Exhibit 10.34
FIRST AMENDED & RESTATED SUPPLY AGREEMENT
This First Amended & Restated Supply Agreement ("AGREEMENT") is made as of the
last date set forth on the signature page hereto (the "EFFECTIVE DATE") between
SOLARFUN POWER HONG KONG LIMITED, a company registered in Hong Kong (hereinafter
"SOLARFUN") and Hoku Scientific, INC., a Delaware corporation (hereinafter
"HOKU"). HOKU and SOLARFUN are sometimes referred to in the singular as a
"PARTY" or in the plural as the "PARTIES".
RECITALS
Whereas, HOKU and SOLARFUN are parties that certain Supply Agreement dated as of
November 19, 2007 (the "SUPPLY AGREEMENT"), pursuant to which HOKU agreed to
sell to SOLARFUN, and SOLARFUN agreed to purchase from HOKU, polysilicon for
SOLARFUN'S general use beginning in calendar year 2009 for a continuous period
of eight years from the date of the first shipment.
Whereas, HOKU and SOLARFUN desire to amend and restate the Supply Agreement as
hereinafter set forth to allow SOLARFUN additional time to negotiate with its
banks for issuance of a letter of credit in an amount equal to the Main Deposit;
and such other terms as set forth herein.
Whereas, HOKU desires to supply polysilicon to SOLARFUN for its general use
beginning in calendar year 2009 for a continuous period of eight years from the
date of the first shipment;
Whereas, in exchange for HOKU's agreement to allocate the supply of polysilicon,
SOLARFUN desires to provide HOKU with a firm order for polysilicon upon the
terms and conditions provided herein;
NOW, THEREFORE, in furtherance of the foregoing Recitals and in consideration of
the mutual covenants and obligations set forth in this Agreement, the Parties
hereby agree as follows:
1. Definitions.
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The following terms used in this Agreement shall have the meanings set forth
below:
1.1. "AFFILIATE" shall mean, with respect to either Party to this
Agreement, any entity that is controlled by or under common control with such
Party.
1.2. "AGREEMENT" shall mean this First Amended & Restated Supply Agreement
and all appendices annexed to this Agreement as the same may be amended from
time to time in accordance with the provisions hereof.
1.3. "ESCROW ACCOUNT" is the bank deposit account created with the Escrow
Agent pursuant to the Escrow Agreement.
1.4. "ESCROW AGENT" shall mean (A) a bank that is domiciled in and
organized under the laws of one of the fifty states of the United States of
America, and which is reasonably acceptable to HOKU, or (B) a bank located in
China whose obligations and responsibilities are guaranteed by a bank that is
domiciled in and organized under the laws of one of the fifty states of the
United States of America, and which is reasonably acceptable to HOKU, or (C) any
other bank that is acceptable to HOKU in its sole discretion, or (D) any
successor escrow agent appointed pursuant to the Escrow Agreement.
1.5. "ESCROW AGREEMENT" has the meaning set forth in Section 5.3.1 below.
1.6. "FIRST SHIPMENT DATE" shall mean the first day of the calendar month
in which HOKU commences deliveries to SOLARFUN of Products pursuant to this
Agreement.
1.7. "FACILITY" shall mean any facility used by HOKU for the production of
the Product.
1.8. "MINIMUM ANNUAL QUANTITY OF PRODUCT" means two hundred metric tons
(200,000 kilograms) of Product during the first Year and seven hundred fifty
metric tons (750,000 kilograms) during each of the second through eighth Year,
inclusive.
1.9. "PRODUCT" shall mean the raw polysilicon in chunk form manufactured by
HOKU and sold to SOLARFUN pursuant to this Agreement.
1.10. "PRODUCT SPECIFICATIONS" shall mean the quality and other
specifications set forth on Appendix 2 to this Agreement.
1.11. "TERM" shall mean the period during which this Agreement is in
effect, as more specifically set forth in Section 9 of this Agreement.
1.12. "TOTAL DEPOSIT" shall mean all deposits or prepayments made by
SOLARFUN to HOKU hereunder including without limitation the Initial Deposit and
the Main Deposit.
1.13. "YEAR" shall mean each of the eight (8) twelve-month periods
commencing on the First Shipment Date.
2. Ordering. Starting on the First Shipment Date and each Year during the term
of this Agreement thereafter, SOLARFUN agrees to purchase from HOKU, and HOKU
agrees to sell to SOLARFUN, the Minimum Annual Quantity of Product at the prices
set forth on Appendix 1 to this Agreement (the "PRICING SCHEDULE"). This
Agreement constitutes a firm order from SOLARFUN for 5,450 metric tons of
Product that cannot be cancelled during the term of this Agreement, except as
set forth in Section 9 below.
3. Supply Obligations.
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3.1. HOKU shall deliver each Year pursuant to this Agreement starting on
the First Shipment Date at least the Minimum Annual Quantity of Product in
approximately equal monthly shipments pursuant to Section 4.1 below; provided
however, that if HOKU fails to deliver a monthly shipment, then HOKU may deliver
any deficiency within thirty (30) days without breaching this section or
incurring any purchase price adjustment (pursuant to Section 3.3 below). At any
time during the term of this Agreement, HOKU may ship to SOLARFUN up to the full
cumulative balance of Minimum Annual Quantity of Product to be shipped through
the end of this Contract (an "EXCESS SHIPMENT") with SOLARFUN's written consent.
This shipment will be credited against each subsequent Minimum Annual Quantity
of Product. For example, if the Minimum Annual Quantity of Product for a given
Year is 750 metric tons, and if HOKU delivers 750 metric tons in January, then
the next shipment of 750 metric tons is not required until the following Year.
3.2. HOKU intends to manufacture the Products at its Facility; however,
notwithstanding anything to the contrary herein, HOKU may deliver to SOLARFUN
Products that are manufactured by a third party other than HOKU, where HOKU is
acting only as a reseller or distributor of such Products; and provided that the
Products meet the Product Specifications and price set forth in this Agreement.
3.3. Except in the case of a force majeure pursuant to Section 12 below, if
at any time after September 30, 2009, HOKU does not supply any Products pursuant
to Section 3.1 or 3.2 within thirty (30) days of the scheduled delivery date,
HOKU will provide SOLARFUN with a purchase price adjustment. Such purchase price
adjustment shall be two and one-half percent (2.5%) 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 thirty (30) 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 fifty percent
(50%) of the value of the respective delayed Products. Monthly shipments which
are delayed beyond one hundred fifty (150) days shall be deemed to constitute a
material breach of this Agreement pursuant to Section 9.2.1 below.
3.4. If HOKU delivers any Products to SOLARFUN prior to October 1, 2009,
then SOLARFUN shall pay HOKU a premium equal to 20% of the applicable purchase
price for the Products shipped.
4. Shipping & Delivery.
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4.1. Except as provided in Section 3.2 above, shipments shall be made from
the Facility on a monthly basis in accordance with a shipment schedule that will
be provided by HOKU each Year under this Agreement (the "SHIPMENT SCHEDULE") no
later than sixty (60) days prior to the applicable year. The Shipment Schedule
shall provide for approximately equal monthly shipments that add up to the
Minimum Annual Quantity of Products.
4.2. HOKU agrees that it will not enter into any additional supply contract
with, or make any supply commitment to, any third party (not including the long
term supply contracts that have been signed prior to the Effective Date (the
"PRE-EXISTING COMMITMENTS")) if the aggregate of HOKU's delivery obligations
under all of its supply contracts (including those with SOLARFUN and its
Pre-existing Commitments) and such additional supply contract/commitment during
any month would exceed the rated monthly production capacity of all polysilicon
reactors at all HOKU Facilities, as certified by the manufacturer thereof.
Subject to the foregoing, this Section 4.2 shall not preclude HOKU from (A)
entering into supply contracts for additional capacity from Facility expansion,
including pre-sales of potential Facility expansions, or from increased
productivity of the Reactors, or (B) selling on the spot market or entering into
long-term contracts for the sale of polysilicon that does not meet the Product
Specifications at any time during the term of this Agreement, provided that HOKU
uses commercially reasonable efforts to meet the Product Specifications with
respect to such polysilicon and that HOKU does not manufacture polysilicon for
the purpose of making such spot market sales or fulfilling such long term
contracts
4.3. HOKU will use commercially reasonable efforts to make its first
shipment of Products to SOLARFUN on or before July 1, 2009.
