exv10w2






EXHIBIT 10.2



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.




Execution Version




MANUFACTURING SERVICES AGREEMENT




For Evergreen Solar




By and Among




Evergreen Solar, Inc.

138 Bartlett Street

Marlborough, MA 01752

USA,




Evergreen Solar (Wuhan) Co., Ltd.

No. 3, Road No. 1, Liufang Dongyi Industrial Park

Donghu Gaoxin District

Wuhan, Hubei 430205

China,




Jiawei Solarchina Co., Ltd.

Suite 1816, Star House

3 Salisbury Road, Tsimshatsui, Kowloon

Hong Kong




and




Jiawei Solar (Wuhan) Co., Ltd.

No. 3, Road No. 1, Liufang Dongyi Industrial Park

Donghu Gaoxin District

Wuhan, Hubei 430205

China




July 14, 2009




Evergreen Solar / Jiawei Confidential




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page No.	 
	 
	1.	 	Definitions
	 	 	2	 
	2.	 	Term
	 	 	3	 
	3.	 	Forecasts, Material Procurement, Purchase Orders
	 	 	3	 
	4.	 	JWWH Managed Inventory
	 	 	13	 
	5.	 	Manufacturing Responsibility
	 	 	14	 
	6.	 	Pricing/Price Reduction
	 	 	15	 
	7.	 	Payment
	 	 	18	 
	8.	 	Transfer & Title
	 	 	19	 
	9.	 	Packaging and Labeling
	 	 	19	 
	10.	 	Delivery and Quality Requirements
	 	 	19	 
	11.	 	Technical Assistance
	 	 	20	 
	12.	 	Termination
	 	 	20	 
	13.	 	Engineering Changes
	 	 	22	 
	14.	 	Representations and Warranties
	 	 	24	 
	15.	 	ESLR’s Remedies For Products Under Warranty
	 	 	24	 
	16.	 	Indemnification
	 	 	25	 
	17.	 	Confidentiality; Publicity
	 	 	26	 
	18.	 	Regulatory Approval
	 	 	27	 
	19.	 	Quality Assurance
	 	 	28	 
	20.	 	End-Of-Life Notifications
	 	 	28	 
	21.	 	Certificate of Conformance
	 	 	29	 
	22.	 	General
	 	 	29	 






Exhibit A: Statement of Work

Exhibit B: Long Lead Time Materials

Exhibit C: Quality System Requirements

Exhibit D: Packaging and Labeling Requirements

Exhibit E: Warranties by JWWH

Exhibit F: Purchased Wafer Specifications




 i




 









 








MANUFACTURING SERVICES AGREEMENT




     THIS MANUFACTURING SERVICES AGREEMENT (this “Agreement”) is made as of the 14th day of
July 2009 by and among the following parties:




Jiawei Solarchina Co., Ltd., a Hong Kong company having a business address at Suite
1816 Star House, 3 Salisbury Road, Tsimshatsui, Kowloon, Hong Kong
(“JWCN”); and




Jiawei Solar (Wuhan) Co., Ltd. a wholly foreign-owned Chinese company having a
business address at No. 3, Road No. 1, Liufang Dongyi Industrial Park, Donghu Gaoxin
District, Wuhan, Hubei 430205, China (“JWWH”); and




Evergreen Solar Inc., a Delaware corporation having a business address at 138
Bartlett Street, Marlborough, MA 01752, USA (“ESLR”); and




Evergreen Solar (Wuhan) Co., Inc., , a wholly foreign owned Chinese company having a
business address at No. 3, Road No. 1, Liufang Dongyi Industrial Park, Donghu Gaoxin
District, Wuhan, Hubei 430205 (“EGWH”).



     JWCN, JWWH, ESLR and EGWH are hereinafter collectively referred to as the “parties” or
each as a “party”). Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the RA (as defined below).



WITNESSETH:




     WHEREAS, prior to the execution of this Agreement, ESLR and JWCN have entered into that
certain Relationship Agreement (the “RA”);



     WHEREAS, ESLR recognizes JWCN as a quality-oriented and reliable supplier (utilizing
authorized and mutually approved subcontractors) of the products required by ESLR (the
“Products”); and



     WHEREAS, ESLR desires to have JWCN, through its subsidiary JWWH, manufacture the Products to
ESLR’s specifications using String Ribbon Wafers to be manufactured by EGWH in the Wafer
Facilities, and to provide certain services as may be required by ESLR that will be described in
purchase orders issued from time to time to JWWH by ESLR or EGWH, in accordance with the terms of
this Agreement; and



     WHEREAS, JWWH wishes to provide its technical services and its assembly and manufacturing
services to ESLR in the Cell and Panel Facilities in order to manufacture the Products for ESLR;
and



     WHEREAS, JWWH and EGWH, in furtherance of the objectives set forth in this Agreement, will
each separately seek to become a Sino-foreign joint venture by obtaining investment from a
state-owned investment company, which investment will be needed for each of them to carry out the
purposes of this Agreement; and



     WHEREAS, the parties agree that this Agreement defines the responsibilities of each party and
the procedures to be followed in the interactive process needed to accomplish the common goal of
providing cost effective, minimal defect, high quality and reliable technical Products on a timely
basis, achieved in an environment of increasing competitiveness through



 









 







ongoing cooperation and communication between the parties, establishing firm procedures for the
quality assurance program and processes to be applied, reducing the production and assembly period,
and avoiding duplicate methods;



     NOW, THEREFORE, for valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), JWCN, JWWH, ESLR and EGWH, intending to be legally bound, hereby agree as follows:




	1.	 	DEFINITIONS
	 
	 	 	The following terms not otherwise defined herein shall have the following meanings:






	 	1.1	 	Affiliate: any corporation or other entity controlled by, controlling or under
common control with any other corporation or entity. “Control” means the direct or
indirect beneficial ownership of at least fifty percent (50%) of the voting stock of,
or at least a fifty percent (50%) interest in the income of, such corporation or
entity, or the power to elect at least fifty percent (50%) of the directors or trustees
of such corporation, or such other relationship which in fact constitutes actual
control.
	 
	 	1.2	 	Purchased Wafers: the String Ribbon Wafers manufactured by EGWH and sold to
JWWH which shall be manufactured by EGWH to the specifications set forth in Section 2.2
of Exhibit A.
	 
	 	1.3	 	Product(s): the items of finished goods manufactured by JWWH and shipped to
ESLR, or ESLR’s designee, pursuant to the terms of this Agreement.
	 
	 	1.4	 	Delivery: the transfer of Product from JWWH to ESLR or its designated carrier,
or the carrier of its designated Affiliate or agent, at the location as specified
herein.
	 
	 	1.5	 	Engineering Change: a Product design change or manufacturing process change
affecting the performance, price, reliability, safety, serviceability,
manufacturability or form, fit or function of the Products.
	 
	 	1.6	 	Release: ESLR’s authorization for JWWH to manufacture and/or ship a definite
quantity of Products to a specified schedule. Releases will be made under specified
Purchase Orders or for Inventory or Consigned Inventory (as defined in Section 4).
	 
	 	1.7	 	Statement of Work: the Product Specification documentation as mutually agreed
to in writing by JWWH and ESLR, which describes the work to be performed, the pricing
for such work, the Specifications and any supplemental terms that additionally apply to
such work. The initial Statement of Work is attached hereto as Exhibit A and
may be amended from time to time by agreement of the parties to add additional
Products. In the absence of an updated Exhibit A or a separate document
entitled “Statement of Work”, JWWH’s quotation for additional Products not specified in
Exhibit A or for existing Products on terms that differ from those set forth in
Exhibit A, against which a Purchase Order is submitted by ESLR and accepted by
JWWH will constitute the Statement of Work




2









 






	 	1.8	 	Specifications: the details in (or referenced in) the Statement of Work, or
those documents referenced in the Statement of Work, that provide the objective,
physical requirements and performance requirements for the applicable Product to be
manufactured by JWWH or its authorized subcontractors approved by ESLR. JWWH or its
authorized subcontractors approved by ESLR will purchase and assemble all materials
according to such Specifications.
	 
	 	1.9	 	EGWH JV Agreement: the < increase registered capital and enlarge shares
agreement > between Hubei Technology Investment Co., Ltd and ESLR dated on or about
the date of this Agreement.
	 
	 	1.10	 	JWWH JV Agreement: the < increase registered capital and enlarge shares
agreement > between Hubei Technology Investment Co., Ltd and ESLR dated on or about
the date of this Agreement.






	2.	 	TERM





     The term of this Agreement is for a period of ten (10) years commencing upon the satisfaction
or waiver of the conditions set forth in Section 13 of the RA. Until the term commences, none of
the rights or obligations set forth in this Agreement shall be of any force or effect. This
Agreement shall be automatically extended for successive terms of one (1) year each unless either
party terminates this Agreement by giving the other party written notice of such termination of no
less than [****] (the “Termination Notice Period”) prior to the expiration of the then
current term, including any extensions thereof. The term, as may be extended, is referred to
herein as the “Term”. For example, to terminate the agreement at the end of the [****] of
the Term, a party will need to give notice before [****]. ESLR may issue Purchase Orders with
deliveries to be scheduled not later than 90 days after the specified termination date. Neither
termination, cancellation nor expiration of this Agreement shall affect the obligations of the
parties under Purchase Orders previously issued hereunder by ESLR and accepted by JWWH. Upon
termination, cancellation or expiration of this Agreement, the provisions hereof which by their
express terms survive and shall remain in full force for the period stated, and Section 15, ESLR’s
Remedies for Products under Warranty, shall remain in effect for the duration of the warranty
period for each Product set forth in Exhibit E, and Section 16, Indemnification, which in
the case of Sections 16.1(a) and 16.2(a) shall remain in effect [****] from the date that the event
giving rise to a claim for indemnification occurred, and in the case of Sections 16.1(b) and
16.2(b) shall remain in effect in perpetuity.




	3.	 	FORECASTS, MATERIAL PROCUREMENT, PURCHASE ORDERS






	 	3.1	 	Product Ordering Generally. ESLR and JWWH agree and acknowledge that
this Agreement is being entered into in connection with the RA with the purpose of
detailing the manner, method and particular arrangements by which String Ribbon Wafers
manufactured by EGWH shall be transferred to JWWH and processed into Products by JWWH.
Accordingly, ESLR agrees to place Purchase Orders and order Releases under this
Agreement from JWWH and JWWH agrees to accept and process Purchase Orders and Releases
from ESLR for Products to be made with all of the String Ribbon Wafers produced by EGWH
as set forth below in further detail. For the purposes of this Agreement, ESLR may
from time to time designate any of its Affiliates as purchasers of Product hereunder by
providing notice to JWWH, provided that ESLR shall, in all cases, remain directly and
primarily liable for its obligations to purchase the Products as




3









 












	 	 	 	set forth herein, although payment for the Products may in any case be made by any
party in satisfaction of ESLR’s payment obligations.
	 
	 	3.2	 	Forecasts and Commitments.






	 	a.	 	EGWH intends to produce and sell to JWWH sufficient Purchased
Wafers for JWWH to produce, and JWWH intends to produce and ESLR intends to
purchase, [****] of Product in each calendar quarter thereafter. The levels
set forth above are referred to in this Agreement as the “Scheduled Product
Production Levels.”
	 
	 	b.	 	On the 1st Chinese business day of each month, ESLR
or its designee shall provide JWWH with a six (6) month rolling forecast allocating
volume on a monthly basis (each such forecast, the “Forecast”). The
Forecast quantities shall be at least generally consistent with, but shall not
exceed, the Scheduled Product Production Levels, subject to reasonable
adjustment for holiday periods, (a) increasing on a straight line basis from
the beginning of each quarter to the end of each quarter in calendar 2010, and
(b) allocated evenly over each quarterly period after the fourth quarter of
calendar 2010. JWWH will use the Forecast for material requirements and
production planning purposes. ESLR may provide a lower Forecast than the
Scheduled Product Production Levels or reduce its Forecast to the extent that
it is reasonably apparent that JWWH will not be able to meet the Scheduled
Product Production Levels during the period covered by an applicable Forecast
or if JWWH provides notice that it will not be able to meet the Scheduled
Product Production Levels during the period covered by an applicable Forecast.
	 
	 	c.	 	Commencing with calendar year 2011, the quantity of Products to
be sold to ESLR is expected to be 100 MW in each calendar year. If less than
[****] of Product in 2011 or any calendar year thereafter are purchased or
sold, either of the following may apply:






	 	1.	 	If Purchase Orders placed and satisfied by ESLR
are less than [****] in a calendar year (other than in the event that
JWWH fails to produce sufficient quantities of Product in compliance
with the applicable quality requirements set forth in Section 5.4 to
fulfill such Purchase Orders and subject to compliance with the terms
of such Purchase Orders which may allow for payment after the end of
the calendar year for certain orders), then JWCN or JWWH may request
and ESLR and EGWH shall be obligated to pay, [****], JWCN for [****]
due to ESLR’s failure to order and/or purchase Product. [****]. If
JWCN exercises its rights pursuant to this Section 3.2(c)(1), the
shortfall in Purchase Orders and completed sales during such calendar
year shall not give rise to any rights for JWCN and JWWH pursuant to
Section 3.3 below unless the failure to meet the required purchasing
levels set in Section 3.3(a)(1) is based on shortfalls in the two consecutive calendar quarter period ending with
the first calendar quarter of a particular year, in which case JWCN and JWWH may exercise both (a) their rights under
this Section 3.2(c)(1) as to the last quarter of the prior year and (b) their rights under Section 3.3.
	 
