Agreement No.: PS23‐088 Certain identified information marked with “[***]” has been omitted from this document because it is both (i) not material and (ii) the type that the registrant treats as private or confidential. US FEDERAL “***” CREDITS MY21...
Agreement No.: PS23‐088 Certain identified information marked with “[***]” has been omitted from this document because it is both (i) not material and (ii) the type that the registrant treats as private or confidential. US FEDERAL “***” CREDITS MY21 AND MY22 PAYMENT AGREEMENT This US Federal Corporate Average Fuel Economy (”“***”") Credits MY21 and MY22 Payment Agreement is between 1. PARTIES Volvo Car Corporation, reg. no. 556074‐3089, a corporation organized and existing under the laws of Sweden (“Volvo Cars”), and Polestar Performance AB, reg. no. 556653‐3096, a corporation organized and existing under the laws of Sweden (“Polestar”). 2. BACKGROUND A. Volvo Cars and Polestar have reduced their joint “***” credits for Model Year (“MY”) 21 and 22, resulting in a surplus of “***” credits that can be traded with other carmakers. The Regulation enable sales of “***” credits for over‐achieving manufacturers to create an income for the “***” credits by offering credits to companies that are falling short of their own target. B. Since Volvo Cars, Polestar and Lotus Cars Ltd., with reg. no 895091 (“Lotus Cars”) forms an entity (hereafter called “the Entity”) defined by Environmental Protection Agency (“EPA”) and National Highway Traffic Safety Administration (“NHTSA”) and the Parties contribute to the “***” credits jointly. The “***” credits will be shared according to ”***”. Polestar´s share of the contribution will be compensated by Volvo Cars according to the terms and conditions set forth in this Agreement. C. Now, therefore, the Parties agree as follows: 3. DEFINITIONS Front page definitions. The terms Volvo Cars and Polestar shall have the meaning as set out in Section 1 of this Agreement. 3.1 Agreement means this agreement. 3.2 Confidential Information means any and all non‐public information regarding the Parties and their respective businesses, whether commercial or technical, in whatever form or media, including but not limited to the existence, content and subject matter of this Agreement that a Party learns from or about the other Party prior to or after the execution of this Agreement. 3.3 Disclosing Party means the Party disclosing Confidential Information to the Receiving Party. 2 3.4 “***” Credits Agreement means the agreement stipulating sell and trade of “***” credits between the Entity to external Original Equipment Manufacturer (“OEM”). 3.5 “***” Credits means credits earned under NHTSA’s “***” Regulations at 49 Code of Federal Regulations “C.F.R.” Parts 531, 533, 536, and 537, as applicable, for Model Years 2021‐2022 which are eligible to be traded or transferred pursuant to 49 C.F.R. § 536.6(c), and which have been adjusted pursuant to 49 C.F.R. § 536.4(c). Generated by an OEM when reducing the amount of “***” emissions during a MY, this results in a surplus of “***” credits which can be sold in the US market to other OEMs. 3.6 Parties means Volvo Cars and Polestar and Party means either Volvo Cars or Polestar. 3.7 Polestar Share means the ”***” of “***” Credits from Polestar branded vehicles to the Parties’ total amount of “***” Credits. 3.8 Receiving Party means the Party receiving Confidential Information from the Disclosing Party. 3.9 Regulation refers to EPA´s regulation at 40 C.F.R. Part 85, 86 and/or 600 as applicable to “***” Credits, as such regulations may be amended, superseded or replaced from time to time. 3.10 Steering Committee means the Volvo Polestar Emission Credit Sales Report Steering Committee. The Steering Committee shall be the first level of governance forum established by the Parties for handling the cooperation between them in respect of various matters. 3.11 Strategic Board means the so‐called Volvo Polestar Executive Meeting. The Strategic Board shall be the highest level of governance forum established by the Parties for handling the cooperation between them in respect of various matters. 3.12 Third Party means a party other than any of the Parties. 3.13 Volvo Cars Credits means the “***” Credits, generated by Volvo Cars and, for the MY 21 and MY22 that Volvo Cars will make available. 3.14 Polestar Credits means the “***” Credits, generated by Polestar branded vehicles, for the MY 21 and MY22 that Polestar will make available. 4. POLESTAR COMPENSATION 4.1 Since the Entity´s Credits include Polestar´s contribution, Volvo Cars and Polestar have agreed that Volvo Cars shall pay a compensation to Polestar for its contribution of “***” Credits (the “Polestar Compensation”). 4.2 The Polestar Compensation will be calculated based on ”***” when selling “***” Credits to external parties and the Polestar Share (as defined in Section 4.3 below) thereof. 4.3 The calculation of the Polestar Share is based on ”***” of “***” Credits from Polestar branded vehicles ”***” “***” Credits. The calculation below is showing an estimation of the Polestar Share and the Polestar Compensation for MY 21: (a) Volvo Cars and Polestar generated credits of ”***” credits surplus for MY 21: 3 i. ”***”generated by Volvo Cars ii. ”***”generated by Polestar (b) Calculation: Polestar Share ”***”USD 4.4 The calculation of the Polestar Share is based on ”***”of “***” Credits from Polestar branded vehicles ”***”“***” Credits. The calculation below is showing an estimation of the Polestar Share and the Polestar Compensation for MY22: (c) Volvo Cars and Polestar generated credits of ”***”credits surplus for MY 22: iii. ”***”generated by Volvo Cars iv. ”***”generated by Polestar (d) Calculation: Polestar ”***”USD 4.5 The estimated Polestar Share takes into consideration, ”***” registered vehicles. 5. CALCULATION AND SETTLEMENT 5.1 This section sets out the conditions and process for the calculation of the Volvo Cars Credits and their monetary value as well the calculation of the Polestar Compensation. 5.2 Volvo Cars will inform Xxxxxxxx about the outcome of the final adjustment without undue delay. Any questions or comments Polestar may have on the information received under this section may be brought forward in accordance with the escalation principles in Section 10.1 below. 5.3 For the sake of clarity the calculation of the Polestar Share according to Section 4.3 will involve that in the event that ”***”should have a deficit in “***” Credits affecting the Entity, Volvo Cars and Polestar will share such deficit according to each Party´s pro rata share of the Parties total calculated contribution of “***” Credits for MY21 and MY22. In the event that ”***”needs to reimburse Volvo Cars and Polestar due to a “***” Credits deficit, such reimbursement will be shared between the Parties according to each Party´s pro rata share of the Party´s final calculated contribution of “***” Credits for MY21 and MY22. Volvo Cars is overall responsible of “***” Credits reporting however both Volvo Cars and Polestar will secure reimbursement from ”***”jointly with responsibility for their respective share. Volvo Cars will involve Polestar in the ongoing alignment between the Parties and ”***”prior to finalizing the agreement with ”***”. 5.4 Polestar Compensation Volvo Cars will calculate the Polestar Compensation based on the Polestar Share. Volvo Cars shall inform Polestar about the Polestar Compensation within five business days after Volvo Cars has received the compensation for the “***” Credits from the buying entity on its account. 4 6. PAYMENT TERMS 6.1 Polestar shall invoice the Polestar Compensation to Volvo Cars within ”***” days following the date that Volvo Cars has informed Polestar in accordance with Section 5.4.2 above. 6.2 All payments shall be made by the respective Party upon receipt of an invoice issued by the other Party. 6.3 All invoices issued by Polestar shall be send directly and only to: ”***”All invoices and payments shall be made in the currency: ”***” 6.4 All payments under this Agreement are exclusive of Value Added Tax and should not be considered as subject to Value Added Tax. Polestar shall disclose the transaction by submitting a notification describing the transaction to the Swedish Tax Agency once Polestar has received the first payment. 6.5 Any amount invoiced shall be paid without undue delay, however at the latest within ”***”days after the invoice date. 6.6 Payment made later than the due date will automatically be subject to interest for late payments for each day it is not paid, and the interest shall be based on the ”***”. 7. AUDIT 7.1 Polestar shall have the right to, upon reasonable notice in writing to Volvo Cars, inspect Volvo Cars’ books and records related to the Provisional Settlement Amount and the Final Settlement Amount in order to verify the calculations and statements rendered under this Agreement. 7.2 Audits shall be made during regular business hours and be conducted by Polestar or by an independent auditor appointed by Polestar. Should Polestar during any inspection find that Volvo Cars did not fulfil the requirements set forth herein, Polestar is entitled to comment on the identified deviations and escalate such issues to the Steering Committee. 8. CONFIDENTIAL INFORMATION 8.1 The Parties shall take any and all necessary measures to comply with the security and confidentiality procedures of the other Party. 8.2 All Confidential Information shall only be used for the purposes comprised by the fulfilment of this Agreement. Each Party will keep in confidence any Confidential Information obtained in relation to this Agreement and will not divulge the same to any Third Party, unless the exceptions specifically set forth below in this Section 8.2 below apply or when approved by the other Party in writing, and with the exception of their own officers, employees, consultants or sub‐contractors with a need to know as to enable such personnel to perform their duties hereunder. This provision will not apply to Confidential Information which the Receiving Party can demonstrate: (a) was in the public domain other than by breach of this undertaking, or by another confidentiality undertaking;
5 (b) was already in the possession of the Receiving Party before its receipt from the Disclosing Party; (c) is obtained from a Third Party who is free to divulge the same; or (d) is required to be disclosed by mandatory law, court order, lawful government action or applicable stock exchange regulations. 8.3 The Receiving Party shall protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Parts uses to protect its own Confidential Information of similar nature, to prevent the dissemination to Third Parties or publication of the Confidential Information. Further, each Party shall ensure that its employees and consultants are bound by a similar duty of confidentiality and that any subcontractors taking part in the fulfilment of that Party’s obligations hereunder, enters into a confidentiality undertaking containing in essence similar provisions as those set forth in this Section 8. 8.4 Any tangible materials that disclose or embody Confidential Information should be marked by the Disclosing Party as “Confidential,” “Proprietary” or the substantial equivalent thereof. Confidential Information that is disclosed orally or visually shall be identified by the Disclosing Party as confidential at the time of disclosure, with subsequent confirmation in writing within 30 days after disclosure. However, the lack of marking or subsequent confirmation that the disclosed information shall be regarded as “Confidential”, “Proprietary” or the substantial equivalent thereof does not disqualify the disclosed information from being classified as Confidential Information. 8.5 If any Party violates any of its obligations described in this Section 8, the violating Party shall, upon notification from the other Party, (i) immediately cease to proceed such harmful violation and take all actions needed to rectify said behaviour and (ii) financially compensate for the harm suffered as determined by an arbitral tribunal pursuant to Section 9 and 10.2 below. All legal remedies (compensatory but not punitive in nature) according to law shall apply. 8.6 This confidentiality provision shall survive the expiration or termination of this Agreement without limitation in time. 9. GOVERNING LAW 9.1 This Agreement and all non‐contractual obligations in connection with this Agreement shall be governed by the substantive laws of Sweden without giving regard to its conflict of laws principles. 10. DISPUTE RESOLUTION 10.1 Escalation principles. In case the Parties cannot agree on a joint solution for handling disagreements or disputes, a deadlock situation shall be deemed to have occurred and each Party shall notify the other Party hereof by the means of a deadlock notice and simultaneously send a copy of the notice to the Steering Committee. Upon the receipt of such a deadlock notice, the receiving Party shall within ten days of receipt, prepare and circulate to the other Party a statement setting out its position on the matter in dispute and reasons for adopting such position, and 6 simultaneously send a copy of its statement to the Steering Committee. Each such statement shall be considered by the next regular meeting held by the Steering Committee or in a forum meeting specifically called upon by either Party for the settlement of the issue. The members of the Steering Committee shall use reasonable endeavours to resolve a deadlock situation in good faith. As part thereof, the Steering Committee may request the Parties to in good faith develop and agree on a plan to resolve or address the breach, to be presented for the Steering Committee without undue delay. If the Steering Committee agrees upon a resolution or disposition of the matter, the Parties shall agree in writing on terms of such resolution or disposition and the Parties shall procure that such resolution or disposition is fully and promptly carried into effect. If the Steering Committee cannot settle the deadlock within 30 days from the deadlock notice pursuant to the section above, despite using reasonable endeavours to do so, such deadlock will be referred to the Strategic Board for decision. If no Steering Committee has been established between the Parties, the relevant issue shall be referred to the Strategic Board. Should the matter not have been resolved by the Strategic Board within 30 days counting from when the matter was referred to them, despite using reasonable endeavours to do so, the matter shall be resolved in accordance with Section 10.2 below. All notices and communications exchanged in the course of a deadlock resolution proceeding shall be considered Confidential Information of each Party and be subject to the confidentiality undertaking in Section 8 above. Notwithstanding the above, the Parties agree that either Party may disregard the time frames set forth in this Section 10.1 and apply shorter time frames and/or escalate an issue directly to the Strategic Board in the event the escalated issue is of an urgent character and where the applicable time frames set out above are not appropriate. 