Confidential Exhibit 10.8
(English Translation of the Original Contract in Chinese)
SILICON SUPPLY AGREEMENT
Contract No.: EMC2006001
This Silicon Product Pre-purchase Contract (this "Contract") is entered
into this 2nd day of June, 2006 in Emeishan by and between the following two
parties:
Buyer: JIANGSU LINYANG SOLARFUN CO., LTD., with its registered address
being at 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, and its legal
representative being Xx. Xx Yonghua (hereinafter referred to as "Party A"); and
Supplier: E-MEI SEMICONDUCTOR MATERIAL FACTORY, with its registered address
being at 00 Xxxxx Xxxx, X-xxxxxxx, and its legal representative being Xx. Xxx
Bin (hereinafter referred to as "Party B").
RECITALS
a) Party A is a PV cell manufacturer and intends to secure a stable and
sufficient supply of raw materials (i.e., monocrystalline silicon ingots or
silicon wafers for the production of PV cells) through this Contract. Therefore,
Party A agrees to facilitate the expansion of Party B's multicrystalline silicon
production line to result in an additional annual production capacity of 500-ton
solar-grade multicrystalline silicon by means of favored terms of payment on the
condition that within five (5) years as from the completion of such expansion,
Party A shall have the exclusive right to purchase the silicon products for PV
cells produced by such expansion project. Party A undertakes that it will
establish a corresponding PV industry chain in Leshan to promote the development
of the local economy of Leshan and that the silicon products for PV cells will
be consumed locally within Leshan;
b) Party B is a semiconductor materials manufacturer and is willing to
obtain the advance payment to be made by Party A hereunder. Such advance payment
will be used for the construction of the said expansion project with an annual
production capacity of 500 tons of solar-grade multicrystalline silicon
(hereinafter referred to as the "Project") which will increase Party B's annual
production capacity of multicrystalline silicon by 500 tons. The fixed assets
formed as a result of the construction of the Project shall be owned by Party B
and Party B shall sell Party A the silicon products for PV cells produced by the
completed Project upon the agreed terms set forth below; and
c) Party B undertakes that in case of Party B's construction of any other
new multicrytalline production project, the progress of the construction of the
Project shall not be affected thereby and Party A shall be given priority in the
participation into the cooperation with respect to such new project upon the
same terms and conditions and that the commencement of such new project shall be
postponed for at least six (6) months.
NOW, THEREFORE, after equal and friendly negotiations, Party A and Party B
have reached agreement as follows:
ARTICLE 1 DESCRIPTION AND REQUIRED QUALITY OF THE SUBJECT PRODUCTS
1.1 The products to be supplied hereunder (the "Subject Products") shall be
monocrystalline silicon wafers or monocrystalline silicon rods for PV cells
and the supply of silicon wafers shall take priority; and
1.2 The required quality of the Subject Products shall be determined with
reference to the common quality standards of the monocrystalline silicon
rods or wafers used by
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domestic PV cell manufacturers and the main quality parameters of the
Subject Products shall meet the requirements for the production of PV cells
or any other special requirements as further agreed by and between Party A
and Party B.
ARTICLE 2 QUANTITY OF THE PRODUCTS
2.1 In principle, for each RMB 100 million prepaid by Party A, Party A shall be
supplied with the solar-grade monocrystalline silicon rods or wafers
produced from 100 tons of multicrystalline silicon.
2.2 Party A shall communicate with Party B by fax or mail on a monthly-basis to
confirm the specific quantity and delivery time of the Subject Products to
be supplied, which shall be attached hereto as an exhibit.
ARTICLE 3 PRICE OF AND TOTAL CONSIDERATION FOR THE SUBJECT PRODUCTS
3.1 After the completion of the Project and before Party A's advance payment is
totally offset by the solar-grade silicon products pursuant to Article 6,
the payment for any Subject Products supplied by Party B hereunder shall be
settled at a preferential price which shall be equal to [*]%~[*]% of the
applicable market price as long as the market price is within the range of
the protective price set forth below. The protective price shall be as set
forth below: for monocrystalline silicon rods of (o)6, the pre-tax price of
such products shall be between RMB [*]/kg and RMB [*]/kg; and for silicon
wafers of 125 x 125mm, the pre-tax price of such products shall be between
RMB[*]/piece and RMB[*]/piece. Notwithstanding the foregoing, when there
is any substantial fluctuation in the prices of the main raw materials and
power for the production of multicrystalline silicon, including silicon
powder, liquid chlorine and electricity, meaning that the aggregate cost of
the raw materials and power fluctuates by more than 20% compared with the
same at the effective date of this Contract, the protective price shall be
adjusted accordingly on the basis of the actual situation. After the
advance payment made by Party A hereunder is offset in full, the payment
for any additional Subject Products supplied hereunder shall be settled at
a rate equal to [*]%~[*]% of the then market price. After the fifth
anniversary of the date on which the total amount of the advance payment
made by Party A is offset in full, Party A shall have preemption rights
with respect to the Subject Products at the applicable market price.
3.2 The total amount of the advance payment to be made hereunder shall be no
more than RMB500 million.
3.3 "Market price" shall mean the price at which major domestic manufacturers
of silicon wafers for PV cells mutually recognized by Party A and Party B
supply silicon wafers for PV cells.
ARTICLE 4 SCHEDULE AND TERMS OF PAYMENT
4.1 The payment for the Subject Products to be supplied hereunder shall be made
in advance.
*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission.