5. Payments & Advances.
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5.1. HOKU acknowledges that as of the date of this Agreement, SOLARFUN has
provided HOKU with a deposit of Eleven Million U.S. Dollars (US$11,000,000) via
wire transfer of immediately available funds (the "FIRST DEPOSIT") as advance
payment for Products to be delivered under this Agreement.
5.2. SOLARFUN shall pay in cash to HOKU the additional sum of Forty-Four
Million U.S. Dollars (USD $44,000,000.00) (the "MAIN DEPOSIT") as an advance
payment for Products to be delivered under this Agreement in accordance with the
payment schedule set forth below.
5.2.1. Nineteen Million U.S. Dollars ($19,000,000) of the Main Deposit
(the "SECOND DEPOSIT") shall be paid to HOKU on September 30, 2008 (the "SECOND
DEPOSIT DATE").
5.2.2. Twenty Million U.S. Dollars (USD $20,000,000) of the Main
Deposit (the "THIRD DEPOSIT") shall be paid to HOKU on March 31, 2009 (the
"THIRD DEPOSIT DATE").
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 March 31, 2010 (the
"FOURTH DEPOSIT DATE").
5.3. Escrow Agreement; Letter of Credit.
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5.3.1. On or before February 15, 2008, either (A) SOLARFUN shall
provide to HOKU an irrevocable stand-by letter of credit in substantially the
form of APPENDIX 3 attached hereto (the "LETTER OF CREDIT") in the amount of the
Main Deposit, or (B) SOLARFUN, HOKU and the Escrow Agent shall sign an escrow
agreement in substantially the form of APPENDIX 4 (the "ESCROW AGREEMENT"), and
SOLARFUN shall deposit into the Escrow Account the amount of the Main Deposit.
5.3.1(a) If the Letter of Credit is provided pursuant to Section
5.3.1(A) above, then such Letter of Credit shall be issued to HOKU by a bank
domiciled in and organized under the laws of one of the fifty states of the
United States of America, and which is reasonably acceptable to HOKU (the
"ISSUING BANK"). The Letter of Credit shall be issued in US Dollars for the full
amount of the Main Deposit, and shall be freely assignable by HOKU in connection
with any assignment of this Agreement by HOKU pursuant to Section 13.3 below.
Payment to HOKU of the Second Deposit, Third Deposit and Fourth Deposit shall be
made by the Issuing Bank upon its receipt of written notice that SOLARFUN has
failed to make such payment on the Second Deposit Date, the Third Deposit Date
or the Fourth Deposit Date, as applicable. The Letter of Credit shall expire on
the later of the date when (A) the Main Deposit has been paid in full to HOKU by
SOLARFUN, or (B) the Main Deposit has been paid in full to HOKU by the Issuing
Bank.
5.3.1(b) If the Escrow Agreement is entered into pursuant to
Section 5.3.1(B) above, then the Main Deposit may be deposited into the Escrow
Account in US Dollars or Chinese RMB; provided, however, that all payments to
HOKU pursuant to this Agreement shall be in US Dollars. Payment of the Second
Deposit, Third Deposit and Fourth Deposit shall automatically be made to HOKU
from the Escrow Account pursuant to the Escrow Agreement on the Second Deposit
Date, Third Deposit Date and Fourth Deposit Date, as applicable. Notwithstanding
anything to the contrary, all payments from the Escrow Account to HOKU shall be
made in US Dollars, unless HOKU and SOLARFUN otherwise agree in writing. In the
event that the amount of any payment from the Escrow Account to HOKU in US
Dollars is less than the Second Deposit, Third Deposit, or Fourth Deposit, as
applicable, due to currency exchange rates from Chinese RMB to US Dollars, then
SOLARFUN shall be obligated to immediately pay HOKU in US Dollars the difference
between the actual payment from the Escrow Account and the Second Deposit, Third
Deposit or Fourth Deposit, as applicable. The final form of the Escrow Agreement
may be different from the form attached as Appendix 4, acceptance of which by
the Parties shall be evidenced by HOKU and SOLARFUN's execution thereof.
5.4. HOKU shall invoice SOLARFUN at or after the time of each shipment of
Products to SOLARFUN. Taxes, customs and duties, if any, will be identified as
separate items on HOKU invoices. All invoices shall be sent to SOLARFUN's
address as provided herein. Payment terms for all invoiced amounts shall be
thirty (30) days from date of shipment. All payments shall be made in U.S.
Dollars. Unless HOKU is entitled to retain the Total Deposit as liquidated
damages pursuant to Section 11 below, shipments to SOLARFUN shall be credited
against the Total Deposit beginning in the second Year, as set forth in
APPENDIX 1 (Pricing Schedule).
5.5. The prices for the Products do not include any excise, sales, use,
import, export or other similar taxes, such taxes will not include income taxes
or similar taxes, which taxes will be invoiced to and paid by SOLARFUN, provided
that SOLARFUN is legally or contractually obliged to pay such taxes. SOLARFUN
shall be responsible for all transportation charges, duties or charges for
shipping and handling; thus, the price for the Products shall not include any
such charges.
5.6. Late payments and outstanding balances shall accrue interest at the
lesser of 10% per annum or the maximum allowed by law.
6. Security Interest.
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6.1. Subject to receipt of the Initial Deposit and or payment of any
portion of the Main Deposit HOKU hereby grants to SOLARFUN a security interest
to secure the repayment by HOKU to SOLARFUN of the Total Deposit following any
of the events set forth in Section 9.6 below, which shall be subordinated in
accordance with Section 6.2 below, in all of the tangible and intangible assets
related to HOKU's polysilicon business (the "COLLATERAL").
6.2. SOLARFUN acknowledges and agrees that the security interests and liens
in the Collateral will not be first priority security interests, will be
expressly subordinated to HOKU's third-party lenders (the "SENIOR LENDERS") that
provide debt financing for the construction of any HOKU Facility, and may be
subordinated as a matter of law to other security interests, and to security
interests that are created and perfected prior to the security interest granted
to SOLARFUN hereby. SOLARFUN shall enter into subordination agreements with the
Senior Lenders on terms and conditions reasonably acceptable to the Senior
Lenders.
6.3. In addition, SOLARFUN shall enter into collateral, intercreditor and
other agreements (the "COLLATERAL AGREEMENTS") with HOKU's Senior Lenders, and
with SANYO Electric Co., Ltd., Suntech Power Holding Co., Ltd., Global Expertise
Wafer Division, Ltd., and HOKU's other customers who provide prepayments for
Products (collectively, "HOKU'S OTHER CUSTOMERS"), as may be reasonably
necessary to ensure that the security interest granted hereby is pari passu with
the security interests that may be granted to HOKU's Other Customers. SOLARFUN
may not unreasonably refuse to sign any such Collateral Agreement, provided that
such Collateral Agreement grants SOLARFUN a pari passu priority with respect to
HOKU's Other Customers, and is expressly subordinated to the Senior Lenders.
6.4. The security interest granted hereby shall continue so long as HOKU
continues to maintain any amount of the Total Deposit, and only to the extent of
such remaining amount of the Total Deposit being held by HOKU, which has not
been credited against the shipment of Products pursuant to this Agreement, or
otherwise repaid to SOLARFUN. Notwithstanding anything to the contrary contained
in this Agreement, the Collateral consisting of real property shall secure only
the obligations of HOKU to refund any portion of the Total Deposit to SOLARFUN
in accordance with the terms of this Agreement.
6.5. HOKU and SOLARFUN each agree to act in good faith to execute and
deliver any additional document or documents that may be required in furtherance
of the foregoing provisions of this Section 6, including the Collateral
Agreements. Neither HOKU nor SOLARFUN may unreasonably refuse to sign any such
document.
7. Product Quality Guarantee.
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7.1. HOKU warrants to SOLARFUN that the Products shall meet the Product
Specifications. For each shipment, this warranty shall survive for sixty (60)
days after the applicable shipment date (the "WARRANTY PERIOD"). Upon release of
the Products to a common carrier or freight forwarder, FOB origin, HOKU warrants
that the Products shall be free of all liens, mortgages, encumbrances, security
interests or other claims or rights. HOKU will, upon prompt notification and
compliance with HOKU's instructions, refund or replace, at SOLARFUN's sole
option, any Product which does not meet the Product Specifications, and SOLARFUN
shall comply with the inspection and return goods policy described in Section 8
below with respect to such Products. No employee, agent or representative of
HOKU has the authority to bind HOKU to any oral representation or warranty
concerning the Products. Any oral representation or warranty made prior to the
purchase of any Product and not set forth in writing and signed by a duly
authorized officer of HOKU shall not be enforceable by SOLARFUN. HOKU makes no
warranty and shall have no obligation with respect to damage caused by or
resulting from accident, misuse, neglect or unauthorized alterations to the
Products.
