AMENDED AND RESTATED SALES REPRESENTATIVE AGREEMENT
Exhibit 10.33
CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document have been omitted pursuant to a request
for confidential treatment and, where applicable, have been marked with an asterisk (“[****]”) to denote
where omissions have been made. The confidential material has been filed separately with the Securities
and Exchange Commission.
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FINAL
AMENDED AND RESTATED
SALES REPRESENTATIVE AGREEMENT
SALES REPRESENTATIVE AGREEMENT
THIS AMENDED AND RESTATED SALES REPRESENTATIVE AGREEMENT (this “Agreement”), dated and
effective as of the 6th day of October 2008 (the “Effective Date”), between EverQ GmbH, a
limited liability company organized and existing under the laws of Germany and having its principal
place of business at XX Xxxxxxxx, Xxxxxxxxxxx 00-00, 00000 Xxxxxxxxxx-Xxxxxx, Xxxxxxx
(“EverQ”), and Evergreen Solar, Inc., a Delaware corporation, having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx, 00000 XXX (“Evergreen”). EverQ
and Evergreen are also collectively referred to herein as “Parties” and individually as
“Party.”
RECITALS
WHEREAS, EverQ and Evergreen previously entered into that certain Sales Representative
Agreement dated and effective September 29, 2006 (the “Prior Agreement”); and
WHEREAS, pursuant to Section 21(e) (Amendments and Waivers) of the Prior Agreement, EverQ and
Evergreen desire to amend and restate in its entirety the Prior Agreement as set forth in this
Agreement to expressly define the rights and obligations of each Party during the transition from
Evergreen serving as EverQ’s sales representative to EverQ independently managing its own sales and
marketing activities.
AGREEMENT
NOW, THEREFORE, it is mutually agreed that EverQ will manufacture and supply, and Evergreen
will use commercially reasonable efforts to market and sell, as representative of EverQ, the
Evergreen-Product as defined in this Agreement, pursuant to and in accordance with the following
terms and conditions.
1. DEFINITIONS AND EXHIBITS
The following terms shall have the following respective meanings for purposes of this
Agreement:
CONFIDENTIAL
(a) “Business Day” shall mean any day on which financial institutions are generally
open and available for business, and which is not otherwise a holiday, in all of the German state
of Saxony-Anhalt and the United States Commonwealth of Massachusetts.
(b) “Change of Control” means with respect to any entity, the acquisition of such
entity by another entity by means of any transaction or series of related transactions (including,
without limitation, any share acquisition, sale of all or substantially all of the assets,
reorganization, merger or consolidation, but excluding any sale of shares for capital raising
purposes) other than a transaction or series of transactions in which the holders of the voting
securities of such entity outstanding immediately prior to such transaction continue to retain
(either by such voting securities remaining outstanding or by such voting securities being
converted into voting securities of the surviving entity), as a result of shares in such entity
held by such holders prior to such transaction, more than 50% of the total voting power represented
by the voting securities of such entity or such surviving entity outstanding immediately after such
transaction or series of transactions
(c) “Contracts” shall mean the supply agreements listed in Exhibit C and any
Product Sales Transactions Evergreen is permitted to enter into pursuant to this Agreement for
fulfillment using Evergreen-Products produced and available for shipment prior to the Sales
Termination Date which additional Product Sales Transactions shall be listed on Exhibit C
and deemed to be Contracts. The Contracts shall exclude each Specified Contract to the extent that
each such Contract is assigned pursuant to Section 14(f) (Customer Transfers).
(d) “Dedicated Production Capacity” shall mean the amount of production capacity
needed for the fulfillment of the Contracts between January 1, 2008 and the Sales Fulfillment
Termination Date in MWp as such amounts are listed in Exhibit D; provided, however, if all
of EverQ’s production capacity is less than the Dedicated Production Capacity in one calendar year
determined in Exhibit D, then the Dedicated Production Capacity shall mean all of EverQ’s
production capacity in the respective year.
(e) “Evergreen Design” means any proprietary visual design or proprietary
configuration of the products currently manufactured by EverQ and provided by Evergreen which is
formally described by prior written notification by Evergreen as “Evergreen Design”. Provided,
however, that the Parties agree that each of (i) products manufactured by EverQ based on any
specification, visual design or configuration requested by Evergreen, (ii) any wafer and cell
technology in use by Evergreen as of the Sales Termination Date and (iii) any intellectual property
licensed to EverQ, do not constitute and include “Evergreen Design.”.
(f) “Evergreen-Product(s)” shall mean the products manufactured by EverQ to be sold by
Evergreen pursuant to the Contracts.
(g) “EverQ-Product(s) shall mean the products manufactured and sold by EverQ which are
not Evergreen-Products.
(h) “License Agreements” means the Second Amended and Restated License & Technology
Transfer Agreement by and between Evergreen and EverQ, that the Parties expect to
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enter into later in 2008, and the Quad Technology License Agreement by and between Evergreen
and EverQ dated as of October 6, 2008.
(i) “Orders” shall mean orders for Products issued hereunder by Evergreen.
(j) “Product(s)” shall mean the products manufactured by EverQ. The Products
currently include those products described in Exhibit A.
(k) “Product Revenue” means the payment that Evergreen actually receives in
consideration for the sale of the respective Evergreen-Product to a customer hereunder and does not
include third party costs such as shipping and insurance and does not include taxes and duties.
(l) “Sales Fulfillment Termination Date” shall mean December 31, 2011.
(m) “Sales Termination Date” shall mean December 31, 2008.
(n) “Specifications” shall mean the written specifications according to which the
Evergreen-Products are to be manufactured pursuant to the Contracts, which specifications may only
be modified as provided under Section 12 (Changes).
(o) “Specified Contracts” shall mean the supply agreements with each of [****].
The following Exhibits are attached to this Agreement and are incorporated herein by this
reference:
Exhibit A — Products
Exhibit B — Warranty
Exhibit C — Schedule of Customer Contracts with Evergreen
Exhibit D — Schedule of Dedicated Production Capacity between 2008 and 2011
Exhibit E — [****]
Exhibit B — Warranty
Exhibit C — Schedule of Customer Contracts with Evergreen
Exhibit D — Schedule of Dedicated Production Capacity between 2008 and 2011
Exhibit E — [****]
Each Party acknowledges receipt of copies of all documents referred to in the Exhibits.
2. PRECEDENCE OF DOCUMENTS
The precedence of agreements between Evergreen and EverQ shall be:
(a) This Agreement, including any amendment adopted pursuant to Section 22(f) (Amendments and
Waivers).
(b) Any Order.
(c) Any subsequent written agreement between Evergreen and EverQ that does not expressly
indicate it is an amendment to this Agreement.
3. APPOINTMENT AND AUTHORITY OF EVERGREEN.
EverQ hereby appoints Evergreen as EverQ’s sales agent (Kommissionsagent), and
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Evergreen hereby accepts such appointment. Evergreen will use commercially reasonable efforts
to market and sell the Evergreen-Product and EverQ shall manufacture and deliver the
Evergreen-Product ordered by Evergreen in accordance with the terms and conditions of this
Agreement. Such efforts by Evergreen shall include serving as the exclusive sales representative
for all Evergreen-Products currently scheduled for delivery under the Contracts as in effect on
January 1, 2008 and for the sale of all Evergreen-Products manufactured by EverQ and available for
shipment on or prior to the Sales Termination Date. Subject to the terms and conditions of this
Agreement, Evergreen shall have the right to manage and conduct its activities in the manner it
deems appropriate in Evergreen’s discretion. Subject to its obligations to fulfill the
requirements of the Contracts and the Product allocation requirements pursuant to Section 6(e)
(Sourcing), Evergreen may generate, accept and manage orders for any Evergreen factory capacity or
products manufactured by parties other than EverQ without limitation or restriction on any terms or
conditions of such orders, including, without limitation, customer, country or price.
4. PRODUCTION CAPACITY FORECASTS.
(a) EverQ Long Term Forecasts. Upon the Effective Date and at [****] prior to the Sales
Fulfillment Termination Date, EverQ shall provide Evergreen a written non-binding capacity forecast
(“EverQ Long Term Forecast”), indicating whether EverQ’s capacity is sufficient to supply
the Evergreen-Products as required pursuant to the Contracts in each of the [****] from the date
such forecast is given through the Sales Fulfillment Termination Date. EverQ shall notify Evergreen
promptly upon becoming aware of circumstances that would limit EverQ’s ability to supply adequate
quantities of Evergreen-Product to satisfy the requirements under the Contracts.
(b) EverQ Rolling Forecast. Each [****] during the term of this Agreement EverQ shall provide
Evergreen a written rolling capacity forecast ( “EverQ Rolling Forecast”), indicating
whether EverQ can supply Evergreen in each of the next [****] with the volumes specified in the
Evergreen Forecast, as defined under Section 6(a).
5. PRODUCT SALES TRANSACTIONS.
(a) EverQ Terms. With respect to Evergreen-Products that may be sold by Evergreen hereunder,
EverQ shall, in its sole discretion[****]. EverQ will determine, in its sole discretion,
adjustments to the [****] generally or with respect to a specific Product Sales Transaction where
such adjustment [****]. EverQ shall promptly notify Evergreen of the [****] or any adjustments to
the [****]. EverQ will further determine, in its sole discretion, which contracts and contract
terms that will require formal consent of the EverQ Supervisory Board, and EverQ shall notify
Evergreen thereof. However, if Evergreen is unable to provide such contracts, approval of [****]
shall suffice.
[****]
(b) Product Sales Transactions. Evergreen shall have the right to negotiate and enter into
agreements and sales transactions, including sales transactions for the sale of all Products
manufactured by EverQ and available for shipment on or prior to the Sales Termination
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Date that are not needed to fulfill Orders pursuant to the Contracts, (collectively
“Product Sales Transactions”) directly with customers. Evergreen shall have the right to
negotiate the terms applicable to the respective Product Sales Transaction (“Negotiated
Terms”) provided that such terms are within the [****]. EverQ shall provide the Products
hereunder in accordance with the Negotiated Terms provided that Negotiated Terms are within the
Term Ranges at the time the Product Sales Transactions are entered or, if not within such range,
EverQ approves the Negotiated Terms. EverQ may approve the Negotiated Terms by approving the
specific Negotiated Terms or [****] and after such approval, the Negotiated Terms are deemed within
the [****] for the respective Product Sales Transactions. Provided that Product Sales Transactions
are within the amounts of the EverQ Long Term Forecast at the time the Product Sales Transactions
are entered, Evergreen shall have the right to place Orders for Products in such Product Sales
Transactions, and EverQ shall manufacture, sell and deliver the Products in accordance with such
Orders. To the extent that the EverQ Rolling Forecast indicates EverQ has greater capacity, or
EverQ otherwise has more capacity available than indicated by the EverQ Long Term Forecast, EverQ
shall make such capacity available for the Product Sales Transactions subject to Section6(c)
(Limited Exclusivity) and Section6(d) (Excess Inventory). Product Sales Transactions [****] are
deemed to constitute Product Sales Transactions of which the Negotiated Terms are approved.
(c) Information and Accounting. Except to extent prohibited by law, Evergreen shall inform
EverQ without delay of any Product Sales Transactions entered and render account of such Product
Sales Transaction. Section 384 para.3 of the German Commercial Code (Handelsgesetzbuch) shall not
apply.
(d) Administration by Evergreen. Unless otherwise requested by Evergreen, EverQ will not be a
party to the Product Sales Transactions. EverQ shall not contact the customers except as necessary
to exercise its rights under this Agreement, particularly under Section 8(b) (Payment to EverQ) and
Section 11(c) (Warranty Procedure). [****] Evergreen shall have the right to be the sole
interface with customers and to handle administration of order fulfillment, invoicing, collections,
warranty, service and related activities.
(e) End of Sales Period. Notwithstanding the foregoing, Evergreen may only negotiate and
enter into Product Sales Transactions for Evergreen-Products that will be manufactured and
available for shipment on or prior to the Sales Termination Date. The Parties agree that EverQ is
not required to consign any Products available for shipment after the Sales Termination Date to
Evergreen.
6. EVERGREEN FORECASTS AND ORDERS
(a) Evergreen Forecasts. Each [****] during the term of this Agreement, within [****] of
receiving the EverQ Rolling Forecast, Evergreen shall provide EverQ a non-binding written rolling
forecast (“Evergreen Forecast”), indicating Evergreen’s good faith estimate of the total
quantity to be ordered by Evergreen from EverQ under this Agreement in each of the next [****] and
estimated allocations of Evergreen-Product type requested by the customers pursuant to the
Contracts to the extent such allocations have been requested pursuant to the Contracts, including
periods already covered by Evergreen’s outstanding Orders. The quantities specified for the first
[****] of each Evergreen Forecast shall constitute a binding shipment plan. EverQ
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shall procure materials and manufacture Products sufficient to meet the Evergreen Forecasts.
EverQ is not required to limit its production to the level of the Evergreen Forecasts, provided
that EverQ shall be solely responsible for the sale and management of the delivery of all Products
which Evergreen is not required to sell and manage the delivery of pursuant to this Agreement.
EverQ agrees to advise Evergreen without undue delay in the event that EverQ anticipates that it
will be unable to achieve the volumes and schedules set forth in the Evergreen Forecast.
(b) Orders. EverQ shall sell and deliver Evergreen-Products in accordance with the Product
quantity, part number(s), specifications, destination and delivery dates specified in Evergreen’s
Orders for Evergreen-Product to be shipped pursuant to the Contracts. Orders may only be placed
for the Products to be delivered pursuant to the Contracts and consistent with the Evergreen
Forecast. Orders may be made in the form of weekly shipping forecasts and daily delivery notes
which are provided by Evergreen to the EverQ warehouse.
(c) Limited Exclusivity; Priority of Orders pursuant to the Contracts. Evergreen shall have
the exclusive right to sell Evergreen-Products in the amount of EverQ’s total production capacity
for Product produced and available for shipment on or prior to the Sales Termination Date. For
Product manufactured and available for sale after the Sales Termination Date, EverQ shall have the
sole right to sell the Products itself / or through other sales / commission agents without
limitation or restriction on customer, country, price terms etc., provided that EverQ first
supplies Evergreen with sufficient Evergreen-Products to fulfill the Contracts. EverQ-Products
shall not bear Evergreen Marks or be of an Evergreen Design, except as permitted or required by
another written agreement between the Parties, including without limitation as may be permitted or
required in either or both of the License Agreements.
(d) Excess Inventory. EverQ shall also have at any time the right to itself sell inventory to
the extent accumulated, provided that EverQ satisfies its obligations to Evergreen with respect to
the Contracts. Sales according to this clause (d) (Excess Inventory) shall not bear Evergreen Marks
to the extent they can be reasonably relabeled without damage to product (except as permitted or
required by another written agreement between the Parties).
