Equipment Sales Agreement
Exhibit 4.33
This Equipment Sales Agreement (the “Agreement”) is entered into on April 30, 2010 (the “Effective
Date”), by and between SMIC Energy Technology (Shanghai) (Seller”), with its office located at No
00 Xxxxxxxxxx Xxxx, Xxxx 0, Xxxxxx New Area, Shanghai 201203, PRC, and Jiangsu Linyang Solarfun
Co., Ltd. (“Buyer”), a company located at 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx, XXX. Seller and the
Buyer are each referred to herein as a “Party” and collectively as the “Parties” to this Agreement.
Preambles:
Seller desires to sell and Buyer desires to purchase the equipment specified in Exhibit
A (collectively, the “Equipment”; an individual piece of the Equipment listed in
Exhibit A is sometimes referred to herein as a “Tool”).
Buyer shall continue solar cell manufacturing operations using the assets, personnel and
production area previously utilized by the Seller.
Concurrently with this Agreement, the Parties are entering into an HR Service Agreement in
substantially the form as in Exhibit B.
Now therefore, in consideration of the foregoing and the mutual covenants and agreements set
forth herein, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. EQUIPMENT AND INVENTORY LIST
On and subject to the terms and conditions of this Agreement, and subject to final SMIC
board approval and final Solarfun Audit Committee approval, at or before the relevant
Closing Date (defined below), Seller shall sell, assign, and transfer to Buyer, and Buyer
shall purchase, acquire, and accept from Seller, all of the right, title, and interest of
Seller in and to the Equipment set forth in Exhibit A and the Inventory.
For each Tool, Exhibit A shall set forth the manufacturer and model.
2. ASSIGNMENT OF EQUIPMENT AND INVENTORY
A. Assignment of Equipment and Inventory.
The Equipment and Inventory shall be assigned to Buyer on May 1, 2010 (the “Closing Date”) at Seller’s facility where the Equipment and Inventory is currently located. If Seller has an internal delay regarding one or more items of Equipment, and if Seller is unable for any reason to resolve this delay by the Closing Date, Buyer understands and accepts that it may not be possible for such item to be assigned to Buyer until the delay is resolved, with the understanding that any delay longer than 15 days from the Closing Date will be considered a material breach of this Agreement, and the Buyer will have the option to terminate according to Section 10. Upon such termination, Seller shall be liable solely for the return of any amounts of the Equipment Purchase Price or Inventory Purchase Price paid to Seller that are directly attributable to the Seller’s cost of the Equipment or Inventory that has not been delivered. Buyer shall be required to pay for any and all Equipment and Inventory assigned on or prior to the date of such transaction.
The Equipment and Inventory shall be assigned to Buyer on May 1, 2010 (the “Closing Date”) at Seller’s facility where the Equipment and Inventory is currently located. If Seller has an internal delay regarding one or more items of Equipment, and if Seller is unable for any reason to resolve this delay by the Closing Date, Buyer understands and accepts that it may not be possible for such item to be assigned to Buyer until the delay is resolved, with the understanding that any delay longer than 15 days from the Closing Date will be considered a material breach of this Agreement, and the Buyer will have the option to terminate according to Section 10. Upon such termination, Seller shall be liable solely for the return of any amounts of the Equipment Purchase Price or Inventory Purchase Price paid to Seller that are directly attributable to the Seller’s cost of the Equipment or Inventory that has not been delivered. Buyer shall be required to pay for any and all Equipment and Inventory assigned on or prior to the date of such transaction.
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When Seller assigns each Tool to Buyer, title to each Tool shall transfer from Seller to
Buyer and all risk for physical damage and loss to each Tool shall pass from Seller to
Buyer.
This Agreement is exclusively for a sale of hardware items only and does not include a sale
or license of any software (in any form) or any source code to software in any form,
regardless of whether such software has been packaged with, integrated into or otherwise
included or required with the Equipment.
B. Assignment of Contracts.
Effective as of the Closing Date, Buyer shall assume and observe, pay, perform, fulfill and discharge, and agree to be bound by the terms and conditions of the agreements listed in Exhibit C (the “Assumed Contracts”). It is further agreed that all prepayments that have been paid to Seller by the customers under the Assumed Contracts will be forwarded to Buyer with five (5) days of the Closing Date.
Effective as of the Closing Date, Buyer shall assume and observe, pay, perform, fulfill and discharge, and agree to be bound by the terms and conditions of the agreements listed in Exhibit C (the “Assumed Contracts”). It is further agreed that all prepayments that have been paid to Seller by the customers under the Assumed Contracts will be forwarded to Buyer with five (5) days of the Closing Date.
C. Warranty Matters.
Following the Closing Date, Buyer agrees to process and be liable for all repair or replacement of and all other Liabilities arising with respect to any product furnished, manufactured, sold and or licensed by Buyer, inclusive of products furnished under the Assumed Contracts, following the Closing Date. Seller is liable for all repair or replacement of and all Liabilities arising with respect to any product furnished, manufactured, sold and or licensed by Seller prior to the Closing Date. For purposes of this paragraph “Liabilities” shall mean all debts, commissions, duties, fees, salaries, performance or delivery penalties, and obligations (whether pecuniary or not, including without limitation obligations to perform or forebear from performing acts or services), fines or penalties, whether accrued or fixed, absolute or contingent, matured or un-matured, determined or determinable, known or unknown, arising or existing anywhere in the world, including without limitation those arising under any law, action or governmental order, liabilities for taxes and those arising under any contract.
Following the Closing Date, Buyer agrees to process and be liable for all repair or replacement of and all other Liabilities arising with respect to any product furnished, manufactured, sold and or licensed by Buyer, inclusive of products furnished under the Assumed Contracts, following the Closing Date. Seller is liable for all repair or replacement of and all Liabilities arising with respect to any product furnished, manufactured, sold and or licensed by Seller prior to the Closing Date. For purposes of this paragraph “Liabilities” shall mean all debts, commissions, duties, fees, salaries, performance or delivery penalties, and obligations (whether pecuniary or not, including without limitation obligations to perform or forebear from performing acts or services), fines or penalties, whether accrued or fixed, absolute or contingent, matured or un-matured, determined or determinable, known or unknown, arising or existing anywhere in the world, including without limitation those arising under any law, action or governmental order, liabilities for taxes and those arising under any contract.
3. FUTURE DEINSTALLATION & RELOCATION
Buyer is purchasing the Equipment with the understanding that the Equipment shall remain and
be utilized at its current location, subject to the terms of a separate Lease Agreement
between the Buyer and SMIC Shanghai Corporation, to be modeled on the attached “Lease
Agreement” in Exhibit D.
If following the expiration or mutual termination of the Lease Agreement Buyer wishes to
relocate the Equipment, Buyer shall be responsible for the relocation of the Equipment from
Seller’s facility including, but not limited to, separation, de-hooking, unplugging,
dismantlement, cleaning, packaging, inland and overseas transportation, insurance, custom
clearance, and application for export license, as required. Any and all costs and out of
pocket expenses incurred in connection with the relocation, custom, duties and any other tax
related to the relocation or the transaction contemplated shall be borne by Buyer.
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4. PURCHASE PRICE AND PAYMENT TERMS
Subject to the terms and conditions of this Agreement, Buyer shall pay to Seller a
nonrefundable, aggregate amount of four million, two hundred and fifty thousand United
States Dollars (USD$4,250,000) (the “Equipment Purchase Price”), not inclusive of any taxes
that may be charged under PRC law which Buyer shall pay. 30% of the Equipment Purchase
Price shall be payable on the Closing Date, with the remaining 70% of the Equipment Purchase
Price to be paid within 30 days of the Closing Date. If, however, certain Equipment as
identified on Exhibit A has not yet been effectively assigned from Seller to Buyer within 30
days of the Closing Date, Buyer will pay only 50% of the Equipment Purchase Price on the
30th day after Closing Date, with the remaining 20% to be paid upon the effective
assignment of all Equipment from Seller to Buyer.
