This Supply Agreement involves
Title: Amendment No. 3 to Second Amended Restated Supply Agreement
Industry: Semiconductors Sector: Technology
[*] = 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.
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.
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:
March 31, 2009
No later than fifteen (15)
business days after the
date of this Amendment
March 1, 2010
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: