Amendment No. 3 to Second Amended & Restated Supply Agreement
Exhibit
10.116
[*]
= 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. 3 to
Second
Amended & Restated Supply Agreement
This
Amendment No. 3 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, (the “Supply Agreement”) as amended
by that certain Amendment No. 1 to Second Amended & Restated Supply
Agreement dated as of October 22, 2008, and that certain Amendment No. 2 to
Second Amended & Restated Supply Agreement dated as of March 26, 2009
(collectively, the “Agreement”);
Whereas,
SOLARFUN has paid to HOKU $37 million of the $55 million Total
Deposit;
Whereas,
SOLARFUN was to have paid HOKU an additional $13 million of the Total Deposit
pursuant to the Agreement (the “Unpaid
Deposit”) and such amount remains unpaid as of the date
hereof;
Whereas,
the Parties desire to adjust the timing of when SOLARFUN will pay the remaining
$18 million of the Total Deposit to HOKU;
Whereas,
the Parties desire to make certain amendments to the 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 Agreement as set forth below.
Agreement
1. Effectiveness. This
Amendment shall become effective upon HOKU’s receipt of Eight Million U.S.
Dollars pursuant to Section 5.2.2 of the Agreement, as amended by Section 4
below. Solarfun will process the payment as soon as
possible. If such payment is not received on or before that date
which falls fifteen (15) business days after the date of this Amendment, 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 Agreement shall continue in full force and effect.
2. Definitions. All
capitalized terms not otherwise defined are defined in the
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
5.2.2. Section 5.2.2 of the Agreement is hereby amended and
restated to read as follows:
5.2.2.
Seventeen Million U.S. Dollars (USD $17,000,000) of the Main Deposit (the “Third
Deposit”) shall be paid to HOKU in accordance with the following payment
schedule:
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Payment Date
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Payment Amount
(US Dollars)
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March 31, 2009
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$ | 5 million | ||
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No later than fifteen (15)
business days after the date
of this Amendment
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$ | 8 million | ||
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March 1, 2010
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$ | 4 million | ||
HOKU
hereby acknowledges receipt of the $5 million payment that was due on or before
March 31, 2009.
5. Amendment of Section
5.2.3. Section 5.2.3 of the Agreement is hereby amended and
restated to read as follows:
5.2.3. Six
Million U.S. Dollars (USD $6,000,000.00) of the Main Deposit (the “Fourth
Deposit”) shall be paid to HOKU in equal monthly increments of One
Million Dollars (USD $1,000,000.00) beginning with the First Shipment Date, with
each such portion of the Fourth Deposit being invoiced separately on the date of
shipment, and being payable to HOKU within fifteen (15) calendar days after
receipt of the applicable invoice (the “Fourth Deposit
Date”).
6. Amendment of Section
5.4. Section 5.4 of the Agreement is hereby amended and
restated to read as follows:
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. Except for payment of any portion of the Fourth Deposit, which
shall be paid in accordance with Section 5.2.3 above, payment terms for all
invoiced amounts shall be [*] 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 of the Agreement, shipments
to SOLARFUN shall be credited against the Total Deposit beginning in the first
Year, as set forth in Appendix
1 (Pricing Schedule).
7. Amendment of Appendix
1. Appendix 1 to the Agreement (Pricing Schedule) is hereby
amended and restated, and replaced with Appendix 1 to this
Amendment.
8. Delay in
Amortization. In the event that HOKU is not able to make
shipments according to the schedule in Appendix 1 such that SOLARFUN’s
prepayments are similarly not amortized according to that schedule, then
SOLARFUN will not make any further prepayments (as those payments are detailed
in Sections 4 and 5 above) until the amortization of its previous prepayments is
in accordance with the schedule. If HOKU’s shipments are delayed to
such an extent that the total amount of amortization due and outstanding to
SOLARFUN becomes US$1MM or more, then HOKU will directly refund that outstanding
amount to SOLARFUN from SOLARFUN’s previous prepayments in order to bring the
amortization in accordance with the schedule.
9. Waiver of
Interest. Provided that SOLARFUN makes all payments to HOKU in
accordance with the schedules set forth in Sections 4 and 5 above, HOKU hereby
agrees to waive all interest and penalties that may have accrued as a result of
SOLARFUN’s late payment of the Unpaid Deposit.
10. HOKU’s Termination
Rights. In addition to HOKU’s rights and remedies under the
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 Agreement, as amended by Section 4 above, and
Section 5.2.3 of the Agreement, as amended by Section 5 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 ten (10) days after receipt
of such notice, terminate the Agreement and retain all amounts of the Total
Deposit that have been paid to HOKU as of the date of such notice.
11. Integration &
Survival. Except for the amendments specifically set forth
above, the terms of the Agreement shall continue in full force and effect mutatis
mutandis. This Amendment and the Agreement constitute the
entire agreement between the Parties concerning the subject matter
hereof.
12. Miscellaneous. Except
where the terms of this Amendment conflict with the Agreement, the “General
Provisions” set forth in Section 13 of the 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 Agreement, the terms of this Amendment shall
control.
[Signature
page follows.]
IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 3 to Second
Amended & Restated Supply Agreement as of the first date set forth
above.
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SOLARFUN:
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HOKU:
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SOLARFUN
POWER HONG KONG LIMITED
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HOKU
MATERIALS, INC.
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By:
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/s/ Ping Xxxxx Xxx
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By:
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/s/ Xxxxx Xxxx
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Name:
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Ping Xxxxx Xxx
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Name:
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Xxxxx Xxxx
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Title:
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Director
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Title:
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Chief Operating Officer
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Date:
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November 11, 2009
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Date:
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November 15,
2009
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Exhibit
10.116
Appendix
1
Pricing
Schedule
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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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Yr
10
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Total
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||||||||||||||||||||||||||
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Tons
per Year
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[*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | |||||||||||||||||||||||||
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Price
per KG
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[*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | ||||||||||||||||||||||||||
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Purchase
Value ($M)
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[*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | |||||||||||||||||||||||||
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Prepayment
Credit/yr ($M)
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[*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | |||||||||||||||||||||||||
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Net
Invoice Amount /kg
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[*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | [*] | ||||||||||||||||||||||||||
If there
is uncertainty in price between the delivery period and the total quantity for
that period based on the table above, the price assigned to the quantity shall
prevail regardless of whether all of the shipments in each period are delivered
in that period. For example, the first [*] MT shall be invoiced at
$[*] per kilogram even if some of that [*] MT is delivered in Year 2; the next
[*] MT shall be invoiced at $[*] per kilogram even if some of that [*] MT is
delivered in Year 3, and so forth
As per
Section 4.1 of the Agreement, it is understood that a shipping schedule will be
provided by HOKU each year at least sixty (60) days prior to the applicable
year, except in the case of Year 1 above, where the shipping schedule will be
provided by HOKU at least 30 days prior to the date of the first
shipment. It is further understood that the shipments for all Years,
including Year 1, will be approximately equal monthly shipments, and that the
amortization for each of those shipments will be on a pro-rated basis based on
the annual amortization amount in the table above.
