AMENDMENT TO LONG-TERM SUPPLY AGREEMENT
EXHIBIT
10.2
AMENDMENT TO LONG-TERM
SUPPLY AGREEMENT
This
AMENDMENT TO LONG-TERM SUPPLY AGREEMENT, dated as
of __1-6-09____, is
entered into by and between HEMLOCK SEMICONDUCTOR, LLC, a Delaware limited
liability company with its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Seller”), SUNPOWER CORPORATION a United States
corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Parent”), and SUNPOWER PHILIPPINES MANUFACTURING
LIMITED, a Cayman Islands business and wholly owned subsidiary of Parent, with a
branch office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, Special Economic ▇▇▇▇, ▇▇▇▇▇▇
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(“Subsidiary”). Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Supply Agreement (defined
below).
WHEREAS,
Parent and Seller have entered into that certain Long-Term Supply Agreement,
dated as of __1-6-09____ (the
“Supply Agreement”), a true and complete copy of which is attached hereto as
Exhibit A, pursuant to which Seller has agreed to sell to Parent, and Parent has
agreed to purchase from Seller, the Products; and
WHEREAS,
Parent and Seller desire to amend the Supply Agreement to grant the rights to
Subsidiary which are granted to Parent in the Supply Agreement, including the
right to order Products directly from Seller for Subsidiary’s own use, and to
impose the obligations on Subsidiary which are imposed on Parent in the Supply
Agreement, including the obligation to pay Seller for Products ordered by
Subsidiary; and
WHEREAS,
Subsidiary desires to accept such rights and be bound by such obligations, all
in accordance with this Amendment and the terms of the Supply
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Parent, Seller and Subsidiary, each intending to be legally
bound, hereby agree as follows:
1. Subsidiary
Acknowledgement of Supply Agreement. Subsidiary acknowledges
that it has received and had ample time to review a complete copy of the Supply
Agreement, and agrees to be subject to and bound by all of the terms and
conditions of the Supply Agreement, after giving effect to this Amendment, as of
the date hereof.
2. Amendment
of Section 1. The definition of “Buyer” in Section 1(c)
of the Supply Agreement is hereby deleted and replaced with the
following:
“‘Buyer’
means, collectively, SunPower Corporation and SunPower Philippines Manufacturing
Limited, a Cayman Islands business and wholly owned subsidiary of SunPower
Corporation.”
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3. Effect of
This Amendment.
(a) Parent,
Seller and Subsidiary hereby agree that, for all purposes under the Supply
Agreement, Subsidiary shall have the same rights and be bound by the same
obligations as Parent under the Supply Agreement, including, without limitation,
the right to order Products and the obligations to make payments to Seller in
respect of such orders, and that all such rights and obligations shall be joint
and several among Parent and Subsidiary, including without limitation, in the
event of failure of performance or a default by Parent or Subsidiary under the
terms of the Supply Agreement. Seller, in its sole discretion, may
seek to enforce its rights under the Supply Agreement against Parent and/or
Subsidiary, without regard to which of them has failed to perform, defaulted or
breached under the Supply Agreement.
For the
avoidance of doubt, nothing in this Amendment, including without limitation, the
addition of Subsidiary to the definition of “Buyer” under Section 2 hereof, is
intended to nor shall it increase or multiply the obligations of Buyer (as
redefined herein) or Seller under the Supply Agreement. For example,
nothing in this Amendment is intended to nor shall it change the Advance Payment
under the Supply Agreement, nor shall it change the Contract Quantity of Product
set forth in Table I of Exhibit B to the Supply Agreement, which Seller is
obligated to supply and Buyer (as redefined herein) is obligated to
purchase.
(b) Except
as amended hereby, the terms and provisions of the Supply Agreement shall remain
in full force and effect and are hereby ratified and confirmed in all
respects.
4. Modification
to Operation of Section 11(a); Parent to Provide Notices of Default and
Termination. Notwithstanding that Subsidiary is included
within the definition of “Buyer” under the Supply Agreement as amended hereby,
Parent and Subsidiary acknowledge and agree that for purposes of Section 11(a)
(Termination and Damages/Default by Seller-Failure to Supply Product) in the
Supply Agreement, Parent alone shall have the right and authority, in the event
of a default by Seller under the circumstances set forth in Section 11(a), to:
(i) serve a “written notice of default upon Seller,” (ii) serve a “second
written notice to Seller[,] [i]f Buyer elects to terminate” the Supply
Agreement, or (iii) negotiate a Modified Anticipated Delivery Agreement with
Seller.