2
4.2 After the execution of this Contract, within ten (10) days after Party B's
submission of a written demand for payment and provision of the feasibility
study prepared by Emei Semiconductor Materials Research Institute, Party A
shall pay the initial installment of the advance payment which shall be
equal to RMB66,880,000 and the remaining amount of the advance payment
shall be paid by installments pursuant to the Funds Utilization Plan
proposed by Party B and accepted by Party A and the actual development of
the Project. Party A hereby undertakes that it will make the progress
payment within ten (10) days as of Party B's submission of a written demand
for payment.
4.3 Party B shall open a special bank account (hereinafter referred to as the
"Special Account"), into which the advance payment from Party A shall be
remitted.
ARTICLE 5 UTILIZATION AND CONTROL OF THE ADVANCE PAYMENT
5.1 The advance payment made hereunder shall be used to construct the Project
with an annual production capacity of 500 tons of solar-grade
multicrystalline silicon as described in detail in the feasibility study of
the Project.
5.2 Party A shall have the right to be informed of the progress of the Project
and the Special Account shall be managed by Party B under the supervision
of Party A. Party B shall, on a monthly-basis, provide Party A with the
breakdown of the utilization of the advance payment paid by Party A.
5.3 After this Contract becomes effective, Party B shall endeavor to promote
the construction of the Project so that the Project can be completed within
eighteen (18) months with the joint efforts of Party A and Party B. Should
Party B be unable to complete the Project by the expiry of such eighteen
(18) months due to the occurrence of a force majeure event, Party B shall
be given a grace period of three (3) months. Should the Project be unable
to be completed by the expiry of such grace period, Party B shall pay
interest on the money paid by Party A, commencing from the date immediately
after the expiry of such grace period and ending on the date of the actual
completion of the Project at the then effective interest rate for bank
loans, and shall notify Party A of the relevant facts, and Party A shall
understand the same.
ARTICLE 6 OFFSET OF PARTY A'S ADVANCE PAYMENT
With respect to each batch of the solar-grade silicon products delivered to
Party A by Party B which are produced by the Project after the Project is
completed and put into operation, 20%-35% of the payment for each batch of the
Subject Products shall be set off against the advance payment paid by Party A
till the time when the advance payment by Party A is exhausted. The remaining
payment for each batch of the Subject Products shall be made by Party A in full
prior to Party B's shipment of the same.
ARTICLE 7 TERMS RELATING TO THE SALE OF SUBJECT PRODUCTS
7.1 Supplier of Subject Products
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The supplier of the Subject Products hereunder shall be Emei Semiconductor
Materials Plant.
7.2 Packaging
The conditions and manners for packaging the Subject Products shall comply
with the customary practice.
7.3 Means of Transportation
The Subject Products shall be delivered to Party A by means of overland
freight.
7.4 Destination For Delivery of Subject Products
The Subject Products shall be delivered to Party A, at the expense of Party
B, to a place designated by Party A or Leshan, in each case, within the
PRC. Where Party A intends to change the destination for the delivery of
any batch of Subject Products, it shall notify Party B of the new
destination fifteen (15) days in advance. Once after Party B has sent off
any batch of Subject Products to a destination designated by Party A, Party
A may not change the destination for delivery of such batch of Subject
Products, otherwise, any expenses incurred due to such change of the
destination for delivery shall be paid by Party A.
7.5 Where Party A discovers in the course of the acceptance test for any batch
of the Subject Products delivered hereunder, that the quantity or quality
of any Subject Products so delivered is inconsistent with the agreed
standard, it shall submit an objection to Party B in writing within fifteen
(15) days after such discovery.
7.6 Party B shall, within ten (10) days as of its receipt of the said written
objection from Party A, make a response thereto by providing a friendly
solution, otherwise, it shall be deemed that Party B has accepted Party A's
objection and suggested solution.
ARTICLE 8 LIABILITY FOR BREACH OF CONTRACT
Party A's Liability for Breach of Contract
8.1 Party A shall timely and fully pay each installment of the advance payment
strictly pursuant to the requirements of the Funds Utilization Plan for the
Project proposed by Party B. Party A shall be deemed to violate this
Contract if any advance payment becomes overdue for more than ten (10)
days.
8.1.1 In case the advance payment becomes overdue for less than one
month, Party A shall pay Party B liquidated damages in an amount
of 20% of the overdue payment, and Party B shall have the right
to postpone the completion of the Project accordingly.
8.1.2 In case the advance payment becomes overdue for a period of time
in excess of one month but less than three months, Party A shall
pay Party B liquidated damages in an amount of 50% of the overdue
payment, and shall postpone the completion of the Project
accordingly.
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8.1.3 In case any amount of the advance payment becomes overdue for a
period of time in excess of three (3) months, Party A shall pay
Party B liquidated damages in an amount of 100% of the overdue
amount, and Party B shall be entitled to terminate the Project at
its sole discretion without refunding any funds actually paid by
Party A for the Project.
8.2 Within the term of this Contract, Party A shall be deemed to violate this
Contract if it fails to purchase the Subject Products provided by Party B
pursuant to the quantity and price agreed herein, and shall pay Party B
liquidated damages in an amount of 20% of the total amount of the payment
to be made for the Subject Products agreed hereunder.
Party B's Liability for Breach of Contract:
8.3 If Party B fails to complete the Project within eighteen (18) months, it
shall assume the following liabilities for its breach of this Contract:
8.3.1 To the extent that the completion of the Project is delayed for
less than three (3) months (such three months hereinafter
referred to as the "Grace Period"), Party B shall be exempt from
liability.
