Exhibit 5.1

 

 

 

  767 Fifth Avenue
New York, NY 10153-0119
+1 212 310 8000 tel
+1 212 310 8007 fax

     

[●], 2021

 

Churchill Capital Corp IV

640 Fifth Avenue, 12th Floor

New York, NY, 10019

 

Ladies and Gentlemen:

 

We have acted as counsel to Churchill Capital Corp IV, a Delaware corporation (the “Company”), in connection with the preparation and filing with the U.S. Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-4, File No. 333-254543 (as amended and together with all exhibits thereto, the “Registration Statement”), under the Securities Act of 1933, as amended (the “Act”), relating to, among other things, (i) the issuance of 1,215,000,000 shares of Class A common stock, par value $0.0001 per share, of the Company (the “Shares”) pursuant to and in connection with the Business Combination (as defined below) contemplated by, that certain Agreement and Plan of Merger, dated as of February 22, 2021 (as it may be amended from time to time, the “Agreement”), by and among the Company, Air Merger Sub, Inc., a Delaware corporation and direct, wholly owned subsidiary of the Company (“Merger Sub”), and Ateiva, Inc., d/b/a Lucid Motors, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Lucid”), and (ii) the proposal of the Company to consummate the transactions set forth in the Agreement, including the merger of Merger Sub with and into Lucid, with Lucid continuing as the surviving entity (the “Business Combination”).

 

In so acting, we have prepared or examined originals or copies (certified or otherwise identified to our satisfaction) of: (i) the Registration Statement; (ii) the Agreement; (iii) the Company’s amended and restated certificate of incorporation; (iv) the Company’s proposed second amended and restated certificate of incorporation; (v) the bylaws of the Company; and (vi) the Company’s proposed amended and restated bylaws. We have also examined originals or copies (certified or otherwise identified to our satisfaction) of such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.

 

 

In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company and upon the representations and warranties of the Company contained in the Agreement.

 

Based on the foregoing, and subject to the limitations, qualifications and assumptions stated herein, we are of the opinion that the Shares will be, upon issuance, duly authorized and, when the Registration Statement has been declared effective under the Act by order of the Commission, and if and when the Shares have been issued upon the terms and conditions set forth in the Registration Statement and the Agreement, the Shares will be validly issued, fully paid and non-assessable.

 

The opinions expressed herein are limited to the laws of the State of New York and the corporate laws of the State of Delaware, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.

 

We hereby consent to the use of this letter as Exhibit 5.1 to the Registration Statement and to any and all references to our firm under the heading “Legal Matters” in the proxy statement/prospectus which is a part of the Registration Statement. In giving such consent we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.

 

Very truly yours,

 

Weil, Gotshal & Manges LLP

 

 

 

 

 

Exhibit 10.22

 

INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement (this “Agreement”), made and entered into as of the ____ day of ______, 20__, by and between Lucid Group, Inc, a Delaware corporation (the “Company”) and _________ (“Indemnitee”).

 

W I T N E S S E T H:

 

WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors or officers unless they are provided with adequate protection through insurance or adequate indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the corporation.

 

WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself.

 

WHEREAS, the Second Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”) provides that the Company shall indemnify and advance expenses to all directors and officers of the Company in the manner set forth therein and to the fullest extent permitted by applicable law, and the Certificate of Incorporation provides for limitation of liability for directors. In addition, Indemnitee may be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (“DGCL”). The Certificate of Incorporation and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the Board, officers and other persons with respect to indemnification.

 

WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons.

 

 

WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future.

 

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified.

 

WHEREAS, this Agreement is a supplement to and in furtherance of the Certificate of Incorporation and Amended and Restated By-laws of the Company (the “Bylaws”) and any resolutions adopted pursuant thereto and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

WHEREAS, Indemnitee may not regard the protection available under the Certificate of Incorporation, Bylaws and Company insurance as adequate in the present circumstances, and may not be willing to serve as an officer or director of the Company without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he or she be so indemnified.

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

 

Article 1
Certain Definitions

 

(a) As used in this Agreement:

 

“Change of Control” means the occurrence of any of the following events on or after the date of this Agreement:

 

(i)       A change in the composition of the Board occurs, as a result of which fewer than one-half of the incumbent directors are directors who either:

 

(1)        had been directors of the Company on the “look-back date” (as defined below) (the “Original Directors”); or

 

(2)        were elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the aggregate of the Original Directors who were still in office at the time of the election or nomination and the directors whose election or nomination was previously so approved (the “Continuing Directors”);

 

 

provided, however, that for this purpose, the “Original Directors” and “Continuing Directors” shall not include any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board;

 

(ii)       Any “person” (as defined below) who by the acquisition or aggregation of securities, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities ordinarily (and apart from rights accruing under special circumstances) having the right to vote at elections of directors (the “Base Capital Stock”); except that (i) any change in the relative beneficial ownership of the Company’s securities by any person resulting solely from a reduction in the aggregate number of outstanding shares of Base Capital Stock, and any decrease thereafter in such person’s ownership of securities, shall be disregarded until such person increases in any manner, directly or indirectly, such person’s beneficial ownership of any securities of the Company and (ii) increases in beneficial ownership of the Company by any person that, as of the date hereof, holds 50% or more of the combined voting power of the Base Capital Stock shall be disregarded;

 

(iii)       The consummation of a merger or consolidation of the Company or a Subsidiary of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization 50% or more of the voting power of the outstanding securities of each of (A) the Company (or its successor) and (B) any direct or indirect Company corporation of the Company (or its successor); or

 

(iv)       The sale, transfer, or other disposition of all or substantially all of the Company’s assets.

 

For purposes of this definition, the term “look-back” date means the later of (1) the date hereof; or (2) the date that is 24 months prior to the date of the event that may constitute a Change of Control.

 

For purposes of this definition, the term “person” shall have the same meaning as when used in Sections 13(d) and 14(d) of the Exchange Act, but shall exclude (1) a trustee or other fiduciary holding securities under an employee benefit plan maintained by the Company, and (2) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the shares of stock in the Company.

 

 

Any other provision of this definition notwithstanding, a transaction shall not constitute a Change of Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction, and a Change of Control shall not be deemed to occur if the Company files a registration statement with the United States Securities and Exchange Commission in connection with an initial or secondary public offering of securities or debt of the Company to the public.

 

“Corporate Status” means the status of a person who is or was a director, officer, trustee, general partner, managing member, fiduciary, board of directors’ committee member, employee or agent of the Company or of any other Enterprise.

 

“Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

 

“Enterprise” means the Company, any of its subsidiaries, branches, offices, affiliates, and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise of which, in each case, Indemnitee is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, board of directors’ committee member, employee or agent.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Expenses” means all direct and indirect costs (including attorneys’ fees, retainers, court costs, transcripts, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses) reasonably incurred in connection with (i) prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding or (ii) establishing or enforcing a right to indemnification under this Agreement, the Certificate of Incorporation, applicable law or otherwise. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent. For the avoidance of doubt, Expenses, however, shall not include any Liabilities.

 

 

“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the five years previous to its selection or appointment has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under similar indemnification agreements) or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

 

“Liabilities” means any losses or liabilities, including any judgments, fines, excise taxes and penalties, penalties and amounts paid in settlement, arising out of or in connection with any Proceeding (including all interest, assessments and other charges paid or payable in connection with or in respect of any such judgments, fines, excise taxes and penalties, penalties or amounts paid in settlement).

 

“Proceeding” means any threatened, pending or completed action, derivative action, suit, claim, counterclaim, cross claim, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether civil (including intentional and unintentional tort claims), criminal, administrative or investigative, including any appeal therefrom, and whether instituted by or on behalf of the Company or any other party, or any inquiry or investigation that Indemnitee in good faith believes might lead to the institution of any such action, suit or other proceeding hereinabove listed in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of any Corporate Status of Indemnitee, or by reason of any action taken (or failure to act) by him or her or of any action (or failure to act) on his or her part while serving in any Corporate Status.

 

(b)            For the purposes of this Agreement:

 

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

 

 

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

 

Reference to “including” shall mean “including, without limitation,” regardless of whether the words “without limitation” actually appear, references to the words “herein,” “hereof” and “hereunder” and other words of similar import shall refer to this Agreement as a whole and not to any particular paragraph, subparagraph, section, subsection or other subdivision.

 

Article 2
Services By Indemnitee

 

Section 2.01. Services By Indemnitee. Indemnitee hereby agrees to serve or continue to serve as a director, officer or key employee of the Company, for so long as Indemnitee is duly elected or appointed or until Indemnitee tenders his or her resignation or is removed.

 

Article 3
Indemnification

 

Section 3.01. General. (a) The Company hereby agrees to and shall indemnify Indemnitee and hold Indemnitee harmless from and against any and all Expenses and Liabilities, in either case, actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf by reason of Indemnitee’s Corporate Status, to the fullest extent permitted by applicable law. The Company’s indemnification obligations set forth in this Section 3.01 shall apply (i) in respect of Indemnitee’s past, present and future service in any Corporate Status and (ii) regardless of whether Indemnitee is serving in any Corporate Status at the time any such Expense or Liability is incurred.

 

For purposes of this Agreement, the meaning of the phrase “to the fullest extent permitted by applicable law” shall include, but not be limited to:

 

(i)            to the fullest extent permitted by any provision of the DGCL, or the corresponding provision of any successor statute, and

 

(ii)            to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.

 

 

(b) Witness Expenses. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he or she shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection therewith.

 

(c) Expenses as a Party Where Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by applicable law, to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such Proceeding, but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the fullest extent permitted by applicable law, indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

Section 3.02. Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:

 

(a)            for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law or (ii) any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act); or

 

(b)            except as otherwise provided in Section 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (other than any cross claim or counterclaim asserted by the Indemnitee), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.

 

 

Article 4
Advancement Of Expenses; Defense of Claims

 

Section 4.01. Advances. Notwithstanding any provision of this Agreement to the contrary, the Company shall advance any Expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding within twenty (20) days after the receipt by the Company of each statement requesting such advance from time to time, whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay such amounts and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed.

 

Section 4.02. Repayment of Advances or Other Expenses. Indemnitee agrees that Indemnitee shall reimburse the Company for all Expenses advanced by the Company pursuant to ‎Section 4.01, in the event and only to the extent that it shall be determined by final judgment or other final adjudication under the provisions of any applicable law (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee is not entitled to be indemnified by the Company for such Expenses.

 

Section 4.03. Defense of Claims. The Company will be entitled to participate in the Proceeding at its own expense. The Company shall be entitled to assume the defense of any Proceeding with counsel consented to by Indemnitee (such consent not to be unreasonably withheld) upon the delivery by the Company to Indemnitee of written notice of the Company’s election to do so. After delivery of such notice, consent to such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of counsel subsequently incurred by Indemnitee with respect to such Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in respect of any Proceeding at Indemnitee’s expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company or (B) Indemnitee shall have reasonably concluded upon the advice of counsel that there is a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding, then in each such case the fees and expenses of Indemnitee’s counsel shall be at the Company’s expense. The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent, such consent not to be unreasonably withheld. Indemnitee shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, fine, penalty or limitation on the Company without the Company’s prior written consent, such consent not to be unreasonably withheld.

 

 

Article 5
Procedures For Notification of and Determination of Entitlement To Indemnification

 

Section 5.01. Notification; Request For Indemnification. (a) As soon as reasonably practicable after receipt by Indemnitee of written notice that he or she is a party to or a participant (as a witness or otherwise) in any Proceeding or of any other matter in respect of which Indemnitee intends to seek indemnification or advancement of Expenses hereunder, Indemnitee shall provide to the Company written notice thereof, including the nature of and the facts underlying the Proceeding. The omission by Indemnitee to so notify the Company will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise.

 

(b)            To obtain indemnification under this Agreement, Indemnitee shall deliver to the Company a written request for indemnification, including therewith such information as is reasonably available to Indemnitee and reasonably necessary to determine Indemnitee’s entitlement to indemnification hereunder. Such request(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Indemnitee’s entitlement to indemnification shall be determined according to Section 5.02 of this Agreement and applicable law.

 

Section 5.02. Determination of Entitlement. (a) Where there has been a written request by Indemnitee for indemnification pursuant to ‎Section 5.01(b), then as soon as is reasonably practicable (but in any event not later than 60 days) after final disposition of the relevant Proceeding, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within twenty (20) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification).

 

 

 

(b)            If entitlement to indemnification is to be determined by Independent Counsel pursuant to ‎Section 5.02(a)(ii), such Independent Counsel shall be selected by Indemnitee, and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If entitlement to indemnification is to be determined by Independent Counsel pursuant to ‎Section 5.02(a)(i)(C) (or if Indemnitee requests that such selection be made by the Board), such Independent Counsel shall be selected by the Company in which case the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to ‎Section 5.01(b) hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under ‎Section 5.02(a) hereof. Upon the due commencement of any judicial proceeding pursuant to ‎Section 6.01(a) of this Agreement, the Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

 

(c)            The Company agrees to pay the reasonable fees and expenses of any Independent Counsel serving under this Agreement.

 

Section 5.03. Presumptions and Burdens of Proof; Effect of Certain Proceedings. (a) In making any determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with ‎Section 5.01(b) of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of any person, persons or entity to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by any person, persons or entity that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(b)            If the person, persons or entity empowered or selected under ‎Section 5.02 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within the sixty (60) day period referred to in Section 5.02(a), the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto.

 

(c)            The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

 

 

(d)            For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is in good faith reliance on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this ‎Section 5.03(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.

 

(e)            The knowledge and/or actions, or failure to act, of any other director, trustee, partner, managing member, fiduciary, officer, agent or employee of any Enterprise shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.

 

Article 6
Remedies of Indemnitee

 

Section 6.01. Adjudication. (a) In the event of any dispute between Indemnitee and the Company hereunder as to entitlement to indemnification or advancement of Expenses (including where(i) a determination is made pursuant to ‎Section 5.02 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to ‎Section 4.01 of this Agreement, (iii) payment of indemnification pursuant to ‎Section 3.01 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, (iv) no determination as to entitlement to indemnification is timely made pursuant to Section 5.02 of this Agreement and no payment of indemnification is made within twenty (20) days after entitlement is deemed to have been determined pursuant to Section 5.03(b)) or (v) a contribution payment is not made in a timely manner pursuant to Section 8.04 of this Agreement, then Indemnitee shall be entitled to an adjudication by a court of his or her entitlement to such indemnification, contribution or advancement.

 

(b)            In the event that a determination shall have been made pursuant to ‎Section 5.02(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this ‎Section 6.01 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding commenced pursuant to this ‎Section 6.01 the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination pursuant to ‎Section 5.02(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding pursuant to this ‎Section 6.01, Indemnitee shall not be required to reimburse the Company for any advances pursuant to ‎Section 4.02 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed).

 

 

(c)            If a determination shall have been made pursuant to ‎Section 5.02(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding pursuant to this ‎Section 6.01, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

 

(d)            The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this ‎Section 6.01 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

 

(e)            The Company shall indemnify Indemnitee to the fullest extent permitted by law against all Expenses and, if requested by Indemnitee, shall (within twenty (20) days after the Company’s receipt of such written request) advance such Expenses to Indemnitee, which are reasonably incurred by Indemnitee in connection with any judicial proceeding brought by Indemnitee for (i) indemnification or advances of Expenses by the Company (or otherwise for the enforcement, interpretation or defense of his or her rights) under this Agreement or any other agreement, including any other indemnification, contribution or advancement agreement, or any provision of the Certificate of Incorporation or By-laws now or hereafter in effect or (ii) recovery or advances under any directors’ and officers’ liability insurance policy maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, contribution, advancement or insurance recovery, as the case may be.

 

Article 7
Directors’ and Officers’ Liability Insurance

 

Section 7.01. D&O Liability Insurance. The Company shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with reputable insurance companies providing liability insurance for directors and officers of the Company in their capacities as such (and for any capacity in which any director or officer of the Company serves any other Enterprise at the request of the Company), in respect of acts or omissions occurring while serving in such capacity.

 

Section 7.02. Evidence of Coverage. Upon request by Indemnitee, the Company shall provide copies of all policies of D&O Liability Insurance obtained and maintained in accordance with Section 7.01 of this Agreement. The Company shall promptly notify Indemnitee of any changes in such insurance coverage.

 

 

Article 8
Miscellaneous

 

Section 8.01. Nonexclusivity of Rights. The rights of indemnification, contribution and advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled to under applicable law, the Certificate of Incorporation, the By-laws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

Section 8.02. Insurance and Subrogation. (a) Indemnitee shall be covered by the Company’s D&O Liability Insurance in accordance with its or their terms to the maximum extent of the coverage available for any director or officer under such policy or policies. If, at the time the Company receives notice of a claim hereunder, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company under this Agreement.

 

(b)            In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

(c)            The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided) hereunder if and to the extent that Indemnitee has actually received such payment under any insurance policy or other indemnity provision.

 

Section 8.03 The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, fiduciary, board of directors’ committee member, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise.

 

 

Section 8.04. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).

 

Section 8.05. Amendment. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the parties hereto. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit, restrict or reduce any right of Indemnitee under this Agreement in respect of any act or omission, or any event occurring, prior to such amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute or judicial decision, (i) permits greater indemnification, contribution or advancement of Expenses than would be afforded currently under the Certificate of Incorporation and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change or (ii) limits rights with respect to indemnification, contribution or advancement of Expenses, it is the intent of the parties hereto that the rights with respect to indemnification, contribution or advancement of Expenses in effect prior to such change shall remain in full force and effect to the extent permitted by applicable law.

 

Section 8.06. Waivers. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term only by a writing signed by the party against which such waiver is to be asserted. Unless otherwise expressly provided herein, no delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

 

Section 8.07. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are superseded by this Agreement, provided that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation and By-laws and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

 

Section 8.08. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

 

Section 8.09. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing (which may be by facsimile transmission). All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. The address for notice to a party is as shown on the signature page of this Agreement, or such other address as any party shall have given by written notice to the other party as provided above.

 

Section 8.10. Binding Effect. (a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company.

 

(b)            This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and executors, administrators, personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all, or a substantial part of the business or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

 

(c)            The indemnification, contribution and advancement of Expenses provided by, or granted pursuant to this Agreement shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors, administrators, legatees and assigns of such a person.

 

Section 8.11. Governing Law. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.

 

Section 8.12. Consent To Jurisdiction. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

 

Section 8.13. Headings. The Article and Section headings in this Agreement are for convenience of reference only, and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

 

Section 8.14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

 

Section 8.15. Use of Certain Terms. As used in this Agreement, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular paragraph, subparagraph, section, subsection, or other subdivision. Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be effective as of the date first above written.

  

	COMPANY
	By:
		Name:
		Title:
	Address:
	Attention:
	With a copy to:
	Address:
	Attention:
	INDEMNITEE
	Address:
	With a copy to:
	Address:
	Attention:

 

 

 

Exhibit 10.23

 

March 29, 2021

 

Peter Rawlinson

 

Re: Transaction Bonus

 

Dear Peter:

 

The Board of Directors of Atieva, Inc. d/b/a Lucid Motors (the “Company”) has approved a transaction bonus payable to you in connection with the closing (“Closing”) of the transactions (the “SPAC Transaction”) contemplated by the Agreement and Plan of Merger, dated February 22, 2021, by and among Churchill Capital Corp IV, a Delaware corporation (the “SPAC”), a new wholly-owned subsidiary of the SPAC and the Company, subject to the terms and conditions of this letter agreement.

 

Conditional upon and subject to the Closing of the SPAC Transaction, you will receive a bonus in the amount of $2,000,000, less all applicable withholdings and deductions required by law (the “Transaction Bonus”).

 

You will be eligible to receive the Transaction Bonus if all of the following eligibility criteria are satisfied:

 

1.

You execute and return this letter agreement to Michael Carter by March 31, 2021.

 

2.

You remain employed with the Company through the Closing.

 

3.

You have not given notice of your intent to resign from employment on or before the Closing.

 

If you are eligible to receive the Transaction Bonus, it will be paid to you on the Company’s first regularly scheduled pay date after the date of the Closing, but in no event later than thirty (30) days following the date of the Closing.

 

Your employment remains at-will, meaning that you and the Company may terminate the employment relationship at any time, with or without cause, and with or without notice.

 

This letter agreement and the Transaction Bonus are intended to comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) and shall be construed and administered in accordance with Section 409A.

 

This letter agreement contains all of the understandings and representations between the Company and you relating to the Transaction Bonus and supersedes all prior and contemporaneous understandings, discussions, agreements, representations, and warranties, both written and oral, with respect to any Transaction Bonus.

 

 

This letter agreement, and all matters arising out of or relating to this letter agreement, whether sounding in contract, tort, or statute for all purposes shall be governed by and construed in accordance with the laws of the State of California (including its statutes of limitations), without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply.

 

This letter agreement may not be amended or modified, except by an express written agreement signed by both you and a duly authorized officer of the Company.

 

[signature on next page]

 

 

We ask that you please sign and date this letter agreement and return an executed copy to Michael Carter no later than March 31, 2021 at MichaelCarter@lucidmotors.com.

 

	Sincerely,
	ATIEVA, INC.
	By:	/s/ Michael Carter
	Title: Vice President of People

 

AGREED TO AND ACCEPTED BY:
Peter Rawlinson
Peter Rawlinson
By:	/s/ Peter Rawlinson
Date:	March 29, 2021

 

ATIEVA, INC.

