Supply Agreement - Solar Grade Silicon LLC and Evergreen Solar Inc.
SUPPLY AGREEMENT
This Supply Agreement ("Agreement") is made this 24th day of November, 2005, by
and between:
SOLAR GRADE SILICON LLC, 3322 Road, "N" N.E., Moses Lake, Washington 98837, USA
(hereinafter referred to as "SGSIL") and
EVERGREEN SOLAR, INC., a Delaware corporation with its principal executive
offices located at 138 Bartlett Street, Marlboro, Massachusetts, USA
(hereinafter referred to as "CUSTOMER" ).
SGSIL and Customer are each sometimes referred to here in as a "Party" and are
jointly referred to sometimes as the "Parties."
RECITALS
Customer desires to purchase a supply of polycrystalline solar grade silicon
from SGSIL for its own use in the production of silicon wafers for solar
application, subject to the terms and conditions set forth herein.
SGSIL manufactures and sells solar grade polycrystalline silicon products and is
willing to supply such products to Customer, subject to the terms and conditions
set forth herein.
Now, therefore, in consideration of the foregoing, SGSIL and Customer agree as
follows:
1. DEFINITIONS
"AFFILIATE" shall have the meaning set forth in the Master Joint Venture
Agreement.
"BLANKET PURCHASE ORDER" shall mean an [****] purchase order of the amount of
Products Customer will order during a [****], setting forth delivery dates and
quantities for such Products.
"CHANGE OF CONTROL" shall have the meaning set forth in the Master Joint Venture
Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any US, or German or Norwegian, federal,
national, supranational, state, provincial, municipal, local, or similar
government, governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body.
"MASTER JOINT VENTURE AGREEMENT" shall mean that certain Master Joint Venture
Agreement by and between Evergreen Solar, Inc., Q-Cells AG and Renewable Energy
Corporation, dated 24 November 2005.
"PRODUCTS" shall mean the solar grade polycrystalline silicon products to be
sold pursuant to this Agreement as listed in Attachment 1 and described in the
Specifications, as may be modified, from time to time by the Parties in a
written Amendment to this Agreement, signed by both Parties.
"SHARES" shall have the meaning set forth in the Master Joint Venture Agreement.
"SPECIFICATIONS" shall mean the Product technical specifications and the other
Product information listed, described or referred to in Attachment 1.
2. PURCHASE OF PRODUCT.
2.1 SGSIL shall sell and deliver, and Customer shall purchase, the quantities
of Products set forth in each Order Confirmation, based on Customer's
[****] Blanket Purchase Order.
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Customer acknowledges and agrees that if it desires to purchase additional
Products in excess of its then-current Blanket Purchase Order and, in any
event, if in excess of the maximum quantities set forth in Section 3, any
such purchase shall be subject to SGSIL having the relevant free production
capacity at the time of any such excess order by Customer, and subject to
the provisions of Section 8, below.
2.2 Notwithstanding the fact that Products may be ordered only pursuant to the
issuance of an [****] Blanket Purchase Order, for SGSIL's planning and
forecasting purposes, Customer agrees to deliver in writing to SGSIL its
forecasted requirements of Products for the periods and at the times as
follows:
(i) The rolling [****] quantity forecast set forth in Attachment 2 shall
be updated [****] during the Term.
(ii) The rolling [****] quantity forecast set forth in Attachment 2 shall
be updated [****] during the Term.
2.3 Contemporaneously with the execution of this Agreement, a Blanket Purchase
Order for [****] in the form of Attachment 4 shall be deemed issued to
SGSIL in the [****] quantity amount set forth therein (which amount shall
be not less than the minimum quantity set forth in Attachment 2), and
setting forth the [****] delivery dates, commencing in January, 2006, for
the delivery of the [****] quantity of Products set forth therein in [****]
quantities. For each subsequent [****] in the Term, Customer shall issue a
Blanket Purchase Order in similar form, except the [****] quantity stated
in such Blanket Purchase Order shall be delivered in [****] deliveries on
the delivery dates set forth therein, by not later than [****] of the
then-current [****]. In the event such an [****] Blanket Purchase Order is
not timely issued hereunder for any [****] during the initial [****] Term,
Customer shall be deemed to have issued a Blanket Purchase Order for the
corresponding minimum [****] quantity of Products for such year set forth
in Attachment 2, to be delivered in [****] shipments by SGSIL.