8.3.2 To the extent that that the completion of the Project is delayed
for more than three (3) months but less than six (6) months, then
for each of delay after the end of the Grace Period, Party B
shall be obligated to pay Party A liquidated damages, which shall
be equal to 1 0/00 of the funds invested in the Project.
8.3.3 To the extent that that the completion of the Project is delayed
for more than six (6) months but less than twelve (12) months,
then for each day of delay after the end of the Grace Period,
Party B shall be obligated to pay Party A liquidated damages,
which shall be equal to 2 0/00 of the funds invested in the
Project. In addition to that, Party B shall undertake that where
the completion of the Project is delayed for more than six (6)
months, for each month of delay after the end of such six (6)
months, it shall supply Party A at the market price five (5) tons
of monocrystalline silicon materials or equivalent silicon
wafers.
8.3.4 To the extent that the completion of the Project is delayed for
more than twelve (12) months, Party A shall have the right to
terminate the Project at its sole discretion. In such case, Party
B shall refund any and all the advance payment actually paid by
Party A and pay Party A liquidated damages, which shall be equal
to 50% of the advance payment actually paid by Party A. Party B
shall supply Party A five (5) tons of monocrystalline silicon
materials or equivalent silicon wafers each month at the market
price to set off against such liquidated damages.
8.4 Should Party B use any funds in the Special Account for any purpose other
than as contemplated hereunder, Party A shall have the right to request
Party B to put such funds back in place within seven (7) days and to pay
Party A liquidated damages in an amount equal to 30% of such funds so
misappropriated.
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8.5 Party B shall undertake to Party A that after the completion of the Project
Party B shall each year supply Party A Subject Products in an aggregate
quantity of 80% to 120% of the annual production capacity (500T/a) of the
Project.
8.6 Should Party B sell any Subject Products to any third party in violation of
Article 8.5 hereof, Party B shall pay Party A liquidated damages in an
amount equal to 30% of the funds invested in the Project.
8.7 Should Party B be unable to deliver the Subject Products to Party B for
consecutive three (3) months due to force majeure, Party A shall have the
right to request Party B to refund any remainder of Party A's paid advance
payment and pay Party A default interest on such remainder at the monthly
interest rate of 1% commencing from the date on which such remainder was
paid to Party B.
8.8 Should the quality of any Subject Products delivered by Party B be
inconsistent with the agreed standard, if Party A agrees to accept such
Subject Products, such Subject Products shall be priced according to its
actual quality. However, should such Subject Products be of such poor
quality that they cannot be consumed by Party A at all, such Subject
Products shall be returned and replaced.
8.9 Should any Subject Products delivered to Party A suffer any damage or loss
due to the incompliance of the packaging with the agreed requirements,
Party B shall be liable for compensation therefor.
8.10 Should any Subject Products be delivered to a wrong place, Party B shall be
responsible for delivering such Subject Products to the agreed destination
and for any and all expenses actually incurred by Party A arising from such
wrong delivery.
ARTICLE 9
In case Party B intends to conduct a corporate restructuring, it shall, on a
priority-basis, offer Party A an opportunity to participate into such
restructuring at the same terms and conditions offered to any third party. If as
a result of the above, Party A becomes an investor of Party B, any remainder of
the advance payment made by Party A hereunder may be in part converted into
equity in accordance with relevant PRC regulations, subject to further
negotiations between Party A and Party B.
ARTICLE 10
Any corporate restructuring of Party B shall not affect the validity of this
Contract.
ARTICLE 11 CONFIDENTIALITY
Without permission of the other party, neither Party A nor Party B may use or
disclose to any third party, any relevant document, know-how or financial data
of the other party obtained or known by it in the performance of this Contract.
ARTICLE 12 INCENTIVES
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Should Party B complete the Project and put the Project into operation prior to
the expiry of the eighteen (18) months as from the date hereof, Party A shall
pay Party B a bonus of RMB880,000. It is agreed that the Project shall reach the
expected production capacity within twenty (20) months as from the date hereof.
Should the Project reach the expected production capacity prior to the expiry of
such twenty (20) months, for each day during the period from the date on which
such expected production capacity is reached to the date of the expiry of such
twenty (20) months, Party A shall pay Party B a bonus of RMB80,000. All the
above bonuses shall be used to reward the management personnel and key
engineering personnel designated to the Project.
ARTICLE 13
Any dispute between Party A and Party B arising under this Contract shall be
resolved by the parties in a timely manner through consultations. Party A and
Party B agree that any dispute that fails to be resolved through consultations
shall be submitted to a court located in a place other than the place of
incorporation of either party hereto.
ARTICLE 14 EFFECTIVENESS
This Contract shall come into effect after this Contract is affixed with the
signature of the authorized signatory and the company seal of each party and the
initial installment of Party A's advance payment in an amount of RMB66,880,000
arrives at Party B's Special Account.
ARTICLE 15
This Contract shall be executed in four (4) originals, with each Party A and
Party B to hold two (2).
ARTICLE 16
Any matters not covered hereunder shall be set forth in supplemental provisions
to be agreed by Party A and Party B after further negotiations and such
supplemental provisions shall have the equal legal force as this Contract.
