exv10w1






EXHIBIT 10.1



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




RELATIONSHIP AGREEMENT




By and Among




Jiawei Solarchina Co., Ltd.,




Jiawei Solar (Wuhan) Co., Ltd.,




Evergreen Solar, Inc.




and




Evergreen Solar (Wuhan) Co., Ltd.




July 14, 2009




Evergreen Solar / Jiawei Confidential




 









 








RELATIONSHIP AGREEMENT




     This RELATIONSHIP AGREEMENT (“RA”) is entered into as of this 14th day of July 2009,
(the “Effective Date”) by and among the following persons:




JIAWEI SOLARCHINA CO., LTD., a Hong Kong company having its principal place of business at
Suite 1816, Star House, 3 Salisbury Road, Tsimshatsui, Kowloon, Hong Kong (“JWCN”);
and




JIAWEI SOLAR (WUHAN) CO., LTD., a Chinese company having its principal place of business at
No. 3, Road No. 1, Liufang Dongyi Industrial Park, Donghu Gaoxin District, Wuhan, Hubei
430205, China (“JWWH” and together with JWCN, “Jiawei”); and




EVERGREEN SOLAR, INC., a Delaware corporation having its principal place of business at 138
Bartlett Street, Marlboro, MA 01752-3016 USA (“ESLR”); and




EVERGREEN SOLAR (WUHAN), CO, LTD., a subsidiary of ESLR having its principal place of
business at No. 3, Road No. 1, Liufang Dongyi Industrial Park, Donghu Gaoxin District,
Wuhan, Hubei 430205 China (“EGWH” and together with ESLR, “Evergreen”).



     Each of ESLR, EGWH, JWCN and JWWH shall sometimes be individually referred to herein as a
“Party” and collectively referred to herein as the “Parties”.



WITNESSETH:




     WHEREAS, JWCN has (i) strong capabilities and a low-cost structure to manufacture photovoltaic
solar cells and panels in China and (ii) extensive expertise in the development and management of
manufacturing facilities and operations in China;



     WHEREAS, ESLR has (i) unique and proprietary wafer manufacturing technology that enables ESLR
to manufacture crystalline silicon wafers (“String Ribbon Wafers”) at significantly reduced
costs as compared to conventional crystalline silicon wafer manufacturing methods, (ii) unique and
proprietary manufacturing technology that enables ESLR to efficiently process String Ribbon Wafers
into photovoltaic cells and panels, (iii) a strong international brand and (iv) a significant
backlog of solar panel sales orders;



     WHEREAS, ESLR and JWCN desire to closely support each other in the expansion in China of
ESLR’s production of String Ribbon Wafers and JWCN’s production, through JWWH, of solar cells and
panels with an initial annual production goal of 100 megawatts (“MW”) and potential
expansion plans to reach 500 MW annually within 36 months after the date of this RA, depending on
the success of the initial expansion and market conditions;



     WHEREAS, ESLR and Jiawei desire that ESLR, EGWH JWWH and JWCN enter into a Manufacturing
Services Agreement (the “MSA”), which will provide for the manufacture by JWWH of
“EVERGREEN SOLAR”-branded solar power products for using a combination of String



 









 







Ribbon Wafers manufactured by EGWH, and ESLR and Jiawei know-how and manufacturing technology;
and



     WHEREAS, the Parties wish to enter into this RA which provides for the terms and conditions
pursuant to which (i) EGWH and JWWH will endeavor to develop their respective facilities in China
in furtherance of their obligations under this RA and the MSA, and (ii) Evergreen and Jiawei shall
support such activities as provided herein;



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



     1. DEFINITIONS



     The following terms not otherwise defined herein shall have the following meanings



          (a) “Affiliate” any corporation or other entity controlled by, controlling or under
common control with any other corporation or entity. For purposes of this definition, “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.




          (b) “ESLR IP” means ESLR’s proprietary manufacturing technology that enables the
conversion of multi-crystalline silicon into String Ribbon Wafers and the efficient processing of
String Ribbon Wafers into photovoltaic cells and panels.