3. QUANTITIES.
3.1 Subject to the minimum quantity of Products to be purchased by Customer
during [****] as specified in Attachment 2, and the maximum quantities of
Products to be purchased by Customer stated therein, the quantity of
Products purchased by Customer under this Agreement shall be the quantities
set forth in each [****] Blanket Purchase Order issued in accordance with
Section 2.3. For subsequent years during the term of this agreement, the
Parties will agree to a minimum and target amount of product to be
delivered, but in no case will the minimum and target quantities be less
than those listed in 2008, unless mutually agreed to by the Parties.
4. PRODUCT PRICING & PAYMENT TERMS.
4.1 The price of the Products during the term of this Agreement will be the
lesser of (i) [****] By [****] the Parties mean the [****] All prices set
forth herein do not include freight, insurance, sales or value added tax,
customs duties, or like charges which will be billed to Customer if SGSIL
advances them.
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4.2 In the event the Parties cannot agree on [****] Product pricing by [****]
of the immediately preceding calendar year, then Parties shall submit the
issue to binding determination of the applicable price in accordance with
Section 4.1, and the price determined by the arbitration shall be used for
the Products for such [****]. The determination shall be done by an expert
on the solar energy sector, to be appointed [****] and shall follow such
procedural rules as the Parties agree on with the determinator.
4.3 Customer shall pay SGSIL the full price, in U.S. dollars, of all Products
purchased under this Agreement by paying SGSIL the balance, without
deduction, shown on each [****] invoice issued by SGSIL pursuant to Section
5.7, by wire transfer in readily available U.S. funds, within [****] after
the date of such invoice. Interest shall accrue on overdue invoices the
lesser of [****] or at the maximum rate permitted by applicable law. If
Customer fails to timely pay an invoice, SGSIL may, in its sole and
absolute discretion, demand the balance owed on such invoice including
accrued interest, and/or may stop future deliveries of Products to Customer
until Customer pays such delinquent invoice. In addition, in the event of a
dispute regarding payment of amounts due hereunder, the losing Party shall
pay the prevailing Party's reasonable costs and expenses in such collection
or defense as the case may be, including reasonable attorneys' fees, costs
of expert witnesses, costs of translators and any other collection cost or
cost of suit, whether or not an action or proceeding is commenced or
concluded.
5. DELIVERY; INVOICING.
5.1 Products will be purchased by Customer through the issuance of [****]
Blanket Purchase Orders and any additional Products in excess of the
quantities stated in such Blanket Purchase Orders will be purchased by
Customer at the then-current pricing in effect at the time of such purchase
order, through the issuance by Customer of a separate purchase order, which
additional purchase order shall not be effective until the quantity and
requested delivery date(s) set forth in such additional purchase order are
accepted and confirmed in writing by SGSIL.
5.2 All Products to be purchased hereunder, whether pursuant to a Blanket
Purchase Order or an additional purchase order, shall be delivered FCA from
SGSIL's Washington Distribution Facility in Kent, Washington, USA, (the
"Washington Distribution Facility") to Customer's facility at the location
specified by Customer in writing, together with the correct documentation
and adequate packing and labeling as set forth in Attachment 1.
5.3 In accordance with Section 2.3, the initial delivery of Products to be
shipped to Customer pursuant to this Agreement shall be in January, 2006
Product quantity amount set forth in Customer's [****] Blanket Purchase
Order.
5.4 The Products shall be deemed delivered by SGSIL to Customer under the
then-current Blanket Purchase Order when transferred to Customer's chosen
carrier at SGSIL's Washington Distribution Facility in Kent, Washington, or
such other shipping point in the United States of America designated in
writing by SGSIL. Upon any such delivery of Products to Customer, Customer
shall have purchased that quantity of Products and shall be obligated to
pay SGSIL for such Products unless rejected as not conforming to the
Product Specifications and returned by Customer within [****] of Customer's
receipt of the Products.