[signature on the next page]
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PARTY A: JIANGSU LINYANG SOLARFUN CO., LTD. (affixed with Party A's company
seal)
Signed by: Xx Xxxxxxx (signature)
Legal Representative
Bank of Deposit:
A/C:
Tel:
PARTY B: E-MEI SEMICONDUCTOR MATERIAL FACTORY (affixed with Party B's company
seal)
Signed by: Wei Bin (signature)
Legal Representative
Bank of Deposit:
A/C:
Tel:
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Confidential
(English Translation of the Original Contract in Chinese)
AMENDMENT TO SILICON SUPPLY AGREEMENT EMC2006001
This Amendment to Silicon Product Pre-purchase Contract EMC2006001 (this
"Amendment") is entered into this 9th day of June, 2006 by and between the
following two parties:
Buyer: JIANGSU LINYANG SOLARFUN CO., LTD., represented hereunder by its
attorney-in-fact, Xx. Xxxx Hanfei, with its registered address being at 000
Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, and its legal representative being Xx.
Xx Yonghua (hereinafter referred to as "Party A")
Supplier: E-MEI SEMICONDUCTOR MATERIAL FACTORY, represented hereunder by
its attorney-in-fact, Xx. Xxxx Liangping, with its registered address being at
00 Xxxxx Xxxx, X-xxxxxxx, and its legal representative being Xx. Xxx Bin
(hereinafter referred to as "Party B").
After friendly negotiations, Party A and Party B have agreed to amend the
Silicon Product Pre-purchase Contract EMC2006001 by and between them dated June
2, 2006 (the "Contract") as follows:
1. Article 3.1 of the Contract shall be amended in its entirety to read as
follows:
"3.1 After the completion of the Project and before Party A's advance
payment is totally offset by the solar-grade silicon products pursuant
to Article 6, the payment for any Subject Products supplied by Party B
hereunder shall be settled at a preferential price which shall be
equal to [*]%~[*]% of the applicable market price as long as the
market price is within the range of the protective price set forth
below. The protective price shall be as set forth below: for
monocrystalline silicon rods of (o)6, the pre-tax price of such
products shall be between RMB [*]/kg and RMB [*]/kg; and for silicon
wafers of 125 x 125mm, the pre-tax price of such products shall be
between RMB [*]/piece and RMB [*]/piece. Notwithstanding the
foregoing, when there is any substantial fluctuation in the prices of
the main raw materials and power for the production of
multicrystalline silicon, including silicon powder, liquid chlorine
and electricity, meaning that the aggregate cost of the raw materials
and power fluctuates by more than 20% compared with the same at the
effective date of this Contract, which in turn causes the market price
of the Subject Price then prevailing to become higher than the above
highest protective price or lower than the above lowest protective
price, by more than 20%, the price for the Subject Product to be
supplied to Party A hereunder shall be adjusted accordingly. Such
adjustment shall be determined subject to further negotiations between
the parties hereto by taking into a reasonable margin to be received
by Party B and Party B's ability to repay its borrowings. After the
advance payment made by Party A hereunder is offset in full, the
payment for each batch of the Subject Products to be supplied
hereunder
*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission.
1
subsequently shall be settled at a rate equal to [*]%~[*]% of the then
market price. After the fifth anniversary of the date on which the
total amount of the advance payment made by Party A is offset in full,
Party A shall have preemption rights with respect to the Subject
Products at the applicable market price."
2. Article 3.3 of the Contract shall be amended in its entirety to read as
follows:
"3.2 "Market price" shall mean the price at which major manufacturers of silicon
wafers for PV cells mutually recognized by Party A and Party B supply
silicon wafers for PV cells.
3. Article 6 of the Contract shall be amended in its entirety to read as
follows:
"Article 6 Offset of Party A's Advance Payment
With respect to each batch of the solar-grade silicon products delivered to
Party A by Party B which are produced by the Project after the Project is
completed and put into operation, 20%-35% of the payment for each batch of
the Subject Products shall be set off against the advance payment made by
Party A till the time when the advance payment by Party A is exhausted. The
remaining payment for each batch of the Subject Products shall be made by
Party A in full prior to Party B's shipment of the same. When the market
price of the Subject Price becomes lower than the agreed lowest protective
price by 20%, the above offset percentage shall be adjusted accordingly.
Such adjustment shall be determined subject to further negotiations between
the parties hereto by taking into a reasonable margin to be received by
Party B and Party B's ability to repay its borrowings.
4. Article 12 shall be amended in its entirety to read as follows:
"Article 12 Incentives
Should Party B, prior to the expiry of the eighteen (18) months as from the
date hereof, complete the Project and the Project so completed is able to
produce Subject Products meeting the agreed criteria, Party A shall pay
Party B a bonus of RMB880,000. It is agreed that within twenty (20) months
as from the date hereof the Project shall reach the expected production
capacity, which shall be equal to 80% to 120% of 500 tons of solar-grade
multicrystalline silicon/year. Should the Project reach the expected
production capacity set forth above prior to the expiry of such twenty (20)
months, for each day during the period from the date on which such expected
production capacity is reached to the date of the expiry of such twenty
(20) months, Party A shall pay Party B a bonus of RMB80,000. All the above
bonuses shall be used to reward the management personnel and key
engineering personnel designated to the Project."
5. This Amendment shall be executed in four (4) counterparts with each Party A
and Party B to hold two (2).
*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission.
2
[signature on the next page]
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PARTY A: JIANGSU LINYANG SOLARFUN CO., LTD. (affixed with Party A's company
seal)
Signed by: Xx Xxxxxxx (signature)
Legal Representative/Authorized Representative:
Bank of Deposit:
A/C:
Tel:
PARTY B: E-MEI SEMICONDUCTOR MATERIAL FACTORY (affixed with Party B's company
seal)
Signed by: Deng Liangping (signature)
Legal Representative/Authorized Representative:
Bank of Deposit:
A/C:
Tel:
4
Confidential
(English Translation of the Original Contract in Chinese)
AMENDMENT NO. 2 TO SILICON SUPPLY AGREEMENT EMC2006001
This Amendment No. 2 to Silicon Product Pre-purchase Contract EMC2006001
(this "Amendment No. 2") is entered into this 8th day of October, 2006 in Deyang
by and between the following two parties:
Buyer: JIANGSU LINYANG SOLARFUN CO., LTD., with its registered address
being at 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, and its legal
representative being Xx. Xx Yonghua; and
Supplier: E-MEI SEMICONDUCTOR MATERIAL FACTORY, with its registered address
being at 00 Xxxxx Xxxx, X-xxxxxxx, and its legal representative being Xx. Xxx
Bin.
After friendly negotiations, the Buyer and the Supplier have agreed (i)
that the Silicon Product Pre-purchase Contract EMC2006001 by and between them
dated June 2, 2006 (the "Contract") and the Amendment to Silicon Product
Pre-purchase Contract EMC2006001 by and between them dated June 2006 shall be
amended as follows, and (ii) that any and all the references in the Contract to
"Party A" shall be replaced with the reference to "Buyer" and any and all the
references in the Contract to "Party B" shall be replaced with the references to
"Supplier".
PART I AMENDMENTS TO THE CONTRACT
1. Item (a) under the Recitals of the Contract shall be amended in its
entirety to read as follows:
"(a) The Buyer is a PV cell manufacturer and intends to secure a stable and
sufficient supply of raw materials (i.e., monocrystalline silicon ingots or
silicon wafers for the production of PV cells) through this Contract.
Therefore, the Buyer agrees to facilitate the expansion of the Supplier's
multicrystalline silicon production line to result in an additional annual
production capacity of 500-ton solar-grade multicrystalline silicon by
means of favored terms of payment on the condition that within five (5)
years as from the completion of such expansion, the Buyer shall have the
exclusive right to purchase the silicon products for PV cells produced by
such expansion project. The Buyer undertakes that it will establish a
corresponding PV industry chain in Leshan to promote the development of the
local economy of Leshan and that the silicon products for PV cells will be
consumed locally within Leshan;"
2. Item (c) under the Recitals of the Contract shall be amended in its
entirety to read as follows:
"(c) The Supplier undertakes that in case of its construction of any other
new or expansion of any existing, multicrytalline production project, the
progress of the construction of the Project shall not be affected thereby
and the Buyer shall be given the first priority in the participation into
the cooperation with respect to such other new construction or expansion
(including by equity participation) upon the same terms and conditions."
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3. Article 1.2 of the Contract shall amended in its entirety to read as
follows:
"1.2 The required quality of the Subject Products shall be determined with
reference to the common quality standards of the monocrystalline
silicon rods or wafers used by international PV cell manufacturers and
the main quality parameters of the Subject Products shall meet the
requirements for the production of PV cells or any other special
requirements as further agreed by and between the Buyer and the
Supplier."
4. Article 2.1 of the Contract shall be amended in its entirety to read as
follows:
"2.1 Based on the understanding between the parties set forth in the
Contract, within five (5) years as of the completion of the Project,
the Buyer shall have the exclusive right to purchase all the silicon
products produced by the Project. "Completion of the Project" means
that at the time for determining whether the Project is completed the
Project has a production capacity no lower than 80% of 500 tons/year.
It is agreed that this Article shall form the base and premise for the
cooperation contemplated hereunder."
5. Article 3 of the Contract shall be amended in its entirety to read as
follows:
"Article 3 Price of and Total Consideration for the Subject Products
3.1 After the Supplier's completion of the Project and before the Buyer's
advance payment is totally offset with the solar-grade silicon
products pursuant to Article 6, the payment for any Subject Products
supplied by the Supplier hereunder shall be settled at a preferential
price which shall be equal to [*]% of the applicable market price as
long as the market price is within the range of the protective price
set forth below.
The protective price shall be as set forth below: for monocrystalline
silicon rods of (o)6, the pre-tax price of such products shall be
between RMB [*]/kg and RMB[*]/kg; for silicon wafers of 125 x 125mm(2)
with a thickness of 220 um, the pre-tax price of such products shall
be between RMB[*]/piece and RMB [*]/piece, and for silicon wafers of
56 x 156mm(2), the pre-tax price of such products shall be determined
by the parties hereto by reference to the pricing principles agreed by
the parties hereto.
With the upgrading of the slice-cutting technology and the reduction
of the thickness of the silicon wafers, the unit price for wafers
shall be reduced accordingly.
Notwithstanding the foregoing, when there is any substantial
fluctuation in the prices of the main raw materials and power for the
production of multicrystalline silicon, including silicon powder,
liquid chlorine and electricity, meaning that the aggregate cost of
the raw materials and power fluctuates by more than 10% compared with
the same at the effective date of this Contract, which in turn causes
the market price of the Subject Price then prevailing to become higher
than the above highest protective price or lower than the above lowest
protective price, by more than 10%, the price for the Subject Product
to be supplied to the Buyer hereunder shall be adjusted
*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission.
2
accordingly. Such adjustment shall be determined subject to further
negotiations between the parties hereto by taking into a reasonable
margin to be received by the Supplier and the Supplier's ability to
repay its borrowings. In case the parties fail to reach an agreement
on any adjustment to the price for any Subject Products to be supplied
hereunder, the Supplier shall, at the request of the Buyer, refund the
remainder of the Buyer's paid advance payment and pay the Buyer
interest on such remainder which shall be equal to the number of days
during which such remainder has been occupied by the Supplier
multiplied by the applicable interest rate of bank loans. After the
advance payment made by the Buyer hereunder is offset in full, the
payment for each batch of the Subject Products to be supplied
hereunder subsequently shall be settled at a rate equal to [*]%~[*]%
of the then market price. After the fifth anniversary of the date on
which the total amount of the advance payment made by the Buyer is
offset in full, the Buyer shall have preemption rights with respect to
the Subject Products at the then applicable market price.
3.2 The total amount of the advance payment to be made hereunder shall be
RMB300 million.
3.3 "Market price" shall mean the price at which major manufacturers of
silicon wafers for PV cells mutually recognized by the Buyer and the
Supplier supply silicon wafers for PV cells."
6. Article 4.2 of the Contract shall be amended in its entirety to read as
follows:
"4.2 After the execution of this Contract, within ten (10) days after the
Supplier's submission of a written demand for payment and provision of
the feasibility study prepared by Emei Semiconductor Materials
Research Institute, the Buyer shall pay the initial installment of the
advance payment which shall be equal to RMB30 million. The first
portion of the initial installment in an amount of RMB10 million shall
be paid into the Special Account within one (1) week after the
execution of the Amendment No. 2 and the remaining amount of RMB20
million shall be paid prior to December 31, 2006. Within three (3)
months as of the effective date of this Contract, the Supplier shall
submit to the Buyer the Project Schedule and the Funds Utilization
Plan, which shall be subject to the approval by the Buyer. The advance
payment payable by the Buyer hereunder other than the first
installment, shall be paid by installments pursuant to the Project
Schedule and the Funds Utilization Plan mutually agreed by the parties
and the actual development of the Project. In order to allow the Buyer
to have a reasonable arrangement of cash inflow, for each single month
the Buyer shall not be required to make an advance payment exceeding
RMB40 million. The Buyer hereby undertakes that it will make the
progress payment within ten (10) days as of the Supplier's submission
of a written demand for payment based on the above Funds Utilization
Plan and the actual development of the Project.
The Supplier agrees that within one week as of the effectiveness of
the Amendment No. 2, it will issue a performance bond with respect to
the first installment of the advance payment of RMB30 million to be
paid by the Buyer."
*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission.
3
7. Article 5.2 of the Contract shall be amended in its entirety to read as
follows:
"5.2 The Buyer shall have the right to be informed of the progress of the
Project and the Special Account shall be managed by the Supplier
under the supervision of the Buyer. The Supplier shall, on a
monthly-basis, provide the Buyer with the breakdown of the
utilization of the advance payment from the Buyer, together with the
photocopies of the related certificates and evidence."
8. Article 6 of the Contract shall be amended in its entirety to read as
follows:
"Article 6 Offset of the Buyer's Advance Payment
With respect to each batch of the solar-grade silicon products delivered to
the Buyer by the Supplier which are produced by the Project after the
Project is completed and put into operation, 30% of the payment for each
batch of the Subject Products shall be set off against the advance payment
paid by the Buyer till the time when the advance payment by the Buyer is
exhausted. The remaining payment for each batch of the Subject Products
shall be made by the Buyer in full prior to the Supplier's shipment of the
same. When the market price of the Subject Price becomes lower than the
agreed lowest protective price by 10%, the above offset percentage shall be
adjusted accordingly. Such adjustment shall be determined subject to
further negotiations between the parties hereto by taking into a reasonable
margin to be received by the Supplier and the Supplier's ability to repay
its borrowings."
9. Article 8.1 of the Contract shall be amended in its entirety to read as
follows:
"8.1 The Buyer shall timely and fully pay each installment of the advance
payment strictly pursuant to the requirements of the Funds
Utilization Plan for the Project proposed by the Supplier. The Buyer
shall be deemed to violate this Contract if any advance payment
becomes overdue for more than ten (10) business days."
10. Article 8.1.3 of the Contract shall be amended in its entirety to read as
follows:
"8.1.3 In case any amount of the advance payment becomes overdue for a
period of time in excess of three (3) months, the Supplier shall
have the right to terminate the Project at its sole discretion and
not refund the Buyer any and all the funds from the Buyer used for
the Project."
11. The following provisions shall be inserted into the paragraph "The Buyer's
Liability for Breach of Contract" in Article 8 of the Contract as the last
sentence of such paragraph:
"In case of any breach by the Buyer under Article 8.1 or 8.2 above, the
Buyer shall not have any liability for damages or any other civil liability
whatsoever for such breach upon its payment of the liquidated damages as
set forth in Articles 8.1 and 8.2 above."
12. Article 8.5 of the Contract shall be amended in its entirety to read as
follows:
4
"8.5 "Completion of the Project" means that at the time for determining
whether the Project is completed the Project has a production
capacity equal to or more than 80% of 500 tons/year. The Supplier
shall undertake to the Buyer that after the Completion of the Project
the Supplier shall supply the Buyer all the Subject Products produced
by the Project within its agreed annual production capacity of 500
tons, including any monocrystalline silicon ingots or silicon wafers
processed by the Supplier's OEM contractors, but in no event may the
aggregate of the Subject Products supplied to the Buyer in any year
be lower than 80% of the designed production capacity."
13. The following provisions shall be inserted into the paragraph "The
Supplier's Liability for Breach of Contract" in Article 8 of the Contract as
Article 8.11:
"8.11 The Supplier hereby undertakes to the Buyer as follows:
In case the actual progress of the construction of the Project falls
behind the schedule by more than twenty (20) days, the Supplier shall
provide the Buyer with written explanations and remedial measures
with respect thereto. In case the actual progress of the construction
of the Project falls behind the schedule by more than ninety (90)
days and the Supplier fails to find effective remedial measures, it
shall, upon the demand from the Buyer for refund, unconditionally
refund the Buyer any and all the advance payment paid by the Buyer
and pay the Buyer default interest on such advance payment at the
rate equal to 200% of the then effective interest rate for bank
loans. The above refund and default interest may be set off with the
payment for relevant Subject Products which shall be calculated at
the preferential price set forth herein above."
14. The following provisions shall be inserted into the Contract as Article
8.12:
"8.12 The Supplier undertakes to the Buyer as follows:
Prior to December 31, 2006, the Supplier shall have obtained all the
governmental approvals and legal documents required for the
commencement of the construction of the Project. Otherwise, the Buyer
shall have the right to terminate the Project at its sole discretion.
In such case, the Supplier shall, upon the demand from the Buyer for
refund, unconditionally refund the Buyer any and all the advance
payment paid by the Buyer and pay the Buyer default interest on such
advance payment at the rate equal to 200% of the then effective
interest rate for bank loans. The above refund and default interest
may be set off with the payment for relevant Subject Products which
shall be calculated at the preferential price set forth herein
above."
15. Articles 9 and 10 in the Contract shall be consolidated and amended to read
as follows:
"Article 9
9.1 In case the Supplier intends to conduct a corporate restructuring, it
shall notify the Buyer thereof in advance and shall on a
priority-basis, offer the Buyer an opportunity to participate into
such restructuring at the same terms and conditions offered to any
third party. If as a result of the above, the Buyer
5
becomes an investor of the Supplier, any remainder of the advance
payment made by the Buyer hereunder may be in part converted into
equity in accordance with relevant PRC regulations, subject to further
negotiations between the parties hereto.
9.2 Any corporate restructuring of the Supplier shall not affect the
validity of this Contract.
9.3 For purposes of this Article, "corporate restructuring of the
Supplier" shall mean any change of organizational form of the Supplier
intended to transform the Supplier into a joint stock company or
foreign-invested enterprise, or any substantial change in assets or
equity of the Supplier, which could affect the right and interests of
the Buyer to and in any and all of the advance payment paid by the
Buyer."
16. The following provisions shall be added to the Contract:
"As from the effective date of this Contract, the Buyer and the Supplier
will become strategic partners and therefore shall consider how to protect
the interests of the other before taking any action. The Supplier agrees
that the Buyer shall have priority over the others in the execution of the
silicon product purchase contract with respect to the existing solar-grade
silicon products, whereunder, such products shall be supplied to the Buyer
at the preferential price set forth in the Contract."
17. Articles 11 to 16 of the Contract shall be replaced in their entirety with
the following articles accordingly:
"Article 11 Confidentiality
Without permission of the other party, neither party hereto may use or
disclose to any third party, any relevant document, know-how or financial
data of the other party obtained or known by it in the performance of this
Contract. The parties hereto will confirm such confidentiality obligations
of them by executing a Confidentiality Agreement in the form attached
hereto as Exhibit 1.
Article 12 Guarantee
In view of the respective rights and obligations of the Buyer and the
Supplier hereunder, in order to ensure that the Supplier will perform its
obligations and liabilities to the Buyer hereunder, Dongfang Steam Turbine
Works has agreed to provide a joint and several guarantee for the
Supplier's obligations and legal liabilities under this Contract. In
connection therewith, Dongfang Steam Turbine Works shall issue in favor of
the Buyer a Letter of Guarantee and Undertakings, which shall upon being
confirmed by the Buyer and the Supplier, be attached hereto as Exhibit 2.
Article 13 Incentives
Should the Supplier, prior to the expiry of the eighteen (18) months as
from the date hereof, complete the Project and the Project so completed is
able to produce Subject Products meeting the agreed criteria, the Buyer
shall pay the Supplier a bonus of RMB880,000. Should the Project reach the
expected production capacity, which is no
6
lower than 80% of 500 tons of solar-grade multicrystalline silicon/year, in
or prior to the beginning of, the nineteenth (19th ) month after the date
hereof, the Buyer shall pay the Supplier a bonus of RMB3.6 million. Should
the Project reach the expected production capacity, which is no lower than
80% of 500 tons of solar-grade multicrystalline silicon/year, in the
twentieth (20th) month after the date hereof, the Buyer shall pay the
Supplier a bonus of RMB2 million. All the above bonuses shall be used to
reward the management personnel and key engineering personnel designated to
the Project."
Article 14
Any dispute between the Supplier and the Buyer arising under this Contract
shall be resolved by the parties in a timely manner through consultations.
The Buyer and the Supplier agree that any dispute that fails to be resolved
through consultations shall be submitted to a competent court in Shanghai.