          (c) “Jiawei IP” means Jiawei’s proprietary manufacturing technology that enables the
efficient processing of silicon crystalline wafers into photovoltaic cells and panels.




          (d) “MW” means megawatts peak power output.




          (e) “Products” means the “EVERGREEN SOLAR”-branded String Ribbon Products, which shall
include primarily solar panels, manufactured in the C & P Facilities (as defined below) using
String Ribbon Wafers manufactured in the Wafer Facility.




          (f) “Ribbon Wafer Technology” means any technology related to wafer production
techniques in which a thin sheet of crystalline silicon is grown directly from molten silicon. The
process is generally grown in a vertical orientation without the use of a foreign substrate on
which the silicon is formed, although the Ribbon Wafer Technology also includes processes that grow
in a horizontal orientation and/or are grown using a foreign substrate.




          (g) “String Ribbon Products” means solar cells and solar panels made using String
Ribbon Wafers. 




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          (h) “String Ribbon Wafers” means crystalline silicon wafers made using ESLR’s Ribbon
Wafer Technology.




     2. WAFER FACILITIES CONSTRUCTION AND OPERATION



          (a) The Wafer Facilities. The “Wafer Facilities” shall mean one or more wafer
manufacturing facilities to be established by EGWH that will produce String Ribbon Wafers using
ESLR’s Ribbon Wafer Technology, which wafers will be sold to JWWH at EGWH’s manufacturing cost for
processing in the C & P Facilities (as defined below). The “Initial Wafer Facility” will
be located in Wuhan, China at a leased facility on the Jiawei campus, and have all equipment,
personnel, facilities, etc. necessary to produce String Ribbon Wafers, including ESLR’s wafer
manufacturing furnaces known as the “Quad technology” to produce sufficient volume of String Ribbon
Wafers to ultimately produce approximately 100 MW of Products annually.





          (b) Wafer Facilities Operation. Once constructed and operational, the Wafer
Facilities shall be operated by EGWH in furtherance of the MSA.




          (c) Wafer Facilities Development and Operation Support. In connection with the
construction and operation of the Initial Wafer Facility and any expansion thereof agreed to by the
Parties, JWWH shall provide ESLR and EGWH with skills, knowledge and services of JWWH’s employees
and consultants to facilitate EGWH’s outfitting and commissioning of the Wafer Facilities, to the
extent as mutually agreed from time to time and in a manner consistent with the objectives of the
Parties.




          (d) Wafer Facilities Costs. Except as otherwise agreed by the Parties, JWWH shall
assume the responsibility for the costs of constructing the building to the standards set forth in
the lease to be negotiated and agreed to by the Parties (the “Lease”), up to a cost of US
$3 million. Pursuant to the Lease, EGWH will pay to JWWH a market based rent for the building and
assume responsibility for the costs of equipment and other internal manufacturing support for the
Initial Wafer Facility which are currently expected to be approximately US$40 million to $50
million. If construction costs are higher than expected ESLR shall secure and make available to the
project the additional funds necessary to complete the Initial Wafer Facility.




          (e) Wafer Facility Financing. To complete the construction and start-up of the
Initial Wafer Facility, ESLR has established EGWH, a wholly-owned subsidiary in Wuhan Province, in
which ESLR has agreed to invest the initial registered capital of US $17 million and intends to
convert EGWH into a Sino-foreign joint venture, with the Chinese government- providing
approximately 66% (US $33 million) in registered capital, all as is more fully described in the
agreement between ESLR and the Chinese party related to such investment (the “EGWH JV
Agreement”). JWCN and JWWH shall reasonably cooperate with ESLR to assist ESLR in obtaining
such financing. In exchange for a guarantee or other security to be given by JWCN or an Affiliate
of JWCN of ESLR’s obligations under the EGWH JV Agreement, ESLR agrees that it shall provide a
mortgage on the Initial Wafer Facility, including any equipment in such facility, to JWCN or JWWH
or both, if the Chinese party to the EGWH JV Agreement will allow it. In addition, ESLR shall
enter into an indemnification agreement for the benefit of JWCN or any Affiliate of



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JWCN that provides a guarantee, pledge or other security for ESLR’s obligations under the
agreement for EGWH.