	 	2.	 	If JWWH fails to produce and sell to ESLR
[****] of Product which complies with the applicable quality
requirements set forth in 




4









 






	 	 	 	Section 5.4 (other than in the event that
ESLR (i) fails to Place Purchase Orders for and complete the purchase of, when made available
for delivery, such Product or (ii) fails to deliver sufficient
Purchased Wafers to JWWH in such calendar year to fulfill such
Purchase Orders with JWWH producing with at least the Wafer Yield
levels specified in Section 2.2 of Exhibit A, then ESLR or
EGWH may request and JWWH and JWCN shall be obligated to pay, [****],
ESLR for [****] due to JWWH’s failure to produce and deliver Product.
[****]. If ESLR exercises its rights pursuant to this Section
3.2(c)(2), the shortfall in production during such calendar year
shall not give rise to any rights for ESLR and EGWH pursuant Section
3.4 below unless the failure to meet the required production levels
set in Section 3.4(a)(1) is based on shortfalls in the two consecutive calendar quarter period ending with the first
calendar quarter of a particular year, in which case ESLR and EGWH may exercise both (a) their rights under this
Section 3.2(c)(2) as
to the last quarter of the prior year and (b) their rights under Section 3.4.






	 	d.	 	Together with each Forecast, ESLR shall place one or more
Purchase Orders. The Purchase Order(s) placed in connection with the initial
Forecast shall be for the full volume of Products to be purchased for first three full
calendar months, as set forth in the Forecast and JWWH shall accept such
Purchase Orders. Thereafter, upon the issuance of each new monthly Forecast,
ESLR shall place a Purchase Order(s) covering an additional calendar month of such Forecast (the first two (2) months in each case having been covered by the prior Purchase Order(s)) and JWWH shall accept such
Purchase Orders.






5












 






	 	3.3	 	JWCN and JWWH Put/Call Options.






	 	a.	 	If any of the following should occur:






	 	1.	 	Commencing with calendar year 2011, ESLR,
directly or through its designee, fails to accept for shipment or
delivery and pay the applicable purchase price therefor in accordance
with the terms of this Agreement at least [****] of Products (or, if
lesser, the amount of Product as reduced by mutual agreement of the
parties) (the “Minimum Quantity”), for [****] or (b) a total of
Products equal to the Minimum Quantity for [****], provided that at
least the Minimum Quantity of Products conforming to the applicable
Specifications (and subject to the volume restrictions regarding “A,”
“B” and “C” quality Product specified in Section 5.4) is available for
purchase from JWWH during the applicable quarters;
	 
	 	2.	 	EGWH fails to achieve the ability to produce
wafers at the Wafer Facility to enable JWWH to produce at least [****]
of Products annually, based on agreed upon yield standards, by [****];
	 
	 	3.	 	EGWH fails to produce and deliver to JWWH
sufficient wafers to enable JWWH to produce at least [****] of
Products, taking into account agreed upon yield standards, [****];
provided that the obligation to produce and deliver sufficient wafers
in any given quarter shall not apply if JWWH does not have the capacity
to produce at least [****] of Products at the Cell and Panel Facility
during the applicable quarter;






	 	 	 	each of the foregoing clauses 3.3(a)(1) through 3.3(a)(3) collectively being the
“Jiawei Option Triggers,” then JWWH or JWCN shall have the right, at their
sole option, to elect one of the following (each a “Jiawei Option”):






	 	x.	 	To require ESLR to purchase JWCN’s interest in
JWWH by, subject to adjustment as set forth in Section 3.5, (i) paying
to JWCN [****]; or
	 
	 	y.	 	To require ESLR to sell its interest in EGWH
to JWCN or JWWH in exchange for, subject to adjustment as set forth in
Section 3.5, [****]. In connection with such sale, JWCN will also
receive a [****], non-exclusive, [****], worldwide license to
intellectual property rights held by ESLR necessary to (x) operate the
manufacturing equipment used in the Wafer Facility to manufacture the
String Ribbon Wafers (including any additional such equipment or
replacements for it necessary to achieve and maintain (but not exceed)
wafer production output necessary for JWCN and JWWH to produce up to
500 MW of Product per year), together with the right to create
improvements and variations thereon, subject to a [****] license back
to ESLR to such improvements and variations thereon, (y) to
manufacture the Products, and (z) to sell and distribute the Products
incorporating
the String Ribbon Wafers worldwide; provided that the license(s)




6









 






	 	 	 	shall be subject to a maximum output and sales volume of 500 MW of
Product per year.






	 	b.	 	JWCN and JWWH shall have a period of sixty (60) days following the date
on which JWCN or JWWH knows (or should have known) that any of the Jiawei
Option Triggers has occurred to elect one of the Jiawei Options by providing
written notice of its decision to do so in accordance with this Agreement. In
the event that JWCN or JWWH fails to exercise one of the Jiawei Options in a
timely manner, JWCN’s and JWWH’s right to elect a JWCN Option shall be deemed
waived, but only as to the quarterly period(s) in question, and not as to any
future period(s). Upon the effectiveness of the required purchase pursuant to
the exercise of a Jiawei Option, the RA and this Agreement shall terminate and
cease to be of any further force and effect, except for any rights that by
their terms and obligations should survive such termination, including without
limitation any payment obligations for Products or Purchased Wafers properly
delivered, confidentiality terms and indemnification obligations.






	 	3.4	 	ESLR and EGWH Put/Call Options.






	 	a.	 	If any of the following should occur:






	 	1.	 	Commencing with calendar year 2011, if JWWH
fails to deliver or ship in accordance with the terms of this Agreement
the Minimum Quantity of Products that meet the Specifications (subject
to the volume restrictions regarding “A,” “B” and “C” quality Product
specified in Section 5.4) (a) for both of any two consecutive calendar quarters (i.e., any of January through March, April through June, July through September or October through December)

 or (b) a total of Products
equal to the Minimum Quantity for any two consecutive calendar quarters
(by way of example, if the Minimum Quantity is [****] per quarter, then
JWWH must have delivered a total of at least [****], provided that ESLR
complies with its obligations to place Purchase Orders for the Minimum
Quantity pursuant to Section 3.2(d) for the applicable quarters;
	 
	 	2.	 	JWWH fails to achieve the ability to produce
Products at the Cell and Panel Facility to supply ESLR with at least
[****] of Products annually, based on agreed upon Wafer Yield and
product quality yield standards, by [****]; or
	 
	 	3.	 	JWWH fails to maintain the ability to produce
at least [****] of Products per quarter at the Cell and Panel Facility,
taking into account agreed upon Wafer Yield and product quality yield
standards, [****]; provided that the obligation to maintain the
capacity for [****] of Products in any given quarter shall not apply if
EGWH does not produce at least [****] of production at the Wafer
Facility during the applicable quarter;






	 	 	 	each of the foregoing clauses 3.4(a)(1) through 3.4(a)(3) collectively being the
“ESLR Option Triggers,” then ESLR or EGWH shall have the right, at their
sole option, to elect one of the following (each an “ESLR Option”):




7









 












	 	x.	 	To require JWCN to purchase ESLR’s interest in
EGWH by, subject to adjustment as set forth in Section 3.5, [****]; or
	 
	 	y.	 	To require JWCN to sell its interest in JWWH
to ESLR or EGWH in exchange for, subject to adjustment as set forth in
Section 3.5, (i) payment to JWCN of [****]. In connection with such
sale, ESLR and EGWH will also receive a [****], non-exclusive, [****],
worldwide license to intellectual property rights held by JWCN
necessary to (x) operate the manufacturing equipment used in the C & P
Facilities to manufacture the Products (including any additional such
equipment or replacements for it necessary to achieve and maintain
(but not exceed) production output necessary for ESLR or EGWH to
produce up to 500 MW of Product per year), together with the right to
create improvements and variations thereon, subject to a [****]
license back to JWCN to such improvements and variations thereon, (y)
to manufacture the Products, and (z) to sell and distribute the
Products incorporating the String Ribbon Wafers worldwide; provided
that the license(s) shall be subject to a maximum output and sales
volume of 500 MW of Product per year.






	 	b.	 	ESLR and EGWH shall have a period of sixty (60) days following the date
on which ESLR or EGWH knows (or should have known) any of the ESLR Option
Triggers occurs to elect one of the two options above. In the event ESLR or
EGWH fails to exercise the ESLR Options in a timely manner, ESLR’s and EGWH’s
right to exercise an ESLR Option shall be deemed waived, but only as to the
quarterly period(s) in question, and not as to any future period(s). Upon the
effectiveness of the required purchase pursuant to the exercise of an ESLR
Option, the RA and this Agreement shall terminate and cease to be of any
further force and effect, except for any rights that by their terms and
obligations should survive such termination.






	 	3.5	 	Operation of JWWH and EGWH; Adjustment to Put/Call Payment Terms Under Certain
Circumstances.






	 	a.	 	JWCN and JWWH agree to operate JWWH solely in furtherance of the
objectives and activities contemplated by this Agreement for EGWH and the RA
(the “JWWH Business”) so as not to interfere with JWCN Put Right or the
ESLR Call Right (each as defined below). To the extent that JWWH now has or
acquires assets or liabilities that are not reasonably related to the JWWH
Business, (i) such assets and liabilities shall be transferred from JWWH to JWCN
or a third party (on terms and conditions to be determined by JWCN but without
creating any liability for JWWH), and JWCN shall indemnify and hold harmless
ESLR and EGWH from any liabilities in the event that ESLR or EGWH purchases JWWH
pursuant to Section 3.3 (the “ESLR Call Option”) or is required to
purchase JWWH pursuant to Section 3.4 (the “JWCN Put Option”), (ii) the
purchase price of JWWH in the case of the JWCN Put Option or in the case of the
ESLR Call Option, shall be appropriately adjusted, or (iii) some combination of
the foregoing adjustments in clauses (i) and (ii) shall be made as reasonably
required by ESLR and EGWH such that the exercise of the




8









 






	 	 	 	ESLR Call Right or JWCN Put Right does not result in ESLR and EGWH acquiring,
paying for or accepting liability for any assets or liabilities not
reasonably related to the JWWH Business. JWCN represents that it now holds
all of the outstanding shares and other ownership interests (including any
derivative rights (i.e., any option, warrant, etc.) to any such ownership
interests). Neither JWWH nor JWCN shall sell any of shares or ownership
interest, or any derivative right (i.e., any option, warrant, etc.) to
acquire any such ownership, of JWWH except for the sale of interests to Hubei
Technology Investment Co., Ltd. pursuant to the JWWH JV Agreement, unless
otherwise agreed in writing by ESLR.
	 
	 	b.	 	ESLR and EGWH agree to operate EGWH solely in furtherance of
the objectives and activities contemplated for EGWH by this Agreement and the
RA (the “EGWH Business”) so as not to interfere with ESLR Put Right or
the JWCN Call Right (each as defined below). To the extent that EGWH now has
or acquires assets or liabilities that are not reasonably related to the EGWH
Business, (i) such assets and liabilities shall be transferred (on terms and
conditions to be determined by ESLR but without creating any liability for
EGWH) from EGWH to ESLR or a third party and ESLR shall indemnify and hold
harmless JWCN and JWWH from any liabilities in the event that JWCN or JWWH
purchases EGWH pursuant to Section 3.4 (the “JWCN Call Option”) or is
required to purchase EGWH pursuant to Section 3.3 (the “ESLR Put
Option”), (ii) the purchase price of EGWH in the case of the ESLR Put
Option or in the case of the JWCN Call Option, shall be appropriately adjusted,
or (iii) some combination of the foregoing adjustments in clauses (i) and (ii)
shall be made as reasonably required by JWCN and JWWH such that the exercise of
the JWCN Call Right or ESLR Put Right does not result in JWCN and JWWH
acquiring, paying for or accepting liability for any assets or liabilities not
reasonably related to the EGWH Business. ESLR represents that it now holds
all of the outstanding shares and other ownership interests (including any
derivative rights (i.e., any option, warrant etc.) to any such ownership
interests). Neither JWWH nor JWCN shall sell any of shares or ownership
interest, or any derivative right (i.e., any option, warrant etc.) to acquire
any such ownership, of JWWH except for the sale of interests to Hubei
Technology Investment Co., Ltd. pursuant to the JWWH JV Agreement, unless
otherwise agreed in writing by JWCN.




9









 






	 	c.	 	The parties shall review the alternative of giving effect to
the JWCN Put Right, JWCN Call Right, ESLR Put Right or ESLR Call Right, as the
case may be, by way of an asset acquisition rather than an acquisition of EGWH
or JWWH, as applicable, taking into account any requirements to purchase the
interest of Hubei Technology Investment Co., Ltd. in either entity in
connection with such asset acquisition and other relevant considerations. If
such alternative accomplishes the objectives of the parties embodied in a
manner that is advantageous to either of ESLR or JWCN without an added burden
to the other party, the party exercising its call right or subject to a put
right may elect to give effect to such rights by way of an asset purchase of
the assets and liabilities of the EGWH Business or JWWH Business, as the case
may be.
	 
	 	d.	 	In connection with the exercise of the put/call options of the
parties in Sections 3.3 and 3.4, appropriate agreements will be entered into to
permit intercompany arrangements to continue for a transitional period (other
than for Silicon Carbon Monofilament or String Ribbon Wafers, if applicable,
which shall continue as long as alternative supplies of these materials are not
available) following the exercise of a put or a call, such that if EGWH or
JWWH, as the case may be, operated its business with the benefit of services or
resources of an affiliated entity (such as the use of facilities or personnel
belonging to or employed by an affiliate or the supply of Silicon Carbon
Monofilament by ESLR, or String Ribbon Wafers by ESLR in the event that ESLR is
unable to export Silicon Carbon Monofilament to EGWH for any reason) pursuant
to an informal or unwritten arrangement or an agreement that might be
unilaterally terminated by the party exercising a put right or subject to a
call right. Any such continuation of intercompany arrangements will include
the payment of reasonable cost for facilities, services or materials provided
from one entity to another and reasonable terms related to reasonable
transition of the applicable operations and eventual termination of such
arrangements.






	 	3.6	 	Material Procurement






	 	a.	 	Normal Lead Time Materials. JWWH is not required to
speculate on materials and is authorized and will procure all materials to the
lead-times and in quantities required to meet the quantities of Products for
the first ninety (90) days  of each Forecast provided by ESLR. JWWH shall procure, using
standard purchasing practices, the components, subassemblies, materials and
supplies necessary for the manufacture of Products with established lead times
less than ninety (90) days (“Normal Lead Time Materials”).
	 
	 	b.	 	Long Lead Time Materials. ESLR acknowledges that JWWH
may be required to purchase Long Lead Time Materials (as defined below and
listed on Exhibit B) in order to achieve scheduling flexibility needed
from time to time to meet ESLR’s Forecasts. For the purposes of this
Agreement, “Long Lead Time Materials” shall mean components,
subassemblies, materials and supplies with lead times greater than ninety (90) days at
the time an order is placed. During the Term, if any lead times for
components, subassemblies, materials or supplies not listed on Exhibit
B




10









 







	 	 	 	exceed ninety (90) days due to changes in market conditions, JWWH shall notify ESLR in
writing and will quantify lead time requirements and how much additional
cancellation liability ESLR will incur above and beyond the cancellation
liability if the Long Lead Time Material could have been obtained with a
lead time of less than ninety (90) days.
	 
	 	c.	 	ESLR Liability for Materials. ESLR shall be liable for
all Normal Lead Time Materials purchased by JWWH in accordance with ESLR’s
Forecast. ESLR will also be liable for all Long Lead Time Materials listed in
Exhibit B where JWWH purchased materials to extended lead-times as
stipulated or in quantities listed plus cycle times. ESLR’s liability for
Normal Lead Time Materials and Long Lead Time Materials is subject to JWWH’s
obligation to use commercially reasonable efforts to use the materials for other Products, sell
the materials or return the materials to JWWH’s supplier.
	 
	 	d.	 	Allocation of Shortage Materials and Factory Capacity.
JWWH agrees to fulfill all Purchase Orders properly placed by ESLR according to
the terms of this Agreement. In the event JWWH’s suppliers place certain
components on allocation or JWWH does not have the capacity to produce the
volume of Product specified in the Forecast, JWWH agrees to notify ESLR
immediately and work diligently to assure  proper allocations or capacity for JWWH production are
achieved.
	 
	 	e.	 	Purchased Wafers.






	 	1.	 	In conjunction with the Forecast, JWWH shall
submit to EGWH its reasonable requirements for Purchased Wafers to be
used for the production of Product according to the Forecast along with
requested delivery dates for such materials. The requirements shall be
based on the volume of Product under the Forecast, the material
requirements with respect to the bill of materials for the Products and
expected yields from manufacturing.
	 
	 	2.	 	EGWH shall confirm within five (5) days  the acceptance
of the JWWH’s requirements for Purchased Wafers with respect to
availability and delivery of the requested volume of Purchased Wafers.
If EGWH fails to confirm the full requirements, JWWH is entitled to
delay the delivery of a portion of the applicable Purchase Orders as
necessary based on the shortfall and shall not be deemed as in breach
of this agreement for such delay. JWWH may request a rescheduling of
quantity or delivery under previously accepted Purchase Orders if EGWH
fails to deliver the Purchased Wafers as required.
	 
	 	3.	 	ESLR will ship or EGWH will deliver the
Purchased Wafers as required by JWWH intended to be used exclusively
for Product ordered by ESLR; provided that ESLR and EGWH acknowledge
that JWWH may inadvertently produce certain volume of “C” quality
Product which is not purchased by ESLR or its designee and JWWH shall
have the rights to sell such “C” quality Products that may be
inadvertently produced as set forth in Section 6.4(d).




11









 






	 	4.	 	JWWH shall pay for the Purchased Wafers as set
forth in Section 2.2 of Exhibit A and as otherwise set forth in
this Agreement.
	 
	 	5.	 	In the event that (a) ESLR fails to obtain an
export license for Silicon Carbon Monofilament, (b) ESLR’s export
license for Silicon Carbon Monofilament lapses or is revoked, or (c)
ESLR is otherwise unable to produce sufficient quantities of wafers in
the Wafer Facility to meet its obligation to deliver Purchased Wafers
under this Agreement, ESLR shall ship wafers to JWWH in sufficient
quantities to meet the obligations of EGWH hereunder from its USA plant
or other locations as “consigned” wafers, to be used exclusively for
Product ordered by ESLR.






	 	3.7	 	Purchase Orders; Releases.






	 	a.	 	In General. ESLR shall issue quarterly Purchase Orders in
conjunction with the Forecast issued the month prior to each calendar
quarter. Purchase
Orders shall be for quantities of Product consistent with applicable Forecast
and shall contain the following information:






	 	1.	 	Quantity and type of Product to be shipped.
	 
	 	2.	 	The estimated expected delivery schedule.






	 	b.	 	Applicable Terms. All Purchase Orders issued by ESLR
hereunder shall be governed exclusively by the terms and conditions of this
Agreement. Standard ESLR terms and conditions included with any Purchase Order
are not applicable. Purchase Orders may be delivered to JWWH by any reasonable
means, including but not limited to postal delivery, courier delivery,
facsimile transmission, and electronic mail.
	 
	 	c.	 	Purchase Order Acknowledgments. JWWH shall, within
three (3) business days  of receipt, acknowledge and honor any Purchase Order for Products issued
by ESLR during the Term which (a) requests delivery dates no earlier than the
agreed upon lead time periods, and (b) is not in excess of the Forecast for the
period in question, unless JWWH agrees in writing to provide such excess
Products; (c) ESLR is not in material breach of this Agreement; and (d)
otherwise in accordance with the terms and conditions of this Agreement.
Notwithstanding, JWWH’s failure to acknowledge a Purchase Order, and subject to
the conditions in the preceding sentence, all Purchase Orders issued in
conformity with this Agreement shall be binding, unless otherwise agreed by
ESLR. JWWH shall also use commercially reasonable best efforts to honor Purchase Orders for Products
issued by ESLR, the provisions of which do not fully comply with the lead time
requirements set forth in this Agreement.
	 
	 	d.	 	Releases. On Monday of each week, ESLR shall provide a
weekly Release to JWWH under the previously established Purchase Orders, which
shall specify the subsequent next week’s build and ship plan with quantity by
Product and ship-to location. The delivery date shall be no later
than the Friday of the week after (i.e., 11 China business day from
the Release date).
JWWH shall, within (3) three China business days of receipt, acknowledge and




12









 










	 	 	 	accept any Release that is consistent with the Forecast and Purchase Orders.
	 
	 	e.	 	Changes to Purchase Orders; Cancellations.






	 	1.	 	All alterations in quantities, delivery dates
or Statement of Work shall be communicated and confirmed in writing by
ESLR via a revised Purchase Order or a Purchase Order amendment.
	 
	 	2.	 	ESLR and JWWH shall cooperate in good faith to
reschedule or otherwise alter previously placed Purchase Orders as may
be reasonably requested by the other party. If upon review of such
requirements for proposed alterations, cancellations or rescheduling by
the ESLR or JWWH, the other party deems that it could not accept such
changes without incurring increased costs, the affected party shall
communicate such increased costs in writing to the other party. If the
other party accepts such increased costs, it shall provide a
confirmation in writing of its approval and commitment to make payment
therefor together with an appropriately revised or supplemented
Purchase Order. Alteration and rescheduling costs shall be calculated
based on (a) where possible, re-allocating all common material for use
by other JWWH customers, (b) returning excess material to third party
suppliers, or (c) selling excess non-proprietary material to third
parties.






	4.	 	JWWH MANAGED INVENTORY






	 	4.1	 	JWWH shall store, without charge to ESLR, Products equal to [****]% of the
[****] of the then current Forecast. JWWH may charge ESLR a storage fee on any
Products in inventory in excess of [****]% of the [****] of the current Forecast as
“Excess Inventory”. The storage fee shall be RMB [****] per square meter per
month (pro rated for a partial month) of warehouse space used to hold the Excess
Inventory.
	 
	 	4.2	 	JWWH may issue to ESLR an invoice for any Products produced by JWWH but held in
Inventory [****] or more beyond the date specified in the Purchase Order as the
expected shipment date for such Products (the “Invoiced Inventory”). Payment
for Invoiced Inventory shall be due [****] from the expected shipment date set forth in
the Purchase Order, regardless of when the invoice is issued, unless due sooner under
Section 4.5.
	 
	 	4.3	 	ESLR may issue a Release for shipment of Inventory, up to the amount of Product
in Inventory, to a destination specified by the Release. Required Product in excess
of then existing Inventory shall be requested by way of Purchase Order. This provision
shall not prevent JWWH from fulfilling a Purchase Order in whole or in part from
existing Inventory.
	 
	 	4.4	 	JWWH shall provide ESLR a weekly and reasonably complete report of the status of the Inventory. JWWH
shall permit ESLR to complete a physical inventory of the Inventory at any time during
regular business hours.




13









 






	 	4.5	 	within five (5) days before the end of a quarter JWWH shall issue an invoice to ESLR for all
inventory not allocated to prior Releases from inventory, excluding Invoiced Inventory.
This Product, together with the Invoiced Inventory, will then become consigned
inventory (“Consigned Inventory”). Liability for loss or damage to, and
responsibility for insurance of, Consigned Inventory will remain with JWWH. ESLR shall
be allowed to perform an onsite physical inventory of Consigned Inventory at reasonable
times and frequencies.
	 
	 	4.6	 	ESLR may issue to the JWWH a Release to be used against shipment of Consigned
Inventory at any time.






	5.	 	MANUFACTURING RESPONSIBILITY






	 	5.1	 	Manufacturing Specifications. JWWH agrees to use
reasonable commercial efforts to (1)
procure components, materials, equipment and other supplies, and (2) to manufacture,
assemble, test and deliver Products pursuant to detailed Specifications (as defined
below), workmanship standards and quality requirements as set forth or referenced in
the Statement of the Work. For each Product or revision thereof, written
specifications shall include, but are not limited to, bills of materials, schematics,
assembly drawings, process documentation, test specifications, current revision number,
and approved vendor list (hereinafter, collectively referred to as the
“Specifications”) as attached hereto. The Specifications may be amended by
ESLR from time to time during the Term, including changes with respect to Product
covered in any Purchase Order accepted by JWWH. All Specifications shall be in the
English language, unless otherwise agreed to by both parties, and shall comply with all
necessary and applicable rules and regulations with respect to the manufacture,
package, and assembly for the Products. JWWH has Specifications and found them to be
unambiguous and conclusive. JWWH has also examined sample product manufactured by ESLR
and confirmed its conformity to the Specifications.
	 
	 	5.2	 	Changes in Rules and Regulations. If either party becomes aware of any
changes to any rules and regulations affecting the Products, or discovers that the
Instructions are incorrect, ambiguous, incomplete or not in conformity with the
characteristics of the qualification sample, then it will immediately advise the other in
writing so that any necessary adjustments to the Instructions can be
made. JWWH shall immediately notify ESLR of any Product failure returned to JWWH from the field.
	 
	 	5.3	 	Pre-Production Review. Prior to the start of the production of the
Products, ESLR and JWWH shall conduct a joint “Manufacturing Readiness Review”, at the
request of ESLR, to ensure that the Products can be manufactured by the JWWH in
accordance with ESLR’s latest instructions with [****] defects. 
	 
	 	5.4	 	Quality Requirements. Both JWWH and ESLR shall make [****] efforts to
meet the following quality requirements per the specifications for “A”, “B” and “C”
quality in the Statement of Work.





	 	 	 	 	 	 	 
	Period	 	“A” Quality	 	“B” Quality	 	“C” Quality
	Through 2010

	 	[****]
	 	[****]
	 	[****]
	2011 and beyond

	 	[****]
	 	[****]
	 	[****]






14









 







	 	5.5	 	Software. Title to software programs, if any, provided by ESLR to
JWWH to be used in the manufacture of Products (“Programs”) will remain with
ESLR. ESLR warrants and represents that it is the owner of the Programs and/or has
the right to supply the Programs and hereby grants to JWWH a license with
authorization to use and reproduce the Programs solely for the purposes contemplated
by this Agreement.
	 
	 	5.6	 	Trademarks. Notwithstanding anything to the contrary contained
herein, JWWH shall not have the right to use the trademarks or trade names of ESLR
and EGWH, either directly or indirectly, in connection with any product, service,
promotion or publication without first obtaining the prior written consent of ESLR
provided that ESLR may identify JWWH, a subsidiary of JWCN, as the
manufacturer and/or supplier of the Products made with ESLR’s proprietary wafers and
ESLR technology, and JWWH may identify ESLR as a customer who has contracted with
JWWH for the manufacture of the Products with EGWH’s String Ribbon Wafers and other
ESLR technology, if applicable, without the need for consent of the other party.






	6.	 	PRICING/PRICE REDUCTION






	 	6.1	 	Pricing. The price for Products and Purchased Wafers as well as other
costs to be paid by ESLR and JWWH are set forth in this Agreement and in the Statement
of Work.
	 
	 	6.2	 	Taxes; Fees. All taxes and levies that are by applicable statutes,
rules and regulations required to be paid by JWWH shall be paid by JWWH, and all taxes
or levies that are by applicable statutes, rules and regulations required to be paid by
ESLR shall be paid by ESLR.
	 
