TuSimple DRS/A Draft registration statement (amended) | TSPH 8 Mar 21

Exhibit 10.12

TUSIMPLE HOLDINGS INC.

SERIES E-2 PREFERRED STOCK PURCHASE AGREEMENT

This SERIES E-2 PREFERRED STOCK PURCHASE AGREEMENT (the “Agreement”) is made on February 26, 2021, by and among:

1)	TuSimple Holdings Inc. (the “Company”), a Delaware corporate;

2)	Tusimple (Hong Kong) Limited (the “HK Co”), a limited liability company incorporated in Hong Kong;

3)	Beijing Tusen Zhitu Technology Co., Ltd. (the “WFOE”), a wholly foreign-owned enterprise incorporated in the People’s Republic of China (the “PRC”);

4)	Beijing Tusen Weilai Technology Co., Ltd. (the “DomCo”), a limited liability company incorporated in the PRC;

5)	TuSimple, Inc. (the “US Co”), a California corporation;

6)	Tusimple (Hong Kong) Auto Tech Limited (“HK Auto Tech”), a limited liability company incorporated in Hong Kong;

7)	The Person listed in Schedule 1 (the “Purchaser”);

8)	the Persons listed in Schedule 2-A (the “Founders” and each, a “Founder”); and

9)	the Persons listed in Schedule 2-B (the “Founder Holdcos” and each, a “Founder Holdco”).

Each of the Company, the HK Co, the WFOE, the US Co, the DomCo, HK Auto Tech, the Founders, the Founder Holdcos and the Purchaser shall be referred to individually as a “Party” and collectively as the “Parties”. Capitalized terms used herein shall have the meaning set forth in Schedule 3 attached hereto.

RECITALS

WHEREAS, as of the Execution Date, (i) each Founder owns beneficially and of record one hundred percent (100%) equity interest of its respective Founder Holdco; (ii) the Founder Holdcos collectively own beneficially and of record thirty point five one five percent (30.515%) of the equity interest of the Company; (iii) the Company owns beneficially and of record one hundred percent (100%) equity interest of the HK Co; (iv) the HK Co owns beneficially and of record one hundred percent (100%) equity interest of the WFOE; (v) the WFOE owns beneficially and of record one hundred percent (100%) equity interest of the DomCo; (vi) the Company owns beneficially and of record one hundred percent (100%) equity interest of the US Co; and (vii) the Company owns beneficial and of record one hundred percent (100%) equity interest of HK Auto Tech.

WHEREAS, the Company is an exempted limited liability company and immediately prior to the Closing shall have an authorized share capital consisting of (i) 361,897,230 shares of common stock, par value US$0.0001 per share (the “Common Stock”), of which 60,603,953 shares of Common Stock are issued and fully paid-up; (ii) 20,000,000 shares of Series A preferred stock, par value US$0.0001 per share (the “Series A Preferred Stock”), all of which have been issued; (iii) 8,218,203 shares of Series A-2 preferred stock, par value US$0.0001 per share (the “Series A-2 Preferred Stock”), all of which have been issued; (iv) 7,080,000 shares of Series B-1 preferred stock, par value US$0.0001 per share (the “Series B-1 Preferred Stock”), all of which have been issued; (v) 3,000,000 shares of Series B-2 preferred stock, par value US$0.0001 per share (the “Series B-2 Preferred Stock”), all of which

have been issued; (vi) 3,465,372 shares of Series B-3 preferred stock, par value US$0.0001 per share (the “Series B-3 Preferred Stock”), all of which have been issued; (vii) 14,993,041 shares of Series C preferred stock, par value US$0.0001 per share (the “Series C Preferred Stock”), all of which have been issued; (viii) 20,345,131 shares of Series D-1 preferred stock, par value US$0.0001 per share (the “Series D-1 Preferred Stock”), all of which have been issued; (ix) 50,000,000 shares of Series E preferred stock, par value US$$0.0001 per share (the “Series E Preferred Stock”), 25,695,018 of which have been issued; (x) 3,928,937 shares of Series E-1 preferred stock, par value US$$0.0001 per share (the “Series E-1 Preferred Stock”), all of which have been issued; and (xi) 7,072,086 shares of Series E-2 preferred stock, par value US$$0.0001 per share (the “Series E-2 Preferred Stock”, and together with the Series A Preferred Stock, the Series A-2 Preferred Stock, the Series B-1 Preferred Stock, the Series B-2 Preferred Stock, the Series B-3 Preferred Stock, the Series C Preferred Stock, Series D-1 Preferred Stock, Series E Preferred Stock, Series E-1 Preferred Stock and Series E-2 Preferred Stock, the “Preferred Stock”), none of which have been issued, in each case as set forth in the capitalization table attached as Schedule 8 hereto.

WHEREAS, the Purchaser wishes to purchase from the Company the Series E-2 Preferred Stock, to be issued by the Company pursuant to the terms and subject to the conditions of this Agreement.

AGREEMENT

NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:

1.	PURCHASE AND SALE OF SECURITIES

1.1

Sale and Issuance of Series E-2 Preferred Stock

Subject to the terms and conditions of this Agreement, the Purchaser agrees to purchase at the Closing (as defined below), and the Company agrees to sell and issue to the Purchaser at the Closing, that number of shares of Series E-2 Preferred Stock, set forth opposite the Purchaser’s name on Schedule 1 (the “Purchased Stock”) for the total consideration set forth opposite the Purchaser’s name on Schedule 1 (the “Purchase Price”).

1.2

Closing; Delivery

(a) The purchase and sale of the Purchased Stock shall take place remotely via the exchange of documents and signatures on the date hereof unless the Company and the Purchaser agree otherwise, subject to the satisfaction or waiver of each condition to the Closing set forth in Section 2 and Section 3 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing). The completion of the purchase and sale of the Purchased Stock shall be referred to as the “Closing”.

(b) At the Closing, (i) the Company shall deliver to the Purchaser a copy of the share certificate representing the Purchased Stock (the originals of which shall be delivered to the Purchaser (or its designated custodian, which may be the Company) within ten (10) Business Days after the Closing); and (ii) the Purchaser shall pay or cause to be paid the Purchase Price in accordance with Section 1.3.

1.3

Closing Account

Payment of the Purchase Price by the Purchaser to the Company shall be made by remittance of immediately available US$ funds to a bank account of the Company designated by the Company in writing at least three (3) Business Days before the Closing. All bank charges and related expenses for remittance and receipt of any Purchase Price shall be for the account of the Company.

2.	CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER AT THE CLOSING

The obligations of the Purchaser to purchase its Purchased Stock at the Closing are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived in writing by the Purchaser:

2.1

Material Adverse Effect

Since the Statement Date, no event, circumstance or change shall have occurred that, individually or in the aggregate with one or more other events, circumstances or changes, have had or reasonably could be expected to have a Material Adverse Effect on the Company or any other Group Company.

2.2

Proceedings and Documents

All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Purchaser, and the Purchaser (or its legal counsel) shall have received all such counterpart originals and certified or other copies of such documents as reasonably requested. Each of the Warrantors shall have (i) performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by such Warrantors; and (ii) to the extent applicable, approved the aforesaid performance and compliance by its respective directors and stockholders’ resolutions, on or before the Closing.

2.3

Authorizations

The Warrantors shall have obtained all authorizations, approvals, waivers or permits of any Person or any Governmental Authority necessary for the consummation of all of the transactions contemplated by this Agreement and other Transaction Documents, including without limitation any authorizations, approvals, waivers or permits that are required in connection with the lawful issuance of the Purchased Stock to the Purchaser, and all such authorizations, approvals, waivers and permits shall be effective as of the Closing. The Company shall have obtained enforceable waivers in respect of any preemptive, anti-dilution or similar rights applicable to the transactions contemplated by this Agreement and other Transaction Documents, and true copies of such waivers shall have been delivered to the Purchaser.

2.4

Representations and Warranties

The Fundamental Warranties shall be true, complete and correct as of January 25, 2021, except for those Fundamental Warranties that address matters only as of a particular date, which Fundamental Warranties shall have been true, complete and correct in all respects as of such particular date. The representations and warranties of the Warrantors contained in Schedule 5 (other than the Fundamental Warranties) shall be true, complete and correct in all material respects as of January 25, 2021, except for those representations and warranties (i) that already contain any materiality qualification, which representations and warranties, to the extent already so qualified, shall instead be true, complete and correct in all respects as so qualified as of such respective dates and (ii) that address matters only as of a particular date, which representations shall have been true, complete and correct in all respects (subject to Section 2.4(i)) as of such particular date.

2.5

Certificate of Incorporation

The certificate of incorporation of the Company in the form and substance attached hereto as Exhibit A (the “Certificate of Incorporation”) shall have been duly adopted by all necessary actions of the stockholders of the Company.

2.6

Compliance Certificates

The Purchaser shall have received a certificate executed and delivered by the Warrantors, substantially in the form and substance attached hereto as Exhibit C.

2.7

Investment Committee Approval

The internal authority of the Purchaser shall have approved the execution and performance of this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby.

2.8

Legal Opinions

The Company shall have delivered to the Purchaser legal opinions dated the date of the Closing and addressed to the Purchaser issued by the Company’s legal counsel, customary to the transactions of this kind, and in form and substance reasonably satisfactory to the Purchaser.

3.	CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AT CLOSING

The obligations of the Company to sell the Purchased Stock to the Purchaser at the Closing are subject to the fulfillment of each of the following conditions by the Purchaser, on or before the Closing, unless otherwise waived in writing by the Company:

3.1

Representations and Warranties

The representations and warranties of the Purchaser contained in Schedule 7 shall be true, complete and correct in all material respects as of the Execution Date and the Closing.

3.2

Performance

The Purchaser shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing.

3.3

Execution of Shareholders’ Agreement

The Purchaser shall have executed and delivered to the Company a joinder to the Shareholders’ Agreement in form and substance reasonably satisfactory to the Company and the Purchaser.

4.	REPRESENTATIONS AND WARRANTIES OF THE WARRANTORS

The Warrantors, jointly and severally, represent and warrant to the Purchaser that the statements contained in Schedule 5 attached hereto are true, correct and complete as of January 25, 2021, except to the extent fairly and specifically disclosed in the disclosure schedule attached hereto as Schedule 6 (the “Disclosure Schedule”), which disclosures shall be deemed to be part of the representations and warranties as if made hereunder.

5.	REPRESENTATIONS AND WARRANTIES OF THE PURCHASER

The Purchaser represents and warrants to the Company that the statements contained in Schedule 7 attached hereto are true, correct and complete as of the Closing.

6.	UNDERTAKINGS

The Warrantors hereby jointly and severally covenant to the Purchaser as follows:

6.1

Ordinary Course of Business

From the Execution Date until the earlier of the Termination Date or the Closing, each Group Company shall, and the Founders and the Founder Holdcos shall cause each of the Group Companies to, conduct its business in the ordinary course and shall use its commercially reasonable efforts to maintain the present character and quality of the business, including without limitation, its present operations, physical facilities, working conditions, goodwill and relationships with lessors, licensors, suppliers, customers, employees and independent contractors.

6.2

Use of Proceeds

In accordance with the directions of the Company’s Board of Directors, as it shall be constituted in accordance with the Shareholders’ Agreement, the Company will use the proceeds from the sale of all the Purchased Stock for (i) general working capital; and (ii) other general corporate purposes for the Group Companies.

6.3

Notice of Certain Events

If at any time before the Closing, any Warrantor comes to know of any material fact or event which: (i) is in any way inconsistent with any of the representations and warranties in this Agreement; (ii) suggests that any fact warranted hereunder may not be as warranted or may be misleading; or (iii) might affect the willingness of a prudent investor to purchase the Purchased Stock on the terms contained in the Transaction Documents or the amount of the consideration a prudent investor would be prepared to pay for the Purchased Stock, then the Warrantors shall immediately notify the Purchaser in writing, describing the fact or event in reasonable detail.

6.4

Compliance

The Group Companies shall, and the Founders and the Founder Holdcos shall cause the Group Companies to, at all times comply with all applicable Laws in all material respects.

