EXHIBIT 10.27
CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document have been
omitted pursuant to a request for confidential treatment and, where applicable,
have been marked with an asterisk ("[****]") to denote where omissions have been
made. The confidential material has been filed separately with the Securities
and Exchange Commission.
SALES REPRESENTATIVE AGREEMENT
THIS SALES REPRESENTATIVE AGREEMENT (this "Agreement"), dated and effective
this 29 day of September, 2006 (the "Effective Date"), between
EVERQ GMBH, a limited liability company organized and existing under the
laws of Germany and having its principal place of business at Xxxxxxxxxxx 00-00,
00000 Xxxxxxxx, Xxxxxxx ("EverQ"), and
EVERGREEN CORPORATION, a Delaware corporation of the United States of
America, having its principal place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx, XXX ("Evergreen").
EverQ and Evergreen are also collectively referred to herein as "Parties"
and individually as "Party."
AGREEMENT
It is mutually agreed that EverQ will manufacture and supply, and Evergreen
will use commercially reasonable efforts to market and sell, as representative
of EverQ, the Product as defined in this Agreement, pursuant to and in
accordance with the following terms and conditions.
1. DEFINITIONS AND EXHIBITS
The following terms shall have the following respective meanings for
purposes of this Agreement:
(a) "Business Day" shall mean any day on which financial institutions
are generally open and available for business, and which is not otherwise a
holiday, in all of the German state of Saxony-Anhalt and the US state of
Massachusetts.
(b) "Change of Control" means with respect to any entity, the
acquisition of such entity by another entity by means of any transaction or
series of related transactions (including, without limitation, any share
acquisition, sale of all or substantially all of the assets, reorganization,
merger or consolidation, but excluding any sale of shares for capital raising
purposes) other than a transaction or series of transactions in which the
holders of the voting securities of such entity outstanding immediately prior to
such transaction continue to retain (either by such voting securities remaining
outstanding or by such voting securities being converted into voting securities
of the surviving entity), as a result of shares in such entity held by such
holders prior to such transaction, more than 50% of the total voting power
represented by the voting securities of such entity or such surviving entity
outstanding immediately after such transaction or series of transactions
(c) "Dedicated Production Capacity" shall mean the portion of EverQ's
total production capacity that is dedicated and available for sale by Evergreen,
which initially starts with 100% of the EverQ's production capacity.
(d) "Orders" shall mean orders for Products issued hereunder by
Evergreen.
(e) "Product(s)" shall mean the products manufactured by EverQ and
sold by Evergreen hereunder. The Products currently include those products
described in Exhibit A.
(f) "Product Revenue" means the payment that Evergreen actually
receives in consideration for the sale of the respective Product to a customer
hereunder and does not include third party costs such as shipping and insurance
and does not include taxes and duties.
(g) "Specifications" shall mean the written specifications according
to which the Products are currently manufactured as of September 29, 2006, which
specifications may be modified as provided under Section 12 (Changes).
(h) "Evergreen Design" means any proprietary visual design or
proprietary configuration of the Products provided by Evergreen and formally
described by prior written notification by Evergreen as "Evergreen Design".
Parties agree that the current status of products of EverQ does not include any
"Evergreen Design". Such design will never include the String Ribbon wafer or
cell technology.
The following Exhibits are attached to this Agreement and are
incorporated herein by this reference:
Exhibit A - Products
Exhibit B - Warranty
Each Party acknowledges receipt of copies of all documents
referred to in the Exhibits.
2. PRECEDENCE OF DOCUMENTS
The precedence of agreements between Evergreen and EverQ shall be:
(a) This Agreement, including any amendment adopted pursuant to
Section 21(e) (Amendments and Waivers).
(b) Any Order.
(c) Any subsequent written agreement between Evergreen and EverQ that
does not expressly indicate it is an amendment to this Agreement.
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3. APPOINTMENT AND AUTHORITY OF EVERGREEN.
EverQ hereby appoints Evergreen as EverQ's sales agent
(KOMMISSIONSAGENT), and Evergreen hereby accepts such appointment. Evergreen
will use commercially reasonable efforts to market and sell the Product and
EverQ shall manufacture and deliver the Product ordered by Evergreen in
accordance with the terms and conditions of this Agreement. Subject to the terms
and conditions of this Agreement, Evergreen shall have the right to manage and
conduct such activities in the manner it deems appropriate as determined in
Evergreen's discretion.
4. FORECASTS.
(a) EVERQ LONG TERM FORECASTS. Upon the Effective Date and at [****],
EverQ shall provide Evergreen a written non-binding capacity forecast ("EverQ
Long Term Forecast"), indicating the Dedicated Production Capacity in each of
the next [****] from the date such forecast is given, including periods already
covered by Evergreen's outstanding Contracts and Orders. EverQ shall notify
Evergreen promptly upon becoming aware of circumstances that would alter the
EverQ Long Term Forecast before the next EverQ Long Term Forecast is due.
(b) EVERQ ROLLING FORECAST. Each [****] during the term of this
Agreement EverQ shall provide Evergreen a written rolling capacity forecast
("EverQ Rolling Forecast"), indicating the Dedicated Production Capacity in each
of the next [****], including periods already covered by Evergreen's outstanding
Orders.
5. PRODUCT SALES TRANSACTIONS.
(a) EVERQ TERMS. With respect to Products that may be sold by
Evergreen hereunder, EverQ shall, in its sole discretion, [****]. EverQ will
determine, in its sole discretion, adjustments to the [****] generally or with
respect to a specific Product Sales Transaction where such adjustment [****].
EverQ shall promptly notify Evergreen of the [****] or any adjustments to the
[****]. EverQ will further determine, in its sole discretion, which contracts
and contract terms that will require formal consent of the EverQ Supervisory
Board, and EverQ shall notify Evergreen thereof. However, if Evergreen is unable
to provide such contracts, approval of [****] shall suffice. [****].
[****].
(b) PRODUCT SALES TRANSACTIONS. Evergreen shall have the right to
negotiate and enter agreements and sales transactions, including short and long
term contracts and other sales transactions, (collectively "Product Sales
Transactions") directly with customers. Evergreen shall have the right to
negotiate the terms applicable to the respective Product Sales Transaction
("Negotiated Terms") provided that such terms are within the [****]. EverQ shall
provide the Products hereunder in accordance with the Negotiated Terms provided
that Negotiated Terms are within the [****] at the time the Product Sales
Transactions are entered or, if not within such range, EverQ approves the
Negotiated Terms. EverQ may approve the Negotiated Terms by approving the
specific Negotiated Terms or [****], and after such approval, the Negotiated
Terms are deemed within the [****] for such Product Sales Transactions. Provided
that Product Sales Transactions are within the amounts of the EverQ Long
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Term Forecast at the time the Product Sales Transactions are entered, Evergreen
shall have the right to place Orders for Products in such Product Sales
Transactions, and EverQ shall manufacture, sell and deliver the Products in
accordance with such Orders. To the extent that the EverQ Rolling Forecast
indicates EverQ has greater capacity, or EverQ otherwise has more capacity
available than indicated by the EverQ Long Term Forecast, EverQ shall make such
capacity available for the Product Sales Transactions subject to 6 (c)
(Exclusivity) and 6 (d) (Excess Inventory). [****].
(c) OFF-SPEC PRODUCT. Evergreen will use reasonable commercial efforts
to sell off-spec product. It is understood that such off-spec product, including
without limitation cosmetic rejects, or otherwise defective cells and modules
shall be typically sold on the spot market with [****] that are less favorable
to EverQ than prime product. To the extent EverQ does not provide specific
[****], Evergreen is free to negotiate [****] as it deems appropriate provided
the warranty is no more favorable to customers than the then standard warranty.
(d) INFORMATION AND ACCOUNTING. Except to extent prohibited by law,
Evergreen shall inform EverQ without delay of any Product Sales Transactions
entered and render account of such Product Sales Transaction. Section 384 para.3
of the German Commercial Code (Handelsgesetzbuch) shall not apply.
(e) ADMINISTRATION BY EVERGREEN. Unless otherwise requested by
Evergreen, EverQ will not be a party to the Product Sales Transactions. EverQ
shall not contact the customers except as necessary to exercise its rights under
this Agreement, particularly under 8 (b) (Payment to EverQ) and 11 (c) (Warranty
Procedure). [****]. Evergreen shall have the right to be the sole interface with
customers and to handle administration of order fulfillment, invoicing,
collections, warranty, service and related activities.
6. EVERGREEN FORECASTS AND ORDERS
(a) EVERGREEN FORECASTS. Each [****] during the term of this
Agreement, within [****] Business Days of receiving the EverQ Rolling Forecast,
Evergreen shall provide EverQ a non-binding written rolling forecast ("Evergreen
Forecast"), indicating Evergreen's good faith estimate of the total quantity to
be ordered by Evergreen from EverQ under this Agreement in each of the next
[****] months, including periods already covered by Evergreen's outstanding
Orders. EverQ shall procure materials and manufacture Products sufficient to
meet the Evergreen Forecasts. EverQ is not required to limit its production to
the level of the Evergreen Forecasts. EverQ agrees to advise Evergreen without
undue delay in the event that EverQ anticipates that it will be unable to
achieve the volumes and schedules set forth in the Evergreen Forecast.
(b) ORDERS. EverQ shall sell and deliver Products in accordance with
the Product quantity, part number(s), specifications, destination and delivery
dates specified in Evergreen's Orders for Product Sales Transactions entered in
accordance with this Agreement. Within [****] Business Days after receipt of the
Order, EverQ shall send a confirmation of acceptance, or, if not accepted, a
written notice detailing reasons that the Order is not in conformance with this
Agreement.
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(c) EXCLUSIVITY. Evergreen shall have the right to sell Products in
the amount of EverQ's total production capacity, so long as Evergreen has
continued to place cumulative Orders for Products (such Orders resulting in
Product shipping) in the level of at least [****] percent ([****]%) of Dedicated
Production Capacity in a calendar year. In the event that Evergreen has placed
Orders for Products in the level of less than [****] percent ([****]%) in a
calendar year, Evergreen looses the exclusive right to sell Products in the
amount of EverQ's total production capacity in the amount of the shortfall in
Evergreen's sales from the full capacity. Instead EverQ shall have the right to
sell the Products itself/ or through other sales / commission agents provided
that EverQ satisfies its obligations to Evergreen with respect only to existing
Product Sales Transactions. Products sold by EverQ independently of Evergreen
shall not bear Evergreen Marks or be of an Evergreen Design. In the event that
the level of Evergreen sales decreases because of default by customers [****],
the parties will reasonably discuss and determine whether such decrease should
cause Evergreen to lose its exclusivity set for the above.
[****].
(d) EXCESS INVENTORY. EverQ shall also have at any time the right to
itself sell inventory to the extent accumulated if it exceeds [****] percent
([****]%) of EverQ's annual production capacity or [****] MW, provided that
EverQ satisfies its obligations to Evergreen with respect to existing Product
Sales Transactions. Sales according to this clause (d) (Excess Inventory) shall
not bear Evergreen Marks to the extent they can be reasonably relabeled without
damage to product.
(e) SOURCING. [****].
7. TERM OF AGREEMENT
This Agreement shall be effective on the Effective Date and shall
expire [****] years from date of signing, subject to: (a) earlier termination
pursuant to Section 14 (Termination), and (b) automatic renewal for successive
[****] terms unless either party notifies the other in writing at least [****]
prior to the beginning of such additional period that it desires not to renew.
Upon termination of the Agreement, EverQ shall discontinue making and selling
products with any (i) Evergreen Marks and any (ii) Evergreen Design. .
8. PRICING AND PAYMENT
(a) PRICING. Pricing will be determined in accordance with Section 5.
(b) PAYMENT TO EVERQ. Evergreen shall remit to EverQ the Product
Revenue, less the Evergreen Fee. Evergreen shall remit such amount within [****]
days of Evergreen's receipt of the Product Revenue from the customer. Evergreen
shall have no liability to EverQ for delays or defaults in payment for Product,
or product default or termination, by customers. Evergreen shall use
commercially reasonable efforts to collect the Product Revenue. In the event
that Evergreen is unable to collect on account for Product Revenue within [****]
days of when due, then on EverQ's request as EverQ'sole remedy, Evergreen will
assign the account to EverQ, which may collect on the account, retain the funds
and remit the Evergreen Fee to Evergreen if the funds are collected. In
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the event that Evergreen is not able to collect on account for Product Revenue
within [****] days of when due, then Evergreen may satisfy its obligation to use
commercially reasonable efforts to collect the Product Revenue by assigning the
account to a collection agency for a standard collection fee. Unless otherwise
agreed, payment shall be in the currency Evergreen receives from its customers
for Product (which currency shall be specified to EverQ at the time of its sale
upon EverQ's request).
(c) EVERGREEN FEE. In consideration for its activities hereunder,
Evergreen shall receive a fee ("Evergreen Fee"). The Evergreen Fee shall consist
of the sum of a Percentage Fee times the received Product Revenue. The
"Percentage Fee" shall be adjusted by mutual agreement annually, on the
anniversary of the Effective Date, and shall be set high enough to cover [****].
The Percentage Fee shall be set initially at [****] percent ([****]%), which
shall be effective through [****]. All sales and marketing costs and expenses of
Evergreen are compensated by the Evergreen Fee.
(d) ASSIGNMENT. Evergreen hereby assigns to EverQ by way of security
each future Evergreen claim less the Evergreen Fee vis-a-vis its customers for
Products Revenue under the Product Sales Transactions entered into under this
Agreement in order to secure each such respective claim of EverQ vis-a-vis
Evergreen under this Agreement. Evergreen is entitled to collect the Product
Revenue from the customer according to Sec. 8 para. (a) and (b), and particulary
Evergreen is entitled to assign the account to a collection agency for a
standard collection fee. EverQ is allowed to inform the customers and collect
the payment itself from its customers if Evergreen becomes insolvent, files a
petition in bankruptcy, "Chapter 11" or makes an assignment for the benefit of
creditors, or a receiver or similar officer is appointed to take charge of all
or a part of Evergreen's assets.
(e) CREDIT. Undisputed amounts owed to Evergreen due to rejections of
Product, warranty claims, discrepancies on paid invoices and other undisputed
amounts payable under this Agreement will be, at Evergreen's option, fully
credited against future invoices payable to EverQ, or paid by EverQ within
[****] days from EverQ's receipt of a debit memo or other written request for
payment from Evergreen.
(f) SET-OFF. Evergreen retains the right to set-off undisputed amounts
owed from EverQ against amounts owed to EverQ.
(g) RECORDS AND AUDITS. Evergreen shall maintain complete and accurate
records regarding the Product Sales Transactions in accordance with generally
recognized commercial accounting practices, and Evergreen shall keep such
records available for at least [****] years or longer, if required by German tax
law and EverQ has notified Evergreen of such requirement, after end of the
period to which they apply. Evergreen shall allow EverQ, through an independent
certified public accountant mutually acceptable to Evergreen and EverQ, during
office hours and at reasonable intervals, no more than [****] to audit records
solely for the purpose of ascertaining the correctness of Evergreen's payments
and for reviewing Evergreen Fee hereunder. The auditor shall be subject to an
obligation of confidentiality, and Evergreen may require the auditor to execute
a confidentiality agreement to that effect. The auditor shall report only
whether a discrepancy was found, and if so, the amount of under or overpayment.
If a deficiency of [****] per cent ([****]%)
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or more exists for the period audited, Evergreen shall pay, in addition to such
deficiency, the reasonable costs of such audit.
9. DELIVERY AND SHIPPING TERMS
EverQ shall deliver on the dates and to the locations in accordance
with Evergreen's Orders for Product Sales Transactions entered in accordance
with this Agreement. All shipping terms including responsibility for cost of
shipping, taxes, insurance, passage of title and risk of loss shall be in
accordance with the terms of the respective Product Sales Transaction on which
the Order or portion thereof is based. All Products shall be prepared, packed,
marked and shipped in accordance with the Specifications and [****] and/or
otherwise mutually agreed between Evergreen and EverQ.
10. FACILITIES, RECORDS, AUDITS AND QUALITY
(a) FACILITIES. EverQ shall manufacture and supply the Products in
accordance with the Specifications and the other requirements of this Agreement
using adequate, qualified manufacturing facilities, with all necessary labor and
equipment. Such facilities shall be subject to Evergreen's inspection and/or
audits from time to time. Unless otherwise agreed, EverQ is solely responsible
to provide all parts, labor, materials and other items necessary to perform its
obligations hereunder.
(b) RECORDS AND AUDITS. At Evergreen's request, upon reasonable prior
notice, EverQ shall permit, Evergreen and its representatives to periodically
inspect and audit EverQ's books, records, and manufacturing facilities
pertaining to EverQ's manufacturing of the Products, or otherwise relating to
EverQ's compliance with this Agreement. In accordance with Evergreen's
reasonable request, [****]. EverQ shall maintain accurate and complete records
regarding EverQ's manufacturing and supply of the Products. These records shall
be held in no event less than [****] years kept following the end of the
calendar quarter to which they pertain.
(c) QUALITY ASSURANCE DATA. EverQ agrees to provide outgoing
inspection, quality and reliability data as reasonably specified from time to
time by Evergreen for the Products sold by Evergreen.
(d) STOPPING SHIPMENTS. Evergreen may request EverQ to stop shipments
for significant quality deficiencies. [****]. If Evergreen so requests, EverQ's
obligations to meet delivery commitments shall thereafter be suspended until
such time as Evergreen thereafter requests EverQ to recommence shipment of
Products. Evergreen and EverQ shall work together to allow to resume production
as promptly as practicable. All requests pursuant to this Section shall be in
writing.
11. WARRANTY
(a) TITLE WARRANTY. EverQ warrants that title to the Products shall be
free and clear of all liens, mortgages, encumbrances, security interests or
other claims or rights ("Third Party Rights"). However, Third Party Rights do
not include (i) any Intellectual Property Rights or Technology provided by or
based on the License & Technology Transfer Agreement provided by
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Evergreen to EverQ and (ii) any rights of third parties regarding the
aforementioned Intellectual Property Rights or Technology provided by Evergreen.
(b) GENERAL WARRANTY. EverQ warrants the Products pursuant to the
warranty attached hereto in Exhibit B. The Parties may change the warranty that
will be applicable to future Product Sales Transactions and as a consequence
also for this Agreement; provided, however, that EverQ shall not reduce the
warranty applicable to Product Sales Transactions previously entered.
Additionally, EverQ warrants the Products with respect to any specific warranty
terms that EverQ has approved in a particular Product Sales Transaction.
(c) WARRANTY PROCEDURES. If (i) EverQ is notified of any failure of
any Product to conform to the warranties and provided a description of such
breach; and (ii) such Products are defective or non-conforming, EverQ shall
either repair, replace or refund the purchase price of such Product. EverQ shall
expedite any such Order for replacement Product at Evergreen's request and, if
requested by Evergreen, [****]. To the extent that the warranty claims are less
than (i) a single claim of [****] euro (E[****]) or more or (ii) [****] percent
([****] %) of Evergreen's sales of Products from EverQ cumulatively in the prior
[****] months, then Evergreen shall be free to assess in its reasonable
judgment, [****], whether the warranty is breached and whether the remedy shall
be repair, replacement or refund. Evergreen will provide to EverQ monthly
reports outlining any recurring warranty cases and, upon request of EverQ, also
an evaluation report. If Product is replaced, EverQ shall have the right to
receive and examine the faulty Product. To the extent that the claims are
greater than such threshold, EverQ and Evergreen shall jointly determine the
remedy and [****]. [****], EverQ will notify Evergreen if the warranty claim is
incorrect. EverQ will accommodate variations of the above procedure to the
extent required by the respective Product Sales Transaction [****].
(d) REPAIRED OR REPLACED PRODUCTS. EverQ shall return Products
repaired or replaced under this warranty [****]. EverQ shall also reimburse
Evergreen for the transportation charges, if any, for shipment to EverQ of
repaired, replaced, or returned-for-credit Product.
(e) EXCLUSION. Apart from the rights mentioned in 11 (a) - 11 (d),
Evergreen is not entitled to any further warranty claims.
12. CHANGES
PRODUCT CHANGES. The term "Product Changes" shall mean those
mechanical, electrical or Specification changes, changes in suppliers or
subcontractors, made to or with respect to the Products or the manufacture
process which, if made, could affect the schedule, performance, quality,
reliability, availability, serviceability, appearance, dimensions, tolerances,
safety or costs. EverQ is, [****], allowed to make Product Changes that do not
affect customer interests in existing Product Sales Transactions. Product
Changes affecting customer interests in existing Product Sales Transactions only
become effective if approved by Evergreen, nevertheless such approval shall only
be denied on a reasonable basis. Evergreen shall use its reasonable efforts to
provide for respective adjustment clauses [****].