     3. CELL AND PANEL FACILITIES CONSTRUCTION AND OPERATION.



          (a) Cell and Panel Facilities. The “C & P Facilities” shall mean one or more
manufacturing facilities to be established by JWWH having all equipment, personnel, facilities,
etc. necessary to manufacture approximately 100 MW of the String Ribbon solar power products
annually, using ESLR’s IP and Jiawei’s IP, as mutually agreed by the Parties.




          (b) Facilities Construction. JWWH, with ESLR’s support, shall design, construct and
commission the C& P Facilities to coincide in capacity and schedule to the extent possible with the
Initial Wafer Facility.




          (c) C & P Facilities Operation. Once constructed and operational, the C & P
Facilities shall be operated by JWWH in furtherance of the MSA and shall be used to exploit the
combined strengths of ESLR and JWCN, including the Licensed ESLR IP (as determined pursuant to
Section 7) and JWCN IP, and will:




               (i) manufacture Products, principally solar panels, using the Licensed ESLR IP and JWCN IP;



               (ii) conduct specific manufacturing cost reduction and continuous improvement activities
traditional in manufacturing facilities; and



               (iii) conduct all other activities necessary to the manufacture, test and shipment of
Products,


all as more particularly set forth in the MSA.




          (d) C & P Facilities Development and Operation Support. In connection with the
construction and operation of the C & P Facilities and any expansion thereof agreed to by the
Parties, ESLR shall provide JWCN with skills, knowledge and services of ESLR’s employees and
consultants to facilitate JWCN’s construction and commissioning of the C & P Facilities to meet the
expected quality requirements of cells and panels, as mutually agreed from time to time and in a
manner consistent with the objectives of the Parties.




          (e) C & P Facilities Costs. Except as otherwise agreed by the Parties, JWWH assumes
responsibility for the costs of constructing and operating the Initial C & P Facilities, which are
currently expected to be as high as US $50 million. If costs are higher than expected, JWCN shall
secure and make available to the project the additional funds necessary to complete the Initial C &
P Facilities.




          (f) C & P Facilities Financing. To complete the construction and start-up of the C &
P Facilities, JWCN intends to convert JWWH into a Sino-foreign joint venture, increasing the
current registered capital of JWWH from US $[****] million to US $[****] million (assuming an



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exchange rate of RMB 6.83 per dollar), with the Chinese party to the joint venture
contributing the additional US $[****] million in registered capital. ESLR shall reasonably cooperate
with Jiawei and JWWH to assist them in obtaining such financing.




     4. INTER-COMPANY CONSTRUCTION AND START-UP SUPPORT SERVICES.



     In connection with the construction of the Wafer Facilities and C & P Facilities and any
expansion thereof agreed to by the Parties, support services shall be provided by each of ESLR and
Jiawei or their respective Affiliates, pursuant to Sections 2(d) and 3(d) (the “Support
Services”) as follows:



          (a) Personnel Services. Each of ESLR’s and JWCN’s employees (or employee’s of their
Affiliates) may be used by the other Party for Support Services in a manner consistent with the
overall objectives set forth in this RA and the MSA and as reasonably agreed by the Parties from
time to time. Each Party will select appropriate personnel, based on a thorough consideration of
background and overall qualifications, to provide the Support Services agreed to by the Parties.
If the needs of either Party exceed the available personnel, the Parties shall use commercially
reasonable efforts to assist each other in hiring additional personnel using their respective
expertise and skill in hiring such individuals and will otherwise work together to develop a
practical solution to staffing concerns taking into account the risks and benefits to each.




          (b) Process. From time to time, ESLR and JWCN will discuss the actual Support
Services needs of the Parties and develop and agree to the Support Services actually required and
available. During the term of this RA, each Party will keep the other Party apprised as to its
expected needs for which it desires Support Services for the upcoming sixty (60) days, and the
Parties may rely on these forecasts to allocate their respective employees. If at any point either
ESLR or JWCN is not satisfied with the Support Services available or received, it must notify the
other Party in writing within ten (10) business days of the issue arising or such objection will be
deemed waived. If JWCN provides such a notice, the Parties will work in good faith to develop a
practical solution taking into account the availability of ESLR’s resources in China and
alternative sources for JWCN.