As of the Closing Date, Buyer shall purchase the outstanding spare parts, raw materials,
work-in-process, and unsold finished goods inventories of Seller (“Inventory”) at Seller’s
cost (the “Inventory Purchase Price”). A separate list of all such items making up the
inventory shall be provided from Seller to Buyer, as of the Closing date and the price for
all items of Inventory, shall be equal to Sellers’ cost. The Inventory Purchase Price shall
be payable within 30 days of the Closing Date.
5. AS-IS
Seller shall sell, assign, transfer, and deliver to Buyer the Equipment and Inventory only
on an “as-is” basis. Seller gives no and shall give no warranties that any Equipment or
Inventory is in good and proper physical condition, free from defects in materials and
workmanship and that there is no infringement of intellectual properties owned by third
parties in connection with any Equipment or Inventory and/or operation thereof. Seller
makes no warranties, express or implied, including, but not limited to, those concerning
merchantability, title or fitness for a particular purpose. No representation or statement
that is not expressly contained in this Agreement will be binding on Seller as a warranty.
Other than those set forth expressly elsewhere in this Agreement, Buyer shall have no right
to claim or cause of action, whether in contract, tort or otherwise, against Seller with
respect to any defect of the Equipment or
Inventory or any loss or damages resulting from Buyer’s operating or using the Equipment or
the Inventory. To the extent that any manufacturer’s warranties are still valid for any of
the Equipment and to the extent that such warranties can be freely assigned without any cost
or liability to Seller or notice to or consent of manufacturer or any other third party,
Seller assigns all such warranties to Buyer. Exhibit A lists the Equipment for which the
manufacturers warranty may currently be valid. No representation is made regarding whether
such warranties may be assigned and the assignment herein is subject to the terms and
conditions provided herein and to all terms and conditions of such warranties.
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Seller Not Responsible for Damage Caused by Acts of Buyer: Notwithstanding anything
to the contrary contained in this Agreement, Seller will not be responsible for any damage
to any item of Equipment or Inventory caused by the actions or omissions of Buyer or any of
its employees, agents, consultants, contractors or subcontractors at any level. As between
Seller and Buyer, any such damage shall be the sole responsibility and liability of Buyer,
and Buyer shall be deemed to have waived any rights to reject or require Seller to uncrate,
start up, warrant or perform any other services in respect of any such item of Equipment
so damaged.
so damaged.
6. HAZARDOUS MATERIAL DISCLOSURE
BUYER UNDERSTANDS THAT CERTAIN ITEMS OF EQUIPMENT MAY HAVE EMPLOYED HAZARDOUS MATERIALS.
PROPER PROTECTIVE GEAR AND CLOTHING, AND PROPER SAFETY METHODS SHOULD BE USED AT ALL TIMES
WHEN HANDLING AND/OR USING THIS EQUIPMENT.
BUYER IS SOLELY LIABLE FOR ANY DAMAGES TO ITS EMPLOYEES, AGENTS, CONSULTANTS, CONTRACTORS OR
SUBCONTRACTORS AT ANY LEVEL CAUSED BY THE HANDLING AND/OR USING OF THE EQUIPMENT.
7. CONFIDENTIALITY
Except as may be required by law, each Party shall treat as confidential, and shall not
disclose to any third parties, all documents and oral information designated as
“confidential” or “proprietary” received from the other Party in connection with the
transactions contemplated by this Agreement. Confidential information shall not include any
information that: (a) becomes known to the public through no fault of the recipient; (b) is
rightfully received by the recipient from a third party without restriction on disclosure;
(c) is independently developed by recipient without the use of the disclosing Party’s
confidential information; or (d) is in the possession of recipient prior to its disclosure
by the disclosing Party.
8. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the PRC,
without reference to choice of law provisions. Any dispute arising from or in connection
with this Agreement, which cannot be resolved in good faith by the Parties themselves, shall
be submitted to the exclusive jurisdiction and venue of the China International Economic and
Trade
Arbitration Commission Shanghai Branch for arbitration. The arbitral award is final and
binding upon both Parties. During arbitration proceedings, both Parties will not suspend,
refuse or delay further performance of any obligations that are not the subject of the
arbitration proceeding under this Agreement.
9. COMPLIANCE WITH LAWS
Each Party shall comply with all applicable national, state and local laws and regulations
including but not limited to laws and regulations governing the manufacture, processing,
distribution, transportation, labeling, handling, discharge, treatment, disposal, recycling,
reclamation, use, import, export, or other activity relating to the Equipment.
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10. TERMINATION
In the event of any default in the performance of its obligation hereunder by either Party,
or any material breach of this Agreement by either Party, and if such default or material
breach is not corrected within thirty (30) days after written notice by the other Party of
such default or material breach, this Agreement may be terminated by the other Party
forthwith by written notice to the defaulting or breaching Party.
This Agreement may be terminated in whole or in part by: (1) the mutual written consent of
Buyer and Seller; (2) subject the notice period set forth above, the Seller, in the event
that Buyer fails to perform the obligations it owes hereunder; or (3) subject to the notice
period set forth above, the Buyer, in the event that Seller fails to perform the obligations
it owes hereunder.
Termination of this Agreement shall not release Buyer from compensation to the Seller for
its damages caused by such breach.
11. FORCE MAJEURE
Neither Party shall be responsible for any failure or delay to perform due to the cause or
causes of Force Majeure including new acts of war or aggression (declared or undeclared) by
any country or economy, epidemics, fire, storm, flood, typhoon or other severe weather
conditions, earthquake, strike, government or like interference, as well as any other cause
outside the control of such Party.
12. ASSIGNMENT
Seller may assign or delegate its rights and/or obligations, or any part thereof under this
Agreement to one or more subsidiaries or affiliated entities. Otherwise, neither Party may
assign or delegate its rights and obligations under this Agreement without the prior written
consent of the other.
13. NOTICES
Any notices or correspondence concerning this Agreement shall be in writing sent via
confirmed facsimile or internationally recognized overnight or courier delivery services.
14. LIMITATION OF LIABILITY
IN NO EVENT WILL SELLER OR BUYER BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF
DATA, LOSS OF USE, LOSS OR DAMAGE TO TANGIBLE PROPERTY, OR INTERRUPTION OF BUSINESS, OR
SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND IRRESPECTIVE OF WHETHER
SELLER OR BUYER, AS APPLICABLE, HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
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15. MISCELLANEOUS
This Agreement contains the entire agreement between the Parties with respect to the subject
matter thereof and supersedes all prior written and oral agreements. If any provision of
this Agreement is found to be illegal or unenforceable, the other provisions shall remain
effective and enforceable to the greatest extent permitted by law. No provision of this
Agreement may be waived except by a writing executed by the Party against whom the waiver is
to be effective. A Party’s failure to enforce any provision of this Agreement shall neither
be construed as a waiver of the provision nor prevent such Party from enforcing any other
provision of this Agreement. No provision of this Agreement may be amended or otherwise
modified except by a writing signed by the Parties to this Agreement. The Parties may
execute this Agreement in counterparts, each of which is deemed an original, but all of
which together constitute one and the same agreement. This Agreement may be delivered by
facsimile and a facsimile of this Agreement shall be binding as an original. This Agreement
will not be effective unless and until it is executed and delivered by each of Buyer and
Seller.
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IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this
Agreement as of the Effective Date.
| JIANGSU LINYANG SOLARFUN CO., LTD | SMIC ENERGY TECHNOLOGY (SHANGHAI) CORPORATION |
|||||
By: |
/s/ Xxxx Xxx | By: | /s/ Xxxxx X.X. Xxxx | |||
Name: |
Ping Xxxxx Xxx | Name: | Xxxxx X.X. Xxxx | |||
Title: |
President | Title: | President and CEO | |||
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