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Should Q-Cells and/or REC develop a proprietary product design that
provides cost and/or product advantages the Parties will negotiate in good faith
to enable said design to be manufactured and sold under the terms of this
Agreement.
13. TRADEMARKS
Evergreen may require EverQ to apply Evergreen's trademark(s)
("Evergreen Marks") to the Products. Evergreen grants to EverQ a non-exclusive,
non-transferable license to use the Evergreen Marks, solely on the Products sold
by Evergreen in accordance with Evergreen's instructions, and only for so long
as EverQ complies with Evergreen's then-current trademark usage guidelines.
Without limitation, EverQ shall not take any action that would detract from the
goodwill of Evergreen associated with the Evergreen Marks. If Evergreen
determines that EverQ is using the Evergreen Marks improperly, then EverQ must
remedy the improper use within [****] days. EverQ shall make all reasonable
efforts to manufacture, or have manufactured, any product upon which the
Evergreen Marks are applied to standards that are at least as high as those for
similar products of EverQ. EverQ acknowledges that Evergreen is the owner of the
Evergreen Marks, and shall do nothing inconsistent with Evergreen's ownership of
the Evergreen Marks. All use of the Evergreen Marks by EverQ will inure to the
benefit of Evergreen, and nothing in this Agreement grants to EverQ any right,
title or interest in the Evergreen Marks other than the right to use the
Evergreen Marks in accordance with this Agreement. EverQ shall not sell any
Product bearing the Evergreen Marks except in accordance with this Agreement. In
the event that the Agreement is terminated or has expired and EverQ has excess
inventory of Products bearing the Evergreen Marks that is not to be sold by
Evergreen, then, if the Products cannot be reasonably relabeled, Evergreen
agrees to EverQ's sale of such Products bearing the Evergreen Marks.
14. TERMINATION
(a) TERMINATION GROUNDS FOR TERMINATION BY EVERGREEN. Evergreen may
terminate this Agreement at any time by notice in the event EverQ:
(i) Fails to comply with any material provision of this Agreement
and in the case of a breach which is capable of remedy, fails to remedy such
breach within [****] days of notification of said breach,
(ii) Becomes insolvent, becomes subject to opened insolvency
proceedings or a petition to open such proceedings is dismissed due to
insufficient assets or a receiver or similar officer is appointed to take charge
of all or a part of EverQ's assets and such condition in this Section 14 (a)
(ii) is not cured within [****] days, or
(iii) Assigns, or attempts to assign, or subcontracts or attempts
to subcontract, any or all of its rights or obligations under this Agreement or
any Orders issued hereunder to a third party without Evergreen's prior approval.
(b) TERMINATION GROUNDS FOR TERMINATION BY EVERQ. EverQ may terminate
this Agreement at any time by notice in the event Evergreen:
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(i)Becomes insolvent, files a petition in bankruptcy, "Chapter"
11 or makes an assignment for the benefit of creditors, or a receiver or similar
officer is appointed to take charge of all or a part of Evergreen's assets and
such condition in this Section 14 (b) (i) is not cured within [****] days.
(ii) Fails to comply with any material provision of this
Agreement and in the case of a breach which is capable of remedy, fails to
remedy such breach within [****] days of written notification of said breach.
(iii) Holds only [****]% or less of the shares of EverQ.
(c) FURTHER TERMINATION GROUND FOR TERMINATION BY EITHER PARTY. EverQ
and/or Evergreen may terminate this Agreement at any time by notice in the event
that Dedicated Production Capacity is less than [****]% of the current annual
Production Capacity of EverQ unless such drop is cured by mutual agreement.
(d) SURVIVAL. The following sections shall survive any expiration or
termination of this Agreement and remain in effect: Sections 11 (Warranty), 14
(Termination), 15 (Limitation of Liability), 16 (Notices), 18 (Indemnity), 20
(Confidential Information), and 21 (Miscellaneous). EverQ's and Evergreen's
obligations with respect to existing Product Sales Transactions shall also
survive any expiration or termination of this Agreement.
15. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO THE EXPRESS PROVISIONS OF AGREEMENT PARTIES ARE ONLY
LIABLE FOR DAMAGES CAUSED BY INTENT OR GROSS NEGLIENCE: LIABILITY FOR PERSONAL
INJURY OR PROPERTY DAMAGES CAUSED BY GROSS NEGLIGENCE IS LIMITED TO DIRECT
DAMAGES OF THE PROPERTY OF THE OTHER PARTY AND PERSONAL INJURIES; WHICH ARE
CAUSED BY ONE OF THE PARTIES IN REALATION TO THIS AGREEMENT. EXCEPT FOR EVERQ'S
FAILURE TO SUPPLY PRODUCTS HEREUNDER, LIABILITY OF EACH PARTY HEREUNDER SHALL BE
LIMITED TO THE AMOUNT OF PRODUCT REVENUE THAT EVERGREEN RECEIVES FOR THE
RESPECTIVE PRODUCT SALE ON WHICH THE CLAIM IS BASED.
THE PARTIES ARE NOT LIABLE FOR ANY OTHER DAMAGES, I.E., FINANCIAL LOSSES, BE IT
DIRECT OR INDIRECT DAMAGES, INCIDENTAL OR CONSEQUENTIAL DAMAGES,WHICH ARE CAUSED
BY A PARTY IN RELATION TO THIS AGREEMENT, INCLUDING WITHOUT BEEING LIMITED
HERETO LOSS OF PRODUCTION AND LOSS OF PROFITS, LOSS OF TURNOVER; LOSS OF USE OR
CLAIMS BY THIRD PARTIES.
