warrants or other rights convertible into, exercisable or exchangeable for Target Shares or any other Equity Interest of
any Acquired Company);
(v) issue,
grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any Target
Shares or equity-based awards (whether payable in cash, securities or otherwise) or any other Equity Interest of any Acquired Company
or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other
Contracts or commitments of any character obligating any of them to issue or purchase any such shares or other convertible securities,
or amend, accelerate the vesting of, adjust or modify any Target Shares;
(vi) with
respect to any Acquired Company, form, or enter into any commitment to form, a subsidiary, or acquire, or enter into any commitment to
acquire, an interest in any corporation, association, joint venture, partnership or other business entity or division thereof or any portion
of the assets of the foregoing;
(vii) make
or agree to make any capital expenditure or commitment (i) from any Acquired Company exceeding $10,000,000 individually or $25,000,000
in the aggregate or (ii) that relates to the development of the solar cell facilities by any Acquired Company exceeding $1,000,000;
(viii) with
respect to any Acquired Company, acquire or agree to acquire or dispose or agree to dispose of (i) assets of any person, other than
acquisitions of assets in the ordinary course of business or the disposal of non-material assets of any Acquired Company in the ordinary
course of business, or (ii) any Equity Interest in any Person (including any Acquired Company) or any business or operations of any
Person;
(ix) sell,
divest, exclusively license or assign to any Person or enter into any Contract to sell, divest, exclusively license or assign to any Person
any rights in, to or under any Acquired Company IP;
(x) abandon
or allow to lapse or expire any Acquired Company IP, or fail to renew or make any filing or payment necessary in connection with the prosecution
or maintenance of any material Acquired Company Registered IP;
(xi) with
respect to any Acquired Company, (1) incur any Indebtedness in excess of $10,000,000 (or the equivalent amount in local currency
at the applicable exchange rate as of the Agreement Date), including by the issuance or sale of any debt securities, (2) create or
permit any Lien (other than Permitted Liens) over any material intangible or other asset of any Acquired Company or (3) amend the
terms of any outstanding loan agreement or other Contract evidencing Indebtedness;
(xii) with
respect to any Acquired Company, make any loan to any Person other than in the ordinary course of business, purchase debt securities of
any Person or guarantee any Indebtedness of any Person;
(xiii) commence
or settle any Action or threat of any Action by or against any Acquired Company or relating to any of their businesses, properties or
assets;
(xiv) with
respect to any Acquired Company, pay, discharge, release, waive or satisfy any claims, rights or liabilities, other than the payment,
discharge or satisfaction in the ordinary course of business consistent with past practice of liabilities reflected on the Current Balance
Sheets or incurred in the ordinary course of business after the Balance Sheet Date;
(xv) with
respect to any Acquired Company, adopt or change accounting methods or practices (including any change in depreciation or amortization
policies or rates or any change to practices that would impact the methodology for recognizing revenue) other than as required by GAAP;
(xvi) with
respect to any Acquired Company, make, revoke or change any material election in respect of Taxes, adopt or change any taxable period
or method of accounting in respect of Taxes, enter into any Contract in respect of Taxes, file any Tax Return in a manner that is inconsistent
with past custom and practice, surrender any right to a tax refund or credit, settle or compromise any claim, audit, litigation or assessment
in respect of Taxes, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes,
make or request any Tax ruling, enter into any Tax sharing or similar Contract or arrangement (other than customary commercial Contracts
entered into in the ordinary course of business the primary purpose of which is unrelated to Tax), enter into any transactions giving
rise to deferred gain or loss, or amend any Tax Return;
(xvii) with
respect to any Acquired Company, fail to maintain insurance at less than current levels or otherwise in a manner inconsistent with past
practice;
(xviii) except
as expressly required pursuant to the terms of any Labor Agreement, Acquired Company Employee Plan or employment Contract in effect as
of the date hereof and disclosed in the Seller Disclosure Statement, (1) adopt, enter into or amend any Labor Agreement, Acquired
Company Employee Plan or employment Contract, (2) increase or agree to increase the salaries, bonuses, wage rates, or other compensation
or benefits of their respective Employees or consultants (other than in the ordinary course of business consistent with past practice
with respect to any active employee who is not a Senior Employee), (3) grant, pay or promise any bonus or other incentive compensation,
severance, retention, change in control or other similar arrangement or (4) accelerate any rights, funding or benefits under any Acquired
Company Employee Plan or employment Contract or accelerate the time of vesting or payment of any award under any Acquired Company Employee
Plan or employment Contract;
(xix) with
respect to any Acquired Company, violate any Customs & Trade Laws, Sanctions, or Anti-Money Laundering Laws, Anti-Corruption Laws
or conduct., directly or indirectly, any business with, in, or involving any Sanctioned Jurisdiction, Sanctioned Person or Restricted
Person;
(xx) (1) hire
or engage any Senior Employee or (2) demote or terminate (other than for cause) or otherwise materially modify the terms and conditions
of employment of any current Senior Employee;
(xxi) (1) modify,
renew, extend, or enter into any Labor Agreement, or (2) recognize or certify any Labor Entity as the bargaining representative for
any Employee;
(xxii) waive,
release, amend or fail to enforce the restrictive covenant obligations of any current or former Employee, independent contractor, officer
or director of the Acquired Companies;
(xxiii) materially
amend or modify, or remove, any privacy policies applicable to the Acquired Companies’ business, and other applicable policies relating
to the collection, storage, transfer, disclosure, processing, protection and use of Personal Information, publish any new policies relating
to such matters or announce any such amendment, or modification, removal, or publication, except to the extent reasonably required to
comply with Privacy Laws or other applicable Laws;
(xxiv) (1) terminate,
or materially amend, extend, waive, violate or modify, any Material Contract, or (2) enter into any Contract which would have constituted
a Material Contract had such Contract been entered into prior to the Agreement Date (other than Contracts that are entered into with customers
in the ordinary course of business consistent with past practice);
(xxv) enter
into any new line of business or change any of the Acquired Companies’ operating policies in any material respect (including, without
limitation, any of the Acquired Companies’ provisioning policies), except as required by applicable Law or by policies imposed by
any Governmental Authority;
(xxvi) make
any material change or otherwise cancel, revoke or replace any of the Acquired Companies’ risk management policies and operational
strategy;
(xxvii) enter
into any Contract to purchase or sell any interest in real property, or grant any security interest in any real property or enter into
any Leased Real Property agreement;
(xxviii) (1) other
than in the ordinary course of business, intentionally defer payment of any accounts payable, commissions, or other liabilities of any
Acquired Company, (2) provide for a material reduction in fees or other amounts due to any Acquired Company after the Closing, or
(3) give any material discount, credits, accommodation or other concession (other than in the Ordinary Course of Business), or otherwise
purposefully take action that would reasonably be expected to accelerate or induce the collection of any receivable or otherwise increase
the cash or cash equivalents or other current assets of any Acquired Company; or
(xxix) take,
commit, or agree in writing or otherwise take or make any of the actions described in subclauses (i) through (xxviii)
of this Section 6.3(b).
Section 6.4 Restrictions
on Acquiror. During the Pre-Closing Period, except (i) to the extent described on Schedule 6.4, (ii) as
otherwise contemplated by this Agreement, (iii) as expressly required by any applicable Law or applicable Order or (iv) as
consented to or approved by the Seller in writing, which consent or approval shall not be unreasonably withheld, conditioned or delayed,
Acquiror shall not (and shall cause its Subsidiaries not to) take any of the following actions:
(a) amend
Acquiror’s Organizational Documents, effect any split, combination, reclassification or similar action with respect to its capital
stock or other Equity Interests or adopt or carry out any recapitalization, merger, plan of complete or partial liquidation or dissolution;
(b) form,
or enter into any commitment to acquire, or enter into any commitment to acquire, an interest in any corporation, association, joint venture,
partnership or other business entity or division thereof or any portion of the assets of the foregoing, other than transaction solely
between Acquiror and its wholly owned Subsidiaries or between the Acquiror’s wholly owned Subsidiaries;
(c) change
Acquiror’s authorized or issued Acquiror Common Stock, or issue (A) any Equity Interests of Acquiror or (B) any options,
warrants, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of Common
Stock, agreements, arrangements or commitments obligating Acquiror to issue, deliver or sell any Equity Interests of Acquiror or authorize
the issuance of any shares of Acquiror Common Stock or any other Equity Interest of Acquiror, in each case, other than (1) with respect
to equity or equity-based awards that are granted to service providers of Acquiror in the ordinary course of business consistent with
past practice or (2) in connection with the settlement, withholding or forfeiture of any equity or equity-based awards granted by
Acquiror;
(d) (1) incur
any Indebtedness in excess of $10,000,000 (or the equivalent amount in local currency at the applicable exchange rate as of the Agreement
Date), including by the issuance or sale of any debt securities, (2) create or permit any Lien (other than Permitted Liens) over
any material intangible or other asset of any Acquired Company or (3) amend the terms of any outstanding loan agreement or other
Contract evidencing Indebtedness;
(e) propose
or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization
of Acquiror;
(f) declare,
set aside, make or pay any dividends or other distributions (whether in cash, stock or property) in respect of any shares of Acquiror
Common Stock or any other Equity Interest of Acquiror;
(g) split,
combine or reclassify any shares of Acquiror Common Stock or any other Equity Interest of Acquiror or issue or authorize the issuance
of any other securities in respect of, in lieu of or in substitution for any shares of Acquiror Common Stock or any other Equity Interest
of Acquiror, or directly or indirectly repurchase, redeem or otherwise acquire any such shares or any other Equity Interest of Acquiror
(or options, warrants or other rights convertible into, exercisable or exchangeable for any shares of Acquiror Common Stock or any other
Equity Interest of Acquiror); and
(h) acquire
or agree to acquire or dispose or agree to dispose of (i) assets of any person, other than the acquisitions in the ordinary course
of business or disposal of non-material assets of Acquiror in the ordinary course of business, or (ii) any Equity Interest in any
Person or any business or operations of any Person; and
(i) agree
to take, commit, or agree in writing or otherwise take or make any of the actions described in paragraphs (a) through (h)
of this Section 6.4.
Section 6.5 Access to
Premises and Information. Due Diligence.
(a) During
the Pre-Closing Period, each Party and its Affiliates shall permit the other Party and its Affiliates and their respective Representatives,
at such other Party’s expense, to have reasonable access (at reasonable times and upon reasonable notice) to Representatives of
the first Party and its Affiliates and to premises, properties, books, records (including Tax records) and any Contracts of such first
Party and its Subsidiaries and, during such period, shall furnish promptly such information concerning the businesses, properties and
personnel of such first Party and its Subsidiaries as the other Party shall reasonably request; provided that, no Party shall be
required to provide access to or to disclose information where such access or disclosure (a) would reasonably be expected to jeopardize
any attorney-client communications or attorney work product, or (b) relates to information or materials required to be kept confidential
by applicable Law; provided, however, that the first Party will notify the second Party in reasonable detail of the circumstances
giving rise to any non-disclosure pursuant to the foregoing and to permit disclosure of such information, to the extent possible, in a
manner consistent with privilege or applicable Law. The information provided pursuant to this Section 6.5 shall be used solely
for the purpose of the Contemplated Transactions (including any financing to be implemented in connection with or prior to Closing), and
such information shall be kept confidential by each party and its Affiliates in accordance with the terms and conditions of the Confidentiality
Agreement.
(b) The
Parties agree that for two (2) weeks following the Agreement Date, the Parties shall continue to conduct due diligence, in good faith.
Each Party shall promptly provide all due diligence material reasonably requested by the other Party or its Representatives. To the extent
either Party identifies a potential Material DD Item, it shall promptly (and within two (2) Business Days of identifying such potential
Material DD Item), notify the other Party in writing of such item, including providing as much supporting documentation as is available
to such Party. The Parties shall discuss any Material DD Item in good faith for ten (10) days (the “DD
Discussion Period”). If following the DD Discussion Period, the Party that identified the potential Material DD Item
establishes with supporting documentation, it has identified a Material DD Item, the Party that identifies the Material DD Item shall
be entitled to terminate this Agreement in accordance with Section 9.1(f),
Section 6.6 Seller Reorganization.
(a) The
Seller shall (i) use reasonable best efforts to consummate the Reorganization as soon as possible after the date hereof and in any event
prior to the Closing and (ii) keep Acquiror reasonably updated on any steps in connection with the Reorganization. With respect to any
step in the Reorganization that requires any third-party approval or consents, including approvals or consents from employees or Orders,
the Seller shall cause its Affiliates and Representatives to use reasonable best efforts to obtain such approval or consent or to otherwise
comply with such Order. Acquiror shall, upon the request of the Seller, use reasonable best efforts to assist in the Reorganization, provided
that Acquirer shall not be required to pay any costs or expenses with respect to the Reorganization.
(b) The
Seller shall give Acquiror a reasonable opportunity to review and comment on the drafts of the definitive documentation governing the
Reorganization and shall consider in good faith Acquiror’s comments. Acquiror and the Seller shall discuss in good faith any of
Acquiror’s comments, which the Seller determines not to include in such documentation.
(c) All
costs and expenses, including Taxes, related to the Reorganization shall be borne by the Seller. The Seller shall draft the documentation
for the Reorganization in good faith to avoid any adverse consequences to either Party or the Acquired Companies.
Section 6.7 Preferred
Stock Purchase Agreement.
(a) Seller
Cooperation. The Seller shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to provide, at the expense
of Acquiror, all cooperation reasonably requested by Acquiror in connection with the satisfaction of any of the settlement conditions
under the Preferred Stock Purchase Agreement; provided that such requested cooperation does not unreasonably interfere with the
ongoing operations of any Acquired Company.
(b) Acquiror
Efforts. Acquiror shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to cause the satisfaction
of all of the settlement conditions under the Preferred Stock Purchase Agreement in order to issue and deliver the preferred stock thereunder
and obtain the payment and disbursement for such securities on or before the Closing Date.
Section 6.8 24M Isolation. Before
the Closing Date, Acquiror shall take such actions to ensure that it has (i) isolated and segregated from of any of the Seller,
its Affiliates or its Representatives, including any directors nominated by Seller under the Cooperation Agreement, (ii) deleted
or destroyed, to the extent it is able to, or (iii) terminated, disposed, divested, transferred or otherwise sold, in each case
(i), (ii) and (iii), all 24M Assets ((i) to (iii) collectively, the “24M
Isolation”).
Section 6.9 Related Agreements. As
soon as possible after the Agreement Date and prior to Closing, the Parties shall negotiate in good faith each of the following agreements,
in each case substantially on the terms set out in the Solar Module Term Sheets, as applicable:
(a) Solar
Cells Supply Agreement;
(b) Polysilicon
Supply Agreement;
(c) Module
Operational Support Agreement;
(d) IP
License Agreement;
(e) Trademark
License Agreement;
(f) Sales
Agency Agreement; and
(g) TUS
Offtake Agreement.
Section 6.10 Executives. As
soon as possible after the Agreement Date and prior to Closing, the Parties shall, and shall cause their respective employees to, negotiate
in good faith and agree reasonable employment or consultancy terms for the Deputy Chief Financial Officer, Chief Operating Officer and
Chief Strategy Officer, each of Acquiror. The employment terms for each such position shall be generally consistent with the terms offered
to Acquiror executives prior to the date hereof, provided that the Chief Strategy Officer shall be an independent contractor of Acquiror.
Section 6.11 Notification. Between
the date of this Agreement and the Closing Date, (i) the Seller shall notify Acquiror in writing promptly after the Seller obtains
actual Knowledge of any action or omission that would reasonably be expected to make the satisfaction of one or more of the conditions
set forth in Section 8.1 impossible and (ii) Acquiror shall notify the Seller in writing promptly after Acquiror obtains actual
Knowledge of any action or omission that would reasonably be expected to make the satisfaction of one or more of the conditions set forth
in Section 8.1 impossible; provided, however, that the delivery of any notice pursuant to this Section 6.11 shall
be informational only and will not limit or otherwise affect the remedies available hereunder to the Party receiving such notice, or
the representations or warranties of, or the conditions to the obligations of, the Parties.
Section 6.12 No Leakage. From
the Agreement Date to the Closing Date, neither the Seller shall not and shall cause its Affiliates, including the Acquired Companies,
not permit any Leakage to occur.
Section 6.13 NYSE Approval. Acquiror
shall use its commercially reasonable best efforts to obtain the NYSE Approval for the listing of the Share Consideration and the Conversion
Shares.
ARTICLE
VII
Additional POST-CLOSING Covenants
Section 7.1 Best Efforts;
Governmental Approvals. Following Closing, each of the Parties shall use their respective reasonable best efforts (and shall
cause their respective Affiliates to, if applicable) (a) to take (or cause to be taken) all actions; (b) do (or cause to be
done) all things; and (c) assist and cooperate with the other Parties in doing (or causing to be done) all things, in each case
as are necessary, proper or advisable pursuant to applicable Law or otherwise to consummate and make effective, as promptly as practicable,
the Conversions, including by causing the Conversion Conditions to be satisfied in accordance with Section 7.2, Section 7.3
and Section 7.4 of this Agreement.
Section 7.2 CFIUS Condition.
(a) Filing.
Each of the Parties hereto (and their respective Affiliates, if applicable) shall promptly file the draft CFIUS Notice. Each of the Parties
hereto shall (i) cooperate and coordinate (and shall cause their respective Affiliates to cooperate and coordinate) with the other
in the making of such filings or submissions; (ii) supply the other (or cause the other to be supplied) with any information that
may be required in order to make such filings or submissions; (iii) supply (or cause to be supplied) any additional information that
may be required or requested in connection with making such filings or submissions and obtaining the CFIUS Approval; and (iv) use
(and cause their respective Affiliates to use) reasonable best efforts to take all actions required, proper or advisable to obtain the
CFIUS Approval; provided that nothing in this Section 7.2 shall require the Parties hereto to accept any Burdensome
Condition to obtain the CFIUS Approval. Without limiting the foregoing, each of Acquiror (and its respective Affiliates, if applicable),
on the one hand, and the Seller (and their Affiliates, if applicable), on the other hand, shall promptly inform the other of any communication
from CFIUS regarding the Conversions in connection with the CFIUS Notice. Without limitation to Section 7.2(b), if any Party
or Affiliate thereof receives any comments or a request for additional information or documentary material from CFIUS with respect to
the Conversions, then such Party shall make (or cause to be made), as promptly as practicable and after consultation with the other Parties,
an appropriate response to such request. If CFIUS suggests or requests that, or Acquiror and the Seller mutually determine it to be appropriate
that, the Parties withdraw and resubmit the CFIUS Notice, the Parties may, as many times as they agree to be necessary to obtain the CFIUS
Approval, request to withdraw the CFIUS Notice and, if such withdrawal is effected, re-file an application with CFIUS, and each Party
shall cooperate in such request and refiling.
(b) Cooperation.
In furtherance and not in limitation of the foregoing, the Seller and Acquiror shall (and shall cause their respective Subsidiaries to),
subject to any restrictions under applicable Laws, (i) promptly notify the other Parties of, and, if in writing, furnish the others
with copies of (or, in the case of oral communications, advise the others of the contents of) any material communication received by such
Person from CFIUS in connection with the Conversions and permit the other Parties to review and discuss in advance (and to consider in
good faith any comments made by the other Parties in relation to) any proposed draft notifications, formal notifications, filing, submission
or other written communication (and any analyses, memoranda, white papers, presentations, correspondence or other documents submitted
therewith) made in connection with the Conversions to CFIUS; (ii) keep the other Parties reasonably informed with respect to the
status of any such submissions and filings to CFIUS in connection with the Conversions and any developments, meetings or discussions with
CFIUS in respect thereof, including with respect to (A) the receipt of any non-action, action, clearance, consent, approval or waiver,
and (B) the nature and status of any objections raised or proposed or threatened to be raised by CFIUS with respect to the Conversions;
and (iii) not participate in any meeting, hearing, proceeding or substantive discussions (whether in person, by telephone or otherwise)
with or before CFIUS in respect of the Conversions without giving the other Parties reasonable prior notice of such meeting, hearing,
proceeding or discussion and, unless prohibited by CFIUS, the opportunity to attend or participate. However, the Seller and Acquiror may
designate any non-public or competitively sensitive information (including trade secrets) provided to CFIUS as restricted to “outside
counsel only” and any such information shall not be shared with employees, officers or directors or their equivalents of Acquiror
without approval of the Seller if the Seller is providing the non-public or competitively sensitive information, or of the Seller if Acquiror
is providing such information; provided that each of the Seller and Acquiror may redact any valuation and related information before
sharing any information provided to CFIUS with another Party on an “outside counsel only” basis, and that the Seller and Acquiror
shall not in any event be required to share information that is entitled to legal privilege with the other Parties, even on an “outside
counsel” only basis, where this would reasonably be expected to cause such information to cease to be entitled to legal privilege.
