Exhibit 10.7


 




CONFIDENTIAL TREATMENT REQUESTED


—


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





 


	
   

  



 


Long-Term Ingot and Wafer Supply Agreement


	
   

  



 


between


NorSun AS


and


SunPower Corporation


 


 


 


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This Long-Term Ingot and Wafer Supply Agreement is
made on August 9, 2007 (the “Effective Date”) between


NorSun AS, a Norwegian company
with registered address Bankplassen 1, 0151 OSLO and enterprise number
989 186 493 (hereafter referred to as “NorSun”); and


SunPower Corporation, a
company with registered address 3939 North First Street, San Jose, California
95134, USA (hereafter referred to as “SunPower”).


 


WHEREAS NorSun is active
in the field of manufacture and supply of Ingots and Wafers (as defined
herein);


WHEREAS SunPower
procures Ingots and Wafers for its manufacture of solar cells and solar
modules;


WHEREAS SunPower and
NorSun (each a “Party” and collectively the “Parties”) have concurrently
herewith entered into a Long-Tem Polysilicon Supply Agreement (the “Polysilicon
Agreement”) under which SunPower shall supply NorSun with polycrystalline
silicon in order to permit NorSun to partially satisfy its obligation to
manufacture and supply Ingots, and potentially Wafers, to SunPower pursuant to
this Agreement; and


WHEREAS SunPower desires
to purchase Ingots, and potentially Wafers, from NorSun, and NorSun is willing
to supply such Ingots, and potentially Wafers, to SunPower on the terms and
conditions set forth herein.


 


NOW, THEREFORE, the Parties agree as follows:


1.                                       DEFINITIONS


1.1                                 The
“Agreement” shall mean this signed document and


1.1.1                        Schedule 1
Specification of Ingots and Wafers, as may be updated from time to time by
mutual agreement of the Parties;


1.1.2                        Schedule 2 Prices,
Quantities, Yield/Ratios Limits, and Delivery Schedule.


1.1.3                        “Annual Quantity”
shall mean annual volumes as set forth in the Delivery Schedule (Schedule 2).


1.2                                 “Confidential
Information” shall have the meaning as set forth in Section 11.1.


1.3                                 “Delivery
Schedule” shall mean such delivery dates and quantities applicable to certain
periods set forth in Schedule 2.


1.4                                 “Effective
Date” shall mean the first date written above.


 


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1.5                                 “Fiscal
Year” shall mean the period beginning on January 1st and ending on December
31st of the same year.


1.6                                 “Ingot”
shall mean a single crystal silicon unit to be used in manufacturing of
photovoltaic Wafers per SunPower specification as identified in Schedule 1.


1.7                                 “Wafer”
shall mean a pseudo quadratic disc sliced from a single crystal silicon Ingot
per SunPower specification as identified in Schedule 1.


1.8                                 “Products”
shall mean, collectively, Ingots and Wafers as defined above.


1.9                                 “SunPower-Sourced
Products” shall mean Products manufactured with a corresponding volume of polysilicon
delivered by SunPower under the Polysilicon Agreement.


1.10                           “Third
Party-Sourced Products” shall mean Products manufactured with a corresponding
volume of polysilicon supplied by third parties (i.e. other than SunPower) to
NorSun.


 


2.                                       SALE
AND PURCHASE


2.1                                 Subject
to the provisions of Section 5, NorSun shall be obligated to supply, and
SunPower shall be obligated to purchase, (a) during the period commencing on
the Effective Date and expiring on December 31, 2011, Ingots in the Annual
Quantities as further set forth in the Delivery Schedule (Schedule 2) and (b)
during the period commencing on January 1, 2012 and expiring on December 31,
2019, Ingots in the Annual Quantities as further set forth in the Delivery
Schedule (Schedule 2); subject in the case of this subclause (b) to the Parties
agreeing on the pricing for such quantities in accordance with Section 3.3 and
volume for Third Party-Sourced Products in accordance with Section 5.2.  Subject to the provisions of Sections 3.2 and
5, NorSun may supply and SunPower may purchase Wafers in lieu of Ingots in
satisfaction of their Annual Quantity commitments, in each case as mutually
agreed by the Parties during the Term. 
No inability to agree on Wafer quantities shall affect the Parties’
obligations with respect to Ingots.


2.2                                 All
sales and purchase of Products between the Parties are subject to and governed
by this Agreement unless otherwise expressly agreed in writing (under purchase
orders or otherwise).


2.3                                 Unless
otherwise consented to in writing by SunPower, NorSun shall sell
SunPower-Sourced Products exclusively to SunPower.


 


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3.                                       PRICES


3.1                                 The
prices for Ingots delivered for the period from the Effective Date through
December 31, 2011 shall be determined according to Schedule 2.


3.2                                 No
later than December 31, 2008 the Parties shall initiate discussions on Wafer
prices for NorSun’s delivery of Wafers to SunPower in lieu of Ingots through
2011. Such Wafer prices shall be agreed in writing and apply from the date
determined by the Parties. If the Parties are unable to agree on Wafer prices
within two months after the discussions are initiated, such discussions shall
cease and be reopened no later than one Fiscal Year thereafter.  No inability to agree on Wafer pricing shall
affect the Parties’ obligations with respect to Ingots.


3.3                                 The
prices for Products delivered for the period from January 1, 2012 through
December 31, 2019 shall be determined prior to each Fiscal Year, and shall be
established by mutual written agreement between the Parties.  The Parties shall initiate discussions to
establish such prices no later than 120 days preceding any Fiscal Year to which
such prices shall apply.  In the event
the Parties are unable to reach agreement no later than 15 days prior to the
start of the applicable Fiscal Year, (a) the Product prices for such Fiscal
Year shall be the same as the Product prices in effect immediately prior to
such Fiscal Year and (b) if such inability to reach agreement on pricing
continues through the end of such Fiscal Year, either Party may terminate this
Agreement pursuant to Section 21.


3.4                                 The
prices in Schedule 2 include taxes and duties that may be imposed in Norway on
the manufacturing of the Products, but no other taxes or duties, i.e. taxes and
duties imposed on the import and sale of the Products.


3.5                                 In
the event that the polysilicon prices described in Section 4.1 of the Polysilicon
Agreement are adjusted pursuant to Section 4.2 thereof, the Parties shall
adjust the prices on the SunPower-Sourced Products in an amount equal to such
adjustment. Any adjustment shall apply to the SunPower-Sourced Products
associated with the newly priced polysilicon.


 


4.                                       PAYMENT


4.1                                 All
payments for Products shall be made by SunPower to NorSun no later than 30 days
following the date of NorSun’s invoice. 
Payment shall be net of any and all invoice fees or other fees or
charges, other than those specified in this Agreement.  All invoices should be sent to SunPower at
its registered office. NorSun shall specify any taxes and duties charged on the
invoice.


4.2                                 Unless
otherwise agreed by NorSun, no deductions from invoices by SunPower are
permitted.


 


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4.3                                 Any delayed payment under this Agreement shall carry
delayed payment interest of ***% per month (***% per annum) from the due date,
based on 360 interest days per year.  If
the due date of any payment to be made hereunder falls on a day which is not a working day in the State of California, U.S., or Norway, delayed
payment interest shall commence from the first working day after the due date.


 


5.                                       FIRM
COMMITMENT OBLIGATIONS; ADJUSTMENTS


5.1                                 Subject
to the provisions of this Section 5, for the period from the Effective Date
through December 31, 2011, NorSun shall be obliged to supply and SunPower shall
be obliged to purchase the Ingots in such Annual Quantities as set forth in the
Delivery Schedule; provided, however, that NorSun’s supply obligation to
provide Ingots which are Third Party-Sourced Products for the years 2007
through 2009 shall be on a best efforts basis
only, consistent with Section 3.3 of the Polysilicon Agreement. Subject to the
provisions of this Section 5 and the Parties’ agreement on Wafer pricing in
accordance with Section 3.2, NorSun shall supply and SunPower shall purchase
Wafers in lieu of Ingots in satisfaction of their Annual Quantity
commitments.  No inability to agree on
Wafer quantities shall affect the Parties’ obligations with respect to Ingots.


