exv10w41






Exhibit 10.41



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.




 





SUPPLY AGREEMENT




EVERGREEN SOLAR, INC.




and




DC CHEMICAL CO., LTD.




Dated as of January 30, 2008




 





 









 





Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I SUPPLY OF PRODUCT
	 	 	1	 
	 
	Section 1.1 Quantity and Price of Product
	 	 	1	 
	Section 1.2 Delivery Start Date; Monthly Quantity
	 	 	1	 
	Section 1.3 Quantity Variance
	 	 	2	 
	Section 1.4 Disposition of Product Sold
	 	 	2	 
	Section 1.5 Delivery Schedule
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II PRICE ADJUSTMENT AND ADVANCE PAYMENT
	 	 	3	 
	 
	Section 2.1 Price Adjustment
	 	 	3	 
	Section 2.2 Threshold
	 	 	4	 
	Section 2.3 Non-Refundable Advance Payment
	 	 	4	 
	Section 2.4 Refund of Advance Payment
	 	 	4	 
	 
	 	 	 	 
	ARTICLE III DELIVERY AND SHIPPING
	 	 	5	 
	 
	Section 3.1 Delivery
	 	 	5	 
	 
	 	 	 	 
	ARTICLE IV PAYMENTS
	 	 	5	 
	 
	Section 4.1 Payments
	 	 	5	 
	Section 4.2 Taxes
	 	 	6	 
	Section 4.3 Payment Terms in the Event of Non-Payment
	 	 	6	 
	 
	 	 	 	 
	ARTICLE V SPECIFICATIONS; INSPECTION OF PRODUCT; PLANT
	 	 	6	 
	 
	Section 5.1 Specifications
	 	 	6	 
	Section 5.2 Inspection of Product
	 	 	6	 
	Section 5.3 Plant
	 	 	6	 
	 
	 	 	 	 
	ARTICLE VI CONFIDENTIAL INFORMATION
	 	 	7	 
	 
	Section 6.1 Confidential Information
	 	 	7	 
	Section 6.2 Restrictions On Use and Disclosure
	 	 	7	 
	Section 6.3 Exclusions
	 	 	7	 
	Section 6.4 Compelled Disclosure
	 	 	7	 
	Section 6.5 Press Releases
	 	 	8	 
	Section 6.6 Confidentiality of Agreement
	 	 	8	 
	 
	 	 	 	 
	ARTICLE VII WARRANTIES; DISCLAIMER; REMEDIES
	 	 	8	 
	 
	Section 7.1 Disclaimer of Warranties
	 	 	8	 
	Section 7.2 Title
	 	 	8	 
	Section 7.3 Damaged or Defective Product
	 	 	8	 
	Section 7.4 Failure to Purchase by Buyer
	 	 	9	 
	Section 7.5 Failure to Supply by DCC
	 	 	9	 






 i 




 









 






Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 7.6 Limitation of Liability
	 	 	9	 
	Section 7.7 Indemnity
	 	 	9	 
	 
	 	 	 	 
	ARTICLE VIII TERM AND TERMINATION
	 	 	10	 
	 
	Section 8.1 Term
	 	 	10	 
	Section 8.2 Termination
	 	 	10	 
	Section 8.3 Effect of Termination
	 	 	11	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	11	 
	 
	Section 9.1 Force Majeure
	 	 	11	 
	Section 9.2 Governmental Approvals
	 	 	11	 
	Section 9.3 Hierarchy among this Agreement and Purchase Orders
	 	 	11	 
	Section 9.4 Independent Contractors
	 	 	12	 
	Section 9.5 Notice
	 	 	12	 
	Section 9.6 Amendment; No Waiver
	 	 	12	 
	Section 9.7 Governing Law; Jurisdiction
	 	 	12	 
	Section 9.8 Entire Agreement
	 	 	13	 
	Section 9.9 Assignment
	 	 	13	 
	Section 9.10 Non-Exclusive Agreement
	 	 	13	 
	Section 9.11 Successors
	 	 	14	 
	Section 9.12 Headings
	 	 	14	 
	Section 9.13 Word Meanings
	 	 	14	 
	Section 9.14 Language
	 	 	14	 
	Section 9.15 Counterparts
	 	 	14	 






 ii 




 









 





SUPPLY AGREEMENT




     THIS SUPPLY AGREEMENT (this “Agreement”) is entered into as of January 302008, (the
“Effective Date”), by and between DC Chemical Co., Ltd., a corporation organized under the
laws of Korea, having its registered office at Oriental Chemical Building, 50, Sogong-Dong,
Jung-Gu, Seoul, 100-718, Korea (“DCC”), and Evergreen Solar, Inc., a company organized
under the laws of Delaware, having its principal place of business at 138 Bartlett Street,
Marlboro, Massachusetts 01752, U.S.A.(“Buyer”). Each of DCC and Buyer is referred to
herein individually as a “Party” and collectively as the “Parties.”



RECITALS




     WHEREAS, DCC will build and operate a production facility (“Plant”) for the
manufacture of poly-crystalline silicon made from the decomposition of chlorosilane in reactors
(the “Product”);



     WHEREAS, Buyer manufactures poly-crystalline wafers for use in the production of solar
modules; and



     WHEREAS, DCC desires to sell, and Buyer desires to purchase, Products pursuant to the terms
and conditions of this Agreement.



     NOW, THEREFORE, the Parties agree as follows:



ARTICLE I




SUPPLY OF PRODUCT




     Section 1.1 Quantity and Price of Product. Subject to adjustments pursuant to
Sections 1.2, 1.3 and Article II, DCC hereby agrees to sell and Deliver to Buyer, and Buyer hereby
agrees to purchase and receive from DCC, the following quantities of Product for each of the
periods (with respect to each calendar year, the quantity indicated below for such calendar year,
the “Original Annual Quantity”) and at the respective prices (as may be adjusted pursuant
to Sections 2.1 and 2.2) set forth below:



	 	 	 	 	 
	Calendar Year	 	Quantity	 	Price
	2009

	 	[****] kgs
	 	US$[****]/kg
	2010
	 	[****] kgs
	 	US$[****]/kg
	2011
	 	[****] kgs
	 	US$[****]/kg
	2012
	 	[****] kgs
	 	US$[****]/kg
	2013
	 	[****] kgs
	 	US$[****]/kg
	2014
	 	[****] kgs
	 	US$[****]/kg
	2015
	 	[****] kgs
	 	US$[****]/kg
	Total
	 	[****] kgs
	 	US$ [****]






     Section 1.2 Delivery Start Date; Monthly Quantity. Subject to adjustment in
accordance with Section 1.3, for each calendar year set forth in Section 1.1, DCC shall sell and
Deliver, and Buyer shall receive and purchase, the Original Annual Quantity (or, if the



1









 







Original Annual Quantity has been adjusted pursuant to Section 1.3 below, the Adjusted Annual
Quantity (as defined below)) for such calendar year in accordance with the delivery schedule agreed
to by the Parties pursuant to Section 1.5. The monthly quantities to be Delivered, before giving
effect to any adjustments pursuant to Section 1.3, shall herein be referred to as “Original
Monthly Quantity” or “Original Monthly Quantities,” as the context shall require.



     Section 1.3 Quantity Variance.




     (a) With respect to each Original Annual Quantity, DCC may, at its sole and absolute
discretion, increase or decrease the amount of such Original Annual Quantity by an amount
which is no greater than [****]% of such Original Annual Quantity by providing advanced
written notice (the “Notice of Adjustment”) to Buyer. Any Original Annual Quantity
which has been so adjusted shall become the “Adjusted Annual Quantity”. The Notice
of Adjustment shall become effective on the date which is [****] months after the date of
such Notice of Adjustment. Upon effectiveness of such Notice of Adjustment, that portion of
the Adjusted Annual Quantity remaining to be Delivered as of such effective date shall be
equitably adjusted by mutual agreement of the parties, provided however, in the absence of
mutual agreement, that portion of the Adjusted Annual Quantity then remaining to be
delivered shall be equally divided among the calendar months remaining in such calendar
year. Any Original Monthly Quantity which has been so adjusted shall become the
“Adjusted Monthly Quantity”.




     (b) If the actual quantity of Products Delivered is less than [****]% of the Original
Monthly Quantity or Adjusted Monthly Quantity, as applicable, then remedial measures in
respect of such deficiency shall be discussed between DCC and Buyer pursuant to which DCC
and Buyer shall find an amicable solution to such deficiency, including rolling over the
deficient quantity to one or more subsequent Deliveries. In no event shall such deficiency
be deemed to be a default under this Agreement, provided however, DCC shall have exerted
[****] efforts to Deliver the Original Monthly Quantity or Adjusted Monthly Quantity, as
applicable.



     Section 1.4 Disposition of Product Sold. Buyer shall utilize the Product for the
manufacturing purposes of itself and Buyer shall not re-sell the Product, or become a re-seller or
distributor of the Product sold to Buyer under this Agreement.