Section 7.3 Proxy Statement.
(a) Filing
of Preliminary Proxy Statement. As promptly as practicable following Closing, Acquiror shall, with the assistance of the Seller, pursuant
to Rule 14a-6 of the Securities Act, prepare and cause to be filed with the SEC a preliminary proxy statement (such preliminary proxy
statement and any amendments or supplement thereto, the “Preliminary
Proxy Statement”) relating to the approval by Acquiror Stockholders of the Second Conversion.
(b) Proxy
Statement. As promptly as practical following confirmation by the SEC of having cleared and concluded their assessment of the Preliminary
Proxy Statement, Acquiror (with the assistance and cooperation of the Seller as reasonably requested by Acquiror) shall prepare, mail
to the Acquiror Stockholders and file with the SEC a definitive proxy statement (as amended or supplemented, the “Definitive
Proxy Statement”) relating to the approval by Acquiror Stockholders of the Second Conversion.
(c) Efforts.
The Parties shall use their reasonable best efforts to cause the Preliminary Proxy Statement and the Definitive Proxy Statement for which
they are responsible to comply as to form in all material respects with the applicable requirements of the Securities Act, Exchange Act,
the applicable rules of the SEC and NYSE. The Parties may not file or furnish the Preliminary Proxy Statement or the Definitive Proxy
Statement or any other required filing with the SEC (“Other
Required Filing”) without providing the other Parties and their counsel a reasonable opportunity to review and comment
on such document and will give due consideration to all reasonable additions, deletions or changes suggested thereto by such other Parties
and their counsel.
(d) Furnishing
Information.
(i) The Seller agrees to
use reasonable best efforts to, assist Acquiror, with the preparation of, true, correct and complete copies of (A) (x) audited financial
statements (audited to Public Company Accounting Oversight Board (PCAOB) standards), including consolidated balance sheets, statements
of operations, statements of income and cash flows, and statements of stockholders equity of each of the Acquired Companies as of and
for the years ended December 31, 2022 and December 31, 2023 (the latter period if and when required in accordance with Rule 14a-6 of
the Securities Act, which is applicable to the Preliminary Proxy Statement and the Definitive Proxy Statement, or as required pursuant
to Form 8-K as approved by the SEC) together with an unqualified audit report thereon from each Acquired Company’s independent
public accountants, in each case, prepared in accordance with GAAP (collectively, the “PCAOB
Audited Financials”) and (y) any unaudited pro forma financial statements required by Regulation S-X under the Securities
Act (as interpreted by the staff of the SEC) to be included in the Preliminary Proxy Statement and the Definitive Proxy Statement (the
“Pro Forma Financials” and, together
with the PCAOB Audited Financials, the “Required
Financials”) and (B) make any necessary amendments, restatements or revisions to the Required Financials such that
they remain compliant with the applicable rules and regulations of the SEC governing the Preliminary Proxy Statement and the Definitive
Proxy Statement, as required in order to consummate the Second Conversion; or the requirements under Form 8-K in relation to the SEC
disclosure requirement under Item 2.01 thereunder (such item titled “Completion
of Acquisition or Disposition of Assets”).
(ii) Each
of the Seller, on the one hand, and Acquiror, on the other hand, shall furnish all information concerning it, each Acquired Company and
its Affiliates, if applicable, as the other Party or Parties (as applicable) may reasonably request in connection with the preparation
and filing with the SEC of the Preliminary Proxy Statement and the Definitive Proxy Statement. If at any time prior to the date of the
Acquiror Stockholder Meeting any information relating to the Acquired Companies, Acquiror, the Seller or any of their respective Affiliates
should be discovered by the Seller, on the one hand, or Acquiror, on the other hand, that should be set forth in an amendment or supplement
to the Preliminary Proxy Statement, the Definitive Proxy Statement or any Other Required Filing, as the case may be, so that such filing
would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not misleading, then the Party that discovers such
information shall promptly notify the other, and an appropriate amendment or supplement to such filing describing such information shall
be promptly prepared and filed with the SEC by the appropriate Party and, to the extent required by applicable law or the SEC or its staff,
disseminated to Acquiror Stockholders.
(iii) Each
of the Seller and Acquiror shall use reasonable best efforts to ensure that the information supplied (or to be supplied) by, or on behalf
of, such Person to be included in the Preliminary Proxy Statement, Definitive Proxy Statement or any Other Required Filing will not, at
the time the Preliminary Proxy Statement, Definitive Proxy Statement or such Other Required Filing and any amendment thereof or supplement
thereto are filed with the SEC, at the time the Definitive Proxy Statement is first disseminated to the Acquiror Stockholders and at the
time of the Acquiror Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading,
except that no representation or warranty is made by the Seller, the Acquired Companies, or Acquiror with respect to statements made therein
based on information supplied by the other of the Seller, the Acquired Companies or Acquiror for inclusion or incorporation by reference
therein. Notwithstanding anything in this Agreement to the contrary, Acquiror shall with the assistance of the Seller, be responsible
for the preparation of pro forma financial statements required to be included in the Preliminary Proxy Statement and Definitive Proxy
Statement, if any. The Seller and Acquiror shall cooperate with each other and use their respective reasonable best efforts (x) to have
the Preliminary Proxy Statement cleared by the SEC as promptly as practicable after its filing; and (y) keep the Definitive Proxy Statement
updated for so long as necessary prior to the Acquiror Stockholder Meeting.
(e) Consultation
Prior to Certain Communications. The Seller and its respective Representatives, on the one hand, and Acquiror, and its respective
Representatives, on the other hand, shall not communicate in writing with the SEC or its staff with respect to the Preliminary Proxy Statement
or any Other Required Filing without first providing the other Parties a reasonable opportunity to review and comment on such written
communication, and each Party shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the
other Parties or their respective counsel. None of the Seller, Acquiror or any of their respective Representatives shall agree to participate
in any material or substantive meeting or conference (including by telephone) with the SEC, or any member of the staff thereof, in respect
of the Preliminary Proxy Statement, Definitive Proxy Statement or any Other Required Filing unless it consults with the other Parties
in advance and, to the extent permitted by the SEC, allows the other Parties to participate.
(f) Notices.
The Seller, on the one hand, and Acquiror, on the other hand, shall advise the other, promptly after it receives notice thereof, of any
receipt of a request by the SEC or its staff for (i) any amendment or revisions to the Preliminary Proxy Statement or any Other Required
Filing with the SEC, as the case may be; (ii) any receipt of comments from the SEC or its staff on the Preliminary Proxy Statement
or any Other Required Filing, as the case may be; or (iii) any receipt of a request by the SEC or its staff for additional information
in connection therewith. Acquiror and the Seller shall respond as to any comments received from the SEC or its staff on the Preliminary
Proxy Statement or any Other Required Filing as promptly as practicable after its receipt thereof. Acquiror shall advise the Seller, promptly
after receipt of notice thereof, of the time of the Preliminary Proxy Statement being cleared by the SEC.
(g) Other
actions. The Seller and Acquiror shall use its reasonable best efforts to take any other action required to be taken by it under the
Securities Act, the Exchange Act, the rules and policies of the NYSE and the General Corporation Law of the State of Delaware, as applicable.
Section 7.4 Acquiror Stockholders
Meeting.
(a) Call
of Acquiror Stockholder Meeting. Acquiror shall establish a record date for, duly call, give notice of, convene and hold a meeting
of its stockholders as promptly as practicable following the Closing Date for the purpose of obtaining the adoption of the Second Conversion
by the affirmative vote (in person or by proxy) of the holders of a majority of the outstanding shares of Acquiror Common Stock (the “Requisite
Stockholder Approval”) present at the meeting of stockholders of Acquiror (the “Acquiror
Stockholders Meeting”). In furtherance of the foregoing, Acquiror shall conduct in a timely manner a “broker search”
in accordance with Rule 14a-13 of the Exchange Act. Acquiror shall use its reasonable best efforts to solicit proxies to obtain the Requisite
Stockholder Approval pursuant to Section 7.3. Acquiror shall permit the Seller and its Representatives to attend the Acquiror
Stockholder Meeting.
(b) Adjournment
of Acquiror Stockholder Meeting. Notwithstanding anything to the contrary in this Agreement, nothing will prevent Acquiror from postponing
or adjourning the Acquiror Stockholder Meeting (i) to allow additional solicitation of votes in order to obtain the Requisite Stockholder
Approval; (ii) if there are holders of an insufficient number of shares of the Acquiror Common Stock present or represented by proxy
at the Acquiror Stockholder Meeting to constitute a quorum at the Acquiror Stockholder Meeting; or (iii) if the board of directors
of Acquiror (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that Acquiror is (A) required
to postpone or adjourn the Acquiror Stockholder Meeting by applicable Law or a request from the SEC or its staff or (B) reasonably
likely to be required under applicable Law to postpone or adjourn the Acquiror Stockholder Meeting in order to give the Acquiror Stockholders
sufficient time to evaluate any information or disclosure that Acquiror has sent to the Acquiror Stockholders or otherwise made available
to Acquiror Stockholders; provided, however, that, subject to the fiduciary duties of the board of directors of Acquiror, in no
event shall the Acquiror Stockholder Meeting be postponed or adjourned more than twice or for more than twenty (20) Business Days in the
aggregate without the prior written consent of the Seller (not to be unreasonably withheld, conditioned or delayed).
Section 7.5 Europe Business
Divestiture. Following Closing, Acquiror shall use its reasonable efforts (and shall cause its respective Affiliates to use
their reasonable efforts, if applicable), to dispose, divest, transfer or otherwise sell all of the assets and operations constituting
Acquiror’s European business (the “Europe
Divestiture”), within six (6) months following the Closing Date, as may be extended by the Seller (the “Divestment
Date”), provided that, unless waived by the Seller in writing, if the European Divestiture is not completed by the Divestment
Date the Acquire shall pay a fee of $2,000,000 to the Seller for each calendar month between the Divestment Date and the date of completion
of the European Divestment. If the total consideration received by Acquiror in connection with the Europe Divestiture, including as a
result of any adjustments to the purchase price or payment of any deferred consideration in connection with the Europe Divestiture (such
total amount, the “European Divestiture Consideration”)
is less than 90% of the European Divestiture Target Amount, then Acquiror shall, no later than twenty (20) Business Days the after receiving
European Divestiture Consideration, cause to be paid to Acquiror or its designee an amount equal to nineteen and nine tenth percent (19.9%)
of the difference between the European Divestiture Target Amount minus the European Divestment Consideration and by bank wire
transfer to the Seller’s Account.
Section 7.6 Wrong Pockets.
(a) If,
within twelve (12) months following the Closing, any person discovers any right, title or interest in any asset or any Liability (a “Wrong
Pocket Asset” and a “Wrong Pocket
Liability,” respectively) that as of the Closing Date related to (i) the business of the Acquired Companies, but
was not transferred or assumed by Acquiror or any Acquired Company at Closing or (ii) the business of the Seller and its Affiliates
other than the business of the Acquired Companies, but was transferred to Acquiror or an Acquired Company at Closing, in each case except
as a result of a transaction occurring after the Closing consented to by the Parties, then:
(i) the
Parties shall cause any of their respective Affiliates holding such right, title or interest in a Wrong Pocket Asset (the “Wrong
Pocket”) to transfer such Wrong Pocket Asset to the appropriate Person (the “Right
Pocket”) as promptly as reasonably practicable for no additional consideration;
(ii) the
Parties shall cause such Wrong Pocket to hold its right, title and interest in and to the Wrong Pocket Asset for the benefit of the Right
Pocket until such time as the transfer is completed; and
(iii) the
Parties shall cause the Right Pocket to assume any Wrong Pocket Liability from the relevant Wrong Pocket as promptly as reasonably practicable
for no additional consideration.
(b) All
costs and expenses arising out of compliance with such transfers shall be allocated to the Parties as though such transfers had been completed
as of the Closing in accordance with this Agreement.
(c) The
Parties shall cause the Right Pocket to cooperate with the Wrong Pocket in connection with the transfers contemplated by this Section 7.6.
Section 7.7 Tax Matters.
(a) Tax
Returns.
(i) The
Seller has prepared, or has caused to be prepared, and timely filed, or shall prepare, or cause to be prepared, and timely file, all Tax
Returns of the Acquired Companies required to be filed under Law on or prior to the Closing Date. The Tax Returns described in this Section
7.7(a)(i) were or will be prepared on a basis consistent with those prepared for prior taxable periods unless otherwise required by
Law. The Seller shall provide Acquiror with a copy of each such Tax Return for its review and comment no less than thirty (30) days prior
to the due date (taking into account valid extensions thereto) for such Tax Return, the Seller shall incorporate Acquiror’s reasonable
written comments on such income Tax Returns, and the Seller shall timely file or cause to be filed the foregoing. In the event that the
Parties are unable to resolve any dispute with respect to any Tax Return the preparation of which is governed by this Section 7.7(a)(i),
such dispute shall be resolved by a Designated Accounting Firm in accordance with Section 7.7(a)(iii).
(ii) Acquiror
will prepare, or cause to be prepared, all Tax Returns of the Acquired Companies required to be filed under Law following the Closing
Date. All such Tax Returns that are attributable or include a portion of a Pre-Closing Tax Period shall be prepared on a basis consistent
with those prepared for prior taxable periods unless otherwise required by Law. Acquiror shall provide Seller with a copy of each such
income Tax Return for its review and comment no less than thirty (30) days prior to the due date (taking into account valid extensions
thereto) for such income Tax Return, Acquiror shall incorporate Acquiror’s reasonable written comments on such Tax Returns, and
Acquiror shall timely file or cause to be timely filed the foregoing. In the event that the Parties are unable to resolve any dispute
with respect to any Tax Return the preparation of which is governed by this Section 7.7(a)(ii), such dispute shall be resolved
by a Designated Accounting Firm in accordance with Section 7.7(a)(iii). To the extent that any Tax consequences attributable to
the Reorganization are required to be reported on any United States federal, and applicable state and local, income tax returns for a
Pre-Closing Tax Period, such tax returns shall (x) report the Reorganization as a redemption qualifying under Section 302(a) of the Code,
and (y) include any elections under Section 338(h)(10) of the Code solely with respect to the redemption of shares of TUH for shares of
the Excluded Companies that are corporations for United States federal income tax purposes, except, in either case, if (a) (y) Acquiror
determines in good faith, after consultation with its tax advisers, that there is not at least “a more likely than not” comfort
level with respect to such reporting position or elections and (x) Acquiror notifies Seller in writing of such determination not less
than ten (10) Business Days prior to Closing; and (b) after Acquiror notifies Seller of such determination, Seller does not deliver a
written opinion from a nationally recognized law firm or accounting firm, upon which TUH can rely, that there is at least a “more
likely than not” comfort level with respect such reporting position or elections.
(iii) Either
Party shall have the right to refer such dispute to the dispute resolution group of an independent internationally recognized accounting
firm that is mutually agreed upon by Acquiror and the Seller or, if Acquiror and the Seller are unable to agree on such accounting firm
at least twenty-five (25) days prior to the due date for the relevant Tax Return, either Party may request the President of the American
Arbitration Association to appoint a senior partner in an internationally recognized accounting firm to resolve the dispute, which firm
shall be engaged by Acquiror and the Seller (such firm, or any successor thereto, being referred to herein as the “Designated
Accounting Firm”). In connection with the resolution of any such dispute by the Designated Accounting Firm: (A) each
of the Seller and Acquiror shall have a reasonable opportunity to meet with the Designated Accounting Firm to provide its views as to
any disputed issues with respect to the relevant Tax Return; provided that none of Seller, Acquiror, or any of their respective
Affiliates or Representatives shall have any ex parte communications or meetings with the Designated Accounting Firm regarding the subject
matter hereof without the other Party’s prior written consent; (B) each of the Seller and Acquiror shall promptly provide, or cause
to be provided, to the Designated Accounting Firm all information as is reasonably necessary to permit the Designated Accounting Firm
to resolve such disputes; (C) the Designated Accounting Firm, acting as an expert and not an arbitrator, shall determine only those particular
disputed items referred to in the corresponding dispute notice (the “Dispute
Notice”) and not agreed by the Parties during the period prior to the filing of the relevant Tax Return, and upon reaching
a determination shall deliver a copy of its determination (the “Expert
Determination”) to the Seller and Acquiror; and (D) the determination made by the Designated Accounting Firm of any items
that are in dispute shall, absent manifest error or fraud, be conclusive, binding upon the Parties, non-appealable, and not be subject
to further review, and shall be considered a final arbitration award that is enforceable pursuant to the terms of the Federal Arbitration
Act. In calculating the Expert Determination, the Designated Accounting Firm shall (1) be limited to addressing only those particular
disputed items referred to in the Dispute Notice and not agreed by the Parties during the period prior to the filing of the relevant Tax
Return and (2) calculate an amount, with respect to each disputed item, no greater than the higher amount calculated by Acquiror or the
Seller, as the case may be, and no lower than the lower amount calculated by Acquiror or the Seller, as the case may be, with respect
to such disputed item. The Designated Accounting Firm shall resolve all disputes at least ten (10) days prior to the due date for the
relevant Tax Return. The fees and expenses of the Designated Accounting Firm shall be allocated between Acquiror, on the one hand, and
the Seller, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each Party bears to
the amount actually contested by such Party.
(iv) All
Taxes due on or before the Closing Date (whether or not shown on such Tax Returns) shall be paid or will be paid by the Seller or applicable
Acquired Company when due.
(v) Any
Tax refunds or Tax credits actually received in cash by an Acquired Company after the Closing but attributable to a Pre-Closing Tax Period
(as determined pursuant to the principles of clause (vi), below) shall be for the benefit of the Seller, and Acquiror, any of the Acquired
Companies or any of their respective Affiliates, as applicable, shall promptly pay to the Seller in cash the amount of any such Tax refund
or the dollar value of any such Tax credit within five (5) Business Days following receipt thereof; provided, however, that Seller is
not entitled to payment hereunder in respect of (a) refunds or credits of Taxes that were not paid prior to the Closing, (b) refunds or
credits attributable to the carryback of any Tax attribute generated in a taxable period (or portion thereof) beginning after the Closing
Date, (c) refunds or credits subject to a pending audit or other Tax proceeding, or (d) refunds or credits the value of which is required
to be paid to a third party pursuant to a Contract entered into prior to the Closing by Seller or any of its Affiliates (including the
Acquired Companies). Any and all payments pursuant to this clause (v) shall be made net of all costs and expenses (including Taxes) incurred
by Acquiror or any of its Affiliates (including the Acquired Companies).
(vi) In
the case of Taxes that are payable with respect to a Straddle Period, the portion of any such Taxes that are attributable to a Pre-Closing
Tax Period for purposes of this Agreement shall be: in the case of Taxes (i) based upon, or related to, income, receipts, profits, wages,
capital or net worth, (ii) imposed in connection with the sale, transfer or assignment of property, or (iii) required to be withheld,
deemed equal to the amount which would be payable if the taxable year ended on (and included) the Closing Date; and, in the case of other
Taxes, deemed to be the amount of such Taxes for the entire period multiplied by a fraction the numerator of which is the number of days
in the period ending on (and including) the Closing Date and the denominator of which is the number of days in the entire period. The
remainder of the Taxes for the Straddle Period shall be allocated to the period or portion thereof commencing on or after the Closing
Date.
(vii) Without
the prior written consent of the Seller, which consent shall not be unreasonably withheld, conditioned, or delayed, Acquiror shall not,
and shall cause the Acquired Companies not to, amend, re-file, or otherwise modify any Tax Return for, or take any position or action
attributable to, any Pre-Closing Tax Period that would reasonably be expected to increase the Tax liability of the Seller or its Affiliates
or that would otherwise adversely affect the Seller’s liability for Taxes related to any Pre-Closing Tax Period or indemnification
obligations with respect to Taxes pursuant to this Agreement.