	 	6.3	 	Performance Measures and Reviews. Both parties agree to track and
measure the overall performance of the combined EGWH and JWWH supply chains, and no
less than [****] discuss mutual performance and corrective or remedial actions in
business review sessions that include appropriate management level personnel. Key
performance indicators and targets shall be agreed upon by the parties, and shall
include, among other criteria, measures of yield loss, quality, production flexibility,
cost and Product efficiency.
	 
	 	6.4	 	Pricing.






	 	a.	 	The price to be paid by ESLR to JWWH will be set annually and
will be estimated no later than [****] and agreed to no later than [****] of
the applicable year. Until the new price is agreed to, the estimated price will
be used beginning on January 1 of the applicable year with a “true up”
adjustment made at the time that the actual price is agreed to.
	 
	 	b.	 	ESLR agrees to pay a [****] % margin above JWWH’s cost to
convert the Purchased Wafers to a cell and panel, as calculated using United
States Generally Accepted Accounting Principles, based on JWWH’s audited
financial statements and internal records. Such [****]% margin will be




15









 






	 	 	 	determined based on JWWH’s costs net of the actual cost to JWWH of the
Purchased Wafers and net of any penalties assessed by ESLR under this
Agreement for wafer yields or otherwise such that those costs are passed
through and do not result in the payment of any margin to JWWH and exclusive
of any [****].
	 
	 	c.	 	Pricing for Products is expressed in Chinese RMB on per watt
peak power (“Wp”) basis. For 2010, the price to be paid by ESLR to
JWWH:






	 	•	 	RMB [****] per Wp for the first 5 MW for “A” quality product
	 
	 	•	 	RMB [****] per Wp for the next 15 MW for “A” quality product
	 
	 	•	 	RMB [****] per WP for over 20 MW for “A” quality product






	 	d.	 	The price for “B” quality product will be [****] % of the price
for “A” quality product. The price for “C” quality product will be [****]% of
the price for “B” quality product. ESLR may refuse any “C” quality Products
produced in excess of the amounts permitted under Section 5.4, provided that
[****]. If ESLR accepts such excess “C” quality Products, JWWH may assist ESLR
in selling the “C” Quality Products. To the extent that the average price for
such “C” quality Product sold by ESLR in any calendar quarter is higher than
the price paid by ESLR to JWWH for the “C” quality Product multiplied by a
factor of [****], the additional amount will be shared equally between ESLR
and JWWH.
	 
	 	e.	 	Pricing outlined above for 2010 is based on an exchange rate of
6.83 RMB to 1.0 USD throughout 2010. If prior to the end of 2010 the RMB/USD
exchange rate has increased or decreased by more than [****]% from 6.83 RMB to
1.0 USD, JWWH and ESLR agree to adjust the RMB price for Products consistent
with the change in the exchange rate. Pricing for 2011 and beyond will be
negotiated in good faith by both Parties as described in Section 6.4,
and shall be subject to the same [****]% exchange rate adjustment set forth in
the preceding sentence for changes in the exchange rate of more than [****]%
occurring during the applicable year.
	 
	 	f.	 	Any wafers delivered by EGWH that are incorporated into “C”
quality Products in excess of the amounts permitted under Section 6.3 shall be
included in losses when determining the yield achieved by JWWH.
	 
	 	g.	 	Cost will be determined as outlined in Section 6.5.






	 	6.5	 	Cost Reviews.






	 	a.	 	Costs will be reviewed in detail approximately [****] following
the end of each calendar quarter to identify on a timely basis the potential
for any possible annual price recalculations as required by the Agreement. Any
change to prices on an interim basis can be made by mutual agreement in writing
by both parties. During the [****] of the Term, JWWH may require that such
reviews occur more frequently, but in no event more often than [****].




16









 






	 	b.	 	The following information will be required prior to
pricing/cost review:






	 	1.	 	manufacturing yields;
	 
	 	2.	 	efficiency information;
	 
	 	3.	 	staffing levels;
	 
	 	4.	 	inventory (finished goods, work in process,
raw) by part number and current standard cost and last purchased price;
	 
	 	5.	 	consumption plan by current revision;
	 
	 	6.	 	open order status for raw material;
	 
	 	7.	 	costed bill of materials at new standard cost
and last purchased price;
	 
	 	8.	 	a master list by assembly number that is
affected by price change; and
	 
	 	9.	 	other cost and performance available and as
reasonably requested by ESLR. ESLR






	 	6.6	 	Sharing of Cost Savings
	 
	 	 	 	To motivate both ESLR and JWWH to work together constantly to minimize
cell and panel conversion costs, [****] share in cost savings that are
achieved during the year and supported by the cost review as outlined
in Section 6.5.
	 
	 	 	 	For illustrative purposes, assuming that the price for 2011 is initially set at RMB
[****] Wp and actual JWWH cell and conversion costs on a per Wp basis (“Actual
JWWH Costs”) are RMB [****], then the price to be paid to JWWH would be RMB
[****] calculated as follows:





	 	 	 	 	 
	Initial Agreed on Price/Wp

	 	RMB [****]
	 	A
	Seller’s actual cell and panel conversion cost

	 	RMB [****]
	 	B
	Seller’s [****]% [****] Margin

	 	RMB [****]
	 	C
	Net savings

	 	RMB [****]
	 	A-B-C
	[****]% to Seller

	 	RMB [****]
	 	D
	Final amount to Seller

	 	RMB [****]
	 	B+C+D
	Actual Seller Margin
	 	 	 	 
	RMB

	 	RMB [****]	 	 
	 

	 	 	 	 
	Percentage

	 	[****] %	 	 
	 

	 	 	 	 






	 	 	 	The price for the following year will be the price determined by the cost review
conducted under Section 6.4.
	 
	 	 	 	For the purpose of determining any necessary adjustment to payments made to JWWH,
ESLR, EGWH and JWWH shall reasonably cooperate to calculate Actual






17











 








	 	 	 	JWWH Costs using the cost calculation methodology set forth in Section 6.4 by March
31 following each production year starting with calendar year 2011. To the extent
that Actual JWWH Costs are less than the price per Wp paid for the applicable year,
JWWH shall pay to ESLR within [****] after [****] of such amount.
	 
	 	6.7	 	Currency.
	 
	 	 	 	Price for the Products shall be stated in Chinese RMB. Amounts due to JWWH shall be
payable to JWWH in U.S. Dollars or any other currency approved in advance by both
Parties (including but not limited to EURO, YEN and RMB), using the exchange rate
published by the People’s Bank of China for the date that the Products were shipped.
	 
	 	 	 	Price for the Purchased Wafers paid by JWWH shall be stated in Chinese RMB, and
payable in Chinese RMB. The cost of the Purchased Wafers that is embedded in the
overall product cost will be repaid to JWWH by ESLR at the same price as paid to
EGWH by JWWH, and if the purchase price of the Products is to be paid in currency
other than RMB, the portion of the purchase price attributable to the Purchased
Wafer shall be calculated using the exchange rate in effect as of the date that EGWH
delivered the wafers to JWWH, subject to adjustment for yield losses or yield gains
as set forth in Section 2.2 of Exhibit A.






	7.	 	PAYMENT






	 	7.1	 	Invoices. Terms of payment begin from the shipment date, except for
Consigned Inventory, which shall be invoiced as set forth in Section 4. This term
applies to Purchased Wafers sold to JWWH by EGWH and Products sold to ESLR by JWWH.
	 
	 	7.2	 	Payment. For conforming Products, JWWH shall settle and forward
payment to EGWH within [****] of wafers, ESLR shall settle and forward payment to
JWWH [****] of products. In the event that any given invoice fails to match the
applicable Purchase Order in regard to price, quantity or revision, the Purchase
Order shall prevail.
	 
	 	7.3	 	Adjustment for Returns. In the event of rejected Products, ESLR
will, at the request and expense of JWCN, if such rejected Product is in a condition
that would customarily be repaired by ESLR, repair the Products at its US facility or
at another site more conveniently located as determined by ESLR, and will bill JWCN
for the repair charges and any shipment charges incurred by ESLR; provided that in
the event that more than [****]% of any shipment is properly rejected, such shipment
will be returned to JWCN or JWWH, as directed by JWCN, at JWCN’s expense or JWCN will
otherwise make arrangements for the return or repair of such products. Otherwise,
JWCN will be responsible for any returns of non-conforming goods, JWCN will arrange
for ESLR to receive the appropriate credit within [****] days of JWCN’s receipt of
such products.
	 
	 	7.4	 	Interest. Each Party shall pay interest on any payments that are
not paid on or before the date such payments are due (including interest amounts)
under this Agreement, at a rate of one and one-half percent (1.5%) per month or the
maximum applicable legal rate, if less, calculated on the total number of days
payment is delinquent.




18









 












	8.	 	TRANSFER & TITLE






	 	8.1	 	Excess Product. JWWH shall ship only the quantity of Items specified
in each Release. ESLR may return at JWWH’s expense any Product in excess of the
quantity specified in the applicable Release.
	 
	 	8.2	 	Excess Purchased Wafers. EGWH shall ship only the quantity of
Purchased Wafers requested by JWWH. JWWH may return at EGWH’s expense any Purchased
Wafers in excess of the quantity specified in the applicable order.
	 
	 	8.3	 	Shipment and Risk of Loss. All shipments of Product and Purchased
Wafers are [****]  — Incoterms 2000) received with documentation of origin. Title to
all Products and Purchased Wafers and risk of loss shall be deemed to pass to ESLR and
JWWH, as applicable, upon [****]. Recipient of the goods has the right to select the
method and routing of transportation.






	9.	 	PACKAGING AND LABELING
	 
	 	 	Unless otherwise agreed, the Products shall be labeled and packaged according to ESLR’s
specification attached hereto as Exhibit D and prepared for shipment in a manner
that follows commercially reasonable practices and is reasonably adequate to ensure safe
arrival. Unless otherwise agreed, the Products shall be labeled and packaged according to
ESLR’s specification attached hereto and prepared for shipment in a manner that follows
commercially reasonable practices and is reasonably adequate to ensure safe arrival if
properly handled during shipping.
	 
	10.	 	DELIVERY AND QUALITY REQUIREMENTS






	 	10.1	 	Applicable Criteria. JWWH agrees to meet the following delivery and
quality performance criteria (the “Applicable Criteria”), which shall be
monitored by ESLR and EGWH as an average quarterly performance: (a) [****]% of the
time, Products shall be delivered no earlier than [****] prior to JWWH committed
delivery date and no later than [****] (unless such delivery date is changed by ESLR or
EGWH) (b) at least [****]% of the time, Products delivered shall conform to the
Specifications and shall not be defective in materials or workmanship.
	 
	 	10.2	 	Price Adjustment for Failure to Meet Criteria. Beginning with
shipments made in calendar year 2011, in the event JWWH fails to meet the quality
requirements of Section 10.1(b) for the Product included in a shipment (i.e., if such
shipment was for a Purchase Order requiring all “A” quality Product, only “A” quality
Product will comply with the quality requirements), the price of any Product in such
shipment in compliance with the quality requirements applicable to such shipment and
any other Product in such shipment not returned by ESLR shall be reduced by [****]% of
the otherwise applicable price. To the extent such shipment was previously paid for by
ESLR at the non-reduced price, ESLR may apply the excess payment to future shipments or
request a refund of the overpayment amount. JWWH will not be required to provide a
cost reduction in the event that JWWH’s failure to meet the quality requirement is
caused by the quality problem of Purchased
Wafers. For purposes of this Section 10.2 “shipment” shall mean Products
that are delivered to the same addressee that are shipped on or about the same date
and shall include Product being shipped from Inventory and Consigned Inventory.





19









 





	 	 	 	If Products are being delivered to ESLR or on of its Affiliates for storage pending
sale to a third party, it is understood that shipment shall refer to the Product
shipped by ESLR or the Affiliate to the ultimate purchaser and that ESLR or the
Affiliate are not required to perform an item by item assessment of the quality of
the Product so delivered to them.






	 	10.3	 	Remedial Obligations. Programs shall be implemented by JWWH as
reasonably required to address failures to meet the Applicable Criteria as required in
this Section 10. ESLR shall cooperate in good faith to address recurring issues
regarding quality of the Products.






	11.	 	TECHNICAL ASSISTANCE






	 	11.1	 	By JWWH. This Agreement requires JWWH to provide technical or other
assistance directly to ESLR only as expressly described herein or in the Statement of
Work. Should ESLR desire, JWWH will provide additional technical assistance at JWWH’s
current rates, subject to availability of resources.
	 
	 	11.2	 	By ESLR. This Agreement requires ESLR to provide technical or other
assistance directly to JWWH only as expressly described herein or in the Statement of
Work. Should JWWH desire, ESLR will provide additional technical assistance at ESLR’s
current rates, subject to availability of resources.






	12.	 	TERMINATION






	 	12.1	 	Insolvency. If either party goes into liquidation, or if a receiver is
appointed for all or any portion of its property or estate, or if it is adjudged
bankrupt or insolvent, or if it files a voluntary petition in bankruptcy or insolvency
or if a petition in bankruptcy or insolvency is filed against it which is not dismissed
within forty-five (45) days, or if it makes an assignment for the benefit of its
creditors, the other party, at its option, may terminate this Agreement forthwith or at
any time thereafter by written notice, subject to the rights of such party under
Section 3.3 or 3.4, as the case may be.
	 