          (c) Reimbursement. ESLR and JWCN agree to reimburse each other for any Support
Services provided to the other Party pursuant to this Section 4 and to reimburse each other for
other start-up costs which shall be determined based on a start-up budget to be agreed upon by the
Parties. Reimbursements shall be determined and paid in accordance with Section 9. The cost of
support services payable shall be negotiated in greater detail by the Parties as services are
agreed to but shall generally represent an average of the wages and compensation paid to the
applicable ESLR and EGWH employees or consultants, on the one hand, and the average wages and
compensation paid to JWCN and JWWH employees or consultants performing substantially similar
duties, on the other hand, and vice versa.




          (d) Responsibility for Employees and Consultants. Each Party shall be responsible for
managing its own employees’ and consultants’ activities and paying such



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employees’ and consultants’ fees and salaries and social benefits, during the construction,
start-up and operation of the Wafer Facilities and C & P Facilities.




     5. WAFER FACILITY AND FACILITY EXPANSIONS



     The Parties shall cooperate to effect the expansion, in one or more additional phases, of
EGWH’s Wafer Facilities and JWWH’s C & P Facilities as market conditions warrant and the Parties
agree with the goal of reaching total annual capacity of approximately 500 MW by December 31, 2012.
From time to time as reasonably necessary the Parties shall meet to review market conditions and
the success of the activities undertaken pursuant to this RA to determine whether such expansion
would be mutually beneficial and to consider various strategic alternatives that may be mutually
advantageous to the Parties in light of the ongoing manufacturing relationship established pursuant
to this RA.



     6. MANUFACTURING SERVICES AGREEMENT



     Execution of the MSA. Each of the applicable parties named therein agree to execute
and deliver the MSA in the form attached hereto as Exhibit A, which agreement becomes
effective upon the satisfaction or waiver of the conditions to the Parties’ obligations set forth
in Section 13.



     7. LICENSE OF ESLR IP



     ESLR shall grant to JWCN or a JWCN Affiliate a royalty-free, perpetual and non-exclusive
license to use certain ESLR IP (the “Licensed ESLR IP”) in the manufacture of the Products
at the C & P Facilities. To determine which ESLR IP shall be included in the Licensed ESLR IP, the
Parties shall cooperate to jointly review and assess the ESLR IP and the JWCN IP and reasonably
determine the most advantageous technology for use in the Facilities. Upon the determination that
certain ESLR IP should be used in the C & P Facilities, the Parties shall prepare and enter into a
definitive License Agreement that provides the additional specific terms and conditions pursuant to
which the ESLR IP will be licensed to JWCN or one its Affiliates, which shall include, among other
customary and standard terms, JWCN’s right to enhance or improve the technology subject to JWCN’s
obligation to license such enhancements and improvements back to ESLR on a perpetual and
royalty-free basis, [****]. Once the Licensed ESLR IP has been identified, the Parties shall work
expeditiously to prepare and execute the definitive License Agreement contemplated by this Section
7.



     8. [****]



          (a) [****]. JWCN agrees that it and its Affiliates will forgo all direct or indirect
participation in [****] Activity outside of its relationship with ESLR, from the Effective Date
until [****] years after the end of the Term (as defined in Section 14(a)), provided, however, that
if termination of this RA is made by JWCN or JWWH based on a material breach of this RA or the MSA
by ESLR or EGWH, or if JWCN or JWWH comes to own the interest of ESLR in EWGH pursuant to the terms
of the MSA, then this restriction shall not apply to JWCN or JWWH. “[****] Activity” means,
anywhere in the world: [****].




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          (b) No Implied License. The expiration of the [****] obligations set forth in this
Section 8 shall not modify any other restrictions on the use of ESLR IP or provide any affirmative
right to use such intellectual property.




          (c) Separate Covenants. The covenants contained in Section 8 shall be construed as a
series of separate but identical covenants, one for each county, city, state and country of the
geographic scope. If, in any judicial proceeding, a court refuses to enforce any one or more of
such separate covenants (or any part thereof in terms of time or scope), then such unenforceable
covenant (or such part) shall be eliminated from this RA to the extent necessary to permit the
remaining separate covenants (or portions thereof) to be enforced.