(b) Indemnification
for Taxes. All Taxes that are due and payable with respect to Tax Returns described in this Section 7.7 shall be the responsibility
of the Seller to the extent they constitute Pre-Closing Taxes, and shall, for the avoidance of doubt, together with any related costs
and other Losses, be subject to indemnification pursuant to Article X.
(c) Cooperation
on Tax Matters. Acquiror, Seller, and the Acquired Companies and their respective Affiliates shall reasonably cooperate, as and to
the extent reasonably requested by another Party, in connection with determining any liability for Taxes, the preparation and filing of
any Tax Return and any audit, litigation or other proceeding with respect to Taxes, in each case, relating to the Acquired Companies for
a taxable period beginning on or before the Closing Date. Such cooperation shall include the retention and (upon any other Party’s
written request) the provision of records and information that are reasonably relevant to any such Tax matter and making employees reasonably
available on a mutually convenient basis to provide additional information and explanation of any material provided under this Section 7.7(c),
and furnishing the other Parties reasonable assistance in connection therewith (at such other Party’s expense). Any records and
information obtained pursuant to the provisions of this Section 7.7(c) providing for the sharing of information or review
of any Tax Return or other schedule related to Taxes with respect to the Acquired Companies shall in each case be kept, unless otherwise
required by applicable Law, confidential by the Parties and their respective Affiliates, and such provisions shall in any event be subject
to applicable Law relating to the exchange of information and appropriate legal privilege and work-product protections. The Parties will
cooperate and negotiate in good faith from time to time and as needed with respect to any changes required or appropriate with respect
to the Acquiror’s or its Affiliates operations or ownership structure to maximize the Acquired Companies’ (or Acquiror’s
or its Affiliates’) eligibility to benefit from advanced manufacturing production credits under Section 45X of the Code or other
similar benefits in light of any changes to applicable laws or otherwise.
(d) Termination
of Tax Sharing Agreements. On the Closing Date, any existing agreements relating to the allocation or sharing of Taxes or other similar
arrangements (other than this Agreement and any other Contract entered into in the ordinary course of business consistent with past practice
and for which Taxes are not the principal subject matter) to which any Acquired Company is a party shall in each case be terminated and
have no further effect for any taxable year or period (whether a past, present or future year or period), and no additional payments shall
be made thereunder on or after the Closing Date in respect of redetermination of Tax Liabilities or otherwise.
(e) Transfer
Taxes. Any transfer, documentary, sales, use, stamp, registration, value added, real property, and other such Taxes (including any
penalties and interest) incurred in connection with the purchase and sale of Target Shares pursuant to Section 2.1 shall be borne
fifty percent (50%) by Acquiror and fifty percent (50%) by the Seller (the “Transfer
Taxes”). Any Tax Returns with respect to such Transfer Taxes shall be prepared and filed by the Party primarily or customarily
responsible under applicable Law for filing such Tax Returns, and such Party will provide such Tax Returns to the other Parties at least
ten (10) days prior to the date such Tax Returns are due to be filed (or, if such Tax Returns are due within ten (10) days following the
Closing, as soon as reasonably practicable).
(f) Tax
Contests. Acquiror agrees to give written notice to Seller of the receipt of any written notice by Acquiror or any of the Acquired
Companies which involves the assertion of any claim, or the commencement of any action, in either case with respect to Taxes of any of
the Acquired Companies in respect of any Pre-Closing Tax Period (a “Tax Claim”). Acquiror shall control the contest
or resolution of any Tax Claim; provided, however, that Acquiror shall obtain the prior written consent of Seller (which consent shall
not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a Tax Claim or ceasing to defend such Tax
Claim; and, provided further, that Seller shall be entitled to participate in the defense of such Tax Claim and to employ counsel
of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Seller.
Section 7.8 Waivers
and Releases of Claims.
(a) Effective
as of the Closing, the Seller by execution of this Agreement, on behalf of itself and each of its current or former Affiliates, officers,
directors, employees, managers, partners, principals, advisors, agents, stockholders, members, investors, equity holders or other representatives
(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), family members, heirs, beneficiaries,
estates, executors, administrators, trustees, successors or assigns (collectively, but in each case, excluding each Acquired Company,
the “Seller Releasing Parties”),
hereby:
(i) acknowledges
and agrees that the Seller Releasing Parties (A) have no Seller Claims, (B) have not transferred or assigned, or purported to
transfer or assign, any Seller Claims and (C) shall not transfer or assign, or purport to transfer or assign, any Seller Claims,
in each case, relating to any of the Acquired Companies against the Acquiror Released Parties;
(ii) hereby
unconditionally, irrevocably and forever releases, acquits and discharges the Acquiror Released Parties from, and covenants not to sue
any Acquiror Released Parties for, any and all claims, demands, allegations, assertions, complaints, controversies, charges, duties, grievances,
rights, causes of action, Actions, suits, Liabilities, debts, obligations, promises, commitments, agreements, guarantees, endorsements,
duties, breaches of duties, damages, costs, losses, debts and expenses (including out-of-pocket attorneys’ fees and costs incurred)
of any nature whatsoever (whether direct or indirect, known or unknown, disclosed or undisclosed, matured or unmatured, accrued or unaccrued,
asserted or unasserted, absolute or contingent, determined or conditional, express or implied, fixed or variable and whether vicarious,
derivative, joint, several or secondary) in each case, in any way relating to, arising out of or in connection with (A) any Acquired
Company, including in any way relating to, arising out of or in connection with any actions or inactions with respect to any Acquired
Company or its respective businesses, operations or affairs, (B) without limiting clause (A), any Acquiror Related Party (other
than, following the Closing, any Acquired Company) to the extent relating to the Acquired Companies and their respective business, operations
or affairs, or (C) arising from or relating to the Seller Releasing Party’s capacity, or rights, as a holder of capital stock
or other securities of any Acquired Company (collectively, “Seller
Claims”) that the Seller Releasing Party has or had or can, shall or may now or hereafter have, including any Seller
Claims arising under any applicable Law: provided however that the Seller Releasing Parties are not releasing any claims (x) for
ordinary course compensation and benefits due to them through the Closing Date to the extent that such compensation or benefits are disclosed
to Acquiror prior to the Closing Date or are entered into thereafter in accordance with the terms of this Agreement and (y) arising
under this Agreement (or any Related Agreement) or in connection with the Contemplated Transactions (and such matters shall not constitute
Seller Claims);
(iii) acknowledges
and agrees that it (A) has read and understands this release and has been advised to seek legal counsel prior to signing this Agreement
and has had ample opportunity to do so, (B) has signed this Agreement, including the provisions of this Section 7.8,
freely and voluntarily, (C) does not rely, and has not relied, on any representation or statement not set forth in this release made
by Acquiror or any other Person with regard to the subject matter, basis or effect of this release or otherwise and (D) does not
rely, and has not relied, on any representations or warranties made by Acquiror in this Agreement, which such representations and warranties
may have been made for the purpose of allocating contractual risk between the Parties rather than establishing such matters as facts;
and
(iv) specifies
that the release reflected in this Section 7.8 shall become effective only upon the consummation of the Closing pursuant to
the terms and conditions of this Agreement.
(b) Effective
as of the Closing, Acquiror by execution of this Agreement, on behalf of itself and each of its current or former Affiliates, officers,
directors, employees, managers, partners, principals, advisors, agents, stockholders, members, investors, equity holders or other representatives
(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors), family members, heirs, beneficiaries,
estates, executors, administrators, trustees, successors or assigns (collectively, but in each case, including each Acquired Company,
the “Acquiror Releasing Parties”),
hereby:
(i) acknowledges
and agrees that the Acquiror Releasing Parties (A) have no Acquiror Claims, (B) have not transferred or assigned, or purported
to transfer or assign, any Acquiror Claims and (C) shall not transfer or assign, or purport to transfer or assign, any Acquiror Claims,
in each case, relating to any of the Acquired Companies against the Seller Released Parties;
(ii) hereby
unconditionally, irrevocably and forever releases, acquits and discharges the Seller Released Parties from, and covenants not to sue any
Seller Released Parties for, any and all claims, demands, allegations, assertions, complaints, controversies, charges, duties, grievances,
rights, causes of action, Actions, suits, Liabilities, debts, obligations, promises, commitments, agreements, guarantees, endorsements,
duties, breaches of duties, damages, costs, losses, debts and expenses (including out-of-pocket attorneys’ fees and costs incurred)
of any nature whatsoever (whether direct or indirect, known or unknown, disclosed or undisclosed, matured or unmatured, accrued or unaccrued,
asserted or unasserted, absolute or contingent, determined or conditional, express or implied, fixed or variable and whether vicarious,
derivative, joint, several or secondary) in each case, in any way relating to, arising out of or in connection with (A) any Acquired
Company, including in any way relating to, arising out of or in connection with any actions or inactions with respect to any Acquired
Company or its respective businesses, operations or affairs, or (B) without limiting clause (A), any Seller Related Party to
the extent relating to the Acquired Companies and their respective business, operations or affairs (collectively, “Acquiror
Claims”) that the Acquiror Releasing Party has or had or can, shall or may now or hereafter have, including any Acquiror
Claims arising under any applicable Law: provided however that the Acquiror Releasing Parties are not releasing any claims arising
under this Agreement, any Related Agreement when entered or any Disclosed a Related Party Agreement or in connection with the Contemplated
Transactions (and such matters shall not constitute Acquiror Claims);
(iii) acknowledges
and agrees that it (A) has read and understands this release and has been advised to seek legal counsel prior to signing this Agreement
and has had ample opportunity to do so, (B) has signed this Agreement, including the provisions of this Section 7.8,
freely and voluntarily, (C) does not rely, and has not relied, on any representation or statement not set forth in this release made
by Seller or any other Person with regard to the subject matter, basis or effect of this release or otherwise and (D) does not rely,
and has not relied, on any representations or warranties made by Seller in this Agreement, which such representations and warranties may
have been made for the purpose of allocating contractual risk between the Parties rather than establishing such matters as facts; and
(iv) specifies
that the release reflected in this Section 7.8 shall become effective only upon the consummation of the Closing pursuant to
the terms and conditions of this Agreement.
(c) For
purposes of this Agreement, the following terms shall have the following meanings: (A) “Acquiror Released
Parties” means Acquiror and each of its respective Affiliates (including, following the Closing, any Acquired Company),
Subsidiaries, subdivisions, officers, directors, employees, managers, partners, principals, advisors, agents, stockholders, members, investors,
equity holders or other representatives (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors),
successors, predecessors or assigns, (B) “Acquiror
Related Party” means each Acquiror Released Parties, other than Acquiror, (C) “Seller Released
Parties” means the Seller and each of its respective Affiliates (excluding, following the Closing, any Acquired Company),
Subsidiaries, subdivisions, officers, directors, employees, managers, partners, principals, advisors, agents, stockholders, members, investors,
equity holders or other representatives (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors),
successors, predecessors or assigns, and (D) “Seller
Related Party” means each Seller Released Parties, other than Seller.
Section 7.9 R&W
Insurance Policy; Cooperation.
(a) R&W
Insurance Policy. Acquiror may elect, in its sole discretion and at its sole cost, to obtain a conditional binder to
a representation and warranty and pre-Closing Tax indemnity (including coverage for Pre-Closing Taxes) R&W
Insurance Policy after the Agreement Date. If obtained, the R&W Insurance Policy shall include a provision whereby the insurer
expressly waives, and irrevocably agrees, except in the case of Fraud, not to pursue, directly or indirectly, any subrogation rights
against Seller or any of its Affiliates, or any former stockholders, managers, members, directors, officers, employees, agents or Representatives
of any of the foregoing with respect to any claim made by any insured thereunder and such Persons shall be express third-party beneficiaries
of such provision.
(b) Cooperation.
Prior to the Closing, the Seller shall, and shall cause its Subsidiaries to, use reasonable best efforts to (A) provide to Acquiror,
the insurers under the R&W Insurance Policy and their respective Representatives, and (B) cause their respective Representatives
to provide to Acquiror, the insurers under the R&W Insurance Policy and their respective Representatives, at Acquiror’s sole
expense, such cooperation as is reasonably requested by them in connection with arranging, discussing the terms of, and underwriting the
R&W Insurance Policy, including by responding promptly and satisfactorily to any due diligence requests the insurers may reasonably
have with respect to the Acquired Companies and their businesses; provided that (i) such cooperation does not materially interfere
with the business or operations of the Acquired Companies and (ii) all such information provided by the Acquired Companies pursuant
to this Section 7.9(b) shall be treated as “Confidential Information” pursuant to the terms of the Confidentiality
Agreement, the provisions of which are by this reference hereby incorporated herein.
Section 7.10 Partnership;
Battery Energy Storage. Following Closing, each of the Parties shall use their respective reasonable best efforts (and shall cause
their respective Affiliates to, if applicable) (a) to take (or cause to be taken) actions; and (b) do (or cause to be done)
all things reasonably necessary, proper or advisable, to discuss and explore a strategic partnership in the United States in respect
of a battery energy storage business.
Section 7.11 CFIUS Turndown.
(a) Redemption
of Seller Acquiror Common Stock. Following Closing, and in the event of a CFIUS Turndown, where CFIUS specifically requires the Seller
to divest, dispose, or otherwise sell the shares of Acquiror Common Stock acquired as Share Consideration pursuant to this Agreement,
within sixty (60) days following the date of the CFIUS Turndown, Acquiror shall purchase or redeem from the Seller, all such shares of
Acquiror Common Stock in exchange for Acquiror issuing to Seller an unsecured loan note, substantially in the form attached hereto as
Exhibit A-6 (the “Secondary Note Instrument”), with an aggregate principal amount equal to the Redemption
Price.
(b) Convertible
Note. In the event of a (i) CFIUS Turndown, or (ii) if the Convertible Note does not become eligible for any of the Conversions pursuant
to the Convertible Note; provided that such failure to become eligible for the Conversions is not caused by any deliberate action
of the Seller or any of their respective Affiliates, in either case under (i) or (ii), within twelve (12) months following the Closing
Date (as may be extended by Seller in its sole discretion), the Convertible Note shall be redeemed and repaid by Acquiror with a newly
issued unsecured loan note substantially in the form of the Secondary Note Instrument, with an aggregate principal amount equal to the
amount of principal and accrued but unpaid interest under the Convertible Note at the time the Convertible Note is redeemed.
Section 7.12 Dividends.
In the event that between Closing and the date
of the First Conversion or a CFIUS Turndown, as applicable, Acquiror pays a dividend or distribution on the Acquiror Common Stock, Acquiror
shall pay to the Seller in cash within five (5) Business Days of the payment date for the dividend or distribution, the amount of such
dividend or distribution that is paid per share of Acquiror Common Stock multiplied by the number of Conversion Shares.
Section 7.13 Production
Reserve Fee Repayment.
(a) The
Parties acknowledge and agree that as of the Closing, TUM 1 owes TUS an amount equal to $220,000,000 (the “Production
Reserve Fee”). Beginning on the first anniversary of the Closing Date, Acquiror shall repay, or cause TUM 1 to repay,
the Production Reserve Fee to TUS, in five installments of $44,000,000, to be paid on each successive anniversary of the Closing Date
(each, an “Installment Payment”), provided that in the event that Acquiror, acting reasonably, determines that
it does not have sufficient free cash flow to pay any Installment Payment, such Installment Payment shall be reduced accordingly and Seller
and Acquiror shall negotiate a revised payment schedule in good faith, provided further, that any such unpaid Installment Payment
shall accrue interest at six percent (6%) per annum.
(b) If
TUM 1 enters into product offtake agreements with customers with respect to at least three gigawatt (3GW) of TUM 1’s capacity in
addition to the currently committed one and a half gigawatt (1.5GW) capacity, then, after the last of such offtake agreements is entered
into, any customer deposits received by TUM 1 shall be paid to the Seller in reduction of the Production Reserve Fee until the Production
Reserve Fee is fully paid.
(c) If
Acquiror or any of its Subsidiaries enter into a financing agreement providing the Acquiror or its Subsidiaries with at least $275,000,000
of financing, then Acquiror shall, within 30 days, make a payment to TUS of all unpaid amounts of the Production Reserve Fee, unless such
payment is prohibited by the terms of any financing arrangements for the Solar Cell Manufacturing Facility or Solar Module Manufacturing
Facility.
(d) Acquiror
may offset any amounts due under this Section 7.13 against any payments TVNW would owe to TUM 1 under the Polysilicon Supply Agreement.
Section 7.14 Equity
Contribution Agreement. Following the Closing, Acquiror will cooperate with TED to terminate that certain Equity Contribution
Agreement, dated July 16, 2024, between TED and TUM 1, and the Seller will cause TED to cooperate with Acquiror to support any
replacement conditions to the extent necessary.
Section 7.15 Solar
Cell Agreement. As soon as possible after the Agreement Date and prior to Closing, the Parties shall negotiate in good faith the
Solar Cell Operational Support Agreement, substantially on the terms set out in the Solar Cell Term Sheets.
Section 7.16 Seller’s
Option. Following Closing, and in the event that any of the Preferred Stock issued under the Preferred Stock Purchase Agreement
is converted into Acquiror Common Stock, Seller shall have the right, but not the obligation, by written notice to Acquiror, to
acquire from Acquiror such number of shares of Acquiror Common Stock so that the Seller’s proportionate ownership of Acquiror
Common Stock following the conversion of the Preferred Stock will be the same as before the conversion at a price equal to $2.50 per
share of Acquiror Common Stock or such other price as is the Conversion Price pursuant to the Preferred Stock Purchase Agreement
upon conversion of the Preferred Stock. Notwithstanding Section 2(e) of the Cooperation Agreement, the Parties agree this Section
7.16 shall be Seller’s only anti-dilution protection upon the conversion of any of the Preferred Stock.
Section 7.17 Trina
Employee Shares. As soon as reasonably practicable after the Second Conversion, the Seller shall distribute 3,000,000 shares of
Acquiror Common Stock out of the Share Consideration received by the Seller to employees of the Seller or its Affiliates in one or
more transactions, each of which qualifies as exempt transactions under the Securities Act and the rules and regulations promulgated
thereunder and in accordance with the restrictions set forth in this Agreement, provided that in all cases such transfer shall be in
compliance with all Laws applicable to any Party. Prior to any transfer contemplated by the preceding sentence, the Seller shall
provide written evidence, reasonably satisfactory to the Acquiror, that all such transfers comply with all applicable Laws,
including the Securities Act. The Parties agree that the transfer restrictions set out in Section 2(c) of the Cooperation
Agreement shall not apply to the transfer of shares to employees permitted by this Section 7.17, provided that such employees agree
not to transfer such shares to any person for a period of twelve (12) months after the date they receive the shares from the
Seller.
Section 7.18 Lock-Up
Agreement Waiver Notification. Acquiror shall use its commercially reasonable best efforts to promptly notify Seller if Acquiror
receives notice from Encompass Capital that Encompass Capital is seeking a waiver of the Lock-Up Agreement pursuant to Section 1(a)
of the Lock-Up Agreement.
ARTICLE
VIII
Conditions to close
Section 8.1 Mutual
Conditions. The respective obligations of Acquiror and the Seller to effect the Purchase shall be subject to the satisfaction at
or prior to the Closing, of the condition that no Law or Order (whether temporary, preliminary or permanent) promulgated by a
Governmental Authority of competent jurisdiction shall be in effect which has the effect of making the consummation of the Purchase
illegal, or otherwise prohibiting the consummation of the Purchase in accordance with the terms of this Agreement.
Section 8.2 Additional
Acquiror Conditions. The obligations of Acquiror to effect the Purchase shall be subject to the satisfaction, at or prior to the
Closing, of each of the following additional conditions, any of which may be waived in writing exclusively by Acquiror in its sole
discretion:
(a) Seller
Representations and Warranties.
(i) The
representations and warranties of the Seller (other than the Seller Fundamental Representations) shall have been true and correct (without
giving effect to any qualification as to materiality or similar qualification) on and as of the Agreement Date and shall be true and correct
on and as of the Closing Date as though such representations and warranties were made on and as of the Closing (other than such representations
and warranties of the Seller made only as of a specified earlier date, which shall be true and correct on and as of such specified earlier
date), except in each case for any failure to be so true and correct that has not had, and would not be reasonably expected to have, a
Seller Material Adverse Effect.
