Lordstown Motors considers lawsuit against FoxConn

Dispute over investment agreement is ongoing

LORDSTOWN — Electric-vehicle startup Lordstown Motors Corp. is threatening to sue Foxconn if the Taiwanese electronics company doesn’t make good on a $170 million investment agreement, funding the EV maker has said is critical to its survival.

The company “intends to enforce its rights through litigation” if a “prompt resolution” with Foxconn isn’t achieved over closing on about $47.3 million in Lordstown Motors Class A common stock, according to a regulatory filing Friday.

The dispute between the companies goes back to April when Lordstown Motors received a delisting notice from Nasdaq, stating the company’s stock had fallen below the minimum bid price requirement of $1 per share for 30 consecutive trading days.

That triggered a letter from Foxconn, stating it believed Lordstown Motors, because of the notification from Nasdaq, had breached the investment agreement. Later, Foxconn indicated to Lordstown Motors it did not intend to close on the $47.3 million stock purchase, according to another regulatory filing.

To pump up the value of its stock to come back into compliance with Nasdaq rules and perhaps persuade Foxconn to follow through on the stock acquisition, Lordstown Motors, with shareholder approval, performed a reverse 1:15 stock split May 25.

On Wednesday, Nasdaq informed Lordstown Motors it was back in compliance, according to Friday’s filing with the U.S. Securities and Exchange Commission.

Two days earlier, however, the same filing states Lordstown Motors received a letter from Foxconn stating the investment agreement would not allow for the adjustment of the number of shares to be purchased because of the stock split.

The filing states Foxconn’s interpretation of the agreement is that it gives the company the right to acquire more than 60 percent of the Class A stock for the $47.3 million.

Before the split — a maneuver that consolidates existing shares into fewer shares with the intended result of a higher price — the $47.3 million investment would have bought Foxconn about 10 percent of Lordstown Motors’ Class A common stock.

The letter states the closing is “intentionally silent” on the impact of any stock split and reflects “the parties’ intent that a stock split not have any impact on Foxconn’s purchase right” as part of the closing.

Accordingly, the closing “does not speak in terms of the percentage of outstanding common stock that Foxconn is entitled to purchase at the closing,” but rather, the agreement “very directly states ‘the company shall issue, sell and deliver to the investor 26,855,453 shares of common stock … for a purchase price per share equal to $1.76’ without any limitation or condition,” the letter states.

Lordstown Motors responded in a letter Wednesday, stating Foxconn’s assertion its purchase rights should not be adjusted to reflect the split is the “latest in a series of actions” taken by the company to “evade its obligations” in the investment agreement.

“It cannot be a coincidence that only now, after Foxconn’s pretext for failing to close has been removed, that you raise this new, and equally baseless, argument that Foxconn can now acquire 62.8 percent of the outstanding common stock, effective control of the company, for the same price it agreed to pay for 10 percent,” the letter states. “While the investment agreement does specify a specific number of shares to be purchased, that clearly was based on the number of shares outstanding prior to the reverse stock split.”

Lordstown Motors and Foxconn announced the equity investment agreement Nov. 7. A large portion of the $170 million was earmarked to develop and design a new EV program in collaboration with the Taiwanese tech and electronics giant.

The first round of the funding for about $52.7 million in common and preferred stock closed Nov. 22.

But the deal also called for a second closing worth about $47.3 million in common stock following approval from the Committee on Foreign Investment in the United States, which reviews certain transactions involving foreign investment in the U.S. to determine their effect on national security.

The transaction was cleared April 25, meaning the stock closing is to happen on or before May 8.

Also, upon satisfaction of certain milestones related to predevelopment and design activities of the new joint EV program, Foxconn agreed to purchase up to $70 million more shares in preferred stock.

Without the closings, Lordstown Motors has stated in filings it “will be deprived of critical funding necessary for its operations,” and could consider filing bankruptcy as an option.


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