CONFIDENTIAL TREATMENT REQUESTED -- CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AMENDMENTNO. 2 TO INGOT SUPPLY AGREEMENT

EX-10.2 3 exhibit10-2.htm AMENDMENT NO. 2 TO INGOT SUPPLY AGREEMENT exhibit10-2.htm

EXHIBIT 10.2

EXECUTION COPY

CONFIDENTIAL TREATMENT REQUESTED

CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION

AMENDMENT NO. 2 TO INGOT SUPPLY AGREEMENT

THIS AMENDMENT NO. 2 INGOT SUPPLY AGREEMENT (This "Amendment No. 2") is made this 01 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 (“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. 2 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 and as amended from time to time (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 extend the Term of the Agreement 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. Section 9.1 of the Agreement is hereby amended by deleting the words “five (5) years” from the second line thereof and replacing such words with the words “nine (9) years”.

2. Schedule 1.18 of the Agreement is hereby amended by deleting such Schedule in its entirety, and the "Specifications" shall be as set forth in the attached Schedule 1.18. Changes, modifications or amendments to the Specifications shall only be accomplished through the formal change control process set forth below:

a.	Either Party may at any time propose changes to the Specifications by a written Engineering Change Notice (an “ECN”) to the other party; provided however, Purchaser must approve all ECN’s.

b.	The recipient of an ECN will use all reasonable efforts to provide a detailed response within seven (7) days of receipt.

c.	Suppliers will advise Purchaser of the likely impact of an ECN (including but not limited to delivery scheduling and prices) on the provisions of any relevant Purchase Orders.

d.	Neither Party will unreasonably withhold or delay agreement to an ECN and the Parties will endeavor to agree and implement at the earliest opportunity ECN’s relating to personal and product safety.

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e.	Until an ECN and any associated impact have been agreed in writing, the Parties will continue to perform their obligations without taking account of that ECN.

3. Schedule 3.1(a) of the Agreement is hereby amended by adding to such Schedule the terms and conditions set forth in Schedule 3.1(a) hereto.

4. All other provisions of the Agreement, except as specifically amended or waived hereby, shall remain in full force and effect and are incorporated herein.

5. If any part of this Amendment No. 2 or the Agreement as amended herein is found to be void or unenforceable for any reason, the remainder of this Amendment No. 2 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. 2.

6. This Amendment No. 2 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 No. 2 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. 2 as of the date first written above

WOONGJIN ENERGY CO., LTD

By: /s/ Hak Do Yoo

Name: Hak Do Yoo

Title: CEO

Date: 9/18/09

SUNPOWER CORPORATION

By: /s/ Marty Neese

Name: Marty Neese

Title: COO

Date: 9-18-09