(ii) The
Seller Fundamental Representations shall have been true and correct in all but de minimis respects on and as of the Agreement Date
and shall be true and correct in all but de minimis respects on and as of the Closing Date as though such representations and warranties
were made on and as of the Closing (other than such representations and warranties of such Seller made only as of a specified earlier
date, which shall be true and correct in all but de minimis respects as of such specified earlier date).
(b) Seller
Covenants. The Seller shall have performed and complied in all material respects with its respective covenants and obligations
under this Agreement required to be performed and complied with by the Seller at or prior to the Closing.
(c) Seller
Material Adverse Effect. Since the Agreement Date, no Seller Material Adverse Effect shall have occurred.
(d) Consents;
Waivers. The Acquired Companies shall have received all necessary consents, waivers and approvals set forth on Schedule 8.2(d).
(e) Seller
Closing Certificates. Acquiror shall have received a certificate from the Seller, validly executed by an officer of the Seller for
and on Seller’s behalf, to the effect that, as of the Closing, the conditions set forth in Sections 8.2(a), Section
8.2(b), Section 8.2(c) and Section 8.3(c) have been satisfied.
(f) Reorganization.
Seller shall have completed the Reorganization in accordance with Section 6.6 and provided evidence acceptable to Acquiror.
Section 8.3 Additional
Seller Conditions. The obligations of the Seller to effect the Purchase shall be subject to the satisfaction, at or prior to the
Closing, of each of the following additional conditions, any of which may be waived in writing exclusively by the Seller in its sole
discretion:
(a) Acquiror
Representations and Warranties.
(i) The
representations and warranties of Acquiror (other than the Acquiror Fundamental Representations) shall have been true and correct (without
giving effect to any qualification as to materiality or similar qualification) on and as of the Agreement Date and shall be true and correct
on and as of the Closing Date as though such representations and warranties were made on and as of the Closing (other than such representations
and warranties of Acquiror made only as of a specified earlier date, which shall be true and correct on and as of such specified earlier
date), except in each case for any failure to be so true and correct that has not had, and would not be reasonably expected to have, a
Acquiror Material Adverse Effect.
(ii) The
Acquiror Fundamental Representations shall have been true and correct in all but de minimis respects on and as of the Agreement
Date and shall be true and correct in all but de minimis respects on and as of the Closing Date as though such representations
and warranties were made on and as of the Closing (other than such representations and warranties of Acquiror made only as of a specified
earlier date, which shall be true and correct in all but de minimis respects as of such specified earlier date).
(b) Acquiror
Covenants. Acquiror shall have performed and complied in all material respects with each of its covenants and obligations under this
Agreement required to be performed and complied with by it at or prior to the Closing.
(c) Acquiror
Material Adverse Effect. Since the Agreement Date, no Acquiror Material Adverse Effect shall have occurred.
(d) Acquiror
Closing Certificate. The Seller shall have received a certificate from Acquiror, validly executed by an officer of Acquiror for and
on Acquiror’s behalf, to the effect that, as of the Closing, the conditions set forth in Section 8.3(a), Section
8.3(a)(ii), Section 8.3(b), Section 8.3(c) and Section 8.3(f) have been satisfied.
(e) 24M
Isolation. Acquiror shall have completed the 24M Isolation.
(f) Equity
Financing. The First Tranche Equity Financing has been completed pursuant to the terms of the Preferred Stock Purchase Agreement.
(g) NYSE
Supplemental Listing Application. Acquiror shall have filed the NYSE Supplemental Listing Application with NYSE.
Section 8.4 Frustration
of Closing Conditions. Neither the Seller nor Acquiror may rely on the failure of any condition set forth in this Article III to
be satisfied if such failure was caused by such Party’s failure to act in good faith or to use reasonable best efforts or such
other efforts standard as may be expressly set forth herein to cause the conditions to the Closing of the other Party set forth in
this Article III to be satisfied.
ARTICLE
IX
PRE-CLOSING TERMINATION OF AGREEMENT
Section 9.1 Termination.
This Agreement may be terminated and the Contemplated Transactions may be abandoned, at any time prior to the Closing only as
follows:
(a) by
mutual written agreement of the Seller and Acquiror;
(b) by
Acquiror or the Seller if the Closing Date shall not have occurred by the date falling one hundred twenty (120) days after the Agreement
Date (the “End Date”); provided,
however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available (i) to the Seller,
if any action or failure to act by the Seller has been a principal cause of or resulted in the failure of the Closing to occur on or before
such date and such action or failure to act constitutes a breach of this Agreement or (ii) to Acquiror if any action or failure to
act by Acquiror has been a principal cause of or resulted in the failure of the Closing to occur on or before such date and such action
or failure to act constitutes a breach of this Agreement;
(c) by
Acquiror or the Seller if a Governmental Authority of competent jurisdiction has enacted, issued, promulgated, enforced or entered any
applicable Law or any final non-appealable Order permanently enjoining or otherwise prohibiting the Purchase has been issued by a Governmental
Authority of competent jurisdiction; provided, however, that the right to terminate this Agreement under this Section 9.1(c)
will not be available to any Party whose actions resulted in any applicable Law or Order that had the effect of restraining, enjoining
or otherwise prohibiting the Purchase;
(d) by
Acquiror, if it is not in material breach of its obligations under this Agreement and there has been a breach of, or inaccuracy in, any
representation, warranty, covenant or agreement of the Seller such that the conditions set forth in Section 8.2(a), Section 8.2(b)
or Section 8.2(c) would not be satisfied as of the time of such breach or inaccuracy and such breach or inaccuracy has not
been cured within five (5) Business Days after written notice thereof to the Seller; provided, however, that no cure period shall
be required (i) for a breach or inaccuracy which by its nature cannot be cured or (ii) if any of the conditions to Closing in
Section 8.2(a) and Section 8.2(b) for the benefit of Acquiror are incapable of being satisfied on or before the
End Date;
(e) by
the Seller, if it is not in material breach of its obligations under this Agreement and there has been a breach of, or inaccuracy in,
any representation, warranty, covenant or agreement of Acquiror such that the conditions set forth in Section 8.3(a) or Section 8.3(a)
would not be satisfied as of the time of such breach or inaccuracy and such breach or inaccuracy has not been cured within five (5) Business
Days after written notice thereof to Acquiror; provided, however, that no cure period shall be required (i) for a breach or
inaccuracy which by its nature cannot be cured or (ii) if any of the conditions to Closing in Section 8.3(a) and Section 8.3(a)
for the benefit of the Seller are incapable of being satisfied on or before the End Date; or
(f) by
either Party, in accordance with Section 6.5(b), provided such terminating Party is not in breach, other than de minimis breach, of its
obligations under this Agreement.
Section 9.2 Effect of
Termination. Any valid termination of this Agreement under Section 9.1 will be effective (subject to the cure
periods provided above) immediately upon the delivery of a valid written notice of the terminating Party to the other Party. In the
event of termination of this Agreement as provided in Section 9.1, this Agreement and all rights and obligations
hereunder shall forthwith become void and there shall be no liability or obligation on the part of Acquiror, the Seller, or their
respective Representatives; provided, however, that each of the Seller and Acquiror hereto shall remain liable for any Fraud
occurring prior to such termination, in which case the aggrieved Party shall be entitled to all remedies available at law or in
equity. Notwithstanding the foregoing, the provisions of Section 11.5 (Expenses), Section 11.3
(Confidentiality), Section 11.4 (Public Disclosure), ARTICLE XI (General Provisions)
and this Section 9.2, (in each case including the respective meanings ascribed to the capitalized terms used in such
Sections as defined in this Agreement), shall remain in full force and effect and survive any termination of this Agreement pursuant
to the terms of this Article IX.
ARTICLE
X
POST-CLOSING INDEMNIFICATION
Section 10.1 Survival.
(a) Representations
and Warranties of the Seller. The representations and warranties of the Seller contained in this Agreement shall not survive the Closing;
provided, however, that the Seller Fundamental Representations shall survive from and after the Closing Date until the third anniversary
of the Closing Date.
(b) Representations
and Warranties of Acquiror. The representations and warranties of Acquiror shall not survive the Closing.
(c) Pre-Closing
Tax and Transfer Tax. All indemnification obligations relating to any Pre-Closing Tax obligation or any Transfer Tax shall survive
the Closing until, and all claims with respect thereto shall terminate on, the date that is ninety (90) days after the expiration of the
statute of limitations (including all extensions or waivers thereof) applicable to the applicable subject matter thereof.
(d) Covenants.
The covenants of the Seller and Acquiror shall survive until their performance in accordance with the terms of this Agreement, and any
claim for breach of any such covenant may be made within twelve (12) months after the expiration date for such performance, provided that
Section 6.12 shall survive until the final settlement of any claim for Leakage pursuant to Section 10.2(a)(v).
(e) Extension
of Survival Period. Notwithstanding the foregoing, if a Claim Notice with respect to a claim for indemnification under Section 10.2
has been delivered pursuant to Section 10.5 prior to the expiration of the applicable survival period set forth in this Section 10.1,
the covenants or agreements that are the subject of such claim Notice shall survive with respect to the matters set forth in such Claim
Notice until such claim is finally and fully resolved; provided, however, that the delivery of such Claim Notice will extend only
the survival period for that particular alleged breach and not any other breaches of that covenant not asserted prior to the expiration
of the survival period. This Section 10.1 shall operate as a contractual statute of limitations; provided, however,
that nothing in this Section 10.1 shall limit any liability for, or any Party’s rights to bring a claim for, fraud.
(f) Agreement
Controls. For the avoidance of doubt and notwithstanding anything to the contrary set forth herein, it is the intention of the Parties
that, except in the case of Fraud, the respective survival periods and termination dates set forth in this Section 10.1 supersede
any applicable statutes of limitations that would otherwise apply to such covenants and agreements.
Section 10.2 Indemnification.
(a) Seller
Indemnification. Subject to the applicable limitations set forth in this Article X (including Section 10.1),
from and after the Closing, the Seller shall indemnify and hold harmless Acquiror and its Affiliates (including, after the Closing Date,
any Acquired Company) and its and their respective Representatives from and against all Losses, paid, incurred, suffered or sustained
by such Indemnified Parties, or any of them (regardless of whether or not such Losses relate to any Third-Party Claims), directly or indirectly
resulting from, arising out of, relating to, or in connection with:
(i) any
breach of, default in, or failure by the Seller or any of its Affiliates, to perform or comply with any covenant or agreement of the Seller
contained in this Agreement;
(ii) any
breach of, failure to be true of, or inaccuracy in, as of the Closing Date, any Seller Fundamental Representation, or any breach of, failure
to be true of, or inaccuracy in, any certificate or instrument delivered by, or on behalf of, the Seller pursuant to this Agreement with
respect to any Seller Fundamental Representation;
(iii) the
Reorganization;
(iv) any
Pre-Closing Taxes; and
(v) any
Leakage that occurred between the Agreement Date and the Closing Date.
(b) Acquiror
Indemnification. Subject to the applicable limitations set forth in this Article X (including Section 10.1),
from and after the Closing, Acquiror shall indemnify and hold harmless the Seller and its Affiliates (excluding, after the Closing Date,
any Acquired Company) and its and their respective Representatives from and against all Losses, paid, incurred, suffered or sustained
by such Indemnified Parties, or any of them (regardless of whether or not such Losses relate to any Third-Party Claims), directly or indirectly
resulting from, arising out of, relating to, or in connection with any breach of, default in, or failure by Acquiror or any of its Affiliates,
to perform or comply with, any covenant or agreement of Acquiror contained in this Agreement.
Section 10.3 Indemnification
Limitations and Qualifications. In each case, except for Seller’s indemnification obligation pursuant to Section
10.2(a)(iii), Section 10.2(a)(iv), or Section 10.2(a)(v):
(a) Indemnification
Deductibles. No Party shall be liable for indemnification pursuant to Section 10.2 unless and until the aggregate amount
of Losses subject to indemnification by such Party exceeds $5,000,000, in which event such Party shall be entitled to indemnification
for all such Losses in excess of such amount.
(b) Indemnification
Caps.
(i) the
aggregate liability of the Seller’s indemnification obligation pursuant to Section 10.2(a)(ii) shall not exceed the Purchase
Price; and
(ii) the
aggregate liability of the Seller pursuant to Section 10.2(a)(i) or the Acquirer pursuant to Section 10.2(b) shall not exceed
$200,000,000;
(c) Insurance
Recoveries; Tax Benefits. The amount of any Losses payable to an Indemnified Party pursuant to the indemnification obligations in
Section 10.2 shall be calculated after giving effect (A) to any amounts actually recovered by the Indemnified Party from
insurance policies, which recovery shall be calculated net of the following: (1) reasonable costs and expenses (including Taxes)
incurred by such Indemnified Party or its Affiliates and its and their respective Representatives in procuring such recovery; (2) any
increases in premiums or premium adjustments to the extent attributable to such recovery (applicable to any past, present or future premiums);
and (3) deductibles and other amounts incurred in connection with such recovery; provided, however, that the Indemnified Parties
shall have no obligation to seek recovery under any insurance policies or to maintain any insurance policies for any period of time and
(B) any net Tax benefit that is realized by the Indemnified Party as a reduction in cash Taxes otherwise payable in the year such
Losses are incurred or the following taxable year as a result of such Losses.
Section 10.4 Fraud.
Notwithstanding anything herein to the contrary, nothing in this Agreement shall limit (i) the liability of a Party in
connection with any claim based on Fraud, or (ii) the right of any Indemnified Party to pursue remedies under or related to any
Related Agreement (other than certificates delivered pursuant to this Agreement) against the parties thereto.
Section 10.5 Claim Procedures.
(a) Indemnification
Claims. To the extent applicable, subject to the limitations set forth in Section 10.3 or Section 10.4, if any
Indemnified Party wishes to assert a claim under Section 10.2(a) or Section 10.2(b), as applicable (each, an “Indemnification
Claim”), it shall notify in writing the Seller (if the Seller is the party from which indemnification is sought pursuant
to Section 10.2(a)) or Acquiror (if Acquiror is the party from which indemnification is sought pursuant to Section 10.2(b))
of the facts and circumstances that give rise to such Indemnification Claim. As soon as reasonably practicable after such notice, the
Indemnified Party shall deliver to the other Party a written claim notice (a “Claim
Notice”) stating (i) that an Indemnified Party has paid, incurred, suffered or sustained, or anticipates that it
may pay, incur, suffer or sustain Losses, and (ii) to the extent reasonably available, specifying such Losses or anticipated Losses
in reasonable detail, the facts and circumstances (to the extent known by or available to the corresponding Representative) giving rise
to such Losses and, if applicable, the nature of the misrepresentation, breach of warranty or covenant or other indemnifiable matter.
Without extending the time limitations set forth in Section 10.1, a Claim Notice may be updated from time to time by the Indemnified
Party delivering such Claim Notice to reflect any change in circumstances following the date thereof, and with respect to Leakage, Acquiror
may deliver more than one (1) claim for Leakage, if there are separate events constituting Leakage. A failure to give complete, accurate
or, without extending the time limitations set forth in Section 10.1, timely notice of a Claim Notice will not affect the
rights or obligations of any Indemnified Party hereunder. If an Indemnification Claim may be brought under different or multiple sections,
clauses or subclauses of Section 10.2 (or with respect to different or multiple representations, warrants or covenants), then
the applicable Indemnified Parties shall have the right to bring such Indemnification Claim under any or each such section, clause, subclauses,
representation, warranty or covenant (each a “Subject
Provision”) that it chooses and the Indemnified Parties will not be precluded from seeking indemnification under any
Subject Provision by virtue of the Indemnified Parties not being entitled to seek indemnification under any other Subject Provision.
(b) Response
to Claim. If the Seller or Acquiror, as applicable, does not object in writing within thirty (30) days of delivery of a Claim Notice
(the “Objection Deadline”) by
delivery of a written notice of objection to the Indemnified Party containing a reasonably detailed description of the facts and circumstances
(to the extent known or available) supporting an objection to the applicable claim (a “Claim
Objection Notice”), such failure to so object shall be an irrevocable acknowledgment by the relevant Party with respect
to an Indemnification Claim, that the Indemnified Party is entitled to the full amount of the claim for Losses set forth in such Claim
Notice (an “Unobjected Claim”).
In such event, the Losses for which the Indemnified Party is entitled payment under the Unobjected Claim shall be satisfied in accordance
with Section 10.5(d).
(c) Resolution
of Objections to Claims.
(i) With
respect to each Indemnification Claim, if the Seller or Acquiror, as applicable, delivers a Claim Objection Notice pursuant to Section 10.5(b)
prior to the Objection Deadline with respect to such Indemnification Claim, Acquiror and the Seller shall attempt in good faith for thirty
(30) days after the delivery of such Claim Objection Notice to resolve such objection. If Acquiror and the Seller resolve and come to
an agreement regarding the claim(s) made in the Claim Objection Notice, a memorandum setting forth such agreement (the “Settlement
Memorandum”) shall be prepared and signed by Acquiror and the Seller, which Settlement Memorandum shall be final and
conclusive and binding on Acquiror and the Seller. In such event, the Losses for which the Indemnified Parties are entitled payment under
the Settlement Memorandum shall be satisfied in accordance with Section 10.5(d).
(ii) With
respect to each claim pursuant to Section 10.5(a) as to which a Claim Objection Notice was delivered pursuant to Section 10.5(b),
and to which no such agreement can be reached after good faith negotiation and prior to thirty (30) days after the Indemnified Party’s
receipt of such Claim Objection Notice (or such later date as may be agreed in writing by Acquiror and the Seller), either Acquiror or
the Seller may commence an Action in in accordance with Section 11.11.
(d) Satisfaction
of Claims. In the event of an Unobjected Claim or a Settlement Memorandum, or in the event Seller or Acquiror liability has been established
pursuant to a final binding decision in accordance with Section 11.11, Acquiror and the Seller shall, subject to the limitations
set forth in this Article X, as promptly as practicable thereafter but no later than ten (10) Business Days after the Objection
Deadline or the date of the Settlement Memorandum or decision, as the case may be, pay in cash to the Indemnified Party the full amount
of the corresponding Losses, provided that Seller shall have no obligation under Section 10.2(a)(v) for any Known Leakage
Amount deducted from the Closing Cash Consideration.
(e) Third-Party
Claims.
(i) In
the event that a Party becomes aware of third-party claim against an Indemnified Party that such Party in good faith believes constitutes
a matter for which such Indemnified Party is entitled to indemnification, compensation, or reimbursement under Section 10.2,
as applicable (each, a “Third-Party Claim”),
such Party shall give prompt written notice thereof to the other Party. Except with respect to Taxes, such Party shall have the right
in its sole and absolute discretion to conduct (and, if necessary assume), the defense and prosecution of and to settle or resolve any
such Third-Party Claim, and if such Party does not promptly assume the defense of such Third-Party Claim the costs and expenses incurred
by the Indemnified Parties in connection with the investigation, defense, prosecution, and settlement of such Third-Party Claim (including
attorneys’, consultants’, experts’ and other professionals’ fees and expenses and court or arbitration costs)
shall be Losses for which the Indemnified Parties are entitled to indemnification, compensation and reimbursement pursuant to Section 10.2,
subject to the limitations of this Article X, regardless of the outcome of such Third-Party Claim. Acquiror (in the case of
Third-Party Claims defended by the Seller) and the Seller (in the case of Third-Party Claims defended by Acquiror) shall have the right
to receive copies of all pleadings, material written notices, and material written communications with respect to any Third-Party Claim.
(ii) Except
with respect to Taxes, without which shall not be unreasonably withheld, conditioned, or delayed, no Indemnified Party shall consent to
any settlement or resolution of any Third-Party Claim (or admit any liability with respect thereto).
(iii) If
applicable, the insurers under the R&W Insurance Policy and their agents and advisors shall be permitted to associate effectively
with any Party in the defense of any matter which might reasonably constitute a Loss (as defined in the R&W Insurance Policy).
Section 10.6 Tax Treatment.
(a) Any
payments made to an Indemnified Party pursuant to any indemnification obligations under this Article X will be treated as
adjustments to the Cash Consideration for Tax purposes and such agreed treatment will govern for purposes of this Agreement, unless otherwise
required by applicable Law.
Section 10.7 Exclusive
Remedy.
(a) From
and after the Closing, this Article X shall be the sole and exclusive remedy of the Indemnified Parties against Acquiror or
Seller, as applicable, for any monetary damages in connection with this Agreement or the transactions contemplated hereby; provided,
however, that (i) this Section 10.7 shall not apply to, or be deemed a waiver by any Party of, (1) any right
or claim under this Article X, (2) any claim for specific performance or injunctive relief (including pursuant to Section 11.9),
or (3) any right or claim under or related to any Related Agreement, and (ii) nothing in this Agreement shall limit the liability
of any Person in connection with Fraud committed by such Person.
(b) Notwithstanding
anything to the contrary herein, Acquiror acknowledges and agrees that it is relying exclusively on, and its sole recourse for any actual
or alleged breach of any representation or warranty (other than the Fundamental Representations) set forth in this Agreement (or any certificate
or other document delivered hereunder) will be, the R&W Insurance Policy.
Section 10.8 No
Rescission. Notwithstanding anything in this Agreement to the contrary, no breach of any representation, warranty, covenant or
agreement contained in this Agreement shall give rise to any right on the part of any Party, after the consummation of the
Contemplated Transactions, to rescind this Agreement or any of the Contemplated Transactions.
ARTICLE
XI
GENERAL PROVISIONS
Section 11.1 Certain
Interpretations. When a reference is made in this Agreement to an Appendix, Exhibit or Schedule, such reference shall be to an
Appendix, Exhibit or Schedule to this Agreement unless otherwise indicated. When a reference is made in this Agreement to an Article
or a Section, such reference shall be to an Article or a Section of this Agreement unless otherwise indicated. The words
“hereof,” “herein,” “hereby” and “hereunder” and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “or”
is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are
not exclusive. When used herein, the phrase “to the extent” shall be deemed to be followed by the words “but only
to the extent.” The word “extent” in the phrase “to the extent” means the degree to which a subject or
other thing extends, and such phrase shall not mean simply “if.” The words “include,” “includes”
and “including” when used herein shall be deemed in each case to be followed by the words “without
limitation.” “Writing,” “written” and comparable terms refer to printing, typing and other means of
reproducing words (including electronic media) in a visible form. References to any statute, rule or regulation shall be deemed to
refer to such statute, rule or regulation as amended or supplemented from time to time, including through the promulgation of
applicable rules or regulations. References to any Person include the successors and permitted assignees of that Person. References
from or through any date mean, unless otherwise specified, from but not including or to but not including, respectively. References
to one gender include all genders. When used herein, and references to “$” or “dollar” shall be deemed to be
references to dollars of the United States of America. 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, if the last day of such period is not a Business Day, the
period shall end on the next succeeding Business Day. The Parties hereto agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the application of any Law or rule of construction providing that
ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document. The table of
contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All capitalized terms that are used but not defined herein shall have the respective meanings
ascribed to such terms in Section 1.1.
Section 11.2 Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by
commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested) or sent via email to
the Parties at the following addresses or to such other address as the Party to whom notice is given may have previously furnished
to the others in writing in the manner set forth above (provided that notice of any change of address shall be effective only upon
receipt thereof):
(a) if to Acquiror
(or following the Closing, to the Acquired Companies), to:
FREYR Battery, Inc.
6&8 East Court Square, Suite 300
Newnan, Georgia 30263
Attention: Compliance Officer
Email: compliance-officer@freyrbattery.com
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
22 Bishopsgate
London, EC2N 4BQ, United Kingdom
Attention: Denis Klimentchenko and Sarah Knapp
Email: Denis.Klimentchenko@skadden.com
Sarah.Knapp@skadden.com;
(b) if to the Seller,
to:
Trina Solar (Schweiz) AG
No.2 Tianhe Road, Trina PV Industrial Park, Xinbei District, Changzhou, Jiangsu, China.
Attention: Hua Liu
Email: hua.liu@trinasolar.com
with a copy (which shall not constitute notice) to:
Dorsey & Whitney LLP
51 West 52nd Street
New York, NY 10019-6119
United States
Attention: Catherine X. Pan-Giordano
Email: pan.catherine@dorsey.com
All such notices and other
communications shall be deemed to have been duly given or sent (i) one Business Day following the date mailed if sent by overnight
commercial messenger or courier service or five (5) Business Days following the date mailed if sent by other mail service, (ii) on
the date on which delivered personally or (iii) the date on which sent by email transmission, as the case may be, and addressed as
aforesaid.
Section 11.3 Confidentiality.
Each of the Parties agrees that the information obtained in any investigation prior to the Agreement Date, or otherwise pursuant to
the negotiation and execution of this Agreement or the effectuation of the Contemplated Transactions, including, for the avoidance
of doubt, in connection with the Conversions and the Conversion Conditions, shall be governed by the terms of the Confidentiality
Agreement. Without limiting the foregoing, the Seller and Acquiror shall maintain the confidentiality of, and shall not disclose or
use, any Confidential Information or documents provided to, or learned by, Seller or Acquiror, as the case may be, in connection
with the Contemplated Transactions except as expressly contemplated by this Agreement; provided, however, each Party may
disclose such information, to the extent, (a) required by applicable Law or any applicable rule or regulation having the effect
of Law, (b) reasonably required in order to obtain the consents and approvals required under or expressly contemplated by this
Agreement, (c) to enforce the terms of this Agreement; provided, further, however, that the Parties may disclose
information to their respective Representatives, in each case, to the extent such Representatives have a bona fide need to know such
information in connection with the Seller’s or Acquiror’s fulfillment of its duties under this Agreement, and who are
subject to confidentiality obligations (whether fiduciary, contractual or otherwise) at least as protective as the restrictions
contained herein and the Confidentiality Agreement (provided that the Parties shall be responsible for any action taken or
omissions made by their respective Representatives to whom it disclosed information that would have resulted in a violation or
breach of the terms of this Agreement by their Representatives if such Representatives were a party hereto, and subject to the terms
of, this Agreement as if such Person were the Seller or Acquiror, as applicable).
Section 11.4 Public
Statements and Disclosure. Each of the initial press releases prepared by the Seller and Acquiror, with respect to the execution
of this Agreement and Closing shall be in the form agreed to by the Parties, and following such initial press releases, the Seller
and Acquiror shall consult with each other before issuing, and give each other the reasonable opportunity to review and comment upon
(and consider in good faith any comments made by the other Parties in relation to), any press release or other public statements (or
any statements that are reasonably likely to become public) with respect to the Contemplated Transactions and shall not issue any
such press release or make any such public statement prior to such consultation and without the prior written consent of
(x) the Seller in the case of any such press release or public statement by Acquiror, or (y) Acquiror in the case of any
such press release or public statement by the Seller (which consent in the case of (x) or (y) shall not be unreasonably withheld or
delayed), except that no such consent shall be required for any such press release or public statement required by applicable Law,
court process or by obligations pursuant to any rules of, or listing agreement with, any national securities exchange or national
securities quotation system (and then only after as much advance notice to the other Party and consultation as is feasible) if the
applicable Party has provided a right to review such press release or public statement (to the extent permissible); provided
that neither the Seller nor Acquiror shall be obligated to engage in such consultation with respect to communications (including
communications directed to employees, suppliers, customers, partners, vendors or stockholders) that are consistent with public
statements previously made in accordance with this Section 11.4 or any communications plan previously agreed to by
Acquiror and the Seller. Notwithstanding the foregoing, the restrictions set forth in this Section 11.4 shall not apply
to the portion of any release or public statement in connection with any dispute or Action between the Parties regarding this
Agreement, the Purchase or the Conversions.
Section 11.5 Expenses.
Except as otherwise provided in this Agreement, all Expenses incurred in connection with this Agreement, the Contemplated
Transactions shall be paid by the Party incurring such Expenses.
Section 11.6 Amendment.
This Agreement may be amended at any time from and after the Closing, by execution and delivery of an instrument in writing signed
by each of the Seller and Acquiror.
Section 11.7 Assignment.
This Agreement shall not be assigned by operation of law or otherwise without the mutual prior written consent of Acquiror and the
Seller, except that Acquiror may assign its rights and delegate its obligations hereunder to its Affiliates as long as Acquiror
remains ultimately liable for all of Acquiror’s obligations hereunder and in the case of an assignment by Acquiror, such
Affiliate executes and delivers a counterpart signature to this Agreement, in each case, so long as Acquiror is not relieved of any
liability or obligations hereunder. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the Parties and their respective permitted successors and assigns. Any purported assignment in violation of
this Section 11.7 shall be void and of no effect.
Section 11.8 Severability.
In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the
application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the
Parties hereto. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or
unenforceable provision.
Section 11.9 Specific
Performance and Other Remedies.
(a) The
Parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage would result, no adequate remedy at
law would exist, and damages would be difficult to determine in the event that any provision of this Agreement is not performed in accordance
with its specific terms or otherwise breached. The Parties to this Agreement agree that, in the event of any breach or threatened breach
by the other Party of any covenant, obligation or other agreement set forth in this Agreement or any Related Agreement, (i) each
Party shall be entitled, without any proof of actual damages (and in addition to any other remedy that may be available to it), to seek
a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other
agreement and an injunction preventing or restraining such breach or threatened breach, and (ii) no Party shall be required to provide
or post any bond or other security or collateral in connection with any such decree, order or injunction or in connection with any related
action or Action.
(b) The
liability of a Party under Article X will be in addition to any other liability that a Party may have at law or in equity
based on such Party’s Fraud. Notwithstanding anything to the contrary contained in this Agreement, none of the provisions set forth
in this Agreement, including the provisions set forth in Article X, shall be deemed a waiver by a Party of any right or remedy
which such Party may have at law or in equity based on the other Party’s Fraud, nor will any such provisions limit, or be deemed
to limit (i) the amounts of recovery sought or awarded in any such claim for Fraud, (ii) the time period during which a claim
for Fraud may be brought or (iii) the recourse which a Party may seek against another Person with respect to a claim for Fraud.
Section 11.10 Governing
Law. This Agreement, and all claims, causes of action (whether in contract, tort or statute) or other matter that may result
from, arise out of, be in connection with or relating to this Agreement, any Related Agreement (in each case, other than Related
Agreements that expressly select a different governing law), or the negotiation, administration, performance, or enforcement of this
Agreement or any Related Agreement (in each case, other than Related Agreements that expressly select a different governing law),
including any claim or cause of action resulting from, arising out of, in connection with, or relating to any representation or
warranty made in or in connection with this Agreement or any Related Agreement (in each case, other than Related Agreements that
expressly select a different governing law), shall be governed by, and construed and enforced in accordance with, the internal laws
of the State of Delaware, without giving effect to any choice or conflict of laws provision, rule, or principle (whether of the
State of Delaware or any other jurisdiction) that would result in the application of the laws of any other jurisdiction.
Section 11.11 Consent
to Jurisdiction. Each of the Parties (a) irrevocably consents to the service of the summons and complaint and any other
process (whether inside or outside the territorial jurisdiction of the Chosen Courts) in any Action based on, arising out of or
relating to this Agreement or the Contemplated Transaction, for and on behalf of itself or any of its properties or assets, in
accordance with Section 11.2 or in such other manner as may be permitted by applicable Law, and nothing in this Section 11.11
shall affect the right of any Party to serve legal process in any other manner permitted by applicable Law; (b) irrevocably and
unconditionally consents and submits itself and its properties and assets in any Action to the exclusive general jurisdiction of the
Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of
Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any other state or federal court within
the State of Delaware) (the “Chosen
Courts”) in the event that any dispute or controversy based on, arising out of or relating to this Agreement or the
Contemplated Transactions; (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court; (d) agrees that any Action based on, arising out of or relating to this Agreement or the
Contemplated Transactions shall be brought, tried and determined only in the Chosen Courts; (e) waives any objection that it
may now or hereafter have to the venue of any such Action in the Chosen Courts or that such Action was brought in an inconvenient
court and agrees not to plead or claim the same; and (f) agrees that it shall not bring any Action based on, arising out of or
relating to this Agreement or the Contemplated Transactions in any court other than the Chosen Courts. Each of Acquiror and Seller
agrees that a final judgment in any Action in the Chosen Courts shall be conclusive and may be enforced in other jurisdictions,
either within or outside of the U.S., by suit on the judgment or in any other manner provided by applicable Law. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment. With
respect to any Action for which it has submitted to jurisdiction pursuant to this Section 11.11, each Party irrevocably
consents to service of process in the manner provided for the giving of notices pursuant to Section 11.2. Nothing in
this Section 11.11 shall affect t right of any Party to serve process in any other manner permitted by Law. The
foregoing consent to jurisdiction shall not (x) constitute submission to jurisdiction or general consent to service of process
in the State of Delaware for any purpose except with respect to any Action based on, arising out of or relating to this Agreement or
the Contemplated Transactions or (y) be deemed to confer rights on any Person other than the Parties.
Section 11.12 WAIVER
OF JURY OF TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO, BASED ON OR RELATING TO
THIS AGREEMENT OR THE CONTEMPLATED TRANSACTIONS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION
(WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF, BASED ON OR RELATING TO THIS
AGREEMENT OR THE TRANSACTION. EACH PARTY ACKNOWLEDGES AND AGREES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (iii) IT MAKES THIS WAIVER
VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS Section 11.12.
Section 11.13 Entire
Agreement. This Agreement, the Annexes, Exhibits and Schedules hereto, the Seller Disclosure Statement, the Acquiror Disclosure
Statement, the Related Agreements, and the documents and instruments and other agreements among the Parties referenced herein
constitute the entire agreement among the Parties with respect to the subject matter of this Agreement and the Related Agreements
and supersede all prior agreements and understandings both written and oral, among the Parties with respect to the subject matter of
this Agreement and the Related Agreements.
Section 11.14 Third-Party
Beneficiaries. The Parties agree that their respective representations, warranties, covenants, and agreements set forth in this
Agreement are solely for the benefit of the other Party in accordance with and subject to the terms of this Agreement and, except in
the case of Fraud, this Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out
of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against, the
Parties. This Agreement is not intended to and shall not confer upon any other Person any rights or remedies under this
Agreement.
Section 11.15 Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party, it being
understood that all Parties need not sign the same counterpart. The exchange of a fully executed Agreement (in counterparts or
otherwise) by electronic transmission in.PDF format or by facsimile shall be sufficient to bind the Parties to the terms and
conditions of this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Acquiror
and the Seller have caused this Agreement to be executed as of the date first written above.
|
FREYR BATTERY, INC. |
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|
|
By: |
/s/ Daniel Barcelo |
|
|
Name: |
Daniel Barcelo |
|
|
Title: |
Authorized Signatory |
[Signature Pages to Transaction
Agreement]
IN WITNESS WHEREOF, Acquiror
and the Seller have caused this Agreement to be executed as of the date first written above.
|
TRINA SOLAR (SCHWEIZ) AG. |
|
|
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By: |
/s/ Mingxing Lin |
|
|
Name: |
Mingxing Lin |
|
|
Title: |
Authorized Signatory |
[Signature Pages to Transaction
Agreement]
ANNEX A
ACQUIRED COMPANIES
Jurisdiction |
Acquired
Company |
Equity
Owner |
Seller’s
Direct and Indirect Equity Interest (%) |
Delaware |
Trina Solar (U.S.) Holding Inc. |
Seller |
100% |
Delaware |
Trina Solar US Manufacturing Holding, Inc. |
Trina Solar (U.S.) Holding Inc. |
100% |
Texas |
Trina Solar US Manufacturing Module Associated Entity 1, LLC |
Trina Solar US Manufacturing Holding, Inc. |
100% |
Texas |
Trina Solar US Manufacturing Module 1, LLC |
Trina Solar US Manufacturing Holding, Inc.
and
Trina Solar US Manufacturing Module Associated
Entity 1, LLC |
100% |
Oklahoma |
Trina Solar US Manufacturing Cell 1, LLC |
Trina Solar US Manufacturing Holding, Inc. |
100% |
ANNEX B
EXCLUDED COMPANIES
| ● | Trina Solar US Development LLC |
| ● | Pennsville Landfill Solar, LLC |
| ● | Trina Solar US SBU LLC (US) |
| ● | Trina Solar Latam Services (US) |
| ● | Trina Solar (Tracker Solutions Inc.) |
| ● | Trina Solar (U.S.), Inc. |
| ● | Trina Solar (U.S.) Equity Holding Inc. |
Exhibit 10.1
[CERTAIN INFORMATION IN THIS EXHIBIT IDENTIFIED BY [***] IS CONFIDENTIAL AND HAS BEEN EXCLUDED BECAUSE IT (I) IS NOT MATERIAL AND (II)
THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THAT INFORMATION AS PRIVATE OR CONFIDENTIAL.]
CONVERTIBLE SERIES A PREFERRED STOCK PURCHASE
AGREEMENT
This CONVERTIBLE SERIES A
PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of November
6, 2024, is entered into by and between FREYR Battery, Inc., a Delaware corporation (“FREYR”
or the “Company”), and each of the entities listed in Schedule I to
this Agreement (each a “Purchaser”
and collectively, the “Purchasers”). FREYR and the Purchasers are referred
to herein individually as a “Party” and collectively as the “Parties.”
RECITALS:
WHEREAS, the Company has commenced
a non-voting convertible preferred equity offering (the “Preferred Equity Offering”),
pursuant to which the Company has offered the Purchasers an opportunity to purchase shares of Series A Preferred Stock (as defined herein),
substantially on the terms and conditions set forth in the Certificate of Designation of Series A Convertible Preferred Stock of FREYR
Battery, Inc. attached to this Agreement as Exhibit C (the “Certificate of Designation”);
and
WHEREAS, the Company desires
to sell to the Purchasers, and the Purchasers desire to purchase from the Company, Series A Preferred Stock, as more fully set forth herein.
NOW, THEREFORE, in consideration
of the premises and the mutual agreements contained herein, and for other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
Section 1.
DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:
“Action”
means any demand, claim, charge, action, suit, investigation, proceeding (whether at law or in equity), hearing, inquiry, audit, examination
petition, complaint, notice of violation, arbitration or other litigation or similar proceeding, whether arbitral, civil, criminal, administrative,
investigative or appellate proceeding, commenced, brought, conducted or heard by or before, or otherwise involving, any court or other
Governmental Authority or any arbitrator or arbitration panel.
“Addendum”
has the meaning assigned to it in Section 9.9.
“Affiliate”
of any Person means another Person that directly or indirectly through one or more intermediaries Controls, is Controlled by or is under
common Control with, such first Person.
“Agreement”
has the meaning assigned to it in the preamble hereto; it includes the Exhibits and Schedules hereto.
“Anti-Corruption
Laws” has the meaning assigned to it in Section 3.10(b).
“Assumption
Agreement” has the meaning assigned to it in Section 9.9.
“Business
Day” means any day other than Saturday, Sunday or other day on which banking institutions in the City of New York are
authorized or required by law or executive order to remain closed.
“Certificate
of Designation” has the meaning assigned to it in the Recitals hereto.
“Chosen Courts”
has the meaning assigned to it in Section 9.13.
“Common
Stock” means shares of common stock of the Company, par value $0.01 per share.
“Company”
has the meaning assigned to it in the preamble hereto.
“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” and “under
common Control with” have correlative meanings.
“Encumbrance”
means any security interest, pledge, mortgage, lien, claim, option, charge, restriction or encumbrance.
“Environmental Claim”
means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive
(conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual
or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials
Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.
“Environmental Laws”
means any and all current foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders,
rules, regulations, judgments, Governmental Authorizations, or any other requirements of Governmental Authorities relating to (i) environmental
matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal
health or welfare, applicable to the Company.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned,
leased, operated or used by the Company.
“First Tranche”
has the meaning assigned to it in Section 2.1(a).
“First Tranche Closing”
has the meaning assigned to it in Section 2.3(a).
“First Tranche Closing
Actions” has the meaning assigned to it in Section 2.4.
“First Tranche Closing
Date” means the date upon which the closing of the TUMH Transaction occurs.
“First Tranche Purchase
Price” has the meaning assigned to it in Section 2.2.
“FREYR”
has the meaning assigned to it in the preamble hereto.
“Governmental
Authority” means any (a) federal, state, provincial, local or other government (U.S. or non-U.S.), (b) any
federal, state, provincial, local, or other governmental or supra-national entity, regulatory or administrative authority, taxing authority,
agency, department, board, division, instrumentality or commission, educational agency, political party, body, or judicial or arbitral
body, board, tribunal, or court (U.S. or non-U.S.), (c) any public international organization (e.g., the World Bank), (d) any
industry self-regulatory authority or (e) any business, entity, or enterprise owned or controlled by any of the foregoing.
“Hazardous Materials”
means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which
may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
“Hazardous Materials
Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including
the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of
any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.
“Law”
means any U.S. or non-U.S. federal, state, provincial, local or other constitution, law, statute, ordinance, rule, directive, regulation,
published administrative position, policy or principle of common law issued, enacted, adopted, promulgated, implemented or otherwise put
into legal effect by or under the authority of any Governmental Authority and any judgments, decisions, orders and awards made in respect
of the foregoing.
“Lien”
has the meaning assigned to it in Section 3.3.
“Lock-Up Agreement”
means that certain lock-up agreement entered into by and among the Company and the Purchasers on the First Tranche Closing Date.
“Losses”
has the meaning assigned to it in Section 5.6(c)(i).
“Lower Conversion
Price” has the meaning assigned to it in Section 5.7.
“Material Adverse
Effect” has the meaning assigned to it in Section 3.1.
“Material
Contracts” means all “material contracts” of the Company within the meaning of Item 601 of Regulation S-K
of the SEC.
“NYSE”
means the New York Stock Exchange.
“Offering
Documents” means, collectively, all agreements, documents, or instruments related to or in connection with the Preferred
Equity Offering, including this Agreement and any other documents or exhibits related to or contemplated in the foregoing.
“Order”
means any order, judgment, injunction, ruling, edict, or other decree, whether non-final, final, temporary, preliminary or permanent,
enacted, issued, promulgated, enforced or entered by any Governmental Authority.
“Party”
or “Parties” has the meaning assigned to it in the preamble hereto.
“Permitted Lien”
has the meaning assigned to it in Section 3.3.
“Person”
means any individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision
thereof).
“Preferred
Equity Offering” has the meaning assigned to it in the Recitals hereto.
“Preferred
Stock” means the non-voting Convertible Series A Preferred Stock of the Company.
“Prospectus”
has the meaning assigned to it in Section 5.6(c)(i).
“Purchasers”
has the meaning assigned to it in the preamble hereto.
“Registrable Securities”
has the meaning assigned to it in Section 5.6(a).
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the
air, soil, surface water or groundwater.
“Restricted
Person” has the meaning assigned to it in Section 3.10(a).
“Resulting Common
Stock” means any shares of Series A Preferred Stock converted to shares of Common Stock of the Company.
“Sanctioned Jurisdiction”
has the meaning assigned to it in Section 3.10(a).
“Sanctioned
Person” has the meaning assigned to it in Section 3.10(a).
“Sanctions”
has the meaning assigned to it in Section 3.10(a).
“Second Tranche”
has the meaning assigned to it in Section 2.1(b).
“Second Tranche Closing”
has the meaning assigned to it in Section 2.3(b).
“Second Tranche Closing
Actions” has the meaning assigned to it in Section 2.5(c).
“Second Tranche Closing
Date” means the date of issuance of the Second Tranche, being a date falling within 30 days following the date that the Company
proceeds with its final investment decision with respect to the TUM 2 facility.
“Second Tranche Option”
has the meaning assigned to it in Section 2.1(b).
“Second Tranche Purchase
Price” has the meaning assigned to it in Section 2.2.
“SEC”
means the U.S. Securities and Exchange Commission.
“SEC
Documents” has the meaning assigned to it in Section 3.7(a).
“Securities
Act” means the Securities Act of 1933, as amended.
“Subsidiary”
has the meaning assigned to it in Section 3.1.
“Survival
Period” has the meaning assigned to it in Section 9.3.
“Total Purchase Price”
has the meaning assigned to it in Section 2.2.
“Treasury”
means the U.S. Department of the Treasury.
“TUMH Transaction”
means the proposed acquisition by the Company of certain solar cell manufacturing assets from Trina Solar (Schweiz) AG and related transactions.
“TUMH Transaction
Agreement” has the meaning assigned to it in Section 3.11(a).
“TUM 2”
means Trina Solar US Manufacturing Cell 1, LLC, a limited liability company organized under the laws of Oklahoma.
“Underlying Shares”
has the meaning assigned to it in Section 5.6(a).
Section 2.
AGREEMENT TO SELL AND PURCHASE.
2.1
Sale and Purchase of Shares.
(a)
First Tranche. Subject to the terms of this Agreement, at the First Tranche Closing, the Company hereby agrees to issue
and sell to each Purchaser, and each Purchaser hereby agrees to purchase from the Company, the number of shares of Series A Preferred
Stock set out against their name in Schedule I, free and clear of all Encumbrances (the “First Tranche”).
(b)
Second Tranche. Following the completion of the First Tranche and subject to the terms of this Agreement, upon the Company’s
notice to the Purchasers of its decision (in its sole discretion) to exercise its option to issue and sell to the Purchasers an additional
5 million shares of Series A Preferred Stock (the “Second Tranche Option”), the Company agrees to issue and sell to
each Purchaser, and each Purchaser agrees to purchase from the Company, the additional number of shares of Series A Preferred Stock set
out against their name in Schedule I, free and clear of all Encumbrances at the Second Tranche Closing (the “Second Tranche”).
The Purchasers shall have the right, upon providing at least five (5) Business Days’ notice to the Company, to reallocate amongst
themselves the Series A Preferred Stock to be issued pursuant to the exercise of the Second Tranche Option.
2.2
Purchase Price. The purchase price for the Series A Preferred Stock to be purchased by the Purchasers hereby shall be $10.00
per share such that the aggregate purchase price to be paid by the Purchasers shall be (i) $50 million with respect to the First Tranche
(the “First Tranche Purchase Price”) and (ii) $50 million with respect to
the Second Tranche (the “Second Tranche Purchase Price”). The aggregate purchase
price of the First Tranche and the Second Tranche shall be $100 million and shall be referred to herein as the “Total Purchase
Price”.
2.3
Closing.
(a)
First Tranche Closing. Subject to the terms of this Agreement, the closing of the First Tranche (the “First Tranche
Closing”), will occur on the First Tranche Closing Date, unless otherwise agreed by the mutual consent of the Parties. The First
Tranche Closing shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom (UK) LLP, 22 Bishopsgate, London, United Kingdom,
EC2N 4BQ or such other place as the Parties mutually agree. The Parties agree that the First Tranche Closing may occur via delivery of
facsimiles or photocopies of the applicable Offering Documents. Unless otherwise provided herein, all proceedings to be taken and all
documents to be executed and delivered by all Parties at the First Tranche Closing will be deemed to have been taken and executed simultaneously,
and no proceedings will be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered.
(b)
Second Tranche Closing. Subject to the terms of this Agreement, the closing of the Second Tranche (the “Second
Tranche Closing”), will occur on the Second Tranche Closing Date, unless otherwise agreed by the mutual consent of the Parties.
The Second Tranche Closing shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom (UK) LLP, 22 Bishopsgate, London,
United Kingdom, EC2N 4BQ or such other place as the Parties mutually agree. The Parties agree that the Second Tranche Closing may occur
via delivery of facsimiles or photocopies of the applicable Offering Documents. Unless otherwise provided herein, all proceedings to be
taken and all documents to be executed and delivered by all Parties at the Second Tranche Closing will be deemed to have been taken and
executed simultaneously, and no proceedings will be deemed to have been taken nor documents executed or delivered until all have been
taken, executed and delivered.
2.4
Actions at the First Tranche Closing. At the First Tranche Closing, the Purchasers and the Company (as applicable) shall
take or cause to be taken the following actions (“First Tranche Closing Actions”):
(a)
Form W-9. The Purchasers (and, as applicable, each of their respective transferees as designated in accordance with Section
2.7 and Section 9.9, the Addendum and the Assumption Agreement) shall deliver to the Company a completed and executed U.S.
Internal Revenue Service Form W-9.
(b)
Payment of the First Tranche Purchase Price. The Purchasers shall pay the First Tranche Purchase Price in respect of the
shares purchased by the Purchasers pursuant to Section 2.1(a) to the Company by wire transfer of immediately available funds
to the account specified by the Company to the Purchasers in writing not less than five (5) Business Days prior to the First Tranche Closing.
(c)
Issuance of Series A Preferred Stock. The Company shall deliver to the Purchasers a true, correct and complete certificate,
or other applicable evidence of ownership acceptable to the Purchasers, representing the shares of Series A Preferred Stock in the First
Tranche purchased by the Purchasers pursuant to Section 2.1(a), duly authorized by all requisite corporate action on the part
of the Company, together with all instruments of transfer in respect of the Purchasers’ interests in such shares, and in the form
required by the Certificate of Designation.
2.5
Actions at the Second Tranche Closing. Subject to the Company’s exercise of the Second Tranche Option, at the Second
Tranche Closing, the Purchasers and the Company (as applicable) shall take or cause to be taken the following actions (“Second
Tranche Closing Actions”):
(a)
Form W-9. The Purchasers (and, as applicable, each of their respective transferees as designated in accordance with Section
2.7 and Section 9.9) shall deliver to the Company a completed and executed U.S. Internal Revenue Service Form W-9.
(b)
Payment of the Second Tranche Purchase Price. The Purchasers shall pay the Second Tranche Purchase Price in respect of the
shares purchased by the Purchasers pursuant to Section 2.1(b) to the Company by wire transfer of immediately available funds
to the account specified by the Company to the Purchasers in writing not less than five (5) Business Days prior to the Second Tranche
Closing.
(c)
Issuance of Series A Preferred Stock. The Company shall deliver to the Purchasers a true, correct and complete certificate,
or other applicable evidence of ownership acceptable to the Purchasers, representing the shares of Series A Preferred Stock in the Second
Tranche purchased by the Purchasers pursuant to Section 2.1(b), duly authorized by all requisite corporate action on the part
of the Company, together with all instruments of transfer in respect of the Purchasers’ interests in such shares, and in the form
required by the Certificate of Designation.
2.6
Transfer Taxes. All of the Series A Preferred Stock issued to the Purchasers pursuant to this Agreement will be delivered
with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by the Company.
2.7
Restrictions on Transferability. Section 1 of the Lock-Up Agreement (Lock-Up) is hereby incorporated by reference
herein, mutatis mutandis.
Section
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to each Purchaser
as of the date hereof and as of each of the First Tranche Closing Date and, if the Second Tranche Closing occurs, the Second Tranche
Closing Date (except for representations and warranties that are made as of a specific date, which are made only as of such date), on
behalf of itself and not any other Party, as follows:
3.1
Organization and Good Standing. The Company and each Subsidiary (as defined below) of the Company is a corporation or other
legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and the Company
and each Subsidiary of the Company has all requisite corporate or other organizational power and authority to carry on its businesses
as now being conducted and is qualified to do business and is in good standing as a foreign corporation or other legal entity in each
jurisdiction where the conduct of its business requires such qualification, in each case except as would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. As used in this Agreement, “Material Adverse Effect”
means any material adverse effect on (i) the condition (financial or otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business or (ii) the ability
of the Company to perform its obligations under this Agreement. For purposes of this Agreement, “Subsidiary” means
any entity in which the Company, directly or indirectly, owns any of the outstanding capital stock, equity or similar interests or voting
power of such entity at the time of this Agreement or at any time hereafter, whether directly or through any other Subsidiary.
3.2
Authorization; Enforcement; Validity.
(a)
The Company has all requisite corporate power and authority to enter into this Agreement in connection with the transactions contemplated
hereby, and to issue and deliver the Series A Preferred Stock in accordance with the terms hereof. The execution and delivery by the Company
of this Agreement and the consummation of the issuance and delivery of the Series A Preferred Stock and the Company’s obligations
hereunder have been duly authorized by all necessary corporate or similar organizational and other action on the part of the Company.
(b)
This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligations of the Company,
enforceable against the Company in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency,
moratorium, the relief of debtors and enforcement of creditors’ rights in general.
3.3 No
Conflicts. The execution and delivery by the Company of this Agreement, and the consummation of the contemplated transactions
herein (including, without limitation, the issuance of the Series A Preferred Stock and Resulting Common Stock), will not
(a) result in the creation or imposition of any Lien (other than Permitted Liens) upon the assets of the Company and
(b) result in or give rise to any conflict in (i) any provision of the organizational documents of the Company, as
amended, (ii) any Material Contract, or (iii) any Law or Order applicable to the Company or any of its properties or
assets (whether tangible or intangible) (including the listing rules set forth by the NYSE), except, in each of clauses (a) and
(b), as would not be expected to have a Material Adverse Effect. For the purposes of this Agreement, “Lien” means
any lien, pledge, charge, claim, mortgage, security interest or other encumbrance of any kind or character whatsoever and
“Permitted Lien” means (a) statutory Liens securing payments not yet due, (b) Liens with respect to the payment
of taxes, in all cases that are not yet due or payable, (c) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen, service providers or workmen and other similar Liens imposed by applicable law created in the
ordinary course of business for amounts that are not yet due and payable, and (d) licenses of or other grants of rights to use or
obligations with respect to intellectual property.
3.4
Consents and Approvals. The execution, delivery and performance by the Company of this Agreement (including, without limitation,
the issuance of the Series A Preferred Stock and Resulting Common Stock) do not require any (a) consent, approval, authorization or other
Order of, action by, filing with or notification to, any Governmental Authority or any other Person under any of the terms, conditions
or provisions of any Law or Order applicable to the Company or by which any of its or their assets or properties may be bound, any contract
or agreement to which the Company is a party or by which the Company may be bound, except for any consent, approval, authorization or
other Order of, action by, filing with or notification to, any Governmental Authority or any other Person under any of the terms, conditions
or provisions of any Law or Order applicable to the Company that, if not made or obtained, would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or (b) shareholder approvals or consents required by the listing rules set forth by the
NYSE.
3.5
Company Capital Structure. The only authorized shares of capital stock of the Company as of the date of this Agreement,
are (a) 355,000,000 shares of Common Stock, of which 140,500,000 shares of Common Stock that are issued and outstanding, and (b) 10,000,000
shares of preferred stock, of which no shares are outstanding as of the date of this Agreement, and assuming filing of the Certificate
of Designation with the Secretary of State of the State of Delaware 5,000,000 of which will be outstanding as of the First Tranche Closing
Date and 10,000,000 of which will be outstanding as of the Second Tranche Closing Date.
3.6
Valid Issuance. The Series A Preferred Stock will be duly authorized, validly issued, fully paid and non-assessable, and
free of all Liens and restrictions on transfer, other than restrictions on transfer under (a) this Agreement, the Company’s certificate
of incorporation, as may be amended, or amended and restated, from time to time in accordance with this Agreement, or the Certificate
of Designation and (b) applicable securities laws, assuming the accuracy of the Purchasers’ representations and warranties set forth
in Section 4, and will not have been issued in violation of or subject to any preemptive or similar rights created under the Company’s
organization documents or under the laws of the state of Delaware.
3.7
SEC Reports; Financial Statements.
(a) Since
June 14, 2021, the Company has filed or otherwise furnished on a timely basis, as applicable, all registration statements,
prospectuses, forms, reports, proxy statements, schedules, statements and documents required to be filed or furnished by it under
the Exchange Act, as the case may be, together with all certifications required pursuant to the Sarbanes-Oxley Act of 2002, as
amended, and the rules and regulations thereunder (collectively, “Sarbanes-Oxley”) (the “SEC
Documents”). As of their respective filing dates, the SEC Documents did not 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 therein, in light
of the circumstances under which they were made, not misleading, and complied as to form with the applicable requirements of the
Exchange Act or the Securities Act, as the case may be, and the applicable regulations of the SEC thereunder and the listing and
corporate governance rules and regulations of the NYSE.
(b)
The audited financial statements of the Company included in the SEC Documents fairly present in all material respects the financial
position and results of operations of the Company as of the dates and for the periods referred to therein in accordance with United States
generally accepted accounting principles applied on a consistent basis during the periods involved.
3.8
Absence of Certain Changes. Since September 30, 2024, and prior to the date hereof, (a) the operations of the Company have
been conducted in the ordinary course of business, and (b) no Material Adverse Effect has occurred.
3.9
Absence of Litigation.
(a)
Other than as disclosed in the SEC Documents, since January 1, 2021, to the knowledge of the Company, there have been no material
Actions against the Company, any of its respective properties or tangible assets or any of its officers or directors (in their capacity
as such) as a party. There is no material outstanding Order, judgment, ruling, arbitral award, or other decision (including provisional
remedies and injunctions) that specifically relates to and binds the Company, any of its respective properties or tangible assets or any
of its officers or directors (in their capacity as such).
(b)
There is no current, pending, or to the knowledge of the Company, threatened, Action of any nature against the Company, arising
out of or relating to the Company’s capacity hereunder. There is no current or pending or, to the knowledge of the Company, threatened
investigation or proceeding, against the Company arising out of or relating to the matters noted in the preceding sentence by or before
any Governmental Agency.
3.10
Anti-Bribery and Corruption; Sanctions and Compliance.
(a)
Sanctions and Trade Laws. Neither the Company, nor any of its directors, officers, employees or agents is a Sanctioned Person
or a Restricted Person.
For the purposes of this
Agreement, “Sanctioned Person” means any Person that is a target of Sanctions, including as a result of being:
(a) listed on any Sanctions list maintained by the United States (including, without limitation, the Treasury’s Office of
Foreign Assets Control and the Department of State), (ii) the European Union, (iii) any European Union member state, (iv) the United
Nations, (v) the United Kingdom or (vi) any other governmental agency of a jurisdiction in which the Company conducts its business;
(b) located, organized or resident in a Sanctioned Jurisdiction; or (c) directly or indirectly owned fifty percent or more or
controlled, individually or in the aggregate, by one or more Persons described in the foregoing clauses (a) or (b);
“Sanctions” means all applicable trade, economic and financial sanctions, embargoes, laws, and restrictive
measures administered, enacted or enforced by (i) the United States (including, without limitation, the Treasury’s Office of
Foreign Assets Control and the Department of State), (ii) the European Union, (iii) any European Union member state, (iv) the United
Nations, (v) the United Kingdom, or (vi) any other governmental agency of a jurisdiction in which the Company or the Purchasers
conduct business; “Restricted Person” means any Person on the U.S. Department of
Commerce’s Entity List, Denied Persons List, Unverified List, or Military End User List or the U.S. Department of
State’s Debarred List; and “Sanctioned Jurisdiction” means a country or territory that is itself the
subject of comprehensive country- or territory-wide Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and
the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine), and the non-government
controlled areas of Ukraine in the oblasts of Kherson and Zaporizhzhia).
(b)
Anti-Corruption Laws. Since January 1, 2021, the Company, its respective officers or directors, (or to the knowledge
of the Company, the Company’s employees or agents) are not in violation of any applicable Anti-Corruption Law or has directly or
knowingly indirectly, made, offered, promised, authorized, accepted or agreed to receive, any unlawful payment, gift, bribe or kickback:
(a) to or for the benefit of any person for the purposes of influencing any official act or decision; (b) to secure any improper
advantage; or (c) to induce any person to do or omit to do any act in violation of the lawful duty of such person; and (d) in
relation to clauses (b) through (c) above, with the intention of winning or retaining business or a business advantage for any person,
including the Company or any of its Affiliates. The Company has established and maintains a compliance program and adequate internal controls
and procedures reasonably designed to ensure that the Company and its respective Affiliates and representatives (to the extent acting
on their behalf) do not violate any Anti-Corruption Laws. The Company, its officers or directors or employees have (i) made any voluntary,
directed or involuntary disclosure to any governmental agency with respect to any actual, alleged or reasonably suspected violation of
any Anti-Corruption Laws, (ii) been the target of a past, current, pending or threatened whistleblower report, or investigation,
or enforcement proceeding by a governmental agency for any actual or alleged violation of Anti-Corruption Laws, or (iii) received
any written or, to the knowledge of the Company, other notice concerning any actual or alleged violation of any Anti-Corruption Laws.
No employee of, or holder of a financial interest in, the Company, their respective Affiliates, is currently a governmental official.
