UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 11)*

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 13d-7(b) for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

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CUSIP No.: 74348Q108

1	NAMES OF REPORTING PERSONS
	FF Top Holding LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP			(a)	☐
				(b)	☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			0
		8	SHARED VOTING POWER
			117,705,569 (1)
		9	SOLE DISPOSITIVE POWER
			0
		10	SHARED DISPOSITIVE POWER
			64,000,588 (1)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	117,705,569 (1)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	35.9% (2)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

(1)   Includes (i) 53,704,981 shares of Class A Common Stock held by certain other stockholders of the Issuer over which the Reporting Persons exercise voting control pursuant to voting agreements, including 1,180,689 shares of Class A Common Stock held directly by Pacific Technology Holding LLC, and (ii) 64,000,588 shares of Class B common stock, par value $0.0001 per share (the “Class B Common Stock”) held directly by FF Top Holding LLC.  Shares of Class B Common Stock are convertible into an equal number of shares of Class A Common Stock of the Issuer at any time.  Assumes the conversion of the Class B Common Stock referred to above into shares of Class A Common Stock on a one-to-one basis.

(2)   Based on 327,913,934 shares of Class A Common Stock issued and outstanding as of August 9, 2022, as reported in the Issuer’s Form 10-Q, filed by the Issuer with the Securities and Exchange Commission (the “SEC”) on August 15, 2022.  Assumes the conversion of the Class B Common Stock referred to in footnote 1 into shares of Class A Common Stock.

CUSIP No.: 74348Q108

(1)   Includes (i) 52,524,292 shares of Class A Common Stock held by certain other stockholders of the Issuer over which the Reporting Persons exercise voting control pursuant to voting agreements, (ii) 1,180,689 shares of Class A Common Stock held directly by Pacific Technology Holding LLC, and (iii) 64,000,588 shares of Class B Common Stock held directly by FF Top Holding LLC.  Shares of Class B Common Stock are convertible into an equal number of shares of Class A Common Stock of the Issuer at any time.  Assumes the conversion of the Class B Common Stock referred to above into shares of Class A Common Stock on a one-to-one basis.

(2)   Based on 327,913,934 shares of Class A Common Stock issued and outstanding as of August 9, 2022, as reported in the Issuer’s Form 10-Q, filed by the Issuer with the SEC on August 15, 2022.  Assumes the conversion of the Class B Common Stock referred to in footnote 1 into shares of Class A Common Stock.

CUSIP No.: 74348Q108

(1)   Includes (i) 52,524,292 shares of Class A Common Stock held by certain other stockholders of the Issuer over which the Reporting Persons exercise voting control pursuant to voting agreements, (ii) 1,180,689 shares of Class A Common Stock held directly by Pacific Technology Holding LLC, and (iii) 64,000,588 shares of Class B Common Stock held directly by FF Top Holding LLC.  Shares of Class B Common Stock are convertible into an equal number of shares of Class A Common Stock of the Issuer at any time.  Assumes the conversion of the Class B Common Stock referred to above into shares of Class A Common Stock on a one-to-one basis.

(2)   Based on 327,913,934 shares of Class A Common Stock issued and outstanding as of August 9, 2022, as reported in the Issuer’s Form 10-Q, filed by the Issuer with the SEC on August 15, 2022.  Assumes the conversion of the Class B Common Stock referred to in footnote 1 into shares of Class A Common Stock.

AMENDMENT NO. 11 TO SCHEDULE 13D

Reference is hereby made to the statement on Schedule 13D filed with the Securities and Exchange Commission by the Reporting Persons with respect to the Class A Common Stock and Class B Common Stock of the Issuer on August 2, 2021, as amended on May 17, 2022, June 24, 2022, June 27, 2022, July 15, 2022, July 18, 2022, August 2, 2022, August 8, 2022, August 23, 2022, September 9, 2022 and September 19, 2022 (as so amended through September 19, 2022, the “Original Schedule 13D” and together with this Amendment No. 11, the “Schedule 13D”).  Terms defined in the Schedule 13D are used herein as so defined. Except as specifically provided herein, this Amendment No. 11 does not modify any of the information previously reported in the Schedule 13D.

 

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is hereby supplemented as follows:

“The information included in Item 6 of this Amendment No. 11 is incorporated herein by reference.”

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby supplemented as follows:

“On September 23, 2022, FF Global and FF Top entered into a Heads of Agreement (the “Heads of Agreement”) with Issuer. Pursuant to the Heads of Agreement:

In connection with the Heads of Agreement, on September 23, 2022, Issuer entered into a Mutual Release (the “Mutual Release”) with FF Global, its executive committee members and their controlled affiliates, FF Global’s controlled affiliates (including FF Top), and the directors of Issuer and their controlled affiliates (collectively, and together with Issuer, the “Release Parties”), pursuant to which the Release Parties agreed to a mutual release of claims, subject to customary exceptions.