	 	12.2	 	Material Breach.






	 	a.	 	At any time when Hubei Technology Investment Co., Ltd. no
longer owns an interest in both EGWH and JWWH and beginning January 1, 2011,
this Agreement may be terminated prior to expiration of the Term by ESLR or
EGWH on the one hand or by JWCN or JWWH on the other, in the event of a
Material Breach as defined below. In the event the Material Breach , the
non-breaching party may terminate this Agreement immediately upon written
notice to the breaching party. The terminating party shall have all rights and
remedies available at law or equity as well as any other rights and remedies
set forth in this Agreement.
	 
	 	b.	 	A “Material Breach” shall mean:




20









 












	 	1.	 	JWWH’s failure in any [****] period beginning
[****] to produce [****] MW of Products at average levels of “A”
quality Product in excess of [****]% and Wafer Yield levels in excess
of [****]%.
	 
	 	2.	 	EGWH’s failure in any [****] period beginning
[****] to provide sufficient wafers to produce at least [****] MW of
Products at Wafer Yield levels in excess of [****]%.






	 	12.3	 	Government Prohibition or Restriction. ESLR or JWWH may terminate any
individual Statement of Work, or any Purchase Order or this Agreement, if any
governmental agency, authority, or entity with jurisdiction over the subject matter of
this Agreement takes any final action that results in banning the manufacture, sale or
introduction into commerce of any Product(s) or of any equipment or goods into which
the Products are incorporated or with which the Products are intended to be used, or to
impose significant restrictions on their use.
	 
	 	12.4	 	Effect of Termination.






	 	a.	 	Upon termination of this Agreement or any individual Statement
of Work, including Purchase Orders thereunder by JWWH under Section 12.1 or
12.2, then in addition to any other remedies available to JWWH, ESLR shall be
liable for payment for Products already shipped by JWWH but not yet invoiced,
as well as for any work in Process and for the cost of any materials purchased
by JWWH consistent with the most recent Forecast. Notwithstanding anything to
the contrary, JWWH shall not be compensated in any way (i) for any Products
completed after receipt of ESLR’s notice, provided, however, that JWWH may sell
Products it began to manufacture prior to termination, but under a brand other
than ESLR’s, (ii) for any costs incurred by JWWH’s vendors or subcontractors
after JWWH receives the notice as a result of JWWH’s failure to notify them or
take other actions that JWWH was permitted to take to avoid or reduce costs
incurred by them, or (iii) for any costs JWWH could reasonably have avoided.
ESLR shall only be liable for material procured by JWWH, as permitted in
Section 3.6. Delivery of such material shall be negotiated upon termination of
this Agreement or any individual Statement of Work. There shall be no charges
for termination of orders by ESLR due to JWWH’s material default of this
Agreement. Before assuming any payment obligation under this Section for
materials, material cancellation fees, work in progress or other costs, ESLR
may inspect JWWH’s work in process and audit all relevant materials and
documents.
	 
	 	b.	 	Termination or expiration of this Agreement in whole or in part
as permitted herein shall be without prejudice to the right of any party to
receive all payments accrued and unpaid at the effective date of such
expiration or termination, without prejudice to the remedy of either party in
respect to any previous breach or any representation, warranty or covenant
contained herein and without prejudice to any rights to indemnification set
forth in this Agreement and to any other provisions which expressly or
necessarily call for performance after such expiration or termination.




21









 












	13.	 	ENGINEERING CHANGES






	 	13.1	 	ESLR-Approval of JWWH Proposed Product Engineering Changes.






	 	a.	 	JWWH will not make any Engineering Changes to the Products
without first obtaining ESLR’s written consent, and JWWH shall not incur any
additional expenses until authorized by ESLR.
	 
	 	b.	 	Engineering Changes to the Product drawings, designs and
specifications may be requested in writing by JWWH. Upon request for any such
change, JWWH shall report to ESLR its best judgment as to the effect, if any,
of the requested change in form, fit, function, performance, reliability,
schedule, payments, savings involved, and/or delivery schedule. ESLR agrees to
respond to a JWWH initiated Engineering Change within [****] from receipt of
JWWH’s written request, at which time, ESLR may respond as follows:






	 	1.	 	Accept the change (in writing); or
	 
	 	2.	 	Defer the decision on the request for an agreed
upon time so that ESLR can obtain additional information regarding the
proposed change; or
	 
	 	3.	 	[****] deny the request for the change (in
writing).






	 	c.	 	Further, in the event JWWH designates an Engineering Change as
“URGENT” or “RUSH” (defined as a “line down” situation when JWWH cannot
manufacture any Products), ESLR agrees to use all reasonable efforts to
authorize approval or disapproval within [****] of receipt.
	 
	 	d.	 	JWWH will continue to deliver unchanged Products in accordance
with the provisions of this Agreement if ESLR does not approve of the
Engineering Change.






	 	13.2	 	ESLR-Initiated Product Engineering Changes.






	 	a.	 	ESLR may from time to time request in writing that JWWH
implement an Engineering Change. Such request shall be accompanied by an
Engineering Change form or equivalent with a written description of the
proposed Engineering Change sufficient to permit JWWH to evaluate its
feasibility, a revised bill of materials, drawings, media, and a proposed
implementation date. Subject to needing more time based on the complexity of
the Engineering Changes, within [****] in China after the date of receipt of
such request, JWWH shall advise ESLR in writing of the conditions under which
JWWH would implement the Engineering Change, if any. JWWH’s evaluation will
include, at a minimum, the cost to implement, any cost savings or increase as a
result of the Engineering Change.
	 
	 	b.	 	The parties shall endeavor to agree to any Engineering Change
requested by ESLR within a maximum of [****] after the date that JWWH




22









 












	 	 	 	receives ESLR’s notice of an Engineering Change. ESLR shall send the
confirmation of Engineering Changes and amend the purchase orders
accordingly.
	 
	 	c.	 	In the event that ESLR designates an Engineering Change as
“URGENT” or “RUSH”, JWWH will use all reasonable efforts to respond to ESLR’s
request within [****] of receipt. If any Engineering Change causes an increase
or decrease in the total number of Products due under a Purchase Order issued
hereunder or in the time required for its performance, or affects the cost of
such Products, an equitable adjustment shall be made, provided, however, that
any claim therefor by either party must be made in writing in the form of a
quotation within [****] from the acknowledged receipt date of the change
notice by JWWH.






	 	13.3	 	Disposition of Product Parts.






	 	a.	 	If an Engineering Change is implemented by JWWH, JWWH will
notify ESLR in writing of the disposition to be made of those parts affected in
raw inventory, work in process, and finished goods. For any Engineering Change
initiated by JWWH, ESLR will not have responsibility to pay for any inventory
rendered obsolete by the change unless ESLR agrees to do so in writing as part
of the Engineering Change approval process. Further, JWWH will advise ESLR of
the disposition of current Purchase Orders not yet processed at the time of the
Engineering Change. JWWH and ESLR shall mutually agree on reimbursement to
JWWH for any and all obsolete materials and rework that result from the
implementation of any ESLR-initiated Engineering Changes prior to JWWH
initiating implementation of the same. JWWH will use all reasonable efforts to
minimize the cost exposure generated by obsolete Product parts. JWWH will make
all reasonable efforts to return all goods to suppliers prior to reimbursement
and settlement for obsolete inventory.
	 
	 	b.	 	Notwithstanding anything to the contrary contained herein,
ESLR’s liability for any material identified by JWWH as obsolete due to the
implementation of any ESLR-initiated Engineering Change will be limited to that
quantity and price identified by JWWH at the time of JWWH’s notice of
acceptance of the Engineering Change.






	 	13.4	 	Long-Term Costs and Benefits from Engineering Changes.






	 	a.	 	In the event that an Engineering Change proposed by one party
and accepted by the other results in costs or savings that were not identified
or anticipated at the time of the agreement to accept the proposed change, ESLR
and JWWH shall share such cost or savings equally, provided that if the
unanticipated cost (including a reduction in yields, conversion efficiency,
process cycle times and the like) associated with such Engineering Change
exceeds [****]% of the total cost of the Product affected, either party may
require that the change be abandoned or rescinded or that a further change to
reduce or eliminate the cost resulting from the change be adopted.




23









 












	 	b.	 	Both parties will share equally in the cost savings from
Engineering Change on Products manufactured during the [****] following the
date on which the Engineering Change is implemented. Thereafter, the cost of
the Products will be the actual cost incorporating the Engineering Change.






	14.	 	REPRESENTATIONS AND WARRANTIES






	 	14.1	 	JWWH warrants that at the time of delivery of the Products, JWWH shall have
clear title to the Products that are manufactured by JWWH. JWWH warrants the Products
as set forth in Exhibit E attached hereto, except to the extent that any
failure to comply with the warranty in Exhibit E is due to a defect in the design for
the Product provided to JWWH by ESLR or any defective wafers from ESLR.
	 
	 	14.2	 	JWWH represents that it has the unqualified right to make and provide to ESLR
the Product (other than licenses being provided to it by ESLR) and to grant licenses,
if required, under the terms of this Agreement.
	 
	 	14.3	 	ESLR represents that it is the owner of any and all proprietary rights in the
information provided to JWWH in order to manufacture the Products, and that it has the
unqualified right to make and provide to JWWH any Purchased Wafers and other
information, including drawings, designs and the Specifications, available to JWWH and
to grant licenses, if required, under the terms of this Agreement.






	15.	 	ESLR’S REMEDIES FOR PRODUCTS UNDER WARRANTY






	 	15.1	 	If any Products which are still under the warranty period as defined in
Exhibit E are defective in materials and/or workmanship, JWCN’s sole and
exclusive liability, and ESLR’s sole and exclusive remedy for warranty claims, other
than the fees required pursuant to Section 15.3 and JWWH’s obligation (which is hereby
undertaken by JWWH) to fulfill any of JWCN’s obligations pursuant to this Section 15
upon the default of JWCN, shall be, at JWCN’s option, to (a) repair or replace (with
new or functionally operative parts) the defective Products or (b) credit ESLR’s
account, within [****] in China of receipt of [****] from ESLR, with respect to any
Products found to be defective in workmanship or materials during the warranty period;
or (c) to have ESLR repair such defective products at JWCN’s expense under Section 7.3,
above. Any such repair and/or replacement shall be made such that the Product will be,
once repaired, as specified in the Statement of Work for the applicable Product. Any
such repair by ESLR will neither impact warranties by JWWH nor JWWH’s responsibility
for Product provided such repair is reasonably made by ESLR or its authorized agent.
	 
	 	15.2	 	Upon the request of JWCN, Product subject to a warranty claim under Section
15.1 shall be returned to JWWH by ESLR at the expense of JWCN. JWCN at its sole cost
and expense shall, if requested by ESLR:






	 	a.	 	promptly investigate and determine the cause of any defects
giving rise to warranty claims, and




24









 












	 	b.	 	institute corrective quality/manufacturing controls; provided
that such claims, in the aggregate, exceed [****]% of Products sold during the
period of such claims.






	 	15.3	 	In addition to free of charge repair, replacement, payment for repairs made by
ESLR or credit to ESLR’s account in satisfaction of JWCN’s warranty obligations
pursuant to Section 15.1, JWCN agrees to cover other expenses [****] incurred by ESLR
in connection with servicing a warranty claim that is the responsibility of JWCN as
required pursuant to this Section 15. ESLR agrees that it will not alter the terms of
its warranty(ies) granted to its customers, a copy of which has been provided to JWCN
and JWWH, without notifying JWCN and JWWH; provided that any change in warranty
extended by ESLR to its customers without the express written consent of JWCN to be
bound by the change in warranty shall not expand the warranty liability of JWCN or JWWH
under this Agreement. JWCN shall not unreasonably refuse a request from ESLR to a
modification of the warranty terms, e.g., if ESLR can demonstrate to the reasonable
satisfaction of JWCN that the new warranty terms are consistent with then current
industry practice.
	 
	 	15.4	 	Notwithstanding anything to the contrary contained herein, any remedy for
warranty claims available to ESLR shall not apply to (i) design defects in the
Products, and for intellectual property infringement, which were designed by ESLR or
for ESLR by a third party and manufactured by JWWH at ESLR’s request; and (ii) any
defect, loss or damage resulting from theft, loss, fire, misuse, abuse, negligence of
any party other than JWCN or JWWH, vandalism, natural disasters, accidents not
negligently caused by JWCN or JWWH, casualty, power failures or surges, alterations,
modifications or failure to follow installation, operation or maintenance instructions,
or any other cause beyond JWCN’s or JWWH’s reasonable control or (iii) any defect, loss
or damage resulting from quality problems with the Purchased Wafers provided by EGWH to
JWWH.






	16.	 	INDEMNIFICATION






	 	16.1	 	JWCN and JWWH, on their own behalf and on behalf of their successors and
assigns, hereby agree to indemnify, defend and hold ESLR and EGWH, and each of their
Affiliates, directors, officers, employees and agents, harmless from and against:






	 	a.	 	any loss, costs or expense, including reasonable attorney’s
fees, to the extent that the claim for personal injury or property damage
arises from any defect in the manufacture of the Products or any grossly
negligent act or omission by JWWH or its affiliates or its agents:
	 
	 	b.	 	all third party claims or threatened claims that the use, sale
or distribution of the Products infringes on, constitutes a misappropriation of
the subject matter of, or otherwise violates any [****] of another party to the
extent that such claims result from materials incorporated into the Products
(other than the Purchased Wafers or any other materials obtained from ESLR) or
processes used to manufacture the Products by JWWH (other than processes
licensed from ESLR or any of its Affiliates, if any); and




25









 












	 	c.	 	All costs and expense incurred by ESLR as a result of JWWH’s
failure to produce Products that meet the Applicable Criteria set forth in
Section 10.






