This Supply Agreement involves
Title: 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. 4 to
Second Amended & Restated Supply Agreement
This Amendment No. 4 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, that certain Amendment No. 2 to Second Amended & Restated Supply Agreement dated as of March 26, 2009, and that certain Amendment No. 3 to Second Amended & Restated Supply Agreement dated as of November 15, 2009 (collectively, the “ Agreement ”);
Whereas, SOLARFUN has paid $45 million to HOKU as a prepayment for future Product shipments pursuant to the Agreement;
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 Four Million U.S. Dollars (USD $4,000,000.00) pursuant to Section 5.2.2 of the Agreement. Solarfun will process the payment as soon as possible. If such payment is not received on or before March 1, 2010, 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. Amendment of Section 3.3 . The reference to March 31, 2010 in Section 3.3 of the Agreement (as amended by Amendment No. 2) is hereby changed to September 30, 2010.
4. Amendment of Section 3.4 . Section 3.4 of the Agreement is hereby deleted in its entirety, and replaced with the following:
5. Amendment of Section 4.3 . The reference to January 1, 2010 in Section 4.3 of the Agreement (as amended by Amendment No. 2) is hereby changed to July 1, 2010.
6. 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 accordance with the following schedule:
(a) One Million Five Hundred Thousand U.S. Dollars (USD $1,500,000.00) of the Main Deposit shall be paid to HOKU on the First