10.2 Arbitration. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, whereas the seat of arbitration shall be Gothenburg, Sweden, the language to be used in the arbitral proceedings shall be English, and the arbitral tribunal shall be composed of three arbitrators. Irrespective of any discussions or disputes between the Parties, each Party shall always continue to fulfil its undertakings under this Agreement unless an arbitral tribunal or court (as the case may be) decides otherwise. In any arbitration proceeding, any legal proceeding to enforce any arbitration award, or any other legal proceedings between the Parties relating to this Agreement, each Party expressly waives the defence of sovereign immunity and any other defence based on the fact or allegation that it is an agency or instrumentality of a sovereign state. Such waiver includes a waiver of any defence of sovereign immunity in respect of enforcement of arbitral awards and/or sovereign immunity from execution over any of its assets. All arbitral proceedings as well as any and all information, documentation and materials in any form disclosed in the proceedings shall be strictly confidential. 7 11. GENERAL PROVISIONS 11.1 Notices. All notices and other communications under this Agreement will be in writing and in English and must be delivered by personal delivery, email transmission or prepaid overnight courier using an internationally recognized courier service at the following addresses (or at such other address as any Party may provide by notice in accordance with this Section 11.1): If to Volvo Cars: Volvo Car Corporation Attention: ”***”Dept. 50419, 405 31 Göteborg Sweden Email: ”***” With a copy not constituting notice to: Volvo Car Corporation Attention: ”***” Dept. 50090, SE 405 31 Göteborg, Sweden Email: ”***” If to Polestar: Polestar Performance AB Attention: ”***”SE‐405 31 Gothenburg, SWEDEN Email: ”***” With a copy not constituting notice to: Polestar Performance AB ”***”SE‐405 31 Gothenburg, Sweden Email: ”***” All notices and shall be effective upon receipt, which shall be deemed to have occurred: (a) at the time and on the date of personal delivery; (b) if sent by e‐mail, at the time and on the date indicated on a confirmation of receipt relating to such e‐mail; (c) at the time and on the date of delivery if delivered by courier as confirmed in the records of such courier service; or (d) at such time and date as delivery by personal delivery or courier is refused by the addressee upon presentation, in each case provided that such receipt occurred on a business day at the location of receipt. A written notice sent by e‐mail will be deemed to have been duly given, only if the recipient has confirmed receipt of such e‐mail within three business days calculated from the time of sending such e‐mail. An automatic e‐mail reply shall not be construed as a confirmation hereunder. 11.2 No Third Party Beneficiaries. This Agreement does not confer any benefits on any third party. 8 11.3 Announcements. Neither Party may make any public statement regarding this Agreement without the other Party’s written approval. 11.4 Entire agreement. This Agreement states all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. 11.5 Amendment and Waiver. No amendment of this Agreement will be effective unless it is in writing and signed by both Parties. A waiver of any default is not a waiver of any later default and will not affect the validity of this Agreement. 11.6 Relationship. The Parties are independent contractors. This Agreement does not create any agency, partnership or joint venture between the Parties. 11.7 Assignment. Neither Party may assign any rights or delegate any obligations under these terms without the other Party’s written consent. 11.8 Severability. Unenforceable terms of this Agreement will be modified to reflect the Parties' intention and only to the extent necessary to make them enforceable. The other terms will remain in effect without change. 11.9 Counterparts. The parties may execute this Agreement in counterparts, including electronic copies, which taken together will constitute one instrument. ______________________________ [SIGNATURE PAGE FOLLOWS]
9 This agreement has been signed electronically by both Parties. VOLVO CAR CORPORATION POLESTAR PERFORMANCE AB By: Xxxxx Xxxxxxx By: Xxxx Xxxxxxxx Printed Name: Printed Name: ______ Title: General Counsel Title: General Counsel______ Date: Jul 6, 2023 Date: Jul 6, 2023___________ By: Xxxxx Xxxxxx By: Xxxxxx Xxxxxxxx Printed Name: Printed Name: _____________ Title: CFO Title: COO ______ Date: Jul 6, 2023 Date: Jul 6, 2023_____