THE LIMITATIONS OF THIS SECTION 15 (LIMITATION OF LIAABILITY) SHALL NOT APPLY TO
SECTION 18 (INDEMNITY).
16. NOTICES
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All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if (a) delivered personally, (b) sent by
next-day or overnight mail or delivery or (c) sent by facsimile, as follows:
If to Evergreen
Evergreen Solar, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXX
ATTN:
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxxx
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 XXX
Attention: Xxxxxx Xxxxxxx
Xxxxxx X'Xxxxxx
Phone: 0 000 000-0000
Fax: 0 000 000-0000
If to EverQ
EverQ GmbH
Xxxxxxxxxxx 00-00
00000 Xxxxxxxx
Xxxxxxx
ATTN:
Xxxxx Xxxxxxx
Xxxxxxxxx Xxxxxx
With a copy to:
17. COMPLIANCE WITH LAWS
All Products supplied and work performed under this Agreement shall
comply with all applicable laws and regulations in effect, including, without
limitation, in the place of
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manufacture. Upon request, EverQ agrees to certify compliance with the
applicable laws and regulations. EverQ's failure to comply with any of the
requirements of this Section shall constitute a material breach of this
Agreement.
Upon request, EverQ agrees to provide Evergreen with information and
certifications required to demonstrate compliance with applicable laws and
regulations for Product supplied under this Agreement. EverQ shall indemnify and
hold Evergreen harmless from and against any claims, costs, or damages resulting
from or arising out of Evergreen's reliance on such information and/or
certifications.
18. INDEMNITY
EverQ shall, at its own expense, indemnify and hold Evergreen,
Evergreen's respective officers, directors, agents and employees (collectively,
"Indemnified Parties") harmless from and against any liability, award, expense
or loss (including attorneys' fees) arising from any (a) actual or alleged
infringement of any patent, trademark, trade secret, copyright or other
intellectual property related to the Products other than with respect to
infringement directly caused by specifications or any rights provided by
Evergreen, where the infringement would not occur without use of such
specifications or rights, or (b) breach of this Agreement or its representations
or warranties hereunder by EverQ, (any claim or action based on (a) and (b), a
"Claim") and shall defend at its own expense, including attorneys fees, any suit
brought against Indemnified Parties alleging a Claim.
Evergreen shall (i) give EverQ prompt notice in writing of any Claim
and, if EverQ provides evidence reasonably satisfactory to Evergreen of EverQ's
financial ability to defend the matter vigorously and pay any reasonably
foreseeable damages; (ii) permit EverQ, through counsel of EverQ's choice, that
does not have a conflict with Evergreen, to answer and defend such Claim (but
any Indemnified Party may be represented by counsel and participate in the
defense at its own expense); and (ii) give EverQ all needed information,
assistance, and authority, at EverQ's expense, to enable EverQ to defend such
Claim. EverQ shall not be liable for any settlement of a Claim effected without
its written consent (which consent shall not be unreasonably withheld or
delayed), nor shall EverQ settle any Claim without the written consent of
Evergreen (which consent shall not be unreasonably withheld or delayed). EverQ
shall not consent to the entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to the applicable Indemnified Parties a release from all liability
with respect to the Claim.
19. GRATUITIES
Each Party represents that it has not offered nor given and will not
offer nor give any employee, agent, or representative of the other Party any
gratuity with a view toward securing any business from the other Party or
influencing such person with respect to the business between the Parties.
20. CONFIDENTIAL INFORMATION
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(b) Any Confidential Information exchanged pursuant to this Agreement
(and the terms of this Agreement itself) will be governed by SECTION 9.7
(Confidentiality) of the Master Agreement, with the Parties hereunder deemed the
Disclosing Party and/or Receiving Party as applicable, provided that,
notwithstanding anything to the contrary either party shall may use Confidential
Information in order to exercise its rights and discharge its obligations
hereunder.
21. MISCELLANEOUS
(a) GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
construed in accordance with and governed by the laws of the Federal Republic of
Germany excluding its rules on the conflict of laws and of the United Nations
Convention on the International Sale of Goods (CISG). All disputes arising in
connection with this Agreement or its validity or any agreement provided herein
which cannot be resolved by mutual agreement of the Parties shall be finally
settled in accordance with the Arbitration Rules of the German Institution of
Arbitration e.V. (DIS) without recourse to the ordinary courts of law (except
for challenges to the validity of shareholder resolutions which shall be
submitted to the competent court in Berlin). The place of arbitration is Berlin,
Germany. The arbitral tribunal consists of three arbitrators. The arbitrators
must be capable of being appointed a judge in accordance with the relevant
German legal rules. The substantive law of the Federal Republic of Germany is
applicable to the dispute. The language of the arbitral proceedings is English.
(b) COMPLIANCE WITH LAWS AND REGULATIONS. Each Party will comply with
all applicable laws, regulations and ordinances.
