Aetherion Technologies Inc 6-K, filed Nov 21, 2025
Aetherion Technologies Inc. (AETR)
About this 6-K
Aetherion Technologies Inc filed this 6-K on November 21, 2025.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of November 2025
Commission File Number: 001-34152
WESTPORT FUEL SYSTEMS INC.
(Translation of registrant's name into English)
1691 West 75th Avenue, Vancouver, British Columbia, Canada, V6P 6P2
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F [ X ] Form 40-F [ ]
INCORPORATION BY REFERENCE
Exhibits 99.1, 99.2, 99.3 and 99.4 to this Form 6-K are hereby incorporated by reference into the Company's Registration Statement on Form F-3 (File No.333-289669) and the registration statement on Form S-8, as amended (Registration No.333-248912).
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Westport Fuel Systems Inc. | |
| (Registrant) | |
| Date: November 21, 2025 | /s/ Elizabeth Owens |
| Elizabeth Owens | |
| Chief Financial Officer |
Exhibit 99.1
UNANIMOUS SHAREHOLDERS AGREEMENT – CAUTIONARY NOTE FOR READERS
The attached Unanimous Shareholders Agreement has been filed with certain securities regulatory authorities in Canada pursuant to National Instrument 51-102 – Continuous Disclosure Obligations, which requires Westport Fuel Systems Inc. ("Westport") to file certain material contracts to which it (or any subsidiary) is a party. Unlike certain other documents filed on behalf of Westport, the attached Unanimous Shareholders Agreement has not been prepared as a disclosure document and was not drafted with the intention of providing factual information about Westport (or any affiliate) for the benefit of investors. The attached Unanimous Shareholders Agreement contains representations and warranties made by Westport and certain of its affiliates to various counterparties for risk allocation purposes, and solely for the benefit of those counterparties. National Instrument 51-102 allows reporting issuers to omit certain provisions of material contracts and readers are cautioned that statements made by Westport (and its affiliates) in the attached Unanimous Shareholders Agreement may be qualified (in whole or in part) by information redacted from the attached copy of the Unanimous Shareholders Agreement, which information is not otherwise available to the public. Moreover, information concerning Westport, its affiliates or the subject matter of statements made in the attached Unanimous Shareholders Agreement concerning Westport or certain of its affiliates may change after the date of the attached Unanimous Shareholders Agreement, and subsequent information may or may not be fully reflected in Westport's public disclosures. Accordingly, investors should not rely on statements in the attached Unanimous Shareholders Agreement concerning Westport (or any of its affiliates) as accurate statements of fact.
| UNANIMOUS SHAREHOLDERS AGREEMENT |
|
by and among |
| WESTPORT FUEL SYSTEMS CANADA INC. |
| and |
| VOLVO hpdi holding inc. |
| and |
| 1463861 B.C. LTD. |
| and |
| ANY OTHER PERSON WHO SHALL BECOME A SHAREHOLDER OF THE GENERAL PARTNER IN ACCORDANCE WITH THE PROVISIONS HEREOF |
JUNE 3, 2024
TABLE OF CONTENTS
| ARTICLE 1 INTERPRETATION | 2 |
| 1.1 Definitions | 2 |
| 1.2 Schedules | 13 |
| 1.3 Interpretation | 13 |
| 1.4 Governing Law | 14 |
| 1.5 Subsidiaries | 14 |
| ARTICLE 2 ORGANIZATION OF THE GENERAL PARTNER | 15 |
| 2.1 Business of the General Partner | 15 |
| 2.2 Principal Place of Business | 15 |
| 2.3 Fiscal Year | 15 |
| 2.4 Freedom in Decision Making | 15 |
| ARTICLE 3 CERTAIN COVENANTS AND ACKNOWLEDGEMENTS | 16 |
| 3.1 Covenants of the GP Shareholders | 16 |
| 3.2 Covenants of the General Partner | 16 |
| 3.3 Unanimous Shareholder Agreement | 16 |
| 3.4 Relationship of GP Shareholders | 16 |
| ARTICLE 4 BOARD OF DIRECTORS | 16 |
| 4.1 Board of Directors | 16 |
| 4.2 Chair of the GP Board | 17 |
| 4.3 Indemnification | 18 |
| 4.4 Insurance | 18 |
| 4.5 Meetings of the Board of Directors | 18 |
| 4.6 Specified Board Approval | 21 |
| 4.7 Conflicted Shareholders | 24 |
| 4.8 Committees | 24 |
| 4.9 Other Positions of Representatives | 25 |
| 4.10 Officers of the JV Business | 25 |
| 4.11 Officers of the General Partner | 25 |
| ARTICLE 5 BUSINESS AND MANAGEMENT OF THE GENERAL PARTNER | 26 |
| 5.1 Management of the General Partner | 26 |
| 5.2 Services Arrangements | 26 |
| 5.3 Supply of Third Party OEMs | 27 |
| 5.4 Business Plans | 27 |
| 5.5 Financial Statements and Reports | 28 |
| 5.6 Books and Records | 29 |
| 5.7 Contracts | 29 |
| -i- |
| 5.8 Internal Controls | 29 |
| 5.9 Governance Policies | 29 |
| 5.10 Compliance | 29 |
| 5.11 Invoicing and Transfer Pricing | 30 |
| 5.12 Tax Returns | 31 |
| 5.13 Tax Costs | 32 |
| ARTICLE 6 SHAREHOLDER APPROVAL RIGHTS AND MEETINGS | 32 |
| 6.1 Shareholder Approval Rights | 32 |
| 6.2 Meetings of the Shareholders | 34 |
| ARTICLE 7 SHARES AND DISPOSITION OF SHARES | 36 |
| 7.1 Authorized Share Capital | 36 |
| 7.2 Termination of Shareholder | 36 |
| 7.3 Restrictions on Transfers | 37 |
| 7.4 General Restrictions | 37 |
| 7.5 Permitted Transfers to 100% Affiliates | 39 |
| 7.6 Required Transfers; Share Issuances and Adjustments | 39 |
| 7.7 Share Certificates | 40 |
| 7.8 Lost Share Certificates | 40 |
| 7.9 Liability on Transfer | 41 |
| 7.10 Power of Attorney | 41 |
| 7.11 Securities Law Matters | 41 |
| 7.12 Financing and Pledge of Shares | 41 |
| ARTICLE 8 FUNDING | 42 |
| 8.1 Additional Funding Requirements | 42 |
| ARTICLE 9 CONFIDENTIALITY | 42 |
| 9.1 Confidential Information | 42 |
| 9.2 Restricted Information | 44 |
| 9.3 Survival | 45 |
| ARTICLE 10 TERMINATION AND SURVIVAL | 46 |
| 10.1 Termination Events | 46 |
| 10.2 Winding Up and Dissolution | 46 |
| 10.3 Survival | 47 |
| ARTICLE 11 REPRESENTATIONS AND WARRANTIES | 47 |
| 11.1 Representations and Warranties of the Parties | 47 |
| 11.2 Survival | 48 |
| ARTICLE 12 DISPUTE RESOLUTION AND DEADLOCK | 48 |
| 12.1 Dispute Resolution and Deadlocks | 48 |
| -ii- |
| 12.2 Injunctive Relief | 48 |
| 12.3 Performance to Continue | 48 |
| ARTICLE 13 NOTICES | 48 |
| 13.1 Addresses for Service | 48 |
| 13.2 Change of Address | 49 |
| 13.3 Notices | 49 |
| ARTICLE 14 MISCELLANEOUS | 49 |
| 14.1 Press Release | 49 |
| 14.2 Amendment | 50 |
| 14.3 Agreement to be Bound | 51 |
| 14.4 Conflict with Articles | 51 |
| 14.5 Entire Agreement | 51 |
| 14.6 Strict Performance of Covenants | 51 |
| 14.7 Waiver | 51 |
| 14.8 No Liability for Consequential Damage or Loss of Profit | 52 |
| 14.9 Severability | 52 |
| 14.10 Effective Time | 52 |
| 14.11 Time of Essence | 52 |
| 14.12 Further Assurances | 52 |
| 14.13 Successors | 52 |
| 14.14 Assignment | 52 |
| 14.15 Subdivision, Consolidation, etc. of GP Shares | 52 |
| 14.16 Remedies | 53 |
| 14.17 Withholding | 53 |
| 14.18 Expenses | 53 |
| 14.19 Currency | 53 |
| 14.20 Counterparts | 53 |
SCHEDULES
Schedule A Shareholder Capital
Schedule B Dispute Resolution and Deadlock
Schedule C FMV Procedure and Methodology
Schedule D Initial Business Plan
| -iii- |
UNANIMOUS SHAREHOLDERS AGREEMENT
This Unanimous Shareholders Agreement is made effective as of June 3, 2024 (the "Effective Date").
Among:
1463861 B.C. LTD., a corporation incorporated under the laws of British Columbia (the "General Partner")
-and-
WESTPORT FUEL SYSTEMS CANADA INC., a corporation incorporated under the laws of British Columbia ("Westport Canada")
-and-
VOLVO HPDI HOLDING INC., a corporation incorporated under the federal laws of Canada ("Volvo Canada")
Recitals:
| A. | the General Partner was incorporated under the Act on February 1, 2024 with Westport Canada as its sole shareholder and issued 1,000 GP Shares on incorporation; |
| B. | the General Partner is the general partner of the Partnership, and Westport Canada and the General Partner are parties to the Initial Partnership Agreement, Westport Canada being the sole Limited Partner holding one LP Unit; |
| C. | following transfer of the JV Business to the JV Group pursuant to closing of the transactions contemplated by the Asset PA, Westport Canada held 1000 LP Units, and remained the sole Limited Partner; |
| D. | upon closing of the transactions contemplated in the Investment Agreement, Volvo Canada acquired 450 GP Shares and 450 LP Units from Westport Canada, and Volvo Sweden acquired 450 JVCo Shares from Westport Canada; |
| E. | concurrent with the execution of this Agreement, the Parties entered into the Partnership Agreement; and |
| F. | the General Partner and the GP Shareholders wish to enter into this Agreement to provide for certain matters relating to the governance of the General Partner, certain rights and obligations in respect of the ownership of the GP Shares, the election of directors of the General Partner, the management and control of certain of the General Partner's affairs and certain other matters as hereinafter provided. |
NOW THEREFORE, the Parties agree as follows:
| -1- |
ARTICLE
1
INTERPRETATION
| 1.1 | Definitions |
In this Agreement, the following words have the following meanings:
"100% Affiliate" means, with respect to any Person, an Affiliate of such Person which is (directly or indirectly) wholly owned by that Person or which is (directly or indirectly) wholly owned by a Person which also (directly or indirectly) wholly owns the Person.
"Act" means the Business Corporations Act (British Columbia).
"Additional Dispute Notice" has the meaning set out in Schedule B.
"Affiliate" means, with respect to a Person: (a) any Person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with another Person; (b) any body corporate in respect of which such Person beneficially owns, directly or indirectly, voting securities carrying more than 20% of the voting rights attached to all voting securities of the body corporate for the time being outstanding; (c) any partner of such Person; or (d) any trust, estate or other entity or fund in which such Person has a substantial beneficial interest or as to which the Person serves as trustee, manager or administrator or in similar capacity, but in each case, with respect to any GP Shareholder, excluding each member of the JV Group and, with respect to any member of the JV Group, excluding each of the GP Shareholders; and for the purpose of this definition, "control" (including with correlative meanings, the terms "controlled by" or "under common control") means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this unanimous shareholders' agreement and the Schedules.
"Anti-Bribery Laws" means any Applicable Laws relating to anti-bribery or anti-corruption (governmental or commercial), including the Swedish Criminal Code (SFS 1962:700) (Sweden), the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act of 1977 of the United States of America, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997, and any other Applicable Laws that prohibits the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value, directly or indirectly, to any Person, including any Governmental Official.
"Anti-Money Laundering Laws" means any Applicable Laws relating to money laundering or terrorism to which any of the Parties or any member of the JV Group is subject, including the Money Laundering and Terrorist Financing (Prevention) Act (SFS 2017:630) (Sweden), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Criminal Code (Canada), Executive Order No. 13224, and in each case the regulations promulgated thereunder.
"Anti-Trust Laws" means any Applicable Law in any jurisdiction in which any GP Shareholder, the General Partner or any other member of the JV Group carries on business (or will carry on business) that from time to time either: (a) prohibits anti-competitive agreement or abuse of market dominance; or (b) controls mergers or acquisitions that may have an impact on competition.
| -2- |
"Applicable Law" means any law, statute, code, ordinance, regulation, rule, Permit, rules of common law, including any judicial and administrative interpretations thereof, of any Governmental Entity which have been made public, including all judicial and administrative Orders which have been made public.
"Arbitration" has the meaning set out in Schedule B.
"Arbitrators" has the meaning set out in Appendix 3 to Schedule B.
"Asset PA" means the asset purchase agreement dated on or around the date of this Agreement between, amongst others, Westport Inc, Westport Canada, the Partnership and JVCo.
"Budget" means the annual budget with respect to the JV Group, covering a Fiscal Year that includes reasonable detail on financial projections, including profit and loss statement (which detail shall include, for the avoidance of doubt projected Operating Expenditures, projected Capital Expenditures and Projected Revenues), balance sheet and cash flow statement (and the material assumption underlying those projections), for such Fiscal Year and each Quarter thereof.
"Business Day" means a day on which banks are generally open for the transaction of commercial business in Vancouver, British Columbia and Gothenburg, Sweden but does not in any event include a Saturday or a Sunday or statutory holiday in British Columbia or Gothenburg, Sweden.
"Business Objective" has the meaning set out in the Partnership Agreement.
"Business Plan" means the five-year business plan, presented on a Quarterly and aggregate annual basis, with respect to the JV Group, covering the upcoming five Fiscal Years that articulates the mid-term and long-term objectives of the GP Shareholders (and the JVCo Shareholders) with respect to the development and operation of the JV Business and provides a roadmap to achieve such objectives, and which shall include, at a minimum, the Budget, details of major investments, Funding Plan, strategic plan, and the agreed program for development, to be prepared in the form of the Initial Business Plan or in such other form as may be agreed pursuant to Section 5.4.
"Capital Accounts" has the meaning set out in the Partnership Agreement.
"Capital Expenditures" means all expenditures of each member of the JV Group which should be capitalised in accordance with IFRS that are, or are reasonably anticipated to be, approved to be capitalised by the appointed auditor of the relevant member of the JV Group.
"Carve Out Plan" means the steps and procedures as set out in exhibit "G" to the Investment Agreement, as the same may be amended from time to time in accordance with the Investment Agreement.
"Cash Call" has the meaning set out in the Partnership Agreement.
"CFO" means the chief financial officer of the JV Business, appointed in accordance with Section 4.10(b).
| -3- |
"Chair" has the meaning set out in Section 4.2.
"Commercial Agreements" means the Development Agreement and the New Supply Agreement.
"Compensation Arrangements" means any form of incentive plan, bonus plan pension scheme, benefits plan or similar arrangement.
"Confidential Information" has the meaning set out in Section 9.1(a).
"Contract" means any agreement, arrangement, indenture, contract, purchase order, lease, sublease, deed of trust, licence, option or instrument, in any case, whether written or oral.
"CTO" means the chief technology officer of the JV Business, appointed in accordance with Section 4.10(b).
"Default Budget" means a budget with respect to the JV Group for a Fiscal Year in respect of which the Directors do not approve the proposed Budget prior to the commencement of such Fiscal Year, which budget shall consist of:
| (a) | Operating Expenditures equal to 100% of the same percentage of Projected Revenues for such Fiscal Year as Operating Expenditures represented of the revenues for the previous Fiscal Year, as included in the Budget approved as part of the Business Plan for the previous Fiscal Year; and |
| (b) | Capital Expenditures equal to 100% of the same percentage of Projected Revenues for such Fiscal Year as Capital Expenditures represented of the revenues the previous Fiscal Year included in the Budget approved as part of the Business Plan for the previous Fiscal Year; and |
| (c) | such additional Operating Expenditures reasonably required to be incurred for the proper and safe operation of facilities and material equipment used in connection with the JV Business during such Fiscal Year. |
"Defaulted Amount" has the meaning set out in the Partnership Agreement.
"Development Agreement" [Redacted – commercially sensitive information].
"Director" means a director of the GP Board.
"Dispute" means any controversy, claim, dispute or other matter in question between the Parties arising out of or relating in any way to this Agreement or the GP Articles.
"Distributable Cash" has the meaning set out in the Partnership Agreement.
"Effective Date" means the date first above written.
"Emergency Default Loan" has the meaning set out in the Partnership Agreement.
"Emergency Funding" has the meaning set out in the Partnership Agreement.
"Emergency Funding Notice" has the meaning set out in the Partnership Agreement.
| -4- |
"Escalation Period" has the meaning set out in Appendix 1 to Schedule B.
"Export Control Laws" means any Applicable Laws governing transactions in controlled goods or technologies, including the Export and Import Permits Act (Canada), and any related regulations, the EC Regulation 428/2009 and the implementing laws and regulations of the EU member states; the U.S. Export Administration Act, U.S. Export Administration Regulations, U.S. Arms Export Control Act, U.S. International Traffic in Arms Regulations, and their respective implementing rules and regulations; the U.K. Export Control Act 2002 (as amended and extended by the Export Control Order 2008) and its implementing rules and regulations; and other similar export control laws or restrictions applicable to the General Partner or any other member of the JV Group from time to time.
"First Adjourned Board Meeting" has the meaning set out in Section 4.5(d)(ii).
"First Adjourned Shareholders Meeting" has the meaning set out in Section 6.2(e)(ii).
"Fiscal Year" has the meaning set out in Section 2.3.
"FMV" means the price agreed by the GP Shareholders or, in default of such agreement, the fair market value of the LP Units, GP Shares and LP Loans, as applicable, determined in accordance with the FMV Procedure and Methodology.
"FMV Procedure and Methodology" means the procedure and methodology for agreeing or determining FMV, as set out in Schedule C.
"Framework Agreement" means the framework agreement, the form of which is set out in the Investment Agreement.
"Funding Default" has the meaning set out in the Partnership Agreement.
"Funding Non-Defaulting Party" has the meaning set out in the Partnership Agreement.
"Funding Plan" means the funding plan for the JV Business for the 18 month period commencing at the start of the forthcoming Fiscal Year (provided that, the initial funding plan shall commence on the Effective Date and end at the end of the then-current Fiscal Year), including the amount of such funding to be provided to the LP Group by the Limited Partners (in proportion to their respective LP Interests), and to the JVCo Group by the JVCo Shareholders (in accordance with the JVCo SHA), and/or whether any funding will be sourced by way of Third Party debt.
"General Partner" has the meaning set out in the Recitals.
"Governmental Entity" means: any (a) government or political subdivision, whether federal, provincial, local or foreign; (b) agency or instrumentality of any such government or political subdivision; (c) federal, state, local or foreign court; (d) applicable industry self-regulatory organization; and (e) applicable stock exchange or securities regulatory authority.
"Governmental Official" means (a) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, any Governmental Entity; (b) any political party, political party official or candidate for political office; (c) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, a company, business, enterprise or other entity owned, in whole or in part, or controlled by any Governmental Entity; or (d) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, a public international organization.
| -5- |
"GP Articles" means the articles of association of the General Partner, as amended or replaced from time to time in accordance with the Act.
"GP Board" means the board of directors of the General Partner.
"GP Interest" has the meaning set out in the Partnership Agreement.
"GP Shareholders" means, collectively:
| (a) | the shareholders of the General Partner listed in Schedule A as of the Effective Date; and |
| (b) | any Person who hereafter becomes a shareholder of the General Partner pursuant to and in compliance with the provisions hereof (who shall be listed as such in Schedule A as amended from time to time), |
and "GP Shareholder" means any one of them.
"GP Shares" means the common shares in the capital of the General Partner, and where the context permits, includes:
| (a) | any shares into which such shares may be converted, reclassified, redesignated, subdivided, consolidated or otherwise changed; and |
| (b) | any shares of the General Partner or of any other Person received by the holders of such shares as a result of any merger, amalgamation, reorganization, arrangement or other similar transaction involving the General Partner. |
"Holding Company" means, in relation to Volvo Canada (which term shall be deemed to include for these purposes any 100% Affiliate to which Volvo Canada has Transferred any GP Shares, LP Units or LP Loans), that since incorporation Volvo Canada has only carried out the function of holding GP Shares, LP Units and making any LP Loans, and does not have any outstanding liabilities or indebtedness other than any liabilities or indebtedness arising in the ordinary course of it carrying out such function including under this Agreement and the Partnership Agreement.
"HPDI" has the meaning set out in the Partnership Agreement.
"HPDI Systems" has the meaning set out in the Partnership Agreement.
"ICC" has the meaning set out in Schedule B.
"ICC Rules" has the meaning set out in Appendix 3 to Schedule B.
"IFRS" means the accounting principles so prescribed, recommended or promulgated from time to time as the International Financial Reporting Standards, as issued by the International Accounting Standard Board or any successor thereto, as such principles may be amended, varied or replaced from time to time, which are applicable as at the date on which any calculation made hereunder is to be effective or as at the date of any financial statements referred to herein.
| -6- |
"Income" or "Loss" has the meaning set out in the Partnership Agreement.
"Initial Business Plan" means the initial Business Plan attached hereto as Schedule D.
"Initial Dispute Notice" has the meaning set out in Schedule B.
"Initial Partnership Agreement" means the limited partnership agreement dated February 1, 2024 between Westport Canada and the General Partner.
"Intellectual Property" means any intellectual property existing from time to time, including any rights in a specific jurisdiction associated with the following and other intangible assets: (a) patents, patent applications, utility models, inventions, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof; (b) trademarks, service marks, trade dress, logos, trade names, corporate names, Internet domain names, indications and appellations of origin, rights under the law of passing off and equivalents, design rights and other source identifiers, together with the goodwill symbolized by any of the foregoing; (c) copyrightable works, copyrights (whether registered or unregistered), related rights and allied rights including moral rights, software, databases, topographies, performances and in recordings, as well as any works protected by design law or other intellectual or industrial property laws; (d) confidential and proprietary information, including trade secrets, know-how, ideas, inventions, systems, formulae, models and methodologies as well as the right in any jurisdiction to limit the use or disclosure thereof; (e) industrial designs; and (f) all applications and registrations for the foregoing.
"Investment Agreement" means the investment agreement dated March 11, 2024 between Westport Inc, Westport Canada, Volvo Sweden and Volvo Canada.
"Investment Closing" has the meaning set out in the Investment Agreement.
"IT Transition Plan" means the IT Carve-Out Roadmap and related transition plan schedules in final form agreed pursuant to section 6.6 of the Investment Agreement.
"JV Agreements" means the JVCo SHA, the JVCo Articles, the Partnership Agreement, the GP Articles and this Agreement.
"JV Business" has the meaning set out in the Partnership Agreement.
"JV Group" means the LP Group and the JVCo Group.
"JVCo" means HPDI Technology AB (company registration 559468-9696) a company limited by shares, established in accordance with the Swedish Companies Act (Sw. Aktiebolagslagen (SFS 2005:551)).
"JVCo Articles" means the articles of association of JVCo, as amended or replaced from time to time in accordance with the JVCo SHA.
"JVCo Board" means the board of directors of JVCo, appointed in accordance with the JVCo SHA and the JVCo Articles from time to time.
"JVCo Dispute" has the meaning set out in Schedule B.
| -7- |
"JVCo Group" means JVCo and each of its Subsidiaries.
"JVCo Interest" means at any time with respect to a JVCo Shareholder, that JVCo Shareholder's rateable ownership of JVCo Shares expressed as a percentage, which percentage is determined by dividing the number of JVCo Shares owned by the JVCo Shareholder by the total number of JVCo Shares owned by all JVCo Shareholders.
"JVCo Loans" has the meaning set out in the JVCo SHA.
"JVCo SHA" means the shareholders agreement governing JVCo between JVCo, Westport Canada and Volvo Sweden dated the Effective Date.
"JVCo Shareholders" means the shareholders of JVCo from time to time in accordance with the terms of the JVCo SHA.
"JVCo Shares" means the common shares in the capital of JVCo.
"Knowledge of Management" means with respect to any matter the actual knowledge of any member of Management or the knowledge any of them should have had, had they made reasonable due inquiry and having regard to their role, with respect to the applicable matter at the relevant time.
"Lien" means any lien, security interest, mortgage, pledge, charge, license, adverse claim, reversion, restriction, assignment, option, right to acquire or encumbrance of any kind.
"Limited Partners" means Westport Canada, Volvo Canada, and any other Person who shall be admitted to the Partnership as a limited partner of the Partnership, and "Limited Partner" means any one of them.
"LP Default Loan" has the meaning set out in the Partnership Agreement.
"LP Group" means the Partnership, each of its Subsidiaries and the General Partner.
"LP Group's Intellectual Property" means the Intellectual Property owned, co-owned or created by, or licensed to, any member of the LP Group or in which any member of the LP Group otherwise has an interest, including the Intellectual Property transferred by Westport Canada and/ or its Affiliates to any member of the LP Group pursuant to the JV Agreements, the Investment Agreement, the Asset PA and any assignment agreement or license contemplated therein.
"LP Interest" has the meaning set out in the Partnership Agreement.
"LP Loans" has the meaning set out in the Partnership Agreement.
"LP Units" has the meaning set out in the Partnership Agreement.
"Management" means the President & CEO, the CFO and the CTO of the JV Group and any other officer of the JV Group nominated by the President & CEO and approved by the GP Board in accordance with Section 4.10 or the JVCo Board in accordance with the JVCo SHA, as applicable.
"Net Business Value" has the meaning set out in Schedule C.
| -8- |
"New Supply Agreement" means a supply agreement in relation to HPDI products, comprised of the Price Agreement, Framework Agreement and Raw Material Agreement, and entered into between the Partnership and Aktiebolaget Volvo (publ) on the Effective Date.
"Notified Shareholder" has the meaning set out in Appendix 4 to Schedule B.
"OECD" means the Organization for Economic Cooperation and Development.
"OEM" means a vehicle or engine original equipment manufacturer targeting on-road products or off-road products (including trucking, mine, marine, agricultural, construction and rail equipment) utilizing HPDI Systems.
"Operating Expenditures" means all expenditures of each member of the JV Group, other than Capital Expenditures, including general and administrative expenditures, interest expenditures, operating expenditures and maintenance expenditures.
"Order" means any order, judgment, ruling, injunction, assessment, award, decree or writ of any Governmental Entity.
"Outstanding Dispute" has the meaning set out in Appendix 1 to Schedule B.
"Parties" means the General Partner, Westport Canada, and Volvo Canada, and "Party" means any one of them as the context requires.
"Partners" means the Limited Partners and the General Partner.
"Partnership" means the HPDI Technology Limited Partnership, a limited partnership formed under the laws of British Columbia.
"Partnership Agreement" means the amended and restated limited partnership agreement entered into on the Effective Date, among the General Partner, as the general partner, and Westport Canada and Volvo Canada, as the Limited Partners.
"Partnership Dispute" has the meaning set out in Schedule B.
"Permit" means any license, permit, authorization, certificate of authority, qualification or similar document or authority that has been issued or granted by any Governmental Entity.
"Permitted Lien" means a Lien created in accordance with the terms of this Agreement.
"Person" means any individual (natural person), partnership, limited partnership, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, limited liability company, trust, trustee, executor, administrator or other legal personal representative, Governmental Entity or entity however designated or constituted.
"President & CEO" means the president and chief executive officer of the JV Business, appointed in accordance with Section 4.10(a).
"Price Agreement" means the price agreement, the form of which is set out in the Investment Agreement.
| -9- |
"Project Agreements" means the Commercial Agreements, the Investment Agreement, the JV Agreements and the Westport Non-Compete.
"Projected Revenues" means, in respect of any Fiscal Year, the projected revenues of the JV Group for such Fiscal Year as reflected in the last agreed Business Plan.
"Quarter" or "Quarterly" means each continuous three-month period during a calendar year, ending on March 31, June 30, September 30 or December 31.
"Raw Material Agreement" means the raw material agreement in the form to be agreed pursuant to the Investment Agreement.
"Related Party Agreement" means any Contract between any member of the LP Group, on the one hand, and a GP Shareholder, Limited Partner or an Affiliate of a GP Shareholder or a Limited Partner, on the other hand.
"Relevant Percentage" with respect to a GP Shareholder means that GP Shareholder's GP Interest being at least 25%.
"Representatives" means the directors, officers, employees, agents, lawyers, accountants, consultants and financial advisors of a Party and Affiliates of a Party.
"Restricted Information" has the meaning set out in Section 9.2.
"Sale Transaction" has the meaning set out in Appendix 4 to Schedule B.
"Sanctions Laws" means any Applicable Laws related to economic or financial sanctions, or trade embargoes or restrictive measures, enacted, imposed, administered or enforced from time to time by (a) the U.S. government, including the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or the U.S. Department of Commerce (b) the United Nations Security Council; (c) the European Union or any of its member states; (d) Her Majesty's Treasury; (e) the Canadian Government; or (f) any other relevant authority, and including the Criminal Code (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), the Special Economic Measures Act (Canada), the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (Canada) and the United Nations Act (Canada).
"Schedules" means the schedules to this Agreement identified in Section 1.2.
"Second Adjourned Board Meeting" has the meaning set out in Section 4.5(d)(ii).
"Second Adjourned Shareholders Meeting" has the meaning set out in Section 6.2(e)(ii).
"Senior Representatives" has the meaning set out in Schedule B.
"Shareholder Group" means, with respect to a GP Shareholder or a Partner: (a) any Person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such GP Shareholder or Partner; or (b) any body corporate in respect of which such GP Shareholder or Partner beneficially owns, directly or indirectly, voting securities carrying more than 50% of the voting rights attached to all voting securities of the body corporate for the time being outstanding, but in each case excluding each member of the JV Group; and for the purpose of this definition, "control" (including with correlative meanings, the terms "controlled by" or "under common control") means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting securities, by contract or otherwise.
| -10- |
"Shotgun Closing Date" has the meaning set out in Appendix 4 to Schedule B.
"Shotgun Election Notice" has the meaning set out in Appendix 4 to Schedule B.
"Shotgun Offer" has the meaning set out in Appendix 4 to Schedule B.
"Significant Deadlock Event" means:
| (a) | no Business Plan receives Specified Board Approval for two consecutive years which significantly impacts the ability of the JV Group to meet the Business Objective; |
| (b) | [Redacted – commercially sensitive information]; |
| (c) | a "Significant Deadlock Event" (as such term is defined in the JVCo SHA) occurs pursuant to the terms of the JVCo SHA. |
"SOFR" [Redacted – commercially sensitive information]
"Specified Board Approval" means, with respect to any matter, the approval of such matter by all Directors appointed by GP Shareholders who hold a Relevant Percentage at the time of such approval, as evidenced by: (a) a resolution approving such matter passed by a vote of all such Directors in person or by proxy at a duly convened meeting of the Directors or any adjournment thereof; or (b) a written resolution signed in one or more counterparts by all such Directors.
"Specified Shareholder Approval" means, with respect to any matter, the approval of such matter by all GP Shareholders who hold a Relevant Percentage at the time of such approval, as evidenced by: (a) a resolution approving such matter passed by a vote of all such GP Shareholders in person or by proxy at a duly convened meeting of the GP Shareholders or any adjournment thereof; or (b) a written resolution signed in one or more counterparts by all such GP Shareholders.
"SR Escalation Notice" has the meaning set out in Schedule B.
"Subsidiary" means any subsidiary (as defined in the Securities Act (British Columbia)) of the Partnership or the JVCo from time to time (excluding any entity in which the Partnership or the JVCo does not, directly or indirectly, hold greater than 50% of the voting equity), or any other Person in which the Partnership or the JVCo holds greater than 50% of the voting equity or which is controlled by the Partnership or the JVCo, in each case directly or indirectly, and for the purpose of this definition, "controlled by" means the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
| -11- |
"Tax" or "Taxes" means all federal, provincial, state, territorial, local and other taxes, assessments, charges, duties, tariffs, deficiencies, fees, excises, premiums, imposts, levies or other governmental charges (including interest, fines, penalties or additions associated therewith), including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, employer health, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, goods and services, harmonized sales, value-added, alternative, estimated and all other taxes, and all employment insurance, health insurance and government pension plan premiums or contributions, of any kind for which a Person may have any liability imposed by any Governmental Entity, whether disputed or not, or payable: (a) pursuant to any tax sharing or tax indemnity arrangement or any other contract relating to sharing or payment of such tax, assessment, charge, duty, tariff, deficiency, fee, levy or other governmental charge; (b) or as a result of being a transferee or successor of another Person; or (c) as a result of being a member of an affiliated, consolidated, combined or unitary group (in each case together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties).
"Tax Debtor" has the meaning set out in Section 5.13.
"Tax Dispute" means any Dispute relating to the TP Model or any Tax Return.
"Tax Expert" means any one of Pricewaterhouse Coopers, Ernst & Young, KPMG or Deloitte, as agreed by the GP Shareholders or appointed in accordance with Schedule B.
"Tax Indemnitees" has the meaning set out in Section 5.13.
"Tax Return" means any report, return (including any information return), statement, schedule, notice, form, declaration, claim for refund or other statement, document or information (including any schedule or attachment thereto or amendment thereof) required to be supplied to a Governmental Entity in connection with the determination, assessment, collection or payment of any Taxes or in connection with the administration, implementation or enforcement of or compliance with any Applicable Law relating to Taxes, including any estimated returns and reports of every kind, with respect to Taxes.
"Terminated Shareholder" has the meaning set out in Section 7.2(a).
"Terminating Event" has the meaning set out in Section 7.2(a).
"Third Party" means any Person other than the Parties and their respective Affiliates.
"Third Party OEM" means any OEM that is a Third Party.
"TP Model" has the meaning set out in Section 5.11.
"Transfer" means:
| (a) | a transfer of any GP Shares, LP Units or LP Loans or, as the context requires, any JVCo Shares, JVCo Loans or shares in Volvo Canada, to any Person, including to an Affiliate of the Transferor; |
| (b) | any sale, exchange, transfer, assignment, gift, mortgage, pledge, encumbrance, hypothecation, alienation, transmission or other transaction or disposition, whether voluntary, involuntary or by operation of law, by which the beneficial ownership, the economic risk of return, a security interest or other interest in, any GP Shares, LP Units or LP Loans or, as the context requires, any JVCo Shares, JVCo Loans or shares in Volvo Canada, passes from one Person to another Person (including an Affiliate) or to the same Person in a different capacity, whether or not for value; or |
| -12- |
| (c) | any transaction, agreement, undertaking, commitment or arrangement to effect any of the foregoing, |
and "to Transfer", "Transferred", "Transferring", "Transferor" and "Transferee" and similar expressions have corresponding meanings.
"Triggering Shareholder" has the meaning set out in Appendix 4 to Schedule B.
"Valuator" has the meaning set out in Schedule C.
"Volvo Canada" has the meaning set out in the Recitals.
"Volvo Sweden" means Volvo Business Services International AB, with company registration number 556539-9853 and its registered office at 405 08 Göteburg, Sweden.
"Westport Canada" has the meaning set out in the Recitals.
"Westport Inc" means Westport Fuel Systems Inc., a corporation incorporated under the laws of the Province of Alberta.
"Westport Non-Compete" means the non-compete agreement entered into between Westport Inc and Volvo Sweden dated the Effective Date.
| 1.2 | Schedules |
The following schedules are attached to and form part of this Agreement:
Schedule A - Shareholder Capital
Schedule B - Dispute Resolution and Deadlock
Schedule C - FMV Procedure and Methodology
Schedule D - Initial Business Plan
If there is any conflict or inconsistency between the provisions of the body of this Agreement and those of a Schedule, the provisions of the body of this Agreement shall prevail to the extent of the conflict.
| 1.3 | Interpretation |
In this Agreement:
| (a) | words importing gender include all genders and other Persons, and words in the singular include the plural, and vice versa, wherever the context requires; |
| (b) | if a word is defined in this Agreement, a derivative of that word shall have a corresponding meaning; |
| (c) | all references to designated articles, sections, Schedules and other subdivisions are to designated articles, sections, Schedules and other subdivisions of this Agreement; |
| -13- |
| (d) | any reference to a Person in a particular capacity is and is deemed to be a reference to that Person in that capacity and not in any other capacity; |
| (e) | all references to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; |
| (f) | the term "including", "includes", "include" and "in particular" means "including (or includes, include, or in particular) without limitation"; |
| (g) | headings and the Table of Contents are not to be considered part of this Agreement and are included solely for convenience of reference and are not intended to be full or accurate descriptions of the contents hereof; |
| (h) | all accounting terms not otherwise defined will have the meanings assigned to them by, and all computations to be made will be made in accordance with, IFRS; |
| (i) | references to any Applicable Law (including any statute referenced in this Agreement) means such Applicable Law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and references to any section or other provision of any Applicable Law means that provision of such Applicable Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision; |
| (j) | any reference to a Person will include and will be deemed to be a reference to any Person that is a successor or assign to that Person (but only to the extent such Person is permitted to be a successor to or assignee of such Person pursuant to the provisions of this Agreement); |
| (k) | all references to US$ are references to United States Dollars and all references to SEK are references to Swedish Krona; |
| (l) | the rule of contractual interpretation known as "contra proferentem" shall not apply to the interpretation or construction of this Agreement, such that in interpreting this Agreement, it shall be irrelevant which Party drafted any particular provision hereof; |
| (m) | unless otherwise specified herein, or as the context may require, computation of any period of time referred to in this Agreement shall exclude the first day and include the last day of such period; and |
| (n) | unless otherwise indicated, references to the time of day or date mean the local time or date in Vancouver, British Columbia. |
| 1.4 | Governing Law |
This Agreement will be governed by and construed, interpreted and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without reference to conflict of laws principles.
| 1.5 | Subsidiaries |
| -14- |
Save as provided in this Agreement, any Subsidiary of the Partnership will be governed and operated in the same manner as the Partnership is governed and operated hereunder, and this Agreement and the Partnership Agreement, as applicable, will be interpreted and applied to give effect to the foregoing, including the matters contemplated in Section 4.6 and Section 6.1.
ARTICLE
2
ORGANIZATION OF THE GENERAL PARTNER
| 2.1 | Business of the General Partner |
The General Partner has been formed and will function for the sole purpose of carrying out on behalf of the Partnership the duties and responsibilities of the General Partner of the Partnership, including carrying out the JV Business on behalf of the Partnership and in conjunction with the other members of the JV Group upon and subject to the rights, terms, conditions, restrictions and privileges specified in this Agreement and the Partnership Agreement and that are otherwise required by Applicable Law, and to engage in all activities directly related thereto. Except as otherwise provided for in this Agreement or by Specified Shareholder Approval, the General Partner shall not carry on any business other than the JV Business.
| 2.2 | Principal Place of Business |
The principal office of the General Partner will be located at 1691 W 75th Ave, Vancouver, British Columbia, or at such other place or places in Canada as the General Partner may from time to time designate upon written notice to the GP Shareholders.
| 2.3 | Fiscal Year |
The fiscal year of the General Partner shall be the period of 12 months ending on December 31 each year (the "Fiscal Year").
| 2.4 | Freedom in Decision Making |
Subject to this Agreement and Applicable Law, and save in the case of fraud or wilful misconduct:
| (a) | no GP Shareholder shall be accountable or liable to the other GP Shareholders or the General Partner as a result of acting in its own best interest, except in the case of any decision or action that is illegal or in breach of this Agreement and except as otherwise expressly provided in this Agreement; and |
| (b) | no appointee of a GP Shareholder to the GP Board or a sub-committee shall be accountable or liable to the other GP Shareholders, the General Partner or the other Directors as a result of such individual acting in accordance with the instructions or preference of his appointer. |
Notwithstanding the foregoing, each GP Shareholder shall in good faith consider any objections or reservations expressed by the other GP Shareholder concerning the performance of an appointee of such GP Shareholder.
| -15- |
ARTICLE
3
CERTAIN COVENANTS AND ACKNOWLEDGEMENTS
| 3.1 | Covenants of the GP Shareholders |
Each GP Shareholder covenants and agrees that it will vote, or cause to be voted, the GP Shares owned by it to accomplish and give effect to the terms and conditions of this Agreement, whether at a meeting of the GP Shareholders or by written resolution or other instrument of the GP Shareholders.
| 3.2 | Covenants of the General Partner |
The General Partner consents to the provisions of this Agreement and covenants and agrees that it will, at all times during the term of this Agreement, comply with the Partnership Agreement and this Agreement in carrying on the JV Business.
| 3.3 | Unanimous Shareholder Agreement |
It is the intention of the Parties in entering into this Agreement to alter the powers of Directors as described in section 137(1) of the Act such that the power of the Directors to manage or supervise the management of the business and affairs of the General Partner is restricted in accordance with the terms of this Agreement. The Parties shall amend the GP Articles as necessary from time to time to give effect to the restrictions on the power of Directors outlined herein. The fact that any part of this Agreement may not operate or be construed as a unanimous shareholder agreement shall not prevent the remainder or any other part of this Agreement from operating and being construed as a unanimous shareholder agreement.
| 3.4 | Relationship of GP Shareholders |
Except as expressly authorized by this Agreement, nothing in this Agreement shall be construed to authorize any GP Shareholder to act as the agent of any other GP Shareholder, nor to permit any GP Shareholder to act on behalf of or bind any other GP Shareholder or to give any GP Shareholder the authority to act for or to assume or incur any obligations or liabilities on behalf of any other GP Shareholder or to pledge the credit of any other GP Shareholder. For greater certainty, nothing in this Agreement shall be deemed to constitute any GP Shareholder the partner of any other GP Shareholder, except that Westport Canada and Volvo Canada shall be limited partners of the Partnership.
ARTICLE
4
BOARD OF DIRECTORS
| 4.1 | Board of Directors |
| (a) | Unless otherwise agreed by Specified Shareholder Approval, the GP Board shall consist of up to six Directors. Each GP Shareholder shall be entitled to appoint up to three Directors to the GP Board. If any GP Shareholder's GP Interest: (i) reduces below 40% but remains greater than or equal to 25%, such GP Shareholder shall be entitled to appoint only two Directors to the GP Board; (ii) reduces below 25% but remains greater than or equal to 5%, such GP Shareholder shall be entitled to appoint only one Director to the GP Board; and (iii) reduces below 5%, such GP Shareholder shall no longer be entitled to appoint any directors to the GP Board, and in each such case the total number of members of the GP Board shall be adjusted accordingly. The GP Shareholders acknowledge and agree that: (A) the JVCo Board shall at all times have the same composition and appointees as the GP Board; and (B) at least 50% of the GP Board (and the JVCo Board) shall be resident in the European Economic Area, unless the Parties agree otherwise in writing or the JVCo is granted an exemption from the European Economic Area residency requirement by the Swedish Companies Registration Office. |
| -16- |
| (b) | Based upon their respective GP Interests as of the Effective Date, the GP Shareholders shall initially be entitled to nominate and have elected the following number of Directors to the GP Board: |
| (i) | Westport Canada shall be entitled to nominate three Directors to the GP Board; and |
| (ii) | Volvo Canada shall be entitled to nominate three Directors to the GP Board. |
If at any time, and from time to time, the GP Interests of the GP Shareholders change, the GP Shareholders shall take such steps as may be required to accommodate the nomination rights of the GP Shareholders set out in Section 4.1(a).
| (c) | Each GP Shareholder shall have the right to remove and replace any of the Directors it nominated at any time by giving notice of such change to the other Parties. |
| (d) | Upon nomination of an individual as a Director in accordance with this Section 4.1, the other GP Shareholders shall be deemed to have voted in favour to elect that nominee. |
| (e) | If a vacancy on the GP Board arises for any reason whatsoever, such vacancy shall be filled by the election or appointment of a Director nominated by the GP Shareholder whose nominee has vacated the position as Director. |
| (f) | The Directors will not transact any business or exercise any of their powers or functions if there is a vacancy on the GP Board such that a GP Shareholder entitled to nominate one or more Directors to the GP Board is entirely unrepresented. In such circumstances, if a replacement Director is not elected or appointed because the GP Shareholder has failed to nominate a replacement within 30 Business Days of vacancy, the Directors then in office shall be entitled to transact business and exercise all of the powers and functions of the GP Board, and any decision or action made by them is, and shall be conclusively deemed to be, a decision or action of the GP Board. |
| (g) | No remuneration shall be paid to the Directors in their capacities as Directors. |
| 4.2 | Chair of the GP Board |
The appointment of the chair of the GP Board shall rotate between the Director appointees of the GP Shareholders every three years which shall (save in respect of the initial Chair) commence on June 30th (the "Chair"). The initial Chair shall be appointed by Westport Canada, with effect from the Effective Date and whose term shall end on June 30, 2027. The Chair shall not have a casting or second vote at meetings of the GP Board and the GP Shareholders shall procure that the Chair shall also be appointed the chair of the JVCo Board in accordance with the JVCo SHA.
| -17- |
| 4.3 | Indemnification |
| (a) | To the fullest extent permitted by Applicable Law, the General Partner shall indemnify all Directors, officers, former Directors and former officers, all GP Shareholders and former GP Shareholders (to the extent that such GP Shareholders and former GP Shareholders exercise or exercised the rights, powers, duties and liabilities of a Director or of officers) and all individuals who act or acted at the General Partner's request as a Director or officer of a body corporate of which the General Partner is or was a shareholder or creditor, and their heirs and legal personal representatives, against all claims, liabilities, damages, losses, charges, costs and expenses of any nature whatsoever, including any amount paid to settle any action or satisfy a judgment reasonably incurred by them in respect of any civil, criminal or administrative action or proceeding to which they are made a party by reason of being or having been a Director or an officer of such body corporate or by reason of acting or having acted as a Director or an officer if: |
| (i) | they acted honestly and in good faith with a view to the best interests of the General Partner; |
| (ii) | in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, they had reasonable grounds for believing that their conduct was lawful; and |
| (iii) | such claim is not in respect of a claim made by one GP Shareholder against the other GP Shareholder. |
| (b) | The intention of this Section 4.3 is that all Persons referred to in this Section 4.3 shall have all benefits provided under the indemnification provisions of the Act to the fullest extent permitted by Applicable Law, and the General Partner shall forthwith pass all resolutions and take such other steps as may be required to give full effect to this Section 4.3, including by way of an indemnification provision in the GP Articles. |
| 4.4 | Insurance |
The General Partner shall purchase or maintain insurance for the benefit of the Directors and officers against liabilities with respect to their positions with the General Partner by a reputable insurer in such amounts and on such terms as determined by the GP Board.
| 4.5 | Meetings of the Board of Directors |
Meetings of the GP Board shall be held in the manner specified in the GP Articles; provided that, the following provisions shall prevail to the extent of any inconsistency with the GP Articles:
| (a) | Location. Unless otherwise unanimously determined by the GP Board, meetings of the GP Board shall be held on a Business Day, virtually or in person provided that: (i) there shall be at least two in person meetings in each Fiscal Year in Canada; (ii) no more than half of all in person meetings in each Fiscal Year shall be held outside Canada; and (iii) for each virtual meeting, the number of Directors located outside Canada shall not exceed the number of Directors located in Canada. |
| -18- |
| (b) | Calling Meetings. The Chair shall call meetings of the GP Board to be held no less than four times a year, on a schedule to be agreed by the GP Board at the start of each Fiscal Year, and otherwise at such times as the Chair considers appropriate, including to discuss extraordinary matters, and shall otherwise call a meeting upon receipt of a written request from one Director or the President & CEO. If the Chair fails or neglects to call, within 12 hours after receipt of such written request, a meeting to be held on such notice and otherwise in accordance with Section 4.5(c), any Director or the President & CEO may call the meeting instead. |
| (c) | Agenda and Meeting Materials. All notices of meetings of the GP Board which are not part of the annual meeting schedule referred to in Section 4.5(b) shall be given to each Director at least three months prior to the meeting, save that an extraordinary meeting may be held on not less than 72 hours' notice. Such notice shall specify the time and the place where the meeting is to be held. Not less than 5 Business Days prior to the date set for a meeting (or when the notice of the meeting is given, if sooner) an agenda specifying, in reasonable detail, all matters that are to be the subject of a vote at such meeting and sufficient information to enable Directors to make a reasoned judgment on all such matters shall be sent to the Directors. It shall not be necessary for any such notice to set out the exact text of any resolution proposed to be passed at the meeting provided that the subject matter of such resolution is fairly set out in the notice or schedule thereto. Accidental omissions to give notice of a meeting to, or the non-receipt of notice of a meeting by, any Director will not invalidate proceedings at that meeting. The failure to include an item on the agenda shall preclude the GP Board from passing a resolution in relation to that item until the next GP Board meeting called to consider that item, unless: |
| (i) | there is a quorum of Directors present at the meeting; and |
| (ii) | the Directors present and entitled to vote at the meeting agree to include the item on the agenda. |
| (d) | Quorum and Attendance. |
| (i) | A quorum for any meeting of the GP Board shall be two Directors appointed by each GP Shareholder present in person or by proxy at each meeting of the GP Board, unless based on their GP Interests: (A) a GP Shareholder is only entitled to appoint one Director, in which case the quorum will be one Director appointed by each GP Shareholder; or (B) a GP Shareholder is not entitled to appoint any Directors, in which case the quorum will be a simple majority of all Directors. Subject to Section 4.1(f) and Section 4.7, the GP Board shall not transact business at a meeting unless such quorum is present. |
| (ii) | If a quorum referred to in Section 4.5(d)(i) is not present within thirty 30 minutes from the time fixed for holding any such meeting, the meeting may be adjourned by the Chair to a date that is five Business Days later at the same time and place (such adjourned meeting being, the "First Adjourned Board Meeting"). If a quorum referred to in Section 4.5(d)(i) is not present within 30 minutes from the time fixed for holding any such First Adjourned Board Meeting, the First Adjourned Board Meeting may be further adjourned by the Chair to a date that is five Business Days later at the same time and place (such further adjourned meeting being, the "Second Adjourned Board Meeting"). No notice of the Second Adjourned Board Meeting shall be required. Subject to the Act, and without prejudice to Section 4.6, any Directors present at the Second Adjourned Board Meeting shall constitute a quorum for the transaction of business set out in the notice for the original meeting whether or not each GP Shareholder is represented by its Directors at such meeting, as the case may be. |
| -19- |
| (iii) | A Director is considered present or in attendance at a meeting of the GP Board if the Director participates in the meeting in person or by electronic means, telephone, or other communication facilities as permit all Persons participating in the meeting to hear or otherwise communicate with each other, and a Director participating in such meeting by such means is deemed to be present at the meeting. A Director is not considered present at a meeting where that Director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. |
| (e) | Votes. On any resolutions submitted to a meeting, each Director entitled to vote shall be entitled to one vote and resolutions shall be passed if approved by at least a simple majority of the GP Board, unless Specified Board Approval is required as contemplated in this Agreement. Votes at meetings of the GP Board may be cast personally, and resolutions shall be passed by a show of hands or at the request of any Director entitled to vote (whether before or after a vote by show of hands is taken), by ballot. |
| (f) | Meeting Minutes. The Chair will cause minutes of all meetings of the GP Board to be taken and a copy of the minutes of each meeting will be provided to each Director promptly after each meeting. For greater certainty, the failure of the Chair to fulfil his or her obligations hereunder will not invalidate or otherwise affect the efficacy of any meeting, business conducted at any meeting or the resolutions passed at such meeting. Until the contrary is proved, every meeting in respect of which minutes have been made and subsequently approved by the GP Board shall be deemed to have been duly held and convened and all proceedings referred to in the minutes shall be deemed to have been duly passed. |
| (g) | Attendance and appointment of a Proxy. A Director may attend a meeting of the GP Board either in person or it may be represented by a Person who has been appointed by a written proxy, and the right to vote at a meeting of the GP Board may be exercised in person or by proxy. A proxy, drafted in English, whether it be for a particular meeting of the GP Board or for any meeting, shall be in any form approved by the General Partner. The proxy shall be signed by the Person making the appointment or by its attorney, who shall have been duly authorized in writing, or, if the Person making the appointment is a corporation, by a duly authorized representative or attorney thereof. Any Person appointed as a proxy for a meeting of the GP Board must be the same individual who is appointed as the relevant absent Director's alternate director for the purposes of any meeting of JVCo Board which takes place at the same time. A proxy signed by or on behalf of a Director shall be deemed to be valid, unless it is contested at the time of its use or prior thereto. |
| -20- |
| (h) | Written Approval in Lieu of Meeting. Any action, consent, decision or approval required to be made by the GP Board may be taken, without prior notice thereof, by written consent or resolution in lieu of meeting, if signed by all Directors that would have been entitled to vote on and approve such matter at a meeting of the GP Board and such action, consent, decision or approval, as applicable is as valid as if it had been passed at a meeting of the GP Board. |
| (i) | Expenses. Each GP Shareholder shall be responsible for reimbursing the Directors nominated by it for all travel, hotel and other out-of-pocket expenses incurred by such Directors in attending meetings of the GP Board and carrying out their duties. |
| (j) | Right to Attend. The officers of the General Partner and counsel to the General Partner, and any other Person consented to by the GP Board, shall have the right to attend the meetings of the GP Board. No other Persons shall be permitted to attend meetings of the GP Board. |
| (k) | Rules. To the extent that the rules and procedures for the conduct of a meeting of the GP Board are not prescribed in this Agreement, the GP Articles or Applicable Law, such rules and procedures shall be determined by the Chair, acting reasonably and in a manner commensurate with the duties of the chair of a board of directors in comparable circumstances. |
| (l) | Consolidation. As the board of directors of JVCo and the General Partner shall at all times be the same, the Parties acknowledge and agree that board meetings for the General Partner and JVCo shall be consolidated. |
| 4.6 | Specified Board Approval |
Notwithstanding any provisions of this Agreement to the contrary, the General Partner shall not, for itself or in its capacity as General Partner, undertake or permit to occur (directly or indirectly, including through any Subsidiary), and the GP Board shall not authorize or approve, any of following matters without Specified Board Approval:
| (a) | transferring, selling or other disposition of assets (other than sales of production or other dispositions in the ordinary course), expansion projects or other capital expenditures, asset purchases or investments or incurrence of indebtedness as customarily defined (or series of related transactions), in each case with a value or cost or in an amount that exceeds [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any related transaction that involves any other member of the JV Group), unless otherwise contemplated in the Business Plan; |
| (b) | approving the Business Plan or any amendment, substitution, modification or material deviation in any manner from any approved Business Plan, subject to the unilateral rights of the Directors nominated by the Funding Non-Defaulting Party to amend the Business Plan in the event a Funding Default has occurred and the Funding Non-Defaulting Party has elected: (i) not to fund any of the Defaulted Amount; or (ii) to fund only a portion, but not all, of the Defaulted Amount, in accordance with the Partnership Agreement; |
| -21- |
| (c) | save as required by and in accordance with the then current Funding Plan, but without prejudice to the rights of any Limited Partner or the President & CEO to issue Emergency Funding Notices pursuant to section 4.9(e) of the Partnership Agreement, determining if additional capital is required for the JV Business, and issuing Cash Calls and determining the amounts thereof, including as a result of research and development expenses, due to losses incurred by the Partnership or otherwise; |
| (d) | determining any deviation from the Funding Plan or that no Cash Call should be issued, notwithstanding the requirements set out in the Funding Plan; |
| (e) | approving any activity to be undertaken by a Limited Partner that would otherwise violate the non-competition provisions set out in the Partnership Agreement; |
| (f) | approving, terminating or amending any Commercial Agreement; |
| (g) | granting, or permitting to exist, any Lien over any of the assets of any member of the LP Group having a value in excess of [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any equivalent and connected transaction that involves any other member of the JV Group); |
| (h) | incurring any indebtedness in the name of, or on behalf of, any member of the LP Group, and the terms thereof with a value or cost in an amount that exceeds [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any equivalent and connected transaction that involves any other member of the JV Group), unless otherwise contemplated in the Business Plan; |
| (i) | transferring, selling, abandoning, disclosing or other disposition of the LP Group's Intellectual Property, granting a license to the LP Group's Intellectual Property other than in the ordinary course of business, or granting a Lien against the LP Group's Intellectual Property; |
| (j) | approving entering into any Contract that would have the effect of restricting the use of the LP Group's Intellectual Property by any member of the JV Group and limit the development and supply of systems and technology in connection with the JV Business; |
| (k) | approving or making any change to the TP Model; |
| (l) | acquiring or divesting of shares or interests in Third Parties; |
| (m) | creating any entity that would, on incorporation, become a Subsidiary; |
| (n) | development of any part of the JV Business through a Person other than the Partnership or another member of the JV Group subject to Section 5.3(b); |
| (o) | amending the Carve Out Plan or IT Transition Plan; |
| -22- |
| (p) | approving, terminating or amending any Related Party Agreement, subject to Section 4.7; |
| (q) | commencing or resolving any claim or dispute that is material to the LP Group (or the JV Business), or that otherwise involves a total amount in dispute in excess of [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any related claim or dispute that involves any other member of the JV Group), excluding in each case claims or disputes against or by a GP Shareholder or any of its Affiliates (in which case the nominee Director of the applicable GP Shareholder shall not be entitled to vote, and any vote shall be passed by the Specified Board Approval of the other Directors); |
| (r) | declaring, making or paying any dividend, return of capital or other distribution on any securities of the General Partner or the Partnership, including determining the amount of such items that are necessary for the payment of reasonable expenses, debt service obligations on any indebtedness and any other expense or reserve for any liability, working capital or expenditure of the Partnership and its Subsidiaries in line with the Business Plan; |
| (s) | approving any dividend or distribution policies, compliance policies, delegation of authority policy, compensation policies and the code-of-conduct of the General Partner or any amendments to the foregoing (including such policies that are in place at the Effective Date); |
| (t) | hiring or terminating the President & CEO (if the President & CEO is or will be employed by a member of the LP Group); |
| (u) | making any changes in compensation and other material employment terms of the President & CEO (if the President & CEO is or will be employed by a member of the LP Group), or introducing fees for Directors; |
| (v) | entering into any Compensation Arrangements with Directors, officers or any member of senior management who reports directly to the President & CEO and is or will be employed by a member of the LP Group (provided that, in respect of senior management, the GP Board will be free to delegate the decision to the remuneration committee established pursuant to Section 4.8), or changing any such Compensation Arrangements previously approved with Specified Board Approval; |
| (w) | approving entry into, amendment of, or termination of any material joint venture agreement, strategic co-operation or partnership agreement; |
| (x) | appointing the auditors of the LP Group or any member of the LP Group; |
| (y) | changing the underlying accounting standards used by the LP Group or (other than as required to comply with IFRS) changing any of the accounting policies or procedures of any member of the LP Group; |
| (z) | making, entering into or assuming any agreement or committing to do or undertaking any of the foregoing, or permitting another member of the LP Group to do so; |
| -23- |
| (aa) | taking any action or making any decision on any matter that is analogous to the decisions in the foregoing paragraphs in relation to any other member of the JV Group; or |
| (bb) | any other matter that requires Specified Board Approval pursuant to this Agreement or any other JV Agreement. |
| 4.7 | Conflicted Shareholders |
To the extent that a GP Shareholder or any of its Affiliates is or is proposed to be a party to a Related Party Agreement, the GP Shareholder and the nominee Directors of such GP Shareholder, as applicable, shall abstain from voting under this Agreement on any matter where the interests of such GP Shareholder or its Affiliate pursuant to or under such Related Party Agreement is in or has the reasonable potential to be in conflict with the interests of any member of the JV Group, including:
| (a) | any matter relating to any dispute under or in respect of such Related Party Agreement; |
| (b) | any negotiation as to the compensation payable under such Related Party Agreement; |
| (c) | the negotiation, execution or delivery by the relevant member of the JV Group of such Related Party Agreement or any amendment thereto or termination thereof; or |
| (d) | the enforcement of any material provision, obligation or right under such Related Party Agreement, including the provision of any waiver, consent or other relief in respect of such Related Party Agreement, |
provided that, for greater certainty, notwithstanding anything to the contrary in this Agreement a GP Shareholder shall not be deemed a conflicted shareholder for purposes of its nominee Directors' voting rights in respect of the Business Plan or any part of the Business Plan under Section 4.6(b), even where such matters may relate, directly or indirectly, to a Related Party Agreement.
| 4.8 | Committees |
| (a) | The GP Board may create, dissolve or modify any committee in its discretion, including to consider appointments and remuneration of senior management of the JV Business who are or will be employed by a member of the LP Group. Committees may be comprised of Directors and/or other representatives of the JV Group and/or GP Shareholders. Any decision of any committee on a matter within the exclusive authority of the GP Board or the GP Shareholders shall require the approval of the GP Board or the GP Shareholders, as applicable, prior to being effective. |
| (b) | Each GP Shareholder shall be responsible for reimbursing any committee member that it nominated to the GP Board for all travel, hotel and other out-of-pocket expenses incurred by such committee members in attending committee meetings and carrying out their duties. |
| -24- |
| 4.9 | Other Positions of Representatives |
Subject to Sections 4.10 and 4.11, any Director or officer may also be a director or an officer or employee of a GP Shareholder or one or more Affiliates of a GP Shareholder, or of any other entities.
| 4.10 | Officers of the JV Business |
| (a) | The President & CEO shall be nominated by Westport Canada but the appointment of each such nominee who will be employed by a member of the LP Group shall be subject to Specified Board Approval. The initial President & CEO shall be: Daniel Sceli. The President & CEO shall only be removed from employment with a member of the LP Group, if applicable, by Specified Board Approval. |
| (b) | The CFO, the CTO, and other member(s) of Management shall be nominated by the President & CEO but the appointment of the CFO, the CTO and such other members of Management who will be employed by a member of the LP Group as may be specified by the GP Board from time to time shall be subject to Specified Board Approval. The President & CEO may make a recommendation to the GP Board for the removal, if applicable, of any such member of Management, but such removal shall require Specified Board Approval. |
| (c) | The President & CEO will report to the board of his or her employer, and the balance of Management will report directly to the President & CEO. |
| (d) | For certainty, any member of Management that is to be located, resident and providing services in and from Canada shall be employed by a member of the LP Group, and any member of Management that is to be located, resident and providing services in and from Europe shall be employed by a member of the JVCo Group. No position of Management shall be duplicated as between the LP Group and the JVCo Group (for example, there shall only be one President & CEO for the JV Business as opposed to a President & CEO appointed to each of the Partnership and the JVCo for purposes of undertaking the JV Business), excluding any statutory officer appointment as required in the applicable jurisdiction. |
| 4.11 | Officers of the General Partner |
The GP Board may appoint corporate officers of the General Partner as it deems appropriate, which officer positions may be filled by a member of Management; provided, however, that, with respect to, and without limitation, the execution of any documents, contracts, instruments and administrative filings and the taking of any action related to such matters which serve to bind the General Partner, or the General Partner on behalf of the Partnership, as applicable, such execution and action may only be taken by an authorized signatory that is resident in Canada and who has been granted, pursuant to a written approval by the GP Board (via a corporate signing authority and approvals policy approved by the GP Board), the corresponding authority to so bind the General Partner, or the General Partner on behalf of the Partnership, as applicable.
| -25- |
ARTICLE
5
BUSINESS AND MANAGEMENT OF THE GENERAL PARTNER
| 5.1 | Management of the General Partner |
| (a) | Subject to Section 6.1 and the Partnership Agreement, the GP Board shall manage, oversee and supervise the management of that part of the JV Business undertaken by the LP Group in accordance with this Agreement, the Act and the GP Articles. The GP Board shall be responsible (together with the JVCo Board), among other things, for: |
| (i) | reviewing and approving accounts (including management accounts, end of year accounts and reports to the GP Shareholders); |
| (ii) | approving the Business Plan; |
| (iii) | providing the GP Shareholders with information as to the progress of the JV Business; |
| (iv) | monitoring, providing guidance to and instructing the President & CEO and other members of Management; |
| (v) | monitoring the performance of the JV Business; and |
| (vi) | reviewing and approving any signing authority and approvals policy prepared by Management. |
| (b) | Management will carry out day-to-day operations of the LP Group and the JVCo Group as applicable. The President & CEO shall have the authority to assess and prioritize new opportunities that meet the Business Objective, subject always to Section 4.6 and Section 6.1. Management will be required to ensure the LP Group and the JVCo Group is sized appropriately in order to meet the Initial Business Plan and volume projections with a competitive cost level, and will develop the operations of the LP Group and the LP Group in alignment with the JVCo Board, according to how the JV Business evolves. |
| (c) | For certainty, with respect to the execution of documents, instruments, contracts and administrative filings, and the taking of any action, by Management which binds the General Partner, or the General Partner on behalf of the Partnership, Management shall be required to conduct themselves in accordance with a corporate signing authority and approvals policy, which has been approved by the GP Board. With respect to matters relating to the General Partner, or the General Partner on behalf of the Partnership, only members of Management who are resident in Canada and employed by the Partnership may execute documents, instruments, contracts and administrative filings, and take such actions, that bind the General Partner, or the General Partner on behalf of the Partnership. |
| 5.2 | Services Arrangements |
| (a) | The GP Shareholders acknowledge that they or their Affiliates may also provide works, services and/or employees to the LP Group, in particular during its initial phase, for which the associated cost will be paid by the relevant members of the LP Group as further set out in the Business Plan. If a services agreement will be entered into in connection with a GP Shareholder or its Affiliates providing works or services, the costs payable between the LP Group and such GP Shareholders (or Affiliate) will be set out in the applicable services agreement, and are to be on an open book, transparent and arm's length basis, which will be subject to Specified Board Approval. The services and works, which may be provided by the GP Shareholders (or their Affiliates) to the LP Group, may include support in respect of the management and administration of intellectual property, government relations, legal, marketing, manufacturing, purchasing, supply chain and cost engineering matters. |
| -26- |
| (b) | Subject to Section 5.3(b), the Parties shall discuss, in good faith and on a case-to-case basis, the potential licensing to the LP Group of any of the Intellectual Property of Westport Canada and its Affiliates or Volvo Canada and its Affiliates related to the JV Business after the Effective Date and which Intellectual Property is not, in the case of Volvo Canada and its Affiliates, unique in its application to Volvo Canada's or its Affiliates' engines. Any licensing shall be in the full discretion of Westport Canada or Volvo Canada, as applicable, and any licensing arrangement shall be on terms and conditions mutually acceptable to the licensee entity of the LP Group and Westport Canada or Volvo Canada, as applicable, and shall include any restrictions to and conditions of sub-licensing, and any applicable royalty payments which shall take due consideration of the fair market value of such licensed Intellectual Property. |
| 5.3 | Supply of Third Party OEMs |
| (a) | [Redacted – commercially sensitive information] |
| (b) | [Redacted – commercially sensitive information] |
| 5.4 | Business Plans |
| (a) | The Parties agree that they have approved the Initial Business Plan. |
| (b) | No later than 1 October each Fiscal Year from and after 1 October 2024, Management shall be required to distribute to the GP Board a proposed Business Plan for the upcoming Fiscal Year and the next successive four Fiscal Years. The GP Board shall consider and vote upon any such proposed Business Plan no later than 30 November of the then current Fiscal Year. |
| (c) | If any part of the proposed Business Plan for any Fiscal Year and the next successive four Fiscal Years is not approved by Specified Board Approval, the Parties shall resolve the Dispute in accordance with Section 12.1. Until the updated Business Plan is approved, the GP Board may adopt those parts of the draft Business Plan that are not disputed and the General Partner shall conduct that part of the JV Business that is applicable to the LP Group in accordance with such undisputed parts and otherwise with the last approved Business Plan, provided that, if the Budget is not agreed, the Budget for the applicable Fiscal Year shall be the Default Budget. |
| -27- |
| 5.5 | Financial Statements and Reports |
| (a) | At each Quarterly meeting of the GP Board, Management, as applicable, shall be required to report to the GP Board with respect to the current status of operations of the JV Group and with respect to all major developments or planned actions involving the JV Group, and shall present to the Directors at each Quarterly meeting a summary and review of the revenues earned and costs incurred by each member of the JV Group, and an estimate to the end of the Fiscal Year for each line item in the Budget applicable to such Fiscal Year. |
| (b) | The General Partner shall cause to be prepared and delivered to each GP Shareholder and Limited Partner, by no later than 1 March in the year immediately following each Fiscal Year, audited consolidated financial statements of the Partnership, including a statement of Income and Distributable Cash, a statement of Partner's Capital Accounts and a statement of cash flow and balance sheet for such Fiscal Year, together with audited comparative financial statements, all prepared in accordance with IFRS, and all such information as may be necessary to enable the GP Shareholders and Partners to file all required federal and provincial income Tax Returns with respect to the income of the Partnership. |
| (c) | On a Quarterly basis, within an aspirational target of four calendar days, but in any event no later than 10 Business Days, after the end of each Quarter (including the final Quarter of each Fiscal Year), the General Partner shall cause to be prepared and delivered to each Director and GP Shareholder a report summarizing the status of the activities of the JV Business as at the end of the applicable Quarter, which will include the unaudited financial statements for the JV Business as a whole for the Quarter then ended, including a balance sheet, an income statement and a related statement of changes in cash flow for such Quarter (all of which will contain comparisons to the prior year) and will contain notes explaining material balances set out in the balance sheet and income statements in accordance with IFRS. |
| (d) | The General Partner shall cause to be prepared and delivered to each GP Shareholder and Limited Partner, within an aspirational target of four calendar days, but in any event no later than five Business Days, after the end of each month of each Fiscal Year (including the final month of each Fiscal Year), a report summarizing the status of the activities of the JV Business as at the end of such month, which will include the unaudited financial statements for the JV Business for the month then ended, including a balance sheet and an income statement (all of which will present monthly and year to date results, where applicable), and will contain notes explaining material balances set out in the balance sheet and income statements in accordance with IFRS. |
| (e) | To any Director or GP Shareholder, upon request, the General Partner shall deliver: |
| (i) | such other reports, including ESG and other compliance reports as reasonably requested by such Director or GP Shareholder and with reasonably sufficient advance notice in order to prepare such new reports; and |
| (ii) | evidence that all requisite statutory deductions and remittances are being made in a timely manner, including confirmation that the income tax, workers' compensation and goods and services tax accounts of the General Partner and of each other member of the LP Group are current. |
| -28- |
| 5.6 | Books and Records |
The General Partner will maintain accurate and complete books and records of all transactions and other matters in relation to the LP Group as are usually entered into books of account in accordance with Applicable Law and IFRS consistently maintained. Each GP Shareholder or its nominee or other authorized agent or representative shall have the right to audit, examine and make copies of such books and records during normal business hours on reasonable notice and at its own expense. Each of the GP Shareholders or their nominee or other authorized agent or representative shall, if requested by the GP Board, agree to execute and deliver to the General Partner a confidentiality and non-disclosure agreement, in a form acceptable to the GP Board, acting reasonably.
| 5.7 | Contracts |
Subject to compliance with the other provisions of this Agreement and any delegated authority limits, the GP Board may designate the manner in which Contracts and other documents and instruments shall be signed by the General Partner in its own right.
| 5.8 | Internal Controls |
Management shall be required to ensure that an appropriate system of internal controls is established and maintained in order to protect the security of funds received, held and disbursed and the security of confidential information received by the General Partner in the course of the JV Business.
| 5.9 | Governance Policies |
The General Partner shall, in conjunction with the other members of the JV Group, cause Management to implement a risk-based, adequate compliance framework of good international standard, acceptable to multinationals of international repute. This shall include at least a code of conduct, a compliance governance model with defined roles and responsibilities on compliance with adequate resourcing, relevant sub-compliance policies and procedures, a training program, data privacy, a monitoring and whistleblowing framework, and appropriate reporting or audit rights for the GP Shareholders. In addition, Management shall develop a single set of policies and standards to govern all aspects of the General Partner and the JV Business, drawing from each of the GP Shareholders' respective existing policies and standards, including as contemplated in Section 5.10(b) and 5.10(d).
| 5.10 | Compliance |
| (a) | The General Partner shall not, and the GP Shareholders shall procure (through the exercise of their votes and any rights attached to their GP Shares and all other necessary or desirable actions within their control) that neither the General Partner nor its Subsidiaries, nor any of their respective directors, officers, employees or agents: (i) offer, promise, provide, or authorize the provision of any money, property, contribution, gift, entertainment or other thing of value, directly or indirectly, to any Governmental Official, or any other Person, to influence official action or secure an improper advantage, or to encourage the recipient to breach a duty of good faith or loyalty or the policies of his/her employer, or otherwise in violation of any Anti- Bribery Law; (ii) engage in any dealings or transactions with or for the benefit of any Person identified as a "designated person" under Sanctions Laws or is otherwise a target of economic sanctions under any similar Applicable Law, nor otherwise violate Sanctions Laws; (iii) violate any Anti- Money Laundering Laws; or (iv) invest any earnings from criminal activities in the General Partner or its Subsidiaries. |
| -29- |
| (b) | The General Partner shall cause Management to: (i) prepare and/or revise (as the case may be) internal policies and procedures adequate to prevent, detect and deter (A) violations of Anti-Bribery Laws, (B) transactions in violation of Sanctions Laws, (C) violations of applicable Export Control Laws, (D) violations of Anti-Money Laundering Laws, (E) transactions in violation of Anti-Trust Laws (including as further contemplated in Section 9.2); and (ii) implement such policies and procedures as soon as possible after the Effective Date. |
| (c) | The General Partner shall promptly notify the GP Shareholders of any actual or threatened legal proceedings or enforcement action relating to any breach or suspected breach by any member of the LP Group of Anti-Bribery Laws, Anti-Money Laundering Laws, Sanctions Laws, Anti-Trust Laws, or Export Control Laws. |
| (d) | The General Partner shall cause Management to prepare and/or revise (as the case may be) internal policies and procedures adequate to ensure that each member of the LP Group complies with all Applicable Laws related to Tax and takes a prudent and conservative approach to Tax planning and Tax structuring. Without limiting the foregoing, the General Partner shall not to the Knowledge of Management, and shall procure that other members of the LP Group shall not to the Knowledge of Management, enter into any transaction or series of transactions or engage in any act (whether involving a Tax haven or otherwise) which (i) could reasonably be characterized by any relevant Governmental Entity as constituting, or as being part of an arrangement that constitutes, a Tax shelter or other aggressive or abusive Tax planning or aggressive or abusive Tax avoidance, or (ii) could lead to any GP Shareholder or Partner or any member of its respective Shareholder Group suffering a Tax liability that would not have arisen in the ordinary course of the JV Business. |
| 5.11 | Invoicing and Transfer Pricing |
| (a) | The GP Board shall, upon the reasonable request of any GP Shareholder at any time and, in any event, no less frequently than annually, be required to carry out, in conjunction with the JVCo Board, periodic reviews of: (i) invoicing arrangements relating to the suppliers to the JV Group, the customers of the JV Group, and between members of the JV Group; and (ii) compensation arrangements and associated transfer pricing requirements and considerations relating to transactions between members of the JV Group (collectively, the "TP Model"). Such reviews shall consider, among other things, the functions performed, assets employed, and risks assumed by each member of the JV Group and any relevant developments or changes in the JV Business as they relate to each member of the JV Group, including with respect to suppliers, customers, investments in tangible and intangible assets, and the hiring, relocation and termination of employees. The GP Board shall cause Management to implement any new arrangements or changes to existing arrangements within the TP Model, whether identified as part of such reviews or otherwise, as may be required in order to ensure compliance by each member of the LP Group with Applicable Laws and Section 5.11(b). |
| -30- |
| (b) | The General Partner shall procure that no member of the LP Group shall enter into any transaction or series of transactions with any other member of the JV Group, any GP Shareholder or Partner, or any of their respective Affiliates, unless such transaction would have been entered into on the same or reasonably similar terms between independent enterprises in reasonably comparable circumstances (which requirement shall be construed and applied, so far as reasonably possible, in a manner consistent with Article 9 of the Model Tax Convention with respect to Taxes on Income and on Capital published from time to time by the OECD and the guidelines on transfer pricing published from time to time by the OECD, including the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2022). |
| (c) | If any Tax Dispute arises in relation to the TP Model, including the implementation of any new arrangements or changes to existing arrangements in relation thereto by any member of the JV Group, or compliance by any member of the JV Group with the TP Model, any related Applicable Laws or Section 5.11(b), the Parties shall resolve such Tax Dispute in accordance with Section 12.1. |
| 5.12 | Tax Returns |
| (a) | No income Tax Return shall be submitted by or on behalf of the Partnership to any Governmental Entity unless the General Partner has first sent a draft of such Tax Return to each of the GP Shareholders for review at least thirty (30) Business Days before the due date for filing of such Tax Return (the "Due Filing Date"). The General Partner shall also promptly provide any supporting work papers, records, documents and other information reasonably requested by any GP Shareholder with respect to such Tax Return. |
| (b) | If any GP Shareholder provides written comments on such draft income Tax Return to the General Partner and the other GP Shareholder no later than fifteen (15) Business Days before the Due Filing Date, the General Partner shall consider all such reasonable comments in finalising such Tax Return before submission to the relevant Governmental Entity. If the GP Shareholders do not agree on whether such draft income Tax Return should be amended to reflect such comments, then Section 12.1 shall apply. If such disagreement remains unresolved on the Due Filing Date for such Tax Return, then the Partnership may on such Due Filing Date submit such Tax Return, prepared on the basis of its good faith understanding and interpretation of the relevant facts and Applicable Law, to the relevant Governmental Entity and, if the GP Shareholders subsequently agree or it is determined by the Tax Expert (pursuant to Section 12.1 or otherwise) that any amendment or withdrawal of such Tax Return or any replacement Tax Return is required to be or should be submitted to the relevant Governmental Entity for any reason, the General Partner shall promptly submit the same to the relevant Governmental Entity. |
| -31- |
| (c) | With regard to any other Tax Return of any member of the LP Group not described in Section 5.12(a), any GP Shareholder may request, by giving notice to the General Partner and the other GP Shareholders at least twenty (20) Business Days before the Due Filing Date for such other Tax Return, to review such other Tax Return, in which case Section 5.12(b) shall apply, with any necessary modifications, to such other Tax Return, except that (i) the reference in Section 5.12(a) to thirty (30) Business Days shall be deemed for this purpose instead to be a reference to ten (10) Business Days; (ii) the reference in Section 5.12(b) to fifteen (15) Business Days shall be deemed for this purpose instead to be a reference to five (5) Business Days; and (iii) the reference in Section 5.12(b) to the Partnership shall be deemed for this purpose instead to be a reference to the relevant member of the LP Group. |
| (d) | If any Tax Dispute arises in relation to any Tax Return, including in relation to comments provided by any GP Shareholder on any draft Tax Return pursuant to Section 5.12, the amendment, finalisation and/or submission of such Tax Return by the General Partner or the relevant member of the LP Group, and any subsequent amendment or withdrawal of such Tax Return or replacement Tax Return, the Parties shall resolve such Tax Dispute in accordance with Section 12.1. |
| 5.13 | Tax Costs |
In the event that a member of the LP Group and/or a Party (whether in its capacity as a GP Shareholder, Partner or otherwise) or an Affiliate of such Party are held liable for any Taxes which are specifically attributable to another Party or an Affiliate of such other Party, then the Party and/or Affiliate of such Party to which such Taxes are attributable (the “Tax Debtor”) shall indemnify and hold such member of the LP Group and/or the respective other Parties and their Affiliates (the “Tax Indemnitees”) fully harmless from and against all such Taxes. The Parties shall cooperate in good faith in the defence against any such Taxes. Without limiting the foregoing, this Section 5.13 shall apply to any Taxes which are specifically attributable to a Tax Indemnitee’s failure to make withholdings required under any Applicable Law on a payment made to the Tax Debtor, unless such liability for Tax is expressly otherwise provided for in a relevant agreement or document which has been signed or approved in writing by the GP Board.
