AMENDMENT NO. 1 TO SUPPLY AGREEMENT
Exhibit
10.94
[*]
= 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. 1 TO SUPPLY AGREEMENT
This
Amendment No. 1 to Supply Agreement (this “Amendment”)
is entered into as of this 8th day of
January, 2009 between JIANGXI JINKO SOLAR CO., LTD. (hereinafter “JINKO”)
and HOKU MATERIALS,
INC., a Delaware corporation (hereinafter “HOKU”). HOKU
and JINKO are sometimes referred to in the singular as a “Party” or
in the plural as the “Parties”.
Recitals
Whereas,
HOKU and JIANGXI KINKO ENERGY CO., LTD. (“KINKO”)
are parties to that certain Supply Agreement dated as of July 25, 2008 (the
“Supply
Agreement”), pursuant to which KINKO has agreed to purchase from HOKU,
and HOKU has agreed to sell to KINKO, [*] metric tons of Products per Year over
a ten Year period; and
Whereas,
HOKU was informed on December 24, 2008, that KINKO had changed its name to
“JIANGXI JINKO SOLAR CO., LTD.”; and
Whereas,
HOKU and JINKO desire to amend certain provisions of the Supply Agreement as set
forth herein to, among other things, reduce JINKO’s annual purchase commitment,
and HOKU’s annual supply commitment, to [*] metric tons of Products per Year
over a ten Year period;
NOW,
THEREFORE, in furtherance of the foregoing Recitals and in consideration of the
mutual covenants and obligations set forth in this Amendment, the Parties hereby
agree as follows:
Agreement
1. Definitions. Unless
otherwise defined herein, capitalized terms used in this Amendment shall have
the meetings set forth in the Supply Agreement.
2. Amendments. The
following provisions of the Supply Agreement are amended or amended and restated
as follows.
2.1. All
references in the Supply Agreement to “JIANGXI KINKO ENERGY CO., LTD.” shall be
deemed references to “JIANGXI JINKO SOLAR CO., LTD.” and all references to
“KINKO” shall be deemed references to “JINKO”.
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JINKO Initials & Date __XL 12/22/08_____
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HOKU Initials & Date ___DS 1/8/2009________________________
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Page 1 of 4
2.2. Section
1.6 of the Supply Agreement is hereby amended and restated in its entirety to
read as follows:
1.6 “Minimum Annual
Quantity of Product” means [*] metric tons ([*]
kilograms).
2.3. The
last sentence of Section 2 of the Supply Agreement is hereby amended and
restated in its entirety to read as follows:
This
Agreement constitutes a firm order from JINKO for [*] metric tons of Product
that cannot be cancelled during the term of this Agreement, except as set forth
in Section 9 below.
2.4. Section
5.2 of the Supply Agreement is hereby amended and restated in its entirety to
read as follows:
5.2. On
or before January 5, 2009, JINKO shall provide HOKU with a deposit of Ten
Million U.S. Dollars (US$10,000,000) via wire transfer of immediately available
funds (the “Second
Deposit”) as advance payment for Products to be delivered under this
Agreement.
2.5. Section
5.3 of the Supply Agreement is hereby amended and restated in its entirety to
read as follows:
5.3 On
or before March 31, 2009, JINKO shall provide HOKU with a deposit of Thirteen
Million U.S. Dollars ($13,000,000) via wire transfer of immediately available
funds (the “Third
Deposit” and together with the Initial Deposit and the Second Deposit,
the “Total
Deposit”) as advance payment for Products to be delivered under this
Agreement.
2.6. To
eliminate the requirement that JINKO provide the First Letter of Credit, Section
5.4 of the Supply Agreement is amended and restated in its entirety to read as
follows:
5.4 [Reserved]
2.7. To
eliminate the requirement that JINKO provide the Second Letter of Credit,
Section 5.5 of the Supply Agreement is amended and restated in its entirety to
read as follows:
5.5 [Reserved]
2.8. Section
9.3 of the Supply Agreement is hereby amended and restated in its entirety to
read as follows:
9.3. HOKU
shall have the right to terminate this Agreement and retain the Initial Deposit
and the Second Deposit as liquidated damages if JINKO fails to pay the Third
Deposit when due in accordance with Section 5.3 of this Agreement (as
amended).
2.9. Appendix
1 to the Supply Agreement is amended to account for the reduction in Product
volume from [*] metric tons per Year to [*] metric tons per
Year.
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JINKO Initials & Date __XL 12/22/08_____
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HOKU Initials & Date ___DS 1/8/2009________________________
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Page 2 of 4
3. In
exchange for HOKU’s acceptance of this Amendment to the Supply Agreement, JINKO
agrees to provide HOKU, at HOKU’s sole option, wafer manufacturing (tolling)
services for up to [*] metric tons of polysilicon per Year for the term of the
Supply Agreement. If HOKU so elects in any given Year, then the polysilicon to
be manufactured into wafers shall be provided by HOKU in addition to the [*]
metric tons of polysilicon due to JINKO during the applicable Year under the
terms of the Supply Agreement (as amended hereby), and shall be provided to
JINKO at HOKU’s cost. The Parties agree that per-wafer pricing for this service
shall be determined through negotiation on an annual basis. These negotiations
shall be concluded no later than two months prior to the commencement of the
applicable Year, at which time HOKU shall provide JINKO with an estimate of the
expected volume, if any, of polysilicon to be manufactured into wafers during
the Year to follow. JINKO shall affirm that the pricing offered to HOKU at such
time shall be JINKO’s most preferential rate, and no greater than the lowest
per-wafer tolling price charged to any of JINKO's other customers at such
time.
4. Except
as specifically amended herein, the terms of the Supply Agreement shall continue
in full force and effect without modification or amendment.
5. HOKU
hereby (A) acknowledges that it has received in full the Second Deposit pursuant
to Section 5.2 of the Supply Agreement, as amended by this Amendment, and (B)
waives all its rights with respect to breaches by JINKO of Sections 5.1, 5.2 and
5.4 of the Supply Agreement effective before this Amendment.
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JINKO
Initials & Date __XL 12/22/08_____
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HOKU Initials & Date ___DS 1/8/2009________________________
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IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 1 to Supply
Agreement as of the date first set forth above.
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JINKO:
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HOKU:
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JIANGXI
JINKO SOLAR CO., LTD.
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HOKU
MATERIALS, INC.
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By:
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/s/ Xxxxxx Xx
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx Xx
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Name:
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Xxxxxx X. Xxxxxx
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Title:
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Chairman
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Title:
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Chairman & CEO
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| Authorized Signatory | Authorized Signatory | |||
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Date:
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December 22, 2008
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Date:
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January 8,
2009
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JINKO Initials & Date __XL 12/22/08_____
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HOKU Initials & Date ___DS 1/8/2009________________________
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Signature Page to Amendment No. 1 to Supply Agreement
Page 4 of 4