5. Amendment
of Section 25. The phrase “[t]he parties” in Section 25 of the
Supply Agreement is hereby deleted and replaced with “Buyer and
Seller.”
6. Amendment
of Section 33. The phrase “[t]he parties” in Section 33 of the
Supply Agreement is hereby deleted and replaced with “Buyer and
Seller.”
7. Termination
on Sale of Subsidiary. Parent shall deliver prompt written
notice to Seller in the event that (i) Parent sells, assigns, transfers,
encumbers or otherwise disposes of all or substantially all of its equity
interests in Subsidiary (including by way of merger, share exchange,
recapitalization or reorganization), or (ii) Subsidiary sells, assigns,
transfers, encumbers or otherwise disposes of all or substantially all of its
assets. Upon receipt of such
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8. Subsidiary
A Merchant/Sophisticated Party. Subsidiary hereby acknowledges
and agrees as follows: (i) it is a sophisticated business entity with
expertise and experience in all matters relating to this Amendment and the
Supply Agreement; (ii) it is a “merchant” and that this Amendment and the Supply
Agreement, after giving effect to this Amendment, are between and among
“merchants,” as that term is defined and used in the Michigan law; (iii) it had
equal bargaining power with the other parties hereto in the negotiation and
execution of this Amendment; (iv) it did not act under any duress, economic or
otherwise, when considering and entering into this Amendment; and (v) it had a
full opportunity, and did, consult with its counsel before entering into this
Amendment.
9. Counterparts. This
Amendment may be executed in two or more counterparts (including by facsimile),
all of which shall constitute one and the same instrument.
10. Governing
Law. This Amendment shall be construed, performed and enforced
in accordance with the internal laws of the State of Michigan, without giving
any effect to any choice or conflict of law provision or rule that would cause
application of the laws of any jurisdiction other than that set forth in this
Section.
11. Choice of
Forum; Time Period. Parent, Subsidiary and Seller submit to
the exclusive jurisdiction of the Circuit Court for the County of Saginaw, State
of Michigan, U.S.A. for all disputes and actions arising, directly or
indirectly, out of this Amendment, the performance of this Amendment, or the
breach of this Amendment, and any such action must be commenced within two (2)
years after the cause of action has accrued. Subsidiary shall join
Parent as a party to any action brought by Subsidiary arising, directly or
indirectly, out of this Amendment or the Supply Agreement, performance of this
Amendment or the Supply Agreement or the breach of this Amendment or the Supply
Agreement.
12. Headings. The headings
in this Amendment are for convenience of reference only and shall not be deemed
to alter or affect the meaning or interpretation of any provision
hereof.
13. Notice. Any
notice, demand or other communication required or permitted to be given under
this Amendment shall be in writing and shall be deemed delivered to a party (i)
when actually received by the representatives designated below to receive
notices, or (ii) (a) when delivered to the designated recipients’ addresses
listed below (addressed to the designated recipients) by certified or registered
mail (return receipt requested) and (b) when delivered by confirmed facsimile to
the recipients’ numbers designated below. Any party may change its
addresses or representatives for receiving notices upon notice to the
other.
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If
to Seller to:
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Hemlock
Semiconductor, LLC
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Attn.:
Vice President of Marketing
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Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With
a copy to:
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Hemlock
Semiconductor, LLC
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Attn.:
General Counsel/Legal Department
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Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If
to Parent to:
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SunPower
Corporation
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Attn: ▇▇▇
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Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With
a copy to:
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SunPower
Corporation
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Attn: General
Counsel
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Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If
to Subsidiary to:
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SunPower
Corporation
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Attn: ▇▇▇
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Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With
a copy to:
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SunPower
Corporation
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Attn: General
Counsel
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Fax
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as
of the date first above written.
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SUBSIDIARY:
SUNPOWER
PHILIPPINES MANUFACTURING LIMITED
/s/
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By: ▇▇▇▇▇
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Title:
C.O.O.
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PARENT:
SUNPOWER
CORPORATION
/s/
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By:
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Title:
C.O.O.
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SELLER:
HEMLOCK
SEMICONDUCTOR, LLC
/s/
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By: ▇▇▇▇
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Title:
Vice President
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