5.2                                 Subject
to the Parties’ agreement on pricing in accordance with Section 3.3, and
subject to the provisions of this Section 5, for the period from January 1,
2012 through December 31, 2019, each Fiscal Year NorSun shall be obliged to
supply and SunPower shall be obliged to purchase such SunPower-Sourced Product quantities as set forth in the Delivery Schedule
corresponding to the column entitled “SPWR Poly Supplied” therein (i.e. *** metric tons). With respect to Third Party-Sourced Product
quantities for the period from January 1, 2012 through December 31, 2019,
subject to the Parties’ agreement on pricing in accordance with Section 3.3,
and subject to the provisions of this Section 5, such quantities for each
Fiscal Year shall be established by mutual written agreement.  The Parties shall initiate discussions to
establish such Third Party-Sourced quantities no later than 120 days preceding
any Fiscal Year to which such quantities shall apply.  In the event the Parties are unable to reach
agreement no later than 15 days prior to the start of the applicable Fiscal
Year, (a) the Product quantities for such Fiscal Year shall be the same as the
preceding Fiscal Year and (b) if such inability to reach agreement on
quantities continues through the end of such Fiscal Year, either Party may
terminate this Agreement pursuant to Section 21.


5.3                                 Notwithstanding
anything to the contrary in this Agreement (including but not limited to
Sections 2.1, 5.1, and 5.2, and the Delivery
Schedule), SunPower may, with respect to any Product quantity that it is
otherwise required to purchase pursuant to this Agreement, eliminate its firm
commitment obligation to purchase such quantity if SunPower consents to NorSun’s
resale of such Product quantity to third parties.


5.4                                 Notwithstanding
anything to the contrary in this Agreement (including but not limited to Sections
2.1, 5.1, and 5.2, and the Delivery Schedule):


 


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                                                      a)       If delivery of polysilicon from SunPower
to NorSun under the Polysilicon Agreement is delayed, the delivery dates for a
proportional amount of SunPower-Sourced Products shall be postponed for the
same period  accordingly without
liability to either party for such delay (the amount of SunPower-Sourced
Products postponed shall be proportional to the delayed amount of polysilicon
in relation to NorSun’s total silicon supply for all SunPower-Sourced Products
for the applicable period).  In no event
shall any delay of delivery of polysilicon from SunPower to NorSun excuse or
otherwise affect NorSun’s obligations to provide Third Party-Sourced Products
under this Agreement.


                                                      b)       In the event that the quantity of
polysilicon supply from SunPower under the Polysilicon Agreement is not
sufficient for the manufacturing of the SunPower-Sourced Products to be
supplied under this Agreement, NorSun’s obligation to deliver, and SunPower’s
obligation to purchase (to the extent such shortfall results from a
corresponding shortfall of polysilicon from Hemlock), SunPower-Sourced Products
under this Agreement shall be reduced without liability to either Party
proportionately to such shortfall in polysilicon.  In no event shall any shortfall in delivery
of polysilicon from SunPower to NorSun excuse or otherwise affect NorSun’s
obligations to provide Third Party-Sourced Products under this Agreement.


                                                      c)       Until NorSun has established sufficient
Wafer manufacturing capacity at its Årdal (Norway) plant, NorSun shall deliver
squared Ingots to SunPower unless the Parties agree to ship as-grown or ground
round Ingots in addition to, or in lieu of, squared Ingots.  Subject to the Parties’ ability to agree on
Wafer pricing in accordance with Section 3.2 and/or 3.3 , NorSun shall deliver
Wafers to SunPower when such capacity has been established.  NorSun will use its best efforts to establish
Wafer manufacturing capacity no later than September 30, 2008.  In the event NorSun is unable to deliver
Wafers per SunPower’s specifications at any time during the Term, NorSun shall
fulfill its Annual Quantity obligations through its delivery of Ingots.  Notwithstanding anything to the contrary
herein, no inability of the Parties to agree on pricing or quantities for
Wafers during the Term shall affect the Parties’ obligations with respect to
Ingots under this Agreement.


5.5                                 Subject
to the provisions of Sections 5.3 and 5.4, either Party shall be entitled to
seek recovery of its damages for failure by the other Party to fulfill its
annual firm commitment obligations to the extent described in Sections 5.1 and
5.2 with respect to any Fiscal Year.


5.6                                 Pursuant
to the Polysilicon Agreement Section 9, NorSun has acknowledged that SunPower
will be contracting with Hemlock Semiconductor Corporation (“Hemlock”) to
expand Hemlock’s manufacturing facility (the “Expanded Manufacturing Facility”)
in order to produce the polysilicon to be supplied under the Polysilicon
Agreement. NorSun acknowledges the possibility of delays or failures in Hemlock
completing the Expanded Manufacturing Facility and expressly agrees that
notwithstanding anything in this Agreement to the contrary, SunPower SHALL HAVE
NO LIABILITY TO NORSUN FOR ANY SUCH DELAY OR FAILURE, including for any
shortfalls in delivery of Polysilicon resulting therefrom.


 


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6.                                       PURCHASE ORDERS


6.1                                 SunPower
shall no later than 30 days prior to each Fiscal Year issue purchase orders (“Purchase
Orders”) for a total of the Annual Quantity for such Fiscal Year.


6.2                                 Each
month NorSun shall issue a release identifying the monthly quantities of
Products to be delivered.  Such release
shall be consistent with the delivery schedule of Polysilicon received by
SunPower from its suppliers and with the Annual Quantities set forth in
Schedule 2.


6.3                                 The
Purchase Orders shall, unless otherwise agreed in writing between the Parties
be issued monthly and shall at a minimum contain the following information: (i)
reference to this Agreement, (ii) identification of the Products by proper
name, price, and Annual Quantity, (iii) delivery instruction and delivery
place, and (iv) issue date.  The Purchase
Orders shall be sent by ordinary mail, and a copy shall be forwarded to NorSun
on the issue date either by e-mail or telefax. For the period from January 1,
2011 through December 31, 2019, a Purchase Order shall be binding for SunPower
only after it is received and its conditions have been confirmed by NorSun.


6.4                                 A
Purchase Order shall be sent by e-mail, or alternatively telefax, and regular
mail. If no objection to the Purchase Order has been raised by NorSun within 15
days after SunPower’s issue date, then such Purchase Order shall be deemed
accepted by NorSun.


 


7.                                       DISCREPANCIES


7.1                                 In the event of a discrepancy between the terms and
conditions of this Agreement and the individual Purchase Order, the terms and conditions of this Agreement shall
prevail unless the Parties in writing expressly
agree otherwise.


8.                                       DELIVERY


8.1                                 The Products shall be delivered FCA Aardal, Norway
(Incoterms 2000).  SunPower shall
instruct NorSun on the delivery location for each shipment.  In the event Products are delivered more than four (4) weeks following the delivery date
requested by SunPower, NorSun agrees to immediately dedicate its entire factory
production to fulfilling SunPower’s delivery, and ship such Products via air
freight to a delivery location then requested by
SunPower at NorSun’s expense.  If
Products  are not delivered within six
(6) weeks following the requested delivery date, NorSun will pay SunPower
liquidated damages  at a rate of ***
percent (***%) of the gross purchase price applicable to such shipment per week
thereafter, up to a maximum of *** percent (***%) of such purchase price,
provided, however, that the liquidated damages shall not apply and SunPower
shall be entitled to full compensation in the event that NorSun’s failure to
deliver is caused by gross negligence or wilful misconduct.  The foregoing liquidated damages address late
delivery shipments only and are independent of NorSun’s liability (if any) and
SunPower’s corresponding ability to recover damages,  for NorSun’s failure to deliver its minimum
Annual Quantity commitments pursuant to Section 5.1and 5.2 of this Agreement.


 


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8.2                                 Title
to the Products shall pass to SunPower simultaneously with risk of loss under
FCA Aardal, Norway (Incoterms 2000).


8.3                                 A
conformance certificate shall be issued by NorSun to SunPower for each delivery
of Products. The parameters shown in the delivery certificate are outlined in
Schedule 1.


