POLY SILICON SUPPLY AGREEMENT
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CONFIDENTIAL
TREATMENT REQUESTED
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CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
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POLY
SILICON SUPPLY AGREEMENT
Jupiter
CORPORATION LTD, a Hong Kong corporation with its principal place of business at
Xx 0000-0 00X, Xxx Xxxxxxx House, 00-000 Xxxx Xxx Xxxxxx, Xxxxxxx, Xxxx Xxxx
(“Jupiter”), and SunPower Corporation, a United States corporation with its
principal place of business at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx
00000 (“SunPower”) hereby enter into this Long-Term Supply Agreement (the
“Agreement”) effective as of the date of SunPower’s execution of this Agreement
(the “Effective Date”).
WHEREAS,
SunPower desires to purchase and Jupiter agrees to sell Products (herein
defined) pursuant to the terms and conditions of this Agreement.
NOW,
THEREFORE, the parties agree as follows:
1. Products. As
used in this Agreement, “Product” or “Products” shall mean the polycrystalline
silicon manufactured by Jupiter. The specifications for the Product
will be mutually agreed by the parties from time to time (the “Jupiter Product
Specifications”).
2. Price and
Quantity; Purchase Orders.
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(a)
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Price
and Quantity. For
the time period January 1, 2010 through December 31, 2016, Jupiter agrees
to sell SunPower Products pursuant to the terms and conditions of this
Agreement. The price and quantity of Products to be sold to
SunPower is as set forth in Exhibit
A. Unit prices for shipment of Product are FCA Jupiter,
China (Incoterms 2000). Subject only to the price adjustments
set forth in Section 3, these prices are fixed for the term of this
Agreement. SunPower may require an audit of Jupiter’s
supporting documentation validating the price adjustments permitted under
Exhibit
B. Any such audit shall be conducted by a qualified
independent third party who shall be granted access, under a
confidentiality agreement, to all relevant documentation it reasonably
requests for such verification. Any such audit shall be paid
for by SunPower.
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(b)
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SunPower
Purchase Discretion. Notwithstanding anything to the
contrary in this Agreement, SunPower assumes no obligation to purchase any
Products under this Agreement unless and until SunPower has confirmed, in
its sole and absolute discretion, that the Products meet both SunPower’s
then current quality standards for the Products (including but not limited
to satisfying “N” type ingot manufacturing requirements), and that the
Products meet the technical specification criteria agreed to by
SunPower. SunPower may modify its quality standards from time
to time in its sole and absolute discretion, and may apply such revised
standards to any future purchases of Products
hereunder.
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(c)
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Purchase
Orders. The parties acknowledge their standard practice
in which SunPower, after establishing that the Products have met its then
applicable quality standards and the technical specification criteria
agreed to by SunPower, may periodically issue purchase orders, and
occasionally change orders thereto, for Products requesting specified
quantities, delivery dates and delivery
locations.
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(d)
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Right
of First Refusal. In
the event Jupiter makes commercially available any quantifies of Products
in addition to the quantities described on Exhibit A for the
periods specified, Jupiter shall provide written notice to SunPower of
such availability and the price applicable thereto prior to offering such
Products to third parties. SunPower shall have fourteen (14)
days to notify Jupiter in writing of its decision whether to accept the
offer for all or a portion of such additional
Products.
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3. Price
Adjustments. Jupiter may adjust prices on an annual
basis to account for changes in Jupiter’s cost structure relative to the
manufacture of the Products, including changes relating to electricity, raw
materials and the Employment Cost Index. On January 1 of each year
beginning with January 1, 2011, prices may be increased pursuant to the
mechanism set forth in Exhibit
B.
4. Firm
Commitment Agreement. This Agreement is a firm commitment
agreement such that SunPower is required to pay for the contracted volume of
Products per year over a 7-year period at the prices set forth in Exhibit A, subject to the
adjustments described in Section 4 above; provided, however, that
notwithstanding the foregoing SunPower shall in no event be required to purchase
Products which have not been determined by SunPower to satisfy its quality
standards or the agreed technical specifications pursuant to Section
2(b). Subject to the foregoing, in the event that SunPower fails to
order and take delivery of its contracted volume in a given year, Jupiter shall
invoice SunPower for the differential at full contract price and SunPower will
pay the same within 30 days of invoice date. SunPower specifically
acknowledges and accepts that it will be liable for the full purchase price of
volume differential between the quantity ordered and the contracted volume with
respect to Products which SunPower has determined satisfy its quality standards
and the agreed technical specifications pursuant to Section 2(b).
In the
event that Jupiter fails to deliver Products pursuant to Section 2(a), and such
failure is not triggered by a Force Majeure Event or delay in the completion of
the NEW Manufacturing Facility described in Section 8, SunPower has the right to
purchase the relevant quantity of substitute polysilicon from any third party
provider and Jupiter shall immediately reimburse SunPower for the price
difference, if any, between the price applicable to the Products Jupiter failed
to deliver and the price SunPower has paid the said third party
provider.
5. Payment. Payment
terms are 6 months in advance of scheduled product shipment for shipments during
2010 and 2011, and net 30 days following the date of the invoice issued upon
shipment from 2012. Finance charges of ***% per month (***% per
annum) may be assessed on payment past due from the payment due date to the date
payment is received. Failure to pay invoices when due or finance
charges when assessed may result in delayed or cancelled
shipments. No unauthorized deductions from invoices are
permitted.
6. Title and
Risk of Loss; Packaging; Late Delivery Charges.
(a) Title; Risk of
Loss. SunPower shall purchase the Products from Jupiter FCA
Jupiter (Incoterms 2000) with title and risk of loss with respect to all
Products passing to SunPower when the goods have been delivered to the carrier
at Jupiter, China.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
(b) Packaging.
Jupiter shall bear all costs associated with packaging or storing the Products
until delivery to SunPower pursuant to the delivery terms specified in Section
6(a). All Products shall be packaged, marked, and otherwise prepared in
accordance with good commercial practices to reduce the risk of damage and to be
packaged in the smallest commercially acceptable form in order to enable
SunPower to obtain the lowest shipping rates possible (based on volume metric
dimensions) and in accordance with all applicable federal, state and local
packaging and transportation laws and regulations. An itemized packing list
shall accompany each shipment. Jupiter shall establish reasonable
control routines in order to ensure punctual delivery of the Products at the
agreed time and without any defects or non-conformities. A delivery
certificate shall be issued by Jupiter to SunPower for each shipment of
Products. A shipment notice shall be submitted from Jupiter to
SunPower by telefax or other means of communications, at the latest on the
shipment date, including:
(i) Purchase
Order No.
(ii) Brief
description of Products
(iii) Invoice
amount
(iv) Number
of packages
(v) Gross
weight (total) kilos
(vi) Packing
list describing in detail the content of each package
(c) Late Delivery
Charges. If Products are not delivered within six (6) weeks
following the requested delivery date, Jupiter will pay SunPower liquidated
damages at a rate of *** percent (***%) of the gross purchase price
applicable to such
shipment per week thereafter, up to a maximum of *** percent (***%). The
foregoing liquidated damages address late delivery shipments only and are
independent of Jupiter’s liability (if any), and SunPower’s corresponding
ability to recover damages, for Jupiter’s failure to deliver its commitments
pursuant to this Agreement (including pursuant to Section 4).
7. Term. The
term of this Agreement shall be from the Effective Date through December 31,
2016 (the “Initial Term”). The Agreement may not be terminated during
the Initial Term, except as expressly set forth in Section 10. Following the
Initial Term Jupiter and SunPower may renew for the Agreement
upon mutual agreement.
8. NEW
Manufacturing
Facility. SunPower acknowledges that Jupiter will be building its
manufacturing facilities (the “NEW Manufacturing Facility”) in order to produce
the Products to be supplied under this Agreement. SunPower acknowledges the
possibility of delays in completing the manufacturing facility and expressly
agrees that Jupiter SHALL HAVE NO LIABILITY TO SUNPOWER FOR ANY SUCH DELAY
(without limiting SunPower’s ability to terminate this Agreement for such delay
to the extent permitted by Section 9(a)).
