CONFIDENTIAL TREATMENT REQUESTEDCONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AMENDMENT NO. 3 TO INGOT SUPPLY AGREEMENT

EX-10.7 2 ex10_7.htm AMENDMENT NO. 3 TO INGOT SUPPLY AGREEMENT WebFilings | EDGAR view
Exhibit 10.07
 
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
 
AMENDMENT NO. 3 TO INGOT SUPPLY AGREEMENT
 
THIS AMENDMENT NO. 3 INGOT SUPPLY AGREEMENT (This "Amendment No. 3") is made this 1st day of February 2011 ("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 (“Supplier”), and SunPower Corporation, a company organized under the laws of the State of Delaware, United States of America, with its principal office located at 3939 North First Street, San Jose, California 95134, United states of America (“Purchaser”). Each of Supplier and Purchaser 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)
Supplier and Purchaser are parties to that certain Ingot Supply Agreement, dated as of December 22, 2006, as amended on August 4, 2008 and August 1, 2009 (the "Agreement"), pursuant to which Supplier agreed to manufacture and sell to Purchaser, and Purchaser agreed to purchase from Supplier, certain SP Polysilicon Based Products.
 
(b)
The Parties desire to amend the Agreement to amend Ingot pricing and to amend certain other terms and conditions thereof.
 
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
1.
Supplier hereby agrees to supply up to *** MT Ingot (including wafer) to Purchaser in 2011.
 
2.Schedule 3.1(a) is amended as follows.
 
Schedule 3.1(a)
 
The purchase price for SP Polysilicon Based Products per kilogram shall be determined based on (a) the year in which such SP Polysilicon Based Products are ordered, and (b) the price per kilogram set forth in the chart below.
 
If the official foreign ***-day average currency exchange rate, as published by the Wall Street Journal, falls below *** South Korean Won to $1US, the Parties shall negotiate in good faith a mutually acceptable adjustment to the pricing set forth below.
 
If Purchaser receives a bona fide offer from a third party, who is qualified to satisfy Purchaser's applicable specifications, for the supply of similar products at a price equal to or less than ***% of the applicable purchase price under this Agreement, Purchase shall deliver notice to Supplier and the parties shall negotiate in good faith to reduce the applicable purchase price under this Agreement, which price adjustment shall become effective *** days following delivery of Purchaser's notice initiating negotiations for price reductions.  If the parties are unable to reach agreement regarding a reduced price for the remainder of the contract term, Supplier may elect, within *** days of receiving notice of the third party's proposal, to reduce the applicable purchase price for the same quantity of product as proposed by the third party.  If Supplier is unwilling to sell such quantity of product to Purchaser at the same price as the third party, Purchaser, in its sole and absolute discretion, may reduce its outstanding obligation to purchase such products from Supplier by the quantity offered by the third party during the applicable time period and instead purchase such products from the third party.
 
*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
 
 

 
 
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160mm
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160mm lifetim
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3.Supplier and Purchaser hereby agree that SUNPOWER PHILIPPINES MANUFACTURING LIMITED, a Cayman Islands business and wholly owned subsidiary of Purchaser, with a branch office at 100 East Main Avenue, Phase 4, Special Economic Zone, Laguna Techno Park, Binan, Laguna, Philippines 4024 (“SPML”) may purchase SP Polysilicon Based Products under the Agreement by issuing purchase orders directly to Supplier. References to “Purchaser” under the Agreement shall also refer to SPML.
 
4.This Amendment No. 3 is effective from Feb. 01, 2011 until Dec. 31, 2016.
 
5.All other provisions of the Agreement, except as specifically amended or waived hereby, shall remain in full force and effect and are incorporated herein.
 
6.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.
 
7.This Amendment No. 3 may be executed in one or more counterparts, each of which shall be deemed to be an original and shall constitute one and the same instrument. This Amendment No. 3 may be executed by facsimile, and each such facsimile signature shall be deemed to be an original.
 
[SIGNATURE PAGE FOLLOWS]
 
IN WITNESS THEREOF, the Parties hereto, intending to be legally bound, have executed this Amendment No. 3 as of the date first written above.
 
 
WOONJIN ENERGY CO., LTD
 
SUNPOWER CORPORATION
 
By:
/s/ Hakdo Yoo
 
By:
/s/ Paul Charrette
 
Name:
Hakdo Yoo
 
Name:
Paul Charrette
 
Title:
CEO
 
Title:
Vice President,
Capital Procurement
SunPower Corporation
 
Date:
2/15/2011
 
Date:
2/3/2011
 
 
 
 
 
SUNPOWER PHILIPPINES MANUFACTURING LIMITED
 
 
 
By:
/s/ Navneet Govil
 
 
 
Name:
Navneet Govil
 
 
 
Title:
VP & Treasurer
 
 
 
Date:
2/14/2011
 
 
 
 
 
*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
 
 
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