ARTICLE
6
SHAREHOLDER APPROVAL RIGHTS AND MEETINGS
| 6.1 | Shareholder Approval Rights |
Notwithstanding any provisions of this Agreement to the contrary, the General Partner shall not, for itself or in its capacity as General Partner, undertake or permit to occur (directly or indirectly, including through any Subsidiary), and the GP Shareholders shall procure, to the extent each of them is able, that GP Board shall not authorize or approve, any of following matters without Specified Shareholder Approval:
| (a) | carrying on any business other than acting as general partner of the Partnership and the JV Business or materially altering the nature of that part of the JV Business undertaken by the LP Group; |
| (b) | changing the name of the General Partner or the Partnership or any other member of the LP Group; |
| (c) | resigning as the General Partner; |
| -32- |
| (d) | amending the GP Articles or this Agreement otherwise than pursuant to and in accordance with Section 3.3 and Section 14.2; |
| (e) | except as otherwise provided for in this Agreement, increasing or decreasing the GP Board size; |
| (f) | approving the admission of a new partner to the Partnership, including as contemplated in section 8.7 of the Partnership Agreement, unless otherwise permitted by the Partnership Agreement without the consent of the General Partner; |
| (g) | approving the admission of a new GP Shareholder or issuing any securities of the General Partner or another member of the LP Group, other than the conversion, exercise or exchange of securities previously issued with Specified Shareholder Approval or as otherwise contemplated in Section 7.6; |
| (h) | except as otherwise provided for in this Agreement, issuing, selling, repurchasing, redeeming or otherwise acquiring for value any securities of the General Partner or any LP Units, or any disposition, pledge, grant of option or other rights or the issue of other financial products, in each case giving rise to an interest in the LP Group, or other change in the capital structure of the LP Group (other than any pledge or charge entered into by either GP Shareholder in relation to its GP Interest and granted in respect of Third Party financing as contemplated in this Agreement); |
| (i) | amalgamating, merging or consolidating any member of the LP Group with or into any Person; |
| (j) | carrying out an arrangement (as defined in the Act or similar legislation of any other jurisdiction in Canada) of the General Partner (or a similar process in relation to any other member of the LP Group) or pursing a going public transaction as contemplated in section 8.7 of the Partnership Agreement; |
| (k) | taking or instituting any proceedings for liquidation, winding up, bankruptcy of any member of the LP Group, permanent cessation of operations or abandonment of a material asset of any member of the LP Group (other than in emergency circumstances), suspension of operations of any material part of the JV Business undertaken by the LP Group, or make any proposal for a compromise of debt, or a reorganization of capital, assets, liabilities or organizational structure of the LP Group, under any insolvency, restructuring or corporate arrangement legislation, which at the time of the decision is expected to last for a period of more than 65 Business Days; |
| (l) | assuming or otherwise becoming responsible for (including by way of guarantee) the obligations of any Person (other than another member of the LP Group), other than normal indemnifications of officers and directors pursuant to contractual arrangements and the provisions of the Act, and of commercial counterparties pursuant to normal industry agreements, in either case entered into in the ordinary course of the JV Business; |
| (m) | effecting any listing of securities on a stock exchange or other marketplace or any public offering of securities (including a secondary offering), as further contemplated in the Partnership Agreement; |
| -33- |
| (n) | amending, modifying, altering or repealing any Specified Shareholder Approval previously passed; |
| (o) | making, entering into or assuming any agreement or commitment to do or undertaking any of the foregoing, or permit a member of the LP Group to do so; |
| (p) | taking any action or making any decision on any matter that is analogous to the decisions in the foregoing paragraphs in relation to the LP Group; or |
| (q) | any other matter that requires Specified Shareholder Approval pursuant to the terms of this Agreement. |
| 6.2 | Meetings of the Shareholders |
Meetings of the GP Shareholders shall be held in the manner specified in the GP Articles; provided that, the following provisions shall prevail to the extent of any inconsistency with the GP Articles:
| (a) | Location. Unless otherwise determined by Specified Shareholder Approval, meetings of the GP Shareholders shall be held on a Business Day, either virtually or in person in Vancouver, British Columbia. |
| (b) | Chair. The Chair shall act as chair for the purposes of all meetings of the GP Shareholders. |
| (c) | Calling Meetings. The Chair shall call meetings of the GP Shareholders no less than one time a year, at such times as the Chair considers appropriate, and shall call a meeting upon receipt of a written request from a GP Shareholder. If the Chair fails or neglects to call, within five Business Days after receipt of such written request, a meeting to be held within 20 Business Days after receipt of such written request, any GP Shareholder may call the meeting instead. |
| (d) | Agenda and Meeting Materials. All notices of meetings of the GP Shareholders shall be given to each GP Shareholder at least 20 Business Days and not more than 40 Business Days prior to the meeting. Such notice shall specify the time and the place where the meeting is to be held and will be accompanied by an agenda specifying, in reasonable detail, all matters which are to be the subject of a vote at such meeting and provide sufficient information to enable GP Shareholders to make a reasoned judgment on all such matters. It shall not be necessary for any such notice to set out the exact text of any resolution proposed to be passed at the meeting provided that the subject matter of such resolution is fairly set out in the notice or schedule thereto. Accidental omissions to give notice of a meeting to, or the non-receipt of notice of a meeting by, any GP Shareholder will not invalidate proceedings provided that quorum is met at that meeting. The failure to include an item on the agenda shall preclude the GP Shareholders from passing a resolution in relation to that item until the next GP Shareholder meeting called to consider that item, unless: |
| (i) | there is a quorum of GP Shareholders present at the meeting; and |
| (ii) | the GP Shareholders present and entitled to vote at the meeting agree to include the item on the agenda. |
| -34- |
| (e) | Quorum and Attendance. |
| (i) | A quorum for any meeting of the GP Shareholders shall be at least one individual that is the authorized representative of each GP Shareholder present at the meeting. The Chair shall not be considered the representative from the then-appointing GP Shareholder and shall not be permitted to vote, including providing any second or casting vote. The GP Shareholders shall not transact business at a meeting unless a quorum is present. |
| (ii) | If a quorum referred to in Section 6.2(e)(i) is not present within 30 minutes from the time fixed for holding any such meeting, the meeting may be adjourned by the Chair to a date that is five Business Days later at the same time and place (such adjourned meeting being, the "First Adjourned Shareholders Meeting"). If a quorum referred to in Section 6.2(e)(i) is not present within 30 minutes from the time fixed for holding any such First Adjourned Shareholders Meeting, the First Adjourned Shareholders Meeting may be further adjourned by the Chair to a date that is five Business Days later at the same time and place (such further adjourned meeting being, the "Second Adjourned Shareholders Meeting"). Subject to the Act, and without prejudice to Section 6.1, any GP Shareholders present at the Second Adjourned Shareholders Meeting shall constitute a quorum and the business specified in the original notice may be transacted by a vote of GP Shares represented at the adjourned meeting. |
| (iii) | A GP Shareholder is considered present or in attendance at a meeting of the GP Shareholders if the GP Shareholder participates in the meeting in person or by electronic means, telephone, or other communication facilities as permit all Persons participating in the meeting to hear or otherwise communicate with each other, and a GP Shareholder participating in such meeting by such means is deemed to be present at the meeting. A GP Shareholder is not considered present at a meeting where that GP Shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. |
| (f) | Votes. On any resolutions submitted to a meeting, each GP Shareholder entitled to vote shall be entitled to one vote per GP Share and resolutions shall be passed if approved by GP Shareholders holding not less than 56% of the issued and outstanding GP Shares, unless Specified Shareholder Approval is required as expressly contemplated in this Agreement. Votes at meetings of the GP Shareholders may be cast personally, and resolutions shall be passed by a show of hands or at the request of any GP Shareholder (whether before or after a vote by show of hands is taken), by ballot. |
| (g) | Attendance and appointment of a Proxy. A GP Shareholder may attend a meeting of the GP Shareholders either by its appointed representative attending the meeting in person, or it may be represented by a Person appointed by a written proxy, and the right to vote at a meeting of the GP Shareholders may be exercised in person or by proxy. A proxy, drafted in English, whether it be for a particular meeting of the GP Shareholders or for any meeting, shall be in any form approved by the General Partner. The proxy shall be signed by the Person making the appointment or by its attorney, who shall have been duly authorized in writing, or, if the Person making the appointment is a corporation, by a duly authorized senior executive or attorney thereof. Any individual who is a director, officer or member of senior management of the appointing GP Shareholder or one of its 100% Affiliates may be appointed as a proxy. A proxy signed by or on behalf of a GP Shareholder shall be deemed to be valid, unless it is contested at the time of its use or prior thereto. |
| -35- |
| (h) | Meeting Minutes. The Chair will cause minutes of all meetings of the GP Shareholders to be taken and a copy of the minutes of each meeting will be provided to each GP Shareholder promptly after each meeting. For greater certainty, the failure of the Chair to fulfill his or her obligations hereunder will not invalidate or otherwise affect the efficacy of any meeting, business conducted at any meeting or the resolutions passed at such meeting. Until the contrary is approved, every meeting in respect of which minutes have been made and subsequently approved by the GP Shareholders present at such meeting shall be deemed to have been duly held and convened and all proceedings referred to in the minutes shall be deemed to have been duly passed. |
| (i) | Written Approval in Lieu of Meeting. Any action, consent, decision or approval required to be made by the GP Shareholders may be taken, without prior notice thereof, by written consent or resolution in lieu of meeting, if signed by the requisite number of GP Shareholders that would have been entitled to vote on and approve such matter at a meeting of GP Shareholders shall be counted, and such action, consent, decision or approval, as applicable is as valid as if it had been passed at a meeting of the GP Shareholders. |
| (j) | Rules. To the extent that the rules and procedures for the conduct of a meeting of the GP Shareholders are not prescribed in this Agreement or the GP Articles, such rules and procedures shall be determined by the Chair. |
ARTICLE
7
SHARES AND DISPOSITION OF SHARES
| 7.1 | Authorized Share Capital |
The General Partner is authorized to issue an unlimited number of GP Shares. The issued and outstanding GP Shares as of the Effective Date are as set forth in Schedule A. Except in connection with: (a) the issuance of LP Units pursuant to a Cash Call issued in accordance with the current Funding Plan; (b) the provision of Emergency Funding pursuant to section 4.9 of the Partnership Agreement; (c) the conversion of LP Default Loans or Emergency Default Loans in accordance with section 4.9(m) of the Partnership Agreement; or (d) the admission of any Person as a new Limited Partner pursuant to the Partnership Agreement, the General Partner shall not issue new GP Shares unless approved by Specified Shareholder Approval.
| 7.2 | Termination of Shareholder |
| (a) | Upon a GP Shareholder ceasing to hold any LP Units (a "Terminating Event" and such GP Shareholder, a "Terminated Shareholder"): |
| -36- |
| (i) | the Terminated Shareholder's GP Shares shall be, and shall be deemed to be, immediately sold by the Terminated Shareholder to the Person acquiring its LP Units or to the General Partner for nominal consideration, and, if sold to the General Partner, cancelled; and |
| (ii) | the Terminated Shareholder shall have no rights or obligations hereunder in respect of any time following the Terminating Event (except pursuant to this Section 7.2 and Article 9). |
| (b) | If the Terminated Shareholder fails to complete the transaction of purchase and sale referred to in Section 7.2(a) within 10 Business Days of the applicable triggering event, then the General Partner may deposit a cheque in the amount of $1.00 payable to the Terminated Shareholder at the General Partner's solicitor's office. Upon making such deposit and giving the Terminated Shareholder notice thereof, the purchase of the Terminated Shareholder's GP Shares shall be deemed to have been fully completed and all right, title, benefit and interest, both at law and in equity, in and to such GP Shares shall be and be deemed to be transferred and assigned to and vested in the said purchaser or the General Partner, as the case may be (and, if transferred to the General Partner, cancelled). The Terminated Shareholder shall be entitled to receive the cheque so deposited in trust upon satisfying any unsatisfied obligations under this Agreement. |
| 7.3 | Restrictions on Transfers |
Except as otherwise permitted under this Agreement (including pursuant to Section 7.5, as required by Section 7.6 or as a result of a pledge pursuant to Section 7.12), no GP Shareholder shall Transfer any of its GP Shares without Specified Shareholder Approval. Any purported Transfer of GP Shares in violation of this Agreement is void. The General Partner shall only register or permit the registration of any Transfer of any GP Shares made in compliance with the provisions of this Agreement. A permitted Transferee of GP Shares shall automatically become bound and subject to this Agreement, without further act or formality.
| 7.4 | General Restrictions |
| (a) | Notwithstanding any other provision in this Agreement to the contrary but subject to Section 7.6, no GP Shareholder may Transfer any GP Shares: |
| (i) | if it is in default under this Agreement or the Partnership Agreement (except for an obligatory Transfer in accordance with section 12.2 of the Partnership Agreement or following a change of control pursuant to section 9.3 of the Partnership Agreement); |
| (ii) | (other than in respect of the grant of a Permitted Lien) without Transferring the same proportion of its (or procuring that its applicable 100% Affiliate Transfers the same proportion of its) JVCo Shares and any JVCo Loans in accordance with the JVCo SHA, and LP Units and any LP Loans in accordance with the Partnership Agreement, in each case to the same Person or one (but not more than one) 100% Affiliate of such Person in accordance with the JVCo SHA and the Partnership Agreement; |
| -37- |
| (iii) | if, as a result, the remaining GP Shareholders or the General Partner would become subject to any materially restrictive or onerous governmental controls or regulations to which they were not subject prior to the proposed Transfer by reason of the nationality or residence of the proposed Transferee; |
| (iv) | if the Transferee (or the 100% Affiliate of the Transferee who acquires the JVCo Shares and/or JVCo Loans) does not have the financial capacity to meet their respective funding obligations under this Agreement, the Partnership Agreement or the JVCo SHA; |
| (v) | if, as a result, the remaining GP Shareholders, the General Partner or any other member of the LP Group would become subject to any taxation or additional taxation to which they were not subject prior to the proposed Transfer, except with the consent of the remaining GP Shareholders, which consent shall not be unreasonably withheld; |
| (vi) | if the Transfer is not permitted by Applicable Law or any term of any agreement or instrument, non-compliance with which would have a material adverse impact on any member of the JV Group or the JV Business as a whole, unless all applicable required consents or approvals, including in respect of a Governmental Entity, are first obtained; |
| (vii) | if such Transfer is not exempt from any applicable requirement to file a prospectus, registration statement or similar document with applicable securities regulatory authorities to qualify the trade of such GP Shareholder's GP Shares; |
| (viii) | if any funds being used to purchase the GP Shares represent or will represent proceeds of crime for the purpose of Money Laundering and Terrorist Financing (Prevention) Act (SFS 2017:630), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or otherwise be in breach of Anti-Money Laundering Laws; |
| (ix) | if the Transferee is a Person identified in, designated in, listed in, or otherwise the subject of prohibited activities under Sanctions Laws; or |
| (x) | if the Transferee has not agreed in writing: (i) with the other GP Shareholders and the General Partner to assume and be bound by all the obligations of the Transferor pursuant to this Agreement with respect to the GP Shares transferred arising from and after the date of such Transfer and to be subject to all the restrictions to which the Transferor is subject under the terms of this Agreement; (ii) to assume and be bound by all the obligations and subject to the restrictions to which the Transferor is subject with respect to the LP Units and LP Loans transferred under the terms of the Partnership Agreement; and (iii) (or has not procured that its 100% Affiliate has agreed in writing) to assume and be bound by all the obligations and subject to the restrictions to which the Transferor is subject with respect to the JVCo Shares and JVCo Loans transferred under the terms of the JVCo SHA. |
| -38- |
| (b) | Any Transfer of GP Shares pursuant to this Agreement shall be carried out in accordance with the following: |
| (i) | each new GP Shareholder shall be deemed to make the representations and warranties in Section 11.1; |
| (ii) | a copy of the document(s) or instrument(s) effecting the Transfer shall be delivered to the General Partner and the other GP Shareholders; |
| (iii) | the Transferee shall execute and deliver such documents and instruments as may be reasonably required by the General Partner to ensure that the Transferee assumes and is bound by all of the obligations and liabilities of the Transferor in relation to the General Partner and the Partnership which the Transferor incurred pursuant to this Agreement or the GP Articles; and |
| (iv) | the General Partner shall be entitled to be reimbursed by the Transferor for the reasonable and documented administrative out-of-pocket costs and expenses incurred by it to effect a Transfer with respect to any or all of such Transferor's GP Shares or LP Loans. |
| 7.5 | Permitted Transfers to 100% Affiliates |
Notwithstanding Section 7.3, but subject to Section 7.4, a GP Shareholder will be, without requiring Specified Shareholder Approval, entitled to Transfer to one of its 100% Affiliates legal title to, and beneficial ownership of, all (but not less than all) of its GP Shares, LP Units, and LP Loans, provided that:
| (a) | the Transferor first establishes to the satisfaction of the other GP Shareholders, acting reasonably, that the Person to which it is Transferring its GP Shares is its 100% Affiliate; |
| (b) | a copy of the document(s) or instrument(s) effecting the Transfer is delivered to the General Partner; and |
| (c) | the other GP Shareholder has received prior written notice of such Transfer. |
| 7.6 | Required Transfers; Share Issuances and Adjustments |
| (a) | If a GP Shareholder Transfers all or any of its LP Units, or it or its 100% Affiliate Transfers all or any of its JVCo Shares (in each case, other than the granting of a Permitted Lien or a Transfer to an 100% Affiliate each in accordance with the Partnership Agreement and JVCo SHA) as permitted under the Partnership Agreement and/or the JVCo SHA, such GP Shareholder must Transfer the same proportion of its GP Shares to such Transferee (or to one but not more than one 100% Affiliate of such Transferee) concurrently with, and in the same transaction as, the Transfer of the LP Units and the JVCo Shares. Provided that Volvo Canada is a Holding Company, Volvo Canada shall not be in breach of this provision if Volvo Sweden has Transferred an equivalent proportion of its shares in Volvo Canada to the Transferee. |
| -39- |
| (b) | If a GP Shareholder Transfers all or any of its GP Shares (other than a Transfer to an 100% Affiliate permitted by Section 7.5 or entering into a Permitted Lien pursuant to Section 7.12) the GP Shareholder must (or must procure that its 100% Affiliate must) Transfer the same proportion of its LP Units, LP Loans, JVCo Shares and JVCo Loans to such Transferee (or to one but not more than one 100% Affiliate of such Transferee) concurrently with, and in the same transaction as, the Transfer of the GP Shares. Provided that Volvo Canada remains the holder of LP Units and GP Shares, Volvo Canada shall not be in breach of this provision if Volvo Sweden has Transferred an equivalent proportion of its shares in Volvo Canada to the Transferee. |
| (c) | Except as otherwise agreed with Specified Shareholder Approval, any Person (including any GP Shareholder) who or which intends to purchase or subscribe for (i) GP Shares, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for LP Units, on a pro rata basis, such that such Person's GP Interest is at all times equivalent to such Person's LP Interest; (ii) LP Units, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for GP Shares, on a pro rata basis, such that such Person's GP Interest is at all times equivalent to such Person's LP Interest; and (iii) either GP Shares or LP Units, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for JVCo Shares, on a pro rata basis, such that such Person's GP Interest and corresponding LP Interest is at all times equivalent to such Person's JVCo Interest. |
| (d) | In the event there is a Transfer of GP Shares between the GP Shareholders at the same time as the Transfer of LP Units and LP Loans pursuant to the Partnership Agreement and a Transfer of JVCo Shares and JVCo Loans pursuant to the JVCo SHA (including as a result of a change of a GP Shareholder's GP Interest or LP Interest as contemplated in Section 7.6(c)), the allocation of the price received in respect of such Transfers as between each such Transfer shall be as determined in accordance with the FMV Procedure and Methodology or as otherwise mutually determined by the GP Shareholders. |
| 7.7 | Share Certificates |
Any applicable share certificates representing the GP Shares shall bear the following legend endorsed thereon in bold type (in addition to any legend required by Applicable Laws):
The shares represented by this certificate are subject to a shareholder agreement between the General Partner and its shareholders, as may be amended from time to time. Such shares may not be pledged, sold or otherwise transferred except in accordance with the terms of such agreement. Any transfer made in contravention of such restrictions is null and void. A copy of such agreement is on file at the registered office of the General Partner and available to Shareholders for inspection on request and without charge.
| 7.8 | Lost Share Certificates |
| -40- |
Where a Person claims that a share certificate representing a GP Share recorded in the name of a GP Shareholder has been defaced, lost, destroyed or wrongly taken, the General Partner will cause a GP Share certificate to be issued in substitution for such share certificate if such Person complies with any requirements set out in the GP Articles, and files with the General Partner an agreement in a form satisfactory to the General Partner indemnifying and holding harmless the General Partner and the GP Shareholders from any costs, damages, liabilities or expenses suffered or incurred as a result of or arising out of issuing such new GP Share certificate and satisfies such other reasonable requirements as are imposed by the General Partner.
| 7.9 | Liability on Transfer |
Each Transferor will continue to remain liable for any breaches by it that occurred or arose prior to the date of Transfer. Notwithstanding that a Transferor may Transfer all of its GP Shares, it shall continue to be bound by those provisions of this Agreement which, by their nature or express terms, survive any such Transfer, including any obligation of confidentiality set out in Article 9.
| 7.10 | Power of Attorney |
In connection with any Transfer of any GP Shares permitted pursuant to this Agreement, each GP Shareholder hereby irrevocably nominates, constitutes and appoints the General Partner as its true and lawful attorney and agent for, in the name of and on behalf of the applicable GP Shareholder to execute and deliver all such administrative filings as may be necessary to effectively transfer and assign the GP Shares being sold. Such appointment and power of attorney, being coupled with an interest, shall not be revoked by the dissolution, winding up, bankruptcy or insolvency of such GP Shareholder and each Party hereby ratifies, confirms and agrees to ratify and confirm all that the General Partner may lawfully do or cause to be done by virtue of such power of attorney.
| 7.11 | Securities Law Matters |
| (a) | Each GP Shareholder acknowledges and agrees that the issue and delivery to it of its respective GP Shares are conditional upon such sale being exempt from any requirement to file a prospectus or registration statement and the requirement to deliver any offering memorandum (or similar document) under all applicable securities legislation, rules, regulations and policies. |
| (b) | Each GP Shareholder shall, and shall ensure that its Affiliates, comply with all Applicable Laws related to insider dealing in respect of any material facts of which it becomes aware by virtue of its interest in the General Partner, any other member of the JV Group or any potential merger and acquisition process contemplated in respect of another GP Shareholder (or its Affiliates). |
| 7.12 | Financing and Pledge of Shares |
Each GP Shareholder shall be permitted to pledge its GP Shares as security to a Third Party lender in connection with any Third Party financing, provided that:
| -41- |
| (a) | such Third Party lender is either: (i) a bank, financial institution, trust, fund or investment fund, in each case with a rating for its long-term unsecured and non-credit enhanced debt obligations of BBB or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd., or Baa2 or higher by Moody's Investors Services, or a comparable rating from an internationally recognized credit rating agency or affiliate which is a designated rating organisation pursuant to Canadian securities laws or a registered or certified credit rating agency in accordance with EC Regulation 1060/2009; (ii) a government entity in Canada, the United States of America, the United Kingdom or Europe; or (iii) an entity approved by the other GP Shareholder in writing, which consent shall not be unreasonably withheld where the Party proposing to pledge its GP Shares provides to the other GP Shareholder written evidence that the proposed Third Party lender has equivalent credit worthiness to any lender falling within limbs (i) or (ii), provided that no Party shall be permitted to pledge its GP Shares or interests to an entity that is identified in, designated in, listed in or otherwise the subject of prohibited activities under Sanctions Law; and |
| (b) | if there is any enforcement of security related to such pledge of securities (including any sale to Third Party following such enforcement), and if a Limited Partner elects to exercise its right of first refusal pursuant to the Partnership Agreement, then the continuing GP Shareholder shall be entitled to buy the relevant GP Shares [Redacted – commercially sensitive information]. |
ARTICLE
8
FUNDING
| 8.1 | Additional Funding Requirements |
In the event the GP Shareholders, Limited Partners or the General Partner require Third Party funding to meet remaining projected funding requirements for the JV Business, including the Partnership entering into or intending to enter into a product development agreement, such funding may be sourced by way of debt, on terms satisfactory to the GP Board and subject to Specified Board Approval, which approval will not be unreasonably withheld.
ARTICLE
9
CONFIDENTIALITY
| 9.1 | Confidential Information |
| (a) | In this Agreement "Confidential Information" means all records, material and information (and any copies) thereof pertaining to or concerning: (i) the JV Business, the JV Group, including all budgets, forecasts, analyses, financial results, costs, processes, data, technology, Intellectual Property, drawings, blueprints, margins, wages and salaries, and other business activities, and all other information not generally known outside the JV Group; (ii) the contents of this Agreement and the other JV Agreements and any information obtained during negotiations relating to the JV Agreements or as a result of entering into or performing the JV Agreements; and (iii) any GP Shareholder or any of its Affiliates, in each case regardless of whether such information is in oral, visual, electronic, written or other form and whether or not it is identified as "confidential", and includes all notes, analyses, summaries or other documents or information (whether paper, electronic or other format) that contain, reflect, summarize, analyze, discuss or review any other Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information insofar as it is in the public domain, provided that specific items of information will not be considered to be in the public domain only because more general information is in the public domain. For this purpose, information is in the public domain if it: (i) is or becomes publicly available through no act or omission of a Party or any of its Affiliates, or its or their Representatives, in breach of this Section 9.1; (ii) (other than the contents this Agreement and the other JV Agreements) is already in possession of the Party to which it was disclosed or any of its Affiliates, without prior restriction on disclosure; (iii) is subsequently obtained lawfully by a Party or its Affiliate from a Third Party which that Person does not reasonably believe is obligated to maintain that information confidential; or (iv) (other than the contents this Agreement and the other JV Agreements) is independently developed by a Party or its Affiliate without reference to the information required to be kept confidential hereunder. |
| -42- |
| (b) | Each Party acknowledges that all Confidential Information obtained by or on behalf of a Party or any Representative or (in respect of a GP Shareholder) any Affiliate thereof is and shall remain the exclusive property of the disclosing party, as applicable. Each Party shall, and each GP Shareholder shall cause its Affiliates and Representatives to: (i) keep the Confidential Information in strictest confidence; and (in the case of the GP Shareholders) (ii) use the Confidential Information solely in respect of its investment in the JV Group, and the operation of the General Partner and the JV Business and not directly or indirectly for any other purpose, without the express prior written consent of the other Parties. In complying with the foregoing, each Party shall use (and shall ensure that its Representatives and, in respect of a GP Shareholder, its Affiliates use) the same degree of care as would be used by a normally prudent Person in protecting its own proprietary and confidential information. |
| (c) | Notwithstanding Section 9.1(b), a Party (or its Affiliate) may disclose Confidential Information: |
| (i) | as required by Applicable Laws or pursuant to policies or regulations of any stock exchange on which any of the securities of such Party or any of its Affiliates are listed or by any securities commission or other regulatory authority having jurisdiction over such Party or any of its Affiliates, and only for the purposes of such disclosure, after such Party has made a reasonable attempt to prevent and limit such disclosure and after notification to the other Parties (where permitted), in which event such Party or Affiliate thereof shall request confidentiality in respect of such disclosure and shall use all reasonable commercial efforts to cooperate with the Party to prevent or limit such disclosure; |
| (ii) | to its Affiliates and Representatives that have a reasonable need to know the Confidential Information, provided that: (A) such Party shall be required to ensure that each such Affiliate and Representative maintain the confidentiality of the disclosed information in accordance with this Section 9.1; (B) each such Representative has accepted that obligation; and (C) such Party shall be responsible for any subsequent disclosures of such Confidential Information by its Affiliates or Representatives on the same basis as if such disclosures were made directly by such Party; |
| -43- |
| (iii) | to a Person that is a bona fide prospective Transferee of any of that GP Shareholder's LP Units and GP Shares or to a Person with which it is conducting bona fide negotiations directed towards a merger, amalgamation or sale of shares representing a majority ownership interest of that GP Shareholder or any of its Affiliates, provided that: (A) such GP Shareholder shall be required to ensure that each such prospective Transferee enters into a confidentiality agreement on terms that are materially the same as the requirements in this Section 9.1; (B) the prospective Transferee has accepted that obligation; and (C) such GP Shareholder shall be responsible for any subsequent disclosures of such Confidential Information by the prospective Transferee on the same basis as if such disclosures were made directly by such GP Shareholder; |
| (iv) | to the extent reasonably appropriate for the applicable purpose, to its lenders, insurers, legal counsel, auditors, underwriters, financial and other professional advisors and credit rating agencies, provided that: (A) such Party shall be required to ensure that each such advisor or agency enter into a confidentiality agreement on terms that are materially the same as the requirements in this Section 9.1; (B) each such advisor or agency has accepted that obligation; and (C) such Party shall be responsible for any subsequent disclosures of such Confidential Information by its advisors or agencies on the same basis as if such disclosures were made directly by such Party; |
| (v) | to the extent permitted by this Agreement or any other agreements between the Parties or their Affiliates in connection with the JV Business; or |
| (vi) | to the extent required by any legal or administrative proceedings or because of any Order of a court or any regulatory authority binding on it, provided that it will promptly notify the other Parties of any such anticipated disclosure to allow it to seek a protective Order and that it will request any confidentiality protection permitted thereunder. |
| (d) | Each Party is responsible for any failure by its Representatives or any other Person to whom it discloses Confidential Information (other than Persons who receive Confidential Information under Section 9.1(c)(i) or Section 9.1(c)(vi)) to maintain the confidentiality of any Confidential Information. Without limitation and in addition to any rights a Party may have against another Party arising by reason of any breach of the obligations under this Section 9.1, each Party shall be liable to and indemnify and hold harmless each other Party and its Affiliates for any losses, costs (including solicitor and his own client costs), damages, and expenses whatsoever which they may suffer, sustain, pay or incur resulting from disclosure or use by such Party or other Persons to whom such Party disclosed Confidential Information (other than Persons who receive Confidential Information under Section 9.1(c)(i) or Section 9.1(c)(vi)), of all or any part of the Confidential Information in breach of this Agreement. |
| 9.2 | Restricted Information |
| -44- |
| (a) | Notwithstanding anything to the contrary in this Article 9 or elsewhere in this Agreement, the GP Shareholders acknowledge and agree that as GP Shareholders, or in the conduct of their appointed Directors to the GP Board, they may be exposed to certain confidential information of the JV Group, the other GP Shareholder or customers, suppliers or other Persons with a relationship to the JV Group that constitutes "competitively sensitive information" (collectively, "Restricted Information") and that Volvo Sweden, Volvo Canada or their Affiliates may be a competitor of such customers, or other Persons with respect to the truck industry and off-road applications in which the HPDI Systems will be supplied and used. For clarity, Restricted Information comprises any information that may allow Volvo Sweden, Volvo Canada or their Affiliates to better predict the commercial behaviour of its actual or potential competitors and may include the current or future pricing terms, pricing, sales or marketing plans, customer or supplier contract terms. |
| (b) | In order to adequately protect the Restricted Information, comply with Anti-Trust Laws and provide reasonable assurances to potential customers of the Partnership that such Restricted Information will not be used in a manner that is adverse to their interests, the GP Shareholders shall use their rights as shareholders and under this Agreement to procure that the General Partner implements: |
| (i) | appropriate clean team arrangements and other technical precautions (e.g., separate password-protected access or anonymization and encryption of data, firewalls, allocation of administrator rights and corresponding IT authorization concepts, electronic separation by means of "ethical walls", etc.); |
| (ii) | contractual provisions (confidentiality obligations); and |
| (iii) | organizational measures, |
governing the sharing and use of Restricted Information to ensure that the GP Shareholders and each of their Affiliates, and their respective directors, officers and employees, do not obtain access to Restricted Information or have responsibility for day-to-day operational decision-making or responsibility on pricing, marketing or sales within competitive business units. The GP Shareholders shall only make use of their information and reporting rights provided in accordance with Applicable Law, this Agreement and the GP Articles to the extent such use is consistent with Anti-Trust Laws, in particular with regard to the exchange of competitively sensitive information.
| (c) | Without prejudice to Section 9.2(b), the GP Shareholders agree to put in place sufficient safeguards to avoid any disclosure of Restricted Information between the GP Shareholders and customers of the JV Group via the JV Group, unless to the extent necessary for and proportionate to the proper functioning of the JV Group. The GP Shareholders shall identify these safeguards in an information barrier protocol to be agreed prior to, and put into effect, promptly following the Effective Date. |
| 9.3 | Survival |
The provisions of this Article 9 shall continue to apply to any GP Shareholder that Transfers its GP Shares and ceases to be a GP Shareholder hereunder for five years from the date such GP Shareholder Transfers its GP Shares, or for 12 months from the date of termination of this Agreement pursuant to Section 10.3, whichever is the sooner, provided in each case that the provisions of this Article 9 relating to Restricted Information shall survive indefinitely.
| -45- |
ARTICLE
10
TERMINATION AND SURVIVAL
| 10.1 | Termination Events |
| (a) | This Agreement shall be terminated upon: |
| (i) | the date on which one Person acquires all of the issued and outstanding GP Shares in compliance with this Agreement; |
| (ii) | the date that the General Partner ceases to be the general partner of the Partnership and has fulfilled all of its obligations under the Partnership Agreement, and the completion of the wind-up and dissolution of the General Partner as contemplated in Section 10.2; or |
| (iii) | the passing of a Specified Shareholder Approval and the completion of the wind-up and dissolution of the General Partner, each as contemplated in Section 10.2. |
| (b) | Notwithstanding Section 10.1(a), each Party is responsible for paying all amounts owing by it under this Agreement prior to the date of termination, including any amounts owing for GP Shares purchased under this Agreement. |
| 10.2 | Winding Up and Dissolution |
| (a) | Unless otherwise agreed by the GP Shareholders, upon the passing of a Specified Shareholder Approval to wind up the General Partner, the GP Board shall exercise their powers for the purpose of winding up the JV Business, liquidating the General Partner's and the Partnership's assets in an orderly manner (and as further required by section 13.3 of the Partnership Agreement), paying the debts, liabilities and expenses of the General Partner and the Partnership and distributing to the GP Shareholders, in proportion to their GP Interest in the General Partner, any property of the General Partner remaining after repayment of the General Partner's debts, liabilities and expenses. The General Partner shall not engage in any new business during the period of such winding up and dissolution. The GP Shareholders shall be entitled to appoint a controller in respect of the General Partner to effect the foregoing. |
| (b) | Each GP Shareholder shall be entitled to make copies of all applicable information owned by the General Partner hereunder before the effective date of dissolution not previously furnished to it, provided that the provisions of Article 9 shall apply to such information. |
| (c) | No winding up, liquidation or dissolution of the General Partner or of the JV Business shall relieve a GP Shareholder from any obligation accruing or accrued to the date of such winding up, liquidation or dissolution. |
| -46- |
| 10.3 | Survival |
Notwithstanding the termination of this Agreement in accordance with Section 10.1, Article 9 shall remain in full force and effect, pursuant to the terms hereof and for a period of 12 months thereafter, excluding any Restricted Information, in which case the confidentiality obligations shall survive indefinitely. The obligations of the GP Shareholders and the General Partner under Article 12, and Article 14, and Sections 4.3, 5.13 and 10.2 shall survive indefinitely the expiration or earlier termination of this Agreement. All defined terms used in any provision surviving after the termination of this Agreement shall survive until the provision in which such defined term is used expires in accordance with its terms.
ARTICLE
11
REPRESENTATIONS AND WARRANTIES
| 11.1 | Representations and Warranties of the Parties |
Each Party hereby represents and warrants as follows, and acknowledges and confirms that the other Parties are relying on such representations and warranties in entering into this Agreement:
| (a) | Qualification. It is a corporation, or other legal entity, duly incorporated or formed and existing under the laws of its jurisdiction of incorporation or formation and has the corporate or other power to enter into and perform its obligations under this Agreement. It has all governmental and regulatory licences, registration and approvals required by Applicable Law as may be necessary to perform its obligations under this Agreement (and with respect to the GP Shareholders, to own the GP Shares). |
| (b) | Authorization. The execution and delivery of and performance by it of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or other action on the part of the Party. |
| (c) | Validity of Agreement. The execution and delivery of and performance by the Party of this Agreement: |
| (i) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a breach or violation of or a conflict with, or allow any other Person to exercise any rights under, any of the terms or provisions of its articles, by-laws or other constating documents or governing agreements; |
| (ii) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a material breach or violation of or a conflict with, or allow any other Person to exercise any rights under any material Contracts or instruments to which the Party is a party or pursuant to which any of the Party's assets may be affected; and will not result in the violation of any Applicable Law. |
| (d) | Execution and Binding Obligation. This Agreement has been duly executed and delivered by the Party and constitutes a legal, valid and binding agreement of each Party enforceable against it in accordance with its terms, subject only to any limitation under Applicable Law relating to: (i) bankruptcy, winding-up, insolvency, arrangement and other laws of general application affecting the enforcement of creditors' rights; and (ii) the discretion that a court may exercise in the granting of equitable remedies. |
| -47- |
| (e) | No Proceedings. There are no actions, suits or proceedings pending or, to its knowledge, threatened against or affecting it or any of its properties before or by any Governmental Entity, and no existing default by it under any applicable Order, in each case that is reasonably expected to have a material adverse effect on its financial condition or results of operations. |
| (f) | Accredited Investor. With respective to the GP Shareholders, each is an "accredited investor" as defined in National Instrument 45-106 Prospectus Exempt Distributions of the Canadian Securities Administrators. |
| 11.2 | Survival |
The representations and warranties of the Parties contained in this Article 11 survive the execution and delivery of this Agreement.
ARTICLE
12
DISPUTE RESOLUTION AND DEADLOCK
| 12.1 | Dispute Resolution and Deadlocks |
In the event the Parties or the GP Board, as applicable, have a Dispute, including being unable to reach specified approval for a matter as set out in Sections 4.6 and 6.1, as applicable, the Dispute shall be resolved in accordance with Schedule B.
| 12.2 | Injunctive Relief |
Notwithstanding Section 12.1, a Party may apply to the courts of British Columbia for interim or conservatory measures in respect of the matters in Dispute, including immediate injunctive relief or similar equitable relief. The Parties agree that seeking and obtaining such interim or conservatory measures shall not waive the right to Arbitration set out in Schedule B. The Parties further agree that the provisions of this Section 12.2 shall not be deemed to preclude an arbitrator from awarding similar or other interim relief or issuing interim arbitration awards.
| 12.3 | Performance to Continue |
The Parties agree that during the resolution of a Dispute, the Parties shall continue to perform their obligations under this Agreement, provided that such performance shall be without prejudice to the rights and remedies of the Parties and shall not be read or construed as a waiver of a Party's right to claim for recovery of any loss, costs, expenses or damages suffered as a result of the continued performance of this Agreement.
ARTICLE
13
NOTICES
| 13.1 | Addresses for Service |
The addresses for service and email addresses of the Parties shall be as follows:
[Redacted – personal information]
| -48- |
| 13.2 | Change of Address |
A Party may, from time to time, change its address for service hereunder by notice to the other Parties given in accordance with Section 13.3.
| 13.3 | Notices |
Any notice or other communication provided for in this Agreement or any other notice which a Party may desire to give to another Party, shall be in writing and shall be delivered by:
| (a) | personal hand delivery to the addressee or to an officer of the addressee, or in the absence of an officer, to some other responsible employee of such addressee and shall be deemed to have been given and received on the date of such delivery or, if so delivered on a day that is not a Business Day, then the next Business Day; |
| (b) | registered mail, in a properly addressed envelope addressed to the Party to whom the notice is to be given at its address for service and shall be deemed to have been given and received on the date it is signed for evidencing proof of receipt by the addressee or such other person designated as having the responsibility to sign for registered mail; or |
| (c) | electronic mail (where the addressee has provided an email address with the address for service), addressed to the Party to whom notice is to be given at its address for service and shall be deemed to have been given and received on the same day as the date of sending or, if so delivered on a day that is not a Business Day, then the next Business Day. |
ARTICLE
14
MISCELLANEOUS
| 14.1 | Press Release |
| (a) | Neither Westport Canada nor Volvo Canada, nor any of their respective Affiliates, shall make any press release or response to a press or other inquiry for information, on behalf of themselves or the Partnership, that relates to this Agreement, the Partnership, or the JV Business, unless the other Parties have consented in writing to the final version of such press release or response to a press or other inquiry for information. Notwithstanding the foregoing and for greater certainty, the Parties acknowledge and agree that the General Partner and the Partnership shall be permitted to issue press releases in the ordinary course of business without the prior consent of either Westport Canada or Volvo Canada, provided that the Partnership and the General Partner shall have provided reasonable notice of such release to Westport Canada and Volvo Canada prior to its issuance. |
| (b) | Subject to Section 9.1 and Section 14.1(a), if a Party or its Affiliate wishes to make any press release or response to press and other inquiries for information that, in either such case, relates to this Agreement, the Partnership, or the JV Business, then it shall provide the other Parties with a draft thereof in sufficient time prior to the release thereof so that the other Parties may review the proposed press release or inquiry response to be released and advise the Party that proposes to make such release of any comments that such other Parties may have in respect thereto. |
| -49- |
| (c) | The foregoing shall not apply when the release or disclosure of any information that relates to this Agreement, the Partnership, or the JV Business is required by Applicable Law or by any stock exchange on which any of the securities of a Party or any of its Affiliates are listed or by any securities commission or other regulatory authority having jurisdiction over such Party or any of its Affiliates, provided that, in each such case, except where prohibited under Applicable Law, the Party who or whose Affiliate is required to make such disclosure shall provide the other Parties with details of the nature and substance of such release or disclosure as soon as practicable. Furthermore, the obligations in this Section 14.1 shall not apply to general disclosures or releases of information that a Party or its Affiliate may make from time to time relating to its business or property. Notwithstanding anything to the contrary contained in this Section 14.1, the General Partner shall not make any press release or response to press and other inquiries for information that, in either such case, relates to this Agreement, the Partnership, or the JV Business except if approved by the GP Board or required by Applicable Law. |
| (d) | The Parties acknowledge that this Agreement will constitute a material agreement of Westport Canada and shall be required to be filed with the Canadian Securities Administrators and made publicly available via SEDAR and with the Securities and Exchange Commission via the Electronic Data Gathering, Analysis, and Retrieval system (EDGAR). |
| 14.2 | Amendment |
| (a) | This Agreement may be amended only: |
| (i) | in writing pursuant to an amendment agreement executed by all GP Shareholders and the General Partner; or |
| (ii) | by the General Partner unilaterally, to make changes to Schedule A to reflect any issuances or Transfers of GP Shares made in accordance with this Agreement. |
| (b) | Any amendment to this Agreement will be provided to all GP Shareholders within 20 Business Days from the effective date of such amendment. |
| (c) | The General Partner will from time-to-time update Schedule A to reflect additional GP Shareholders as of the Effective Date, or Persons who, in accordance with the provisions of this Agreement, after the date hereof, become GP Shareholders. |
| (d) | The Parties shall cause the Partnership Agreement and/or the JVCo SHA to be amended to align with any permitted or other approved amendments to this Agreement where the amendments to this Agreement address the same or similar concepts contained in the Partnership Agreement and/or the JVCo SHA. Similarly, the Parties shall amend this Agreement in order to align with any amendments made to the Partnership Agreement and/or JVCo SHA where the amendments to the Partnership Agreement and/or JVCo SHA address the same or similar concepts contained in this Agreement. |
| -50- |
| 14.3 | Agreement to be Bound |
Each Person who becomes a GP Shareholder must concurrently with becoming a GP Shareholder execute and deliver to the General Partner a counterpart copy of this Agreement or a written agreement in form and substance satisfactory to the Parties, agreeing to be bound by this Agreement, including making the representations and warranties contained in Article 11.
| 14.4 | Conflict with Articles |
In the event of any inconsistency between this Agreement and the GP Articles, this Agreement shall govern to the extent of the inconsistency and, at the request of any Party, the Parties shall forthwith make all changes to the GP Articles as are necessary and lawful to render them not inconsistent with this Agreement.
| 14.5 | Entire Agreement |
| (a) | This Agreement, together with the Project Agreements, constitute the entire agreement between the Parties and their Affiliates with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, including the confidentiality agreement entered into between Westport Inc and Volvo Sweden on 18 October 2022 and the Term Sheet dated 18 July 2023 entered into by Westport Inc and Volvo Sweden. There are no conditions, representations, warranties or other agreements between the Parties with respect to the subject matter hereof, whether oral or written, express or implied, statutory or otherwise, except as specifically set out in this Agreement or the other JV Agreements. |
| (b) | In the event of any actual, irreconcilable conflict that cannot be resolved between the provisions of this Agreement, on one hand, and any provisions in the Partnership Agreement, on the other hand, then such provisions contained in this Agreement shall prevail and the provisions of the Partnership Agreement will be deemed amended, only to the extent necessary to eliminate such irreconcilable conflict. |
| 14.6 | Strict Performance of Covenants |
The failure of any Party to seek redress for a violation, or to insist upon strict performance of any provision hereof, shall not prevent a subsequent act, which would have originally constituted a violation of such provision or any provision hereof, from having the effect of an original violation of such provision or any other provision hereof.
| 14.7 | Waiver |
A waiver of any default, breach or non-compliance under this Agreement is not effective unless it is in writing and signed by the Party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a Party in respect of any default, breach or non-compliance or by anything done or omitted to be done by that Party. The waiver by a Party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that Party's rights under this Agreement in respect of any continuing or subsequent default, breach or non-compliance, whether of the same or any other nature.
| -51- |
| 14.8 | No Liability for Consequential Damage or Loss of Profit |
Each Party acknowledges that contractual damages and other remedies will be available to the other Parties with respect to any breach of any provision of this Agreement. The Parties hereby agree that no Party shall be liable (whether in contract or in tort or under common law, including negligence, or otherwise howsoever and notwithstanding the provisions of any legislation in Canada) to any other Party for any indirect or consequential losses, including indirect or consequential losses which are loss of profit or revenue, loss of use, decline in earnings, decline in production, loss of contract or other business opportunity, loss of goodwill, or for any punitive, exemplary or special damages (including resulting from any breach of this Agreement and whether or not advised of any of the foregoing) which may be suffered by such other Party in connection with this Agreement; provided that, (a) this Section 14.8 shall not apply to claims relating to a breach of Article 9; and (b) this Section 14.8 shall not preclude a Party from entitlement to indemnification for such Party as a consequence of its liability to a Third Party for indirect, consequential, punitive, exemplary or special damages which such Third Party is entitled to recover from the relevant Party.
| 14.9 | Severability |
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
| 14.10 | Effective Time |
This Agreement is deemed effective as of the Effective Date.
| 14.11 | Time of Essence |
Time shall be of the essence of this Agreement in all respects.
| 14.12 | Further Assurances |
Each Party shall promptly do, execute and deliver or cause to be done, executed and delivered all further acts, documents and things in connection with this Agreement that any other Party may reasonably require for the purpose of giving effect to this Agreement.
| 14.13 | Successors |
This Agreement shall enure to the benefit of and be binding on the Parties and their respective successors and permitted assigns.
| 14.14 | Assignment |
No Party may assign, whether absolutely, by way of security or otherwise, all or any part of its rights or obligations under this Agreement without the prior consent of all of the other Parties or in accordance with this Agreement, except where such assignment is being made together with the Transfer of its GP Shares in accordance with this Agreement.
| 14.15 | Subdivision, Consolidation, etc. of GP Shares |
| -52- |
The provisions of this Agreement shall apply mutatis mutandis to any securities into which the GP Shares or any of the GP Shares may be converted or changed, to any securities of the General Partner resulting from a reclassification, subdivision or consolidation of any GP Shares, to any securities of the General Partner which are received by the GP Shareholders as a distribution or as a result of a split, consolidation, issuance, recapitalization or reclassification, and to any securities of the General Partner or of any successor body corporate which may be received by the GP Shareholders on an amalgamation, reorganization, merger or combination of the General Partner.
| 14.16 | Remedies |
The Parties acknowledge and agree that all restrictions contained in this Agreement are reasonable and valid and that all defences to the strict enforcement of such restrictions are hereby waived, and that the rights, privileges, restrictions and conditions set forth in this Agreement are special and unique such that a breach of any such rights, privileges, restrictions or conditions may not be adequately compensated for by an award of damages. Accordingly, any Party shall be entitled to temporary and permanent injunctive relief and to an order for specific performance against every other Party that is in breach of this Agreement. Any remedy this Agreement sets forth or contemplates shall be in addition to and not in substitution for or dependent upon any other remedy.
| 14.17 | Withholding |
All payments that the General Partner is required to make under this Agreement to a GP Shareholder shall be subject to withholding of Taxes and other amounts as required by Applicable Law or regulation. In lieu of withholding such Taxes and other amounts, in whole or in part, the General Partner may, in its sole discretion, accept other provision for payment of Taxes and other amounts as required by law, provided it is satisfied that all requirements of law affecting its responsibilities to withhold such Taxes and other amounts have been satisfied.
| 14.18 | Expenses |
Unless otherwise agreed by Specified Shareholder Approval, each Party will pay its own legal and other costs and expenses incurred in connection with the negotiation and finalization of this Agreement.
| 14.19 | Currency |
For the purpose of converting amounts specified in one currency into another currency where required, the rate of exchange to be used shall be the rate published by the European Central Bank as at the close of business on the Business Day immediately prior to the date of conversion.
| 14.20 | Counterparts |
This Agreement may be executed by PDF and in two or more counterparts, including by electronic signature, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
[signature page follows.]
| -53- |
IN WITNESS WHEREOF the Parties have executed this Agreement on the Effective Date.
|
1463861 B.C. LTD.
| ||
| Per: | ||
|
Name: [Redacted – personal information]
| ||
| Per: | ||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
|
WESTPORT FUEL SYSTEMS CANADA INC.
| ||
| Per: | ||
|
Name: [Redacted – personal information]
| ||
|
Per: |
||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
|
Volvo HPDI HOLDING INC.
| ||
| Per: | ||
|
Name: [Redacted – personal information]
| ||
| Per: | ||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
[Signature page to GP USA]
SCHEDULE
A
SHAREHOLDER CAPITAL
| Name of GP Shareholder | Number and Class of GP Shares |
Westport Fuel Systems Canada Inc.
|
550 Common Shares |
|
Volvo HPDI Holding Inc. Toronto ON M5K 0A1
|
450 Common Shares |
| A-1 |
SCHEDULE
B
DISPUTE RESOLUTION aND DEADLOCK
| 1.1 | If a Dispute arises between any of the Parties to this Agreement or the GP Articles, then upon written notice of a Dispute by any of the Parties to the other Party(ies) involved in the Dispute ("Initial Dispute Notice"): |
| (a) | Escalation to Senior Representatives. If the GP Shareholders are unable to resolve the Dispute within 20 Business Days of receipt of the Initial Dispute Notice, the Dispute (together with any dispute under the Partnership Agreement related to the same or substantially similar subject matter ("Partnership Dispute"), and/or any dispute under the JVCo SHA or the JVCo Articles related to the same or substantially similar subject matter ("JVCo Dispute")) shall be referred to the chief executive officer of Westport Inc. and an executive vice president nominated by Volvo Canada ("Senior Representatives") by notice in writing (a "SR Escalation Notice"). The Dispute must first be submitted to the Senior Representatives in accordance with Appendix 1 to this Schedule B prior to exercising any of the other dispute resolution procedures set out in this Schedule B. |
| (b) | Additional Dispute Notice. Following escalation to the Senior Representatives in accordance with paragraph (a) and Appendix 1 to this Schedule B, if there remains an Outstanding Dispute (as such term is defined in paragraph 1.1(d)(iii)(B) of Appendix 1 to this Schedule B), then upon written notice from any of the Parties to the other Party(ies) involved in the Outstanding Dispute ("Additional Dispute Notice"), the Outstanding Dispute shall be resolved by the Tax Expert in accordance with paragraph 1.1(c) or Arbitration in accordance with paragraph 1.1(d). The Parties agree that any limitation period imposed by this Agreement or by Applicable Law in respect of a Dispute to which this Schedule B applies shall be tolled from the date of receipt of the Initial Dispute Notice until the issuance of the Additional Dispute Notice. |
| (c) | Tax Disputes. If the Outstanding Dispute is a Tax Dispute, the Outstanding Dispute will be referred to the Tax Expert for determination in accordance with Appendix 2 to this Schedule B. |
| (d) | Arbitration. Any Outstanding Dispute in relation to which an Additional Dispute Notice has been served shall be referred to confidential, final and binding arbitration (the "Arbitration") pursuant to the rules of the International Chamber of Commerce (the "ICC"), as further set out in Appendix 3 to this Schedule B. The Outstanding Disputes that shall be settled by Arbitration include Outstanding Disputes related to the formation, existence, validity, interpretation, termination, performance or breach of this Agreement or the GP Articles by a Party. |
| B-1 |
APPENDIX 1 TO SCHEDULE B
ESCALATION TO SENIOR REPRESENTATIVES
1.1 Escalation to Senior Representatives
| (a) | Each Senior Representative shall have authority to resolve the Dispute that is the subject of the Initial Dispute Notice on behalf of the relevant GP Shareholder that nominated him/her. |
| (b) | The Senior Representatives shall use all reasonable endeavours in good faith to resolve the Dispute in conjunction with the resolution of any Partnership Dispute and/or JVCo Dispute in respect of: |
| (i) | a Dispute and/or Partnership Dispute and/or JVCo Dispute that relates the Business Plan, or any component thereof (including the Budget), prior to the commencement of the next Fiscal Year; or |
| (ii) | any other Dispute and/or Partnership Dispute and/or JVCo Dispute (including a Dispute in relation to an Emergency Funding Notice), within 20 Business Days of receipt of the SR Escalation Notice, |
(the "Escalation Period").
| (c) | If the Senior Representatives agree to a solution (in whole or in part) to the Dispute, they shall draft a statement setting forth the terms of such resolution which shall be signed by each Senior Representative for the purposes of identification and the GP Shareholders or the Directors shall procure that such resolution is fully and promptly carried into effect. |
| (d) | To the extent that the Senior Representatives fail to reach agreement on resolution of a Dispute within the relevant Escalation Period: |
| (i) | if the Dispute is a Significant Deadlock Event, Appendix 4 of Schedule B shall apply in respect of it; |
| (ii) | to the extent that the Dispute relates to the calculation of FMV, Schedule C shall apply in respect of it; |
| (iii) | in respect of any other Dispute: |
| (A) | to the extent that the decision that is the subject of the Dispute relates to a matter for which Specified Board Approval or Specified Shareholder Approval is required, the decision shall not be taken; |
| (B) | to the extent that the Dispute relates to any other matter (an "Outstanding Dispute"), it will be resolved in accordance with paragraph 1.1(b) of Schedule B; and/or |
| (C) | the GP Shareholders shall be free to exercise any accrued rights, powers or remedies they may have in respect of such Dispute. |
| B-2 |
APPENDIX
2 TO SCHEDULE B
EXPERT DETERMINATION
| 1.1 | Notice of Expert Review |
In the event of a Tax Dispute that is to be resolved pursuant to paragraph 1.1(c) of this Schedule B, either Party may serve notice on the other Parties within five Business Days after delivery or receipt of the Additional Dispute Notice requiring that the Tax Dispute be settled by the Tax Expert ("Referral Notice").
| 1.2 | Expert Review Procedure Proceedings |
The following provisions shall apply to any Tax Dispute that is referred to the Tax Expert.
| (a) | In the event that the Parties are unable to agree the identity of a Tax Expert within 10 Business Days after service of the Referral Notice, either Party may request that the Tax Expert shall be appointed by the ICC International Centre for ADR in accordance with the Rules for the Appointment of Experts and Neutrals of the ICC. |
| (b) | Each Party shall submit separate written statements setting forth in detail their respective positions with respect to all matters in Tax Dispute to the Tax Expert within 15 Business Days of the appointment of the Tax Expert. All submissions shall be in English, and each Party shall simultaneously send a copy of its submission to the other Parties. |
| (c) | Each Party shall be entitled to submit a further written statement setting forth in detail any objections to the statement of the other Party referred to in paragraph 1.2(b), within 10 Business Days after receipt of the same. All such submissions shall be in English, and each Party shall simultaneously send a copy of its submission (if any) to the other Parties. |
| (d) | Within 20 Business Days after the submission to the Tax Expert of all written statements referred to in paragraphs 1.2(b) and (c) or as soon as practicable thereafter, the Tax Expert, acting as an expert and not as an arbitrator or mediator, will make a final determination binding on the Parties, on the basis of Applicable Law, OECD guidelines and other applicable technical standards related to such Tax Dispute and otherwise in accordance with this Agreement. |
| (e) | There shall be no ex-parte communications between a Party and the Tax Expert relating to those matters in dispute, other than the initial written submissions by the Parties of their respective positions on the matters in dispute and written answers to written questions from the Tax Expert, with simultaneous copies to each Party involved in such Tax Dispute. |
| (f) | The decision of the Tax Expert shall be, absent manifest error, unappealable, final and binding on the Parties. The General Partner shall, and the Parties shall procure (to the extent each of them is able) that the GP Board, Management and each other member of the LP Group, as applicable, shall (i) implement any changes to the TP Model and/or any new arrangements or changes to existing arrangements within the TP Model (as so updated), and/or (ii) amend, finalise and submit the relevant Tax Return(s), or amend or withdraw any previously submitted Tax Return(s) and/or submit any replacement Tax Return(s), in each case, as are necessary to reflect the decision of the Tax Expert. |
| B-3 |
| (g) | Except as may be required by Applicable Law, neither a Party nor its Representatives may disclose any matter in connection with the Tax Dispute without the prior written consent of the other Parties. The Tax Expert shall also maintain the confidentiality of the Tax Dispute. |
| (h) | The cost of the Tax Expert's review and determination shall be borne equally by the Parties. |
| B-4 |
APPENDIX 3 TO SCHEDULE B
ARBITRATION PROVISIONS
1.1 Notice of Arbitration
In the event of an Outstanding Dispute that is to be resolved pursuant to paragraph 1.1(c) of Schedule B, any Party involved in the Outstanding Dispute shall submit the Outstanding Dispute to be settled by Arbitration within five Business Days after delivery or receipt of the Additional Dispute Notice.
1.2 All Arbitration Proceedings
The following provisions shall apply to any Dispute that is referred to Arbitration.
| (a) | All Arbitrations shall be conducted under the then current rules of the International Chamber of Commerce (the "ICC Rules"). |
| (b) | The seat of Arbitration shall be Vancouver, British Columbia, but nothing in this Agreement precludes any of the proceedings from taking place electronically. |
| (c) | The language of the Arbitration shall be English. |
| (d) | Unless the Parties to the Dispute agree otherwise, three arbitrators will be appointed for the Arbitration (the "Arbitrators") in accordance with Article 12 of the ICC Rules. Volvo Canada and Westport Canada shall be entitled to appoint one Arbitrator each and those Arbitrators together shall jointly appoint a third Arbitrator of their choosing. |
| (e) | Without limiting a Party's right to challenge the appointment of an Arbitrator pursuant to the ICC Rules, a Party to the Dispute shall not be entitled to set-aside an award on the basis that an appointed Arbitrator did not have the requisite expertise in the relevant subject matter. |
| (f) | Except as may be required by Applicable Law, neither a Party to a Dispute nor its Representatives may disclose to any Third Party (other than the Arbitrators) any matter in connection with an Arbitration without the prior written consent of the other party to the Dispute. The Arbitrators shall also maintain the confidentiality of the Arbitration. |
| (g) | Any decision rendered by the Arbitrators shall be final and binding upon the Parties to the Dispute and not subject to appeal, and judgment may be entered upon it in accordance with Applicable Law in any court of competent jurisdiction. The Arbitrators shall not be entitled to award interest or indirect or consequential damages (including indirect or consequential losses that are loss of profits) except as reimbursement for any such amounts which are a consequence of a party's liability to a Third Party for indirect, consequential, punitive, exemplary or special damages which such Third Party has recovered or is entitled to recover from the relevant Party. |
| (h) | Any award that compels any of the Parties to the Dispute to pay an amount of money shall accrue interest at the daily rate [Redacted – commercially sensitive information] from the date of breach or violation of this Agreement or the GP Articles, as determined by the award, until such award is fully paid. |
| B-5 |
| (i) | For the sake of efficiency and to avoid inconsistent findings, the Parties consent to the consolidation of two or more Arbitrations commenced under this Agreement or any other JV Agreement that relate to the same facts and issues. For this purpose, the Parties shall (and shall procure that their respective 100% Affiliates, as applicable, shall) procure, to the extent each of them is able, that the arbitral tribunal for any such Arbitration shall be composed of the same Arbitrators as the tribunal for any previous such Arbitration. In the event that this is not possible, the arbitral tribunal of the first such Arbitration shall adjudicate the consolidation of the relevant Arbitrations. |
| B-6 |
APPENDIX 4 TO SCHEDULE B
SHOTGUN PROVISION
[Redacted – commercially sensitive information]
| B-7 |
SCHEDULE
C
FMV PROCEDURE aND METHODOLOGY
[Redacted – commercially sensitive information]
| C-1 |
SCHEDULE
D
INITIAL BUSINESS PLAN
[Redacted – commercially sensitive information]
D-1
Exhibit 99.2
INVESTMENT AGREEMENT – CAUTIONARY NOTE FOR READERS
The attached Investment Agreement has been filed with certain securities regulatory authorities in Canada pursuant to National Instrument 51-102 -- Continuous Disclosure Obligations, which requires Westport Fuel Systems Inc. ("Westport") to file certain material contracts to which it (or any subsidiary) is a party. Unlike certain other documents filed on behalf of Westport, the attached Investment Agreement has not been prepared as a disclosure document and was not drafted with the intention of providing factual information about Westport (or any affiliate) for the benefit of investors. The attached Investment Agreement contains representations and warranties made by Westport and certain of its affiliates to various counterparties for risk allocation purposes, and solely for the benefit of those counterparties. National Instrument 51-102 allows reporting issuers to omit certain provisions of material contracts and readers are cautioned that statements made by Westport (and its affiliates) in the attached Investment Agreement may be qualified (in whole or in part) by information redacted from the attached copy of the Investment Agreement, which information is not otherwise available to the public. Moreover, information concerning Westport, its affiliates or the subject matter of statements made in the attached Investment Agreement concerning Westport or certain of its affiliates may change after the date of the attached Investment Agreement, and subsequent information may or may not be fully reflected in Westport's public disclosures. Accordingly, investors should not rely on statements in the attached Investment Agreement concerning Westport (or any of its affiliates) as accurate statements of fact.
INVESTMENT AGREEMENT
by and among
Westport Fuel Systems Inc.
and
Westport Fuel Systems Canada Inc.
and
Volvo Business Services International AB
Dated effective as of March 11, 2024
TABLE OF CONTENTS
Page
| Article I DEFINITIONS | 6 |
| 1.1 Definitions. | 6 |
| 1.2 Interpretation. | 28 |
| Article II SALE AND PURCHASE | 29 |
| 2.1 Sale and Purchase of the Purchased LP Units, Purchased GP Shares and Purchased JVCo Shares. | 29 |
| 2.2 Purchase of Transferred Assets. | 29 |
| 2.3 Earn Out Purchase Price. | 30 |
| 2.4 Investment Closing. | 32 |
| 2.5 Withholding Rights. | 32 |
| Article III CONDITIONS TO THE INVESTMENT CLOSING | 33 |
| 3.1 Conditions to Each Party’s Obligations. | 33 |
| 3.2 Conditions to Obligations of Volvo Sweden at the Investment Closing. | 33 |
| 3.3 Conditions to Obligations of Westport Inc at the Investment Closing. | 35 |
| 3.4 Satisfaction of Conditions. | 35 |
| 3.5 Notification to the other Parties. | 36 |
| 3.6 If Conditions not satisfied or waived. | 36 |
| Article IV REPRESENTATIONS AND WARRANTIES OF WESTPORT INC | 37 |
| 4.1 Organization and Good Standing; Certificate of Incorporation and Bylaws. | 37 |
| 4.2 Power. | 38 |
| 4.3 Authorization. | 38 |
| 4.4 Consents. | 39 |
| 4.5 Capitalization. | 39 |
| 4.6 No activities by the JV Group. | 40 |
| 4.7 Ownership of HPDI Sellers. | 40 |
| 4.8 Changes. | 40 |
| 4.9 Compliance with Instruments and Applicable Law. | 41 |
| 4.10 Illegal Payments; Corruption. | 42 |
| 4.11 Filings. | 42 |
| 4.12 Undisclosed Liabilities. | 43 |
| 4.13 Brokers. | 43 |
| 4.14 Litigation. | 43 |
| 4.15 Taxes. | 44 |
| 4.16 Contractual Matters. | 45 |
| 4.17 Environmental Matters. | 46 |
| 4.18 Intellectual Property. | 46 |
| 4.19 Information Technology. | 50 |
| 4.20 Employees and Contractors. | 51 |
| 4.21 Employee Benefit Plans. | 53 |
| 4.22 Properties. | 55 |
| 4.23 Insurance. | 57 |
| 4.24 Transferred Assets. | 57 |
| Article V REPRESENTATIONS AND WARRANTIES BY VOLVO SWEDEN | 58 |
| 5.1 Authority. | 58 |
| 5.2 Proceeds of Crime. | 58 |
| Article VI COVENANTS | 58 |
| 6.1 Westport Inc Covenants | 58 |
| 6.2 Volvo Sweden Acknowledgments and Covenants | 61 |
| 6.3 Interim Operating Covenant. | 62 |
| 6.4 Preservation of the HPDI Business | 64 |
| 6.5 HPDI Employees | 65 |
| 6.6 Finalization of Transaction Documents | 66 |
| 6.7 Availability of employees | 68 |
| 6.8 Notice obligation upon change of Westport Inc outbound licenses | 68 |
| 6.9 Assignment of Abandoned Patent Rights | 68 |
| 6.10 Information Technology | 69 |
| 6.11 Data Room Delivery | 70 |
| Article VII INDEMNIFICATION AND DISPUTES | 70 |
| 7.1 Indemnity. | 70 |
| 7.2 Procedures. | 71 |
| 7.3 Survival. | 73 |
| 7.4 Limitations on Indemnification. | 73 |
| 7.5 Disputes. | 73 |
| 7.6 Mitigation | 74 |
| 7.7 Prior Knowledge | 74 |
| 7.8 Exclusion of Other Remedies | 75 |
| 7.9 Payments made pursuant to this Article | 75 |
| 7.10 Environmental Conduct | 75 |
| Article VIII MISCELLANEOUS | 76 |
| 8.1 Waivers and Amendments. | 76 |
| 8.2 Governing Law. | 77 |
| 8.3 Jury Waiver. | 77 |
| 8.4 Entire Agreement. | 77 |
| 8.5 Effect of Investment Closing on Existing Agreements. | 77 |
| 8.6 Fees and Expenses. | 77 |
| 8.7 Notices. | 77 |
| 8.8 Validity. | 78 |
| 8.9 Counterparts. | 78 |
| 8.10 Confidentiality and Publicity. | 79 |
| 8.11 Succession and Assignment. | 79 |
| 8.12 Termination; Survival. | 80 |
| 8.13 Currency. | 80 |
| 8.14 Further Assurances. | 80 |
| 8.15 Privacy. | 81 |
| Schedule 1 Adjustment to Initial Purchase Price and Closing Accounts | 1 |
| Schedule 2 Earn Out | 1 |
| Schedule 3 Arbitration | 1 |
| Schedule 4 Indemnification | 1 |
| Schedule 5 Disclosure Schedule | 1 |
| Exhibit A | Form of Limited Partnership Agreement |
| Exhibit B | Form of Unanimous Shareholders Agreement |
| Exhibit C | Form of JVCo Shareholders Agreement |
| Exhibit D | Form of Price Agreement |
| Exhibit E | Form of Framework Agreement |
| Exhibit F | Form of Development Agreement Novation |
| Exhibit G | Carve Out Plan |
| Exhibit H | Form of TSA |
| Exhibit I | Form of Asset PA |
| Exhibit J | Initial Business Plan |
| Exhibit K | Form of Pro Forma Consent to Assignment |
| Exhibit L | Form of Pro Forma IP Consent to Assignment |
- 6 -
INVESTMENT AGREEMENT
This INVESTMENT AGREEMENT (this “Agreement”), effective as of March 11, 2024, is entered into between Westport Fuel Systems Inc., a corporation incorporated under the laws of Alberta (“Westport Inc”), Westport Fuel Systems Canada Inc., a corporation incorporated under the laws of British Columbia (“Westport Canada”) and Volvo Business Services International AB, with company registration number 556539-9853 and its registered office at 405 08 Göteborg, Sweden (“Volvo Sweden”). Westport Inc, Westport Canada and Volvo Sweden are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS Volvo Sweden is part of a broader global group of companies within the business of commercial transport solutions and products such as trucks, buses, construction equipment and drive systems for marine and industrial applications with a focus on trucking applications within its group of companies;
AND WHEREAS Westport Inc is in the business of developing technologies to allow internal combustion engines found in both on-road and off-road vehicles to run on alternative fuels (with a particular expertise in gaseous fuels) such as natural gas and other alternative fuels, in both liquid and gaseous form;
AND WHEREAS the Parties have collaborated for more than ten years and continue to collaborate to develop unique engines and vehicles based on Westport Inc’s HPDITM late cycle injection technology;
AND WHEREAS the Parties desire that Westport Inc transfer or, cause to be transferred, any and all of its (and its Affiliates’) assets applicable to the HPDI System to members of the JV Group, and that the JV Group thereafter carries on the HPDI Business;
AND WHEREAS the Parties intend that each of the Limited Partnership and the JVCo operate as a joint venture with the LP Units to be owned by Westport Canada and Volvo Canada and the JVCo Shares to be owned by Westport Canada and Volvo Sweden in order to accelerate the development, commercialization and adoption of Westport Inc’s HPDI technology on a sustainable basis for use, primarily, in the truck industry and in off-road applications including marine, rail, mining, power generation or generators, construction, and agriculture equipment applications (the “Business Objective”);
AND WHEREAS Westport Inc and Volvo Sweden entered into a Term Sheet on July 18, 2023, with respect to the Investment and entering into of the joint venture (the “Term Sheet”);
AND WHEREAS Volvo Sweden has a clear ambition to further develop its sales of vehicles applying HPDI technology, and, as the initial primary customer of the JV Group, will procure its supply of HPDI-related products from the JV Group on a non-exclusive basis.
NOW, THEREFORE, in consideration of the foregoing, and the representations, warranties, covenants and conditions set forth below, the Parties, intending to be legally bound, hereby agree as follows. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms on Article I hereto.
- 7 -
Article I
DEFINITIONS
| 1.1 | Definitions. |
“Abandoned Patents” [Redacted – commercially sensitive information].
“Abandoned Patents Assignment” [Redacted – commercially sensitive information].
“Abandoned Patents Query” [Redacted – commercially sensitive information].
“Accounting Instructions” means the instructions regarding the preparation of the Closing Accounts set out in Schedule 1, Part 2.
“Actual VAT Percentage” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“Adjusted Initial Purchase Price” has the meaning set forth in Section 2.1.
“Affiliate” means, with respect to a Person: (a) any Person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with another Person; (b) any body corporate of which such Person beneficially owns, directly or indirectly, voting securities carrying more than 20% of the voting rights attached to all voting securities of the body corporate for the time being outstanding; (c) any partner of such Person, or (d) any trust, estate or other entity or fund in which such Person has a substantial beneficial interest or as to which the Person serves as trustee, manager or administrator or in similar capacity; and for the purpose of this definition, “control” (including with correlative meanings, the terms “controlled by” or “under common control”) means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the Preamble to this Agreement.
“Applicable Earn Out Amount” means:
| (a) | in the case of the Initial Earn Out Condition, the Initial Earn Out Amount; |
| (b) | in the case of the Second Earn Out Condition, the Second Earn Out Amount; |
| (c) | in the case of the [Redacted – confidential information] Earn Out Condition, the [Redacted – confidential information] Earn Out Amount; |
| (d) | in the case of the Initial [Redacted – confidential information] Earn Out Condition, the Initial [Redacted – confidential information] Earn Out Amount; and |
| (e) | in the case of the Second [Redacted – confidential information] Earn Out Condition, the Second [Redacted – confidential information] Earn Out Amount. |
“Applicable Law” means any law, statute, code, ordinance, regulation, rule, Permit, rules of common law, including any judicial and administrative interpretations thereof, of any Governmental Entity which have been made public, including all judicial and administrative Orders which have been made public.
“Arbitration” has the meaning set forth in Section 7.5.
- 8 -
“Arbitrators” has the meaning set forth in paragraph 1(d) of Schedule 3.
“Asset PA” means the asset purchase agreement by and between Westport Canada (and other HPDI Sellers), the Limited Partnership, and the JVCo (and other members of the JV Group), as set out in Exhibit “I”, whereby Westport Canada, and the HPDI Sellers, agree to sell the Transferred Assets to the Limited Partnership, the JVCo and/or another member of the JV Group, as further described in Section 2.2.
“Average Contribution Margin” means [Redacted – commercially sensitive information]
“Average Sales Tax Receivable” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“Business Day” means a day on which banks are generally open for the transaction of commercial business in Vancouver, British Columbia, and Gothenburg, Sweden but does not in any event include a Saturday or a Sunday or statutory holiday in British Columbia, or Gothenburg, Sweden.
“Business Objective” has the meaning set forth in the Recitals.
“Canadian Leases” means the lease agreements entered into by members of the Westport Group in respect of the Canadian Properties.
“Canadian Properties” means the Properties located at: (a) 1691 West 75th Avenue (formerly 8797 Barnard Street), Vancouver, Canada; and (b) each of 8665, 8667, 8671 and 8675 Barnard Street, Vancouver, Canada.
“Canadian Sales Tax” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“Carve Out” has the meaning set forth in Section 2.2.
“Carve Out Plan” means the steps and procedures for the transfer of the Transferred Assets to the Limited Partnership, the JVCo or another member of the JV Group set out in Exhibit “G”, or as the same may be amended from time to time (including by inclusion of the Carve Out Steps Plan) by the written agreement of the Parties.
“Carve Out Steps Plan” means the process, steps and procedure by which the Limited Partnership, the JVCo or another member of the JV Group will give consideration for the Transferred Assets (to be agreed pursuant to Section 6.6).
“Cash” means the aggregate of all the JV Group’s cash balances in hand or credited to any account with a financial institution (and any interest accrued on those balances) as at the Effective Time, excluding any Trapped Cash or any other cash that is otherwise recorded to long term assets.
“China Outsourced Personnel” means [Redacted – confidential information].
“Closing Accounts” means the accounts to be prepared and agreed by the Parties or determined in accordance with Schedule 1, Part 3 and comprising the Initial Purchase Price Adjustment Statement, the Working Capital Statement, the Net Cash Statement and the Final Statement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collective Agreement” means any collective agreement, letter of understanding, letter of intent or other written communications with any Union, works council or other employee association that governs the terms and conditions of employment with any HPDI Employees and imposes obligations on Westport Inc or any of the HPDI Sellers.
- 9 -
“Common Shares” means the common shares in the capital of Westport Inc.
“Competition Authority” means any government, government agency, regulatory body or competition authority with responsibility for enforcing Applicable Law relating to competition in its jurisdiction.
“Conditions” means the conditions to the Investment Closing set out in Article III.
“Confidential Information” has the meaning set forth in Section 8.10(b).
“Consolidated JV Accounts” means, in relation to each fiscal year of the Limited Partnership and JVCo up to and including the fiscal year ending December 31, 2033, the consolidated accounts of each: (a) the Limited Partnership and its Subsidiaries; and (b) the JVCo and its Subsidiaries, in each case prepared in accordance with Schedule 2, Part 1 for the purpose of preparing the Earn Out Accounts.
“Current Assets” means those current assets indicated as “WC” on the Form of Closing Balance Sheet (Q42023 column), but for all purposes shall exclude Cash and any Excluded Assets.
“Current Liabilities” means those current liabilities indicated as “WC” on the Form of Closing Balance Sheet (Q42023 column), but for all purposes shall exclude any Debt and any Excluded Liabilities.
“Customer Contracts” means all: (a) contracts; (b) agreements; (c) tenders and offers capable of acceptance which, on acceptance, would be contractually binding; and (d) orders, for the sale or supply by Westport Inc or any of the HPDI Sellers of goods and/or services (including development services) relating to the HPDI Business and remaining to be performed (in whole or in part) by any party to them.
“Data Room” means the electronic data room entitled “Fridolf” established by Westport Canada with Datasite.
“Debt” means the aggregate of the following obligations owed by a member of the JV Group to any other Person (including a member of the Westport Group, but excluding another member of the JV Group) whether or not then due and payable, as at the Effective Time:
| (a) | all monies borrowed from any bank, financial institution or other entity; |
| (b) | all indebtedness arising under any bond, note, loan stock or similar instrument; |
| (c) | obligations under leases or other arrangements which are to be accounted for as finance leases under IFRS (including but not limited to finance leases obligations relating to leased vehicles transferred to a member of the JV Group pursuant to the Asset PA); |
| (d) | receivables sold or discounted, including but not limited to any balances in relation to the [Redacted – commercially sensitive information]; |
- 10 -
| (e) | any amount in respect of the sale or discounting of a member of the JV Group’s rights or assets in return for funding in the nature of finance and any other off balance sheet finance; |
| (f) | any foreign exchange contracts and all derivative instruments (including any interest or currency protection, hedging or financial future transactions); |
| (g) | any guarantee, counter-indemnity, letter of credit, indemnity or similar assurance against the financial loss of any other Person; |
| (h) | declared and/or accrued but unpaid dividends; |
| (i) | obligations to repay government grants and investment grants; |
| (j) | any deferred or contingent consideration payable in connection with the acquisition of any share capital, business, asset or undertaking; |
| (k) | any deferred revenue/ customer advance payments; |
| (l) | any liabilities/ amounts payables by any member of the JV Group to any member of the Westport Group in connection with the Carve Out, including pursuant to the Asset PA; |
| (m) | any amount related to stock-based compensation (LTIP); |
| (n) | to the extent not included in Working Capital (personnel liabilities), the aggregate amount of any bonus incentives, change of control payments or other payments to officers, employees, consultants, staff or management accrued or otherwise relating to the period prior to the Effective Time or triggered by the transactions under this Agreement, and, in each case, payable by a member of the JV Group together with employer’s Tax or insurance liability and other payroll Tax thereon; |
| (o) | any severance payments payable by a member of the JV Group to HPDI Employees or employees of any member of the JV Group whose employment has been terminated or who are under notice of termination at the Effective Time together with employer’s Tax or insurance liability and other payroll Tax thereon; |
| (p) | pension related liabilities of a member of the JV Group, including Trattamento di Fine Rapporto (TFR), as accounted and determined in accordance with IFRS (IAS 19); |
| (q) | any third party financial, accounting, tax, legal and other advisory fees and costs incurred by (or to be assumed by, pursuant to the Carve Out) a member of the JV Group in connection with the preparation for, negotiation and implementation of the transaction contemplated hereby, this Agreement, the Asset PA and any other Transaction Document together with any Tax charged thereon; |
| (r) | any liabilities of a member of the JV Group related to Transfer Taxes or Sales Taxes in relation to the transfer of the Transferred Assets or otherwise pursuant to the Carve Out or Asset PA (including transfer tax, VAT and stamp duties) (to the extent not included in Working Capital); |
| (s) | any unpaid amounts in respect of Taxes payable in respect of any period of time ending before the Investment Closing Date; and |
| (t) | any accrued but unpaid interest and all amounts payable in the nature of costs and/or fees on the termination, repayment, prepayment or cancellation of any of the above. |
- 11 -
“Determination Date” means the date on which the Closing Accounts are agreed by the Parties or determined in accordance with Schedule 1, Part 3.
“Development Agreement Novation” means the novation agreement in respect of the Existing Development Agreement, in substantially the form set out in Exhibit “F”, to be entered into between Volvo Truck Corporation, Westport Canada and the Limited Partnership.
“Development Contracts” means all contracts, agreements, arrangements, engagements and orders relating to development, co- or joint development, cooperation or collaboration relating to the HPDI Business to which Westport Inc or any of the HPDI Sellers is a party and remaining to be performed (in whole or in part) by any party to them.
“Development Value” means [Redacted – confidential information].
“Differentiated Program or Product” means [Redacted – confidential information].
“Disclosure Schedule” means the disclosure schedule attached as Schedule 5.
“Disputed Matters” has the meaning set forth in Schedule 1, Part 3, Paragraph 1(f).
“Earn Out Accounting Instructions” means the basis of presentation, policies and procedures for the Earn Out Accounts set out in Schedule 2.
“Earn Out Accounts” means, in relation to each fiscal year of the Limited Partnership and JVCo up to and including the fiscal year ending December 31, 2033, the consolidated and aggregated accounts of the JV Group showing, inter alia, Net Profit, prepared and finalized in accordance with Schedule 2, Part 1.
“Earn Out Condition” means, as applicable, the Initial Earn Out Condition, the Second Earn Out Condition, the [Redacted – confidential information] Earn Out Condition, the Initial [Redacted – confidential information] Earn Out Condition or the Second [Redacted – confidential information] Earn Out Condition and “Earn Out Conditions” means, collectively, all of the Initial Earn Out Condition, the Second Earn Out Condition, the [Redacted – confidential information] Earn Out Condition, the Initial [Redacted – confidential information] Earn Out Condition and the Second [Redacted – confidential information] Earn Out Condition.
“Earn Out Disputed Matters” has the meaning set forth in Section 2.3(d)(vi)
“Earn Out Negotiation Period” has the meaning set forth in Section 2.3(d)(iv).
“Earn Out Notice of Objection” has the meaning set forth in Section 2.3(d)(ii).
“Earn Out Purchase Price” has the meaning set forth in Section 2.1.
“Earn Out Review Period” has the meaning set forth in Section 2.3(d)(ii).
- 12 -
“Earn Out Statement” means, in relation to each fiscal year of the Limited Partnership and JVCo up to the fiscal year ending December 31, 2033, a statement, in the form set out in Schedule 2, Part 2, setting out:
| (a) | [Redacted – confidential information]; |
| (b) | [Redacted – confidential information]; |
| (c) | [Redacted – confidential information]; |
| (d) | [Redacted – confidential information]; |
| (e) | [Redacted – confidential information]. |
[Redacted – commercially sensitive information].
“Effective Time” means 12:01 a.m. (Pacific Time) on the Investment Closing Date.
“Employee” means an individual who is employed by Westport Inc or any other member of the Westport Group.
“Employee Benefit Plan” means any arrangements (legally binding or otherwise) for providing or contributing towards benefits on retirement, leaving service, death, disability, illness or injury, stock options, stock purchases, profit-sharing, bonus or other similar benefits for or in respect of any HPDI Employee or their dependants, including each “employee pension benefit plan” (as defined in Section 3(2) of ERISA), each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), in each case whether or not subject to ERISA, each employment, termination or severance agreement and each other plan, arrangement or policy (written or oral) relating to stock options, stock purchases, deferred compensation, profit-sharing, bonus, employment, severance, retention, fringe benefits, cash- or equity-based incentive, commission, health, medical, dental, disability, accident, life insurance, vacation, paid time off, perquisite, change of control, separation, non-competition, retirement, pension, supplemental pension or savings or other employee benefit, in each case maintained or contributed to, or required to be maintained or contributed to, by Westport Inc or any of the HPDI Sellers.
[Redacted – commercially sensitive information].
“Environmental Law” means any Applicable Law relating to the pollution or protection of the environment (including air, surface water, groundwater, wildlife, land surface or subsurface land, and natural resources), or human health or safety (as such matters relate to Hazardous Materials), including Applicable Law relating to (a) Releases or threatened Releases of, or exposure to, Hazardous Materials, (b) the manufacture, processing, distribution, use, treatment, generation, storage, containment (whether above ground or underground), transport or handling of Hazardous Materials, (c) recordkeeping, notification, disclosure, or reporting requirements regarding Hazardous Materials, and (d) endangered or threatened species of fish, wildlife and plants, and the management or use of natural resources.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included the first entity, trade or business, or that is, or was at the relevant time, a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.
- 13 -
“Estimate Statement” has the meaning set forth in paragraph 2(a) of Schedule 1, Part 1.
“Estimated Net Cash” means Westport Inc’s good faith best estimate of what the Net Cash will be at the Effective Time.
“Estimated Working Capital” means Westport Inc’s good faith best estimate of what the Working Capital will be at the Effective Time.
“ETA” has the meaning set forth in paragraph 1 of Schedule 1, Part 1.
[Redacted – confidential information]
[Redacted – confidential information]
[Redacted – confidential information]
“EU Merger Regulations” means the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.
“Excluded Assets” means those assets, rights and agreements described in schedule 2.3(a) of the Asset PA.
“Excluded Liabilities” has the meaning set forth in section 2.5 of the Asset PA.
“Existing Development Agreement” means the master development agreement entered into between Volvo Truck Corporation and Westport Canada dated December 19, 2023, together with any valid statement of work referring to that master development agreement.
“FDI Authority” means the Coordination Group (Gruppo di Coordinamento) (Italy) or the Council of Ministers (as relevant) (Italy).
“Final Statement” has the meaning set forth in Part 1 of Schedule 1.
“Form of Closing Balance Sheet” means the form of closing balance sheet set out in Schedule 1, Part 4.
“Framework Agreement” means the Framework Agreement in the form set out in Exhibit “E”.
“Fuel Distribution System” has the meaning set forth in Section 6.6(c).
“Fuel Stations” has the meaning set forth in Section 6.6(c).
“GAAP” has the meaning set forth in Section 4.11(b).
“General Partner” means 1463861 B.C. Ltd., a corporation incorporated under the laws of the Province of British Columbia, and the general partner of the Limited Partnership.
“Government Official” has the meaning set forth in Section 4.10.
- 14 -
“Governmental Entity” means: any (a) government or political subdivision, whether federal, provincial, local or foreign; (b) agency or instrumentality of any such government or political subdivision; (c) federal, state, local or foreign court; (d) applicable industry self-regulatory organization; and (e) applicable stock exchange or securities regulatory authority, and shall include any Competition Authority.
“GP Shares” has the meaning set forth in Section 4.5(a).
“Group” means, in the case of Westport Inc, the Westport Group and, in the case of Volvo Sweden, the Volvo Group.
“GST/HST” has the meaning set forth in paragraph 1 of Schedule 1, Part 1.
“Hazardous Materials” means: (a) those substances listed in, defined in or regulated under any Environmental Law, including the following, as each may be amended from time to time, and all regulations thereunder: (i) the Canadian federal statutes and their provincial counterparts, including: the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act, the Clean Air Act and the Environmental Management Act (BC); and (ii) the Swedish Environmental Code (1998:808) and applicable legislation from the European Union; (b) petroleum and petroleum products, including crude oil and any fractions thereof; and (c) polychlorinated biphenyls, methane, asbestos, or asbestos-containing materials, toxic mold, radon, or other pollutants, contaminants, wastes or substances that are regulated, defined, judicially interpreted or identified under Environmental Law due to possible adverse effects on human health or the environment.
“HPDI” means high pressure direct injection.
“HPDI Business” means the business of Westport Inc and its Affiliates relating to the development, manufacture, sales, marketing and aftermarket support, service and sales of the components and systems that comprise the HPDI System for use by any OEM (including a Volvo OEM and a Third Party OEM) and in any market globally but excludes the Sub-components Business.
“HPDI Contracts” means the Customer Contracts, the Supplier Contracts, the Development Contracts and the License Contracts.
“HPDI Employees” means the Employees who provide services wholly or partly to the HPDI Business, whether on a full-time, part-time, casual, seasonal or other basis, but excluding any employees located in the United Kingdom, the United States of America, France or the Netherlands and excluding manufacturing staff at the site in Brescia, Italy.
“HPDI Independent Contractors” means the independent contractors contemplated by Westport Inc and Volvo Sweden to be offered a continued engagement with the JV Group from and after the Investment Closing Date, being those listed in Disclosure Schedule 1.1.
“HPDI IP Licenses” has the meaning set forth in Section 4.18(j).
“HPDI Sellers” means each of Westport Inc, Westport Canada, Westport Fuel Systems Italia S.r.l., Westport Fuel Systems Sweden AB, Westport Power System (Kunshan) Co. Ltd, Westport Fuel Systems Netherlands B.V. and Westport Power Services Inc. and “HPDI Seller” means any one of them.
