IRREVOCABLY REQUIRED TO ACCEPT AND PAY FOR THE CONTRACTED VOLUME SET FORTH IN
THE THIRD COLUMN OF EXHIBIT B PER YEAR INDICATED OVER THE TERM OF THIS AGREEMENT
AT THE PRICES IN EXHIBIT B, SUBJECT TO THE ADJUSTMENTS DESCRIBED SET FORTH IN
THIS AGREEMENT.
IN THE EVENT THAT NORSUN FAILS TO ORDER AND TAKE DELIVERY OF
ITS CONTRACTED VOLUME IN A GIVEN YEAR, SUNPOWER SHALL INVOICE NORSUN FOR THE
DIFFERENTIAL AT FULL CONTRACT PRICE AND NORSUN WILL PAY THE SAME WITHIN 30 DAYS
OF INVOICE DATE.
NORSUN SPECIFICALLY ACKNOWLEDGES AND ACCEPTS THAT IT WILL BE
LIABLE FOR THE FULL PURCHASE PRICE OF VOLUME DIFFERENTIAL BETWEEN THE QUANTITY
ORDERED AND THE CONTRACTED VOLUME.
SUNPOWER IS SIMILARLY REQUIRED TO PROVIDE
THE AGREED QUANTITIES OF POLYSILICON UNDER THIS AGREEMENT TO THE EXTENT REQUIRED
IN SECTION 3.1(A) AND (B) ABOVE.
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
4
3.3
THE PARTIES AGREE THAT, IN ORDER TO SATISFY
NORSUN'S SUPPLY OBLIGATIONS UNDER THE INGOT/WAFER SUPPLY AGREEMENT, IN ADDITION
TO THE POLYSILICON IT SHALL PURCHASE FROM SUNPOWER UNDER THIS AGREEMENT IN THE
QUANTITIES SET FORTH IN THE THIRD COLUMN OF EXHIBIT B, NORSUN SHALL BE REQUIRED
TO PROCURE FROM OTHER THIRD PARTIES ADDITIONAL POLYSILICON IN THE QUANTITIES SET
FORTH IN THE FOURTH COLUMN OF EXHIBIT B UNDER THE HEADING "NORSUN POLY VOLUME
(MT), PROVIDED, HOWEVER, THAT FOR THE YEARS 2008 THROUGH 2009 NORSUN'S
OBLIGATION TO PROCURE ADDITIONAL POLYSILICON APPLY ONLY TO THE EXTENT AND FOR
THE QUANTUM OF POLYSILICON THAT ARE MADE AVAILABLE TO NORSUN (USING ITS BEST
EFFORTS) FROM POLYSILICON MANUFACTURERS IN WHICH NORSUN HAS AN EQUITY INTEREST.
THE PARTIES FURTHER ACKNOWLEDGE THAT ANY SHORTFALL IN DELIVERIES OF POLYSILICON
FROM SUNPOWER MAY CAUSE A CORRESPONDING REDUCTION OF NORSUN'S DELIVERIES OF
WAFERS AND INGOTS UNDER THE WAFER/INGOT AGREEMENT.
4.
PRICE AND QUANTITY
4.1
THE PRICE AND QUANTITY OF POLYSILICON TO BE
PURCHASED BY NORSUN FROM SUNPOWER FOR THE SPECIFIC YEARS IS AS SET FORTH IN THE
FIRST THREE COLUMNS OF EXHIBIT B. FROM THE EFFECTIVE DATE THROUGH DECEMBER 31,
2009, UNIT PRICES FOR SHIPMENT OF POLYSILICON ARE FCA WACKER GERMANY OR FCA
HEMLOCK, MICHIGAN USA (INCOTERMS 2000); COMMENCING JANUARY 1, 2010, UNIT PRICES
FOR SHIPMENT OF POLYSILICON ARE FCA HEMLOCK, MICHIGAN USA (INCOTERMS 2000).
SUBJECT ONLY TO THE PRICE ADJUSTMENTS SET FORTH IN SECTION 4.2, PRICES LISTED IN
EXHIBIT B ARE FIXED FOR THE TERM OF THIS AGREEMENT.
4.2
SUNPOWER SHALL ADJUST THE PRICES ON POLYSILICON
EQUAL TO THE ADJUSTMENT IN PRICES TO BE PAID BY SUNPOWER TO THIRD PARTY
POLYSILICON MANUFACTURERS PROVIDING SUNPOWER WITH POLYSILICON RESOLD TO NORSUN
IN ACCORDANCE WITH THIS AGREEMENT. ANY ADJUSTMENT SHALL TAKE FORCE AS FROM THE
SAME DATE AS THE PRICE ADJUSTMENT ON THE SUPPLY FROM SUCH THIRD PARTY
MANUFACTURERS.
5
PURCHASE ORDERS
5.1
NORSUN 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.
5.2
EACH MONTH SUNPOWER SHALL ISSUE A RELEASE
IDENTIFYING THE MONTHLY