Exhibit 10.1

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. Omitted Information is indicated by [***].

 

MASTER SERVICES AGREEMENT 2

[VEI0019-24]

 

This Master Services Agreement 2 (this “Agreement” or “MSA2”), dated as of September 02, 2025, to be effective since January 01, 2025 (the “Effective Date”), is by and between Embraer S.A, a joint-stock corporation (sociedade anônima) organized under the laws of the Federative Republic of Brazil having its principal place of business at Avenida Brigadeiro Faria Lima, 2170, in the City of São José dos Campos, State of São Paulo, Brazil (“Embraer”), and EVE UAM, LLC, a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 1400 General Aviation Dr, Melbourne, FL 32935 (“Eve”), (Eve together with Embraer, the “Parties”, and each a “Party”).

WHEREAS, Embraer is a global aerospace conglomerate, with headquarters in Brazil, that produces commercial, military, executive and agricultural aircraft and provides aeronautical services, and maintains industrial units, offices, service and parts distribution centers, among other activities, worldwide;

WHEREAS, Eve is engaged in the urban air mobility industry, and currently has plans to launch and commercialize advanced electric vertical take-off and landing vehicles, a global services and support network, and an air traffic management solution for urban air mobility;

WHEREAS, Embraer and Eve have entered into a Master Services Agreement dated as of December 14, 2021, together with its respective SOW1, SOW2 for the provision of certain products and services by Embraer to Eve relating to the development, certification and support of vehicle for urban air mobility ("Product Development & UAM Business Services MSA");

WHEREAS, Embraer and Eve have further agreed to enter into a new Master Services Agreement 2 ("MSA 2") with its applicable SOWs for the provision by Embraer to Eve of support services to develop an industrialization project, including processes and procedures for the production of a forecasted maximum production capacity of [***] eVTOLs per year in [***] , and plant operation of Eve’s facility in the city of Taubaté, state of São Paulo, Brazil ("ETT Manufacturing Site") and replication of ETT Manufacturing Site model to other sites; and 

WHEREAS, Embraer is willing to support Eve in the implementation of ETT Manufacturing Site and replication to other sites with the application of its know-how and best practices. 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Embraer and Eve agree as follows:

ARTICLE I 

defined terms

Section 1.1      Defined Terms. Capitalized terms used in this Agreement shall have the meanings set forth in this Agreement. In addition, for purposes of this Agreement, the following terms, when used in this Agreement, shall have the following meanings:

(a)     “Affiliate” or “Affiliates” means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, whether through one or more intermediaries or otherwise. The term “control” (including, with correlative meaning, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.  For purposes of this Agreement, Embraer and Eve shall be deemed not to be Affiliates of each other.

(b)      “Airworthiness Authority” means the ANAC - Agência Nacional de Aviação Civil (Brazil) which will issue the COP under which ETT Manufacturing Site will be certified to operate.

(c)      “ANAC” means Agência Nacional de Aviação Civil in Brazil, the brazilian civil aviation agency.

(d)      “Background IP” means the Intellectual Property: (a) owned or controlled by a Party prior to the Effective Date; (b) generated or acquired by a Party during the timeframe of performance of this Agreement but independently from the performance of this Agreement; or (c) Third Party Licensed IP. A Party`s Background IP includes, but is not limited to, all extensions, enhancements, improvements, or derivatives relating to or associated with any of that Party`s Background IP.

(e)     “Business Day” means any day of the year other than (i) any Saturday or Sunday or (ii) any other day on which banks located in the state of New York, United States or the cities of São Paulo or São José dos Campos, state of São Paulo, Brazil are closed for business.

(f)      “Code” means the U.S. Internal Revenue Code of 1986.

(g)    “COP” means “Certificado de Organização da Produção” or “Production Organization Approval”. The COP is a certificate granted by an airworthiness authority to a production organization confirming that the manufacturer has a production and quality system that meets regulatory and quality requirements. Additionally, the COP represents that the production processes are continuously monitored by the certified organization, ensuring that all manufactured products stay compliant with the applicable airworthiness standards.

(h)     “Data Protection Laws” mean any data protection or privacy Laws, whether currently in force or enacted during the Term.

(i)      “Embedded IP” means the Intellectual Property owned or controlled by a Party that is incorporated or embedded into the Foreground IP.

(j)      “Embraer’s Competitors” mean the Persons set forth in Exhibit 2 hereof and any Affiliates thereof, and any successors to any of the foregoing. For purposes of clarity, if any of the foregoing Persons acts directly or indirectly through an Affiliate of such Person, such Affiliate shall also be deemed an Embraer Competitor for such purpose.

(k)     “Embraer Party” means Embraer or an Affiliate of Embraer.

(l)     “Embraer’s Standard of Care” means Embraer’s performance of the Services in compliance with applicable Laws and in a timely, efficient, and workmanlike manner, at a relative level of service (in terms of both capacity and quality) with which such Services were performed in the ordinary course of business within the twelve month period prior to the effective date of this Agreement, but in any case with a degree of skill and level of care that is at least customary for such Service and with the same priority as similar services provided by such Providing Party to its own business and those of its Affiliates.

(m)     “ETT Manufacturing Site” means Eve’s manufacturing site for the EVE-100 aircraft assembly at the city of Taubaté – São Paulo - Brazil.

(n)     “Eve Party” means Eve or an Affiliate of Eve.

(o)     “EVE-100” means the first model of the eVTOL being developed under the "Product Development & UAM Business Services MSA

(p)     “eVTOL” means:

(i)      an aircraft with hybrid/electric propulsion with vertical take-off and landing capabilities, with maximum range of no more than 108 nautical miles (200 kilometers) and maximum capacity of no more than 9-seats; or

(ii)     an aircraft with hybrid/electric propulsion with vertical take-off and landing capabilities, with maximum range of no more than 108 nautical miles (200 kilometers) and maximum capacity of no more than 2,204 pounds (1,000 kilograms) of cargo.