5.5 Title and risk of loss to the Products shall pass to Customer when SGSIL
delivers the Products to Customer at the Washington Distribution Facility
in accordance with the terms set forth in Section 5.4.
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5.6 Any [****] order of Products pursuant to the then-current Blanket Purchase
Order or any additional order of Products during a [****] in excess of the
amounts stated therein may be confirmed or issued by Customer, as the case
may be, on Customer's usual order acknowledgment form or purchase order;
provided, however, the provisions of this Agreement shall govern and
supersede all inconsistent, different, or additional terms, conditions, and
instructions contained in Customer's order acknowledgment or purchase order
form or in any other Customer transactional documentation provided by
Customer to SGSIL after the effective date of this Agreement.
5.7 Upon SGSIL's shipment of any order under this Agreement, whether a [****]
delivery under a Blanket Purchase Order or an additional delivery pursuant
to a separate purchase order, SGSIL shall in writing, sent electronically
or by facsimile transmission, invoice Customer for such order. All invoices
issued by SGSIL hereunder shall list the date of each shipment, the
quantity and type of Products shipped to Customer, the unit and extended
prices of all Products shipped and the total price owed by Customer for
such shipment. Upon Customer's receipt of SGSIL's invoice, Customer is
obligated to pay the amount set forth therein in accordance with Section
4.3.
5.8 SGSIL shall exercise its commercially reasonable efforts to manufacture and
deliver from SGSIL's Washington Distribution Facility the Products ordered
by Customer under this Agreement, on or before the delivery date or dates
set forth in SGSIL's Blanket Purchase Order or additional purchase order
confirmation. Any such additional purchase order shall be confirmed by
SGSIL electronically or by facsimile transmission within [****] of SGSIL's
receipt of any such additional purchase order. However, without prejudice
to SGSIL's obligation to exercise its [****] efforts to deliver the
Products to Customer on any date of delivery given by SGSIL to Customer,
whether pursuant to an [****] Blanket Purchase Order or a separate
additional purchase order, SGSIL shall immediately inform Customer in
writing if any delay is foreseen.
6. WARRANTY AND LIMITATION OF LIABILITY.
6.1 LIMITED WARRANTY. SGSIL warrants that, for [****] from the date of
delivery, the Products will conform to SGSIL's published product
description set forth in the Specifications. If Customer timely notifies
SGSIL in writing of a nonconformity, upon verification of the
nonconformity, SGSIL, in its sole discretion, shall provide Customer with
one of the following remedies: (i) replacement of the Products that SGSIL
verifies do not conform to this warranty; (ii) retreatment of the Products
to bring them into conformity with this warranty; or (iii) issuance of a
credit to Customer's account to reflect the decrease in value of the
Products resulting from the non-conformance with this warranty. The
election of remedies provided in this section shall be SGSIL's exclusive
obligation with respect to remedying any warranty claims for Products and
Customer's sole and exclusive remedy for all claims of defects. If the
remedy chosen by SGSIL in its sole discretion hereunder is adjudicated to
be insufficient, including, without limitation, any finding of failure of
essential purpose, SGSIL shall be entitled to the alternative remedy of
refunding the price paid by Customer for such defective Products and SGSIL
shall have no other liability to Customer for breach of this limited
warranty. No Products furnished by SGSIL shall be covered by this warranty
if the claimed defect is due to Customer's failure to properly store,
maintain, or use the Products in accordance with good industry practices or
specific recommendations or instructions of SGSIL. ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, ARE DISCLAIMED.
6.2 The warranties set forth in Section 6.1 do not extend to any Product that:
(i) has been subjected to misuse, neglect or abuse not caused by SGSIL,
(ii) has a defect caused by having been modified or altered by a party
other than SGSIL, (iii) has a defect caused by a combination with another
product
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not supplied or specified by SGSIL, or (iv) has been used in violation of
the Specifications and/or other approved written instructions furnished to
Customer by SGSIL prior to the delivery of the Product.