     Section 1.5 Delivery Schedule. At least [****] days prior to the beginning of each
calendar year, the Parties shall discuss and consult with each other as to timing and quantities of
Original Monthly Quantities to be Delivered during such calendar year. Absent agreement by the
Parties to the contrary, DCC shall Deliver to Buyer the applicable Original Annual Quantity over
substantially equal batches during each month of such calendar year, pursuant to a monthly purchase
order to be Delivered by Buyer to DCC at least [****] days prior to the beginning of such month,
which purchase order shall specify the agreed Original Monthly Quantity to be Delivered in such
month. The schedule for Deliveries of Adjusted Annual Quantities shall be determined in accordance
with Section 1.3(a).



2









 





ARTICLE II




PRICE ADJUSTMENT AND ADVANCE PAYMENT




     Section 2.1 Price Adjustment. The price per kilogram of Product sold during any
calendar year (the “Relevant Year”) shall be subject to adjustment in accordance with the
following:



     If the absolute value of “(A – B)/B” is equal to or greater than “[****]%”, then the new price
per kilogram of Product for the Relevant Year (the “Adjusted Price”) shall equal C.



     Where:



     A = [****];



     B = [****];



     C = [****];



     [****]



     For the avoidance of doubt, DCC shall calculate and determine whether the price for Products
for a Relevant Year is required to be adjusted in accordance with this Section 2.1 promptly as
practicable, and notify Buyer in writing of any adjustment to the price, if any. In the event that
a determination has been made that an adjustment is required to be made to the price in respect of
any Relevant Year, such adjustment shall apply to any Original Monthly Quantities or Adjusted
Monthly Quantities, as applicable, remaining to be Delivered during such calendar year, but not to
any Original Monthly Quantities or Adjusted Monthly Quantities, as applicable, already Delivered in
respect of such calendar year nor to the Original Annual Quantity of any other calendar year.



     Section 2.2 Threshold. If the Adjusted Price for any of (i) the [****] or
calendar years is less than [****]% or greater than [****]% or (ii) the [****] calendar years is
less than [****]% or greater than [****]%, in each case, of the respective prices for such years
set forth in the table in Section 1.1, then the actual amount of the adjustment to be applied to
determine the Adjusted Price for such calendar year shall be discussed between DCC and Buyer
pursuant to which DCC and Buyer shall agree on a mutually acceptable adjustment amount.



     Section 2.3 Advance Payment. Buyer agrees to make an interest free, and
non-refundable (except as set forth in Section 2.4) advance payment to DCC (paid to an account
designated by DCC) in the aggregate amount of US$36,540,000 (the “Advance Payment”), in
accordance with the schedule set forth below:



	 	 	 
	Date	 	Amount
	Within 1 month after contract date
	 	US$10.962,000
	Within 3 months after the 1st installment
	 	US$[****]
	December 1, 2008
	 	US$[****]
	Total
	 	US$36,540,000






3









 







In respect of each payment from Buyer to DCC, Buyer shall be entitled to an Advance
Payment Credit.




“Advance Payment Credit” in respect of any payment shall mean the number equal to the
product of (i) the Pro Rata Percentage and (ii) the amount of such payment, to the
extent that the Advance Payment Balance at the time of calculation is greater than such
number, and if the Advance Payment Balance is less than such number, the amount of the
Advance Payment Balance.




“Pro Rata Percentage” shall equal the fraction, the numerator of which is equal to the
amount of the Advance Payment and the denominator of which is equal to the aggregate
purchase price for all of the Original Annual Quantities set forth in Section 1.1.




“Advance Payment Balance” as of a certain time, shall mean a number which is equal to
(i) the amount of the Advance Payment less (ii) the aggregate amount of all Advance Payment
Credits prior to such time.



     Section 2.4 Refund of Advance Payment. Upon termination of this Agreement pursuant to
[****] DCC shall refund to Buyer within [****] days of the effective date of such termination the Advance
Payment Balance as of the date of such refund, less any amounts due and payable by Buyer to DCC
which are outstanding as of the date of such refund.



ARTICLE III




DELIVERY AND SHIPPING




     Section 3.1 Delivery. The Product shall be delivered to Buyer [****] (Incoterms
2000); accordingly, the availability of an Original Monthly Quantity or Adjusted Monthly Quantity,
as applicable, for receipt by Buyer at the Plant shall constitute “Delivery” for the
purposes of this Agreement.



ARTICLE IV




PAYMENTS




     Section 4.1 Payments. Contemporaneously with each Delivery under this Agreement, DCC
shall issue an invoice to Buyer for the Products being Delivered. Invoices will reflect the
purchase price for the applicable delivery after having given effect to the adjustment to



4









 







such purchase price pursuant to Section 2.3 and may be sent by any normally reliable means,
including electronically, facsimile, hand delivery or other methods. Buyer shall pay all amounts
due under any invoice submitted by DCC within [****] days from the date of such Delivery. All
payments made to DCC shall be made in cash by wire transfer to an account specified by DCC. All
such payments shall be free and clear of all withholdings, taxes, set-off, encumbrances of any
kind. Late payment interest of [****]%) per annum may be assessed by DCC on payment past due from
the payment due date to the date payment is received.



     This Agreement is a [****] such that Buyer is [****]



     Section 4.2 Taxes. DCC shall be responsible for all sales, use, excise, value-added
or other taxes, tariffs, duties or assessments, including interest and penalties, levied or imposed
at any time by any governmental authority arising from or relating to the supply of Product. Buyer
shall be responsible for all sales, use, excise, value-added or other taxes, tariffs, duties or
assessments, including interest and penalties, levied or imposed at any time by any governmental
authority arising from or relating to purchase or use of the Product.



     Section 4.3 Payment Terms in the Event of Non-Payment. In the event that Buyer does
not pay for Product as required hereunder, in addition to DCC’s other remedies hereunder, including
termination as permitted in Article VIII hereof, DCC shall be entitled, notwithstanding any other
provisions in this Agreement to the contrary, to cease delivery of any further Product until any
arrearages are cured, including applicable late payment charges, and/or require payment of all
future orders and shipments [****]



ARTICLE V




SPECIFICATIONS; INSPECTION OF PRODUCT; PLANT




     Section 5.1 Specifications. All of the Product to be supplied by DCC shall meet the
specifications set forth in Schedule 1, which may be amended from time to time upon mutual
agreement (the “Specifications”).



     Section 5.2 Inspection of Product. Unless Buyer notifies DCC in writing within [****]
days of Delivery that any Product does not conform to the Specification, such shipment shall be
deemed to conform to the Specifications. If Buyer desires to submit a claim that any Product did
not meet the Specifications at the time of Delivery, Buyer shall submit documentary evidence of any
third party inspection at the time of Delivery as evidence of such claim, whereupon DCC shall have
the right to undertake its own inspection, including, of samples of Products at the time of
Delivery. Any disputes as to whether certain Products meet the Specification shall be settled in
accordance with Section 9.7. Buyer’s failure to notify DCC within the time period set forth in the
first sentence of this paragraph with respect to any Products Delivered shall irrevocably release
DCC from any obligations or liabilities for defective Product, including but not limited to any
warranties under Section 7.3, with regard to such Products (including for any latent defects, if
any).



5









 





     Section 5.3. Plant. Until completion of the Plant, Buyer shall have the right to
request periodic visits to the Plant while the Plant is being constructed and DCC and Buyer shall
discuss in good faith the timing and frequency of such visits, it being agreed that such visits
shall take place no sooner than one month from the date of such request, during normal business
hours and not unreasonably disrupt the ordinary course of business and construction of the Plant



ARTICLE VI




CONFIDENTIAL INFORMATION




     Section 6.1 Confidential Information. Any information provided by one Party to the
other Party which is confidential in nature shall be deemed confidential information (the
“Confidential Information”).



     Section 6.2 Restrictions On Use and Disclosure. Once any Confidential Information is
provided by one Party (the “Disclosing Party”) to the other Party (the “Receiving
Party”), the Receiving Party shall, and shall cause its respective directors, officers,
principals, members, employees, consultants, contractors, agents, advisors and representatives
(collectively, “Representatives”) (i) not to deliver, divulge, disclose or
communicate, or permit to be delivered, divulged, disclosed or communicated, to any third party,
directly or indirectly, any Confidential Information, (ii) to disclose or give access to,
or permit to be disclosed or given access to, any such Confidential Information, other than those
of its Representatives that have a need to know such Confidential Information for the purposes of
performing the Receiving Party’s obligations under this Agreement, (iii) to ensure that
such Representatives keep the Confidential Information confidential, and (iv) to take all
other reasonably necessary or advisable actions to preserve the confidentiality and security of the
Confidential Information.