- 15 -
“HPDI System” means a fuel system (whether such system is developed, in development or yet to be developed on the date of the Investment Closing):
| (a) | with a fuel pressure in excess of 100 bar; |
| (b) | that delivers the fuel directly into the combustion chamber or a pre-chamber; |
| (c) | where the fuel burns fully or partly as a diffusion combustion flame at least one area of the engine map; |
| (d) | utilising a pre-dominantly non-diesel fuel (including but not limited to methane, natural gas, biogas, propane, LPG, bio-propane, methanol, hydrogen, ammonia, DME or gasoline); and |
| (e) | comprising any one or combination of everything from the fuel storage components through to the fuel injectors and the algorithms and controls to manage the fuel system, in whole or in part, where those components may include, but are not limited to, fuel conditioning components, fuel injectors, glow plugs, gas vent separator, back pressure regulator, gas rail injector, gas vent valve, diesel conditioning module, gas conditioning components such as the gas conditioning module, gas rails, fuel storage tanks, fuel storage regulators and pressure relief devices, fuel pumps (which could be cryogenic pumps, diesel pumps and/or gas compressors), brackets and other parts for mounting the fuel system onto an engine and/or vehicle, as the case may be. |
“ICC Rules” has the meaning set forth in Schedule 3.
“IFRS” means the accounting principles so prescribed, recommended or promulgated from time to time as the International Financial Reporting Standards, as issued by the International Accounting Standard Board or any successor thereto, as such principles may be amended, varied or replaced from time to time, which are applicable as at the date on which any calculation made hereunder is to be effective or as at the date of any financial statements referred to herein.
“Imputed Tax Rate” has the meaning set forth in paragraph 3(b) of Schedule 2, Part 1.
“Indemnified Party” has the meaning set forth in Section 7.2(a).
“Indemnifying Party” has the meaning set forth in Section 7.2(a)(i).
“Independent Accountant” means either: (a) an independent firm of chartered accountants of international repute (not being the auditors of Westport Inc, Volvo Sweden or any member of the JV Group), agreed by Westport Inc and Volvo Sweden; or (b) in default of agreement as to the identity of that independent firm within five Business Days of either Party notifying the other of its wish to appoint an independent firm, a specific member of an independent firm of chartered accountants to be nominated on the application of either Party by the ICC International Centre for ADR.
“Initial Business Plan” means the initial business plan of the JV Group to be finalized in accordance with Section 6.6.
“Initial Earn Out Amount” means Fifteen Million Seven Hundred and Fifty Thousand U.S. Dollars (US$15,750,000).
- 16 -
“Initial Earn Out Condition” [Redacted – commercially sensitive information].
“Initial Earn Out Qualifying OEM” means [Redacted – commercially sensitive information].
“Initial Purchase Price” has the meaning set forth in Section 2.1.
“Initial Purchase Price Adjustment Statement” means the statement of adjustments in the form set out in Schedule 1, Part 4 to be prepared and agreed by the Parties or, as applicable, determined in accordance with Schedule 1, Part 3.
“Initial [Redacted – confidential information] Earn Out Amount” [Redacted – commercially sensitive information]
“Initial [Redacted – confidential information] Earn Out Condition” means the sale and delivery of [Redacted – commercially sensitive information] to [Redacted – confidential information] by a member of the JV Group (following the Investment Closing) either alone or together with a member of the Westport Group (prior to the Investment Closing) within the calendar years 2024, 2025, 2026 and 2027.
[Redacted – confidential information].
“Insolvency Event” means, in relation to any Person, any formal insolvency proceedings, whether in or out of court, leading to any form of bankruptcy, liquidation, administration, receivership, arrangement or scheme with creditors, moratorium, stay or limitation of creditors’ rights, interim or provisional supervision by a court or court appointee, winding-up or striking-off in relation to such Person or any part of their assets or undertaking, or any event analogous to any such events in any jurisdiction.
“Intellectual Property” means any intellectual property rights existing from time to time in a specified jurisdiction, including any rights associated with the following: (a) patents, patent applications, utility models, inventions, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof; (b) trademarks, service marks, trade dress, logos, trade names, corporate names, Internet domain names, indications and appellations of origin, rights under the law of passing off and equivalents, design rights and other source identifiers, together with the goodwill symbolized by any of the foregoing; (c) copyrightable works, copyrights (whether registered or unregistered), related rights and allied rights including moral rights, software, databases, topographies, performances and in recordings, as well as any works protected by design law or other intellectual or industrial property laws; (d) confidential and proprietary information, including trade secrets, know-how, ideas, inventions, systems, formulae, models and methodologies as well as the right in any jurisdiction to limit the use or disclosure thereof, (e) industrial designs; and (f) all applications and registrations for the foregoing.
“Investment” means the purchase by Volvo Sweden or Volvo Canada (as applicable) of the Purchased LP Units, the Purchased GP Shares and the Purchased JVCo Shares, as contemplated in this Agreement.
“Investment Closing” means the closing of the purchase of 450 LP Units, 450 GP Shares and 450 JVCo Shares by a member of Volvo’s Group as contemplated by Section 2.1.
“Investment Closing Date” means the date of the Investment Closing.
- 17 -
“Issued JVCo Shares” has the meaning set forth in Section 4.5(f).
“Issued LP Units” has the meaning set forth in Section 4.5(d).
“IT Systems” means all information technology and computer systems (including the hardware, software, databases, data communication lines, network and telecommunication equipment, internet-related information technology infrastructure, wide area network and other telecommunications or information technology equipment) relating to the transmission, storage, maintenance, processing or analysis of data in electronic format used in the conduct of the HPDI Business as currently conducted and to be transferred to the JV Group as part of the Transferred Assets and/ or to be acquired for use by the JV Group in accordance with the IT Transition Plan.
“IT Transition Plan” means the IT Carve-Out Roadmap and related transition plan schedules (in final form to be agreed pursuant to Section 6.6, based on the form located at document 7.Q.16 in folder 7.Q of the Data Room).
“JVCo” means HPDI Technology AB (company registration 559468-9696) a company limited by shares, established in accordance with the Swedish Companies Act (Sw. Aktiebolagslagen (SFS 2005:551)).
“JVCo Shareholders Agreement” or “JV SHA” means the shareholders agreement relating to JVCo in the form set out in Exhibit “C”.
“JVCo Shares” means the shares in the capital of JVCo.
“JV Group” means the Limited Partnership, the General Partner, JVCo and each of their respective Subsidiaries.
“Knowledge of Westport” means with respect to any matter the actual knowledge of [Redacted – confidential information], in each case with respect to the applicable matter after reasonable due inquiry.
“License Contracts” means all contracts, agreements, arrangements, engagements and orders for the license to, or authorization to use by, Westport Inc or any of the other HPDI Sellers of Intellectual Property in relation to the HPDI Business and remaining to be performed (in whole or in part) by any party to them but excluding any such contracts, engagements, agreements, arrangements or orders forming part of the Excluded Assets.
“License Agreement” has the meaning set forth in the Asset PA.
“Lien” means any lien, security interest, mortgage, pledge, charge, adverse claim, reversion, restriction, assignment, option, right to acquire or encumbrance of any kind.
“Limited Partnership” means HPDI Technology Limited Partnership, a limited partnership established under the laws of the Province of British Columbia.
“Long Stop Date” means, subject to Section 3.6(b), [Redacted – confidential information].
“Losses” has the meaning set forth in Section 7.1(a).
- 18 -
“LP Agreement” means the limited partnership agreement governing the Limited Partnership in the form set out in Exhibit “A”.
“LP Units” means limited partnership interests/units in the capital of the Limited Partnership.
“Management Accounts” has the meaning set forth in Section 4.11(c).
“Material Adverse Effect” means any event, circumstance, change or effect: (a) that is material and adverse to the business, assets, properties, liabilities, condition (financial or otherwise) or results of operations of: (i) the HPDI Business, taken as a whole; (ii) any member of the Westport Group engaged in the HPDI Business (to the extent such event, circumstance, change or effect is material to the HPDI Business); or (iii) the JV Group (taken as a whole); (b) that will, or would reasonably be expected to, prevent or impair the ability of the Westport Group to consummate the Investment or the Transferred Assets Closing; (c) that will, or would reasonably be expected to, prevent the JV Group from fulfilling the Initial Business Plan in a manner which will, or would, frustrate the overall intention of the Parties’ in preparing the Initial Business Plan; (d) that will, or would reasonably be expected to, have a negative effect that is not immaterial on the reputation of the Volvo Group as an investor in the JV Group or on the JV Group, provided, however, that for purposes of clauses (a) and (c) “Material Adverse Effect” shall not include any event, circumstance, change or effect to the extent occurring from and after the date of this Agreement and arising out of or resulting from: (i) any failure of Westport Inc to meet any projections or forecasts or any decrease in the market price of the Common Shares (it being understood and agreed that any event, circumstance, change or effect giving rise to such failure or decrease shall be taken into account in determining whether there has been a Material Adverse Effect); (ii) any changes in the European or global economy or capital, financial or securities markets generally, including changes in interest or exchange rates; (iii) any changes in the legal or regulatory conditions in the material geographic regions in which the HPDI Business operates, including as a result of any sanctions or prohibitions; (iv) the commencement, escalation or worsening of a war or armed hostilities or the occurrence of acts of terrorism or sabotage; (v) the reaction of customers of the HPDI Business to the public announcement of this Agreement or other transactions contemplated hereby; (vi) the taking of any action expressly required by, or the failure to take any action expressly prohibited by, this Agreement, or the taking of any action at the written request of Volvo Sweden; (vii) pandemics, earthquakes, hurricanes or other natural disasters; or (viii) changes in Applicable Law, GAAP or the interpretation or enforcement thereof, which in the case of each of clauses (ii), (iii), (iv), (vii) and (viii) do not disproportionately affect any HPDI Seller or the HPDI Business relative to other participants in the industry in which the HPDI Seller the HPDI Business operate or the markets for any of such party’s products or services in general.
- 19 -
“Material Contracts” means: (a) all of the contracts, agreements, leases or other instruments related to the HPDI Business to which Westport Inc or a HPDI Seller is a party or by which Westport Inc, the HPDI Sellers or their properties are bound, which involve prospective fixed and/or contingent payments or expenditures by or to Westport Inc or the HPDI Sellers related to the HPDI Business of more than [Redacted – commercially sensitive information], or that are outside of normal ordinary and usual requirements of the HPDI Business or are otherwise material to the HPDI Business; (b) all loans or advances to or from any Person, and all loan agreements, bank lines of credit agreements, indentures, mortgages, deeds of trust, pledge and security agreements, factoring agreements, conditional sales contracts, letters of credit or other debt instruments to which Westport Inc or any of the HPDI Sellers are a party and which relate to or otherwise impact the Transferred Assets or the HPDI Business; (c) any guarantees by Westport Inc or any of its HPDI Sellers for amounts [Redacted – commercially sensitive information] and which relate to the Transferred Assets or the HPDI Business; (d) all operating or capital leases for equipment which forms part of the Transferred Assets or which otherwise relate to the HPDI Business in an amount [Redacted – commercially sensitive information] to which Westport Inc or any of the HPDI Sellers is a party; (e) all material non-competition and similar agreements applicable to the HPDI Business to which Westport Inc or a HPDI Seller is a party, (f) all contracts for the employment of any executive officer who is also a HPDI Employee or who performs services for the HPDI Business; (g) all distributor and sales agency agreements to which Westport Inc or a HPDI Seller is a party relating to the HPDI Business involving a financial commitment in excess [Redacted – commercially sensitive information]; (h) all contracts by which any Intellectual Property that forms part of the Proprietary Assets is acquired, licensed, granted, assigned or otherwise made available to Westport Inc or any of the HPDI Sellers, excluding any “shrink-wrap,” “click-wrap” and commercially available SaaS and “off the shelf” software; (i) all contracts by which any Intellectual Property that forms part of the Proprietary Assets is sold, transferred, licensed, granted, assigned or otherwise made available to a third party by Westport Inc or any of the HPDI Sellers (except where such Intellectual Property is being licensed, for non-exclusive use and only in connection with the manufacture and/ or sale of parts or components containing such Intellectual Property in the ordinary course of business); (j) any collective bargaining or union agreements, contracts or commitments which apply to any HPDI Employee; and (k) the HPDI Contracts not falling within (a) to (i) above: (i) that contain a financial commitment by any of the parties to it in excess [Redacted – commercially sensitive information]; (ii) pursuant to which Westport Inc and/ or any of the HPDI Sellers has expended (or received) an amount in excess of [Redacted – commercially sensitive information] in the 12 months prior to the date of this Agreement; or (iii) that are supply agreements for goods or services which are required for the supply of HPDI components and are not easily replaceable by equivalent suppliers on equivalent terms.
“Material Employees” means the HPDI Employees who are referenced in document number 5.55.5 in the Data Room.
“Material Restriction” means any liability, restriction or obligation that materially restricts the freedom of: (a) any member of the JV Group to carry on the whole, or any material part of the HPDI Business; or (b) any member of the Volvo Group to carry on the whole, or any part of its business, in each case in any place and in such manner as it thinks fit, or restricts the freedom of any member of the JV Group or any member of the Volvo Group to provide or take goods and/or services to or from such persons or to or from such places, as it may from time to time see fit.
“Multiemployer Plan” means any “multiemployer plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code.
“Negotiation Period” has the meaning set forth in paragraph 1(d) in Schedule 1, Part 3.
“Net Cash” means Cash less Debt.
“Net Cash Statement” means the statement of Net Cash in the form set out in Schedule 1, Part 4 to be prepared and agreed by the Parties or, as applicable, determined in accordance with Schedule 1, Part 3.
“Net Profit” means for the applicable fiscal year, the aggregated profits of the JV Group earned in a fiscal year, calculated in accordance with Schedule 2 and as shown in the applicable Earn Out Accounts.
- 20 -
“New Supply Agreement” means the supply agreement in relation to HPDI products, comprised of the Price Agreement, Framework Agreement and Raw Material Agreement.
“Non-Disclosure Agreement” means the non-disclosure agreement entered into by Westport Inc and AB Volvo on 18 October 2022.
“Non-HPDI Licenses” means [Redacted – commercially sensitive information].
“Notice of Objection” has the meaning set forth in paragraph 1(c) in Schedule 1, Part 3.
“OEM” means a vehicle or engine original equipment manufacturer targeting on-road products or off-road products (including trucking, mine, marine, agricultural, construction and rail equipment) utilizing HPDI Systems.
“Order” means any order, judgment, ruling, injunction, assessment, award, decree or writ of any Governmental Entity.
“Organizational Documents” of a Person means, as applicable, the charter, certificate of incorporation, certificate of formation, articles of incorporation, bylaws, limited partnership agreement, limited liability company agreement or any similar organizational or governing document or instrument of a Person.
“Owned or Licensed Software” has the meaning set forth in Section 4.19(c).
“Party” and “Parties” have the meaning set forth in the Preamble to this Agreement.
“Patent Assignee” [Redacted – commercially sensitive information].
“PCMLA” has the meaning set forth in Section 5.2.
“Permit” means any license, permit, authorization, certificate of authority, qualification or similar document or authority that has been issued or granted by any Governmental Entity.
“Permitted Liens” means:
| (a) | the subsisting conditions, provisos, restrictions exceptions or reservations or other rights contained or reserved to the Crown in the original grant from the Crown; |
| (b) | registered or pending restrictive covenants and rights of way in favour of utilities and public authorities; |
| (c) | Liens for real property taxes (which term includes charges, rates and assessments, and other governmental charges or levies) or charges for electricity, power, gas, water and other services and utilities in connection with the relevant Property that (i) have accrued but are not yet due and owing, or (ii) if due and owing, are adjusted for pursuant to this Agreement; |
| (d) | easements, rights of way, restrictive covenants and servitudes and other similar rights in land granted to, reserved or taken by any Governmental Entity, transit authority or public or private utility supplier or any subdivision, development, servicing, site plan or other similar agreement with any Governmental Entity, transit authority or public or private utility supplier, which do not, individually or in the aggregate, detract from the value of or impair the use or marketability of any real property, and provided same have been complied with, in all material respects on the Investment Closing Date; |
- 21 -
| (e) | any rights of expropriation, access, use or any other right conferred or reserved by or in any statute of Canada or the Province of British Columbia; |
| (f) | the implied conditions and reservations in Section 23(2)(a), (b), (c) and (f) of the Land Title Act (British Columbia); |
| (g) | all legal notations, charges, liens and interests which appear on the title searches of the Properties; and |
| (h) | any other Liens expressly assumed or otherwise permitted in writing by Volvo Sweden. |
“Person” means any individual, sole proprietorship, partnership, corporation, limited liability company, joint venture, unincorporated society or association, trust or other legal entity or any Governmental Entity.
“PPA” has the meaning set forth in Section 2.1.
“Price Agreement” means the Price Agreement in the form set out at Exhibit “D”.
“Proceeding” means any action, suit, proceeding, claim, arbitration, mediation or investigation before any Governmental Entity or before any arbitrator or mediator or similar party, or any investigation or review by any Governmental Entity or similar party.
“Pro Forma Consent to Assignment” means the pro forma consent to assignment in respect of certain HPDI Contracts in the form set out at Exhibit “K”.
“Pro Forma IP Consent to Assignment” means the pro forma consent to assignment in respect of certain Intellectual Property in the form set out at Exhibit “L”.
“Properties” means the premises leased by a member of the Westport Group and used in relation to the HPDI Business, [Redacted – commercially sensitive information].
“Proprietary Assets” means: (a) any Intellectual Property related to the HPDI Business, created, owned or co-owned by Westport Inc or any other member of the Westport Group; and (b) any right of Westport Inc or any other member of the Westport Group to use or exploit any Intellectual Property related to the HPDI Business.
“PST” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“Purchase Price” has the meaning set forth in Section 2.1.
“Purchased GP Shares” has the meaning set forth in Section 2.1.
“Purchased JVCo Shares” has the meaning set forth in Section 2.1.
“Purchased LP Units” has the meaning set forth in Section 2.1.
“QST” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
- 22 -
“Qualifying Development Agreement” means [Redacted – commercially sensitive information].
“Qualifying OEM” [Redacted – commercially sensitive information].
“Quarter” means, in respect of a calendar year, the three month period ending on 31 March, 30 June, 30 September or 31 December (as applicable).
“Raw Material Agreement” means the Raw Material Agreement to be entered into between the relevant member(s) of the JV Group and [Redacted – commercially sensitive information] and to be agreed in accordance with Section 6.6.
“Release” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the environment or into or out of any property, including the movement of Hazardous Materials through or in the air, soil, surface water or groundwater or property and “Released” shall be interpreted accordingly.
“Relevant Competition Authority” means: (a) the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato); (b) the Swedish Competition Authority (Konkurrensverket); (c) the Polish Competition Authority (Urzad Ochrony Konkurencji I Konsumentów); (d) the Romanian Competition Authority (Consiliul Concurentei România); and (e) in case of referral pursuant to Article 4(5) EU Merger Regulation, the European Commission.
“Remedial Action” means any works required by a Governmental Entity acting in the proper exercise of its powers, duties and functions under Environmental Laws or required by the landlord pursuant to the terms of the Canadian Leases, in order to remove, remedy, clean up, abate, contain or ameliorate the effects of any contaminants (as defined in applicable Environmental Laws) or wastes that are existing on the Canadian Properties.
"Representatives" means the directors, officers, employees, agents, lawyers, accountants, consultants and financial advisors of a Party and other members of its Group.
“Review Period” has the meaning set forth in paragraph 1(c) in Schedule 1, Part 3.
“Sales Taxes” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“Sales Tax Receivable” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“Sanctions” means international economic sanctions or embargoes issued, administered, enforced or maintained by the Office of Foreign Assets Control of the US Department of the Treasury, the US Department of State, the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom, Global Affairs Canada, the Canada Border Services Agency, or the Department of Justice Canada, including any enabling legislation, regulation or executive order related thereto, and any similar sanctions Laws as may be enacted from time to time in the future by the United States, Canada, the European Union (and any of its member states), the United Kingdom or the United Nations Security Council, or any other legislative body of the United Nations or other relevant Governmental Entity.
“Satisfaction Date” means the date (not being later than the Long Stop Date) on which the last of the Conditions (other than those set out in Sections 3.2(a), 3.2(d), 3.2(h), 3.2(j), 3.2(k), 3.2(l) and 3.2(j), 3.3(a) and 3.3(c)) to be satisfied or waived is so satisfied or waived.
- 23 -
“Second Earn Out Amount” means Nine Million U.S. Dollars (US$9,000,000).
“Second Earn Out Condition” means: [Redacted – commercially sensitive information].
“Second Earn Out Qualifying OEM” means [Redacted – commercially sensitive information].
“Second [Redacted – confidential information] Earn Out Amount” means [Redacted – commercially sensitive information]
“Second [Redacted – confidential information] Earn Out Condition” means the sale and delivery of [Redacted – commercially sensitive information] to [Redacted – confidential information] by a member of the JV Group (following the Investment Closing) either alone or together with a member of the Westport Group (prior to the Investment Closing) within the calendar years 2024, 2025, 2026 and 2027.
“SEDAR+” means the System for Electronic Document Analysis and Retrieval established by the Canadian Securities Administrators.
“Serial Production” means launch of the relevant HPDI-related product for sale in the relevant market, such that the relevant HPDI-related product is freely available for purchase without restriction in such market.
“SOFR” means the Secured Overnight Financing Rate as calculated by the Federal Reserve Bank of New York.
“Standalone State” has the meaning set forth in Section 6.1(i).
“Sub-components Business” means the development, commercialization and sale of the Return To Tank (RTT) check valve, the IGM PRD and the Gas Supply Check Valve (HPDI 3.0 GRCA, planned SOP 2027), or any minor or immaterial derivatives thereof.
“Subsidiary” has the meaning ascribed thereto in the Securities Act (Alberta).
“Supplier Contracts” means all contracts, agreements, arrangements, engagements and orders for the sale or supply to Westport Inc or any of the HPDI Sellers of goods and/or services in relation to the HPDI Business and remaining to be performed (in whole or in part) by any party to them but excluding any contracts, engagements, agreements, arrangements or orders forming part of the Excluded Assets or relating to the HPDI Employees or any other employees of Westport Inc or the HPDI Sellers or the ownership or occupation of the Properties.
“Target Investment Closing Date” means the date which is: (a) the first calendar day of the calendar month after the calendar month in which the Satisfaction Date occurs, if there are five or more Business Days between the Satisfaction Date and that calendar day; or (b) the first calendar day of the second calendar month following the calendar month in which the Satisfaction Date occurs, if there are less than five Business Days between the Satisfaction Date and the first calendar day of the calendar month after the calendar month in which the Satisfaction Date occurs, or such other date as the Parties may mutually agree.
“Tax” or “Taxes” means all federal, provincial, state, territorial, local and other taxes, assessments, charges, duties, tariffs, deficiencies, fees, excises, premiums, imposts, levies or other governmental charges (including interest, fines, penalties or additions associated therewith), including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, employer health, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, goods and services, harmonized sales, value-added, alternative, estimated and all other taxes, and all employment insurance, health insurance and government pension plan premiums or contributions, of any kind for which a Person may have any liability imposed by any Governmental Entity, whether disputed or not, or payable: (a) pursuant to any tax sharing or tax indemnity arrangement or any other contract relating to sharing or payment of such tax, assessment, charge, duty, tariff, deficiency, fee, levy or other governmental charge; (b) or as a result of being a transferee or successor of another Person; or (c) as a result of being a member of an affiliated, consolidated, combined or unitary group (in each case together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties).
- 24 -
“Tax Act” means the Income Tax Act (Canada) and the Income Tax Application Rules (Canada).
“Tax Return” means any report, return (including any information return), statement, schedule, notice, form, declaration, claim for refund or other statement, document or information (including any schedule or attachment thereto or amendment thereof) required to be supplied to a Governmental Entity in connection with the determination, assessment, collection or payment of any Taxes or in connection with the administration, implementation or enforcement of or compliance with any Applicable Law relating to Taxes, including any estimated returns and reports of every kind, with respect to Taxes.
“Term Sheet” has the meaning set forth in the Recitals.
“Third Party” means any Person other than the Parties and their respective Affiliates.
“Third Party OEM” means an OEM which is not a Volvo OEM.
“Transaction Documents” means this Agreement, the Asset PA, the LP Agreement, the USA, the JV SHA, the Price Agreement, the Framework Agreement, the Raw Material Agreement, the Development Agreement Novation, the TSA, the Westport Inc Non-Compete, the Non-HPDI Licenses, the License Agreement and the Local Conveyances (as defined in the Asset PA).
“Transfer Taxes” means any transfer tax, stamp duty, capital duty, registration fee or duty, notarial fee or duty, stamp duty reserve tax, stamp duty land tax, real estate transfer tax and any similar Taxes (in each case together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties).
“Transfer Regulations” means: (a) for the member states of the European Union, the Acquired Rights Directive 2001/23/EC (as amended) (“ARD”) or any enactment of such directive under Applicable Laws; and (b) for non-member states of the European Union, those Applicable Laws which are substantially the same as, or have a similar effect to, the provisions of the ARD (if any) and in particular, for the United Kingdom, the Transfer of Undertakings (Protection of Employment) Regulations 2006.
“Transferred Assets” means the HPDI related assets of Westport Inc, or any of its Affiliates, to be transferred (including by way of sale, assignment, license, making available and/ or contribution, as appropriate) to the Limited Partnership, the JVCo or another member of the JV Group pursuant to the Asset PA, being those assets, rights and contracts described in Sections 2.1(a) – 2.1(o) and Section 2.3(b) of the Asset PA and which, for greater certainty, exclude the Excluded Assets and the Excluded Liabilities, but include the IT Systems.
- 25 -
“Transferred Assets Closing” means the closing of the transfer (including by way of sale, assignment and/ or contribution, as appropriate) of the Transferred Assets to the Limited Partnership, the JVCo or another member of the JV Group which shall occur on or shortly before the Target Investment Closing Date in accordance with the terms of the Asset PA and Carve Out Plan.
“Transferred Information” means any information about an identifiable individual (other than any information that is used for the purpose of communicating or facilitating communication with an individual in relation to their employment, business or profession) to be disclosed or conveyed to one party or any of its representatives or agents (a “Recipient”) by or on behalf of the other party (a “Disclosing Party”) as a result of or in connection with the Investment and includes all such personal information disclosed to the Recipient prior to the execution of this Agreement.
“Transitional Employee Indemnity” [Redacted – commercially sensitive information].
“Trapped Cash” means any cash which as at the Effective Time is not capable of being spent, distributed, loaned or released by a member of the JV Group from the jurisdiction in which it is situated without material deduction or withholding or additional cost, or which is not accessible in the manner described above within a period of two Business Days from the Effective Time including any cash securing rent deposits or any other cash held as collateral in respect of obligations of any other party.
“Trigger Event” means:
| (a) | in the case of the Initial Earn Out Condition, [Redacted – confidential information]; |
| (b) | in the case of the Second Earn Out Condition, [Redacted – confidential information]; |
| (c) | in the case of the [Redacted – confidential information] Earn Out Condition, [Redacted – commercially sensitive information]; |
| (d) | in the case of the Initial [Redacted – confidential information] Earn Out Condition, the date which is the last day of the relevant Quarter in which the [Redacted – commercially sensitive information] is sold and delivered to [Redacted – confidential information]; and |
| (e) | in the case of the Second [Redacted – confidential information] Earn Out Condition, the date which is the last day of the relevant Quarter in which the [Redacted – commercially sensitive information] is sold and delivered to [Redacted – confidential information]. |
“TSA” means the Transition Services Agreement among, inter alios, Westport Canada, Westport Fuel Systems Italia S.r.l., Westport Fuel Systems Netherlands B.V., Westport Power Services Inc., Westport Fuel Systems (US) Inc, the Limited Partnership, the JVCo and the General Partner to be agreed pursuant to Section 6.6 and in substantially the form attached as Exhibit “H”.
“TSX” means the Toronto Stock Exchange.
“Union” means any trade union or association that may qualify as a trade union, council of trade unions, employee bargaining agent or affiliated bargaining agent.
- 26 -
“Undisclosed Contracts” [Redacted – commercially sensitive information].
“USA” means the unanimous shareholders agreement between the General Partner and each of the shareholders of the General Partner, in the form attached as Exhibit “B”.
“VAT” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“VAT Adjustment Payment” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“VAT Adjustment Statement” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“VAT Percentage” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
“VAT Percentage Measurement Date” has the meaning set forth in paragraph 1 in Schedule 1, Part 1.
[Redacted – commercially sensitive information]
“Volvo Annual Required Payment Amount” means, in respect of each fiscal year of the Limited Partnership and the JVCo, an amount equal to the lesser of: (a) 45% of the Net Profit earned in such fiscal year; and (b) the remaining amount required to be paid by Volvo Sweden in respect of any Applicable Earn Out Amount in respect of which the relevant Earn Out Condition has been satisfied in order to have fully paid such Applicable Earn Out Amount, together with any interest accrued thereon pursuant to Section 2.3(b)(ii)(B).
“Volvo Canada” means Volvo HPDI Holding Inc., a corporation incorporated in Ontario, Canada with corporation number 1581874-5.
“Volvo Designees” means the three individuals designated by Volvo Sweden to serve on the Board of Directors of the General Partner and the Board of Directors of the JVCo.
“Volvo Group” means Volvo Sweden and its Affiliates (excluding any member of the JV Group).
“Volvo Indemnified Party” and “Volvo Indemnified Parties” have the meanings set forth in Section 7.1(a).
“Volvo Knowledge Individuals” means [Redacted – confidential information].
“Volvo Non-HPDI License” has the meaning set forth in Section 6.6(e).
“Volvo OEM” means the Swedish company AB Volvo and (a) any OEM in which AB Volvo owns, directly or indirectly, more than 50% of the share capital and/or controls, directly or indirectly, more than 50% of the votes and, (b) to the extent that the Volvo Group maintains at least the same ownership interest it holds as of the effective date of this Agreement, (i) [Redacted – confidential information], and (ii) [Redacted – confidential information], and (iii) any and all future joint ventures entered into by AB Volvo or an entity referred to in (a) above as agreed between the Parties.
“Volvo Sweden” has the meaning set forth in the Preamble to this Agreement.
[Redacted – commercially sensitive information].
- 27 -
[Redacted – confidential information]
“Westport Inc” has the meaning set forth in the Preamble to this Agreement.
“Westport Canada” has the meaning set forth in the Preamble to this Agreement.
“Westport Group” means Westport Inc and its Affiliates.
“Westport Inc Non-Compete” means the non-compete agreement given by Westport Inc in the form to be mutually agreed between Volvo Sweden and Westport Inc in accordance with Section 6.6(b)(v).
“Westport Indemnified Party” and “Westport Indemnified Parties” have the meanings set forth in Section 7.1(b).
“Westport Non-HPDI License” has the meaning set forth in Section 6.6(c).
“Working Capital” means the amount by which the Current Assets of the JV Group exceed (or is less than) the Current Liabilities of the JV Group as at the Effective Time.
“Working Capital Statement” means the statement of Working Capital in the form set out in in Schedule 1, Part 4 to be prepared and agreed by the Parties or, as applicable, determined in accordance with Schedule 1, Part 3.
“Working Capital Target” [Redacted – commercially sensitive information].
| 1.2 | Interpretation. |
For purposes of this Agreement: (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Articles, Sections, Schedules and Exhibits mean the Articles and Sections of, and Schedules and Exhibits attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
Article II
SALE AND PURCHASE
| 2.1 | Sale and Purchase of the Purchased LP Units, Purchased GP Shares and Purchased JVCo Shares. |
In reliance upon the representations, warranties and covenants of the Parties set forth herein, and subject to satisfaction of the Conditions, at the Investment Closing Date, Westport Inc shall procure the sale and delivery of, and Westport Canada shall sell and deliver, to Volvo Sweden (or the relevant member of the Volvo Group), and Volvo Sweden shall purchase (or procure the purchase of) from Westport Canada (or the relevant member of the Westport Group): (a) 450 LP Units, representing 45% of all of the issued and outstanding LP Units (the “Purchased LP Units”); (b) 450 common shares in the capital of the General Partner, representing 45% of all of the issued and outstanding shares in the capital of the General Partner (the “Purchased GP Shares”); and (c) 450 JVCo Shares (the “Purchased JVCo Shares”). The purchase price for the Purchased LP Units, the Purchased GP Shares and the Purchased JVCo Shares shall be an aggregate of Twenty Eight Million Three Hundred Fifty Thousand U.S. Dollars ($28,350,000) (the “Initial Purchase Price”) as adjusted and payable pursuant to Schedule 1 (the “Adjusted Initial Purchase Price”), plus, subject to satisfaction of the Earn Out Conditions, up to a further Forty Five Million U.S. Dollars ($45,000,000) (plus interest) as additional consideration, payable in the form of an earn out (the “Earn Out Purchase Price”) in accordance with the terms and conditions set out in Section 2.3 (such Adjusted Initial Purchase Price together with the Earn Out Purchase Price being the “Purchase Price”). The Adjusted Initial Purchase Price and the Earn Out Purchase Price shall be allocated as agreed between Westport Inc and Volvo Sweden following the date of this Agreement and prior to Investment Closing (such agreed allocation, the “PPA”). The Parties acknowledge and agree that if and when Investment Closing occurs, Volvo Sweden shall be credited an amount of US$400,000 against the payment of the Initial Purchase Price.
- 28 -
| 2.2 | Purchase of Transferred Assets. |
At the Transferred Assets Closing and as a condition to the Investment Closing, Westport Inc shall (and shall procure that the HPDI Sellers shall) sell, assign and transfer the Transferred Assets to the JV Group free and clear of all Liens, which sale, purchase, assignment and transfer shall be based on the Carve Out Plan, memorialized in and completed in accordance with the Asset PA (the “Carve Out”). The purchase price payable for the Transferred Assets shall be satisfied as set out in the Asset PA. At or immediately following the Transferred Assets Closing, Westport Canada shall be issued with: (i) 999 LP Units which, together with the one LP Unit already held by Westport Canada, shall represent all of the issued and outstanding LP Units as at the time of such issuance; and (ii) 999 JVCo Shares which, together with the JVCo Shares already held by Westport Canada, shall represent all of the issued and outstanding JVCo Shares as at the time of such issuance.
| 2.3 | Earn Out Purchase Price. |
(a) Earn Out Conditions.
| (i) | Initial Earn Out Condition. If the Initial Earn Out Condition has been met, Volvo Sweden and/ or Volvo Canada (as decided by Volvo Sweden) shall, subject to and in accordance with the terms set out in Section 2.3(b), pay to Westport Canada the Initial Earn Out Amount, together with any applicable interest that has accrued on the Initial Earn Out Amount in accordance with Section 2.3(b)(ii)(B). |
| (ii) | Second Earn Out Condition. If the Initial Earn Out Condition has been met and, subsequently, the Second Earn Out Condition has been met, Volvo Sweden and/ or Volvo Canada (as decided by Volvo Sweden) shall, subject to and in accordance with the terms set out in Section 2.3(b), pay to Westport Canada the Second Earn Out Amount, together with any applicable interest that has accrued on the Second Earn Out Amount in accordance with Section 2.3(b)(ii)(B). |
| (iii) | [Redacted – confidential information] Earn Out Condition. If the [Redacted – confidential information] Earn Out Condition has been met, then Volvo Sweden and/ or Volvo Canada (as decided by Volvo Sweden) shall, subject to and in accordance with the terms set out in Section 2.3(b), pay to Westport Canada the [Redacted – confidential information] Earn Out Amount, together with any applicable interest that has accrued on such [Redacted – confidential information] Earn Out Amount in accordance with Section 2.3(b)(ii)(B). |
- 29 -
| (iv) | Initial [Redacted – confidential information] Earn Out Condition. If the Initial [Redacted – confidential information] Earn Out Condition has been met, then Volvo Sweden and/ or Volvo Canada (as decided by Volvo Sweden) shall, subject to and in accordance with the terms set out in Section 2.3(b), pay to Westport Canada the Initial [Redacted – confidential information] Earn Out Amount, together with any applicable interest that has accrued on such Initial [Redacted – confidential information] Earn Out Amount in accordance with Section 2.3(b)(ii)(B). |
| (v) | Second [Redacted – confidential information] Earn Out Condition. If the Second [Redacted – confidential information] Earn Out Condition has been met, then Volvo Sweden and/ or Volvo Canada (as decided by Volvo Sweden) shall, subject to and in accordance with the terms set out in Section 2.3(b), pay to Westport Canada the Second [Redacted – confidential information] Earn Out Amount, together with any applicable interest that has accrued the Second [Redacted – confidential information] Earn Out Amount in accordance with Section 2.3(b)(ii)(B). |
(b) Payment of Earn Out Purchase Price.
| (i) | Neither Volvo Sweden nor Volvo Canada shall be required to pay to Westport Canada any Applicable Earn Out Amount, or interest thereon, following the date on which the Volvo Annual Required Payment Amount (if any) referable to the Limited Partnership’s 2033 fiscal year and prior fiscal years has been paid to Westport Canada. For greater certainty, any Applicable Earn Out Amount which has been earned but has not become payable as a result of the aggregate Volvo Annual Required Payment Amount as of the 2033 fiscal year being insufficient shall cease to be payable at such date. |
| (ii) | Subject to Section 2.3(b)(i), following achievement of any of the Earn Out Conditions, the Applicable Earn Out Amount(s) shall be payable as follows: |
| (A) | Volvo Sweden and/ or Volvo Canada (as decided by Volvo Sweden) shall pay to Westport Inc by wire transfer, within 35 Business Days following determination of the Earn Out Statement for the applicable fiscal year, such portion of the Applicable Earn Out Amount(s) as is equal to the Volvo Annual Required Payment Amount; and |
| (B) | interest shall accrue on any unpaid portion of an Applicable Earn Out Amount at [Redacted – confidential information] from the date of the relevant Trigger Event until the payment of such portion of the Applicable Earn Out Amount. For greater clarity, no interest will be payable on any Applicable Earn Out Amount which has ceased to be payable pursuant to Section 2.3(b)(i). |
| (c) | Acknowledgement of Payee. The Parties acknowledge and agree that the Earn Out Purchase Price shall be an amount due and owing by Volvo Sweden and/ or Volvo Canada (as applicable) to Westport Canada and shall not be paid to Westport Canada through any re-allocation of Volvo Sweden’s or Volvo Canada’s share of the Net Profit of the Limited Partnership or through any re-allocation of distributions payable by JVCo to Volvo Sweden or Volvo Canada. |
- 30 -
| (d) | Preparation of Earn Out Accounts. |
| (i) | Westport Canada shall, as soon as reasonably practicable following the end of each applicable fiscal year, prepare and deliver to Volvo Sweden a draft of the Earn Out Accounts and the Earn Out Statement, in each case prepared in accordance with the Earn Out Accounting Instructions and including reasonable detail to support the figures therein. Westport Canada and Volvo Sweden shall procure that Westport Canada (and its respective agents and advisors) is permitted to access such books and records of the JV Group as it may reasonably require for the purpose of preparing the draft Earn Out Accounts and the Earn Out Statement. |
| (ii) | Subject to Section 2.3(d)(v), at any time prior to the date falling 20 Business Days after Volvo Sweden’s receipt of the draft Earn Out Accounts and Earn Out Statement pursuant to Section 2.3(d)(i) (“Earn Out Review Period”), Volvo Sweden may serve a written notice of objection on Westport Canada stating that it disagrees with the draft Earn Out Accounts and/ or the Earn Out Statement and setting out in reasonable detail the adjustments, if any, which it proposes should be made to the draft Earn Out Accounts and Earn Out Statement in order for them to comply with the requirements of Schedule 2 (“Earn Out Notice of Objection”). If Volvo Sweden does not serve an Earn Out Notice of Objection within the Earn Out Review Period, the draft Earn Out Accounts and Earn Out Statement shall be deemed to be the final form of the Earn Out Accounts and Earn Out Statement. |
| (iii) | During the Earn Out Review Period, Westport Canada and Volvo Sweden shall procure that they (and their respective agents or advisors) are each permitted to access such books and records of the JV Group as they may reasonably require for the purpose of reviewing the draft Earn Out Accounts and Earn Out Statements. |
| (iv) | Westport Canada and Volvo Sweden shall attempt in good faith to agree to the draft Earn Out Accounts and Earn Out Statement as soon as possible and, in any event, within 20 Business Days (or in such longer period as they may agree) following Westport Canada’s receipt of an Earn Out Notice of Objection (“Earn Out Negotiation Period”). During the Earn Out Negotiation Period, Volvo Sweden or Westport Canada may, by written notice to the other, propose additional adjustments and notify the other of additional matters in dispute, but only if those additional adjustments or matters arise out of the Earn Out Notice of Objection which has been served. |
| (v) | If at the end of the Earn Out Negotiation Period, there are no matters remaining in dispute, Westport Canada shall finalize the draft Earn Out Accounts and Earn Out Statement by amending them to reflect the adjustments agreed by Volvo Sweden and Westport Canada during the Earn Out Negotiation Period and, within 10 Business Days following the end of the Earn Out Negotiation Period, deliver to Volvo Sweden the final form of the Earn Out Accounts and Earn Out Statement. |
- 31 -
| (vi) | If, at the end of the Earn Out Negotiation Period, any matters remain in dispute (the “Earn Out Disputed Matters”), either Volvo Sweden or Westport Canada may refer the Earn Out Disputed Matters to the Independent Accountant for determination and the provisions of paragraph 2 in Schedule 1, Part 3 shall apply. If no other adjustments have been agreed by Volvo Sweden and Westport Canada during the Earn Out Negotiation Period, the draft Earn Out Accounts and Earn Out Statement submitted pursuant to Section 2.3(d)(i) shall be deemed to be the final form of the Earn Out Accounts and Earn Out Statement. |
| (vii) | Volvo Sweden and Westport Canada shall act in good faith towards each other regarding the referral to the Independent Accountant. |
| (viii) | After agreement, or determination by the Independent Accountant, of the Earn Out Disputed Matters, Westport Canada shall finalize the draft Earn Out Accounts and Earn Out Statement by amending them in accordance with such agreement or determination and, within 10 Business Days following that agreement or determination, deliver to Volvo Sweden the final form of the Earn Out Accounts and Earn Out Statement. |
| 2.4 | Investment Closing. |
The Investment Closing shall take place virtually, at a time mutually agreed upon by the Parties on the Target Investment Closing Date, or at such other time and place as shall be mutually agreed to by the Parties. At the Investment Closing, Volvo Sweden shall pay the amount specified in Schedule 1, Part 1, Paragraph 2(b) to Westport Canada. Such payment shall be made by wire transfer of immediately available funds to the account designated by Westport Canada in writing and delivered at least five Business Days in advance of the Investment Closing to Volvo Sweden.
| 2.5 | Withholding Rights. |
Volvo Sweden shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Person such amounts as it is required to deduct and withhold with respect to the making of such payment under Applicable Law. If any withholding obligation may be avoided by any such Person by providing information or documentation, Volvo Sweden shall use commercially reasonable efforts to avoid such withholding obligation upon receipt of such information or documentation from such Person. To the extent that amounts are so withheld by Volvo Sweden and are paid to the applicable Governmental Entity or other applicable Person, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Article III
CONDITIONS TO THE INVESTMENT CLOSING
| 3.1 | Conditions to Each Party’s Obligations. |
The respective obligations of each Party to consummate the transactions described in Section 2.1 of this Agreement are subject to the satisfaction (or written waiver by both Parties), at or before the Investment Closing, of the following conditions:
| (a) | approval of and consent to completion of the transfer of the Transferred Assets, the Purchased LP Units, the Purchased GP Shares and the Purchased JVCo Shares and entry into the LP Agreement, the USA and the JV SHA by each Party to such agreement being given by each Relevant Competition Authority and each FDI Authority or otherwise confirmation being given by a Relevant Competition Authority or FDI Authority or confirmation from each Party’s respective legal counsel that such approval and consent is not required by Applicable Law; |
- 32 -
| (b) | entry [Redacted – commercially sensitive information] into the New Supply Agreement; |
| (c) | entry [Redacted – commercially sensitive information] into the Development Agreement Novation; and |
| (d) | entry by the relevant members of the JV Group and Westport Canada, Westport Fuel Systems Italia S.r.l., Westport Fuel Systems Netherlands B.V., Westport Power Services Inc and Westport Fuel Systems (US) Inc into the TSA. |
| 3.2 | Conditions to Obligations of Volvo Sweden at the Investment Closing. |
The obligation of Volvo Sweden to purchase the Purchased LP Units, Purchased GP Shares and Purchased JVCo Shares is subject to the satisfaction, (or written waiver by Volvo Sweden), at or before the Investment Closing, of the following conditions:
| (a) | Completion of Carve-Out. The satisfactory carve-out, contribution and effective transfer of the Transferred Assets to the JV Group in accordance with the terms of the Asset PA, the Carve Out Plan and the IT Transition Plan (in accordance with Section 2.2). |
| (b) | Third Party Security Consents and Releases. [Redacted – commercially sensitive information]. |
| (c) | Third Party Approvals. Approval of and consent to completion of, the transfer of the Transferred Assets, transfer of the Purchased LP Units, Purchased GP Shares and Purchased JVCo Shares and entry into the LP Agreement, the USA and the JV SHA by each Party being given by the Person described in Disclosure Schedule 3.2(c), each in the form of the Pro Forma Consent to Assignment or the Pro Forma IP Consent to Assignment (as applicable) or evidence of notice of assignment being given by the relevant HPDI Seller in respect of the contracts described in Disclosure Schedule 3.2(c) as requiring notification, rather than consent. |
| (d) | Third Party Approvals and Consents Effective at Investment Closing. The approvals and consents referred to in Sections 3.2(b) and 3.2(c) remaining in full force and effect at Investment Closing. |
| (e) | HPDI Employees and HPDI Independent Contractors. Evidence in a form reasonably satisfactory to Volvo Sweden that: (i) [Redacted – commercially sensitive information] of HPDI Employees and HPDI Independent Contractors; and (ii) [Redacted – commercially sensitive information] of Material Employees, have or will accept or otherwise assume employment with the JV Group following the Transferred Assets Closing. |
| (f) | Entry into the Westport Inc Non-Compete. Entry by Westport Inc into the Westport Inc Non-Compete. |
- 33 -
| (g) | Election of Volvo Representatives to the Board of the General Partner and Board of JVCo. All necessary action having been taken by Westport Inc to cause each of the Volvo Designees to be appointed to the Board of Directors of the General Partner and Board of Directors of JVCo, effective at Investment Closing. |
| (h) | Representations and Warranties Correct. The representations and warranties of Westport Inc set forth in this Agreement that are qualified as to materiality are true and correct, and all other representations and warranties of Westport Inc set forth in this Agreement that are not so qualified are true and correct in all material respects, in each case as of the date of this Agreement and as of the Investment Closing Date, with the same effect as though made as of the date of this Agreement except that the accuracy of representations and warranties that by their terms speak as of a specified date will be determined as of such date. |
| (i) | Performance of Obligations. Each of Westport Inc and Westport Canada shall have performed or complied with, in each case (other than with regards to the obligation at Section 2.2) in all material respects, all agreements and covenants required to be performed or complied with by it under this Agreement at or prior to the Investment Closing. |
| (j) | Officer’s Certificate. Westport Inc shall have delivered to Volvo Sweden certificates, executed by a duly authorized officer of Westport Inc and a duly authorized officer of Westport Canada, respectively, dated as of the Investment Closing Date, certifying the authenticity and continued effectiveness of attached copies of Westport Inc’s and Westport Canada’s Articles of Incorporation, as amended, and Bylaws. |
| (k) | Compliance Certificate. Volvo Sweden shall have received certificates dated as of the Investment Closing Date and signed by an officer of Westport Inc on behalf of Westport Inc and Westport Canada on behalf of Westport Canada, stating that the conditions specified in Sections 3.2(h) and 3.2(i) have been satisfied. |
| (l) | Material Adverse Effect. Since the date hereof, no event shall have occurred that would have, or be reasonably likely to result in, a Material Adverse Effect. |
| 3.3 | Conditions to Obligations of Westport Inc at the Investment Closing. |
The obligations of Westport Inc to consummate the transactions described in Section 2.1 and Section 2.2 of this Agreement are subject to the satisfaction (or written waiver by Westport Inc), at or before the Investment Closing, of the following conditions:
| (a) | Representations and Warranties Correct. The representations and warranties of Volvo Sweden set forth in this Agreement that are qualified as to materiality are true and correct, and all other representations and warranties of Volvo Sweden set forth in this Agreement that are not so qualified are true and correct in all material respects, in each case as of the date of this Agreement and as of the Investment Closing Date, with the same effect as though made as of such date, except that the accuracy of representations and warranties that by their terms speak as of a specified date will be determined as of such date. |
| (b) | Performance of Obligations. Volvo Sweden shall have performed or complied with all agreements and covenants required to be performed or complied with by it under this Agreement at or prior to the Investment Closing, in all material respects. |
- 34 -
| (c) | Closing Certificate. Volvo Sweden shall have delivered to Westport Inc a certificate, executed by an authorized representative of Volvo Sweden, dated as of the Investment Closing Date, certifying that the conditions specified in Sections 3.3(a) and 3.3(b) have been satisfied. |
| 3.4 | Satisfaction of Conditions. |
| (a) | Subject to Sections 3.4(b) and 3.4(c), each of Westport Inc and Westport Canada covenants and agrees that it shall use its commercially reasonable efforts to ensure that the Conditions set out in Sections 3.1 and 3.2 (other than Section 3.2(a)) are satisfied as soon as possible after the date of this Agreement. |
| (b) | Notwithstanding the generality of Section 3.4(a), each of Westport Inc and Westport Canada covenants and agrees that it shall implement the IT Transition Plan and the Carve Out Plan (for the avoidance of doubt, including any purchase and license of IT Systems required pursuant thereto) to ensure that the Condition set out in Section 3.2(a) is satisfied prior to the Investment Closing. |
| (c) | Notwithstanding the generality of Section 3.4(a), each Party covenants and agrees that it will, in respect of the Condition set out in Section 3.1(a): |
| (i) | co-operate fully in all actions necessary and at all times use its commercially reasonable efforts to procure the satisfaction of such Condition. For the avoidance of doubt, such cooperation and efforts shall not require any Party to propose any remedies or divestments to, or accept any remedies or divestments imposed on it by, any Relevant Competition Authority; |
| (ii) | provide the other Parties on a timely basis with such assistance (including providing to a Party information belonging to it or which it has access to) as that Party may reasonably require in connection with the preparation of any filing or notification to, or response to requests for information from, any Relevant Competition Authority; |
| (iii) | keep the other Parties promptly informed of the progress of all relevant notifications or filings made to a Relevant Competition Authority; |
| (iv) | attend and if appropriate, request (in each case, only if agreed to by the other Parties) a hearing with any Relevant Competition Authority and withdraw from any such hearing attended by the other Parties as and when matters confidential to another Party arise; and |
| (v) | pay an equal share of any fees or costs payable to any Relevant Competition Authority in relation to the filings or notifications. |
| (d) | Volvo Sweden covenants and agrees that it shall use its commercially reasonable efforts to ensure that the Conditions set out in Section 3.1 are satisfied as soon as possible after the date of this Agreement. |
- 35 -
| 3.5 | Notification to the other Parties. |
Upon a Party becoming aware of any Condition being satisfied or of a matter, event or circumstance which will, or might, reasonably be expected to prevent a Condition from being satisfied on or before the Long Stop Date, that Party shall promptly notify the other Parties of that fact in writing and shall supply to the other Parties written evidence (if available) of the satisfaction of that Condition or a written explanation as to why that Condition has, or may have, become incapable of satisfaction or why its satisfaction is, or might be, delayed. Where such a notification is made, the Party making such notification shall continue to keep the other Parties promptly informed of any and all further matters, events or circumstances as they arise and become known relating to the satisfaction of the relevant Condition.
| 3.6 | If Conditions not satisfied or waived. |
| (a) | Subject to Section 3.6(b), in the event of any Condition (other than those set out in Sections 3.2(a), 3.2(d), 3.2(h), 3.2(j), 3.2(k), 3.2(l), 3.3(a) and 3.3(c)) not being satisfied or waived by the relevant Party on or before the Long Stop Date, this Agreement shall automatically terminate. |
| (b) | Volvo Sweden may, by written notice to Westport Inc, extend the Long Stop Date to such later date as it may specify, provided that such date is no later than [Redacted – confidential information], whereupon the provisions of this Agreement shall apply as if such later date were the Long Stop. |
| (c) | If any matter, event or circumstance comes to the attention of Volvo Sweden which would prevent a Condition being satisfied on or before the Long Stop Date, Volvo Sweden may, by written notice to Westport Inc and Westport Canada, elect to terminate this Agreement without liability on its part. |
Article IV
REPRESENTATIONS AND WARRANTIES OF WESTPORT INC
Westport Inc hereby represents and warrants to Volvo Sweden that the statements contained in the following paragraphs of this Article IV are all true and correct as of the date hereof and as of the Investment Closing Date (except to the extent made only as of a specified date, in which case as of such date):
| 4.1 | Organization and Good Standing; Certificate of Incorporation and Bylaws. |
| (a) | Westport Inc: (i) is a corporation duly organized, validly existing and in good standing under the laws of the Province of Alberta; and (ii) has all requisite corporate power and authority to carry on its business as now conducted and proposed to be conducted and to own, lease and operate its properties where such properties are now owned, leased or operated. |
| (b) | Each HPDI Seller is: (i) duly established, validly existing and in good standing under the laws of its jurisdiction of incorporation; and (ii) has all requisite corporate power and authority to carry on its business as now conducted and proposed to be conducted and to own, lease and operate its properties where such properties are now owned, leased or operated. |
- 36 -
| (c) | Westport Inc and each of the HPDI Sellers: (i) is duly qualified to conduct business as a foreign or extra-provincial corporation; and (ii) is in good standing and has obtained all necessary extra-provincial or foreign registrations required to operate as a foreign or extra-provincial corporation, in all jurisdictions where the properties owned, leased or operated by it are located or where its business is conducted. |
| (d) | The General Partner: (i) is a corporation duly organized, validly existing and in good standing under the laws of the Province of British Columbia; and (ii) has all requisite corporate power and authority to carry on its business as now conducted and proposed to be conducted. The General Partner is or will be by the Transferred Assets Closing: (x) duly qualified to conduct business as a foreign or extra-provincial corporation to carry on its business in all jurisdictions as now conducted and proposed to be conducted; and (y) in good standing and has obtained all necessary extra-provincial or foreign registrations required to operate as a foreign or extra-provincial corporation, in all jurisdictions where the properties owned, leased or operated by it (or will be transferred to it pursuant to the Asset PA) are located or where its business is (or will be) conducted. |
| (e) | The Limited Partnership: (i) is a limited partnership duly established, validly existing and in good standing under the laws of the Province of British Columbia; and (ii) has all requisite corporate power and authority to carry on its business as now conducted and proposed to be conducted. The Limited Partnership is or will be by the Transferred Assets Closing: (x) duly qualified to conduct business as a foreign or extra-provincial limited partnership to carry on its business as now conducted and proposed to be conducted; and (y) in good standing and has obtained, or will have obtained prior to the Investment Closing Date, all necessary extra-provincial or foreign registrations required to operate as a foreign or extra-provincial limited partnership, in all jurisdictions where the properties owned, leased or operated by it (or will be transferred to it pursuant to the Asset PA) are located or where its business is (or will be) conducted. |
| (f) | The JVCo: (i) is a corporation duly organized, validly existing and in good standing under the laws of Sweden; and (ii) has, or will have by the Transferred Assets Closing, all requisite corporate power and authority to carry on its business as now conducted and proposed to be conducted. The JVCo is or will be by the Transferred Assets Closing: (x) duly qualified to conduct and carry on its business as a corporation in all jurisdictions as now conducted and proposed to be conducted; and (y) in good standing and has obtained all necessary registrations required to operate as a corporation, in all jurisdictions where the properties owned, leased or operated by it (or will be transferred to it pursuant to the Asset PA) are located or where its business is (or will be) conducted. |
| (g) | Each member of the JV Group (other than the Limited Partnership, the General Partner and the JVCo) will, upon its incorporation and by the Investment Closing Date: (i) be duly established, validly existing and in good standing under the laws of its respective jurisdiction; (ii) have all requisite corporate power and authority to carry on its business as proposed to be conducted; and (iii) have obtained all necessary registrations to operate in all jurisdictions where the properties owned, leased or operated by it (or will be transferred to it pursuant to the Asset PA) will be located or where its business will be conducted. |
| (h) | No Insolvency Event has been commenced or applied for under any Applicable Law by Westport Inc, any of the HPDI Sellers or any member of the JV Group or, to the Knowledge of Westport, applied for against Westport Inc, any of the HPDI Sellers or any member of the JV Group by any Person under any Applicable Law or threatened in writing to be applied for by any Person, nor is Westport Inc, any of the HPDI Sellers or any member of the JV Group compelled under any Applicable Law to apply for the commencement of such proceedings. |
- 37 -
| 4.2 | Power. |
Westport Inc, each of the HPDI Sellers and each member of the JV Group has all requisite legal and corporate power to enter into, execute, deliver and perform their obligations under this Agreement and the other Transaction Documents to which they are a party. Assuming due execution and delivery by the other parties thereto, this Agreement is, and upon their execution and delivery, the Transaction Documents to which they are a party will be, valid and binding obligations of Westport Inc, each of the HPDI Sellers and each relevant member of the JV Group, enforceable in accordance with their terms, subject to: (i) Applicable Law relating to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws of general application, heretofore or hereafter enacted or in effect affecting creditors’ rights and remedies generally; and (ii) the exercise of judicial or administrative discretion in accordance with general equitable principles, particularly as to the availability of the remedy of specific performance and relief.
| 4.3 | Authorization. |
| (a) | Action. All corporate and legal action on the part of Westport Inc, each of the HPDI Sellers, each member of the JV Group, their respective officers, directors, shareholders and members necessary for the execution and delivery of this Agreement, the other Transaction Documents, the issuance of the LP Units and JVCo Shares pursuant to the Asset PA and Carve Out Plan, sale of the LP Units, the consummation of the Transferred Assets Closing and the performance of Westport Inc’s, each HPDI Seller’s, each member of the JV Group’s obligations hereunder and thereunder, has been taken or will have been taken as at the applicable closing date. |
| (b) | Valid Issuance. (i) the LP Units and the JVCo Shares when issued to Westport Canada in compliance with the Asset PA and the Carve Out Plan will be validly issued and delivered to Westport Canada; and (ii) the Purchased LP Units, the Purchased GP Shares and the Purchased JVCo Shares when transferred in compliance with the provisions of this Agreement will be delivered to Volvo Sweden (or Volvo Canada, as the case may be) free and clear of any Liens. |
| (c) | Non-contravention. None of the execution, delivery and performance of and compliance with this Agreement and the other Transaction Documents, nor the issuance of the LP Units, transfer of the Purchased LP Units, issuance of the JVCo Shares or transfer of the Purchased JVCo Shares or transfer of assets or equity interests pursuant to the Asset PA will result in or constitute any breach, default or violation of: (i) any agreement, contract, lease, license, instrument or commitment (oral or written) to which Westport Inc, a HPDI Seller or any member of the JV Group is a party or is bound; or (ii) any Applicable Law applicable to Westport Inc, a HPDI Seller, any member of the JV Group or their respective properties, including any rule imposed by the TSX or NASDAQ, or result in the creation of any Lien upon any of the properties or assets of Westport Inc, a HPDI Seller or any member of the JV Group (other than as contemplated by the Transaction Documents or in connection with the grant of a general security interest and/or pledge of LP Units, GP Shares and/or JVCo Shares in favour of [Redacted – confidential information] over the LP Units, the GP Shares and/or JVCo Shares registered to Westport Canada immediately following the Investment Closing). |
- 38 -
| 4.4 | Consents. |
Except for the consents described in Disclosure Schedule 4.16(b) and Schedules 4.5(a) and 4.5(b) to the Asset PA with respect to those consents required for the Transferred Assets Closing and the approval and consent of each Relevant Competition Authority and FDI Authority, no consent, approval, order or authorization of, or designation, registration, declaration or filing with, any federal, state, local or provincial or other Governmental Entity or other Person by Westport Inc, any of the HPDI Sellers or any member of the JV Group is required in connection with the execution, delivery and performance of this Agreement and the other Transaction Documents or the offer, sale or issuance of the LP Units, GP Shares or JVCo Shares, under Applicable Law.
| 4.5 | Capitalization. |
| (a) | The authorized capital of the General Partner consists of an unlimited number of common shares, of which 1,000 common shares have been issued (the “GP Shares”). The GP Shares have been validly issued and are fully paid or credited as fully paid. Westport Canada is the sole legal and beneficial owner of the GP Shares. |
| (b) | There is no Lien in relation to any of the GP Shares or unissued common shares in the capital of the General Partner. No Person has claimed to be entitled to a Lien in relation to any of the GP Shares or any unissued common share in the capital of the General Partner. |
| (c) | The rights, preferences, privileges and restrictions of the GP Shares are as stated in the General Partner’s Articles of Incorporation and as otherwise provided in the British Columbia Business Corporations Act. |
| (d) | As at the date hereof, one LP Unit is issued and outstanding and as at the Investment Closing Date 1,000 LP Units (the “Issued LP Units”) and no more shall be issued and outstanding. As at the Investment Closing Date, the Issued LP Units will have been validly issued and Westport Canada will be the sole legal and beneficial owners of the Issued LP Units. |
| (e) | There is no Lien in relation to any of the LP Units and no Person has claimed to be entitled to a Lien in relation to any of the LP Units [Redacted – commercially sensitive information]. |
| (f) | The authorized capital of the JVCo consists of an unlimited number of common shares, of which one common share has been issued and as at the Investment Closing Date 1,000 common shares (the “Issued JVCo Shares”) and no more shall be issued. The Issued JVCo Shares will have been validly issued and will be fully paid or credited as fully paid. Westport Canada will be the sole legal and beneficial owner of the Issued JVCo Shares. |
| (g) | There is no Lien in relation to the Issued JVCo Shares or unissued shares in the capital of JVCo. No Person has claimed to be entitled to a Lien in relation to any of the Issued JVCo Shares or any unissued share in the capital of JVCo [Redacted – commercially sensitive information]. |
| (h) | The rights, preferences, privileges and restrictions of the Issued JVCo Shares are as stated in the JVCo’s Articles of Association and Certificate of Registration. |
- 39 -
| 4.6 | No activities by the JV Group. |
Other than as set out in the Carve Out Plan, the IT Transition Plan or the Asset PA, no member of the JV Group has, since its respective incorporation: (i) carried on any business at any time; (ii) acquired or disposed of any assets or liabilities; or (iii) entered into any agreement, arrangement, undertaking or commitment and no such actions will be undertaken prior to Investment Closing without the prior written consent of Volvo Sweden.
| 4.7 | Ownership of HPDI Sellers. |
Westport Inc owns: (i) directly 100% of the issued and outstanding equity securities of Westport Canada; (ii) indirectly 100% of the issued and outstanding equity shares of each of the remaining HPDI Sellers. The HPDI Sellers represent all of the members of the Westport Group who own Transferred Assets or otherwise undertake or carry on the HPDI Business.
| 4.8 | Changes. |
Since December 31, 2022, except as disclosed in Disclosure Schedule 4.8, there has not occurred or could reasonably be expected to occur any of the following:
| (a) | any Material Adverse Effect; |
| (b) | any resignation or termination of any officer of Westport Inc or any of the HPDI Sellers, other than with respect to [Redacted – commercially sensitive and personal privacy related information]; |
| (c) | any material change, except in the ordinary course of business, in the contingent obligations of Westport Inc or any of the HPDI Sellers by way of guaranty, endorsement, indemnity, warranty or other contractual arrangement; |
| (d) | any damage, destruction or loss, whether or not covered by insurance, that is material to the business or operations of the HPDI Business; |
| (e) | any waiver by Westport Inc or any of the HPDI Sellers of a material right or of a material debt owed to it and related to the HPDI Business; |
| (f) | to the Knowledge of Westport, any labor organization activity related to Westport Inc or any of the HPDI Sellers; |
| (g) | any sale, assignment or transfer of any Proprietary Asset, other than the non-exclusive license by Westport Inc or any of the HPDI Sellers of such Proprietary Assets to customers, suppliers or contract manufacturers in the ordinary course of business consistent with past practices on terms disclosed by Westport Inc to Volvo Sweden; |
| (h) | any change in any Material Contract to which Westport Inc or any of the HPDI Sellers is a party or by which it is bound; or |
| (i) | any arrangement or commitment by Westport Inc or any of the HPDI Sellers to do any of the acts described in this Section 4.8. |
- 40 -
| 4.9 | Compliance with Instruments and Applicable Law. |
| (a) | Neither Westport Inc nor any of the HPDI Sellers nor any member of the JV Group is in violation of any provisions of its respective Organizational Document, each as currently in effect. Westport Inc, each of the HPDI Sellers and each member of the JV Group, and each of their respective officers, agents and employees, has been and is in compliance in all respects with all Applicable Law in relation to the HPDI Business and to the Knowledge of Westport there are no facts or circumstances which could form the basis for any violation of such Applicable Law, except where failure to be in compliance does not have an adverse effect on the business or operations of the HPDI Business. Westport Inc and each of the HPDI Sellers has been and is currently in compliance in all respects with all Applicable Law relating to the importation or exportation of its products to any country and Sanctions in relation to the HPDI Business. |
| (b) | No investigation, pre-investigation, inquiry, review or enforcement action by, or on behalf of, any Governmental Entity in respect of Westport Inc or any of the HPDI Sellers in relation to the HPDI Business or any member of the JV Group is pending or in existence or has been conducted or threatened and no notice, production order or similar in respect of the same has been received and to the Knowledge of Westport there is no matter, event or circumstance which might give rise to the same. |
| (c) | All Permits and other authorizations granted by Governmental Entities held by Westport Inc and the HPDI Sellers and which are necessary to the HPDI Business are valid and sufficient for the HPDI Business presently carried on by them and all such Permits will transfer to a member of the JV Group pursuant to the Asset PA, except for the permit issued by the City of Vancouver in respect of the cooling tower operating permits and any other permits which are noted in the Asset PA, the schedules thereto, or in the Carve Out Plan as being the subject of a new permit application by a member of the JV Group, and none have been (or are likely to be) suspended, revoked, cancelled, restricted, amended, varied or not renewed (either as a result of the transaction contemplated by the Transaction Documents or otherwise). |
| 4.10 | Illegal Payments; Corruption. |
None of Westport Inc, any of the HPDI Sellers, nor, to the Knowledge of Westport, any director, officer, agent or employee of Westport Inc or any of the HPDI Sellers has: (i) paid, caused to be paid, agreed to pay, or offered, directly or indirectly, in connection with the HPDI Business, any payment or gift given to any Person (including but not limited to any Person acting in an official capacity for any Governmental Entity, to any political party or official thereof, or to any candidate for political office (each, a “Government Official”) with the purpose of (w) influencing any act or decision of such Government Official in his official capacity; (x) inducing such Government Official to perform or omit to perform any activity related to his legal duties; (y) securing any improper advantage; or (z) inducing such Government Official to influence or affect any act or decision of any Governmental Entity), in each case, in order to assist Westport Inc or any of the HPDI Sellers thereof in obtaining or retaining business for or with, or in directing business to, Westport Inc or any of the HPDI Sellers; (ii) made any illegal contribution to any political party or candidate; or (iii) intentionally established or maintained any unrecorded fund or asset or made any false entries on any books or records for any purpose. Without limiting any of the foregoing, neither Westport Inc nor any of the HPDI Sellers, nor, to the Knowledge of Westport, any director, officer, agent or employee of Westport Inc or any of the HPDI Sellers has taken any action or engaged in any practice or conduct that would: (a) violate or be contrary to any Applicable Law relating to bribery and corruption, including the Canadian Corruption of Foreign Public Officials Act or U.S. Foreign Corrupt Practices Act, nor has paid, caused to be paid, agreed to pay, or offered, directly or indirectly, in connection with the HPDI Business, any bribe, kickback, other similar illegal payment or gift, to any supplier or customer; and (b) constitute insider dealing under Applicable Law.
- 41 -
| 4.11 | Filings. |
| (a) | Compliance with Filing Requirements. Westport Inc, each HPDI Seller and each member of the JV Group has filed all reports, schedules, forms, statements, exhibits and other documents required to be filed by it with the securities commissions or other applicable provincial and national securities regulatory authorities, including the TSX and NASDAQ as applicable. As of the date hereof, any such filings, as they may have been subsequently amended by filings made by Westport Inc (or the relevant HPDI Seller or member of the JV Group) with applicable Canadian securities regulatory authorities, the Securities and Exchange Commission or the TSX or NASDAQ, as the case may be, prior to the date hereof, complied in all material respects with the requirements of Applicable Law relating to securities applicable to such filings. None of the filings, as of the date filed and as they may have been subsequently amended by filings made by Westport Inc (or the relevant HPDI Seller or member of the JV Group) with the applicable securities regulatory authority prior to the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither Westport Inc, any HPDI Seller or any member of the JV Group has made any confidential filings with the securities commissions or other applicable provincial and national securities regulatory authorities, including the TSX and NASDAQ. |
| (b) | Financial Information and Related Matters – Financial Statements. The financial statements of Westport Inc and each HPDI Seller comply in all material respects with applicable accounting requirements and the rules and regulations of the applicable securities regulators with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”) (or relevant applicable accounting standards in each jurisdiction), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial condition of Westport Inc and the members of the Westport Group that are consolidated as part of such financial statements as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. |
| (c) | Financial Information and Related Matters – Management Accounts. The management accounts at Disclosure Schedule 4.11(c) (the “Management Accounts”) fairly present, in all material respects, the financial results of the operation and net operating assets of the HPDI Business, as reported within the Westport Group. |
| 4.12 | Undisclosed Liabilities. |
Except for (i) those liabilities that are reflected or reserved for in the consolidated financial statements of Westport Inc and each of the HPDI Sellers for the nine months ended September 30, 2023, (ii) liabilities incurred since September 30, 2023 in the ordinary course of business consistent with past practice, and (iii) liabilities incurred pursuant to the transactions contemplated by this Agreement, Westport Inc and the HPDI Sellers do not have any material liabilities or obligations related to the HPDI Business of any nature whatsoever (whether accrued, absolute, contingent or otherwise).
- 42 -
| 4.13 | Brokers. |
No Person is entitled to any brokerage, finder’s or other fee or commission in connection with this Agreement based upon arrangements made by or on behalf of Westport Inc or any member of the Westport Group or any member of the JV Group.
| 4.14 | Litigation. |
There is no Proceeding pending or, to the Knowledge of Westport, threatened, by any Person and to the Knowledge of Westport, there is no investigation pending by any Governmental Entity, in each case against Westport Inc, any of the HPDI Sellers or any member of the JV Group in relation to the HPDI Business or which could impact the HPDI Business or the JV Group save as set out in Disclosure Schedule 4.14. Neither Westport Inc nor any of the HPDI Sellers in relation to the HPDI Business, nor any of the Properties, is subject to any outstanding judgment, order, writ, injunction or decree of any Governmental Entity. Neither Westport Inc nor any of the HPDI Sellers are in default with respect to any judgment, order or decree of any Governmental Entity in relation to the HPDI Business or which could impact the HPDI Business or the JV Group.
| 4.15 | Taxes. |
| (a) | Westport Inc and each of the HPDI Sellers has duly and timely filed with the appropriate Governmental Entity all Tax Returns required to be filed in respect of the HPDI Business, taking into account any extensions of time within which to file such Tax Returns, and all such Tax Returns were complete and correct in all material respects. Westport Inc and each of the HPDI Sellers has duly paid (or there has been paid on their behalf), or made adequate provisions for, all Taxes required to be paid by them in relation to the HPDI Business (whether or not shown on any Tax Return). |
| (b) | Except as set out at Disclosure Schedule 4.15(b): (i) There are no audits or other Proceedings pending or to the Knowledge of Westport, threatened against Westport Inc or any of the HPDI Sellers with regard to any Taxes or Tax Returns of Westport Inc or any of the HPDI Sellers in relation to the HPDI Business, nor are there any investigations by or matters under discussion with any Governmental Entity relating to Taxes in relation to the HPDI Business; (ii) no deficiency for Taxes of Westport Inc or any of the HPDI Sellers in relation to the HPDI Business has been claimed, proposed or assessed in writing or, to the Knowledge of Westport, threatened, by any Governmental Entity, which deficiency has not yet been settled; and (iii) none of Westport Inc nor any of the HPDI Sellers has waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to any Tax assessment or deficiency for any tax period in relation to the HPDI Business. |
| (c) | None of the transactions described in Section 2.2 of this Agreement are a “reportable transaction”, within the meaning of section 237.3 of the Tax Act, or a “notifiable transaction”, within the meaning of section 237.4 of the Tax Act. |
- 43 -
| (d) | Each of Westport Inc and, if required by Applicable Law, the HPDI Sellers are duly registered under subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to the goods and services tax and harmonized sales tax [Redacted – confidential information]. |
| (e) | Neither Westport Inc nor any of the HPDI Sellers has requested, has received or is subject to any written ruling of a Governmental Entity or has entered into any written agreement with a Governmental Entity with respect to any Taxes in relation to the HPDI Business. |
| (f) | Each of Westport Inc and the HPDI Sellers has duly and timely collected all amounts on account of any sales or transfer or similar Taxes, including value added, goods and services, harmonized sales and provincial or territorial sales Taxes, required by Applicable Law to be collected by it and has duly and timely remitted to the appropriate Governmental Entities any such amounts required by Applicable Law to be remitted by it in relation to the HPDI Business. |
| (g) | Each of Westport Inc and the HPDI Sellers has duly and timely withheld from each payment made or deemed made by it in relation to the HPDI Business all Taxes and other deductions required under any Applicable Law to be withheld by it (including Taxes and other amounts required to be withheld by it in respect of any amount paid or credited by it to or for the account or benefit of any Person, including any employees, officers or directors and any non-resident Person) and has duly and timely remitted all such Taxes and other amounts to the appropriate Governmental Entities. |
| (h) | There are no Liens for Taxes upon, pending against or threatened against any of the Transferred Assets other than Permitted Liens. |
| (i) | Neither Westport Inc nor any of the HPDI Sellers have acquired property or services from or disposed of property or provided services to a Person with whom it does not deal at arm’s length (for purposes of the Tax Act) for an amount that is other than the fair market value of such property or services, and has not been deemed to have done so for purposes of any Applicable Law in respect of Taxes, in circumstances that could give rise to liability for the Limited Partnership, the JVCo, the General Partner or any other member of the JV Group (including any liability under subsection 160(1) of the Tax Act or any analogous provision of any Applicable Law of any jurisdiction) or create any lien or security over the Transferred Assets. The transfer of the Transferred Assets will not give rise to liability to any member of the JV Group under subsection 160(1) of the Tax Act or any analogous provision of any Applicable Law of any jurisdiction. |
| (j) | Each of Westport Inc and the HPDI Sellers is and has at all times been resident for Tax purposes solely in its jurisdiction of incorporation or formation, and no claim has been made by any Governmental Entity in a jurisdiction where Westport Inc or an HPDI Seller does not file Tax Returns that Westport Inc or such HPDI Seller is or may be subject to taxation by, or required to file any Tax Return in, that jurisdiction, and neither Westport Inc nor any HPDI Seller has a taxable presence or nexus other than in the jurisdictions in which it currently files Tax Returns. |
| (k) | No member of the JV Group is a party to, or bound by, any Tax indemnity, Tax sharing or Tax allocation agreement or arrangement or is liable for the Taxes of any other Person as a transferee or successor, by contract or Law, or otherwise. |
- 44 -
| (l) | No member of the JV Group will be required to include any item of income in, or exclude any item of deduction from, taxable income for any period ending after the Investment Closing Date as a result of an action taken on or prior to the Investment Closing Date, including any (i) change in, or use of an improper, method of accounting during a period ending on or prior to the Investment Closing Date, (ii) sale or other disposition made on or prior to the Investment Closing Date, (iii) agreement with any Governmental Entity entered into on or prior to the Investment Closing Date, (iv) prepaid amount received on or prior to the Investment Closing Date, (v) Tax election made on or prior to the Investment Closing Date, or (vi) transaction with a member of the Westport Group occurring on or prior to the Investment Closing Date. |
| (m) | Neither Westport Inc nor Westport Canada are non-residents of Canada within the meaning of the Tax Act. None of the Transferred Assets transferred pursuant to the Asset PA (other than Transferred Assets transferred by Westport Inc or Westport Canada) constitute “taxable Canadian property” within the meaning of the Tax Act. |
| 4.16 | Contractual Matters. |
| (a) | Westport Inc has provided Volvo Sweden with copies of each Material Contract, together with each HPDI Contract (except, in each case, the Undisclosed Contracts), summaries of the Undisclosed Contracts and details of any arrangements that are of material importance to the HPDI Business. |
| (b) | Disclosure Schedule 4.16(b) constitutes a correct and complete list of all consents and approvals required for the Material Contracts to be transferred to the Limited Partnership (or another member of the JV Group) and the Limited Partnership (or other member of the JV Group) to assume the rights, benefits and remedies to the Material Contracts in place of Westport Inc or the respective HPDI Seller. |
| (c) | None of the HPDI Contracts are: (i) an agency, distributorship, franchise or management agreement or arrangement; (ii) an agreement or arrangement entered into other than in the ordinary course of business; or (iii) an agreement or arrangement in which any other member of the Westport Group, any other business unit of Westport Inc or officer or manager of Westport Inc or a HPDI Seller or any person connected with any such officer or manager is interested, either directly or indirectly. |
| (d) | There is no breach of, and there are no grounds for termination, rescission, avoidance or repudiation of, any HPDI Contract or any allegation of such and no HPDI Contract is invalid and no Person has alleged that it is so. |
| (e) | Except as disclosed in Disclosure Schedule 4.16(e), none of the HPDI Contracts or other contracts entered into by a member of the Westport Group include any exclusivity rights or otherwise restrict the JV Group’s right to operate or its scope of business in any location and none of the HPDI Contracts contain any restriction which would restrict any member of the Volvo Group from conducting any business in any location. |
| 4.17 | Environmental Matters. |
Westport Inc and the HPDI Sellers: (a) are in compliance with all, and have not violated any, applicable Environmental Laws in respect of the HPDI Business and/ or the Properties; (b) have not received any written communication in the past five (5) years from any Person alleging that either Westport Inc or any of the HPDI Sellers is in violation of or has any liability arising under any Environmental Laws; (c) have obtained all approvals and permits required under Environmental Laws in respect of the Properties and to conduct the HPDI Business as conducted as of the date of this Agreement and are in compliance with all terms and conditions of such approvals and permits; (d) are not subject to any pending or, to the Knowledge of Westport, threatened Proceeding pursuant to any Environmental Laws against itself or any Person whose liability Westport Inc or any of the HPDI Sellers have contractually assumed. Neither Westport Inc nor any of the HPDI Sellers has Released any Hazardous Materials in a manner that would reasonably be expected to result in liability to any of them or that would reasonably be expected to adversely affect any of their operations. To the Knowledge of Westport, no Hazardous Materials have been treated on or are now stored on, or are present at, under, in or affecting, and there has been no spill, discharge, leak, emission, ejection, escape, dumping, or any release or threatened release of any kind, of any Hazardous Materials from, on, in or under any of the Properties or into the environment, or at any location to which Hazardous Materials have been sent for re-use or recycling or for treatment, storage or disposal, except releases permitted or otherwise authorized by Environmental Laws.
- 45 -
| 4.18 | Intellectual Property. |
| (a) | Disclosure Schedule 4.18(a) constitutes a correct and complete list of all Intellectual Property registrations and applications for registration that form part of the Proprietary Assets. Except as set forth on Disclosure Schedule 4.18(a), Westport Inc or the HPDI Seller indicated in Disclosure Schedule 4.18(a) as the owner of an Intellectual Property registration or application is the sole legal and beneficial owner of each such registration and application for Intellectual Property. Westport Inc or the relevant HPDI Seller, as the case may be, has the full and unencumbered right to use and license any such Intellectual Property and to transfer the ownership (or co-ownership) interest in such Intellectual Property to the Limited Partnership (or another member of the JV Group). Where any Intellectual Property is indicated in Disclosure Schedule 4.18(a) to be co-owned by Westport Inc or an HPDI Seller with a third party, legal and beneficial ownership of that Intellectual Property is as indicated, and Westport Inc or that HPDI Seller is the sole legal and beneficial owner of its co-ownership interest in that Intellectual Property. Except as set forth on Disclosure Schedule 4.18(a), no third party and no Affiliate of Westport Inc has a right to restrict Westport Inc, the relevant HPDI Seller or the member of the JV Group acquiring such Intellectual Property to use or license any such Intellectual Property, or to restrict Westport Inc’s or the relevant HPDI Seller’s ability to transfer such Intellectual Property (or its co-ownership interest therein). Except as set forth on Disclosure Schedule 4.18(a), each such item listed (or that should be listed) in Disclosure Schedule 4.18(a) is free from any Liens, subsisting, valid, enforceable, in good standing and not subject to Proceedings or, to the Knowledge of Westport, threatened Proceedings to challenge, expunge, oppose, cancel or invalidate any such registrations or applications. |
| (b) | Disclosure Schedule 4.18(b) constitutes a correct and complete list of all non-registered Intellectual Property that form part of the Proprietary Assets and are material to the HPDI Business. Except as set forth on Disclosure Schedule 4.18(b), Westport Inc or the HPDI Seller indicated in Disclosure Schedule 4.18(b) as the owner of an Intellectual Property is the sole legal and beneficial owner of each such Intellectual Property. Westport Inc or the relevant HPDI Seller, as the case may be, has the full and unencumbered right to use and license any such Intellectual Property and to transfer the ownership (or co-ownership) interest in such Intellectual Property to the Limited Partnership (or another member of the JV Group). Where any Intellectual Property is indicated in Disclosure Schedule 4.18(b) to be co-owned by Westport Inc or an HPDI Seller with a third party, legal and beneficial ownership of that Intellectual Property is as indicated, and Westport Inc or that HPDI Seller is the sole legal and beneficial owner of its co-ownership interest in that Intellectual Property. Except as set forth on Disclosure Schedule 4.18(b), no third party and no Affiliate of Westport Inc has a right to restrict Westport Inc, the relevant HPDI Seller or the member of the JV Group acquiring such Intellectual Property to use or license any such Intellectual Property, or to restrict Westport Inc’s or the relevant HPDI Seller’s ability to transfer such Intellectual Property (or its co-ownership interest therein). Except as otherwise indicated in Disclosure Schedule 4.18(b), each such item listed (or that should be listed) in Disclosure Schedule 4.18(b) is free from any Lien, subsisting, in good standing and not subject to Proceedings or, to the Knowledge of Westport, threatened Proceedings to challenge ownership of such Intellectual Property. |
- 46 -
| (c) | Disclosure Schedule 4.18(c) constitutes a correct and complete list of all licenses relating to Intellectual Property that form part of the Transferred Assets, excluding any licenses for “shrink-wrap,” “click-wrap” and commercially available “off the shelf” software (whether as SaaS or on premise software). Except as set forth on Disclosure Schedule 4.18(c) Westport Inc or the relevant HPDI Seller who is the licensee of such license that is (or should be) listed on Disclosure Schedule 4.18(c) is the sole legal and beneficial owner of such license, and each license listed (or that should be listed) in Disclosure Schedule 4.18(c) is free from any Lien, subsisting and, to the Knowledge of Westport, in good standing, valid and enforceable, not subject to Proceedings or, to the Knowledge of Westport, threatened Proceedings to challenge, expunge, oppose, cancel or invalidate any such license. (i) Neither Westport Inc nor the relevant HPDI Seller who is the licensee of such license, nor, to the Knowledge of Westport, the respective other contract parties to any such licenses has done, or omitted to do, anything which constitutes, or might constitute, a material breach thereof; and (ii) there are no grounds on which any of these licenses can be terminated by the other contract party for cause or due to consummation of the Transaction Documents. |
| (d) | (i) Westport Inc and/or the HPDI Sellers own, co-own or are licensed or otherwise possess valid and sufficient rights to use all Intellectual Property that forms part of the HPDI Business and to conduct the HPDI Business as it is currently conducted and as contemplated to be conducted, and, except as set forth in Section 4.19(c), all such Intellectual Property (or valid and sufficient rights to use such Intellectual Property) will be transferred to the Limited Partnership (or another member of the JV Group) pursuant to the Transferred Assets Closing; (ii) the conduct of the HPDI Business as it is currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property of any third party; (iii) the conduct of the HPDI Business over the past six (6) years has not involved any infringement, misappropriation or violation of the Intellectual Property of any third party; (iv) there are no pending or threatened claims with respect to any of the Intellectual Property owned or co-owned or purported to be owned or co-owned by Westport Inc or any of the HPDI Sellers and related to the HPDI Business; (v) no third party is currently infringing, misappropriating or violating the Intellectual Property owned or co-owned or purported to be owned or co-owned by Westport Inc or any of the HPDI Sellers and related to the HPDI Business; (vi) there are no orders, writs, injunctions, or decrees to which Westport Inc or any of the HPDI Sellers is subject with respect to any Intellectual Property and related to the HPDI Business; (vii) the transactions contemplated by this Agreement and the Transaction Documents will not alter in a manner materially adverse to Westport Inc, any of the HPDI Sellers, the JV Group or the contemplated conduct of the HPDI Business, or materially impair Westport Inc’s or any of the HPDI Sellers’ rights in, or with respect to, any Intellectual Property described in Sections 4.18(a), 4.18(b) and 4.18(c) or the JV Group’s prospects of acquiring such rights; (viii) all licenses and consents to use Intellectual Property of third parties which are necessary to conduct the HPDI Business as currently conducted are transferable and/or sub-licensable to the JV Group, subject to the consents described in Disclosure Schedule 4.16(b) and schedules 4.5(a) and 4.5(b) to the Asset PA with respect to those consents required for the Transferred Assets Closing which will be obtained as agreed in this Agreement and in the Asset PA, are in full force and effect and no default or material noncompliance exists on the part of Westport Inc or the HPDI Sellers or on the part of other parties thereto; (ix) the Intellectual Property owned or co-owned, or purported to be owned or co-owned by Westport Inc or the HPDI Sellers and related to the HPDI Business does not include any Intellectual Property in respect of which any officers, employees, consultants, contractors of Westport Inc or the HPDI Sellers or other third parties have any rights and all current and former officers, employees, consultants, contractors of Westport Inc and the HPDI Sellers and other Persons contributing to such Intellectual Property have assigned in writing all of their rights in any such Intellectual Property and have waived in writing any moral rights therein (to the maximum extent permissible under Applicable Law); and (x) Westport Inc and the HPDI Sellers have taken commercially reasonable steps with current and former officers, employees, consultants, contractors of Westport Inc or any of the HPDI Sellers, and other relevant Persons to maintain the secrecy and confidentiality of all trade secrets that form part of the Transferred Assets. |
- 47 -
| (e) | Disclosure Schedule 4.18(e) constitutes a correct and complete list of all consents and approvals that are required from any third party for Westport Inc or the respective HPDI Seller to: (i) transfer to the Limited Partnership (or another member of the JV Group) its ownership or co-ownership interest in any part of the Proprietary Assets; or (ii) assign or sublicense, as applicable, to the Limited Partnership (or another member of the JV Group) its license to any material Intellectual Property related to the HPDI Business, which are required for the Limited Partnership (or another member of the JV Group) to retain ownership or co-ownership of the respective Proprietary Assets once the acquisition of partnership interests as contemplated by this Transaction has been perfected; and all such consents and approvals have been granted in writing, or will have been granted in writing on or prior to the Investment Closing Date. All conditions required to be fulfilled or occurred for any ownership or co-ownership interest in Proprietary Assets or licenses to be transferred to the Limited Partnership (or another member of the JV Group) or to use Intellectual Property for the HPDI Business as currently conducted have been fulfilled or have occurred, or will be fulfilled on or prior to the Investment Closing Date. |
| (f) | The Transferred Assets, together with the assets and services provided to the JV Group pursuant to the TSA and any software or hardware obtained by Westport Inc or another HPDI Seller on the JV Group’s behalf following the date hereof and prior to the Investment Closing Date, and any licenses provided to the JV Group pursuant to the Asset PA, constitute all of the rights, properties and assets required for the HPDI Business as conducted by Westport Inc and the HPDI Sellers and which are required to conduct the HPDI Business immediately following the Investment Closing and enable the JV Group to independently operate the HPDI Business as currently conducted with effect from the Investment Closing. |
| (g) | There are no unfulfilled obligations of Westport Inc or the HPDI Sellers towards any Employee, especially no remuneration or compensation obligations pursuant to Applicable Law in relation to employee inventions or employee creations and no such claims have been made against Westport Inc or an HPDI Seller. |
- 48 -
| (h) | (i) Neither Westport Inc nor any of the HPDI Sellers has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that could reasonably be expected to require or obligate Westport Inc or any of the HPDI Sellers to grant or offer to any other Person any license or right to any Intellectual Property owned or purported to be owned by Westport Inc or any of the HPDI Sellers and related to the HPDI Business, and (ii) [Redacted – commercially sensitive information], no funding, facilities or personnel of any Governmental Entity or any university, college, research institute or other educational institution has been or is being used, directly or indirectly, to create, in whole or in part, any such Intellectual Property, except for any such funding or use of facilities or personnel that does not result in such Governmental Entity or institution obtaining ownership rights, license rights or any other similar right, title or interest (including any “march in” rights) in or to such Intellectual Property; and (iii) no software has been used, directly or indirectly, to create, in whole or in part, any Intellectual Property owned or purported to be owned by Westport Inc or any of the HPDI Sellers and related to the HPDI Business that is under any “open source,” “copyleft,” or similar license that requires, as a condition of use, that such Intellectual Property: (A) be made available or distributed to the public, (B) be licensed for the purpose of preparing derivative works for no consideration, or (C) be redistributable at no license fee. |
| (i) | There are no Liens on any of the Intellectual Property owned or purported to be owned by Westport Inc or any of the HPDI Sellers and related to the HPDI Business. |
| (j) | There are no licenses in or to Intellectual Property owned or purported to be owned by Westport Inc or any of the HPDI Sellers that forms part of the Proprietary Assets except for any customary licenses required in order to allow suppliers or vendors to fulfill their obligations vis-à-vis the HPDI Business, including manufacturing parts based on Intellectual Property of Westport Inc, or those listed in Disclosure Schedule 4.18(j) (the “HPDI IP Licenses”), and none of these licenses forbid, impede or otherwise impact the use of such Intellectual Property as necessary and sufficient for the HPDI Business as currently conducted by Westport Inc or any of the HPDI Sellers and as proposed to be conducted by the JV Group. |
| (k) | None of the Intellectual Property contained on document 6.d.i.18 of the Data Room is used, intended for use or required for the HPDI Business. |
| (l) | To the Knowledge of Westport, neither the products of the HPDI Business as currently developed and/or produced or as currently planned to be developed and/or produced by the JV Group after the Investment Closing, nor the processes relating to production of such products which are currently used or are currently planned to be used by the JV Group after the Investment Closing, nor the operation and/or control of HPDI Systems as currently developed and/or produced or as currently planned to be developed and/or produced by the JV Group after the Investment Closing, infringe, misuse, or misappropriate, or result in the unlawful disclosure of, any Intellectual Property of any other Person. |
| (m) | Westport Inc and the HPDI Sellers have, in relation to the HPDI Business, complied in all respects with Applicable Law relating to data privacy and protection and none of Westport Inc or any of the HPDI Sellers have received, in relation to the HPDI Business, any notice, letter or complaint, or been the subject of any enquiry from any Governmental Entity with responsibility or authority in relation to data privacy matters, or any data subject, alleging non-compliance with Applicable Law relating to data privacy and to the Knowledge of Westport, there is no matter, event or circumstance which could give rise to such a notice, letter, complaint or enquiry. |
- 49 -
| 4.19 | Information Technology. |
| (a) | The IT Systems are: (i) in good repair and operating condition and sufficient to perform all information technology operations reasonably necessary to conduct the HPDI Business as currently conducted and which are required to conduct the HPDI Business immediately following the Investment Closing and enable the JV Group to independently operate the HPDI Business as currently conducted with effect from the Investment Closing; and (ii) to the Knowledge of Westport, do not contain any virus, spyware, malware, worm, Trojan horse, or other similar technology, disabling codes or instructions or other similar code or software routines or components. |
| (b) | Westport Inc and the other members of the Westport Group have not experienced any significant outage or disruption of the IT Systems since December 31, 2022. To the Knowledge of Westport, there have been no security breaches in the information technology systems of Westport Inc or any of the HPDI Sellers or the information technology systems of a third party to the extent used in the HPDI Business since December 31, 2022. |
| (c) | Part 1 of Disclosure Schedule 4.19(c) sets forth a true and complete list of all of the software that is Intellectual Property owned (or co-owned) by or licensed to Westport Inc or any of the HPDI Sellers and used to operate the HPDI Business (“Owned or Licensed Software”). All of the Owned or Licensed Software indicated on Part 2 of Disclosure Schedule 4.19(c) forms part of the Transferred Assets and the excluded Owned or Licensed Software indicated on Part 3 of Disclosure Schedule 4.19(c) shall form part of the Excluded Assets except as otherwise agreed by the Parties in connection with any amendments or changes to the Asset PA pursuant to Section 6.6(b)(iv). The Owned or Licensed Software: (i) is in satisfactory working order, operates in accordance with its specifications or documentation and all customer requirements, and is scalable to meet current and reasonably anticipated capacity and legal and contractual obligations; (ii) has appropriate security, backups, disaster recovery arrangements, and hardware and software support and maintenance to minimize the risk of material error, breakdown, failure, data loss or security breaches occurring and to ensure that if such event does occur that it does not cause a material disruption to the HPDI Business, including the provision of the products and services to customers; (iii) is configured and maintained using industry standard practices in Canada to endeavor to prevent the effect of viruses; (iv) to the Knowledge of Westport, does not contain Trojan horses, spyware, adware, malware, time bomb, or other malicious code; and (v) has not suffered any material breakdown, failure, or security breach since December 31, 2022 that has caused material disruption or damage to the HPDI Business or was reportable to any Governmental Entity or Person; (vi) subject to the consents described in Disclosure Schedule 4.16(b) and schedules 4.5(a) and 4.5(b) to the Asset PA with respect to those consents required for the Transferred Assets Closing which will be obtained as agreed in this Agreement and in the Asset PA, Westport Inc or the respective HPDI Seller(s) is permitted to transfer each such Owned or Licensed Software, other than such Owned or Licensed Software reflected on Part 3 of Disclosure Schedule 4.19(c), to the Limited Partnership (or another member of the JV Group) pursuant to the Transferred Assets Closing; (vii) indicated on Part 2 of Disclosure Schedule 4.19(c) shall, together with any assets or services provided to the JV Group pursuant to the TSA and software or hardware obtained by Westport Inc or HPDI Seller on the JV Group’s behalf following the date of this Agreement and prior to the Investment Closing Date and any license provided to the JV Group by Westport Inc or a HPDI Seller pursuant to the Asset PA, be sufficient for the operation of the HPDI Business in the ordinary course by the JV Group with effect from the Investment Closing; and (viii) is not subject to any claim, allegation, or, to the knowledge of Westport, basis for any claim or allegation, that any part of it is infringing, violating, or misappropriating, invalid or unenforceable or that any of the respective HPDI Sellers’ rights with respect thereto are subject to claims or defenses that would impair or preclude enforcement of such rights, including misuse, laches, acquiescence, or statute of limitations, abandonment, or fraudulent registration. |
- 50 -
| 4.20 | Employees and Contractors. |
| (a) | Disclosure Schedule 4.20(a) sets forth a complete list of each HPDI Employee and HPDI Independent Contractor which indicates for each individual: (i) their position or title; (ii) the location of their employment; (iii) their start date; (iv) their cumulative length of service with their applicable employing entity; (v) their status as full-time, part-time or temporary; (vi) their hourly wage or annual salary; (vii) their entitlement to bonuses, incentive schemes, benefits, commissions and other compensation; (viii) the Employee Benefit Plan(s) in which the individual participates; (ix) their annual vacation entitlement, and reasonable expected accrued and unused vacation entitlement as of the Investment Closing Date; (x) their annual paid time off entitlement, and unused paid time off entitlement as of the Investment Closing Date; (x) an indication of any individual who is on leave of absence together with the reason for the leave, their last date of active service and their expected date of return to work; (xi) an indication of any individual who is party to a written employment or independent contractor agreement relating to the HPDI Business and (xii) an indication of any individual who is a member of a collective bargaining unit. |
| (b) | Westport Inc has provided Volvo Sweden with correct and complete copies of all employment agreements and independent contractor agreements for each HPDI Employee and HPDI Independent Contractor (save for in respect of those HPDI Employees employed by Westport Canada), as well as all handbooks and material policies that apply to the HPDI Employees. Each of the HPDI Employees employed by Westport Canada have entered into employment agreements on the same terms as the template agreements provided in Disclosure Schedule 4.20(b), with no variations to the terms thereto. |
| (c) | Westport Inc has provided Volvo Sweden with correct and complete copies of all work permits for any HPDI Employee or HPDI Independent Contractor whose ability to work or carry out their duties for the HPDI Business is subject to a work permit or similar government authorization. |
| (d) | Except as set out in Disclosure Schedule 4.20(d), there are no employment contracts between Westport Inc or any HPDI Seller and any HPDI Employee or HPDI Independent Contractor that are not terminable on the giving of reasonable notice in accordance with Applicable Law, nor are there any employment or other contracts providing for payments or other entitlements, contingent or otherwise, on or in connection with this Agreement. |
| (e) | None of the HPDI Employees or HPDI Independent Contractors are subject to any restrictions, including any non-competition agreement, which would prevent the HPDI Employee or HPDI Independent Contractor from entering into an employment relationship with a member of the JV Group or carrying on employment with a member of the JV Group in substantially the same capacity as the HPDI Employee or HPDI Independent Contractor carried on employment immediately prior to the Investment Closing Date. |
- 51 -
| (f) | No HPDI Employee or HPDI Independent Contractor has given or received notice terminating his employment or engagement (where that notice has not yet expired) and no HPDI Employee or HPDI Independent Contractor has threatened to terminate his employment or engagement. |
| (g) | Except as otherwise disclosed in Disclosure Schedule 4.20(g), all amounts due and owing or accrued due, but not yet owing, for all HPDI Employees or HPDI Independent Contractor compensation, including salary, wages, overtime, bonuses, commissions, vacation pay, sick days, other compensation payments, or benefits under the Employee Benefit Plans, including Westport Inc’s omnibus incentive plan providing for the issuance of equity-based compensation awards, have been paid in full or, if accrued, will be borne by Westport Inc. |
| (h) | There are no outstanding or unaccrued assessments, penalties, fines, liens, charges, surcharges, or other amounts due or owing in respect of any HPDI Employees or HPDI Independent Contractors pursuant to any Applicable Law relating to workers’ compensation. To the Knowledge of Westport, no audit of Westport Inc or any of the HPDI Sellers is currently being performed under any Applicable Law relating to workers’ compensation. |
| (i) | All orders and inspection reports received by Westport Inc or any HPDI Seller in the past two years under Applicable Law relating to occupational health and safety have been made available to Volvo Sweden. There are no outstanding orders issued under Applicable Law relating to occupational health and safety relating to the HPDI Employees, HPDI Independent Contractors, the Transferred Assets or the HPDI Business. |
| (j) | To the Knowledge of Westport, Westport Inc and each HPDI Seller is and has been in compliance with all terms and conditions of employment and all Applicable Law pertaining to employment, including employment standards, labour standards, wages, hours of work, overtime, human rights, pay equity, employment equity, pensions, occupational health and safety, immigration, workers’ compensation, income Tax withholding, payroll Taxes, remittances (including those under the Canada Pension Plan) or any other employment-related matter arising under Applicable Law, and there are no outstanding claims, complaints, investigations or orders under any such Applicable Law. |
| (k) | Westport Inc and the HPDI Sellers are not a party to or bound by, either directly or by operation of Applicable Law, any Collective Agreement in respect of the HPDI Employees or HPDI Independent Contractors, any voluntary recognition agreement or other contract with any Union, and Westport Inc and the HPDI Sellers are not engaged in any labour negotiation with any Union. Neither Westport Inc nor any of the HPDI Sellers have or are engaged in any unfair labour practice. No unfair labour practice complaint, certification application, grievance or arbitration proceeding is pending or, to the Knowledge of Westport, threatened against Westport Inc or any of the HPDI Sellers. |
| (l) | Except with respect to [Redacted – commercially sensitive information], there has never been any Union representing or purporting to represent any HPDI Employee or HPDI Independent Contractor, and, to the Knowledge of Westport, no Union or group of HPDI Employees or HPDI Independent Contractors is seeking or has sought to organize the HPDI Employees or HPDI Independent Contractors for the purpose of collective bargaining. No Union has applied to have Westport Inc or any of the HPDI Sellers declared a common or related employer under any Applicable Law relating to labour relations. |
- 52 -
| (m) | Within the last three (3) years, there has never been, nor is there, any threat of any labour strike, slowdown, work stoppage, lockout, work-to-rule, or other similar labour disruption or dispute affecting Westport Inc, the HPDI Sellers, any of the HPDI Employees or HPDI Independent Contractors and which did not, or would not, also have a similar effect on other businesses within the country in which any such labour disruptions occurred. |
| (n) | There are no and, during the two years ending on the date of this Agreement, there have not been any, claims, disputes, enquiries or investigations by, or relating to any HPDI Employee or HPDI Independent Contractor and, to the Knowledge of Westport, there is no matter, event or circumstance which could give rise to any such claim, dispute, enquiry or investigation. |
| 4.21 | Employee Benefit Plans. |
| (a) | There are no Employee Benefit Plans which are applicable to HPDI Independent Contractors other than Westport Inc’s omnibus plan providing for the issuance of equity-based compensation awards. |
| (b) | Westport Inc has provided Volvo Sweden with a true and complete list of each Employee Benefit Plan applicable to the HPDI Employees. Each such Employee Benefit Plan has been maintained, sponsored, administered, funded, reserved or contributed to in all material respects in accordance with its terms and Applicable Law. All employer and employee payments, contributions and premiums required to be remitted, paid to or in respect of each Employee Benefit Plan applicable to the HPDI Employees have been paid or remitted in a timely fashion or properly accrued and reflected in the most recent consolidated balance sheet prior to the date hereof in compliance with its terms and all Applicable Law and administrative practices and policies of any Governmental Entity. |
| (c) | Each Employee Benefit Plan applicable to the HPDI Employees that is intended to qualify under Section 401(a) of the Code has either received, or may rely upon, a favorable determination or opinion letter from the United States Internal Revenue Service as to its qualified status and, to the Knowledge of Westport, no event has occurred that could be reasonably expected to adversely affect the qualified status of any such Employee Benefit Plan. To the Knowledge of Westport, neither Westport Inc nor any of the HPDI Sellers has engaged in a nonexempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Employee Benefit Plan applicable to any HPDI Employees that could result in material liability to the HPDI Business, taken as a whole. Each Employee Benefit Plan maintained for employees located in Canada and engaged in the HPDI Business that is intended to qualify for tax-preferred or tax-exempt treatment has been duly registered or qualified in accordance with Applicable Law, and, to the Knowledge of Westport, no event has occurred with respect to any such Employee Benefit Plan that could reasonably be expected to result in the revocation of the registration of such Employee Benefit Plan or which could otherwise reasonably be expected to adversely affect the tax status of such Employee Benefit Plan. No act or omission has occurred and no condition exists that violates the material terms of an Employee Benefit Plan and subjects Westport Inc or any of the HPDI Sellers to any contractual indemnification or contribution obligation protecting any fiduciary, insurer or service provider with respect to any Employee Benefit Plan. |
- 53 -
| (d) | Other than set out in Disclosure Schedule 4.21(d), none of Westport Inc, any of the HPDI Sellers or any of their ERISA Affiliates, has or could reasonably be expected to have material liability in connection with: (i) an employee pension benefit plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code; (ii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a Multiemployer Plan; (iii) a “registered pension plan” as defined in subsection 248(1) of the Tax Act which contains a “defined benefit provision” as defined in subsection 147.1(1) of the Tax Act; (iv) any benefit plan maintained for Canadian employees engaged in the HPDI Business to which Westport Inc or the HPDI Sellers are required to contribute and which is not maintained or administered by Westport Inc or the HPDI Sellers; (v) a “multi-employer pension plan” as contemplated under Applicable Law relating to provincial pension benefits or “multi-employer plan” as defined under section 8500(1) of the regulations under the Tax Act; (vi) any self-insured or “administrative services only” employee welfare benefit plan; (vii) a “retirement compensation arrangement” or “salary deferral arrangement”, as each term is defined in subsection 248(1) of the Tax Act; (viii) an “employee life and health trust” as such term is defined in subsection 248(1) of the Tax Act and (ix) any plan or arrangement which provides post-employment retiree medical or welfare benefits, except as required by Applicable Law. |
| (e) | Neither Westport Inc nor any of the HPDI Sellers has any formal plan or has made any legally binding promise or commitment to create any additional benefit plans which would be considered to be an Employee Benefit Plan once created or to amend the terms of any Employee Benefit Plan to materially increase the cost of the benefits provided under any such Employee Benefit Plan. |
| (f) | No Proceeding with respect to the administration or the investment of the assets of any Employee Benefit Plan (other than routine claims for benefits) is pending or expressly threatened in writing, nor, to the Knowledge of Westport, have there been any inquiries, investigation, examination or audit by any Governmental Entity against or involving any Employee Benefit Plan. |
| (g) | Neither the execution of this Agreement, the Transferred Assets Closing nor the Investment Closing will: (i) accelerate the time of payment, vesting or funding or result in any payment of compensation or benefits to any current or former employee, officer, director or other service provider of Westport Inc or any of the HPDI Sellers; (ii) give rise to any payment or benefit by Westport Inc or any of the HPDI Sellers to any of their current or former employees or other service providers engaged in the HPDI Business; or (iii) result in any severance or other payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee, officer, director, consultant or other service provider of Westport Inc or any of the HPDI Sellers. |
| 4.22 | Properties. |
| (a) | Disclosure Schedule 4.22(a) contains a list of all leased real property used by Westport Inc or the HPDI Sellers in connection with the HPDI Business. All leases and other documents disclosed by Westport Inc about the Properties are true, accurate and complete in all material respects and the leases are the only agreements under which any person has any right to lease, use or occupy any portion of the Properties, none of which has been amended or further modified, except as set out in Disclosure Schedule 4.22(a). |
- 54 -
| (b) | Westport Inc and each of the HPDI Sellers, as the case may be, is the sole legal and beneficial owner of the leasehold interest to all of the Properties, has a good and marketable leasehold interest pursuant to valid and enforceable leases, free and clear of all encumbrances, other than Permitted Liens, in respect of the Properties. To the Knowledge of Westport, there is no Person in unlawful possession or occupation of, or who has or claims any rights or easements of any kind in respect of, any Property or any part of any Property, adverse to the estate, interest, right or title of the relevant HPDI Seller. |
| (c) | Other than Permitted Liens, there are no Liens registered that interfere with the use and occupation of the Properties. None of Westport Inc or the HPDI Sellers, as the case may be, are in default of its obligations under any Permitted Lien. |
| (d) | The rents and other payments reserved by each lease in respect of the Properties have not been paid in advance of the time for payment under the applicable lease other than in accordance with the terms of the respective lease, save as set out in Disclosure Schedule 4.22(d). |
| (e) | None of Westport Inc or the HPDI Sellers, as the case may be, are in default of its obligations under the applicable leases relating to the Properties and no written notice has been given by Westport Inc or the applicable HPDI Seller purporting to terminate or surrender such lease prior to the expiry of the applicable term under such lease. No Property is subject to the payment of any outgoings (except the usual operating expenses, rates, utility charges and taxes) and principal rent, insurance premiums and service charges and all outgoings have been paid when due and there are no disputes about any payments under the leases relating to the Properties. |
| (f) | Westport Inc and the HPDI Sellers are in possession of the Properties and have not further transferred, assigned, hypothecated, pledged, mortgaged, sublet or otherwise parted with possession of the Properties to another Person. |
| (g) | The Properties are accessible by public highways and serviced by public and/or private utilities that are necessary for the operation of the HPDI Business. |
| (h) | The improvements, systems and equipment constructed, installed or placed on the Properties are in compliance with all Applicable Law, including building codes and by-laws, in good operating condition and repair and adequate for the uses to which they are being put in connection with the HPDI Business. |
| (i) | The use of the Properties by Westport Inc and/ or the relevant HPDI Seller is in compliance with all Applicable Law and all necessary Permits and licences required to operate the HPDI Business or occupy the Properties, including, without limitation, zoning and land use by-laws and Westport Inc and the HPDI Sellers, as the case may be, possess all necessary licences and Permits to operate the HPDI Business from the Properties and is in compliance with the same. |
| (j) | Westport Inc has not received notice of any alteration, repair, improvement or other work has been ordered, directed or requested in writing to be done or performed to or in respect of the Properties by any local, municipal, provincial, or other competent authority, which alteration, repair, improvement or other work has not been completed, except as would not, individually or in the aggregate, have a material and adverse effect on the operation of the HPDI Business. |
- 55 -
| (k) | All accounts for work and services performed and materials placed or furnished upon or in respect of the Properties at the request of Westport Inc or the HPDI Sellers have been fully paid and satisfied, except for any such accounts that are not past due at the date hereof. |
| (l) | No part of the Properties has been taken or expropriated by any Governmental Entity or other competent authority nor has Westport Inc received any notice or proceeding in respect thereof been given or commenced. |
| (m) | Westport Inc and the HPDI Sellers are not indebted to any person, business, company or Governmental Entity which by operation of law or otherwise may constitute a Lien on the Properties or which could materially affect the right of Westport Inc, the HPDI Sellers or a member of the JV Group to lease and occupy the Properties and obtain revenue under the relevant leases. |
| (n) | Other than consents of the respective landlord to the leases, there are no third party consents necessary to transfer, assign and convey the leases in respect of the Properties to a member of the JV Group. |
| (o) | Westport Inc and the HPDI Sellers have not received written notice of any Proceeding pending or threatened against Westport Inc, or the HPDI Sellers or the Properties or the occupancy and use thereof for the HPDI Business before any Governmental Entity which could materially affect the right of Westport Inc, the HPDI Sellers or a member of the JV Group to lease and occupy the Properties. |
| 4.23 | Insurance. |
| (a) | Westport Inc and the HPDI Sellers are, and have at all material times, been adequately insured in relation to the HPDI Business (including the HPDI Employees, each Property and each other asset) against accident, damage, injury, third party loss, credit risk, and all other risks normally insured against by companies carrying on similar business to the HPDI Business. |
| (b) | No claims have been made, no claim is outstanding and, to the Knowledge of Westport Inc, no matter, event or circumstance exists which might give rise to a claim in respect of the HPDI Business under any of the applicable insurance policies. |
| 4.24 | Transferred Assets. |
| (a) | The Transferred Assets are legally and beneficially owned by Westport Inc and the HPDI Sellers, free from any Liens (other than those set out in Disclosure Schedule 4.24(a)). The Transferred Assets, together with the assets and services provided to the JV Group pursuant to the TSA and any software or hardware obtained by Westport or another HPDI Seller on the JV Group’s behalf following the date hereof and prior to the Investment Closing Date or after the Investment Closing Date as reflected in Schedule 2.3(b) of the Asset PA and any licenses provided to the JV Group pursuant to the Asset PA, represent all of the assets and Intellectual Property which have been developed for, are required for, or are used in, the HPDI Business. Except for those assets or services provided to the JV Group pursuant to the TSA and any software or hardware obtained on the JV Group’s behalf following the date hereof and prior to the Investment Closing Date and any licenses provided by Westport Inc or a HPDI Seller to the JV Group pursuant to the Asset PA, the Transferred Assets, taken as a whole, constitute all of the rights, properties and assets to enable the JV Group to independently operate the HPDI Business from Investment Closing in the same manner in which it is currently conducted. |
- 56 -
| (b) | Following the consummation of the Transferred Assets Closing: (i) the Limited Partnership shall have ownership of, or an appropriate license to utilize, any and all assets and Intellectual Property which relate in part to the HPDI Business and in part to any retained business of Westport Inc, with the exception of any excluded Owned or Licensed Software as indicated in Part 3 of Disclosure Schedule 4.19(c); and (ii) a JV Group member shall have obtained new licenses in replacement for the excluded Owned or Licensed Software as indicated in Schedule 2.3(b) of the Asset PA or otherwise provided pursuant to the Asset PA covering the use of such Owned or Licensed Software by any member of the JV Group that requires to use such license. |
| (c) | Except as otherwise agreed to in writing by Volvo Sweden, as at the Investment Closing the Transferred Assets will have been transferred to the applicable JV Group entity in accordance with the steps, terms and conditions of the Asset PA, the Carve Out Plan and the IT Transition Plan. |
Article V
REPRESENTATIONS AND WARRANTIES BY VOLVO SWEDEN
Volvo Sweden represents and warrants to Westport Inc as follows:
| 5.1 | Authority. |
Volvo Sweden is a limited liability company duly formed, validly existing and in good standing under the laws of Sweden. Volvo Sweden has the requisite legal right and power, as applicable, to enter into, execute, deliver and perform its obligations under this Agreement and the other Transaction Documents. Assuming due execution and delivery by the other Parties, this Agreement is, and upon their execution, the other Transaction Documents to which Volvo Sweden is a party will be, valid and binding obligations of Volvo Sweden, enforceable in accordance with their terms, subject to: (a) Applicable Law relating to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws of general application, heretofore or hereafter enacted or in effect affecting creditors’ rights and remedies generally; and (b) the exercise of judicial or administrative discretion in accordance with general equitable principles, particularly as to the availability of the remedy of specific performance and relief.
| 5.2 | Proceeds of Crime. |
The funds representing the Purchase Price advanced by Volvo Sweden hereunder do not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLA”). To the best of Volvo Sweden’s knowledge, none of the funds provided to pay the Purchase Price: (a) have been or will be derived from or related to any activity that is deemed criminal under the laws of Canada, the United States of America or Sweden; or (b) are being tendered on behalf of a Person that has not been identified to it.
- 57 -
Article VI
COVENANTS
| 6.1 | Westport Inc Covenants |
Westport Inc covenants and agrees that from and after the date hereof:
| (a) | Access. |
Until the Investment Closing Date, to the extent permitted by Applicable Law and not in contravention of the rights of third parties, Westport Inc shall permit representatives of Volvo Sweden and Volvo Canada to have reasonable access to the properties of Westport and its Affiliates which relate to or are used in the HPDI Business, to examine the corporate books and make copies or extracts therefrom or to discuss the affairs, finances and accounts of Westport Inc and its Affiliates relating to the HPDI Business with the principal officers and employees of Westport Inc upon request, all during normal business hours and subject to other reasonable restrictions by Westport Inc.
| (b) | Tax Law Compliance. |
Westport Inc shall pay all Transfer Taxes arising or paid as a result of or by reference to the sale, delivery or transfer by Westport Inc to Volvo Sweden and Volvo Canada of the Purchased LP Units, Purchased GP Shares and Purchased JVCo Shares.
| (c) | Stop-Orders. |
Westport Inc will advise Volvo Sweden promptly after it receives notice of issuance by any provincial securities commission, any state securities commission or any other regulatory authority of any cease trade order, stop order or of any order preventing or suspending Westport Canada’s ability to transfer the Purchased LP Units, Purchased GP Shares and/ or Purchased JVCo Shares.
| (d) | Market Regulations. |
Westport Inc shall notify the TSX and NASDAQ of, and make all necessary filings with provincial securities regulators, in accordance with their requirements, in connection with, the transactions contemplated by this Agreement, and shall take (and procure that Westport Canada takes) all other necessary action and proceedings as may be required and permitted by Applicable Law, for the legal and valid transfer of the Purchased LP Units and Purchased GP Shares to Volvo Canada and the Purchased JVCo Shares to Volvo Sweden, and promptly provide copies of all such notices and filings to Volvo Sweden.
| (e) | Reporting Requirements. |
Westport Inc will file with each provincial securities regulator in Canada all reports required to be filed pursuant to Applicable Law relating to securities on a timely basis taking into account any and all extensions granted or permitted by the applicable securities regulator, and refrain from terminating its status as a reporting issuer in each such province.
- 58 -
| (f) | HPDI IP Licenses. |
Westport Inc shall hold any monies, royalties or other benefits received by it (or another member of the Westport Group) under any HPDI IP Licenses as trustee for the Limited Partnership (or other relevant member of the JV Group) from the date of the Investment Closing and shall, as soon as reasonably practicable following receipt of the same, account to the Limited Partnership (or other relevant member of the JV Group) for all such monies, royalties or other benefits and pay or deliver such to the Limited Partnership (or other relevant member of the JV Group).
| (g) | Undisclosed Contract Terms. |
[Redacted – commercially sensitive information]
| (h) | Environmental Matters |
[Redacted – commercially sensitive information]
| (i) | Standalone Costs |
| (i) | Westport Inc. shall be responsible for financing any and all investments required to make the JV Group fully standalone (the “Standalone State”). Standalone State for this purpose shall be determined by the board of directors of the JVCo, acting reasonably, but shall require that: [Redacted – commercially sensitive information]. |
| (ii) | [Redacted – commercially sensitive information] |
| (iii) | [Redacted – commercially sensitive information] |
| 6.2 | Volvo Sweden Acknowledgments and Covenants |
Volvo Sweden acknowledges that:
| (a) | Westport Inc may in the future be required by law to disclose its name and other information relating to this Agreement and the transfer hereunder, on a confidential basis, pursuant to the PCMLA; and |
| (b) | Westport Inc may be required to disclose to securities commissions, stock exchanges or other Governmental Entities the name and address of Volvo Sweden, the number and type of securities purchased and the purchase price for such securities, and, if required by applicable securities legislation, regulations, rules, policies or orders or by any securities commission, stock exchange or other regulatory authority, Volvo Sweden covenants that it will, in a timely manner, assist Westport Inc in obtaining such necessary consents and filing such reports, undertakings and other documents with respect to the transfer or distribution of the securities as may be required or requested by Westport Inc to enable Westport Inc to comply with Applicable Law relating to securities or the requirements of any securities commission, stock exchange or other regulatory authority, unless Volvo Sweden or any of its Affiliates is prohibited from so assisting Westport Inc by Applicable Law, or any of such Person’s Organizational Documents, or any material agreement to which Volvo Sweden or any of its Affiliates is party or by which any such Person is bound. |
- 59 -
| 6.3 | Interim Operating Covenant. |
Prior to the Investment Closing, Westport Inc and its Affiliates shall (within the confines of any Applicable Law relating to competition) operate the HPDI Business in the ordinary course, and, without the prior written consent of Volvo Sweden (which consent shall not be unreasonably withheld, conditioned or delayed), shall not, except as specifically contemplated in the IT Transition Plan or this Agreement:
| (a) | amend the Organizational Documents of Westport Inc, any HPDI Seller, the Limited Partnership, the General Partner or any member of the JV Group; |
| (b) | acquire by merger or consolidation, or merge or consolidate with or purchase all or substantially all of the assets of any corporation, partnership, association, joint venture or other organization which would form or become part of the HPDI Business; |
| (c) | sell, pledge, dispose of, encumber or license any of the Transferred Assets, the HPDI Business, the LP Units, the GP Shares or incur any Lien in the Limited Partnership or General Partner; |
| (d) | terminate the employment or engagement of any Material Employee, or any HPDI Employee or HPDI Independent Contractor [Redacted – commercially sensitive information], save for termination for cause, in the event of misconduct by the relevant individual, or in accordance with the expiration of the term in any HPDI Independent Contractor’s contract; |
| (e) | discontinue or cease to operate all, or a material part, of the HPDI Business; |
| (f) | in relation to any Transferred Asset or any other revenues, assets, properties, businesses or undertakings relating to the HPDI Business: |
| (i) | sell, grant a lease of, transfer, license or otherwise dispose of; or |
| (ii) | purchase, take a lease of (other than in respect of a market rate lease extension for the Canadian Leases for a period not exceeding two years), take a license of or otherwise acquire, |
such Transferred Asset, revenue, asset, property, business or undertaking.
| (g) | provide or enter into any contract to provide any service to or receive any service from any member of the JV Group (or which would be transferred to a member of the JV Group pursuant to the Asset PA) otherwise than at market value and on an arm’s length basis and as required for the purpose of the proper integration of the HPDI Business into the JV Group; |
| (h) | enter into any long-term, onerous, unusual or material agreement, arrangement or commitment with respect to which any member of the JV Group may become bound or otherwise liable (whether pursuant to the Transferred Assets Closing or otherwise); |
| (i) | amend or terminate a material agreement, arrangement or obligation relating to the HPDI Business or terminate any contract or commitment relating to the HPDI Business which is not capable of being terminated without material compensation; |
- 60 -
| (j) | [Redacted – commercially sensitive information]; |
| (k) | create, grant, issue or amend any Lien over any Transferred Asset; |
| (l) | in relation to each Property: |
| (i) | materially vary the terms on which it is held or make any material change to its use; |
| (ii) | take, or omit to take, any action which could prejudice the continuation of any material lease, tenancy or licence; |
| (iii) | apply for consent to do something requiring consent under a material lease, tenancy or licence; or |
| (iv) | agree a new rent or fee payable under a lease, tenancy or licence; |
| (m) | amend the terms and conditions of employment or engagement of an officer engaged in the HPDI Business or engage (or offer to employ or engage) or terminate (or give notice to terminate) the employment or engagement of any such person; |
| (n) | except in the ordinary course of the HPDI Business, amend the terms and conditions of employment of any HPDI employee (not being an officer); |
| (o) | except in the ordinary course of business, award to any of officer of the JV Group or HPDI Employee or HPDI Independent Contractor or any of its/their respective dependant(s) any discretionary bonuses or other discretionary benefits pursuant to the terms of any agreement, arrangement or understanding with any such officer or employee or provide any non-contractual benefit to any such officer or employee or to any of their respective dependants; |
| (p) | except as consistent with past practice or in accordance with the operation of Westport Inc’s equity and/or performance based compensation plans or required by Applicable Law: |
| (i) | establish or amend the terms of any Employee Benefit Plan or similar scheme or plan with respect to which a member of the JV Group may become bound or otherwise liable; |
| (ii) | discontinue (wholly or partly) an Employee Benefit Plan relating to the HPDI Employees; or |
| (iii) | communicate to a HPDI Employee a plan, proposal or an intention to establish an Employee Benefit Plan or similar scheme or plan; |
| (q) | take any step which would, or is likely to, materially affect or alter the relationship or any agreements relating to the HPDI Business or the HPDI Employees or HPDI Independent Contractors between any member of the Westport Group and any of its employees, trade unions or other representative bodies; |
| (r) | except in relation to debt collection in the ordinary course of business (not exceeding US$200,000), initiate, discontinue, compromise or settle any Proceedings or any demand or dispute or waive a right in relation to any Proceedings relating to or which otherwise impacts the HPDI Business; |
- 61 -
| (s) | enter into any discussions regarding any investigation (actual or threatened) by any Governmental Entity relating to the HPDI Business in any jurisdiction or settle any matter that is the subject of any such investigation; |
| (t) | assign, charge or otherwise dispose of any Intellectual Property that forms part of the Proprietary Assets; agree to terminate or permit the lapse of any licence, agreement or arrangement concerning, or, except in the ordinary course of the HPDI Business, grant, modify or enter into any licence concerning any Intellectual Property related to the HPDI Business; |
| (u) | take any action which is inconsistent with (or fail to take any action required to be taken by) the provisions of this Agreement, the USA, the LP Agreement, the JVCo SHA, the Asset PA, the TSA, the Carve Out Plan, the IT Transition Plan or the consummation of the Transferred Assets Closing or the Investment Agreement; |
| (v) | make or change any Tax election, adopt or change any Tax method of accounting, or enter into any agreement related to Taxes, which impacts a member of the JV Group; |
| (w) | do anything or omit to do anything, which would or could be a breach of any Permit related to the HPDI Business or the Properties; or |
| (x) | agree or commit to do any of the foregoing. |
| 6.4 | Preservation of the HPDI Business |
Prior to the Investment Closing, Westport Inc and its Affiliates shall (within the confines of any Applicable Law relating to competition):
| (a) | continue to carry on the HPDI Business in the ordinary course without any interruption and so as to maintain the same as a going concern and shall conduct or cause the HPDI Business to be conducted in a diligent and prudent manner; |
| (b) | incur and commit to capital expenditure and make proper provisions and allowances for such capital expenditure in the ordinary course of the HPDI Business consistent with past practice and in accordance with the capital expenditure forecast set out in the 2024 budget and forecast included within the Initial Business Plan; |
| (c) | conduct the HPDI Business in all material respects in accordance with all Applicable Law in any relevant jurisdiction; |
| (d) | use all reasonable endeavours to retain and preserve the goodwill of, and existing relationships with, all clients, customers and suppliers of the HPDI Business; |
| (e) | consult Volvo Sweden regularly and on no less than a weekly basis about the transfer of the HPDI Business to the JV Group and the conduct of the business of the JV Group; |
| (f) | protect, defend, enforce, maintain and renew each material Intellectual Property that forms part of the Proprietary Assets and continue any pending application for any such material Intellectual Property (and shall procure that each other member of the Westport Group shall do so); and |
- 62 -
| (g) | protect, defend, enforce, maintain and renew (as applicable) the Permits related to the HPDI Business or the Properties (including, for the avoidance of doubt, any required work permits of the HPDI Employees or HPDI Independent Contractors) and continue any pending application in respect of any Permits related to the HPDI Business or the Properties and not apply for, seek amendment to or otherwise vary the terms, provisions or conditions of, or seek to surrender, any Permit related to the HPDI Business or the Properties (except, in each case, as requested otherwise by Volvo Sweden). |
| 6.5 | HPDI Employees |
| (a) | Each Party shall give the other such assistance as it (or the JV Group) may reasonably require to comply with the Transfer Regulations in relation to the HPDI Employees. |
| (b) | Westport Canada shall: |
[Redacted – commercially sensitive information]
| 6.6 | Finalization of Transaction Documents |
| (a) | Following the date hereof, the Parties shall cooperate in good faith to discuss and agree to the final legal and operational structure for the joint venture in order to pursue the Business Objective in the most operationally efficient manner, having regard to legal and tax considerations. Such agreement will cover: |
| (i) | [Redacted – commercially sensitive information] |
| (ii) | [Redacted – commercially sensitive information] |
| (iii) | Contractual arrangements with third parties: the JV Group contracting parties to supply agreements, development agreements and customer agreements with third parties and related invoicing flows; |
| (iv) | Intra-group agreements: the nature and scope of agreements and invoicing flows between members of the JV Group, including transfer pricing considerations as determined by the commissioning of appropriate transfer pricing studies or otherwise; and |
| (v) | Consequential changes to this Agreement: any amendments required to this Agreement or any other Transaction Document [Redacted – commercially sensitive information] or any other matter referred to above, including, but not limited to: (i) considering whether any additional approvals of Governmental Authorities are required; and (ii) resulting changes to the definitions of “Business Day” and “JVCo” and the provisions of Section 2.1. |
| (b) | Following the date hereof and prior to Investment Closing, the Parties shall cooperate in good faith to finalize all matters indicated as outstanding or subject to final agreement in the Transaction Documents, including making such amendments to the JV SHA as are required by Applicable Law [Redacted – commercially sensitive information] and the Parties shall negotiate and agree to the following: |
- 63 -
| (i) | the Initial Business Plan, based on the draft attached at Exhibit J; |
| (ii) | the Asset PA and its schedules, including the Carve Out Steps Plan, based on the form attached at Exhibit I; |
| (iii) | the TSA and its service schedules, based on the form attached at Exhibit H; |
| (iv) | the final form of IT Transition Plan; |
| (v) | the Raw Material Agreement, based on the principles set out in the Price Agreement; |
| (vi) | the Westport Inc Non-Compete, to replicate the terms of the non-compete provisions given by Westport Canada in the LP Agreement and USA; and |
| (vii) | the Canadian Bill of Sale and General Conveyance, the IP Assignment(s), the Assignment and Assumption Agreement, the License Agreement, each Assignment and Assumption of Lease, each other Local Conveyances, the Deeds of Release, the Payout Letters, the Italy Deed of Transfer, the Employment Agreement, the Supply Agreement (each as defined in the Asset PA) and the written waivers, referred to in Section 8.2(a)(xv) of the Asset PA. |
| (c) | [Redacted – confidential information]. |
| (d) | [Redacted – confidential information]. |
| (e) | [Redacted – commercially sensitive information]. |
| (f) | [Redacted – commercially sensitive information]. |
| (g) | Each of the Parties hereto covenant and agree that, if requested by Westport Canada, they shall cause the JV Entities to enter into good faith negotiations with Westport Canada for: (i) the grant to Westport Canada of a non-exclusive, royalty-bearing license to the Intellectual Property that forms part of the Transferred Assets, solely for use outside of the HPDI System and in connection with the retrofit of engines and/or fuel systems in the aftermarket; and (ii) a supply agreement to allow for the supply of components required to retrofit such engines and/or fuel systems. |
| 6.7 | Availability of employees |
After Investment Closing, Westport Inc shall make available to the JV Group and Westport Inc and Volvo Sweden shall procure that the JV Group make available to Westport Inc the assistance of such employees as remain employed by Westport Inc or a member of the Westport Group (in the case of the JV Group) or a member of the JV Group (in the case of Westport Inc) as Westport Inc or any member of the JV Group, as applicable, may require in connection with the conduct of any Proceedings against Westport Inc (or any member of the Westport Group) or any member of the JV Group, or the preparation of any required tax filing or support for any audit, and of which such employees have particular knowledge by virtue of their involvement in the matter giving rise to those Proceedings or otherwise.
- 64 -
| 6.8 | Notice obligation upon change of Westport Inc outbound licenses |
Westport Inc undertakes to inform Volvo Sweden and the JV Group of any termination, modification, renewal, restatement or other change of licenses granted by any member of the Westport Group to a Third Party with respect to, or effect for, any of the Transferred Assets.
| 6.9 | Assignment of Abandoned Patent Rights |
[Redacted – commercially sensitive information]
| 6.10 | Information Technology |
| (a) | Westport Inc and Westport Canada shall procure that at Investment Closing, the JV Group shall either own or have the right to use (whether pursuant to the TSA or pursuant to licenses or sub-licenses granted or procured pursuant to the Asset PA) all information technology and computer systems (including the hardware, software, databases, data communication lines, network and telecommunication equipment, internet-related information technology infrastructure, wide area network and other telecommunications or information technology equipment as well as configurations and data pertaining thereto) which are required for the operation of the HPDI Business in the ordinary course by the JV Group in the same, or reasonably equivalent, manner as the HPDI Business was operated by the Westport Group at the date of this Agreement. |
| (b) | In respect of the Transferring Software (as defined in the Asset PA), if the consent of the relevant licensor of such Transferring Software to the transfer and/or assignment of such Transferring Software to the JV Group has not been obtained prior to Investment Closing, Westport Inc and Westport Canada shall procure (at their cost) Software which provides the same functions, solutions or other features as the applicable Transferring Software, and provided with the same configurations and the same data as the applicable Transferring Software, for unlimited use in the HPDI Business and for the same scope as the respective member of the Westport Group's license to such Transferring Software and as required for the HPDI Business as currently conducted and for the scope, number of users, territory as currently planned to be conducted, to be ready to be used at Investment Closing. |
| 6.11 | Data Room Delivery |
Within five Business Days following the date of this Agreement, Westport Inc shall deliver (or cause to be delivered) to Volvo Sweden (or its legal representatives) four copies of the contents of the Data Room as at the date of this Agreement (contained in a USB).
Article VII
INDEMNIFICATION AND DISPUTES
| 7.1 | Indemnity. |
- 65 -
| (a) | Westport Inc hereby agrees to indemnify and defend and hold harmless Volvo Sweden, and its Affiliates, successors and assigns and each of their respective officers, directors, employees and agents or, at Volvo Sweden’s discretion, the relevant member of the JV Group (a “Volvo Indemnified Party” or collectively the “Volvo Indemnified Parties”) from and against, and agree to pay or cause to be paid to the Volvo Indemnified Parties all amounts equal to the sum of, any and all [Redacted – confidential information] (“Losses”), of such Volvo Indemnified Parties that the Volvo Indemnified Parties may incur or suffer (including all reasonable legal fees and expenses) which arise in relation to or result from: (i) any breach of any of Westport Inc’s or any of its Affiliate’s representations or warranties in this Agreement or any other Transaction Document; (ii) failure by Westport Inc or Westport Canada to perform any of its covenants or agreements, in this Agreement or in any other Transaction Document (including the Asset PA) or in any certificate or document delivered pursuant hereto or any other Transaction Document (including the Asset PA), in each case including any third-party claims arising or resulting from such breach or failure, except to the extent such Losses arise out of the gross negligence or willful misconduct of Volvo Sweden, its Affiliates, successors and assigns and their respective officers, directors, employees and agents and/ or (iii) the matters set out in Schedule 4. For the purposes solely of calculating the amount of Losses that result from any breach of any representation or warranty that has occurred for purposes of Section 7.1(a)(i), all materiality and Material Adverse Effect qualifiers contained in Westport Inc’s or any of its Affiliate’s representations or warranties in this Agreement or any other Transaction Document shall be disregarded therefrom. Subject to Section 7.8, the rights of Volvo Sweden hereunder shall be in addition to, and not in lieu of, any other rights and remedies which may be available to it or to any of its Affiliates or any member of the JV Group by Applicable Law or under the Charter and Bylaws of Westport Inc, the Limited Partnership, the General Partner, the JVCo or the Transaction Documents. For the avoidance of doubt, and subject to Section 7.10, in the event that Westport Inc is obliged to indemnify a Volvo Indemnified Party pursuant to this Section 7.1(a), Volvo Sweden may, at its sole option, direct Westport Inc to make payment to the relevant member of the JV Group which had suffered such Loss (in which case the payment will be equivalent to 100% of the Loss suffered by the relevant member of the JV Group); provided that, with respect to any indemnity payments in connection with the [Redacted – commercially sensitive information], Westport Inc shall make the indemnity payment to the applicable member of the JV Group that suffered the associated Loss. |
| (b) | Volvo Sweden hereby agrees to indemnify and defend and hold harmless Westport Inc, each of its Affiliates, successors and assigns and each of its officers, directors, employees and agents (a “Westport Indemnified Party” or collectively the “Westport Indemnified Parties”) from and against, and agrees to pay or cause to be paid to Westport Indemnified Parties all Losses that Westport Indemnified Parties may incur or suffer (including all reasonable legal fees and expenses) which arise in relation to or result from: (i) any breach of any of its representations or warranties in this Agreement or any other Transaction Document; (ii) failure by Volvo Sweden or its Affiliates to perform any of its covenants or agreements, in this Agreement or in any other Transaction Document or in any certificate or document delivered pursuant hereto or any other Transaction Document, including any third-party claims arising or resulting from such breach or failure, except to the extent such Losses arise out of the gross negligence or willful misconduct of Westport Inc or its respective Affiliates, successors and assigns and their respective officers, directors, employees and agents; or (iii) [Redacted – commercially sensitive information]. The rights of Westport Inc hereunder shall be in addition to, and not in lieu of, any other rights and remedies which may be available to it by Applicable Law or under the Charter and Bylaws of Westport Inc or the Transaction Documents. |
- 66 -
| 7.2 | Procedures. |
| (a) | If a third party (including a Governmental Entity) shall notify a Volvo Indemnified Party or a Westport Indemnified Party (an “Indemnified Party”) with respect to any matter that may give rise to a claim for indemnification under the indemnity set forth above in Section 7.1, the procedure set forth below shall be followed. |
| (i) | Notice. The respective Indemnified Party shall give to the Party providing indemnification (the “Indemnifying Party”) written notice of any claim, suit, judgment or matter for which indemnity may be sought under Section 7.1 promptly but in any event within 20 Business Days after the Indemnified Party receives notice thereof; provided, however, that failure by the Indemnified Party to give such notice shall not relieve the Indemnifying Party from any liability it shall otherwise have pursuant to this Agreement except to the extent that the Indemnifying Party is actually prejudiced by such failure. Such notice shall set forth in reasonable detail: (x) the basis for such potential claim; and (y) the dollar amount of such claim (to the extent determinable). The Indemnifying Party shall have a period of 20 Business Days within which to respond thereto. If the Indemnifying Party does not respond within such 20 Business Day period, the Indemnifying Party shall be deemed to have accepted responsibility for such indemnity. |
| (ii) | Defense of Claim. Subject to Section 7.10, with respect to a claim by a third party against an Indemnified Party for which indemnification may be sought under this Agreement, the Indemnifying Party shall have the right, at its option, to be represented by counsel of its choice and to assume the defense or otherwise control the handling of any claim, suit, judgment or matter for which indemnity is sought, which is set forth in the notice sent by the Indemnified Party, by notifying the Indemnified Party in writing to such effect within 20 Business Days of receipt of such notice; provided, however, that the Indemnified Party shall have the right to employ counsel to represent it if, in the Indemnified Party’s reasonable judgment based upon the advice of counsel, it is advisable in light of the separate interests of the Indemnified Party, to be represented by separate counsel, and in that event the reasonable fees and expenses of such separate counsel shall be paid by the Indemnifying Party but only in respect of one counsel (chosen by the Indemnified Party) plus appropriate local counsel, if applicable, for all Indemnified Parties. If the Indemnifying Party does not give timely notice in accordance with the preceding sentence, the Indemnifying Party shall be deemed to have given notice that it does not wish to control the handling of such claim, suit or judgment. In the event the Indemnifying Party elects (by notice in writing within such twenty Business Day period) to assume the defense of or otherwise control the handling of any such claim, suit, judgment or matter for which indemnity is sought, the Indemnifying Party shall indemnify and hold harmless the Indemnified Party from and against any and all reasonable professional fees (including attorneys’ fees, accountants, consultants and engineering fees) and investigation expenses incurred by the Indemnified Party after it provides notice under clause (i) and prior to such election, notwithstanding the fact that the Indemnifying Party may not have been so liable to the Indemnified Party had the Indemnifying Party not elected to assume the defense of or to otherwise control the handling of such claim, suit, judgment or other matter. In the event that the Indemnifying Party does not assume the defense or otherwise control the handling of such matter, the Indemnified Party may retain counsel, as an indemnification expense, to defend such claim, suit, judgment or matter. |
- 67 -
| (iii) | Final Authority. The Parties shall cooperate in the defense of any such claim or litigation and each shall make available all books and records which are relevant in connection with such claim or litigation. In connection with any Proceeding with respect to which the Indemnifying Party has assumed the defense or control, the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to any matter unless: (i) there is no finding or admission of any violation of law or any violation of the rights of any person on the part of the Indemnified Party; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. In connection with any Proceeding with respect to which the Indemnifying Party has not assumed the defense or control, the Indemnified Party may not compromise or settle such claim without the consent of the Indemnifying Party, which shall not be unreasonably withheld. |
| (b) | Claims Between the Indemnifying Party and the Indemnified Party. Any claim for indemnification under this Agreement which does not result from the assertion of a claim by a third party shall be asserted by written notice given by the Indemnified Party to the Indemnifying Party. The Indemnifying Party shall have a period of 20 Business Days within which to respond thereto. |
| 7.3 | Survival. |
The representations and warranties of the Parties contained in this Agreement shall survive [Redacted – confidential information] following the Investment Closing, except that: (i) the representations and warranties of Westport Inc contained in Sections [Redacted – confidential information] will survive indefinitely; (ii) the representations and warranties of Westport Inc contained in Section 4.15 shall survive for a period of sixty (60) days following the expiration of the last applicable limitation period under any applicable Tax legislation with respect to any taxation year to which those representation and warranties relate (taking into account any extensions or waivers thereof); and (iii) the representations and warranties of Volvo Sweden contained in Section 5.1 will survive indefinitely. After such periods, the Party making such representations and warranties shall have no further liability hereunder with respect to such representations and warranties except in the case of fraud or wilful default or with respect to claims made within such periods in accordance with the terms of this Agreement. All of the covenants or other agreements of the Parties contained in this Agreement shall survive until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the Party entitled to such performance.
| 7.4 | Limitations on Indemnification. |
Except in connection with any breach of the representations and warranties of Westport Inc contained in Sections [Redacted – confidential information] and in the absence of fraud, wilful misconduct or intentional breach or misrepresentation of a representation or warranty by Westport Inc, any intentional non-compliance with Applicable Law by Westport Inc or any of its Affiliates or any criminal or penal proceeding against Westport Inc or any of its Affiliates (for which there shall be no limitations or thresholds):
- 68 -
| (a) | [Redacted – commercially sensitive information]; and |
| (b) | [Redacted – commercially sensitive information]. |
| 7.5 | Disputes. |
If Volvo Sweden and Westport Inc are unable to agree with respect to the amount or timing of payment for any portion of the Earn Out Purchase Price, Adjusted Initial Purchase Price or any of the components thereof, such dispute shall be resolved pursuant to Section 2.3 and/or be referred to the Independent Accountant for resolution in accordance with paragraph 2 of Part 3 in Schedule 1, as applicable. Any and all other disputes arising between the parties with respect to this Agreement and which are unable to be settled by negotiation between the parties shall be settled by referral to arbitration in accordance with the procedures set out at Schedule 3 (the “Arbitration”).
| 7.6 | Mitigation |
| (a) | Obligation to mitigate. Nothing in this Agreement shall reduce or eliminate an Indemnified Party’s obligations at law to mitigate any Losses indemnifiable under this Article VII. |
| (b) | Recovery against third parties. If any Losses indemnifiable under this Article VII, can be reduced by any recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other Person, the Indemnified Party shall, at the Indemnifying Party’s expense (for which purpose the Indemnifying Party shall provide the Indemnified Party with reasonable security in advance, if so requested) take reasonable steps to enforce such recovery, settlement or payment, provided that (i) nothing in this Section 7.6 shall preclude the Indemnified Party from pursuing a claim against the Indemnifying Party and (ii) the Indemnified Party shall not be required to take any of those steps where the taking of any such steps would damage, or would be likely to damage, any trading relationship of, or the goodwill of, its Group or any member of the JV Group (including as a result of the Indemnified Party being required to make a claim against a material customer or supplier of such Indemnified Party or defending a claim by a material customer or supplier against the Indemnified Party) and the amount of any Losses of the Indemnified Party shall be reduced by the net amount (after taking into account costs and expenses and any Tax payable) of insurance proceeds or other benefits and recoveries actually paid to the Indemnified Party with respect to the subject matter of such claim. If an Indemnified Party receives insurance proceeds or other benefits and recoveries directly relating to any Losses for which it has received any indemnification payment under this Article VII, such Indemnified Party shall refund to the Indemnifying Party the net amount (after taking into account costs and expenses and any Tax payable) of such insurance proceeds or benefits and recoveries when received, up to the amount of such indemnification payment. Nothing contained in this Section shall be construed as limiting or restricting in any manner an insurer’s subrogation rights in respect of the Indemnified Party’s indemnification claim against the Indemnifying Party. |
- 69 -
| 7.7 | Prior Knowledge |
Notwithstanding anything to the contrary contained in this Article VII, Volvo Sweden acknowledges and agrees that Westport Inc’s indemnification obligations under Section 7.1(a)(i) shall not apply with respect to a breach of the representations and warranties made by Westport Inc pursuant to Article IV (except Sections [Redacted – confidential information]) to the extent that the matter, event or circumstance which causes the representations and warranties made by Westport Inc pursuant to Article IV to be breached have been fairly disclosed to the Volvo Knowledge Individuals in the Data Room and the Volvo Knowledge Individuals are aware that the matter, event or circumstance would cause a representation or warranty made by Westport Inc pursuant to Article IV to be breached. For the purposes of this Article 7.7, “fairly disclosed” means that: (i) the Volvo Knowledge Individuals were granted access to the Data Room; (ii) the significance of the information disclosed and its relevance to a particular representation and warranty ought reasonably to be appreciated by the Volvo Knowledge Individuals, taking into account the paragraphs or subject matters in relation to which the information is disclosed; (iii) there is not omitted from the information disclosed any information which has the effect of rendering the information so disclosed misleading in any respect; and (iv) the information is disclosed with sufficient particularity to enable the Volvo Knowledge Individuals to identify the nature and scope of the matter disclosed and to assess the full impact on the JV Group.
| 7.8 | Exclusion of Other Remedies |
Except in the case of fraud, wilful misconduct or intentional breach or misrepresentation by a Party: (i) the indemnities provided in this Article VII; and (ii) any remedies under the terms of the USA or JV SHA specifically related to breaches of the representations and warranties contained in this Agreement; constitute the only remedies of an Indemnified Party against the Indemnifying Party in the event of any breach of a representation or warranty of such Indemnifying Party contained in Article IV or Article V of this Agreement. Except as set forth in this Section 7.8, each of the Parties expressly waives and renounces any other remedies whatsoever, whether at law or in equity, which it would otherwise be entitled to in relation to any breach of representation or warranty contained in Article IV, Article V or contained in the Asset PA as against the other Party.
| 7.9 | Payments made pursuant to this Article |
| (a) | Adjustment to Purchase Price. Unless otherwise required by Applicable Law, any payments made pursuant to this Article VII (other than payments made to a member of the JV Group) shall be treated as an adjustment to the Purchase Price by the Parties and allocated to the Purchased LP Units, the Purchased GP Shares and/or the Purchased JVCo Shares as appropriate and the Parties shall not take any position and shall cause their respective Affiliates and the members of the JV Group to not take any position inconsistent with such treatment for any Tax purpose. |
| (b) | Gross up. [Redacted – commercially sensitive information]. |
| (c) | Set Off. Volvo Sweden shall be entitled to set off any bona fide claims pursuant to this Article VII and any payments to be made by Westport Inc or Westport Canada pursuant to this Article VII against its (or Volvo Canada’s) obligations to pay any Applicable Earn Out Amount which has become payable in accordance with Section 2.3. |
- 70 -
| 7.10 | Environmental Conduct |
[Redacted – commercially sensitive information].
Article VIII
MISCELLANEOUS
| 8.1 | Waivers and Amendments. |
Unless otherwise provided, any provision of this Agreement may only be amended or modified if such amendment or modification is made or confirmed in a written document, signed by (or on behalf of) Westport Inc and Volvo Sweden and any provision of this Agreement may only be waived upon the written consent of Westport Inc and Volvo Sweden.
| 8.2 | Governing Law. |
This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, and the Federal laws of Canada applicable therein, without regard to the conflict of laws provisions thereof.
| 8.3 | Jury Waiver. |
THE PARTIES HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT.
| 8.4 | Entire Agreement. |
This Agreement and the Transaction Documents constitute the full and entire understanding and agreement between the Parties with regard to the subjects hereof and thereof and the Term Sheet shall be deemed to be terminated and replaced by this Agreement as at the date hereof.
| 8.5 | Effect of Investment Closing on Existing Agreements. |
The Parties, on behalf of themselves and their Affiliates, acknowledge and agree that effective as at and following the Investment Closing Date all existing supply agreements between a member of the Westport Group and a member of the Volvo Group relating to HPDI [Redacted – commercially sensitive information] shall be terminated and replaced in their entirety by the New Supply Agreement.
| 8.6 | Fees and Expenses. |
Each Party shall pay their own fees, expenses and disbursements incurred in connection with the negotiation and consummation of the transactions contemplated hereunder, including attorney’s fees and expenses and due diligence or other review conducted prior to the negotiation of this Agreement.
| 8.7 | Notices. |
All notices, requests and other communications hereunder shall be in writing and shall be deemed to have been duly given at the time of receipt if delivered by hand or by email transmission or five Business Days after being mailed, registered or certified mail, return receipt requested, with postage prepaid to the applicable Parties at the address stated below or if either Party shall have designated a different address or email address by notice to the other Party given as provided above, then to the last address or email address so designated.
- 71 -
If to Westport Inc or Westport Canada:
Westport Fuel Systems Inc.
1691 West 75th Avenue
Vancouver, BC V6P 6P2
Attention: [Redacted – private information]
Email: [Redacted – private information]
with a copy to:
Bennett Jones LLP
4500, 855-2nd Street S.W.
Calgary, AB T2P 4K7
Attention: [Redacted – private information]
Email: [Redacted – private information]
If to Volvo Sweden:
Volvo Business Services International AB
405 08 Göteborg, Sweden
Attention: [Redacted – private information]
Email: [Redacted – private information]
with a copy to:
Greenberg Traurig, LLP
The Shard, Level 8
32 London Bridge Street
London, England
SE1 9SG
Attention: [Redacted – private information]
Email: [Redacted – private information]
| 8.8 | Validity. |
If any provision of this Agreement or any of the Transaction Documents shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions thereof shall not in any way be affected or impaired thereby.
- 72 -
| 8.9 | Counterparts. |
This Agreement may be executed in any number of counterparts. This Agreement, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or in portable document format or by other electronic means, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of either Party hereto or to any such agreement or instrument, each other Party hereto or thereto shall re-execute original forms thereof and deliver them to the requesting Party. Neither Party hereto or to any such agreement or instrument shall raise the use of a facsimile machine, portable document format or by other electronic means to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine, in portable document format or by other electronic means as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
| 8.10 | Confidentiality and Publicity. |
| (a) | The Non-Disclosure Agreement shall cease to have any effect from the date of this Agreement. |
| (b) | Subject to Sections 8.10(c) and 8.10(d), each Party shall: (i) treat as confidential, and shall not disclose to any person, information obtained during negotiations relating to any Transaction Document or as a result of entering into any Transaction Document which relates to: (a) the provisions of any Transaction Document (which have not been disclosed pursuant to Section 8.10(d)) and including the Carve Out Plan, the IT Transition Plan and the Transferred Assets; (b) the negotiations relating to any Transaction Document; (c) the subject matter of any Transaction Document (where not already disclosed pursuant to Section 8.10(d)); or (d) the other Party or another member of its Group (such information collectively being “Confidential Information”); (ii) make commercially reasonably efforts to prevent the disclosure of Confidential Information; and (iii) limit the use of such Confidential Information to the purposes for which it was disclosed; and (iv) ensure that each member of its Group complies with the provisions of this Section 8.10(b)(i), 8.10(b)(ii) and 8.10(b)(iii) as if the provisions of those Sections were expressed to apply to it. For the avoidance of doubt, any confidential information of Westport Inc, or any of its Affiliates, to be transferred to the Limited Partnership (or another member of the JV Group) pursuant to the Asset PA shall, as between the Parties, be deemed to be the Confidential Information of Westport Inc prior to the Transferred Assets Closing. |
| (c) | Notwithstanding the provisions of Section 8.10(b), each Party and each member of its Group may disclose Confidential Information (including by way of a public announcement or press release), if and to the extent: (i) the disclosing Party has given its prior written consent to the disclosure; (ii) required by Applicable Law, based on the advice of counsel, so long as prior to such disclosure, such Party consults, in good faith, with the other Parties on such disclosure; (iii) required for the purpose of any arbitration pursuant to Section 7.5; (iv) required by any Governmental Entity to which that party is subject or submits (including any securities exchange), whether or not the requirement for disclosure has the force of law, based on the advice of counsel, so long as prior to such disclosure (and to the extent permitted), such Party consults, in good faith, with the other Parties on such disclosure; (v) such information has already come into the public domain through no fault of that Party or other member of its Group; (vi) made to the professional advisors, auditors or bankers of that Party (or of any member of its Group) or the officers or employees of that Party (or of any member of its Group), provided that the Party making the disclosure shall procure that each of those persons comply with Section 8.10(b) as if the provisions of that Section were expressed to apply to it; or (vii) such disclosure is to any Governmental Entity in connection with the Tax affairs of that Party or any member of its Group. |
- 73 -
| (d) | The Parties acknowledge that this Agreement, the Limited Partnership Agreement, the JV SHA and the USA will constitute material agreements of Westport Inc and shall be required to be filed with the Canadian Securities Administrators and made publicly available via SEDAR+ and with the Securities and Exchange Commission via the Electronic Data Gathering, Analysis, and Retrieval system (EDGAR). |
| 8.11 | Succession and Assignment. |
Except as otherwise expressly provided in this Agreement and subject to the other Transaction Documents and Applicable Law, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, permitted transferees, heirs, executors and administrators of the Parties. This Agreement may not be assigned by any Party without the prior written consent of the other Parties, other than, in the case of Volvo Sweden, which may assign its rights under this Agreement to another member of the Volvo Group for so long as that entity remains a member of the Volvo Group and provided that Volvo Sweden shall remain jointly liable for all of the obligations of Volvo Sweden hereunder. Volvo Sweden shall procure that such entity assigns any rights assigned to it in accordance with this Section 8.11 back to Volvo Sweden immediately before that entity ceases to be a member of the Volvo Group. If there is an assignment of any of Volvo Sweden’s rights under this Agreement in accordance with this Section 8.11, Westport Inc and Westport Canada may discharge their obligations under this Agreement to Volvo Sweden until they receives notice of the assignment and the assignee may enforce this Agreement as if it were named in this Agreement as Volvo Sweden, but Volvo Sweden shall remain liable for any obligations under this Agreement and the liability of Westport Inc and Westport Canada to such assignee shall not be greater than it would have been had such an assignment not taken place.
| 8.12 | Termination; Survival. |
| (a) | This Agreement may be terminated: (i) with the consent of each Party to the termination of this Agreement; or (ii) at any time prior to the Investment Closing by (x) Westport Inc or Westport Canada in writing, if the Volvo Sweden has; or (y) Volvo Sweden if Westport Inc or Westport Canada has, in any material respect, breached: (A) any covenant or agreement contained herein; or (B) any representation or warranty contained herein, and in either case of clause (A) or (B) if such breach has not been cured by the date 20 Business Days after the date on which written notice of such breach is given to the Party committing such breach. In the event this Agreement is terminated for any reason, this Agreement shall have no further effect, except that (w) each Party’s obligation to hold information in strict confidence pursuant to Section 8.10 shall continue to remain in effect for a period of one year thereafter; (x) the obligations of Article VII shall continue for a period of one year thereafter; and (y) the provisions set forth in Sections 6.1(e), 8.2, 8.3, 8.6 and 8.11 shall remain in full force and effect, and each such section shall survive such termination indefinitely. |
| (b) | A termination pursuant to Section 8.12(a)(ii) shall not relieve the breaching Party from liability for an uncured willful breach of any covenant or agreement contained herein. |
- 74 -
| 8.13 | Currency. |
| (a) | Unless otherwise provided, all dollar amounts referred to in this Agreement are to the lawful money of the United States of America. |
| (b) | For the purpose of converting amounts specified in one currency into another currency where required, the rate of exchange to be used shall be the rate published by the European Central Bank as at the close of business on the Business Day immediately prior to the date of conversion. |
| 8.14 | Further Assurances. |
Each of the Parties shall promptly do, make, execute, deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other Parties may require, acting reasonably, from time to time, for the purpose of giving effect to this Agreement and the Asset PA and shall take such steps as may be reasonably within its power to implement the full extent of this Agreement and the Asset PA.
| 8.15 | Privacy. |
| (a) | The Parties agree that any Transferred Information disclosed is necessary for the purposes of: (i) determining if the Parties shall proceed with the transactions contemplated hereby; and (ii) completing such transactions. |
| (b) | Each Recipient covenants and agrees: |
| (i) | prior to the completion of the transaction contemplated hereby: |
| (A) | to use and disclose the Transferred Information solely for purposes related to the transaction contemplated hereby; and |
| (B) | to protect the Transferred Information by security safeguards appropriate to the sensitivity of the information. |
| (c) | After the completion of the transaction contemplated hereby, each Party covenants and agrees to: |
| (A) | collect, use and disclose the Transferred Information under its control only for those purposes for which the Transferred Information was initially collected from or in respect of the individual to which such Transferred Information relates, unless (A) the Disclosing Party and/or the Recipient have first notified such individual of such additional purpose, and where required by Applicable Law, obtained the consent of such individual to such additional purpose, or (B) such use or disclosure is permitted or authorized by Applicable Law, without notice to, or consent from, such individual; |
| (B) | to protect the Transferred Information by security safeguards appropriate to the sensitivity of the information; and |
- 75 -
| (C) | to give effect to any withdrawal of consent made in accordance with Applicable Law by an individual to whom the Transferred Information relates. |
| (d) | The Recipient shall return or destroy the Transferred Information within a reasonable time, at the option of the Disclosing Party, should the transaction contemplated hereby not be completed. |
| (e) | Where required by Applicable Law, Westport Inc shall promptly notify the individuals about whom the Transferred Information relates that the transactions contemplated hereby have taken place and that their personal information has been disclosed. |
| (f) | The Parties agree that the primary purpose or result of the transactions contemplated hereby is not the purchase, sale or other acquisition or disposition, or lease, of personal information. |
[Signature page follows.]
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date and year first written above.
| WESTPORT FUEL SYSTEMS INC. | ||
| Per: | ||
|
Name: Title: Chief Executive Officer
| ||
| Per: | ||
|
Name: Title: | ||
| WESTPORT FUEL SYSTEMS CANADA INC. | ||
| Per: | ||
|
Name: Title: Chief Executive Officer
| ||
| Per: | ||
|
Name: Title: | ||
| VOLVO BUSINESS SERVICES INTERNATIONAL AB | ||
| By: | ||
| Name: | ||
| Title: | ||
Schedule 1
Adjustment to Initial Purchase Price and Closing Accounts
[Redacted – Commercially sensitive information]
Schedule 2 Earn Out
[Redacted – Commercially sensitive information]
Schedule 3 Arbitration
[Redacted – Commercially sensitive information]
Schedule 4 Indemnification
[Redacted – Commercially sensitive information]
Schedule 5 Disclosure Schedule
[Redacted – Commercially sensitive information]
Exhibit A
Form of Limited Partnership Agreement
[Redacted – To be filed separately as a Material Agreement following execution]
Exhibit B
Form of Unanimous Shareholders Agreement
[Redacted – To be filed separately as a Material Agreement following execution]
Exhibit C
Form of JVCO Shareholders Agreement
[Redacted – To be filed separately as a Material Agreement following execution]
Exhibit D
Form of Price Agreement
[Redacted – Commercially sensitive information]
Exhibit E
Form of Framework Agreement
[Redacted – Commercially sensitive information]
Exhibit F
Form of Development Agreement Novation
[Redacted – Commercially sensitive information]
Exhibit G
Carve Out Plan
[Redacted – Commercially sensitive information]
Exhibit H
Form Of TSA
[Redacted – Commercially sensitive information]
Exhibit I
Form Of Asset PA
[Redacted – Commercially sensitive information]
Exhibit J
Initial Business Plan
[Redacted – Commercially sensitive information]
Exhibit K
Form Of Pro Forma Consent to Assignment
[Redacted – Commercially sensitive information]
Exhibit L
Form Of Pro Forma IP Consent to Assignment
[Redacted – Commercially sensitive information]
Exhibit 99.3
SHAREHOLDERS AGREEMENT – CAUTIONARY NOTE FOR READERS
The attached Shareholders Agreement has been filed with certain securities regulatory authorities in Canada pursuant to National Instrument 51-102 – Continuous Disclosure Obligations, which requires Westport Fuel Systems Inc. ("Westport") to file certain material contracts to which it (or any subsidiary) is a party. Unlike certain other documents filed on behalf of Westport, the attached Shareholders Agreement has not been prepared as a disclosure document and was not drafted with the intention of providing factual information about Westport (or any affiliate) for the benefit of investors. The attached Shareholders Agreement contains representations and warranties made by Westport and certain of its affiliates to various counterparties for risk allocation purposes, and solely for the benefit of those counterparties. National Instrument 51-102 allows reporting issuers to omit certain provisions of material contracts and readers are cautioned that statements made by Westport (and its affiliates) in the attached Shareholders Agreement may be qualified (in whole or in part) by information redacted from the attached copy of the Shareholders Agreement, which information is not otherwise available to the public. Moreover, information concerning Westport, its affiliates or the subject matter of statements made in the attached Shareholders Agreement concerning Westport or certain of its affiliates may change after the date of the attached Shareholder Agreement, and subsequent information may or may not be fully reflected in Westport's public disclosures. Accordingly, investors should not rely on statements in the attached Shareholders Agreement concerning Westport (or any of its affiliates) as accurate statements of fact.
SHAREHOLDERS AGREEMENT
by and among
WESTPORT FUEL SYSTEMS CANADA INC.
and
VOLVO BUSINESS SERVICES INTERNATIONAL AB
and
HPDI TECHNOLOGY AB
JUNE 3, 2024
TABLE OF CONTENTS
| ARTICLE 1 INTERPRETATION | 2 |
| 1.1 Definitions | 2 |
| 1.2 Schedules | 16 |
| 1.3 Interpretation | 17 |
| 1.4 Governing Law | 18 |
| 1.5 Subsidiaries | 18 |
| ARTICLE 2 ORGANIZATION OF THE CORPORATION | 18 |
| 2.1 Business of the JVCo | 18 |
| 2.2 Principal Place of Business | 18 |
| 2.3 Fiscal Year | 18 |
| 2.4 Freedom in Decision Making | 19 |
| ARTICLE 3 CERTAIN COVENANTS AND ACKNOWLEDGEMENTS | 19 |
| 3.1 Covenants of the Shareholders | 19 |
| 3.2 Covenants of the JVCo | 19 |
| 3.3 Shareholder Agreement | 19 |
| 3.4 Relationship of Shareholders | 19 |
| 3.5 Non-Competition | 20 |
| ARTICLE 4 BOARD OF DIRECTORS | 20 |
| 4.1 Board of Directors | 20 |
| 4.2 Chair of the JVCo Board | 21 |
| 4.3 Indemnification | 21 |
| 4.4 Insurance | 22 |
| 4.5 Meetings of the Board of Directors | 22 |
| 4.6 Specified Board Approval | 25 |
| 4.7 Conflicted Shareholders | 27 |
| 4.8 Committees | 28 |
| 4.9 Other Positions of Representatives | 28 |
| 4.10 Officers of the JV Business | 28 |
| 4.11 Officers of JVCo | 29 |
| ARTICLE 5 BUSINESS AND MANAGEMENT OF THE CORPORATION | 29 |
| 5.1 Management of the JVCo | 29 |
| 5.2 Services Arrangements | 30 |
| 5.3 Supply of Third Party OEMs | 31 |
| 5.4 Business Plans | 31 |
| 5.5 Financial Statements and Reports | 31 |
| 5.6 Books and Records | 32 |
| -i- |
| 5.7 Contracts | 32 |
| 5.8 Internal Controls | 32 |
| 5.9 Governance Policies | 33 |
| 5.10 Compliance | 33 |
| 5.11 Invoicing and Transfer Pricing | 34 |
| 5.12 Tax Returns | 34 |
| 5.13 Tax Costs | 35 |
| ARTICLE 6 SHAREHOLDER APPROVAL RIGHTS AND MEETINGS | 36 |
| 6.1 Shareholder Approval Rights | 36 |
| 6.2 Meetings of the Shareholders | 37 |
| ARTICLE 7 SHARES AND DISPOSITION OF SHARES | 40 |
| 7.1 Authorized Share Capital | 40 |
| 7.2 Restrictions on Transfers | 40 |
| 7.3 No Transfers [Redacted – commercially sensitive information] | 40 |
| 7.4 General Restrictions | 40 |
| 7.5 Permitted Transfers to 100% Affiliates | 42 |
| 7.6 Required Transfers; Share Issuances and Adjustments | 42 |
| 7.7 Deemed Transfers | 43 |
| 7.8 Right of First Refusal | 44 |
| 7.9 Share Certificates | 46 |
| 7.10 Lost Share Certificates | 46 |
| 7.11 Liability on Transfer | 46 |
| 7.12 Power of Attorney | 46 |
| 7.13 Securities Law Matters | 47 |
| 7.14 Financing and Pledge of Shares | 47 |
| 7.15 Acquisition by Westport Canada | 47 |
| 7.16 Admission of New Shareholders and Going Public Transactions | 48 |
| 7.17 Control Event | 49 |
| ARTICLE 8 General Sale Provisions | 49 |
| 8.1 Warranties of Seller | 49 |
| 8.2 Closing Conditions | 50 |
| 8.3 Payment | 50 |
| ARTICLE 9 FUNDING | 50 |
| 9.1 Additional Funding and Cash Calls | 50 |
| 9.2 Emergency Funding | 52 |
| 9.3 Funding Defaults | 53 |
| ARTICLE 10 Default and Remedies | 56 |
| -ii- |
| 10.1 Event of Default | 56 |
| 10.2 Remedies | 57 |
| 10.3 Remedies not Exclusive and No Release | 58 |
| ARTICLE 11 CONFIDENTIALITY | 59 |
| 11.1 Confidential Information | 59 |
| 11.2 Restricted Information | 61 |
| 11.3 Survival | 62 |
| ARTICLE 12 TERMINATION AND SURVIVAL | 62 |
| 12.1 Termination Events | 62 |
| 12.2 Winding Up and Dissolution | 63 |
| 12.3 Survival | 63 |
| ARTICLE 13 REPRESENTATIONS AND WARRANTIES | 64 |
| 13.1 Representations and Warranties of the Parties | 64 |
| 13.2 Survival | 65 |
| ARTICLE 14 DISPUTE RESOLUTION AND DEADLOCK | 65 |
| 14.1 Dispute Resolution and Deadlocks | 65 |
| 14.2 Injunctive Relief | 65 |
| 14.3 Performance to Continue | 65 |
| ARTICLE 15 NOTICES | 65 |
| 15.1 Addresses for Service | 65 |
| 15.2 Change of Address | 65 |
| 15.3 Notices | 65 |
| ARTICLE 16 MISCELLANEOUS | 66 |
| 16.1 Press Release | 66 |
| 16.2 Amendment | 67 |
| 16.3 Agreement to be Bound | 67 |
| 16.4 Conflict with Articles | 67 |
| 16.5 Entire Agreement | 68 |
| 16.6 Strict Performance of Covenants | 68 |
| 16.7 Waiver | 68 |
| 16.8 No Liability for Consequential Damage or Loss of Profit | 68 |
| 16.9 Severability | 69 |
| 16.10 Effective Time | 69 |
| 16.11 Time of Essence | 69 |
| 16.12 Further Assurances | 69 |
| 16.13 Successors | 69 |
| 16.14 Assignment | 69 |
| -iii- |
| 16.15 Subdivision, Consolidation, etc. of Shares | 69 |
| 16.16 Remedies | 69 |
| 16.17 Withholding | 70 |
| 16.18 Expenses | 70 |
| 16.19 Currency | 70 |
| 16.20 Counterparts | 70 |
SCHEDULES:
| SCHEDULE A SHAREHOLDER CAPITAL | |
| SCHEDULE B DISPUTE RESOLUTION AND DEADLOCK | |
| SCHEDULE C FMV PROCEDURE AND METHODOLOGY | |
| SCHEDULE D INITIAL BUSINESS PLAN |
| -iv- |
SHAREHOLDERS AGREEMENT
This Shareholders Agreement is made effective as of June 3, 2024 (the "Effective Date").
Among:
HPDI TECHNOLOGY AB, a company incorporated under the laws of Sweden, with company registration number 559468-9696 and its registered office at Göteborg, Sweden (the "JVCo")
-and-
WESTPORT FUEL SYSTEMS CANADA INC., a corporation incorporated under the laws of British Columbia ("Westport Canada")
-and-
VOLVO BUSINESS SERVICES INTERNATIONAL AB, a company incorporated under the laws of Sweden, with company registration number 556539-9853 and its registered office at c/o AB Volvo, 405 08 Göteborg, Sweden ("Volvo Sweden")
Recitals:
| A. | Westport Canada acquired the JVCo as a shelf company on January 29, 2024, which had 25,000 shares issued and outstanding. The shares of JVCo were subsequently consolidated such that Westport held only one share in the capital of the JVCo; |
| B. | following transfer of the JV Business to the JV Group pursuant to closing of the transactions contemplated by the Asset PA, Westport Canada held 1,000 LP Units and 1,000 JVCo Shares, and remained the sole JVCo Shareholder; |
| C. | upon closing of the transactions contemplated in the Investment Agreement, Volvo Sweden acquired 450 JVCo Shares from Westport Canada and Volvo Canada acquired 450 GP Shares and 450 LP Units from Westport Canada; |
| D. | concurrent with the execution of this Agreement, Westport Canada and Volvo Canada entered into the Partnership Agreement and the GP USA; and |
| E. | the JVCo and the JVCo Shareholders wish to enter into this Agreement to provide for certain matters relating to the governance of the JVCo, certain rights and obligations in respect of the ownership of the JVCo Shares, the election of directors of the JVCo, the management and control of certain of the JVCo's affairs and certain other matters as hereinafter provided. |
NOW THEREFORE, the Parties agree as follows:
| -1- |
ARTICLE
1
INTERPRETATION
| 1.1 | Definitions |
In this Agreement, the following words have the following meanings:
"100% Affiliate" means, with respect to any Person, an Affiliate of such Person which is (directly or indirectly) wholly owned by that Person or which is (directly or indirectly) wholly owned by a Person which also (directly or indirectly) wholly owns the Person.