The foregoing description of the Heads of Agreement and Mutual Release is a summary and is qualified in its entirety by reference to the full text of the Heads of Agreement and Mutual Release filed, respectively, as Exhibits 12 and 13 hereto and are incorporated herein by reference.

On September 23, 2022, Issuer entered into a letter agreement with FF Top (the “Voting Agreement”), pursuant to which FF Top agreed to vote, with respect to all shares of Issuer voting stock over which it has voting control, in favor of any resolution presented to the stockholders of Issuer at a stockholders’ meeting to approve, among other things:

In addition, FF Top has agreed in the Voting Agreement that, subject to FF Top’s consent (not to be unreasonably withheld, conditioned or delayed), Issuer may seek to further increase the number of authorized shares of Common Stock to up to a maximum of 1,500,000,000 shares, and in such event, FF Top will vote all shares with respect to which it has voting power in favor of any resolutions presented to stockholders to effect such increase in the number of authorized shares.

FF Top’s obligations pursuant to their respective voting agreements are conditioned on the accuracy of certain representations, compliance by Issuer with certain covenants and the satisfaction of certain conditions, in each case as further set forth in the applicable voting agreement.  Such conditions include, among others, satisfaction of the Implementation Condition, the execution of the further definitive documentation contemplated by the Heads of Agreement by no later than October 7, 2022, compliance by Issuer with its obligations pursuant to the Heads of Agreement and all further definitive documents and the occurrence of the obligations set forth in the Heads of Agreement with respect to Ms. Swenson and Mr. Krolicki.

Issuer also agrees in the voting agreements that FF Top may vote its shares of Common Stock in favor of each of the Krolicki and Swenson removal proposals (if any), that neither FF Top nor Issuer has any obligation to nominate or reappoint Mr. Krolicki or Ms. Swenson to the Board at any time following their resignation or removal for any reason, that neither Mr. Krolicki nor Ms. Swenson shall be re-appointed or re-nominated to the Board following their resignation or removal and that neither Mr. Krolicki nor Ms. Swenson shall be (re)hired, (re)engaged or (re)appointed to any position at Issuer following their resignation or removal from their respective non-Board roles (if any) at Issuer.

The foregoing description of the Voting Agreement is a summary and is qualified in its entirety by reference to the full text thereof, filed as Exhibit 14 hereto and is incorporated herein by reference.

Item 7.

Material to be Filed as Exhibits.

 

Item 7 of the Schedule 13D is hereby supplemented to include the following exhibit:

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

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EXECUTION VERSION

MUTUAL RELEASE

 

This MUTUAL RELEASE (this “Release”) is entered into as of September [23], 2022, by and between (i) FF Global Partners, LLC, a Delaware limited liability company (“FFGP”), (ii) the entities listed on Schedule 1 hereto (the “FFGP Controlled Affiliates”), (iii) the individuals listed on Schedule 2 hereto, in their capacities as executive committee members of FFGP (the “Executive Committee Members”), (iv) FF Top Holding LLC, a Delaware limited liability company (“FF Top” and, together with FFGP, the FFGP Controlled Affiliates and the Executive Committee Members, the “FFGP Parties”), (v) Faraday Future Intelligent Electric, Inc., a Delaware corporation (“FFIE”), (vi) the entities listed on Schedule 3 hereto (the “FFIE Controlled Affiliates” and, together with FFIE, the “FFIE Parties” and, together with the FFGP Parties, the “Non-Director Parties”) and (vii) the individuals listed on Schedule 4 hereto  (each, a “Director” and the Directors, together with the Non-Director Parties, the “Parties”).

 

 

WHEREAS, this Release is an exhibit to the Heads of Agreement (the “Heads of Agreement”) entered into by FFIE, FFGP and FF Top which contemplates, among other things, the negotiation and execution of Definitive Documents (as defined in the Heads of Agreement);

 

WHEREAS, resolving the governance disputes between FFIE and its shareholders is essential to FFIE’s ability to procure incremental financing;

 

WHEREAS, FFIE believes that it will suffer material harm without significant near-term financing;

 

WHEREAS, certain affiliates of ATW Partners Opportunities Management, LLC have committed to providing financing to FFIE, subject to, among other things, the resolution of such governance disputes and FFIE believes that obtaining such financing is critical to it;

 

WHEREAS, the Parties share a common interest in resolving such governance disputes; and

 

WHEREAS, the Parties desire to settle various matters among them, on the terms and subject to the conditions set forth in this Release and in the Heads of Agreement, including, but in no way limited to, with respect to any differences that arose in any way out of Directors’ service as a director, employee, officer or manager of FFIE up through and including the Effective Date.

 

 

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Party, intending to be legally bound hereby, agrees as follows:

 

1.            Definitions.

 

(a)           Each term defined in the opening paragraph and the Recitals above shall have the meaning assigned to such term therein.

 

(b)          “Claims” means, collectively, any and all manner of action or actions, causes of action, executions, investigations, proceedings, suits, orders, judgments, debts, obligations, liens, torts, contracts, agreements, rights, promises, liabilities, claims, charges, complaints, contentions, accountings, dues or demands, interests, damages, losses, costs and expenses (including attorneys’ fees and expenses) of any nature whatsoever, including any derivative claims, whether direct or indirect, liquidated or unliquidated, accrued or unaccrued, known or unknown, anticipated or unanticipated, disputed or undisputed, fixed or contingent, matured or unmatured, now existing or hereinafter arising, both at law and in equity (including, without limitation, crossclaims, counterclaims and rights of set off and/or recoupment); provided, however, that “Claims” shall not include any manner of claim or cause of action arising on or after the date hereof from this Release, the Heads of Agreement (or any joinder thereto), the Definitive Documents contemplated by the Heads of Agreement, or any provision in the Shareholder Agreement that survives the Heads of Agreement or, upon execution of such Definitive Documents, survives the Definitive Documents (including without limitation the amended and restated Shareholder Agreement contemplated by the Heads of Agreement).

 

(c)          “Director Released Parties” means, collectively, each Director and its respective heirs, executors, administrators, successors, personal representatives, estate, assigns, advisors and other representatives.

 

(d)         “FFGP Released Parties” means, collectively, each of (i) the FFGP Parties, (ii) their respective predecessors, successors and assigns, (iii) with respect to the foregoing clauses (i) and (ii) and solely in their capacity as such, their advisors, advisees, sub-advisees and other representatives, and (iv) with respect to the foregoing clauses (i) through (iii) and solely in their capacity as such, all of their respective past, present or future officers, directors, principals, shareholders, members, partners, general partners, limited partners, managers, controlling persons, employees, administrators, heirs and executors.

 

(e)         “FFIE Released Parties” means, collectively, each of (i) the FFIE Parties, (ii) their respective predecessors, successors and assigns, (iii) with respect to the foregoing clauses (i) and (ii) and solely in their capacity as such, their advisors, advisees, sub-advisees and other representatives, and (iv) with respect to the foregoing clauses (i) through (iii) and solely in their capacity as such, all of their respective past, present or future officers, directors, principals, shareholders, members, partners, general partners, limited partners, managers, controlling persons, employees, administrators, heirs and executors.  For the avoidance of doubt, the “FFIE Released Parties” shall not include the Director Released Parties.

 

(f)          “Non-Director Released Parties” means, collectively, each of (i) the Non-Director Parties, (ii) their respective predecessors, successors and assigns, (iii) with respect to the foregoing clauses (i) and (ii) and solely in their capacity as such, their advisors, advisees, sub-advisees and other representatives, and (iv) with respect to the foregoing clauses (i) through (iii) and solely in their capacity as such, all of their respective past, present or future officers, directors, principals, shareholders, members, partners, general partners, limited partners, managers, controlling persons, employees, administrators, heirs and executors.  For the avoidance of doubt, the “Non-Director Released Parties” shall not include the Director Released Parties.

 

2.          Other Definitional Provisions.  Article, Section, Schedule, and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this Release, unless otherwise specified. The words “hereof’, “herein”, and “hereunder” and words of similar import when used in this Release shall refer to this Release as a whole and not to any particular provision of this Release.  The term “including” means “including, without limitation”.  Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural.  Paragraph headings have been inserted in this Release as a matter of convenience for reference only and it is agreed that such paragraph headings are not a part of this Release and shall not be used in the interpretation of any provision of this Release.

 

3.             Non-Director Party Releases.

 

(a)         Effective upon the Effective Date, in exchange for good and valuable consideration, the adequacy of which is hereby confirmed, each of the Non-Director Parties, on its own behalf and on behalf of each of the Non-Director Released Parties, hereby voluntarily, intentionally, knowingly, absolutely, unconditionally and irrevocably releases, waives, remits, acquits and forever discharges and covenants not to sue each of the Director Released Parties from and with respect to any and all Claims asserted or assertable by or on behalf of any Non-Director Released Party, which he, she or it now has, has ever had or may hereafter have, by reason of any actual or alleged act, omission, transaction, practice, conduct, occurrence, cause, event or other matter whatsoever occurring at any time on or prior to the Effective Date, arising out of, relating to or in any way connected with (x) any Director’s relationship with any Non-Director Released Party in his or her capacity as a director, employee, officer or manager of FFIE, FFGP or any of each of their subsidiaries or affiliates or (y) any event, condition, circumstance or obligation that occurred, existed or arose on or prior to the Effective Date.

 

(b)          From and after the Effective Date, each Non-Director Party hereby acknowledges and confirms, and covenants and agrees, that it shall: (i) not take any action, or cause the applicable Non-Director Released Party to take any action, to terminate, amend or restrict any indemnity agreements in favor of any Director in place prior to the Effective Date; and (ii) abide by, and not take any action, or cause the applicable Non-Director Released Party to take any action, to amend, change or modify in any manner whatsoever that may be adverse to any Director Released Party, the rights to insurance existing in favor of any Director, in each case except where required by applicable law.

 

4.            Releases by Directors.  Effective upon the Effective Date, in exchange for good and valuable consideration, the adequacy of which is hereby confirmed, each Director, on behalf of himself or herself and each of the Director Released Parties, hereby voluntarily, intentionally, knowingly, absolutely, unconditionally and irrevocably releases, waives, remits, acquits and forever discharges and covenants not to sue each of the Non-Director Released Parties from and with respect to any and all Claims asserted or assertable by or on behalf of any Director Released Party, which he, she or it now has, has ever had or may hereafter have, by reason of any actual or alleged act, omission, transaction, practice, conduct, occurrence, cause, event or other matter whatsoever occurring at any time on or prior to the Effective Date, arising out of, relating to or in any way connected with (x) a Director’s employment relationship with or service as a director, employee, officer or manager of FFIE or any subsidiaries or affiliates thereof, and the termination of such relationship or service, or (y) any event, condition, circumstance or obligation that occurred, existed or arose on or prior to the Effective Date.  Notwithstanding anything to the contrary herein, nothing in this Release shall be effective to release any Non-Director Released Party from any Claims, rights or entitlements that any Director Released Party may have now or in the future, if any: (i) for indemnification or advancement or reimbursement of expenses granted by FFIE Parties to any Director in his or her capacity as a director, employee or officer of FFIE or any subsidiaries or affiliates thereof pursuant to the Shareholder Agreement dated July 21, 2021 by and between FFIE and FF Top (the “Shareholder Agreement”) or the terms of the by-laws in place prior to the Effective Date of FFIE or any subsidiaries or affiliates thereof, and the applicable laws of the jurisdiction of incorporation or organization of FFIE or any subsidiaries or affiliates thereof, as applicable, or any indemnity agreements with FFIE Parties in place from time to time in favor of any Director; (ii) pursuant to any directors’ and officers’ insurance policies maintained for the benefit of any Director by any Non-Director Released Party; (iii) any and all claims against FFIE Parties for (A) accrued but unpaid director’s, officer’s or employee’s compensation, as well as (B) unreimbursed expenses arising out of any Director being an officer, director or employee of FFIE or any subsidiaries or affiliates thereof; (iv) pursuant to any stock option agreements or other compensatory equity awards; or (v) for accrued but unpaid director’s, officer’s and employee’s compensation, salary, benefits, or other amounts owing by FFIE Parties to any Director, as well as unreimbursed expenses, arising out of any Director’s being a director, employee, officer or manager of FFIE or any subsidiaries or affiliates thereof.

 

5.            FFGP Party Releases.  Effective upon the Effective Date, in exchange for good and valuable consideration, the adequacy of which is hereby confirmed, each of the FFGP Parties, on its own behalf and on behalf of each of the FFGP Released Parties, hereby voluntarily, intentionally, knowingly, absolutely, unconditionally and irrevocably releases, waives, remits, acquits and forever discharges and covenants not to sue each of the FFIE Released Parties from and with respect to any and all Claims asserted or assertable by or on behalf of any FFGP Released Party, which it now has, has ever had or may hereafter have, by reason of any actual or alleged act, omission, transaction, practice, conduct, occurrence, cause, event or other matter whatsoever occurring at any time on or prior to the Effective Date; provided, however, that the foregoing shall not release any claim or right arising in the ordinary course of business pursuant to, or serve to terminate, any existing agreements among the Non-Director Parties hereto.

