AMENDMENT NO. 3 TO POLYSILICON SUPPLY AGREEMENT
EXHIBIT
10.3
EXECUTION
COPY
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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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AMENDMENT
NO. 3 TO POLYSILICON SUPPLY AGREEMENT
THIS AMENDMENT NO. 3 TO POLYSILICON SUPPLY
AGREEMENT (This "Amendment
No. 3") is made this 1 day
of August, 2009 ("Effective
Date") by and between
Woongjin Energy Co., Ltd., a company organized and existing under the laws of
the Republic of Korea with its office located at 1316 GwanPyeong-Dong,
YuSung-Gu, DaeJeon, Korea (“JVC”), and 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”). Each of JVC and
SunPower is sometimes referred to herein as a "Party"
and collectively, as the "Parties". Capitalized
terms used in this Amendment No. 3 and not defined herein shall have the meaning
given to such terms in the Agreement (as hereinafter defined).
RECITALS
(a) JVC
and SunPower are parties to that certain Polysilicon Supply Agreement, dated as
of December 22, 2006 and as amended from time to time (the "Agreement"),
pursuant to which SunPower agreed to sell to JVC, and JVC agreed to purchase
from SunPower, certain Products.
(b) The
Parties desire to amend the Agreement to change the pricing for the Products set
forth in the Agreement.
NOW THEREFORE, in
consideration of the promises set forth above, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto, intending to be legally bound, hereby agree as
follows:
AGREEMENT
Schedule
2 of the Agreement is hereby amended by deleting such Schedule in its entirety
and replacing such Schedule with Schedule 2 hereto.
All other
provisions of the Agreement, except as specifically amended or waived hereby,
shall remain in full force and effect and are incorporated herein.
If any
part of this Amendment No. 3 or the Agreement as amended herein is found to be
void or unenforceable for any reason, the remainder of this Amendment No. 3 and
the Agreement as amended hereunder, shall be enforced, to the fullest extent
possible, as if such void or unenforceable provision was not part of this
Amendment No. 3.
This
Amendment No. 3 may be executed one or more counterparts, each of which shall be
deemed to be an original and shall constitute one and the same
instrument. This Amendment may be executed by facsimile, and each
such facsimile signature shall be deemed to be an original.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS THEREOF, the
Parties hereto, intending to be legally bound, have executed this Amendment No.
3 as of the date first written above
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WOONJIN ENERGY CO.,
LTD
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SUNPOWER PHILIPPINES MANUFATURING, LTD. | |||
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/s/Hak
Do Yoo
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/s/
Xxxxx Xxxxx
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|||
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Name:
Hak Do Yoo
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Name:
Xxxxx Xxxxx
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|||
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Title:
CEO
Date: Sept 2, 2009
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Title:
COO
Date: 9-18-09
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EXECUTION
COPY
Schedule
2
Product
Pricing
The
purchase price per kilogram for Products shall be as set from time to time by
SunPower or SunPower Corp. in their sole discretion and communicated to JVC by
or on behalf of SunPower or SunPower Corp.
Unless changed by SunPower or SunPower
Corp. after the Execution Date (with such changed being communicated to JVC by
or on behalf of SunPower or SunPower Corp.), the purchase prices per kilogram
for the Products will be $***.
Page 3 of
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