"Act" means the Companies Act (SFS 2005:551) (Sweden).
"Additional Dispute Notice" has the meaning set out in Schedule B.
"Affiliate" means, with respect to a Person: (a) any Person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with another Person; (b) any body corporate in respect of which such Person beneficially owns, directly or indirectly, voting securities carrying more than 20% of the voting rights attached to all voting securities of the body corporate for the time being outstanding; (c) any partner of such Person; or (d) any trust, estate or other entity or fund in which such Person has a substantial beneficial interest or as to which the Person serves as trustee, manager or administrator or in similar capacity, but in each case, with respect to any JVCo Shareholder, excluding each member of the JV Group and, with respect to any member of the JV Group, excluding each of the JVCo Shareholders; and for the purpose of this definition, "control" (including with correlative meanings, the terms "controlled by" or "under common control") means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this shareholders' agreement and the Schedules.
"Alternate Director" means an alternate director of the JVCo Board as described in the Act (Chapter 8, article 3).
"Anti-Bribery Laws" means any Applicable Laws relating to anti-bribery or anti-corruption (governmental or commercial), including the Swedish Criminal Code (SFS 1962:700) (Sweden), the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act of 1977 of the United States of America, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997, and any other Applicable Laws that prohibits the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value, directly or indirectly, to any Person, including any Governmental Official.
"Anti-Money Laundering Laws" means any Applicable Laws relating to money laundering or terrorism to which any of the Parties or any member of the JV Group is subject, including the Money Laundering and Terrorist Financing (Prevention) Act (SFS 2017:630) (Sweden), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Criminal Code (Canada), Executive Order No. 13224, and in each case the regulations promulgated thereunder.
| -2- |
"Anti-Trust Laws" means any Applicable Law in any jurisdiction in which any JVCo Shareholder, the JVCo or any other member of the JV Group carries on business (or will carry on business) that from time to time either: (a) prohibits anti-competitive agreement or abuse of market dominance; or (b) controls mergers or acquisitions that may have an impact on competition.
"Applicable Law" means any law, statute, code, ordinance, regulation, rule, Permit, rules of common law, including any judicial and administrative interpretations thereof, of any Governmental Entity which have been made public, including all judicial and administrative Orders which have been made public.
"Arbitration" has the meaning set out in Schedule B.
"Arbitrators" has the meaning set out in Appendix 3 to Schedule B.
"Asset PA" means the asset purchase agreement dated on or around the date of this Agreement between, amongst others, Westport Inc, Westport Canada, the Partnership and JVCo.
"Budget" means the annual budget with respect to the JV Group, covering a Fiscal Year that includes reasonable detail on financial projections, including profit and loss statement (which detail shall include, for the avoidance of doubt projected Operating Expenditures, projected Capital Expenditures and Projected Revenues), balance sheet and cash flow statement (and the material assumption underlying those projections), for such Fiscal Year and each Quarter thereof.
"Business Day" means a day on which banks are generally open for the transaction of commercial business in Vancouver, British Columbia, and Gothenburg, Sweden but does not in any event include a Saturday or a Sunday or statutory holiday in British Columbia or Gothenburg, Sweden.
"Business Objective" means the acceleration of development, commercialization and adoption of the HPDI technology on a sustainable basis for use, primarily, in the truck industry and in off-road applications including marine, rail, mining, power generation or generators, construction, and agriculture equipment applications.
"Business Plan" means the five-year business plan, presented on a Quarterly and aggregate annual basis, with respect to the JV Group, covering the upcoming five Fiscal Years that articulates the mid-term and long-term objectives of the JVCo Shareholders (and the GP Shareholders) with respect to the development and operation of the JV Business and provides a roadmap to achieve such objectives, and which shall include, at a minimum, the Budget, details of major investments, Funding Plan, strategic plan, and the agreed program for development, to be prepared in the form of the Initial Business Plan or in such other form as may be agreed pursuant to Section 5.4.
"Capital Expenditures" means all expenditures of each member of the JV Group which should be capitalised in accordance with IFRS that are, or are reasonably anticipated to be, approved to be capitalised by the appointed auditor of the relevant member of the JV Group.
| -3- |
"Carve Out Plan" means the steps and procedures as set out in exhibit "G" to the Investment Agreement, as the same may be amended from time to time in accordance with the Investment Agreement.
"Cash Call" means a notice, to be served by the JVCo Board on each of the JVCo Shareholders, requesting funding in accordance with Section 9.1(c).
"Cash Call Funding" has the meaning set out in Section 9.1(d)(i).
"Cash Call Funding Date" has the meaning set out in Section 9.1(d)(iv).
"CFO" means the chief financial officer of the JV Business, appointed in accordance with Section 4.10(b).
"Chair" has the meaning set out in Section 4.2.
"Commercial Agreements" means the Development Agreement and the New Supply Agreement.
"Compensation Arrangements" means any form of incentive plan, bonus plan pension scheme, benefits plan or similar arrangement.
"Confidential Information" has the meaning set out in Section 11.1(a).
"Contract" means any agreement, arrangement, indenture, contract, purchase order, lease, sublease, deed of trust, licence, option or instrument, in any case, whether written or oral.
"CTO" means the chief technology officer of the JV Business, appointed in accordance with Section 4.10(b).
"Default Budget" means a budget with respect to the JV Group for a Fiscal Year in respect of which the Directors do not approve the proposed Budget prior to the commencement of such Fiscal Year, which budget shall consist of:
| (a) | Operating Expenditures equal to 100% of the same percentage of Projected Revenues for such Fiscal Year as Operating Expenditures represented of the revenues for the previous Fiscal Year, as included in the Budget approved as part of the Business Plan for the previous Fiscal Year; and |
| (b) | Capital Expenditures equal to 100% of the same percentage of Projected Revenues for such Fiscal Year as Capital Expenditures represented of the revenues the previous Fiscal Year included in the Budget approved as part of the Business Plan for the previous Fiscal Year; and |
| (c) | such additional Operating Expenditures reasonably required to be incurred for the proper and safe operation of facilities and material equipment used in connection with the JV Business during such Fiscal Year. |
"Defaulted Amount" has the meaning set out in Section 9.3(a).
"Defaulting Shareholder" has the meaning set out in Section 10.1.
| -4- |
"Development Agreement" [Redacted – commercially sensitive information]
"Director" means a director of the JVCo Board.
"Dispute" means any controversy, claim, dispute or other matter in question between the Parties arising out of or relating in any way to this Agreement or the JVCo Articles.
"Effective Date" means the date first above written.
"Emergency Default Loan" has the meaning set out in Section 9.3(a).
"Emergency Dispute" has the meaning set out in Section 9.3(d).
"Emergency Extension Date" has the meaning set out in Section 9.3(c).
"Emergency Funding" has the meaning set out in Section 9.2(a).
"Emergency Funding Amount" has the meaning set out in Section 9.2(c)(i).
"Emergency Funding Date" has the meaning set out in Section 9.2(c)(iv).
"Emergency Funding Notice" has the meaning set out in Section 9.2(a).
"Emergency Funding Requirement" means any funding required by the JVCo (whether for itself or for another member of the JVCo Group) in order to: prevent (a) an Insolvency Event occurring in relation to the JVCo or, in the case of any member of the JVCo Group only, which would have a material impact on that part of the JV Business undertaken by the JVCo Group or the JV Business as a whole; (b) a breach of financial covenants under any Third Party financing to which the JVCo (or another member of the JVCo Group) is party; or (c) remedy or prevent an urgent health, safety or environmental concern.
"Emergency Funding Share" has the meaning set out in Section 9.2(c)(iii).
"Escalation Period" has the meaning set out in Appendix 1 to Schedule B.
"Event of Default" has the meaning set out in Section 10.1.
"Export Control Laws" means any Applicable Laws governing transactions in controlled goods or technologies, including the Export and Import Permits Act (Canada), and any related regulations, the EC Regulation 428/2009 and the implementing laws and regulations of the EU member states; the U.S. Export Administration Act, U.S. Export Administration Regulations, U.S. Arms Export Control Act, U.S. International Traffic in Arms Regulations, and their respective implementing rules and regulations; the U.K. Export Control Act 2002 (as amended and extended by the Export Control Order 2008) and its implementing rules and regulations; and other similar export control laws or restrictions applicable to the JVCo or any other member of the JV Group from time to time.
"First Adjourned Board Meeting" has the meaning set out in Section 4.5(d)(ii).
"First Adjourned Shareholders Meeting" has the meaning set out in Section 6.2(e)(ii).
| -5- |
"Fiscal Year" has the meaning set out in Section 2.3.
"FMV" means the price agreed by the JVCo Shareholders or, in default of such agreement, the fair market value of the JVCo Shares and JVCo Loans, as applicable, determined in accordance with the FMV Procedure and Methodology.
"FMV Procedure and Methodology" means the procedure and methodology for agreeing or determining FMV, as set out in Schedule C.
"Framework Agreement" means the framework agreement, the form of which is set out in the Investment Agreement.
"Funding Cap" has the meaning set out in Section 9.1(d)(ii).
"Funding Default" has the meaning set out in Section 9.3(a).
"Funding Defaulting Party" has the meaning set out in Section 9.3(a).
"Funding Non-Defaulting Party" has the meaning set out in Section 9.3(a).
"Funding Plan" means the funding plan for the JV Business for the 18 month period commencing at the start of the forthcoming Fiscal Year (provided that, the initial funding plan shall commence on the Effective Date and end at the end of the then-current Fiscal Year), including the amount of such funding to be provided to the JVCo Group by the JVCo Shareholders (in proportion to their respective JVCo Interests) and to the LP Group by the Limited Partners (in accordance with the Partnership Agreement), and/or whether any funding will be sourced by way of Third Party debt.
"General Partner" means 1463861 B.C. Ltd., a corporation incorporated under the laws of the Province of British Columbia, and the general partner of the Partnership.
"Governmental Entity" means any: (a) government or political subdivision, whether federal, provincial, local or foreign; (b) agency or instrumentality of any such government or political subdivision; (c) federal, state, local or foreign court; (d) applicable industry self-regulatory organization; and (e) applicable stock exchange or securities regulatory authority.
"Governmental Official" means (a) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, any Governmental Entity; (b) any political party, political party official or candidate for political office; (c) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, a company, business, enterprise or other entity owned, in whole or in part, or controlled by any Governmental Entity; or (d) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, a public international organization.
"GP Articles" means the articles of association of the General Partner from time to time in force.
"GP Board" means the board of directors of the General Partner, appointed in accordance with the GP USA and GP Articles from time to time.
| -6- |
"GP Interest" means at any time with respect to a GP Shareholder, that GP Shareholder's rateable ownership of GP Shares expressed as a percentage, which percentage is determined by dividing the number of GP Shares owned by the GP Shareholder by the total number of GP Shares owned by all GP Shareholders.
"GP Shareholder" has the meaning set out in the GP USA.
"GP Shares" means common shares in the General Partner.
"GP USA" means the unanimous shareholders agreement relating to the General Partner entered into on the Effective Date, among the General Partner, Westport Canada and Volvo Canada.
"Holding Company" means, in relation to Volvo Canada (which term shall be deemed to include for these purposes any 100% Affiliate to which Volvo Canada has Transferred any GP Shares, LP Units or LP Loans), that since incorporation Volvo Canada has only carried out the function of holding GP Shares, LP Units and making any LP Loans, and does not have any outstanding liabilities or indebtedness other than any liabilities or indebtedness arising in the ordinary course of it carrying out such function including under the Partnership Agreement and the GP USA.
"HPDI" means high pressure direct injection.
"HPDI System" [Redacted – commercially sensitive information]
"ICC" has the meaning set out in Schedule B.
"ICC Rules" has the meaning set out in Appendix 3 to Schedule B.
"IFRS" means the accounting principles so prescribed, recommended or promulgated from time to time as the International Financial Reporting Standards, as issued by the International Accounting Standard Board or any successor thereto, as such principles may be amended, varied or replaced from time to time, which are applicable as at the date on which any calculation made hereunder is to be effective or as at the date of any financial statements referred to herein.
"Initial Business Plan" means the initial Business Plan attached hereto as Schedule D.
"Initial Dispute Notice" has the meaning set out in Schedule B.
"Insolvency Event" means:
| (a) | a Person ceases or threatens to cease to carry on business, commits an act of bankruptcy (as such term is defined in the Bankruptcy and Insolvency Act (Canada) ("BIA")), becomes insolvent, or proceedings or other actions are taken by or against such entity under the BIA, or the Companies' Creditors Arrangement Act (Canada) or similar legislation whether in Canada or elsewhere; |
| (b) | any formal or informal proceeding for the dissolution or liquidation or settlement of claims against or winding up of affairs of a Person is instituted by or against such Person; |
| -7- |
| (c) | a Person voluntarily makes an assignment in bankruptcy, commences (or consents to the commencement of) a voluntary application or other proceeding to be adjudicated a voluntary bankrupt, or seeking liquidation, compromise, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, monitor, custodian or other similar official of it, or consents to the filing of a bankruptcy proceeding against it or to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it; |
| (d) | an involuntary application or other proceeding is commenced against a Person seeking liquidation, compromise, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, monitor, custodian or other similar official of it or any substantial party of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 Business Days; |
| (e) | a receiver, trustee, monitor, custodian or other similar official is appointed in respect of the property of a Person; |
| (f) | a Person files a proposal or notice of intention to make a proposal under the BIA; |
| (g) | a Person makes a fraudulent gift, delivery or transfer of its property or of any part of it, or assigns, removes, secretes or disposes of or attempts or is about to assign, remove, secrete or dispose of any of its property with intent to defraud, defeat or delay its creditors or any of them; or |
| (h) | any indebtedness or liability of a Person, other than to a JVCo Shareholder or an Affiliate of a JVCo Shareholder, becomes due and payable before the stated maturity thereof or any such indebtedness or liability is not paid at the maturity thereof or upon the expiration of any stated applicable grace period thereof, or such Person fails to make payment when due under any: (i) guarantee given by, (ii) court or arbitration Order that applies to, or (iii) settlement agreement entered into by, such Person. |
"Intellectual Property" means any intellectual property existing from time to time, including any rights in a specific jurisdiction associated with the following and other intangible assets: (a) patents, patent applications, utility models, inventions, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof; (b) trademarks, service marks, trade dress, logos, trade names, corporate names, Internet domain names, indications and appellations of origin, rights under the law of passing off and equivalents, design rights and other source identifiers, together with the goodwill symbolized by any of the foregoing; (c) copyrightable works, copyrights (whether registered or unregistered), related rights and allied rights including moral rights, software, databases, topographies, performances and in recordings, as well as any works protected by design law or other intellectual or industrial property laws; (d) confidential and proprietary information, including trade secrets, know-how, ideas, inventions, systems, formulae, models and methodologies as well as the right in any jurisdiction to limit the use or disclosure thereof; (e) industrial designs; and (f) all applications and registrations for the foregoing.
| -8- |
"Investment Agreement" means the investment agreement dated March 11, 2024 between Westport Inc, Westport Canada, Volvo Sweden and Volvo Canada.
"Investment Closing" has the meaning set out in the Investment Agreement.
"IP HoldCo" has the meaning set out in Section 12.2(d).
"IT Transition Plan" means the IT Carve-Out Roadmap and related transition plan schedules in final form agreed pursuant to section 6.6 of the Investment Agreement.
"JV Agreements" means this Agreement, the JVCo Articles, the GP USA, the GP Articles and the Partnership Agreement.
"JV Business" means the development, manufacture, sales, marketing and aftermarket support, service and sales of the components and systems that comprise the HPDI System for use by any OEM (including any Third Party OEM, Volvo Canada, Volvo Sweden or any Affiliate of Volvo Canada or Volvo Sweden), and in any market globally, and includes carrying on the business in order to meet the Business Objective, but excludes the Sub-components Business.
"JV Default Loan" has the meaning set out in Section 9.3(a).
"JV Group" means the JVCo Group and the LP Group.
"JVCo" has the meaning set out in the Recitals.
"JVCo Articles" means the articles of association of JVCo, as amended or replaced from time to time in accordance with the Act.
"JVCo Board" means the board of directors of JVCo, appointed in accordance with this Agreement and the JVCo Articles from time to time.
"JVCo Group" means JVCo and each of its Subsidiaries.
"JVCo Group's Intellectual Property" means the Intellectual Property owned, co-owned or created by, or licensed to, any member of the JVCo Group or in which any member of the JVCo Group otherwise has an interest, including the Intellectual Property transferred by Westport Canada and/ or its Affiliates to any member of the JVCo Group pursuant to the JV Agreements, the Investment Agreement, the Asset PA and any assignment agreement or license contemplated therein.
"JVCo Interest" means at any time with respect to a JVCo Shareholder, that JVCo Shareholder's rateable ownership of JVCo Shares expressed as a percentage, which percentage is determined by dividing the number of JVCo Shares owned by the JVCo Shareholder by the total number of JVCo Shares owned by all JVCo Shareholders.
"JVCo Loans" means any and all loans provided by a JVCo Shareholder pursuant to Section 9.1(d)(iii).
"JVCo Loan Agreement" has the meaning set out in Section 9.1(d)(iii).
"JVCo Shareholders" means, collectively:
| -9- |
| (a) | the shareholders of the JVCo listed in Schedule A as of the Effective Date; and |
| (b) | any Person who hereafter becomes a shareholder of the JVCo pursuant to and in compliance with the provisions hereof (who shall be listed as such in Schedule A as amended from time to time), |
and "JVCo Shareholder" means any one of them.
"JVCo Shares" means the common shares in the capital of JVCo, and where the context permits, includes:
| (a) | any shares into which such shares may be converted, reclassified, redesignated, subdivided, consolidated or otherwise changed; and |
| (b) | any shares of the JVCo or of any other Person received by the holders of such shares as a result of any merger, amalgamation, reorganization, arrangement or other similar transaction involving the JVCo. |
"Knowledge of Management" means with respect to any matter the actual knowledge of any member of Management or the knowledge any of them should have had, had they made reasonable due inquiry and having regard to their role, with respect to the applicable matter at the relevant time.
"Lien" means any lien, security interest, mortgage, pledge, charge, license, adverse claim, reversion, restriction, assignment, option, right to acquire or encumbrance of any kind.
"Limited Partners" means Westport Canada, Volvo Canada, and any other Person who shall be admitted to the Partnership as a limited partner of the Partnership, and "Limited Partner" means any one of them.
"Liquidation Event" has the meaning set out in Section 12.2(b).
"Liquidation IP" has the meaning set out in Section 12.2(b).
"Liquidation IP License" has the meaning set out in Section 12.2(b).
"LP Group" means the Partnership, each of its Subsidiaries and the General Partner.
"LP Interest" has the meaning set out in the Partnership Agreement.
"LP Loans" has the meaning set out in the Partnership Agreement.
"LP ROFR" means the right of first refusal granted pursuant to the Partnership Agreement and/or the GP USA, giving each Limited Partner an option to acquire LP Units, LP Loans and GP Shares proposed to be sold by the other Limited Partner(s).
"LP Units" has the meaning set out in the Partnership Agreement.
"Management" means the President & CEO, the CFO and the CTO of the JV Group and any other officer of the JV Group nominated by the President & CEO and approved by the JVCo Board in accordance with Section 4.10 or the GP Board in accordance with the GP USA, as applicable.
| -10- |
"Net Business Value" has the meaning set out in Schedule C.
"New Supply Agreement" means a supply agreement in relation to HPDI products, comprised of the Price Agreement, Framework Agreement and Raw Material Agreement, and entered into between the Partnership and Aktiebolaget Volvo (publ) on the Effective Date.
"Non-Defaulting Shareholder" has the meaning set out in Section 10.1.
"Notified Shareholder" has the meaning set out in Appendix 4 to Schedule B.
"OECD" means the Organization for Economic Cooperation and Development.
"OEM" means a vehicle or engine original equipment manufacturer targeting on-road products or off-road products (including trucking, mine, marine, agricultural, construction and rail equipment) utilizing HPDI Systems.
"OEM Licenses" shall mean the licenses granted by any member of the JV Group to any member of Westport Canada's Limited Partner Group in order to facilitate an arrangement pursuant to Section 5.3(b) of the GP USA and/or this Agreement.
"Offer" has the meaning set out in Section 7.8(a).
"Offer Acceptance" has the meaning set out in Section 7.8(c).
"Offer Exercise Period" has the meaning set out in Section 7.8(c).
"Offer Notice" has the meaning set out in Section 7.8(a).
"Offer Price" has the meaning set out in Section 7.8(b)(i).
"Offered Units" has the meaning set out in Section 7.8(a).
"Offering Party" has the meaning set out in Section 7.8(a).
"Operating Expenditures" means all expenditures of each member of the JV Group, other than Capital Expenditures, including general and administrative expenditures, interest expenditures, operating expenditures and maintenance expenditures.
"Order" means any order, judgment, ruling, injunction, assessment, award, decree or writ of any Governmental Entity.
"Outstanding Dispute" has the meaning set out in Appendix 1 to Schedule B,
"Parties" means the JVCo, Westport Canada, and Volvo Sweden, and "Party" means any one of them as the context requires.
"Partnership" means the HPDI Technology Limited Partnership, a limited partnership formed under the laws of British Columbia.
| -11- |
"Partnership Agreement" means the amended and restated limited partnership agreement entered into on the Effective Date, among the General Partner, as the general partner, and Westport Canada and Volvo Canada, as the Limited Partners.
"Partnership Dispute" has the meaning set out in paragraph 1.1(a) of Schedule B.
"Permit" means any license, permit, authorization, certificate of authority, qualification or similar document or authority that has been issued or granted by any Governmental Entity.
"Permitted Affiliates" means, in respect of Volvo Sweden: (a) Affiliates that are distributors or dealers; or (b) any Affiliate in respect of which Volvo Sweden (or another of its Affiliates) does not possess, directly or indirectly, the sole power to direct or cause the direction of such Person's management or policies, whether because it holds less than 50% of the voting share capital, or by contract or otherwise.
"Permitted Business" [Redacted – commercially sensitive information]
"Permitted Lien" means a pledge of JVCo Shares as security to a Third Party lender in accordance with the terms of Section 7.14 or, as the context requires, the pledge of LP Units and/or GP Shares to a Third Party lender in accordance with the terms of the Partnership Agreement and the GP USA.
"Permitted Lien Default" has the meaning set out in Section 10.1(a)(ii).
"Persistent Breach" means, without duplication:
| (a) | the Defaulting Shareholder (or any of its Affiliates, as applicable) fails to pay any amount required to be paid by it under the Investment Agreement, this Agreement, the GP USA or the Partnership Agreement (but excluding the Commercial Agreements) to the other JVCo Shareholders, the JVCo, any of the GP Shareholders, the General Partner, any of the Limited Partners or the Partnership, [Redacted – commercially sensitive information]; |
| (b) | [Redacted – commercially sensitive information]; or |
| (c) | the Defaulting Shareholder has failed to fund as referred to in Section 9.3(g). |
"Person" means any individual (natural person), partnership, limited partnership, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, limited liability company, trust, trustee, executor, administrator or other legal personal representative, Governmental Entity or entity however designated or constituted.
"President & CEO" means the president and chief executive officer of the JV Business, appointed in accordance with Section 4.10(a).
"Price Agreement" means the price agreement, the form of which is attached to the Investment Agreement.
"Project Agreements" means the Commercial Agreements, the Investment Agreement, the JV Agreements and the Westport Non-Compete.
| -12- |
"Projected Revenues" means, in respect of any Fiscal Year, the projected revenues of the JV Group for such Fiscal Year as reflected in the last agreed Business Plan.
"Proposed Purchaser" has the meaning set out in Section 7.8(e)(i).
"Quarter" or "Quarterly" means each continuous three-month period during a calendar year, ending on March 31, June 30, September 30 or December 31.
"Raw Material Agreement" means the raw material agreement in the form to be agreed pursuant to the Investment Agreement.
"Related Party Agreement" means any Contract between any member of the JVCo Group, on the one hand, and a JVCo Shareholder, Limited Partner or an Affiliate of a JVCo Shareholder or a Limited Partner, on the other hand.
"Relevant Percentage" with respect to a JVCo Shareholder means that JVCo Shareholder's JVCo Interest being at least 25%.
"Representatives" means the directors, officers, employees, agents, lawyers, accountants, consultants and financial advisors of a Party and Affiliates of a Party.
"Restricted Information" has the meaning set out in Section 11.2.
"ROFR Closing" has the meaning set out in Section 7.8(d)(i).
"ROFR Holder" has the meaning set out in Section 7.8(a).
"ROFR Transfer" has the meaning set out in Section 7.8(b)(iii).
"Sale Transaction" has the meaning set out in Appendix 4 to Schedule B.
"Sanctions Laws" means any Applicable Laws related to economic or financial sanctions, or trade embargoes or restrictive measures, enacted, imposed, administered or enforced from time to time by (a) the U.S. government, including the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or the U.S. Department of Commerce (b) the United Nations Security Council; (c) the European Union or any of its member states; (d) Her Majesty's Treasury; (e) the Canadian Government; or (f) any other relevant authority, and including the Criminal Code (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), the Special Economic Measures Act (Canada), the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (Canada) and the United Nations Act (Canada).
"Schedules" means the schedules to this Agreement identified in Section 1.2.
"Second Adjourned Board Meeting" has the meaning set out in Section 4.5(d)(ii).
"Second Adjourned Shareholders Meeting" has the meaning set out in Section 6.2(e)(ii).
"Senior Representatives" has the meaning set out in Schedule B.
| -13- |
"Shareholder Group" means, with respect to a JVCo Shareholder: (a) any Person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such JVCo Shareholder; or (b) any body corporate in respect of which such JVCo Shareholder beneficially owns, directly or indirectly, voting securities carrying more than 50% of the voting rights attached to all voting securities of the body corporate for the time being outstanding, but in each case excluding each member of the JV Group; and for the purpose of this definition, "control" (including with correlative meanings, the terms "controlled by" or "under common control") means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting securities, by contract or otherwise.
"Shotgun Closing Date" has the meaning set out in Appendix 4 to Schedule B.
"Shotgun Election Notice" has the meaning set out in Appendix 4 to Schedule B.
"Shotgun Offer" has the meaning set out in Appendix 4 to Schedule B.
"Significant Deadlock Event" means:
| (a) | no Business Plan receives Specified Board Approval for two consecutive years which significantly impacts the ability of the JV Group to meet the Business Objective; |
| (b) | [Redacted – commercially sensitive information]; or |
| (c) | a "Significant Deadlock Event" (as such term is defined in the GP USA) occurs pursuant to the terms of the GP USA. |
"SOFR" [Redacted – commercially sensitive information]
"Specified Board Approval" means, with respect to any matter, the approval of such matter by all Directors appointed by JVCo Shareholders who hold a Relevant Percentage at the time of such approval, as evidenced by: (a) a resolution approving such matter passed by a vote of all such Directors in person or by proxy at a duly convened meeting of the Directors or any adjournment thereof; or (b) a written resolution signed in one or more counterparts by all such Directors.
"Specified Shareholder Approval" means, with respect to any matter, the approval of such matter by all JVCo Shareholders who hold a Relevant Percentage at the time of such approval, as evidenced by: (a) a resolution approving such matter passed by a vote of all such JVCo Shareholders in person or by proxy at a duly convened meeting of the JVCo Shareholders or any adjournment thereof; or (b) a written resolution signed in one or more counterparts by all such JVCo Shareholders.
"SR Escalation Notice" has the meaning set out in Schedule B.
"Sub-components Business" [Redacted – commercially sensitive information]
"Subsidiary" means any subsidiary (as defined in the Securities Act (British Columbia)) of the Partnership or the JVCo from time to time (excluding any entity in which the Partnership or the JVCo does not, directly or indirectly, hold greater than 50% of the voting equity), or any other Person in which the Partnership or the JVCo holds greater than 50% of the voting equity or which is controlled by the Partnership or the JVCo, in each case directly or indirectly, and for the purpose of this definition, "controlled by" means the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
| -14- |
"Tax" or "Taxes" means all federal, provincial, state, territorial, local and other taxes, assessments, charges, duties, tariffs, deficiencies, fees, excises, premiums, imposts, levies or other governmental charges (including interest, fines, penalties or additions associated therewith), including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, employer health, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, goods and services, harmonized sales, value-added, alternative, estimated and all other taxes, and all employment insurance, health insurance and government pension plan premiums or contributions, of any kind for which a Person may have any liability imposed by any Governmental Entity, whether disputed or not, or payable: (a) pursuant to any tax sharing or tax indemnity arrangement or any other contract relating to sharing or payment of such tax, assessment, charge, duty, tariff, deficiency, fee, levy or other governmental charge; (b) or as a result of being a transferee or successor of another Person; or (c) as a result of being a member of an affiliated, consolidated, combined or unitary group (in each case together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties).
"Tax Debtor" has the meaning set out in Section 5.13.
"Tax Dispute" means any Dispute relating to the TP Model or any Tax Return.
"Tax Expert" means any one of Pricewaterhouse Coopers, Ernst & Young, KPMG or Deloitte, as agreed by the JVCo Shareholders or appointed in accordance with Schedule B.
"Tax Indemnitees" has the meaning set out in Section 5.13.
"Tax Return" means any report, return (including any information return), statement, schedule, notice, form, declaration, claim for refund or other statement, document or information (including any schedule or attachment thereto or amendment thereof) required to be supplied to a Governmental Entity in connection with the determination, assessment, collection or payment of any Taxes or in connection with the administration, implementation or enforcement of or compliance with any Applicable Law relating to Taxes, including any estimated returns and reports of every kind, with respect to Taxes.
"Terminated Shareholder" has the meaning set out in Section 7.7(a).
"Terminating Event" has the meaning set out in Section 7.7(a).
"Third Party" means any Person other than the Parties and their respective Affiliates.
"Third Party OEM" means any OEM that is a Third Party.
"TP Model" has the meaning set out in Section 5.11.
"Transfer" means:
| -15- |
| (a) | a transfer of any JVCo Shares or JVCo Loans or, as the context requires, any LP Units, GP Shares, LP Loans or shares in Volvo Canada, to any Person, including to an Affiliate of a JVCo Shareholder (or, as the context requires, an Affiliate of a Limited Partner); |
| (b) | any sale, exchange, transfer, assignment, gift, mortgage, pledge, encumbrance, hypothecation, alienation, transmission or other transaction or disposition, whether voluntary, involuntary or by operation of law, by which the beneficial ownership, the economic risk of return, a security interest or other interest in, any JVCo Shares or JVCo Loans or, as the context requires, any LP Units, GP Shares, LP Loans or shares in Volvo Canada, passes from one Person to another Person (including an Affiliate) or to the same Person in a different capacity, whether or not for value; or |
| (c) | any transaction, agreement, undertaking, commitment or arrangement to effect any of the foregoing, |
and "to Transfer", "Transferred", "Transferring", "Transferor" and "Transferee" and similar expressions have corresponding meanings.
"Triggering Shareholder" has the meaning set out in Appendix 4 to Schedule B.
"Valuator" has the meaning set out in Schedule C.
"Volvo Canada" means Volvo HPDI Holding Inc., a corporation incorporated under the federal laws of Canada.
"Volvo Restricted Business" [Redacted – commercially sensitive information].
"Volvo Sweden" has the meaning set out in the Recitals.
"Westport Canada" has the meaning set out in the Recitals.
"Westport Inc" means Westport Fuel Systems, Inc, a corporation incorporated under the laws of the Province of Alberta.
"Westport Non-Compete" means the non-compete agreement entered into between Westport Inc and Volvo Sweden dated the Effective Date.
"Westport Restricted Business" [Redacted – commercially sensitive information].
"Windup IP Solution" has the meaning set out in Section 12.2(d).
| 1.2 | Schedules |
The following schedules are attached to and form part of this Agreement:
Schedule A – Shareholder Capital
Schedule B – Dispute Resolution and Deadlock
Schedule C – FMV Procedure and Methodology
| -16- |
Schedule D – Initial Business Plan
If there is any conflict or inconsistency between the provisions of the body of this Agreement and those of a Schedule, the provisions of the body of this Agreement shall prevail to the extent of the conflict.
| 1.3 | Interpretation |
In this Agreement:
| (a) | words importing gender include all genders and other Persons, and words in the singular include the plural, and vice versa, wherever the context requires; |
| (b) | if a word is defined in this Agreement, a derivative of that word shall have a corresponding meaning; |
| (c) | all references to designated articles, sections, schedules and other subdivisions are to designated articles, sections, schedules and other subdivisions of this Agreement; |
| (d) | any reference to a Person in a particular capacity is and is deemed to be a reference to that Person in that capacity and not in any other capacity; |
| (e) | all references to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; |
| (f) | the term "including", "includes", "include" and "in particular" means "including (or includes, include, or in particular) without limitation"; |
| (g) | headings and the Table of Contents are not to be considered part of this Agreement and are included solely for convenience of reference and are not intended to be full or accurate descriptions of the contents hereof; |
| (h) | all accounting terms not otherwise defined will have the meanings assigned to them by, and all computations to be made will be made in accordance with, IFRS; |
| (i) | references to any Applicable Law (including any statute referenced in this Agreement) means such Applicable Law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and references to any section or other provision of any Applicable Law means that provision of such Applicable Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision; |
| (j) | any reference to a Person will include and will be deemed to be a reference to any Person that is a successor or assign to that Person (but only to the extent such Person is permitted to be a successor to or assignee of such Person pursuant to the provisions of this Agreement); |
| (k) | all references to US$ are references to United States Dollars and all references to SEK are references to Swedish Krona; |
| -17- |
| (l) | the rule of contractual interpretation known as "contra proferentem" shall not apply to the interpretation or construction of this Agreement, such that in interpreting this Agreement, it shall be irrelevant which Party drafted any particular provision hereof; |
| (m) | unless otherwise specified herein, or as the context may require, computation of any period of time referred to in this Agreement shall exclude the first day and include the last day of such period; and |
| (n) | unless otherwise indicated, references to the time of day or date mean the local time or date in Vancouver, British Columbia. |
| 1.4 | Governing Law |
Subject to applicable mandatory provisions in the Act or where an action or resolution is otherwise required by applicable mandatory Swedish law in relation to the JVCo, this Agreement will be governed by and construed, interpreted and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without reference to conflict of laws principles, whereas the JVCo is validly existing, construed and governed by the laws of Sweden.
| 1.5 | Subsidiaries |
Save as provided in this Agreement and subject to any amendments required as a result of Applicable Law in such Subsidiaries' jurisdictions of incorporation, any Subsidiary of the JVCo will be governed and operated in the same manner as the JVCo is governed and operated hereunder, and this Agreement will be interpreted and applied to give effect to the foregoing, including the matters contemplated in Section 4.6 and Section 6.1.
ARTICLE
2
ORGANIZATION OF THE CORPORATION
| 2.1 | Business of the JVCo |
The JVCo has been formed and will function for the sole purpose of carrying out the JV Business in conjunction with the other members of the JV Group, upon and subject to the rights, terms, conditions, restrictions and privileges specified in this Agreement and that are otherwise required by Applicable Law, and to engage in all activities directly related thereto. Except as otherwise provided for in this Agreement or by Specified Shareholder Approval, the JVCo shall not carry on any business other than the JV Business.
| 2.2 | Principal Place of Business |
The principal office of the JVCo will be located at Hulda Lindgrens gata 4, 421 31 Västra Frölunda, Gothenburg, or at such other place or places in Sweden as the JVCo Board may from time to time designate upon written notice to the JVCo Shareholders.
| 2.3 | Fiscal Year |
The fiscal year of the JVCo shall be the period of 12 months ending on December 31 each year (the "Fiscal Year").
| -18- |
| 2.4 | Freedom in Decision Making |
Subject to this Agreement and Applicable Law, and save in the case of fraud or wilful misconduct:
| (a) | no JVCo Shareholder shall be accountable or liable to the other JVCo Shareholders or the JVCo as a result of acting in its own best interest, except in the case of any decision or action that is illegal or in breach of this Agreement and except as otherwise expressly provided in this Agreement; and |
| (b) | no nominee of a JVCo Shareholder to the JVCo Board or a sub-committee shall be accountable or liable to the other JVCo Shareholders, the JVCo or the other Directors as a result of such individual acting in accordance with the instructions or preference of his nominator. |
Notwithstanding the foregoing, each JVCo Shareholder shall in good faith consider any objections or reservations expressed by the other JVCo Shareholder concerning the performance of a nominee of such JVCo Shareholder.
ARTICLE
3
CERTAIN COVENANTS AND ACKNOWLEDGEMENTS
| 3.1 | Covenants of the Shareholders |
Each JVCo Shareholder covenants and agrees that it will vote, or cause to be voted, the JVCo Shares owned by it to accomplish and give effect to the terms and conditions of this Agreement, whether at a meeting of the JVCo Shareholders or by written resolution.
| 3.2 | Covenants of the JVCo |
The JVCo consents to the provisions of this Agreement and covenants and agrees that it will, at all times during the term of this Agreement, comply with this Agreement in carrying on the JV Business.
| 3.3 | Shareholder Agreement |
It is the intention of the Parties in entering into this Agreement that the power of the Directors to manage or supervise the management of the business and affairs of the JVCo is restricted in accordance with the terms of this Agreement. The Parties shall amend the JVCo Articles as necessary from time to time to give effect to the restrictions on the power of Directors outlined herein.
| 3.4 | Relationship of Shareholders |
Except as expressly authorized by this Agreement, nothing in this Agreement shall be construed to authorize any JVCo Shareholder to act as the agent of any other JVCo Shareholder, nor to permit any JVCo Shareholder to act on behalf of or bind any other JVCo Shareholder or to give any JVCo Shareholder the authority to act for or to assume or incur any obligations or liabilities on behalf of any other JVCo Shareholder or to pledge the credit of any other JVCo Shareholder. For greater certainty, nothing in this Agreement shall be deemed to constitute any JVCo Shareholder the partner of any other JVCo Shareholder.
| -19- |
| 3.5 | Non-Competition |
[Redacted – commercially sensitive information].
ARTICLE
4
BOARD OF DIRECTORS
| 4.1 | Board of Directors |
| (a) | Unless otherwise agreed by Specified Shareholder Approval, the JVCo Board shall consist of up to six Directors. Each JVCo Shareholder shall be entitled to nominate up to three Directors to the JVCo Board. If any JVCo Shareholder's JVCo Interest: (i) reduces below 40% but remains greater than or equal to 25%, such JVCo Shareholder shall be entitled to nominate only two Directors to the JVCo Board; (ii) reduces below 25% but remains greater than or equal to 5%, such JVCo Shareholder shall be entitled to nominate only one Director to the JVCo Board; and (iii) reduces below 5%, such JVCo Shareholder shall no longer be entitled to nominate any directors to the JVCo Board, and in each such case the total number of members of the JVCo Board shall be adjusted accordingly. The JVCo Shareholders acknowledge and agree that: (A) the JVCo Board shall at all times have the same composition and appointees as the GP Board; and (B) at least 50% of the JVCo Board (and the GP Board) shall be resident in the European Economic Area, unless the Parties agree otherwise in writing or the JVCo is granted an exemption from the European Economic Area residency requirement by the Swedish Companies Registration Office. |
| (b) | Based upon their respective JVCo Interests as of the Effective Date, the JVCo Shareholders shall initially be entitled to nominate and have elected the following number of Directors to the JVCo Board: |
| (i) | Westport Canada shall be entitled to nominate three Directors to the JVCo Board; and |
| (ii) | Volvo Sweden shall be entitled to nominate three Directors to the JVCo Board. |
If at any time, and from time to time, the JVCo Interests of the JVCo Shareholders change, the JVCo Shareholders shall take such steps as may be required to accommodate the nomination rights of the JVCo Shareholders set out in Section 4.1(a).
| (c) | Each JVCo Shareholder shall have the right to remove and replace any of the Directors it nominated at any time by giving notice of such change to the other Parties. |
| (d) | Upon nomination of an individual as a Director in accordance with this Section 4.1, the other JVCo Shareholders undertakes to vote in favour to elect that nominee. |
| -20- |
| (e) | If a vacancy on the JVCo Board arises for any reason whatsoever, such vacancy shall be filled by the election of a Director nominated by the JVCo Shareholder whose nominee has vacated the position as Director. |
| (f) | Without prejudice to any Director's obligations under the Act, the Directors will not transact any business or exercise any of their powers or functions if there is a vacancy on the JVCo Board such that a JVCo Shareholder entitled to nominate one or more Directors to the JVCo Board is entirely unrepresented. In such circumstances, if a replacement Director is not elected or appointed because the JVCo Shareholder has failed to nominate a replacement within 30 Business Days of vacancy, the Directors then in office shall be entitled to transact business and exercise all of the powers and functions of the JVCo Board, and any decision or action made by them is, and shall be conclusively deemed to be, a decision or action of the JVCo Board. |
| (g) | No remuneration shall be paid to the Directors in their capacities as Directors. |
| 4.2 | Chair of the JVCo Board |
The appointment of the chair of the JVCo Board shall rotate between the Director appointees of the JVCo Shareholders every three years which shall (save in respect of the initial Chair) commence on June 30th (the "Chair"). The initial Chair shall be appointed by Westport Canada, with effect from the Effective Date and whose term shall end on June 30, 2027. The Chair shall not have a casting or second vote at meetings of the JVCo Board, and the JVCo Shareholders shall procure that the Chair shall also be appointed the chair of the GP Board in accordance with the GP USA.
| 4.3 | Indemnification |
| (a) | To the fullest extent permitted by Applicable Law, the JVCo shall indemnify all Directors, officers, former Directors and former officers, and all individuals who act or acted at the JVCo's request as a Director or officer of a body corporate of which the JVCo is or was a shareholder or creditor, and their heirs and legal personal representatives, against all claims, liabilities, damages, losses, charges, costs and expenses of any nature whatsoever, including any amount paid to settle any action or satisfy a judgment reasonably incurred by them in respect of any civil, criminal or administrative action or proceeding to which they are made a party by reason of being or having been a Director or an officer of such body corporate or by reason of acting or having acted as a Director or an officer if: |
| (i) | they acted honestly and in good faith with a view to the best interests of the JVCo; |
| (ii) | in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, they had reasonable grounds for believing that their conduct was lawful; and |
| (iii) | such claim is not in respect of a claim made by one JVCo Shareholder against the other JVCo Shareholder. |
| -21- |
| (b) | The intention of this Section 4.3 is that all Persons referred to in this Section 4.3 shall benefit to the fullest extent permitted by Applicable Law, and the JVCo shall forthwith pass all resolutions and take such other steps as may be required to give full effect to this Section 4.3. |
| 4.4 | Insurance |
The JVCo shall purchase or maintain insurance for the benefit of the Directors and officers against liabilities with respect to their positions with the JVCo by a reputable insurer in such amounts and on such terms as determined by the JVCo Board.
| 4.5 | Meetings of the Board of Directors |
Meetings of the JVCo Board shall be held in the manner deemed appropriate by the Directors; provided that, the following provisions shall prevail:
| (a) | Location. Unless otherwise unanimously determined by the JVCo Board, meetings of the JVCo Board shall be held on a Business Day, virtually or in person, provided that: (i) there shall be at least two in person meetings in each Fiscal Year in Sweden; (ii) no more than half of all in person meetings in each Fiscal Year shall be held outside Sweden; and (iii) for each virtual meeting, the number of Directors located outside Sweden shall not exceed the number of Directors located in Sweden. |
| (b) | Calling Meetings. The Chair shall call meetings of the JVCo Board to be held no less than four times a year, on a schedule to be agreed by the JVCo Board at the start of each Fiscal Year, and otherwise at such times as the Chair considers appropriate, including to discuss extraordinary matters, and shall otherwise call a meeting upon receipt of a written request from one Director or the President & CEO. If the Chair fails or neglects to call, within 12 hours after receipt of such written request, a meeting to be held on such notice and otherwise in accordance with Section 4.5(c), any Director or the President & CEO may call the meeting instead. |
| (c) | Agenda and Meeting Materials. All notices of meetings of the JVCo Board which are not part of the annual meeting schedule referred to in Section 4.5(b) shall be given to each Director at least three months prior to the meeting, save that an extraordinary meeting may be held on not less than 72 hours' notice. Such notice shall specify the time and the place where the meeting is to be held. Not less than 5 Business Days prior to the date set for a meeting (or when the notice of the meeting is given, if sooner) an agenda specifying, in reasonable detail, all matters that are to be the subject of a vote at such meeting and sufficient information to enable Directors to make a reasoned judgment on all such matters shall be sent to the Directors. It shall not be necessary for any such notice to set out the exact text of any resolution proposed to be passed at the meeting provided that the subject matter of such resolution is fairly set out in the notice or schedule thereto. Accidental omissions to give notice of a meeting to, or the non-receipt of notice of a meeting by, any Director will not invalidate proceedings at that meeting. The failure to include an item on the agenda shall preclude the JVCo Board from passing a resolution in relation to that item until the next JVCo Board meeting called to consider that item, unless: |
| -22- |
| (i) | there is a quorum of Directors present at the meeting; and |
| (ii) | the Directors present and entitled to vote at the meeting agree to include the item on the agenda. |
| (d) | Quorum and Attendance. |
| (i) | A quorum for any meeting of the JVCo Board shall be two Directors nominated by each JVCo Shareholder present in person or by proxy at each meeting of the JVCo Board, unless based on their JVCo Interests: (A) a JVCo Shareholder is only entitled to nominate one Director, in which case the quorum will be one Director nominate by each JVCo Shareholder; or (B) a JVCo Shareholder is not entitled to nominate any Directors, in which case the quorum will be a simple majority of all Directors. Subject to Section 4.1(f), the JVCo Board shall not transact business at a meeting unless such quorum is present. |
| (ii) | If a quorum referred to in Section 4.5(d)(i) is not present within thirty minutes from the time fixed for holding any such meeting, the meeting may be adjourned by the Chair to a date that is five Business Days later at the same time and place (such adjourned meeting being, the "First Adjourned Board Meeting"). If a quorum referred to in Section 4.5(d)(i) is not present within thirty minutes from the time fixed for holding any such First Adjourned Board Meeting, the First Adjourned Board Meeting may be further adjourned by the Chair to a date that is five Business Days later at the same time and place (such further adjourned meeting being, the "Second Adjourned Board Meeting"). No notice of the Second Adjourned Board Meeting shall be required. Subject to the Act, and without prejudice to Section 4.6, any Directors present at the Second Adjourned Board Meeting shall constitute a quorum for the transaction of business set out in the notice for the original meeting whether or not each JVCo Shareholder is represented by its Directors at such meeting, as the case may be. |
| (iii) | A Director is considered present or in attendance at a meeting of the JVCo Board if the Director participates in the meeting in person or by electronic means, telephone, or other communication facilities as permit all Persons participating in the meeting to hear or otherwise communicate with each other, and a Director participating in such meeting by such means is deemed to be present at the meeting. A Director is not considered present at a meeting where that Director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. |
| (e) | Votes. On any resolutions submitted to a meeting, each Director entitled to vote shall be entitled to one vote and resolutions shall be passed if approved by at least a simple majority of the JVCo Board, unless Specified Board Approval is required as contemplated in this Agreement. Votes at meetings of the JVCo Board may be cast personally, and resolutions shall be passed by a show of hands or at the request of any Director entitled to vote (whether before or after a vote by show of hands is taken), by ballot. |
| -23- |
| (f) | Meeting Minutes. The Chair will cause minutes of all meetings of the JVCo Board to be taken and a copy of the minutes of each meeting will be provided to each Director promptly after each meeting. For greater certainty, the failure of the Chair to fulfill his or her obligations hereunder will not invalidate or otherwise affect the efficacy of any meeting, business conducted at any meeting or the resolutions passed at such meeting. Until the contrary is proved, every meeting in respect of which minutes have been made and subsequently approved by the JVCo Board shall be deemed to have been duly held and convened and all proceedings referred to in the minutes shall be deemed to have been duly passed. |
| (g) | Attendance and appointment of Alternate Directors. A Director may attend a meeting of the JVCo Board either in person or it may be represented by an Alternate Director who has been appointed by the same JVCo Shareholder as the Director in question, and the right to vote at a meeting of the JVCo Board may be exercised by the Alternate Director. Any Person appointed as an Alternate Director for the purposes of any meeting of the JVCo Board must be the same individual who is appointed as the relevant absent Director's proxy for a meeting of the GP Board which takes place at the same time. For the avoidance of doubt, at any meeting of the JVCo Board, an Alternate Director who is present shall have one vote and, subject to the provisions of this Agreement, shall be entitled to exercise all other rights as stipulated in the Act. |
| (h) | Written Approval in Lieu of Meeting. Any action, consent, decision or approval required to be made by the JVCo Board may be taken, without prior notice thereof, by written consent or resolution in lieu of meeting, if signed by all Directors of the JVCo Board, provided that only the signatures of those Directors who would have been entitled to vote on and approve such matter at a meeting of the JVCo Board shall be counted, and such action, consent, decision or approval, as applicable is as valid as if it had been passed at a meeting of the JVCo Board. |
| (i) | Expenses. Each JVCo Shareholder shall be responsible for reimbursing the Directors nominated by it for all travel, hotel and other out-of-pocket expenses incurred by such Directors in attending meetings of the JVCo Board and carrying out their duties. |
| (j) | Right to Attend. The officers of the JVCo and counsel to the JVCo, and any other Person consented to by the JVCo Board, shall have the right to attend the meetings of the JVCo Board. No other Persons shall be permitted to attend meetings of the JVCo Board. |
| (k) | Rules. To the extent that the rules and procedures for the conduct of a meeting of the JVCo Board are not prescribed in this Agreement, the JVCo Articles or Applicable Law, such rules and procedures shall be determined by the Chair, acting reasonably and in a manner commensurate with the duties of the chair of a board of directors in comparable circumstances. |
| -24- |
| (l) | Consolidation. As the board of directors of JVCo and the General Partner shall at all times be the same, the Parties acknowledge and agree that board meetings for the General Partner and JVCo shall be consolidated. |
| 4.6 | Specified Board Approval |
Notwithstanding any provisions of this Agreement to the contrary, the JVCo shall not, undertake or permit to occur (directly or indirectly, including through any Subsidiary), and the JVCo Board shall not authorize or approve, any of following matters without Specified Board Approval:
| (a) | transferring, selling or other disposition of assets (other than sales of production or other dispositions in the ordinary course), expansion projects or other capital expenditures, asset purchases or investments or incurrence of indebtedness as customarily defined (or series of related transactions), in each case with a value or cost or in an amount that exceeds [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any related transaction that involves any other member of the JV Group), unless otherwise contemplated in the Business Plan; |
| (b) | approving the Business Plan or any amendment, substitution, modification or material deviation in any manner from any approved Business Plan, subject to the unilateral rights of the Directors nominated by the Funding Non-Defaulting Party to amend the Business Plan in the event a Funding Default has occurred and the Funding Non-Defaulting Party has elected: (i) not to fund any of the Defaulted Amount; or (ii) to fund only a portion, but not all, of the Defaulted Amount, in accordance with this Agreement; |
| (c) | save as required by and in accordance with the then current Funding Plan, but without prejudice to the rights of any JVCo Shareholder or the President & CEO to issue Emergency Funding Notices pursuant to Section 9.2, determining if additional capital is required for the JV Business, and issuing Cash Calls and determining the amounts thereof, including as a result of research and development expenses, due to losses incurred by the JVCo Group or otherwise; |
| (d) | determining any deviation from the Funding Plan or that no Cash Call should be issued, notwithstanding the requirements set out in the Funding Plan; |
| (e) | approving any activity to be undertaken by a JVCo Shareholder that would otherwise violate the non-competition provisions set out in Section 3.5; |
| (f) | approving, terminating or amending any Commercial Agreement; |
| (g) | granting, or permitting to exist, any Lien over any of the assets of any member of the JVCo Group having a value in excess of [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any equivalent and connected transaction that involves any other member of the JV Group); |
| -25- |
| (h) | incurring any indebtedness in the name of, or on behalf of, any member of the JVCo Group, and the terms thereof with a value or cost in an amount that exceeds [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any equivalent and connected transaction that involves any other member of the JV Group), unless otherwise contemplated in the Business Plan; |
| (i) | transferring, selling, abandoning, disclosing or other disposition of the JVCo Group's Intellectual Property, granting a license to the JVCo Group's Intellectual Property other than in the ordinary course of business, or granting a Lien against the JVCo Group's Intellectual Property; |
| (j) | approving entering into any Contract that would have the effect of restricting the use of the JVCo Group's Intellectual Property by any member of the JV Group and limit the development and supply of systems and technology in connection with the JV Business; |
| (k) | approving or making any change to the TP Model; |
| (l) | acquiring or divesting of shares or interests in Third Parties; |
| (m) | creating any entity that would, on incorporation, become a Subsidiary; |
| (n) | development of any part of the JV Business through a Person other than the JVCo or another member of the JV Group, subject to Section 5.3(b); |
| (o) | amending the Carve Out Plan or IT Transition Plan; |
| (p) | approving, terminating or amending any Related Party Agreement, subject to Section 4.7; |
| (q) | commencing or resolving any claim or dispute that is material to the JVCo Group (or the JV Business), or that otherwise involves a total amount in dispute in excess of [Redacted – commercially sensitive information] or the equivalent amount in any other currency (in aggregate with the value of any related claim or dispute that involves any other member of the JV Group), excluding in each case claims or disputes against or by a JVCo Shareholder or any of its Affiliates (in which case the nominee Director of the applicable JVCo Shareholder shall not be entitled to vote, and any vote shall be passed by the Specified Board Approval of the other Directors); |
| (r) | declaring, making or paying any dividend, return of capital or other distribution on any securities of the JVCo, including determining the amount of such items that are necessary for the payment of reasonable expenses, debt service obligations on any indebtedness and any other expense or reserve for any liability, working capital or expenditure of the JVCo and its Subsidiaries in line with the Business Plan; |
| (s) | approving any dividend or distribution policies, compliance policies, delegation of authority policy, compensation policies and the code-of-conduct of the JVCo or any amendments to the foregoing (including such policies that are in place at the Effective Date); |
| -26- |
| (t) | hiring or terminating the President & CEO (if the President & CEO is or will be employed by a member of the JVCo Group); |
| (u) | making any changes in compensation and other material employment terms of the President & CEO (if the President & CEO is or will be employed by a member of the JVCo Group), or introducing fees for Directors; |
| (v) | entering into any Compensation Arrangements with Directors, officers or any member of senior management who reports directly to the President & CEO and is or will be employed by a member of the JVCo Group (provided that, in respect of senior management, the JVCo Board will be free to delegate the decision to the remuneration committee established pursuant to Section 4.8), or changing any such Compensation Arrangements previously approved with Specified Board Approval; |
| (w) | approving entry into, amendment of, or termination of any material joint venture agreement, strategic co-operation or partnership agreement; |
| (x) | appointing the auditors of the JVCo or any other member of the JVCo Group; |
| (y) | changing the underlying accounting standards used by the JVCo Group or (other than as required to comply with IFRS) changing any of the accounting policies or procedures of any member of the JVCo Group; |
| (z) | making, entering into or assuming any agreement or committing to do or undertaking any of the foregoing, or permitting another member of the JVCo Group to do so; |
| (aa) | taking any action or making any decision on any matter that is analogous to the decisions in the foregoing paragraphs in relation to any other member of the JV Group; or |
| (bb) | any other matter that requires Specified Board Approval pursuant to this Agreement or any other JV Agreement. |
| 4.7 | Conflicted Shareholders |
To the extent that a JVCo Shareholder or any of its Affiliates is or is proposed to be a party to a Related Party Agreement, the JVCo Shareholder and the Directors nominated by such JVCo Shareholder, as applicable, shall abstain from voting under this Agreement on any matter where the interests of such JVCo Shareholder or its Affiliate pursuant to or under such Related Party Agreement is in or has the reasonable potential to be in conflict with the interests of any member of the JV Group, including:
| (a) | any matter relating to any dispute under or in respect of such Related Party Agreement; |
| -27- |
| (b) | any negotiation as to the compensation payable under such Related Party Agreement; |
| (c) | the negotiation, execution or delivery by the relevant member of the JV Group of such Related Party Agreement or any amendment thereto or termination thereof; or |
| (d) | the enforcement of any material provision, obligation or right under such Related Party Agreement, including the provision of any waiver, consent or other relief in respect of such Related Party Agreement, |
provided that, for greater certainty, notwithstanding anything to the contrary in this Agreement a JVCo Shareholder shall not be deemed a conflicted shareholder for purposes of its nominated Directors' voting rights in respect of the Business Plan or any part of the Business Plan under Section 4.6(b) even where such matters may relate, directly or indirectly, to a Related Party Agreement.
| 4.8 | Committees |
| (a) | The JVCo Board may create, dissolve or modify any committee in its discretion, including to consider appointments and remuneration of senior management of the JV Business who are or will be employed by a member of the JVCo Group. Committees may be comprised of Directors and/or other representatives of the JV Group and/or JVCo Shareholders. Any decision of any committee on a matter within the exclusive authority of the JVCo Board or the JVCo Shareholders shall require the approval of the JVCo Board or the JVCo Shareholders, as applicable, prior to being effective. |
| (b) | Each JVCo Shareholder shall be responsible for reimbursing any committee member that it nominated to the JVCo Board for all travel, hotel and other out-of-pocket expenses incurred by such committee members in attending committee meetings and carrying out their duties. |
| 4.9 | Other Positions of Representatives |
Subject to Sections 4.10 and 4.11, any Director or officer may also be a director or an officer or employee of a JVCo Shareholder or one or more Affiliates of a JVCo Shareholder, or of any other entities.
| 4.10 | Officers of the JV Business |
| (a) | The President & CEO shall be nominated by Westport Canada but the appointment of each such nominee who will be employed by a member of the JVCo Group shall be subject to Specified Board Approval. The initial President & CEO shall be: Daniel Sceli. The President & CEO shall only be removed from employment with a member of the JVCo Group, if applicable, by Specified Board Approval. |
| (b) | The CFO, the CTO, and other member(s) of Management shall be nominated by the President & CEO but the appointment of the CFO, the CTO and such other members of the Management who will be employed by a member of the JVCo Group as may be specified by the JVCo Board from time to time shall be subject to Specified Board Approval. The President & CEO may make a recommendation to the JVCo Board for the removal, if applicable, of any such member of Management, but such removal shall require Specified Board Approval. |
| -28- |
| (c) | The President & CEO will report to the board of his or her employer, and the balance of Management will report directly to the President & CEO. |
| (d) | For certainty, any member of Management that is to be located, resident and providing services in and from Europe shall be employed by a member of the JVCo Group, and any member of Management that is to be located, resident and providing services in and from Canada shall be employed by a member of the LP Group. No position of Management shall be duplicated as between the LP Group and the JVCo Group (for example, there shall only be one President & CEO for the JV Business as opposed to a President & CEO appointed to each of the Partnership and the JVCo for purposes of undertaking the JV Business), excluding any statutory officer appointment as required in the applicable jurisdiction. |
| 4.11 | Officers of JVCo |
The JVCo Board may appoint corporate officers of the JVCo as it deems appropriate, which officer positions may be filled by a member of Management; provided, however, that, with respect to, and without limitation, the execution of any documents, contracts, instruments and administrative filings and the taking of any action related to such matters which serve to bind the JVCo, such execution and action may only be taken by an authorized signatory that is resident in Sweden and who has been granted, pursuant to a written approval by the JVCo Board (via a corporate signing authority and approvals policy approved by the JVCo Board), the corresponding authority to so bind the JVCo.
ARTICLE
5
BUSINESS AND MANAGEMENT OF THE CORPORATION
| 5.1 | Management of the JVCo |
| (a) | Subject to Section 6.1, the JVCo Board shall manage, oversee and supervise the management of that part of the JV Business undertaken by the JVCo Group in accordance with this Agreement, the Act and the JVCo Articles. The JVCo Board shall be responsible (together with the GP Board), among other things, for: |
| (i) | reviewing and approving accounts (including management accounts, end of year accounts and reports to the JVCo Shareholders); |
| (ii) | approving the Business Plan; |
| (iii) | providing the JVCo Shareholders with information as to the progress of the JV Business; |
| (iv) | monitoring, providing guidance to and instructing the President & CEO and other members of Management; |
| (v) | monitoring the performance of the JV Business; and |
| -29- |
| (vi) | reviewing and approving any signing authority and approvals policy prepared by Management. |
| (b) | Management will carry out day-to-day operations of the JVCo Group and the LP Group as applicable. The President & CEO shall have the authority to assess and prioritize new opportunities that meet the Business Objective, subject always to Section 4.6 and Section 6.1. Management will be required to ensure the JVCo Group and the LP Group is sized appropriately in order to meet the Initial Business Plan and volume projections with a competitive cost level, and will develop the operations of the JVCo Group and the LP Group in alignment with the GP Board, according to how the JV Business evolves. |
| (c) | For certainty, with respect to the execution of documents, instruments, contracts and administrative filings, and the taking of any action, by Management which binds the JVCo, Management shall be required to conduct themselves in accordance with a corporate signing authority and approvals policy, which has been approved by the JVCo Board. With respect to matters relating to the JVCo, only members of Management who are resident in Sweden and employed by the JVCo may execute documents, instruments, contracts and administrative filings, and take such actions, that bind the JVCo. |
| 5.2 | Services Arrangements |
| (a) | The JVCo Shareholders acknowledge that they or their Affiliates may also provide works, services and/or employees to the JVCo Group, in particular during its initial phase, for which the associated cost will be paid by the relevant members of the JVCo Group, as further set out in the Business Plan. If a services agreement will be entered into in connection with a JVCo Shareholder or its Affiliates providing works or services, the costs payable between the JVCo Group and such JVCo Shareholders (or Affiliates) will be set out in the applicable services agreement, and are to be on an open book, transparent and arm's length basis, which will be subject to Specified Board Approval. The services and works, which may be provided by the JVCo Shareholders (or their Affiliates) to the JVCo Group, may include support in respect of the management and administration of intellectual property, government relations, legal, marketing, manufacturing, purchasing, supply chain and cost engineering matters. |
| (b) | Subject to Section 5.3(b), the Parties shall discuss, in good faith and on a case-to-case basis, the potential licensing to the JV Group of any of the Intellectual Property of Westport Canada and its Affiliates or Volvo Sweden and its Affiliates related to the JV Business after the Effective Date and which Intellectual Property is not, in the case of Volvo Sweden and its Affiliates, unique in its application to Volvo Sweden's or its Affiliates' engines. Any licensing shall be in the full discretion of Westport Canada or Volvo Sweden, as applicable, and any licensing arrangement shall be on terms and conditions mutually acceptable to the licensee entity of the JV Group and Westport Canada or Volvo Sweden, as applicable, and shall include any restrictions to and conditions of sub-licensing, and any applicable royalty payments which shall take due consideration of the fair market value of such licensed Intellectual Property. |
| -30- |
| 5.3 | Supply of Third Party OEMs |
| (a) | [Redacted – commercially sensitive information] |
| (b) | [Redacted – commercially sensitive information] |
| 5.4 | Business Plans |
| (a) | The Parties agree that they have approved the Initial Business Plan. |
| (b) | No later than 1 October each Fiscal Year from and after 1 October 2024, Management shall be required to distribute to the JVCo Board a proposed Business Plan for the upcoming Fiscal Year and the next successive four Fiscal Years. The JVCo Board shall consider and vote upon any such proposed Business Plan, no later than 30 November of the then current Fiscal Year. |
| (c) | If any part of the proposed Business Plan for any Fiscal Year and the next successive four Fiscal Years is not approved by Specified Board Approval, the Parties shall resolve the Dispute in accordance with Section 14.1. Until the updated Business Plan is approved, the JVCo Board may adopt those parts of the draft Business Plan that are not disputed and the JVCo shall conduct that part of the JV Business that is applicable to the JVCo Group in accordance with such undisputed parts and otherwise with the last approved Business Plan, provided that, if the Budget is not agreed, the Budget for the applicable Fiscal Year shall be the Default Budget. |
| 5.5 | Financial Statements and Reports |
| (a) | At each Quarterly meeting of the JVCo Board, Management, as applicable, shall be required to report to the JVCo Board with respect to the current status of operations of the JV Group, and with respect to all major developments or planned actions involving the JV Group, and shall present to the Directors at each Quarterly meeting a summary and review of the revenues earned and costs incurred by each member of the JV Group, and an estimate to the end of the Fiscal Year for each line item in the Budget applicable to such Fiscal Year. |
| (b) | The JVCo shall cause to be prepared and delivered to each JVCo Shareholder, by no later than 1 March in the year immediately following each Fiscal Year, audited consolidated financial statements of JVCo, including an income statement, a statement of cash flow and balance sheet for such Fiscal Year, together with audited comparative financial statements, all prepared in accordance with IFRS. |
| (c) | On a Quarterly basis, within an aspirational target of four calendar days, but in any event no later than 10 Business Days, after the end of each Quarter (including the final Quarter of each Fiscal Year), the JVCo shall cause to be prepared and delivered to each Director and JVCo Shareholder a report summarizing the status of the activities of the JV Business as at the end of the applicable Quarter, which will include the unaudited financial statements for the JV Business as a whole for the Quarter then ended, including a balance sheet, an income statement and a related statement of changes in cash flow for such Quarter (all of which will contain comparisons to the prior year) and will contain notes explaining material balances set out in the balance sheet and income statements in accordance with IFRS. |
| -31- |
| (d) | The JVCo Board shall cause to be prepared and delivered to each JVCo Shareholder, within an aspirational target of four calendar days, but in any event no later than five Business Days, after the end of each month of each Fiscal Year (including the final month of each Fiscal Year), a report summarizing the status of the activities of the JV Business as at the end of such month, which will include the unaudited financial statements for the JV Business for the month then ended, including a balance sheet and an income statement (all of which will present monthly and year to date results, where applicable), and will contain notes explaining material balances set out in the balance sheet and income statements in accordance with IFRS. |
| (e) | To any Director or JVCo Shareholder, upon request, the JVCo shall deliver: |
| (i) | such other reports, including ESG and other compliance reports as reasonably requested by such Director or JVCo Shareholder and with reasonably sufficient advance notice in order to prepare such new reports; and |
| (ii) | evidence that all requisite statutory deductions and remittances are being made in a timely manner, including confirmation that the income tax, workers' compensation and goods and services tax accounts of the JVCo and of each other member of the JVCo Group are current. |
| 5.6 | Books and Records |
The JVCo will maintain accurate and complete books and records of all transactions and other matters in relation to the JVCo Group as are usually entered into books of account in accordance with Applicable Law and IFRS consistently maintained. Each JVCo Shareholder or its nominee or other authorized agent or representative shall have the right to audit, examine and make copies of such books and records during normal business hours on reasonable notice and at its own expense. Each of the JVCo Shareholders or their nominee or other authorized agent or representative shall, if requested by the JVCo Board, agree to execute and deliver to the JVCo a confidentiality and non-disclosure agreement, in a form acceptable to the JVCo Board, acting reasonably.
| 5.7 | Contracts |
Subject to compliance with the other provisions of this Agreement and any delegated authority limits, the JVCo Board may designate the manner in which Contracts and other documents and instruments shall be signed by the JVCo in its own right.
| 5.8 | Internal Controls |
Management shall be required to ensure that an appropriate system of internal controls is established and maintained in order to protect the security of funds received, held and disbursed and the security of confidential information received by the JV Group in the course of the JV Business.
| -32- |
| 5.9 | Governance Policies |
The JVCo shall, in conjunction with the other members of the JV Group, cause Management to implement a risk-based, adequate compliance framework of good international standard, acceptable to multinationals of international repute. This shall include at least a code of conduct, a compliance governance model with defined roles and responsibilities on compliance with adequate resourcing, relevant sub-compliance policies and procedures, a training program, data privacy, a monitoring and whistleblowing framework, and appropriate reporting or audit rights for the JVCo Shareholders. In addition, Management shall develop a single set of policies and standards to govern all aspects of the JV Group and the JV Business, drawing from each of the JVCo Shareholders' respective existing policies and standards, including as contemplated in Section 5.10(b) and 5.10(d).
| 5.10 | Compliance |
| (a) | The JVCo shall not, and the JVCo Shareholders shall procure (through the exercise of their votes and any rights attached to their JVCo Shares and all other necessary or desirable actions within their control) that neither the JVCo nor its Subsidiaries, nor any of their respective directors, officers, employees or agents: (i) offer, promise, provide, or authorize the provision of any money, property, contribution, gift, entertainment or other thing of value, directly or indirectly, to any Governmental Official, or any other Person, to influence official action or secure an improper advantage, or to encourage the recipient to breach a duty of good faith or loyalty or the policies of his/her employer, or otherwise in violation of any Anti- Bribery Law; (ii) engage in any dealings or transactions with or for the benefit of any Person identified as a "designated person" under Sanctions Laws or is otherwise a target of economic sanctions under any similar Applicable Law, nor otherwise violate Sanctions Laws; (iii) violate any Anti-Money Laundering Laws; or (iv) invest any earnings from criminal activities in the JVCo or its Subsidiaries. |
| (b) | The JVCo shall cause Management to: (i) prepare and/or revise (as the case may be) internal policies and procedures adequate to prevent, detect and deter (A) violations of Anti-Bribery Laws, (B) transactions in violation of Sanctions Laws, (C) violations of applicable Export Control Laws, (D) violations of Anti-Money Laundering Laws, (E) transactions in violation of Anti-Trust Laws (including as further contemplated in Section 11.2), and (ii) implement such policies and procedures as soon as possible after the Effective Date. |
| (c) | The JVCo shall promptly notify the JVCo Shareholders of any actual or threatened legal proceedings or enforcement action relating to any breach or suspected breach by any member of JVCo Group of Anti-Bribery Laws, Anti-Money Laundering Laws, Sanctions Laws, Anti-Trust Laws, or Export Control Laws. |
| (d) | The JVCo shall cause Management to prepare and/or revise (as the case may be) internal policies and procedures adequate to ensure that each member of the JVCo Group complies with all Applicable Laws related to Tax and takes a prudent and conservative approach to Tax planning and Tax structuring. Without limiting the foregoing, the JVCo shall not to the Knowledge of Management, and shall procure that other members of the JVCo Group shall not to the Knowledge of Management, enter into any transaction or series of transactions or engage in any act (whether involving a Tax haven or otherwise) which (i) could reasonably be characterized by any relevant Governmental Entity as constituting, or as being part of an arrangement that constitutes, a Tax shelter or other aggressive or abusive Tax planning or aggressive or abusive Tax avoidance, or (ii) could lead to any JVCo Shareholder or any member of its respective Shareholder Group suffering a Tax liability that would not have arisen in the ordinary course of the JV Business. |
| -33- |
| 5.11 | Invoicing and Transfer Pricing |
| (a) | The JVCo Board shall, upon the reasonable request of any JVCo Shareholder at any time and, in any event, no less frequently than annually, be required to carry out, in conjunction with the GP Board, periodic reviews of: (i) invoicing arrangements relating to the suppliers to the JV Group, the customers of the JV Group, and between members of the JV Group; and (ii) compensation arrangements and associated transfer pricing requirements and considerations relating to transactions between members of the JV Group (collectively, the "TP Model"). Such reviews shall consider, among other things, the functions performed, assets employed, and risks assumed by each member of the JV Group and any relevant developments or changes in the JV Business as they relate to each member of the JV Group, including with respect to suppliers, customers, investments in tangible and intangible assets, and the hiring, relocation and termination of employees. The JVCo Board shall cause Management to implement any new arrangements or changes to existing arrangements within the TP Model, whether identified as part of such review or otherwise, as may be required in order to ensure compliance by each member of the JVCo Group with Applicable Laws and Section 5.11(b)(the "TP Model"). |
| (b) | The JVCo Board shall procure that no member of the JVCo Group shall enter into any transaction or series of transactions with any other member of the JV Group, any JVCo Shareholder or any of their respective Affiliates, unless such transaction would have been entered into on the same or reasonably similar terms between independent enterprises in reasonably comparable circumstances (which requirement shall be construed and applied, so far as reasonably possible, in a manner consistent with Article 9 of the Model Tax Convention with respect to Taxes on Income and on Capital published from time to time by the OECD and the guidelines on transfer pricing published from time to time by the OECD, including the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2022). |
| (c) | If any Tax Dispute arises in relation to the TP Model, including the implementation of any new arrangements or changes to existing arrangements in relation thereto by any member of the JV Group, or compliance by any member of the JV Group with the TP Model, any related Applicable Laws or Section 5.11(b), the Parties shall resolve such Tax Dispute in accordance with Section 14.1. |
| 5.12 | Tax Returns |
| -34- |
| (a) | Any JVCo Shareholder may request to review any Tax Return of any member of the JVCo Group, by giving notice to JVCo and the other JVCo Shareholders at least twenty (20) Business Days before the due date for filing of such Tax Return ("Due Filing Date"), in which case the JVCo shall send a draft of such Tax Return to each of the JVCo Shareholders for review at least ten (10) Business Days before the Due Filing Date. The JVCo shall also promptly provide any supporting work papers, records, documents and other information reasonably requested by any JVCo Shareholder with respect to such Tax Return. If any JVCo Shareholder provides written comments on such draft Tax Return to the JVCo and the other JVCo Shareholder no later than five (5) Business Days before the Due Filing Date, the JVCo shall consider all such reasonable comments in finalising such Tax Return before submission to the relevant Governmental Entity. If the JVCo Shareholders do not agree on whether such draft Tax Return should be amended to reflect such comments, then Section 14.1 shall apply. If such disagreement remains unresolved on the Due Filing Date for such Tax Return, then the JVCo or relevant member of the JVCo Group may on such Due Filing Date submit such Tax Return, prepared on the basis of its good faith understanding and interpretation of the relevant facts and Applicable Law, to the relevant Governmental Entity and, if the JVCo Shareholders subsequently agree or it is determined by the Tax Expert (pursuant to Section 14.1 or otherwise) that any amendment or withdrawal of such Tax Return or any replacement Tax Return is required to be or should be submitted to the relevant Governmental Entity for any reason, the JVCo or relevant member of the JVCo Group shall promptly submit the same to the relevant Governmental Entity. |
| (b) | If any Tax Dispute arises in relation to any Tax Return, including in relation to comments provided by any JVCo Shareholder on any draft Tax Return pursuant to this Section 5.12, the amendment, finalisation and/or submission of such Tax Return by the JVCo or relevant member of the JVCo Group, and any subsequent amendment or withdrawal of such Tax Return or replacement Tax Return, the Parties shall resolve such Tax Dispute in accordance with Section 14.1. |
| 5.13 | Tax Costs |
In the event that a member of the JVCo Group and/or a Party (whether in its capacity as a JVCo Shareholder or otherwise) or an Affiliate of such Party are held liable for any Taxes which are specifically attributable to another Party or an Affiliate of such other Party, then the Party and/or Affiliate of such Party to which such Taxes are attributable (the "Tax Debtor") shall indemnify and hold such member of the JVCo Group and/or the respective other Parties and their Affiliates (the "Tax Indemnitees") fully harmless from and against all such Taxes. The Parties shall cooperate in good faith in the defence against any such Taxes. Without limiting the foregoing, this Section 5.13 shall apply to any Taxes which are specifically attributable to a Tax Indemnitee's failure to make withholdings required under any Applicable Law on a payment made to the Tax Debtor, unless such liability for Tax is expressly otherwise provided for in a relevant agreement or document which has been signed or approved in writing by the JVCo Board.
| -35- |
ARTICLE
6
SHAREHOLDER APPROVAL RIGHTS AND MEETINGS
| 6.1 | Shareholder Approval Rights |
Notwithstanding any provisions of this Agreement to the contrary, the JVCo shall not undertake or permit to occur (directly or indirectly, including through any Subsidiary), and the JVCo Board shall not authorize or approve, any of following matters without Specified Shareholder Approval:
| (a) | carrying on any business other than the JV Business or materially altering the nature of that part of the JV Business undertaken by the JVCo Group; |
| (b) | changing the name of the JVCo or any other member of the JVCo Group; |
| (c) | amending the JVCo Articles or this Agreement otherwise than pursuant to and in accordance with Section 16.2; |
| (d) | except as otherwise provided for in this Agreement, increasing or decreasing the JVCo Board size; |
| (e) | approving the admission of a new JVCo Shareholder or issuing any securities of the JVCo or another member of the JVCo Group, other than the conversion, exercise or exchange of securities previously issued with Specified Shareholder Approval or as otherwise contemplated in Section 7.6; |
| (f) | except as otherwise provided for in this Agreement, issuing, selling, repurchasing, redeeming or otherwise acquiring for value any securities of the JVCo, or any disposition, pledge, grant of option or other rights or the issue of other financial products, in each case giving rise to an interest in the JVCo Group, or other change in the capital structure of the JVCo Group (other than any pledge or charge entered into by either JVCo Shareholder in relation to its JVCo Interest and granted in respect of Third Party financing as contemplated in this Agreement); |
| (g) | amalgamating, merging or consolidating any member of the JVCo Group with or into any Person; |
| (h) | carrying out an arrangement (as defined in the Swedish Company Reorganization Act (Sw. Lag om företagsrekonstruktion)) of the JVCo (or a similar process in relation to any other member of the JVCo Group) or pursing a going public transaction as contemplated in Section 7.16; |
| (i) | taking or instituting any proceedings for liquidation, winding up, bankruptcy of any member of the JVCo Group, permanent cessation of operations or abandonment of a material asset of any member of the JVCo Group (other than in emergency circumstances), suspension of operations of any material part of the JV Business undertaken the JVCo Group, or make any proposal for a compromise of debt, or a reorganization of capital, assets, liabilities or organizational structure of the JVCo Group, under any insolvency, restructuring or corporate arrangement legislation, which at the time of the decision is expected to last for a period of more than 65 Business Days; |
| -36- |
| (j) | assuming or otherwise becoming responsible for (including by way of guarantee) the obligations of any Person (other than another member of the JVCo Group), other than normal indemnifications of officers and directors pursuant to contractual arrangements and the provisions of the Act, and of commercial counterparties pursuant to normal industry agreements, in either case entered into in the ordinary course of the JV Business; |
| (k) | effecting any listing of securities on a stock exchange or other marketplace or any public offering of securities (including a secondary offering) as contemplated in Section 7.16; |
| (l) | amending, modifying, altering or repealing any Specified Shareholder Approval previously passed; |
| (m) | making, entering into or assuming any agreement or commitment to do or undertaking any of the foregoing, or permit a member of the JVCo Group to do so; |
| (n) | taking any action or making any decision on any matter that is analogous to the decisions in the foregoing paragraphs in relation to the JVCo Group; or |
| (o) | any other matter that requires Specified Shareholder Approval pursuant to the terms of this Agreement. |
| 6.2 | Meetings of the Shareholders |
Meetings of the JVCo Shareholders shall be held in the manner specified in the JVCo Articles; provided that, the following provisions shall prevail to the extent of any inconsistency with the JVCo Articles:
| (a) | Location. Unless otherwise determined by Specified Shareholder Approval, meetings of the JVCo Shareholders shall be held on a Business Day, either virtually or in person in Gothenburg, Sweden. |
| (b) | Chair. The Chair shall act as chair for the purposes of all meetings of the JVCo Shareholders. |
| (c) | Calling Meetings. Subject to mandatory provisions of the Act, the Chair shall call meetings of the JVCo Shareholders no less than one time a year, at such times as the Chair considers appropriate, and shall call a meeting upon receipt of a written request from a JVCo Shareholder. If the Chair fails or neglects to call, within five Business Days after receipt of such written request, a meeting to be held within twenty Business Days after receipt of such written request, any JVCo Shareholder may call the meeting instead. |
| (d) | Agenda and Meeting Materials. All notices of meetings of the JVCo Shareholders shall be given to each JVCo Shareholder at least twenty Business Days and not more than forty Business Days prior to the meeting. Such notice shall specify the time and the place where the meeting is to be held and will be accompanied by an agenda specifying, in reasonable detail, all matters which are to be the subject of a vote at such meeting and provide sufficient information to enable JVCo Shareholders to make a reasoned judgment on all such matters. It shall not be necessary for any such notice to set out the exact text of any resolution proposed to be passed at the meeting provided that the subject matter of such resolution is fairly set out in the notice or schedule thereto. Accidental omissions to give notice of a meeting to, or the non-receipt of notice of a meeting by, any JVCo Shareholder will not invalidate proceedings provided that all JVCo Shareholders are nevertheless present at that meeting. The failure to include an item on the agenda shall preclude the JVCo Shareholders from passing a resolution in relation to that item until the next JVCo Shareholder meeting called to consider that item, unless: |
| -37- |
| (i) | there is a quorum of JVCo Shareholders present at the meeting; and |
| (ii) | the JVCo Shareholders present and entitled to vote at the meeting agree to include the item on the agenda. |
| (e) | Quorum and Attendance. |
| (i) | A quorum for any meeting of the JVCo Shareholders shall be at least one individual that is the authorized representative of each JVCo Shareholder present at the meeting. The Chair shall not be considered the representative from the then-appointing JVCo Shareholder and shall not be permitted to vote, including providing any second or casting vote. The JVCo Shareholders shall not transact business at a meeting unless a quorum is present. |
| (ii) | If a quorum referred to in Section 6.2(e)(i) is not present within thirty minutes from the time fixed for holding any such meeting, the meeting may be adjourned by the Chair to a date that is five Business Days later at the same time and place (such adjourned meeting being, the "First Adjourned Shareholders Meeting"). If a quorum referred to in Section 6.2(e)(i) is not present within thirty minutes from the time fixed for holding any such First Adjourned Shareholders Meeting, the First Adjourned Shareholders Meeting may be further adjourned by the Chair to a date that is five Business Days later at the same time and place (such further adjourned meeting being, the "Second Adjourned Shareholders Meeting"). Subject to the Act, and without prejudice to Section 6.1, any JVCo Shareholders present at the Second Adjourned Shareholders Meeting shall constitute a quorum and the business specified in the original notice may be transacted by a vote of JVCo Shares represented at the adjourned meeting. |
| (iii) | A JVCo Shareholder is considered present or in attendance at a meeting of the JVCo Shareholders if the JVCo Shareholder participates in the meeting in person or by electronic means, telephone, or other communication facilities as permit all Persons participating in the meeting to hear or otherwise communicate with each other, and a JVCo Shareholder participating in such meeting by such means is deemed to be present at the meeting. A JVCo Shareholder is not considered present at a meeting where that JVCo Shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. |
| -38- |
| (f) | Votes. On any resolutions submitted to a meeting, each JVCo Shareholder entitled to vote shall be entitled to one vote per JVCo Share and resolutions shall be passed if approved by JVCo Shareholders holding not less than 56% of the issued and outstanding JVCo Shares, unless Specified Shareholder Approval is required as expressly contemplated in this Agreement. Votes at meetings of the JVCo Shareholders may be cast personally, and resolutions shall be passed by a show of hands or at the request of any JVCo Shareholder (whether before or after a vote by show of hands is taken), by ballot. |
| (g) | Attendance and appointment of a Proxy. A JVCo Shareholder may attend a meeting of the JVCo Shareholders either by its appointed representative attending the meeting in person, or it may be represented by a Person appointed by a written proxy, and the right to vote at a meeting of the JVCo Shareholders may be exercised in person or by proxy. A proxy, drafted in English, whether it be for a particular meeting of the JVCo Shareholders or for any meeting, shall be in any form approved by the JVCo. The proxy shall be signed by the Person making the appointment or by its attorney, who shall have been duly authorized in writing, or, if the Person making the appointment is a corporation, by a duly authorized senior executive or attorney thereof. Any individual who is a director, officer or member of senior management of the appointing JVCo Shareholder or one of its 100% Affiliates may be appointed as a proxy. A proxy signed by or on behalf of a JVCo Shareholder shall be deemed to be valid, unless it is contested at the time of its use or prior thereto. |
| (h) | Meeting Minutes. The Chair will cause minutes of all meetings of the JVCo Shareholders to be taken and a copy of the minutes of each meeting will be provided to each JVCo Shareholder promptly after each meeting. For greater certainty, the failure of the Chair to fulfill his or her obligations hereunder will not invalidate or otherwise affect the efficacy of any meeting, business conducted at any meeting or the resolutions passed at such meeting. Until the contrary is approved, every meeting in respect of which minutes have been made and subsequently approved by the JVCo Shareholders present at such meeting shall be deemed to have been duly held and convened and all proceedings referred to in the minutes shall be deemed to have been duly passed. |
| (i) | Written Approval in Lieu of Meeting. Any action, consent, decision or approval required to be made by the JVCo Shareholders may be taken, without prior notice thereof, by written consent or resolution in lieu of meeting, if signed by all JVCo Shareholders, provided that only the signatures of those JVCo Shareholders that would have been entitled to vote on and approve such matter at a meeting of the JVCo Shareholders shall be counted, and such action, consent, decision or approval, as applicable is as valid as if it had been passed at a meeting of the JVCo Shareholders. |
| -39- |
| (j) | Rules. To the extent that the rules and procedures for the conduct of a meeting of the JVCo Shareholders are not prescribed in this Agreement or the JVCo Articles, such rules and procedures shall be determined by the Chair. |
ARTICLE
7
SHARES AND DISPOSITION OF SHARES
| 7.1 | Authorized Share Capital |
The JVCo is authorized to issue an unlimited number of JVCo Shares. The issued and outstanding JVCo Shares as of the Effective Date are as set forth in Schedule A. Except in connection with: (a) the issuance of JVCo Shares pursuant to a Cash Call issued in accordance with the current Funding Plan; (b) the provision of Emergency Funding pursuant to Section 9.2; (c) the conversion of JV Default Loans or Emergency Default Loans in accordance with Section 9.3(e), or (d) as required pursuant to Section 7.6, the JVCo shall not issue new JVCo Shares unless approved by Specified Shareholder Approval.
| 7.2 | Restrictions on Transfers |
Except as otherwise permitted under this Agreement (including pursuant to Section 7.5, as required by Section 7.6 or as a result of a pledge pursuant to Section 7.14), no JVCo Shareholder shall Transfer any of its JVCo Shares without Specified Shareholder Approval. Any purported Transfer of JVCo Shares in violation of this Agreement is void. The JVCo shall only register or permit the registration of any Transfer of any JVCo Shares made in compliance with the provisions of this Agreement. A permitted Transferee of JVCo Shares shall automatically become bound and subject to this Agreement, without further act or formality.
| 7.3 | No Transfers [Redacted – commercially sensitive information] |
Excluding Transfers: (a) contemplated in Sections 7.5, 7.14, 7.15 and 7.16; (b) to a Non-Defaulting Shareholder following an Event of Default in accordance with Section 10.2 or following a change of control pursuant to Section 7.17; or (c) pursuant to Section 10.2(b) or Section 10.2(c), and in all cases subject to Section 7.4, the JVCo Shareholders shall be prohibited from Transferring any of their JVCo Shares, or any JVCo Loans, [Redacted – commercially sensitive information].
| 7.4 | General Restrictions |
| (a) | Notwithstanding any other provision in this Agreement to the contrary but subject to Section 7.6, no JVCo Shareholder may Transfer any JVCo Shares or JVCo Loans: |
| (i) | if it is in default under this Agreement (except for an obligatory Transfer in accordance with Section 10.2 or following a change of control pursuant to Section 7.17); |
| (ii) | (other than in respect of the grant of a Permitted Lien) without Transferring the same proportion of its (or procuring that its applicable 100% Affiliate Transfers the same proportion of its) LP Units, LP Loans and GP Shares, in each case to the same Person or one (but not more than one) 100% Affiliate of such Person in accordance with the Partnership Agreement and the GP USA; |
| -40- |
| (iii) | if, as a result, the remaining JVCo Shareholders or the JVCo would become subject to any materially restrictive or onerous governmental controls or regulations to which they were not subject prior to the proposed Transfer by reason of the nationality or residence of the proposed Transferee; |
| (iv) | if the Transferee (or the 100% Affiliate of the Transferee who acquires the LP Units, LP Loans and/or GP Shares) does not have the financial capacity to meet their respective funding obligations under this Agreement or the Partnership Agreement; |
| (v) | if, as a result, the remaining JVCo Shareholders or JVCo Group would become subject to any taxation or additional taxation to which they were not subject prior to the proposed Transfer, except with the consent of the remaining JVCo Shareholders, which consent shall not be unreasonably withheld; |
| (vi) | if the Transfer is not permitted by Applicable Law or any term of any agreement or instrument, non-compliance with which would have a material adverse impact on any member of the JV Group or the JV Business as a whole, unless all applicable required consents or approvals, including in respect of a Governmental Entity, are first obtained; |
| (vii) | if such Transfer is not exempt from any applicable requirement to file a prospectus, registration statement or similar document with applicable securities regulatory authorities to qualify the trade of such JVCo Shareholder's JVCo Shares; |
| (viii) | if any funds being used to purchase the JVCo Shares or JVCo Loans represent or will represent proceeds of crime for the purpose of Money Laundering and Terrorist Financing (Prevention) Act (SFS 2017:630), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) or otherwise be in breach of Anti-Money Laundering Laws; |
| (ix) | if the Transferee is a Person identified in, designated in, listed in, or otherwise the subject of prohibited activities under Sanctions Laws; or |
| (x) | if the Transferee has not agreed in writing: (i) with the other JVCo Shareholders and the JVCo to assume and be bound by all the obligations of the Transferor pursuant to this Agreement with respect to the JVCo Shares and JVCo Loans transferred arising from and after the date of such Transfer and to be subject to all the restrictions to which the Transferor is subject under the terms of this Agreement; (ii) (or has not procured that its 100% Affiliate has agreed in writing) to assume and be bound by all the obligations and subject to the restrictions to which the Transferor is subject with respect to the GP Shares transferred under the terms of the GP USA; and (iii) (or has not procured that its 100% Affiliate has agreed in writing), to assume and be bound by all the obligations and subject to the restrictions to which the Transferor is subject with respect to the LP Units and LP Loans transferred under the terms of the Partnership Agreement. |
| -41- |
| (b) | Any Transfer of JVCo Shares pursuant to this Agreement shall be carried out in accordance with the following: |
| (i) | each new JVCo Shareholder shall be deemed to make the representations and warranties in Section 8.1; |
| (ii) | a copy of the document(s) or instrument(s) effecting the Transfer shall be delivered to the JVCo and the other JVCo Shareholders; |
| (iii) | the Transferee shall execute and deliver such documents and instruments as may be reasonably required by the JVCo to ensure that the Transferee assumes and is bound by all of the obligations and liabilities of the Transferor in relation to the JVCo which the Transferor incurred pursuant to this Agreement or the JVCo Articles; |
| (iv) | the JVCo shall be entitled to be reimbursed by the Transferor for the reasonable and documented administrative out-of-pocket costs and expenses incurred by it to effect a Transfer with respect to any or all of such Transferor's JVCo Shares or JVCo Loans. |
| 7.5 | Permitted Transfers to 100% Affiliates |
Notwithstanding Sections 7.2 and 7.3, but subject to Section 7.4, a JVCo Shareholder will be, without requiring Specified Shareholder Approval, entitled to Transfer to one of its 100% Affiliates legal title to, and beneficial ownership of, all (but not less than all) of its JVCo Shares and JVCo Loans, provided that:
| (a) | the Transferor first establishes to the satisfaction of the other JVCo Shareholders, acting reasonably, that the Person to which it is Transferring its JVCo Shares is its 100% Affiliate; |
| (b) | a copy of the document(s) or instrument(s) effecting the Transfer is delivered to the JVCo; and |
| (c) | the other JVCo Shareholder has received prior written notice of such Transfer. |
| 7.6 | Required Transfers; Share Issuances and Adjustments |
| (a) | If a JVCo Shareholder or its 100% Affiliate Transfers all or any of its LP Units or GP Shares (in each case, other than the granting of a Permitted Lien or a Transfer to an 100% Affiliate each in accordance with the Partnership Agreement and GP USA) as permitted under the Partnership Agreement and/or the GP USA, the JVCo Shareholder must Transfer the same proportion of its JVCo Shares and JVCo Loans to such Transferee (or to one but not more than one 100% Affiliate of such Transferee) concurrently with, and in the same transaction as, the Transfer of the LP Units and/or the GP Shares. |
| -42- |
| (b) | If a JVCo Shareholder Transfers all or any of its JVCo Shares (other than a Transfer to an 100% Affiliate permitted by Section 7.5 or entering into a Permitted Lien pursuant to Section 7.14) the JVCo Shareholder must (or must procure that its 100% Affiliate must) Transfer the same proportion of its LP Units, LP Loans, GP Shares and JVCo Loans to such Transferee (or to one but not more than one 100% Affiliate of such Transferee) concurrently with, and in the same transaction as, the Transfer of the JVCo Shares. Provided that Volvo Canada remains the holder of LP Units and GP Shares, Volvo Sweden shall not be in breach of this provision if Volvo Sweden has Transferred an equivalent proportion of its shares in Volvo Canada to the Transferee. |
| (c) | Except as otherwise agreed with Specified Shareholder Approval, any Person (including any JVCo Shareholder) who or which intends to purchase or subscribe for: (i) GP Shares, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for LP Units, on a pro rata basis, such that such Person's GP Interest is at all times equivalent to such Person's LP Interest; (ii) LP Units, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for GP Shares, on a pro rata basis, such that such Person's GP Interest is at all times equivalent to such Person's LP Interest; and (iii) either GP Shares or LP Units, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for JVCo Shares, on a pro rata basis, such that such Person's GP Interest and corresponding LP Interest is at all times equivalent to such Person's JVCo Interest. |
| (d) | In the event there is a Transfer of JVCo Shares or JVCo Loans between the JVCo Shareholders at the same time as the Transfer of LP Loans and LP Units pursuant to the Partnership Agreement and a Transfer of GP Shares pursuant to the GP USA (including as a result of a change of a Limited Partner's LP Interest or GP Interest as contemplated in Section 7.6(c)), the allocation of the price received in respect of such Transfers as between each such Transfer shall be as determined in accordance with the FMV Procedure and Methodology or as otherwise mutually determined by the JVCo Shareholders. |
| 7.7 | Deemed Transfers |
| (a) | Upon a JVCo Shareholder (or any of its 100% Affiliates) ceasing to hold any LP Units and/or GP Shares (a "Terminating Event") and such JVCo Shareholder continuing to hold any JVCo Shares in breach of Section 7.6 (a "Terminated Shareholder"): |
| (i) | the Terminated Shareholder's JVCo Shares shall be, and shall be deemed to be, immediately sold by the Terminated Shareholder to the Person acquiring the LP Units or GP Shares, for nominal consideration; and |
| (ii) | the Terminated Shareholder shall have no rights or obligations hereunder in respect of any time following the Terminating Event (except pursuant to this Section 7.7 and Section 12.3). |
| -43- |
| (b) | If the Terminated Shareholder fails to complete the transaction of purchase and sale referred to in Section 7.7(a) within 10 Business Days of the applicable Terminating Event, then the JVCo may deposit a cheque in the amount of US$1.00 payable to the Terminated Shareholder at the JVCo's lawyer's office. Upon making such deposit and giving the Terminated Shareholder notice thereof, the purchase of the Terminated Shareholder's JVCo Shares shall be deemed to have been fully completed and all right, title, benefit and interest, both at law and in equity, in and to such JVCo Shares shall be and be deemed to be transferred and assigned to and vested in the said acquirer of the LP Units or GP Shares. The Terminated Shareholder shall be entitled to receive the cheque so deposited in trust upon satisfying any unsatisfied obligations under this Agreement. |
| 7.8 | Right of First Refusal |
| (a) | In the event either JVCo Shareholder (the "Offering Party") wishes to Transfer all or any portion of its JVCo Shares (which transfer must occur together with the JVCo Loans referred to in Section 7.8(b)(iii), the "Offered Units") to a Third Party (which term shall, for the purposes of this Section 7.8, be deemed to include any Affiliate of a JVCo Shareholder other than any 100% Affiliate) (excluding entering into a Permitted Lien pursuant to Section 7.14(a) or a Transfer approved pursuant to Section 7.16 and also excluding, for the avoidance of doubt, a Transfer to a JVCo Shareholder or an 100% Affiliate made in accordance with or pursuant to Sections 7.5, 7.15, 7.17 or 10.2), the Offering Party shall first provide notice in writing (an "Offer Notice") to the other JVCo Shareholder (the "ROFR Holder") offering to sell the Offered Units to the ROFR Holder (the "Offer"). At the same time as the Offer Notice is served on the ROFR Holder, the Offering Party must also serve (or procure that its 100% Affiliate serves) an equivalent notice pursuant to the LP ROFR. |
| (b) | The Offer Notice shall: |
| (i) | state that the Offering Party is willing to sell all of the Offered Units to the ROFR Holder for a set cash price (the "Offer Price") determined by the Offering Party, in its sole discretion; |
| (ii) | state the name of the proposed Third Party transferee; |
| (iii) | set out all other material terms and conditions of the proposed Transfer, including the concurrent sale of the same proportion of the JVCo Loans held by the Offering Party (the "ROFR Transfer"); and |
| (iv) | be irrevocable. |
| (c) | The ROFR Holder shall have the option and right, exercisable within 30 Business Days of receipt of the Offer Notice (the "Offer Exercise Period"), by notice in writing to the Offering Party (the "Offer Acceptance") to elect to purchase all (but not part only) of the Offered Units free from all Liens at the Offer Price, and otherwise, upon and subject to the material terms and conditions set forth in the Offer Notice, provided that such ROFR Holder may only serve an Offer Acceptance if it (or its 100% Affiliate who is a Limited Partner and holder of GP Shares) also, and at the same time, exercises its rights under the LP ROFR. |
| -44- |
| (d) | If the ROFR Holder elects to purchase the Offered Units in accordance with the terms of the Offer Notice prior to the expiry of the Offer Exercise Period, the Offer and the Offer Acceptance shall constitute a binding contract of purchase and sale, subject only to any necessary regulatory approvals, which shall be completed in the manner provided as follows: |
| (i) | the ROFR Transfer shall be completed at a closing (a "ROFR Closing") to be held on the same day as closing of the LP ROFR, which shall be no later than the 20 Business Days after the later of (A) receipt of the Offer Acceptance by the ROFR Holder; and (B) fulfillment of the necessary regulatory approvals contemplated in Section 7.8(d), at such place as the Offering Party and ROFR Holder shall agree (or, failing such agreement, at the offices of the lawyers of the Offering Party or through the electronic exchange of documents); and |
| (ii) | at the ROFR Closing: |
| (A) | the LP ROFR shall be completed in accordance with its terms; |
| (B) | the ROFR Holder shall pay the aggregate purchase price, net of all applicable adjustments and deductions, as specified in the Offer, to the Offering Party in immediately available funds; |
| (C) | the Offering Party shall execute and deliver all such transfers, assignments and other instruments of conveyance as may be required in order to transfer and convey the Offered Units to the ROFR Holder and to effect the proper assumption by the ROFR Holder of all liabilities and obligations associated therewith; |
| (D) | all JVCo Shareholders shall execute and deliver all such additional documents and assurances as may be required to comply with the terms of sale specified in the Offer and to effect the closing of the ROFR Transfer; and |
| (E) | all other requirements for a Transfer set out under Section 7.4 and Article 8 shall be satisfied. |
| (e) | If the ROFR Holder does not serve an Offer Acceptance prior to the expiry of the Offer Exercise Period or if any Offer Acceptance ceases to have effect due to the failure by the ROFR Holder or its 100% Affiliate to exercise the LP ROFR or to obtain any necessary regulatory approvals referred to in Section 7.8(d) or equivalent regulatory approvals applicable to the LP ROFR: |
| (i) | the Offering Party and each of its applicable 100% Affiliates shall thereafter be entitled, subject to Section 7.4 and Section 7.6, to sell the Offered Units to the Third Party Transferee named in the Offer Notice (a "Proposed Purchaser") for an amount equal to or greater than the Offer Price, or otherwise, on terms and conditions that are not, in the aggregate, more favourable to the Proposed Purchaser than those set forth in the Offer; and |
| -45- |
| (ii) | if the Transfer to a Proposed Purchaser is not completed within 120 Business Days after the expiration of Offer Exercise Period, the Offering Party (and its 100% Affiliates) shall not be entitled to complete the Transfer without again complying with the provisions of this Section 7.8. |
| 7.9 | Share Certificates |
Any applicable share certificates representing the JVCo Shares shall bear the following legend endorsed thereon in bold type (in addition to any legend required by Applicable Laws):
The shares represented by this certificate are subject to a shareholder agreement between the JVCo and its shareholders, as may be amended from time to time. Such shares may not be pledged, sold or otherwise transferred except in accordance with the terms of such agreement. Any transfer made in contravention of such restrictions is null and void. A copy of such agreement is on file at the registered office of the JVCo and available to Shareholders for inspection on request and without charge.
| 7.10 | Lost Share Certificates |
Where a Person claims that a share certificate representing a JVCo Share recorded in the name of a JVCo Shareholder has been defaced, lost, destroyed or wrongly taken, the JVCo will in accordance with the Act cause a share certificate to be issued in substitution for such share certificate if such Person is a holder of the relevant JVCo Share according to the share register, and files with the JVCo an agreement in a form satisfactory to the JVCo indemnifying and holding harmless the JVCo and the JVCo Shareholders from any costs, damages, liabilities or expenses suffered or incurred as a result of or arising out of issuing such new JVCo Share certificate and satisfies such other reasonable requirements as are imposed by the JVCo, which inter alia may include a cancellation procedure in accordance with the Cancellation of Lost Documents Act (SFS 2011:900).
| 7.11 | Liability on Transfer |
Each Transferor will continue to remain liable for any breaches by it that occurred or arose prior to the date of Transfer. Notwithstanding that a Transferor may Transfer all of its JVCo Shares, it shall continue to be bound by those provisions of this Agreement which, by their nature or express terms, survive any such Transfer, including any obligation of confidentiality set out in Article 11.
| 7.12 | Power of Attorney |
In connection with any Transfer of any JVCo Shares permitted pursuant to this Agreement, each JVCo Shareholder hereby irrevocably nominates, constitutes and appoints the JVCo as its true and lawful attorney and agent for, in the name of and on behalf of the applicable JVCo Shareholder to execute and deliver all such administrative filings as may be necessary to effectively transfer and assign the JVCo Shares being sold. Such appointment and power of attorney, being coupled with an interest, shall not be revoked by the dissolution, winding up, bankruptcy or insolvency of such JVCo Shareholder and each Party hereby ratifies, confirms and agrees to ratify and confirm all that the JVCo may lawfully do or cause to be done by virtue of such power of attorney.
| -46- |
| 7.13 | Securities Law Matters |
| (a) | Each JVCo Shareholder acknowledges and agrees that the issue and delivery to it of its respective JVCo Shares are conditional upon such sale being exempt from any requirement to file a prospectus or registration statement and the requirement to deliver any offering memorandum (or similar document) under all applicable securities legislation, rules, regulations and policies. |
| (b) | Each JVCo Shareholder shall, and shall ensure that its Affiliates, comply with all Applicable Laws related to insider dealing in respect of any material facts of which it becomes aware by virtue of its interest in the JVCo, any other member of the JV Group or any potential merger and acquisition process contemplated in respect of another JVCo Shareholder (or its Affiliates). |
| 7.14 | Financing and Pledge of Shares |
Each JVCo Shareholder shall be permitted to pledge its JVCo Shares as security to a Third Party lender in connection with any Third Party financing, provided that:
| (a) | such Third Party lender is either: (i) a bank, financial institution, trust, fund or investment fund, in each case with a rating for its long-term unsecured and non-credit enhanced debt obligations of BBB or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd., or Baa2 or higher by Moody's Investors Services, or a comparable rating from an internationally recognized credit rating agency or affiliate which is a designated rating organisation pursuant to Canadian securities laws or a registered or certified credit rating agency in accordance with EC Regulation 1060/2009; (ii) a government entity in Canada, the United States of America, the United Kingdom or Europe; or (iii) an entity approved by the other JVCo Shareholder in writing, which consent shall not be unreasonably withheld where the Party proposing to pledge its JVCo Shares provides to the other JVCo Shareholder written evidence that the proposed Third Party lender has equivalent credit worthiness to any lender falling within limbs (i) or (ii), provided that no Party shall be permitted to pledge its JVCo Shares or interests to an entity that is identified in, designated in, listed in or otherwise the subject of prohibited activities under Sanctions Law; and |
| (b) | if there is any enforcement of security related to such pledge of securities (including any sale to Third Party following such enforcement), and if a JVCo Shareholder elects to exercise its right of first refusal pursuant to Section 7.8, then the continuing JVCo Shareholder shall be entitled to buy the relevant JVCo Shares [Redacted – commercially sensitive information]. |
| 7.15 | Acquisition by Westport Canada |
If at any time:
| -47- |
| (a) | [Redacted – commercially sensitive information]; or |
| (b) | there is a significant reduction in the proportion of the Volvo Sweden's, Volvo Canada's and their Affiliates' (other than Permitted Affiliates') requirements for HPDI Systems being purchased by them from the JV Group, |
then, provided that Westport Canada and Volvo Sweden remain the only JVCo Shareholders, Westport Canada may notify Volvo Sweden that it desires to acquire all of Volvo Sweden's interest in the JVCo, and Volvo Sweden shall give reasonable consideration to such request. The Parties acknowledge that, in considering any proposal from Westport Canada, Volvo Sweden will need to be satisfied that the JV Group will be in a position to continue as a stable, long-term supplier to Volvo Canada (if not acquired by Westport Canada), Volvo Sweden and their Affiliates, with a protected Intellectual Property portfolio and a diversified customer base. Volvo Sweden, Volvo Canada (if not acquired by Westport Canada) and their Affiliates will also require most favoured nations treatment on pricing and an appropriate financial return for any disposal of its interest in the JVCo and its Affiliates to Westport Canada pursuant to any request made pursuant to this Section 7.15. Subject to these requirements, Westport Canada and Volvo Sweden shall negotiate in good faith with respect to any such acquisition request.
| 7.16 | Admission of New Shareholders and Going Public Transactions |
Each of Westport Canada and Volvo Sweden acknowledge and agree that it may be in the best interests of the JVCo and the JV Group as a whole to permit additional stakeholders to acquire JVCo Shares or other interests in the JV Group. Subject to approval by the JVCo Board, the Parties will consider in good faith, and taking into account the strategic plan developed as part of the Business Plan for the sustained financial health of the JV Group, any Third Party additional investments in the JV Group including through an initial public offering; investment by a Third Party OEM that may be a competitor to Volvo Sweden, Volvo Canada and their Affiliates, or investment by a tier one supplier to the JV Group. In particular:
| (a) | following the third anniversary of the Effective Date, in the event that the valuation of the JV Group exceeds [Redacted – commercially sensitive information], the JVCo Shareholders shall consider in good faith the admission to listing on a recognized stock exchange or investment exchange of the JVCo Shares, or other equity interests in the JV Group, and any restructuring of the JV Group that may be recommended or required by the relevant exchange, either JVCo Shareholder or their respective professional advisors, in order to effect or optimise such admission; and |
| (b) | [Redacted – commercially sensitive information], the Parties shall work together in good faith to consider the issuance or Transfer of JVCo Shares to other interested stakeholders on reasonable terms. Volvo Sweden acknowledge that such considerations may include the Transfer of JVCo Shares by Volvo Sweden to such new stakeholder in a manner that leaves Westport Canada as a JVCo Shareholder holding greater than 50% of the JVCo Shares. The JVCo Shareholders acknowledges that such considerations may include the Transfer of JVCo Shares on a non pro rata basis. Concurrently with the issuance or transfer such JVCo Shares to any such interested stakeholder the Parties acknowledge and agree that this Agreement will require re-negotiation and that they shall give reasonable consideration to such changes to this Agreement as they or such stakeholder may reasonably request or require in connection with the admission of new JVCo Shareholders to the JVCo. |
| -48- |
| 7.17 | Control Event |
| (a) | In the event of: |
| (i) | any change of control of Westport Canada (or any 100% Affiliate that acquires JVCo Shares from Westport Canada) such that it ceases to be controlled, directly or indirectly, by Westport; or |
| (ii) | any change of control of Westport pursuant to which any competitor of Volvo Sweden, Volvo Canada (or an Affiliate of Volvo Sweden or Volvo Canada) obtains control of Westport; |
Volvo Sweden shall have a call option to buy Westport Canada's JVCo Shares and JVCo Loans, which option may only be exercised concurrently with the call option granted to Volvo Sweden or its 100% Affiliate pursuant to the GP USA in respect of the LP Units, LP Loans and GP Shares held by Westport Canada or its 100% Affiliate, (collectively) [Redacted – commercially sensitive information], and the purchase shall be completed in accordance with and subject to the terms set out in Article 8.
| (b) | In the event of any change of control of Volvo Sweden such that it ceases to be controlled, directly or indirectly, by Aktiebolaget Volvo (publ), Westport Canada shall have a call option to buy Volvo Sweden's JVCo Shares and JVCo Loans, which option may only be exercised concurrently with the call option granted to Westport Canada or its 100% Affiliate pursuant to the Partnership Agreement in respect of the LP Units, LP Loans and GP Shares held by Volvo Canada or its 100% Affiliate (or, as applicable, Volvo Sweden's shares in Volvo Canada) (collectively) [Redacted – commercially sensitive information] and the purchase shall be completed in accordance with and subject to the terms set out in Article 8. |
ARTICLE
8
General Sale Provisions
| 8.1 | Warranties of Seller |
| (a) | Each JVCo Shareholder shall do all such acts or things, including the execution of any documentation that may be necessary to effect the Transfer of JVCo Shares or JVCo Loans in accordance with this Agreement. In respect of a proposed Transfer from one JVCo Shareholder to another JVCo Shareholder, the selling JVCo Shareholder shall cause any such Transfer to be effected by way of a simplified transfer agreement with representations and warranties restricted to ownership of the JVCo Shares and JVCo Loans, to be Transferred (including no Liens), enforceability of the Transfer, corporate capacity, authority and authorization, and receipt of necessary consents to effect the Transfer. |
| (b) | Each Transfer of JVCo Shares and JVCo Loans, between a seller and a buyer will, unless the seller and the buyer otherwise agree, be closed at the offices of the lawyers of the JVCo (or through electronic exchange of documents) at 10:00 a.m. (local time) on the closing date specified in or determined in accordance with this Agreement. |
| -49- |
| 8.2 | Closing Conditions |
At the time of closing of any Transfer of any JVCo Shares and JVCo Loans, between a seller and a buyer under this Agreement, the seller will table:
| (a) | a certificate or certificates representing the JVCo Shares and JVCo Loans being Transferred by the seller, duly endorsed in blank for transfer or accompanied by a duly executed stock power of transfer in appropriate form; |
| (b) | an assignment of any JVCo Loans, executed and completed in a manner acceptable to the JVCo Board and Transferee; |
| (c) | to the JVCo Board, a transfer form and deed of adherence, in such form and completed and executed in such manner as is acceptable to the JVCo Board, which shall include an agreement by the Transferee to be bound by the terms of this Agreement and to assume the obligations of the Transferor under this Agreement; and |
| (d) | a release of any Liens on the JVCo Shares or in connection with JVCo Loans, being Transferred. |
| 8.3 | Payment |
The buyer will pay for the JVCo Shares and JVCo Loans being purchased pursuant to this Agreement by a draft drawn on, or a cheque certified by, or a wire transfer initiated by, a Canadian or US chartered bank (or European equivalent) or trust company.
ARTICLE
9
FUNDING
| 9.1 | Additional Funding and Cash Calls |
| (a) | During the initial phase of the JV Business, the JVCo Shareholders acknowledge that volumes and revenues will be low and as such, the JVCo Shareholders will be required to provide further funding to the JVCo (for its, or another member of the JV Group's, use) up to (in aggregate with amounts funded by the JVCo Shareholders and their 100% Affiliates pursuant to the Partnership Agreement) their respective Funding Caps, in order to provide sufficient funds in order for the JV Group to carry out the JV Business in accordance with the Business Plan. The Parties acknowledge that certain other events may trigger the requirement for further funding during the term of this Agreement, including unexpected losses or expenditure, or any member of the JV Group entering into, or intending to enter into, a product development agreement in connection with advancing the Business Objective. |
| -50- |
| (b) | The Parties have agreed that an initial Cash Call in the aggregate amount of [Redacted – commercially sensitive information] will be required in order to fund the JVCo from the date hereof to the end of the current Fiscal Year. As such, the JVCo Shareholders agree to provide their pro rata share of such initial Cash Call Funding on the date hereof. Following the provision of such initial Cash Call Funding the Parties anticipate that the JVCo will be funded 12 to 18 months in advance for each upcoming Fiscal Year and such funding (and its anticipated source) will be reflected in the Funding Plan approved as part of the Business Plan, on an annual basis. The JVCo Board shall consider, in the preparation of the Funding Plan, whether the JVCo should source funding to meet the projected funding requirements for that part of the JV Business undertaken by the JVCo Group, by way of debt, on terms satisfactory to the JVCo Board, rather than through the issue of new JVCo Shares or contributions of capital. |
| (c) | If: |
| (i) | the JVCo Board determines that funding from a Third Party will not be sourced or fails to determine that funding from a Third Party will be sourced; and |
| (ii) | the Funding Plan requires the JVCo Shareholders to provide funding to the JVCo for the upcoming Fiscal Year, |
the JVCo Board will issue a Cash Call on an annual basis at the beginning of each Fiscal Year but, in any event, within the first calendar Quarter. The JVCo Board may, in its discretion from time to time, and in accordance with the requirements of this Agreement, issue Cash Calls not contemplated by the Funding Plan.
| (d) | All Cash Calls will be made on the following basis: |
| (i) | the Cash Call will set out the aggregate amount of additional funding required ("Cash Call Funding"), whether such Cash Call Funding is in accordance with the Funding Plan or for additional funding, and the rationale for such Cash Call Funding; |
| (ii) | the JVCo Shareholders shall be responsible for providing the Cash Call Funding pro rata in proportion with their respective JVCo Interests, up to an aggregate amount (when taken together with the initial Cash Call Funding referred to in Section 9.1(b), any Emergency Funding provided by such JVCo Shareholder and any cash calls and emergency funding provided to the Partnership by such JVCo Shareholder or its 100% Affiliate pursuant to the Partnership Agreement or the GP USA and calculated by reference to the principal amount outstanding (excluding any accrued interest) from time to time of each JVCo Loan and LP Loan) of [Redacted – commercially sensitive information] (in the case of Volvo Sweden) and [Redacted – commercially sensitive information] (in the case of Westport Canada) (or, in each case, the equivalent amount in SEK) (each a "Funding Cap"). The JVCo Shareholders acknowledge that the Funding Cap is in respect of the JV Group as a whole; |
| (iii) | the Cash Call will specify whether the Cash Call Funding will be satisfied by: |
| -51- |
| (A) | the subscription for further JVCo Shares; |
| (B) | additional capital contributions, without the issuance of any further JVCo Shares; or |
| (C) | by extending an interest-bearing loan to the JVCo ("JVCo Loan"), in accordance with loan agreements to be entered into by each JVCo Shareholder and the JVCo as described in Section 9.1(d)(vi) ("JVCo Loan Agreement"), |
as determined by the JVCo Board and provided that the JVCo Shareholders shall fund their respective Cash Call Funding in the same manner. The Parties agree that a JVCo Loan may be extended by, or assigned to, an 100% Affiliate of the relevant JVCo Shareholder; provided that, if there is a conversion of such JVCo Loan to equity, any JVCo Shares issued on conversion must be held by the JVCo Shareholder such that all JVCo Shares are held by the same Person and not divided between the JVCo Shareholder and its 100% Affiliate;
| (iv) | the Cash Call shall set out the date by which the Cash Call Funding is required by the JVCo, which shall not be earlier than 25 Business Days after the date of the Cash Call (the "Cash Call Funding Date"); |
| (v) | each JVCo Shareholder shall, no later than the Cash Call Funding Date, provide their proportion of such Cash Call Funding in the manner set out in the Cash Call; |
| (vi) | if any Cash Call Funding is to be provided by way of JVCo Loan, the terms of such JVCo Loan shall be determined by the JVCo Board, provided that there shall be a restriction on any Transfer of a JVCo Loan to a Person that is not: (A) an 100% Affiliate of the relevant JVCo Shareholder; or (B) a proposed transferee of JVCo Shares in accordance with a permitted Transfer of the JVCo Shares. JVCo Loans shall not be considered or treated as equity and such JVCo Loans shall rank as to priority of repayment below all other indebtedness incurred by the JVCo from time to time but in priority to any return of capital to the JVCo Shareholders; and |
| (vii) | if a JVCo Shareholder disputes the amount of a Cash Call, it shall nevertheless pay the Cash Call in full and the dispute shall be resolved in accordance with Article 14. |
| 9.2 | Emergency Funding |
| (a) | If an Emergency Funding Requirement occurs, the President & CEO or the JVCo Board may provide each JVCo Shareholder with a written request ("Emergency Funding Notice") for emergency funding ("Emergency Funding"). |
| (b) | In the event the President & CEO and/or the JVCo Board does not serve an Emergency Funding Notice and a JVCo Shareholder still considers that an Emergency Funding Requirement has occurred, that JVCo Shareholder may provide the President & CEO, the JVCo Board and the other JVCo Shareholder with an Emergency Funding Notice for Emergency Funding. |
| -52- |
| (c) | An Emergency Funding Notice given pursuant to Sections 9.2(a) or 9.2(b) shall specify: |
| (i) | the amount required by the JVCo to meet the Emergency Funding Requirement (the "Emergency Funding Amount"); |
| (ii) | the nature of the Emergency Funding Requirement and proposed uses of the Emergency Funding Amount; |
| (iii) | the proportion of the Emergency Funding Amount that each JVCo Shareholder is obliged to fund (its "Emergency Funding Share") (which, unless otherwise agreed between the JVCo Shareholders in writing, shall be an amount equal to each JVCo Shareholder's JVCo Interest. The corresponding amount each JVCo Shareholder is obliged to fund shall be subject to each JVCo Shareholder's Funding Cap, which shall be deemed reduced by any other funding previously provided to any member of the JV Group by the relevant JVCo Shareholder and its 100% Affiliates); and |
| (iv) | the date by which the Emergency Funding Amount is required by the JVCo, which shall not be earlier than 20 Business Days after the date of the Emergency Funding Notice (the "Emergency Funding Date"). |
| (d) | The JVCo Shareholders shall seek to agree no later than ten Business Days prior to the Emergency Funding Date, whether such Emergency Funding shall be paid by way of: |
| (i) | the subscription for further JVCo Shares; |
| (ii) | additional capital contributions without the issuance of any further JVCo Shares; or |
| (iii) | a JVCo Loan, |
provided that the JVCo Shareholders shall fund their respective Emergency Funding Share in the same manner and, in default of agreement, the Emergency Funding shall be made by way of JVCo Loan pursuant to a JVCo Loan Agreement, subject in all cases to the requirements of Section 9.1(d)(vi).
| 9.3 | Funding Defaults |
| (a) | If either JVCo Shareholder (a "Funding Defaulting Party") has not yet provided funding to the JVCo pursuant to Cash Calls or Emergency Funding up to its Funding Cap (as reduced by any funding previously provided to any member of the JV Group by such JVCo Shareholder and its 100% Affiliates) and fails to provide its respective JVCo Interest share of any Cash Call or its Emergency Funding Share of any Emergency Funding (as applicable) by the relevant Cash Call Funding Date or Emergency Funding Date (as applicable) (such event being a "Funding Default" and the amount the Funding Defaulting Party has failed to fund being the "Defaulted Amount"), then the other JVCo Shareholder (the "Funding Non-Defaulting Party") [Redacted – commercially sensitive information]. |
| -53- |
| (b) | The terms of any JV Default Loan or Emergency Default Loan shall be determined by the JVCo Board, but subject to the following: |
| (i) | such JV Default Loan or Emergency Default Loan may not be Transferred to any Person (including a 100% Affiliate of the Funding Non-Defaulting Party or the Transferee of JVCo Shares) by the Funding Non-Defaulting Party without the prior written consent of the JVCo Board or otherwise in connection with a permitted Transfer as set out in this Agreement; |
| (ii) | such JV Default Loan or Emergency Default Loan shall rank as to priority of repayment below all Third Party indebtedness incurred by the JVCo from time to time but in priority to any JVCo Loans and any return of capital to the JVCo Shareholders; and |
| (iii) | the rate of interest payable on the JV Default Loan or Emergency Default Loan shall be [Redacted – commercially sensitive information] or such other rate as may be determined by the JVCo Board; and |
| (iv) | unless otherwise agreed with Specified Board Approval, in the event that any JV Default Loan or Emergency Default Loan is to be converted into JVCo Shares pursuant to Section 9.3(e), [Redacted – commercially sensitive information] but immediately prior to such conversion, the Parties shall take any action required in relation to the JV Default Loan or, as applicable, Emergency Default Loan to be converted in order to ensure that, on conversion, each JVCo Shareholders' revised JVCo Interest is the same as its (or its 100% Affiliate's) revised LP Interest and GP Interest. Such actions may require the JVCo, the Partnership and the General Partner to enter into inter-company loans, in order to allow the partial repayment of the relevant JV Default Loan or Emergency Default Loan, and the funds so repaid to be lent to the Partnership and/or the General Partner and converted into LP Units and/or GP Shares. |
| (c) | The Funding Defaulting Party may, in the case of Cash Calls, at any point where a JV Default Loan for a Defaulted Amount is outstanding and no notice of conversion of such JV Default Loan into JVCo Shares has yet been delivered by the Funding Non-Defaulting Party to the JVCo, or in the case of Emergency Funding, [Redacted – commercially sensitive information] of the date the Emergency Default Loan was extended to the JVCo by the Funding Non-Defaulting Party ("Emergency Extension Date"), provide the Defaulted Amount (plus accrued interest at the rate of [Redacted – commercially sensitive information]) to the JVCo in satisfaction of its obligation to fund, as applicable, the Cash Call (in the same manner as such Cash Call was provided by the Funding Non-Defaulting Party) or its Emergency Funding Share of the Emergency Funding by way of convertible loan (which shall be on the same terms as the Emergency Default Loan) and the JVCo will use such amount to repay the JV Default Loan or Emergency Default Loan (as applicable) (plus accrued interest) to the Funding Non-Defaulting Party. For greater certainty, Section 9.3(e) shall not apply to any Emergency Default Loan prior to the Emergency Extension Date or where an Emergency Dispute is ongoing. |
| -54- |
| (d) | In the event the Funding Defaulting Party has not provided funding to the JVCo in accordance with Section 9.3(c) in respect of an Emergency Funding by the Emergency Extension Date or has not referred the matter of whether an Emergency Funding Requirement has occurred ("Emergency Dispute") to Arbitration for resolution in accordance with Article 14 prior to the Emergency Extension Date, the provisions of Section 9.3(e) shall apply. |
| (e) | The Funding Non-Defaulting Party shall have the option at any time (subject to Section 9.3(d) in the event of an Emergency Default Loan) to convert a JV Default Loan or Emergency Default Loan into JVCo Shares [Redacted – commercially sensitive information], provided that: (A) all resultant JVCo Shares must be held directly by the Funding Non-Defaulting Party; and (B) in the case of a JV Default Loan only, where the aggregate of such Defaulted Amount and any equivalent amount in respect of such Funding Defaulting Party or its 100% Affiliate pursuant to the Partnership Agreement is equal to or less than [Redacted – commercially sensitive information], the Funding Non-Defaulting Party shall not be entitled to convert into JVCo Shares any portion of the JV Default Loan that has been outstanding for a period of less than nine months from the date of the JV Default Loan. |
| (f) | In the event that an Emergency Dispute has been referred to Arbitration for resolution and the final decision of the Arbitrators is that an Emergency Funding Requirement: |
| (i) | had occurred at the time the Emergency Funding Notice was served, the Funding Defaulting Party shall be responsible for the costs of the Arbitration (including the costs of all other Parties in relation thereto) and shall have until the later of: (A) five Business Days after the decision; and (B) the last day of the Emergency Extension Date to provide the Defaulted Amount to the JVCo pursuant to Section 9.3(c), following such date, if such Defaulted Amount has not been paid, the Funding Non-Defaulting Party shall be immediately entitled to convert the Emergency Default Loan into JVCo Shares in accordance with the provisions of Section 9.3(e) (and subject to the restriction set out in Section 9.3(e)(B)); or |
| (ii) | had not occurred at the time the Emergency Funding Notice was served, the Party that served the Emergency Funding Notice (which, in relation to an Emergency Funding Notice served by the President & CEO, shall be deemed to be the JVCo) shall be responsible for the costs of the Arbitration (including the costs of all other Parties in relation thereto) and the JVCo shall repay the Emergency Default Loan (plus any accrued interest) to the Funding Non-Defaulting Party as soon as reasonably practicable. |
| -55- |
| (g) | If either JVCo Shareholder fails to provide its respective JVCo Interest share of any Cash Call or Emergency Funding Share of any Emergency Funding (in each case, up to its Funding Cap, as reduced by any other funding previously provided to any member of the JV Group by such JVCo Shareholder and its 100% Affiliates): (i) [Redacted – commercially sensitive information]; or (ii) such that the aggregate of its Defaulted Amount and any equivalent amount in respect of such Funding Defaulting Party or its 100% Affiliate pursuant to the Partnership Agreement is [Redacted – commercially sensitive information] or more, such failure to fund shall be considered a Persistent Breach. |
| (h) | In the event that a Funding Default has occurred and the Funding Non-Defaulting Party has elected: (i) not to fund any of the Defaulted Amount; or (ii) to fund only a portion, but not all, of the Defaulted Amount, the JVCo Board shall amend the Business Plan in such reasonable manner as may be required to account for the decreased amount of funding provided. |
ARTICLE
10
Default and Remedies
| 10.1 | Event of Default |
If any of the following occur in respect of a JVCo Shareholder (a "Defaulting Shareholder"):
| (a) | the Defaulting Shareholder (or any of its Affiliates, as applicable) is in default under an agreement with a Person that holds a Permitted Lien, which default: |
| (i) | is not waived by such Person or otherwise remedied by or on behalf of the Defaulting Shareholder (or its Affiliate, as applicable); and |
| (ii) | would permit the JVCo Shares and JVCo Loans, (or the rights and benefits attached thereto) that are subject to the Permitted Lien to be sold, assigned or conveyed to another Person, at the direction of the holder of the Permitted Lien or its nominee (a "Permitted Lien Default"); |
| (b) | the Defaulting Shareholder (or any of its Affiliates, as applicable) has breached any material provision of any JV Agreement, excluding a funding or payment default (where a remedy for such default is addressed elsewhere in this Agreement) or an Event of Default (as defined in the Partnership Agreement) occurs in respect of the Defaulting Shareholder (or its 100% Affiliate) pursuant to the terms thereof; |
| (c) | the Defaulting Shareholder (or any of its Affiliates, as applicable) has committed fraud, gross negligence or wilful misconduct in connection with the JV Group or the JV Business; |
| (d) | an Insolvency Event occurs in respect of the Defaulting Shareholder; or |
| (e) | the Defaulting Shareholder has committed a Persistent Breach, |
| -56- |
(each, an "Event of Default"), the JVCo Board or, if the JVCo Board refuses to do so, any JVCo Shareholder that is not in default (the "Non-Defaulting Shareholder"), shall provide notice to the Defaulting Shareholder setting forth the details of the Event of Default. In the case of an Event of Default pursuant to Sections 10.1(a) or 10.1(b), that is capable of being remedied, the Defaulting Shareholder shall have 20 Business Days after receipt of a notice from the Non-Defaulting Shareholder to remedy the Event of Default. In all other cases, the Defaulting Shareholder shall not be entitled to any cure period. If the Defaulting Shareholder, acting in good faith, disputes that it is in default, then it may refer the matter for resolution pursuant to Article 14 and none of the remedies set out in Section 10.2 may be exercised unless and until such JVCo Shareholder has been definitively determined to be a Defaulting Shareholder pursuant to Article 14. For greater certainty, an Event of Default shall not be considered to have occurred to the extent that any act or omission giving rise to the Event of Default was done or omitted to be done in accordance with the prior written instruction or express concurrence of the other JVCo Shareholder.
| 10.2 | Remedies |
If a Defaulting Shareholder is subject to an Event of Default under this Agreement, then without limitation of any other rights, remedies or causes of action the JVCo or the Non-Defaulting Shareholder, as applicable, may have under any JV Agreement, at law or in equity against a Defaulting Shareholder (or any of its Affiliates), the JVCo or the Non-Defaulting Shareholder, as applicable, may exercise any one or more of the following remedies, as circumstances permit:
| (a) | in the event of an Event of Default relating to a failure to pay any sums due: |
| (i) | charge the Defaulting Shareholder (or its Affiliate, as applicable) interest at [Redacted – commercially sensitive information], from the day such payment is due until the day it is paid; |
| (ii) | where the payment Event of Default in question is the failure by the Defaulting Shareholder to pay its share of Cash Call Funding or Emergency Funding in accordance with Section 9.1 when due, elect to provide funding equal to the amount due from the Defaulting Shareholder by way of a JV Default Loan to the JVCo in accordance with Section 9.3(a); |
| (iii) | set-off against an unpaid amount, any amounts payable by the JVCo or the Non-Defaulting Shareholder to the Defaulting Shareholder (or its Affiliate, as applicable) under any JV Agreement, without any right of the Defaulting Shareholder (or its Affiliate, as applicable) to set-off or counter-claim; |
| (iv) | treat the default as an immediate and automatic assignment of the Defaulting Shareholder's share of distributions and retain such distributions until all amounts (including interest, as provided in Section 10.2(a)(i) and all costs associated with exercising the remedy, as provided in this Section 10.2) owing by the Defaulting Shareholder, by virtue of the default of the Defaulting Shareholder have been recovered; or |
| (v) | take the necessary legal proceedings to have all outstanding obligations and undertakings of the Defaulting Shareholder performed or request an injunction or other appropriate remedy, the JVCo Shareholders acknowledging that the damages that may be granted by law may not be a sufficient remedy to cure the default and to make the JVCo and the Non-Defaulting Shareholders whole in respect of such Event of Default; |
| -57- |
| (b) | in the event of a Permitted Lien Default pursuant to this Agreement or the Partnership Agreement (in respect of the Defaulting Shareholder or its 100% Affiliate), the Non-Defaulting Shareholder shall have the option to exercise either of the following: |
| (i) | a put option to force the Defaulting Shareholder to acquire the Non-Defaulting Shareholder's (and its 100% Affiliate's) JVCo Shares and JVCo Loans [Redacted – commercially sensitive information]; or |
| (ii) | a call option to force the Defaulting Shareholder to sell the Defaulting Shareholder's (and its 100% Affiliate's) JVCo Shares and JVCo Loans [Redacted – commercially sensitive information], |
and the purchase shall be completed in accordance with and subject to the terms set out in Article 8, together with any necessary conforming changes. This option commences 20 Business Days after receipt of a notice from the Non-Defaulting Shareholder to remedy the Event of Default (assuming that the Permitted Lien Default has not been remedied by such time) and expires on the first anniversary of such date.
| (c) | in the event of an Event of Default pursuant to Section 10.1(c), 10.1(d) or 10.1(e), or pursuant to Section 12.1(c), 12.1(d) or 12.1(e) of the Partnership Agreement in respect of the Defaulting Shareholder or its 100% Affiliate, the Non-Defaulting Shareholder shall have the option to exercise either of the following: |
| (i) | where the Event of Default is not an Insolvency Event, a put option to force the Defaulting Shareholder to acquire the Non-Defaulting Shareholder's JVCo Shares and JVCo Loans [Redacted – commercially sensitive information]; or |
| (ii) | a call option to force the Defaulting Shareholder to sell the Defaulting Shareholder's JVCo Shares and JVCo Loans: [Redacted – commercially sensitive information], |
and the purchase shall be completed in accordance with and subject to the terms set out in Article 8, together with any necessary conforming changes. This option commences on the earlier of (A) receipt of a notice from the Non-Defaulting Shareholder (in the case of an Event of Default which is not permitted to be remedied under this Agreement); and (B) in all other cases, 20 Business Days after receipt of a notice from the Non-Defaulting Shareholder to remedy the Event of Default (assuming that the Event of Default has not been remedied by such time) and expires on the first anniversary of such date; or
| (d) | in the event of an Event of Default pursuant to Section 10.1(b), the breach may be referred to Arbitration for resolution pursuant to Appendix 3 to Schedule B. |
For the purposes hereof, the Defaulting Shareholder shall be liable to the JVCo or the Non-Defaulting Shareholder, as applicable, for all of its costs and expenses incurred in connection with the exercise of the remedies set out in this Section 10.2.
| 10.3 | Remedies not Exclusive and No Release |
| -58- |
The exercise by the JVCo or the Non-Defaulting Shareholder of any of the rights and remedies specified in Section 10.2 are in addition to, and not in substitution for, any other rights or remedies in respect of the occurrence of an Event of Default, or any default or breach of the Defaulting Shareholder of its obligations under this Agreement, whether such rights or remedies are provided for under this Agreement, pursuant to any other agreement between the Defaulting Shareholder (or an Affiliate) or at law or in equity. An exercise of one or more of such rights shall not bar or prejudice in any way the exercise of any rights or remedies. The exercise of any of the rights and remedies specified in Section 10.2 shall not release the Defaulting Shareholder from any other liabilities and obligations under this Agreement while it was a JVCo Shareholder.
ARTICLE
11
CONFIDENTIALITY
| 11.1 | Confidential Information |
| (a) | In this Agreement "Confidential Information" means all records, material and information (and any copies) thereof pertaining to or concerning: (i) the JV Business, the JV Group, including all budgets, forecasts, analyses, financial results, costs, processes, data, technology, Intellectual Property, drawings, blueprints, margins, wages and salaries, and other business activities, and all other information not generally known outside the JV Group; (ii) the contents of this Agreement and the other JV Agreements and any information obtained during negotiations relating to the JV Agreements or as a result of entering into or performing the JV Agreements; and (iii) any JVCo Shareholder or any of its Affiliates, in each case regardless of whether such information is in oral, visual, electronic, written or other form and whether or not it is identified as "confidential", and includes all notes, analyses, summaries or other documents or information (whether paper, electronic or other format) that contain, reflect, summarize, analyze, discuss or review any other Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information insofar as it is in the public domain, provided that specific items of information will not be considered to be in the public domain only because more general information is in the public domain. For this purpose, information is in the public domain if it: (i) is or becomes publicly available through no act or omission of a Party or any of its Affiliates, or its or their Representatives, in breach of this Section 11.1; (ii) (other than the contents this Agreement and the other JV Agreements) is already in possession of the Party to which it was disclosed or any of its Affiliates, without prior restriction on disclosure; (iii) is subsequently obtained lawfully by a Party or its Affiliate from a Third Party which that Person does not reasonably believe is obligated to maintain that information confidential; or (iv) (other than the contents this Agreement and the other JV Agreements) is independently developed by a Party or its Affiliate without reference to the information required to be kept confidential hereunder. |
| (b) | Each Party acknowledges that all Confidential Information obtained by or on behalf of a Party or any Representative or (in respect of a JVCo Shareholder) any Affiliate thereof is and shall remain the exclusive property of the disclosing party, as applicable. Each Party shall, and each JVCo Shareholder shall cause its Affiliates and Representatives to: (i) keep the Confidential Information in strictest confidence; and (ii) in the case of the JVCo Shareholders, use the Confidential Information solely in respect of its investment in the JV Group, and the operation of the JVCo and the JV Business and not directly or indirectly for any other purpose, without the express prior written consent of the other Parties. In complying with the foregoing, each Party shall use (and shall ensure that its Representatives and, in respect of a JVCo Shareholder, its Affiliates use) the same degree of care as would be used by a normally prudent Person in protecting its own proprietary and confidential information. |
| -59- |
| (c) | Notwithstanding Section 11.1(b), a Party (or its Affiliate) may disclose Confidential Information: |
| (i) | as required by Applicable Laws or pursuant to policies or regulations of any stock exchange on which any of the securities of such Party or any of its Affiliates are listed or by any securities commission or other regulatory authority having jurisdiction over such Party or any of its Affiliates, and only for the purposes of such disclosure, after such Party has made a reasonable attempt to prevent and limit such disclosure and after notification to the other Parties (where permitted), in which event such Party or Affiliate thereof shall request confidentiality in respect of such disclosure and shall use all reasonable commercial efforts to cooperate with the Party to prevent or limit such disclosure; |
| (ii) | to its Affiliates and Representatives that have a reasonable need to know the Confidential Information, provided that: (A) such Party shall be required to ensure that each such Affiliate and Representative maintain the confidentiality of the disclosed information in accordance with this Section 11.1; (B) each such Representative has accepted that obligation; and (C) such Party shall be responsible for any subsequent disclosures of such Confidential Information by its Affiliates or Representatives on the same basis as if such disclosures were made directly by such Party; |
| (iii) | to a Person that is a bona fide prospective Transferee of any of that JVCo Shareholder's JVCo Shares or to a Person with which it is conducting bona fide negotiations directed towards a merger, amalgamation or sale of shares representing a majority ownership interest of that JVCo Shareholder or any of its Affiliates, provided that: (A) such JVCo Shareholder shall be required to ensure that each such prospective Transferee enters into a confidentiality agreement on terms that are materially the same as the requirements in this Section 11.1; (B) the prospective Transferee has accepted that obligation; and (C) such JVCo Shareholder shall be responsible for any subsequent disclosures of such Confidential Information by the prospective Transferee on the same basis as if such disclosures were made directly by such JVCo Shareholder; |
| (iv) | to the extent reasonably appropriate for the applicable purpose, to its lenders, insurers, legal counsel, auditors, underwriters, financial and other professional advisors and credit rating agencies, provided that: (A) such Party shall be required to ensure that each such advisor or agency enter into a confidentiality agreement on terms that are materially the same as the requirements in this Section 11.1; (B) each such advisor or agency has accepted that obligation; and (C) such Party shall be responsible for any subsequent disclosures of such Confidential Information by its advisors or agencies on the same basis as if such disclosures were made directly by such Party; |
| -60- |
| (v) | to the extent permitted by this Agreement or any other agreements between the Parties or their Affiliates in connection with the JV Business; or |
| (vi) | to the extent required by any legal or administrative proceedings or because of any Order of a court or any regulatory authority binding on it, provided that it will promptly notify the other Parties of any such anticipated disclosure to allow it to seek a protective Order and that it will request any confidentiality protection permitted thereunder. |
| (d) | Each Party is responsible for any failure by its Representatives or any other Person to whom it discloses Confidential Information (other than Persons who receive Confidential Information under Section 11.1(c)(i) or Section 11.1(c)(vi)) to maintain the confidentiality of any Confidential Information. Without limitation and in addition to any rights a Party may have against another Party arising by reason of any breach of the obligations under this Section 11.1, each Party shall be liable to and indemnify and hold harmless each other Party and its Affiliates for any losses, costs (including solicitor and his own client costs), damages, and expenses whatsoever which they may suffer, sustain, pay or incur resulting from disclosure or use by such Party or other Persons to whom such Party disclosed Confidential Information (other than Persons who receive Confidential Information under Section 11.1(c)(i) or Section 11.1(c)(vi)), of all or any part of the Confidential Information in breach of this Agreement. |
| 11.2 | Restricted Information |
| (a) | Notwithstanding anything to the contrary in this Article 11 or elsewhere in this Agreement, the JVCo Shareholders acknowledge and agree that as JVCo Shareholders, or in the conduct of their appointed Directors to the JVCo Board, they may be exposed to certain confidential information of the JV Group, the other JVCo Shareholder or customers, suppliers or other Persons with a relationship to the JV Group that constitutes "competitively sensitive information" (collectively, "Restricted Information") and that Volvo Sweden, Volvo Canada or their Affiliates may be a competitor of such customers or other Persons with respect to the truck industry and off-road applications in which the HPDI Systems will be supplied and used. For clarity, Restricted Information comprises any information that may allow Volvo Sweden, Volvo Canada or their Affiliates to better predict the commercial behaviour of its actual or potential competitors and may include the current or future pricing terms, pricing, sales or marketing plans, customer or supplier contract terms. |
| (b) | In order to adequately protect the Restricted Information, comply with Anti-Trust Laws and provide reasonable assurances to potential customers of the Partnership that such Restricted Information will not be used in a manner that is adverse to their interests, the JVCo Shareholders shall use their rights as shareholders and under this Agreement to procure that the JVCo implements: |
| -61- |
| (i) | appropriate clean team arrangements and other technical precautions (e.g., separate password-protected access or anonymization and encryption of data, firewalls, allocation of administrator rights and corresponding IT authorization concepts, electronic separation by means of "ethical walls", etc.); |
| (ii) | contractual provisions (confidentiality obligations); and |
| (iii) | organizational measures, |
governing the sharing and use of Restricted Information to ensure that the JVCo Shareholders and each of their Affiliates, and their respective directors, officers and employees, do not obtain access to Restricted Information or have responsibility for day-to-day operational decision-making or responsibility on pricing, marketing or sales within competitive business units. The JVCo Shareholders shall only make use of their information and reporting rights provided in accordance with Applicable Law, this Agreement and the JVCo Articles to the extent such use is consistent with Anti-Trust Laws, in particular with regard to the exchange of competitively sensitive information.
| (c) | Without prejudice to Section 11.2(b), the JVCo Shareholders agree to put in place sufficient safeguards to avoid any disclosure of Restricted Information between the JVCo Shareholders and customers of the JV Group via the JV Group, unless to the extent necessary for and proportionate to the proper functioning of the JV Group. The JVCo Shareholders shall identify these safeguards in an information barrier protocol to be agreed prior to, and put into effect, promptly following the Effective Date. |
| 11.3 | Survival |
The provisions of this Article 11 shall continue to apply to any JVCo Shareholder that Transfers its JVCo Shares and ceases to be a JVCo Shareholder hereunder for five years from the date such JVCo Shareholder Transfers its JVCo Shares, or for 12 months from the date of termination of this Agreement pursuant to Section 12.3, whichever is the sooner, provided in each case that the provisions of this Article 11 relating to Restricted Information shall survive indefinitely.
ARTICLE
12
TERMINATION AND SURVIVAL
| 12.1 | Termination Events |
| (a) | This Agreement shall be terminated upon: |
| (i) | the date on which one Person acquires all of the issued and outstanding JVCo Shares in compliance with this Agreement; or |
| -62- |
| (ii) | the passing of a Specified Shareholder Approval and the completion of the wind-up and dissolution of the JVCo, each as contemplated in Section 12.2. |
| (b) | Notwithstanding Section 12.1(a), each Party is responsible for paying all amounts owing by it under this Agreement prior to the date of termination, including any amounts owing for JVCo Shares purchased under this Agreement. |
| 12.2 | Winding Up and Dissolution |
| (a) | Subject to Sections 12.2(b) to 12.2(e): |
| (i) | Unless otherwise agreed by the JVCo Shareholders, upon the passing of a Specified Shareholder Approval to wind up the JVCo, the JVCo Board shall exercise their powers for the purpose of winding up the JV Business, liquidating the JVCo's assets in an orderly manner, paying the debts, liabilities and expenses of the JVCo and distributing to the JVCo Shareholders, in proportion to their JVCo Interest, any property of the JVCo remaining after repayment of the JVCo's debts, liabilities and expenses. |
| (ii) | The JVCo shall not engage in any new business during the period of such winding up and dissolution. |
| (iii) | The JVCo Shareholders shall be entitled to appoint a controller in respect of the JVCo to effect the foregoing. |
| (b) | [Redacted – commercially sensitive information]. |
| (c) | [Redacted – commercially sensitive information]. |
| (d) | [Redacted – commercially sensitive information]. |
| (e) | [Redacted – commercially sensitive information]. |
| (f) | [Redacted – commercially sensitive information]. |
| (g) | [Redacted – commercially sensitive information]. |
| 12.3 | Survival |
Notwithstanding the termination of this Agreement in accordance with Section 12.1, Article 11 shall remain in full force and effect, pursuant to the terms hereof and for a period of 12 months thereafter, excluding any Restricted Information, in which case the confidentiality obligations shall survive indefinitely. The obligations of the JVCo Shareholders and the JVCo under Article 14, and Article 16, and Sections 4.3, 5.13 and 12.2 shall survive indefinitely the expiration or earlier termination of this Agreement. All defined terms used in any provision surviving after the termination of this Agreement shall survive until the provision in which such defined term is used expires in accordance with its terms.
| -63- |
ARTICLE
13
REPRESENTATIONS AND WARRANTIES
| 13.1 | Representations and Warranties of the Parties |
Each Party hereby represents and warrants as follows, and acknowledges and confirms that the other Parties are relying on such representations and warranties in entering into this Agreement:
| (a) | Qualification. It is a corporation, or other legal entity, duly incorporated or formed and existing under the laws of its jurisdiction of incorporation or formation and has the corporate or other power to enter into and perform its obligations under this Agreement. It has all governmental and regulatory licences, registration and approvals required by Applicable Law as may be necessary to perform its obligations under this Agreement (and with respect to the JVCo Shareholders, to own the JVCo Shares). |
| (b) | Authorization. The execution and delivery of and performance by it of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or other action on the part of the Party. |
| (c) | Validity of Agreement. The execution and delivery of and performance by the Party of this Agreement: |
| (i) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a breach or violation of or a conflict with, or allow any other Person to exercise any rights under, any of the terms or provisions of its articles, by-laws or other constating documents or governing agreements; |
| (ii) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a material breach or violation of or a conflict with, or allow any other Person to exercise any rights under any material Contracts or instruments to which the Party is a party or pursuant to which any of the Party's assets may be affected; and will not result in the violation of any Applicable Law. |
| (d) | Execution and Binding Obligation. This Agreement has been duly executed and delivered by the Party and constitutes a legal, valid and binding agreement of each Party enforceable against it in accordance with its terms, subject only to any limitation under Applicable Law relating to: (i) bankruptcy, winding-up, insolvency, arrangement and other laws of general application affecting the enforcement of creditors' rights; and (ii) the discretion that a court may exercise in the granting of equitable remedies. |
| (e) | No Proceedings. There are no actions, suits or proceedings pending or, to its knowledge, threatened against or affecting it or any of its properties before or by any Governmental Entity, and no existing default by it under any applicable Order, in each case that is reasonably expected to have a material adverse effect on its financial condition or results of operations. |
| -64- |
| 13.2 | Survival |
The representations and warranties of the Parties contained in this Article 13 survive the execution and delivery of this Agreement.
ARTICLE
14
DISPUTE RESOLUTION AND DEADLOCK
| 14.1 | Dispute Resolution and Deadlocks |
In the event the Parties or the JVCo Board, as applicable, have a Dispute, including being unable to reach specified approval for a matter as set out in Sections 4.6 and 6.1, as applicable, the Dispute shall be resolved in accordance with Schedule B.
| 14.2 | Injunctive Relief |
Notwithstanding Section 14.1, a Party may apply to the courts of British Columbia for interim or conservatory measures in respect of the matters in Dispute, including immediate injunctive relief or similar equitable relief. The Parties agree that seeking and obtaining such interim or conservatory measures shall not waive the right to Arbitration set out in Schedule B. The Parties further agree that the provisions of this Section 14.2 shall not be deemed to preclude an arbitrator from awarding similar or other interim relief or issuing interim arbitration awards.
| 14.3 | Performance to Continue |
The Parties agree that during the resolution of a Dispute, the Parties shall continue to perform their obligations under this Agreement, provided that such performance shall be without prejudice to the rights and remedies of the Parties and shall not be read or construed as a waiver of a Party's right to claim for recovery of any loss, costs, expenses or damages suffered as a result of the continued performance of this Agreement.
ARTICLE
15
NOTICES
| 15.1 | Addresses for Service |
The addresses for service and email addresses of the Parties shall be as follows:
[Redacted – personal information]
| 15.2 | Change of Address |
A Party may, from time to time, change its address for service hereunder by notice to the other Parties given in accordance with Section 15.3.
| 15.3 | Notices |
Any notice or other communication provided for in this Agreement or any other notice which a Party may desire to give to another Party, shall be in writing and shall be delivered by:
| -65- |
| (a) | personal hand delivery to the addressee or to an officer of the addressee, or in the absence of an officer, to some other responsible employee of such addressee and shall be deemed to have been given and received on the date of such delivery or, if so delivered on a day that is not a Business Day, then the next Business Day; |
| (b) | registered mail, in a properly addressed envelope addressed to the Party to whom the notice is to be given at its address for service and shall be deemed to have been given and received on the date it is signed for evidencing proof of receipt by the addressee or such other person designated as having the responsibility to sign for registered mail; or |
| (c) | electronic mail (where the addressee has provided an email address with the address for service) addressed to the Party to whom notice is to be given at its address for service and shall be deemed to have been given and received on the same day as the date of sending or, if so delivered on a day that is not a Business Day, then the next Business Day. |
ARTICLE
16
MISCELLANEOUS
| 16.1 | Press Release |
| (a) | Neither Westport Canada nor Volvo Sweden, nor any of their respective Affiliates, shall make any press release or response to a press or other inquiry for information, on behalf of themselves or the JVCo, that relates to this Agreement, the JVCo, or the JV Business, unless the other Parties have consented in writing to the final version of such press release or response to a press or other inquiry for information. Notwithstanding the foregoing and for greater certainty, the Parties acknowledge and agree that the JVCo shall be permitted to issue press releases in the ordinary course of business without the prior consent of either Westport Canada or Volvo Sweden, provided that the JVCo shall have provided reasonable notice of such release to Westport Canada and Volvo Sweden prior to its issuance. |
| (b) | Subject to Section 11.1 and Section 16.1(a), if a Party or its Affiliate wishes to make any press release or response to press and other inquiries for information that, in either such case, relates to this Agreement, the JVCo, or the JV Business, then it shall provide the other Parties with a draft thereof in sufficient time prior to the release thereof so that the other Parties may review the proposed press release or inquiry response to be released and advise the Party that proposes to make such release of any comments that such other Parties may have in respect thereto. |
| (c) | The foregoing shall not apply when the release or disclosure of any information that relates to this Agreement, the JVCo, or the JV Business is required by Applicable Law or by any stock exchange on which any of the securities of a Party or any of its Affiliates are listed or by any securities commission or other regulatory authority having jurisdiction over such Party or any of its Affiliates, provided that, in each such case, except where prohibited under Applicable Law, the Party who or whose Affiliate is required to make such disclosure shall provide the other Parties with details of the nature and substance of such release or disclosure as soon as practicable. Furthermore, the obligations in this Section 16.1 shall not apply to general disclosures or releases of information that a Party or its Affiliate may make from time to time relating to its business or property. Notwithstanding anything to the contrary contained in this Section 16.1, the JVCo shall not make any press release or response to press and other inquiries for information that, in either such case, relates to this Agreement or the JV Business except if approved by the JVCo Board or required by Applicable Law. |
| -66- |
| (d) | The Parties acknowledge that this Agreement will constitute a material agreement of Westport and shall be required to be filed with the Canadian Securities Administrators and made publicly available via SEDAR and with the Securities and Exchange Commission via the Electronic Data Gathering, Analysis, and Retrieval system (EDGAR). |
| 16.2 | Amendment |
| (a) | This Agreement may be amended only: |
| (i) | in writing pursuant to an amendment agreement executed by all JVCo Shareholders and the JVCo; or |
| (ii) | by the JVCo unilaterally, to make changes to Schedule A to reflect any issuances or Transfers of JVCo Shares made in accordance with this Agreement. |
| (b) | Any amendment to this Agreement will be provided to all JVCo Shareholders within 20 Business Days from the effective date of such amendment. |
| (c) | The JVCo will from time-to-time update Schedule A to reflect additional JVCo Shareholders as of the Effective Date, or Persons who, in accordance with the provisions of this Agreement, after the date hereof, become JVCo Shareholders. |
| (d) | The Parties shall cause the GP USA and/or the Partnership Agreement to be amended to align with any permitted or other approved amendments to this Agreement where the amendments to this Agreement address the same or similar concepts contained in the GP USA and/or the Partnership Agreement. Similarly, the Parties shall amend this Agreement in order to align with any amendments made to the GP USA and/or Partnership Agreement where the amendments to the GP USA and/or Partnership Agreement address the same or similar concepts contained in this Agreement. |
| 16.3 | Agreement to be Bound |
Each Person who becomes a JVCo Shareholder must concurrently with becoming a JVCo Shareholder execute and deliver to the JVCo a counterpart copy of this Agreement or a written agreement in form and substance satisfactory to the Parties, agreeing to be bound by this Agreement, including making the representations and warranties contained in Article 13.
| 16.4 | Conflict with Articles |
| -67- |
In the event of any inconsistency between this Agreement and the JVCo Articles, this Agreement shall govern to the extent of the inconsistency and, at the request of any Party, the Parties shall forthwith make all changes to the JVCo Articles as are necessary and lawful to render them not inconsistent with this Agreement.
| 16.5 | Entire Agreement |
This Agreement, together with the Project Agreements, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, including the confidentiality agreement entered into between Westport Inc and Volvo Sweden on 18 October 2022 and the Term Sheet dated 18 July 2023 entered into by Westport Inc and Volvo Sweden. There are no conditions, representations, warranties or other agreements between the Parties with respect to the subject matter hereof, whether oral or written, express or implied, statutory or otherwise, except as specifically set out in this Agreement or the other JV Agreements.
| 16.6 | Strict Performance of Covenants |
The failure of any Party to seek redress for a violation, or to insist upon strict performance of any provision hereof, shall not prevent a subsequent act, which would have originally constituted a violation of such provision or any provision hereof, from having the effect of an original violation of such provision or any other provision hereof.
| 16.7 | Waiver |
A waiver of any default, breach or non-compliance under this Agreement is not effective unless it is in writing and signed by the Party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a Party in respect of any default, breach or non-compliance or by anything done or omitted to be done by that Party. The waiver by a Party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that Party's rights under this Agreement in respect of any continuing or subsequent default, breach or non-compliance, whether of the same or any other nature.
| 16.8 | No Liability for Consequential Damage or Loss of Profit |
Each Party acknowledges that contractual damages and other remedies will be available to the other Parties with respect to any breach of any provision of this Agreement. The Parties hereby agree that no Party shall be liable (whether in contract or in tort or under common law, including negligence, or otherwise howsoever and notwithstanding the provisions of any legislation in Canada) to any other Party for any indirect or consequential losses, including indirect or consequential losses which are loss of profit or revenue, loss of use, decline in earnings, decline in production, loss of contract or other business opportunity, loss of goodwill, or for any punitive, exemplary or special damages (including resulting from any breach of this Agreement and whether or not advised of any of the foregoing) which may be suffered by such other Party in connection with this Agreement; provided that, (a) this Section 16.8 shall not apply to claims relating to a breach of Article 11; and (b) this Section 16.8 shall not preclude a Party from entitlement to indemnification for such Party as a consequence of its liability to a Third Party for indirect, consequential, punitive, exemplary or special damages which such Third Party is entitled to recover from the relevant Party.
| -68- |
| 16.9 | Severability |
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
| 16.10 | Effective Time |
This Agreement is deemed effective as of the Effective Date.
| 16.11 | Time of Essence |
Time shall be of the essence of this Agreement in all respects.
| 16.12 | Further Assurances |
Each Party shall promptly do, execute and deliver or cause to be done, executed and delivered all further acts, documents and things in connection with this Agreement that any other Party may reasonably require for the purpose of giving effect to this Agreement.
| 16.13 | Successors |
This Agreement shall enure to the benefit of and be binding on the Parties and their respective successors and permitted assigns.
| 16.14 | Assignment |
No Party may assign, whether absolutely, by way of security or otherwise, all or any part of its rights or obligations under this Agreement without the prior consent of all of the other Parties or in accordance with this Agreement, except where such assignment is being made together with the Transfer of its JVCo Shares in accordance with this Agreement.
| 16.15 | Subdivision, Consolidation, etc. of Shares |
The provisions of this Agreement shall apply mutatis mutandis to any securities into which the JVCo Shares or any of the JVCo Shares may be converted or changed, to any securities of the JVCo resulting from a reclassification, subdivision or consolidation of any JVCo Shares, to any securities of the JVCo which are received by the JVCo Shareholders as a distribution or as a result of a split, consolidation, issuance, recapitalization or reclassification, and to any securities of the JVCo or of any successor body corporate which may be received by the JVCo Shareholders on an amalgamation, reorganization, merger or combination of the JVCo.
| 16.16 | Remedies |
The Parties acknowledge and agree that all restrictions contained in this Agreement are reasonable and valid and that all defences to the strict enforcement of such restrictions are hereby waived, and that the rights, privileges, restrictions and conditions set forth in this Agreement are special and unique such that a breach of any such rights, privileges, restrictions or conditions may not be adequately compensated for by an award of damages. Accordingly, any Party shall be entitled to temporary and permanent injunctive relief and to an order for specific performance against every other Party that is in breach of this Agreement. Any remedy this Agreement sets forth or contemplates shall be in addition to and not in substitution for or dependent upon any other remedy.
| -69- |
| 16.17 | Withholding |
All payments that the JVCo is required to make under this Agreement to a JVCo Shareholder shall be subject to withholding of Taxes and other amounts as required by Applicable Law or regulation. In lieu of withholding such Taxes and other amounts, in whole or in part, the JVCo may, in its sole discretion, accept other provision for payment of Taxes and other amounts as required by law, provided it is satisfied that all requirements of law affecting its responsibilities to withhold such Taxes and other amounts have been satisfied.
| 16.18 | Expenses |
Unless otherwise agreed by Specified Shareholder Approval, each Party will pay its own legal and other costs and expenses incurred in connection with the negotiation and finalization of this Agreement.
| 16.19 | Currency |
For the purpose of converting amounts specified in one currency into another currency where required, the rate of exchange to be used shall be the rate published by the European Central Bank as at the close of business on the Business Day immediately prior to the date of conversion.
| 16.20 | Counterparts |
This Agreement may be executed by PDF and in two or more counterparts, including by electronic signature, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
[Signature page follows]
| -70- |
IN WITNESS WHEREOF the Parties have executed this Agreement on the Effective Date.
HPDI TECHNOLOGY AB
| ||
| Per: | ||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
| Per: | ||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
WESTPORT FUEL SYSTEMS CANADA INC.
| ||
| Per: | ||
|
Name: [Redacted – personal information]
| ||
| Per: | ||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
| -71- |
VOLVO BUSINESS SERVICES INTERNATIONAL AB
| ||
| Per: | ||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
| Per: | ||
| Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
| -72- |
SCHEDULE
A
SHAREHOLDER CAPITAL
| Name of JVCo Shareholder | Number and Class of JVCo Shares |
Westport Fuel Systems Canada Inc.
|
550 Common Shares |
Volvo Business Services International AB
|
450 Common Shares |
| -73- |
SCHEDULE
B
DISPUTE RESOLUTION AND DEADLOCK
| 1.1 | If a Dispute arises between any of the Parties to this Agreement or the JVCo Articles, then upon written notice of a Dispute by any of the Parties to the other Party(ies) involved in the Dispute ("Initial Dispute Notice"): |
| (a) | Escalation to Senior Representatives. If the JVCo Shareholders are unable to resolve the Dispute within 20 Business Days of receipt of the Initial Dispute Notice, the Dispute (together with any dispute under the Partnership Agreement, the GP USA or the GP Articles related to the same or substantially similar subject matter ("Partnership Dispute")) shall be referred to the chief executive officer of Westport Inc and an executive vice president nominated by Volvo Sweden ("Senior Representatives") by notice in writing (a "SR Escalation Notice"). The Dispute must first be submitted to the Senior Representatives in accordance with Appendix 1 to this Schedule B prior to exercising any of the other dispute resolution procedures set out in this Schedule B. |
| (b) | Additional Dispute Notice. Following escalation to the Senior Representatives in accordance with paragraph 1.1(a) and Appendix 1 to this Schedule B, if there remains an Outstanding Dispute (as such term is defined in paragraph 1.1(d)(iii)(B) of Appendix 1 to this Schedule B), then upon written notice from any of the Parties to the other Party(ies) involved in the Outstanding Dispute ("Additional Dispute Notice"), the Outstanding Dispute shall be resolved by the Tax Expert in accordance with paragraph 1.1(c) or Arbitration in accordance with paragraph 1.1(d). The Parties agree that any limitation period imposed by this Agreement or by Applicable Law in respect of a Dispute to which this Schedule B applies shall be tolled from the date of receipt of the Initial Dispute Notice until the issuance of the Additional Dispute Notice. |
| (c) | Tax Disputes. If the Outstanding Dispute is a Tax Dispute, the Outstanding Dispute will be referred to the Tax Expert for determination in accordance with Appendix 2 to this Schedule B. |
| (d) | Arbitration. Any Outstanding Dispute in relation to which an Additional Dispute Notice has been served shall be referred to confidential, final and binding arbitration (the "Arbitration") pursuant to the rules of the International Chamber of Commerce (the "ICC"), as further set out in Appendix 3 to this Schedule B. The Outstanding Disputes that shall be settled by Arbitration include Outstanding Disputes related to the formation, existence, validity, interpretation, termination, performance or breach of this Agreement or the JVCo Articles by a Party. |
| -74- |
APPENDIX
1 TO SCHEDULE B
ESCALATION TO SENIOR REPRESENTATIVES
| 1.1 | Escalation to Senior Representatives |
| (a) | Each Senior Representative shall have authority to resolve the Dispute that is the subject of the Initial Dispute Notice on behalf of the relevant JVCo Shareholder that nominated him/her. |
| (b) | The Senior Representatives shall use all reasonable endeavours in good faith to resolve the Dispute in conjunction with the resolution of any Partnership Dispute in respect of: |
| (i) | a Dispute and/or Partnership Dispute that relates the Business Plan, or any component thereof (including the Budget), prior to the commencement of the next Fiscal Year; or |
| (ii) | any other Dispute and/or Partnership Dispute (including a Dispute in relation to an Emergency Funding Notice), within 20 Business Days of receipt of the SR Escalation Notice, |
(the "Escalation Period").
| (c) | If the Senior Representatives agree to a solution (in whole or in part) to the Dispute, they shall draft a statement setting forth the terms of such resolution which shall be signed by each Senior Representative for the purposes of identification and the JVCo Shareholders or the Directors shall procure that such resolution is fully and promptly carried into effect. |
| (d) | To the extent that the Senior Representatives fail to reach agreement on resolution of a Dispute within the relevant Escalation Period: |
| (i) | if the Dispute is a Significant Deadlock Event, Appendix 4 of Schedule B shall apply in respect of it; |
| (ii) | to the extent that the Dispute relates to the calculation of FMV, Schedule C shall apply in respect of it; |
| (iii) | in respect of any other Dispute: |
| (A) | to the extent that the decision that is the subject of the Dispute relates to a matter for which Specified Board Approval or Specified Shareholder Approval is required, the decision shall not be taken; |
| (B) | to the extent that the Dispute relates to any other matter (an "Outstanding Dispute"), it will be resolved in accordance with paragraph 1.1(b) of Schedule B; and/or |
| (C) | the JVCo Shareholders shall be free to exercise any accrued rights, powers or remedies they may have in respect of such Dispute. |
| -75- |
APPENDIX
2 TO SCHEDULE B
EXPERT DETERMINATION
| 1.1 | Notice of Expert Review |
In the event of a Tax Dispute that is to be resolved pursuant to paragraph 1.1(c) of this Schedule B, either Party may serve notice on the other Parties within five Business Days after delivery or receipt of the Additional Dispute Notice requiring that the Tax Dispute be settled by the Tax Expert ("Referral Notice").
| 1.2 | Expert Review Procedure Proceedings |
The following provisions shall apply to any Tax Dispute that is referred to the Tax Expert.
| (a) | In the event that the Parties are unable to agree the identity of a Tax Expert within 10 Business Days after service of the Referral Notice, either Party may request that the Tax Expert shall be appointed by the ICC International Centre for ADR in accordance with the Rules for the Appointment of Experts and Neutrals of the ICC. |
| (b) | Each Party shall submit separate written statements setting forth in detail their respective positions with respect to all matters in Tax Dispute to the Tax Expert within 15 Business Days of the appointment of the Tax Expert. All submissions shall be in English, and each Party shall simultaneously send a copy of its submission to the other Parties. |
| (c) | Each Party shall be entitled to submit a further written statement setting forth in detail any objections to the statement of the other Party referred to in paragraph 1.2(b), within 10 Business Days after receipt of the same. All such submissions shall be in English, and each Party shall simultaneously send a copy of its submission (if any) to the other Parties. |
| (d) | Within 20 Business Days after the submission to the Tax Expert of all written statements referred to in paragraphs 1.2(b) and (c) or as soon as practicable thereafter, the Tax Expert, acting as an expert and not as an arbitrator or mediator, will make a final determination binding on the Parties, on the basis of Applicable Law, OECD guidelines and other applicable technical standards related to such Tax Dispute and otherwise in accordance with this Agreement. |
| (e) | There shall be no ex-parte communications between a Party and the Tax Expert relating to those matters in dispute, other than the initial written submissions by the Parties of their respective positions on the matters in dispute and written answers to written questions from the Tax Expert, with simultaneous copies to each Party involved in such Tax Dispute. |
| (f) | The decision of the Tax Expert shall be, absent manifest error, unappealable, final and binding on the Parties. The JVCo shall, and the Parties shall procure (to the extent each of them is able) that the JVCo Board, Management and each other member of the JVCo Group, as applicable, shall (i) implement any changes to the TP Model and/or any new arrangements or changes to existing arrangements within the TP Model (as so updated), and/or (ii) amend, finalise and submit the relevant Tax Return(s), or amend or withdraw any previously submitted Tax Return(s) and/or submit any replacement Tax Return(s), in each case, as are necessary to reflect the decision of the Tax Expert. |
| -76- |
| (g) | Except as may be required by Applicable Law, neither a Party nor its Representatives may disclose any matter in connection with the Tax Dispute without the prior written consent of the other Parties. The Tax Expert shall also maintain the confidentiality of the Tax Dispute. |
| (h) | The cost of the Tax Expert's review and determination shall be borne equally by the Parties. |
| -77- |
APPENDIX
3 TO SCHEDULE B
ARBITRATION PROVISIONS
| 1.1 | Notice of Arbitration |
In the event of an Outstanding Dispute that is to be resolved pursuant to paragraph 1.1(d) of Schedule B, any Party involved in the Outstanding Dispute shall submit the Outstanding Dispute to be settled by Arbitration within five Business Days after delivery or receipt of the Additional Dispute Notice.
| 1.2 | All Arbitration Proceedings |
The following provisions shall apply to any Dispute that is referred to Arbitration.
| (a) | All Arbitrations shall be conducted under the then current rules of the International Chamber of Commerce (the "ICC Rules"). |
| (b) | The seat of Arbitration shall be Vancouver, British Columbia, but nothing in this Agreement precludes any of the proceedings from taking place electronically. |
| (c) | The language of the Arbitration shall be English. |
| (d) | Unless the Parties to the Dispute agree otherwise, three arbitrators will be appointed for the Arbitration (the "Arbitrators") in accordance with Article 12 of the ICC Rules. Volvo Sweden and Westport Canada shall be entitled to appoint one Arbitrator each and those Arbitrators together shall jointly appoint a third Arbitrator of their choosing. |
| (e) | Without limiting a Party's right to challenge the appointment of an Arbitrator pursuant to the ICC Rules, a Party to the Dispute shall not be entitled to set-aside an award on the basis that an appointed Arbitrator did not have the requisite expertise in the relevant subject matter. |
| (f) | Except as may be required by Applicable Law, neither a Party to a Dispute nor its Representatives may disclose to any Third Party (other than the Arbitrators) any matter in connection with an Arbitration without the prior written consent of the other party to the Dispute. The Arbitrators shall also maintain the confidentiality of the Arbitration. |
| (g) | Any decision rendered by the Arbitrators shall be final and binding upon the Parties to the Dispute and not subject to appeal, and judgment may be entered upon it in accordance with Applicable Law in any court of competent jurisdiction. The Arbitrators shall not be entitled to award interest or indirect or consequential damages (including indirect or consequential losses that are loss of profits) except as reimbursement for any such amounts which are a consequence of a party's liability to a Third Party for indirect, consequential, punitive, exemplary or special damages which such Third Party has recovered or is entitled to recover from the relevant Party. |
| (h) | Any award that compels any of the Parties to the Dispute to pay an amount of money shall accrue interest at the daily rate [Redacted – commercially sensitive information] from the date of breach or violation of this Agreement or the JVCo Articles, as determined by the award, until such award is fully paid. |
| -78- |
| (i) | For the sake of efficiency and to avoid inconsistent findings, the Parties consent to the consolidation of two or more Arbitrations commenced under this Agreement or any other JV Agreement that relate to the same facts and issues. For this purpose, the Parties shall (and shall procure that their respective 100% Affiliates, as applicable, shall) procure, to the extent each of them is able, that the arbitral tribunal for any such Arbitration shall be composed of the same Arbitrators as the tribunal for any previous such Arbitration. In the event that this is not possible, the arbitral tribunal of the first such Arbitration shall adjudicate the consolidation of the relevant Arbitrations. |
| -79- |
APPENDIX
4 TO SCHEDULE B
SHOTGUN PROVISION
[Redacted – commercially sensitive information]
| -80- |
SCHEDULE
C
FMV PROCEDURE AND METHODOLOGY
[Redacted – commercially sensitive information]
| -81- |
SCHEDULE
D
INITIAL BUSINESS PLAN
[Redacted – commercially sensitive information]
-82-
Exhibit 99.4
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
CAUTIONARY NOTE FOR READERS
The attached Amended and Restated Limited Partnership Agreement has been filed with certain securities regulatory authorities in Canada pursuant to National Instrument 51-102 – Continuous Disclosure Obligations, which requires Westport Fuel Systems Inc. ("Westport") to file certain material contracts to which it (or any subsidiary) is a party. Unlike certain other documents filed on behalf of Westport, the attached Amended and Restated Limited Partnership Agreement has not been prepared as a disclosure document and was not drafted with the intention of providing factual information about Westport (or any affiliate) for the benefit of investors. The attached Amended and Restated Limited Partnership Agreement contains representations and warranties made by Westport and certain of its affiliates to various counterparties for risk allocation purposes, and solely for the benefit of those counterparties. National Instrument 51-102 allows reporting issuers to omit certain provisions of material contracts and readers are cautioned that statements made by Westport (and its affiliates) in the attached Amended and Restated Limited Partnership Agreement may be qualified (in whole or in part) by information redacted from the attached copy of the Amended and Restated Limited Partnership Agreement, which information is not otherwise available to the public. Moreover, information concerning Westport, its affiliates or the subject matter of statements made in the attached Amended and Restated Limited Partnership Agreement concerning Westport or certain of its affiliates may change after the date of the attached Amended and Restated Limited Partnership Agreement, and subsequent information may or may not be fully reflected in Westport's public disclosures. Accordingly, investors should not rely on statements in the attached Amended and Restated Limited Partnership Agreement concerning Westport (or any of its affiliates) as accurate statements of fact.