(q)     “Factory Operation” means manufacturing, processing, assembling, warehousing, administration, distribution and transportation activities, including factory related areas support such as quality, manufacturing engineering, product engineering and others.

(r)     “Foreground IP” means the right, title and interest in and to the Intellectual Property first created, conceived, invented, authored, discovered, or otherwise developed as a result of the execution of this Agreement during its term, excluding any Background IP.

(s)     “Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court or tribunal.

(t)    “Governmental Authorizations” means any permit, consent, license, ratification, waiver, permission, variance, clearance, registration, qualification, approval or authorization issued, granted, given or otherwise made available by or under the lawful authority of any Governmental Authority or pursuant to any Law.

(u)     “Intellectual Property” means all intellectual property rights of any kind and nature throughout the world, including U.S. and foreign rights in the following: (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof; (ii) trademarks, logos, service marks, trade dress, trade names, slogans, internet domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing; (iii) copyrights and copyrightable subject matter, including such corresponding rights in software and other works of authorship; (iv) trade secrets and all other confidential and proprietary information, know-how, proprietary processes, formulae, models, and methodologies, and (v) all applications and registrations, and any renewals, extensions and reversions, for the foregoing.

(v)     “Law” means any statute, act, law, court order, constitution, treaty, ordinance, code, rule, regulation or Governmental Order, in each case, of any Governmental Authority, including common law. All references to “Law” shall be deemed to include any amendments thereto, and any successor Law, unless the context otherwise requires.

(w)     “Out-Of-Scope Business” means any of the following applications or uses whether or not in connection with the e-VTOL:  crop dusting, defense or security businesses.

(x)     “Person” means any individual, firm, corporation, partnership, limited partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or any political subdivision, agency or instrumentality or other entity of any kind.

(y)     "Personnel" of a Person means any agents, employees, contractors or subcontractors engaged or appointed by such Person.

(z)      “Program” means all activities related to the UAM Business of the Eve Parties.

(aa)    "Purchase Order" means a purchase order issued by an Eve Party to an Embraer Party in writing pursuant to a SOW for supply of Services.

(bb)   “Representatives” means a Person and its Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys and Third Party advisors.

(cc)    “Services” means the services set forth in a SOW in the context of this MSA2.

(dd)    “Services Taxes” means the Taxes imposed on the gross revenues derived from the provision of Services. For the sake of clarity, the definition of Service Taxes includes, in Brazil, the Imposto Sobre Serviços de Qualquer Natureza – ISS, the Contribuição para os Programas de Integração Social – PIS and the Contribuição para o Financiamento da Seguridade Social – COFINS, but does not include Taxes assessed or levied on income or net profits (such as, in Brazil, the Imposto sobre a Renda da Pessoa Jurídica – IRPJ and the Contribuição Social sobre o Lucro Líquido – CSLL). The Brazilian taxes herein mentioned may be replaced by any similar tax newly established and regulated by law due to the implementation of the Brazilian Tax Reform, starting on 1 January 2026.

(ee)    “SOW” means a Statement of Work as set forth and agreed to in writing from time to time during the Term by the Parties or their respective Affiliates, which Statements of Work shall, among other things, set forth (i) the Eve Party and Embraer Party thereto, (ii) the detailed scope of services to be performed, (iii) technical requirements, (iii) service levels, ordering process, delivery schedule, warranty (if applicable) and lead times, (iv) prices and fees, and (v) other requirements, responsibilities, terms and obligations related to the applicable products and Services under the SOW. The accepted SOWs as of the Effective Date are attached hereto as Exhibit 1, and additional SOWs (and amended SOWs) shall be deemed issued and accepted only if and when signed by the Embraer Relationship Manager and the Eve Relationship Manager or other authorized officer or employee of an Eve Party and Embraer Party, respectively.

(ff)    “Subcontractor” means any service provider, manufacturer or supplier, excluding Embraer or its Affiliates, which provides services, manufactures or supplies any portion or part of the Services, pursuant to the instructions or contract of Embraer or its Affiliates.

(gg)    “Subsidiary” means, with respect to a Person, a corporation or other entity of which more than 50% of the voting power of the equity securities or equity interests is owned, directly or indirectly, by such Person.  For purposes of this Agreement, Embraer and Eve shall be deemed not to be Subsidiaries of each other.

(hh)   “Tax” (including the term “Taxation”) means, without duplication, (i) taxes, charges, fees, contributions, social contributions, contributions on economic intervention imposts, levies or any other assessments imposed by any Tax Authority, including all income, profits, revenues, franchise, services, receipts, gross receipts, margin, capital, financial, net worth, sales, use, excise, recording, real estate, real estate transfer, escheat, unclaimed property, withholding, alternative minimum or add on, ad valorem, inventory, payroll, estimated, goods and services, employment, welfare, social security, disability, occupation, unemployment, general business, premium, real property, personal property, capital stock, stock transfer, stamp, transfer, documentary, conveyance, production, windfall profits, pension, duties, customs duties, contributions on import transactions, value added and other similar taxes, withholdings, duties, charges, fees, levies, imposts, license and registration fees, governmental charges and assessments, including related interest, penalties, fines, additions to tax and expenses levied by any Tax Authority, (ii) any liability for the payment of amounts described in clause (i) whether as a result of transferee liability, joint and several or secondary liability for being a member of an affiliated, consolidated, combined, unitary or other economic group (defined within the meaning of Section 1504(a) of the Code or any similar provision of foreign, state, provincial or local applicable Law), including under Section 1.1502-6 of the Treasury Regulations for any period, or payable by reason of contract assumption, operation of Law, or otherwise and (iii) any liability for the payment of amounts described in clause (i) or clause (ii)  as a result of any Tax sharing, Tax indemnity or Tax allocation agreement.