7.2. HOKU EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, AND FITNESS
FOR A PARTICULAR PURPOSE. HOKU's sole responsibility and SOLARFUN's exclusive
remedy for any claim arising out of the purchase of any Product is a refund or
replacement, as described above. In no event shall HOKU's liability exceed the
purchase price paid therefore; nor shall HOKU be liable for any claims, losses
or damages of any individual or entity or for lost profits or any special,
indirect, incidental, consequential, or exemplary damages, howsoever arising,
even if HOKU has been advised of the possibility of such damages.
7.3. HOKU shall, at its own expense, indemnify and hold SOLARFUN and its
Affiliates harmless from and against any expense or loss resulting from any
actual or alleged infringement of any patent, trademark, trade secret,
copyright, mask work or other intellectual property related to the Products, and
shall defend at its own expense, including attorneys fees, any suit brought
against SOLARFUN or SOLARFUN's Affiliates alleging any such infringement.
SOLARFUN agrees that: (i) SOLARFUN shall give HOKU prompt notice in writing of
any such suit; (ii) if HOKU provides evidence reasonably satisfactory to
SOLARFUN of HOKU's financial ability to defend the matter vigorously and pay any
reasonably foreseeable damages, SOLARFUN shall permit HOKU, through counsel of
HOKU's choice, to answer the charge of infringement and defend such suit (but
SOLARFUN, or SOLARFUN's Affiliate may be represented by counsel and participate
in the defense at its own expense); and (iii) SOLARFUN shall give HOKU all
needed information, assistance, and authority, at HOKU's expense, to enable HOKU
to defend such suit. In case of a final award of damages in any such suit HOKU
shall pay such award, but shall not be responsible for any settlement made
without its prior consent. Except as otherwise expressly set forth herein, HOKU
disclaims any obligation to defend or indemnify SOLARFUN, its officers, agents,
or employees, from any losses, damages, liabilities, costs or expenses which may
arise out of the acts of omissions of XXXX.
0. Inspection and Return Goods Policy.
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8.1. An inspection of appearance of each shipment of Product shall be made
by SOLARFUN in accordance with sound business practice upon the delivery of the
Product, and in no case later than four weeks after delivery at SOLARFUN's
factory. SOLARFUN shall inform HOKU promptly, and in no case later than six
weeks after delivery of Product, in case of any obvious damages or other obvious
defects to the Product which SOLARFUN discovers under the inspection of
appearance.
8.2. SOLARFUN shall perform final inspection of the Product upon
introducing the Product into SOLARFUN's production process. Such inspection
shall take place during the Warranty Period. If the Product does not meet the
Product Specifications, SOLARFUN shall notify HOKU in writing without undue
delay after the inspection and, together with the notification, submit
documentary evidence of the result of the final inspection whereupon HOKU shall
have the right to undertake its own inspection prior to any return of the
Products pursuant to Section 8.3 below.
8.3. Products may be returned to HOKU within the later of (a) 10 days after
discovery of a defect consistent with Sections 8.1 and 8.2 above; and (b) 10
days after HOKU completes its inspection and confirms the defect pursuant to
Section 8.2 above, for replacement or a refund including all return shipment
expenses. To assure prompt handling, HOKU shall provide SOLARFUN a return goods
authorization number within 48 hours of SOLARFUN's request. Provided that HOKU
communicates this number to SOLARFUN within such timeframe, SOLARFUN will
reference this number on return shipping documents. Returns made without the
authorization number provided by HOKU in accordance with the foregoing may be
subject to HOKU's reasonable charges due to HOKU's additional handling costs.
HOKU reserves the right to reverse any credit issued to SOLARFUN if, upon
return, such Product is determined by a predetermined third party not to be
defective.
9. Term and Termination.
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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
in 2009 or earlier, and unless previously terminated as hereinafter set forth,
shall remain in force for a period of eight Years beginning with the First
Shipment Date.