 

6.            FFIE Party Releases.  Effective upon the Effective Date, in exchange for good and valuable consideration, the adequacy of which is hereby confirmed, each of the FFIE Parties, on its own behalf and on behalf of each of the FFIE Released Parties, hereby voluntarily, intentionally, knowingly, absolutely, unconditionally and irrevocably releases, waives, remits, acquits and forever discharges and covenants not to sue each of the FFGP Released Parties from and with respect to any and all Claims asserted or assertable by or on behalf of any FFIE Released Party, which it now has, has ever had or may hereafter have, by reason of any actual or alleged act, omission, transaction, practice, conduct, occurrence, cause, event or other matter whatsoever occurring at any time on or prior to the Effective Date; provided, however, that the foregoing shall not release any claim or right arising in the ordinary course of business pursuant to, or serve to terminate, any existing agreements among the Non-Director Parties hereto. Notwithstanding anything to the contrary herein, nothing in this Release shall be effective to release any FFIE Released Party from any Claims, rights or entitlements that any FFGP Released Party may have now or in the future, if any: (i) for indemnification or advancement or reimbursement of expenses granted by FFIE Parties to any FFGP Released Party in his or her capacity as a director, employee or officer of FFIE or any subsidiaries or affiliates thereof or the terms of the by-laws in place prior to the Effective Date of FFIE or any subsidiaries or affiliates thereof, and the applicable laws of the jurisdiction of incorporation or organization of FFIE or any subsidiaries or affiliates thereof, as applicable, or any indemnity agreements with FFIE Parties in place from time to time in favor of any FFGP Released Party; (ii) pursuant to any directors’ and officers’ insurance policies maintained for the benefit of any FFGP Released Party by any FFIE Released Party; (iii) any and all claims against FFIE Parties for (A) accrued but unpaid director’s, officer’s or employee’s compensation, as well as (B) unreimbursed expenses arising out of any FFGP Released Party being an officer, director or employee of FFIE or any subsidiaries or affiliates thereof; (iv) pursuant to any stock option agreements or other compensatory equity awards or (v) for accrued but unpaid director’s, officer’s and employees’s compensation, salary, benefits, or other amounts owing by FFIE Parties to any FFGP Released Party, as well as unreimbursed expenses, arising out of any FFGP Released Party being a director, employee, officer or manager of FFIE or any subsidiaries or affiliates thereof.  From and after the Effective Date, each FFIE Party hereby acknowledges and confirms, and covenants and agrees, that it shall: (i) not take any action, or cause the applicable FFGP Released Party to take any action, to terminate, amend or restrict any indemnity agreements in favor of any FFGP Released Party, in place prior to the Effective Date; and (ii) abide by, and not take any action, or cause the applicable FFIE Released Party to take any action, to amend, change or modify in any manner whatsoever that may be adverse to any FFGP Released Party, the rights to insurance existing in favor of any FFGP Released Party, in each case except where required by applicable law.

 

7.           Conditions to Effectiveness.  This Release, including, without limitation, the releases and related covenants not to sue hereof, shall become effective upon satisfaction of the following conditions (the date on which such conditions are satisfied or waived by the Parties, the “Effective Date”):

 

(a)           each Party shall have duly executed and delivered a signature page to this Agreement;

 

(b)           each party to the Heads of Agreement shall have duly executed and delivered a signature page thereto;

 

(c)          Mr. Adam He shall have been appointed to the board of directors of FFIE as set forth in Section 3 of Part D of the Heads of Agreement; provided that, for the avoidance of doubt, this condition shall be satisfied in the event that the Board so resolves to appoint Mr. He but he declines such appointment or is otherwise unwilling or unable to serve as a director of FFIE; and

 

(d)          FFIE shall have paid all reasonable, actual and documented attorney’s fees and expenses (including any retainers) of each Director for which an invoice has been received by FFIE on or before the date this Release has been executed by the Parties.

 

8.          Section 1542.  To the extent that, notwithstanding the New York choice of law provisions in this Release, California law is deemed to apply to the release provisions set forth herein, each Party hereby expressly agrees that the release contemplated by this Release extends to any and all rights granted under Section 1542 of the California Civil Code or any analogous state law or federal law or regulation are hereby expressly waived.  Section 1542 of the California Civil Code (“Section 1542”) reads as follows:

 

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

 

Each Party understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives such Party the right not to release existing claims of which such Party is not aware, unless such Party voluntarily chooses to waive this right.  Having been so apprised, each Party nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Release, in each case, effective upon the Effective Date.  Each Party acknowledges and agrees that the foregoing waiver is an essential and material term of the release by each Party and that, without such waiver, other parties hereto would not have agreed to the terms of this Release.  Each Party hereby represents to the applicable Parties that it understands and acknowledges that it may hereafter discover facts and legal theories concerning such Parties and the subject matter hereof in addition to or different from those which it now believes to be true.  Each Party understands and hereby agrees that the release set forth herein shall remain effective in all respects notwithstanding those additional or different facts and legal theories or the discovery of those additional or different facts or legal theories.  Each Party assumes the risk of any mistake of fact or applicable law with regard to any potential claim or with regard to any of the facts that are now unknown to it relating thereto.

 

9.           Covenant Not to Sue.  Each Party that has executed this Release hereby irrevocably covenants, effective upon the Effective Date, to refrain from, directly or indirectly, asserting any Claim against any Director Released Party or Non-Director Released Party, as applicable, before any governmental authority or other forum on the basis of any Claims released by such Director Released Party or Non-Director Released Party, as applicable, by and through this Release. Nothing in this provision shall limit a Party’s right to enforce this agreement or to obtain appropriate relief for a breach thereof.

 

10.          Assignment of Claims.  Each Party that has executed this Release represents to the other Parties that it has not assigned or transferred or purported to assign or transfer to any person or entity all or any part of, or any interest in, any Claim which is or which purports to be released or discharged by this Release.

 

11.          Supplemental Release.  The Non-Director Parties acknowledge that each Director, may continue to perform his or her duties beyond the Effective Date until the earlier of the time they are required to resign pursuant to the Heads of Agreement and the certification of votes at the 2022 AGM (as defined in the Heads of Agreement), and the Non-Director Parties agree and covenant, in consideration of the execution of this Release, to execute a supplemental release, which shall be in form and substance substantially similar to this Agreement (the “Supplemental Release”) concurrently with such Director’s resignation from all his/her positions as a director of FFIE and any subsidiaries or affiliates thereof.

 

12.         Representations and Warranties.  Each Non-Director Party that is not a natural person represents and warrants that: (i) such Non-Director Party has the requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby, (ii) the execution and delivery of this Release by such Non-Director Party (and its respective signatory hereto) and the performance of such Non-Director Party’s obligations hereunder have been duly authorized by all necessary action on such Non-Director Party’s part, and this Release has been duly executed and delivered by such Non-Director Party, (iii) this Release constitutes the legal, valid, and binding obligation of such Non-Director Party enforceable in accordance with its terms and conditions, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity, (iv) there are no governmental or other third party consents, licenses and approvals required in connection with the execution, delivery, performance, validity and enforceability of this Release, and (v) such Non-Director Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation.

 

13.          Non-Disparagement.

 

(a)          Each Director agrees not to, and shall direct their present or former representatives or attorneys not to, defame or otherwise disparage any Non-Director Released Parties. The Non-Director Parties agree not to, and shall direct their present or former partners, officers, directors, shareholders, employees, representatives and attorneys not to, defame or otherwise disparage any Director Released Party.

 

(b)          The FFIE Parties agree not to, and shall direct their present or former partners, officers, directors, shareholders, employees, representatives or attorneys not to, defame or otherwise disparage any FFGP Released Party. The FFGP Parties agree not to, and shall direct their present or former partners, officers, directors, shareholders, employees, representatives and attorneys not to, defame or otherwise disparage any FFIE Released Party.

 

(c)          Nothing in this Release shall limit or affect the ability of a Party (i) to testify truthfully in any civil or criminal investigation or proceeding or (ii) to cooperate with any law enforcement or regulatory agency.

 

14.          Expenses.  In the event that any Director Released Party or Non-Director Released Party should wrongfully bring any suit in violation of this Release or be determined by a final order of a court of competent jurisdiction to have otherwise breached this agreement, such breaching Party shall reimburse each non-breaching Party for all costs and expenses (including attorney’s fees) reasonably incurred in connection therewith.

 

15.          Shareholder Agreement.  Each Director hereby irrevocably waives any and all rights (if any) he/she may have, now or in the future, under or in connection with Section 2.1 of the Shareholder Agreement, to seek re-election, re-nomination or reappointment to the board of directors of FFIE.

 

16.           Entire Agreement.  This Release constitutes the entire agreement of the parties with respect to the releases set forth herein.

 

17.          Use of Legal Counsel and Construction of Agreement.  Each of the parties hereto hereby acknowledges that it has been advised by its own legal counsel in connection with the negotiation, drafting, execution and delivery and consummation of this Release (including, without limitation, the release provisions hereof).  The parties hereto agree and acknowledge that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Release or any amendments, exhibits or schedules hereto.  Each party hereto has entered into this Release freely and voluntarily, without coercion, duress, distress or under influence by any other persons or its respective shareholders, directors, officers, partners, agents or employees.

 

18.          Third-Party Beneficiaries.  Each Director Released Party and Non-Director Released Party that is not a direct signatory hereto is an express third-party beneficiary of this Release and shall be entitled to enforce the terms of this Release as if such Director Released Party or Non-Director Released Party were a direct signatory hereto.

 

19.         Counterparts.  This Release may be executed in one or more counterparts, each of which shall be an original and all of which, when so executed, shall constitute the same instrument, and the counterparts may be delivered by facsimile transmission or by electronic mail in portable document format (.pdf). The parties hereto agree that this Release may be executed by way of electronic signature and agree that the electronic signature has the same binding effect as a physical signature. For the avoidance of doubt, the parties hereto agree that this Release, or any part thereof, shall not be denied legal effect, validity or enforceability on the ground that it is in the form of an electronic record.

 

20.         Amendments.  This Release may not be amended or modified, or any provision herein waived, without the prior written consent of each party that has executed this Release; provided that no such amendment or modification shall limit the rights of a Director Released Party or Non-Director Released Party without such Director Released Party’s or Non-Director Released Party’s prior written consent.  No waiver of any of the provisions of this Release shall be deemed or shall constitute a waiver of any other provision hereof or thereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided in writing.

 

21.          Invalidity.  If any provision of this Release is held to be illegal, invalid or unenforceable under present or future laws effective during the term thereof, such provision shall be fully severable, this Release shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part thereof, and the remaining provisions thereof shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance therefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable provision there shall be added automatically as a part of this Release a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable.

 

22.         Governing Law and Forum Selection.  The provisions in the Heads of Agreement that relate to choice of law and forum selection are incorporated herein and shall apply with equal force and effect to this Release.

 

[Remainder of  This Page Intentionally Left Blank]

 

	FF GLOBAL PARTNERS LLC
	By:	/s/ Jiawei Wang
		Name: Jiawei Wang
		Title: President

	FF TOP HOLDING LLC
	By: FF Peak Holding LLC, its sole member
	By: Pacific Technology Holding LLC, its managing member
	By: FF Global Partners LLC, its managing member

	By:	/s/ Jiawei Wang
		Name: Jiawei Wang
		Title: President

	PACIFIC TECHNOLOGY HOLDING, LLC
	By: FF Global Partners LLC, its managing member

	By:	/s/ Jiawei Wang
		Name: Jiawei Wang
		Title: President

	By:	/s/ Chaoying Deng
		Name: Chaoying Deng

	By:	/s/ Prashant Gulati
		Name: Prashant Gulati

	By:	/s/ Yueting Jia
		Name: Yueting Jia

	By:	/s/ Chui Tin Mok
		Name: Chui Tin Mok

	By:	/s/ Jiawei Wang
		Name: Jiawei Wang

	FARADAY FUTURE INTELLIGENT ELECTRIC INC.
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Chief Executive Officer

	SMART TECHNOLOGY HOLDINGS LTD.
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	FF HONG KONG HOLDING LIMITED
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	FF INC.
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	FARADAY&FUTURE INC.
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	FF MANUFACTURING LLC
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer

	FARADAY SPE, LLC
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	EAGLE PROP HOLDCO LLC
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	FF SALES AMERICAS, LLC
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	FF EQUIPMENT LLC
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer
	FF ECO SALES COMPANY, LLC
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Officer

	FF EUROPE GMBH
	By:	/s/ Susan Swenson
	Name: Susan Swenson
	Title: Authorized Officer
	FARADAY & FUTURE NETHERLANDS B.V.
	By:	/s/ Susan Swenson
	Name: Susan Swenson
	Title: Authorized Officer
	FA&FA INC.
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Signatory
	FF INTELLIGENT MOBILITY GLOBAL HOLDINGS LTD.
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Signatory

	FF AUTOMOTIVE (CHINA) CO., LTD.
	LESEE AUTO TECHNOLOGY (BEIJING) CO., LTD.
	LESEE AUTOMOTIVE (BEIJING) CO., LTD.
	RUIYU AUTOMOTIVE (BEIJING) CO., LTD.
	SHANGHAI FARAN AUTOMOTIVE TECHNOLOGY
	CO., LTD.
	FF AUTOMOTIVE (ZHEJIANG) CO., LTD.
	LETV NEW ENERGY AUTOMATIC TECHNOLOGY
	(DEQING) CO., LTD.
	LEAUTOLINK INTELLIGENT TECHNOLOGY
	(BEIJING) CO., LTD.
	LESEE AUTO TECHNOLOGY (BEIJING) CO., LTD.
	LESHARE INTERNET TECHNOLOGY (BEIJING)
	CO., LTD.
	DEQING LESHARE AUTO RENTAL CO. LTD.
	FARADAY & FUTURE AUTO TECHNOLOGY
	(SHANGHAI) CO., LTD.
	LESEE HONG KONG HOLDINGS LIMITED
	LESEE AUTOMOTIVE (ZHEJIANG) CO., LTD.
	By: FARADAY FUTURE INTELLIGENT
	ELECTRIC INC.,
	its ultimate parent
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Chief Executive Officer

	SMART TECHNOLOGY HOLDINGS LTD.
	By:	/s/ Carsten Breitfeld
	Name: Carsten Breitfeld
	Title: Authorized Signatory

	By:	/s/ Matthias Aydt
		Name: Matthias Aydt

	By:	/s/ Carsten Breitfeld
		Name: Carsten Breitfeld

	By:	/s/ Edwin Goh
		Name: Edwin Goh

	By:	/s/ Brian Krolicki
		Name: Brian Krolicki

	By:	/s/ Qing Ye
		Name: Qing Ye

	By:	/s/ Lee Liu
		Name: Lee Liu

	By:	/s/ Jordan Vogel
		Name: Jordan Vogel

	By:	/s/ Scott Vogel
		Name: Scott Vogel

	By:	/s/ Susan Swenson
		Name: Susan Swenson

 

FFGP Controlled Affiliates

 

 

 

 

 

Executive Committee Members

 

 

 

 

 

 

 

FFIE Controlled Affiliates

 

 

FFIE Directors

 

 

 

 

 

 

 

 

 

 

---

Date:

September 23, 2022

RE:	Advanced Approval

To Whom It May Concern:

This letter agreement is by and between FF Top Holding LLC ("FF Top") and Faraday Future Intelligent Electric Inc. (“Faraday” or the “Company”).

(a) the issuance, in the aggregate, of more than 19.999% of the number of shares of common stock of Faraday outstanding on the date hereof as a result of:

(i) the issuance of up to (x) $57 million in principal amount of senior secured Tranche A convertible notes at a conversion price of not below $1.05 per share of Class A Faraday common stock for $27 million, and the remainder ($30 million) at a conversion price of not below $2.69 per share, (y) $57 million in principal amount of senior secured Tranche B convertible notes at a conversion price of not below $1.05 per share of Class A Faraday common stock for $27 million, and the remainder ($30 million) at a conversion price of not below $2.69 per share, and (z) 26,822,724 shares of Class A Faraday common stock upon the exercise of associated warrants, in each case, pursuant to that certain Securities Purchase Agreement, dated August 14, 2022 among Faraday, FF Simplicity Ventures LLC and the purchasers signatory thereto, as amended as of the date hereof (the “ATW Purchase Agreement”) and subject to the full-ratchet anti-dilution and most favored nation protections therein; and

(ii) the issuance of up 73,675,656 shares of Class A Faraday common stock upon the exercise of all prior-issued notes and warrants; and

(iii) the issuance of up to $60 million in principal amount of senior secured convertible notes pursuant to the ATW Purchase Agreement and the joinder thereto to Senyun International Ltd. and/or its affiliates; and

(b) all other actions as otherwise may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity, “Nasdaq”), including Nasdaq Rule 5635(d), to effectuate the share issuances contemplated the foregoing clause (a)(i), (a)(ii) or (a)(iii); and

(c) an increase to the number of authorized shares of Common Stock of Faraday to 900,000,000.

Furthermore, the Company may seek to further increase the authorized shares of Common Stock of Faraday, up to a maximum of 1,500,000,000 shares, subject to the consent of FF Top (which shall not be unreasonably withheld, conditioned or delayed), and FF Top agrees, with respect to any such increase that it has consented to, that it shall vote in favor of, with respect to all shares of Company voting stock over which FF Top has voting control with respect thereto, any such resolutions presented to shareholders of Faraday at a stockholder’s meeting.

Notwithstanding the forgoing, the Advanced Approval does not apply to, and the Company shall, to the extent required by Nasdaq rules and the Company organization documents, seek FF Top’s consent prior to issuing any Company shares for any other purposes not specifically set forth in Section 1(a).

(a) Representations: The Company represents and warrants to FF Top, as of the date hereof and as of the date of the stockholder meeting held in respect of the Issuance Proposal:

(b) Conditions: FF Top's obligations with respect to the Advance Approval are further conditioned on the prior satisfaction (or waiver in writing by FF Top) of the following conditions:

(c) Covenants: FF Top's obligations with respect to the Advance Approval are conditioned on the Company’s compliance in all material respects with the following covenants:

The Company shall continue to comply with this Section 2(c)(1) until the earlier of (x) six months from the date of this letter, and (y) such time as FF Top delivers written notice of termination of this Section 2(c)(1).

If the terms of this letter agreement are in accordance with your understanding, please sign below and this letter agreement will constitute a binding agreement among us.

Exhibit A

Governance Term Sheet