Products Procurement Agreement between the Company and SK On Co., Ltd

Exhibit 10.1

Portions of this document have been redacted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed. Redacted portions are indicated with the notation “[***]”.

PRODUCTS PROCUREMENT AGREEMENT

This Products Procurement Agreement (“Agreement”) for the sale of Products, as defined in Section 4 below, between the Seller and the Buyer, as identified in Section 2 below, shall become effective on the Effective Date, as identified in Section 3 below.

The Seller and the Buyer agree that the sale of the Product (as defined in Section 4 below) in the quality, at the quantity, and for the prices (as addressed in Section 5 below) satisfy the requirements found in Section 4 of that certain Joint Development Agreement (“JDA”) executed by the Seller and the Buyer on 14 November 2022, and the Seller and the Buyer also agree that this Agreement is the “Products Procurement Agreement” reference therein. The Seller and Buyer further agree that the JDA shall continue in effect.

Seller and Buyer (each a party and together the Parties) are identified as follows:

Buyer and Seller are executing and delivering this Agreement as of the later of the date of their signatures set forth on the signature page hereto (the “Signing Date”) but acknowledge and agree that the effective date of this Agreement (“Effective Date”) shall be [***]. Notwithstanding the foregoing, this Agreement shall only take in effect when: (i) Seller completes Phase 1 before eighteen (18) months prior to the Effective Date (“Longstop Date”) and; (ii) Buyer executes and signs a certain nomination or supply agreement with a third party purchaser that is potentially expected to use the Product (“Third-party OEM Purchaser”) herein before the Effective Date and provides written notification of such event to Seller (the “Notice”).

This Agreement shall commence on the Effective Date and shall continue until [***] (the “Term”), unless terminated earlier by mutual written agreement of the parties. Parties may extend the term when the initial Term is expired by mutual written agreement.

Seller shall complete the Kellyton Plant by Longstop Date and shall provide written evidence of such completion to the Buyer. In the event that Kellyton Plant is not completed by the Longstop Date for any reason, the Buyer’s obligation set forth in this Agreement shall not be applicable. For the avoidance of doubt, the completion the Seller’s Kellyton advance graphite processing plant located in Kellyton, Alabama (the “Kellyton Plant”) occurs when the Kellyton Plant becomes capable of producing sufficient volume of Product agreed in Schedule 2 below (“Phase 1”).

The following amounts of CSPG-10 natural graphite anode products (“Product”) to be sold under the Agreement shall comply with the specifications attached as Schedule 1 (the “Specifications”) and shall be delivered in accordance with the terms and conditions set forth hereunder this section.

As of December 11, 2023, Seller’s expected available CSPG-10 capacity is as follows.

Capacity is subject to change in the event that Seller executes an off-take agreement with another company prior to completing and signing final Agreement with Buyer.

* Price NTE (not to exceed)

The Seller warrants that the Product shall be in accordance with the Specifications set out in Schedule 1. The Seller and Buyer agree that the Specifications contained in Schedule 1 can be changed once the Buyer identifies the specific cell program for which the Product will be used. If the eventual Specification required by the Buyer materially differs from the Specification shown in Schedule 1, and there is an associated change in cost in the future, the parties agree to negotiate in good faith to determine a new price. Notwithstanding the foregoing, at the Buyer’s sole discretion, if the Product fails to conform the Specifications, the Buyer’s obligation to buy up to the required minimum volume set forth herein is not applicable and Buyer may suspend its purchase until Supplier cures the non-conformity with respect to the Specification. For the avoidance of doubt, if the Product fails to pass the Buyer’s internal assessment process for the conformity of Product, the Buyer may terminate this Agreement with non-conformity notice.

The foregoing warranty by the Seller extends only to the Buyer and is in lieu of and excludes all other warranties not expressly stated in this Agreement, whether express or implied by operation of law or otherwise, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.

Each party shall not be liable to the other party nor be found in breach or default of its obligations under the Agreement to the extent each party’s performance of such obligations is delayed, hindered or prevented, in whole or in part, directly or indirectly, due to causes beyond its reasonable control, whether foreseeable or unforeseeable, such as: acts of God; actions taken by a governmental authority (whether valid or invalid); embargoes; fires; floods, earthquakes, explosions; natural disasters; riots; wars; sabotage; or court injunction or order. Upon occurrence of a force majeure or other excusable delay, each party’s performance or delivery date shall be extended for a period equal to the duration of the force majeure or time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If the delay is due to any acts or omissions of Buyer, Seller shall be entitled to both an equitable performance and price adjustment. If the delay is due to any acts or omissions of Seller, Buyer shall be entitled to both an equitable performance and price adjustment.

The Price set forth in Section 5 above are DDP (Delivered Duty Paid) Incoterms to the Buyer’s plant in Georgia, JV plant in Kentucky, or JV Plant in Tennessee which will be designated in each order by Buyer. In case of other destinations other than three above locations, Parties shall discuss in good faith the costs related to the shipping again. The Seller is responsible for any and all transportation and insurance costs, taxes, fees, duties, and levies, however designated or imposed, which are incurred by Seller to sell the Products DDP.

Buyer shall make payment to the Seller for the Product in the amount invoiced by telegraphic transfer net 60 days after BOL date against a copy of the scanned shipping documents.

Seller to arrange and pay for insurance against loss of the Product during shipment per DDP (Delivered Duty Paid) Incoterms.

If requested on or before [***], the Buyer can elect to move the contract forward to a start date of [***] as addressed in Section 4(a)(ii), and this Agreement shall continue in effect.

Buyer acknowledges that Seller and its affiliates are the owners or licensors of brands, trademarks, designs, patents, copyrights and other intellectual property related to Seller’s Products, and that no right or license is conveyed by Seller to Buyer to manufacture, have manufactured, modify, impact or copy such Products.

Seller agrees to indemnify, defend and hold harmless Buyer and its related parent, subsidiary and affiliate companies, and each of their respective directors, officers and employees, from and against any and all claims, losses, damages, costs and expenses (including reasonable attorney’s fees) that may be suffered or incurred by any of them as a result of any claim, demand, suit, proceeding or cause of action arising in any manner from (i) the insolvency, bankruptcy or any other similar proceedings in any jurisdiction of the Seller, (ii) the use of the Products provided by Seller to Buyer, or (iii) breach or failure of express or implied warranty, breach of this Agreement, misrepresentation, negligence, strict liability in tort, or otherwise.

In no event shall the aggregate liability of Seller in any action or proceeding exceed the higher amount between the [***]% of the total amount actually paid to Seller during the certain period agreed between the parties and $[***] USD. For clarity, the aggregate liability of Seller in any action or proceeding shall not exceed $[***] USD in any case.

In case of Buyer, in no event shall the aggregate liability of Buyer in any action or proceeding exceed [***].

This Agreement shall be governed by and construed according to the laws of Singapore. Any dispute between the parties relative to this Agreement shall be resolved by arbitration in Singapore in English in accordance with the Arbitration Rules of the Singapore International Arbitration Center. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and any transaction between the parties related thereto, and it is hereby expressly disclaimed by the parties.

Executed as an AGREEMENT:

SCHEDULE 1 – SPECIFICATIONS

SCHEDULE 2 – SK ON VOLUME FORECAST