Article 15 Effectiveness
All the contracts and exhibits referred to herein shall come into effect at
the time when the Amendment No. 2 is affixed with the signature of the
authorized signatory and company seal of each party thereto. In case of any
discrepancy between any provision in this Contract, the Amendment to
Silicon Product Pre-purchase Contract EMC2006001 and the Amendment No. 2 to
Silicon Product Pre-purchase Contract EMC2006001, the provision in the
Amendment No. 2 shall prevail.
Article 16 Termination
This Contract shall become void and invalid upon the full offset of any and
all the advance payment by the Buyer as set forth above.
Article 17
This Contract shall be executed in four (4) originals, with each the Buyer
and the Supplier to hold two (2). Exhibit 1 Confidentiality Agreement and
Exhibit 2 Letter of Guarantee and Undertakings hereto shall constitute an
integral part of this Contract and have the equal legal force as this
Contract.
Article 18
Any matters not covered hereunder shall be set forth in supplemental
provisions to be agreed by the Buyer and the Supplier after further
negotiations and such supplemental provisions shall have the equal legal
force as this Contract."
18. This Amendment shall be executed in four (4) originals with each the Buyer
and the Supplier to hold two (2).
[signature on the next page]
7
BUYER: JIANGSU LINYANG SOLARFUN CO., LTD. (affixed with Buyer's company seal)
Signed by: Xx Xxxxxxx (signature)
Legal Representative/Authorized Representative
Bank of Deposit:
A/C:
Tel:
SUPPLIER: E-MEI SEMICONDUCTOR MATERIAL FACTORY (affixed with Supplier's
company seal)
Signed by: Deng Liangping (signature)
Authorized Representative
Signed by: Wei Bin (signature)
Legal Representative
Bank of Deposit:
A/C:
Tel:
8
(English Translation of the Original Contract in Chinese)
AMENDMENT NO. 3 TO SILICON SUPPLY AGREEMENT EMC2006001
This Amendment No. 3 to Silicon Product Pre-purchase Contract EMC2006001
(this "Amendment No. 3") is entered into this 17th day of November, 2006 by and
between the following two parties:
Buyer: JIANGSU LINYANG SOLARFUN CO., LTD., with its registered address
being at 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, and its legal
representative being Xx. Xx Yonghua; and
Supplier: E-MEI SEMICONDUCTOR MATERIAL FACTORY, with its registered address
being at 00 Xxxxx Xxxx, X-xxxxxxx, and its legal representative being Xx. Xx
Yuncheng.
After friendly negotiations, the Buyer and the Supplier have agreed that
the Amendment No. 2 to Silicon Product Pre-purchase Contract EMC2006001 (the
"Contract") by and between them dated October 2006 (the "Amendment No. 2") shall
be amended as follows:
1. Article 3.2 of the Contract under Section 5 of the Amendment No. 2 shall be
amended in its entirety to read as follows:
"3.2 The total amount of the advance payment to be made hereunder shall be
RMB220 million."
2. Article 4.2 of the Contract under Section 6 of the Amendment No. 2 shall be
amended in its entirety to read as follows:
"4.2 After the execution of this Contract, within ten (10) days after the
Supplier's submission of a written demand for payment and provision of
the feasibility study prepared by Emei Semiconductor Materials
Research Institute, the Buyer shall pay the initial installment of the
advance payment which shall be equal to RMB30 million. The first
portion of the initial installment in an amount of RMB10 million shall
be paid into the Special Account within one (1) week after the
execution of the Amendment No. 2 and the remaining amount of RMB20
million shall be paid prior to December 31, 2006. For each portion of
the initial installment paid by the Buyer, the Supplier shall issue a
guarantee letter of the equal amount with a term of two (2) years.
Within three (3) months as of the effective date of this Contract, the
Supplier shall submit the Project Schedule and the Funds Utilization
Plan, which shall be subject to the approval by the Buyer. The advance
payment payable by the Buyer hereunder other than the first
installment shall be paid by installments pursuant to the Project
Schedule and the Funds Utilization Plan mutually agreed by the parties
and the actual development of the Project. In order to allow the Buyer
to have a reasonable arrangement of cash inflow, for each single month
the Buyer shall not be required to make an advance payment exceeding
RMB30 million.
1
The Buyer hereby undertakes that it will pay each amount of the
advance payment within ten (10) days as of the Buyer's receipt of each
written demand for payment of such amount consistent with the Funds
Utilization Plan and the actual development of the Project and the
guarantee letter equal to such amount. The guarantee letter for each
amount of the advance payment shall be effective commencing from the
date of issuance to the date on which the production capacity of the
Project reaches 500 tons/year or April 30, 2008."
3. The Letter of Guarantee and Undertakings issued by Dongfang Steam Turbine
Works pursuant to Article 12 of the Contract under the Amendment No. 2 shall
terminate upon the effectiveness of this Amendment No. 3.
4. This Amendment No. 3 shall come into effect upon being affixed with the
signature of the authorized signatory and the company seal of each party hereto.
This Amendment No. 3 shall be executed in four (4) originals, with each party to
hold two (2).
[signature on the next page]
2
BUYER: JIANGSU LINYANG SOLARFUN CO., LTD. (affixed with Buyer's company seal)
Signed by: Xx Xxxxxxx (signature)
Legal Representative/Authorized Representative
Tel: 0000-0000000
SUPPLIER: E-MEI SEMICONDUCTOR MATERIAL FACTORY (affixed with Supplier's company
seal)
Signed by: Deng Liangping (signature)
Legal Representative/Authorized Representative
Tel: 0000-0000000
3