     Section 6.3 Exclusions. The foregoing restrictions contained in Section 6.2 shall not
apply to Confidential Information that (i) is or becomes generally known to the public
through no fault of the Receiving Party or its Representatives including without limitation any
acts or omissions of the Receiving Party or its Representatives in violation of this Agreement,
(ii) is disclosed to the Receiving Party without obligation of confidentiality by a third
person who has a right to make such disclosure and the Receiving Party is able to document the
independent source, (iii) was in the possession of the Receiving Party at or prior to the
time of receipt from the Disclosing Party, as evidenced by contemporaneous, corroborated written
records, without being subject to another obligation of confidentiality or (iv) is independently
developed by the Receiving Party without reference to the Disclosing Party’s Confidential
Information.



     Section 6.4 Compelled Disclosure. If the Receiving Party or its Representatives is
required to disclose any Confidential Information otherwise than in accordance with this Agreement
by government authority or pursuant to any applicable laws, regulations, or



6









 







judicial orders, the Receiving Party shall provide the Disclosing Party with prompt prior
written notice of such request or requirement prior to disclosing the Confidential Information.



     Section 6.5 Press Releases. Except as permitted under this Article VI, neither Party
shall issue any press release or make any public announcement which includes or otherwise uses the
name of the other Party, or relates to this Agreement or to the performance hereunder in any public
statement or document, without the prior review and written approval of the other Party, which
approval shall not be unreasonably withheld or delayed. Any such review shall be completed as soon
as practicable, but in any event within five (5) days of receipt of the proposed statement or
document. Notwithstanding the foregoing, the Parties shall endeavor in good faith to agree upon
and issue a joint press release announcing the relationship between the parties promptly after the
date hereof.



     Section 6.6 Confidentiality of Agreement. The terms and conditions of this Agreement,
shall be treated as Confidential Information and shall not be disclosed by either Party to any
third party, except (i) with the Party’s consent, which consent shall not be unreasonably
withheld or delayed, (ii) as may be required by law or regulation or rules of a nationally
recognized stock exchange, (iii) to legal counsel, accountants, investors, lenders and
financial advisors, (iv) in connection with any action or claim to enforce its rights
hereunder or in any related transaction and (v) as reasonably required in connection with a
bona fide financing or sale transaction in which all or substantially all of a Party’s business,
assets or equity capital is proposed to be sold.



ARTICLE VII




WARRANTIES; DISCLAIMER; REMEDIES




     Section 7.1 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS ARTICLE VII, DCC
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR
USAGE OF TRADE.



     Section 7.2 Title. DCC warrants that it has good title to the Products sold to Buyer
hereunder and the right to sell them to Buyer free of any security interest, lien or any other
encumbrance whatsoever.



     Section 7.3 Damaged or Defective Product. DCC warrants that the Products Delivered
shall conform to the Specifications. In the event of Delivery of defective Products, upon notice
by Buyer to DCC pursuant to Section 5.2 above, DCC and Buyer shall discuss the appropriate method
of curing such defect, pursuant to which DCC and Buyer shall find an amicable solution to such
damage or defect, provided however, in the absence of agreement to the contrary, Buyer agrees [****]



7









 







provided however, DCC shall first allocate Products to Buyer under
option (i) above in a manner so that Buyer is treated no less favorably than if DCC had
allocated all available Products to all of its customers on a pro rata and equitable basis after
also taking into account DCC’s existing contractual obligations to its customers.



     Section 7.4 Failure to Purchase by Buyer. If Buyer fails to take Delivery of or
purchase [****] the Original Annual Quantity or Adjusted Annual Quantity, as applicable, for any
calendar year for any reason whatsoever, DCC shall be entitled to the remedies set forth in Section
4.1, provided that failure by Buyer to purchase [****] such Original Annual Quantity or Adjusted
Annual Quantity, as applicable, made available for Delivery shall not constitute a breach of this
Agreement if DCC shall have received [****] in respect of such applicable Original Annual Quantity
or Adjusted Annual Quantity, as applicable, in accordance with the [****] applicable for such
Original Annual Quantity or Adjusted Annual Quantity, as applicable.



     Section 7.5 Failure to Supply by DCC. If DCC is unable, after exerting commercially
reasonable efforts, to sell or Deliver all or any portion of the first [****] kilograms of the
aggregate amount of the Original Annual Quantities set forth in Section 1.1 (after giving effect to
Section adjustment pursuant to Section 1.3), Buyer’s sole remedy pursuant to this Agreement shall
be to terminate this Agreement.



     Section 7.6 Limitation of Liability. BUYER’S REMEDIES IN RESPECT OF ANY CLAIM
RELATING TO DEFECTIVE PRODUCTS SHALL BE LIMITED BY AND SUBJECT TO SECTION 7.3. IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF
PROFITS, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES,
WHETHER ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE RESULTING FROM OR RELATED TO
THIS AGREEMENT (WHETHER OR NOT SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF ANY SUCH
DAMAGES).