     9. PAYMENTS



          (a) Support Service Fees.




               (i) Compensation Payable. The “Support Service Fees” means the direct costs
incurred in the fulfillment of Support Services by either ESLR or JWCN (or their Affiliates, as
applicable), including the actual cost of and amounts reasonably incurred by either of them and
properly allocated to the other for (i) all materials, wages, fringe benefits, direct materials
costs, utilities, equipment exclusively for use in these activities, consulting fees, third party
services arranged and managed by one Party, sundries, travel and subsistence in connection with
work completed, etc.



               (ii) Invoice and Payment. Each of ESLR and JWCN (or their Affiliates, as applicable)
shall invoice the other Party for Support Service Fees at the end of each calendar month. All
invoices shall provide reasonable detail regarding the employees and consultants involved, work
performed, the number of hours worked, the hourly rate charged per person and the basis for other
applicable Support Services Fees. Payments for Support Services Fees will be made within thirty
(30) days of receipt of monthly invoices.



          (b) Payment Terms; Records




               (i) Form of Payment. All payments to be made hereunder shall be made in Chinese RMB
or U.S. dollars, or any other currency as agreed by the Parties from time to time, and shall be
payable by check or wire transfer to such bank account as the applicable Party may designate. For
the purpose of calculating payment amounts requiring conversion, all Chinese RMB amounts (e.g.,
reimbursement amounts for Jiawei employee and consultant time) shall be converted to U.S. dollar
amounts and vice versa at the average currency exchange rate for the applicable period as published
by the Peoples Bank of China.



               (ii) 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 RA 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.



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               (iii) Records. Each Party shall keep and make available to each other Party adequate
books and records of account for the purpose of calculating all Support Services Fees payable
hereunder. Such books and records of account shall be maintained for the two (2) years following
the end of the calendar year to which each shall pertain.



     10. CONFIDENTIALITY



          (a) Confidentiality Obligations. 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 RA, any confidential business or technical information of any
other Party in its possession which is related to any confidential business or technical
proprietary information obtained from any 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 expansion plans, marketing plans, costs and pricing information, and all third party
information required to be maintained in confidence. Promptly following termination of this RA 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.




          (b) Information Excluded from Confidential Information. For purposes of this RA,
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 RA; (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 any 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.




          (c) Required Disclosure. No 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 a disclosing 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.




          (d) Publicity; Required Public Disclosure. The Parties agree not to disclose the
existence of this RA, nor any of its details or the existence of the relationship created by this
RA, to any third party without the specific, written consent of the other. Notwithstanding the
foregoing, either Party may disclose this RA 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



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significant corporate transaction such as a change of control or joint venture. If disclosure
of this RA 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 RA,
including without limitation making a confidential treatment request or seeking a protective order.




     11. NATURE OF RELATIONSHIP; RISK ALLOCATION.



          (a) Independent Contractors. The Parties are independent contractors and nothing in
this RA or the relationship will be construed to evidence or create an agency, partnership,
franchise, or similar relationship between them. Each Party shall remain the sole employer of its
employees and sole Party responsible for consultants engaged by such Party, and the other Party
shall not have or exercise any control over hiring or firing of the other Party’s employees or
engagement and termination of the other Party’s consultants.




          (b) Liability for Work Performed in the other Party’s Facilities. Each Party will be
liable for the actions of its employees and consultants working at the facilities of any other
Party in circumstances where any such employee or consultant fails to comply with customary and
reasonable standards of professionalism and care and with specific safety procedures imposed by
such other Party for employees and working in the facilities, which were provided in writing to
such employees or consultants prior to any alleged violation.




          (c) Allocation of Liability for Harm to Employees and Consultants. Each Party will
indemnify and hold harmless the other Party from and against all actions, proceedings, liabilities,
claims, damages, costs and expenses or other detriment arising from claims by their respective
employees or consultants except to the extent such liabilities, claims, damages or other detriment
involves bodily injury or property damage suffered by employees or consultants as a result of
negligence, bad faith or willful misconduct of the other Party, its employees, officer, directors,
advisors, consultants or agents.