 


9.                                       PACKAGING
AND SHIPPING


9.1                                 NorSun
shall bear all costs associated with packaging or storing the Products until
delivery to SunPower pursuant to the delivery terms specified in Section 8. All
Products shall be packaged, marked, and otherwise prepared in accordance with
good commercial practices to reduce the risk of damage and to be packaged in
the smallest commercially acceptable form in order to enable SunPower to obtain
the lowest shipping rates possible (based on volume metric dimensions) and in
accordance with all applicable federal, state and local packaging and
transportation laws and regulations. An itemized packing list shall accompany
each shipment.  Other or special
packaging and shipping requirements are set forth on Schedule 1.


9.2                                 NorSun
shall establish reasonable control routines in order to ensure punctual
delivery of the Products at the agreed time and without any defects or
non-conformities.


9.3                                 A
shipment notice shall be submitted from NorSun to SunPower by telefax or other
means of communications, at the latest on the shipment date, including:


a)          Purchase Order No.


b)          Brief description of
Product


c)           Invoice amount


d)          Number of packages


e)           Gross weight (total)
kilos


f)           Packing List
describing in detail the content of each package


9.4                                 A
delivery certificate shall be issued by NorSun to SunPower for each shipment of
Products.


 


10.                                 INSPECTION


10.1                           An inspection of the appearance of the package shall be
made by SunPower within *** after delivery of Products. In case the package has
any damage, SunPower shall notify NorSun . If NorSun has not
received a written notification within *** after the delivery, the inspection
of appearance of the package shall be regarded as accepted.


10.2                           The
final inspection of the Products will take place by SunPower within and not
later than *** after the delivery date. If the Product does not meet the


 


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Schedule 1
specifications, SunPower shall notify and submit to
NorSun documentary evidence of the result of the final inspection whereupon
NorSun shall have the right to undertake its own inspection.


 


10.3                           In
the event that the Products do not meet the Schedule 1 specifications, SunPower
shall have the right pursuant to Section 12 to reject such defective Products
and return them to NorSun. The defective Products shall be replaced by NorSun
according to the Rejected Material Administration (RMA) procedure. NorSun shall
examine and judge the returned Products within *** after receipt.  NorSun shall bear any and all costs and
expenses incurred by SunPower related to the return of the defective Products
and shall provide such remedies as set forth in Section 12.2.


10.4                           All
manufacturing facilities of NorSun shall be subject to quality assurance audits
by SunPower at all reasonable times and places. If such audit is made on NorSun’s
premises, NorSun shall provide without additional charge, all reasonable
facilities and assistance for such audit. 
All quality assurance records relating to
the Products shall be available to SunPower during the performance of this
Agreement.  Nothing herein shall require
NorSun to disclose confidential information relating to technology licensed to
NorSun by third parties.


 


11.                                 CONFIDENTIALITY


11.1                           The
Parties acknowledge and agree that the terms of this Agreement and certain
information exchanged between them pertaining to this Agreement, including
information regarding research, technology, product developments, marketing
plans or conditions, products, business strategies, and the like, constitute “Confidential
Information” of the Party disclosing the information.  The purpose of the exchange of the
Confidential Information” is to allow the Parties to meet their obligations and
responsibilities under this Agreement. 
During the term of this Agreement, and for a period of 15 years
following its termination or expiration, except as required by applicable law,
regulation or rules of any securities exchange, the Party receiving any
Confidential Information, and its employees, attorneys, financial advisors,
officers, directors and shareholders who shall receive such Confidential
Information shall not, except with the prior written consent of the disclosing
Party, use, divulge, disclose or communicate, to any person, firm, corporation
or entity, in any manner whatsoever, the terms of this Agreement or any
Confidential Information of the disclosing Party; provided, however, that each
Party may use, divulge, disclose or communicate the terms of this Agreement or
Confidential Information of the disclosing Party to wholly-owned or majority
owned subsidiaries if such subsidiaries undertake to keep such information
strictly confidential in accordance with this Section 9 and each subsidiary has
a “need to know”.  The Parties will be
liable for any breach of this Section 9 by any of their respective wholly-owned
or majority owned subsidiaries.  Each
Party further agrees to use the same degree of care to avoid publication or
dissemination of the Confidential Information disclosed to such Party under
this Agreement as it employs with respect to its own Confidential Information,
but at all times shall use at least reasonable care to protect against
disclosure.


11.2                           Confidential
Information does not and shall not include information that:


 


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11.2.1                            was already known to
the receiving Party at the time such information is disclosed by the other
Party;


11.2.2                            was or became publicly
known through no wrongful act of the receiving Party;


11.2.3                            was rightfully
received from a third party without restriction;


11.2.4                            was independently
developed by the receiving Party;


11.2.5                            was approved for release
by written authorization of the Party disclosing such information under this
Agreement; or


11.2.6                            was required by legal
or financial reporting purposes to be disclosed; provided, however, that the
Party being required to disclose shall, if circumstances permit, provide
advanced notice to the other Party.


 


12.                                 WARRANTY


12.1                           NorSun
warrants that the Products will be free from defects and workmanship, and
conform to the specifications set forth in Schedule 1, provided that NorSun is
notified of any defects or non-conformity within thirty (30) days after
delivery and that the defect or non-conformity is shown to be due to NorSun’s
faulty design, workmanship, material or packaging.


12.2                           If
any Products fail to conform to this warranty, then NorSun will, at SunPower’s
option, either refund or replace such Products. 
For valid warranty claims all associated shipping and return costs shall
be paid by NorSun.


 


13.                                 INDEMNIFICATION


13.1                           NorSun
shall indemnify SunPower against any and all costs, loss and liability for all
personal injury and property damage caused by the Products (whether performed
on the premises of NorSun or SunPower or elsewhere) and shall defend at its
sole cost and expense any action brought against SunPower as a result of any
such personal injury or property damage. 
NorSun shall carry and maintain insurance coverage satisfactory to cover
the above, and upon SunPower’s request, shall furnish SunPower with evidence of
such insurance.


13.2                           NorSun
shall defend, at its own expense, any suit or claim that may be instituted
against SunPower or any customer of SunPower for alleged infringement of
patents, trade secrets, copyrights or other intellectual property rights
relating to the maintenance, sale or use of the Products, and NorSun shall
indemnity SunPower and its customers for all costs and damages arising out of
such alleged infringement.


 


14.                                 FORCE MAJEURE


14.1                           Neither
Party shall be liable for delays or failures in performance of their obligations


 


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under this Agreement arising out of or
resulting from acts of God, acts of the other Party, acts of the government,
the public enemy or events of war, fire, flood, epidemics, quarantine
restrictions, strikes, or freight embargoes (each a “Force Majeure Event”). 


 


14.2                           In the event of any Force
Majeure Event, the unaffected Party shall honor its obligations hereunder as
soon as the affected Party is able to perform.


 


 


15.                                 ASSIGNMENT


 


15.1                           No assignment of the
Agreement or of any right or obligation under the Agreement shall be made by
either of the Parties without the prior written consent of the other Party,
such consent shall not to be unreasonably withheld or delayed.  In the event of a proper assignment, the
Agreement shall be binding upon and inure to the benefit of the assigning Party’s
successors and assigns.


 


 


16.                               NO
PARTNERSHIP OR AGENCY


 


16.1                           Nothing in this Agreement
shall constitute, or be deemed to constitute, a partnership or agency between
the Parties.


 


 


17.                                 NOTICES


 


17.1                           Any communication which is required
or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally, telefaxed (and with a confirmation copy also sent by mail), delivered
by a reputable commercial courier service or mailed, always with receipt
acknowledged, to the registered address of either Party as set forth herein or
to such other registered address as follows from a prior notification to the
other Party by the receiving Party.


 


18.                                 ENTIRE AGREEMENT


 


18.1                           This Agreement constitutes
the entire understanding between the Parties with respect to the subject matter
of the Agreement and supersedes any prior discussions, negotiations,
agreements, memoranda of understanding and the like.  Modifications to the Agreement may be made
only in writing and signed by each Party. 
If one or more of the provisions of this Agreement shall be found, by a
court with jurisdiction, to be illegal, invalid or unenforceable, it shall not
affect the legality, validity or enforceability of any of the remaining
provisions of this Agreement.  The
Parties agree to attempt to substitute for any illegal, invalid or
unenforceable provision a legal, valid or enforceable provision that achieves
to the greatest extent possible the economic objectives of the illegal, invalid
or unenforceable provision.