     Section 7.7 Indemnity. A Party, (the “Indemnitor”) shall indemnify, defend
and hold the other Party and its officers, directors, employees, consultants, agents and other
representatives (the “Indemnitees”) harmless from and against any and all liability,
damage, loss, cost or expense (including reasonable attorneys’ fees) arising out of third party
claims or lawsuits (a “Claim”) related to or arising out of the Indemnitor’s breach of any
of its covenants, representations or warranties set forth in this Agreement. Upon the assertion of
any such claim or suit, the Indemnitees shall promptly notify the Indemnitor and the Indemnitor
shall appoint counsel reasonably acceptable to the affected Indemnitees to represent such
Indemnitees with respect to any claim or suit for which indemnification is sought. The Indemnitees
may select their own respective counsel, at the Indemnitor’s cost, upon notice to the Indemnitor;
provided, however, that they shall not settle any claim or suit hereunder without the prior written
consent of the Indemnitor.



8









 





ARTICLE VIII




TERM AND TERMINATION




     Section 8.1 Term. This Agreement shall commence upon the Effective Date and shall
remain in full force until December 31, 2015, unless earlier terminated pursuant to Section 8.2
below.



     Section 8.2 Termination.




     (a) Mutual Agreement. This Agreement may be terminated at any time upon mutual
agreement of the Parties.




     (b) Termination For Breach. Except as otherwise set forth herein, the failure
by a Party to comply in any material respect with any of the obligations contained in this
Agreement shall entitle the other Party to give notice to have the default cured. If such
default is material and not cured within sixty (60) days after the receipt of such notice,
or diligent steps have not begun to be taken to cure such default within thirty (30) days or
if by its nature such default is not capable of being cured, the other Party shall be
entitled to immediately terminate this Agreement.




     (c) Bankruptcy/Insolvency. If a Party (or its creditors or any other eligible
party) files for its liquidation, bankruptcy, reorganization, composition, dissolution or
other similar proceedings or arrangement, or if such Party is unable to pay any debts as
they become due, has explicitly or implicitly suspended payment of any debts as they became
due (except debts contested in good faith), or if the creditors of the such Party have taken
over its management, or if the relevant financial institutions have suspended clearing house
privileges with regard to such Party, then the other Party shall be entitled to immediately
terminate this Agreement.




     (d) No Plant. DCC may terminate this Agreement if it reasonably believes,
despite having exerted commercially reasonable efforts, that it will not be able to Deliver
the first [****] kilograms of the aggregate amount of the Original Annual Quantities in
Section 1.1 to Buyer. (after giving effect to Section adjustment pursuant to Section 1.3).
In the event of a termination of the Agreement by DCC under this Section 8.2(d) or Buyer
pursuant to Section 7.5, DCC’s obligations to sell and Deliver, and Buyer’s obligation to
purchase and receive, Products and Original Annual Quantities or Adjusted Annual Quantities,
as applicable, for all calendar years not Delivered prior to such termination shall be
deemed to be discharged in full without recourse and with prejudice.




     (e)
Conflicting Interest. If at any time, Buyer (together with any of
its affiliates) produces, or Buyer (together with any of
its affiliates) has acquired, or has agreed to acquire, a
greater than [****] percent ([****]%) stake in the
equity capital (including options, warrants, convertible/exchangeable
bonds and other similar securities, but excluding non-convertible
debt securities) of an entity that produces, any product which is
similar to or competes with the Products, Buyer shall provide immediate written notice to DCC and DCC may, at its sole discretion, terminate
this Agreement with immediate effect. In the event of termination by this Agreement by DCC
under this Section 8.2(e), DCC’s obligations



9









 







to sell and Deliver, and Buyer’s obligation to purchase and receive, Products and
Original Annual Quantities or Adjusted Annual Quantities, as applicable, for all calendar
years not Delivered prior to such termination shall be deemed to be discharged in full
without recourse.



     Section 8.3 Effect of Termination. Except as specifically set forth in Section
8.2(d), the expiration or termination of this Agreement shall not relieve the Parties of any
obligations accruing prior to such termination, and any such termination shall be without prejudice
to the rights of either Party against the other conferred on it by this Agreement. In addition,
the provisions of Article VI, VII, VIII and IX shall survive expiration or termination of this
Agreement for any reason for as long as necessary to permit their full discharge.



