Attached files
| file | filename |
|---|---|
| 10-Q - Hoku Corp | v173126_10q.htm |
| EX-31.2 - Hoku Corp | v173126_ex31-2.htm |
| EX-31.1 - Hoku Corp | v173126_ex31-1.htm |
| EX-32.1 - Hoku Corp | v173126_ex32-1.htm |
| EX-32.2 - Hoku Corp | v173126_ex32-2.htm |
| EX-10.116 - Hoku Corp | v173126_ex10-116.htm |
| EX-10.115 - Hoku Corp | v173126_ex10-115.htm |
|
CONFIDENTIAL
|
|
|
Exhibit
10.117
|
[*]
= 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 the last date set forth on the signature page hereto
between SHANGHAI ALEX NEW ENERGY CO., LTD. (hereinafter “ALEX”) and
HOKU MATERIALS,
INC., a Delaware corporation (hereinafter “HOKU”). HOKU
and ALEX are sometimes referred to in the singular as a “Party” or
in the plural as the “Parties”.
Recitals
Whereas,
HOKU, ALEX, and SHANGHAI HUAYI ENTERPRISES GROUP, as guarantor, are parties to
that certain Supply Agreement dated as of February 27, 2009 (the “Supply
Agreement”), pursuant to which ALEX has agreed to purchase from HOKU, and
HOKU has agreed to sell to ALEX, specified volumes of polysilicon each year over
a ten year period; and
Whereas,
HOKU and ALEX desire to amend certain provisions of the Supply Agreement as set
forth herein to delay the first shipment of polysilicon by HOKU to ALEX until no
later than September 30, 2010;
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 when HOKU commences deliveries to ALEX of
Products pursuant to this Agreement.
2.2. Section
4.3 of the Supply Agreement is hereby amended and restated in its entirety to
read as follows:
|
ALEX Initials & Date
|
JGL LWZ 12/23/2009
|
HOKU Initials & Date
|
DS 12/30/2009
|
Page
1 of 3
|
CONFIDENTIAL
|
|
|
Exhibit
10.117
|
4.3 Except
in the case of a force majeure pursuant to Section 13 below, if at any time
after January 01, 2011, HOKU does not supply any Products pursuant to Section
4.1 or 4.2 within [*] days of the scheduled delivery date, HOKU will provide
ALEX with a purchase price adjustment. Such purchase price adjustment shall be
[*] of the value of the respective delayed Products for each week or part
thereof that the Product shipment (or part thereof) is delayed beyond the [*]
day grace period. In addition, the Price Adjustment shall apply to any late
shipments between September 30, 2010 and December 31, 2010, without any grace
period. Any purchase price adjustment as a result of this Section 4.3 will be
paid by HOKU at the end of the term of the applicable calendar
quarter. In lieu of making a cash payment to ALEX pursuant to this
Section 4.3, HOKU may, at its option, pay for such purchase price adjustment in
the form of a credit issued for future shipments of Products. Notwithstanding
anything to the contrary, the maximum amount of such purchase price reduction is
limited to [*] percent ([*]%) of the value of the respective delayed
Products. Monthly shipments which are delayed beyond [*] days shall
be deemed to constitute a material breach of this Agreement pursuant to Section
10.2.1 below. Notwithstanding the foregoing, if ALEX fails to make a
payment to HOKU within the [*]-day period set forth in Section 6.4 below, HOKU
shall not be required to supply any Product to ALEX until HOKU has received the
past due amount including any interest payable thereon pursuant to this
Agreement. For the avoidance of doubt, ALEX’s right to reduce the
purchase price pursuant to this Section 4.3 shall not apply if HOKU is not
fulfilling its supply obligations for this reason. Monthly shipments which are
delayed more than [*] days in a calendar year AND are less than [*]% of [*] of
the Minimum Annual Quantity of Product shall be deemed to constitute a material
breach of this Agreement pursuant to Section 10.2.1.
2.3. Section
5.2 of the Supply Agreement is hereby amended such that the reference to January
10, 2009, is changed to September 30, 2010, and the reference to October 1,
2009, is changed to June 30, 2010.
2.4. Section
5.3 of the Supply Agreement is hereby deleted in its entirety, and replaced with
the following:
“5.3 Reserved.”
2.5. Section
10.2.6 of the Supply Agreement is hereby amended such that the reference to
March 31, 2010, is changed to December 31, 2010.
3. This
Amendment, together with the Supply Agreement, constitutes the entire agreement
between the Parties concerning the subject matter hereof. 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.]
|
ALEX Initials & Date
|
JGL LWZ 12/23/2009
|
HOKU Initials & Date
|
DS 12/30/2009
|
Page
2 of 3
|
CONFIDENTIAL
|
|
|
Exhibit
10.117
|
IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 1 to Supply
Agreement as of the last date set forth below.
|
ALEX:
|
HOKU:
|
|||
|
SHANGHAI
ALEX NEW ENERGY CO.,
LTD. |
HOKU
MATERIALS, INC.
|
|||
|
By:
|
/s/ Jian Gang Li
|
|||
|
By:
|
/s/ Dustin Shindo
|
|||
|
Name:
|
Jian Gang Li
|
|||
|
Name:
|
Dustin Shindo
|
|||
|
Title:
|
||||
|
Authorized
Signatory
|
Title:
|
Chief Executive Officer
|
||
|
Authorized
Signatory
|
||||
|
Date:
|
December 23, 2009
|
|||
|
Date:
|
December 30, 2009
|
|||
|
GUARANTOR:
|
||||
|
SHANGHAI
HUAYI ENTERPRISES
GROUP |
||||
|
By:
|
/s/ Lian Wen Zhang
|
|||
|
Name:
|
Lian Wen Zhang
|
|||
|
Title:
|
||||
|
Authorized
Signatory
|
||||
|
Date:
|
December 23, 2009
|
|||
Signature
Page to Amendment No. 1 to Supply Agreement
Page
3 of 3