ARCHER AVIATION INC.
Exhibit 10.2
▇▇▇▇▇▇ AVIATION INC.
_______, 2026
THE BOEING COMPANY
Address:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chicago, IL 60606
Re: Letter Agreement
Ladies and Gentlemen:
Reference is made to (i) that certain Equity Purchase Agreement (the “Purchase Agreement”), dated as of August 9, 2026, between ▇▇▇▇▇▇ Aviation Inc., a Delaware corporation (the “Buyer”), and The Boeing Company., a Delaware corporation (the “Seller”), (ii) the First Warrant to Purchase Shares, dated as of [●], 2026, by and between the Buyer and the Seller (the “First Warrant”), and (iii) the Second Warrant to Purchase Shares, dated as of [●], 2026, by and between the Buyer and the Seller (the “Second Warrant”, and together with the First Warrant, the “Warrants”). This letter agreement (this “Letter Agreement”) sets forth the additional agreements between the Buyer and the Seller, including with respect to certain additional terms applicable to the Warrants, and shall not merge with or supersede the Warrants. In the event of any inconsistency between the terms and conditions of this Letter Agreement and the Warrants, the terms of this Letter Agreement shall control. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Purchase Agreement or, with respect to the undefined terms used in Section 2 and Section 3, in the applicable Warrant.
1. Nomination Right. So long as the Seller beneficially owns at least [●]1 of Acquirer Shares (including shares issued upon the exercise of any Warrant, and as adjusted for any stock split, dividend, combination, recapitalization or similar event, the “Minimum Ownership Threshold”), the following shall apply:
(a) Nomination Right. The Seller shall have the right to designate one individual for nomination to the board of directors of the Buyer (the “Board”) (each such designee, a “Seller Designee”).
(b) Buyer Obligations. Subject to the terms of this Letter Agreement and applicable law, at each meeting of the Buyer’s stockholders at which the class of directors to which the Seller Designee has been assigned is standing for election (each, an “Election Meeting”), while the Minimum Ownership Threshold is satisfied, the Buyer shall: (i) include the Seller Designee in its slate of nominees for such class; (ii) recommend that the Buyer’s stockholders vote in favor of the election of the Seller Designee to the same extent and in the same manner as it recommends other nominees in such class standing for election; and (iii) use commercially reasonable efforts to solicit proxies in favor of the election of the Seller Designee consistent with the Buyer’s customary proxy solicitation practices. The Seller Designee must be deemed qualified for service on the Board in good faith by the Nominating and Corporate Governance Committee of the Board acting reasonably.
1 Note to Draft: To be an amount of shares equal to 10% of the Acquirer Shares outstanding as of immediately prior to the issuance to Seller at Closing.
(c) Initial Appointment. The Seller has notified the Buyer in writing of the identity of the initial Seller Designee prior to the signing of the Purchase Agreement (the “Initial Seller Designee”). Promptly following the Closing, the Buyer shall cause the Board to appoint the Initial Seller Designee to the Board by board resolution, assigned to the class of directors with the longest remaining term, to serve for the remainder of such class’s then-current term and until such Seller Designee’s successor is duly elected and qualified.
(d) Eligibility Conditions. Any Seller Designee must, as a condition to nomination or appointment: (i) meet the Buyer’s director qualification standards as applied to all directors generally; (ii) complete and return the Buyer’s standard director questionnaire and provide such other information as the Buyer may reasonably require for its SEC filings and governance disclosures; (iii) not be subject to any legal disqualification from serving as a public company director under applicable law or NYSE rules; and (iv) consent in writing to serve as a director. The Buyer shall notify the Seller if a proposed Seller Designee does not satisfy the foregoing conditions, and the Seller shall have the right to propose a substitute designee.