(e) Sourcing. To satisfy the requirements for Products pursuant to the Contracts, Evergreen
shall first use Evergreen-Products manufactured by EverQ. If the Dedicated Production Capacity is
not adequate to satisfy all of the requirements for Evergreen-Products pursuant to the Contracts,
Evergreen may use products from another source as determined by Evergreen in its sole discretion
subject to the requirement that, as long as Evergreen is required to use any product manufactured
by a party other than EverQ to fulfill any portion of the Contracts, in allocating Evergreen
product and Product to fulfill the Contracts, Evergreen agrees to treat the Product from EverQ no
less favorably than Evergreen’s internal and other external sources of supply, taking into account
the Dedicated Production Capacity and production volume from internal and other sources,
specifications of Products manufactured by EverQ and other sources versus specifications of
Products demanded by Evergreen’s customers and manufacturing and shipping locations. If the amount
of Evergreen-Product available for shipment in one calendar year for fulfillment of the Contracts
is lower than the Dedicated Production Capacity in such year, without limiting the remedies that
may otherwise be available to it, Evergreen may require that EverQ allocate production capacity in
the following calendar year to cover the shortfall in Evergreen-Product for the year in which such
shortfall occurred.
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7. TERM OF AGREEMENT
This Agreement shall be effective on the Effective Date and shall expire on the Sales
Fulfillment Termination Date, except as set forth in Section 15(c) (Survival). Upon termination of
the Agreement, EverQ shall no longer have right to make or sell Products with any (i) Evergreen
Marks and any (ii) Evergreen Design pursuant to this Agreement. Any such rights to manufacture and
sell Products using any Evergreen Design or other Evergreen intellectual property, and any related
rights, shall be governed by the License Agreements.
8. PRICING AND PAYMENT
(a) Pricing. Pricing for Product Sales Transactions will be determined in accordance with
Section 5(a) (EverQ Terms).
(b) Payment to EverQ.
(i) Subject to Section 8(b)(ii), Evergreen shall remit to EverQ the Product Revenue, less the
Evergreen Fee. Evergreen shall remit such amount within [****] days of Evergreen’s receipt of the
Product Revenue from the customer. Evergreen shall have no liability to EverQ for delays or
defaults in payment for Product, or product default or termination, by customers. Evergreen shall
use commercially reasonable efforts to collect the Product Revenue. In the event that Evergreen is
unable to collect on account for Product Revenue within [****] of when due, then on EverQ’s request
as EverQ’ s sole remedy, Evergreen will assign the account to EverQ, which may collect on the
account, retain the funds and remit the Evergreen Fee to Evergreen if the funds are collected. In
the event that Evergreen is not able to collect on account for Product Revenue within [****] of
when due, then Evergreen may satisfy its obligation to use commercially reasonable efforts to
collect the Product Revenue by assigning the account to a collection agency for a standard
collection fee. Unless otherwise agreed, payment shall be in the currency Evergreen receives from
its customers for Product (which currency shall be specified to EverQ at the time of its sale upon
EverQ’s request).
(ii) To the extent permitted under the Contracts, Evergreen assigns all mature and future
claims to payments due and payable pursuant to the Contracts (“Claims”), subject to Evergreen’s
right to receive the Evergreen Fees. Evergreen agrees to make reasonable efforts to obtain of
each customer under the Contracts (“Customers”) consent to the foregoing assignment.
Evergreen’s right to collect the Product Revenue shall terminate and be of no further force or
effect if an Event of Default (as defined below) occurs. EverQ shall have the right to withdraw
that authority to collect the payments that are the subject of the Claims following an Event of
Default. In the event that Evergreen’s right to collect payments from its customers under the
Contracts and EverQ collects any such payments, EverQ shall remit to Evergreen the Evergreen Fee
within [****] of EverQ’s receipt of the Product Revenue from the customer. An “Event of Default”
shall occur if:
(A) Evergreen shall default in its obligation to remit the payment of any part of the Product
Revenue for more than [****] after Evergreen’s receipt of the Product Revenue from the customer;
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(B) Evergreen shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts as they become due, or shall file a voluntary petition for
bankruptcy, or shall file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, dissolution or similar relief under any present or future
statute, law or regulation, or shall file any answer admitting the material allegations of a
petition filed against Evergreen in any such proceeding, or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of Evergreen, or of all or any
substantial part of the properties of Evergreen, or Evergreen or its respective directors or
majority stockholders shall take any action looking to the dissolution or liquidation of Evergreen;
or
(C) Within [****] after the commencement of any proceeding against Evergreen seeking any
bankruptcy reorganization, arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation, such proceeding shall not
have been dismissed, or within [****] after the appointment without the consent or acquiescence of
Evergreen of any trustee, receiver or liquidator of Evergreen or of all or any substantial part of
the properties of Evergreen, such appointment shall not have been vacated.
(c) Evergreen Fee. In consideration for its activities hereunder, Evergreen shall receive a
fee (“Evergreen Fee”). The Evergreen Fee shall consist of the sum of a Percentage Fee
times the received Evergreen-Product Revenue. The “Percentage Fee” shall be the applicable
Base Rate specified below. For all shipments through the Sales Termination Date, the “Base Rate”
shall be set at [****] of Evergreen-Product Revenue. For all shipments after the Sales Termination
Date until the Sales Fulfillment Termination Date, the “Base Rate” shall be set at [****] of
Evergreen-Product Revenue. No fees will be charged for shipments made after the Sales Fulfillment
Termination Date unless such shipments are made to fulfill Evergreen-Product shipment obligation
under the Contracts that would have been fulfilled to the Sales Fulfillment Termination Date but
for delay caused by EverQ. All sales and marketing costs and expenses of Evergreen are compensated
by the Evergreen Fee.
(d) Assignment of Interests in the Contracts. Evergreen hereby assigns to EverQ, by way of
security, each future Evergreen claim less the Evergreen Fee vis-à-vis its customers for Products
Revenue under the Contracts in order to secure each such respective claim of EverQ vis-à-vis
Evergreen under this Agreement. Evergreen is entitled to collect the Product Revenue from the
customer according to Section 8(b) (Payment to EverQ), and particularly Evergreen is entitled to
assign the account to a collection agency for a standard collection fee. EverQ is allowed to inform
the customers and collect the payment itself if EverQ elects to terminate this Agreement pursuant
to Section 15(b)(i) (Termination Grounds for Termination by EverQ).
(e) Credit. Undisputed amounts owed to Evergreen due to rejections of Product, accepted
warranty claims, discrepancies on paid invoices and other undisputed amounts payable under this
Agreement will be, at Evergreen’s option, fully credited against future invoices payable to EverQ,
or paid by EverQ within [****] from EverQ’s receipt of a debit memo or other written request for
payment from Evergreen.
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(f) Set-off. Evergreen retains the right to set-off undisputed amounts owed from EverQ
against amounts owed to EverQ.
(g) Records and Audits. Evergreen shall maintain complete and accurate records regarding the
Product Sales Transactions in accordance with generally recognized commercial accounting practices,
and Evergreen shall keep such records available for at least [****] years or longer, if required by
German tax law and EverQ has notified Evergreen of such requirement, after end of the period to
which they apply. Evergreen shall allow EverQ, through an independent certified public accountant
mutually acceptable to Evergreen and EverQ, during office hours and at reasonable intervals, no
more than [****] to audit records solely for the purpose of ascertaining the correctness of
Evergreen’s payments and for reviewing Evergreen Fee hereunder. The auditor shall be subject to an
obligation of confidentiality, and Evergreen may require the auditor to execute a confidentiality
agreement to that effect. The auditor shall report only whether a discrepancy was found, and if
so, the amount of under or overpayment. If a deficiency of [****] or more exists for the period
audited, Evergreen shall pay, in addition to such deficiency, the reasonable costs of such audit.
9. DELIVERY AND SHIPPING TERMS
EverQ shall deliver on the dates and to the locations in accordance with the Contracts as the
shipments pursuant to the Contracts are set forth in the most recent Evergreen Forecast. EverQ
shall use commercially reasonable efforts to satisfy the mix of Evergreen-Product type requested by
the customers pursuant to the Contracts and disclosed in the Evergreen Forecast, but in no event
will a Evergreen customer placed at a disadvantage relative to other EverQ customers with regard to
the mix of Evergreen-Product type delivered by EverQ, unless agreed to by such customer. EverQ
shall have the right to alter the mix of Evergreen-Product type for all Evergreen customers if it
is not able to satisfy the mix of Evergreen-Product type requested by the customers pursuant to the
Contracts for reasons in connection with the manufacturing of Products (e.g., limitations of the
production); provided that if the mix of Product for Evergreen customers differs from the
applicable Orders, it shall be consistent with the mix of all Product manufactured by and generally
available from EverQ unless otherwise consented to by Evergreen after consultation with the
applicable customer. All shipping terms including responsibility for cost of shipping, taxes,
insurance, passage of title and risk of loss shall be in accordance with the terms of the Contracts
and all other expenses connected with product delivery payable by Evergreen pursuant to the
Contracts shall be paid by EverQ. All Evergreen-Products shall be prepared, packed, marked and
shipped in accordance with the terms of the Contracts.
10. FACILITIES, RECORDS, AUDITS, CONFIDENTIALITY AND QUALITY REQUIREMENTS
(a) Facilities. EverQ shall manufacture and supply the Evergreen-Products in accordance with
the Specifications of this Agreement using adequate, qualified manufacturing facilities, with all
necessary labor and equipment. Such facilities shall be subject to Evergreen’s inspection and/or
audits from time to time. Unless otherwise agreed, EverQ is solely responsible to provide all
parts, labor, materials and other items necessary to perform its obligations hereunder.
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(b) Records and Audits. At Evergreen’s request, upon reasonable prior notice, EverQ shall
permit Evergreen and its representatives to periodically inspect and audit EverQ’s books, records,
and manufacturing facilities pertaining to EverQ’s manufacturing of the EverQ-Products. In
accordance with Evergreen’s reasonable request, EverQ shall, at its reasonable discretion, [****].
EverQ shall maintain accurate and complete records regarding EverQ’s manufacturing and supply of
the Evergreen-Products. These records shall be held in no event less than [****] years kept
following the end of the calendar quarter to which they pertain.
(c) Quality Requirements.
(i) EverQ agrees to provide outgoing inspection, quality and reliability data as reasonably
specified from time to time by Evergreen for the Evergreen-Products.
(ii) EverQ shall provide Evergreen with Flash Test Data for the Evergreen-Products in each
shipment to enable Evergreen to satisfy its obligation to provide Flash Test Data pursuant to the
Contracts. EverQ shall provide Evergreen with Flash Test Data in an electronic format within
reasonable time after Evergreen-Products have been shipped. EverQ will make reasonable efforts to
ensure this data is in a format suitable for loading into Evergreen’s database. All
Evergreen-Products provided to Evergreen by EverQ shall be within panel power tolerance
specifications for the Products.
(iii) Evergreen-Product electrical characteristics shall be based on the results of a
production line test performed at the MC connectors or equivalent in accordance with IEC 904-1 at
Standard Test Conditions (1000 W/m2 with IEC904-3 reference solar spectral irradiance distribution,
AM1.5 and 25C).
(iv) Evergreen-Products shall be certified XX 0000, XXX 61730, or future mandated equivalent
standards as required to meet local national or regulatory requirements.
(d) Stopping Shipments. Evergreen may request EverQ to stop shipments for significant quality
deficiencies. [****] If Evergreen so requests, EverQ’s obligations to meet delivery commitments
shall thereafter be suspended until such time as Evergreen thereafter requests EverQ to recommence
shipment of Evergreen-Products. Evergreen and EverQ shall work together to allow EverQ to resume
production and shipment as promptly as practicable. All requests pursuant to this Section shall be
in writing.
11. WARRANTY
(a) Title Warranty. EverQ warrants that title to the Products sold by Evergreen shall be free
and clear of all liens, mortgages, encumbrances, security interests or other claims or rights
(“Third Party Rights”). However, Third Party Rights do not include (i) any Intellectual
Property Rights or Technology provided by Evergreen to EverQ or based on the License & Technology
Transfer Agreement between Evergreen to EverQ, as may be amended from time to time and (ii) any
rights of third parties regarding the aforementioned Intellectual Property Rights or Technology
provided by Evergreen.
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(b) General Warranty.
(i) Warranty Coverage. EverQ warrants (1) all Products sold by Evergreen and
delivered prior to the Effective Date (including without limitation any Products of any type
specified on Exhibit E) and (2) all Products sold by Evergreen and delivered on or after
the Effective Date that are manufactured based on complete manufacturing specifications and
installation instructions requested by Evergreen that have been accepted by EverQ (as such
acceptance is provided for in accordance with Section 11(b)(ii)), pursuant to the warranty attached
hereto in Exhibit B. EverQ also warrants all such Products sold by Evergreen with respect
to any specific warranty terms that [****]. EverQ shall not be liable for defects of any Products
sold by Evergreen using manufacturing specifications or installation instructions (e.g., any
material, equipment and/or process parameters, particularly with regard to power measurements)
requested by Evergreen that have not been accepted by EverQ.
(ii) Product Acceptance. For purpose of determining which Product manufacturing
specifications and corresponding installation instructions have been accepted, EverQ agrees and
acknowledges that any Product manufacturing specifications together with their applicable
installation instructions sold by Evergreen and delivered prior to the Effective Date, except for
those Products listed on Exhibit E, represent Products with complete manufacturing
specifications and installation instructions that have been accepted by EverQ. In addition, the
implementation of new manufacturing specifications in an EverQ factory and the sale of Product
manufactured to such specifications after the Effective Date with certain installation instructions
shall constitute acceptance of the applicable manufacturing specifications and installation
instructions by EverQ. EverQ may reasonably decide to refuse to accept new Product manufacturing
specifications and corresponding installation instructions that are proposed by Evergreen after the
Effective Date. If applicable law or the applicable certification requirements for any Product are
modified such that an accepted manufacturing specifications and installation instructions will no
longer comply with legal or certification requirements, EverQ and Evergreen shall use commercial
reasonable efforts to (i) modify the applicable manufacturing specifications and installation
instructions, and (ii) seek the consent of customers under the Contracts to modifications to the
Contracts to permit delivery of Product based on such non-compliant manufacturing specifications
and installation instructions.
(c) Warranty Procedures. If (i) EverQ is notified of any failure of any Product sold by
Evergreen to conform to the warranties required pursuant to Section 11(b) above and provided a
description of such breach; and (ii) such Products are accepted to be defective or non-conforming
by Evergreen, EverQ shall repair, replace or refund the purchase price of such Product. EverQ
shall expedite any such Order for replacement Product at Evergreen’s request and, if requested by
Evergreen, [****]. To the extent that the warranty claims amount to the lesser of (i) a single
claim of [****] euro (€[****]) or (ii) [****] percent ([****] %) of Evergreen’s sales of Products
from EverQ cumulatively in the prior [****] months, then Evergreen shall be free to assess in its
reasonable judgment, [****], whether the warranty is breached and whether the remedy shall be
repair, replacement or refund. Evergreen will provide to EverQ monthly reports outlining any
recurring warranty cases and, upon request of EverQ, also an evaluation report. If Product is
replaced, EverQ shall have the right to receive and examine the faulty Product sold by Evergreen.
To the extent that the claims are greater than such threshold, EverQ and Evergreen shall jointly
determine the remedy and [****]. [****] EverQ
CONFIDENTIAL
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will notify Evergreen if the warranty claim is accepted. EverQ will accommodate variations of
the above procedure to the extent required by the respective Product Sales Transaction [****].
(d) Warranty Claim Disputes. If the Parties have a bona fide disagreement as to the validity
of a warranty claim for the Products sold pursuant to the Contracts and the Parties are unable to
resolve this difference within [****] Business Days following written notice from one Party to the
other regarding such disagreement, Evergreen shall be permitted to handle the claim as it
reasonably deems appropriate in order to preserve customer satisfaction. The Parties will equally
share the costs of this warranty expense pending final arbitration of the claim by a third party
pursuant to Section 22(a) (Governing Law and Dispute Resolution), if the Parties cannot otherwise
resolve the dispute.
(e) Repaired or Replaced Products. EverQ shall return Products sold by Evergreen repaired or
replaced under this warranty [****]. EverQ shall organize transport and bear the transportation
charges, if any, for shipment to EverQ of repaired, replaced, or returned-for-credit Product.
(f) Exclusion. Apart from the rights mentioned in Section 11(a) (Title Warranty) through
Section 11(e) (Repaired or Replaced Products), Evergreen is not entitled to any further warranty
claims.
12. CHANGES
(a) The term “Product Changes” shall mean those mechanical, electrical or
Specification changes, changes in suppliers or subcontractors, made to or with respect to the
Evergreen-Products or the manufacture process which, if made, could affect the schedule,
performance, quality, reliability, availability, serviceability, appearance, dimensions,
tolerances, safety or costs. EverQ is, [****], allowed to make Product Changes that do not affect
customer interests pursuant to the Contracts. Product changes which may affect the performance,
quality, reliability, serviceability, appearance, dimensions and the tolerances, safety of
Evergreen-Products and affecting customer interests pursuant to the Contracts only become effective
if approved by Evergreen, nevertheless such approval shall only be denied on a reasonable basis.
Evergreen shall use its commercially reasonable efforts to provide for respective adjustment
clauses [****].
(b) Should Q-Cells (as defined below) and/or REC (as defined below) develop a proprietary
product design that provides cost and/or product advantages the Parties will negotiate in good
faith to enable said design to be manufactured and sold under the terms of this Agreement.
13. TRADEMARKS
EverQ shall apply Evergreen’s trademark(s) (“Evergreen Marks”) to the
Evergreen-Products and otherwise use Evergreen Marks only as reasonably instructed from time to
time. Evergreen grants to EverQ a non-exclusive, non-transferable license to use the Evergreen
Marks, solely on the Evergreen-Products in accordance with Evergreen’s instructions, and only for
so long as EverQ complies with Evergreen’s then-current trademark usage guidelines. Without
limitation, EverQ shall not take any action that would detract from the goodwill of Evergreen
CONFIDENTIAL
-12-
associated with the Evergreen Marks. If EverQ is using the Evergreen Marks improperly, then
upon notice from Evergreen, EverQ must remedy the improper use [****]. EverQ shall make all
reasonable efforts to manufacture, or have manufactured, any product upon which the Evergreen Marks
are applied to standards that are at least as high as those for similar products of EverQ. EverQ
acknowledges that Evergreen is the owner of the Evergreen Marks, and shall do nothing inconsistent
with Evergreen’s ownership of the Evergreen Marks. All use of the Evergreen Marks by EverQ will
inure to the benefit of Evergreen, and nothing in this Agreement grants to EverQ any right, title
or interest in the Evergreen Marks other than the right to use the Evergreen Marks in accordance
with this Agreement. EverQ shall not sell any Product bearing the Evergreen Marks except in
accordance with this Agreement or as permitted or required by another written agreement between the
Parties. In the event that the Agreement is terminated or has expired and EverQ has excess
inventory of Products bearing the Evergreen Marks that is not to be sold by Evergreen, then, if the
Products cannot be reasonably relabeled and the sale of the Products with the Evergreen Marks is
not otherwise permitted or required pursuant to another agreement, Evergreen agrees to EverQ’s sale
of such Products bearing the Evergreen Marks.
14. TRANSITIONAL OBLIGATIONS
(a) EverQ Sales and Marketing Staff. EverQ shall use its best efforts to hire as soon as
possible an appropriately capable professional to lead EverQ’s sales and marketing activities.
Evergreen shall reasonably cooperate or assume the lead (if requested) in identifying candidates
for EverQ’s sales and marketing department. Evergreen shall reasonably cooperate in training
EverQ’s sales and marketing team on order management tools needed to perform the sales and
marketing function. Evergreen shall be reimbursed for the incurred costs directly associated with
recruiting, hiring and training the EverQ sales and marketing staff pursuant to this Section 14(a).
(b) Sales and Marketing Planning. EverQ will develop a marketing, sales and distribution plan
to support the sale of EverQ-Products in excess of the Dedicated Production Capacity to be shipped
after the Sales Termination Date. Commencing upon the hiring of EverQ’s senior sales and marketing
professional, but in no event later than the first applicable trade show in 2009, EverQ shall
secure trade show space independent of the space secured by Evergreen for any trade show EverQ
desires to attend.
(c) EverQ Name and Trademarks. EverQ shall determine its new company name and trademarks as
soon as reasonably possible, provided that such new name shall be formally adopted no later than
December 31, 2008. EverQ’s new name shall not include any variation of the words “ever”, “green”,
“string”, “ribbon”, “REC”, “Renewable Energy”, “Q-Cells” or any other registered or common law
trademarks of Evergreen, Renewable Energy Corporation ASA (“REC”) or Q-Cells AG (“Q-Cells”).
(d) Product Certifications. EverQ will use its commercially reasonable efforts, and Evergreen
will cooperate on a commercially reasonable basis as well as provide product documentation as
requested by the certifying body to assist EverQ’s in its efforts, to obtain the necessary
certifications of the Products from TÜV and any other applicable certifying entity, body or state
agency so that EverQ can sell the EverQ-Products with its new name and logo commencing on January
1, 2009.
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(e) Commencement of Sales. EverQ hereby assumes responsibility and shall make best efforts to
manage the sale of all EverQ-Products to be manufactured by EverQ and available for shipment after
the Sales Termination Date other than the Evergreen-Products. If EverQ is unable despite its best
efforts to establish a sales and marketing team and to start sales of EverQ-Product for shipment in
2009 within a reasonable timeframe, EverQ shall inform Evergreen, Q-Cells and REC and discuss with
all three parties alternative approaches to selling the EverQ-Products.
(f) Customer Transitioning. [****] Evergreen will not receive the Evergreen Fee for any
sales of Products made pursuant to any Specified Contract that is properly assigned pursuant to
this Section 14(f). If assigned, Products sold by EverQ pursuant to any Specified Contract shall
not bear Evergreen Marks or be of an Evergreen Design, except as permitted or required by another
written agreement between the Parties, including without limitation as may be permitted or required
in either or both of the License Agreements. Moreover, if assigned, the Dedicated Production
Capacity shall be reduced in the amount of production capacity in MWp needed for the fulfillment of
the respective Specified Contract from the next quarter following the date of assignment.
15. TERMINATION
(a) Termination Grounds for Termination by Evergreen. Evergreen may terminate this Agreement
at any time by notice in the event EverQ:
(i) Fails to comply with any material provision of this Agreement and in the case of a breach
which is capable of remedy, fails to remedy such breach within [****] days of notification of said
breach,
(ii) Becomes insolvent, becomes subject to opened insolvency proceedings or a petition to open
such proceedings is dismissed due to insufficient assets or a receiver or similar officer is
appointed to take charge of all or a part of EverQ’s assets and such condition in this Section
15(a)(ii) is not cured within [****] days, or
(iii) Assigns, or attempts to assign, or subcontracts or attempts to subcontract, any or all
of its rights or obligations under this Agreement or any Orders issued hereunder to a third party
without Evergreen’s prior approval.
(b) Termination Grounds for Termination by EverQ. EverQ may terminate this Agreement at any
time by notice in the event Evergreen:
(i) Becomes insolvent, files a petition in bankruptcy, “Chapter” 11 or makes an assignment for
the benefit of creditors, or a receiver or similar officer is appointed to take charge of all or a
part of Evergreen’s assets and such condition in this Section 15(b)(i) is not cured within [****]
days.
(ii) Fails to comply with any material provision of this Agreement and in the case of a breach
which is capable of remedy, fails to remedy such breach within [****] days of written notification
of said breach.
CONFIDENTIAL
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(c) Survival. The following sections shall survive any expiration or termination of this
Agreement and remain in effect: Sections 11 (Warranty), 13 (Trademarks), 15 (Termination), 16
(Limitation of Liability), 17 (Notices), 19 (Indemnity), 21 (Confidential Information), and 22
(Miscellaneous). EverQ’s and Evergreen’s obligations with respect to existing Product Sales
Transactions shall also survive any expiration or termination of this Agreement.
16. LIMITATION OF LIABILITY
(a) EXCEPT WITH RESPECT TO DAMAGES RESULTING FROM BREACHES OF THE EXPRESS PROVISIONS OF THIS
AGREEMENT, THE PARTIES ARE ONLY LIABLE FOR DAMAGES CAUSED BY INTENT OR GROSS NEGLIGENCE. LIABILITY
FOR PERSONAL INJURY OR PROPERTY DAMAGES CAUSED BY GROSS NEGLIGENCE IS LIMITED TO DIRECT DAMAGES OF
THE PROPERTY OF THE OTHER PARTY AND PERSONAL INJURIES; WHICH ARE CAUSED BY ONE OF THE PARTIES IN
RELATION TO THIS AGREEMENT.
EXCEPT FOR (i) EVERQ’S FAILURE TO SUPPLY EVERGREEN-PRODUCTS PURSUANT TO THIS AGREEMENT (EVERQ’S
LIABILITY FOR WHICH SHALL BE LIMITED TO A VALUE EQUAL TO THE TOTAL VALUE OF THE EVERGREEN-PRODUCT
TO BE SUPPLIED PURSUANT TO THE CONTRACTS [****]), PROVIDED THAT SUCH LIMITATION ON LIABILITY FOR
EVERQ’S FAILURE TO SUPPLY PRODUCTS HEREUNDER SHALL NOT APPLY IF SUCH FAILURE RESULTS FROM EVERQ’S
GROSS NEGLIGENCE OR INTENTIONAL BREACH OF THIS AGREEMENT, AND (ii) EVERQ’S LIABILITY PURSUANT TO
SECTION 11, THE LIABILITY OF EACH PARTY HEREUNDER SHALL BE LIMITED TO THE AMOUNT OF PRODUCT REVENUE
(AS DEFINED IN SECTION 1(k)) THAT EVERGREEN RECEIVES FOR THE RESPECTIVE EVERGREEN-PRODUCT SALE OR
SALES OF THE RESPECTIVE EVERGREEN-PRODUCT ON WHICH THE CLAIM IS BASED.
(b) EXCEPT FOR SUCH DAMAGES THAT EVERQ MAY BE REQUIRED TO PAY PURSUANT TO SECTION 11, THE
PARTIES ARE NOT LIABLE FOR ANY OTHER DAMAGES, I.E., FINANCIAL LOSSES, BE IT DIRECT OR INDIRECT
DAMAGES, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH ARE CAUSED BY A PARTY IN RELATION TO THIS
AGREEMENT, INCLUDING WITHOUT BEING LIMITED HERETO LOSS OF PRODUCTION AND LOSS OF PROFITS, LOSS OF
TURNOVER; LOSS OF USE OR CLAIMS BY THIRD PARTIES.
(c) THE LIMITATIONS OF THIS SECTION 16 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO SECTION 19
(INDEMNITY).
17. NOTICES
All notices, requests, demands, waivers and other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given if (a)
delivered personally, (b) sent by next-day or overnight mail or delivery or (c) sent by facsimile,
as follows:
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If to Evergreen:
Evergreen Solar, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXX
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXX
ATTN:
Xxxxxxx X. Xxxxx
J. Xxxxx Xxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
J. Xxxxx Xxxxxx
Xxxxxxxxx X. Xxxxxx
If to EverQ:
EverQ GmbH
XX Xxxxxxxx
Xxxxxxxxxxx 00-00
00000 Xxxxxxxxxx-Xxxxxx
Xxxxxxx
XX Xxxxxxxx
Xxxxxxxxxxx 00-00
00000 Xxxxxxxxxx-Xxxxxx
Xxxxxxx
ATTN:
Xxx Xxxxxxxxxxx
Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxx Xxxxxxxxxxx
Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx
18. COMPLIANCE WITH LAWS
(a) Evergreen agrees that all work performed under this Agreement shall comply with all
applicable laws and regulations in effect in the territories specified for the resale of the
Products pursuant to the Contracts. Evergreen shall indemnify and hold EverQ harmless from and
against any claims, costs, or damages resulting from or arising out of Evergreen’s failure to
comply with the requirements of this Section in the approved territories for sale.
(b) EverQ agrees that all Products supplied and work performed under this Agreement shall
comply with all applicable laws and regulations in effect in the place of manufacture and the
territories specified for the resale of the Products pursuant to the Contracts. Upon request,
EverQ agrees to certify compliance with the applicable laws and regulations related to the
certifications applicable to the Products. EverQ’s failure to comply with any of the requirements
of this Section shall constitute a material breach of this Agreement.
Upon request, EverQ agrees to provide Evergreen with information and certifications required
to demonstrate compliance with applicable laws and regulations in effect oft the date of shipment
for Evergreen-Product in the place of manufacture supplied pursuant to the Contracts under this
Agreement. EverQ shall indemnify and hold Evergreen harmless from and against any claims, costs,
or damages resulting from or arising out of Evergreen’s reliance on
CONFIDENTIAL
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such information and/or certifications.