	 	16.2	 	ESLR and EGWH, on their own behalf and on behalf of their successors, and
assigns, hereby agree to indemnify, defend and hold JWCN and JWWH, and each of their
Affiliates directors, officers, employees and agents, as amended, harmless from and
against:






	 	a.	 	any loss, cost or expense, including reasonable attorney’s
fees, to the extent that the claim for personal injury or property damage
arises from any from any defect in the Purchased Wafers, the design of the
Products, any defect in the instructions regarding the use of the Products, or
any grossly negligent act or omission of ESLR or its Affiliates or agents
	 
	 	b.	 	all third party claims or threatened claims that the use, sale
or distribution of the Products infringes on, constitutes a misappropriation of
the subject matter of, or otherwise violates any [****] to the extent that such
claims result from materials incorporated into the Products (other than the
materials provided by JWWH) or processes used to manufacture the Purchased
Wafers by ESLR or EGWH (other than processes licensed from JWCN or any of its
Affiliates, if any) and
	 
	 	c.	 	All costs and expense incurred by JWCN/JWWH as a result of
EGWH’s failure produce wafers that meet the applicable Specifications set forth
in Exhibit F.






	 	16.3	 	In the event of a claim of an indemnification obligation pursuant to Section
16.1 or 16.2, (a) the indemnitor’s obligations hereunder shall be limited to the extent
indemnitor (i) does not receive prompt notice of each such claim from the indemnitee
and such delay prejudices indemnitor’s ability to defend such claim, or (ii) is not
given an opportunity to defend against such claim, and (b) the indemnitee fails
cooperate and provide reasonable assistance to the indemnitor in defense of the claim.






	17.	 	CONFIDENTIALITY; PUBLICITY






	 	17.1	 	During the Term and for five (5) years thereafter, each party shall use the
same efforts it uses to protect its own confidential information (but in any event, no
less than reasonable efforts to prevent its disclosure) to hold in strict confidence
and to require its personnel to hold in strict confidence and not disclose to any third
party without the prior written consent of the disclosing party, and not use in any
manner except in accordance with the terms of this Agreement, any confidential business
or technical information of the other party in its possession which is related to any
Product or Statement of Work or any confidential business or technical proprietary
information obtained from the other party (or any of its Affiliates) in connection with
the transactions contemplated hereunder. Such confidential information specifically
may include, without limitation, all engineering drawings, specifications and other
technical documentation, any proposed design and specifications for future Products and
Products in development, marketing plans, costs and pricing information, and all third
party information required to be maintained in confidence. Promptly following




26









 






	 	 	 	termination of this Agreement or upon request by the disclosing party, the receiving
party shall surrender to the disclosing party or destroy all materials remaining in
its possession containing any such confidential information including all copies,
extracts, or transcriptions, regardless of media.






	 	17.2	 	For purposes of this Agreement and the Products and Statement of Work,
information shall not be deemed confidential (a) if such information is generally
available from public sources other than as a result of the breach of this Agreement;
(b) if such information is received from a third party not under any obligation to keep
such information confidential; (c) if the recipient can demonstrate that such
information was independently developed by the recipient without use of any
confidential information of the other party or its Affiliates; or (d) if such
information is marketing material such as catalogs or leaflets distributed to third
parties as a part of sales and promotions.
	 
	 	17.3	 	Neither party shall be liable to the other for a breach of these
confidentiality obligations to the extent such party is required by law or any
governmental body to disclose any confidential information of the other party;
provided, however, unless otherwise required by such governmental body or such law, the
party providing such information to such governmental body or disclosing the same
pursuant to requirement of law shall first promptly notify the other party so as to
enable the other party opportunity to take steps it deems appropriate to protect its
confidential or proprietary information.
	 
	 	17.4	 	The parties agree that neither will disclose the existence of this Agreement,
nor any of its details or the existence of the relationship created by this Agreement,
to any third party without the specific, written consent of the other. Notwithstanding
the foregoing, either party may disclose this Agreement without the consent of the
other in confidence to its counsel and other advisors, actual or potential investors or
shareholders, and in connection with a significant corporate transaction such as a
change of control or joint venture. If disclosure of this Agreement or any of the
terms hereof is required by applicable law, rule, or regulation, or is required by a
court or governmental agency, authority, or body, such as annual reports or filings
with the United States Securities Exchange Commission, the parties shall use all
legitimate and legal means available to minimize the disclosure to third parties of the
content of the Agreement, including without limitation making a confidential treatment
request or seeking a protective order.






	18.	 	REGULATORY APPROVAL






	 	18.1	 	ESLR is responsible for the Product’s certification to UL and IEC 61215 and
adhere labeling as is appropriate. JWWH’s manufacturing location shall be designated
as the manufacturing location for the purposes of such approvals. JWWH agrees to bear
full responsibility for the certification of its manufacturing location as is
appropriate to the product’s certification. JWWH will cooperate with public and private
regulatory organizations to allow periodic inspections at mutually agreeable times to
maintain such approvals. The parties shall cooperate as needed to assist in the
fulfillment of their respective obligations under this Section 18.1.




27









 












	 	18.2	 	JWWH shall maintain, as necessary, an appropriate level of ISO certification
with the governing body selected by JWWH and approved by ESLR, which approval [****].
Further, JWWH shall support, upon written agreement of the parties, ESLR’s compliance
activity and internal ISO certification, as applicable, activity.
	 
	 	18.3	 	Should the Product(s) fail to meet the applicable standards or regulations or
receive the applicable approvals due to JWWH’s failure to maintain a required
certification, JWWH shall at ESLR’s request, cease production, until ESLR and JWWH
agree to required changes and applicable qualifications are met, without being in
breach of this Agreement. Any costs associated with such cessation, including inventory
carrying fees, will be at JWWH’s expense.






	19.	 	QUALITY ASSURANCE






	 	19.1	 	By JWWH.






	 	a.	 	JWWH shall maintain a [****] quality assurance program and in
designing and implementing such program shall consider ESLR’s Quality System
Requirements set forth in Exhibit C attached hereto.
	 
	 	b.	 	At any reasonable time during the term of this Agreement, ESLR
may, upon [****] advance notice to JWWH, conduct visits of JWWH’s manufacturing
or JWWH’s authorized subcontractors’ facilities, subject to having received
prior permission from the sub-contractor for such visits in connection with a
particular visit.






	 	19.2	 	By EGWH.






	 	a.	 	EGWH shall maintain a [****] quality assurance program.
	 
	 	b.	 	At any reasonable time during the term of this Agreement, JWWH
may, upon [****] advance notice to EGWH, conduct visits of EGWH’s authorized
subcontractors’ facilities, subject to having received prior permission from
the sub-contractor for such visits in connection with a particular visit.






	20.	 	END-OF-LIFE NOTIFICATIONS
	 
	 	 	As JWWH is notified by component suppliers and distributors of the end of availability of a
given part due to obsolescence or manufacturing changes, JWWH will notify ESLR within [****]
in writing with attached documentation from the supplier or distributor supporting the
notification. JWWH will work with suppliers and distributors to give as much advanced
notice as is reasonably possible to ESLR, and to reduce the exposure of loss of material
availability by seeking alternate sources or allocations. JWWH will seek distributors who
will bond end-of-life material for ESLR’s use to mitigate the need for end-of-life buys, to
avoid if possible non-cancelable/ non-returnable requirements and to minimize any additional
handling or storage fees.




28









 












	21.	 	CERTIFICATE OF CONFORMANCE
	 
	 	 	JWWH shall use all reasonable effort to ensure that each lot of each Product part number
(inclusive of critical components and sub-assemblies) shall contain a Certificate of
Conformance or equivalent statement to the effect that the Products manufactured by JWWH are
in accordance with specifications and documented requirements as provided by ESLR.
	 
	 	 	ESLR shall use all reasonable efforts to ensure that each lot of Purchased Wafers shall
contain a Certificate of Conformance or equivalent statement to the effect that the
Purchased Wafers manufactured by ESLR in accordance with specifications and documented
requirements as provided by JWWH.
	 
	22.	 	GENERAL






	 	22.1	 	Compliance With Laws. Each party shall comply with all national,
state, and local laws and regulations including without limitation laws and regulations
governing the manufacture, transportation, import, export, service and/or sale of the
Products and/or the performance of their respective obligations hereunder. None of
ESLR, JWWH or any of their Affiliates will export/re-export any technical data,
process, product, or service, directly or indirectly (including the release of
controlled technology to foreign nationals from controlled countries), to any country
for which the Chinese or United States government or any agency thereof requires an
export license or other government approval without first obtaining such license. Each
party shall comply with the other party’s applicable Supplier Code of Conduct or
comparable written requirements and abide by all on other party’s rules and regulations
while on such party’s premises or performing services for such party including, but not
limited to, safety, health and hazardous material management rules, and rules
prohibiting misconduct on such party’s premises such as use of physical aggression
against persons or property, harassment, and theft.
	 
	 	22.2	 	Insurance. During the term of this Agreement, JWWH will maintain
insurance against the risk of damage to or loss of the Products, including any
Inventory or Consigned Inventory, prior to and after it has been purchased by ESLR for
the full replacement value thereof until such time as the Products are delivered to
ESLR or to a third party in accordance with instructions received from ESLR. According
to the applicable China insurance company, the insurance should include coverage for
damage arising from fire, explosion, theft, inclement weather, or other cause, covering
the interests of JWWH and ESLR as their respective interests may be. JWWH and EGWH
will also maintain all statutorily required insurance with respect to employee health
and safety. JWWH must, upon request from ESLR, provide proof of insurance, and EGWH
must, upon request from JWCN, provide proof of insurance. In addition, each party
agrees to carry customary and usual insurance coverage for commercial liability,
property damage and automobile liability, including contractual endorsement and
products hazard liability, in reasonable amounts with reasonable deductibles and
provide the other party with evidence thereof.
	 
	 	22.3	 	Notices. All notices and other communications from one party to the
other hereunder shall be in writing and either personally delivered or sent via
certified mail, postage prepaid and return receipt requested to contact persons listed




29









 






	 	 	 	below, or to such other person or places as either party may designate from time to
time by notice hereunder. Such notices shall be deemed effective upon personal
delivery or deposit in the mails in accordance herewith. Notices sent by fax or
email shall not constitute notice under this Agreement unless acknowledged in
writing or by non-automated reply email or by reply fax.




If to ESLR or EGWH:



Evergreen Solar, Inc.

138 Bartlett Street

Marlborough, MA 01752 USA

Attn:   Michael El-Hillow

Fax:     (508) 229-7722

Email:   melhillow@evegreensolar.com

Tel:     (508) 251-3295



If to JWCN or JWWH:



Jiawei Solar (Wuhan) Co., Ltd.

No. 3, Road No. 1, Liufang Dongyi Industrial Park

Donghu Gaoxin District

Wuhan, Hubei 430205, China

Attn:   Kong-Qi Ding

Fax:     86-27-8798-6165

Email:   dingkongqi@solarchina.com

Tel:     86-27-8798-6168





	 	22.4	 	Force Majeure. Neither party shall be deemed to be in default of this
Agreement if prevented from performing any obligation hereunder for any reason beyond
its reasonable control including, without limitation, governmental laws and
regulations, calamities, floods, storms or other natural disasters, strikes or
lockouts. In the event of any such delay the time for performance shall be extended
for a commercially reasonable period of time based upon the length of the force majeure
event, and JWCN or ESLR, as the case may be, shall use commercially reasonable efforts
to allocate any available resources to manufacture Products or Purchased Wafers, as the
case may be, for allow the other party to perform its obligations pursuant to this
Agreement. and . Any party asserting force majeure as an excuse for performance shall
have the burden of proving that reasonable steps were taken (under the circumstances)
to minimize delay or damages caused by foreseeable events, that all non-excused
obligations were substantially fulfilled, and that the other party was timely notified
of the likelihood or actual occurrence which would justify such an assertion, so that
other prudent precautions could be contemplated.
	 
	 	22.5	 	Dispute Resolution. The parties shall attempt in good faith to resolve
any dispute arising out of this Agreement by the following procedures:






	 	a.	 	Any party may give the other written notice of any dispute not
resolved in the normal course of business. Appropriate executives of both
parties at levels one step above the project personnel who have previously been




30









 






	 	 	 	involved in the dispute shall meet at a mutually acceptable time and place
within ten (10) days after delivery of such notice, and thereafter as often as they
reasonably deem necessary, to exchange relevant information and to attempt
to resolve the dispute.






	 	b.	 	If the dispute has not been resolved by these persons within twenty (20) days after the disputing party’s notice, or if the parties fail to meet
within ten (10) days of such notice, the dispute shall be referred to senior
executives of both parties with authority to resolve the dispute, who shall
likewise meet to attempt to resolve the dispute.
	 
	 	c.	 	If the matter has not been resolved within twenty (20) days from the date
of referral of the dispute to senior executives, or if no meeting of senior
executives of the respective parties has occurred, then, in such event,
arbitration in accordance with the Rules of Arbitration of the International
Chamber of Commerce will be applied. The appointing and administering authority
shall be the Arbitration Association International Chamber of Commerce (the
“AAICOC”). The place of Arbitration shall be Wuhan, China until ESLR
has repaid the government funds or repurchased the shares held by the
government in EGWH. Thereafter, the place of Arbitration shall be Geneva,
Switzerland or another mutually agreeable location.
	 
	 	d.	 	The AIACOC shall be entitled to award temporary, preliminary or
permanent injunctive relief, except that in the case of temporary or
preliminary injunctive relief any party may proceed in court without prior
arbitration for the limited purpose of avoiding immediate and irreparable harm.
The provisions of this Section 22.5(d) and any determination or award made by
the AIACOC hereunder shall be enforceable in any court of competent
jurisdiction.