6.3 Customer shall ship a claimed defective Product to SGSIL's designated
repair location FCA, Customer's location, freight collect. Within [****]
after receipt of a defective Product, SGSIL shall ship the retreated or
replacement Product, at SGSIL's expense to Customer's designated location
(freight prepaid, DDU, Customer's destination). If SGSIL determines that
the Product is not defective and conforms to the Specifications, SGSIL
shall ship the non-defective Product to Customer at Customer's expense,
FCA, SGSIL's designated repair location, freight collect, and Customer
shall refund all freight, shipping, insurance, customs, duties and other
charges previously paid by SGSIL in connection with Customer's return of
the Product. Customer shall include the following information with the
return of the claimed defective Product: (i) Customer's name and complete
address, (ii) name(s) and telephone number(s) of Customer's designated
contact if there are questions regarding the claimed defective Product,
(iii) the "ship-to" address for the retreated or replacement Product, (iv)
complete list of all claimed defective Product being returned, and (v)
nature of each Product's claimed defect or failure.
6.4 LIMITATION OF LIABILITY. In no event shall SGSIL's liability for damages in
relation to any Products sold to Customer pursuant to this Agreement exceed
the purchase price paid by Customer for the goods directly having caused
those damages. In no event shall SGSIL be liable for consequential,
incidental, special, punitive or exemplary damages. Customer acknowledges
and agrees that these limitations are reasonable and that such limitations
have been specifically bargained for between the Parties.
7. CONFIDENTIALITY.
7.1 "Confidential Information" means any information: (i) disclosed by one
Party (the "Disclosing Party") to any other Party (the "Receiving Party"),
which, if in written, graphic, machine-readable or other tangible form is
marked as "Confidential" or "Proprietary", or which, if disclosed orally or
by demonstration, is identified at the time of initial disclosure as
confidential and reduced to writing and marked "Confidential" within [****]
of such disclosure; or (ii) which is otherwise referred to as Confidential
Information under this Agreement or any License Agreement.
7.2 Notwithstanding Section 7.1 above, Confidential Information shall exclude
information that: (i) was independently developed by the Receiving Party
without using any of the Disclosing Party's Confidential Information; (ii)
becomes known to the Receiving Party, without restriction, from a source
other than the Disclosing Party that had a right to disclose it; (iii) was
in the public domain at the time it was disclosed or becomes in the public
domain through no act or omission of the Receiving Party; or (iv) was
rightfully known to the Receiving Party, without restriction, at the time
of disclosure.
7.3 The Receiving Party shall treat as confidential all of the Disclosing
Party's Confidential Information and shall not use such Confidential
Information except as expressly permitted under this Agreement. Without
limiting the foregoing, the Receiving Party shall use at least the same
degree of care that it uses to prevent the disclosure of its own
confidential information of like importance, but in no event with less than
reasonable care, to prevent the disclosure of the Disclosing Party's
Confidential Information, subject to Section 7.4 below.
7.4 Notwithstanding anything herein to the contrary, a Receiving Party has the
right to disclose Confidential Information without the prior written
consent of the Disclosing Party: (i) as required by
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any court or other Governmental Authority, or any stock exchange where a
Party's shares are listed; (ii) as otherwise required by law, or (iii) as
advisable or required in connection with any government or regulatory
filings. If a Receiving Party believes that it will be compelled by a court
or other authority to disclose Confidential Information of the Disclosing
Party, it shall give the Disclosing Party prompt written notice so that the
Disclosing Party may take steps to oppose such disclosure.
