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EXHIBIT 10.27
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.
SALES REPRESENTATIVE AGREEMENT
THIS
SALES REPRESENTATIVE AGREEMENT (this "Agreement"), dated and
effective
this 29 day of September, 2006 (the "Effective Date"), between
EVERQ GMBH, a limited liability company organized and existing
under the
laws of Germany and having its principal place of business at
Sonnenallee 14-18,
06766 Thalheim, Germany ("EverQ"), and
EVERGREEN CORPORATION, a Delaware corporation of the United States
of
America, having its principal place of business at 138 Bartlett
Street,
Marlboro, Massachusetts, USA ("Evergreen").
EverQ and Evergreen are also collectively referred to herein as
"Parties"
and individually as "Party."
AGREEMENT
It
is mutually agreed that EverQ will manufacture and supply, and
Evergreen
will use commercially reasonable efforts to market and sell, as
representative
of EverQ, the Product as defined in this Agreement, pursuant to and
in
accordance with the following terms and conditions.
1.
DEFINITIONS AND EXHIBITS
The following terms shall have the following respective meanings
for
purposes of this Agreement:
(a) "Business Day" shall mean any day on which financial
institutions
are generally open and available for business, and which is not
otherwise a
holiday, in all of the German state of Saxony-Anhalt and the US
state of
Massachusetts.
(b) "Change of Control" means with respect to any entity, the
acquisition of such entity by another entity by means of any
transaction or
series of related transactions (including, without limitation, any
share
acquisition, sale of all or substantially all of the assets,
reorganization,
merger or consolidation, but excluding any sale of shares for
capital raising
purposes) other than a transaction or series of transactions in
which the
holders of the voting securities of such entity outstanding
immediately prior to
such transaction continue to retain (either by such voting
securities remaining
outstanding or by such voting securities being converted into
voting securities
of the surviving entity), as a result of shares in such entity held
by such
holders prior to such transaction, more than 50% of the total
voting power
represented by the voting securities of such entity or such
surviving entity
outstanding immediately after such transaction or series of
transactions
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(c) "Dedicated Production Capacity" shall mean the portion of
EverQ's
total production capacity that is dedicated and available for sale
by Evergreen,
which initially starts with 100% of the EverQ's production
capacity.
(d) "Orders" shall mean orders for Products issued hereunder by
Evergreen.
(e) "Product(s)" shall mean the products manufactured by EverQ
and
sold by Evergreen hereunder. The Products currently include those
products
described in Exhibit A.
(f) "Product Revenue" means the payment that Evergreen actually
receives in consideration for the sale of the respective Product to
a customer
hereunder and does not include third party costs such as shipping
and insurance
and does not include taxes and duties.
(g) "Specifications" shall mean the written specifications
according
to which the Products are currently manufactured as of September
29, 2006, which
specifications may be modified as provided under Section 12
(Changes).
(h) "Evergreen Design" means any proprietary visual design or
proprietary configuration of the Products provided by Evergreen and
formally
described by prior written notification by Evergreen as "Evergreen
Design".
Parties agree that the current status of products of EverQ does not
include any
"Evergreen Design". Such design will never include the String
Ribbon wafer or
cell technology.
The following Exhibits are attached to this Agreement and are
incorporated herein by this reference:
Exhibit A - Products
Exhibit B - Warranty
Each Party acknowledges receipt of copies of all documents
referred to in the Exhibits.
2.
PRECEDENCE OF DOCUMENTS
The precedence of agreements between Evergreen and EverQ shall
be:
(a) This Agreement, including any amendment adopted pursuant to
Section 21(e) (Amendments and Waivers).
(b) Any Order.
(c) Any subsequent written agreement between Evergreen and EverQ
that
does not expressly indicate it is an amendment to this
Agreement.
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3.
APPOINTMENT AND AUTHORITY OF EVERGREEN.
EverQ hereby appoints Evergreen as EverQ's sales agent
(KOMMISSIONSAGENT), and Evergreen hereby accepts such appointment.
Evergreen
will use commercially reasonable efforts to market and sell the
Product and
EverQ shall manufacture and deliver the Product ordered by
Evergreen in
accordance with the terms and conditions of this Agreement. Subject
to the terms
and conditions of this Agreement, Evergreen shall have the right to
manage and
conduct such activities in the manner it deems appropriate as
determined in
Evergreen's discretion.
4.
FORECASTS.
(a) EVERQ LONG TERM FORECASTS. Upon the Effective Date and at
[****],
EverQ shall provide Evergreen a written non-binding capacity
forecast ("EverQ
Long Term Forecast"), indicating the Dedicated Production Capacity
in each of
the next [****] from the date such forecast is given, including
periods already
covered by Evergreen's outstanding Contracts and Orders. EverQ
shall notify
Evergreen promptly upon becoming aware of circumstances that would
alter the
EverQ Long Term Forecast before the next EverQ Long Term Forecast
is due.
(b) EVERQ ROLLING FORECAST. Each [****] during the term of this
Agreement EverQ shall provide Evergreen a written rolling capacity
forecast
("EverQ Rolling Forecast"), indicating the Dedicated Production
Capacity in each
of the next [****], including periods already covered by
Evergreen's outstanding
Orders.
5.
PRODUCT SALES TRANSACTIONS.
(a) EVERQ TERMS. With respect to Products that may be sold by
Evergreen hereunder, EverQ shall, in its sole discretion, [****].
EverQ will
determine, in its sole discretion, adjustments to the [****]
generally or with
respect to a specific Product Sales Transaction where such
adjustment [****].
EverQ shall promptly notify Evergreen of the [****] or any
adjustments to the
[****]. EverQ will further determine, in its sole discretion, which
contracts
and contract terms that will require formal consent of the EverQ
Supervisory
Board, and EverQ shall notify Evergreen thereof. However, if
Evergreen is unable
to provide such contracts, approval of [****] shall suffice.
[****].
[****].
(b) PRODUCT SALES TRANSACTIONS. Evergreen shall have the right
to
negotiate and enter agreements and sales transactions, including
short and long
term contracts and other sales transactions, (collectively "Product
Sales
Transactions") directly with customers. Evergreen shall have the
right to
negotiate the terms applicable to the respective Product Sales
Transaction
("Negotiated Terms") provided that such terms are within the
[****]. EverQ shall
provide the Products hereunder in accordance with the Negotiated
Terms provided
that Negotiated Terms are within the [****] at the time the Product
Sales
Transactions are entered or, if not within such range, EverQ
approves the
Negotiated Terms. EverQ may approve the Negotiated Terms by
approving the
specific Negotiated Terms or [****], and after such approval, the
Negotiated
Terms are deemed within the [****] for such Product Sales
Transactions. Provided
that Product Sales Transactions are within the amounts of the EverQ
Long
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Term Forecast at the time the Product Sales Transactions are
entered, Evergreen
shall have the right to place Orders for Products in such Product
Sales
Transactions, and EverQ shall manufacture, sell and deliver the
Products in
accordance with such Orders. To the extent that the EverQ Rolling
Forecast
indicates EverQ has greater capacity, or EverQ otherwise has more
capacity
available than indicated by the EverQ Long Term Forecast, EverQ
shall make such
capacity available for the Product Sales Transactions subject to 6
(c)
(Exclusivity) and 6 (d) (Excess Inventory). [****].
(c) OFF-SPEC PRODUCT. Evergreen will use reasonable commercial
efforts
to sell off-spec product. It is understood that such off-spec
product, including
without limitation cosmetic rejects, or otherwise defective cells
and modules
shall be typically sold on the spot market with [****] that are
less favorable
to EverQ than prime product. To the extent EverQ does not provide
specific
[****], Evergreen is free to negotiate [****] as it deems
appropriate provided
the warranty is no more favorable to customers than the then
standard warranty.
(d) INFORMATION AND ACCOUNTING. Except to extent prohibited by
law,
Evergreen shall inform EverQ without delay of any Product Sales
Transactions
entered and render account of such Product Sales Transaction.
Section 384 para.3
of the German Commercial Code (Handelsgesetzbuch) shall not
apply.
(e) ADMINISTRATION BY EVERGREEN. Unless otherwise requested by
Evergreen, EverQ will not be a party to the Product Sales
Transactions. EverQ
shall not contact the customers except as necessary to exercise its
rights under
this Agreement, particularly under 8 (b) (Payment to EverQ) and 11
(c) (Warranty
Procedure). [****]. Evergreen shall have the right to be the sole
interface with
customers and to handle administration of order fulfillment,
invoicing,
collections, warranty, service and related activities.
6.
EVERGREEN FORECASTS AND ORDERS
(a) EVERGREEN FORECASTS. Each [****] during the term of this
Agreement, within [****] Business Days of receiving the EverQ
Rolling Forecast,
Evergreen shall provide EverQ a non-binding written rolling
forecast ("Evergreen
Forecast"), indicating Evergreen's good faith estimate of the total
quantity to
be ordered by Evergreen from EverQ under this Agreement in each of
the next
[****] months, including periods already covered by Evergreen's
outstanding
Orders. EverQ shall procure materials and manufacture Products
sufficient to
meet the Evergreen Forecasts. EverQ is not required to limit its
production to
the level of the Evergreen Forecasts. EverQ agrees to advise
Evergreen without
undue delay in the event that EverQ anticipates that it will be
unable to
achieve the volumes and schedules set forth in the Evergreen
Forecast.