9.2. Each Party may, at its discretion, upon written notice to the other
Party, and in addition to its rights and remedies provided under this Agreement
or any other agreement executed in connection with this Agreement and at law or
in equity, terminate this Agreement in the event of any of the following:
9.2.1. Upon a material breach of the other Party of any material
provision in this Agreement, and failure of the other Party to cure such
material breach within sixty (60) days after written notice thereof; provided,
however, that such cure period shall not modify or extend the 150-day cure
period for HOKU's delivery obligations pursuant to Section 3.3 above; and
provided, further that such sixty (60) day cure period shall not apply to
SOLARFUN's failure to make any payment to HOKU pursuant to this Agreement. In
the event of SOLARFUN's failure to make payment on the 30-day payment terms set
forth in Section 5.4 hereof, termination by HOKU shall require the issuance of a
written notice of default containing the threat of immediate termination if
payment is not made within an additional grace period of not less than ten (10)
business days.
9.2.2. Upon the voluntary or involuntary initiation of bankruptcy or
insolvency proceedings against the other Party; provided, that for an
involuntary bankruptcy or insolvency proceeding, the Party subject to the
proceeding shall have sixty (60) working days within which to dissolve the
proceeding or demonstrate to the terminating Party's satisfaction the lack of
grounds for the initiation of such proceeding;
9.2.3. If the other Party (i) becomes unable, or admits in writing its
inability, to pay its debts generally as they mature, (ii) becomes insolvent (as
such term may be defined or interpreted under any applicable statute); or
9.2.4. In accordance with the provisions of Section 12 (Force Majeure)
below.
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 December 31, 2009.
9.3.
9.4. HOKU shall have the right to terminate this Agreement if on or before
February 15, 2008 SOLARFUN has failed to either (A) enter into the Escrow
Agreement with HOKU and the Escrow Agent and deposit the Main Deposit into the
Escrow Account pursuant to Section 5.3.1 above, or (B) deliver the Letter of
Credit pursuant to Section 5.3.1 above, in which case, HOKU shall be entitled to
retain the Initial Deposit as liquidated damages.
9.5. Upon the expiration or termination of this Agreement howsoever
arising, the following Sections shall survive such expiration or termination:
Sections 1 (Definitions); Section 7 (Product Quality Guarantee), Section 8
(Inspection and Return Goods Policy); Section 9 (Term and Termination); Section
10 (Liability); Section 11 (Liquidated Damages); and Section 13 (General
Provisions).
9.6. If SOLARFUN terminates this Agreement pursuant to Section 9.2.1,
9.2.2, 9.2.3, 9.2.4, 9.2.5 or 12 then any funds remaining on the Total Deposit
on such date of termination shall be returned to SOLARFUN; provided however that
if SOLARFUN is in material breach of this Agreement at the time it terminates
this Agreement, then HOKU shall not be required to repay any remaining amount of
the Total Deposit up to the amounts of HOKU's direct loss from such material
breach (unless SOLARFUN cures such breach within the applicable cure period) or
SOLARFUN's other outstanding and unpaid obligations hereunder (including,
without limitation, obligations under Section 11). "FUNDS REMAINING" on the
Total Deposit are funds not applied against SOLARFUN's purchase of Product,
pursuant to Section 5.4 above, for Product actually shipped to SOLARFUN
hereunder.
10. Liability.
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10.1. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR EXEMPLARY OR PUNITIVE DAMAGES, EVEN
IF SOLARFUN OR HOKU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. NEITHER PARTY'S TOTAL LIABILITY TO THE OTHER FOR ANY KIND OF LOSS,
DAMAGE OR LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER
ANY THEORY OF LIABILITY, SHALL EXCEED IN THE AGGREGATE THE TOTAL DEPOSIT, EXCEPT
WITH RESPECT TO SOLARFUN'S CONTINUING OBLIGATION TO PURCHASE THE PRODUCTS AS SET
FORTH HEREIN.
11. Liquidated Damages. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY BREACH OF
THIS AGREEMENT BY SOLARFUN MAY CAUSE IRREPARABLE AND IMMEASURABLE DAMAGE TO
HOKU. BECAUSE IT IS DIFFICULT TO MEASURE THESE DAMAGES, IN THE EVENT THAT THIS
AGREEMENT IS TERMINATED BY HOKU PURSUANT TO SECTION 9.2.1, 9.2.2, 9.2.3, 9.2.4,
or 9.4, THEN HOKU SHALL BE ENTITLED TO RETAIN AS LIQUIDATED DAMAGES, THE TOTAL
DEPOSIT (OR ANY REMAINING PORTION THEREOF NOT CREDITED AGAINST PRODUCT
SHIPMENTS). ANY AMOUNTS DUE FOR UNDELIVERED PRODUCT UNDER THIS AGREEMENT ARE
STILL DUE, UNLESS OTHERWISE AGREED BY BOTH PARTIES IN WRITING.
12. Force Majeure. Neither Party shall be liable to the other Party for failure
of or delay in performance of any obligation under this Agreement, directly, or
indirectly, owing to acts of God, war, war-like condition, embargoes, riots,
strike, lock-out and other events beyond its reasonable control which were not
reasonably foreseeable and whose effects are not capable of being overcome
without unreasonable expense and/or loss of time to the affected Party (i.e.,
the Party that is unable to perform). If such failure or delay occurs, the
affected Party shall notify the other Party of the occurrence thereof as soon as
possible, and the Parties shall discuss the best way to resolve the event of
force majeure. If the conditions of Force Majeure continue to materially impede
performance of any material obligation under this Agreement for a period of more
than three (3) consecutive calendar months, then the non-affected Party shall be
entitled to terminate this Agreement by 30 days' prior written notice to the
other Party.
13. General Provisions.
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13.1. This Agreement shall be construed under and governed by the laws of
the State of California, U.S.A.
13.2. Upon notice from one Party to the other of a dispute hereunder, the
Parties agree to hold a meeting within thirty (30) days of receipt of such
notice with at least one (1) representative from each Party who has
decision-making authority for such company. At this meeting, the Parties will
attempt to resolve the dispute in good faith. If, after the meeting, the dispute
has not been resolved, only then may a Party resort to litigation. Any
proceeding to enforce or to resolve disputes relating to this Agreement shall be
brought in California, USA. In any such proceeding, neither Party shall assert
that such a court lacks jurisdiction over it or the subject matter of the
proceeding.
13.3. HOKU may assign this Agreement to any of its Affiliates, and may
assign its rights under this Agreement to any collateral agent as collateral
security for HOKU's secured obligations in connection with the financing a HOKU
Facility, without the consent of SOLARFUN. Except as stated in the previous
sentence, neither HOKU nor SOLARFUN may assign this Agreement to a third party
without the prior written consent of the other Party, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, an assignment of this
Agreement by either Party in connection with a merger, acquisition, or sale of
all or substantially all of the assets or capital stock of such Party shall not
require the consent of the other Party. If this Agreement is assigned
effectively to a third party, this Agreement shall bind upon successors and
assigns of the Parties hereto.
13.4. Except as provided elsewhere in this Agreement, a notice is effective
only if the Party giving or making the notice has complied with this Section
13.4 and if the addressee has received the notice. A notice is deemed to have
been received as follows:
(a) If a notice is delivered in person, or sent by registered or certified
mail, or nationally or internationally recognized overnight courier,
upon receipt as indicated by the date on the signed receipt; or
(b) If a notice is sent by facsimile, upon receipt by the Party giving the
notice of an acknowledgment or transmission report generated by the
machine from which the facsimile was sent indicating that the
facsimile was sent in its entirety to the addressee's facsimile
number.
Each Party giving a notice shall address the notice to the appropriate person at
the receiving Party at the address listed below or to a changed address as the
Party shall have specified by prior written notice:
SOLARFUN:
SOLARFUN POWER HONG KONG LIMITED
In care of: JIANGSU LINYANG SOLARFUN CO., LTD.
Xx. 000 Xxxxxxx Xx.,
Xxxxxx Xxxxxxx Xxxxxxxx 000000
People's Republic of China
Tel: x00-00-0000-0000
Fax: x00-00-0000-0000
Attn: Xxxxxxx Xxxx, VP of Business Development
E-Mail: xxxxxxx.xxxx@xxxxxxxx.xxx.xx
HOKU:
HOKU SCIENTIFIC, INC.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx, CEO
E-mail: xxxxxxx@xxxxxxx.xxx
Facsimile: x0 (000) 000-0000
13.5. The waiver by either Party of the remedy for the other Party's breach
of or its right under this Agreement will not constitute a waiver of the remedy
for any other similar or subsequent breach or right.