	 	22.6	 	Waiver of Terms Herein; Severability.






	 	a.	 	Failure of either party to enforce any term or condition of
this Agreement or any rights with respect thereto, or failure to exercise any
election provided herein, shall in no way be considered a waiver of such term,
condition, rights or elections or in any way affect the validity of this
Agreement. The failure of any party to enforce any of said terms, conditions,
rights or elections shall not prejudice such party from later enforcing or
exercising the same or any other terms, conditions, rights or elections.
	 
	 	b.	 	If any provision of this Agreement is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not be affected or impaired thereby.






	 	22.7	 	Governing Law. The construction and performance of this Agreement
shall be governed by laws and regulations of the People’s Republic of China
	 
	 	22.8	 	Assignment; Successors and Assigns. Neither party may assign this
Agreement without the prior written consent of the other party whether by sale, merger,
operation of law or otherwise, except that each party may assign this Agreement




31









 






	 	 	 	to a successor in connection with the transfer of all or substantially all of the
business or assets of such party to which this Agreement relates. Subject to the
foregoing sentence, this Agreement will be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.






	 	22.9	 	Third-Party Beneficiaries. This Agreement is for the sole benefit of
the parties and their permitted successors and assigns and nothing herein expressed or
implied shall give or be construed to give any non-party any rights, benefits or claims
hereunder.
	 
	 	22.10	 	Independent Contractor; Competition.






	 	a.	 	Each of the parties hereto shall conduct the work to be
performed hereunder as an independent contractor and not as an agent or
employee of the other party. Subject to the terms and conditions of this
agreement, each party shall choose the means to be employed and the manner of
carrying out its obligations hereunder. Neither party has authority to assume
or create any obligations on the other’s behalf, express or implied, with
respect to products or otherwise. Without limiting the generality of the
foregoing, neither party shall make any representation, guarantee or warranty
on the other party’s behalf. Neither party shall use the other party’s company
name, logo, artwork designs or abbreviations thereof in any way that may result
in confusion as to JWWH and ESLR being separate entities.
	 
	 	b.	 	Subject to the obligations set forth in the RA, nothing in this
Agreement shall limit the right of ESLR or JWWH to develop, have developed,
have manufactured, otherwise procure and/or market products or services now or
in the future, including any which may be competitive with those which are the
subject of this agreement, provided, however, that ESLR and EGWH shall not
sell, consign or otherwise transfer any of the output from the Wafer Facility
to any third party as long as JWWH is willing and able to purchase such output
and convert that output into Products described in this agreement or
subsequently developed by ESLR on the terms of this agreement. Neither party
shall be required to disclose planning information to the other except as
required pursuant to the terms of this Agreement. Notwithstanding the
foregoing, each of ESLR, EGWH, JWCN and JWWH represents and warrants that it is
not aware of any impediment which would inhibit its ability to perform the
terms and conditions imposed on it by this agreement, and that there are no and
will be no outstanding agreements, licenses, assignments or encumbrances
inconsistent with the provisions of and the rights granted under this agreement
or which are inconsistent with or would prevent it from performing all of its
obligations under this agreement.






	 	22.11	 	Language. This Agreement is in the English language, which language
shall be controlling in all respects, and all versions hereof in any other language
shall not be binding on the parties hereto. All communications and notices to be made
or given pursuant to this Agreement shall be in the English language.




32









 












	 	22.12	 	No Strict Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of this
Agreement.
	 
	 	22.13	 	Entire Agreement; Integration; Modification.






	 	a.	 	This Agreement (including each Statements of Work issued
hereunder) and its attached exhibits constitute a complete and exclusive final
written expression of all the terms of agreement between the parties. It
supersedes all prior agreements, understandings and negotiations concerning the
matters specified herein. No provisions of this Agreement can be modified
except by a written amendment signed by both parties.
	 
	 	b.	 	Any representations, promises, warranties or statements made by
either party that differ in any way from the terms of this Agreement shall not
be binding on either party unless made in writing and signed by a duly
authorized representative of each party.






	 	22.14	 	Headings. Headings contained in this Agreement are for convenience
only and shall not be used in construing any of the terms of this Agreement.
	 
	 	22.15	 	Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument.





[signatures next page]




33









 








     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EVERGREEN SOLAR, INC.	 	 	 	JIAWEI SOLARCHINA CO., LTD.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Print Name:
	 	 	 	 	 	 	 	Print Name:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Date:
	 	 	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EVERGREEN SOLAR (WUHAN) CO., LTD.	 	 	 	JIAWEI SOLAR (WUHAN) CO., LTD.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Print Name:
	 	 	 	 	 	 	 	Print Name:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Date:
	 	 	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 






34











 





EXHIBIT A




STATEMENT OF WORK





	1.0.	 	Product Description





Complete Product designs and specifications, including visual inspection criteria for finished
Product grading, for each Product have been provided separately to JWWH and are incorporated by
reference into this Statement of Work.




	2.0	 	Material Supply for JWWH from ESLR






	 	2.1	 	ESLR agrees to provide JWWH material (other than Purchased Wafers) as provided
below:





Schedule A

Material Offered by ESLR




	 	 	 	 	 
	PART	 	PRODUCT NAME AND	 	 
	NUMBER	 	DESCRIPTION	 	PRICE
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 





For such materials, on quarterly basis, not less then [****] prior to the end of a quarter, JWWH
may submit a Purchase Order to ESLR based on the Purchase Orders submitted by ESLR for material
to be delivered during the following quarter, and under which JWWH would purchase materials (as
defined in Schedule A) for use by JWWH in its production of Product.




	 	2.2	 	ESLR shall sell Purchased Wafers as set forth Section 3.6(e) based on the
following pricing:






	 	2.2.1	 	The price of each Purchased Wafer will be cost to EGWH to
manufacture such Purchased Wafer (the “Wafer Cost”).
	 
	 	2.2.2	 	The foregoing Purchased Wafer pricing is subject to adjustment
based on JWWH manufacturing yields. JWWH agrees that manufacturing yields for
Purchased Wafers through the entire Product manufacturing process (“Wafer
Yield”) shall equal or exceed [****]% for all production in 2010. JWWH
shall pay to ESLR a Wafer Yield penalty (the “Wafer Yield Penalty”) for
2010 in an amount equal to [****]% of the Wafer Cost for each Purchased Wafer
purchased by JWWH in excess of the [****]% Wafer Yield specified in the
immediately preceding sentence, as measured on a calendar year basis (i.e., if
by failing to achieve the specified Wafer Yield JWWH used 1,000 additional
Purchased Wafers, the Wafer Yield Penalty would be [****]% of the Wafer Cost
for the applicable year multiplied by 1,000). Any Wafer Yield Penalty payable
is in addition to the Wafer Cost which is to be paid to EGWH for the Purchased
Wafers.





 









 





	 	2.2.3	 	ESLR shall pay to JWWH a Wafer Yield bonus (the “Wafer
Yield Bonus”) for 2010, if Wafer Yields in 2010 exceeds [****]%. The
amount of the Wafer Yield Bonus shall be [****]% of the Wafer Cost applicable
to the number of Purchased Wafers that were not required by JWWH because the
actual Wafer Yield exceeded the [****]% Wafer Yield specified in the
immediately preceding sentence, as measured on a calendar year basis (i.e., if
by achieving a higher Wafer Yield JWWH used 1,000 less Purchased Wafers, the
Wafer Yield Bonus would be [****]% of Wafer Cost for the applicable year
multiplied by 1,000). Any Wafer Yield Bonus payable by to JWWH is in addition
to the Wafer Cost which is to be paid by ESLR as part of the Product cost.
	 
	 	2.2.4	 	In determining Wafer Yields for purposes of this Section 2.2,
only “A” grade and “B” grade Product (up to the maximum allowed quantity of “B”
grade Product specified in Section 5.4) purchased by ESLR will be considered
Product produced by JWWH.
	 
	 	2.2.5	 	For each calendar year after 2010, the parties agree to
discuss in good faith and determine appropriate Wafer Yield levels and any
Wafer Yield penalties or bonuses that may be applicable in future years. Such
discussions shall be undertaken in connection with the pricing determinations
to be made pursuant to Section 6.4 of the Agreement.






	 	2.3	 	ESLR shall cooperate with JWCN and JWWH to help implement the applicable technical
skills needed for cell production so that JWWH to meet the quality requirement of this
agreement as agreed in the RA and subject to the negotiation of and agreement to license
terms for any technology to be licensed from ESLR to JWWH.






	3.0	 	Pricing





Substantial Market Change




The price agreed for Product to be sold in 2010 and prices later agreed to by the parties for later
periods are subject to adjustment if [****], in which event either ESLR or JWWH (as applicable) may
make a price change request.



The requesting party will provide detailed supporting documentation, subject to third party audit
at the request of the other party. The parties shall negotiate in good faith to determine new
prices for the remainder of the then current calendar year.



Price changes agreed to hereunder shall apply on a prospective basis, starting on the date the
parties so agree; and shall apply only to Products that have not been manufactured by JWWH prior to
such time of such agreement.



A new price change request may not be made by a party less than [****] after a prior change in the
pricing is agreed by the parties.




A-2









 








EXHIBIT B




LONG LEAD TIME MATERIALS *





	 	1.	 	[****]
	 
	 	2.	 	[****]
	 
	 	3.	 	[****]
	 
	 	4.	 	[****]







 




			
	*	 	These materials may be purchased by JWWH further in advance than 90 days provided that all
such orders and the terms thereof are approved by ESLR or EGWH.






 









 








EXHIBIT C




QUALITY SYSTEM REQUIREMENTS





	1.0	 	Purpose





The purpose of this Exhibit C is to define the requirements, responsibilities, and goals of ESLR
(Evergreen Solar, Inc.) and JWWH (Jiawei Solar (Wuhan) Co., Ltd.) with respect to product quality.
This plan covers the Products manufactured by JWWH for ESLR. This document is necessary to ensure
the quality of the Products and JWWH compliance to ISO 9001 Quality System Standard.




	2.0	 	Scope





All Products purchased by ESLR from JWWH.




	3.0	 	Contact Persons





In order to monitor the implementation of this agreement and the coordination required within its
framework, both JWWH and ESLR will designate a person responsible for quality management. The
persons responsible for quality management are authorized to receive all information concerning the
implementation of this agreement. In the event there is a change in the representative or contact
persons, the other contract partner should immediately be informed in writing.




	4.0	 	Quality System





JWWH shall establish and maintain a Quality System that will ensure that the quality requirements
for the Product and the Purchased Wafers (to the extent such quality testing can only be performed
during or after the processing of the Purchased Wafer into solar cells) are met. Establish means
define, document (in writing) and implement. JWWH shall establish the procedures necessary to
implement the Quality System. As part of the on-going management of quality, ESLR and EGWH will be
given the opportunity to audit the factory, its processes and associated quality practices and
results data.




	5.0	 	Design Controls (Only applies to JWWH designed product)





JWWH will not make changes to ESLR’s product without a fully approved Engineering Change form.
JWWH will be notified, as apart of the Engineering Change process from ESLR, the timing
requirements for the implementation of the change.



ESLR will identify critical processes that cannot be modified without prior authorization from
ESLR. For non-critical processes, ESLR will be notified within 3 business days in China of expected
implementation of the change.




JWWH shall establish and maintain records that demonstrate that both critical and non-critical
processes are being maintained in accordance to the process specifications provided by ESLR. These
process records shall be maintained for five (5) years.



C-1









 






	6.0	 	Document Controls and Changes





JWWH must demonstrate that ESLR provided documentation and associated changes are maintained and
controlled to protect both the quality of the process and product as well as ESLR’s intellectual
property. The document control system of JWWH shall have the necessary authorizations and controls
to assure that products are built using only the latest revision of documentation. Obsolete
documents shall be moved into an archiving area or similar document control section for historical
reference purposes.



JWWH shall only input ESLR’s released documentation into its Document Control system. Released
documentation is the only authorized ESLR version. Any other copy is for reference only. JWWH
should confirm, to the originator, in writing or electronically that they have received
documentation from ESLR. All ESLR controlled documentation will be forwarded to JWWH Program
Manager by ESLR’s Document Control function. No other source of ESLR documentation should be
considered as acceptable. If JWWH finds the specifications to be faulty, unclear, ambiguous or
incomplete during product development, production or testing, JWWH will inform the Document Control
function of ESLR immediately in writing and will submit suggestions regarding remedial actions.




	7.0	 	Purchasing Controls





Each item in ESLR’s Bill of Materials will specify whether the material supplier will be specified
by ESLR or not. ESLR and JWWH will work together to evaluate JWWH’s subcontractors and service
providers to determine their ability to provide products that conform to the specified
requirements. The evaluation must be documented. The documentation shall include the criteria for
acceptance and the extent to which control must be established over the subcontractor. Acceptance
activities must be documented. Records of acceptable suppliers shall be kept. In the event that
the supplier is ESLR specified, ESLR will evaluate their ability to provide products that meet
specified requirements. JWWH will be responsible for maintaining an acceptable Quality level for
all suppliers through production.



Purchased products shall be described to the detail necessary to clearly convey the requirements
for the products. The specifications and requirements necessary to ensure the quality of the
purchased product must be documented and conveyed to JWWH.



If applicable, purchased product shall be bought in accordance with ESLR Product Specifications.




	8.0	 	Traceability





All products will be serialized using the labeling requirements specified by ESLR. JWWH shall
maintain the identity of product, using the serialization to ensure that only the correct,
conforming products are delivered. It is expected that JWWH shall keep complete production records
by serial number including but not limited to: Material Lot Numbers, process conditions at the time
of manufacture, the date of manufacture



Purchased product shall be inspected, tested and accepted as conforming to the specified
requirements provided by ESLR. Records of in-process and final yields shall be kept by JWWH for
five (5) years. These records will include the reasons for any rejections.