(c) FORCE MAJEURE Neither of the Parties shall be liable for
prevention from fulfilling the contract as a result of force majeure,
particularly natural disasters, war, unrest, labour disputes, suspension or
interruption of operations due to extreme factors, administrative measures and
other events outside the control of the Parties, especially such as a shortfall
of silicon deliveries. This includes cases of force majeure taking place at
suppliers of EverQ. In such events, the Parties shall contact each other without
delay and discuss the measures to be taken. The Parties undertake to re-enable
the contract's fulfilment by all technical and economically reasonable means. If
EverQ has approved a narrower Force Majeure - clause in regard to a Product
Sales Transaction explicitly in writing (e. g., through written approval of the
customer's agreement or use of a-pre-approved standard term, the use of which is
to be notified from Evergreen to EverQ), EverQ, shall at its own expense,
indemnify and hold Evergreen harmless from any damage that may occur in case of
Force Majeure according to this Section 21 (c) (Force Majeure) of this
Agreement.
(d) EXPORT. No Party shall export or re export, directly or
indirectly, any technical information disclosed hereunder or direct product
thereof to any destination prohibited or restricted by the applicable export
control regulations, including the U.S. Export Administration Regulations and
regulations of Germany, without the prior authorization from the appropriate
governmental authorities.
(e) AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an
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amendment, by each Party to this Agreement, or in the case of a waiver, by the
Party against whom the waiver is to be effective.
(f) No failure or delay by any Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any or other further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(g) NOTICES. All notices or communications of any kind made or
required to be given pursuant to this Agreement shall be in writing and
delivered to the other party at the address first set forth above, unless either
party gives notice to the other party of a change of address.
(h) ASSIGNMENT. Other than as expressly otherwise provided herein,
this Agreement shall not be assignable or otherwise transferable by any Party
hereto without the prior written consent of the other Party hereto; provided,
however, that neither Party shall be obligated to obtain the consent of the
other Party under this Section 21(h) (Assignment) solely by virtue of a Change
of Control of such Party, and such Party shall have the right to assign this
Agreement, in its entirety including all rights and obligations, to such Party's
successor in such Change of Control. Subject to the foregoing, the provisions of
this Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and assigns. Any assignment or transfer
(including through a change of control) of this Agreement in violation of this
Section 21(h) (Assignment) shall be null and void.
(i) LANGUAGE. All documentation, communication and services in
connection with this Agreement in shall be in English.
(j) ENTIRE AGREEMENT; SEVERABILITY. This Agreement, together with any
exhibits, constitutes the entire agreement between the Parties hereto and any of
such Parties' respective affiliates with respect to the subject matter of this
Agreement and supersedes all prior communications, agreements and
understandings, both oral and written, with respect to the subject matter of
this Agreement. In the event any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision, and the Parties agree to negotiate, in good faith, a legal and
enforceable substitute provision which most nearly effects the Parties' intent
in entering into this Agreement.
(k) OTHER REMEDIES; SPECIFIC PERFORMANCE. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a Party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby or
by law or equity upon such Party, and the exercise by a Party of any one remedy
will not preclude the exercise of any other remedy. The Parties hereto agree
that irreparable damage may occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that - notwithstanding section
21(a) - the Parties may be entitled to seek an injunction (einstweilige
Verfugung) to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in a German court, this being in addition to any
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other remedy to which they are entitled at law or in equity. Jurisdiction over
any action for injunctive relief shall lie with the courts of Berlin, Germany.
(l) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each Party hereto shall have received a counterpart
hereof signed by the other Party hereto.
(m) OTHER AGREEMENTS. No other express, written contracts and/or
agreements between EverQ, Evergreen, Q-Cells AG and/or Renewable Energy
Corporation ASA (and/or affiliates of the aforementioned companies) shall be
affected by this Agreement.
(n) CONDITIONS. This Agreement is entered into under the conditions
precedent that (i) the share capital in EverQ is increased to Euro [****]; (ii)
that such capital increase is registered with the commercial register, and (iii)
after registration of such capital increase, Evergreen, Q-Cells AG and Renewable
Energy Corporation ASA holds shares in a total amount of Euro [****] each.
This Agreement is entered into under the further conditions precedent
that the Competent Cartel Offices have issued a letter or formal decision that
they will not prohibit the increase of share capital in EverQ or that the
respective waiting periods provided for in the national merger control laws have
elapsed without any formal decision rendered or that the Competent Cartel
Offices confirmed that the transactions contemplated herein are not notifiable
under the applicable merger control law. Competent Cartel Offices means any
national or international agency, body or other entity to which the transactions
contemplated herein have to be notified under the applicable merger control
jurisdictions.
THE AUTHORIZED REPRESENTATIVES OF THE PARTIES HAVE EXECUTED THIS AGREEMENT ON
THE DATES INDICATED BELOW TO BE EFFECTIVE AS OF THE EFFECTIVE DATE.
For Evergreen: For EverQ:
/s/ Xxxxxxxx xxx Xxxxxxxxxxx 9/29/06 /s/ Xxxxxxx Xxxxxxx 9/29/06
------------------------------------- ----------------------------------------
Signature (date) Signature (date)
------------------------------------- ----------------------------------------
Name Name
------------------------------------- ----------------------------------------
Title Title
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EXHIBIT A
PRODUCTS
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EXHIBIT B
WARRANTY
STANDARD WARRANTY
EVERGREEN SOLAR
CEDAR LINE(TM) AND SPRUCE LINE(TM)
PHOTOVOLTAIC MODULES LIMITED
WARRANTY
LIMITED WARRANTY:
MATERIALS OR WORKMANSHIP
Evergreen Solar warrants the modules to be free from defects in materials
or workmanship under normal application, installation, use, and service
conditions. If the product fails to conform to this warranty, then, for a period
ending twenty-four (24) months from date of sale to the original consumer
purchaser, Evergreen Solar will, at its option, either repair or replace the
product or refund the purchase price. The repair, replacement, or refund remedy
shall be the sole and exclusive remedy provided under this warranty.
LIMITED WARRANTY:
POWER OUTPUT
Evergreen Solar warrants for a period of ten (10) years from the date of
sale to the original consumer purchaser that the power rating at Standard Test
Conditions will remain at 90% or greater of Evergreen Solar's Minimum Specified
Power Rating. Evergreen Solar further warrants for a period of twenty-five (25)
years from the date of sale to the original consumer purchaser that the power
rating at Standard Test Conditions will remain at 80% or greater of Evergreen
Solar's Minimum Specified Power Rating. Evergreen Solar will, at its option,
repair or replace the product, refund the purchase price, or provide the
purchaser with additional modules to make up lost power, provided that such
degradation is determined to be due to defects in materials or workmanship under
normal installation, application, and use. The relevant Minimum Specified Power
Rating is defined in Evergreen Solar's product data sheet at the time of
shipment. Standard Test Conditions are irradiance of 1000 W/m2, 25 degrees C
cell temperature, and AM 1.5 light spectrum.
LIMITATIONS AND CONDITIONS
The remedy set forth in these limited warranties shall be the sole and
exclusive remedy provided under the extended term warranty, unless otherwise
agreed by Evergreen Solar in writing. In Germany, these limited warranties are
neither a "guarantee of the quality" of the module pursuant to Section 443 BGB
(German Civil Code) nor are they an "acceptance of a guarantee" pursuant to
Section 276 BGB.
The limited warranties set forth herein do not apply to any module which in
Evergreen Solar's sole judgment has been subjected to misuse, neglect, or
accident; has been damaged through abuse, alteration, improper installation or
application, or negligence in use, storage, transportation, or handling; or has
in any way been tampered with or repaired by anyone other than Evergreen Solar
or its agent. The limited warranties do not cover costs associated with module
installation, removal, testing,
packaging, transportation, or reinstallation; other costs associated with
obtaining warranty service; or costs, lost revenues, or lost profits associated
with the performance or nonperformance of defective modules.
Any modules repaired or replaced by Evergreen Solar under a warranty claim
shall be covered by the same warranties and original term as the first product
purchased under said claim. The term shall not be prolonged or reset from the
date of sale to the original consumer purchaser. Any replaced parts or products
become the property of Evergreen Solar.
These limited warranties apply only to the first end-user purchaser of the
modules or to any subsequent owners of the original building or site where the
modules were first installed.
The limited warranties set forth herein are expressly in lieu of and
exclude all other express or implied warranties, including but not limited to
warranties of merchantability and of fitness for particular purpose, use, or
application and all other obligations or liabilities on the part of Evergreen
Solar, unless such other warranties, obligations, or liabilities are expressly
agreed to in writing signed and approved by Evergreen Solar.
Evergreen Solar shall have no responsibility or liability whatsoever for
damage or injury to persons or property, or for other loss or injury resulting
from any cause whatsoever arising out of or related to the product, including,
without limitation, any defects in the module, or from use or installation.
Under no circumstances shall Evergreen Solar be liable for incidental,
consequential, or special damages, howsoever caused.
Evergreen Solar's aggregate liability, if any, in damages or otherwise,
shall not exceed the payment, if any, received by seller for the unit of product
or service furnished or to be furnished, as the case may be, which is the
subject of claim or dispute.
Some jurisdictions do not allow limitations on implied warranties or the
exclusion or limitation of damages, so the above limitations or exclusions may
not apply to you. If a part, provision, or clause of terms and conditions of
sale, or the application thereof to any person or circumstance is held invalid,
void, or unenforceable, such holding shall not affect and leave all other parts,
provisions, clauses, or applications of terms and conditions remaining, and to
this end the terms and conditions shall be treated as severable.
This warranty gives you specific legal rights; and you may also have other
rights that vary from state to state and country to country. Neither party shall
be in any way responsible or liable to the other party, or to any third party,
arising out of nonperformance or delay in performance of the terms and
conditions of sale due to acts of God, war, riot, strikes, unavailability of
suitable and sufficient labor, and any unforeseen event beyond its control,
including, without limitations, any technological or physical event or condition
which is not reasonably known or understood at the time of sale.
Any claim or dispute regarding these warranties shall be governed by and
construed in accordance with the laws of the State of New York (US).
OBTAINING WARRANTY PERFORMANCE
If you feel you have a claim covered by warranty, you must promptly notify
the dealer who sold you the module of the claim. The dealer will give advice
handling the claim. If further assistance is required, write Evergreen Solar for
instructions.
The customer must submit a written claim, including adequate documentation
of module purchase, serial number, and product failure. Evergreen Solar will
determine in its sole judgment the adequacy of such claim. Evergreen Solar may
require that product subject to a claim be returned to the factory, at the
customer's expense. If product is determined to be defective and is replaced but
is not returned to Evergreen Solar, then the customer must submit adequate
evidence that such product has been destroyed or recycled.
Note: This document may be provided in multiple languages. If there is a
conflict among versions, the English language version dominates.
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