(ii)    “Tax Authority” means any national, federal, state, local, or municipal Governmental Authority exercising authority to charge, audit, regulate and/or administer the imposition of Taxes (including the Brazilian Federal Revenue Service (Secretaria da Receita Federal do Brasil) and the U.S. Internal Revenue Service).

(jj)    “Third Party” or “Third Parties” means any Person, other than an Embraer Party or an Eve Party.

(kk)    “Treasury Regulations” means the regulations promulgated under the Code by the United States Department of the Treasury (whether in final, proposed or temporary form), as the same may be amended from time to time.

(ll)    “UAM” means a system for air travel which includes an eVTOL vehicle and supports a mix of onboard/ground-piloted and autonomous operations.

(mm) “UAM Business” means all activities related to the design, development, certification, manufacturing, assembling, sales and after-sales support of the eVTOL and the UATM for the UAM market, in each case excluding the Out-Of-Scope Business.

(nn)    “UAM Business Services” means all UAM services and goods offered by Eve or its Affiliates to its customers and are typically offered in connection with the eVTOL operation, and/or any other UAM Business unrelated to the eVTOL. It may include spare parts, technical support, operational and technical publications, service bulletins, MRO and training, to ensure the safe and efficient operation of the eVTOL, or other services such as interior/exterior refurbishment, enhancements and modernizations. These services can be included either as part of the aircraft acquisition agreement, other independent agreements, or in the course of the schedule/unscheduled maintenance typically contracted directly from the MROs.

(oo)    “UATM” means the collection of systems and services (including organizations, airspace structures and procedures, environment and technologies) that support the integrated operation of UAM vehicles in low level airspace, which systems and services are directed to supporting UAM operations and enhance the performance of UAM and low-level airs travel.

 

Section 1.2      Construction.

(a)      As used in this Agreement, (a) each of the words “include,” “includes” or “including” shall be deemed to be followed by the phrase “without limitation”, and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (b) references to any specific Law in this Agreement shall be deemed to refer to such as amended from time to time and to any rules or regulations and interpretations promulgated thereunder; (c) words defined in the singular have the parallel meaning in the plural and vice versa; (d) references to “written” or “in writing” include in electronic form; (e) the terms “hereof,” “herein,” “hereby,” “hereto,” “hereinafter,” “hereunder” and derivative or similar words shall, unless otherwise stated, be construed to refer to this entire Agreement as a whole, including the Exhibits and Schedules hereto, and not merely to any particular provision of this Agreement; (f) references to articles, sections, clauses, exhibits and schedules are to the articles, sections and clauses of, and exhibits and schedules to, this Agreement, unless otherwise specified; (g) terms defined in the text of this Agreement as having a particular meaning have such meaning throughout this Agreement and when used in any certificate or other document made or delivered pursuant hereto, except as otherwise indicated in this Agreement or unless otherwise defined therein; and (h) all references to “days” in this Agreement shall mean calendar days unless otherwise specified; (i) words of any gender include each other gender; (x) the word “or” shall be disjunctive but not exclusive; (j) reference to any Person includes such Person’s successors and permitted assigns; (k) references to amounts of currency are references to United States Dollars unless otherwise indicated; and (l) all the agreements (including this Agreement), documents or instruments herein defined mean such agreements, documents or instruments as the same may from time to time be supplemented or amended or the terms thereof waived or modified to the extent permitted by, and in accordance with, the terms thereof.

(b)      Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day.

(c)      The Parties have participated jointly in negotiating and drafting this Agreement. If an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

 

ARTICLE II 

Section 2.1      General Purpose. This Agreement is a master agreement governing the relationship between Embraer, and Eve with respect to Services to be provided by Embraer Parties to Eve Parties whereby Eve will engage Embraer pursuant to SOWs hereunder to (1) support the development of an industrialization project for the manufacturing of EVE-100, including development of processes, procedures for the operation of the ETT Manufacturing Site; (2) support the establishment of product engineering processes and procedures required to ANAC COP certification of ETT Manufacturing Site.

Embraer shall, and shall cause the other Embraer Parties, to perform and provide the Services in accordance with Embraer’s Standard of Care.

Embraer shall use commercially reasonable efforts to remain competitive with respect to industry standard lead times, high quality standards and in cost, in comparison with other global suppliers of similar services and solutions at similar volumes, in each case under and pursuant to the provisions of this Agreement.

 

Section 2.2      SOWs.

(a) Entry into SOWs.  Subject and pursuant to this Agreement, Embraer shall provide or cause to be provided to Eve the Services set out in the SOWs.  Eve will be responsible for UAM Business and UAM Business Services, and any other Services, and will direct engage Embraer for the performance of, and delivery of working packages that will be detailed in the specific SOWs. All Services to be provided under this Agreement shall be set forth in a SOW. If the Services provided in a SOW have a term that is different from the Term of this MSA2, the term in the SOW shall prevail.  In the event that the Parties wish to modify, upgrade, or otherwise change a SOW (including any Services, or the quantity or amount of a particular Service, set forth in a SOW), the Parties shall enter into and execute a new SOW or an amendment to the applicable SOW or in any other form that the Parties may reasonably agree in writing.

(b) Cost Estimates for SOWs.  At the request of Eve prior to entering into a new SOW, Embraer shall provide Eve with a non-binding, good-faith general high-level estimate of the fees, costs and expenses for the provision of a requested Service under a SOW (including a general high-level estimate of hours, cost and duration).

Section 2.3      Acceptance of Services. 

In the event that a Service is not provided in accordance with the Embraer’s Standard of Care, Eve shall give Embraer prompt written notice thereof, with a reasonably detailed description of the failure or deficiency. Upon receipt of such notice, Embraer’s Party shall have a reasonable period of time, but in no event more than ninety (90) days, to cure such deficiency. If, after the expiration of such period, Embraer has failed to cure such deficient Service, Eve may require prompt re-performance (or performance, as the case may be) by Embraer of such deficient Service at Embraer’s expense.

Section 2.4      Provision of Services

(a)      If Embraer is in material breach of a SOW for not providing the Services under this Agreement in compliance with Embraer’s Standard of Care, and does not cure or reasonably mitigate such breach within ninety (90) days' written notice from Eve, Eve may engage another supplier or service provider for the Services subject to such SOW to which such material breach relates, for so long as Embraer does not cure or reasonably mitigate such breach.

(b)      Notwithstanding the foregoing, for the Services contemplated herein, in no event shall the Eve Parties procure, directly or indirectly, a Service from an Embraer Competitor without Embraer's prior written consent.

Section 2.5      Subcontracting

 

Embraer may subcontract one or more of its activities or obligations hereunder in Embraer’s reasonable discretion and in a manner consistent with the Embraer Parties' general practices, as applicable, provided, that Embraer shall (a) use the same degree of care in selecting any Subcontractors as it would if such Subcontractor was being retained to provide similar services or products to the Embraer Parties and (b) the Embraer Parties shall in all cases use reasonable best efforts to ensure that obligations with respect to the provision of services or products applicable to Embraer as set forth in this Agreement (including standards of care and services) are satisfied with respect to any activities provided by a Subcontractor (and, notwithstanding any other provision of this Agreement, Embraer shall not be deemed in breach of this Agreement with respect to Subcontractors if Embraer has used its reasonable best efforts to cause such Subcontractors to so comply). Upon Eve’s reasonable request, Embraer shall permit Eve to: (i) review any Subcontractor’s qualification report or information regarding Subcontractor’s experience, capabilities and performance, and (ii) reasonably audit a Subcontractor’s compliance herewith.  Embraer is responsible for the management of its Affiliates and Subcontractors hereunder, and subcontracting shall not relieve Embraer from its obligations under this Agreement.

Section 2.6      Eve's Facilitation of Services. 

(a)      Eve Provision of Information/Assistance.  Eve shall (i) provide any information and documentation necessary for Embraer to perform or supply, or cause to be performed or supplied, the Services, (ii) make available, as reasonably requested by Embraer, sufficient resources, timely decisions, approvals and acceptances so that Embraer may accomplish its obligations hereunder in a timely manner, and (iii) provide reasonable access to Embraer or its Personnel to premises, employees, contractors, systems and equipment as required to enable Embraer to provide the Services.

(b)      Eve Responsible for Approvals/Authorizations. the Services shall not include the obtaining of any permits, licenses, certifications and other Governmental Authorizations necessary or appropriate for operation by the Eve Parties of the UAM Business, which shall be Eve’s responsibility. Embraer will support Eve in making the necessary agreements with the Airworthiness Authority and governmental authorities in order to obtain any required authorization for Embraer's representatives to act on Eve’s behalf for the COP and other applications required for production implementation and operation, if requested by Eve. Embraer will also support Eve and Eve’s representatives in the RECOF application and approval process under Brazilian governmental authorities. 

(c)      Eve’s responsibility for Third Parties engagement and assets acquisition. Eve shall be responsible for obtaining Third Party services (such as IT consultancy companies, architectural design and executive project of industrial installations, production flow computational simulations, equipment specification, layout design and others) and for the acquisition of the assets required for the ETT Manufacturing Site implementation.  Embraer will support Eve in the specification of the items to be acquired, the services to be rendered, as well as in the selection process for the third-party suppliers/providers and acceptance tests as described in SOW A.

(d)      Eve’s responsible for ETT Manufacturing Site operation. Eve shall be responsible for any and all activities related to the plant operation such as engage or subcontract from Third Parties the employees, purchase all parts for vehicle assembly, manage the assembly line activities and afford all costs required for Factory Operation.

 

ARTICLE III 

Scope detailing and planning

Section 3.1      Services implementation phases. 

The Services will be provided considering 3 different phases: factory implementation, assisted operation and continuous improvement phases. The following picture represents the high-level timeframe of each phase.

  

[***]

 

Each of the phases will have a specific scope of work, activities work sharing, roles and responsibilities that will be detailed and assigned to each Party following the process described in Section 3.2 below. The high-level scope to be detailed in each of the phases of the MSA2 is described below:

a.      Implementation phase. During the execution of this phase it will be performed services related to the ETT Manufacturing Site implementation until the Eve’s first aircraft delivery, which includes specifically: infrastructure adequation and new buildings construction, machines purchase and installation, tooling purchase and installation, processes establishment, IT system implementation, manufacturing and related support areas procedures establishment, quality system implementation, facilities and utilities setup and pre-production support and Eve’s employees qualification plan with dedicated training material elaboration (hereinafter referred as “Implementation Phase”).

b.      Assisted operation phase. During the execution of this phase, it will be performed activities related to problem solving and implementation of any scope of Implementation Phase that was deferred to this period in agreement between the Parties, including production capacity ramp up to [***] vehicles per year. The duration of this phase will be [***] from Eve’s first aircraft delivery or the conclusion of production capacity increase activities up to [***] vehicles per year, whichever occurs later. This duration period shall in no event exceed [***] from Eve’s first aircraft delivery. (hereinafter referred as “Assisted Operation Phase”).

c.      Continuous improvement phase. After the conclusion of implementation phase (after Eve’s first aircraft delivery) Embraer will continue supporting Eve in the specific projects that will be agreed in order to implement improvements, modifications, new processes implementation and/or replication of ETT Manufacturing Site model to other sites. These specific projects will be agreed and detailed between the Parties as stablished in this MSA2. During this phase Embraer reserves the right to refuse any specific project at its sole discretion (hereinafter referred as “Continuous Improvement Phase”).