13.6. If any provision of this Agreement is or becomes, at any time or for
any reason, unenforceable or invalid, no other provision of this Agreement shall
be affected thereby, and the remaining provisions of this Agreement shall
continue with the same force and effect as if such unenforceable or invalid
provisions had not been inserted in this Agreement.
13.7. No changes, modifications or alterations to this Agreement shall be
valid unless reduced to writing and duly signed by respective authorized
representatives of the Parties.
13.8. No employment, agency, trust, partnership or joint venture is created
by, or shall be founded upon, this Agreement. Each Party further acknowledges
that neither it nor any Party acting on its behalf shall have any right, power
or authority, implied or express, to obligate the other Party in any way.
13.9. Neither Party shall make any announcement or press release regarding
this Agreement or any terms thereof without the other Party's prior written
consent; provided, however, that the Parties will work together to issue a joint
press release within two (2) days after execution of this Agreement.
Notwithstanding the foregoing, either Party may publicly disclose the material
terms of this Agreement pursuant to the United States Securities Act of 1933, as
amended, the United States Securities Exchange Act of 1934, as amended, or other
applicable law; provided, however, that the Party being required to disclose the
material terms of this Agreement shall provide reasonable advance notice to the
other Party, and shall use commercially reasonable efforts to obtain
confidential treatment from the applicable governing entity for all pricing and
technical information set forth in this Agreement.
13.10. This Agreement constitutes the entire agreement between the Parties
and supersedes all prior proposal(s), discussions and agreements, including,
without limitation, the Supply Agreement, relative to the subject matter of this
Agreement and neither of the Parties shall be bound by any conditions,
definitions, warranties, understandings or representations with respect to such
subject matter other than as expressly provided herein. No oral explanation or
oral information by either Party hereto shall alter the meaning or
interpretation of this Agreement.
13.11. The headings are inserted for convenience of reference and shall not
affect the interpretation and or construction of this Agreement.
13.12. Words expressed in the singular include the plural and vice-versa.
IN WITNESS WHEREOF, the Parties have executed this First Amended & Restated
Supply Agreement as of the date last set forth below.
SOLARFUN: HOKU:
-------- ----
SOLARFUN POWER HONG KONG LIMITED HOKU SCIENTIFIC, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxxx Xxxx Name: Xxxxxx Xxxxxx
Title: Vice President of Business Development Title: Chairman & CEO
-------------------------------------- --------------
Authorized Signatory Authorized Signatory
Date: January 8, 2007 Date: January 7, 2008
CORPORATE GUARANTY
As an inducement for HOKU to enter into this Agreement with SOLARFUN, it is
hereby agreed that the undersigned does hereby guaranty to HOKU the prompt,
punctual and full payment of all monies now or hereinafter due HOKU from
SOLARFUN, and agrees to the following:
a) Until termination, this guaranty is unlimited as to amount or duration
and shall remain in full force and effect notwithstanding any
extension, compromise, adjustment, forbearance, waiver, release or
discharge of any party obligor or guarantor.
b) The obligations of the undersigned shall be at the election of HOKU,
shall be primary and not necessarily secondary, and HOKU shall not be
required to exhaust its remedies as against SOLARFUN prior to
enforcing its rights under this guaranty against the undersigned.
c) The guaranty hereunder shall be unconditional and absolute and the
undersigned waives all rights of subrogation and set-off until all
sums under this guaranty are fully paid. The undersigned further
waives all suretyship defenses or defenses in the nature thereof,
generally.
d) The guaranty shall be valid and continuing during the term of this
Agreement.
e) The undersigned warrants and represents it has full authority to enter
into this guaranty.
f) This guaranty shall be binding upon and inure to the benefit of the
parties, their successors, assigns and personal representatives.
g) This guaranty shall be construed and enforced under the laws of the
State of
California, USA
JIANGSU LINYANG SOLARFUN CO., LTD.
By: /s/ Xxxxxxx Xxxx Date: January 6, 2007
----------------------------------- --------------------------------------------
Name: Xxxxxxx Xxxx
-----------------------------------
Title: Vice President of Business Development
--------------------------------------
Authorized Signatory