(e) No Committee Guarantee; Independence. The Buyer has no obligation to appoint the Seller Designee to the audit, compensation or nominating & corporate governance committees of the Board. Buyer shall use commercially reasonable efforts to appoint the Seller Designee to each other committee of the Board, including any special committee, for which such Seller Designee is eligible; provided, however, that if the Board establishes a committee solely to consider (i) a proposed contract, transaction or other arrangement between the Buyer (or any of its Affiliates), on the one hand, and the Seller (or any of its Affiliates), on the other hand, or (ii) the enforcement or waiver of the rights of the Seller (or any of its Affiliates) under any agreement between the Buyer (or any of its Affiliates), on the one hand, and the Seller (or any of their Affiliates), on the other hand, then the Board may take such action (upon the advice of counsel) that they deem appropriate in good faith to request recusal, or exclusion, of the Seller Designee from participation in such committee (and any portion of a Board meeting at which such matters may be discussed by the full Board upon notice to the Initial Seller Designee). Nothing herein requires the Buyer to designate the Seller Designee as an “independent” director for NYSE or SEC purposes, and if the Seller Designee does not qualify as independent, the Seller acknowledges that the Seller Designee may not serve on committees requiring independence under applicable rules.
(f) Failure to Elect. If applicable law or a regulatory requirement prevents the Buyer from nominating the Seller Designee to the Board or the Seller Designee is not elected by the Buyer’s stockholders at any Election Meeting, the Buyer propose a replacement designee who must be deemed qualified for service on the Board in good faith by the Nominating and Corporate Governance Committee of the Board acting reasonably, and such individual shall become the Seller Designee for all purposes of this Letter Agreement. Until the Seller Designee is elected by the Buyer’s stockholders at an Election Meeting to serve on the Board, the Buyer shall invite the Seller Designee to attend all Board meetings in a non-voting observer capacity and, in this respect, shall give the Seller Designee copies of all notices, minutes, consents, and other materials that it provides to Buyer’s directors at the same time and in the same manner as provided to such directors (subject to the confidentiality obligations set forth in Section 1(g) below), and the right of the Board to exclude the observer from portions of meetings involving conflicts of interest or competitive sensitivity with respect to Seller or if attendance at such meeting or access to such information could reasonably be expected to adversely effect the attorney-client privilege between Buyer and its counsel with respect to such matters) for a period of twelve (12) months following such Election Meeting (the “Observer Period”). At the next Election Meeting for the Seller Designee’s class following the expiration of the Observer Period, the Buyer shall again include the Seller Designee in its nominee slate in accordance with Section 1(b), provided that the Minimum Ownership Threshold remains satisfied. If the Seller Designee is not elected at such subsequent Election Meeting, the foregoing observer rights and nomination obligations shall apply again for an additional Observer Period, and this process shall repeat for so long as the Minimum Ownership Threshold remains satisfied.
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(g) Board Observer Confidentiality. While serving in a non-voting observer capacity pursuant to Section 1(f), (i) the Seller shall cause the Seller Designee to keep confidential and not disclose any confidential information of Buyer (or its Affiliates) received though the Seller’s Designee’s participation as an observer of the Board, unless such confidential information (A) is known or becomes known to the public in general (other than as a result of a breach of this Section 1(g) by the Seller Designee), (B) is or has been independently developed or conceived by Seller (or its Affiliates) or the Seller Designee without use of the confidential information of Buyer (or its Affiliates), (C) is or has been made known or disclosed to the Seller (or its Affiliates) or the Seller Designee in a capacity other than as a non-voting observer of the Board, or (D) is or has been made known or disclosed to the Seller (or its Affiliates) or the Seller Designee by a third party without a breach of any obligation of confidentiality such third party may have to the Buyer (or its Affiliates); provided, however, that the Seller (or its Affiliates) or the Seller Designee may disclose such confidential information (x) to Seller’s attorneys, accountants, consultants, and other professionals to the extent reasonably necessary to obtain their services in connection with monitoring the Seller’s investment in the Buyer or exercising its rights as a stockholder of the Buyer; or (y) as may otherwise be required by Law, provided that the Seller (or its Affiliates) or the Seller Designee, as applicable, promptly notifies the Buyer of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure; and (ii) neither the Seller nor the Seller Designee shall use any confidential or proprietary information of Buyer (or its Affiliates) received though the Seller’s Designee’s participation as an observer of the Board for any competitive purpose.
