Amendment No. 2 to Second Amended & Restated Supply Agreement
EXHIBIT
10.101
[*]
= CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED FROM PUBLIC FILING PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT SUBMITTED TO THE U.S. SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION, WHICH HAS BEEN IDENTIFIED WITH THE SYMBOL “[*],” HAS
BEEN FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Amendment
No. 2 to
Second
Amended & Restated Supply Agreement
This
Amendment No. 2 to Second Amended & Restated Supply Agreement (this “Amendment”)
is entered into as of the last date set forth on the signature page hereto, by
and between Hoku Materials, Inc., a Delaware corporation (“HOKU”),
and Solarfun Power Hong Kong Limited, a company registered in Hong Kong (“SOLARFUN”). HOKU
and SOLARFUN are each a “Party” and together the “Parties” to this
Amendment.
Recitals
Whereas,
HOKU and SOLARFUN are Parties to that certain Second Amended & Restated
Supply Agreement dated as of May 13, 2008, as amended by that certain Amendment
No. 1 to Second Amended & Restated Supply Agreement dated as of October 22,
2008 (together, the “Supply
Agreement”);
Whereas,
the Parties desire to make certain amendments to the Supply Agreement as
hereinafter set forth; and
Whereas,
each Party derives a benefit from the amendments set forth herein.
Now
therefore, in consideration of the foregoing, and for other good and valuable
consideration, the receipt of which is hereby acknowledged by the Parties, the
Parties agree to amend the Supply Agreement as set forth below.
Agreement
1. Effectiveness. This
Amendment shall become effective upon HOKU’s receipt of Five Million U.S.
Dollars pursuant to Section 5.2.2 of the Agreement, as amended by Section 7 below. If such payment is not
received on or before March 31, 2009, then this Amendment shall be voidable at
HOKU’s sole and absolute discretion. In the event that this Amendment
is voided by HOKU, then the Supply Agreement shall continue in full force and
effect.
2. Definitions. All
capitalized terms not otherwise defined are defined in the Supply
Agreement.
3. Time & Location for
Performance. All dates and times set forth in this Amendment
shall be the day and time in New York, USA.
4. Amendment of Section
3.3. Section 3.3 of the Agreement is hereby amended and
restated to read as follows:
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Hoku
Initials & Date /s/ DS Mar 25,
2009
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Solarfun
Initials & Date /s/ HH
26.03.2009
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1
3.3. Except
in the case of a force majeure pursuant to Section 12 below, if at any time
after ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇ does not supply any Products pursuant to Section 3.1
or 3.2 within [*] days of the scheduled delivery date, HOKU will provide
SOLARFUN with a purchase price adjustment. Such purchase price adjustment shall
be [*] of the value of the respective delayed Products for each week or part
thereof that the Product shipment (or part thereof) is delayed beyond the [*]
day grace period. Any purchase price adjustment as a result of this Section 3.3
will be paid by HOKU at the end of the term of the applicable calendar
quarter. In lieu of making a cash payment to SOLARFUN pursuant to
this Section 3.3, HOKU may, at its option, pay for such purchase price
adjustment in the form of a credit issued for future shipments of Products.
Notwithstanding anything to the contrary, the maximum amount of such purchase
price adjustment shall not exceed [*] of the value of the respective delayed
Products. Monthly shipments which are delayed beyond [*] days shall
be deemed to constitute a material breach of this Agreement pursuant to Section
9.2.1 below. Notwithstanding the foregoing, if SOLARFUN fails to make
a payment to HOKU for Products actually shipped by HOKU within the [*] period
set forth in Section 5.4 below, HOKU shall not be required to supply any
additional Product to SOLARFUN until HOKU has received the past due amount
including any interest payable thereon pursuant to this
Agreement. For the avoidance of doubt, SOLARFUN’s right to reduce the
purchase price pursuant to this Section 3.3 shall not apply if HOKU is not
fulfilling its supply obligations for this reason.
5. Amendment of Section
3.4. Section 3.4 of the Agreement is hereby amended and
restated to read as follows:
3.4. If
HOKU delivers any Products to SOLARFUN prior to April 1, 2010, then SOLARFUN
shall pay HOKU a premium equal to [*] of the applicable purchase price for the
Products shipped prior to April 1, 2010.
6. Amendment of Section
4.3. Section 4.3 of the Agreement is hereby amended and
restated to read as follows:
4.3. HOKU
will use commercially reasonable efforts to make its first shipment of Products
to SOLARFUN on or before January 1, 2010.
7. Amendment of Section
5.2.2. Section 5.2.2 of the Agreement is hereby amended and
restated to read as follows:
5.2.2. Eighteen
Million U.S. Dollars (USD $18,000,000) of the Main Deposit (the “Third
Deposit”) shall be paid to HOKU in accordance with the following payment
schedule:
|
Payment
Date
|
Payment
Amount
(US
Dollars)
|
|
March
31, 2009
|
$5
million
|
|
July
20, 2009
|
$8
million
|
|
August
20, 2009
|
$1
million
|
|
September
20, 2009
|
$1
million
|
|
October
20, 2009
|
$3
million
|
8. Amendment of Section
5.2.3. Section 5.2.3 of the Agreement is hereby amended and
restated to read as follows:
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Hoku
Initials & Date /s/ DS Mar 25,
2009
|
Solarfun
Initials & Date /s/ HH
26.03.2009
|
2
5.2.3. Five
Million U.S. Dollars (USD $5,000,000.00) of the Main Deposit (the “Fourth
Deposit”) shall be paid to HOKU on or before January 20, 2010 (the “Fourth Deposit
Date”).
9. Amendment of Section
9.1. Section 9.1 of the Agreement is hereby amended and
restated to read as follows:
9.1. The
term of this Agreement shall begin on the Effective Date and provided that the
first delivery of the Product under this Agreement shall occur on or before June
30, 2010, and unless previously terminated as hereinafter set forth, shall
remain in force for a period of ten Years beginning with the First Shipment
Date.
10. Amendment of Section
9.2.5. Section 9.2.5 of the Agreement is hereby amended and
restated to read as follows:
9.2.5. Without
limiting the foregoing, SOLARFUN shall have the right to terminate this
Agreement if the First Shipment Date does not occur on or before June 30,
2010.
11. HOKU’s Termination
Rights. In addition to HOKU’s rights and remedies under the
Supply Agreement, and at law and in equity, in the event that SOLARFUN fails to
pay any amount of the Third Deposit or the Fourth Deposit by the applicable date
set forth in Section 5.2.2 of the Supply Agreement, as amended by Section 7 above, and Section 5.2.3 of the Supply
Agreement, as amended by Section 8 above
(as applicable) HOKU may, upon written notice to SOLARFUN in
accordance with the notice provisions set forth in Section 13 of the Supply
Agreement, and SOLARFUN’s right to cure such payment default within [*] days
after receipt of such notice, terminate the Supply Agreement and retain all
amounts of the Total Deposit that have been paid to HOKU as of the date of such
notice.
12. Integration &
Survival. Except for the amendments specifically set forth
above, the terms of the Supply Agreement shall continue in full force and effect
mutatis
mutandis. This Amendment and the Supply Agreement constitute
the entire agreement between the Parties concerning the subject matter
hereof.
13. Miscellaneous. Except
where the terms of this Amendment conflict with the Supply Agreement, the
“General Provisions” set forth in Section 13 of the Supply Agreement, including,
without limitation, provisions concerning the choice of law and means for
dispute resolution between HOKU and SOLARFUN, shall apply to this
Amendment. In the event of any conflict between the terms of this
Amendment and the Supply Agreement, the terms of this Amendment shall
control.
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Hoku
Initials & Date /s/ DS Mar 25,
2009
|
Solarfun
Initials & Date /s/ HH
26.03.2009
|
3
IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 2 to Second
Amended & Restated Supply Agreement as of the first date set forth
above.
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SOLARFUN:
SOLARFUN
POWER HONG KONG LIMITED
By:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
CEO
Date:
26.03,2009
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HOKU:
HOKU
MATERIALS, INC.
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
CEO
Date:
▇▇▇▇▇ ▇▇,
▇▇▇▇
|
|
▇▇▇▇
Initials & Date /s/ DS Mar 25,
2009
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Solarfun
Initials & Date /s/ HH
26.03.2009
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