Jupiter
agrees that the NEW Manufacturing Facility shall be subject to bi-annual
inspections by SunPower. Said inspections shall be subject to
Jupiter’s confidentiality and security policies for site visits. Any fees and
costs associated with such inspection shall be borne by SunPower.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
9. Termination. The
basis and circumstances under which the parties can terminate this Agreement
prior to the expiration of the Initial Term of this Agreement is expressly
limited to the terms of this Section 9.
(a) Termination by
SunPower. SunPower may, at its option, terminate this
Agreement only upon the occurrence of all of the following
events: (i)(1) once production of Products has commenced at the NEW
Manufacturing Facility, a failure by Jupiter to deliver the
contracted amount of Products properly ordered by SunPower, (2) other material
breach of this Agreement by Jupiter, or (3) Jupiter’s failure to
complete the NEW Manufacturing Facility by July 1, 2010 (provided that
SunPower’s sole remedy for such failure shall be the right to terminate this
Agreement without further liability or obligation on the part of either party),
(ii) service of written notice of such failure to Jupiter, and (iii)
a failure by Jupiter to cure such delivery deficiency or material
breach (in the case of subclause (1) and (2) above) within ninety (90) days of
receipt of the written notice of such event. If Jupiter rectifies any
such failure of delivery or material breach within such period (in the case of
subclause (1) and (2) above), then Jupiter’s deficiency of
performance shall be deemed cured and SunPower shall not be entitled to
terminate this Agreement. In the event of a termination pursuant to
subclause (a)(i)(1) or (2) above, in addition to any other damages that can be
established by SunPower, Jupiter shall be liable to SunPower for the
cost of substitute polysilicon pursuant to Section 4 for the full quantity of
Products set forth on Exhibit
A and not delivered by Jupiter as of the date of
termination.
(b) Termination by
Jupiter. Jupiter may, at its option, terminate this
Agreement only upon the occurrence of all of the following
events: (i) in the event of a failure to pay or other material breach
of this Agreement by SunPower, (ii) service of written notice of such failure to
SunPower, and (iii) a failure by SunPower to cure such breach within ninety (90)
days after receipt of written notice of such breach. If SunPower
rectifies any such payment failure or material breach within such period, then
SunPower’s deficiency of performance shall be deemed cured and SunPower shall
not be entitled to terminate this Agreement. In the event of a
termination due to SunPower’s breach, in addition to any other damages that can
be established by Jupiter, SunPower shall be liable to Jupiter for
the purchase price of Products which SunPower has previously determined satisfy
its quality standards and the agreed technical specifications pursuant to
Section 2(b).
10. Confidentiality. The
parties acknowledge and agree that the terms of this Agreement and certain
information exchanged between them pertaining to this Agreement, including
information regarding research, technology, product developments, marketing
plans or conditions, products, business strategies, and the like, constitutes
“Confidential Information” of the party disclosing the
information. The purpose of the exchange of the Confidential
Information” is to allow the parties to meet their obligations and
responsibilities under this Agreement. During the term of this
Agreement, and for a period of 5 years following its termination or expiration,
except as required by applicable law, regulation or rules of any securities
exchange, the party receiving any Confidential Information, and its employees,
attorneys, financial advisors, officers, directors and shareholders who shall
receive such Confidential Information shall not, except with the prior written
consent of the disclosing party, use, divulge, disclose or communicate, to any
person, firm, corporation or entity, in any manner whatsoever, the terms of this
Agreement
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or any
Confidential Information of the disclosing party; provided, however, that each
party may use, divulge, disclose or communicate the terms of this Agreement or
Confidential Information of the disclosing party to Affiliates (as defined in
Section 24) undertake to keep such information strictly confidential in
accordance with this Section 10 and such Affiliates have a “need to
know”. The parties will be liable for any breach of this Section 10
by any of their respective Affiliates. Each party further agrees to
use the same degree of care to avoid publication or dissemination of the
Confidential Information disclosed to such party under this Agreement as it
employs with respect to its own Confidential Information, but at all times shall
use at least reasonable care to protect against
disclosure. Confidential Information does not and shall not include
information that:
(a) Was
already known to the receiving party at the time such information is disclosed
by the other party;
(b) Was or
became publicly known through no wrongful act of the receiving
party;
(c) Was
rightfully received from a third party without restriction;
(d) Was
independently developed by the receiving party;
(e) Was
approved for release by written authorization of the party disclosing such
information under this Agreement; or
(f) was
required by legal or financial reporting purposes to be disclosed; provided,
however, that the party being required to disclose shall, if circumstances
permit, provide advanced notice to the other party and shall allow the other
party a reasonable opportunity to oppose such disclosure, if
appropriate.
11. Limited
Warranty. Jupiter warrants that the Products will be
free from defects and conform to the applicable technical specifications,
provided that Jupiter is notified of any defects or non-conformity within thirty
(30) days after the relevant Products has arrived at the designated delivery
destination, and that the defect or non-conformity is shown to be due to
Jupiter’s faulty design, workmanship, material or packaging. In the event of any
warranty claims, SunPower shall notify Jupiter whereupon Jupiter shall have the
right to undertake its own inspection. .
12. Warranty
Disclaimer. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SAID WARRANTIES BEING
EXPRESSLY DISCLAIMED.
13. Limited
Remedy. If any Products fail to conform to this
warranty, then Jupiter will, at SunPower’s option, either refund or replace such
Products. For valid warranty claims all associated shipping and
return costs shall be paid by Jupiter.
14. Damages
Limitation. Jupiter SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE,
OR INJURY RESULTING FROM DELAY IN DELIVERY OF THE PRODUCTS, OR FOR ANY FAILURE
TO PERFORM WHICH IS DUE TO A FORCE MAJEURE EVENT (AS DEFINED IN SECTION
18). IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL,
CONSEQUENTIAL,
OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN
IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE
LIMITED REMEDY SET FORTH ABOVE.
15. Patents. If
any suit is brought against SunPower for infringement of any United States
Letters Patent alleging that the Products or Jupiter’s methods of
manufacturing them infringe any United States Letters Patent, Jupiter
shall, at its own expense, defend and control the suit against these allegations
only, and shall pay any award of damages assessed against SunPower in the suit
to the extent only that the damages are awarded in connection specifically with
the alleged infringement, provided that SunPower gives Jupiter prompt
notice in writing of the institution of the suit and, to the full extent of
SunPower’s power to do so, SunPower permits Jupiter to defend and
control the suit against these allegations. The above fully expresses
SunPower’s exclusive remedy and Jupiter’s sole responsibility with respect to
infringement of any patent by the Products, and Jupiter EXPRESSLY DISCLAIMS ANY
OTHER WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED WARRANTY AGAINST INFRINGEMENT
with respect to the Products. In no case shall Jupiter be liable to
defend or pay any award of damages assessed against SunPower to the extent any
suit or cause of action alleges that the nature of SunPower’s use of the
Products (or the use of the Products by SunPower’s customers) infringes any
patent.
16. Taxes. Any
tax or other government charge now or in the future levied upon the production,
sale, use or shipment of the Products (except Jupiter’s income tax obligations)
may, at Jupiter’s option, be added to the purchase price.
17. Fair
Labor Standards Act. Jupiter hereby certifies that the
Products shall be produced in compliance with the Fair Labor Standards Act, as
amended, and of regulations and orders of the United States Department of Labor
issued under that Act.
18. Force
Majeure. Neither party shall be liable for delays or
failures in performance of its obligations hereunder arising out of or resulting
from acts of God, acts of the other party, acts of the government or the public
enemy, fire, flood, epidemics, quarantine restrictions, strikes, freight
embargoes, severe weather, equipment breakage or default of suppliers due to any
of such causes (each a “Force Majeure Event”). In the event of any such delay of
an affected party’s performance, the other party shall honor its obligations
hereunder as soon as the affected party is able to perform.
19. Choice of
Law. The Agreement is made in, and shall be governed and
controlled in all respects by the laws of the UNITED KINGDOM (UK) (specifically
disclaiming the U.N. Convention Contracts for the International Sale of Goods)
and all disputes, including interpretation, enforceability, validity, and
construction, shall be determined under the law of the United Kingdom (UK),
without regard to any conflict of law provisions.
20. Choice of
Forum. The parties submit to the exclusive jurisdiction of the
UNITED KINGDOM (UK) for all disputes arising, directly or indirectly, under this
Agreement.
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Jupiter
21. Waiver. Either
party’s failure to exercise a right or remedy or such party’s acceptance of a
partial or delinquent payment shall not operate as a waiver of any of such
party’s rights or the other party’s obligations under the Agreement and shall
not constitute a waiver of such party’s right to declare an immediate or a
subsequent default.
22. Severability. If
one or more of the provisions of this Agreement shall be found, by a court with
jurisdiction, to be illegal, invalid or unenforceable, it shall not affect the
legality, validity or enforceability of any of the remaining provisions of this
Agreement. The parties agree to attempt to substitute for any
illegal, invalid or unenforceable provision a legal, valid or enforceable
provision that achieves to the greatest extent possible the economic objectives
of the illegal, invalid or unenforceable provision.
23. Integration. The
Agreement constitutes the entire understanding between the parties with respect
to the subject matter of the Agreement and supersedes any prior discussions,
negotiations, agreements, memoranda of understanding and the
like. Modifications to the Agreement may be made only in writing and
signed by each party.
24. Assignments. No
assignment of the Agreement or of any right or obligation under the Agreement
shall be made by either party without the prior written consent of the other
party, said consent shall not be unreasonably withheld; provided, however, that
each party may assign this Agreement without any such consent to its Affiliates
or in connection with a merger, acquisition, change of control or sale of
substantially all of the assets of the assigning party. As used
herein, an “Affiliate” of a party means any other party controlling, controlled
by, or under common control with, such party. In the event of a
proper assignment, the Agreement shall be binding upon and inure to the benefit
of the assigning party’s successors and assigns.
25. Attorney
Fees and Costs. In the event of either party’s
enforcement of any term or condition in the Agreement, the prevailing party
shall be entitled to recover from the non-prevailing party all costs, including
attorney fees, incurred by the prevailing party in connection with such
enforcement action.
26. Dollars. All
references to monetary amounts shall be in U.S. Dollars.
27. Agreement
Preparation. This Agreement shall be considered for all
purposes as prepared through the joint efforts of the parties and shall not be
construed against one party or the other as a result of the manner in which this
Agreement was negotiated, prepared, drafted or executed.
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SUNPOWER:
SUNPOWER
CORPORATION.
0000
XXXXX XXXXX XXXXXX,
XXX
XXXX,
XXXXXXXXXX
00000.
XXXXXX
XXXXXX (XXX).
By: /s/
XXXXXX X. XXXXXX
Print
Name: Xxxxxx X. Xxxxxx
Title: CEO
Date: 8th
FEBRUARY 2008
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JUPITER:
JUPITER
CORPORATION LTD.
XX
0000-0 00X, XXX XXXXXXX HOUSE.
00-000
XXXX XXX XXXXXX.
XXXXXXX.
XXXX
XXXX (HK).
By: /s/
I. S. XXXXX
Print
Name: I. S. Xxxxx
Title: CEO
Date: 8th
FEBRUARY 2008
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EXHIBIT
A
POLYSILICON
ANTICIPATED DELIVERY SCHEDULE AND PRICING
Start of
January –
2010 ***mt $***/kilogram
2011 ***mt $***/kilogram
2012 ***mt $***/kilogram
2013 ***mt $***/kilogram
2014 ***mt $***/kilogram
2015 ***mt $***/kilogram
2016 ***mt $***/kilogram
*** CONFIDENTIAL MATERIAL REDACTED AND
SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
EXHIBIT
B
Electrical
Costs:
No price
adjustments will be made for increases in electrical costs for 2010 and
2011. Annual price adjustments for 2012 onwards will be based solely
on *** and negotiated through good faith discussions 6 months prior to the start
of each such year.
Labor Cost
Inflation:
No price
adjustments will be made for increases in labor costs for 2010 and
2011. Annual price adjustments for 2012 onwards will be based solely
on *** and negotiated through good faith discussions 6 months prior to the start
of each such year.
Raw Material Cost
Inflation:
No price
adjustments will be made for increases in raw material costs for 2010 and
2011. Annual price adjustments for 2012 onwards will be based solely
on *** and negotiated through good faith discussions 6 months prior to the start
of each such year.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
