exhibit10-2.htm


    


    EXHIBIT
10.2

    


    EXECUTION
COPY

    


    


     

    
      	
              
                CONFIDENTIAL
      TREATMENT REQUESTED

                --

              

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

              

            


    

     

    
      
      

    

    


    AMENDMENT
NO. 2 TO INGOT SUPPLY AGREEMENT

    


    THIS AMENDMENT NO. 2 INGOT SUPPLY AGREEMENT (This
"Amendment
No. 2") is made this 01 day
of  August, 2009 ("Effective
Date") by and between Woongjin Energy Co., Ltd., a company organized and
existing under the laws of the Republic of Korea with its office located at 1316
GwanPyeong-Dong, YuSung-Gu, DaeJeon, Korea (“Supplier”), and SunPower
Corporation, a company organized under the laws of the State of Delaware, United
States of America, with its principal office located at 3939 North First Street,
San Jose, California 95134, United states of America (“Purchaser”).  Each
of Supplier and Purchaser is sometimes referred to herein as a "Party"
and collectively, as the "Parties".  Capitalized
terms used in this Amendment No. 2 and not defined herein shall have the meaning
given to such terms in the Agreement (as hereinafter defined).

    


    RECITALS

    


               (a)           Supplier
and Purchaser are parties to that certain Ingot Supply Agreement, dated as of
December 22, 2006 and as amended from time to time (the "Agreement"),
pursuant to which Supplier agreed to manufacture and sell to Purchaser, and
Purchaser agreed to purchase from Supplier, certain SP Polysilicon Based
Products.

    
      


                 (b)           The
Parties desire to amend the Agreement to extend the Term of the Agreement and to
amend certain other terms and conditions thereof.


    

               NOW THEREFORE, in
consideration of the promises set forth above, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto, intending to be legally bound, hereby agree as
follows:

    


    AGREEMENT

     

    1. Section
9.1 of the Agreement is hereby amended by deleting the words “five (5) years”
from the second line thereof and replacing such words with the words “nine (9)
years”. 

     

     

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

     

     

    
      	
              a.  

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

            


    

     

     

    
      	
              b.  

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

            


    

     

     

    
      	
              c.  

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

            


    

     

     

    
      	
              d.  

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

            


    

     

    
      
        
        

      

      
        Page 1 of
4

        
          

           

        

      

      
        
        

      

    

     

    
      	
              e.  

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

            


    

     

     

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

     

     

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

     

     

    5. If any
part of this Amendment No. 2 or the Agreement as amended herein is found to be
void or unenforceable for any reason, the remainder of this Amendment No. 2 and
the Agreement as amended hereunder, shall be enforced, to the fullest extent
possible, as if such void or unenforceable provision was not part of this
Amendment No. 2.

     

     

    6. This
Amendment No. 2 may be executed one or more counterparts, each of which shall be
deemed to be an original and shall constitute one and the same
instrument.  This Amendment No. 2 may be executed by facsimile, and
each such facsimile signature shall be deemed to be an original.

     

    [SIGNATURE
PAGE FOLLOWS]

    


    


    


    


    


    


    IN WITNESS THEREOF, the
Parties hereto, intending to be legally bound, have executed this Amendment No.
2 as of the date first written above

    


    


    


    
      	
              WOONGJIN
      ENERGY CO., LTD

               

               

              By:
      /s/ Hak Do
      Yoo                                                      

              Name:
      Hak Do
      Yoo                                                      

              Title:
      CEO                                                      

              Date:
      9/18/09 

            	
              SUNPOWER
      CORPORATION

              By:
      /s/ Marty
      Neese                                                      

              Name:
      Marty
      Neese                                                      

              Title:
      COO                                                      

              Date:
      9-18-09 

            


    

    


     

    *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION.

    


    
      
        
          
             

            


          

           


        

        
          Page 2 of
4

          
            

          

        

        
           


          
             

          

        

      

    

    
Schedule
3.1(a)

    
      


      The
purchase price for SP Polysilicon Based Products per kilogram shall be
determined based on (a) the year in which such SP Polysilicon Based Products are
ordered, and (b) the price per kilogram set forth in the chart below; provided
that such pricing shall be subject to reduction for the use of *** (as set forth
in the tables below).  The parties acknowledge the reduced pricing
already implemented and reflected in the tables below as a result of cost
savings efforts completed as of the date of this Agreement and anticipate
further cost savings during the term of this agreement.  Therefore,
the Parties expressly agree that they shall negotiate in good faith to reduce
the pricing set forth below upon completion by Supplier of its plant expansions
and such reduced pricing shall reflect a transfer of ***% of the cost savings
through increased production, reduced costs of raw materials, and any other
relevant factors in determining the adjusted price in accordance with the spirit
of this Agreement.  In addition, if the official foreign ***-day
average currency exchange rate, as published by the Wall Street Journal, falls
below *** South Korean Won to $1US, the Parties shall negotiate in good faith a
mutually acceptable adjustment to the pricing set forth below. Furthermore, if
Purchaser receives a bona fide offer from a third party, who is qualified to
satisfy Purchaser’s applicable specifications, for the supply of similar
products at a price equal to or less than ***% of the applicable purchase price
under this Agreement, Purchase shall deliver notice to Supplier and the parties
shall negotiate in good faith to reduce the applicable purchase price under this
Agreement, which price adjustment shall become effective *** days following
delivery of Purchaser’s notice initiating negotiations for price
reductions.  If the parties are unable to reach agreement regarding a
reduced price for the remainder of the contract term, Supplier may elect, within
*** days of receiving notice of the third party’s proposal, to reduce the
applicable purchase price for the same quantity of product as proposed by the
third party.  If Supplier is unwilling to sell such quantity of product to
Purchaser at the same price as the third party, Purchaser, in its sole and
absolute discretion, may reduce its outstanding obligation to purchase such
products from Supplier by the quantity offered by the third party during the
applicable time period and instead purchase such products from the third
party.

      


      


      


      
        	
                Year

              	
                Poly
      Price

              	
                Cost
      Savings

              	
                150mm
      Ingot Price

              	
                165mm
      Ingot Price

              	
                165mm
      w/*** Price*

              
	 
      	 
      	 
      	 
      	 
      	 
      
	
                3

              	
                $***

              	
                $***

              	
                $***

              	
                $***

              	
                =$***
      - $*** x (XXXMT/***MT)

              
	
                4

              	
                $***

              	
                $***

              	
                $***

              	
                $***

              	
                =$***
      - $*** x (XXXMT/***MT)

              
	
                5

              	
                $***

              	
                $***

              	
                $***

              	
                $***

              	
                =$***
      - $*** x (XXXMT/***MT)

              
	
                6

              	
                $***

              	 
      	
                $***

              	
                $***

              	
                =$***
      - $*** x (XXXMT/***MT)

              
	
                7

              	
                $***

              	 
      	
                $***

              	
                $***

              	
                =$***
      - $*** x (XXXMT/***MT)

              
	
                8

              	
                $***

              	 
      	
                $***

              	
                $***

              	
                =$***
      - $*** x (XXXMT/***MT)

              
	
                9

              	
                $***

              	 
      	
                $***

              	
                $***

              	
                =$***
      - $*** x (XXXMT/***MT)

              


      

       

      *** CONFIDENTIAL MATERIAL REDACTED
AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

      
         

        
          
            
              
                 

                


              

               


            

            
              Page 3
of 4

              
                

              

            

            
               


              
                 

              

            

          

        

        

          *The
formula for additional savings with the *** used is based on monthly production
output and is subject to change based on agreement between the
parties.

          


          
            	
                    Year

                  	
                    Poly
      Price

                  	
                    Cost
      Savings

                  	
                    150mm
      Ingot Price

                  	
                    160mm
      Ingot Price

                  	
                    160mm
      w/*** Price*

                  
	 
      	 
      	 
      	 
      	 
      	 
      
	
                    3

                  	
                    $***

                  	
                    $***

                  	
                    $***

                  	
                    $***

                  	
                    =$***
      - $*** x (XXXMT/***MT)

                  
	
                    4

                  	
                    $***

                  	
                    $***

                  	
                    $***

                  	
                    $***

                  	
                    =$***
      - $*** x (XXXMT/***MT)

                  
	
                    5

                  	
                    $***

                  	
                    $***

                  	
                    $***

                  	
                    $***

                  	
                    =$***
      - $*** x (XXXMT/***MT)

                  
	
                    6

                  	
                    $***

                  	 
      	
                    $***

                  	
                    $***

                  	
                    =$***
      - $*** x (XXXMT/***MT)

                  
	
                    7

                  	
                    $***

                  	 
      	
                    $***

                  	
                    $***

                  	
                    =$***
      - $*** x (XXXMT/***MT)

                  
	
                    8

                  	
                    $***

                  	 
      	
                    $***

                  	
                    $***

                  	
                    =$***
      - $*** x (XXXMT/***MT)

                  
	
                    9

                  	
                    $***

                  	 
      	
                    $***

                  	
                    $***

                  	
                    =$***
      - $*** x (XXXMT/***MT)

                  


          

          *The
formula for additional savings with the *** used is based on monthly production
output and is subject to change based on agreement between the
parties.

          


          *** CONFIDENTIAL MATERIAL REDACTED
AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.


          
             

            
              
                
                  
                     

                    


                  

                   


                

                
                  Page 4
of 4

                  
                    

                  

                

                
                   


                  
                     

                  

                

              

            

             

          

        

      

    

    SCHEDULE
1.18

    


    *150mm CZ
Mono Crystalline Silicon Slabbed Ingot Purchase Spec for Solar
Cells

     

    
*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION.

     

    
      
        
        

      

      
        
        

        
          

           

        

      

      
        
        

      

    

     

    
      *165mm CZ
Mono-Crystalline Silicon Slabbed Ingot Purchase Spec for Solar Cell

      
*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION.