Exhibit 10.04
[CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY
WITH THE COMMISSION.]
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY
WITH THE COMMISSION.]
[ENGLISH TRANSLATION]
Amendment No. 4 to Framework
Agreement MD-2-317 dated
April, 11th, 2006
Agreement MD-2-317 dated
April, 11th, 2006
Amendment to the Framework Agreement(the “Amendment”)
entered into by and between
First Solar GmbH, Rheinstrasse 4N, 55116 Mainz (hereinafter referred to as “Company”), represented by the managing director with single signature authority, Mr. Stephan Hansen, (hereinafter referred to as “Company”)
and
| Conergy AG,Anckelmannsplatz 1, D-20537 Hamburg (hereinafter referred to as “Buyer”) represented by the Chairman of the Board with single signature authority, Mr. Hans-Martin Rüter and the Member of the Board with joint signing authority, Dr. Edmund Stassen. | ||
| 1. | Recitals | |
| 1.1 | Company and Buyer entered into a Framework Agreement dated April 11, 2006 (the “Agreement”). | |
| 1.2 | Company and Buyer desire to modify and amend the “Agreement” in No. 2.1, to reflect a particular aspect in the Price /Volume Table. | |
| 2. | Agreement | |
| 2.1. | Effective as of the date hereof, the amended and changed Price/Volume Table as outlined in the Appendix shall apply. | |
| 2.2 | Company and Buyer hereby expressively consent to the changes and amendments to the Price/Volume Table. | |
| 2.3 | This “Amendment” is intended to modify and amend the “Agreement.” Except as modified herein, the “Agreement” remains in full force and effect in its original form. In the event of any conflict between the “Agreement” and this “Amendment”, this “Amendment” shall control. |
| 2.4 | Defined terms for particular meanings not otherwise defined in this Amendment shall have the meanings ascribed to them in the “Agreement.” |
/s/ Stephan Hansen | ||
| Stephan Hansen | ||
/s/ Hans-Martin Rüter/Edmund Stassen Hans-Martin Rüter/Edmund Stassen | ||
Appendix | ||
Price/Volume Table (Appendix C) |
Appendix C
Price/Volume Table
Quarterly Periods and Schedule Milestones
| Quarter | Definition | |||
| Quarter 1 | Calendar Week 1 through Week 13 | |||
| Quarter 2 | Calendar Week 14 through Week 26 | |||
| Quarter 3 | Calendar Week 27 through Week 39 | |||
| Quarter 4 | Calendar Week 40 through Week 52 | |||
| Milestone | Time Schedule | |
Initial binding Quarterly Forecast For Four (4) Quarters | FS and Buyer to agree by 1-April-2006 | |
Plus non-binding Fifth (5th) Quarter Target | ||
Rolling binding Four (4) Quarter | FS and Buyer to agree 5 calendar days | |
Forecast Plus a non-binding Fifth | before the start of the next successive First (1st) | |
| Quarter of the binding Four (4) | Quarter Forecast. | |
(5th) Quarter Target | ||
If the Parties do not agree | ||
otherwise the non-binding Fifth | ||
(5th) Quarter Target | ||
shall become the new binding | ||
Fourth (4th) Quarter | ||
Forecast | ||
If the Parties do not agree otherwise the new non-binding | FS and Buyer to agree 5 calendar days | |
Fifth (5th) Quarter Target shall be determined based | before the start of the next successive First (1st) | |
on the equitable discretion of FS.Such equitable discretion shall be | Quarter of the binding Four (4) Quarter Forecast. | |
based on the new binding Fourth (4th) Quarter Forecast | FS and Buyer to agree by December 1 | |
multiplied by a Quarterly Volume Adjustment Factor (x), such factor | of each annual period on the | |
(x) being within the range set forth below by defining a value in | Quarterly Volume Adjustment Factor | |
between a minimum x-value (xmin) and a maximum | (x)for the next annual period. | |
x-value (xmax) and considering the total amount of | ||
the Target Kilowatt Volume per calendar year as defined below. | ||
Additional Annual Volume Agreement | FS and Buyer to agree on 2006 | |
| Additional Annual Volume upon | ||
| execution of the Framework Agreement | ||
| and by December 1 of each successive | ||
| annual period for the next annual period. | ||
Notice period prior to Delivery for Carriage as defined in Section | For volume£ [***] weeks | |
4 for Annual Additional Volume. | For volume > [***] weeks |
| *** | CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
Appendix C
Price/Volume Table
| Total Annual Amounts | ||||||||||||
| Price / Volume Table C2 | 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | ||||||
Module Price per Watt (€) | [***] | [***] | [***] | [***] | [***] | [***] | ||||||
Target Kilowatt Volume (kW) | [***] | [***] | [***] | [***] | [***] | [***] | ||||||
Target Average Module Power (W) | [***] | [***] | [***] | [***] | [***] | [***] | ||||||
Minimum Kilowatt Volume (kW) | [***] | [***] | [***] | [***] | [***] | [***] | ||||||
Minimum Average Module Power (W) | [***] | [***] | [***] | [***] | [***] | [***] | ||||||
Additional Annual Volume (kW) | ||||||||||||
Bank Guarantee (Letter of Credit) (M€) | [***]* | [***] | [***] [***] | [***] | [***] | [***] | ||||||
| Payment Terms | 2006 | 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | |||||||||
Payment Terms (Net days from date of FS invoice) as set forth in Section 7. | [***] | [***] | [***] | [***] | [***] | [***] | [***] | |||||||||
| Fifth Quarter Forecast | 2006 | 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | |||||||||
Quarterly Volume Adjustment Factor (xmin < x < xmax) | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||
| *** | CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |