Mullen Automotive Inc (MULN)

[pennypauly]

FIRM ORDER AGREEMENT

THIS FIRM ORDER AGREEMENT (the "Agreement") is made effective as of the date of full execution of this Agreement (the "Effective Date") between Mullen Automotive, Inc., a Delaware corporation ("MULLEN") and Randy Marion Isuzu, LLC dba Randy Marion MULLEN, a North Carolina limited liability company ("Buyer"). MULLEN and Buyer may hereafter be referred to collectively as the "Parties" and each individually, a "Party."

RECITALS

A. MULLEN is engaged in the business of manufacturing and selling electric urban delivery and urban utility vehicles, including a Class 1 electric urban delivery vehicle, as more particularly described in Exhibit A (the "Vehicle," and more than one, the "Vehicles").

B. Buyer is part of the Randy Marion Automotive Group and has substantial experience in the automotive industry as a distributor of commercial vehicles.

C. MULLEN and Buyer desire that Buyer will be MULLEN' s first strategic authorized dealer with respect to the Vehicles.

D. Buyer wishes to purchase from MULLEN, and MULLEN desires to manufacture and sell to Buyer, a total of not less than 6,000 units of the initial production ("Initial Production") of 6,800 units (the "First Order Requirement") of the Vehicles manufactured and produced by MULLEN.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Recitals. The Parties acknowledge that the above Recitals are true and correct, and are incorporated herein as a part of this Agreement.

2. Purchase and Sale of Vehicles.

(a) During the Term, MULLEN shall manufacture and sell to Buyer, and Buyer shall purchase from MULLEN that number of Vehicles sufficient to satisfy the First Order Requirement subject to the terms and conditions of this Agreement.

(b) Subject to paragraph 2(c), Buyer shall purchase the Vehicles from MULLEN at the base wholesale prices set forth on Exhibit A ("Base Wholesale Prices"):

(i) For each model, Base Wholesale Prices shall be adjusted based on the cost of final specifications and options selected by Buyer.

(ii) Base Wholesale Prices are firm and are not subject to increase except upon 90 days notice to Buyer. Any such price increase shall not apply to purchase orders placed by Buyer and accepted by MULLEN.

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(iii) MULLEN shall deliver the Vehicles, at Buyer's cost, to the street address for delivery specified in the applicable purchase order.

(c) Beginning on the Effective Date, and thereafter on the first day of each month during the remainder of the Term, Buyer will provide MULLEN with a written rolling twelve month (or other period, at Buyer's discretion) good faith forecast or estimate of the quantity of Vehicles which Buyer may order for each month during such period. Buyer's forecasts under this paragraph shall take into account MULLEN's standard lead times for Vehicle purchase orders set forth in paragraph 2(d).

(d) MULLEN's standard lead time on purchase orders of Vehicle(s) is four (4) months after a purchase order is accepted by MULLEN, unless otherwise specifically agreed to in writing. The lead time calculation begins the next business day after Buyer's purchase order is received and accepted by MULLEN and ends when Vehicle(s) are made available for gate release to Buyer.

(e) Buyer shall issue a purchase order contemporaneous with the execution of this Agreement for 1000 Vehicles. Buyer shall issue another purchase order on or before May 1st, 2023 for no less than 1000 Vehicles. All additional purchase orders required to fulfill the First Order Requirement shall be issued no later than August 1st, 2023.

(f) MULLEN will use its best efforts to fill each purchase order presented by Buyer and accepted by MULLEN. Buyer hereby acknowledges that (i) MULLEN shall have the right in its sole discretion, to reject any purchase order presented by Buyer, without liability to Buyer, if at the time such purchase order is presented to MULLEN, Buyer shall have more than 1000 Vehicles in inventory that are not the subject of a firm order from a customer; and (ii) the availability of certain of the Vehicles may be limited from time to time due to certain factors, including MULLEN's production capacity, varying dealer demand, Federal Government demand/fulfillment requirements, weather and transportation conditions, nationwide sales patterns and governmental regulation. MULLEN will use its best efforts to allocate and distribute available Vehicles among all of its dealers pursuant to fair and equitable allocation and distribution policies. In the event that MULLEN has outstanding orders totaling, cumulatively, more than 2000 Vehicles from dealers other than Buyer prior to the time that MULLEN has completed the Initial Production, MULLEN shall give written notice to Buyer and Buyer shall, no later than three (3) business days after receipt of such notice, issue purchase order(s) sufficient to satisfy the First Order Requirement. If Buyer fails to issue such purchase orders, MULLEN may accept and fill orders from such other dealers in its sole discretion and without liability to Buyer.

(g) MULLEN shall not be liable for delay or failure to deliver the Vehicles where such delay or failure to deliver is the result of any event beyond the reasonable control of MULLEN, including but not limited to any law or regulation of any governmental entity, act of God, fire, flood, earthquake, storm, epidemic, quarantine restriction, war, insurrection or riot, civil unrest, freight embargo, car wreck, delay or shortage in transportation, unusually severe weather or inability to obtain necessary labor, materials, fuel, energy, or manufacturing facilities due to such causes.
https://www.sec.gov/Archives/edgar/data/1499961/000110465922127222/tm2232780d1_ex10-1.htm