8. CAPACITY.
In the event SGSIL from time to time experiences limited delivery capacity
as a result of Force Majeure (as defined in Section 9) or as a result of
demand for Products by Customer in excess of the maximum quantity amounts
set out in Section 3 and Attachment 2 (a "Limited Capacity Period"), SGSIL
shall use its [****] efforts to allocate delivery of Products to Customer
and SGSIL's other customers in proportion to Customer's and other
customers' relative orders for forecasted amounts of Products and their
orders for Products in excess of forecasted amounts. Notwithstanding
anything to the contrary in this Agreement, Customer agrees that such
[****] efforts by SGSIL shall constitute adequate performance of SGSIL's
obligations under this Agreement during a Limited Capacity Period.
9. FORCE MAJEURE.
9.1 Neither party shall be considered in default in the performance of its
obligations hereunder to the extent that the performance of these
obligations is prevented or delayed by Force Majeure. The term "Force
Majeure" is hereby defined as the following: acts of God; plant accidents;
strikes; lockouts or other similar industrial disturbances; acts of public
enemies; orders or restraints of any kind from any Governmental Authority
(except when such governmental action results from a Party's failure or
refusal to comply with any applicable law, rule or regulation); acts of
terrorism; war, insurrection or riots; earthquakes, fires, storms or other
natural disasters.
9.2 In case of Force Majeure according to Section 9.1 either party shall
promptly notify the other party and shall use its [****] efforts to
minimize the consequences.
9.3 For the duration and to the extent of Force Majeure, the Parties will be
released from their obligations under this Agreement. The Term shall be
extended for an amount of time equal to the period during which the Parties
were released from their obligations under this Agreement.
10. SUSPENSION OF PERFORMANCE - TERMINATION.
10.1 This Agreement may terminate in the event that the parties mutually agree
in writing to terminate this Agreement (subject to the Master Joint Venture
Agreement).
Either Party may suspend its performance under this Agreement for a
material breach or default of any of the terms, conditions or covenants of
this Agreement by the other, provided that such suspension of performance
may be made only following written notice of such breach with reference to
this Section 10.1 and the expiration of a [****] period during which period
the other party has failed to cure such breach after such notice. Such
suspension of performance shall not affect any delivery under a Blanket
Purchase Order for a delivery date that is prior to the date of suspension
of performance or an additional purchase order accepted by SGSIL prior to
the date of suspension of performance. The suspension of performance shall
not prejudice the rights or liabilities of the Parties with respect to
Product sold, or any indebtedness then owing by either party to the other.
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No single instance of suspension of performance may exceed [****], nor must
performance be suspended by one Party more than [****] in any [****] period
under the Agreement. Should an event occur, that might otherwise give a
Party the right to suspend performance had it not already done so [****] in
the last [****], the Party may instead elect to terminate the Agreement
according to the rules of article 10.2 to the extent these are applicable.
10.2 Either Party may terminate this Agreement, effective immediately, without
liability for said termination, upon written notice to the other Party, if
any of the following events occur:
(i) The other files a voluntary petition in bankruptcy or is adjudged
bankrupt;
(ii) A court assumes jurisdiction of the assets of the other under a
federal reorganization act;
(iii) A trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other;
(iv) The other becomes insolvent or suspends its business;
(v) The other makes an assignment of its assets for the benefit of its
creditors, except as required in the ordinary course of business; or
Notwithstanding the generality of the foregoing, the Parties agree that in
the event of a termination by SGSIL pursuant to this Section 10.2, such
termination shall also automatically terminate the then-current Blanket
Purchase Order, and any deliveries thereunder, and any additional purchase
orders received from Customer, and SGSIL shall have no obligation to
deliver Products pursuant to any such terminated Blanket Purchase Order or
additional purchase order.
11. MISCELLANEOUS.
11.1 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 all the other parties hereto, and any purported
assignment or other transfer without such consent shall be void and
unenforceable; provided, however, that any Party may assign this Agreement:
(a) to any of its Affiliates so long as it will be made at the same time
as a transfer of its Shares to such Affiliate specifically permitted
by the Master Joint Venture Agreement;
(b) in connection with the sale by a Party of all of the Shares
beneficially owned by such Party as specifically provided by the
Master Joint Venture Agreement, including by way of the Change of
Control of such Party.