AMENDED AND RESTATED LIMITED
PARTNERSHIP
AGREEMENT
FOR
HPDI TECHNOLOGY LIMITED PARTNERSHIP
BY AND AMONG
WESTPORT FUEL SYSTEMS
CANADA INC.
AS LIMITED PARTNER
AND
VOLVO HPDI HOLDING INC.
AS LIMITED PARTNER
AND
1463861 B.C. LTD.
AS GENERAL PARTNER
AND
ANY OTHER PERSON WHO SHALL
BE ADMITTED TO
THE PARTNERSHIP AS A PARTNER IN ACCORDANCE
WITH THE PROVISIONS HEREOF
JUNE 3, 2024
Table of Contents
| Article 1 INTERPRETATION | 2 |
| 1.1 Definitions | 2 |
| 1.2 Schedules | 12 |
| 1.3 Interpretation | 13 |
| 1.4 Governing Law | 14 |
| 1.5 Subsidiaries | 14 |
| Article 2 THE LIMITED PARTNERSHIP | 14 |
| 2.1 Formation and Name of Partnership | 14 |
| 2.2 Business of the Partnership | 14 |
| 2.3 Powers of the Partnership | 15 |
| 2.4 Borrowing Power | 15 |
| 2.5 Financial Assistance | 15 |
| 2.6 Term of the Partnership | 15 |
| 2.7 Business in other Jurisdictions | 15 |
| 2.8 Amendment of Certificate of Limited Partnership | 16 |
| 2.9 Fiscal Year | 16 |
| 2.10 Office of the Partnership | 16 |
| 2.11 Limitation on Authority of Limited Partners | 16 |
| 2.12 Power of Attorney | 17 |
| 2.13 Limited Liability of Limited Partners | 18 |
| 2.14 Compliance with Laws | 19 |
| 2.15 Proceedings | 19 |
| 2.16 Limited Partner Not a General Partner | 19 |
| 2.17 Non-Competition | 19 |
| 2.18 Intellectual Property | 19 |
| Article 3 POWERS, DUTIES AND OBLIGATIONS OF GENERAL PARTNER | 19 |
| 3.1 Powers, Duties and Obligations | 19 |
| 3.2 Specific Powers and Duties | 20 |
| 3.3 Title to Property | 22 |
| 3.4 No Other Business By General Partner | 22 |
| 3.5 Exercise of Duties | 22 |
| 3.6 Limitation of Liability | 23 |
| 3.7 Indemnity of General Partner | 23 |
| 3.8 Indemnity of Partnership | 23 |
| 3.9 Delegation of Authority | 23 |
| 3.10 Deemed Resignation of the General Partner | 24 |
| 3.11 Removal of General Partner | 24 |
| 3.12 Transfer to New General Partner | 24 |
| 3.13 Transfer of Title to New General Partner | 24 |
| 3.14 New General Partner | 24 |
| 3.15 Holding Unit | 24 |
| 3.16 Expenses | 24 |
| Article 4 CAPITAL CONTRIBUTIONS, UNITS AND ADDITIONAL FUNDING | 25 |
| 4.1 Partnership Capital | 25 |
| 4.2 Separate Capital Accounts | 25 |
| 4.3 No Interest on Capital Account | 26 |
| -i- |
| 4.4 No Right to Withdraw Capital Contributions | 26 |
| 4.5 Units | 26 |
| 4.6 Equality of Units | 26 |
| 4.7 Contribution of General Partner | 27 |
| 4.8 Initial Capital Contributions of the Limited Partners | 27 |
| 4.9 Additional Capital Contributions and Cash Calls | 27 |
| Article 5 DISTRIBUTIONS | 33 |
| 5.1 General | 33 |
| 5.2 Distributions prior to Dissolution | 33 |
| 5.3 Distributions on or After Dissolution | 33 |
| 5.4 Prohibition on Distributions | 33 |
| 5.5 Advance of Funds Election | 34 |
| 5.6 Repayments | 35 |
| Article 6 ALLOCATION OF INCOME AND LOSS AND TAX MATTERS | 35 |
| 6.1 Allocation - Income Tax Act | 35 |
| 6.2 Accrual Rights | 36 |
| 6.3 Tax Matters | 36 |
| 6.4 Registration for GST Purposes | 36 |
| 6.5 Responsibility for Payment of GST | 36 |
| 6.6 Tax and Reporting | 36 |
| Article 7 FINANCIAL INFORMATION | 37 |
| 7.1 Books and Records | 37 |
| 7.2 Reporting | 37 |
| 7.3 Accounting Policies | 38 |
| 7.4 Auditors | 38 |
| Article 8 GENERAL RESTRICTIONS ON TRANSFER; ADMISSION OF NEW PARTNERS | 38 |
| 8.1 Restrictions on Transfer and Required Transfers | 38 |
| 8.2 General Restrictions | 39 |
| 8.3 Permitted Transfers to Affiliates | 40 |
| 8.4 Acquisition by Westport Canada | 41 |
| 8.5 Release of Transferring Partner | 41 |
| 8.6 Financing and Pledge of Units | 42 |
| 8.7 Admission of New Partners and Going Public Transactions | 42 |
| 8.8 Restructuring | 43 |
| Article 9 ADDITIONAL RESTRICTIONS ON TRANSFERS | 43 |
| 9.1 No Transfers [Redacted – commercially sensitive information] | 43 |
| 9.2 Right of First Refusal | 43 |
| 9.3 Control Event | 45 |
| 9.4 Securities Laws Matters | 46 |
| Article 10 GENERAL SALE PROVISIONS | 46 |
| 10.1 Warranties of Seller | 46 |
| 10.2 Closing Conditions | 46 |
| 10.3 Payment | 47 |
| 10.4 Changes in Membership of Partnership | 47 |
| 10.5 Amendment of Certificate of Limited Partnership or Record | 47 |
| -ii- |
| Article 11 MEETINGS OF THE PARTNERS | 48 |
| 11.1 Meetings of the Partners | 48 |
| 11.2 Partner Approval Rights | 50 |
| Article 12 DEFAULT AND REMEDIES | 51 |
| 12.1 Event of Default | 51 |
| 12.2 Remedies | 52 |
| 12.3 Remedies not Exclusive and No Release | 54 |
| 12.4 Acknowledgement | 54 |
| Article 13 DISSOLUTION AND LIQUIDATION | 54 |
| 13.1 Events of Dissolution | 54 |
| 13.2 No Dissolution | 55 |
| 13.3 Procedure on Dissolution | 55 |
| 13.4 Dissolution | 56 |
| 13.5 No Right to Dissolve | 56 |
| 13.6 Agreement Continues | 56 |
| 13.7 Survival | 56 |
| Article 14 REPRESENTATIONS AND WARRANTIES | 56 |
| 14.1 Representations and Warranties of the Parties | 56 |
| 14.2 Survival | 58 |
| Article 15 DISPUTE RESOLUTION | 58 |
| 15.1 Dispute Resolution | 58 |
| 15.2 Injunctive Relief | 58 |
| 15.3 Performance to Continue | 58 |
| Article 16 NOTICES | 58 |
| 16.1 Addresses for Service | 58 |
| 16.2 Change of Address | 59 |
| 16.3 Notices | 59 |
| Article 17 CONFIDENTIALITY | 59 |
| 17.1 Confidential Information | 59 |
| 17.2 Restricted Information | 61 |
| 17.3 Survival | 62 |
| Article 18 MISCELLANEOUS | 63 |
| 18.1 Press Release | 63 |
| 18.2 Amendment | 64 |
| 18.3 Agreement to be Bound | 64 |
| 18.4 Entire Agreement | 64 |
| 18.5 Strict Performance of Covenants | 65 |
| 18.6 Waiver | 65 |
| 18.7 No Liability for Consequential Damage or Loss of Profit | 65 |
| 18.8 Severability | 65 |
| 18.9 Effective Time | 65 |
| 18.10 Time of Essence | 66 |
| 18.11 Further Assurances | 66 |
| 18.12 Successors | 66 |
| -iii- |
| 18.13 Assignment | 66 |
| 18.14 Remedies | 66 |
| 18.15 Withholding | 66 |
| 18.16 Expenses | 66 |
| 18.17 Subdivision, Consolidation, etc. of Units | 66 |
| 18.18 Unit Certificates | 67 |
| 18.19 Restatement | 67 |
| 18.20 Currency | 68 |
| 18.21 Counterparts | 68 |
SCHEDULES
Schedule A Capital Contributions and Units
Schedule B Dispute Resolution
Schedule C FMV Procedure and Methodology
| -iv- |
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
This Amended and Restated Limited Partnership Agreement is made effective as of June 3, 2024 (the "Effective Date").
Among:
1463861 B.C. LTD., a corporation incorporated under the laws of British Columbia (the "General Partner")
-and-
WESTPORT FUEL SYSTEMS CANADA INC., a corporation incorporated under the laws of British Columbia ("Westport Canada")
-and-
VOLVO HPDI HOLDING INC., a corporation incorporated under the federal laws of Canada ("Volvo Canada")
Recitals:
| A. | the Partnership was formed pursuant to the laws of British Columbia on February 1, 2024 by the filing of the Certificate of Limited Partnership and the entering into of the Initial Partnership Agreement; |
| B. | the Partnership was formed for the purpose of conducting the JV Business; |
| C. | on formation of the Partnership, Westport Canada held 1 LP Unit and 1,000 GP Shares and was the sole Limited Partner; |
| D. | following the transfer of the JV Business to the JV Group pursuant to closing of the transactions contemplated by the Asset PA, Westport Canada held 1,000 LP Units and 1,000 JVCo Shares and remained the sole Limited Partner; |
| E. | upon closing of the transactions contemplated in the Investment Agreement, Volvo Canada acquired 450 LP Units and 450 GP Shares from Westport Canada, and Volvo Sweden acquired a 45% interest in JVCo from Westport Canada; |
| F. | concurrent with the execution of this Agreement, the Parties entered into the GP USA; and |
| G. | the General Partner, Westport Canada and Volvo Canada wish to amend and restate the Initial Partnership Agreement pursuant to the terms of this Agreement in order to set forth the terms and conditions applicable to the relationship between the Parties and to set forth the terms and conditions applicable to the conduct of the JV Business. |
NOW THEREFORE, the Parties agree as follows:
Article 1
INTERPRETATION
| 1.1 | Definitions |
In this Agreement, the following words have the following meanings:
"100% Affiliate" has the meaning set out in the GP USA.
"Act" means the Partnership Act (British Columbia).
"Additional Dispute Notice" has the meaning set out in Schedule B.
"Affiliate" means, with respect to a Person: (a) any Person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with another Person; (b) any body corporate in respect of which such Person beneficially owns, directly or indirectly, voting securities carrying more than 20% of the voting rights attached to all voting securities of the body corporate for the time being outstanding; (c) any partner of such Person; or (d) any trust, estate or other entity or fund in which such Person has a substantial beneficial interest or as to which the Person serves as trustee, manager or administrator or in similar capacity; but in each case, with respect to any Partner, excluding each member of the JV Group and, with respect to any member of the JV Group, excluding each of the Partners; and for the purpose of this definition, "control" (including with correlative meanings, the terms "controlled by" or "under common control") means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this amended and restated limited partnership agreement and the Schedules.
"Allocations" has the meaning set out in Section 6.1(a).
"Anti-Trust Law" has the meaning set out in the GP USA.
"Applicable Law" means any law, statute, code, ordinance, regulation, rule, Permit, rules of common law, including any judicial and administrative interpretations thereof, of any Governmental Entity which have been made public, including all judicial and administrative Orders which have been made public.
"Arbitration" has the meaning set out in Schedule B.
"Arbitrators" has the meaning set out in Appendix 2 to Schedule B.
"Asset PA" means the asset purchase agreement dated on or about the date of this Agreement between, amongst others, Westport Inc, Westport Canada, the Partnership and JVCo.
"Auditors" means the auditors of the Partnership as determined by the General Partner from time to time.
"Budget" has the meaning set out in the GP USA.
| -2- |
"Business Day" means a day on which banks are generally open for the transaction of commercial business in Vancouver, British Columbia and Gothenburg, Sweden but does not in any event include a Saturday or a Sunday or statutory holiday in British Columbia or Gothenburg, Sweden.
"Business Objective" means the acceleration of development, commercialization and adoption of the HPDI technology on a sustainable basis for use, primarily, in the truck industry and in off-road applications including marine, rail, mining, power generation or generators, construction, and agriculture equipment applications.
"Business Plan" has the meaning set out in the GP USA.
"Capital Accounts" means the accounts of each of the Partners established pursuant to Section 4.2.
"Capital Contribution" means any cash or the fair market value at the time of transfer of other property, or both, which a Partner transfers to the Partnership, less any liabilities assumed or cash or other consideration paid by the Partnership in respect of such contribution, as determined by the General Partner and as set forth in Schedule A (as Schedule A may be updated from time to time).
"Cash Call" means a notice, to be served by the General Partner on each of the Limited Partners, requesting funding in accordance with Section 4.9(c).
"Cash Call Funding" has the meaning set out in Section 4.9(d)(i).
"Cash Call Funding Date" has the meaning set out in Section 4.9(d)(iv).
"Certificate of Limited Partnership" means a certificate for the Partnership filed under the Act on February 2, 2024, and all amendments thereto and renewals or replacements thereof.
"Chair" has the meaning set out in Section 11.1(b).
"Closing Accounts" has the meaning set out in the Investment Agreement.
"Commercial Agreements" has the meaning set out in the GP USA.
"Confidential Information" has the meaning set out in Section 17.1(a).
"Defaulted Amount" has the meaning set out in Section 4.9(i).
"Defaulting Partner" has the meaning set out in Section 12.1.
"Deferred Amount" has the meaning set out in Section 6.1(b).
"Deferred Distribution" has the meaning set out in Section 5.5.
"Dispute" means any controversy, claim, dispute or other matter in question between the Parties arising out of or relating in any way to this Agreement.
"Distributable Cash" means, as of any date, the excess of: (a) all cash and cash equivalents of the LP Group available for distribution by the Partnership; over (b) the sum of the amount of such items determined necessary by the General Partner for the payment of reasonable expenses, debt service obligations on any indebtedness and any other expense or reserve for any liability, working capital or expenditures of the LP Group in line with the Business Plan.
| -3- |
"Effective Date" means the date first above written.
"Emergency Default Loan" has the meaning set out in Section 4.9(i).
"Emergency Dispute" has the meaning set out in Section 4.9(l).
"Emergency Extension Date" has the meaning set out in Section 4.9(k).
"Emergency Funding" has the meaning set out in Section 4.9(e).
"Emergency Funding Amount" has the meaning set out in Section 4.9(g)(i).
"Emergency Funding Date" has the meaning set out in Section 4.9(g)(iv).
"Emergency Funding Notice" has the meaning set out in Section 4.9(e).
"Emergency Funding Requirement" means any funding required by the Partnership (whether for itself or for another member of the LP Group) in order to: prevent (a) an Insolvency Event occurring in relation to the Partnership or, in the case of any other member of the LP Group only, which would have a material impact on that part of the JV Business undertaken by the LP Group or the JV Business as a whole; (b) a breach of financial covenants under any Third Party financing to which the Partnership (or another member of the LP Group) is party; or (c) remedy or prevent an urgent health, safety or environmental concern.
"Emergency Funding Share" has the meaning set out in Section 4.9(g)(iii).
"Escalation Period" has the meaning set out in Appendix 1 to Schedule B.
"Event of Default" has the meaning set out in Section 12.1.
"First Adjourned Partner Meeting" has the meaning set out in Section 11.1(e)(ii).
"Fiscal Year" has the meaning set out in Section 2.9.
"FMV" means the price agreed by the Limited Partners or, in default of such agreement, the fair market value of the LP Units and LP Loans, as applicable, determined in accordance with the FMV Procedure and Methodology.
"FMV Procedure and Methodology" means the procedure and methodology for agreeing or determining FMV, as set out in Schedule C.
"Funding Cap" has the meaning set out in Section 4.9(d)(ii).
"Funding Default" has the meaning set out in Section 4.9(i).
| -4- |
"Funding Defaulting Party" has the meaning set out in Section 4.9(i).
"Funding Non-Defaulting Party" has the meaning set out in Section 4.9(i).
"Funding Plan" has the meaning set out in the GP USA.
"General Partner" has the meaning set out in the Recitals.
"Governmental Entity" means any: (a) government or political subdivision, whether federal, provincial, local or foreign; (b) agency or instrumentality of any such government or political subdivision; (c) federal, state, local or foreign court; (d) applicable industry self-regulatory organization; and (e) applicable stock exchange or securities regulatory authority.
"GP Articles" has the meaning set out in the GP USA.
"GP Board" means the board of directors of the General Partner.
"GP Dispute" has the meaning set out in Schedule B.
"GP Interest" means at any time with respect to a GP Shareholder, that GP Shareholder's rateable ownership of GP Shares expressed as a percentage, which percentage is determined by dividing the number of GP Shares owned by the GP Shareholder by the total number of GP Shares owned by all GP Shareholders.
"GP Shareholder" has the meaning set out in the GP USA.
"GP Shares" has the meaning set out in the GP USA.
"GP Units" means the interest in the Partnership, to be held solely by the General Partner, having the rights and obligations specified in this Agreement, and that are designated as the GP Units.
"GP USA" means the unanimous shareholders agreement in relation to the General Partner entered into as of the Effective Date among the General Partner, Westport Canada and Volvo Canada.
"GST" means the goods and services tax imposed under the provisions of Part IX of the Excise Tax Act (Canada) together with any other goods and services tax, harmonized sales tax, social services tax, or any other value-added tax imposed by any province or territory.
"Holding Company" means, in relation to Volvo Canada (which term shall be deemed to include for these purposes any 100% Affiliate to which Volvo Canada has Transferred any GP Shares, LP Units or LP Loans), that since incorporation Volvo Canada has only carried out the function of holding GP Shares, LP Units and making any LP Loans, and does not have any outstanding liabilities or indebtedness other than any liabilities or indebtedness arising in the ordinary course of it carrying out such function including under this Agreement and the GP USA.
"HPDI" means high pressure direct injection.
"HPDI System" [Redacted – commercially sensitive information]
| -5- |
"ICC" has the meaning set out in Schedule B.
"ICC Rules" has the meaning set out in Appendix 2 to Schedule B.
"IFRS" means the accounting principles so prescribed, recommended or promulgated from time to time as the International Financial Reporting Standards, as issued by the International Accounting Standard Board or any successor thereto, as such principles may be amended, varied or replaced from time to time, which are applicable as at the date on which any calculation made hereunder is to be effective or as at the date of any financial statements referred to herein.
"Income" or "Loss" in respect of any Fiscal Year, means, respectively, the amount of net income or loss of the Partnership for such period determined by the General Partner in accordance with IFRS consistently applied, including the amount of gain or loss from the disposition of each capital property of the Partnership and after deducting the amounts referred to in Section 3.16.
"Income Tax Act" means the Income Tax Act (Canada) and the regulations thereunder.
"Initial Dispute Notice" has the meaning set out in Schedule B.
"Initial Partnership Agreement" means the limited partnership agreement between the General Partner and Westport Canada dated February 1, 2024.
"Insolvency Event" occurs if:
| (a) | a Person ceases or threatens to cease to carry on business, commits an act of bankruptcy (as such term is defined in the Bankruptcy and Insolvency Act (Canada) ("BIA")), becomes insolvent, or proceedings or other actions are taken by or against such entity under the BIA, or the Companies' Creditors Arrangement Act (Canada) or similar legislation whether in Canada or elsewhere; |
| (b) | any formal or informal proceeding for the dissolution or liquidation or settlement of claims against or winding up of affairs of a Person is instituted by or against such Person; |
| (c) | a Person voluntarily makes an assignment in bankruptcy, commences (or consents to the commencement of) a voluntary application or other proceeding to be adjudicated a voluntary bankrupt or seeking liquidation, compromise, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, monitor, custodian or other similar official of it, or consents to the filing of a bankruptcy proceeding against it or to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it; |
| (d) | an involuntary application or other proceeding is commenced against a Person seeking liquidation, compromise, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, monitor, custodian or other similar official of it or any substantial party of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 Business Days; |
| -6- |
| (e) | a receiver, trustee, monitor, custodian or other similar official is appointed in respect of the property of a Person; |
| (f) | a Person files a proposal or notice of intention to make a proposal under the BIA; |
| (g) | a Person makes a fraudulent gift, delivery or transfer of its property or of any part of it, or assigns, removes, secretes or disposes of or attempts or is about to assign, remove, secrete or dispose of any of its property with intent to defraud, defeat or delay its creditors or any of them; or |
| (h) | any indebtedness or liability of a Person, other than to a Limited Partner or an Affiliate of a Limited Partner, becomes due and payable before the stated maturity thereof or any such indebtedness or liability is not paid at the maturity thereof or upon the expiration of any stated applicable grace period thereof, or such Person fails to make payment when due under any: (i) guarantee given by; (ii) court or arbitration Order that applies to; or (iii) settlement agreement entered into by, such Person. |
"Intellectual Property" has the meaning set out in the GP USA.
"Investment Agreement" means the investment agreement dated March 11, 2024 between Westport Inc, Westport Canada, and Volvo Sweden.
"Investment Closing" has the meaning set out in the Investment Agreement.
"IP HoldCo" has the meaning set out in Section 13.3(d).
"JV Agreements" means the JVCo SHA, the JVCo Articles, the GP USA, the GP Articles and this Agreement.
"JV Business" means the development, manufacture, sales, marketing and aftermarket support, service and sales of the components and systems that comprise the HPDI System for use by any OEM (including any Third Party OEM, Volvo Canada, Volvo Sweden or any Affiliate of Volvo Canada or Volvo Sweden), and in any market globally, and includes carrying on the business in order to meet the Business Objective, but excludes the Sub-components Business.
"JV Group" means the LP Group and the JVCo Group.
"JV Group's Intellectual Property" means the Intellectual Property owned, co owned or created by, or licensed to, any member of the JV Group or in which any member of the JV Group otherwise has an interest, including the Intellectual Property transferred by Westport Canada and/or its Affiliates to any member of the JV Group pursuant to the JV Agreements, the Investment Agreement, the Asset PA and any assignment agreement or license contemplated therein.
| -7- |
"JVCo" means HPDI Technology AB (company registration 559468-9696) a company limited by shares, established in accordance with the Swedish Companies Act (Sw. Aktiebolagslagen (SFS 2005:551)).
"JVCo Articles" means the articles of association of JVCo, as amended or replaced from time to time in accordance with the JVCo SHA.
"JVCo Dispute" has the meaning set out in Schedule B.
"JVCo Group" means JVCo and each of its Subsidiaries.
"JVCo Interest" has the meaning set out in GP USA.
"JVCo Loans" has the meaning set out in the JVCo SHA.
"JVCo ROFR" means the right of first refusal granted pursuant to the JVCo SHA, giving each JVCo Shareholder an option to acquire JVCo Shares and JVCo Loans proposed to be sold by the other JVCo Shareholder(s).
"JVCo SHA" means the shareholders agreement governing JVCo between JVCo, Westport Canada and Volvo Sweden dated the Effective Date.
"JVCo Shareholder" has the meaning set out in the GP SHA.
"JVCo Shares" means the shares in the capital of JVCo.
"Lien" means any lien, security interest, mortgage, pledge, charge, license, adverse claim, reversion, restriction, assignment, option, right to acquire or encumbrance of any kind.
"Limited Partner Group" means, with respect to a Limited Partner: (a) any Person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such Limited Partner; or (b) any body corporate in respect of which such Limited Partner beneficially owns, directly or indirectly, voting securities carrying more than 50% of the voting rights attached to all voting securities of the body corporate for the time being outstanding, but in each case excluding each member of the JV Group; and for the purpose of this definition, "control" (including with correlative meanings, the terms "controlled by" or "under common control") means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting securities, by contract or otherwise.
"Limited Partners" means Westport Canada, Volvo Canada, and any other Person who shall be admitted to the Partnership as a limited partner of the Partnership, and "Limited Partner" means any one of them.
"Liquidation Event" has the meaning set out in Section 13.3(b).
"Liquidation IP" has the meaning set out in Section 13.3(b).
"Liquidation IP License" has the meaning set out in Section 13.3(b).
| -8- |
"LP Default Loan" has the meaning set out in Section 4.9(i).
"LP Group" means the Partnership and each of its Subsidiaries and the General Partner.
"LP Interest" means at any time with respect to a Limited Partner, that Limited Partner's rateable ownership of LP Units expressed as a percentage, which percentage is determined by dividing the number of LP Units owned by that Limited Partner by the total number of LP Units owned by all Limited Partners.
"LP Loan" has the meaning set out in Section 4.9(d)(iii)(C).
"LP Loan Agreement" has the meaning set out in Section 4.9(d)(iii)(C).
"LP Units" means the limited partner interests in the Partnership having the rights and obligations specified in this Agreement as represented by the issuance of units to the limited partners.
"Net Business Value" has the meaning set out in Schedule C.
"Non-Defaulting Partner" has the meaning set out in Section 12.1.
"OEM" has the meaning set out in the GP USA.
"OEM Licenses" shall mean the licenses granted by any member of the JV Group to any member of Westport Canada's Limited Partner Group in order to facilitate an arrangement pursuant to Section 5.3(b) of the GP USA and/or the JVCo SHA.
"Offer" has the meaning set out in Section 9.2(a).
"Offer Acceptance" has the meaning set out in Section 9.2(c).
"Offer Exercise Period" has the meaning set out in Section 9.2(c).
"Offer Notice" has the meaning set out in Section 9.2(a).
"Offer Price" has the meaning set out in Section 9.2(b)(i).
"Offered Units" has the meaning set out in Section 9.2(a).
"Offering Party" has the meaning set out in Section 9.2(a).
"Order" means any order, judgment, ruling, injunction, assessment, award, decree or writ of any Governmental Entity.
"Outstanding Dispute" has the meaning set out in in Appendix 1 to Schedule B.
"Parties" means the General Partner, Westport Canada, and Volvo Canada, and "Party" means any one of them.
| -9- |
"Partners" means the General Partner and the Limited Partners, and "Partner" means any one of them.
"Partnership" means the HPDI Technology Limited Partnership, a limited partnership formed under the laws of British Columbia.
"Partnership Interest" means at any time with respect to a Partner, that Partner's rateable ownership of Units expressed as a percentage, which percentage is determined by dividing the number of Units owned by that Partner by the total number of Units owned by all Partners.
"Permit" means any license, permit, authorization, certificate of authority, qualification or similar document or authority that has been issued or granted by any Governmental Entity.
"Permitted Affiliates" means, in respect of Volvo Canada: (a) Affiliates that are distributors or dealers; or (b) any Affiliate in respect of which Volvo Canada (or another of its Affiliates) does not possess, directly or indirectly, the sole power to direct or cause the direction of such Person's management or policies, whether because it holds less than 50% of the voting share capital, or by contract or otherwise.
"Permitted Business" [Redacted – commercially sensitive information]
"Permitted Lien" means a Lien created in accordance with the terms of this Agreement.
"Permitted Lien Default" has the meaning set out in Section 12.1(a).
"Persistent Breach" means, without duplication:
| (a) | the Defaulting Partner (or any of its Affiliates, as applicable) fails to pay any amount required to be paid by it under the Investment Agreement, the JVCo SHA, the GP USA or this Agreement (but excluding the Commercial Agreements) to any other Partner or to the Partnership, any GP Shareholder or the General Partner, any JVCo Shareholder or JVCo, [Redacted – commercially sensitive information]; |
| (b) | [Redacted – commercially sensitive information]; or |
| (c) | the Defaulting Partner has failed to fund as referred to in Section 4.9(o). |
"Person" means any individual (natural person), partnership, limited partnership, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, limited liability company, trust, trustee, executor, administrator or other legal personal representative, Governmental Entity or entity however designated or constituted.
"President & CEO" has the meaning set out in the GP USA.
"Project Agreements" has the meaning set out in the GP USA.
| -10- |
"Proposed Purchaser" has the meaning set out in Section 9.2(e)(i).
"Quarter" or "Quarterly" means each continuous three-month period during a calendar year, ending on March 31, June 30, September 30 or December 31.
"Record" means a record of the Partners to be kept by the General Partner pursuant to Section 7.1.
"Relevant Percentage" with respect to a Limited Partner means that Limited Partner's LP Interest being at least 25%.
"Representatives" means the directors, officers, employees, agents, lawyers, accountants, consultants and financial advisors of a Party and Affiliates of a Party.
"Restricted Information" has the meaning set out in Section 17.2(a).
"ROFR Closing" has the meaning set out in Section 9.2(d)(i).
"ROFR Holder" has the meaning set out in Section 9.2(a).
"ROFR Transfer" has the meaning set out in Section 9.2(b)(iii).
"Sanctions Laws" has the meaning set out in the GP USA.
"Schedules" means the schedules to this Agreement identified in Section 1.2.
"Second Adjourned Partner Meeting" has the meaning set out in Section 11.1(e)(ii).
"Senior Representatives" has the meaning set out in Schedule B.
"SOFR" [Redacted – commercially sensitive information]
"Specified Board Approval" has the meaning set out in the GP USA.
"Specified Consent" means, with respect to any matter, the approval of such matter by all of the Limited Partners who hold a Relevant Percentage at the time of such approval, as evidenced by: (a) a resolution approving such matter passed by a vote of the Partners in person or by proxy at a duly convened meeting of the Partners or any adjournment thereof; or (b) a written resolution signed in one or more counterparts by all such Limited Partners.
"Specified Shareholder Approval" has the meaning set out in the GP USA.
"SR Escalation Notice" has the meaning set out in Schedule B.
"Sub-components Business" [Redacted – commercially sensitive information]
"Subsidiary" has the meaning set out in the GP USA.
"Term" has the meaning set out in Section 2.6.
| -11- |
"Third Party" means any Person other than the Parties and their respective Affiliates.
"Third Party OEM" has the meaning set out in the GP USA.
"Transfer" means:
| (a) | a transfer of any LP Units, GP Shares or LP Loans or, as the context requires, any JVCo Shares, JVCo Loans or shares in Volvo Canada, to any Person, including to an Affiliate of the Transferor; |
| (b) | any sale, exchange, transfer, assignment, gift, mortgage, pledge, encumbrance, hypothecation, alienation, transmission or other transaction or disposition, whether voluntary, involuntary or by operation of law, by which the beneficial ownership, the economic risk of return, a security interest or other interest in, any LP Units, GP Shares or LP Loans or, as the context requires, any JVCo Shares, JVCo Loans or shares in Volvo Canada, passes from one Person to another Person (including an Affiliate) or to the same Person in a different capacity, whether or not for value; or |
| (c) | any transaction, agreement, undertaking, commitment or arrangement to effect any of the foregoing, |
and "to Transfer", "Transferred", "Transferring", "Transferor" and "Transferee" and similar expressions have corresponding meanings.
"Transferred Assets Closing" has the meaning set out in the Investment Agreement.
"Unit" means either a GP Unit or LP Unit.
"Unit Certificate" has the meaning set out in Section 18.18(a).
"Valuator" has the meaning set out in Schedule C.
"Volvo Canada" has the meaning set out in the Recitals.
"Volvo Restricted Business" [Redacted – commercially sensitive information].
"Volvo Sweden" means Volvo Business Services International AB, with company registration number 556539 9853 and its registered office at 405 08 Göteburg, Sweden.
"Westport Canada" has the meaning set out in the Recitals.
"Westport Inc" means Westport Fuel Systems Inc., a corporation incorporated under the laws of the Province of Alberta.
"Westport Restricted Business" [Redacted – commercially sensitive information].
"Windup IP Solution" has the meaning set out in Section 13.3(d).
| 1.2 | Schedules |
| -12- |
The following schedules are attached to and form part of this Agreement:
Schedule A – Capital Contributions and Units
Schedule B – Dispute Resolution
Schedule C – FMV Procedure and Methodology
If there is any conflict or inconsistency between the provisions of the body of this Agreement and those of a Schedule, the provisions of the body of this Agreement shall prevail to the extent of the conflict.
| 1.3 | Interpretation |
In this Agreement:
| (a) | words importing gender include all genders and other Persons, and words in the singular include the plural, and vice versa, wherever the context requires; |
| (b) | if a word is defined in this Agreement, a derivative of that word shall have a corresponding meaning; |
| (c) | all references to designated articles, sections Schedules and other subdivisions are to designated articles, sections, Schedules and other subdivisions of this Agreement; |
| (d) | any reference to a Person in a particular capacity is and is deemed to be a reference to that Person in that capacity and not in any other capacity; |
| (e) | all references to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; |
| (f) | the term "including", "includes", "include" and "in particular" means "including (or includes, include or in particular) without limitation"; |
| (g) | headings and the Table of Contents are not to be considered part of this Agreement and are included solely for convenience of reference and are not intended to be full or accurate descriptions of the contents hereof; |
| (h) | all accounting terms not otherwise defined will have the meanings assigned to them by, and all computations to be made will be made in accordance with, IFRS; |
| (i) | references to any Applicable Law (including any statute referenced in this Agreement) means such Applicable Law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and references to any section or other provision of any Applicable Law means that provision of such Applicable Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision; |
| -13- |
| (j) | any reference to a Person will include and will be deemed to be a reference to any Person that is a successor or assign to that Person (but only to the extent such Person is permitted to be a successor to or assignee of such Person pursuant to the provisions of this Agreement); |
| (k) | all references to US$ are references to United States Dollars and all references to SEK are references to Swedish Krona; |
| (l) | the rule of contractual interpretation known as "contra proferentem" shall not apply to the interpretation or construction of this Agreement, such that in interpreting this Agreement, it shall be irrelevant which Party drafted any particular provision hereof; |
| (m) | unless otherwise specified herein, or as the context may require, computation of any period of time referred to in this Agreement shall exclude the first day and include the last day of such period; and |
| (n) | unless otherwise indicated, references to the time of day or date mean the local time or date in Vancouver, British Columbia. |
| 1.4 | Governing Law |
This Agreement will be governed by and construed, interpreted and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without reference to conflict of laws principles.
| 1.5 | Subsidiaries |
Any Subsidiary of the Partnership will be governed and operated in the same manner as the Partnership is governed and operated hereunder, and this Agreement and the GP USA, as applicable, will be interpreted and applied to give effect to the foregoing, including the matters contemplated in Section 11.2.
Article 2
THE LIMITED PARTNERSHIP
| 2.1 | Formation and Name of Partnership |
The Partners hereby reaffirm the formation of the Partnership as established on the date of filing of the Certificate of Limited Partnership in accordance with the laws of British Columbia and the provisions of the Initial Partnership Agreement and hereby agree to carry on the JV Business in common with a view to profit under the firm name and style of HPDI Technology Limited Partnership. Subject to the requirements of the GP USA, the General Partner is authorized to make any change in the name of the Partnership that the General Partner deems necessary or advisable.
| 2.2 | Business of the Partnership |
| -14- |
| (a) | The Partnership was formed for the purpose of carrying on the JV Business. The Partnership and JVCo will initially focus on on-road trucking applications but will also pursue rail, marine, construction, mining, power generation or generators and agricultural equipment applications. The Partnership may also engage in such undertakings or matters as may be ancillary thereto or as the General Partner deems advisable in order to carry on the JV Business and meet the Business Objective. Unless otherwise approved by the General Partner, the Partnership will not carry on any other business. |
| (b) | Unless unanimously agreed by the GP Board, all projects relating to the JV Business will be developed through the Partnership and JVCo, and their respective Subsidiaries, and each Limited Partner covenants and agrees to refer any such projects to the Partnership and JVCo, and their respective Subsidiaries. |
| (c) | The Parties acknowledge and agree that the Partnership aims to attract new OEM customers and the development and sale to Volvo Truck Corporation or its Affiliates of HPDI product will be on a non-exclusive basis. |
| 2.3 | Powers of the Partnership |
In connection with carrying on the JV Business, the Partnership, acting by and through the General Partner, has the power to do and perform all things necessary for or incidental to or connected therewith.
| 2.4 | Borrowing Power |
Subject to the GP USA, the Partnership has full power to, from time to time: (a) borrow money, (b) draw, make, execute and issue loan agreements, promissory notes, evidences of indebtedness and other negotiable or non-negotiable instruments, (c) secure the payment of any sums so borrowed, (d) mortgage, pledge, charge, assign and hypothecate or assign in trust all or any part of, or any interest in, any of the undertaking, property or assets of the Partnership, (e) assign any money owing or to be owing to the Partnership, and/or (f) engage in any other means of financing.
| 2.5 | Financial Assistance |
Subject to the GP USA, the Partnership may, from time to time: (a) give financial assistance to any Person by means of a loan, guarantee or otherwise for any purpose, including for the purpose of or in connection with a purchase of an interest in the Partnership, and the Capital Contribution of any Partner; and (b) give a guarantee to secure performance of an obligation of any Person.
| 2.6 | Term of the Partnership |
The Partnership will carry on business until it is dissolved in accordance with the terms of this Agreement or otherwise agreed by Specified Consent (the "Term").
| 2.7 | Business in other Jurisdictions |
| -15- |
The General Partner shall, to the greatest extent possible, endeavour to ensure the limited liability of the Limited Partners under the Act and other Applicable Law of the jurisdictions in which the Partnership carries on or is deemed to carry on business.
| 2.8 | Amendment of Certificate of Limited Partnership |
The Certificate of Limited Partnership shall be amended on the occurrence of one or more of the events set forth herein or in the Act requiring the same. The General Partner shall promptly following the occurrence of any event requiring cancellation or amendment of the Certificate of Limited Partnership, sign and acknowledge on behalf of all Partners a declaration conforming to the requirements of the Act and shall file and record such declaration as required.
| 2.9 | Fiscal Year |
The fiscal year of the Partnership shall be the period of 12 months ending on December 31 each year (the "Fiscal Year").
| 2.10 | Office of the Partnership |
The principal place of business of the Partnership shall be 1691 W 75th Ave, Vancouver, British Columbia, which shall at all times be the principal office of the General Partner and may be changed from time to time by the General Partner giving notice of such change to the Limited Partners.
| 2.11 | Limitation on Authority of Limited Partners |
No Limited Partner, in its capacity as a limited partner, shall:
| (a) | transact any business on behalf of the Partnership or make any commitment on behalf of or otherwise obligate or bind the Partnership; |
| (b) | other than by voting on a resolution of the Partners or otherwise exercising its rights as a Limited Partner, execute any document that binds or purports to bind any other Partner or the Partnership; |
| (c) | hold itself out as having the right, power or authority to bind any other Partner or the Partnership; |
| (d) | have any authority or power to act for or undertake any obligation or responsibility on behalf of any other Partner or the Partnership; |
| (e) | make any claim, protest or allegation or otherwise institute or cause to be instituted any legal or administrative proceeding involving any claim, protest or allegation, that in making decisions and taking or not taking actions concerning the matters set forth in Section 11.2, a Limited Partner is acting in its own best interests and not in the best interests of the Partnership or one or more of the other Partners, except in the case of any decision or action that is otherwise illegal or in breach of this Agreement; |
| -16- |
| (f) | except in connection with a dissolution of the Partnership in accordance with this Agreement, bring any action for partition or sale or otherwise in connection with the Partnership or any interest in any property of the Partnership, whether real or personal, tangible or intangible, or file or register or permit to be filed, registered or remain undischarged any Lien or charge in respect of any property of the Partnership; |
| (g) | compel or seek a partition, judicial or otherwise, of any of the assets of the Partnership distributed or to be distributed to the Partners in kind in accordance with this Agreement; |
| (h) | give notice to the other Partners of that Limited Partner's intention to dissolve the Partnership or apply to a court for an order to dissolve or wind-up the Partnership; |
| (i) | deal with any Third Party in connection with the LP Group unless it discloses in writing to such Third Party that it is a Limited Partner; or |
| (j) | take any action that will jeopardize or eliminate the status of the Partnership as a limited partnership under the Act. |
| 2.12 | Power of Attorney |
| (a) | Each Limited Partner hereby irrevocably nominates, constitutes and appoints the General Partner as its agent and true and lawful attorney to act on its behalf with full power and authority in the Limited Partner's name, place and stead to execute, under seal or otherwise, swear to, acknowledge, deliver, record or file, as the case may be, and as and where required: |
| (i) | any instruments or documents that the General Partner deems necessary or appropriate to continue and keep in good standing the Partnership as a limited partnership under the Act, or otherwise to comply with the laws of any jurisdiction in which the Partnership may carry on business or own or lease property in order to maintain the limited liability of the Limited Partners and to comply with the Applicable Laws of such jurisdiction (including such amendments to the Certificate of Limited Partnership or the Record as may be necessary to reflect the admission to the Partnership of subscribers for or Transferees of Units as contemplated by this Agreement); |
| (ii) | any instruments and amendments to the Certificate of Limited Partnership that the General Partner deems necessary or appropriate to reflect any amendment to this Agreement made or approved in accordance with Section 18.2; |
| (iii) | any instrument required in connection with the dissolution and termination of the Partnership in accordance with the provisions of this Agreement, including any elections that may be available under the Income Tax Act or under any other taxation legislation or laws of like import of Canada or of any province or jurisdiction which relates to the affairs of the Partnership or the interest of any Partner in the Partnership; |
| -17- |
| (iv) | any documents that the General Partner deems necessary or appropriate to be filed with the appropriate Governmental Entity in connection with the JV Business, property, assets and undertaking of the Partnership; |
| (v) | such documents that the General Partner deems necessary or appropriate to give effect to the JV Business; |
| (vi) | any election, determination, designation, information return, objection or similar document or instrument as may be required at any time under the Income Tax Act or under any other taxation legislation or laws of like import of Canada or of any province or jurisdiction which relates to the affairs of the Partnership or the interest of any Partner in the Partnership including any subsection 97(2) election or subsection 165(1.15) objection or other filing under the Income Tax Act; and |
| (vii) | all other instruments and documents on a Limited Partner's behalf and in a Limited Partner's name or in the name of the Partnership as may be deemed necessary or appropriate by the General Partner to carry out fully this Agreement in accordance with its terms. |
| (b) | The power of attorney granted herein is irrevocable, is a power coupled with an interest, extends to the successors and Transferees of a Limited Partner, and may be exercised by the General Partner on behalf of a Limited Partner in executing any instrument by electronic signature or by listing all of the Limited Partners and executing such instrument with a single signature as attorney and agent for all of them. Each Limited Partner agrees to be bound by any actions made or taken by the General Partner pursuant to this power of attorney and hereby waives any and all defences that may be available to contest, negate or disaffirm the action of the General Partner taken in good faith under this power of attorney. This power of attorney shall continue in respect of the General Partner so long as it is the General Partner of the Partnership, and shall terminate thereafter, but shall continue in respect of a new general partner that agrees in writing to be bound by the terms of this Agreement as if the new general partner were the original attorney. |
| (c) | A Transferee of an LP Unit shall, upon becoming a Limited Partner, be conclusively deemed to have acknowledged and agreed to be bound by the provisions of this Agreement as a Limited Partner and shall be conclusively deemed to have provided the General Partner with the power of attorney described in this Section 2.12. |
| 2.13 | Limited Liability of Limited Partners |
Subject to the provisions of the Act and of similar legislation in other jurisdictions, the liability of each Limited Partner for the undertakings, debts, liabilities and obligations of the Partnership shall be limited to each Limited Partner's Capital Contribution plus any unpaid Capital Contributions that such Limited Partner agreed to pay or contribute.
| -18- |
| 2.14 | Compliance with Laws |
The Limited Partners will, on the request of the General Partner from time to time, immediately execute any documents considered by the General Partner to be necessary to comply with any Applicable Law or regulation of any jurisdiction in Canada for the continuation, operation or good standing of the Partnership.
| 2.15 | Proceedings |
In any action, suit or other proceeding commenced by a Limited Partner against the General Partner, the Partnership must bear the expenses of the General Partner in any such action, suit or other proceeding in which or in relation to which the General Partner is adjudged not to be in breach of any duty or responsibility imposed upon it hereunder; otherwise, such costs will be borne by the General Partner.
| 2.16 | Limited Partner Not a General Partner |
If any provision of this Agreement has the effect of imposing upon any Limited Partner any of the liabilities or obligations of a general partner under the Act, such provision shall be of no force and effect.
| 2.17 | Non-Competition |
[Redacted – commercially sensitive information].
| 2.18 | Intellectual Property |
As of the Effective Date, the Partnership owns, or has licence to use, all Intellectual Property related to the JV Business that was transferred to the Partnership by Westport Canada pursuant to the Investment Agreement and, subject to the terms of any applicable development agreement, the Partnership shall own all Intellectual Property developed by or for the Partnership in connection with the JV Business after the Effective Date.
Article 3
POWERS, DUTIES AND OBLIGATIONS OF GENERAL PARTNER
| 3.1 | Powers, Duties and Obligations |
| (a) | The General Partner has: |
| (i) | unlimited liability for the undertakings, debts, liabilities and obligations of the Partnership; |
| (ii) | subject to the terms of this Agreement and to any applicable limitations set forth in the Act, the full and exclusive right, power and authority to manage, control, administer and operate that part of the JV Business undertaken by the LP Group and the affairs of the Partnership, and to make decisions regarding the undertaking and JV Business of the Partnership; and |
| -19- |
| (iii) | subject to the terms of this Agreement, the full and exclusive right, power and authority to do any act, take any proceeding, make any decision and execute and deliver any instrument, deed, agreement or document necessary for or incidental to carrying out that part of the JV Business undertaken or to be undertaken by the LP Group. |
| (b) | Any action taken by the General Partner on behalf of the Partnership is deemed to be the act of the Partnership and binds the Partnership. |
| 3.2 | Specific Powers and Duties |
| (a) | In addition to the powers and authorities possessed by the General Partner pursuant to the Act or conferred by Applicable Law or elsewhere in this Agreement, and without limiting the generality of Section 3.1, but in any event subject to the GP USA or any Specified Consent required under this Agreement, the General Partner shall have the full and exclusive right, power and authority to: |
| (i) | negotiate, execute and carry out all agreements which require negotiation or execution by or on behalf of the Partnership involving matters or transactions that are within the ordinary course of carrying on the relevant part of the JV Business; |
| (ii) | acquire property, both real and personal, of any description as required in the ordinary course of carrying on the relevant part of the JV Business; |
| (iii) | borrow money upon the credit of the Partnership and the property and assets of the Partnership; |
| (iv) | issue, re-issue, sell or pledge debt obligations of the Partnership and to make, accept, endorse, negotiate or otherwise deal with bonds, debentures, cheques, drafts, notes, orders for the payment of money, bills of exchange, bills of lading, acceptances and other similar instruments and obligations; |
| (v) | give a guarantee on behalf of the Partnership to secure performance of an obligation of another Person and grant or enter into any postponement and/or subordination agreements in favour of any Person in order to postpone and/or subordinate the Partnership's rights in respect of any indebtedness or other obligations owed to, or security granted in favour of, the Partnership; |
| (vi) | lend funds of the Partnership from time to time to any Person; |
| (vii) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any movable or personal, immovable or real or other property of the Partnership, owned or subsequently acquired, to secure any direct or indirect obligation of the Partnership and to consent to the conveyance or disposal of such property or portion thereof in connection with any realization thereon by the secured party in respect of such security interests; |
| -20- |
| (viii) | enter into any swap or derivative transaction at any time and from time to time in order to hedge the Partnership's exposure to fluctuations in commodity prices, interest rates, foreign exchange rates or otherwise and whether financially or physically settled; |
| (ix) | manage bank accounts in its name or in the name of the Partnership and spend the capital of the Partnership in the exercise of any right or power exercisable by the General Partner hereunder; |
| (x) | incur all costs and expenses in connection with the Partnership; |
| (xi) | employ, retain, engage or dismiss from employment or service, personnel, agents, representatives or professionals with the powers and duties and upon the terms and for the compensation as in the sole and entire discretion of the General Partner may be necessary or advisable in the carrying on of the relevant part of the JV Business; |
| (xii) | enter into agreements and other arrangements for services that in the sole and entire discretion of the General Partner may be necessary or advisable in the carrying on of the relevant part of the JV Business; |
| (xiii) | engage agents to assist it to carry out its management obligations to the Partnership or subcontract administrative functions to any Affiliate of a Partner; |
| (xiv) | invest cash assets of the Partnership that are not immediately required in the carrying on of the JV Business in short term investments; |
| (xv) | act as attorney in fact or agent of the Partnership in disbursing and collecting moneys for the Partnership, paying debts and fulfilling the obligations of the Partnership and handling and settling any claims of the Partnership; |
| (xvi) | commence or defend any action or proceeding in connection with the Partnership; |
| (xvii) | file returns or other documents required by any Governmental Entity; |
| (xviii) | retain legal counsel, experts, advisors or consultants as the General Partner considers appropriate and to rely upon the advice of such Persons; |
| (xix) | do anything that is in furtherance of or incidental to the JV Business or that is provided for in this Agreement; |
| (xx) | obtain insurance coverage as in the sole and entire discretion of the General Partner may be necessary or advisable; |
| -21- |
| (xxi) | decide in its sole and entire discretion any additional time at which the profits of the Partnership shall be distributed to the Partners and, subject to the terms of this Agreement, the amount of any such distribution; |
| (xxii) | decide in its sole and entire discretion any additional time at which the capital or other assets of the Partnership shall be distributed to the Partners and, subject to the terms of this Agreement, the amount of any such distribution and the manner of returning same; |
| (xxiii) | determine, in its sole discretion, all distributions to Partners pursuant to Section 5.2; |
| (xxiv) | carry out the relevant part of the JV Business; and |
| (xxv) | execute, acknowledge and deliver the documents necessary to effectuate any or all of the foregoing or otherwise in connection with the JV Business. |
| (b) | No Person dealing with the Partnership will be required to enquire into the authority of the General Partner to do any act, take any proceeding, make any decision or execute and deliver any instrument, deed, agreement or document for or on behalf of or in the name of the Partnership. |
| 3.3 | Title to Property |
Without altering or affecting the rights, titles and interests under this Agreement, the Partners hereby agree that the assets of the Partnership may be held in the name of the General Partner or any other entity determined by Specified Consent, as nominee for the Partnership, and for the use and benefit of the Partnership in accordance with this Agreement, until such time as the General Partner determines that it is appropriate or advisable for the assets to be held or registered in the name of the Partnership, another nominee or otherwise. Such holding of the assets will not prevent the vesting of the legal and beneficial title thereto in the Partnership in the manner and at the time that may be otherwise herein provided.
| 3.4 | No Other Business By General Partner |
The General Partner will not engage in any business other than the conduct of its obligations and responsibilities under this Agreement, including all activities necessarily incidental thereto.
| 3.5 | Exercise of Duties |
The General Partner covenants with the Limited Partners that it will exercise the powers and discharge its duties under this Agreement honestly, in good faith and in the best interests of the Partnership and that it will exercise the degree of care, diligence and skill that a reasonably prudent Person would exercise in comparable circumstances. The General Partner also covenants that it will devote all of its time and attention to the conduct of the JV Business of the Partnership.
| -22- |
| 3.6 | Limitation of Liability |
The General Partner is not liable for the return of any Limited Partner's Capital Contributions. Moreover, notwithstanding anything else contained in this Agreement (but without prejudice to any liability of any agent, lawyer, accountant, consultant, financial or other advisor to the General Partner), neither the General Partner nor its Representatives are liable (in damages or otherwise) to the Partnership or a Limited Partner for any action taken or failure to act on behalf of the Partnership within the scope of the authority conferred on the General Partner by this Agreement or otherwise by Applicable Law, unless the act or omission was performed or omitted fraudulently or in bad faith or constituted negligence or wilful or reckless disregard of the General Partner's obligations under this Agreement or Applicable Law. Without limiting the generality of the foregoing, neither the General Partner nor its Representatives are liable, responsible for or in any way accountable (in damages or otherwise) to the Partnership or a Limited Partner for any mistakes or errors in judgment, or any act or omission believed in good faith by the General Partner to be within the scope of authority conferred by this Agreement or otherwise by Applicable Law.
| 3.7 | Indemnity of General Partner |
The Partnership (but only to the extent of the assets of the Partnership and for clarity not the assets of the Limited Partners themselves) hereby indemnifies and holds harmless the General Partner and its Representatives (other than any agent, lawyer, accountant, consultant, financial or other advisor to the General Partner), from and against all losses, costs, expenses, damages or liabilities suffered or incurred by reason of the acts, omissions or alleged acts or omissions arising out of the activities of the General Partner on behalf of the Partnership under this Agreement or in furtherance of the interests of the Partnership, unless the acts, omissions or the alleged acts or omissions on which the actual or threatened action, proceeding or claim is based were not believed in good faith by the General Partner to be within the scope of the authority conferred by this Agreement or otherwise by Applicable Law, or were performed or omitted to be performed fraudulently or in bad faith or constituted gross negligence or wilful or reckless disregard of the obligations of the General Partner under this Agreement or Applicable Law.
| 3.8 | Indemnity of Partnership |
The General Partner hereby indemnifies and holds harmless the Partnership from and against all losses, costs, expenses, damages and liabilities suffered or incurred by the Partnership by reason of any act or omission not believed by the General Partner in good faith to be within the scope of the authority conferred on the General Partner by this Agreement or otherwise by Applicable Law or any act or omission performed or omitted constituting gross negligence or wilful or reckless disregard of the General Partner's obligations under this Agreement or Applicable Law.
| 3.9 | Delegation of Authority |
The General Partner may contract with any Person to carry out any of the duties of the General Partner hereunder and may delegate to such Person any power and authority of the General Partner hereunder, but no such contract or delegation will relieve the General Partner of any of its obligations hereunder. The Limited Partners are hereby deemed to have approved the entering into by the General Partner, as general partner of the Partnership, of the Project Agreements.
| -23- |
| 3.10 | Deemed Resignation of the General Partner |
Unless waived by Specified Consent, the General Partner shall be deemed to have resigned as the General Partner of the Partnership in the event of an Insolvency Event in respect of the General Partner.
| 3.11 | Removal of General Partner |
The General Partner shall not be removed without Specified Consent.
| 3.12 | Transfer to New General Partner |
On the admission of a new general partner to the Partnership and on the resignation or removal of the General Partner, the resigning or retiring General Partner will Transfer all of its Units to the new general partner and do all things and take all steps to transfer the administration, management, control and operation of the JV Business and the books, records and accounts of the Partnership to the new general partner and will execute and deliver all deeds, certificates, declarations and other documents necessary or desirable to effect such transfer in a timely fashion.
| 3.13 | Transfer of Title to New General Partner |
On the resignation or removal of the General Partner and the admission of a new general partner, the resigning or retiring General Partner will, at the cost of the Partnership, transfer title to the Partnership's property held in the General Partner's name, if any, to such new general partner and will execute and deliver all deeds, certificates, declarations and other documents necessary or desirable to effect such transfer in a timely fashion.
| 3.14 | New General Partner |
A new general partner shall not be a "non-resident" for purposes of the Income Tax Act and will become a party to this Agreement by signing a counterpart hereof and will agree to be bound by all of the provisions hereof, and to assume the obligations, duties and liabilities of the General Partner hereunder as and from the date the new general partner becomes a party to this Agreement.
| 3.15 | Holding Unit |
The General Partner must acquire and hold, at all times while it is a general partner of the Partnership, at least one GP Unit.
| 3.16 | Expenses |
The Partnership will reimburse the General Partner for all reasonable costs incurred by the General Partner or its designees or subcontractors in the performance of its duties hereunder, including costs associated with the business of the General Partner in acting as a general partner of the Partnership, including costs specifically incurred for the benefit of the Partnership, and costs associated with the holding of Partners' meetings and professional fees, but specifically excluding expenses of any action, suit or other proceeding in which, or in relation to which, the General Partner is adjudged to be in breach of any duty or responsibility imposed upon the General Partner in this Agreement. The Partners acknowledge and agree that any or all reimbursable expenses may in the sole and entire discretion of the General Partner be incurred by the General Partner in the name of or on account of the Partnership, in which case such expenses shall be deemed to be expenses incurred by the Partnership. All such direct and allocated expenses will be subject to an independent audit report thereon to the Limited Partners at the request of any one Limited Partner and the General Partner covenants to provide reasonable access to its books and records for such purpose. If an independent audit of expenses is requested by either of the Limited Partners the costs incurred by the General Partner shall be borne as follows: (a) the costs incurred for the first independent audit requested in a Fiscal Year, by the Partnership; and (b) the costs incurred for each additional independent audit requested in a Fiscal Year, by such Limited Partner requesting the independent audit.
| -24- |
Article 4
CAPITAL CONTRIBUTIONS, UNITS AND ADDITIONAL FUNDING
| 4.1 | Partnership Capital |
The capital of the Partnership consists of the aggregate of the Partner's Capital Contributions less amounts returned to Partners in respect of such capital contributions. Schedule A sets out each Partner's Capital Contributions as of the Effective Date (including the initial Cash Call Funding referred to in Section 4.9(b)). The General Partner may update Schedule A without further act or formality of the Limited Partners as required to reflect any adjustment to the Capital Contributions of the Partners required following finalisation of the Closing Accounts pursuant to the Investment Agreement and the requirements of Section 4.8(c).
| 4.2 | Separate Capital Accounts |
The General Partner will maintain a separate capital account (each a "Capital Account") for each Partner and will, on receipt of a Capital Contribution, credit the Capital Account of a Partner with the amount of cash or fair market value (at the time of transfer) of the property contributed and with such Partner's share of the Income of the Partnership for the Fiscal Year, and will debit the Capital Account with the amount of cash or fair market value (at the time of transfer) distributed or returned from time to time by the Partnership to the Partner and with such Partner's share of the Loss of the Partnership for the Fiscal Year (but, for the avoidance of doubt, shall not reflect any revaluation of the net assets of the Partnership other than as reflected in any such Income or Loss). The interest of a Partner will not terminate by reason of there being a negative or nil balance in the Partner's Capital Account and no Partner shall have any obligation to make a Capital Contribution to the Partnership by reason of there being a negative or nil balance in the Partner's Capital Account. No Limited Partner shall be responsible for any losses of any other Limited Partner, nor share in the allocation of Income or Loss attributable to the Partnership to the Units of any other Limited Partner. For greater certainty, the Capital Accounts created and kept for each Partner pursuant hereto shall serve only for accounting purposes and shall not confer any right of ownership whatsoever upon the Partner concerned as regards to any amount which may be credited to such accounts. The distributions and other payments made to the Partners shall be based not on the balances in their respective Capital Accounts but rather on the provisions set out in this Agreement.
| -25- |
| 4.3 | No Interest on Capital Account |
The Partnership will not pay interest on any credit balance of the Capital Account or on any Capital Contributions of a Partner. Except as required by this Agreement or Applicable Law, no Partner is required to pay interest to the Partnership on any Capital Contributions returned to the Partner.
| 4.4 | No Right to Withdraw Capital Contributions |
Except as expressly provided elsewhere in this Agreement, no Partner shall have the right to withdraw any or all of its Capital Contributions or to receive any distribution of cash or other property from the Partnership.
| 4.5 | Units |
| (a) | The interests in the Partnership of the Partners will be divided into and represented by an unlimited number of units designated as "GP Units", which may only be held by the General Partner, and an unlimited number of units designated as "LP Units", which may only be held by Limited Partners. |
| (b) | Each Unit will represent an interest in the Partnership having the rights set forth herein and will entitle the holder thereof to the rights and benefits of this Agreement. Except as otherwise specified in this Agreement, no Limited Partner will have any preference, priority or right in any circumstance over any other Limited Partner in respect of the LP Units held by each. |
| (c) | The holders of the Units shall have the right to vote, right to receive distributions and the right to share in the assets of the Partnership upon dissolution, the obligation to make capital contributions and all other rights, benefits and privileges enjoyed by that Partner in its capacity as a Partner under the Act and this Agreement. |
| (d) | Units shall be "securities" for purposes of the Securities Transfer Act (British Columbia) and similar legislation of other provinces and territories of Canada. The Units shall be certificated. |
| (e) | The Parties acknowledge that the Partnership has issued a total of 1 GP Unit and 1,000 LP Units as at the Effective Date, which are held: |
| (i) | by Westport Canada, 550 LP Units; |
| (ii) | by Volvo Canada, 450 LP Units; and |
| (iii) | by the General Partner, one GP Unit. |
| 4.6 | Equality of Units |
| -26- |
| (a) | Each LP Unit shall be identical to all other LP Units in all respects and, accordingly, shall entitle the holder to the same rights and obligations as a holder of any other LP Unit. No Limited Partner shall, in respect of any LP Unit held by such Limited Partner, be entitled to any preference, priority or right in any circumstance over any other Limited Partner in respect of any LP Unit held by the other Limited Partner. Except as provided in this Agreement, each LP Unit is entitled to participate equally with all other LP Units with respect to any and all distributions made by the Partnership. |
| (b) | A GP Unit shall not rank equally with the LP Units but the holder of a GP Unit shall be entitled to receive distributions based on its Partnership Interest, as determined by the General Partner. |
| 4.7 | Contribution of General Partner |
The Parties acknowledge that the General Partner made a Capital Contribution on the date of formation in the amount of $1.00 in exchange for the GP Unit. The General Partner shall not be required to make any further Capital Contribution and shall maintain its interest in the Partnership in consideration for serving as the General Partner of the Partnership.
| 4.8 | Initial Capital Contributions of the Limited Partners |
| (a) | In connection with the formation of the Partnership, Westport Canada made an initial cash Capital Contribution to the Partnership in the amount of [Redacted – commercially sensitive information] and, as consideration for such Capital Contribution, the Partnership issued to Westport Canada 1 LP Unit and [Redacted – commercially sensitive information] was added to the Capital Account of Westport Canada in respect of its LP Units. |
| (b) | In connection with Transferred Assets Closing, Westport Canada made a Capital Contribution to the Partnership pursuant to the Asset PA. The Parties agree that the fair market value of such Capital Contribution was equal to [Redacted – commercially sensitive information], and, as consideration for such Capital Contribution, the Partnership issued to Westport Canada 999 LP Unit and [Redacted – commercially sensitive information] was added to the Capital Account of Westport Canada in respect of its LP Units. |
| (c) | In connection with the Investment Closing, Westport Canada sold Volvo Canada 450 LP Units pursuant to the Investment Agreement. In connection with such transaction, Westport Canada's Capital Account in respect of its LP Units was reduced to [Redacted – commercially sensitive information] and [Redacted – commercially sensitive information] was added to the Capital Account of Volvo Canada in respect of its LP Units (which shall each be subject to adjustment following finalisation of the Closing Accounts pursuant to the Investment Agreement). |
| 4.9 | Additional Capital Contributions and Cash Calls |
| (a) | During the initial phase of the JV Business, the Limited Partners acknowledge that volumes and revenues will be low and as such, the Limited Partners will be required to provide further funding to the Partnership (for its, or another member of the JV Group's, use), up to (in aggregate with amounts funded by the Limited Partners and their 100% Affiliates pursuant to the JVCo SHA) their respective Funding Caps, in order to provide sufficient funds in order for the JV Group to carry out the JV Business in accordance with the Business Plan. The Parties acknowledge that certain other events may trigger the requirement for further funding during the Term, including unexpected losses or expenditure, or any member of the JV Group entering into, or intending to enter into, a product development agreement in connection with advancing the Business Objective. |
| -27- |
| (b) | The Parties have agreed that an initial Cash Call in the aggregate amount of [Redacted – commercially sensitive information] will be required in order to fund the Partnership from the date hereof to the end of the current Fiscal Year. As such, the Limited Partners agree to provide their pro rata share of such initial Cash Call Funding on the date hereof in the form of Capital Contributions. Following the provision of such initial Cash Call Funding the Parties anticipate that the Partnership will be funded 12 to 18 months in advance for each upcoming Fiscal Year and such funding (and its anticipated source) will be reflected in the Funding Plan approved as part of the Business Plan, on an annual basis. The General Partner shall consider, in the preparation of the Funding Plan, whether the Partnership should source funding to meet the projected funding requirements for that part of the JV Business undertaken by the LP Group by way of debt, on terms satisfactory to the GP Board, rather than through Capital Contributions. |
| (c) | If: |
| (i) | the General Partner determines that funding from a Third Party will not be sourced or fails to determine that funding from a Third Party will be sourced; and |
| (ii) | the Funding Plan requires the Limited Partners to provide funding to the Partnership for the upcoming Fiscal Year, |
the General Partner will issue a Cash Call on an annual basis at the beginning of each Fiscal Year but in any event, within the first calendar Quarter. The General Partner may, in its discretion from time to time, and in accordance with the requirements of the GP USA, issue Cash Calls not contemplated by the Funding Plan.
| (d) | All Cash Calls will be made on the following basis: |
| (i) | the Cash Call will set out the aggregate amount of additional funding required ("Cash Call Funding"), whether such Cash Call Funding is in accordance with the Funding Plan or for additional funding, and the rationale for such Cash Call Funding; |
| (ii) | the Limited Partners shall be responsible for providing the Cash Call Funding pro rata in proportion with their respective LP Interests, up to an aggregate amount (when taken together with the initial Cash Call Funding referred to in Section 4.9(b), any Emergency Funding provided by such Limited Partner and any cash calls and emergency funding provided to JVCo by such Limited Partner or its 100% Affiliates pursuant to the JVCo SHA, and calculated by reference to the principal amount outstanding (excluding any accrued interest) from time to time of each LP Loan and JVCo Loan) of [Redacted – commercially sensitive information] (in the case of Volvo Canada) and [Redacted – commercially sensitive information] (in the case of Westport Canada) (or, in each case, the equivalent amount in SEK) (each a "Funding Cap"). The Partners acknowledge that the Funding Cap is in respect of the JV Group as a whole; |
| -28- |
| (iii) | the Cash Call will specify whether the Cash Call Funding will be satisfied by: |
| (A) | the subscription for further LP Units; |
| (B) | additional Capital Contributions, the amount of which shall be credited to the Capital Accounts of the Limited Partners (in proportion to the amount funded by each Limited Partner), without the issuance of any further LP Units; or |
| (C) | by extending an interest-bearing loan to the Partnership ("LP Loan"), in accordance with loan agreements to be entered into by each Limited Partner and the Partnership as described in Section 4.9(d)(vi) ("LP Loan Agreement"), |
as determined by the GP Board and provided that the Limited Partners shall fund their respective Cash Call Funding in the same manner. The Parties agree that a LP Loan may be extended by, or assigned to, an 100% Affiliate of the relevant Limited Partner; provided that, if there is a conversion of such LP Loan to equity, any LP Units issued on conversion must be held by the Limited Partner such that all LP Units are held by the same Person and not divided between the Limited Partner and its 100% Affiliate;
| (iv) | the Cash Call shall set out the date by which the Cash Call Funding is required by the Partnership, which shall not be earlier than 25 Business Days after the date of the Cash Call (the "Cash Call Funding Date"); |
| (v) | each Limited Partner shall, no later than the Cash Call Funding Date, provide their proportion of such Cash Call Funding in the manner set out in the Cash Call; |
| (vi) | if any Cash Call Funding is to be provided by way of LP Loan, the terms of such LP Loan shall be determined by the General Partner, provided that there shall be a restriction on any Transfer of a LP Loan to a Person that is not: (A) an 100% Affiliate of the relevant Limited Partner; or (B) a proposed transferee of LP Units in accordance with a permitted Transfer of the LP Units. LP Loans shall not be considered or treated as a Capital Contribution and such LP Loans shall rank as to priority of repayment below all other indebtedness incurred by the Partnership from time to time but in priority to any return of capital to the Limited Partners; and |
| -29- |
| (vii) | if a Partner disputes the amount of a Cash Call, it shall nevertheless pay the Cash Call in full and the dispute shall be resolved in accordance with Article 15. |
| (e) | If an Emergency Funding Requirement occurs, the President & CEO or the General Partner may provide each Limited Partner with a written request ("Emergency Funding Notice") for emergency funding ("Emergency Funding"). |
| (f) | In the event the President & CEO and/or the General Partner does not serve an Emergency Funding Notice and a Limited Partner still considers that an Emergency Funding Requirement has occurred, that Limited Partner may provide the President & CEO, the General Partner and the other Limited Partner with an Emergency Funding Notice for Emergency Funding. |
| (g) | An Emergency Funding Notice given pursuant to Sections 4.9(e) or 4.9(f) shall specify: |
| (i) | the amount required by the Partnership to meet the Emergency Funding Requirement (the "Emergency Funding Amount"); |
| (ii) | the nature of the Emergency Funding Requirement and proposed uses of the Emergency Funding Amount; |
| (iii) | the proportion of the Emergency Funding Amount that each Limited Partner is obliged to fund (its "Emergency Funding Share") (which, unless otherwise agreed between the Limited Partners in writing, shall be an amount equal to each Limited Partner's LP Interest. The corresponding amount each Limited Partner is obliged to fund shall be subject to each Limited Partner's Funding Cap, which shall be deemed reduced by any other funding previously provided to any member of the JV Group by the relevant Limited Partner and its 100% Affiliates); and |
| (iv) | the date by which the Emergency Funding Amount is required by the Partnership, which shall not be earlier than 20 Business Days after the date of the Emergency Funding Notice (the "Emergency Funding Date"). |
| (h) | The Limited Partners shall seek to agree no later than 10 Business Days prior to the Emergency Funding Date, whether such Emergency Funding shall be paid by way of: |
| (i) | the subscription for further LP Units; |
| (ii) | additional Capital Contributions, the amount of which shall be credited to the Capital Accounts of the Limited Partners (in proportion to the amount funded by each Limited Partner), without the issuance of any further LP Units; or |
| (iii) | a LP Loan, |
provided that the Limited Partners shall fund their respective Emergency Funding Share in the same manner and, in default of agreement, the Emergency Funding shall be made by way of LP Loan pursuant to a LP Loan Agreement, subject in all cases to the requirements of Section 4.9(d)(vi).
| -30- |
| (i) | If either Limited Partner (a "Funding Defaulting Party") has not yet provided funding to the Partnership pursuant to Cash Calls or Emergency Funding up to its Funding Cap (as reduced by any funding previously provided to any member of the JV Group by such Limited Partner and its 100% Affiliates) and fails to provide its respective LP Interest share of any Cash Call or its Emergency Funding Share of any Emergency Funding (as applicable) by the relevant Cash Call Funding Date or Emergency Funding Date (as applicable) (such event being a "Funding Default" and the amount the Funding Defaulting Party has failed to fund being the "Defaulted Amount"), then the other Limited Partner (the "Funding Non-Defaulting Party") [Redacted – commercially sensitive information]. |
| (j) | The terms of any LP Default Loan or Emergency Default Loan shall be determined by the General Partner, but subject to the following: |
| (i) | such LP Default Loan or Emergency Default Loan may not be Transferred to any Person (including a 100% Affiliate of the Funding Non-Defaulting Party) or the Transferee of LP Units by the Funding Non-Defaulting Party without the prior written consent of the General Partner or otherwise in connection with a permitted Transfer as set out in this Agreement; |
| (ii) | such LP Default Loan or Emergency Default Loan shall rank as to priority of repayment below all Third Party indebtedness incurred by the Partnership from time to time but in priority to any LP Loans and any return of capital to the Limited Partners; |
| (iii) | the rate of interest payable on the LP Default Loan or Emergency Default Loan shall be [Redacted – commercially sensitive information] or such other rate as may be determined by the General Partner; and |
| (iv) | unless otherwise agreed with Specified Consent, in the event that any LP Default Loan or Emergency Default Loan is to be converted into LP Units pursuant to Section 4.9(m), [Redacted – commercially sensitive information] but immediately prior to such conversion, the Parties shall take any action required in relation to the LP Default Loan or, as applicable, Emergency Default Loan to be converted in order to ensure that, on conversion, each Limited Partners' revised LP Interest is the same as its (or its 100% Affiliate's) revised JVCo Interest and GP Interest. Such actions may require the Partnership, the JVCo and the General Partner to enter into inter-company loans, in order to allow the partial repayment of the relevant LP Default Loan or Emergency Default Loan, and the funds so repaid to be lent to JVCo and/or the General Partner and converted into JVCo Shares and/or GP Shares. |
| (k) | The Funding Defaulting Party may, in the case of Cash Calls, at any point where a LP Default Loan for a Defaulted Amount is outstanding and no notice of conversion of such LP Default Loan into LP Units has yet been delivered by the Funding Non-Defaulting Party to the Partnership, or in the case of Emergency Funding, [Redacted – commercially sensitive information] of the date the Emergency Default Loan was extended to the Partnership by the Funding Non-Defaulting Party ("Emergency Extension Date"), provide the Defaulted Amount (plus accrued interest at the rate of [Redacted – commercially sensitive information]) to the Partnership in satisfaction of its obligation to fund, as applicable, the Cash Call (in the same manner as such Cash Call was provided by the Funding Non-Defaulting Party) or its Emergency Funding Share of the Emergency Funding by way of convertible loan (which shall be on the same terms as the Emergency Default Loan) and the Partnership will use such amount to repay the LP Default Loan or Emergency Default Loan (as applicable) (plus accrued interest) to the Funding Non-Defaulting Party. For greater certainty, Section 4.9(m) shall not apply to any Emergency Default Loan prior to the Emergency Extension Date or where an Emergency Funding Requirement is ongoing. |
| -31- |
| (l) | In the event the Funding Defaulting Party has not provided funding to the Partnership in accordance with Section 4.9(k) in respect of an Emergency Funding by the Emergency Extension Date or has not referred the matter of whether an Emergency Funding Requirement has occurred ("Emergency Dispute") to Arbitration for resolution in accordance with Article 15 prior to the Emergency Extension Date, the provisions of Section 4.9(m) shall apply. |
| (m) | The Funding Non-Defaulting Party shall have the option at any time (subject to Section 4.9(l) in the event of an Emergency Default Loan) to convert a LP Default Loan or Emergency Default Loan into LP Units [Redacted – commercially sensitive information], provided that: (A) all resultant LP Units must be held directly by the Funding Non-Defaulting Party; and (B) in the case of a LP Default Loan only, where the aggregate of such Defaulted Amount and any equivalent amount in respect of such Funding Defaulting Party or its 100% Affiliate pursuant to the JVCo SHA is equal to or less than [Redacted – commercially sensitive information], the Funding Non-Defaulting Party shall not be entitled to convert into LP Units any portion of the LP Default Loan that has been outstanding for a period of less than nine months from the date of the LP Default Loan. |
| (n) | In the event that an Emergency Dispute has been referred to Arbitration for resolution and the final decision of the Arbitrators is that an Emergency Funding Requirement: |
| (i) | had occurred at the time the Emergency Funding Notice was served, the Funding Defaulting Party shall be responsible for the costs of the Arbitration (including the costs of all other Parties in relation thereto) and shall have until the later of: (A) five Business Days after the decision; and (B) the last day of the Emergency Extension Date to provide the Defaulted Amount to the Partnership pursuant to Section 4.9(k), following such date, if such Defaulted Amount has not been paid, the Funding Non-Defaulting Party shall be immediately entitled to convert the Emergency Default Loan into LP Units in accordance with the provisions of Section 4.9(m) (and subject to the restriction set out in Section 4.9(m)(B)); or |
| (ii) | had not occurred at the time the Emergency Funding Notice was served, the Party that served the Emergency Funding Notice (which, in relation to an Emergency Funding Notice served by the President & CEO, shall be deemed to be the General Partner) shall be responsible for the costs of the Arbitration (including the costs of all other Parties in relation thereto) and the Partnership shall repay the Emergency Default Loan (plus any accrued interest) to the Funding Non-Defaulting Party as soon as reasonably practicable. |
| -32- |
| (o) | If either Party fails to provide its respective LP Interest share of any Cash Call or Emergency Funding Share of any Emergency Funding (in each case, up to its Funding Cap, as reduced by any other funding previously provided to any member of the JV Group by such Limited Partner and its 100% Affiliates): (i) [Redacted – commercially sensitive information]; and (ii) such that its Defaulted Amount and any equivalent amount in respect of such Funding Defaulting Party or its 100% Affiliate pursuant to the JVCo SHA is [Redacted – commercially sensitive information] or more, such failure to fund shall be considered a Persistent Breach. |
| (p) | In the event that a Funding Default has occurred and the Funding Non-Defaulting Party has elected: (i) not to fund any of the Defaulted Amount; or (ii) to fund only a portion, but not all, of the Defaulted Amount, the General Partner shall amend the Business Plan in such reasonable manner as may be required to account for the decreased amount of funding provided. |
Article 5
DISTRIBUTIONS
| 5.1 | General |
Subject to Section 5.4, the General Partner shall make distributions of Distributable Cash to the Partners in accordance with any distribution policy adopted by the General Partner. Any such payment shall constitute full payment and satisfaction of the Partnership's liability in respect of such payment, regardless of any claim of any Person who may have an interest in such payment by reason of an assignment or otherwise.
| 5.2 | Distributions prior to Dissolution |
Subject to Section 5.4, prior to the dissolution of the Partnership, the General Partner shall, from time to time, determine the amount of Distributable Cash to be paid to the Partners, and shall distribute such amount of Distributable Cash to the Partners pro rata in a percentage equal to each Partner's respective Partnership Interest.
| 5.3 | Distributions on or After Dissolution |
Upon a dissolution of the Partnership pursuant to Article 13, distributions shall be made in the manner prescribed in Article 13.
| 5.4 | Prohibition on Distributions |
The General Partner shall not cause the Partnership to make any distribution pursuant to this Article 5:
| (a) | unless there is sufficient cash available therefor; |
| -33- |
| (b) | in respect of Units of a Partner, if such Partner is in material default or material breach of its covenants and obligations under this Agreement or an Event of Default has occurred in respect of such Partner; |
| (c) | which would render the Partnership unable to pay its debts as and when they fall due; or |
| (d) | which, in the opinion of the General Partner, would or might reasonably be expected to leave the Partnership with insufficient funds to meet any future or contingent obligations or which would contravene the Act. |
| 5.5 | Advance of Funds Election |
Where a distribution to a Limited Partner (other than a distribution to be made on account of, or in full or partial satisfaction of, a withdrawal of a capital contribution by such Limited Partner) is contemplated to be made pursuant to Section 5.2, and such Limited Partner determines, acting reasonably, that its "adjusted cost base" (for purposes of the Income Tax Act) in its LP Units would be reduced below zero if such distribution were so paid, then, such Limited Partner may, at its option, inform the General Partner that it wishes to defer the receipt of all or a portion of such distribution on the terms of this Section 5.5 (such portion referred to as the "Deferred Distribution"). In such circumstance:
| (a) | the Deferred Distribution shall not be paid except as set out herein; |
| (b) | the General Partner shall cause the Partnership to make a loan to such Limited Partner equal to the lesser of the Deferred Distribution amount and the amount that does not exceed, when taken together with all other loans made to such Limited Partner pursuant to this Section 5.5 during the same Fiscal Year, the aggregate of (i) the Limited Partner's Share of the Partnership's Adjusted Net Income for the Fiscal Year, and (ii) the aggregate adjusted cost base of the Limited Partner's LP Units at the end of the Fiscal Year (the adjusted cost base being determined without taking into account any loans made to such Limited Partner pursuant to this Section 5.5 during the Fiscal Year); and |
| (c) | as soon as practicable after the end of the Fiscal Year during which a loan was made pursuant to this Section 5.5, or, if earlier, the time that the Limited Partner ceases to be a Limited Partner, the General Partner shall cause the payment of the Deferred Distribution to the Limited Partner and such distribution shall be automatically set-off against the aggregate of the loans made to such Limited Partner in full and final settlement of the loan amounts (such payment and set-off to be documented in writing), |
and further provided that the General Partner shall not agree to any Deferred Distribution or make any loans under this Section 5.5 unless the General Partner is satisfied, acting reasonably, that any such loans are primarily for the purpose of avoiding a deemed gain to the Limited Partner under subsection 40(3.1) of the Income Tax Act that would be realized at the end of the Fiscal Year that would be caused solely by the difference between the time of the addition and the time of the deduction of the following amounts in computing the adjusted cost base of the Limited Partner's LP Units, respectively: (i) the Limited Partner's Share of the Partnership's Adjusted Net Income for the Fiscal Year, and (ii) the distributions to the Limited Partner for the Fiscal Year under subparagraph 53(2)(c)(v) of the Income Tax Act. For these purposes, a Limited Partner's "Share of the Partnership's Adjusted Net Income" for a Fiscal Year shall be the total of all amounts determined under subparagraph 53(1)(e)(i) of the Income Tax Act for such Fiscal Year, less the total of all amounts determined under subparagraph 53(2)(c)(i) of the Income Tax Act for such Fiscal Year.
| -34- |
| 5.6 | Repayments |
If, as determined by the General Partner, it appears that any Partner has received an amount which exceeds that Partner's entitlement pursuant to the terms of this Agreement, such Partner shall, forthwith upon notice from the General Partner, reimburse the Partnership to the extent of the excess, and failing reimbursement within five Business Days after receiving notice from the General Partner, the General Partner may withhold the amount of the excess (with interest accruing at the daily rate [Redacted – commercially sensitive information] from the date which is five Business Days of such Partner receiving the foregoing notice from the General Partner) from further distributions otherwise payable to such Partner.