For
the purposes of this Agreement, “Anti-Corruption Laws” means the Foreign Corrupt Practices Act of 1977, as amended,
the United Kingdom Bribery Act of 2010 and any other applicable laws concerning anti-corruption, anti-bribery, or anti-money laundering
of any other jurisdiction in which the Company conducts business, including, without limitation, applicable laws passed pursuant to the
Organization of Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions.
3.11
TUMH Transaction Agreement.
(a)
As of the date hereof, that certain transaction agreement, in the form furnished by the Company with the SEC on a Current Report
on Form 8-K dated as of the date hereof (the “TUMH Transaction Agreement”) is in final or substantially final form.
(b)
If the Second Tranche Closing occurs, as of the date of the Second Tranche Closing, the TUMH Transaction Agreement shall have
been duly executed and delivered by the parties thereto.
3.12
Ownership of Property. The Company has good title to each of the properties and assets material to its business, and all
such properties and assets are free and clear of liens and except as would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
3.13
Securities Exemption. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
4 of this Agreement, no registration under the Securities Act is required for the offer and sale of any of the Series A Preferred
Stock by the Company to the Purchasers. Neither the Company nor any person acting on its behalf has taken any action, directly or indirectly,
including making any offer or sale of any Company security or solicited any offers to buy any security in violation of the Securities
Act or under circumstances that would cause the offer and sale of the Series A Preferred Stock by the Company to the Purchasers contemplated
hereby to fail to be entitled to the exemption from the registration requirements of the Securities Act (other than offers or sales of
securities under an employee benefit plan as defined in Rule 405 under the Securities Act).
3.14
No General Solicitation. Neither the Company nor any person acting on its behalf has engaged or will engage in any form
of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Series
A Preferred Stock in violation of the Securities Act.
3.15
No Broker. Neither the Company nor any person acting on its behalf is under any obligation to pay any broker’s fee or finder’s
fee or commission in connection with the sale of the Series A Preferred Stock.
3.16
Investment Company. The Company is not, and immediately after receipt of payment for the Series A Preferred Stock the Company
will not be, subject to registration as an “investment company” under the Investment Company Act of 1940, as amended.
3.17
Compliance with Laws. The Company is in compliance with all applicable Laws, except where such non-compliance would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. As of the date hereof, the Company has not
received any written communication from a Governmental Authority that alleges that the Company is not in compliance with or is in default
or violation of any applicable Law, except where such non-compliance, default or violation would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
3.18
Environmental Laws. Neither the Company nor any of their respective Facilities (including any facilities of any of their
predecessors) or operations are subject to any outstanding written order, consent decree or settlement agreement with any Person relating
to any Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse Effect,
the Company has not received any letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. § 9604) or any comparable state law. There are and, to the Company’s knowledge, have been, no
conditions, occurrences, or Hazardous Materials Activities which could reasonably be expected to form the basis of an Environmental Claim
against the Company that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor, to the Company’s knowledge, any predecessor of the Company has filed any notice under any Environmental Law indicating
past or present treatment of Hazardous Materials at any Facility (including any facilities of any of their predecessors), and none of
the Company’s operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined
under 40 C.F.R. Parts 260-270 or any state equivalent which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Compliance with all current or reasonably foreseeable future requirements pursuant to or under Environmental
Laws could not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. No event or condition has
occurred or is occurring with respect to the Company relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous
Materials Activity which individually or in the aggregate has had, or could reasonably be expected to have, a Material Adverse Effect.
For the avoidance of doubt, this Section 3.18 shall not apply to any facilities acquired by the Company as contemplated in connection
with the TUMH Transaction.
3.19
Labor Matters. The Company is not engaged in any unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is (a) no unfair labor practice complaint pending or, to the knowledge of the Company, threatened against the Company
before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining
agreement to which the Company is a party is pending or, to the knowledge of the Company, threatened against the Company, (b) no strike
or work stoppage in existence or, to the knowledge of the Company, threatened involving the Company, and (c) to the knowledge of the Company,
no union representation question existing with respect to the employees of the Company and, to the knowledge of the Company, no union
organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually
or in the aggregate) as is not reasonably likely to have a Material Adverse Effect.
Section 4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser represents and warrants to the Company as of
the date hereof and as of the First Tranche Closing Date and, if the Second Tranche Closing occurs, the Second Tranche Closing Date (except
for representations and warranties that are made as of a specific date, which are made only as of such date), as follows:
4.1
Organization and Qualification. Such Purchaser has been duly organized and is validly existing and, except as would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, is in good standing under the laws of its
jurisdiction of organization, with the requisite power and authority to own its properties and conduct its business as currently conducted.
4.2 Authorization;
Enforcement; Validity. Such Purchaser has all necessary corporate, limited liability company or equivalent power and authority
to enter into this Agreement and to carry out, or cause to be carried out, its obligations hereunder in accordance with the terms
hereof. The execution and delivery by such Purchaser of this Agreement and the performance by such Purchaser of its obligations
hereunder have been duly authorized by all requisite action on the part of such Purchaser, and no other action on the part of such
Purchaser is necessary to authorize the execution and delivery by such Purchaser of this Agreement or the consummation of the
transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by such Purchaser, and assuming due
authorization, execution and delivery by the Company, this Agreement constitutes the legal, valid and binding obligation of such
Purchaser, enforceable against such Purchaser in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally and subject to general
principles of equity.
4.3
No Conflicts. The execution, delivery, and performance by such Purchaser of this Agreement do not and will not (a) violate
any provision of the organizational documents of such Purchaser; (b) conflict with or violate any Law or Order applicable to such
Purchaser or any of its respective assets or properties; or (c) violate, conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give
to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which such Purchaser is a party
or to which any of its assets or properties are subject, or result in the creation of any Encumbrance on any of its assets or properties,
except, in the case of clauses (b) and (c), for any such conflict, violation, breach or default that would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
4.4
Consents and Approvals. The execution, delivery and performance by such Purchaser of this Agreement do not require such
Purchaser to obtain any consent, approval, authorization or other Order of, action by, filing with or notification to, any Governmental
Authority or any other Person under any of the terms, conditions or provisions of any Law or Order applicable to such Purchaser or by
which any of its assets or properties may be bound, any contract to which such Purchaser is a party or by which such Purchaser may be
bound, except for any consent, approval, authorization or other Order of, action by, filing with or notification to, any Governmental
Authority or any other Person under any of the terms, conditions or provisions of any Law or Order applicable to such Purchaser that,
if not made or obtained, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect
to such Purchaser.
4.5
Purchaser Representation. (i) Such Purchaser is either (A) a qualified institutional buyer as defined in Rule 144A
of the Securities Act, (B) an accredited investor as defined in Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act,
(C) a non-U.S. person under Regulation S under the Securities Act, or (D) the foreign equivalent of (A) or (B) above, and
(ii) any securities of the Company acquired by such Purchaser under this Agreement will have been acquired for investment and not
with a view to distribution or resale in violation of the Securities Act.
4.6 Sufficient
Funds. Such Purchaser has sufficient assets (or the ability to call sufficient capital from its equityholders) and the financial
capacity to perform all of its obligations under this Agreement, including the ability to fully fund the Total Purchase Price by the
First Tranche Closing.
4.7
Anti-Bribery and Corruption; Sanctions and Compliance.
(a)
Sanctions and Trade Laws. Neither such Purchaser, nor any of its directors, officers, employees or agents is a Sanctioned
Person or a Restricted Person.
(b)
Anti-Corruption Laws. Since January 1, 2021, such Purchaser, its respective officers or directors, (or to the knowledge
of such Purchaser, its employees or agents) are not in violation of any applicable Anti-Corruption Law or has directly or knowingly indirectly,
made, offered, promised, authorized, accepted or agreed to receive, any unlawful payment, gift, bribe or kickback: (a) to or for
the benefit of any person for the purposes of influencing any official act or decision; (b) to secure any improper advantage; or
(c) to induce any person to do or omit to do any act in violation of the lawful duty of such person; and (d) in relation to
clauses (b) through (c) above, with the intention of winning or retaining business or a business advantage for any person, including
such Purchaser or any of its Affiliates. Such Purchaser has established and maintains a compliance program and adequate internal controls
and procedures reasonably designed to ensure that such Purchaser and its respective Affiliates and representatives (to the extent acting
on their behalf) do not violate any Anti-Corruption Laws. Such Purchaser, its officers or directors or employees have (i) made any
voluntary, directed or involuntary disclosure to any governmental agency with respect to any actual, alleged or reasonably suspected violation
of any Anti-Corruption Laws, (ii) been the target of a past, current, pending or threatened whistleblower report, or investigation,
or enforcement proceeding by a governmental agency for any actual or alleged violation of Anti-Corruption Laws, or (iii) received
any written or, to the knowledge of such Purchaser, other notice concerning any actual or alleged violation of any Anti-Corruption Laws.
No employee of, or holder of a financial interest in, the Purchaser or its Affiliates is currently a governmental official.
4.8
Securities Exemption. Neither such Purchaser nor any person acting on its behalf has taken any action, directly or indirectly,
in violation of the Securities Act or under circumstances that would cause the offer and sale of the Series A Preferred Stock by the Company
to such Purchaser contemplated hereby to fail to be entitled to the exemption from the registration requirements of the Securities Act.
Section 5.
ADDITIONAL COVENANTS.
5.1
Commercially Reasonable Efforts. Each of the Company and the Purchasers hereby agrees to use their commercially reasonable
efforts to timely satisfy (if applicable) each of the conditions applicable to such Party under Sections 6 and 7, respectively,
of this Agreement.
5.2
Further Assurances. Each Party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other Party may reasonably request
to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
5.3
Use of Proceeds. The Company shall use the proceeds from the Preferred Equity Offering primarily for working capital and
for general corporate purposes.
5.4
Expenses. The Company shall bear all of its own expenses in connection with the execution, delivery and performance of this
Agreement and the transactions contemplated hereby, including without limitation all fees and expenses of its agents, representatives,
counsel and accountants.
5.5
Public Announcements. No press release or other public announcement related to this Agreement or the transactions contemplated
herein shall be issued or made without the joint approval of the Company and the Purchasers, unless such release or announcement is required
by law or the rules of any securities exchange on which securities of the Company are traded (including, for the avoidance of doubt, any
Current Report on Form 8-K required to be filed by the Company with the SEC describing this Agreement or the transactions contemplated
herein), in which case the Purchasers shall be afforded a reasonable opportunity to review such public announcement prior to publication.
5.6
Registration; Indemnification.
(a)
The Company agrees that as soon as practicable following the First Tranche Closing and in any event within 90 calendar days following
the First Tranche Closing Date, the Company will submit or file with the SEC a registration statement for a shelf registration on Form
S-3 (or Form S-1 if Form S-3 is not available to the Company at such time), covering the resale of (i) the shares of Series A Preferred
Stock (x) issued and sold under the First Tranche and (y) that may be issued and sold under the Second Tranche and (ii) the shares of
Common Stock underlying the Series A Preferred Stock (the “Underlying Shares”) (x) issued and sold under the First
Tranche and (y) that may be issued and sold under the Second Tranche (collectively, the “Registrable Securities”) and
the Company shall use its commercially reasonable efforts to have the registration statement declared effective as soon as practicable
after the filing thereof.
(b)
The Company’s obligations to include either tranche of Registrable Securities in a registration statement are contingent
upon the Purchasers furnishing in writing to the Company such information regarding the Purchasers, the securities of the Company held
by the Purchasers and the intended method of disposition of the Registrable Securities (which shall be limited to non-underwritten public
offerings) as shall be reasonably necessary and requested by the Company to effect the registration of the Registrable Securities, and
the Purchasers shall execute such documents in connection with such registration as the Company may reasonably request that are customary
of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness
or use of the registration statement, if applicable, during any customary blackout or similar period or as permitted hereunder.
(c)
Indemnification.
(i) The
Company shall, notwithstanding any termination of this Agreement, indemnify, defend and hold harmless, to the extent permitted by
law, the Purchasers, their respective directors, officers, members, stockholders, partners and agents, and each person who controls
such the Purchasers (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the directors,
officers, members, stockholders, partners and agents of each such controlling person, to the fullest extent permitted by law, from
and against all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable and documented
outside attorneys’ fees) (collectively, “Losses”) that arise out of, are based upon, or caused by any untrue or
alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any registration statement
(“Prospectus”) or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except insofar as the same are based upon, or caused by, or contained in
any information or affidavit so furnished in writing to the Company by or on behalf of the Purchasers expressly for use therein.
(ii)
In connection with any registration statement in which the Purchasers are participating, the Purchasers shall furnish (or cause
to be furnished) to the Company in writing such necessary information and affidavits as the Company reasonably requests for use in connection
with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors, officers,
members, stockholders, partners and agents and each person or entity who controls the Company (within the meaning of the Securities Act)
and the directors, officers, members, stockholders, partners and agents of each such controlling person, against any losses, claims, damages,
liabilities and expenses (including, without limitation, reasonable and documented outside attorneys’ fees) resulting from any untrue
statement of material fact contained or incorporated by reference in any registration statement, Prospectus or preliminary Prospectus
or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under which they were made not misleading, but only to the
extent that such untrue statement or omission is contained (or not contained in, in the case of an omission) in any information or affidavit
so furnished in writing by on behalf of the Purchasers expressly for use therein.
(iii)
Any person or entity entitled to indemnification herein shall (A) 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
or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) unless
in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to
the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel
for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such
claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into
any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant
to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified
party or which 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.
(iv)
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, member, stockholder or agent, or controlling person of such indemnified
party and shall survive the transfer of securities.
(v)
If the indemnification provided under this Section 5.6(c) from the indemnifying party is unavailable or insufficient to
hold harmless an indemnified party in respect of any Losses, 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 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 not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case
of an omission), 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 referred to above shall be deemed to include, subject to the limitations set forth in Sections 5.6(c)(i), (ii)
and (iii) 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(c)(v) from any person or entity who was not guilty of such fraudulent misrepresentation.
5.7
Most Favored Nation. In the event that (a) the Company exercises the Second Tranche Option, and (b) between the date of
this Agreement and one year following the Second Tranche Closing Date, the Company has issued any shares of preferred stock with a conversion
price for converting into shares of Common Stock that is lower than the conversion price set out in the Certificate of Designation and
that would otherwise be applicable to the Second Tranche (such lower conversion price being referred to as the “Lower Conversion
Price”), the Company shall make such amendment as is necessary to the terms of the Second Tranche so that the conversion price
applicable to the Second Tranche is no higher than the Lower Conversion Price. In no event shall the Lower Conversion Price be below
$1.05.
5.8
Stock Exchange Listing. The Company shall cause the Series A Preferred Stock and the Underlying Shares to be issued pursuant
to this Agreement to be approved for listing on the NYSE.
Section 6.
CONDITIONS TO THE PURCHASERS’ OBLIGATIONS.
6.1
The obligations of the Purchasers to consummate the First Tranche and the transactions related thereto pursuant to this Agreement
on the First Tranche Closing Date shall be subject to the satisfaction at or prior to the First Tranche Closing Date of each of the following
conditions, any one or more of which may be waived in writing by the Purchasers:
(a)
Representations and Warranties. All of the Representations made by the Company in this Agreement shall be true and correct
in all respects as of the First Tranche Closing Date as though made on and as of the First Tranche Closing Date (except to the extent
such representations and warranties expressly speak as of an earlier date, in which case such representations and warranties shall be
true and correct as of such date).
(b)
Performance of First Tranche Closing Actions. The Company shall have performed each of the First Tranche Closing Actions
required to be performed by it at the First Tranche Closing.
(c)
No Legal Impediment to Issuance; No Material Adverse Effect. No Law or Order shall have become effective or been enacted,
adopted or issued by any Governmental Authority that prohibits the implementation of this Agreement or the transactions contemplated herein,
and no Material Adverse Effect shall have occurred.
(d)
TUMH Transaction Closing. Subject to the terms of the TUMH Transaction Agreement, the closing of the TUMH Transaction and
the transactions contemplated thereby shall have occurred on or prior to the First Tranche Closing Date substantially in accordance with
the terms of the TUMH Transaction Agreement substantially in the form furnished by the Company with the SEC on a Current Report on Form
8-K dated as of the date hereof (without any material amendments or alterations).
(e)
Certificate of Designation. The Certificate of Designation substantially in the form of Exhibit C shall have been
filed with the Secretary of State of the State of Delaware.
6.2
If the Second Tranche Closing Option is exercised, the obligations of the Purchasers to consummate the Second Tranche and the
related transactions thereto pursuant to this Agreement on the Second Tranche Closing Date shall be subject to the satisfaction at or
prior to the Second Tranche Closing Date of each of the following conditions, any one or more of which may be waived in writing by the
Purchasers:
(a)
Representations and Warranties. All of the Representations made by the Company in this Agreement shall be true and correct
in all respects as of the Second Tranche Closing Date as though made on and as of the Second Tranche Closing Date (except to the extent
such representations and warranties expressly speak as of an earlier date, in which case such representations and warranties shall be
true and correct as of such date).
(b)
Performance of Second Tranche Closing Actions. The Company shall have performed each of the Second Tranche Closing Actions
required to be performed by it at the Second Tranche Closing.
(c)
No Legal Impediment to Issuance; No Material Adverse Effect. No Law or Order shall have become effective or been enacted,
adopted or issued by any Governmental Authority that prohibits the implementation of this Agreement or the transactions contemplated herein,
and no Material Adverse Effect shall have occurred.
(d)
TUM 2 Final Investment Decision. The Company shall have proceeded with its final investment decision with regard to the
TUM 2 facility.
(e)
Registration Statement. In accordance with Section 5.6(a) the Company shall have submitted or filed with the SEC
a registration statement for a shelf registration on Form S-3 (or Form S-1 if Form S-3 is not available to the Company at such time),
covering the resale of the Registrable Securities and such registration statement shall have become effective under the Securities Act,
and no stop order suspending the effectiveness of the registration statement shall have been issued.
(f)
Maintenance of Listing. The Underlying Shares and Series A Preferred Stock (i) shall be listed on the NYSE and (ii) shall
not have been suspended by the SEC or the NYSE from trading on the NYSE.
Section 7.
CONDITIONS TO THE COMPANY’S OBLIGATIONS.
7.1
The obligations of the Company to issue and sell to the Purchasers the Series A Preferred Stock with respect to the First Tranche
and the related transactions pursuant to this Agreement shall be subject to the satisfaction at or prior to the First Tranche Closing
Date of each of the following conditions, any one or more of which may be waived in writing by the Company:
(a)
Representations and Warranties. All of the Representations made by the Purchasers in this Agreement shall be true and correct
in all respects as of the First Tranche Closing Date as though made on and as of the First Tranche Closing Date (except to the extent
such representations and warranties expressly speak as of an earlier date, in which case such representations and warranties shall be
true and correct as of such date).
(b)
Performance of First Tranche Closing Actions. The Purchasers shall have performed each of the First Tranche Closing Actions
required to be performed by it at the First Tranche Closing.
(c)
No Legal Impediment to Issuance. No Law or Order shall have become effective or been enacted, adopted or issued by any Governmental
Authority that prohibits the implementation of this Agreement or the transactions contemplated by this Agreement.
7.2
If the Second Tranche Closing occurs, the obligations of the Company to issue and sell to the Purchasers the Series A Preferred
Stock with respect to the Second Tranche and the related transactions thereto pursuant to this Agreement shall be subject to the satisfaction
at or prior to the Second Tranche Closing Date of each of the following conditions, any one or more of which may be waived in writing
by the Company:
(a)
Representations and Warranties. All of the Representations made by the Purchasers in this Agreement shall be true and correct
in all respects as of the Second Tranche Closing Date as though made on and as of the Second Tranche Closing Date (except to the extent
such representations and warranties expressly speak as of an earlier date, in which case such representations and warranties shall be
true and correct as of such date).
(b)
Performance of Second Tranche Closing Actions. The Purchasers shall have performed each of the Second Tranche Closing Actions
required to be performed by it at the Second Tranche Closing.
(c)
No Legal Impediment to Issuance. No Law or Order shall have become effective or been enacted, adopted or issued by any
Governmental Authority that prohibits the implementation of this Agreement or the transactions contemplated by this Agreement.
Section 8.
TERMINATION.
8.1
Termination. This Agreement may be terminated and the transactions contemplated herein may be abandoned, (x) with respect
to the First Tranche Closing, at any time prior to the First Tranche Closing or (y) with respect to the Second Tranche Closing, at any
time prior to the Second Tranche Closing, only as follows:
(a)
with respect to both the First Tranche and the Second Tranche, by mutual written agreement of the Company and the Purchasers;
(b)
by the Company or the Purchasers if a Governmental Authority of competent jurisdiction has enacted, issued, promulgated, enforced
or entered any applicable Law or any final non appealable Order permanently enjoining or otherwise prohibiting the Preferred Equity Offering
has been issued by a Governmental Authority of competent jurisdiction; provided, however, that the right to terminate this
Agreement under this Section 8.1(b) will not be available to any Party whose actions resulted in any applicable Law or Order that
had the effect of restraining, enjoining or otherwise prohibiting the Preferred Equity Offering;
(c)
by the Company, if it is not in material breach of its obligations under this Agreement and there has been a breach of, or inaccuracy
in, any representation, warranty, covenant or agreement of the Purchasers such that (i) with respect to the First Tranche Closing, the
conditions set forth in Section 7.1(a) or Section 7.1(b), or (ii) if the Second Tranche Closing occurs, with respect to
the Second Tranche Closing, the conditions set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied as of the
time of such breach or inaccuracy and such breach or inaccuracy has not been cured within five (5) Business Days after written notice
thereof to the Purchasers; provided, however, that no cure period shall be required (x) for a breach or inaccuracy which
by its nature cannot be cured or (y) if any of the conditions to (xx) the First Tranche Closing in Section 7.1(a) and Section
7.1(b) or, as applicable, (yy) the Second Tranche Closing in Section 7.2(a) and Section 7.2(b) for the benefit of the
Company are incapable of being satisfied on or before with respect to the First Tranche Closing, the First Tranche Closing, or with respect
to the Second Tranche Closing, the Second Tranche Closing; or
(d)
by the Purchasers, if it is not in material breach of their obligations under this Agreement and there has been a breach of, or
inaccuracy in, any representation, warranty, covenant or agreement of the Company such that (i) with respect to the First Tranche Closing,
the conditions set forth in Section 6.1(a), Section 6.1(a) or Section 6.1(c) (with respect to the reference to Material
Adverse Effect only), or (ii) if the Second Tranche Closing occurs, with respect to the Second Tranche Closing, the conditions set forth
in Section 6.2(a), Section 6.2(b) or Section 6.2(c) (with respect to the reference to Material Adverse Effect only)
would not be satisfied as of the time of such breach or inaccuracy and such breach or inaccuracy has not been cured within five (5) Business
Days after written notice thereof to the Company; provided, however, that no cure period shall be required (x) for a breach
or inaccuracy which by its nature cannot be cured or (y) if any of the conditions to (xx) the First Tranche Closing in Section 6.1(a)
or Section 6.1(a) or, as applicable (yy) the Second Tranche Closing in Section 6.2(a) or Section 6.2(b) for the benefit
of the Seller are incapable of being satisfied on or before with respect to the First Tranche Closing, the First Tranche Closing, or with
respect to the Second Tranche Closing, the Second Tranche Closing.
8.2
Effect of Termination. Any valid termination of this Agreement under Section 8.1 will be effective (subject to the
cure periods provided above) immediately upon the delivery of a valid written notice of the terminating Party to the other Party. In the
event of termination of this Agreement as provided in Section 8.1, this Agreement and all rights and obligations hereunder
shall forthwith become void and there shall be no liability or obligation on the part of the Company, the Purchasers, or their respective
representatives; provided, however, that each of the Purchasers and Company hereto shall remain liable for any fraud or any willful
and material breach of this Agreement occurring prior to such termination, in which case the aggrieved Party shall be entitled to all
remedies available at law or in equity. Notwithstanding the foregoing, the provisions of Sections 8 and 9, (in each case
including the respective meanings ascribed to the capitalized terms used in such Sections as defined in this Agreement), shall remain
in full force and effect and survive any termination of this Agreement pursuant to the terms of this Section 8.
Section 9.
MISCELLANEOUS.
9.1
Payments. All payments made by or on behalf of the Company or any of their Affiliates to the Purchasers or their respective
assigns, successors or designees pursuant to this Agreement shall be without withholding, set-off, counterclaim or deduction of any kind,
except as required under applicable Law.
9.2
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the Preferred Equity Offering and any
other transactions described in this Agreement are an arm’s-length commercial transaction between the Parties and (ii) the
Purchasers have not assumed nor will it assume an advisory or fiduciary responsibility in the Company’s favor with respect to any
of the transactions contemplated by this Agreement or the process leading thereto, and the Purchasers have no obligation to the Company
with respect to the transactions contemplated by this Agreement except those obligations expressly set forth in this Agreement or the
Offering Documents to which it is a party.
9.3
Survival. The representations, warranties, covenants, agreements and obligations of the Parties shall survive the First
and Second Tranche Closings as follows (each such survival period, a “Survival Period”):
(i) (x) with respect to the First Tranche, the representations and warranties made by each Party in this Agreement in connection
with the First Tranche shall survive the First Tranche Closing until the first anniversary of the First Tranche Closing and, (y) if the
Second Tranche Closing occurs, with respect to the Second Tranche, the representations and warranties made by each Party in this Agreement
in connection with the Second Tranche shall survive the Second Tranche Closing until the first anniversary of the Second Tranche Closing
and (ii) the covenants, agreements, obligations and other undertakings of the Parties shall survive, the First Tranche Closing, and,
as applicable, the Second Tranche Closing until fully performed in accordance with their terms.
9.4
No Waiver of Rights. All waivers hereunder must be made in writing, and the failure of any Party at any time to require
another Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance
of that obligation. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or
succeeding breach of such provision or a waiver or modification of any other provision.
9.5
Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given
or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by an internationally recognized overnight
courier service, by email or registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the
following addresses (or at such other address for any Party as shall be specified by such Party in a notice given in accordance with this
Section 9.5).
| (a) | If to the Company, to: |
FREYR Battery, Inc.
6&8 East Court Square, Suite 300
Newnan, Georgia 30263
Attention: Compliance Officer
Email: compliance-officer@freyrbattery.com
With a copy (which shall not constitute notice to the Company)
to:
Skadden, Arps, Slate,
Meagher & Flom (UK) LLP
22 Bishopsgate
London, EC2N 4BQ, United Kingdom
Attention: Denis Klimentchenko and
Danny Tricot
Email: denis.klimentchenko@skadden.com; danny.tricot@skadden.com
| (b) | If to the Purchasers, to: |
Encompass Capital Advisors LLC
200 Park Avenue, 16th Floor Suite 1604,
New York, NY 10166
Attention: Syed Kazmi, CFO
Email: finance@encompasscap.com
With a copy (which shall not constitute notice to the Company)
to:
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, NY 10019
Attention: Mitchell Raab
Email: mraab@olshanlaw.com
Any of the foregoing addresses
may be changed by giving notice of such change in the foregoing manner, except that notices for changes of address shall be effective
only upon receipt.
9.6
Headings. The section and subsection headings in this Agreement are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
9.7 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such
determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties 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.
9.8
Entire Agreement. This Agreement and the agreements and documents referenced herein constitute the entire agreement of the
Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, between
the Parties with respect to the subject matter hereof.
9.9
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective
successors and permitted assigns in accordance with Section 2.7; provided, however, that any such permitted transferee,
as a condition precedent to such transfer, becomes a Party to this Agreement and assumes the obligations of the Purchasers with respect
to the transferred shares under this Agreement by an addendum substantially in the form set forth in Exhibit A (the “Addendum”)
and an assumption agreement in substantially the form set forth in Exhibit B hereto (the “Assumption
Agreement”) and deliver the same to the Company in accordance with Section 9.5, and provided, further,
that with respect to a transfer to an Affiliate of the Purchasers, the Purchasers either (i) shall have provided an adequate equity
support letter or a guarantee of such Affiliate-transferee’s obligations, in form and substance reasonably acceptable to the Company
or (ii) shall remain fully obligated to fund the Purchase Price. Any transfer that is made in violation of the immediately preceding
sentence shall be null and void ab initio, and the Company shall have the right to enforce the voiding of such transfer.
9.10
No Third-Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the Parties and their
respective successors and permitted assigns and, except as expressly set forth in Sections 2.7 and 9.9, nothing herein, express
or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever.
9.11
Amendment. This Agreement may not be altered, amended, or modified except by a written instrument executed by or on behalf
of the Company and the Purchasers.
9.12
Governing Law. This Agreement, and all claims, causes of action (whether in contract, tort or statute) or other matter that
may result from, arise out of, be in connection with or relating to this Agreement, or the negotiation, administration, performance, or
enforcement of this Agreement, including any claim or cause of action resulting from, arising out of, in connection with, or relating
to any representation or warranty made in or in connection with this Agreement, shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Delaware, without giving effect to any choice or conflict of laws provision, rule, or principle
(whether of the State of Delaware or any other jurisdiction) that would result in the application of the laws of any other jurisdiction.
9.13 Consent
to Jurisdiction. Each of the Parties (a) irrevocably consents to the service of the summons and complaint and any other process
(whether inside or outside the territorial jurisdiction of the Chosen Courts (as defined below)) in any Action based on, arising out
of or relating to this Agreement or the transactions contemplated hereby, for and on behalf of itself or any of its properties or
assets, in accordance with Section 9.13 or in such other manner as may be permitted by applicable law, and nothing in this Section
9.13 shall affect the right of any party to serve legal process in any other manner permitted by applicable law; (b) irrevocably
and unconditionally consents and submits itself and its properties and assets in any Action to the exclusive general jurisdiction of
the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the
Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any other state or federal
court within the State of Delaware) (the “Chosen Courts”) in the event that any dispute or controversy based on,
arising out of or relating to this Agreement or the transactions contemplated hereby; (c) agrees that it shall not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from any such court; (d) agrees that any Action based on,
arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought, tried and determined only in
the Chosen Courts; (e) waives any objection that it may now or hereafter have to the venue of any such Action in the Chosen Courts
or that such Action was brought in an inconvenient court and agrees not to plead or claim the same; and (f) agrees that it shall not
bring any Action based on, arising out of or relating to this Agreement or the transactions contemplated hereby in any court other
than the Chosen Courts. Each of the Company and the Purchasers agrees that a final judgment in any Action in the Chosen Courts shall
be conclusive and may be enforced in other jurisdictions, either within or outside of the U.S., by suit on the judgment or in any
other manner provided by applicable law. A certified or exemplified copy of such award or judgment shall be conclusive evidence of
the fact and amount of such award or judgment. With respect to any Action for which it has submitted to jurisdiction pursuant to
this Section 9.13, each party irrevocably consents to service of process in the manner provided for the giving of notices
pursuant to Section 9.5. Nothing in this Section 9.13 shall affect the right of any party to serve process in any
other manner permitted by law. The foregoing consent to jurisdiction shall not (x) constitute submission to jurisdiction or general
consent to service of process in the State of Delaware for any purpose except with respect to any Action based on, arising out of or
relating to this Agreement or the transactions contemplated hereby or (y) be deemed to confer rights on any Person other than the
parties.
9.14
Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO, BASED ON OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION (WHETHER
FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF, BASED ON OR RELATING TO THIS AGREEMENT OR
THE TRANSACTION. EACH PARTY ACKNOWLEDGES AND AGREES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (ii) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.14.
9.15
Currency. Unless otherwise specified in this Agreement, all references to currency, monetary values and dollars set forth
herein shall mean United States (U.S.) dollars and all payments hereunder shall be made in United States dollars.
9.16
Counterparts; Execution.
(a)
This Agreement shall become effective upon the execution and delivery of a duly executed counterpart hereof by each of the parties
hereto. Each of the Parties may execute this Agreement by electronic means and recognizes and accepts the use of electronic signatures
and records by any other party hereto in connection with the execution and storage hereof. The words “execution,” “signed,”
and “signature,” shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state laws based on the Uniform
Electronic Transactions Act.
(b)
This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together,
shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Agreement by electronic transmission (i.e.,
a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof.
9.17
Specific Performance. Each Party acknowledges that, in view of the uniqueness of the securities referenced herein and the
transactions contemplated by this Agreement, the other Party would not have an adequate remedy at law for money damages in the event that
this Agreement has not been performed in accordance with its terms, and therefore agrees that the other Party shall be entitled to specific
performance and injunctive or other equitable relief, without the necessity of proving the inadequacy of monetary damages as a remedy.
9.18
Waiver of Consequential Damages. Notwithstanding any provision in this Agreement to the contrary, in no event shall any
Party or its Affiliates, or their respective managers, members, shareholders or representatives, be liable hereunder at any time for punitive,
incidental, consequential special or indirect damages, including loss of future profits, revenue or income, or loss of business reputation
of any other Party or any of its Affiliates, whether in contract, tort (including negligence), strict liability or otherwise, and each
Party hereby expressly releases each other Party, its Affiliates, and their respective managers, members, shareholders, partners, consultants,
representatives, successors and assigns therefrom.
9.19 Rules
of Construction. The Parties and their respective legal counsel participated in the preparation of this Agreement, and
therefore, this Agreement shall be construed neither against nor in favor of any of the Parties, but rather in accordance with the
fair meaning thereof. All definitions set forth in this Agreement are deemed applicable whether the words defined are used in this
Agreement in the singular or in the plural, and correlative forms of defined terms have corresponding meanings. The term
“including” is not limiting and means “including without limitation.” The term “or” has, except
where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,”
“herein,” “hereby,” “hereunder” and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section, subsection, clause, schedule, annex and exhibit references are
to this Agreement unless otherwise specified. Any reference to this Agreement shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, and supplements thereto and thereof, as applicable. Whenever the
context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
[No further text appears; signature pages follow]
IN WITNESS WHEREOF, the Parties
have executed this Agreement as of the day and year first above written.
|
FREYR BATTERY, INC. |
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By: |
/s/ Daniel Barcelo |
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Name: |
Daniel Barcelo |
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Title: |
Authorized Signatory |
[Signature Page –
Preferred Stock Purchase Agreement]
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PURCHASERS |
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[***] |
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By: |
[***] |
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By: |
/s/ Syed Kazmi |
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Name: |
Syed Kazmi |
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Title: |
Chief Financial Officer |
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[***] |
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By: |
[***] |
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By: |
/s/ Syed Kazmi |
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Name: |
Syed Kazmi |
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Title: |
Chief Financial Officer |
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[***] |
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By: |
[***] |
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By: |
/s/ Syed Kazmi |
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Name: |
Syed Kazmi |
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Title: |
Chief Financial Officer |
[Signature Page –
Preferred Stock Purchase Agreement]
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PURCHASERS (CONTINUED) |
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[***] |
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By: |
[***] |
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By: |
/s/ Syed Kazmi |
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Name: |
Syed Kazmi |
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Title: |
Chief Financial Officer |
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[***] |
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By: |
[***] |
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By: |
/s/ Syed Kazmi |
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Name: |
Syed Kazmi |
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Title: |
Chief Financial Officer |
[Signature Page –
Preferred Stock Purchase Agreement]
Exhibit A
ADDENDUM
Reference is made to that
certain Convertible Series A Preferred Stock Purchase Agreement (as amended, modified or supplemented from time to time, the “Agreement”)
by and between FREYR Battery, Inc., a Delaware corporation (“FREYR”), and
the Purchaser parties thereto, or any successor(s) thereof. Each capitalized term used but not defined herein shall have the meaning given
to it in the Agreement.
Upon execution and delivery
of this Addendum by the undersigned, as provided in Section 9.9 of the Agreement, the undersigned hereby becomes the Purchaser
with respect to [●] shares of Series A Preferred Stock, as applicable thereunder and bound thereby effective as of the date of the
Agreement.
By executing and delivering
this Addendum, the undersigned represents and warrants, for itself and for the benefit of the Company, that:
| (a) | as of the date of this Addendum, the undersigned has executed and delivered an Assumption and Joinder
Agreement therefor (a copy of which is attached to this Addendum); |
| (b) | as of the date of this Addendum, with respect to each transferee that (i) is an individual, such
transferee has all requisite authority to enter into this Addendum and to carry out the transactions contemplated by, and perform its
respective obligation under, the Agreement and (ii) is not an individual, such transferee is duly organized, validly existing, and
in good standing under the laws of the state of its organization, and has all requisite corporate, partnership, or limited liability company
power and authority to enter into this Addendum and to carry out the transactions contemplated by, and perform its respective obligations
under, the Agreement; |
| (c) | assuming the due execution and delivery of the Agreement by FREYR, the Addendum and the Agreement are
legally valid and binding obligations of it, enforceable against it in accordance with its terms, except as may be limited by bankruptcy,
insolvency or similar laws, or by equitable principles relating to or limiting creditors’ rights generally; and |
| (d) | as of the date of this Addendum, it is not aware of any event that, due to any fiduciary or other duty
to any other person, would prevent it from taking any action required of it under the Agreement and this Addendum. |
By executing and delivering
this Addendum to FREYR, the undersigned agrees to be bound by all the terms of the Agreement with respect to [●] shares of Series
A Preferred Stock.
The undersigned acknowledges
and agrees that once delivered to FREYR, it may not revoke, withdraw, amend, change or modify this Addendum unless the Agreement has been
terminated.
THIS ADDENDUM SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
This Addendum may be executed
in one or more counterparts, each of which, when so executed, shall constitute the same instrument and the counterparts may be delivered
by facsimile transmission or by electronic mail in portable document format (.pdf).
[Signature on Following Page]
IN WITNESS WHEREOF, the Parties
have caused this Addendum to be duly executed and delivered by their proper and duly authorized officers as of this [●] day of [●].
|
TRANSFEREE WHO BECOMES THE PURCHASER |
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[NAME] |
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as a Purchaser |
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Name: |
Exhibit B
ASSUMPTION AND JOINDER AGREEMENT
Reference is made to (i) that
certain Convertible Series A Preferred Stock Purchase Agreement (as amended, modified or supplemented from time to time, the “Agreement”),
dated as of [●], 2024, by and between FREYR Battery, Inc., a Delaware corporation (“FREYR”),
and the Purchaser parties thereto, or any successor(s) thereof, and (ii) that certain Addendum, dated as of [●], [●]
(the “Transferor Addendum”) submitted by [●], as transferor (the “Transferor”).
Each capitalized term used but not defined herein shall have the meaning given to it in the Agreement.
As a condition precedent to
becoming the Purchaser with respect to [●] shares of Series A Preferred Stock, the undersigned (the “Transferee”)
hereby agrees to become bound by all the terms, conditions and obligations set forth in the Agreement and the Transferor Addendum, copies
of which are attached hereto as Annex I. This Assumption and Joinder Agreement shall take effect and shall become an integral
part of the Agreement and the Transferor Addendum immediately upon its execution, and the Transferee shall be deemed to be bound by all
of the terms, conditions and obligations of the Agreement and the Transferor Addendum as of the date thereof. The Transferee shall hereafter
be deemed to be the “Purchaser” with respect to [●] shares of Series
A Preferred Stock and a “Party” for all purposes under the Agreement.
[Signatures on Following Page]
IN WITNESS WHEREOF, this Assumption
and Joinder Agreement has been duly executed by each of the undersigned as of the date specified below.
Date: [●]
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Name of Transferor |
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Name of Transferee |
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Authorized Signatory of Transferor |
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Authorized Signatory of Transferee |
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(Type or Print Name and Title of Authorized Signatory) |
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(Type or Print Name and Title of Authorized Signatory) |
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Address of Transferee: |
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Attn: |
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Tel: |
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Fax: |
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E-mail: |
Exhibit C
FORM OF CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
[see attached]
FORM OF CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
FREYR BATTERY, INC.
FREYR BATTERY, INC., a Delaware
corporation (the “Corporation”), certifies that, pursuant to the authority contained in Article Fourth of its Amended
and Restated Certificate of Incorporation, as amended prior to the date hereof (the “Certificate of Incorporation”),
and in accordance with the provisions of Section 151 of the Delaware General Corporation Law (the “DGCL”), the board
of directors of the Corporation (the “Board of Directors”) duly approved and adopted on November ____, 2024 the following
resolution, which resolution remains in full force and effect on the date hereof:
WHEREAS, the Certificate of
Incorpor