          (d) Insurance. Each Party shall obtain and maintain in force all insurance policies
related to general business operations of the sort to be conducted by such Party, including
liability insurance, product liability insurance, workers’ compensation and similar insurance
policies in such amounts and forms as are reasonably commercially available for similar operations
and reasonably acceptable to the other Party and as required to insure the other Party’s employees
and consultants working at the insuring Party’s facilities. Any liability arising from injury,
death or illness of any of the personnel of ESLR or JWWH in the course of providing the Support
Services shall be covered under the terms of the applicable employer’s liability insurance and/or
workman’s compensation policies of the Party whose employee has been so affected.




     12. REPRESENTATIONS AND WARRANTIES



     Each Party hereby represents and warrants to the other Party as of the Effective Date that:



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          (a) such Party is a corporation duly organized, validly existing and in good standing under
the laws of the state or jurisdiction in which such Party is incorporated, and such Party has full
right and authority to enter into this RA and to undertake the obligations and grant the licenses
and other rights, without payment to a third party, undertaken and granted by such Party as herein
described;




          (b) this RA has been duly authorized by all requisite corporate action, and when executed and
delivered will become a valid and binding contract of such Party enforceable against such Party in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other law affecting creditors’ rights generally from time to time if effect, and to general
principles of equity;




          (c) the execution, delivery and performance of this RA does not conflict with any other,
contract, instrument or understanding, oral or written, to which such Party is a party, or by which
it is bound, nor will it violate any law applicable to such Party; and




          (d) all necessary consents, approvals and authorizations of all regulatory and governmental
authorities and other persons required to be obtained by such Party in connection with the
execution and delivery of this RA and the performance of such Party’s obligations hereunder have
been obtained, except for the ESLR Export License (as defined below) and the approval of the
conversion of EWGH and JWWH into Sino-foreign joint ventures in connection with the anticipated
investment to be received by both of them.




     13. CONDITIONS TO THE PARTIES’ OBLIGATIONS



          (a) The obligations of ESLR and EGWH pursuant to this RA (other than the obligations set forth
pursuant to Sections 2(e), 9 (as such Section applies to payments arising out of services provided
by Jiawei pursuant to Section 4), 10, 11 and 16) are subject to the satisfaction or waiver of the
following conditions:




               (i) Each of the representations and warranties of Jiawei contained in this RA shall continue
to be true and correct in all material respects;



               (ii) ESLR shall have obtained an export license from the United States Department of Commerce
for sufficient quantities of filament to operate the Initial Wafer Facility at full capacity (the
“ESLR Export License”) or shall have made other arrangements to supply String Ribbon Wafers
to Jiawei, which arrangements it will pursue diligently and in good faith in the event the ESLR
Export License is not granted or is delayed;



               (iii) Both EGWH and JWWH shall have received their respective joint venture licenses and
entered into binding agreements with the Chinese party investing in each of the joint ventures,
provided that if such investment is not ultimately made notwithstanding the binding agreements, the
parties will confer and decide on how to address that circumstance; and



               (iv) The Parties’ reaching agreement on the Lease and other material documents and schedules
that are required to effect the purposes of this RA and the MSA.



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          (b) The obligations of Jiawei and JWWH pursuant to this RA (other than the obligations set
forth pursuant to Sections 3(f), 9 (as such Section applies to payments arising out of services
provided by ESLR pursuant to Section 4), 10, 11 and 16) are subject to the satisfaction or waiver
of the following conditions:




               (i) Each of the representations and warranties of ESLR contained in this RA shall continue to
be true and correct in all material respects;



               (ii) ESLR shall have obtained an export license from the United States Department of Commerce
for sufficient quantities of filament to operate the Initial Wafer Facility at full capacity (the
“ESLR Export License”) or shall have made other arrangements to supply String Ribbon Wafers
to Jiawei, which arrangements it will pursue diligently and in good faith in the event the ESLR
Export License is not granted or is delayed;



               (iii) Both EGWH and JWWH shall have received their respective joint venture licenses and
entered into binding agreements with the Chinese party investing in each of the joint ventures,
provided that if such investment is not ultimately made notwithstanding the binding agreements, the
parties will confer and decide on how to address that circumstance; and



               (iv) The Parties’ reaching agreement on the Lease and other material documents and schedules
that are required to effect the purposes of this RA and the MSA.



     14. TERM AND TERMINATION



          (a) Term. The term of this RA shall commence upon the waiver or satisfaction of the
conditions set forth in Section 13, and it shall continue in force and effect for as long as the
MSA remains in effect, including any extensions of the MSA’s term, unless sooner terminated
according to its provisions. The term, as may be extended, is referred to herein as the
“Term”.




          (b) Termination.




               (i) This RA may be terminated prior to expiration of the Term by either ESLR or Jiawei, if the
other Party or its joint venture (either EWGH or JWWH) materially breaches any term or condition of
this RA or the MSA (a “Material Breach”) and fails to cure such Material Breach within
thirty (30) days after receiving written notice (“Notice of Breach”) of the Material
Breach. If the nature of the cure for any Material Breach is such that it is reasonably expected
to take longer than thirty (30) days to cure, the breaching Party shall be given an additional
thirty (30) days to cure such Material Breach, provided the efforts to cure are commenced during
the original thirty (30) day period and are diligently carried out thereafter.



               (ii) In the event the Material Breach is not cured within the periods specified above after
delivery of the notice, the non-breaching Party may terminate this RA 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 RA. Termination of
this RA shall not release any Party from any obligation accrued prior to the date of such
termination or from any obligations continuing beyond the termination of this RA. Specifically,
(i) each Party will remain obligated to make any payments due or which become due



11









 







with respect to the Term, and (ii) the Parties will remain obligated for any prior or further
breaches of the [****] (Section 8) or confidentiality provisions (Section 10) of this RA.



     15. EXCLUSIVITY; RIGHT OF FIRST OFFER



          (a) ESLR and JWCN are committed to working together to reach total capacity in China of
approximately 500 MW by the end of 2012 if possible in the context of market conditions and the
demand for the Products. If ESLR wishes to expand its manufacturing capacity in China beyond
[****], then it shall offer JWCN the additional capacity of String Ribbon Wafers (up to [****] MW
additional capacity) to be manufactured by JWWH into Products on the terms and conditions set forth
in the MSA. Such offer shall be made far enough in advance of the need for ESLR’s need for
additional Products to reasonably enable JWCN to expand the capacity of JWWH or, if more
advantageous to both ESLR and JWCN, of another JWCN Affiliate. If JWCN does not accept such
offered capacity, then ESLR is free to expand in China, either independently or with other parties
up to the capacity offered and refused by JWCN, provided the terms offered to any such third party
shall not be more favorable to such third party than those offered to JWCN.




          (b) If prior to December 31, 2012, ESLR enters into a definitive agreement relating to the
expansion of ESLR’s manufacturing of String Ribbon Wafers in any of [****], ESLR shall within
[****] of entering into such agreement, complete the purchase of all of the shares of EGWH held by
Hubei Technology Investment Co., LTD. pursuant to the Equity Transfer Agreement that ESLR is
expected to enter into on or about the date of this RA in connection with the EGWH JV Agreement.




          (c) This exclusivity provision, providing JWCN with a right of first offer as set forth in
Section 15(a) and requiring ESLR to purchase EGWH shares as set forth in Section 15(b), will expire
on the earlier of (a) ESLR and Jiawei reaching combined capacity of [****] MW beyond the Initial
Wafer Facilities, or (b) after Jiawei has refused timely proposed expansions which, together with
any expansions proposed and actually undertaken, would have increased the capacity of the two
companies to [****] MW of additional capacity beyond [****].




     16. GENERAL



          (a) 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
obligations hereunder. None of the Parties 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 or approval. Each Party shall comply with
each other Party’s applicable Supplier Code of Conduct or comparable written requirements and abide
by all of each 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



12









 






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.




