Item 1.01
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Entry into a Material Definitive Agreement.
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On February 22, 2021, Churchill Capital
Corp IV (“Churchill”) entered into an Agreement and Plan of Merger (the “Merger Agreement”)
by and among Churchill, Air Merger Sub, Inc., a Delaware corporation and 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 (the “Company”).
Pursuant to the Merger Agreement, the parties
thereto will enter into a business combination transaction (the “Business Combination”) by which Merger Sub
will merge with and into the Company with the Company being the surviving entity in the merger (the “Merger”
and, together with the other transactions contemplated by the Merger Agreement, the “Transactions”).
The proposed Business Combination is expected
to be consummated after the required approval by the stockholders of Churchill and the Company and the satisfaction of certain
other conditions summarized below.
Merger Agreement
Merger Consideration
The aggregate consideration to be paid to
the shareholders of the Company will be equal to (a) $11,750,000,000 plus (b) (i) all cash and cash equivalents of the Company
and its subsidiaries less (ii) all indebtedness for borrowed money of the Company and its subsidiaries, in each case as of two
business days prior to the closing date (the “Equity Value”) and will be paid entirely in shares of Class A
common stock, par value $0.0001 per share, of Churchill (the “Class A Common Stock”) in an amount equal to $10.00
per share (the “Merger Consideration”).
At the effective time of the Merger,
each share of capital stock of the Company (the “Company Shares”) will be cancelled and automatically
deemed for all purposes to represent the right to receive, in the aggregate, the Merger Consideration. At the effective time
of the Merger, all share incentive plan or similar equity-based compensation plans maintained for employees of the Company
will be assumed by Churchill and all outstanding options to purchase Company Shares (each, a “Company
Option”) and each restricted stock unit award (“RSU”) with respect to Company Shares (each, a
“Company RSU”) will be assumed by Churchill as described below. For purposes of the following paragraph,
the “Exchange Ratio” means the Equity Value per share divided by $10.00.
At the effective time of the Merger, each
Company Option will become an option to purchase shares of Class A Common Stock (each, an “Assumed Option”),
on the same terms and conditions (including applicable vesting, exercise and expiration provisions) as applied to the Company Option
immediately prior to the effective time of the Merger, except that (i) the number of shares of Class A Common Stock subject to
such Assumed Option shall equal the product of (x) the number of Company Shares that were subject to the option immediately prior
to the effective time of the Merger, multiplied by (y) the Exchange Ratio, rounded down to the nearest whole share, and
(B) the per-share exercise price shall equal the quotient of (1) the exercise price per Company Share at which such option was
exercisable immediately prior to the effective time of the Merger, divided by (2) the Exchange Ratio, rounded up to the
nearest whole cent.
At the effective time of the Merger, each
Company RSU, will be assumed by Churchill and become an RSU with respect to shares of Class A Common Stock (each, an “Assumed
RSU”) on the same terms and conditions (including applicable vesting provisions) as applied to each Company RSU immediately
prior to the effective time of the Merger, except that the number of shares of Class A Common Stock subject to such Assumed RSU
Award will be equal the product of (x) the number of Company Shares that were subject to such RSU immediately prior to the effective
time of the Merger, multiplied by (y) the Exchange Ratio, rounded down to the nearest whole share.
Representations and Warranties
The Merger Agreement contains representations
and warranties of the parties thereto with respect to, among other things, (i) entity organization, formation and authority,
(ii) authorization to enter into the Merger Agreement, (iii) capital structure, (iv) consents and approvals, (v) financial
statements, (vi) undisclosed liabilities, (vii) real property, (viii) litigation and proceedings, (ix) material
contracts, (x) taxes, (xi) title to assets, (xii) absence of changes, (xiii) environmental matters, (xiv) employee
matters, (xv) licenses and permits, (xvi) compliance with laws (xvii) intellectual property and IT security,(xviii) governmental
authorities and consents, (xix) insurance, and (xx) related party transactions. The representations and warranties of the parties
contained in the Merger Agreement will terminate and be of no further force and effect as of the closing of the Transactions.
Covenants
The Merger Agreement contains customary
covenants of the parties, including, among others, covenants providing for (i) the operation of the parties’ respective businesses
prior to consummation of the Transactions, (ii) Churchill and the Company’s efforts to satisfy conditions to consummation
of the Transactions, (iii) Churchill and the Company to cease discussions for alternative transactions, (iv) Churchill to prepare
and file a registration statement and a proxy statement for the purpose of soliciting proxies from Churchill’s stockholders
to vote in favor of certain matters (the “SPAC Stockholder Matters”), including the adoption of the Merger Agreement,
approval of the Transactions, amendment and restatement of Churchill’s certificate of incorporation and certain other matters
at a special meeting called therefor (the “Special Meeting”), (v) the Company to convene an extraordinary general
meeting of its shareholders to approve certain matters, including the adoption of the Merger Agreement, the Plan of Merger and
approval of the Transactions (the “Company Shareholder Matters”), (vi) the protection of, and access to, confidential
information of the parties and (vii) the parties’ efforts to obtain necessary approvals from governmental agencies.
Conditions to Closing
The consummation of the Transactions is
subject to customary closing conditions for special purpose acquisition companies, including, among others: (i) approval by Churchill’s
stockholders, (ii) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, (iii) no order, statute, rule or regulation enjoining or prohibiting the consummation of the Transactions being
in force, (iv) Churchill having at least $5,000,001 of net tangible assets as of the closing of the Transactions, (v) approval
by the Company’s shareholders, (vi) shares of Churchill’s common stock being listed on the New York Stock Exchange
or other stock exchange mutually agreed between Churchill and the Company, (vi) the registration statement becoming effective in
accordance with the Securities Act of 1933, as amended (the “Securities Act”) and (vii) customary bringdown
conditions. Additionally, the obligations of the Company to consummate the Transactions are also conditioned upon, among others,
the amount of Available Closing SPAC Cash being at least $2.8 billion as of the closing of the Transactions and each of the covenants
of each of Churchill Sponsor and the Insiders (both as defined below) required under the Sponsor Agreement (as defined below) to
be performed as of or prior to the closing of the Transactions shall have been performed in all material respects, and none of
Churchill Sponsor or the Insiders shall have threatened (orally or in writing) (a) that the Sponsor Agreement is not valid, binding
and in full force and effect, (b) that the Company is in breach of or default under the Sponsor Agreement or (c) to terminate the
Sponsor Agreement.
Termination
The Merger Agreement may be terminated at
any time, but not later than the closing of the Transactions, as follows:
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(i)
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by mutual written consent of Churchill and the Company;
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(ii)
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by either Churchill or the Company if the Transactions are not consummated on or before October 22, 2021 (the “Termination Date”), but Churchill’s right to terminate will be automatically extended if any action for specific performance or other equitable relief filed by the Company with respect to the Merger Agreement, the other transaction agreements specified in the Merger Agreement or otherwise regarding the Transactions is commenced or pending on or prior to the Termination Date, provided that the terminating party’s failure to fulfill any of its obligations under the Merger Agreement is not the primary cause of the failure of the closing to occur by such date;
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(iii)
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by either Churchill or the Company if a governmental entity shall have issued an order, decree or ruling or taken any other action, in any case having the effect of permanently enjoining or prohibiting the Merger, which order, decree, judgment, ruling or other action is final and nonappealable;
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(iv)
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by either Churchill or the Company if the other party has breached any of its covenants, agreements, representations or warranties which would result in the failure of certain conditions to be satisfied at the closing and has not cured its breach within thirty days of the notice of an intent to terminate, provided that the terminating party’s failure to fulfill any of its obligations under the Merger Agreement is not the primary cause of the failure of the closing to occur;
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(v)
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by either Churchill or the Company if, at the Special Meeting, the Transactions and the other SPAC Stockholder Matters shall fail to be approved by holders of Churchill’s outstanding shares, provided that Churchill’s right to terminate for failure to obtain such approval shall not be available if, at the time of such termination, SPAC is in breach of certain of its obligations under the Merger Agreement, including with respect to the preparation, filing and mailing of the registration statement and the proxy statement and convening the Special Meeting; or
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(vi)
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by Churchill if the Company shall fail to obtain the Company Shareholder Matters.
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The foregoing description of the
Merger Agreement and the Transactions does not purport to be complete and is qualified in its entirety by the terms and
conditions of the Merger Agreement and any related agreements. The Merger Agreement contains representations, warranties and
covenants that the respective parties made to each other as of the date of such agreement or other specific dates. The
assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the
respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with
negotiating such agreement. The Merger Agreement has been included as an exhibit to this Current Report on Form 8-K (this
“Current Report”) to provide investors with information regarding its terms. It is not intended to provide
any other factual information about Churchill, the Company, or any other party to the Merger Agreement or any related
agreement. In particular, the representations, warranties, covenants and agreements contained in the Merger Agreement, which
were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to the
Merger Agreement, are subject to limitations agreed upon by the contracting parties (including being qualified by
confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement
instead of establishing these matters as facts) and are subject to standards of materiality applicable to the contracting
parties that may differ from those applicable to investors and security holders. Investors and security holders are not
third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and
agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the
Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after
the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Churchill’s public
disclosures.
A copy of the Merger Agreement is filed with this Current Report as Exhibit 2.1 and is incorporated herein by reference, and the foregoing
description of the Merger Agreement is qualified in its entirety by reference thereto.
Related Agreements
Investor Rights Agreement
In connection with the execution of the
Merger Agreement, Churchill entered into an Investor Rights Agreement (the “Investor Rights Agreement”) with
Ayar Third Investment Company (“Ayar”), Churchill Sponsor IV LLC (“Churchill Sponsor”) and
the other parties named therein. Pursuant to the Investor Rights Agreement, as of the date of the closing of the Transactions,
Ayar has the right to nominate five directors to Churchill’s board of directors (the “Board”) and Churchill
Sponsor has the right to nominate one director to the Board. Two directors will be independent directors to be nominated by the
Company and one director will be the chief executive officer of the combined company. In addition, following the closing of the
Transactions, Ayar will have a continuing right to designate directors to the Board, subject to its (and its permitted transferees’)
beneficial ownership of Class A Common Stock as compared to the Class A Common Stock issued and outstanding as of the record date
of each applicable annual or special meeting of stockholders at which directors are to be elected (the “Record Date”).
If, following the closing of the Transactions, Ayar (or its permitted transferees) beneficially owns: (i) 50% or greater of the
shares of Class A Common Stock issued and outstanding on the Record Date, it will have the right to nominate five directors; (ii)
less than 50% but greater than or equal to 40% of the shares of Class A Common Stock issued and outstanding on the Record Date,
it will have the right to nominate four directors; (iii) less than 40% but greater than or equal to 30% of the shares of Class
A Common Stock issued and outstanding on the Record Date, it will have the right to nominate three directors; (iv) less than 30%
but greater than or equal to 20% of the shares of Class A Common Stock issued and outstanding on the Record Date, it will have
the right to nominate two directors; (v) less than 20% but greater than or equal to 10% of the shares of Class A Common Stock issued
and outstanding on the Record Date, it will have the right to nominate one director; and (vi) less than 10% of the shares of Class
A Common Stock issued and outstanding on the Record Date, it will not have the right to nominate any directors; provided, that
if after the date of the closing of the Transactions the size of the Board is increased or decreased, the number of directors Ayar
is entitled to nominate will be increased or decreased in proportion to such increase or decrease in the size of the Board, rounded
down to the nearest whole number. Further, for so long as Ayar beneficially owns 20% or greater of the shares of Class A Common
Stock issued and outstanding on the Record Date, it will have the right to designate the Chairman of the Board. Pursuant to the
Investor Rights Agreement, any material changes to the combined company’s business plan will require the affirmative vote
of a majority of the Board. In addition, pursuant to the Investor Rights Agreement, certain parties will be entitled to certain
registration rights, including, among other things, customary demand, shelf and piggy-back rights, subject to customary cut-back
provisions. Pursuant to the Investor Rights Agreement, certain parties will agree not to sell, transfer, pledge or otherwise dispose
of shares of Class A Common Stock or warrants to purchase shares of Class A Common Stock they receive in connection with the Transactions
or otherwise beneficially own as of the date of the closing of the Transactions for certain time periods specified therein. The
foregoing description of the Investor Rights Agreement is not complete and is qualified in its entirety by reference to the Investor
Rights Agreement, which is attached as Exhibit 10.1 to this Current Report and incorporated herein by reference.
Subscription Agreements
In connection with the execution of the
Merger Agreement, (a) Churchill entered into certain common stock subscription agreements (the “Subscription Agreements”)
with certain investment funds (the “PIPE Investors”) pursuant to which, Churchill has agreed to issue and sell
to the PIPE Investors $2.5 billion of Class A Common Stock (the “PIPE Shares”) in reliance on an exemption from
registration under Section 4(a)(2) under the Securities Act at a purchase price of $15 per share (the “PIPE Investment”).
Pursuant to the Subscription Agreements, the PIPE Investors have agreed to not transfer any PIPE Shares until the later of (i)
the effectiveness of the registration statement to be filed following the closing of the Transactions to register the PIPE Shares
and (ii) September 1, 2021. The closing of the PIPE Investment is conditioned on all conditions set forth in the Merger Agreement
having been satisfied or waived and other customary closing conditions, and the Transactions will be consummated immediately following
the closing of the PIPE Investment. The Subscription Agreements will terminate upon the earlier to occur of (i) the termination
of the Merger Agreement and (ii) the mutual written agreement of the parties thereto.
The Subscription Agreements provide that
Churchill is required to file with the Securities and Exchange Commission (the “SEC”), within 30 days after
the consummation of the Transactions, a shelf registration statement covering the resale of the PIPE Shares and to use its commercially
reasonable efforts to have such registration statement declared effective as soon as practicable after the filing thereof but no
later than the earlier of (i) the 90th day (or 150th day if the SEC notifies Churchill that it will “review” such registration
statement) following the closing of the PIPE Investment and (ii) the 10th business day after the date Churchill is notified (orally
or in writing, whichever is earlier) by the SEC that such registration statement will not be “reviewed” or will not
be subject to further review.
The foregoing description of the
Subscription Agreements is not complete and is qualified in its entirety by reference to the Subscription Agreements, the
form of which is attached as Exhibit 10.2 to this Current report and incorporated herein by reference.
Amended and Restated Sponsor Agreement
In connection with the execution of the
Merger Agreement, Churchill amended and restated that certain letter agreement (the “Amended and Restated Sponsor Agreement”),
dated July 29, 2020, by and among Churchill, Churchill Sponsor and Michael Klein, Lee Jay Taragin, Glenn R. August, William J.
Bynum, Bonnie Jonas, Mark Klein, Malcom S. McDermid and Karen G. Mills (the “Insiders”), pursuant to which,
among other things, Churchill Sponsor and the Insiders agreed (i) to vote any shares of Churchill’s securities in favor of
the Transactions and other SPAC Stockholder Matters, (ii) not to redeem any shares of Class A Common Stock or Churchill’s
Class B common stock, par value $0.0001 per share (the “Class B Common Stock”) in connection with the stockholder
redemption, (iii) to pay any amounts in excess of the SPAC expense cap of $128 million in either cash or by forfeiting a number
of shares of Class A Common Stock, at a price of $10.00 per share, and/or warrants, at a price of $1.00 per share, (iv) not to
transfer any shares of Churchill securities until 18 months following the closing of the Transactions and (v) to be bound to certain
other obligations as described therein. Additionally, certain of Churchill Sponsor’s shares of Class B Common Stock (including
shares of Class A Common Stock issued upon conversion of the Class B Common Stock) and private placement warrants (including shares
of Class A Common Stock issued upon exercise of such private placement warrants) will unvest as of the closing of the Transactions
and will revest, in three equal tranches, based on the volume weighted average price of the Company’s Class A Common Stock
being greater than or equal to $20.00, $25.00 and $30.00, respectively, per share for any 40 trading days in a 60 consecutive day
period. The foregoing description of the Amended and Restated Sponsor Agreement is not complete and is qualified in its entirety
by reference to the Amended and Restated Sponsor Agreement, which is attached as Exhibit 10.3 to this Current Report and incorporated herein by reference.