SIGNATURE PAGE TO LETTER AGREEMENT

 

 

Exhibit 10.24

 

Atieva, Inc.
Notice of Restricted Stock Unit Grant
(2021 Stock Incentive Plan)

 

Atieva, Inc. (the “Company”), pursuant to its 2021 Stock Incentive Plan, as amended and restated from time to time (the “Plan”), hereby awards to Participant (as of the date indicated below) a Restricted Stock Unit Award for the number of shares of Common Stock (the “Shares”) set forth below (the “Award”). The Award is subject to all of the terms and conditions as set forth herein and in the Plan and the Restricted Stock Unit Award Agreement (collectively, the “Agreement”), both of which are attached hereto and incorporated herein in their entirety. Capitalized terms not otherwise defined herein will have the meanings set forth in the Plan or the Agreement. In the event of any conflict between the terms in the Award and the Plan, the terms of the Plan will control.

 

Participant:	Peter Rawlinson
Date of Grant:	March 27, 2021
Vesting Commencement Date:	The date of the Closing of the SPAC Transaction (each as defined below)
Number of Restricted Stock Units (“RSUs”) Subject to Award:	11,293,177

 

Vesting Schedule:		Participant will receive a benefit with respect to an RSU only if it vests. Two vesting requirements must be satisfied in order for an RSU to vest — (i) a Liquidity Event Requirement and (ii) as applicable, (A) a Time-Based Requirement or (B) a Performance-Based Requirement as set forth below.  Except as set forth below under the section entitled “Accelerated Vesting upon Change in Control,” an RSU shall not vest unless both the Liquidity Event Requirement is satisfied and either the Performance-Based Requirement or the Service-Based Requirement applicable to such RSU is satisfied.  An RSU shall actually vest (and therefore becomes a “Vested RSU”) on the first date upon which both the Liquidity Event Requirement and either the Performance-Based Requirement or the Service-Based Requirement applicable to such RSU are satisfied with respect to that particular RSU (the “Vesting Date”).
Liquidity Event Requirement:		The Liquidity Event Requirement will be satisfied as to any then-outstanding RSUs upon the date of the closing (“Closing”) of the transactions (the “SPAC Transaction”) contemplated by the Agreement and Plan of Merger, dated February 22, 2021, by and among Churchill Capital Corp IV, a Delaware corporation (the “SPAC,” and the SPAC or its successor entity following the Closing of the SPAC Transaction, “PubCo”), a new wholly-owned subsidiary of the SPAC and the Company (the “Merger Agreement”), provided Participant remains in continuous Service through the Closing.
Closing Requirement:		Notwithstanding anything to the contrary in this Agreement, to the extent that the Closing does not occur or the Merger Agreement is terminated, all of the RSUs contemplated by this Agreement shall be immediately forfeited for no consideration and this Agreement shall be immediately terminated. For the avoidance of doubt, upon the Closing, the number of RSUs subject to the Award will be adjusted on the same basis as other Atieva, Inc. restricted stock unit awards in the SPAC Transaction in accordance with and subject to the terms of the Merger Agreement.

 

 

Time-Based Requirement:		5,232,507 of the RSUs are subject to a Time-Based Requirement (the “Time-Based RSUs”).  The Time-Based requirement will be satisfied in installments as follows, in each case, provided that Participant remains in continuous Service through each such Company Vesting Date: 1/16 of the Time-Based RSUs will have the Time-Based Requirement satisfied on the first “Company Vesting Date” (as defined below) to occur at least two full months following the Vesting Commencement Date, and 1/16 of the RSUs will have the Time-Based Requirement satisfied on each subsequent Company Vesting Date thereafter until all Time-Based RSUs have met the Time-Based Requirement.  “Company Vesting Date” means March 5, June 5, September 5, and December 5 of each calendar year (provided, that to the extent any of the Company Vest Dates falls on a weekend or Company holiday, that Company Vesting Date instead will be the immediately following business day thereafter).  For the avoidance of doubt, except as specifically provided in this Grant Notice, once the Participant’s Service terminates for any reason, no additional RSUs will be deemed to have the Time-Based Requirement satisfied with respect to such RSUs.
Performance-Based Requirement:		6,060,670 of the RSUs are subject to the Performance-Based Requirements in tranches (each a “Tranche”), as set forth below. The Performance-Based RSUs (as defined below) will satisfy such Performance-Based Requirements on the first Certification Date (as defined below) upon which the Committee determines that the applicable Six-Month Market Capitalization Target (as defined below) has been satisfied on or before such Certification Date, in each case provided Participant remains in continuous Service through such Certification Date, except as specifically provided below. For the avoidance of doubt, notwithstanding that any applicable Six-Month Market Capitalization Target is achieved with respect to any Tranche or Tranches, the date the applicable Performance-Based Requirement will be deemed satisfied and the associated Tranche or Tranches of Performance-Based RSUs will be deemed vested with respect to the Performance-Based Requirement will be the applicable Certification Date and, except as specifically provided below, will be subject to Participant’s continuous Service through such Certification Date.
		The “Six-Month Market Capitalization Target” shall be the target Six-Month Market Capitalization amount applicable to each Tranche of Performance-Based RSUs as set forth below.
		Performance-Based RSUs (Tranche 1) – 1,317,537 of the Performance-Based RSUs (the “Performance-Based RSUs (Tranche 1)”) will have a Six-Month Market Capitalization Target of $23,500,000,000;

 

 

		Performance-Based RSUs (Tranche 2) – 1,317,537 of the Performance-Based RSUs (the “Performance-Based RSUs (Tranche 2)”) will have a Six-Month Market Capitalization Target of $35,250,000,000;   Performance-Based RSUs (Tranche 3) – 1,317,537 of the Performance-Based RSUs (the “Performance-Based RSUs (Tranche 3)”) will have a Six-Month Market Capitalization Target of $47,000,000,000;   Performance-Based RSUs (Tranche 4) – 1,317,537 of the Performance-Based RSUs (the “Performance-Based RSUs (Tranche 4)”) will have a Six-Month Market Capitalization Target of $58,750,000,000;   Performance-Based RSUs (Tranche 5) – 790,522 of the Performance-Based RSUs (the “Performance-Based RSUs (Tranche 5)”) will have a Six-Month Market Capitalization Target of $70,500,000,000;   “Performance-Based RSUs” refers, collectively, to the Performance-Based RSUs (Tranche 1), the Performance-Based RSUs (Tranche 2), the Performance-Based RSUs (Tranche 3), the Performance-Based RSUs (Tranche 4), and the Performance-Based RSUs (Tranche 5).   For purposes of this Award, the Six-Month Market Capitalization is determined as follows:
			i.	The “Six-Month Market Capitalization” means, as of any date (a “Determination Date”) an amount equal to (x) the Six-Month VWAP multiplied by (y) the average of the total number of outstanding shares of PubCo common stock reported in a public filing with the U.S. Securities and Exchange Commission for the two most recently completed quarterly reporting periods, to the extent each such number of outstanding shares has been reported in a public filing. To the extent a quarterly period has been completed but the number of outstanding shares of PubCo common stock for such completed quarterly period has not been reported in a public filing, the foregoing average will be determined based on the most recently completed quarterly periods for which such number of shares have been reported.
			ii.	Six-Month VWAP means the volume weighted average trading price per share of PubCo common stock measured over any rolling six calendar month period occurring after the Closing but within the Performance Period.
			iii.	Notwithstanding the foregoing, upon the closing of any Qualified Financing, provided Participant remains in continuous service through such Closing, the Six-Month Market Capitalization Target applicable to any Tranche that has not previously satisfied the Performance-Vesting Requirement will be deemed to be satisfied and the Performance-Based RSUs in such Tranche shall immediately vest as of the closing of such Qualified Financing, if (i) the per share equity financing price multiplied by (ii) the number of outstanding shares of PubCo common stock as of immediately following the closing of such Qualified Financing, equals or exceeds the dollar amount of the Six-Month Market Capitalization Target applicable to such Tranche. For the avoidance of doubt, (i) no Certification shall be required for the vesting of any Tranche pursuant to the preceding sentence and (iii) if any Tranche does not vest in connection with a Qualified Financing, it will remain outstanding and eligible to vest pursuant to this Agreement.

 

 

			iv.	Qualified Financing means a private financing or public offering of PubCo common stock, in each case with cumulative gross cash proceeds equal to or in excess of $1,000,000,000 and occurring after the Closing.
		The Six-Month Market Capitalization Targets set forth in the foregoing Performance-Based Requirements may be further adjusted by the Committee following the Closing to account for any subdivision of the outstanding PubCo shares, declaration of a dividend payable in PubCo shares of common stock, declaration of a dividend payable in a form other than PubCo shares of common stock in an amount that has a material effect on the price of a PubCo share of common stock, a merger, combination or consolidation of the outstanding PubCo shares of common stock (by reclassification or otherwise) into a lesser number of PubCo shares of common stock, a recapitalization, an acquisition, a spin-off or a similar occurrence, in each case that occurs following the Closing.
		The performance period to achieve the applicable Six-Month Market Capitalization Targets will begin on the date of the Closing and end on the fifth (5th) anniversary of the date of the Closing (the “Performance Period”).
		The Committee shall, no less frequently than quarterly, review whether Six-Month Market Capitalization Targets with respect to any Tranches have been satisfied on or prior to the date of such review (the date of each such review, a “Certification Date”). In addition, the Committee shall in all events hold a Certification Date (i) within thirty (30) days following the end of the Performance Period, and (ii) within the period set forth below in connection with termination of Participant’s Service without Cause or due to Constructive Termination. The date that any Tranche is deemed to satisfy the Performance-Based Requirement will be the first Certification Date upon which the Committee has determined that the Six-Month Market Capitalization Target has been achieved. For the avoidance of doubt, any Tranche of the Performance-Vesting RSUs shall be forfeited to the extent that the Six-Month Market Capitalization Target applicable to such Tranche of RSUs has not been achieved on or before the last day of the Performance Period, and any Performance-Vesting RSUs that have not satisfied the Performance-Based Requirements as of the next-occurring Certification Date after the end of the Performance Period shall terminate in accordance with Section 2 of the Agreement.

 

 

Vesting upon Termination of Service without Cause or due to Constructive Termination

Time-Vesting Requirement: No additional vesting terms.   Performance-Vesting Requirement: Notwithstanding anything to the contrary in this Agreement, upon termination of Participant’s Service by the Company without Cause or by Participant due to Constructive Termination, in each case not in connection with a Change in Control and on or before the last day of the Performance Period, provided Participant signs and delivers to the Company an effective release of claims in a form provided by the Company within the period set forth in such release of claims, but in no event later sixty (60) days following such termination of Service, any Performance-Based RSUs that have not yet vested as of the date of such termination will remain outstanding and will vest to the extent that the applicable Six-Month Market Capitalization Target has been met as of the earlier of (i) the date that is six-months following such termination of Participant’s Service or (ii) the end of the Performance Period. The Committee shall review and determine whether the Six-Month Market Capitalization Target applicable to such remaining unvested Performance-Based RSUs has been satisfied on the next-occurring Certification Date; provided, however that the Committee will hold such Certification Date no later than the earlier of (i) March 1 of the year following the year in which such Six-Month Market Capitalization Target is achieved and (ii) sixty (60) days following the end of such extended vesting period. Any such Performance-Based RSUs that have not satisfied the Performance-Based Requirement as of such Certification Date shall be immediately cancelled and forfeited for no consideration.

 

Accelerated Vesting upon Change in Control

Time-Vesting Requirement: Notwithstanding anything to the contrary in this Agreement, (i) if Participant remains in continuous Service through the closing of a Change in Control and any unvested Time-Based RSUs outstanding as of immediately prior to the Change in Control are not continued, assumed or substituted for as permitted by Section 12(d) of the Plan in connection with the Change in Control, or if Participant’s Service terminates due to an involuntary termination by the Company without Cause or due to Participant’s Constructive Termination at any time within the period beginning thirty (30) days prior to the closing of the Change in Control and ending on the closing of the Change in Control (provided that such Change in Control closes and becomes effective), then the remaining Time-Based RSUs will vest as of the closing of the Change in Control (and the RSUs will remain outstanding to the extent necessary to satisfy such accelerated vesting), or (ii) if the unvested Time-Based RSUs are continued, assumed or substituted for as permitted by Section 12(d) of the Plan in connection with a Change in Control, and if upon or within twelve (12) months after the closing of such Change in Control, Participant’s Service terminates due to an involuntary termination by the Company without Cause or due to Participant’s Constructive Termination, then the remaining Time-Based RSUs subject to the Time-Based Requirement will vest in full upon such termination of Service. As a condition to the receipt of the foregoing accelerated vesting upon termination of Participant’s Service, Participant must sign and deliver to the Company an effective release of claims in a form provided by the Company within the period set forth in such release of claims, but in no event later than sixty (60) days following such termination of Service (or if earlier, the date of the Change in Control).

 

 

		Performance-Vesting Requirement: Notwithstanding anything to the contrary in this Agreement, upon the occurrence of a Change in Control on or before the last day of the Performance Period, subject to Participant’s continuous Service through the date of the Change in Control, any Performance-Based RSUs that have not yet vested as of the date of the Change in Control shall be deemed to have satisfied the Performance-Based Requirement to the extent the Change in Control Value in connection with the Change in Control equals or exceeds the Six-Month Market Capitalization dollar threshold applicable to such Tranche of the Performance-Based RSUs. For this purpose, the “Change in Control Value” shall equal the product of (a) the total number of PubCo shares of common stock outstanding immediately prior to the effective time of such Change in Control, as reported by the Company’s transfer agent, and (b) the per share price (plus the per share value of any other consideration) received by PubCo’s stockholders in the Change in Control. For the avoidance of doubt, provided such condition is met, such Performance-Based RSUs will be deemed to have vested upon the closing of the Change in Control without any requirement for certification by the Committee. To the extent that any Performance-Based RSUs have not satisfied such Performance-Based Requirement as of immediately before the effective time of the Change in Control and otherwise do not satisfy the applicable Performance-Based Requirement as a result of the Change in Control, such unvested Shares will be forfeited automatically as of the effective time of the Change in Control and will never become vested.
Defined Terms and No Acceleration under Severance Plan:		For purposes of this Agreement, the following terms shall have the following meanings:   “Cause” means (i) Participant’s willful failure substantially to perform his duties and responsibilities to the Company or deliberate violation of a Company policy; (ii) Participant’s commission of any act of fraud, embezzlement, dishonesty or any other willful misconduct that has caused or is reasonably expected to result in material injury to the Company; (iii) unauthorized use or disclosure by Participant of any proprietary information or trade secrets of the Company or any other party to whom Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company; or (iv) Participant’s willful breach of any of his obligations under any written agreement or covenant with the Company. The determination as to whether Participant is being terminated for Cause shall be made in good faith by the Company and shall be final and binding on Participant, provided the decision is neither arbitrary nor capricious. The foregoing definition does not in any way limit the Company’s ability to terminate Participant’s employment or consulting relationship at any time, and the term “Company” will be interpreted to include any Subsidiary or Affiliate, as appropriate.

 

 

		“Constructive Termination” means Participant resigns because one of the following events or actions is undertaken without Participant’s written consent:
		(i)          a reduction of 20% or more in Participant’s annual base salary (unless pursuant to a salary reduction program applicable to all similarly situated employees);   (ii)        solely in connection with a resignation occurring within 30 days prior to or 12 months after a Change in Control, a non-temporary relocation of Participant’s business office to a location that increases Participant’s one-way commute by more than 50 miles from the primary location at which Participant performed duties at the time of Constructive Termination;   (iii)         a material breach by the Company or any successor entity of any employment agreement between the Company and Participant; or   (iv)        a material reduction of Participant’s duties, authority or responsibilities relative to Participant’s duties, authority or responsibilities as in effect immediately prior to such reduction, provided that such a “reduction” shall not be deemed to occur if Participant’s duties, authority and responsibilities with respect to the successor subsidiary or division of the parent entity following a Change in Control are substantially similar to Participant’s duties, authority and responsibilities with respect to the business of the Company immediately prior to the Change in Control, and provided further that a mere change of title shall not constitute such a reduction.
		An event or action will not give Participant grounds for Constructive Termination unless (A) Participant gives the Company written notice within 30 days after the initial existence of the event or action that Participant intends to resign in a Constructive Termination due to such event or action; (B) the event or action is not reasonably cured by the Company within 30 days after the Company receives written notice from Participant; and (C) Participant’s termination of employment occurs within 90 days after the end of the cure period.
		Participant hereby agrees that, notwithstanding the terms of the Atieva USA, Inc. Severance Benefit Plan (the “Severance Plan”) and Participant’s participation in and eligibility for benefits under such plan, this Award and the RSUs shall not be subject to any additional acceleration of vesting pursuant to the terms of the Severance Plan or any subsequent severance plan or arrangement adopted by or implemented by Atieva USA, Inc., any of its Parents, Subsidiaries or Affiliates or any of their successors.

 

 

Settlement:		If an RSU vests as provided for above, the Company will deliver one Share for each Vested RSU. The Shares will be issued in accordance with the schedule set forth in Section 5 of the Restricted Stock Unit Award Agreement.
Acknowledgement of Vesting Terms:		Participant understands that unless otherwise specifically provided to the contrary in Participant’s employment agreement, Participant’s employment or consulting relationship with the Company is for an unspecified duration and can be terminated at any time (i.e., is “at-will”), and that nothing in this Notice of Restricted Stock Unit Grant, the Restricted Stock Unit Award Agreement or the Plan changes the at-will nature of that relationship. Participant acknowledges that the vesting of the RSUs pursuant to this Notice of Restricted Stock Unit Grant is conditioned on the occurrence of the Liquidity Event Requirement and the satisfaction of either the Time-Based Requirement or the Performance-Based Requirement. Participant will have no right with respect to the RSUs to the extent the Liquidity Event Requirement does not occur (regardless of the extent to which the applicable Time-Based Requirement or Performance-Based Requirement was satisfied).

 

Additional Terms/Acknowledgements: Participant acknowledges receipt of, and understands and agrees to, this Notice of Restricted Stock Unit Grant (the “Grant Notice”), the Agreement and the Plan. Participant further acknowledges that as of the Date of Grant, this Grant Notice, the Agreement and the Plan set forth the entire understanding between Participant and the Company regarding this Award and supersede all prior oral and written agreements, offer letters, promises and/or representations on that subject with the exception of (i) equity awards previously granted and delivered to Participant and (ii) any compensation recovery policy that is adopted by the Company or is otherwise required by applicable law.

 

By accepting the Award, Participant acknowledges having received and read the Grant Notice, the Agreement, and the Plan (the “Grant Documents”) and agrees to all of the terms and conditions set forth in the Grant Documents. Furthermore, by accepting the Award, Participant consents to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company. 

 

Atieva, Inc.			Participant
By:	/s/ Michael Carter		By:	/s/ Peter Rawlinson
Signature			Signature

 

Name & Title:

Michael Carter, VP People

Date:

April 4, 2021

 

Date:

March 31, 2021

 

Attachments: Restricted Stock Unit Award Agreement, 2021 Stock Incentive Plan

 

 

 

 

Atieva, Inc.
Restricted Stock Unit Award Agreement
(2021 Stock Incentive Plan)

 

Pursuant to the Notice of Restricted Stock Unit Grant (the “Grant Notice”) and this Restricted Stock Unit Award Agreement (collectively, the “Agreement”), Atieva, Inc. (the “Company”) has awarded you a Restricted Stock Unit (“RSU”) Award (the “Award”) under its 2021 Stock Incentive Plan, as amended and restated from time to time (the “Plan”). The Award is granted to you effective as of the Date of Grant set forth in the Grant Notice. Capitalized terms not explicitly defined in this Agreement will have the same meanings given to them in the Plan and Grant Notice. In the event of any conflict between the terms in this Agreement and the Plan, the terms of the Plan will control. The details of the Award, in addition to those set forth in the Grant Notice and the Plan, are as follows.

 

1. Grant of the Award. The Award represents the right to be issued on a future date the number of Shares as indicated in the Grant Notice upon the satisfaction of the terms set forth in this Agreement. Except as otherwise provided herein, you will not be required to make any payment to the Company with respect to your receipt of the Award, the vesting of the RSUs, or the delivery of the underlying Shares.

 

2. Vesting/Termination. Subject to the limitations contained herein, the Award will vest in accordance with the vesting schedule provided in the Grant Notice, subject to your continuous Service through the applicable vesting dates and events, except as otherwise provided in the Grant Notice. Upon termination of your Service, except as otherwise provided in the Grant Notice, any RSUs that have not satisfied, on or prior to the date of such termination, both the Liquidity Event Requirement and the applicable Time-Based Requirement or Performance-Based Requirement, will be terminated and forfeited at no cost to the Company. Further, if the Merger Agreement is terminated in accordance with its terms and the Liquidity Event Requirement does not occur, all RSUs (regardless of whether or not, or the extent to which, the applicable Time-Based Requirement or Performance-Based Requirement had been satisfied as to such RSUs) will automatically terminate and be forfeited at no cost to the Company upon the date the Merger Agreement is terminated. Upon the termination of one or more RSUs pursuant to this Section 2, you will have no further right, title or interest with respect to such RSUs or the underlying Shares.

 

For purposes of this Award, termination of Service will be deemed to occur as of the date you are no longer actively providing services as an Employee, Consultant or Outside Director (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or providing services or the terms of your employment or service agreement, if any) and will not be extended by any notice period (e.g., your period of employment or service will not include any contractual notice period or period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are employed or the terms of your employment or service agreement, if any); the Committee shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Award.

 

3. Number of Shares. The RSUs subject to the Award may be adjusted from time to time for capitalization adjustments and corporate transactions as provided in Section 12 of the Plan. Notwithstanding the foregoing, no fractional Shares or rights for fractional Shares will be created pursuant to such adjustments, and the Committee will, in its discretion, determine an equivalent benefit for any fractional Shares that might be created by such adjustments.

 

 

4. Securities Law and Other Compliance. You may not be issued any Shares under the Award unless either (a) the Shares are registered under the Securities Act; or (b) the Company has determined that such issuance would be exempt from the registration requirements of the Securities Act. The Award also must comply with other Applicable Laws and regulations governing the Award, and you will not receive such Shares if the Company determines that such receipt would not be in material compliance with such laws and regulations. The Company will have no liability for failure to issue or deliver any Shares pursuant to this Award unless such issuance or delivery would comply with Applicable Laws, with such compliance determined by the Company in consultation with its legal counsel. Furthermore, the Applicable Laws of the country in which you are residing or working at the time of grant, vesting, and/or settlement of this Award (including any rules or regulations governing securities, foreign exchange, tax, labor or other matters) may restrict or prevent settlement of this Award. As a condition to the Award, the Company may require you to make any representation and warranty as may be required by Applicable Laws. For purposes of this Agreement and the Award, Applicable Laws means all applicable federal, state, local and foreign laws, rules, regulations and requirements, including, but not limited to, all applicable U.S. federal or state laws and any stock exchange rules or regulations, as such laws, rules, and regulations shall be in effect from time to time.

 

5. Settlement of RSUs. Subject to the satisfaction of any withholding obligations for Tax-Related Items set forth in Section 14 of this Agreement, the Company will deliver to you a number of Shares equal to the number of Vested RSUs subject to the Award, including any additional Shares received pursuant to Section 3 above that relate to those Vested RSUs, on a date determined by the Company, in its sole and absolute discretion, on or after the applicable Vesting Date(s) as provided in the Grant Notice, but in no event later than March 15^th of the year following the year in which the applicable Vesting Date occurs (or if earlier, the year in which the date occurs on which the RSU is no longer subject to a substantial risk of forfeiture for purposes of Section 409A of the Code). However, to the extent applicable, if (i) the Vesting Date does not occur (1) during an “open window period” applicable to you, as determined by the Company in accordance with the Company’s then-effective policy on trading in Company securities, or (2) on a date when you are otherwise permitted to sell Shares on an established stock exchange or stock market (including but not limited to under a previously established Company-approved 10b5-1 trading plan), and (ii) the Company elects, prior to the Vesting Date, (A) not to satisfy the withholding taxes described in Section 14 of this Agreement by withholding Shares from the Shares otherwise due, on the settlement date, to you under this Award, (B) not to permit you to enter into a “same day sale” commitment with a broker-dealer to sell Shares to cover taxes (including but not limited to a commitment under a previously established Company-approved 10b5-1 trading plan) and (C) not to permit you to pay your withholding taxes in cash, then the Shares that would otherwise be issued to you on the Vesting Date will not be delivered on such date and will instead be delivered on the first business day when you are not prohibited from selling Shares in the open public market, but in no event later than March 15^th of the year following the year in which the Vesting Date occurs (or if earlier, the year in which the date occurs on which the RSU is no longer subject to a substantial risk of forfeiture for purposes of Section 409A of the Code). No fractional Shares will be issued or delivered pursuant to the Award, and the Company will determine whether cash will be paid in lieu of any fractional Share or whether such fractional Share and any rights thereto will be canceled, terminated or otherwise eliminated. The form of such delivery (e.g., a stock certificate or electronic entry evidencing such Shares) will be determined by the Company. In all cases, the delivery of Shares under this Award is intended to comply with U.S. Treasury Regulation Section 1.409A-1(b)(4) and will be construed and administered in such a manner.

 

 

6. Dividends. You will receive no benefit or adjustment to your RSUs with respect to any cash dividend, stock dividend or other distribution except as provided in the Plan with respect to a capitalization adjustment or corporate transaction.

 

7. Lock-Up Agreement. If so requested by the Company or the underwriters in connection with the initial public offering of the Company’s securities registered under the Securities Act, or in connection with the consummation of a transaction (including a merger with a SPAC), upon or following which the Company’s (or its successor’s) securities become registered on a U.S. national securities exchange, you shall not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities of the Company however or whenever acquired (except for those being registered) without the prior written consent of the Company or such underwriters, as the case may be, for 180 days from the effective date of the registration statement, plus such additional period, to the extent required by FINRA rules, up to a maximum of 216 days from the effective date of the registration statement (the “Lock-Up Period”), and you shall execute any such agreement reflecting the foregoing as may be requested by the underwriters at the time of such offering.

 

8. Imposition of Other Requirements. The Company reserves the right to cancel or forfeit outstanding grants or impose other requirements on your participation in the Plan, on this Award and the Shares subject to this Award and on any other Award or Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable in order to comply with Applicable Laws or facilitate the administration of the Plan. You agree to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

 

9. Transfer Restrictions. This Award may not be Transferred (as defined below) in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during your lifetime only by you. The terms of this Award shall be binding upon your executors, administrators, heirs, successors and assigns. Participant shall not sell, assign, pledge or otherwise transfer (each, a “Transfer”) any such Shares received under this Agreement or any right or interest therein (such Shares or right or interest therein, collectively the “Securities”), whether voluntarily, involuntarily, by operation of law, by gift or otherwise, without the prior written consent of the Company, evidenced by a writing approved by the Board (the “Transfer Restriction”). The Transfer Restriction shall not apply to any of the following exempt Transfers:

 

(a) Participant’s Transfer of any or all Securities held either during Participant’s lifetime or on death by will or intestacy (1) to Purchaser’s Immediate Family, (2) to any custodian or trustee for the account or the benefit of Purchaser or Purchaser’s Immediate Family, or (3) to any limited partnership or limited liability company with respect to which the ownership interests are wholly owned by Purchaser, members of Purchaser’s Immediate Family or any trust for the account or benefit of Purchaser or Purchaser’s Immediate Family;

 

(b) Purchaser’s Transfer of any or all of Purchaser’s Securities to the Company (or the Company’s assignee); or

 

(c) Purchaser’s Transfer of any or all of Purchaser’s Securities in connection with a transaction subject to Section 12 of the Plan or compliance with Purchaser’s obligations under this Agreement;

 

 

provided that with respect to Transfers pursuant to subsection (a) above, the Transferee shall receive and hold such Shares subject to the provisions of Sections 9 and 10 of this Agreement, and there shall be no further Transfer of such Shares except in accordance with this Section 9. The provisions of this Section 9 may be waived by the Board or Committee with respect to any Transfer. The provisions of this Section 9 shall terminate immediately prior to (i) the date of the closing of a firm commitment underwritten public offering of the Company’s Stock pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Securities Act or (ii) any transfer or conversion of shares of the Company’s Stock made pursuant to a statutory merger or statutory consolidation of the Company with or into another corporation or corporations if the common stock of the surviving corporation or any direct or indirect parent corporation thereof is registered under the Exchange Act. Any Transfer, or purported Transfer, of Securities of the Company shall be null and void unless the terms, conditions and provisions of this Section 9 are strictly observed and followed. The restrictions contained in this Section 9 shall be in addition to any restrictions on transfer that may otherwise be applicable, including without limitation those contained in the Company’s memorandum and articles of association, bylaws or pursuant to applicable securities laws. For purposes of this Agreement, Immediate Family means a person’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships.

 

10. Voting Agreement and Right of First Refusal. As a condition to this Award and to the Company’s issuance of any Shares under this Agreement, you must execute and deliver a joinder agreement to such agreements as may be required of the shareholders of the Company generally (as they may be amended from time to time) so as to become a party thereto, and to be bound by the terms and conditions thereof, including, but not limited to, any voting agreement, investor rights agreement, right of first refusal and co-sale agreement, or other similar shareholder agreement (“Shareholder Agreements”). In the event of any conflict between the applicable Shareholder Agreements and, the Plan or this Agreement, including with respect to any rights of first refusal or market stand-off provisions, the terms of the applicable Shareholder Agreements shall control.

 

11. Electronic Delivery and Participation. The Company may, in its sole discretion, decide to deliver any documents related to your current or future participation in the Plan by electronic means. By accepting this Award, whether electronically or otherwise, you hereby (i) consent to receive such documents by electronic means, (ii) consent to the use of electronic signatures, and (iii) if applicable, agree to participate in the Plan and/or receive any such documents through an on-line or electronic system established and maintained by the Company or a third party designated by the Company, including but not limited to the use of electronic signatures or click-through electronic acceptance of terms and conditions.

 

 

12. Restrictive Legends and Stop-Transfer Orders.

 

(a) Any stock certificate or, in the case of uncertificated securities, any notice of issuance, for the Shares shall bear the following legends (as well as any legends required by the Company or applicable U.S. state and federal corporate and securities laws):

 

(i)      “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR FOREIGN JURISDICTION, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF U.S. FEDERAL, STATE AND APPLICABLE FOREIGN SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER U.S. FEDERAL, STATE AND APPLICABLE FOREIGN SECURITIES LAWS IS NOT REQUIRED.”

 

(ii)      “THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE TERMS OF THE COMPANY’S STOCK PLAN AND A WRITTEN AGREEMENT BETWEEN THE COMPANY AND THE INITIAL HOLDER HEREOF. SUCH PLAN AND AGREEMENT PROVIDE FOR CERTAIN TRANSFER RESTRICTIONS, INCLUDING LIMITATION ON TRANSFERS, RIGHTS OF FIRST REFUSAL UPON AN ATTEMPTED TRANSFER OF THE SECURITIES AND CERTAIN REPURCHASE RIGHTS IN FAVOR OF THE COMPANY. THE COMPANY WILL NOT REGISTER OR OTHERWISE RECOGNIZE OR GIVE EFFECT TO ANY PURPORTED TRANSFER OF SECURITIES THAT DOES NOT COMPLY WITH SUCH TRANSFER RESTRICTIONS. THE SECRETARY OF THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A COPY OF SUCH PLAN AND AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE.”

 

(iii)       Any legend required by the Shareholder Agreements, as applicable, or by appropriate U.S. blue sky officials.

 

(b) You agree that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

 

(c) The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or the Plan or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

 

(d) You acknowledge that the Shares shall be held subject to all the provisions of this Section 12, the Shareholder Agreements, the memorandum and articles of association and the bylaws of the Company and any amendments thereto, copies of which are on file at the principal office of the Company. A statement of all of the rights, preferences, privileges and restrictions granted to or imposed upon the respective classes and/or series of shares of stock of the Company and upon the holders thereof may be obtained by any shareholder upon request and without charge, at the principal office of the Company, and the Company will furnish any shareholder, upon request and without charge, a copy of such statement.

 

 

13. Award Not an Employment or Service Contract.

 

By accepting this Award, you acknowledge and agree that the right to continue vesting in the Award pursuant to Section 2 and the schedule set forth in the Grant Notice is earned only by maintaining continuous Service (not through the act of being hired, being granted this Award or any other award or benefit) and that the Company has the right to reorganize, sell, spin-out or otherwise restructure one or more of its businesses, Subsidiaries or Affiliates at any time or from time to time, as it deems appropriate (a “reorganization”). You further acknowledge and agree that such reorganization could result in the termination of your Service, or the termination of Subsidiary or Affiliate status of your employer and the loss of benefits available to you under this Agreement, including but not limited to, the termination of the right to continue vesting in the Award. You further acknowledge and agree that this Agreement, the Plan, the transactions contemplated hereunder and the vesting schedule set forth in the Grant Notice or any covenant of good faith and fair dealing that may be found implicit in any of them do not constitute an express or implied promise of continued engagement as an Employee, Outside Director or Consultant for the term of this Agreement, for any period, or at all, and will not interfere in any way with your right or the right of the Company or an Affiliate to terminate your Service at any time, with or without cause and with or without notice.

 

14. Responsibility For Taxes. Regardless of any action the Company or your employer, if different, (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding items related to your participation in the Plan and legally applicable to you (“Tax-Related Items”), you hereby acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount, if any, actually withheld by the Company or the Employer. You further acknowledge that the Company and the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including, but not limited to, the grant or vesting of the Award, the issuance of shares of Common Stock pursuant to such Award, the subsequent sale of shares of Common Stock and the receipt of any dividends and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Award to reduce or eliminate your liability for Tax-Related Items or achieve a particular tax result. Further, if you are subject to Tax-Related Items in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

 

Prior to any relevant taxable or tax withholding event, you shall pay or make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, you authorize the Company and/or the Employer or their respective agents, in their sole discretion and without any notice or authorization by you, to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following methods:

 

(a) withholding from your wages or other cash compensation payable by the Company or the Employer to you through payroll or otherwise;

 

(b) withholding from proceeds of the sale of Shares acquired at settlement of the Award through a mandatory sale arranged by the Company (on your behalf pursuant to this authorization without further consent);

 

(c) upon your request and subject to approval by the Company, in its sole discretion, and compliance with Applicable Laws, withholding from fully vested Shares otherwise issuable to you upon the settlement of the Award a number of whole Shares having a Fair Market Value, determined by the Company as of the date of vesting, not in excess of the maximum applicable rate of Tax-Related Items withholding; or

 

(d) any other arrangement approved by the Company.

 

 

Notwithstanding the foregoing, unless otherwise determined by the Committee, the Tax-Related Items will be satisfied by the Company withholding from fully vested Shares otherwise issuable to you upon the settlement of the Award a number of whole Shares having a Fair Market Value, determined by the Company as of the date of vesting, not in excess of the maximum applicable rate of Tax-Related Items withholding.

 

The Company may withhold or account for Tax-Related Items by considering statutory withholding amounts or other withholding rates applicable in your jurisdiction(s), including maximum applicable rates, in which case you may receive a refund of any over-withheld amount in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, you are deemed to have been issued the full number of Shares subject to the Vested RSU, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.

 

Finally, you agree to pay to the Company or the Employer, including through withholding from your wages or other cash compensation payable to you by the Company and/or the Employer, any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the shares of Common Stock or the proceeds from the sale of shares of Common Stock, if you fail to comply with your obligations in connection with the Tax-Related Items.

 

15. Investment Representations. In connection with your acquisition of the Shares under your Award, you represent to the Company the following:

 

(a) You are aware of the Company’s business affairs and financial condition and have acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Shares. You are acquiring the Shares for investment for your own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or under any applicable provision of U.S. state law. You do not have any present intention to transfer the Shares to any other person or entity.

 

(b) You understand that the Shares have not been registered under the Securities Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of your investment intent as expressed herein.

 

(c) You further acknowledge and understand that the securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You further acknowledge and understand that the Company is under no obligation to register the securities. You understand that the certificate evidencing the Shares will be imprinted with a legend that prohibits the transfer of the Shares unless the Shares are registered or such registration is not required in the opinion of counsel for the Company.

 

(d) You are familiar with the provisions of Rule 144, promulgated under the Securities Act, which, in substance, permits limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer of the securities (or from an affiliate of such issuer), in a non-public offering subject to the satisfaction of certain conditions. You understand that the Company provides no assurances as to whether you will be able to resell any or all of the Shares pursuant to Rule 144, which rule requires, among other things, that the Company be subject to the reporting requirements of the Exchange Act, that resales of securities take place only after the holder of the Shares has held the Shares for certain specified time periods, and under certain circumstances, that resales of securities be limited in volume and take place only pursuant to brokered transactions. Notwithstanding this Section 15(d), you acknowledge and agree to the restrictions set forth in Section 15(e) below.

 

 

(e) You further understand that in the event all of the applicable requirements of Rule 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rule 144 is not exclusive, the Staff of the U.S. Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rule 144 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk.

 

(f) You represent that you are not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act. You also agree to notify the Company if you become subject to such disqualifications after the date hereof.

 

16. No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Shares. You understand and agree that you should consult with your own personal tax, financial and/or legal advisors regarding the Award and Tax-Related Items arising in connection with the Award and by accepting the Award, you have agreed that you have done so or knowingly and voluntarily declined to do so.

 

17. Unsecured Obligation. The Award is unfunded, and as a holder of a vested Award, you will be considered an unsecured creditor of the Company with respect to the Company’s obligation, if any, to issue Shares pursuant to this Agreement. You will not have voting or any other rights as a shareholder of the Company with respect to the Shares to be issued pursuant to this Agreement until such Shares are issued to you pursuant to Section 5 of this Agreement. Nothing contained in this Agreement, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person.

 

18. Notices. Any notices provided for in the Grant Notice, this Agreement or the Plan will be given in writing and will be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the U.S. mail, postage prepaid, addressed to you at the last address you provided to the Company.

 

 

19. Miscellaneous.

 

(a) The rights and obligations of the Company under the Award will be transferable to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by, the Company’s successors and assigns. Your rights and obligations under the Award may only be assigned with the prior written consent of the Company.

 

(b) You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of the Award.

 

(c) You acknowledge and agree that you have reviewed the documents provided to you in relation to the Award in their entirety, have had an opportunity to obtain the advice of counsel prior to executing and accepting the Award, and fully understand all provisions of such documents.

 

(d) This Agreement will be subject to all Applicable Laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.

 

(e) All obligations of the Company under the Plan and this Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.

 

(f) The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the U.S. state of California, without giving effect to principles of conflicts of law. For purposes of litigating any dispute that may arise directly or indirectly from this Agreement, the parties hereby submit and consent to the exclusive jurisdiction of the U.S. state of California and agree that any such litigation shall be conducted only in the courts of California or the federal courts of the United States located in California and no other courts.

 

20. Governing Plan Document. The Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of the Award, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. Except as expressly provided herein, in the event of any conflict between the provisions of the Award and those of the Plan, the provisions of the Plan will control.

 

21. Severability. If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any section of this Agreement (or part of such a section) so declared to be unlawful or invalid will, if possible, be construed in a manner which will give effect to the terms of such section or part of a section to the fullest extent possible while remaining lawful and valid.

 

22. Amendment. This Agreement may not be modified, amended or terminated except by an instrument in writing, signed by you and by a duly authorized representative of the Company. Notwithstanding the foregoing, this Agreement may be amended solely by the Committee by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to you, and provided that, except as otherwise expressly provided in the Plan, no such amendment materially and adversely affecting your rights hereunder may be made without your written consent. In addition, and notwithstanding anything to the contrary in the Plan or this Agreement, the Company reserves the right to revise this Agreement as it deems necessary or advisable, in its sole discretion and without your consent, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A in connection with the Award.

 

 

23. Compliance With Section 409A of the Code. This Award is intended to comply with the “short-term deferral” rule set forth in U.S. Treasury Regulation Section 1.409A-1(b)(4). Notwithstanding the foregoing, if it is determined that the Award fails to satisfy the requirements of the short-term deferral rule and is otherwise deferred compensation subject to Code Section 409A, and if you are a “Specified Employee” (within the meaning set forth Section 409A(a)(2)(B)(i) of the Code) as of the date of your separation from service (within the meaning of U.S. Treasury Regulation Section 1.409A-1(h)), then the issuance of any Shares that would otherwise be made upon the date of the separation from service or within the first six months thereafter will not be made on the originally scheduled date(s) and will instead be issued in a lump sum on the date that is six months and one day after the date of the separation from service, with the balance of the Shares issued thereafter in accordance with the original vesting and issuance schedule set forth above, but if and only if such delay in the issuance of the Shares is necessary to avoid the imposition of taxation on you in respect of the Shares under Section 409A of the Code. Each installment of Shares that vests is intended to constitute a “separate payment” for purposes of U.S. Treasury Regulation Section 1.409A-2(b)(2). Notwithstanding any contrary provision of the Plan, the Notice of Grant, or of this Agreement, under no circumstances will the Company reimburse you for any taxes or other costs under Code Section 409A or any other tax law or rule. All such taxes and costs are solely your responsibility.

 

 

 

 

 

Exhibit 10.25

 

April 1, 2021

 

Sherry House

 

Re: Offer of Employment

 

Dear Sherry,

 

It gives me great pleasure to offer you the Exempt position with Lucid USA, Inc. (doing business as Lucid Motors) (the “Company”) as SVP, Chief Financial Officer at our Newark, CA location reporting to Peter Rawlinson, CEO/CTO. You will begin your position on May 3rd, 2021 (“Hire Date”). The terms and conditions of your employment with the Company will be as set forth below.

 

Base Salary and Other Compensation

 

You will be paid the following compensation during your employment:

 

·

You will be paid a base salary of $19,230.77 per bi-weekly pay period ($500,000 annualized), less applicable tax and other withholdings.

 

·

In addition to your base salary, you will be eligible to earn a target incentive bonus up to 50% of your base salary, less applicable tax and other withholdings, as determined by the Company in its discretion based upon the Company's performance, your individual performance, and your continued employment through the bonus payment date following the close of each fiscal year.