          (b) Notices. All notices and other communications from one Party to any other Party
hereunder shall be in writing and either personally delivered or sent via certified mail, postage
prepaid and return receipt requested to contact persons listed 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 RA unless and until acknowledged in
writing or by non-automated reply email or by reply fax, which the receiving Party shall promptly
provide, the notice delivered by such means being effective as of the date of actual receipt.




     Notices to ESLR or EGWH shall be delivered as follows:



	 	 	 
	Attention:

	 	Michael El-Hillow, Chief Financial Officer
	Address:

	 	Evergreen Solar, Inc.

138 Bartlett Street

Marlboro, MA

01752-3016 USA
	Fax:

	 	+1 (508) 229-7722
	Email:

	 	melhillow@evegreensolar.com
	Tel:

	 	+1 (508) 251-3244






     and Notices to JWCN or JWWH shall be delivered as follows:



	 	 	 
	Attention:

	 	Mr. Kong-Qi Ding

Jiawei Solar (Wuhan) Co., Ltd.

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

Donghu Gaoxin District

Wuhan, Hubei 430205, China

	Fax:

	 	86-27-8798-6165
	Email:

	 	dingkongqi@solarchina.com
	Tel:

	 	86-27-8798-6168






          (c) Force Majeure. No Party shall be deemed to be in default of this RA 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. Any Party asserting force majeure as an excuse 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 Parties hereto were timely notified of the likelihood or actual




13









 







occurrence which would justify such an assertion, so that other prudent precautions could be
contemplated.




          (d) Waiver of Terms Herein; Severability.




               (i) Failure of any Party to enforce any term or condition of this RA 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 RA.
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.



               (ii) If any provision of this RA is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will not be affected or impaired
thereby.



          (e) Governing Law. The construction and performance of this RA shall be governed by
laws and regulations of the People’s Republic of China.




          (f) Dispute Resolution. The Parties shall attempt in good faith to resolve any dispute
arising out of this RA by the following procedures:




               (i) Any Party may give the other written notice of any dispute not resolved in the normal
course of business. Appropriate executives of the Parties involved at levels one step above the
project personnel who have previously been 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.



               (ii) 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.



               (iii) 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 the government investment entity no longer owns an
interest in EGWH after which the place of Arbitration shall be Geneva, Switzerland or another
mutually agreeable location.



               (iv) 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



14









 




and irreparable harm. The provisions of this Section 16(f) and any determination or award
made by the AIACOC hereunder shall be enforceable in any court of competent jurisdiction.




          (g) Assignment; Successors and Assigns. Neither Party may assign this RA without the
prior written consent of each other Party, whether by sale, merger and operation of law or
otherwise, except that each Party may assign this RA to a successor in connection with the transfer
of all or substantially all of the business or assets of such Party to which this RA relates.
Subject to the foregoing sentence, this RA will be binding upon and inure to the benefit of the
Parties hereto, their successors and assigns.




          (h) Third-Party Beneficiaries. This RA 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.




          (i) Language. This RA 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 RA shall be in the
English language.




          (j) No Strict Construction. The Parties have participated jointly in the negotiation
and drafting of this RA. In the event an ambiguity or question of intent or interpretation arises,
this RA 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 RA.




          (k) Entire RA; Integration; Modification.




               (i) This RA and Exhibit A constitute a complete and exclusive final written expression
of all the terms of RA among the Parties. It supersedes all prior agreements, understandings and
negotiations concerning the matters specified herein. No provisions of this RA can be modified
except by a written amendment signed by the Parties.



               (ii) Any representations, promises, warranties or statements made by any Party that differ in
any way from the terms of this RA shall not be binding on any Party unless made in writing and
signed by a duly authorized representative of the applicable Party.



          (l) Headings. Headings contained in this RA are for convenience only and shall not be
used in construing any of the terms of this RA.




          (m) Counterparts. This RA 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.




[signature page follows]




15









 








     IN WITNESS WHEREOF, ESLR, EGWH, JWCN and JWWH, by and through their authorized
representatives, acknowledge that they have read this RA, including Exhibit A attached
hereto, understand them and agree to be bound by their terms and conditions effective as of the
Effective Date.



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

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Date:
	 	 	 	 	 	 	 	Date:	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





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






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