Article 6
ALLOCATION OF INCOME AND LOSS AND TAX MATTERS
| 6.1 | Allocation - Income Tax Act |
| (a) | Unless otherwise determined by the General Partner, all net Income, net Loss, taxable income and losses for tax purposes of the Partnership and all other items of income, gain, loss, deduction, recapture or credit of the Partnership which are allocable for income tax purposes (collectively, the "Allocations"), shall be allocated to the Partners who are members of the Partnership at the end of each Fiscal Year based on the respective Partners' Partnership Interest, calculated as at the end of each such Fiscal Year. |
| (b) | Notwithstanding Section 6.1(a), where: (i) assets have been contributed to the Partnership by a Partner; (ii) the aggregate "cost amount" for purposes of the Income Tax Act to the Partnership of such assets immediately following such contribution is less than the fair market value of such assets at such time (with the excess of such fair market value over the aggregate "cost amount" being the "Deferred Amount"); (iii) such assets are subsequently disposed of by the Partnership; and (iv) such disposition results in Income for tax purposes to the Partnership, then unless otherwise approved by the Partners, the portion of such Income from such disposition that does not exceed the Deferred Amount shall be allocated to the Partner who contributed such assets to the Partnership and any excess portion shall be allocated in accordance with Section 6.1(a). |
| (c) | Notwithstanding the foregoing, in the event that any Partner Transfers the whole or any portion of its Units to any Person, the Allocations pursuant to Section 6.1(a) shall be computed based on the assumption that, for the purposes of subsection 96(1.01) of the Income Tax Act, the Fiscal Year of the Partnership had ended immediately before the time that is immediately before the time that such Partner ceased to be a member of the Partnership, and the Allocations shall be made based on the respective Partnership Interest of the Partners at the end of such notional Fiscal Year; however, where such Allocation to a Partner for a notional fiscal period is negative in a Fiscal Year of the Partnership where the aggregate of all Allocations is positive, or is positive in a Fiscal Year of the Partnership where the aggregate of all Allocations is negative, then such Allocation for such notional fiscal period shall be nil. |
| -35- |
| 6.2 | Accrual Rights |
The Partners agree that any and all rights to allocations of Income or Loss or distributions of cash attached to the Unit shall accrue as and from the date of issuance thereof.
| 6.3 | Tax Matters |
The Partnership will, in computing its Income or Loss for income tax purposes, claim all expenses, deductions, including capital cost allowance, and reserves to the maximum extent permitted by the Income Tax Act.
| 6.4 | Registration for GST Purposes |
The General Partner shall register the Partnership for GST.
| 6.5 | Responsibility for Payment of GST |
The Partnership (and not the General Partner) will be responsible for the payment of GST, if any, with respect to the costs and expenses: (a) of the Partnership; and (b) reimbursed by the Partnership to a Partner. The Partnership shall claim on its GST return all input tax credits in respect of GST paid on goods and services acquired: (i) by the Partnership; and (ii) by a Partner for the account of the Partnership.
| 6.6 | Tax and Reporting |
| (a) | The General Partner shall, in the form and within the prescribed time period as required by Applicable Law, prepare and file all required filings with respect to GST of the Partnership. |
| (b) | The General Partner shall provide each Person who was a Limited Partner: |
| (i) | at any time in a Fiscal Year, or |
| (ii) | at the date of dissolution of the Partnership, |
in the form and within the prescribed time period as required by Applicable Law, all information, in suitable form, relating to the Partnership necessary for the Person to prepare that Person's Canadian federal and provincial income tax returns. The General Partner will file annual information returns and any other information returns required to be filed under the Income Tax Act and any other applicable tax legislation in respect of the Partnership. Each Limited Partner shall be solely responsible for filing its income tax returns and reporting its share of the Income or Loss.
| -36- |
Article 7
FINANCIAL INFORMATION
| 7.1 | Books and Records |
| (a) | The General Partner shall maintain at the Partnership's principal place of business a current Record stating for each Partner, the Partner's name, address, the amount of money and/or the value of property contributed or to be contributed by the Partner to the Partnership the amount of money and/or the value of property distributed by the Partnership to the Partner as a return of capital and the number of Units held by each Partner. Registration of interests in, and Transfers of Units permitted under this Agreement will be made only in the Record. |
| (b) | The General Partner shall maintain accurate and complete books and records (financial or otherwise) with respect to the JV Business and affairs of the Partnership and in accordance with IFRS and Applicable Law. The foregoing books and records will be maintained during the existence and after the dissolution of the Partnership for the time periods required by Applicable Law at the principal office of the General Partner in Canada or such other place determined by the General Partner, provided that such books and records will be made available to the Partners in a form that will enable such Persons to access them at the place of business of such Partner or its Affiliate, during normal business hours and through remote electronic access. |
| 7.2 | Reporting |
| (a) | The General Partner shall cause to be prepared and delivered to each Limited Partner by no later than 1 March in the year immediately following each Fiscal Year, audited consolidated financial statements of the Partnership, including a statement of Income and Distributable Cash, a statement of Partner's Capital Accounts and a statement of cash flow and balance sheet for such Fiscal Year, together with audited comparative financial statements, all prepared in accordance with IFRS, and all such information as may be necessary to enable the Limited Partners to file all required federal and provincial income tax returns with respect to the income of the Partnership. |
| (b) | On a Quarterly basis, within an aspirational target of four calendar days but in any event no later than 10 Business Days after the end of each Quarter of each Fiscal Year (including the final Quarter of each Fiscal Year), the General Partner shall cause to be prepared and delivered to the Limited Partners a report summarizing the status of the activities of the JV Business as at the end of the applicable Quarter, which will include the unaudited financial statements of the JV Business as a whole for the Quarter then ended, including a balance sheet, an income statement and a related statement of changes in cash flow for such Quarter (all of which will contain comparisons to the prior year) and will contain notes explaining material balances set out in the balance sheet and income statements in accordance with IFRS. |
| (c) | The General Partner shall cause to be prepared and delivered to each Limited Partner within an aspirational target of four calendar days but in any event no later than five Business Days after the end of each month of each Fiscal Year (including the final month of each Fiscal Year), a report summarizing the status of the activities of the JV Business as at the end of such month, which will include the unaudited financial statements of the JV Business for the month then ended, including a balance sheet and an income statement (all of which will present monthly and year to date results, where applicable), and will contain notes explaining material balances set out in the balance sheet and income statements in accordance with IFRS. |
| -37- |
| (d) | In addition to any report required under this Agreement or pursuant to Applicable Law, the General Partner will prepare or cause to be prepared and delivered to each Limited Partner such other Quarterly and annual reports in respect of the financial condition of the Partnership or distributions made by the Partnership as may be reasonably required by any of the Limited Partners at any time and from time to time. |
| 7.3 | Accounting Policies |
The General Partner is authorized to establish from time to time accounting policies with respect to the financial statements of the Partnership and to change from time to time any policy that has been so established so long as such policies are consistent with the provisions of this Agreement and with IFRS.
| 7.4 | Auditors |
The appointment of Auditors, if any, for the Partnership will be made by the General Partner.
Article 8
GENERAL RESTRICTIONS ON TRANSFER; ADMISSION OF NEW PARTNERS
| 8.1 | Restrictions on Transfer and Required Transfers |
| (a) | No Partner shall Transfer, whether directly or indirectly, any Units or enter into any agreement or commitment to Transfer Units except, in each case, in accordance with the terms of this Agreement (including the provisions of Section 8.6), or with Specified Consent, and in each case, any attempt to do so without such consent or in compliance with this Agreement shall be void. The General Partner shall only register or permit the registration of any Transfer of any Units made in compliance with the provisions of this Agreement. A Transferee of Units shall automatically become bound and subject to this Agreement, without further act or formality. |
| (b) | If a Limited Partner Transfers all or any of its GP Shares or it or its 100% Affiliate Transfers all or any of its JVCo Shares (in each case, other than the granting of a Permitted Lien or a Transfer to an 100% Affiliate in accordance with the GP USA and the JVCo SHA) as permitted under the GP USA and/or the JVCo SHA, such Limited Partner must Transfer the same proportion of its LP Units and LP Loans to such Transferee (or to one but not more than one 100% Affiliate of such Transferee) concurrently with, and in the same transaction as, the Transfer of the JVCo Shares. Provided that Volvo Canada is a Holding Company, Volvo Canada shall not be in breach of this provision if Volvo Sweden has Transferred an equivalent proportion of its shares in Volvo Canada to the Transferee. |
| -38- |
| (c) | If a Limited Partner Transfers all or any of its LP Units (other than a Transfer to an 100% Affiliate permitted by Section 8.3 or entering into a Permitted Lien pursuant to Section 8.6), the Limited Partner must (or must procure that its 100% Affiliate must) Transfer the same proportion of its LP Loans, JVCo Shares and JVCo Loans to such Transferee (or to one but not more than one 100% Affiliate of such Transferee) concurrently with, and in the same transaction as, the Transfer of the JVCo Shares. Provided that Volvo Canada is a Holding Company, Volvo Canada shall not be in breach of this provision if Volvo Sweden has Transferred an equivalent proportion of its shares in Volvo Canada to the Transferee. |
| (d) | Except as otherwise agreed with Specified Consent, any Person (including any Limited Partner) who or which intends to purchase or subscribe for (i) GP Shares, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for LP Units, on a pro rata basis, such that such Person's GP Interest is at all times equivalent to such Person's LP Interest; (ii) LP Units, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for GP Shares, on a pro rata basis, such that such Person's GP Interest is at all times equivalent to such Person's LP Interest; and (iii) either GP Shares or LP Units, shall be required by the Transferor or the General Partner, as applicable, to concurrently also purchase or subscribe for JVCo Shares, on a pro rata basis, such that such Person's GP Interest and corresponding LP Interest is at all times equivalent to such Person's JVCo Interest. |
| (e) | In the event there is a Transfer of LP Units or LP Loans between the Limited Partners at the same time as the Transfer of GP Shares pursuant to the GP USA and a Transfer of JVCo Shares and JVCo Loans pursuant to the JVCo SHA (including as a result of a change of a Limited Partner's LP Interest or GP Interest as contemplated in Section 8.1(d)), the allocation of the price received in respect of such Transfers as between each such Transfer shall be as determined in accordance with the FMV Procedure and Methodology or as otherwise mutually determined by the Limited Partners. |
| 8.2 | General Restrictions |
Notwithstanding any other provision in this Agreement to the contrary but subject to Section 8.1, no Partner may Transfer any Units or LP Loans:
| (a) | if it is in default under this Agreement (except for an obligatory Transfer in accordance with Section 12.2 or following a change of control pursuant to Section 9.3), or it or its Affiliate, as applicable, is in default under any Project Agreement; |
| (b) | (other than in respect of the granting of a Permitted Lien) without Transferring the same proportion of its (or procuring that its applicable 100% Affiliate Transfers the same proportion of its) GP Shares, JVCo Shares and JVCo Loans, in each case to the same Person or one (but not more than one) 100% Affiliate of such Person in accordance with the GP USA and the JVCo SHA; |
| -39- |
| (c) | if the Transferee does not have the technical expertise, or the commercial, operational or financial capabilities, as applicable, in order to perform the obligations of the Transferor under this Agreement, the GP USA or the JVCo SHA; |
| (d) | if as a result, the remaining Partners or the Partnership would become subject to any materially restrictive or onerous governmental controls or regulations to which they were not subject prior to the proposed Transfer by reason of the nationality or residence of the proposed Transferee; |
| (e) | if as a result, the remaining Partners, the Partnership or any other member of the LP Group would become subject to any taxation or additional taxation to which they were not subject prior to the proposed Transfer, except with the consent of the remaining Limited Partners, which consent shall not be unreasonably withheld; |
| (f) | if the Transfer is not permitted by Applicable Law or any term of any agreement or instrument affecting the Partnership, non-compliance with which would have a material adverse impact on any member of the JV Group or the JV Business as a whole, unless all applicable required consents or approvals, including in respect of a Governmental Entity, are first obtained; |
| (g) | if such Transfer is not exempt from any applicable requirement to file a prospectus, registration statement or similar document with applicable securities regulatory authorities to qualify the trade of such Partner's Units; |
| (h) | if any funds being used to purchase the Units and satisfy the Transferee's commitments under this Agreement represent or will represent proceeds of crime for the purpose of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada); |
| (i) | if the Transferee is a Person identified in, designated in, listed in, or otherwise the subject of prohibited activities under Sanctions Laws; or |
| (j) | if the Transferee has not agreed in writing: (i) with the other Partners to assume and be bound by all the obligations of the Transferor pursuant to this Agreement with respect to the Units transferred arising from and after the date of such Transfer and to be subject to all the restrictions to which the Transferor is subject under the terms of this Agreement; (ii) to assume and be bound by all the obligations and subject to the restrictions to which the Transferor is subject with respect to the GP Shares transferred under the terms of the GP USA; and (iii) (or has not procured that its 100% Affiliate has agreed in writing) to assume and be bound by all the obligations and subject to the restrictions to which the Transferor is subject with respect to the JVCo Shares and JVCo Loans transferred under the terms of the JVCo SHA. |
| 8.3 | Permitted Transfers to Affiliates |
Notwithstanding Section 8.1 but subject to Section 8.2, a Limited Partner who is not then in default of its obligations under this Agreement will be, without first obtaining Specified Consent, entitled to Transfer to a 100% Affiliate of such Limited Partner, legal title to, and beneficial ownership of all (but not less than all) of its Units; provided that,
| -40- |
| (a) | the Transferor first establishes to the satisfaction of the other Limited Partner(s), acting reasonably, that the Person to which it is Transferring its Units is its 100% Affiliate; |
| (b) | a copy of the document or instrument effecting the Transfer is delivered to the Partnership; |
| (c) | the other Partners receive prior written notice of such Transfer; and |
| (d) | all of the requirements for a Transfer set out under Section 8.2 and Article 10 are satisfied. |
| 8.4 | Acquisition by Westport Canada |
If at any time:
| (a) | [Redacted – commercially sensitive information]; or |
| (b) | there is a significant reduction in the proportion of Volvo Canada's, Volvo Sweden's and their Affiliates' (other than Permitted Affiliates') requirements for HPDI Systems being purchased by them from the JV Group, |
then, provided that Westport Canada and Volvo Canada remain the only Limited Partners, Westport Canada may notify Volvo Canada that it desires to acquire all of Volvo Canada's interest in the Partnership and the General Partner and Volvo Canada shall give reasonable consideration to such request, provided that, in the event of such notification by Westport Canada and provided that Volvo Canada is a Holding Company, Volvo Canada shall be entitled to require that Westport Canada acquires Volvo Sweden's (or its applicable Affiliate's) shares in Volvo Canada, in place of Volvo Canada's interest in the Partnership. The Parties acknowledge that, in considering any proposal from Westport Canada, Volvo Canada will need to be satisfied that the JV Group will be in a position to continue as a stable, long-term supplier to Volvo Canada (if not acquired by Westport Canada), Volvo Sweden and their Affiliates, with a protected Intellectual Property portfolio and a diversified customer base. Volvo Canada (if not acquired by Westport Canada), Volvo Sweden and their Affiliates will also require most favoured nations treatment on pricing and an appropriate financial return for any disposal of its interest in the Partnership and the General Partner to Westport Canada pursuant to any request made pursuant to this Section 8.4. Subject to these requirements, Westport Canada and Volvo Canada shall negotiate in good faith with respect to any such acquisition request.
| 8.5 | Release of Transferring Partner |
Except for any obligations of this Agreement which by their terms are to survive any such Transfer, any Partner who Transfers all of its Units in accordance with this Agreement will be released and discharged from the further performance of its covenants and obligations under this Agreement from and after the date of the Transfer and compliance by the Transferee with this Article 8.
| -41- |
| 8.6 | Financing and Pledge of Units |
Each Limited Partner shall be permitted to pledge its LP Units as security to a Third Party lender in connection with any Third Party financing, provided that:
| (a) | such Third Party lender is either: (i) a bank with a rating for its long-term unsecured and non-credit enhanced debt obligations of BBB or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd., or Baa2 or higher by Moody's Investors Services, or a comparable rating from an internationally recognized credit rating agency or affiliate which is a designated rating organisation pursuant to Canadian securities laws or a registered or certified credit rating agency in accordance with EC Regulation 1060/2009; (ii) a government entity in Canada, the United States of America, the United Kingdom or Europe; or (iii) an entity approved by the other Limited Partner in writing, which consent shall not be unreasonably withheld where the Party proposing to pledge its LP Units provides to the other Limited Partner written evidence that the proposed Third Party lender has equivalent credit worthiness to any ender falling withing limbs (i) and (ii), provided that no Party shall be permitted to pledge its Units or interests to an entity sanctioned by a relevant authority (including the United Nations Security Council, the United States of America, Canada or the European Union) at any time. |
| (b) | In the event the Limited Partners or the General Partner require Third Party funding to meet remaining projected funding requirements for the JV Business, including the Partnership entering into or intending to enter into a product development agreement, such funding may be sourced by way of debt, on terms satisfactory to the GP Board as further contemplated in the GP USA. |
| 8.7 | Admission of New Partners and Going Public Transactions |
Each of Westport Canada and Volvo Canada acknowledge and agree that it may be in the best interests of the Partnership and the JV Group as a whole to permit additional stakeholders to acquire LP Units. Subject to approval by the General Partner, the Parties will consider in good faith, and taking into account the strategic plan developed as part of the Business Plan for the sustained financial health of the JV Group, any Third Party additional investments in the Partnership including through an initial public offering; investment by a Third Party OEM that may be a competitor to Volvo Canada, Volvo Sweden and their Affiliates, or investment by a tier one supplier to the JV Group. In particular:
| (a) | following the third anniversary of the Effective Date, in the event that the valuation of the JV Group exceeds [Redacted – commercially sensitive information], the Limited Partners shall consider in good faith the admission to listing on a recognized stock exchange or investment exchange of the LP Units, or other equity interests in the JV Business following any restructuring pursuant to Section 8.8; and |
| (b) | [Redacted – commercially sensitive information], the Parties shall work together in good faith to consider the issuance or Transfer of LP Units (or, in the case of Volvo Canada, Transfer by Volvo Sweden of shares in Volvo Canada) to other interested stakeholders on reasonable terms. Volvo Canada acknowledges that such considerations may include the Transfer of LP Units by Volvo Canada (or Transfer by Volvo Sweden of shares in Volvo Canada) to such new stakeholder in a manner that leaves Westport Canada as a Limited Partner holding greater than 50% of the LP Units. Westport Canada acknowledges that such considerations may include the Transfer by Volvo Sweden of its shares in Volvo Canada. The Limited Partners acknowledge that such considerations may include the Transfer of LP Units (or shares in Volvo Canada) on a non pro rata basis. Concurrently with the issuance or transfer of such LP Units to any interested stakeholder the Parties acknowledge and agree that this Agreement, the GP USA and the JVCo SHA will require re-negotiation and that they shall give reasonable consideration to the changes to this Agreement, the GP USA and the JVCo SHA as they or such stakeholder may reasonably request or require in connection with the admission of new limited partners to the Partnership and new shareholders to the General Partner and JVCo. |
| -42- |
| 8.8 | Restructuring |
The Partners shall, or shall cause the General Partner to, take all reasonable steps as are required in order to reorganize and restructure the Partnership in a tax efficient manner, including converting the Partnership to a corporation, in the event the Parties agree to undertake an initial public offering.
Article 9
ADDITIONAL RESTRICTIONS ON TRANSFERS
| 9.1 | No Transfers [Redacted – commercially sensitive information] |
Excluding Transfers: (a) contemplated in Sections 8.3, 8.4, 8.6 and 8.7, (b) to a Non-Defaulting Partner following an Event of Default in accordance with Section 12.3, or (c) pursuant to Section 12.2(b) or 12.2(c), and in all cases subject to Section 8.2, the Limited Partners shall be prohibited from Transferring any of their LP Units, or any LP Loans, [Redacted – commercially sensitive information] for a period of five years from the Effective Date.
| 9.2 | Right of First Refusal |
| (a) | In the event either Limited Partner (the "Offering Party") wishes to Transfer all or any portion of its LP Units (which transfer must occur together with the GP Shares and LP Loans referred to in Section 9.2(b)(iii), the "Offered Units") to a Third Party (which term shall, for the purposes of this Section 9.2, be deemed to include any Affiliate of a Limited Partner other than any 100% Affiliate) (excluding Transfers permitted by Section 8.3, in accordance with Section 8.4 or approved pursuant to Section 8.7), the Offering Party shall first provide notice in writing (an "Offer Notice") to the other Limited Partner (the "ROFR Holder") offering to sell the Offered Units to the ROFR Holder (the "Offer"). At the same time as the Offer Notice is served on the ROFR Holder, the Offering Party must also serve (or procure that its 100% Affiliate serves) an equivalent notice pursuant to the JVCo ROFR. |
| -43- |
| (b) | The Offer Notice shall: |
| (i) | state that the Offering Party is willing to sell all of the Offered Units to the ROFR Holder for a set cash price (the "Offer Price") determined by the Offering Party, in its sole discretion; |
| (ii) | state the name of the proposed Third Party Transferee; |
| (iii) | set out all other material terms and conditions of the proposed Transfer, including the concurrent sale of the same proportion of the GP Shares and transfer of the same proportion of the LP Loans held by the Offering Party (the "ROFR Transfer"); and |
| (iv) | be irrevocable. |
| (c) | The ROFR Holder shall have the option and right, exercisable within 30 Business Days of receipt of the Offer Notice (the "Offer Exercise Period"), by notice in writing to the Offering Party (the "Offer Acceptance") to elect to purchase all (but not part only) of the Offered Units free from all Liens at the Offer Price and otherwise, upon and subject to the material terms and conditions set forth in the Offer Notice, provided that such ROFR Holder may only serve an Offer Acceptance if it (or its 100% Affiliate who is a JVCo Shareholder) also, and at the same time, exercises its rights under the JVCo ROFR. |
| (d) | If the ROFR Holder elects to purchase the Offered Units in accordance with the terms of the Offer Notice prior to the expiry of the Offer Exercise Period, the Offer and the Offer Acceptance shall constitute a binding contract of purchase and sale, subject only to any necessary regulatory approvals, which shall be completed in the manner provided as follows: |
| (i) | the ROFR Transfer shall be completed at a closing (a "ROFR Closing") to be held on the same day as closing of the JVCo ROFR, which shall be no later than the 20 Business Days after the later of (A) receipt of the Offer Acceptance by the ROFR Holder; and (B) fulfillment of the necessary regulatory approvals contemplated in Section 9.2(d), at such place as the Offering Party and ROFR Holder shall agree (or, failing such agreement, at the offices of the lawyers of the Offering Party or through the electronic exchange of documents); and |
| (ii) | at the ROFR Closing: |
| (A) | the JVCo ROFR shall be completed in accordance with its terms; |
| (B) | the ROFR Holder shall pay the aggregate purchase price, net of all applicable adjustments and deductions, as specified in the Offer, to the Offering Party in immediately available funds; |
| (C) | the Offering Party shall execute and deliver all such transfers, assignments and other instruments of conveyance as may be required in order to transfer and convey the Offered Units to the ROFR Holder and to effect the proper assumption by the ROFR Holder of all liabilities and obligations associated therewith; |
| -44- |
| (D) | all Partners shall execute and deliver all such additional documents and assurances as may be required to comply with the terms of sale specified in the Offer and to effect the closing of the ROFR Transfer; and |
| (E) | all other requirements for a Transfer set out under Section 8.2 and Article 10 shall be satisfied. |
| (e) | If the ROFR Holder does not serve an Offer Acceptance prior to the expiry of the Offer Exercise Period or if any Offer Acceptance ceases to have effect due to the failure by the ROFR Holder or its 100% Affiliate to exercise the JVCo ROFR or to obtain any necessary regulatory approvals referred to in Section 9.2(d) or equivalent regulatory approvals applicable to the JVCo ROFR: |
| (i) | the Offering Party and each of its applicable 100% Affiliates shall thereafter be entitled, subject to Sections 8.1 and 8.2, to sell the Offered Units to the Third Party Transferee named in the Offer Notice (a "Proposed Purchaser") for an amount equal to or greater than the Offer Price, or otherwise, on terms and conditions that are not, in the aggregate, more favourable to the Proposed Purchaser than those set forth in the Offer; and |
| (ii) | if the Transfer to a Proposed Purchaser is not completed within 120 Business Days after the expiration of Offer Exercise Period, the Offering Party (and its 100% Affiliate) shall not be entitled to complete the Transfer without again complying with the provisions of this Section 9.2. |
| 9.3 | Control Event |
| (a) | In the event of: |
| (i) | any change of control of Westport Canada (or any 100% Affiliate that acquires LP Units from Westport Canada) such that it ceases to be controlled, directly or indirectly, by Westport Inc; or |
| (ii) | any change of control of Westport Inc pursuant to which any competitor of Volvo Canada, Volvo Sweden (or an Affiliate of Volvo Canada or Volvo Sweden) obtains control of Westport Inc, |
| (b) | Volvo Canada shall have a call option to buy Westport Canada's LP Units, GP Shares and any LP Loans, which option may only be exercised concurrently with the call option granted to Volvo Sweden or its 100% Affiliate pursuant to the JVCo SHA in respect of the JVCo Shares and JVCo Loans held by Westport Canada or its 100% Affiliate, (collectively) [Redacted – commercially sensitive information] and the purchase shall be completed in accordance with and subject to the terms set out in Article 10. |
| -45- |
| (c) | In the event of any change of control of Volvo Canada (other than as set out in Section 8.7 or a Transfer of shares in Volvo Canada in circumstances where Volvo Canada would be permitted to Transfer LP Units), such that it ceases to be controlled, directly or indirectly, by Aktiebolaget Volvo (publ), Westport Canada shall have a call option to buy Volvo Canada's (or its Affiliate's) LP Units, GP Shares and any LP Loans (provided that, if Westport Canada exercises such call option and provided further that Volvo Canada is a Holding Company, Volvo Canada shall be entitled to require that Westport Canada acquires Volvo Sweden's shares in Volvo Canada in place of such LP Units, GP Shares and LP Loans) which option may only be exercised concurrently with the call option granted to Westport Canada or its 100% Affiliate pursuant to the JVCo SHA in respect of the JVCo Shares and JVCo Loans held by Volvo Sweden or its 100% Affiliate, (collectively) [Redacted – commercially sensitive information] and the purchase shall be completed in accordance with and subject to the terms set out in Article 10. |
| 9.4 | Securities Laws Matters |
Each Limited Partner shall, and shall ensure that its Affiliates, comply with all Applicable Laws related to insider dealing in respect of any material facts of which it becomes aware by virtue of its interest in the Partnership or any potential merger and acquisition process contemplated in respect of another Limited Partner (or its Affiliates).
Article 10
GENERAL SALE PROVISIONS
| 10.1 | Warranties of Seller |
| (a) | Each Partner shall do all such acts or things, including the execution of any documentation that may be necessary to effect the Transfer of LP Units, GP Shares or LP Loans (or, as applicable, shares in Volvo Canada) in accordance with this Agreement. In respect of a proposed Transfer from one Partner to another Partner, the selling Partner shall cause any such Transfer to be effected by way of a simplified transfer agreement with representations and warranties restricted to ownership of the LP Units, GP Shares, and LP Loans (or, as applicable, shares in Volvo Canada) to be Transferred (including no Liens), enforceability of the Transfer, corporate capacity, authority and authorization, and receipt of necessary consents to effect the Transfer. |
| (b) | Each Transfer of LP Units, GP Shares, and LP Loans (or, as applicable, shares in Volvo Canada) between a seller and a buyer will, unless the seller and the buyer otherwise agree, be closed at the offices of the solicitors of the Partnership (or through electronic exchange of documents) at 10:00 a.m. on the closing date specified in or determine in accordance with this Agreement. |
| 10.2 | Closing Conditions |
At the time of closing of any Transfer of any LP Units, GP Shares, and LP Loans (or, as applicable, shares in Volvo Canada) between a seller and a buyer under this Agreement, the seller will table:
| -46- |
| (a) | a certificate or certificates representing the LP Units, GP Shares, and LP Loans (or, as applicable, shares in Volvo Canada) being Transferred by the seller, duly endorsed in blank for transfer or accompanied by a duly executed stock power of transfer in appropriate form; |
| (b) | an assignment of any LP Loans, executed and completed in a manner acceptable to the General Partner and Transferee; |
| (c) | to the General Partner, a transfer form, in such form and completed and executed in such manner as is acceptable to the General Partner, which transfer form shall include an agreement by the Transferee to be bound by the terms of this Agreement and to assume the obligations of the Transferor under this Agreement; and |
| (d) | a release of any Liens on the LP Units or GP Shares (or, as applicable, shares in Volvo Canada) or in connection with LP Loans being Transferred. |
| 10.3 | Payment |
The buyer will pay for the LP Units, GP Shares, and LP Loans (or, as applicable, shares in Volvo Canada) being purchased pursuant to this Agreement by wire transfer in cleared funds for same day value initiated by a Canadian or US chartered bank (or European equivalent) or trust company.
| 10.4 | Changes in Membership of Partnership |
No change of name or address of a Partner, no Transfer of a Unit and no admission of a Partner in the Partnership shall be effective for the purposes of this Agreement until all reasonable requirements as determined by the General Partner with respect thereto have been met, including the requirements set out in this Agreement, and until such change, Transfer, substitution or addition is duly reflected in an amendment to the Certificate of Limited Partnership as may be required by the Act. The names and addresses of the Partners, contributions to capital made or to be made, the amount of money and/or the value of property distributed by the Partnership to the Partner as a return of capital and number of Units held as reflected from time to time in the Record, as from time to time amended, shall be conclusive as to such facts for all purposes of the Partnership.
| 10.5 | Amendment of Certificate of Limited Partnership or Record |
The General Partner, on behalf of the Partnership, shall from time to time promptly effect filings, recordings, registrations and amendments to the Record and the Certificate of Limited Partnership and to such other documents and at such places as in the opinion of counsel to the Partnership are necessary or advisable to reflect changes in the Partners, Transfer of Units and dissolution of the Partnership as herein provided and to constitute a permitted Transferee as a Partner. The General Partner shall be entitled to be reimbursed by the Transferor for the reasonable and documented administrative out-of-pocket costs and expenses incurred by it to effect a Transfer with respect to any or all of such Transferor's Units.
| -47- |
Article 11
MEETINGS OF THE PARTNERS
| 11.1 | Meetings of the Partners |
Meetings of the Partners shall be held in the following manner:
| (a) | Location. Unless otherwise determined by Specified Consent, meetings of the Partners shall be held on a Business Day, virtually or in person in Vancouver, British Columbia or Gothenburg, Sweden. |
| (b) | Chair. The chair of any meeting of the Partners shall be the chair of the GP Board as determined pursuant to the GP USA (the "Chair"). |
| (c) | Calling Meetings. The Chair shall call meetings of the Partners no less than four times a year, on a schedule agreed by the Partners at the start of each Fiscal Year, and otherwise at such times as the Chair considers appropriate, including to discuss extraordinary matters, and shall call a meeting upon receipt of a written request from a Limited Partner. If the Chair fails or neglects to call, within 24 hours after receipt of such written request, a meeting to be held on such notice and otherwise in accordance with Section 11.1(d), any Limited Partner may call the meeting instead. |
| (d) | Agenda and Meeting Materials. All notices of meetings of the Partners which are not part of the annual meeting schedule referred to in Section 11.1(c) shall be given to each Partner at least five Business Days prior to the meeting. Such notice shall specify the time and the place where the meeting is to be held. Not less than five Business Days prior to the date set for the meeting (or when the notice of the meeting is given, if sooner), an agenda specifying, in reasonable detail, all matters which are to be the subject of a vote at such meeting and provide sufficient information to enable Partners to make a reasoned judgment on all such matters. It shall not be necessary for any such notice to set out the exact text of any resolution proposed to be passed at the meeting provided that the subject matter of such resolution is fairly set out in the notice or schedule thereto. Accidental omissions to give notice of a meeting to, or the non-receipt of notice of a meeting by, any Partner will not invalidate proceedings at that meeting. The failure to include an item on the agenda shall preclude the Partners from passing a resolution in relation to that item until the next Partner meeting called to consider that item, unless: |
| (i) | there is a quorum of the Partners present at the meeting; and |
| (ii) | the Partners present and entitled to vote at the meeting agree to include the item on the agenda. |
| (e) | Quorum and Attendance. |
| (i) | A quorum for any meeting of the Partners shall be at least two individuals that are officers or directors of the General Partner and at least one individual that is an officer, director or signing authority of each Limited Partner present at the meeting. The Chair shall not be considered the representative from the then-appointing GP Shareholder and shall not be permitted to vote, including providing any second or casting vote. The Partners shall not transact business at a meeting unless a quorum is present. |
| -48- |
| (ii) | If a quorum referred to in Section 11.1(e)(i) is not present within 30 minutes from the time fixed for holding any such meeting, the meeting may be adjourned by the Chair to a date that is five Business Days later at the same time and place (such adjourned meeting being, the "First Adjourned Partner Meeting"). If quorum referred to in Section 11.1(e)(i) is not present within 30 minutes from the time fixed for holding any such First Adjourned Partner Meeting, the First Adjourned Partner Meeting may be further adjourned by the Chair to a date that is five Business Days later at the same time and place (such further adjourned meeting being, the "Second Adjourned Partner Meeting"). No notice of the Second Adjourned Partner Meeting shall be required. Subject to the Act and without prejudice to Section 11.2, any Partners present at the Second Adjourned Partner Meeting shall constitute a quorum and the transaction of business set out in the notice for the original meeting may proceed whether or not each Partner is represented at such meeting, as the case may be. |
| (iii) | A Partner is considered present or in attendance at a meeting of the Partners if the Partner participates in the meeting in person or by electronic means, telephone, or other communication facilities as permit all Persons participating in the meeting to hear or otherwise communicate with each other, and a Partner participating in such meeting by such means is deemed to be present at the meeting. A Partner is not considered present at a meeting where that Partner attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. |
| (f) | Votes. On any resolutions submitted to a meeting, each Partner entitled to vote shall be entitled to one vote and resolutions shall be passed if approved by at least a simple majority of the Partners, unless Specified Consent is required as expressly contemplated in this Agreement. Votes at meetings of the Partners may be cast personally, and resolutions shall be passed by a show of hands or at the request of any Partner (whether before or after a vote by show of hands is taken), by ballot. The Partners shall have only the powers set forth in this Agreement and any additional powers provided by Applicable Law. Subject to the foregoing sentence, any resolution shall be binding on all Partners and their respective successors and permitted assigns. |
| (g) | Attendance and appointment of a Proxy. A Limited Partner may attend a meeting of the Partners either by its appointed representative attending the meeting in person, or it may be represented by another member of the Partnership who has been appointed by a written proxy, and the right to vote at a meeting of the Partners may be exercised in person or by proxy. A proxy, drafted in English, whether it be for a particular meeting of the Partners or for any meeting, shall be in any form approved by the General Partner. The proxy shall be signed by the Person making the appointment or by its attorney, who shall have been duly authorized in writing, or, if the Person making the appointment is a corporation, by a duly authorized senior executive or attorney thereof. Any Person appointed as proxy must be a member of the Partnership. A proxy signed by or on behalf of a Limited Partner shall be deemed to be valid, unless it is contested at the time of its use or prior thereto. For the avoidance of doubt, at any meeting of the Partners, a Partner who is the proxy of a Limited Partner shall have one vote, plus one vote for each Limited Partner for whom he is proxy. |
| -49- |
| (h) | Meeting Minutes. The Chair will cause minutes of all meetings of the Partners to be taken and a copy of the minutes of each meeting will be provided to each Partner promptly after each meeting. For greater certainty, the failure of the Chair to fulfill his or her obligations hereunder will not invalidate or otherwise affect the efficacy of any meeting, business conducted at any meeting or the resolutions passed at such meeting. Until the contrary is proved, every meeting in respect of which minutes have been made shall be deemed to have been duly held and convened and all proceedings referred to in the minutes shall be deemed to have been duly passed. |
| (i) | Written Approval in Lieu of Meeting. Any action, consent, decision or approval required to be made by the Partners may be taken, without prior notice thereof, by written consent or resolution in lieu of meeting, if signed by all Partners and such action, consent, decision or approval, as applicable is as valid as if it had been passed at a meeting of the Partners. |
| (j) | Rules. To the extent that the rules and procedures for the conduct of a meeting of the Partners are not prescribed in this Agreement or the GP Articles, such rules and procedures shall be determined by the Chair. |
| (k) | Right to Attend. The officers and directors of the General Partner, counsel of the Partnership or any of the Partners, and any other Person so instructed by the General Partner, shall have the right to attend at any meeting of Partners and to address any such meeting on the matters properly before it. Any counsel for or representative authorized in writing by a Partner entitled to attend the meeting may attend at such meeting for or on behalf of such Partner and may address the meeting on the matters properly before it. |
| (l) | Expenses. Each Partner shall be responsible for reimbursing the authorized representative nominated by it for all travel, hotel, and other reasonable out-of-pocket expenses incurred by such representatives in attending meets of the Partners. |
| 11.2 | Partner Approval Rights |
Notwithstanding any provisions of this Agreement to the contrary, the General Partner shall not, for itself or in its capacity as general partner, undertake or permit to occur (directly or indirectly, including through any Subsidiary), and the GP Board shall not authorize or approve, any of following matters without Specified Consent:
| (a) | changing the name of the Partnership; |
| (b) | removing the General Partner and electing a new general partner; |
| (c) | waiving any default on the part of the General Partner on such terms as the Limited Partners may determine; |
| -50- |
| (d) | amending, modifying, altering or repealing any Specified Consent previously passed by the Partners; |
| (e) | amending this Agreement pursuant to Section 18.2; |
| (f) | requiring the General Partner on behalf of the Partnership to enforce any obligation or covenant on the part of any one or more Limited Partners; |
| (g) | dissolving the affairs of the Partnership, except in accordance with the provisions of Article 13; |
| (h) | making, entering into or assuming any agreement or commitment to do or undertaking any of the foregoing; |
| (i) | taking any action or making any decision on any matter that is analogous to the decisions in the foregoing paragraphs; or |
| (j) | any other matter that requires the Specified Consent in this Agreement. |
Article 12
DEFAULT AND REMEDIES
| 12.1 | Event of Default |
If any of the following occur in respect of a Partner (a "Defaulting Partner"):
| (a) | the Defaulting Partner (or any of its Affiliates, as applicable) is in default under an agreement with a Person that holds a Permitted Lien, which default: |
| (i) | is not waived by such Person or otherwise remedied by or on behalf of the Defaulting Partner (or its Affiliate, as applicable); and |
| (ii) | would permit the JVCo Shares, JVCo Loans, LP Units, GP Shares and LP Loans, (or the rights and benefits attached thereto) that are subject to the Permitted Lien to be sold, assigned or conveyed to another Person, at the direction of the holder of the Permitted Lien or its nominee (a "Permitted Lien Default"); |
| (b) | the Defaulting Partner (or any of its Affiliates, as applicable) has breached any material provision of any JV Agreement, excluding a funding or payment default (where a remedy for such default is addressed elsewhere in this Agreement) or an Event of Default (as defined in the JVCo SHA) occurs in respect of the Defaulting Partner (or its 100% Affiliate) pursuant to the terms thereof; |
| (c) | the Defaulting Partner (or any of its Affiliates, as applicable) has committed fraud, gross negligence or wilful misconduct in connection with the JV Group or the JV Business; |
| (d) | an Insolvency Event occurs in respect of the Defaulting Partner; or |
| -51- |
| (e) | the Defaulting Partner has committed a Persistent Breach, |
(each, an "Event of Default"), the General Partner or, if the General Partner is the Defaulting Partner or otherwise refuses to do so, any Limited Partner that is not in default (the "Non-Defaulting Partner"), shall provide notice to the Defaulting Partner and each other Partner setting forth the details of the Event of Default. In the case of an Event of Default pursuant to Sections 12.1(a) or 12.1(b), that is capable of being remedied, the Defaulting Partner shall have 20 Business Days; after receipt of a notice from the Non-Defaulting Partner to remedy the Event of Default. In all other cases, the Defaulting Partner shall not be entitled to any cure period. If the Defaulting Partner, acting in good faith, disputes that it is in default, then it may refer the matter for resolution pursuant to Article 15 and none of the remedies set out in Section 12.2, inclusive, may be exercised unless and until such Partner has been definitively determined to be a Defaulting Partner pursuant to Article 1. For greater certainty, an Event of Default shall not be considered to have occurred to the extent that any act or omission giving rise to the Event of Default was done or omitted to be done in accordance with the prior written instruction or express concurrence of the other Partners.
| 12.2 | Remedies |
If a Defaulting Partner is subject to an Event of Default, then without limitation of any other rights, remedies or causes of action the Partnership or the Non-Defaulting Partner, as applicable, may have under any JV Agreement, at law or in equity against a Defaulting Partner (or any of its Affiliates), the Partnership or the Non-Defaulting Partner, as applicable, may exercise any one or more of the following remedies, as circumstances permit,
| (a) | in the event of an Event of Default relating to a failure to pay any sums due: |
| (i) | charge the Defaulting Partner (or its Affiliate, as applicable) interest at [Redacted – commercially sensitive information], from the day such payment is due until the day it is paid; |
| (ii) | where the payment Event of Default in question is the failure by the Defaulting Partner to pay its share of Cash Call Funding or Emergency Funding in accordance with Section 4.9 when due, elect to fund all or any part of the Defaulted Amount due from the Defaulting Partner by way of a LP Default Loan or Emergency Default Loan to the Partnership in accordance with Section 4.9(i); |
| (iii) | set-off against an unpaid amount, any amounts payable by the Partnership or the Non-Defaulting Partner to the Defaulting Partner (or its Affiliate, as applicable) under any JV Agreement, without any right of the Defaulting Partner (or its Affiliate, as applicable) to set-off or counter-claim; |
| (iv) | treat the default as an immediate and automatic assignment of the Defaulting Partner's share of distributions and retain such distributions until all amounts (including interest, as provided in Section 12.2(a)(i) and all costs associated with exercising the remedy, as provided in this Section 12.2) owing by the Defaulting Partner, by virtue of the default of the Defaulting Partner have been recovered; or |
| -52- |
| (v) | take the necessary legal proceedings to have all outstanding obligations and undertakings of the Defaulting Partner performed or request an injunction or other appropriate remedy, the Partners acknowledging that the damages that may be granted by law may not be a sufficient remedy to cure the default and to make the Partnership and the Non-Defaulting Partners whole in respect of such Event of Default; |
| (b) | in the event of a Permitted Lien Default pursuant to this Agreement or the JVCo SHA (in respect of the Defaulting Partner or its 100% Affiliate), the Non-Defaulting Partner shall have the option to exercise either of the following: |
| (i) | a put option to force the Defaulting Partner to acquire the Non-Defaulting Partner's (and its 100% Affiliate's) LP Units, GP Shares and LP Loans (or, where Volvo Canada is the Non-Defaulting Partner and provided that Volvo Canada is a Holding Company, to force Westport Canada to acquire Volvo Sweden's shares in Volvo Canada in place of such LP Units, GP Units and LP Loans) [Redacted – commercially sensitive information]; or |
| (ii) | a call option to force the Defaulting Partner to sell the Defaulting Partner's (and its 100% Affiliate's) LP Units, GP Shares and LP Loans (provided that, where Volvo Canada is the Defaulting Partner and such call option is exercised by Westport Canada, and provided further that Volvo Canada is a Holding Company, Volvo Canada shall be entitled to require Westport Canada to acquire Volvo Sweden's shares in Volvo Canada in place of such LP Units, GP Units and LP Loans) [Redacted – commercially sensitive information], |
and the purchase shall be completed in accordance with and subject to the terms set out in Article 10, together with any necessary conforming changes. This option commences 20 Business Days after receipt of a notice from the Non-Defaulting Partner to remedy the Event of Default (assuming that the Permitted Lien Default has not been remedied by such time) and expires on the first anniversary of such date;
| (c) | in the event of an Event of Default pursuant to Section 12.1(c), 12.1(d) or 12.1(e), or pursuant to Section 10.1(c), 10.1(d) or 10.1(e) of the JVCo SHA in respect of the Defaulting Partner or its 100% Affiliate, the Non-Defaulting Partner shall have the option to exercise either of the following: |
| (i) | where the Event of Default is not an Insolvency Event, a put option to force the Defaulting Partner to acquire the Non-Defaulting Partner's (or its 100% Affiliate's) LP Units, GP Shares and LP Loans (or, where Volvo Canada is the Non-Defaulting Partner and provided that Volvo Canada is a Holding Company, to force Westport Canada to acquire Volvo Sweden's shares in Volvo Canada in place of such LP Units, GP Units and LP Loans) [Redacted – commercially sensitive information]; or |
| (ii) | a call option to force the Defaulting Partner to sell the Defaulting Partner's (or its 100% Affiliates) LP Units, GP Shares and LP Loans (provided that, where Volvo Canada is the Defaulting Partner and such call option is exercised by Westport Canada, and provided further that Volvo Canada is a Holding Company, Volvo Canada shall be entitled to require Westport Canada to acquire Volvo Sweden's shares in Volvo Canada in place of such LP Units, GP Units and LP Loans): [Redacted – commercially sensitive information], |
| -53- |
and the purchase shall be completed in accordance with and subject to the terms set out in Article 10, together with any necessary conforming changes. This option commences on the earlier of (A) receipt of a notice from the Non-Defaulting Partner (in the case of an Event of Default which is not permitted to be remedied under this Agreement); and (B) in all other cases, 20 Business Days after receipt of a notice from the Non-Defaulting Partner to remedy the Event of Default (assuming that the Event of Default has not been remedied by such time) and expires on the first anniversary of such date; or
| (d) | in the event of an Event of Default pursuant to Section 12.1(b), the breach may be referred to Arbitration for resolution pursuant to Appendix 2 to Schedule B. |
For the purposes hereof, the Defaulting Partner shall be liable to the Partnership or the Non-Defaulting Partner, as applicable, for all of its costs and expenses incurred in connection with the exercise of the remedies set out in this Section 12.2.
| 12.3 | Remedies not Exclusive and No Release |
The exercise by the Partnership or the Non-Defaulting Partner of any of the rights and remedies specified in Section 12.2 are in addition to, and not in substitution for, any other rights or remedies in respect of the occurrence of an Event of Default, or any default or breach of the Defaulting Partner of its obligations under this Agreement, whether such rights or remedies are provided for under this Agreement, pursuant to any other agreement between the Defaulting Partner (or an Affiliate) or at law or in equity. An exercise of one or more of such rights shall not bar or prejudice in any way the exercise of any rights or remedies. The exercise of any of the rights and remedies specified in Section 12.2 shall not release the Defaulting Partner from any other liabilities and obligations under this Agreement while it was a Partner.
| 12.4 | Acknowledgement |
The Defaulting Partner acknowledges and agrees that the remedies specified above are enforceable against it in accordance with their terms, are fair and reasonable having regard to JV Business, the relationship of the Partners, the risks and rewards associated with carrying on the JV Business under this Agreement or any other business carried on by or between the Partners or their Affiliates in relation to or in support of the JV Business, and the exercise of such remedies by the Partnership, the Non- Defaulting Partner or the General Partner, as applicable, shall not be construed or challenged as a penalty.
Article 13
DISSOLUTION AND LIQUIDATION
| 13.1 | Events of Dissolution |
| -54- |
| (a) | The Parties shall follow the procedure for dissolution established in Section 13.3 upon the occurrence of any of the following events or dates: |
| (i) | the sale of all or substantially all of the JV Business or the JV Group's assets; |
| (ii) | any event which, under the laws of the Province of British Columbia, requires or results in the dissolution or winding up of the Partnership; |
| (iii) | the passage of a Specified Consent approving the dissolution of the Partnership; or |
| (iv) | the removal or resignation of the General Partner, unless the General Partner is replaced as provided herein. |
| (b) | Notwithstanding Section 13.1(a), each Party is responsible for paying all amounts owing by it under this Agreement prior to the dissolution of the Partnership, including any amounts owing for LP Units purchased under this Agreement. |
| 13.2 | No Dissolution |
The Partnership shall not come to an end by reason of an Insolvency Event of any Limited Partner, upon the Transfer of any Units or the admission or retirement of one or more Partners.
| 13.3 | Procedure on Dissolution |
| (a) | Subject to Sections 13.3(b) to 13.3(e): |
| (i) | Upon dissolution, the Partnership's activities and affairs will be wound down in an orderly manner. Proceeds received by the Partnership in the course of liquidation, less any amounts required to pay the ongoing expenses and other obligations of the Partnership, will be distributed to the extent reasonably possible within 20 Business Days of receipt thereof by the Partnership. The General Partner (or in the event of an occurrence specified in Section 13.1(a)(iv), such other Person as may be appointed by Specified Consent as a liquidator) shall manage the affairs of the Partnership and may sell or otherwise dispose of such part of the Partnership's assets as the General Partner or such liquidator considers appropriate, in order to complete the distribution of the Partnership's remaining assets as soon after commencement of liquidation as is practically possible. Subject to Applicable Law, allocation of assets upon dissolution of the Partnership will be made in the following order: |
| (A) | pay or provide for the payment of the debts and liabilities of the Partnership, including reimbursement of expenses of the Partnership incurred by the General Partner and liquidation expenses; and |
| (B) | distribute the remaining assets of the Partnership, if any, to the Partners in accordance with Section 5.2, and allocate any Income or Losses in accordance with Article 6. |
| -55- |
| (ii) | The determination of remaining assets or liabilities of the Partnership, if any, shall be determined one day immediately prior to the date of dissolution. |
| (b) | [Redacted – commercially sensitive information] |
| (c) | [Redacted – commercially sensitive information] |
| (d) | [Redacted – commercially sensitive information] |
| (e) | [Redacted – commercially sensitive information] |
| (f) | [Redacted – commercially sensitive information] |
| (g) | [Redacted – commercially sensitive information] |
| 13.4 | Dissolution |
The Partnership shall be dissolved upon the completion of all matters set forth in Section 13.3.
| 13.5 | No Right to Dissolve |
Subject to Applicable Law, except as provided for in this Article 13, no Partner shall have the right to request or require the dissolution of the Partnership, for the winding-up of its affairs or the distribution of its assets.
| 13.6 | Agreement Continues |
Notwithstanding the dissolution of the Partnership, this Agreement shall not terminate until the provisions of Section 13.3 shall have been satisfied.
| 13.7 | Survival |
Notwithstanding the termination of this Agreement in accordance with Section 13.6, Article 17 shall remain in full force and effect, pursuant to the terms hereof and for a period of 12 months thereafter, excluding any Restricted Information, in which case the confidentiality obligations shall survive indefinitely. The obligations of the Partners under Article 15 and Article 18, and Sections 2.13, 3.6, 3.7, 3.8, 6.1, and 7.1 shall survive indefinitely the expiration or earlier termination of this Agreement. All defined terms used in any provision surviving after the termination of this Agreement shall survive until the provision in which such defined term is used expires in accordance with its terms.
Article 14
REPRESENTATIONS AND WARRANTIES
| 14.1 | Representations and Warranties of the Parties |
Each Party hereby represents and warrants as follows, and acknowledges and confirms that the other Parties are relying on such representations and warranties in entering into this Agreement:
| -56- |
| (a) | Qualification. It is a corporation, or other legal entity, duly incorporated or formed and existing under the laws of its jurisdiction of incorporation or formation and has the corporate or other power to enter into and perform its obligations under this Agreement. It has all governmental and regulatory licences, registration and approvals required by Applicable Law as may be necessary to perform its obligations under this Agreement (and with respect to the Limited Partners, to own the LP Units). |
| (b) | Authorization. The execution and delivery of and performance by it of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or other action on the part of the Party. |
| (c) | Validity of Agreement. The execution and delivery of and performance by the Party of this Agreement: |
| (i) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a breach or violation of or a conflict with, or allow any other Person to exercise any rights under, any of the terms or provisions of its articles, by-laws or other constating documents or governing agreements; and |
| (ii) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a material breach or violation of or a conflict with, or allow any other Person to exercise any rights under any material contracts or instruments to which the Party is a party or pursuant to which any of the Party's assets may be affected; and will not result in the violation of any Applicable Law. |
| (d) | Execution and Binding Obligation. This Agreement has been duly executed and delivered by the Party and constitutes a legal, valid and binding agreement of each Party enforceable against it in accordance with its terms, subject only to any limitation under Applicable Law relating to: (i) bankruptcy, winding-up, insolvency, arrangement and other laws of general application affecting the enforcement of creditors' rights; and (ii) the discretion that a court may exercise in the granting of equitable remedies. |
| (e) | No Proceedings. There are no actions, suits or proceedings pending or, to its knowledge, threatened against or affecting it or any of its properties before or by any Governmental Entity, and no existing default by it under any applicable Order, in each case that is reasonably expected to have a material adverse effect on its financial condition or results of operations. |
| (f) | Unit Ownership. It is the sole legal and beneficial owner of the Units held by it. |
| (g) | Tax Matters. |
| (i) | It is not a "financial institution" for purposes of the Income Tax Act. |
| (ii) | It is not a "tax shelter" as defined in subsection 237.1(1) of the Income Tax Act and neither the purchase nor the holding of Units by it will at any time cause the Partnership or its Units to be a "tax shelter investment" within the meaning of subsection 143.2(1) of the Income Tax Act. |
| -57- |
| (iii) | Neither the purchase nor the holding of Units by it will cause the Partnership to become a SIFT partnership, within the meaning of the Income Tax Act. |
| (iv) | It is not a "non-resident" of Canada within the meaning of the Income Tax Act. |
| 14.2 | Survival |
The representations and warranties of the Parties contained in this Article 14 survive the execution and delivery of this Agreement and each Partner covenants and agrees to ensure that each representation and warranty made pursuant to Section 14.1 remains true for so long as such Partner remains a Partner.
Article 15
DISPUTE RESOLUTION
| 15.1 | Dispute Resolution |
In the event the Parties have a Dispute, including being unable to reach Specified Consent for a matter as set out in Section 11.2, the Dispute shall be resolved in accordance with Schedule B.
| 15.2 | Injunctive Relief |
Notwithstanding Section 15.1, a Party may apply to the courts of British Columbia for interim or conservatory measures, including immediate injunctive relief or similar equitable relief. The Parties agree that seeking and obtaining such interim or conservatory measures shall not waive the right to Arbitration set out in Schedule B. The Parties further agree that the provisions of this Section 15.2 shall not be deemed to preclude an arbitrator from awarding similar or other interim relief or issuing interim arbitration awards.
| 15.3 | Performance to Continue |
The Parties agree that during the resolution of a Dispute, the Parties shall continue to perform their obligations under this Agreement, provided that such performance shall be without prejudice to the rights and remedies of the Parties and shall not be read or construed as a waiver of a Party's right to claim for recovery of any loss, costs, expenses or damages suffered as a result of the continued performance of this Agreement.
Article 16
NOTICES
| 16.1 | Addresses for Service |
The addresses for service and email addresses of the Parties shall be as follows:
[Redacted – personal information]
| -58- |
| 16.2 | Change of Address |
A Party may, from time to time, change its address for service hereunder by notice to the other Parties given in accordance with Section 16.3.
| 16.3 | Notices |
Any notice or other communication provided for in this Agreement or any other notice which a Party may desire to give to another Party, shall be in writing and shall be delivered by:
| (a) | personal hand delivery to the addressee or to an officer of the addressee, or in the absence of an officer, to some other responsible employee of such addressee and shall be deemed to have been given and received on the date of such delivery or, if so delivered on a day that is not a Business Day, then the next Business Day; |
| (b) | registered mail, in a properly addressed envelope addressed to the Party to whom the notice is to be given at its address for service and shall be deemed to have been given and received on the date it is signed for evidencing proof of receipt by the addressee or such other person designated as having the responsibility to sign for registered mail; or |
| (c) | electronic mail (where the addressee has provided an email address with the address for service), addressed to the Party to whom notice is to be given at its address for service and shall be deemed to have been given and received on the same day as the date of sending or, if so delivered on a day that is not a Business Day, then the next Business Day. |
Article 17
CONFIDENTIALITY
| 17.1 | Confidential Information |
| (a) | In this Agreement "Confidential Information" means all records, material and information (and any copies) thereof pertaining to or concerning: (i) the JV Business, the JV Group, including all budgets, forecasts, analyses, financial results, costs, processes, data, technology, Intellectual Property, drawings, blueprints, margins, wages and salaries, and other business activities, and all other information not generally known outside the JV Group; (ii) the contents of this Agreement and the other JV Agreements and any information obtained during negotiations relating to the JV Agreements or as a result of entering into or performing the JV Agreements; and (iii) any Partner or any of its Affiliates, in each case regardless of whether such information is in oral, visual, electronic, written or other form and whether or not it is identified as "confidential", and includes all notes, analyses, summaries or other documents or information (whether paper, electronic or other format) that contain, reflect, summarize, analyze, discuss or review any other Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information insofar as it is in the public domain, provided that specific items of information will not be considered to be in the public domain only because more general information is in the public domain. For this purpose, information is in the public domain if it: (i) is or becomes publicly available through no act or omission of a Party or any of its Affiliates, or its or their Representatives in breach of this Section 17.1; (ii) (other than the contents of this Agreement and the other JV Agreements) is already in possession of the Party to which it was disclosed, or any of its Affiliates, without prior restriction on disclosure; (iii) is subsequently obtained lawfully by a Party or its Affiliate from a Third Party which that Person does not reasonably believe is obligated to maintain that information confidential; or (iv) (other than the contents of this Agreement and the other JV Agreements) is independently developed by a Party or its Affiliate without reference to the information required to be kept confidential hereunder. |
| -59- |
| (b) | Each Party acknowledges that all Confidential Information obtained by or on behalf of a Party or any Representative or (in respect of a Partner) any Affiliate thereof is and shall remain the exclusive property of the disclosing party as applicable. For so long as the General Partner carries on business, each Partner shall, and each Limited Partner shall cause its Affiliates and Representatives to: (i) keep the Confidential Information in strictest confidence; and (ii) in the case of the Limited Partners, use the Confidential Information solely in respect of its investment in the JV Group, and the operation of the Partnership and the JV Business and not directly or indirectly for any other purpose, without the express prior written consent of the General Partner. In complying with the foregoing, each Partner shall use (and shall ensure that its Representatives and, in respect of a Limited Partner, its Affiliates use) the same degree of care as would be used by a normally prudent Person in protecting its own proprietary and confidential information. |
| (c) | Notwithstanding Section 17.1(b), a Party (or its Affiliate) may disclose Confidential Information: |
| (i) | as required by Applicable Laws or pursuant to policies or regulations of any stock exchange on which any of the securities of such Party or any of its Affiliates are listed or by any securities commission or other regulatory authority having jurisdiction over such Party or any of its Affiliates, and only for the purposes of such disclosure, after such Party has made a reasonable attempt to prevent and limit such disclosure and after notification to the General Partner (where permitted), in which event such Party or Affiliate thereof shall request confidentiality in respect of such disclosure and shall use all reasonable commercial efforts to cooperate with the General Partner to prevent or limit such disclosure; |
| (ii) | to its Affiliates and Representatives that have a reasonable need to know the Confidential Information, provided that: (A) such Party shall be required to ensure that each such Affiliate and Representative maintain the confidentiality of the disclosed information in accordance with this Section 17.1; (B) each such Representative has accepted that obligation; and (C) such Party shall be responsible for any subsequent disclosures of such Confidential Information by its Affiliates or Representatives on the same basis as if such disclosures were made directly by such Party; |
| (iii) | to a Person that is a bona fide prospective Transferee of any of that Limited Partner's (or its Affiliate's) LP Units and GP Shares or to a Person with which it is conducting bona fide negotiations directed towards a merger, amalgamation or sale of shares representing a majority ownership interest of that Limited Partner or any of its Affiliates, provided that: (A) such Limited Partner shall be required to ensure that each such prospective Transferee enter into a confidentiality agreement on terms that are materially the same as the requirements in this Section 17.1; (B) the prospective Transferee has accepted that obligation; and (C) such Limited Partner shall be responsible for any subsequent disclosures of such Confidential Information by the prospective Transferee on the same basis as if such disclosures were made directly by such Limited Partner; |
| -60- |
| (iv) | to the extent reasonably appropriate for the applicable purpose, to its lenders, insurers, legal counsel, auditors, underwriters, financial and other professional advisors and credit rating agencies, provided that: (A) such Party shall be required to ensure that each such advisor or agency enter into a confidentiality agreement on terms that are materially the same as the requirements in this Section 17.1; (B) each such advisor or agency has accepted that obligation; and (C) such Party shall be responsible for any subsequent disclosures of such Confidential Information by its advisors or agencies on the same basis as if such disclosures were made directly by such Party; |
| (v) | to the extent permitted by this Agreement or any other agreements between the Parties or their Affiliates in connection with the JV Business; or |
| (vi) | to the extent required by any legal or administrative proceedings or because of any Order of a court or any regulatory authority binding on it, provided that it will promptly notify the other Parties of any such anticipated disclosure to allow it to seek a protective Order and that it will request any confidentiality protection permitted thereunder. |
| (d) | Each Party is responsible for any failure by its Representatives or any other Person to whom it discloses Confidential Information (other than Persons who receive Confidential Information under Section 17.1(c)(i) or Section 17.1(c)(vi)) to maintain the confidentiality of any Confidential Information. Without limitation and in addition to any rights a Party may have against another Party arising by reason of any breach of the obligations under this Section 17.1, each Party shall be liable to and indemnify and hold harmless the other Parties and their respective Affiliates for any losses, costs (including solicitor and his own client costs), damages, and expenses whatsoever which they may suffer, sustain, pay or incur resulting from disclosure or use by such Party or other Persons to whom such Party disclosed Confidential Information (other than Persons who receive Confidential Information under Section 17.1(c)(i) or Section 17.1(c)(vi)), of all or any part of the Confidential Information in breach of this Agreement. |
| 17.2 | Restricted Information |
| (a) | Notwithstanding anything to the contrary in this Article 17 or elsewhere in this Agreement, the Limited Partners acknowledge and agree that as Limited Partners they may be exposed to certain confidential information of the JV Group, the other Limited Partner or customers, suppliers or other Persons with a relationship to the JV Group that constitutes "competitively sensitive information" (collectively, "Restricted Information") and that Volvo Canada, Volvo Sweden or their Affiliates may be a competitor of such customers, or other Persons with respect to the truck industry and off-road applications in which the HPDI Systems will be supplied and used. For clarity, Restricted Information comprises any information that may allow Volvo Canada, Volvo Sweden or their Affiliates to better predict the commercial behaviour of its actual or potential competitors and may include the current or future pricing terms, pricing, sales or marketing plans, customer or supplier contract terms. |
| -61- |
| (b) | In order to adequately protect the Restricted Information, comply with Anti-Trust Laws and provide reasonable assurances to potential customers of the Partnership that such Restricted Information will not be used in a manner that is adverse to their interests, the General Partner shall implement: |
| (i) | appropriate clean team arrangements and other technical precautions (e.g., separate password-protected access or anonymization and encryption of data, firewalls, allocation of administrator rights and corresponding IT authorization concepts, electronic separation by means of "ethical walls", etc.); |
| (ii) | contractual provisions (confidentiality obligations); and |
| (iii) | organizational measures, |
governing the sharing and use of Restricted Information to ensure that the Limited Partners and each of their Affiliates, and their respective directors, officers and employees, do not obtain access to Restricted Information or has responsibility for day-to-day operational decision-making authority or responsibility on pricing, marketing or sales within competitive business units. The Limited Partners shall only make use of their information and reporting rights provided in accordance with Applicable Law, this Agreement and the GP Articles to the extent such use is consistent with Anti-Trust Laws, in particular with regard to the exchange of competitively sensitive information.
| (c) | Without prejudice to Section 17.2(b), the General Partner agrees to put in place sufficient safeguards to avoid any disclosure of Restricted Information between the Limited Partners and/or customers of the JV Group via the JV Group, unless to the extent necessary for and proportionate to the proper functioning of the JV Group. The General Partner shall identify these safeguards in an information barrier protocol to be agreed prior to, and put into effect, promptly following the Effective Date. |
| 17.3 | Survival |
The provisions of this Article 17 shall continue to apply to any Partner that Transfers its Units and ceases to be a Partner hereunder for five years from the date such Partner Transfers its Units, or for 12 months from the date of dissolution of the Partnership, whichever is the sooner, provided in each case that the provisions of this Article 17 relating to Restricted Information shall survive indefinitely.
| -62- |
Article 18
MISCELLANEOUS
| 18.1 | Press Release |
| (a) | Neither Westport Canada nor Volvo Canada, nor any of their respective Affiliates, shall make any press release or respond to a press or other inquiry for information, on behalf of themselves or the Partnership, that relates to this Agreement, the Partnership, or the JV Business, unless the other Partners have consented in writing to the final version of such press release or response to such press or other inquiry for information. Notwithstanding the foregoing and for greater certainty, the Parties acknowledge and agree that the General Partner and the Partnership shall be permitted to issue press releases in the ordinary course of business without the prior consent of either Westport Canada or Volvo Canada, provided that the Partnership and the General Partner shall have provided reasonable notice of such release to Westport Canada and Volvo Canada prior to its issuance. |
| (b) | Subject to Section 17.1 and Section 18.1(a), if a Party or its Affiliate wishes to make any press release or respond to press and other inquiries for information that, in either such case, relates to this Agreement, the Partnership, or the JV Business, then it shall provide the other Parties with a draft thereof in sufficient time prior to the release thereof so that the other Parties may review the proposed press release or inquiry response to be released and advise the Party that proposes to make such release of any comments that such other Parties may have in respect thereto. |
| (c) | The Parties acknowledge and agree that Westport Fuel Systems Inc., an Affiliate of Westport Canada, is a reporting issuer in Canada and a public company with securities listed on exchanges in both Canada and the United States. As such, Westport Fuel Systems Inc. will be required to issue press releases in relation to any "material facts", which may include material facts or occurrences related to the Partnership. As a result, the foregoing shall not apply when the release or disclosure of any information that relates to this Agreement, the Partnership, or the JV Business is required by Applicable Law or by any stock exchange on which any of the securities of a Party or any of its Affiliates are listed or by any securities commission or other regulatory authority having jurisdiction over such Party or any of its Affiliates, provided that, in each such case, except where prohibited under Applicable Law, the Party who or whose Affiliate is required to make such disclosure shall provide the other Parties with details of the nature and substance of such release or disclosure as soon as practicable. Furthermore, the obligations in this Section 18.1 shall not apply to general disclosures or releases of information that a Party or its Affiliate may make from time to time relating to its business or property. Notwithstanding anything to the contrary contained in this Section 18.1, the General Partner shall not make any press release or response to press and other inquiries for information that, in either such case, relates to this Agreement, the Partnership, or the JV Business except if approved by the GP Board or required by Applicable Law. |
| (d) | The Parties acknowledge that this Agreement will constitute a material agreement of Westport Canada and shall be required to be filed with the Canadian Securities Administrators and made publicly available via SEDAR and with the Securities and Exchange Commission via the Electronic Data Gathering, Analysis, and Retrieval system (EDGAR). |
| -63- |
| 18.2 | Amendment |
| (a) | This Agreement may be amended only: |
| (i) | in writing pursuant to an amendment agreement executed by all Limited Partners and the General Partner; or |
| (ii) | by the General Partner unilaterally, to make changes to Schedule A to reflect any issuances or Transfers of Units made in accordance with this Agreement. |
| (b) | Any amendment to this Agreement will be provided to all Limited Partners within 20 Business Days from the effective date of such amendment. |
| (c) | The General Partner will from time to time update Schedule A to reflect any changes to the Limited Partner's LP Units, or Persons who, in accordance with the provisions of this Agreement, after the date hereof, become Limited Partners. |
| (d) | The Parties shall cause the GP USA and/or the JVCo SHA to be amended to align with any permitted or other approved amendments to this Agreement where the amendments to this Agreement address the same or similar concepts contained in the GP USA and/or the JVCo SHA. Similarly, the Parties shall amend this Agreement in order to align with any amendments made to the GP USA and/or JVCo SHA where the amendments to the GP USA and/or JVCo SHA address the same or similar concepts contained in this Agreement. |
| 18.3 | Agreement to be Bound |
Each Person who becomes a Limited Partner must concurrently with becoming a Limited Partner execute and deliver to the General Partner a counterpart copy of this Agreement or a written agreement in form and substance satisfactory to the Parties, agreeing to be bound by this Agreement, including making the representations and warranties contained in Article 14.
| 18.4 | Entire Agreement |
| (a) | This Agreement, together with the Project Agreements, constitute the entire agreement between the Parties and their Affiliates with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, including the confidentiality agreement entered into between Westport Inc and Volvo Sweden on 18 October 2022 and the Term Sheet dated 18 July 2023 entered into by Westport Inc and Volvo Sweden. There are no conditions, representations, warranties or other agreements between the Parties with respect to the subject matter hereof, whether oral or written, express or implied, statutory or otherwise, except as specifically set out in this Agreement and the GP USA. |
| (b) | In the event of any actual, irreconcilable conflict that cannot be resolved between the provisions of this Agreement, on one hand, and any provisions in the GP USA, on the other hand, then such provisions contained in the GP USA shall prevail and the provisions of this Agreement will be deemed amended, only to the extent necessary to eliminate such irreconcilable conflict. |
| -64- |
| 18.5 | Strict Performance of Covenants |
The failure of any Party to seek redress for a violation, or to insist upon strict performance of any provision hereof, shall not prevent a subsequent act, which would have originally constituted a violation of such provision or any provision hereof, from having the effect of an original violation of such provision or any other provision hereof.
| 18.6 | Waiver |
A waiver of any default, breach or non-compliance under this Agreement is not effective unless it is in writing and signed by the Party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a Party in respect of any default, breach or non-compliance or by anything done or omitted to be done by that Party. The waiver by a Party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that Party's rights under this Agreement in respect of any continuing or subsequent default, breach or non-compliance, whether of the same or any other nature.
| 18.7 | No Liability for Consequential Damage or Loss of Profit |
Each Party acknowledges that contractual damages and other remedies will be available to the other Parties with respect to any breach of any provision of this Agreement. The Parties hereby agree that no Party shall be liable (whether in contract or in tort or under common law, including negligence, or otherwise howsoever and notwithstanding the provisions of any legislation in Canada) to any other Party for any indirect or consequential losses, including indirect or consequential losses which are loss of profit or revenue, loss of use, decline in earnings, decline in production, loss of contract or other business opportunity, loss of goodwill, or for any punitive, exemplary or special damages (including resulting from any breach of this Agreement and whether or not advised of any of the foregoing) which may be suffered by such other Party in connection with this Agreement; provided that, (a) this Section 18.7 shall not apply to claims relating to a breach of Article 17; and (b) this Section 18.7 shall not preclude a Party from entitlement to indemnification for such Party as a consequence of its liability to a Third Party for indirect, consequential, punitive, exemplary or special damages which such Third Party is entitled to recover from the relevant Party.
| 18.8 | Severability |
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
| 18.9 | Effective Time |
This Agreement is deemed effective as of the Effective Date.
| -65- |
| 18.10 | Time of Essence |
Time shall be of the essence of this Agreement in all respects.
| 18.11 | Further Assurances |
Each Party shall promptly do, execute and deliver or cause to be done, executed and delivered all further acts, documents and things in connection with this Agreement that any other Party may reasonably require for the purpose of giving effect to this Agreement.
| 18.12 | Successors |
This Agreement shall enure to the benefit of and be binding on the Parties and their respective successors and permitted assigns.
| 18.13 | Assignment |
No Party may assign, whether absolutely, by way of security or otherwise, all or any part of its rights or obligations under this Agreement without the prior consent of all of the other Parties or in accordance with this Agreement, except where such assignment is being made together with the Transfer of its LP Units in accordance with this Agreement.
| 18.14 | Remedies |
The Parties acknowledge and agree that all restrictions contained in this Agreement are reasonable and valid and that all defences to the strict enforcement of such restrictions are hereby waived, and that the rights, privileges, restrictions and conditions set forth in this Agreement are special and unique such that a breach of any such rights, privileges, restrictions or conditions may not be adequately compensated for by an award of damages. Accordingly, any Party shall be entitled to temporary and permanent injunctive relief and to an order for specific performance against every other Party that is in breach of this Agreement. Any remedy this Agreement sets forth or contemplates shall be in addition to and not in substitution for or dependent upon any other remedy.
| 18.15 | Withholding |
All payments that the General Partner is required to make under this Agreement to a Limited Partner shall be subject to withholding of taxes and other amounts as required by Applicable Law or regulation. In lieu of withholding such taxes and other amounts, in whole or in part, the General Partner may, in its sole discretion, accept other provision for payment of taxes and other amounts as required by law, provided it is satisfied that all requirements of law affecting its responsibilities to withhold such taxes and other amounts have been satisfied.
| 18.16 | Expenses |
Unless otherwise agreed by Specified Consent, each Party will pay its own legal and other costs and expenses incurred in connection with the negotiation and finalization of this Agreement.
| 18.17 | Subdivision, Consolidation, etc. of Units |
| -66- |
The provisions of this Agreement shall apply, together with the necessary conforming changes, to any securities into which the Units or any of the Units may be converted or changed, to any securities of the Partnership resulting from a reclassification, subdivision or consolidation of any Units, to any securities of the Partnership which are received by the Partners as a distribution or as a result of a split, consolidation, issuance, recapitalization or reclassification, and to any securities of the Partnership or of any successor body corporate which may be received by the Partners on an amalgamation, reorganization, arrangement, merger or combination of the Partnership.
| 18.18 | Unit Certificates |
| (a) | Unit Certificates shall be issued to the Limited Partners and the General Partner by the Partnership evidencing ownership of such Partner's Units (a "Unit Certificate"), and each Partner shall be entitled to a Unit Certificate upon request. |
| (b) | The Unit Certificates shall be in a form approved from time to time by the General Partner, provided that the General Partner shall cause each Unit Certificate to be endorsed with the following legend: |
The Partnership Units represented by this certificate are subject to the terms and provisions of that certain Amended and Restated Limited Partnership Agreement of HPDI Technology Limited Partnership dated February 2, 2024, as may be amended, restated, modified or superseded from time to time, and may not be transferred, pledged or encumbered except in compliance with the terms and conditions thereof.
| (c) | Every Unit Certificate must be signed by a director and/or officer of the General Partner or such other Representatives of the General Partner that may be authorized in accordance with the GP Articles or a resolution of the GP Board, and the validity of a Unit Certificate will not be affected by the circumstance that a Person whose signature is so reproduced is deceased or no longer holds the office which he or she held when the reproduction of his or her signature in that office was authorized. The signature of any director or authorized signing officer of the General Partner may be mechanically reproduced by electronic means and Unit Certificates bearing such electronic signature shall be binding upon the Partnership as if the Unit Certificate had been manually signed by such director or authorized signing officer. |
| (d) | Upon the dissolution of the Partnership and distribution of the assets to which such Limited Partner or General Partner is entitled hereunder, any Unit Certificate registered in the name of such Partner shall become null and void. |
| 18.19 | Restatement |
Effective as of the Effective Date, the Initial Partnership Agreement is:
| (a) | hereby amended and restated as set forth herein without in any way affecting the continuation of the Partnership or the Partnership Interests and other interests therein nor the rights or obligations of any Party that may have accrued as of the Effective Date pursuant to the provisions of such agreement prior to their amendment hereby; and |
| -67- |
| (b) | as so amended and restated, ratified and confirmed. |
| 18.20 | Currency |
For the purpose of converting amounts specified in one currency into another currency where required, the rate of exchange to be used shall be the rate published by the European Central Bank as at the close of business on the Business Day immediately prior to the date of conversion.
| 18.21 | Counterparts |
This Agreement may be executed by PDF and in two or more counterparts, including by electronic signature, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
[Signature page follows]
| -68- |
IN WITNESS WHEREOF the Parties have executed this Agreement on the Effective Date.
| 1463861 B.C. LTD., as the General Partner | ||
| Per: | ||
|
Name: [Redacted – personal information] Title: [Redacted – personal information]
| ||
| Per: | ||
|
Name: [Redacted – personal information] Title: [Redacted – personal information]
| ||
| WESTPORT FUEL SYSTEMS CANADA INC., as a Limited Partner | ||
|
|
||
| Per: | ||
|
Per: |
Name: [Redacted – personal information] Title: [Redacted – personal information]
| |
|
|
Name: Lance Follet Title: [Redacted – personal information]
| |
| VOLVO HPDI HOLDING INC., as a Limited Partner | ||
| Per: | ||
|
|
Name: [Redacted – personal information] Title: [Redacted – personal information]
| |
| Per: | ||
|
Name: [Redacted – personal information] Title: [Redacted – personal information] | ||
[Signature Page to LPA]
Schedule A
CAPITAL CONTRIBUTIONS AND UNITS
[Redacted – commercially sensitive information]
| A-1 |
Schedule B
Dispute REsolution
| 1. | If a Dispute arises between any of the Parties to this Agreement, then upon written notice of a Dispute by any of the Parties to the other Party(ies) involved in the Dispute ("Initial Dispute Notice"): |
| (a) | Escalation to Senior Representatives. If the Parties are unable to resolve the Dispute within 20 Business Days of receipt of the Initial Dispute Notice, the Dispute (together with any dispute under the GP USA related to the same or substantially similar subject matter ("GP Dispute"), and/or any dispute under the JVCo SHA or the JVCo Articles related to the same or substantially similar subject matter ("JVCo Dispute")) shall be referred to the chief executive officer of Westport Inc. and an executive vice president nominated by Volvo Canada ("Senior Representatives") by notice in writing (a "SR Escalation Notice"). The Dispute must first be submitted to the Senior Representatives in accordance with Appendix 1 to this Schedule B prior to exercising any of the other dispute resolution procedures set out in this Schedule B. |
| (b) | Additional Dispute Notice. Following escalation to the Senior Representatives in accordance with paragraph 1(a) and Appendix 1 to this Schedule B, if there remains an Outstanding Dispute (as such term is defined in paragraph 1.1(d)(ii)(B) of Appendix 1 to this Schedule B), then upon written notice from any of the Parties to the other Party(ies) involved in the Outstanding Dispute ("Additional Dispute Notice"), the Outstanding Dispute shall be resolved by Arbitration in accordance with paragraph 1(c). The Parties agree that any limitation period imposed by this Agreement or by Applicable Law in respect of a Dispute to which this Schedule B applies shall be tolled from the date of receipt of the Initial Dispute Notice until the issuance of the Additional Dispute Notice. |
| (c) | Arbitration. Any Outstanding Dispute in relation to which an Additional Dispute Notice has been served shall be referred to confidential, final and binding arbitration (the "Arbitration") pursuant to the rules of the International Chamber of Commerce (the "ICC"), as further set out in Appendix 2 to this Schedule B. The Outstanding Disputes that shall be settled by Arbitration include Outstanding Disputes related to the formation, existence, validity, interpretation, termination, performance or breach of this Agreement. |
| B-1 |
Appendix 1
TO Schedule B
ESCALATION TO SENIOR REPRESENTATIVES
| 1.1 | Escalation to Senior Representatives |
| (a) | Each Senior Representative shall have authority to resolve the Dispute that is the subject of the Initial Dispute Notice on behalf of the relevant Partner that nominated him/her. |
| (b) | The Senior Representatives shall use all reasonable endeavours in good faith to resolve the Dispute in conjunction with the resolution of any GP Dispute and/or JVCo Dispute in respect of: |
| (i) | a Dispute and/or GP Dispute and/or JVCo Dispute that relates the Business Plan, or any component thereof (including the Budget), prior to the commencement of the next Fiscal Year; or |
| (ii) | any other Dispute and/or GP Dispute and/or JVCo Dispute (including a Dispute in relation to an Emergency Funding Notice), within 20 Business Days of receipt of the SR Escalation Notice, |
(the "Escalation Period").
| (c) | If the Senior Representatives agree to a solution (in whole or in part) to the Dispute, they shall draft a statement setting forth the terms of such resolution which shall be signed by each Senior Representative for the purposes of identification and the Partners shall procure that such resolution is fully and promptly carried into effect. |
| (d) | To the extent that the Senior Representatives fail to reach agreement on resolution of a Dispute within the relevant Escalation Period: |
| (i) | to the extent that the Dispute relates to the calculation of FMV, Schedule C shall apply in respect of such Dispute; |
| (ii) | in respect of any other Dispute: |
| (A) | to the extent that the decision that is the subject of the Dispute relates to a matter for which Specified Board Approval or Specified Shareholder Approval is required, the decision shall not be taken; |
| (B) | to the extent that the Dispute relates to any other matter (an "Outstanding Dispute"), it will be resolved in accordance with paragraph 1(b) of Schedule B; and/or |
| (C) | the Partners shall be free to exercise any accrued rights, powers or remedies they may have in respect of such Dispute. |
| B-2 |
Appendix 2
TO Schedule B
ARBITRATION PROVISIONS
| 1.1 | Notice of Arbitration |
In the event of an Outstanding Dispute that is to be resolved pursuant to paragraph 1(c) of Schedule B, any Party involved in the Outstanding Dispute shall submit the Outstanding Dispute to be settled by Arbitration within five Business Days after delivery or receipt of the Additional Dispute Notice.
| 1.2 | All Arbitration Proceedings |
The following provisions shall apply to any Dispute that is referred to Arbitration.
| (a) | All Arbitrations shall be conducted under the then current rules of the International Chamber of Commerce (the "ICC Rules"). |
| (b) | The seat of Arbitration shall be Vancouver, British Columbia, but nothing in this Agreement precludes any of the proceedings from taking place electronically. |
| (c) | The language of the Arbitration shall be English. |
| (d) | Unless the Parties to the Dispute agree otherwise, three arbitrators will be appointed for the Arbitration (the "Arbitrators") in accordance with Article 12 of the ICC Rules. Volvo Canada and Westport Canada shall be entitled to appoint one Arbitrator each and those Arbitrators together shall jointly appoint a third Arbitrator of their choosing. |
| (e) | Without limiting a Party's right to challenge the appointment of an Arbitrator pursuant to the ICC Rules, a Party to the Dispute shall not be entitled to set-aside an award on the basis that an appointed Arbitrator did not have the requisite expertise in the relevant subject matter. |
| (f) | Except as may be required by Applicable Law, neither a Party to a Dispute nor its Representatives may disclose to any Third Party (other than the Arbitrators) any matter in connection with an Arbitration without the prior written consent of the other party to the Dispute. The Arbitrators shall also maintain the confidentiality of the Arbitration. |
| (g) | Any decision rendered by the Arbitrators shall be final and binding upon the Parties to the Dispute and not subject to appeal, and judgment may be entered upon it in accordance with Applicable Law in any court of competent jurisdiction. The Arbitrators shall not be entitled to award interest or indirect or consequential damages (including indirect or consequential losses that are loss of profits) except as reimbursement for any such amounts which are a consequence of a party's liability to a Third Party for indirect, consequential, punitive, exemplary or special damages which such Third Party has recovered or is entitled to recover from the relevant Party. |
| (h) | Any award that compels any of the Parties to the Dispute to pay an amount of money shall accrue interest at the daily rate [Redacted – commercially sensitive information] from the date of breach or violation of this Agreement, as determined by the award, until such award is fully paid. |
| B-3 |
| (i) | For the sake of efficiency and to avoid inconsistent findings, the Parties consent to the consolidation of two or more Arbitrations commenced under this Agreement or any other JV Agreement that relate to the same facts and issues. For this purpose, the Parties shall (and shall procure that their respective 100% Affiliates, as applicable, shall) procure, to the extent each of them is able, that the arbitral tribunal for any such Arbitration shall be composed of the same Arbitrators as the tribunal for any previous such Arbitration. In the event that this is not possible, the arbitral tribunal of the first such Arbitration shall adjudicate the consolidation of the relevant Arbitrations. |
| B-4 |
Schedule C
FMV PROCEDURE AND METHODOLOGY
[Redacted – commercially sensitive information]
C-1