 


 


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19.                                 POLYSILICON AGREEMENT


 


19.1                           The Parties acknowledge that this
Agreement is entered in reliance upon the execution and continuing
effectiveness of the Polysilicon Agreement. 
Accordingly, to the extent any modifications are made to the provisions
of the Polysilicon Agreement, the Parties will in good faith consider
appropriate modifications to the provisions of this Agreement.  The Parties also acknowledge that NorSun’s
obligations to deliver to SunPower Third Party-Sourced Products are independent
of any reliance NorSun places upon the Polysilicon Agreement.


 


 


20.                                 WAIVER


 


20.1                           Either Party’s failure to
exercise a right or remedy or such Party’s acceptance of a partial or
delinquent payment or delivery shall not operate as a waiver of any of such
Party’s rights or the other Party’s obligations under the Agreement and shall
not constitute a waiver of such Party’s right to declare an immediate or a
subsequent default.


 


 


21.                                 TERM AND TERMINATION


 


21.1                           This Agreement commences on
the Effective Date, and continues to remain in force and effect until December
31, 2019 (the “Term”), at which time this Agreement may be extended with the
mutual agreement of both Parties.


 


21.2                           The Parties expressly agree
that NorSun is obligated to supply and SunPower is obligated to purchase the
Products at the contracted prices and quantities pursuant to Sections
3.1 and 5.1 through 2011, and thereafter through 2019 as agreed to each Fiscal
Year pursuant to Sections 3.2 and 5.2. 
Accordingly, the basis and circumstances under which the Parties can
terminate this Agreement prior to the expiration of the Term of this Agreement
is expressly limited to the terms of this Section 21.


 


21.3                           Termination by NorSun.  NorSun may, at its option, terminate this
Agreement only upon one of the following events:


 


a)             Upon the event of a material breach by
SunPower of its obligations under this Agreement (other than a material breach
triggered by a Force Majeure Event, which shall be solely addressed in Section
14), provided that (i) NorSun submits a written notice of such breach to
SunPower, and (ii) SunPower fails to cure such breach within ninety (90) days
of receipt of the written notice of breach. 
If SunPower rectifies any such breach within such period, then SunPower’s
breach shall be deemed cured and NorSun shall not be entitled to terminate this
Agreement;


 


 


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b)             Upon the event that the Parties are
unable to agree on pricing pursuant to Section 3.3(b) or quantities for Third
Party-Sourced Products pursuant to Section 5.2(b),  such  
termination  being  effective  
as   of   the expiration of  the twelve-month period referenced therein;
or


 


c)              Upon the termination of the Polysilicon
Agreement by NorSun pursuant to Section 10.2(a) thereof.


 


21.4                           Termination by SunPower.  SunPower may, at its option, terminate this
Agreement upon one of the following events:


 


a)             Upon the event of a material breach by
NorSun of its obligations under this Agreement (other than a material breach
triggered by a Force Majeure Event, which shall be solely addressed in Section
14), provided that (i) SunPower submits a written notice of such breach to
NorSun, and (ii) NorSun fails to cure such breach within ninety (90) days of
receipt of the written notice of breach.  
If NorSun rectifies any such breach within such period, then NorSun’s
breach shall be deemed cured and SunPower shall not be entitled to terminate
this Agreement;


 


b)             Upon the event that the Parties are
unable to agree on pricing pursuant to Section 3.3(b) or quantities for Third
Party-Sourced Products pursuant to Section 5.2(b), such termination being
effective as of the expiration of the twelve-month period referenced therein;


 


c)              In the event that NorSun, due to reasons not
deemed as Force Majeure in accordance with Section 14, resolves to cease its
Ingot or Wafer manufacturing for SunPower’s benefit permanently or for a period
exceeding 90 days; or


 


d)             Upon the termination of the Polysilicon
Agreement by NorSun pursuant to Section 10.2(a) thereof.