Section 3.2      Scope detailing and planning. 

Parties agree that the SOW A of this MSA2 presents certain typical deliverables and high-level roles and responsibilities to be accomplished in each of the Work Packages. Given that the milestones during the Industrialization Project will be dependent upon the Program evolution, the Parties will agree in advance, every year, on the specific Work Packages, milestones, requirements, inputs from each Party, workshare activities, deliverables, Parties’ responsibilities, high level estimated hours, and high-level estimated expenses and costs, as the Program evolves. The agreed terms for each Work Package phase shall be documented and formalized before the end of the first quarter of the year when the services will be provided, in the form of amendments to this MSA2 or in any other form that the Parties may reasonably agree in writing.

 

Before the end of third quarter of each calendar year, Eve must issue and send to Embraer in written the requested scope to be considered by Embraer for the following year to support Embraer planning and budgeting activities for the next year. The Parties will negotiate and agree with the final scope to be formalized as stated above until the end of the first quarter of the year when the services will be provided.

 

At any time during the Term, the Parties may, in its reasonable discretion, agree to review the work evolution, gaps, and adjust the plan as well the scope, as necessary, and at the end of each calendar year, both Parties will conduct an assessment to review the current status of the project and confirm the plan for the next calendar year. Eve holds the final decision to critical decisions about the Program and the Industrialization Project. Embraer will make recommendations based on Embraer’s standards and experience, to support Eve’s decisions. 

 

The Parties acknowledge and agree that: (a) the development of product industrialization in the aeronautical industry involve risks and uncertainties, many times requiring changes in the design, procedures, and other elements related to the Services delivered under this MSA2, with consequent need for re-works or activities repetition; and (b) minor deviations of different nature are considered normal in an industrialization project. In the course of the Services provided by Embraer under this MSA2, Eve shall be (c) responsible for the ETT Manufacturing Site operation as well as all the licenses and approvals required with governmental authorities and Airworthiness Authorities; and (d) subject to the terms and conditions of this MSA2, responsible for all costs in connection with the repetition, rework, re-creation, re-design, including repetition, re-work, or re-creation of processes, procedures, tests, design, reports, among others, except that any costs resulting from Embraer’s gross negligence or willful misconduct.

 

Section 3.3      Scope major change. 

In the event that Eve requests substantial and significant changes in the originally contracted scope, including but not limited to: new site location other than ETT Manufacturing Site, module capacity changes (steps different from [***] vehicles/month), new ERP system, and additional IT systems developed exclusively to Eve; Embraer reserves the right, at its sole discretion, to refuse the execution of the additional or modified services. Any changes to the scope must be previously discussed and formally approved in writing by the Parties in any of the services implementation phases described in section 3.1.

ARTICLE IV 

RELATIONSHIP MANAGERS

Section 4.1      Relationship Managers. For each SOW, the applicable Embraer Party and applicable Eve Party shall each appoint an individual to serve as that party’s primary representative under such SOW (each, a “Relationship Manager”).  Each Relationship Manager shall (a) be authorized to act for and on behalf of such party under the applicable SOW with respect to the day to day operation and performance under such SOW, and (b) be responsible for attempting to resolve Disputes concerning such SOW in accordance with the Dispute Resolution Procedures set forth in Section 14.3.  The initial Relationship Managers shall be identified in each SOW and may be replaced by notice in writing from the appointing party to the other party from time to time.

Section 4.2      Global Relationship Managers.  Embraer and Eve shall also each appoint an individual to serve as their primary representative for this entire Agreement (each, a “Global Relationship Manager”).  Each Global Relationship Manager shall (a) have overall responsibility for managing and coordinating the performance under this Agreement of the Party that appointed him or her, (b) be authorized to act for and on behalf of such Party under this Agreement with respect to the Services, and (c) be responsible for attempting to resolve Disputes concerning this Agreement and the provision of Services hereunder in accordance with the Dispute Resolution Procedures set forth in Section 14.3.  The initial Global Relationship Managers are identified in Exhibit 3 hereto and may be replaced by notice in writing from the appointing Party to the other Party from time to time. 

ARTICLE V 

FEES AND PAYMENT

Section 5.1      Fees and Expenses. Eve Party shall pay to Embraer all direct and indirect costs and expenses (including all sales, use, value added and similar Taxes) incurred by Embraer and its Affiliates in connection with providing the Services under this MSA2, plus such amounts as shall be determined in accordance with applicable transfer pricing regulations. Direct costs including direct labor costs and manufacturing costs related to the Services provided by Embraer or its Affiliates, and/or indirect costs including external consulting, visit to suppliers, technical meeting outside Embraer’s facilities, laboratories services, engineering and technical specialists subcontracting, as well as costs related to logistics (national & international) including exporting/importing, wrapping, packing, transportation, extraction from boxes or positioning/repositioning of any material, assets depreciation, insurances, will be invoiced by Embraer to Eve.

(a)      Payment of Fees/Expenses.  Eve Party shall pay the fees set out in the applicable SOW (the “Fees”), except for travel-related expenses connected to the object of this Agreement, and shall reimburse Embraer for all reasonable and documented out-of-pocket costs and expenses incurred by Embraer and its Representatives in connection with a SOW (“Expenses”), net of any Specified Taxes as defined in Section 5.3. Unless otherwise provided in an applicable SOW, Fees and Expenses will be payable on a quarterly basis within forty-five (45) days of receipt by Eve of an invoice from Embraer together with documentation supporting the Fees and Expenses set forth on such invoice. All payments and amounts due or paid under or in connection with this Agreement will be in United States Dollars or Brazilian reais, as agreed by the Parties. No payment shall be deemed to have occurred unless and until the amounts due are fully credited to Embraer in freely available United States Dollars or Brazilian reais, as applicable, in the bank or other account designated by Embraer. Disputes concerning any Fees or Expenses or related invoices shall be resolved in accordance with the dispute resolution procedures set forth in Section 14.3.