(h) Removal; Vacancy. The Buyer shall not take any affirmative action to remove the Seller Designee from the Board absent cause or as required by applicable law. For purposes of this Section 1(h), “cause” means (i) a felony conviction or plea of nolo contendere to a felony, (ii) a finding by a court of competent jurisdiction that the Seller Designee committed fraud, gross negligence, or willful misconduct in the performance of the Seller Designee’s duties as a director, or (iii) a finding by a majority of the Board of the Seller Designee’s material breach of Buyer’s policies applicable to members of the Board or fiduciary duties owed to the Buyer. Upon the occurrence of a finding of cause, the Board shall request that the Seller Designee tender his or her resignation from the Board, in which case, ▇▇▇▇▇ will promptly use commercially reasonable efforts to cause the Seller Designee to tender his or her resignation from the Board. If the Seller Designee ceases to serve for any reason while the Minimum Ownership Threshold is satisfied, the Seller may designate a replacement (subject to the eligibility conditions in Section 1(d) and the condition that the replacement must satisfy the Buyer’s generally applicable director qualification standards as set forth in its corporate governance guidelines), and the Buyer shall use commercially reasonable efforts to cause the Board to appoint such replacement.
(i) Termination. The rights under this Section 1 shall terminate as provided for in Section 4. Upon such termination, if the Seller Designee is then serving, the Board may take such action as is necessary to remove the Seller Designee.
(j) Indemnification. The Buyer shall enter into an indemnification agreement with the Seller Designee on terms and conditions no less favorable than those provided to other directors of the Buyer. The Buyer shall maintain directors’ and officers’ liability insurance coverage for the Seller Designee on terms no less favorable than the coverage provided to the Buyer’s other directors for so long as the Seller Designee serves on the Board and for a period of six (6) years thereafter.
(k) Compensation and Expenses. The Seller Designee shall not be entitled to receive any compensation from the Buyer for service on the Board. Notwithstanding the foregoing, the Buyer shall reimburse the Seller Designee for all reasonable out-of-pocket expenses incurred in connection with service on the Board, including travel expenses, in accordance with the Buyer’s expense reimbursement policies applicable to non-employee directors.
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(l) Compliance Monitoring Plan. Buyer and Seller shall work in good faith to mutually agree upon a written plan and protocol for the parties’ joint monitoring of compliance with Section 8 of the ▇▇▇▇▇▇▇ Act and the other Antitrust Laws.
2. Stockholder Approval Covenant. The Buyer shall call a special meeting of its stockholders to be held within sixty (60) days of the Closing Date (as extended pursuant to this sentence, the “Special Meeting Deadline”) with the purpose, of among other things, obtaining Stockholder Approval and Buyer shall submit such matter in respect of the Stockholder Approval for a stockholder vote and approval at such special meeting; provided, however, that the Special Meeting Deadline shall be tolled (but in no event for more than an additional thirty (30) days) to the extent that an annual meeting of the Buyer’s stockholders is scheduled to be held within ninety (90) days of the Closing Date and Stockholder Approval is included as a matter to be voted on at such annual meeting. The Buyer shall use commercially reasonable efforts to obtain Stockholder Approval at such meeting. If Stockholder Approval is not obtained at any such special meeting, Buyer shall submit the matter for a stockholder vote and approval at its next annual meeting of stockholders. In connection with each such meeting, Buyer (including the Board) shall recommend that stockholders vote in favor thereof and use such other commercially reasonable efforts to obtain Stockholder Approval at such meeting. If Stockholder Approval is not obtained prior to or at Buyer’s next annual meeting of stockholders, Buyer shall call another special meeting of the stockholders within sixty (60) days after such meeting with the purpose of, among other things, obtaining Stockholder Approval and Buyer shall submit such matter in respect of the Stockholder Approval for a stockholder vote and approval at such special meeting. If Stockholder Approval has not been obtained following the Buyer’s next annual meeting following the Closing Date or at either the special meeting described in the first sentence of this Section 2 or the immediately preceding sentence, the parties hereto shall confer in good faith and use reasonable efforts to agree upon a mutually acceptable plan to obtain Stockholder Approval, which may include additional stockholder meetings, alternative proxy solicitation strategies, or other actions reasonably designed to achieve Stockholder Approval. The Buyer shall not take any action, or fail to take any action, the primary purpose or effect of which is to impede, delay, or frustrate the obtaining of Stockholder Approval.
3. Cash Settlement Warrants. Each Warrant shall remain in full force and effect in accordance with its terms. In addition, if Stockholder Approval has not been obtained as of the Initial Exercise Date, the following shall apply:
(a) Exchange for Replacement Warrants. The Warrants shall automatically be exchanged for warrants (the “Replacement Warrants”), without any further action or condition (other than the failure to obtain Stockholder Approval as of the Initial Exercise Date), that are on the same terms as the Warrants (including, without limitation, all anti-dilution, adjustment and other economic protections, and all rights to exercise (but, for the avoidance of doubt, excluding any limitations on the ability to exercise such Replacement Warrants prior to the receipt of Stockholder Approval)) except they shall provide for settlement in cash upon exercise (in whole or in part) of such Replacement Warrants (a “Cash Settlement”). Upon receipt of Stockholder Approval, the portion of each outstanding Replacement Warrant that has not previously been exercised for a Cash Settlement shall automatically convert into the corresponding Warrant, and the Holder shall thereafter be entitled to exercise such Warrant for Acquirer Shares in accordance with its original terms.
(b) Cash Settlement Mechanics. Upon exercise of a Replacement Warrant in whole or in part: (i) the Buyer shall deliver to the Holder the Cash Settlement Amount within five (5) Business Days following the date of the exercise of the Replacement Warrant in whole or in part, as applicable, (ii) the applicable Exercise Price shall be netted against the Cash Settlement Amount and no separate payment of such Exercise Price shall be required, and (iii) if the Buyer fails to deliver the Cash Settlement Amount within such five (5) Business Day period, interest shall accrue on the unpaid Cash Settlement Amount at a rate equal to the lesser of (A) the prime rate as published by the Wall Street Journal plus 2% per annum and (B) the maximum rate permitted by applicable law, from the date such amount was due until paid in full.
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(c) Definitions. As used in this Section 3: (i) “Cash Settlement Amount” means, with respect to any cash-settled exercise of a Replacement Warrant, an amount equal to (A) the Fair Market Value per Acquirer Share on the date of the exercise of the Replacement Warrant, minus (B) the Exercise Price per Share (as adjusted), multiplied by (C) the number of Acquirer Shares that would otherwise have been issued; provided, that in no event shall the Cash Settlement Amount be less than zero; (ii) “Fair Market Value” means the volume-weighted average price (VWAP) of the Acquirer Shares on its primary trading market for the ten (10) trading days immediately preceding the date of the exercise of the Replacement Warrant; provided, that such ten (10) trading day period shall not include any trading day on which a Market Disruption Event has occurred; and (iii) “Market Disruption Event” means, with respect to any trading day, the occurrence or existence of any suspension of, or limitation imposed on, trading in the Acquirer Shares on its primary trading market, or any event that disrupts or impairs the ability of market participants to effect transactions in, or obtain market values for, the Acquirer Shares on such trading market; provided, however, limitation on the hours or number of days of trading on the primary trading resulting from an announced change in the regular business hours of such market shall not be deemed a Market Disruption Event.
4. Termination. The rights set forth in this Letter Agreement shall terminate automatically, without further action by either party, upon the earliest to occur of: (a) with respect to Section 1, the Seller ceasing to satisfy the Minimum Ownership Threshold; provided, that if the Seller subsequently re-satisfies the Minimum Ownership Threshold (including through the exercise of any Warrant) within twelve (12) months following the date on which the Seller ceased to satisfy the Minimum Ownership Threshold, the rights under Section 1 shall be automatically reinstated; provided, further, that if an Election Meeting occurs during such twelve (12)-month period at a time when the Seller does not satisfy the Minimum Ownership Threshold, the Buyer shall have no obligation to include the Seller Designee in its slate of nominees or otherwise comply with Section 1(b) with respect to such Election Meeting, but the Seller’s right to reinstatement of the rights under Section 1 shall continue for the remainder of such twelve (12)-month period; provided, further, that the Buyer shall have no obligation to include the Seller Designee in its slate of nominees or otherwise comply with Section 1(b) with respect to an Election Meeting, if Seller does not re-satisfy the Minimum Ownership Threshold (and notify Buyer of such) at least 30 calendar days prior to the Buyer filing its definitive proxy statement with respect to such Election Meeting; provided, further, that if the Seller fails to re-satisfy the Minimum Ownership Threshold within such twelve (12)-month period, the rights under Section 1 shall terminate permanently and shall not be subject to reinstatement; (b) with respect to Section 2 and Section 3, as to each Warrant, upon the earliest of (i) such Warrant and any Replacement Warrant issued in connection with such Warrant having expired, been fully exercised or otherwise terminated, or (ii) the receipt of Stockholder Approval (as defined in the applicable Warrant); and (c) with respect to this Letter Agreement in its entirety, the earliest of (i) the rights under Section 1, Section 2 and Section 3 having been terminated in accordance with clauses (a) and (b) above, or (ii) the mutual written agreement of the parties.
5. Miscellaneous Sections.
(a) The rights of the Seller under this Letter Agreement are personal to the Seller and may not be assigned or transferred, in whole or in part, without the prior written consent of the Buyer, and any purported assignment or transfer without such consent shall be null and void; provided that the foregoing shall not restrict the transfer of the Warrants to the extent permitted under the terms of the applicable Warrant, and in the event of any such transfer (whether in whole or in part), the cash settlement right under Section 3 shall automatically transfer to such transferee to the extent relating to the portion of the Warrant so transferred.
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(b) All notices hereunder shall be effective when given, and shall be deemed to be given upon receipt or, if earlier, (i) five days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by first class mail, postage prepaid, (ii) upon delivery, if delivered by hand, (iii) one business day after the business day of deposit with Federal Express or similar overnight courier, freight prepaid or (iv) one business day after email transmission, and shall be addressed at such address as the Seller or the Buyer (as applicable) shall have furnished in writing.
All communications sent to the Buyer shall be sent to: ▇▇▇▇▇▇ Aviation Inc., ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel, email: [***], with a copy to the Buyer’s counsel at Fenwick & West LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, email: [***].
All communications sent to the Seller shall be sent to: The Boeing Company, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, email: [***], with a copy to Boeing’s counsel at ▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇, email: [***] and [***].
(c) This Letter Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All legal actions and proceedings arising out of or relating to this Letter Agreement shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the Delaware Chancery Court, then any such legal action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The parties hereto hereby (i) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any action arising out of or relating to this Letter Agreement brought by any party hereto, and (ii) agree not to commence any action relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action arising from this Letter Agreement, (x) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (y) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (z) that (i) the action in any such court is brought in an inconvenient forum, (ii) the venue of such action is improper or (iii) this Letter Agreement, or the subject matter hereof, may not be enforced in or by such courts. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF THIS LETTER AGREEMENT IS HEREBY WAIVED.
(d) Each of the Buyer and the Seller acknowledges that a breach or threatened breach by such party of any of its obligations under this Letter Agreement would give rise to irreparable harm to the other party hereto for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the other party hereto shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction without having to prove the inadequacy of money damages.
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(e) All rights and remedies of each party under this Letter Agreement are cumulative and in addition to, and not in lieu of, any other rights and remedies available to such party at law, in equity, by contract, or otherwise.
(f) No modification of or amendment to this Letter Agreement, nor any waiver of any rights under this Letter Agreement, will be effective unless in a writing signed by the parties hereto.
(g) The Seller shall not, by amendment of its Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Letter Agreement by the Seller, but shall at all times in good faith assist in carrying out of all the provisions of this Letter Agreement and in taking all such action as may be necessary or appropriate to protect the Buyer’s rights under this Letter Agreement impairment.
(h) The parties acknowledge that this Letter Agreement, its terms and the transactions contemplated hereby are subject to the Confidentiality Agreement (as defined in the Purchase Agreement). Each party agrees to treat all information relating to this Letter Agreement in accordance with the terms of the Confidentiality Agreement and the Restrictive Covenant Agreement.
(i) This Letter Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Pdf copies of signature pages shall be binding originals.
[Signature Page Follows]
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| Very Truly Yours, | ||
| ▇▇▇▇▇▇ AVIATION INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Agreed and Accepted: | ||
| THE BOEING COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Letter Agreement]