AMENDMENT TO POLYSILICON 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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EXECUTION
COPY
AMENDMENT TO POLYSILICON
SUPPLY AGREEMENT
This Amendment to Polysilicon Supply
Agreement (this “Amendment”) is entered into as of January __, 2008, by and
between SunPower Philippines Manufacturing, Ltd., a company organized under the
laws of the Philippines and having its principal office located at #000 Xxxx
Xxxx Xxxxxx, Special Export Processing Xxxx, Xxxxxx Xxxxxx Xxxx, Xxxxx Xxxxxx,
Xxxxxxxxxxx (“SunPower Philippines”), and Woongjin Energy Co., Ltd., a company
organized under the laws of Korea and having its principal office located at
Daedeok Techno Valley, I 0-00 Xxxxx, Xxxxxxxxx Xxxx, Xxxxxxx Xx, Xxxxxxx
Xxxxx (the “JVC”). SunPower
Philippines and the JVC may be referred to herein individually as a “Party” or
collectively as the “Parties.”
RECITALS
A. SunPower
Corporation, a Delaware corporation (“SunPower”),
the JVC and Woongjin Coway Co., Ltd., a company organized under the laws of
Korea (“Woongjin”),
entered into that certain Joint Venture Agreement dated as of September 29,
2006, as amended by the Amendment No. 1 to Joint Venture Agreement dated as of
December 22, 2006 (the “JV
Agreement”), for the establishment and operation of the JVC.
B. Pursuant
to the JV Agreement, SunPower Philippines and the JVC entered to the Polysilicon
Supply Agreement dated as of December 22, 2006 (the “Polysilicon
Supply Agreement”), under which SunPower Philippines shall supply to the
JVC polycrystalline silicon required for the manufacture and supply of Ingot as
contemplated under the Ingot Supply Agreement by and among SunPower, the JVC and
Woongjin.
C. Based
on certain changes in the circumstances, the Parties recognized certain required
amendments to the Polysilicon Supply Agreement to reflect the Parties’ intent,
including (i) the addition of a definition for the term “Initial Ingot Pullers,”
and (ii) the amended description of the circumstances triggering SunPower’s
obligation to pay the JVC *** percent (***%) of the JVC’s fixed costs for its
Ingot manufacturing facilities that stay idle due to SunPower’s failure to sell,
supply and deliver the applicable Quarterly Requirement as set out in Section
2.2.1 of the Polysilicon Supply Agreement.
D. The
Parties wish to amend the Polysilicon Supply Agreement to reflect the required
changes described above.
AGREEMENT
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Definitions
1.1 The terms defined hereinabove shall
have the meanings set forth therein.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
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1.2 Except as otherwise defined in this
Amendment, the terms used but not defined herein shall have the respective
meanings ascribed to them in the JV Agreement and the Polysilicon Supply
Agreement.
2. Amendments to the
Polysilicon
Supply Agreement
2.1 New Section
1.7. The definition for the term “Initial Ingot Pullers” shall
be hereby added to the Polysilicon Supply Agreement as Section 1.7 to read as
follows, and each of the original Sections from 1.7 through 1.20 of the
Polysilicon Supply Agreement shall be re-numbered accordingly.
1.7 “Initial Ingot Pullers” means
*** Ingot pullers that have been installed as part of the JVC’s Initial
Capacity.
2.2 Amendment to Section
2.2.1. The last phrase in the third sentence of Section 2.2.1
of the Polysilicon Supply Agreement is hereby revised and amended
by:
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(a)
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deleting “SunPower shall pay to the JVC
*** percent (***%) of the JVC’s fixed costs for Ingot pullers that are
idle due to SunPower’s failure to sell, supply and deliver the applicable
Quarterly Requirement.”; and
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(b)
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inserting “SunPower shall pay to the JVC
*** percent (***%) of the JVC’s fixed costs for the Initial Ingot Pullers
that are then operational but stay idle solely due to SunPower’s failure
to sell, supply and deliver the applicable Quarterly Requirement;
provided, however, that any Product sold,
supplied and delivered by SunPower during the Initial Requirements Period
shall be first used to fully utilize the Initial Ingot Pullers before
being used to utilize any other Ingot
Pullers.”
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3. Effect of Amendment and
Continuing Effect of the Polysilicon Supply Agreement
3.1 Effectiveness of
Amendment. The Polysilicon Supply Agreement shall be deemed to
have been revised and amended in accordance with this Amendment as of the date
of the Polysilicon Supply Agreement.
3.2 Continuing Effect of the
Polysilicon Supply Agreement. Except as expressly amended and
modified by this Amendment, the Polysilicon Supply Agreement (including all
rights and obligations of the parties thereunder existing prior to the execution
and delivery of this Amendment) shall continue to be, and shall remain, in full
force and effect in accordance with the terms thereof.
3.3 References to the
Polysilicon Supply Agreement. Each reference, whether direct
or indirect, in the Polysilicon Supply Agreement to the Polysilicon Supply
Agreement (including, without limitation, references to “this Agreement” in the
Polysilicon Supply Agreement) shall mean and be a reference to the Polysilicon
Supply Agreement, as amended by this Amendment.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
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3.4 Conflicts. To
the extent that there are any inconsistencies or ambiguities between this
Amendment and the Polysilicon Supply Agreement, the terms of this Amendment
shall supercede the Polysilicon Supply Agreement.
4. Miscellaneous
4.1 Governing
Law. This Amendment and all disputes arising out of or in
connection with this Amendment shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the Republic of Korea
without regard to conflicts of laws principles. The dispute
resolution provisions in the Polysilicon Supply Agreement (including the
arbitration provision) are hereby incorporated into this Amendment, mutatis
mutandis.
4.2 Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed as an original, but all of which together shall constitute one and the
same instrument.
[Signature
Pages Follow]
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IN WITNESS WHEREOF, the Parties have
caused this Amendment to Polysilicon Supply Agreement to be executed by their
respective representatives thereunto duly authorized as of the date first set
forth above.
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SUNPOWER
PHILIPPINES MANUFACTURING LTD.
By: /s/
XXXXXX X. XXXXXX
Name: Xxxxxx
X. Xxxxxx
Title: Director
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WOONGJIN
ENERGY CO., LTD.
By: /s/
HAK DO YOO
Name: Hak
Do Yoo
Title: CEO/President
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