ARTICLE IX




MISCELLANEOUS




     Section 9.1 Force Majeure. Neither Party shall be responsible for suspension of its
performance under this Agreement (other than the obligation of payment) if such suspension is
caused by a shortage of raw materials, fire, flood, epidemics, quarantine restrictions, strikes,
lockouts or other labor disputes, freight embargoes, severe weather, riots, terrorism, acts of war,
acts of God or the public enemy or compliance with applicable laws, rules or regulations of any
governmental authority or by compliance with any order or decisions of any court, board or other
governmental authority or by any cause beyond the reasonable control of such Party, whose effects
are not capable of being overcome without commercially unreasonable expense to such Party
(“Force Majeure”); provided, however, that this Section 9.1 shall not relieve a Party of
its obligation to pay for any Product or other payment required by this Agreement. In addition, if
due to Force Majeure, DCC is unable to produce sufficient Products to meet all demands from
customers, DCC shall (a) inform Buyer of such reduction in production of Product;
(b) undertake commercially reasonable efforts to overcome such situation; and (c)
have the right to allocate production among its customers in a manner no less favorable to Buyer if
DCC had allocated production among its customers on a pro rata and equitable basis, after
consulting with Buyer. Buyer shall have no obligation to pay for Products not Delivered to Buyer
if such failure to Deliver is due to DCC claiming the occurrence of a Force Majeure. If DCC is
unable to meet its obligations hereunder due to a Force Majeure for more than 180 consecutive days,
Buyer shall have the right to terminate this Agreement with written notice to DCC.



     Section 9.2 Governmental Approvals. DCC shall obtain all necessary Korean
governmental approvals required for the export of the Products to Buyer. Buyer shall obtain all
other government approvals for the import of Products by Buyer.



     Section 9.3 Hierarchy among this Agreement and Purchase Orders. If there is a
conflict between or among the terms of this Agreement, its Schedules or a Purchase Order, the
following order of precedence shall apply: this Agreement, Schedules, and the Purchase Order;
provided, however, a specific written agreement to amend this Agreement (which contains a specific
reference to Section 9.6 of this Agreement) signed by the Parties that



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expresses the intent of the Parties to modify this Agreement shall take precedence over this
Agreement.



     Section 9.4 Independent Contractors. The Parties hereto are independent contractors.
Neither Party to this Agreement nor any of its employees, customers or agents, shall be deemed to
be the representative, agent or employee of the other Party for any purpose whatsoever, nor shall
any of them have the right or authority to assume or create an obligation of any kind or nature,
express or implied, on behalf of the other, nor to accept service of any legal claims or notices
addressed to or intended for the other.



     Section 9.5 Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing, shall be deemed to have been duly
given when received and may be sent by personal delivery, facsimile (to the respective facsimile
number set forth below or last given by each Party to the other) or sent by express courier
(prepaid and addressed to the respective addresses set forth below or last given by each Party to
the other). The Parties’ respective initial addresses for purposes of receiving notices pursuant
to this Agreement shall be as follows:



	 	 	 	 	 
	 

	 	If to DCC:
	 	If to Buyer:
	 
	 	 	 	 
	 

	 	DC Chemical Co., Ltd.
	 	Evergreen Solar, Inc.
	 

	 	Oriental Chemical Building
	 	138 Bartlett Street
	 

	 	50, Sogong-Dong, Jung-Gu
	 	Marlboro, MA 01752
	 

	 	Seoul, 100-718
	 	U.S.A.
	 

	 	Korea
	 	Attn: Richarf G. Chleboski
	 

	 	Attn: Andy Kim
	 	Fax: +1-508-229-7722
	 

	 	Fax: +82-2-727-9559	 	 






     Section 9.6 Amendment; No Waiver. This Agreement cannot be amended, changed, modified
or supplemented orally, and no amendment, change, modification or supplement of this Agreement
shall be recognized nor have any effect, unless the writing in which it is set forth is signed by
both Parties, nor shall any waiver of any of the provisions of this Agreement be effective unless
in writing and signed by the Party to be charged therewith. The failure of either Party to
enforce, at any time, or for any period of time, any provision hereof or the failure of either
Party to exercise any option herein shall not be construed as a waiver of such provision or option
and shall in no way affect that Party’s right to enforce such provision or exercise such option.
No waiver of any provision hereof shall be deemed to be, or shall constitute, a waiver of any other
provision, or with respect to any succeeding breach of the same provision.



     Section 9.7 Governing Law; Jurisdiction.




     (a) This Agreement shall be governed by and construed and enforced in accordance with
the laws of Korea, without giving effect to the rules respecting its



11









 







conflicts of law principles. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply.