19. INDEMNITY
(a) EverQ shall, at its own expense, indemnify and hold Evergreen, Evergreen’s respective
officers, directors, agents and employees (collectively, “Indemnified Parties”) harmless
from and against any liability, award, expense or loss (including attorneys’ fees) arising from any
(a) actual or alleged infringement of any patent, trademark, trade secret, copyright or other
intellectual property related to the Evergreen-Products other than with respect to infringement
directly caused by specifications or any rights provided by Evergreen, where the infringement would
not occur without use of such specifications or rights, or (b) breach of this Agreement or its
representations or warranties hereunder by EverQ, (any claim or action based on (a) and (b), a
“Claim”) and shall defend at its own expense, including attorneys fees, any suit brought
against Indemnified Parties alleging a Claim.
(b) The one Party shall (i) give the other Party prompt notice in writing of any Claim and, if
the other Party provides evidence reasonably satisfactory to the one Party of the other Party’s
financial ability to defend the matter vigorously and pay any reasonably foreseeable damages; (ii)
permit the other Party , through counsel of the other Party ‘s choice, that does not have a
conflict with the one Party , to answer and defend such Claim (but any Indemnified Party may be
represented by counsel and participate in the defense at its own expense); and (ii) give the other
Party all needed information, assistance, and authority, at the other Party ‘s expense, to enable
the other Party to defend such Claim. The other Party shall not be liable for any settlement of a
Claim effected without its written consent (which consent shall not be unreasonably withheld or
delayed), nor shall the other Party settle any Claim without the written consent of the one Party
(which consent shall not be unreasonably withheld or delayed). The other Party shall not consent
to the entry of any judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to the applicable Indemnified Parties a
release from all liability with respect to the Claim.
20. GRATUITIES
Each Party represents that it has not offered nor given and will not offer nor give any
employee, agent, or representative of the other Party any gratuity with a view toward securing any
business from the other Party or influencing such person with respect to the business between the
Parties.
21. CONFIDENTIAL INFORMATION
Any confidential information exchanged pursuant to this Agreement (and the terms of this
Agreement itself) will be governed by Section 9.7 (Confidentiality) of the Master Agreement, with
the Parties hereunder deemed the Disclosing Party and/or Receiving Party as applicable, provided
that, notwithstanding anything to the contrary either Party shall may use confidential information
in order to exercise its rights and discharge its obligations hereunder. The confidentiality
provisions set forth in Section 9.7 of the Master Agreement shall continue as part of this
Agreement even after the termination or expiration of the Master Agreement.
CONFIDENTIAL
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22. MISCELLANEOUS
(a) Governing Law and Dispute Resolution. This Agreement shall be construed in accordance
with and governed by the laws of the Federal Republic of Germany excluding its rules on the
conflict of laws and of the United Nations Convention on the International Sale of Goods (CISG).
All disputes arising in connection with this Agreement or its validity or any agreement provided
herein which cannot be resolved by mutual agreement of the Parties shall be finally settled by the
German Institution of Arbitration in accordance with the Arbitration Rules of the German
Institution of Arbitration e.V. (DIS) without recourse to the ordinary courts of law (except for
challenges to the validity of shareholder resolutions which shall be submitted to the competent
court in Berlin). The place of arbitration is Berlin, Germany. The arbitral tribunal consists of
three arbitrators. The arbitrators must be capable of being appointed a judge in accordance with
the relevant German legal rules. The substantive law of the Federal Republic of Germany is
applicable to the dispute. The language of the arbitral proceedings is English.
(b) Compliance with Laws and Regulations. Each Party will comply with all applicable laws,
regulations and ordinances.
(c) Force Majeure. Neither of the Parties shall be liable for prevention from fulfilling the
contract as a result of force majeure, particularly natural disasters, war, unrest, labour
disputes, suspension or interruption of operations due to extreme factors, administrative measures
and other events outside the control of the Parties, especially such as a shortfall of silicon
deliveries. This includes cases of force majeure taking place at suppliers of EverQ. In such
events, the Parties shall contact each other without delay and discuss the measures to be taken.
The Parties undertake to re-enable the contract’s fulfillment by all technical and economically
reasonable means. If EverQ has approved a narrower Force Majeure — clause in regard to a Product
Sales Transaction explicitly in writing (e. g., through written approval of the customer’s
agreement or use of a-pre-approved standard term, the use of which is to be notified from Evergreen
to EverQ), EverQ, shall at its own expense, indemnify and hold Evergreen harmless from any damage
that may occur in case of Force Majeure according to this Section 22(c) (Force Majeure).
(d) Export. No Party shall export or re export, directly or indirectly, any technical
information disclosed hereunder or direct product thereof to any destination prohibited or
restricted by the applicable export control regulations, including the U.S. Export Administration
Regulations and regulations of Germany, without the prior authorization from the appropriate
governmental authorities.
(e) Mandatory Recycling. Should a mandatory recycling law become applicable to the Products,
Evergreen Solar will make appropriate arrangements for recycling the Products. The cost of the
recycling for the Products manufactured and available for shipment on or prior to the Sales
Termination Date will be borne by EverQ.
(f) Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each
Party to this Agreement, or in the case of a waiver, by the Party against whom the waiver is to be
effective.
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(g) Delay; Remedies Not Exclusive. No failure or delay by any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any or other further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
(h) Assignment. Other than as expressly otherwise provided herein, this Agreement shall not
be assignable or otherwise transferable by any Party hereto without the prior written consent of
the other Party hereto; provided, however, that (i) neither Party shall be obligated to obtain the
consent of the other Party under this Section 22(h) (Assignment) solely by virtue of a Change of
Control of such Party, and such Party shall have the right to assign this Agreement, in its
entirety including all rights and obligations, to such Party’s successor in such Change of Control,
and (ii) any of the Parties may at any time and from time to time pledge or grant a security
interest in all or any portion of its rights, title and interest under this Agreement as collateral
security to secure obligations of such Party; provided that no such pledge or grant of a security
interest shall (A) release such Party from any of its obligations hereunder or (B) substitute any
such pledgee or grantee for such Party as a party hereto with any rights or remedies hereunder.
Subject to the foregoing, the provisions of this Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns. Any assignment or
transfer (including through a Change of Control) of this Agreement in violation of this Section
22(h) (Assignment) shall be null and void.
(i) Language. All documentation, communication and services in connection with this Agreement
in shall be in English.
(j) Entire Agreement; Severability. This Agreement, together with any exhibits, constitutes
the entire agreement between the Parties hereto and any of such Parties’ respective affiliates with
respect to the subject matter of this Agreement and supersedes the Prior Agreement in its entirety,
all prior communications, agreements and understandings, both oral and written, with respect to the
subject matter of this Agreement. In the event any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision, and the Parties agree to negotiate,
in good faith, a legal and enforceable substitute provision which most nearly effects the Parties’
intent in entering into this Agreement.
(k) Other Remedies; Specific Performance. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive
of any other remedy conferred hereby or by law or equity upon such Party, and the exercise by a
Party of any one remedy will not preclude the exercise of any other remedy. The Parties hereto
agree that irreparable damage may occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that notwithstanding Section 22(a) (Governing Law and Dispute Resolution), the
Parties may be entitled to seek an injunction (einstweilige Verfügung) to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
CONFIDENTIAL
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(l) Counterparts. This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall become effective when each Party hereto shall have received
a counterpart hereof signed by the other Party hereto.
(m) Other Agreements. No other express, written contracts and/or agreements between EverQ,
Evergreen, Q-Cells and/or REC (and/or affiliates of the aforementioned companies) shall be affected
by this Agreement.