7.	CURE OF BREACHES; INDEMNITY

7.1 In the event of: (a) any breach or violation of, or inaccuracy or misrepresentation in, any representation or warranty made by the Warrantors contained herein or any of the other Transaction Documents; or (b) any breach or violation of any covenant or agreement contained herein or any of the other Transaction Documents (each of (a) or (b), a “Breach”), the Group Companies shall, jointly and severally, cure such Breach (to the extent that such Breach is curable) to the satisfaction of the Purchaser (it being understood that any cure shall be without resorting to cash or assets of any of the Group Companies). Notwithstanding the foregoing, the Group Companies shall also, jointly and severally, indemnify the Purchaser and its Affiliates, limited partners, members, stockholders, directors, officers, employees, agents, representatives and assigns (each, an “Indemnitee”) for any and all losses, liabilities, damages, diminution in value, liens, claims, obligations, penalties, settlements, deficiencies, costs and expenses, including without limitation reasonable advisor’s fees and other reasonable expenses of investigation, defense and resolution of any Breach paid, suffered, sustained or incurred by

the Indemnitees (each, an “Indemnifiable Loss”), resulting from, or arising out of, or due to, directly or indirectly, any Breach; provided, however, that “diminution in value” as used in the preceding sentence shall not include any diminution in value not directly or indirectly caused by one or more Breaches.

7.2 Notwithstanding the foregoing, the Group Companies shall, jointly and severally, indemnify and keep indemnified the Indemnitees at all times and hold them harmless against any and all Indemnifiable Losses resulting from, or arising out of, or due to, directly or indirectly, any claim for (i) any material liability caused by the infringement or violation of any intellectual property rights of any third party by any Group Company, (ii) any breach or non-performance of any of the Specified Investment Agreements, or (iii) tax which has been assessed or may hereafter be assessed against any Group Company wholly or partly in respect of or in consequence of any event occurring or any income, profits or gains earned, accrued or received by any Group Company on or before the Closing and any costs, fees, penalty, surcharge, fine, expenses or other liabilities incurred in connection with the investigation, assessment or the contesting of any claim, the settlement of any claim for tax, any legal proceedings in relation to any such tax, and the enforcement of any arbitration award or judgment in relation to such tax (whether or not such tax is chargeable against or attributable to any other person), provided, however, that the Group Companies shall be under no liability in respect of taxation:

(a) that is promptly cured without resorting to cash or other assets of any Group Company;

(b) to the extent that provision, reserve or allowance has been made for such tax in the audited consolidated financial statement of the Company;

(c) if the liability has arisen in, and relates to, the ordinary course of business of the Group Companies since the Statement Date;

(d) to the extent that the liability arises as a result only of a provision or reserve in respect of the liability made in the Delivered Financial Statements being insufficient by reason of any increase in rates of tax announced after the Closing with retrospective effect; and

(e) to the extent that the liability arises as a result of legislation which comes into force after the Closing and which is retrospective in effect.

The survival period for any indemnity obligation relating to (x) claims for tax matters arising under this Section 7.2 shall be the applicable statute of limitations for tax claims and (y) claims pursuant to Section 7.2(ii) shall be five years after the Closing.

7.3 In the event that an Indemnitee suffers an Indemnifiable Loss as provided in Section 7.1 or 7.2 and the Group Companies fail to fulfill their obligations under Section 7.1 or 7.2 to indemnify the Indemnitee for the full amount of such Indemnifiable Loss within sixty (60) days upon receipt of written notice thereof from such Indemnitee, then the Founders and Founder Holdcos shall jointly and severally indemnify the Indemnitee any shortfall of such indemnification, provided, however, that absent fraud, willful misconduct or gross negligence conducted by the Founders, none of the Founders’ or Founder Holdcos’ assets, other than the Common Stock of the Company held by the Founders and/or Founder Holdcos, shall in any respect be used to satisfy any of the Founders and/or Founder Holdcos’ indemnity obligations pursuant to this Agreement (and the Indemnitee shall have no right to claim against any of the Founders’ assets but for the Common Stock of the Company held by the Founders and/or Founder Holdcos). Any indemnification provided by the Warrantors other than the Founders and the Founder Holdcos pursuant to this Section 7.3 shall not prejudice or otherwise affect the right of the Indemnitee to seek indemnification from the Group Companies pursuant to Section 7.1 or 7.2; provided, however, that to the extent an Indemnitee is able to recover any Indemnifiable Loss from the Group Companies, the Warrantors other than the Group Companies shall not be obligated to indemnify such Indemnitee of such recovered amount.