(c) For the avoidance of doubt, neither Party shall be obligated to obtain
the consent of the other Party (under this Section 11.1) solely by
virtue of a Change of Control of such Party.
11.2 In the event any provision of this Agreement shall be declared
unenforceable or invalid by a legal authority having jurisdiction over the
Agreement and the Parties, the validity of the remaining provisions shall
not in any way be affected or impaired thereby. The Parties shall in good
faith work together toward replacing the ineffective or invalid provisions
with valid provisions, which fulfill the economic purpose of the
ineffective or invalid provision.
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11.3 Any amendment, addition, deletion, alteration or change of this Agreement
shall only be valid if in writing and executed by each of the Parties. The
following listed documents shall be the only documents attached to this
Supply Agreement:
[ ] Attachment 1 - Specifications
[ ] Attachment 2 - Supply Forecasts, Minimum and Maximum [****]
Quantities, Pricing and Product Mix
[ ] Attachment 3 - Addresses and Contact Persons
[ ] Attachment 4 - Blanket Purchase Order
11.4 This Agreement shall be null and void, and SGIL shall have no obligations
whatsoever hereunder, unless the parties thereto sign and execute the
Master Joint Venture Agreement, on the date indicated, in such a way as to
give it full legal effect under German law, including, but not limited to,
notarising it. Furthermore, no obligations shall be binding for SGIL until
such a time as the initial share transfer regulated by the Master Joint
Venture Agreement article 2.2 (a) and (b) have been completed according to
the further regulation of the Master Joint Venture Agreement article 2.2
(d).
12. TERM.
Except as otherwise extended pursuant to a force majeure under Section 9.3,
or earlier terminated pursuant to Section 4.2 or Section 10, this Agreement
will be effective on the date executed by both of the Parties and will
endure for an initial period of seven (7) years and, thereafter, shall be
automatically extended for consecutive periods of one year, unless either
Party provides to the other Party written notice of its intent to terminate
this Agreement as of the next occurring expiration date, which notice shall
be given not less than [****] prior to such expiration date. The initial
seven (7) year term of this Agreement, and any extensions thereof pursuant
to this Section 12 shall be referred to herein as the "Term."
13. APPLICABLE LAW.
The law applicable to this Agreement is set forth in Section 16.
14. NOTICES.
All notices called for under this Agreement shall be in writing. Notice
shall be deemed effective if sent registered mail to the address listed in
Attachment 3 or to such other address as either party may, from time to
time, by written notice provide to the other Party. Notice shall also be
effective if actually received by any method that produces a hard copy
record, including facsimile transmissions and e-mail with confirmation of
receipt.
15. GOVERNING LANGUAGE.
The parties hereby confirm that they have agreed that all written documents
between them shall be prepared in the English language only and such
language shall be the governing language.
16. DISPUTE RESOLUTION.
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 American Arbitration Association (AAA) without recourse to the
ordinary courts of law. The place of arbitration is New York, New York. The
arbitral
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tribunal consists of three arbitrators. The law of the State of New York is
applicable to the dispute. The language of the arbitral proceedings is
English.
17. PATENT INDEMNITY.
SGSIL warrants that the sale or use of the Products does not infringe or
misappropriate any third party's patents, trademarks, trade secrets or
other proprietary rights (collectively, "PROPRIETARY RIGHTS"). SGSIL will
hold Customer harmless from all costs, losses, damages and liability which
may be awarded against Customer on account of the infringement of such
third party's Proprietary Rights by the Products, provided SGSIL is given
prompt notice by Customer of any pending or threatened infringement claim
and is allowed to control the defense and settlement of any such claim.
SGSIL shall have the right to settle any such infringement claim on the
terms and conditions it deems advisable. SGSIL shall not be liable for any
infringement claims or costs or damages incurred as a result of any suit or
proceeding based upon a claim that: (i) the infringement was caused by a
combination of the PRODUCT with another product not supplied by SGSIL or
which other product was specified by Customer and not otherwise provided by
SGSIL, where the Product otherwise does not infringe or (ii) if the PRODUCT
was modified after delivery to Customer, where the unmodified Product does
not infringe.
18. COMPLIANCE WITH FOREIGN LAWS.
Customer shall obtain all licenses, permits and approvals required by any
United States law or regulation with respect to the export of the Products
to Customer's facility outside the United States under this Agreement.
Subject to Section 19, Customer agrees that, after the Products arrive at
Customer's facility, Customer will not re-export the Products except in
compliance with United States export laws and regulations. Customer shall
be responsible for formal compliance with those export laws and
regulations. In addition, Customer expressly assumes responsibility for
determining the need for and obtaining import licenses, currency exchange
approvals and any other governmental approvals that may be necessary to
permit the import of the Products into Germany. Customer is responsible for
full compliance with all applicable laws or regulations in countries other
than the United States concerning the export, sales or use of the Customer
products incorporating the Products sold hereunder. Customer will indemnify
and hold SGSIL harmless from any costs, liabilities or damages that result
from any failure by Customer to comply with such laws.
19. USE OF PRODUCTS.
Customer agrees that the Products sold and delivered to Customer hereunder
are to be used solely for use in Customer's own photovoltaic products and
are not to be resold or used by Customer for any other purpose or in any
other manner whatsoever.
20. QUESTIONABLE PAYMENTS.
Customer shall at all times comply, and shall cause its directors,
officers, employees and agents to abide by and comply, in all respects,
with the United States Foreign Corrupt Practices Act (15 U.S.C.
Sections 78dd-1, 78dd 2, 78dd-3 and 78m, as amended) and all United States
governmental agency regulations applying or interpreting said Act and, to
the extent applicable in any non-U.S. jurisdiction, with the Convention on
Combating Bribery of Foreign Public Officials in International Business
Transactions (Dec. 18, 1997, 37 I.L.M 1 (1998), and/or the European Union
Convention on the Fight Against Corruption Involving Officials of the
European Communities or Officials of the Member States of the European
Union (O.J. No. C195, 25.06.1997, May 26, 1997), or any similar treaty,
convention, law or regulation applicable in the jurisdiction in question.
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IN WITNESS WHEREOF, SGSIL and Customer have caused this Agreement to be executed
by their duly authorized officer or representative, as of the date and year set
forth below.
SOLAR GRADE SILICON LLC EVERGREEN SOLAR, INC
BY: BY:
--------------------------------- ------------------------------------
PRINT NAME: PRINT NAME:
------------------------- ----------------------------
ITS: ITS:
-------------------------------- -----------------------------------
DATE: DATE:
------------------------------- ----------------------------------
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ATTACHMENT 1 - SPECIFICATIONS
TO SUPPLY AGREEMENT BETWEEN SGSIL AND CUSTOMER
See attached Specifications of each Product listed below, as previously sent to
Customer electronically in PDF Format, and as hereafter amended, from time to
time, by mutual agreement of the Parties in accordance with the Agreement:
PRODUCTS:
Either:
[****]
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ATTACHMENT 2 - SUPPLY FORECASTS, MINIMUM AND MAXIMUM [****]
QUANTITIES, PRICING AND PRODUCT MIX
TO SUPPLY AGREEMENT BETWEEN SGSIL AND CUSTOMER
[****]
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ATTACHMENT 3 - ADDRESSES AND CONTACT PERSONS
TO SUPPLY AGREEMENT BETWEEN SGSIL AND CUSTOMER
SGSIL CUSTOMER
----- --------
CONTRACT HOLDER: CONTRACT HOLDER:
Goran Bye, CEO Shall be as provided by Customer
Solar Grade Silicon LLC in writing.
3322 Road, "N" N.E.,
Moses Lake, Washington 98837, USA
CONTRACT MANAGER: CONTRACT MANAGER:
Kurt Levens, Director of Sales & Leo Oei
Marketing
CONTRACT ADMINISTRATOR: CONTRACT ADMINISTRATOR:
Ms. Sharon Palmerton Richard Chleboski
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ATTACHMENT 4 - BLANKET PURCHASE ORDER
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