IN WITNESS WHEREOF, the authorized representatives of the Parties have executed this agreement
on the dates indicated below to be effective as of the effective date.
| EVERGREEN SOLAR, INC. | EVERQ GMBH | |
/s/ Xxxxxxx El-Xxxxxx
|
/s/ X. Xxxxxxxxxxx / /s/ X. Xxxxxxx | |
Signature
|
Signature | |
Xxxxxxx El-Hillow
|
X. Xxxxxxxxxxx / X. Xxxxxxx | |
Name
|
Name | |
CFO
|
CEO / CSO | |
Title
|
Title | |
October 6, 2008
|
Oct 7, 2008 / Oct. 7, 2008 | |
Date:
|
Date: |
CONFIDENTIAL
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Exhibit A
Products*
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
[****]
|
[****] | |
| * | This schedule shall be revised from time to time by mutual agreement of the Parties to include new ES, ES-A and ES-B models with higher power ratings than those currently listed as manufacturing improvements result in conversion efficiency increases. |
CONFIDENTIAL
Exhibit B
Warranty
Evergreen Solar
Photovoltaic Panels Limited Warranty
Limited Warranty: Materials or Workmanship
Evergreen Solar warrants the panels to be free from defects in materials or
xxxxxxx-ship under normal application, installation, use, and service conditions. The
panels must be installed according to the latest Safety, Installation and Operation Manual
provided by Evergreen Solar otherwise this warranty will be void. If the product fails to
conform to this warranty, then, for a period ending sixty (60) months from date of sale to
the original consumer purchaser, Evergreen Solar will, at its option, either repair or
replace the product or refund the purchase price. The repair, replacement, or refund remedy
shall be the sole and exclusive remedy provided under this warranty.
Limited Warranty: Power Output
Evergreen
Solar warrants for a period often (10) years from the date of sale to the
original consumer purchaser that the power rating at Standard Test Conditions will remain
at 90% or greater of Evergreen Solar’s Minimum Specified Power Rating. Evergreen Solar
further warrants fora period of twenty-five (25) years from the date of sale to the
original consumer purchaser that the power rating at Standard Test Conditions will remain
at 80% or greater of Evergreen Solar’s Minimum Specified Power Rating.
Evergreen Solar will, at its option, repair or replace the product, refund the
purchase price, or provide the purchaser with additional panels to make up lost power,
provided that such degradation is determined to be due to defects in materials or
workmanship under normal installation, application, and use. The panels must be installed
according to the latest Safety, Installation and Operation Manual provided by Evergreen
Solar otherwise this warranty will be void. The relevant Minimum Specified Power Rating is
defined in Evergreen Solar’s product data sheet at the time of shipment. Standard Test
Conditions are irradiance of
1000W/m2, 25° C cell temperature, and AM 1.5 light
spectrum.
CONFIDENTIAL
Limitations and Conditions
The remedy set forth in these limited warranties shall be the sole and exclusive
remedy provided under the extended term warranty, unless otherwise agreed by Evergreen
Solar in writing. In Germany, these limited warranties are neither a “guarantee of the
quality” of the panel pursuant to §443 BGB (German Civil Code) nor are they an “acceptance
of a guarantee” pursuant to §276 BGB,
The limited warranties set forth herein do not apply to any panel which in Evergreen
Solar’s sole judgement has been subjected to misuse, neglect, or accident; has been damaged
through abuse, alteration, improper installation or application, or negligence in use,
storage, transportation, or handling; has not been installed in accordance with the latest
Safety, Installation and Operation Manual provided by Evergreen Solar or has in anyway been
tampered with or repaired by anyone other than Evergreen Solar or its authorized agent.
The limited warranties do not cover costs associated with panel installation,
removal, testing, packaging, transportation, or reinstallation; other costs associated with
obtaining warranty service; or costs, lost revenues, or lost profits associated with the
performance or nonperformance of defective panels.
Any panels repaired or replaced by Evergreen Solar under a warranty claim shall be
covered by the same warranties and original term as the first product purchased under said
claim. The term shall not be prolonged or reset from the date of sale to the original
consumer purchaser. Any replaced parts or products become the property of Evergreen Solar.
These limited warranties apply only to the first end-user purchaser of the panels or
to any subsequent owners of the original building or site where the panels were first
installed. The limited warranties set forth herein are expressly in lieu of and exclude all
other express or implied warranties, including but not limited to warranties of
merchantability and of fitness for particular purpose, use, or application and all
other obligations or liabilities on the part of Evergreen Solar, unless such other
warranties, obligations, or liabilities are expressly agreed to in writing signed and
approved by Evergreen Solar.
Evergreen Solar shall have no responsibility or liability whatsoever for damage or
injury to persons or property, or for other loss or injury resulting from any cause
whatsoever arising out of or related to the product, including, without limitation, any
defects in the panel, or from use or installation. Under no circumstances shall Evergreen
Solar be liable for incidental, consequential, or special damages, howsoever caused.
Evergreen Solar’s aggregate liability, if any, in damages or otherwise, shall not
exceed the payment, if any, received by seller for the unit of product or service furnished
or to be furnished, as the case maybe, which is the subject of claim or dispute. Some
jurisdictions do not allow limitations on implied warranties or the exclusion or limitation
of damages, so the above I imitations or exclusions may not apply to you.
If a part, provision, or clause of terms and conditions of sale, or the application
thereof to any person or circumstance is held invalid, void, or unenforceable, such holding
shall not affect and leave all other parts, provisions, clauses, or applications of terms
and conditions remaining, and to this end the terms and conditions shall be treated as
severable.
This warranty gives you specific legal rights; and you may also have other rights that
vary from state to state and country to country. Neither party shall be in any way
responsible or liable to the other party, or to any third party, arising out of
nonperformance or delay in performance of the terms and conditions of sale due to acts of
God, war, riot, strikes, unavailability of suitable and sufficient labor, and any
unforeseen event beyond its control, including, without limitations, any technological or
physical event or condition which is not reasonably known or understood at the time of
sale.
Any
claim or dispute regarding these warranties shall be governed by and construed in
accordance with the laws of the State of New York (US).
Obtaining Warranty Performance
If you feel you have a claim covered by warranty, you must promptly notify the dealer
who sold you the panel of the claim. The dealer will give advice handling the claim. If
further assistance is required, write Evergreen Solar for instructions.
The customer must submit a written claim, including adequate documentation of panel
purchase, serial number, and product failure. Evergreen Solar will determine in its sole
judgment the adequacy of such claim. Evergreen Solar may require that product subject to a
claim be returned to the factory, at the customer’s expense. If product is determined to be
defective and is replaced but is not returned to Evergreen Solar, then the customer must
submit adequate evidence that such product has been destroyed or recycled.
| Note: | This document may be provided in multiple languages. If there is a conflict among versions, the English language version dominates. |
CONFIDENTIAL
Exhibit C
Schedule of Customer Contracts
1. [****]
2. [****]
3. [****]
4. [****]
5. [****]
6. [****]
CONFIDENTIAL
Exhibit D
Schedule of Dedicated Production Capacity in MWp between 2008 and 2011
[****]
If a Specified Contract is assigned pursuant to Section 14 (f) of the Amended and Restated Sales
Representative Agreement, the Dedicated Production Capacity shall be reduced by the amount of
production capacity in MWp needed for the fulfillment of the respective Specified Contract from the
next quarter following the date of assignment.
CONFIDENTIAL
Exhibit E
[****]
CONFIDENTIAL