7.4 If the Purchaser or other Indemnitee believes that it has a claim that may give rise to an obligation of any Warrantor pursuant to this Section 7, it shall give prompt notice thereof to the Company stating specifically the basis on which such claim is being made, the material facts related thereto, and the amount of the claim (or a reasonably estimate thereof) asserted. In the event of a third party claim against an Indemnitee for which such Indemnitee seeks indemnification from any Warrantor pursuant to this Section 7, no settlement shall be deemed conclusive with respect to whether there was an Indemnifiable Loss or the amount of such Indemnifiable Loss unless such settlement is consented to by the Founders or their Founder Holdcos. Any dispute related to this Section 7 shall be resolved pursuant to Section 8.15.

7.5 Notwithstanding any other provisions contained herein, the Purchaser acknowledges that the indemnities under this Section 7 shall, absent fraud, willful misconduct or gross negligence by the Warrantors, be subject to the following provisions:

(a) the aggregate indemnification amount claimed by the Purchaser or its Indemnitees against all the Warrantors arising under or in connection with this Agreement shall not exceed in the aggregate the amount equal to the Purchase Price paid by the Purchaser under this Agreement;

(b) the aggregate indemnification amount claimed against all the Warrantors arising under or in connection with Section 7.2(ii) shall not exceed US$10,000,000; and

(c) the Warrantors shall not be required to indemnify any Indemnitee for (i) any claim unless the Indemnifiable Losses in connection with any claim or claims suffered by all the Indemnitees are US$100,000 or more, on a cumulative basis, in which case the Warrantors shall be liable for the Indemnifiable Losses in respect to the claim from the first US$, or (ii) any claim arising out of any breach of any representation or warranty made by the Warrantors contained herein or any of the other Transaction Documents to the extent that the relevant matters have been fairly and specifically disclosed in the Disclosure Schedule (without prejudice to the indemnification obligations arising from Section 7.2).

8.	MISCELLANEOUS

8.1

Survival of Warranties

The Fundamental Warranties shall survive the Closing until the latest date permitted by Law or indefinitely if such date is not provided. The representations and warranties of the Warrantors contained in or made pursuant to this Agreement (other than the Fundamental Warranties) shall survive the Closing for a period until two (2) years after January 25, 2021. Any fact or matter which is fairly and specifically disclosed in the Disclosure Schedule shall constitute notice to the Purchaser of the fact or matter so disclosed or actually known, as applicable, and the Purchaser shall be deemed to have waived any claim against the Warrantors on account of any inconsistency between such fact or matter and any of the representations and warranties of the Warrantors in this Agreement (except where any of such fact or matter in the Disclosure Schedule is untrue, incorrect or incomplete).

8.2

Confidentiality

(a) Disclosure of Terms. The terms and conditions of this Agreement, any term sheet or memorandum of understanding entered into pursuant to the transactions contemplated hereby, all exhibits and schedules attached hereto and thereto, and the transactions contemplated hereby and thereby (collectively, the “Transaction Terms”), including their existence, shall be considered confidential information and shall not be disclosed by any Party hereto to any third party except as permitted in accordance with the provisions set forth below.

(b) Permitted Disclosures. Notwithstanding the foregoing, the Company may disclose (i) the existence of the investment to its bona fide prospective purchasers, employees, bankers, lenders,

accountants, legal counsels and business partners, or to any person or entity to which disclosure is approved in writing by the Purchaser, such approval not to be unreasonably withheld; and (ii) the Transaction Terms to its current stockholders, employees, bankers, lenders, accountants and legal counsels, in each case only where such persons or entities are under appropriate nondisclosure obligations substantially similar to those set forth in this Section 8.2, or to any person or entity to which disclosure is approved in writing by the Purchaser, which such approval is not to be unreasonably withheld. The Purchaser may disclose (x) the existence of the investment and the Transaction Terms to any Affiliate, legal counsels, advisors, partner, limited partner, former partner, potential partner or potential limited partner of the Purchaser and its Affiliates and (y) the fact of its own investment to the public, in each case as it deems appropriate at its sole discretion. Any Party hereto may also provide disclosure in order to comply with applicable Laws, as set forth in Section 8.2(c) below.