 


21.5                           Sections 1, 4 (to the extent
of any due and unpaid invoices), 11 through 18, and 20 through 25 shall survive
any termination of this Agreement.


 


 


22.                                 ATTORNEYS FEES AND COSTS


 


22.1                           The Parties shall bear their
own expenses incurred in connection with the negotiation and execution of this
Agreement.


 


 


23.                                 DOLLARS


 


23.1                           All references to monetary
amounts shall be in U.S. Dollars.


 


 


24.                                 AGREEMENT PREPARATION


 


24.1                           This Agreement shall be
considered for all purposes as prepared through the joint efforts of the
Parties and shall not be construed against one Party or the other as a


 


 


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


 


13

















 


result of the manner in which this
Agreement was negotiated, prepared, drafted or executed.


 


 


25.                                 GOVERNING LAW AND DISPUTE
RESOLUTION


 


25.1                           The Agreement is made in, and
shall be governed and controlled in all respects by the laws of the State of
Michigan, USA (specifically disclaiming the U.N. Convention Contracts for the
International Sale of Goods). All disputes, including interpretation,
enforceability, validity, and construction, shall be determined under the law
of the State of Michigan, USA, without regard to any conflict of law
provisions.


 


25.2                           The Parties submit to the
exclusive jurisdiction and venue of the U.S. District Court for the Eastern
District of Michigan for all disputes arising, directly or indirectly, under
this Agreement.


 


 


* * *


 


 


IN WITNESS WHEREOF, the Parties have
entered into this Agreement as of the Effective Date.


 


 


 


	
  For and on behalf of 

  	
   

  	
  For and on behalf of  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  NorSun AS 

  	
   

  	
  SunPower Corporation 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  GRETE SONSTEBY

  	
   

  	
  /s/
  THOMAS WERNER

  	
   

  
	
  Name:
  Grete Sonsteby 

  	
   

  	
  Name:
  Thomas Werner 

  	
   

  
	
  Title:
  Chairman of the Board

  	
   

  	
  Title:
  Chief Executive Officer

  	
   

  



 


 


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


 


14

















 


SCHEDULE NO. 1 SPECIFICATION OF
INGOTS AND WAFERS


 


 


See SunPower Squared Ingot spec #001-07689
Rev A


 


 


See SunPower Wafer spec #001-07686 Rev A.


 


***


 


 


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


 


15

















 


SCHEDULE NO. 2 PRICES ,
QUANTITIES, YIELD/RATIO


LIMITS, AND DELIVERY
SCHEDULE


 


	
  Year

  	
   

  	
  Month

  	
   

  	
  Poly
  Price

  	
   

  	
  Conversion

  Price

  	
   

  	
  Conversion

  Ratio

  	
   

  	
  SPWR
  Poly

  Supplied

  	
   

  	
  Norsun

  Poly

  Supplied

  	
   

  	
  Total
  Poly

  Volume

  	
   

  	
  Ratio
  Ingot

  Volume to be

  delivered

  	
   

  	
  Norsun's

  Price of

  Slabbed

  Ingot

  	
   

  
	
  2007

  	
   

  	
  Oct

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Nov

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Dec

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  2008

  	
   

  	
  Jan

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Feb

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Mar

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Apr

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  May

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jun

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jul

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Aug

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Sept

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Oct

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Nov

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Dec

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  2009

  	
   

  	
  Jan

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Feb

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Mar

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Apr

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  May

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jun

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jul

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Aug

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Sept

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Oct

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Nov

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Dec

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  2010

  	
   

  	
  Jan

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Feb

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Mar

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Apr

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  May

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jun

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jul

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Aug

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Sept

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Oct

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Nov

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Dec

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  2011

  	
   

  	
  Jan

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Feb

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Mar

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Apr

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  May

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jun

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Jul

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Aug

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Sept

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Oct

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Nov

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
  Dec

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  2012

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  
	
  2013

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  
	
  2014

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  
	
  2015

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  
	
  2016

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  
	
  2017

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  
	
  2018

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  
	
  2019

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
  ***

  	
   

  	
  TBN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TBN

  	
   

  



 






“TBN” means to be negotiated in accordance with the
Agreement.


 


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