     (b) The Parties hereby agree that any dispute arising under this Agreement, or in
connection with any breach thereof, shall be finally resolved through binding arbitration
conducted in administered by the ICC (as defined below) accordance with the rules and
procedures of the International Chamber of Commerce (“ICC”) by one (1) arbitrator
appointed in accordance with the applicable rules of the ICC. Any such arbitration shall be
held in Hong Kong. Any written evidence originally in a language other than English shall
be submitted in English translation accompanied by the original or a true copy thereof. The
costs of the arbitration, including administrative and arbitrators’ fees, shall be shared
equally by the Parties, and each Party shall bear its own costs and attorneys’ and witness’
fees incurred in connection with the arbitration. Any award may be entered in a court of
competent jurisdiction for a judicial recognition of the decision and applicable orders of
enforcement. The Parties may apply to any court of competent jurisdiction for a temporary
restraining order, preliminary injunction, or other interim or conservatory relief, as
necessary, without breach of this arbitration requirement and without any abridgment of the
powers of the arbitrator.




     (c) If any portion of this Agreement is held invalid by a court or tribunal of
competent jurisdiction, such portion shall be deemed to be of no force and effect and this
Agreement shall be construed as if such portion had not been included herein, provided
however, if the deletion of such provision materially impairs the commercial value of this
Agreement to either Party, the parties shall attempt to renegotiate such provision in good
faith.



     Section 9.8 Entire Agreement. This Agreement constitutes the entire agreement between
the Parties with respect to the subject matter hereof and supersedes all prior agreements,
understandings and arrangements, oral or written, between the Parties with respect to the subject
matter hereof. No agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made either Party which is not expressly set forth
in this Agreement.



     Section 9.9 Assignment. Either Party may assign or otherwise transfer this Agreement
to its subsidiary, affiliate or other successor in the event of a merger, acquisition or change of
control of such Party or to the purchaser of substantially all of the assets of such Party. Except
as provided in the preceding sentence, neither Party shall have the right to assign or otherwise
transfer this Agreement, or any of its rights or obligations hereunder, without the prior written
consent of the other Party.



     Section 9.10 Non-Exclusive Agreement. This Agreement is a non-exclusive agreement.
DCC expressly reserves the right to contract with others to supply any of its products or services.
Buyer expressly reserves the right to contract with others for any of the products or services it
may require.



12









 





     Section 9.11 Successors. This Agreement shall inure to the benefit of and be binding
upon each of the Parties and their respective permitted successors and assigns.



     Section 9.12 Headings. The headings used in this Agreement are for convenience of
reference only and shall not affect the meaning or construction of this Agreement.



     Section 9.13 Word Meanings. Words such as herein, hereinafter, hereof and hereunder
refer to this Agreement as a whole and not merely to a section or paragraph in which such words
appear, unless the context otherwise requires. The singular shall include the plural, and each
masculine, feminine and neuter references shall include and refer also to the others, unless the
context otherwise requires.



     Section 9.14 Language. The official language of this Agreement is English. All
contract interpretations, notices and dispute resolutions shall be in English. Any attachments or
amendments to this Agreement shall be in English. Translations of any of these documents shall not
be construed as official or original versions of such documents.



     Section 9.15 Counterparts. This Agreement may be executed in counterparts or
duplicate originals, both of which shall be regarded as one and the same instrument, and which
shall be the official and governing version in the interpretation of this Agreement.



[Signature pages follow]




13









 





     IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their
respective duly authorized officers as of the Effective Date.



	 	 	 	 	 
	 	DC Chemical Co., Ltd.

 	 
	 	By:  	/s/ Woo Sug Baik
 	 
	 	Name:	Woo Sug Baik 	 
	 	Title:	Chief Executive Officer 	 
	 



[Signature page to Supply Agreement]





 









 





	 	 	 	 	 
	 	Evergreen Solar, Inc.

 	 
	 	By:  	/s/ Richard C. Chleboski
 	 
	 	Name:	Richard G. Chleboski 	 
	 	Title:	Vice President 	 
	 



[Signature page to Supply Agreement]





 









 





Schedule 1




Specifications



TO BE DETERMINED BY MUTUAL AGREEMENT BASED ON TESTS CONDUCTED AT THE PLANT UPON MANUFACTURE OF
PRODUCT THEREIN



PRODUCT SHALL BE OF SOLAR GRADE



UNLESS OTHERWISE AGREED, THE PRODUCT SHALL BE SHIPPED TO BUYER IN [****]