(c) Legally Compelled Disclosure. In the event that any Party is requested or becomes legally compelled (including without limitation, pursuant to any applicable tax, securities, or other Laws and regulations of any jurisdiction) to disclose the existence of this Agreement or content of any of the Transaction Terms, such Party (the “Disclosing Party”) shall provide the other Parties with prompt written notice of that fact and shall consult with the other Parties regarding such disclosure. At the request of another Party, the Disclosing Party shall, to the extent reasonably possible and with the cooperation and reasonable efforts of the other Parties, seek a protective order, confidential treatment or other appropriate remedy. In any event, the Disclosing Party shall furnish only that portion of the information that is legally required and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to such information.

(d) Other Exceptions. Notwithstanding any other provision of this Section 8.2, the confidentiality obligations of the Parties shall not apply to: (i) information which a restricted Party learns from a third party having the right to make the disclosure, provided the restricted Party complies with any restrictions imposed by the third party; (ii) information which is rightfully in the restricted Party’s possession prior to the time of disclosure by the protected Party and not acquired by the restricted Party under a confidentiality obligation; or (iii) information which enters the public domain without breach of confidentiality by the restricted Party.

(e) Press Releases, Etc. No announcements regarding the Purchaser’s investment in the Company may be made by any Party hereto in any press conference, professional or trade publication, marketing materials or otherwise to the public without the prior written consent of the Purchaser and the Company, provided that such consent shall not be unreasonably withheld.

(f) Other Information. The provisions of this Section 8.2 shall terminate and supersede the provisions of any separate nondisclosure agreement executed by any of the Parties with respect to the transactions contemplated hereby.

8.3

Transfer; Successors and Assigns

The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties. Save as expressly provided in this Agreement, nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement. No Warrantor may assign its rights or delegate its obligations under this Agreement without the written consent of the Purchaser subscribing for at least a majority of the total Purchased Stock. The Purchaser may assign any of its rights and obligations under this Agreement to any of its Affiliates. Any attempted assignment in violation of this Section 8.3 shall be void.

8.4

Governing Law

This Agreement shall be governed by and construed in accordance with the Laws of Hong Kong as to matters within the scope thereof, without regard to its principles of conflicts of laws.

8.5

Counterparts; Facsimile and Emails

This Agreement may be executed and delivered by facsimile, email or other electronic signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

8.6

Titles and Subtitles

The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

8.7

Notices

All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party to be notified; (b) when sent by facsimile, upon receipt of confirmation of error-free transmission (or, if such confirmation is received outside normal business hour, on the next Business Day), (c) when sent by electronic mail, upon such mail being sent unless the sending Party subsequently learns that such electronic mail was not successfully delivered; (d) five (5) days after having been delivered by registered or certified mail, return receipt requested, postage prepaid; or (e) one (1) day after delivery by an internationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective Parties at their address, e-mail address, or facsimile number as set forth on Schedule 9, or as subsequently modified by written notice given in accordance with this Section 8.7.

8.8

No Finder’s Fees

Except as set forth in the Disclosure Schedule, each Party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. The Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Purchaser or any of its officers, employees, or representatives is responsible. The Company agrees to indemnify and hold harmless the Purchaser from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which any Warrantor or any of its officers, employees or representatives is responsible.

8.9

Fees and Expenses

Each Party hereto shall pay all of its own costs and expenses incurred in connection with the negotiation, execution, delivery and performance of this Agreement and other Transaction Documents and the transactions contemplated hereby and thereby.

8.10

Attorney’s Fees

If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of the Transaction Documents, the prevailing Party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.

8.11

Amendments and Waivers

Any term of this Agreement may be amended or waived only with the written consent of the Company, the Founders and the Purchaser. Any amendment or waiver effected in accordance with this Section 8.11 shall be binding upon the Group Companies, the Founders, the Founder Holdcos, the Purchaser, and each transferee of the Purchased Stock or the Conversion Stock and each future holder of all such securities.

8.12

Severability

The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

8.13

Delays or Omissions

No delay or omission to exercise any right, power or remedy accruing to any Party under this Agreement, upon any breach or default of any other Party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting Party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.

8.14

Entire Agreement

This Agreement (including the Schedules and Exhibits hereto) and the other Transaction Documents constitute the full and entire understanding and agreement between the Parties with respect to the subject matter hereof and thereof, and any other written or oral agreement relating to the subject matter hereof and thereof existing between the Parties are expressly canceled.

8.15

Dispute Resolution

Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be three (3). The arbitration proceedings shall be conducted in English.

8.16

No Commitment for Additional Financing

The Warrantors acknowledge and agree that no Purchaser has made any representation, undertaking, commitment or agreement to provide or assist the Company in obtaining any financing, investment or other assistance, other than the purchase of the Purchased Stock as set forth herein and subject to the conditions set forth herein. In addition, the Warrantors acknowledge and agree that (i) no oral statements made by any Purchaser or its representatives on or after the date of this Agreement shall create an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment, (ii) no Warrantor shall rely on any such statement by any Purchaser or its representatives and (iii) an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment may only be created by a written agreement, signed by the

Purchaser and the Company, setting forth the terms and conditions of such financing or investment and stating that the parties intend for such writing to be a binding obligation or agreement. The Purchaser shall have the right, at its sole and absolute discretion, to refuse or decline to participate in any other financing of or investment in the Company, and shall have no obligation to assist or cooperate with the Company in obtaining any financing, investment or other assistance.

8.17

Rights Cumulative

Each and all of the various rights, powers and remedies of a Party will be considered to be cumulative with and in addition to any other rights, powers and remedies which such Party may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy will neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such Party.

8.18

No Waiver

Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of, or failure to insist upon strict compliance with, any right, power or remedy power hereunder at any one or more times be deemed a waiver or relinquishment of such right, power or remedy at any other time or times.

8.19

Third Party Beneficiaries

Each of the Indemnitees shall be a third party beneficiary of this Agreement with the full ability to enforce Section 7 of this Agreement as if it were a Party hereto. Subject to the preceding sentence, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the Laws of Hong Kong) to enforce any terms of this Agreement. The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person, including an Indemnitee.

8.20

Specific Performance

The Parties acknowledge and agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and each Party shall be entitled to specific performance of the terms hereof. It is accordingly agreed that, each Party shall be entitled to an injunction or injunctions to prevent such breaches of this Agreement and to enforce specifically (without proof of actual damages or harm, and not subject to any requirement for the securing or posting of any bond in connection therewith) such terms and provisions of this Agreement, this being in addition to any other remedy to which each Party is entitled at law or in equity.

8.21

Termination of Agreement

(a)

Rights of Termination.

This Agreement may be terminated before the Closing as follows:

(1) by mutual written consent of the Company and the Purchaser as evidenced in writing signed by the Company and the Purchaser;

(2) by the Purchaser in the event of any breach or violation of any representation or warranty, covenant or agreement contained herein or in any of the other Transaction Documents by any Warrantor that is not curable or that is curable but is not cured within thirty (30) Business Days of written notice; or

(3) by the Purchaser if any event, circumstance or change shall have occurred that, individually or in the aggregate with one or more other events, circumstances or changes, have had or reasonably could be expected to have a Material Adverse Effect on the Company or any other Group Company.

(b) Effect of Termination.

(1) The date of termination of this Agreement pursuant to Section 8.21(a) hereof shall be referred to as “Termination Date”.

(2) In the event of termination by the Company and/or the Purchaser pursuant to Section 8.21(a) hereof, written notice thereof shall forthwith be given to the other Parties and this Agreement shall terminate, and each of the Company and the Purchaser shall be relieved of the duties and obligations among them arising under this Agreement after the date of such termination and such termination shall be without liability to the Company or the Purchaser; provided that (i) no such termination shall relieve the Company or the Purchaser from liability for any breach of this Agreement incurred before the termination; and (ii) such termination shall not affect the rights, duties and obligations existing between the Warrantors and any other Purchaser pursuant to this Agreement.

(1) The provisions of this Section 8.21, Section 7, Section 8.1, Section 8.2, Section 8.4, Section 8.7, Section 8.9, Section 8.10, Section 8.11, Section 8.12, Section 8.13, Section 8.15, Section 8.17, Section 8.18, Section 8.19, and Section 8.20, hereof shall survive any termination of this Agreement.

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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first written above.


COMPANY:	TuSimple Holdings Inc.

	By:	/s/ Cheng Lu
	Name:	Cheng Lu
	Title:	Director

HK CO:	Tusimple (Hong Kong) Limited

	By:	/s/ Mo Chen
	Name:	Mo Chen
	Title:	Director

HK AUTO TECH:	Tusimple (Hong Kong) Auto Tech Limited

	By:	/s/ Naiyan Wang
	Name:	Naiyan Wang
	Title:	Director