C-2









 






	9.0	 	Inspection, Measuring, and Test Equipment





ESLR will specify all test and measurement equipment including its maintenance and calibration
schedules. JWWH is responsible to adhere to that maintenance and keep records and calibration
certificates for 5 years. JWWH shall utilize the test and measurement equipment as specified by
ESLR. In the event that un-calibrated Test Equipment was used during the processing of product
for ESLR, ESLR should be immediately notified in writing. JWWH will initiate an out of tolerance
report, identify what was out of tolerance, the effect it would have on the process and actions to
be taken to insure it will not recur.




	10.0	 	Preventative Maintenance





JWWH shall establish procedures, responsibilities, and instructions for assuring that a
Preventative Maintenance (P/M) program is established and to guarantee that all applicable plant
maintenance and production equipment is properly maintained. The P/M plan should ensure that that
all applicable equipment is maintained to provide optimum operational readiness and that it is
capable of meeting its intended use. The P/M program pertains to production equipment, including
fixed machinery, tooling (molds, dies, jigs, fixtures) and plant maintenance. All PM programs are
subject to review and approval of ESLR




	11.0	 	Acceptance Testing





ESLR will specify product acceptance tests. JWWH shall establish and maintain documented
procedures for inspection and testing activities verifying that the specified requirements for the
product are met. JWWH guarantees compliance with the specified product characteristics. .



JWWH shall ensure that finished product be held until acceptance criteria have been met. Release
to shipping shall take place after the production activities are complete, the data and
documentation is reviewed and release is authorized by signature and date of approval.



JWWH shall inspect products before packaging for delivery to ensure the quality of delivered
product. Records of the inspection shall be maintained.




	12.0	 	First Article/Qualification





JWWH shall perform a First Article/Qualification inspection with the introduction of a new product
to JWWH and if requested, as well as after any Engineering Change or production line change over,
affecting an existing product. A complete First Article will include a tagged First Article item
and evidence that all attributes of that item were inspected and determined to be acceptable.
Where applicable, the item will be verified against attributes consisting of all bill of materials,
labeling, and assembly documentation. First Articles will be recorded on a First Article form
generated by JWWH. JWWH shall forward a copy of the completed form and/or First Article assembly
to ESLR for review.



At the request of ESLR, JWWH shall forward qualification assemblies to ESLR for review and
approval. Shipment of additional production assemblies is contingent upon successful acceptance of
the Qualification assemblies. JWWH will receive written authorization from ESLR once Qualification
has been completed.



Nonconforming First Articles will not be accepted unless JWWH has first obtained a Deviation
Authorization from ESLR.



C-3









 






	13.0	 	Qualification Plans





Pre-Production Qualification Plans will be created by JWWH, subject to ESLR approval, for all
designs or, specified, major process changes. The Pre-Production Qualification Plan will consist
of a set of criteria, e.g. mechanical, electrical, functional, packaging, and labeling that will
exercise the part in the manner of its final intended use. This Plan will be signed by both ESLR
and JWWH prior to manufacturing/assembly of qualification assemblies. Shipment of production
product is contingent upon successful completion of the Pre-Production Qualification Plan.




	14.0	 	Nonconforming Product





Where a material used in the manufacturing process that might have an adverse effect on the
products, JWWH shall ensure that said material is removed from the products so that the residual
material will not harm the product. A formal Non-Conforming Report will be issued and communicated
to ESLR.



JWWH shall control product that does not meet specifications to ensure that nonconforming product
is not distributed. Control of nonconforming product shall include the identification,
documentation, evaluation, segregation and disposition of the nonconforming product. The
evaluation shall include the determination of the need for an investigation, root cause analysis,
corrective action and the notification of the organization responsible for the nonconformance.



JWWH shall identify the persons responsible for the review and disposition of the nonconforming
product. The review and disposition of nonconforming product shall be documented.



JWWH shall not establish any rework procedures without the expressed, written authorization of
ESLR. Any product that is reworked will be identified in the record for the specific serial number.




	15.0	 	Corrective and Preventative Action





JWWH shall establish, maintain and review with ESLR a corrective and preventative action system
that shall include containment, the investigation of the potential causes of nonconforming product,
the identification of the actions needed to correct and prevent the recurrence of nonconforming
product, verification of the effectiveness of the corrective action, changes to processes needed to
correct the causes of nonconforming product and ensure that the information about the quality
problem is disseminated to those directly responsible for assuring the quality of the product. The
system shall include the analysis of work, audit reports, returned product, complaints, process
metrics and other sources of data to identify the existence of potential causes of nonconforming
product.



ESLR requires a written response to our Nonconforming Material Report (NCMR within 24 hours of
receipt in a manner indicated on the NCMR form. ESLR requires containment within 1 business day and
full root cause elimination within 30 business days.



Any non-confirming product that has not been contained on site by JWWH (e.g., customer returns) or
any major failure of production control, (e.g., calibration, measurement system etc.) requires a
formal written response by JWWH within 24 hours of discovery detailing containment and corrective
action plans, and full root cause elimination within 30 days.



C-4









 






	16.0	 	Complaint Handling





Any complaints or returns of JWWH produced product will be managed by ESLR. If JWWH obtains this
information directly from the field, he will forward the information to the person designated by
ESLR. JWWH will not initiate direct contact with the complainant or ESLR’s customer.




	17.0	 	Customer Returned Goods (CRG)





JWWH shall ship a copy of its CRG Repair/Rework documentation with every product returned to ESLR.
At a minimum, the documentation should contain ESLR’s reason for return, parts replaced, date of
repair, and any rework performed at JWWH. Those products returned to JWWH as a result of a field
complaint will be documented by ESLR as such.



JWWH should process all complaint products within 3 business days of receiving the material. In
addition, JWWH will be required to complete a JWWH Corrective Action Request (SCAR) that will
capture the Root Cause and Corrective Action when determined. All other returned material should
be processed within 20 business days.



CRG product should be returned to ESLR at the latest contracted revision. This includes any
testing requirements that were imposed on the originally supplied product.




	18.0	 	Mandatory reporting and Management Communication





JWWH shall establish and maintain procedures to ensure that formal documented reviews of the
production results are planned and conducted at appropriate stages of the device’s production
process development. Participants at each review shall include representatives of all functions
concerned with the process being reviewed and an individual(s) who does not have direct
responsibility for the process being reviewed, as well as any specialists needed. Records of such
reviews shall be maintained.



JWWH must inform ESLR immediately in writing if JWWH learns of information regarding an actual or
possible hazard to the health and/or safety of customers, installers, or third parties, when
handling or operating JWWH’ product



ESLR is the liaison to the safety and regulatory agencies in the case of events subject to
mandatory reporting. If the authorities or notified bodies require documentation regarding the
design or manufacture of the products, JWWH will make it available immediately.




	19.0	 	Labeling





JWWH shall ensure that label(s), if required, for the products remain legible and affixed per
product drawings and specifications. The labels that are serial number specific will be affixed in
such as manner as to assure that serial number integrity is maintained. ESLR has the right to
review and approve the process used to assure serial number integrity. Labeling is considered a
critical controlled parameter at the product level and requires formal change authorization if
modified.



C-5









 






	20.0	 	Records





The records required by this agreement shall be maintained at JWWH’ facility. These records must
be made available, within a 48-hour time period, to ESLR upon request.



JWWH shall have a documented Quality Records procedure and archive schedule for ESLR requires that
all ESLR related documents be retained and archived for a period of five (5) years after ESLR has
announced end-of life for the product or after JWWH has announced end-of-manufacture for the
product. Examples of ESLR related documents such as: JWWH audits, training records, calibration
records, test data, and Certificate of Conformance (C of C). If JWWH has a question as to whether
a document should be retained then JWWH should contact ESLR Quality Representative. No records
should be destroyed without written consent from ESLR.



If required, by the individual P.O., ESLR documentation, Certificates of Conformance should be
shipped with the material to ESLR. JWWH is required to keep a copy of the C of C, regardless of
whether it was shipped with the product. This applies to both new production and reworked
material. The Certificate of Conformance must contain, at a minimum, the following information:



	 	 	 
	Customer Name:

	 	ESLR
	Customer P.O. #:

	 	[xxxxxxx]
	Customer Part #:

	 	[xxxxxxx]
	Customer Rev.:

	 	[xx]
	Quantity:

	 	[xx]
	 
	 	 
	DATE SHIPPED:

	 	[XX-XX-XX]
	 
	Product Description:

	 	[xxxxxxx]
	Materials Used:

	 	[If applicable]
	Lot/Date/Serial Code:

	 	[If applicable]
	UL Recognition #:

	 	[If applicable]
	Original Manufacturer:

	 	[If applicable]
	Manufacturer Part#:

	 	[If applicable]






Statement explaining that material supplied herein conforms to all of the customer’s
specifications, as listed on the P.O. and/or drawings.



	 	 	 	 	 
	 	 	 
	[Signature of Authorized Personnel] 	[Date] 	 
	(Title__________) 	 	 




	21.0	 	Process/Product Yields





Product Quality Yields are set at ≥ 98% part acceptance, as calculated at Manufacturing, after 3
months full-scale production. These yields will be reviewed by JWWH and ESLR’s. If JWWH does not
reach these yields, then ESLR and JWWH will work together to establish root cause of yield issues.
Failure to not meet these goals will mean a decrease in overall JWWH rating. The



C-6









 







result could mean that JWWH will become “Conditional” and a JWWH Improvement Plan will be
developed. A rating of “Conditional” for more than 6 months could mean loss of new and/or existing
business.



If a “Conditional” status is reached, JWWH shall provide ESLR a Bi-weekly Quality Progress Report
detailing weekly product yields (DPMO), actions taken to maintain process yields, and data about
the repairs and reprocessing made for ESLR.




	22.0	 	Report Cards





Quarterly ESLR will provide JWWH with a Report Card highlighting the three (3) previous months JWWH
performance. This SR includes elements from Quality and Logistics.




	23.0	 	Audits and Management Reviews






	 	23.1	 	Quality System. JWWH’ Quality System including Product and Process controls,
is subject to be audited by ESLR. The audit may be conducted by ESLR personnel and/or
by a third party at ESLR’s expense. JWWH will be given proper warning and will be
provided the agenda as well as the personnel required to be part of the audit.
	 
	 	 	 	Should JWWH use subcontractors, JWWH will ensure that the subcontractor meets
quality requirements through appropriate agreements; for example, through audits, or
by seeing to it that ESLR can perform pre-announced audits. ESLR’s audit reports
are to be treated as confidential.
	 
	 	23.2	 	Management Reviews. Each quarter, there will be a senior management review of
the Business and quality performance of JWWH. These meetings will alternate (when
feasible) between ESLR’s location and JWWH’s location. These meetings will have a
specified agenda that includes the review of in-process and product data, product
quality issues, areas for improvements, respective product “road maps” including long
range forecasts and opportunities for ESLR and JWWH to improve effectiveness.





C-7









 








EXHIBIT D 




PACKAGING AND LABELING REQUIREMENTS





	1.0	 	Packaging Documentation
	 
	 	 	JWWH shall enclose or by email a packing list referencing the Purchase Order number and
product test data with each shipment, identifying the Product(s) shipped and, where
applicable, the serial number of each item, date code and production lot number. When more
than one package is shipped to a specified site, JWWH shall identify each package separately
in each corresponding document. ESLR reserves the right to change the shipment instructions or
documentation
	 
	 	 	JWWH shall provide with each shipment a Commercial Invoice, declaring the following;






	 	•	 	ESLR’s Product(s) Part number
	 
	 	•	 	ESLR’s Product Description
	 
	 	•	 	Unit price (by Product)
	 
	 	•	 	Quantity in shipment (by Product)
	 
	 	•	 	Extended Price (by Product)
	 
	 	•	 	“Country of Origin”
	 
	 	•	 	Harmonized Tariff Code
	 
	 	•	 	Package dimensions
	 
	 	•	 	Package Weight
	 
	 	•	 	Gross Weight Shipment
	 
	 	•	 	Value of Shipment (USD)






	2.0	 	Packaging details





To be agreed by the parties in good faith and in keeping with customary and usual shipping
standards and requirements.




	3.0	 	Labeling details





To be agreed by the parties in good faith and in keeping with customary and usual labeling
standards and requirements.
















 





EXHIBIT E




WARRANTIES BY JWWH









Evergreen Solar photovoltaic panels




Limited Warranty




Limited Warranty: Materials or Workmanship




Evergreen Solar warrants the modules to be free from defects in materials or workman-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 of ten (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 for a 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 modules 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 1000 W/m2, 25° C cell
temperature, and AM 1.5 light spectrum.



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 module 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
judgment 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 according to the latest Safety, Installation and Operation Manual
provided by Evergreen Solar or has in any way been tampered with or repaired by anyone other than
Evergreen Solar or its authorized agent.



The limited warranties do not cover costs associated with module 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 modules.



Any modules 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 modules or to any subsequent owners of the original
building or site where the modules 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 properly, 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 module, 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 may be, 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
limitations 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 module 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 module 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.



	 	 	 	 	 
	

	 	Worldwide Headquarters
	 	Customer Service — Americas and Asia
	 	Evergreen Solar Inc.
	 	Evergreen Solar Inc.
	 	138 Bartlett Street
	 	138 Bartlett Street
	 	Marlboro, MA 01752 USA
	 	Marlboro, MA 01752 USA
	 	T: +1 508.357.2221 | F: +1 508.229.0747
	 	T: +1 508.357.2221 | F: +1 508.229.0747
	www.evergreensolar.com

	 	info@evergreensolar.com
	 	sales@evergreensolar.com






		 	
	Valid from 1st September 2008/W_US_010908
	 	© 2008 Evergreen Solar, Inc.








 









 








EXHIBIT F




PURCHASED WAFER SPECIFICATIONS




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