(b) ORDERS. EverQ shall sell and deliver Products in accordance
with
the Product quantity, part number(s), specifications, destination
and delivery
dates specified in Evergreen's Orders for Product Sales
Transactions entered in
accordance with this Agreement. Within [****] Business Days after
receipt of the
Order, EverQ shall send a confirmation of acceptance, or, if not
accepted, a
written notice detailing reasons that the Order is not in
conformance with this
Agreement.
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(c) EXCLUSIVITY. Evergreen shall have the right to sell Products
in
the amount of EverQ's total production capacity, so long as
Evergreen has
continued to place cumulative Orders for Products (such Orders
resulting in
Product shipping) in the level of at least [****] percent ([****]%)
of Dedicated
Production Capacity in a calendar year. In the event that Evergreen
has placed
Orders for Products in the level of less than [****] percent
([****]%) in a
calendar year, Evergreen looses the exclusive right to sell
Products in the
amount of EverQ's total production capacity in the amount of the
shortfall in
Evergreen's sales from the full capacity. Instead EverQ shall have
the right to
sell the Products itself/ or through other sales / commission
agents provided
that EverQ satisfies its obligations to Evergreen with respect only
to existing
Product Sales Transactions. Products sold by EverQ independently of
Evergreen
shall not bear Evergreen Marks or be of an Evergreen Design. In the
event that
the level of Evergreen sales decreases because of default by
customers [****],
the parties will reasonably discuss and determine whether such
decrease should
cause Evergreen to lose its exclusivity set for the above.
[****].
(d) EXCESS INVENTORY. EverQ shall also have at any time the right
to
itself sell inventory to the extent accumulated if it exceeds
[****] percent
([****]%) of EverQ's annual production capacity or [****] MW,
provided that
EverQ satisfies its obligations to Evergreen with respect to
existing Product
Sales Transactions. Sales according to this clause (d) (Excess
Inventory) shall
not bear Evergreen Marks to the extent they can be reasonably
relabeled without
damage to product.
(e) SOURCING. [****].
7.
TERM OF AGREEMENT
This Agreement shall be effective on the Effective Date and
shall
expire [****] years from date of signing, subject to: (a) earlier
termination
pursuant to Section 14 (Termination), and (b) automatic renewal for
successive
[****] terms unless either party notifies the other in writing at
least [****]
prior to the beginning of such additional period that it desires
not to renew.
Upon termination of the Agreement, EverQ shall discontinue making
and selling
products with any (i) Evergreen Marks and any (ii) Evergreen
Design. .
8.
PRICING AND PAYMENT
(a) PRICING. Pricing will be determined in accordance with Section
5.
(b) PAYMENT TO EVERQ. Evergreen shall remit to EverQ the
Product
Revenue, less the Evergreen Fee. Evergreen shall remit such amount
within [****]
days of Evergreen's receipt of the Product Revenue from the
customer. Evergreen
shall have no liability to EverQ for delays or defaults in payment
for Product,
or product default or termination, by customers. Evergreen shall
use
commercially reasonable efforts to collect the Product Revenue. In
the event
that Evergreen is unable to collect on account for Product Revenue
within [****]
days of when due, then on EverQ's request as EverQ'sole remedy,
Evergreen will
assign the account to EverQ, which may collect on the account,
retain the funds
and remit the Evergreen Fee to Evergreen if the funds are
collected. In
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the event that Evergreen is not able to collect on account for
Product Revenue
within [****] days of when due, then Evergreen may satisfy its
obligation to use
commercially reasonable efforts to collect the Product Revenue by
assigning the
account to a collection agency for a standard collection fee.
Unless otherwise
agreed, payment shall be in the currency Evergreen receives from
its customers
for Product (which currency shall be specified to EverQ at the time
of its sale
upon EverQ's request).
(c) EVERGREEN FEE. In consideration for its activities
hereunder,
Evergreen shall receive a fee ("Evergreen Fee"). The Evergreen Fee
shall consist
of the sum of a Percentage Fee times the received Product Revenue.
The
"Percentage Fee" shall be adjusted by mutual agreement annually, on
the
anniversary of the Effective Date, and shall be set high enough to
cover [****].