 

·

The Company is pleased to offer you a one-time sign-on bonus of $100,000 less applicable tax and other withholdings, to be advanced in the first payroll cycle after you join the Company. This sign-on bonus will become earned in the event that you successfully complete one year of employment with Company in good standing. If you resign from your employment with Company for any reason or are terminated before the first anniversary of your Hire Date, you will immediately repay to the Company the gross amount of the sign-on bonus that you receive (i.e. after applicable tax and other withholdings).

 

Severance

 

You will be eligible to participate in the Atieva USA, Inc. Severance Benefit Plan (the “Plan”). Upon your acceptance of this Offer and after your start of employment with the Company and the successful completion (as determined by the Company in its sole discretion) of your background check, you will receive a full plan document for your review and signature. Subject to your acceptance of a Participation Notice under the Plan and the successful completion (as determined by the Company in its sole discretion) of your background check, you will be eligible for the severance benefits described in the table below under the terms of the Plan.

 

	Salary Continuation	Maximum Duration of COBRA Payment Period	Percentage of Outstanding Unvested Equity Awards That Will Accelerate
Qualifying Termination that is NOT a Change of Control Termination	6 months of your Monthly Base Salary	6 months	25%, plus 5% per year of service, less vesting acceleration otherwise provided in option grant, employment agreement or other documentation, up to 50% max
Qualifying Termination that is a Change of Control Termination	9 months of your Monthly Base Salary	9 months	75%

 

 

Employee Benefits

 

You will be eligible to participate in the Company employee benefit plans that the Company makes available to similarly situated employees. The Company provides a competitive benefit package that currently includes major medical, vision, and dental insurance plans, paid time off, flexible spending account and a 401(k) program and company-paid life insurance and ADD coverage up to 2x your annual base salary (up to $850,000 maximum). The eligibility dates of the benefits are as follows:

 

·

Group health insurance benefits: commence on hire date

·

Vacation days and sick days: accrual starts on hire date

·

Flexible spending account: eligibility starts on hire date but can take up to 3 pay periods before any payroll deductions are actually deposited into account

·

401(k) program: eligibility starts on hire date but can take up to 3 pay periods before any payroll deductions are actually deposited into account

 

Stock Option Award

 

The Company will recommend to the Compensation Committee of the Company’s Board of Directors that you receive a grant of 250,000 restricted stock units (“RSUs”) at the next practicable date following your start date on which the Committee approves equity awards for new hires. Your RSUs will generally be eligible to vest over four years as follows: 25% will be eligible to vest on the first Company Vesting Date to occur following the first anniversary of your Hire Date, and 1/16th of the total RSUs granted will vest quarterly thereafter on each subsequent “Company Vesting Date” (as defined in the RSU Agreement) subject to your continued employment through each vesting date (the “Vesting Schedule”); provided that no RSUs will vest unless and until a “Liquidity Event” (as defined in the Restricted Stock Unit Award Agreement (“RSU Award Agreement”)) has occurred and you remain employed at the time of such Liquidity Event. Upon a Liquidity Event, you will immediately vest in the number of RSUs that you would have vested in as of such Liquidity Event pursuant to the Vesting Schedule and the remaining RSUs will continue to be eligible to vest in accordance with the Vesting Schedule.

 

As defined more specifically in the RSU Award Agreement, a “Liquidity Event” will generally occur on the earlier of: (i) a change in control of the Company (or a successor thereto) (as defined in the Company’s equity incentive plan and excluding any initial public offering or a merger of the Company with a special purpose acquisition company (a “SPAC”)) or (ii) the Company (or a successor thereto) registers its securities or consummates a transaction (including a merger with a SPAC), and as a result, the Company’s (or its successor’s) securities become registered on a U.S. national securities exchange and the 180-day lock-up period following such registration (or any such other lock-up period as may be imposed or requested by the Company’s underwriters, SPAC sponsor, or other similar parties) expires. “Company Vesting Date” means March 5, June 5, September 5, and December 5 of each calendar year (provided, that to the extent any of the Company Vesting Dates fall on a weekend or Company holiday, that Company Vesting Date instead will be the immediately following business day thereafter). Your RSU award is subject in all respects to approval by the Committee and the terms and conditions of the Company’s then-applicable equity incentive plan and RSU Award Agreement, each of which will be provided to you as soon as practical after the Committee approves your Award.

 

Proof of Right to Work

 

Your employment is contingent upon providing appropriate documentation for the completion of your new hire forms, including proof that you are presently eligible to work in the United States for I-9 form purposes. Failure to provide appropriate documentation within three days of your hire date will result in immediate termination of employment in accordance with the terms of the Immigration Reform and Control Act.

 

 

Confidential Information and Invention Assignment Agreement

 

Your acceptance of this offer and commencement of employment with the Company is contingent upon the execution, and delivery to an officer of the Company, of the Company’s Confidential Information and Invention Assignment Agreement, a copy of which is enclosed for your review and execution (the “Confidentiality Agreement”), prior to or on your Hire Date.

 

Background Checks

 

This offer is contingent upon the successful completion (as determined by the Company) of any background or reference checks desired by the Company as well as a pre-employment drug screening (if required for your role). If a drug screen is required for your role, HireRight will contact you and provide you direction as to when and how to complete the drug screen.

 

Additionally, due to the impact of Covid-19, some background checks cannot be completed. If the background check is not completed before your start date, a subsequent notification to the Company that you did not successfully complete (as determined by the Company) the background check may be grounds for separation.

 

Driver’s License Information

 

If driving will be one of the essential functions of your job, as a further condition of your employment, you must: (a) authorize the Company to conduct a DMV (or similar) check of your driving record; (b) have maintained an excellent driving record (as determined by the Company in its discretion) for at least the past five (5) years; (c) currently have the appropriate license for the type of driving you will be doing on behalf of the Company; (d) maintain the appropriate license for the type of driving you will be doing on behalf of the Company at all times during your employment; and (e) maintain an excellent driving record (as determined by the Company in its discretion) at all times during your employment with the Company.

 

Return of Materials

 

Prior to your employment with the Company, you shall return all materials to your former employer or client, including any electronic storage devices, and ensure that you have not retained any files or records of your former employer or client on any media, including cloud-based storage systems.

 

At-Will Employment

 

Your employment with the Company is “at will,” and thus you or the Company may terminate our employment relationship at any time, with or without cause or advance notice. The Company reserves the right, in its sole discretion, to change your position, duties, compensation, and/or employee benefits at any time on a prospective basis. This Offer of Employment shall be governed by and construed under the laws of the state in which Lucid Motors employs you at hire, without regard to conflict of law principles.

 

Integration and Modification

 

This Offer of Employment, together with any other documents described herein, sets forth the terms and conditions of our offer of employment with the Company, and supersedes any prior representations or agreements concerning your employment with the Company, whether written or oral. You acknowledge and agree that you are not relying on any statements or representations concerning the Company or your employment with the Company.

 

 

We welcome you to Lucid Motors and look forward to working with you. We trust that it will be a mutually rewarding experience. The offer of employment contained herein will expire at the close of business on April 1st, 2021; please confirm your acceptance of this offer by signing and dating this offer on the spaces below and returning it to me prior to that time.

 

Sincerely,
/s/ Michael Carter
Michael Carter
Vice President, People

 

 

I have read and understand the terms and conditions set forth in this Offer of Employment. Furthermore, in choosing to accept this employment with Lucid USA, Inc. (dba Lucid Motors), I agree that I am not relying on any representations, whether verbal or written, except as specifically set forth in this Offer of Employment.

 

/s/ Sherry House
Sherry House

 

 

ATTACHMENT A

 

Sign-On Bonus Agreement

 

THIS AGREEMENT made April 1st, 2021 by and between Lucid USA, Inc. (dba Lucid Motors USA, Inc.) (hereinafter the “Company”) and Sherry House (hereinafter “Employee”). The Company is pleased to advance Employee a one-time sign-on bonus of $100,000 less applicable tax and other withholdings, in the first payroll cycle after Employee joins the Company. This sign-on bonus will become earned in the event that Employee successfully completes one year of employment with Company in good standing. If Employee resigns from their employment with Company for any reason or is terminated before the first anniversary of their Hire Date, Employee will immediately repay to Company the gross amount of the sign-on bonus that Employee receives (i.e. after applicable tax and other withholdings).

 

By signing below, I authorize Company to withhold $100,000 from any severance and other final pay I receive upon termination of employment under the circumstances described above.

 

/s/ Sherry House
Sherry House

 

 

 

Exhibit 23.2

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the inclusion in this Registration Statement of Churchill Capital Corp IV on Amendment No. 1 to Form S-4, File No. 333-254543, of our report dated March 15, 2021, except for the effects of the restatement disclosed in Note 2 and the subsequent events discussed in Note 12 (Legal Proceedings), as to which the date is May 14, 2021, with respect to our audit of the financial statements of Churchill Capital Corp IV as of December 31, 2020 and for period from April 30, 2020 (inception) through December 31, 2020, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.

 

/s/ Marcum llp

 

Marcum llp

Houston, TX

May 14, 2021

 

 

 

Exhibit 23.3

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We have issued our report dated March 19, 2021, with respect to the consolidated financial statements of Atieva, Inc. and subsidiaries contained in the registration statement and proxy statement/prospectus. We consent to the use of the aforementioned report in the registration statement and proxy statement/prospectus, and to the use of our name as it appears under the caption “Experts”.

 

/s/ GRANT THORNTON LLP

 

Los Angeles, California

May 14, 2021

 

 

Exhibit 99.1

 

Guggenheim Securities, LLC 330 Madison Avenue New York, New York 10017 GuggenheimPartners.com

 

May 14, 2021

 

The Board of Directors

Churchill Capital Corp IV

640 Fifth Avenue, 12^th Floor

New York, NY 10019

 

Re:      Consent for Fairness Opinion Disclosure

 

Members of the Board:

 

Guggenheim Securities, LLC (“Guggenheim Securities”) hereby consents to (i) the inclusion of our opinion letter dated February 22, 2021 (the “Opinion”) to the Board of Directors of Churchill Capital Corp IV (“CCCIV”) as Annex I to the proxy statement/prospectus that is being filed on or promptly after the date hereof with the Securities and Exchange Commission in connection with the proposed merger involving CCCIV, Air Merger Sub, Inc. (a wholly owned subsidiary of CCCIV), and Atieva, Inc. d/b/a Lucid Motors (“Lucid”), which proxy statement/prospectus forms a part of the Registration Statement on Form S-4 of CCCIV that is being filed on or promptly after the date hereof with the Securities and Exchange Commission, (ii) the references therein to Guggenheim Securities and (iii) the inclusion therein of (a) the summaries of and excerpts from the Opinion, (b) the description of certain financial analyses underlying the Opinion and (c) certain terms of our engagement by CCCIV.

 

By giving such consent, Guggenheim Securities does not thereby admit that we are experts with respect to any part of such proxy statement/prospectus within the meaning of the term “expert” as used in, or that we come within the category of persons whose consent is required under, the Securities Act of 1933 or the Securities Exchange Act of 1934, each as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

	Very truly yours,
	GUGGENHEIM SECURITIES, LLC
	By:	/s/ Eric Rutkoske
		Eric Rutkoske
		Senior Managing Director

 

 

Exhibit 99.2

 

 

17723 Churchill Special Meeting Proxy Card REV7-Front YOUR VOTE IS IMPORTANT. PLEASE VOTE TODAY. Vote by Internet - QUICK  EASY IMMEDIATE - 24 Hours a Day, 7 Days a Week or by Mail Your Internet vote authorizes the named proxies to vote your shares in the same manner as if you marked, signed and returned your proxy card. Votes submitted electronically over the Internet must be received by 11:59 p.m., Eastern Time, on XXXXX XX, 2021. INTERNET/MOBILE – www.cstproxyvote.com Use the Internet to vote your proxy. Have your proxy card available when you access the above website. Follow the prompts to vote your shares. Vote at the Meeting – If you plan to attend the virtual online special meeting, you will need your 12 digit control number to vote electronically at the annual meeting. To attend: https://www.cstproxy.com/churchillcapitaliv/2021 MAIL – Mark, sign and date your proxy card and return it in the postage-paid envelope provided. CHURCHILL CAPITAL CORP IV PROXY THE BOARD OF DIRECTORS OF CHURCHILL CAPITAL CORP IV (THE “CHURCHILL BOARD”), UNANIMOUSLY RECOMMENDS YOU VOTE “FOR” PROPOSALS 1, 2, 3A, 3B, 3C, 4, 5, 6, AND 7. Please mark your votes like this FOR AGAINST ABSTAIN Proposal No. 1 (the “business combination proposal”) – To approve the business combination described in the accompanying proxy statement/prospectus, including (a) adopting the Agreement and Plan of Merger, dated as of FOR AGAINST ABSTAIN Proposal No. 4 (the “incentive plan proposal”) – To approve and adopt the Lucid Group, Inc. 2021 Stock Incentive Plan, including the Lucid Group, Inc. 2021 Employee Stock Purchase Plan attached thereto (the “Incentive Plan”), and the material terms thereof, including the authorization of the initial share reserve thereunder. A copy of the Incentive Plan is attached to the accompanying proxy statement/prospectus as Annex H; February 22, 2021 (as the same has been or may be amended, modified, supplemented or waived from time to time, the “Merger Agreement”), by and among Churchill Capital Corp IV (“Churchill”), Air Merger Sub, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Churchill (“Merger Sub”), and Atieva, Inc., d/b/a Lucid Motors, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Lucid”), a copy of which (as amended) is attached to the accompanying proxy statement/prospectus as Annex A, which, among other things, provides for the merger of Merger Sub with and into Lucid, with Lucid surviving such merger as a wholly owned subsidiary of Churchill and (b) approving the other transactions contemplated by the Merger Agreement and related agreements described in the accompanying proxy statement/prospectus; Proposal No. 5 (the “director election proposal”) – To elect nine directors to serve on the Churchill Board for a term ending on the date of the next annual stockholder meeting, or until their respective successors are duly elected and qualified; FOR ALL WITHHOLD FOR ALL ALL EXCEPT (01) Peter Rawlinson (02) Turqi Alnowaiser (03) Glenn R. August (04) Frank Lindenberg (05) Andrew Liveris (06) Nichelle Maynard-Elliott (07) Tony Posawatz (08) Janet Wong (09) Xxxxx Xxxxxxxx Proposal No. 2 (the “charter proposal”) – To approve and adopt the second amended and restated certificate of incorporation of Churchill in the form attached to the accompanying proxy statement/prospectus as Annex B (the “second amended and restated certificate of incorporation”); FOR AGAINST ABSTAIN To withhold authority to vote for any Individual nominee(s), mark “For All Except” and write the number(s) of the nominees on the line below Proposal No. 3 (the “governance proposal”) – To approve, on a non-binding advisory basis, certain governance provisions in the second amended and restated certificate of incorporation, presented separately in accordance with the United States Securities and Exchange Commission requirements; FOR AGAINST ABSTAIN Proposal No. 6 (the “NYSE proposal”) – To approve, for purposes of complying with the applicable provisions of Section 312.03 of the New York Stock Exchange’s FOR AGAINST ABSTAIN Proposal No. 3A: To approve an increase of the total number of authorized shares of all classes of capital stock from 501,000,000 shares to 15,010,000,000 shares, which (the “NYSE”) Listed Company Manual, (a) the issuance of more than 20% of Churchill’s issued and outstanding shares of common stock in connection with the Transactions, including, without limitation, the PIPE Investment and the issuance of more than 20% of Churchill’s issued and outstanding shares to a single holder (which may constitute a change of control under the NYSE’s Listed Company Manual) and (b) the issuance of shares of Churchill’s Class A common stock to a Related Party (as defined in Section 312.03 of the NYSE’s Listing Company Manual) in connection with the Transactions (as described in the accompanying proxy statement/prospectus); and would consist of (i) increasing Churchill’s Class A common stock from 400,000,000 shares to 15,000,000,000 shares and (ii) and increasing Churchill’s preferred stock from 1,000,000 to 10,000,000. FOR AGAINST ABSTAIN Proposal No. 3B: To approve provisions in the second amended and restated certificate of incorporation that provide that for so long as Ayar and its Permitted Transferees beneficially own, in the aggregate, 50% or more of the voting power of the stock of FOR AGAINST ABSTAIN Proposal No. 7 – To approve a proposal to adjourn the special meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event Churchill entitled to vote generally in the election of directors, any action required or permitted to be taken at any annual or special meeting of stockholders of Churchill may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes necessary to approve such action. that there are insufficient votes for, or otherwise in connection with, the approval of the business combination proposal, the charter proposal, the governance proposal, the incentive plan proposal, the director election proposal or the NYSE proposal. Proposal No. 3C: To approve that each director on the Churchill Board will be elected annually by the stockholders and serve for a term ending on the date of the annual meeting of stockholders next following the annual meeting at which such director was elected. FOR AGAINST ABSTAIN CONTROL NUMBER Signature Signature, if held jointly Date , 2021. Note: Please sign exactly as name appears hereon. When shares are held by joint owners, both should sign. When signing as attorney, executor, administrator, trustee, guardian, or corporate officer, please give title as such. If a corporation, please sign in full corporate name by president or other authorized officer. If as partnership, please sign in partnership name by authorized officer. X PLEASE DO NOT RETURN THE PROXY CARD IF YOU ARE VOTING ELECTRONICALLY.

 

17723 Churchill Special Meeting Proxy Card REV7-Back Proxy Material for the Special Meeting of Stockholders is available at: https://www.cstproxy.com/churchillcapitaliv/2021  FOLD HERE • DO NOT SEPARATE • INSERT IN ENVELOPE PROVIDED  PROXY THIS PROXY IS SOLICITED ON BEHALF OF THE CHURCHILL BOARD OF DIRECTORS CHURCHILL CAPITAL CORP IV The undersigned stockholder of Churchill Capital Corp IV, a Delaware corporation, hereby appoints Michael Klein and Jay Taragin, and each of them independently, as proxies and attorneys-in-fact, each with the power to appoint his substitute, and authorizes each of them to represent, act and to vote, as designated on the reverse hereof, all of the shares of common stock of Churchill Capital Corp IV held of record by the undersigned at the close of business on XXXXXX XX, 2021 at the Special Meeting of Stockholders of Churchill Capital Corp IV to be held on XXXXXX XX, 2021, or at any adjournment or postponement thereof. THE UNDERSIGNED ACKNOWLEDGES RECEIPT OF THE ACCOMPANYING PROXY STATEMENT AND REVOKES ALL PRIOR PROXIES FOR SUCH SPECIAL MEETING. THIS PROXY CARD WHEN PROPERLY EXECUTED WILL BE VOTED AS INDICATED. IF NO CONTRARY INDICATION IS MADE, THE PROXY WILL BE VOTED “FOR” PROPOSAL NO. 1, PROPOSAL NO. 2, PROPOSAL NOS. 3A, 3B, AND 3C, PROPOSAL NO. 4, PROPOSAL NO. 5, PROPOSAL NO. 6 AND PROPOSAL NO. 7 AND IN ACCORDANCE WITH THE JUDGMENT OF THE PERSONS NAMED AS PROXY AND ATTORNEYS-IN-FACT HEREIN ON ANY OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE SPECIAL MEETING. (Continued and to be marked, dated and signed on the other side)

 

 

 

Exhibit 99.4 

 

CONSENT TO BE NAMED AS A DIRECTOR NOMINEE

 

In connection with the filing by Churchill Capital Corp. IV of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of Lucid Group (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.

 

		/s/ Turqi Alnowaiser
		Turqi Alnowaiser
Date:		05/14/2021

 

 

 

Exhibit 99.5

 

CONSENT TO BE NAMED AS A DIRECTOR NOMINEE

 

In connection with the filing by Churchill Capital Corp. IV of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of Lucid Group (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.

 

		/s/ Glenn R. August
		Glenn August
Date:		05/14/2021

 

 

 

Exhibit 99.6

 

 

CONSENT TO BE NAMED AS A DIRECTOR NOMINEE

 

In connection with the filing by Churchill Capital Corp. IV of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of Lucid Group (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.

 

		/s/ Frank Lindenberg
		Frank Lindenberg
Date:		05/14/2021

 

 

 

Exhibit 99.7

 

CONSENT TO BE NAMED AS A DIRECTOR NOMINEE

 

In connection with the filing by Churchill Capital Corp. IV of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of Lucid Group (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.

 

		/s/ Andrew Liveris
		Andrew Liveris
Date:		05/14/2021

 

 

 

Exhibit 99.8

 

CONSENT TO BE NAMED AS A DIRECTOR NOMINEE

 

In connection with the filing by Churchill Capital Corp. IV of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of Lucid Group (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.

 

		/s/ Nichelle Maynard-Elliott
		Nichelle Maynard-Elliott
Date:		05/14/2021

 

 

 

Exhibit 99.9

 

CONSENT TO BE NAMED AS A DIRECTOR NOMINEE

 

In connection with the filing by Churchill Capital Corp. IV of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of Lucid Group (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.

 

		/s/ Tony Posawatz
		Anthony Posawatz
Date:		05/14/2021

 

 

 

Exhibit 99.10

 

CONSENT TO BE NAMED AS A DIRECTOR NOMINEE

 

In connection with the filing by Churchill Capital Corp. IV of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of Lucid Group (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.

 

		/s/ Janet S. Wong
		Janet Wong
Date:		05/14/2021