AMENDMENT NO. 1 TO AMENDED & RESTATED SUPPLY AGREEMENT
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CONFIDENTIAL
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Exhibit
10.115
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[*]
= 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
AMENDED
& RESTATED SUPPLY AGREEMENT
This
Amendment No. 1 to Amended & Restated Supply Agreement (this “Amendment”)
is entered into as of this 25th day of November, 2009 between JINKO SOLAR CO.,
LTD. (formerly “JIANGXI JINKO SOLAR CO., LTD.”, and 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 JINKO are parties to that certain Amended & Restated Supply
Agreement dated as of February 26, 2009 (the “Supply
Agreement”), pursuant to which JINKO has agreed to purchase from HOKU,
and HOKU has agreed to sell to JINKO, specified volumes of polysilicon each year
over a ten year period; and
Whereas,
HOKU and JINKO desire to amend certain provisions of the Supply Agreement as set
forth herein to, among other things, eliminate the first Year of the Supply
Agreement, such that the term of the Agreement will be reduced to nine (9) Years
from the First Shipment Date;
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 meanings 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.
Section 2.3 of the Supply Agreement is hereby amended and
restated in its entirety to read as follows:
2.3
“First Shipment
Date” shall mean the first day after November 30, 2010, when HOKU
commences deliveries to JINKO of Products pursuant to this
Agreement.
2.2.
Section 2.12 of the Supply Agreement is hereby amended and restated in its
entirety to read as follows:
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JINKO Initials & Date
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XL November 25, 2009
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HOKU Initials & Date
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DS November 25, 2009
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Exhibit
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2.12. “Year”
shall mean each of the nine (9) twelve-month periods commencing on the First
Shipment Date.
2.3.
The last sentence of Section 3 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 10 below.
2.4.
Section 4.3 of the Supply Agreement is hereby amended such that the
reference to November 30, 2009, is changed to November 30, 2010.
2.5.
Section 5.2 of the Supply Agreement is hereby amended such that the
reference to December 1, 2009, is changed to December 1, 2010, and the reference
to September 1, 2009, is changed to September 1, 2010.
2.6. The
last sentence of Section 6.4 of the Supply Agreement is herby amended and
restated in its entirety to read as follows:
Unless
HOKU is entitled to retain the Total Deposit as liquidated damages pursuant to
Section 12 below, shipments to JINKO shall be credited against the Total Deposit
on a straight-line basis during the first through ninth Year.
2.7.
Section 10.1 of the Supply Agreement is hereby amended such that the reference
to December 31, 2009, is changed to December 31, 2010, and the reference to ten
Years is changed to nine Years.
2.8.
Section 10.2.5 of the Supply Agreement is hereby amended such that
the reference to December 31, 2009, is changed to December 31,
2010.
2.9.
Section 15 of the Supply Agreement is hereby deleted in its entirety and
the following is hereby inserted in its place:
15.
[Reserved]
2.10.
The Pricing Schedule on Appendix 1 to the Supply Agreement is hereby
amended and restated in its entirety to read as follows:
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Yr 1
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Yr 2
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Yr 3
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Yr 4
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Yr 5
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Yr 6
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Yr 7
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Yr 8
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Yr 9
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Total
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Tons
per Year
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[*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | ||||||||||||||||||||||||||||||
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Price
per kg
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[*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | ||||||||||||||||||||||||||||||
2.11. The
Supply Agreement is hereby amended such that all the references to JIANGXI JINKO
SOLAR CO., LTD. are changed to JINKO SOLAR CO., LTD.
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JINKO Initials & Date
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XL November 25, 2009
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HOKU Initials & Date
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DS November 25, 2009
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Exhibit
10.115
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3. This
Amendment, together with the Supply Agreement, constitutes the entire agreement
between the Parties concerning the subject matter hereof,, and expressly
supersedes that certain Amendment No. 1 executed by the Parties on November 16,
2009. Except as specifically amended herein, the terms of the Supply Agreement
shall continue in full force and effect without modification or
amendment.
[This
space intentionally left blank.]
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JINKO Initials & Date
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XL November 25, 2009
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HOKU Initials & Date
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DS November 25, 2009
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Exhibit
10.115
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IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 1 to Amended &
Restated Supply Agreement as of the date first set forth above.
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JINKO:
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HOKU:
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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 Xxxxxx
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Name:
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Xxxxxx Xx
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Name:
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Xxxxxx 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
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Authorized
Signatory
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Date:
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November 25, 2009
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Date:
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November 25,
2009
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Signature
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