AMENDMENT NO. 1 TO JOINT VENTURE AGREEMENT

 

This AMENDMENT NO. 1 TO JOINT VENTURE AGREEMENT (this “Amendment”) is made and entered into as of June 29, 2010, by and among (i) SunPower Technology, Ltd., a company organized under the laws of the Cayman Islands (“SPTL”); (ii) AU Optronics Singapore Pte. Ltd., a company organized under the laws of Singapore (“AUO”); (iii) solely for purpose of Section 18 below, AU Optronics Corporation, a company organized under the laws of Taiwan, R.O.C. (“AUO Taiwan”); and (iv) SunPower Malaysia Manufacturing SDN.BHD., a company organized under the laws of Malaysia (the “JVC”). Capitalized terms used but not defined herein shall have the meanings given to them in the Initial Agreement (as defined below).

A.   & nbsp;The parties hereto are parties to that certain Joint Venture Agreement dated as of May 27, 2010 (the “Initial Agreement”).

B.    The parties hereto desire to enter into this Amendment to memorialize their agreement with respect to the matters referred to herein.

NOW THEREFORE, in furtherance of the foregoing premises and in consideration of the mutual covenants and obligations hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, do agree as follows:

 

 

“(a)    On the Closing Date, (i) pursuant to a Subscription Agreement, in a form mutually agreed upon in writing by the JVC and the Shareholders (the “SPTL Subscription Agreement”), SPTL shall subscribe for, and the JVC shall issue to SPTL, an additional number of Shares mutually agreed upon in writing by the JVC and the Shareholders (which, together with the Shares beneficially owned by SPTL prior to the Closing, will constitute fifty percent (50%) of the equity interest in the JVC, measured on a fully-diluted basis, on the Closing Date), and (ii) pursuant to a Subscription Agreement, in a form mutually agreed upon in writing by the JVC and the Shareholders (the “AUO Subscription Agreement”), AUO shall subscribe for, and the JVC shall issue to AUO, a number of Shares mutually agreed upon in writing by the JVC and the Shareholders (which will constitute fifty percent (50%) of the equity interest in the JVC, measured on a fully-diluted basis, on the Closing Date). For the avoidance of doubt, the Parties acknowledge and agree that (i) on the Closing Date, the Shareholders will subscribe for, and the JVC will issue to the Shareholders, all of the Shares contemplated by this Section 2.4(a), even though not all of the purchase price for such Shares will have been paid by the Shareholders on the Closing Date, (ii) the cash payments to be

contributed by the Shareholders after the Closing Date in accordance with Se ction 2.4(b)(i) and Section 2.4(c)(i) represent the only portion of the purchase price for such Shares that will not be paid by the Shareholders on the Closing Date, (iii) the making of such additional cash payments by the Shareholders will not represent additional purchases of Shares, and (iv) no additional representations or warranties will be made after the Closing Date with respect to the Shares contemplated by this Section 2.4(a).”

“(i)    SPTL shall cause to be contributed to the JVC cash contributions in an aggregate amount equal to RM48,000,000 (less RM750,000, which represents the aggregate amount of cash contributed by SPTL to the JVC prior to the date of this Agreement) plus $335,000,000, with an initial portion of such contributions being paid to the JVC prior to the Closing Date and the remaining portions paid to the JVC over time, in each case in the amounts and on the dates mutually agreed in writing by the JVC and the Shareholders (as may be adjusted and amended from time to time by mutual written agreement of both Shareholders, and in no event may the total cash contribution made by SPTL pursuant to this Section 2.4(b)(i) exceed $350,000,000);”

 

“(i)    AUO shall cause to be contributed to the JVC cash contributions in an aggregate amount equal to RM48,000,000 plus $335,000,000, with an initial portion of such contributions being paid to the JVC on the Closing Date and the remaining portions paid to the JVC over time, in each case in the amounts and on the dates mutually agreed in writing by the JVC and the Shareholders (as may be adjusted and amended from time to time by mutual written agreement of both Shareholders, and in no event may the total cash contribution made by AUO pursuant to this Sectio n 2.4(c)(i) exceed $350,000,000);”

5.Each party hereto hereby represents to the other parties hereto that, to the extent applicable, (i) all action on the part of such representing party, its officers, directors, partners and securityholders necessary for the authorization, execution, delivery and performance of all obligations under this Amendment has been taken, (ii) this Amendment constitutes a valid and legally binding obligation of such representing party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject as to enforceability to general principles of equity, and (iii) the execution, delivery and performance of this Amendment will not resul t in any violation of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice, any provision of such representing party's organizational documents, in each case as amended through the date hereof.

 

6.Except as expressly modified by this Amendment, the Initial Agreement shall remain in full force and effect in accordance with its terms. To the extent that there are any inconsistencies or ambiguities between this Amendment and the Initial Agreement, the terms of this Amendment shall supersede the Initial Agreement.

7.This Amendment shall not be modified, amended, canceled or altered in any way, and may not be modified by custom, usage of trade or course of dealing, except by an instrument in writing signed by all of the parties hereto. All amendments or modifications of this Amendment shall be binding upon the parties hereto despite any lack of consideration so long as the same shall be in writing and executed by the parties hereto.

 

8. This Amendment and all disputes arising out of or in connection with this Amendment shall be governed by, interpreted under, and construed and enforceable in accordance with, the laws of the State of California, without regard to conflicts of laws principles. Any disputes incapable of being resolved by mutual agreement of the parties hereto shall be handled in accordance with Section 18.2 (Arbitration) of the Initial Agreement; provided, however, that the JVC may not take any action with respect to any such disputes or arbitration or settlement thereof without the written consent of both SPTL and AUO.

 

9. This Amendment may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to Joint Venture Agreement to be executed by their respective duly authorized signatories as of the day and year first written above.