The Percentage Fee shall be set initially at [****] percent
([****]%), which
shall be effective through [****]. All sales and marketing costs
and expenses of
Evergreen are compensated by the Evergreen Fee.
(d) ASSIGNMENT. Evergreen hereby assigns to EverQ by way of
security
each future Evergreen claim less the Evergreen Fee vis-a-vis its
customers for
Products Revenue under the Product Sales Transactions entered into
under this
Agreement in order to secure each such respective claim of EverQ
vis-a-vis
Evergreen under this Agreement. Evergreen is entitled to collect
the Product
Revenue from the customer according to Sec. 8 para. (a) and (b),
and particulary
Evergreen is entitled to assign the account to a collection agency
for a
standard collection fee. EverQ is allowed to inform the customers
and collect
the payment itself from its customers if Evergreen becomes
insolvent, files a
petition in bankruptcy, "Chapter 11" or makes an assignment for the
benefit of
creditors, or a receiver or similar officer is appointed to take
charge of all
or a part of Evergreen's assets.
(e) CREDIT. Undisputed amounts owed to Evergreen due to rejections
of
Product, warranty claims, discrepancies on paid invoices and other
undisputed
amounts payable under this Agreement will be, at Evergreen's
option, fully
credited against future invoices payable to EverQ, or paid by EverQ
within
[****] days from EverQ's receipt of a debit memo or other written
request for
payment from Evergreen.
(f) SET-OFF. Evergreen
retains the right to set-off undisputed amounts
owed from EverQ against amounts owed to EverQ.
(g) RECORDS AND AUDITS. Evergreen shall maintain complete and
accurate
records regarding the Product Sales Transactions in accordance with
generally
recognized commercial accounting practices, and Evergreen shall
keep such
records available for at least [****] years or longer, if required
by German tax
law and EverQ has notified Evergreen of such requirement, after end
of the
period to which they apply. Evergreen shall allow EverQ, through an
independent
certified public accountant mutually acceptable to Evergreen and
EverQ, during
office hours and at reasonable intervals, no more than [****] to
audit records
solely for the purpose of ascertaining the correctness of
Evergreen's payments
and for reviewing Evergreen Fee hereunder. The auditor shall be
subject to an
obligation of confidentiality, and Evergreen may require the
auditor to execute
a confidentiality agreement to that effect. The auditor shall
report only
whether a discrepancy was found, and if so, the amount of under or
overpayment.
If a deficiency of [****] per cent ([****]%)
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or more exists for the period audited, Evergreen shall pay, in
addition to such
deficiency, the reasonable costs of such audit.
9.
DELIVERY AND SHIPPING TERMS
EverQ shall deliver on the dates and to the locations in
accordance
with Evergreen's Orders for Product Sales Transactions entered in
accordance
with this Agreement. All shipping terms including responsibility
for cost of
shipping, taxes, insurance, passage of title and risk of loss shall
be in
accordance with the terms of the respective Product Sales
Transaction on which
the Order or portion thereof is based. All Products shall be
prepared, packed,
marked and shipped in accordance with the Specifications and [****]
and/or
otherwise mutually agreed between Evergreen and EverQ.
10.
FACILITIES, RECORDS, AUDITS AND QUALITY
(a) FACILITIES. EverQ shall manufacture and supply the Products
in
accordance with the Specifications and the other requirements of
this Agreement
using adequate, qualified manufacturing facilities, with all
necessary labor and
equipment. Such facilities shall be subject to Evergreen's
inspection and/or
audits from time to time. Unless otherwise agreed, EverQ is solely
responsible
to provide all parts, labor, materials and other items necessary to
perform its
obligations hereunder.
(b) RECORDS AND AUDITS. At Evergreen's request, upon reasonable
prior
notice, EverQ shall permit, Evergreen and its representatives to
periodically
inspect and audit EverQ's books, records, and manufacturing
facilities
pertaining to EverQ's manufacturing of the Products, or otherwise
relating to
EverQ's compliance with this Agreement. In accordance with
Evergreen's
reasonable request, [****]. EverQ shall maintain accurate and
complete records
regarding EverQ's manufacturing and supply of the Products. These
records shall
be held in no event less than [****] years kept following the end
of the
calendar quarter to which they pertain.
(c) QUALITY ASSURANCE DATA. EverQ agrees to provide outgoing
inspection, quality and reliability data as reasonably specified
from time to
time by Evergreen for the Products sold by Evergreen.
(d) STOPPING SHIPMENTS. Evergreen may request EverQ to stop shi