(i)      For the sake of clarity, travel-related expenses shall be reimbursed to Embraer without transfer pricing application and without the gross up for PIS/Cofins or any other tax due upon income recognition.

(b)     Calculation of Fees. Unless otherwise specified in an applicable SOW, all Fees shall be determined in accordance with applicable transfer pricing regulations. Embraer and its Representatives shall be responsible for, and shall not be entitled to reimbursement for, any costs attributable to an Embraer Party’s third-party advisors, including legal, tax and accounting, except if and to the extent reasonably necessary to provide Services and Products.

(c)      Calculation of Hourly/Daily Fees. Where Services are to be provided, and Fees therefor paid, on a daily or hourly basis, supply thereof shall: (i) be deemed to have commenced (a) on the first day that Services are provided, if Services are to be provided at the site that such Personnel regularly is employed (“Embraer Site”); (b) on the first day of such Personnel’s trip, if Services are to be provided at any place other than the Embraer Site; and (ii) be deemed completed (a) on the last day of Services, for Services provided at the Embraer Site, (b) upon the arrival of such Personnel at such individual’s place of residence or another destination not connected to the Services, or (c) if previously agreed, after the delivery of the documentation required as an output of the trip. Rates calculated on a per-day basis shall always apply in full, regardless of the period of the day in which the Services are commenced or completed. The invoicing of unfinished services that may be still being performed at the time of the monthly payment reconciliations shall be calculated based upon the actual hours and days accumulated within the thirty (30) days following the previous invoicing cut off time/day.

Section 5.2      Cost Efficiencies. Embraer shall use, where applicable and practicable, existing assets of the Embraer Parties to reduce the cycles of the Services to be provided, if applicable.  Eve and Embraer shall agree to develop or adopt new technologies designed to optimize cost of the Services. Eve, in consultation with Embraer, shall determine the locations for Services to be provided, and shall seek a no-cost or low-cost structure by maximizing incentives from Governmental Authorities, or a minimum-cost alternative utilizing the existing sites of the Parties and their respective Affiliates, taking into account economic and financial local opportunities and Eve´s business strategy.

Section 5.3      Taxes. Eve shall be responsible for all sales, use excise taxes, and Services Taxes and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by the Eve Parties hereunder (“Specified Taxes”); provided that, in no event shall Eve pay or be responsible for any Taxes imposed on, or regarding, Embraer’s or its Affiliates’ net income, net worth, personnel, or real or personal property or other assets (other than Services Taxes). The Parties shall use commercially reasonable efforts to cooperate with each other to reduce or eliminate Specified Taxes or Services Taxes in accordance with applicable Laws. Embraer shall include the Services Taxes on the invoices issued to Eve where reasonably possible in case such Taxes are collected in Brazil.

Section 5.4      Late Payments. Except for invoiced payments that Eve has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate per annum equal to the prime rate as published in the Wall Street Journal (or similar or successor publication thereto, if the Wall Street Journal is no longer being published) from time to time, measured as of the applicable due date, plus two percent (2%), and (b) the highest rate permissible under applicable Law, calculated daily and compounded monthly. Eve shall also reimburse Embraer for all reasonable and documented out-of-pocket costs incurred in collecting any late payments, including reasonable attorneys’ fees.

Section 5.5      Suspension. In addition to all other remedies available under this Agreement or at law, the Embraer Parties shall be entitled to suspend the provision of any Products or Services if an Eve Party fails to pay any amounts when due hereunder and such failure continues for forty-five (45) days following written notice thereof; provided that (a) during such forty-five (45) day period the Parties shall discuss in good faith any such dispute, and (b) the Embraer Parties shall promptly resume providing any such suspended Products or Services upon receipt of such payment.

Section 5.6      No Offset. Neither of the Parties nor their Affiliates payment obligations hereunder shall be subject to offset or reduction for any reason, including by reason of any alleged breach of any provision of this Agreement.

ARTICLE VI 

Intellectual property; confidentiality; publicity

Section 6.1      Intellectual Propert 

(a)      Background Intellectual Property.

(i)      Each Party remains the owner (or maintains its licensor rights, if the Background IP is licensed to the Party from a third party) of all of its Background IP. Each Party acknowledges that it has not been granted any rights, title or interests in the other Party’s Background IP under this Agreement, except as otherwise specifically provided herein.  

(b)      Foreground Intellectual Property.

(i)      Embraer shall and shall cause the applicable Embraer Parties to, and hereby does (on behalf of itself and each other Embraer Party), irrevocably assign, transfer, and convey (and without limiting the foregoing, agrees in the future to assign, transfer, convey, and deliver) to Eve all Foreground IP. For clarity, Foreground IP will be owned by Eve, subject to the terms and conditions established under this Agreement.

In order to implement all the rights established in item (b) (i) above, Embraer grants to Eve, in respect of any Embedded IP, a perpetual, irrevocable (except as otherwise specifically provided herein), non-exclusive, transferable, sublicensable, worldwide, royalty-free, fully paid-up license, as needed to exploit or otherwise use the Foreground IP.

(ii)      Subject to the terms and conditions of this Agreement, Embraer retains the rights and Eve hereby grants to Embraer an exclusive (solely outside of the UAM, the UAM Business (including, for the avoidance of doubt, any applications outside the UAM Business, or the UATM), perpetual, worldwide, irrevocable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use or practice (including, for clarity, to distribute, copy, make derivative works of, perform, display, or otherwise exploit) the Foreground IP (in each case, other than Trademarks) throughout the world for any and all purposes outside of the UAM, the UAM Business (including, for the avoidance of doubt, any applications outside the UAM Business), or the UATM (the “Retained Foreground IP”).

In order to implement all the rights established in item (b) (ii) above, Eve grants to Embraer, in respect of any Embedded IP, a perpetual, irrevocable (except as otherwise specifically provided herein), non-exclusive, transferable, worldwide, royalty-free, fully paid-up license, as needed to exploit or otherwise use the Foreground IP licensed to Embraer as part of this Agreement.

(c)      No Use by Eve Outside UAM. For the avoidance of doubt, (i) Eve acknowledges and agrees that it and its Affiliates must not use or license the Foreground IP outside of the UAM Business; and (ii) Embraer acknowledges and agrees that it and its Affiliates must not (except as provided for herein) use or license any Retained Foreground IP in the UAM, the UAM Business, or the UATM.

(d)      No use outside the scope. Eve must not use or practice any Embraer`s Embedded IP outside the scope of or otherwise not in compliance with the rights granted under this Agreement. Embraer must not use or practice any Eve`s Embedded IP outside the scope of or otherwise not in compliance with the rights granted under this Agreement.

(e)      Reservation of Rights. Except as expressly provided for herein, each of the Eve Parties and the Embraer Parties retain all rights, title, and interest in and to their respective Intellectual Property, and no such rights are assigned, licensed or otherwise granted, whether express or by implication, to the other Party or any Third Party.

Section 6.2      Confidentiality  

(a)      From time to time during the Term, either Party or its Representatives (as the “Disclosing Party”) may disclose or make available to the other Party or its Representatives (as the “Receiving Party”), non-public, proprietary, or confidential information of the Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that (i) Confidential Information does not include any information that: (A) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 6.2; (B) is or becomes available to the Receiving Party on a non-confidential basis from a Third-Party source (other than a Representative of a Party); provided, that such Third Party is not and was not prohibited from disclosing such Confidential Information; (C) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure under or in connection with this Agreement or its subject matter; or (D) was or is independently developed by the Receiving Party without using or referencing any of the Disclosing Party’s Confidential Information, and (ii) notwithstanding the foregoing (C) and (D), (x) the Confidential Information of Eve (as the Disclosing Party) shall in any event include (and be deemed to include) any and all non-public, proprietary, or confidential information included in the UAM Business Foreground IP, and (y) the Confidential Information of Embraer (as the Disclosing Party) shall in any event include (and be deemed to include) any and all non-public, proprietary, or confidential information included in the Licensed Parent IP (in each case, regardless of whether such information was in the possession of the other Party or its Affiliates prior to disclosure).

(b)      The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own similar confidential information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any Person, except to Persons who reasonably need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement (including in connection with a Eve Party or Embraer Party obtaining any permits or governmental authorizations for the purposes of the UAM Business). Without limiting the foregoing, and except in connection with the performance by the Embraer Parties hereunder, from and after the Effective Date, Embraer shall not (and shall cause its Affiliates not to) use, for any purpose in, or in direct competition with, the UAM Business, any Trade Secrets included in the Foreground IP without the prior written consent of Eve, which consent shall not be unreasonably withheld, conditioned or delayed.

(c)      If the Receiving Party is required by applicable Law to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy (and the Receiving Party shall reasonably cooperate with the Disclosing Party in connection therewith).

(d)      Embraer Data: To the extent required for the execution of specific activities set out  in a SOW or to the extent required by an Airworthiness Authority, including, but not limited to, the ANAC’s RBAC Nº 21 “Regulamento Brasileiro da Aviação Civil”, (A) a Subsidiary of Eve as mutually agreed to by the Parties in writing, may be granted instantaneous, limited, and controlled access to certain data of Embraer for such purpose (“Embraer Data”); provided, that written agreements permitting such access are executed by the applicable Embraer Parties and Eve Parties (including Database Limited Access Agreements and Individual Confidentiality Agreements as required by Embraer); provided, further, that, for clarity, to the extent permitted by the applicable Airworthiness Authority, Embraer may submit such Embraer Data to the relevant Airworthiness Authority directly and (B) a Subsidiary of Embraer as mutually agreed to by the Parties in writing, may be granted instantaneous, limited, and controlled access to certain data of Eve for such purpose (“Eve Data”); provided, that written agreements permitting such access are executed by the applicable Embraer Parties and Eve Parties (including Database Limited Access Agreements and Individual Confidentiality Agreements as required by Eve).

(i)      Without limiting the rights granted in Sections 6.1(a) or (b), (A) Eve acknowledges and agrees that (1) as between the Parties, all Embraer Data is proprietary to the Embraer Parties and (2) access to Embraer Data shall not, in and of itself, be considered a license or an assignment of proprietary rights of any kind to the Eve Parties or any other Person; and (B) Embraer acknowledges and agrees that (1) as between the Parties, all Eve Data is proprietary to the Eve Parties and (2) access to Eve Data shall not, in and of itself, be considered a license or an assignment of proprietary rights of any kind to the Embraer Parties or any other Person.

(ii)      Third Parties. In the event that, during the provision of the Services, Eve engages a Third Party to provide any services or products as permitted hereunder, and such Third Party is required to have access to Embraer’s Data, Eve shall request prior written authorization from Embraer, which authorization shall not be unreasonably withheld, conditioned or delayed, and any such access shall be subject to Embraer’s standard confidentiality and access requirements for data of a similar nature (the “Third-Party Access Requirements”).

Section 6.3Section 6.3      Publicity . Except as otherwise expressly provided herein, during the Term, (a) the Parties shall consult in advance with each other before issuing any press release or otherwise making any public disclosure or public statements expressly and specifically with respect to this Agreement; and (b) no such press release, public disclosure or public statement shall be made unless mutually agreed upon by the Parties or required by applicable Law or applicable stock exchange regulation.

ARTICLE VII 

INDUSTRIALIZATION SERVICES EXCLUSIVITY 

Section 7.1      Embraer Industrialization Services Exclusivity.

(a)    Eve must engage Embraer in the terms of this MSA2 for any and all projects and initiatives related to the scope of this agreement including any and all improvements, modifications, new processes development and /or replication of ETT Manufacturing Site model to other sites. This exclusivity rights are applied both for internal projects and initiatives or the ones that requires Third Parties involvement. Eve shall not engage with any third party for such matters without Embraer’s formal refusal to provide such service.

(b)      Eve agrees to engage Embraer in any matters that are directly or indirectly related to the scope previously handled by Embraer. Eve shall not engage with any third party for such matters without Embraer’s formal refusal to provide such service.

(c)      Embraer and Eve will agree and formalize in a SOW the detailed milestones, requirements, inputs from each Party, workshare activities, deliverables, Parties’ responsibilities, estimated hours, and estimated expenses and costs for all the improvements, modifications and new processes to be executed during the execution of this agreement as stated in Section 3.2. The Parties agree to jointly assess and define the most effective models for projects and initiatives resources allocation, planning, work-sharing, and third-party contracting, with the objective of defining the best solution that fulfills interests of both companies, including but not limited in terms of costs and timing. Such evaluations shall be conducted in good faith during scope detailing and planning activities that will be performed yearly as established in Section 3.2 of this MSA2.

(d)     In case Embraer, at its sole discretion, agrees to engage with Eve in projects and initiatives related to the scope of this agreement, the Parties agree that any and all Intellectual Property developed internally or with Third Parties involvement will be subjected to the terms established in Article VI herein.

ARTICLE VIII 

COMPLIANCE WITH LAW

Section 8.1      Legal Compliance.

(a)      Compliance with Laws. Each Party shall comply with all Laws applicable to its activities and performance under and in connection with this Agreement. Without limiting the generality of the foregoing, each Party represents and warrants to the other Party hereto that, in connection with this Agreement (including the negotiation, execution, or performance thereof), it will not violate and, to the best of its knowledge, it has not violated applicable “ABC Legislation”. "ABC Legislation" means (a) the United Nations Convention against Corruption (being the subject of General Resolution 58/4); (b) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; (c) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (d) the UK Bribery Act 2010, as amended; and (e) any applicable anti-money laundering laws and regulations with respect to a Party, and any legislation enacted in the country in which that Party is incorporated or where it will conduct activities related to this Agreement addressing anti-corruption, e.g. the Brazilian Clean Company Act.

(b)      Anti-Corruption. Each Party further represents and warrants that it has not offered, paid, promised to pay, or authorized, requested or received the payment of money or anything of value to any director, officer, employee or agent of the other Party (“Party-Associated Persons”), or any other Person in violation of applicable ABC Legislation, in connection with this Agreement. Each Party also represents that it did not, and will not, attempt to exert any undue influence over any Party-Associated Person, or any other Person in violation of applicable ABC Legislation, in connection with this Agreement. Each Party undertakes and covenants to refrain from offering, paying, promising to pay, or authorizing the payment of money or anything of value to any Party-Associated Person, or any other Person in violation of applicable ABC Legislation, at any time, whether or not in relation to this Agreement.

(c)      Trade Control.  Each Party shall comply with all applicable export, import, and sanction Laws, as they may be amended from time to time, of the government of the United States and any other applicable Governmental Authority (“Trade Control Laws”) in which Embraer and Eve and their respective Affiliates conduct business pursuant to this Agreement.  Each Party shall maintain in effect policies and procedures designed to ensure its respective compliance with all applicable export, import, and sanctions Laws. If a Party engages in the export or import of a controlled item in connection with this Agreement, it shall obtain all export and import authorizations that are required under the applicable Trade Control Laws.  At the reasonable request of a Party, the other Party shall provide reasonable efforts, including providing necessary documentation including import certificates, end-user certificates, and retransfer certificates, at its own expense to support the requesting Party in obtaining all necessary export and import authorizations and responding to any Governmental Authority inquiry or request for information, in each case required for the Parties to perform their obligations under this Agreement. Such documentation shall be provided to the other Party or an applicable requesting Governmental Authority in a reasonable time.

Section 8.2      Data Privacy and Cybersecurity. Each Party shall comply and shall ensure that its Personnel and other Representatives comply with, the provisions of any Data Protection Laws applicable to their conduct under or in connection with this Agreement. To the extent required under applicable Data Protection Laws with respect to the transfer of personal data, the Parties shall enter into (or to the extent required by such Data Protection Laws, cause their respective Affiliates to enter into) such other agreements as may be required by the applicable Data Protection Laws. Each Party shall implement adequate policies and commercially reasonable security measures regarding the integrity and availability of the information technology and software applications owned, operated, or outsourced by that Party, and the data and Intellectual Property thereon. In case one Party or its Affiliates experiences any of the following events, it shall, as soon as such Party is aware, use reasonable efforts to notify the other Party within thirty six (36) hours of: a confirmed data breach involving the unauthorized access to or accidental or illicit destruction, loss, change, communication, or dissemination of information related to an identified or identifiable natural person provided by the other Party or its Affiliates or Intellectual Property; or any order issued by a judicial or administrative authority regarding data exchanged between the Parties under this Agreement. Each Party shall use reasonable efforts to notify the other Party within thirty-six (36) hours of receiving: data subject requests related to an identified or identifiable natural person provided by the other Party or its Affiliates, such as access, rectification and deletion requests; and any complaint regarding the processing of data related to an identified or identifiable natural person provided by the other Party or its Affiliates, including allegations that the processing operations violate data subject rights.