Exhibit 10.94
[*] = 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 this 8th day of January, 2009 between JIANGXI JINKO SOLAR CO., LTD.
(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 JIANGXI KINKO ENERGY CO., LTD. ("KINKO") are parties to that
certain Supply Agreement dated as of July 25, 2008 (the "Supply Agreement"),
pursuant to which KINKO has agreed to purchase from HOKU, and HOKU has agreed to
sell to KINKO, [*] metric tons of Products per Year over a ten Year period; and
Whereas, HOKU was informed on December 24, 2008, that KINKO had changed its name
to "JIANGXI JINKO SOLAR CO., LTD."; and
Whereas, HOKU and JINKO desire to amend certain provisions of the Supply
Agreement as set forth herein to, among other things, reduce JINKO's annual
purchase commitment, and HOKU's annual supply commitment, to [*] metric tons of
Products per Year over a ten Year period;
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 meetings 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.
All references in the Supply Agreement to "JIANGXI KINKO ENERGY
CO., LTD." shall be deemed references to "JIANGXI JINKO SOLAR CO., LTD." and all
references to "KINKO" shall be deemed references to "JINKO".
JINKO Initials & Date __XL
12/22/08_____
HOKU Initials & Date ___DS
1/8/2009________________________
Page 1 of 4
2.2.
Section 1.6 of the Supply Agreement is hereby amended and restated
in its entirety to read as follows:
1.6
"Minimum Annual Quantity of Product" means [*] metric tons ([*]
kilograms).
2.3.
The last sentence of Section 2 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 9 below.
2.4.
Section 5.2 of the Supply Agreement is hereby amended and restated
in its entirety to read as follows:
5.2.
On or before January 5, 2009, JINKO shall provide HOKU with a
deposit of Ten Million U.S. Dollars (US$10,000,000) via