Common use of Shipping & Delivery Clause in Contracts

Shipping & Delivery. TIANWEI Initials & Date ___________________________ HOKU Initials & Date ___________________________ 4.1. Except as provided in Section 3.2 above, shipments shall be made from the Facility on a monthly basis in accordance with a shipment schedule that will be provided by HOKU each Year under this Agreement (the “Shipment Schedule”) no later than [*] days prior to the applicable Year. The Shipment Schedule shall provide for approximately equal monthly shipments that add up to the Minimum Annual Quantity of Products. 4.2. HOKU will use commercially reasonable efforts to make available to TIANWEI its first shipment of Products on or before March 31, 2010. 4.3. [Reserved]. 4.4. In addition to the Minimum Annual Quantity of Product to be delivered to TIANWEI each Year beginning on the First Shipment Date pursuant to this Agreement, prior to the First Shipment Date, HOKU shall provide TIANWEI with a right of first refusal (the “ROFR”) on up to an aggregate of [*] metric tons of Spot Market Products (as defined in the final sentence of this paragraph). TIANWEI’s ROFR on Spot Market Products shall be subject to the conditions and procedures set forth in the next sentences of this Section 4.4. Prior to any sale of Spot Market Products to a third party, HOKU shall offer such Spot Market Products to TIANWEI in writing via facsimile or email (the “Offer”). The Offer shall include the material terms of the offer, including price, volume and shipping terms. TIANWEI shall provide HOKU with a written notice of acceptance of the Offer (the “Acceptance”) within 72 hours after receipt of the Offer. The Acceptance, together with the Offer, shall be a firm order which cannot be cancelled by either Party. The Acceptance may not change or add to the terms of the Offer, and any such changes shall be construed as a rejection of the Offer. If TIANWEI does not provide the Acceptance within 72 hours after receipt of the Offer, or if TIANWEI rejects the Offer, then HOKU may sell such Spot Market Products to any third party. If TIANWEI rejects the Offer, or fails to respond as provided herein within 72 hours, HOKU shall have thirty (30) calendar days to exercise its right to sell Spot Market Products to another customer on terms that are no more favorable to the other customer than those presented to TIANWEI in the Offer. If HOKU does not so sell Spot Market Products pursuant to the Offer within said thirty (30) day period, HOKU must repeat this process. The foregoing ROFR shall expire on the earliest to occur of (A) HOKU’s shipment of an aggregate of [*] metric tons of Spot Market Products to TIANWEI prior to March 31, 2010; or (B) March 31, 2010. Notwithstanding the foregoing, HOKU shall have no obligation to ship to TIANWEI any Products that do not meet (or exceed) the Product Specifications. “Spot Market Products” means Products that are not required to be shipped pursuant to any of HOKU’s existing commitments to Shanghai Alex New Energy Co., Ltd., Wuxi Suntech Power Co., Ltd., Solarfun Power Hong Kong Limited, Jiangxi Jinko Solar Co., Ltd. and Wealthy Rise International, Ltd. (the “Other Customers”), and which would otherwise be sold to other new customers or on the spot market. For the avoidance of doubt, the foregoing existing commitments do not include commitments to sell unallocated products to Shanghai Alex New Energy Co., Ltd., or Wealthy Rise International, Ltd.

Shipping & Delivery. TIANWEI Initials & Date ___________________________ HOKU Initials & Date ___________________________ 4.1. Except as provided in Section 3.2 above, shipments shall be made from the Facility on a monthly basis in accordance with a shipment schedule that will be provided by HOKU each Year under this Agreement (the “Shipment Schedule”) no later than [*] days prior to the applicable Year. The Shipment Schedule shall provide for approximately equal monthly shipments that add up to the Minimum Annual Quantity of Products. 4.2. HOKU will use commercially reasonable efforts to make available to TIANWEI its first shipment of Products on or before March 31, 2010. 4.3. [Reserved]. 4.4. In addition to the Minimum Annual Quantity of Product to be delivered to TIANWEI each Year beginning on the First Shipment Date pursuant to this Agreement, prior to the First Shipment Date, HOKU shall provide TIANWEI with a right of first refusal (the “ROFR”) on up to an aggregate of [*] metric tons of Spot Market Products (as defined in the final sentence of this paragraph). TIANWEI’s ROFR on Spot Market Products shall be subject to the conditions and procedures set forth in the next sentences of this Section 4.4. Prior to any sale of Spot Market Products to a third party, HOKU shall offer such Spot Market Products to TIANWEI in writing via facsimile or email (the “Offer”). The Offer shall include the material terms of the offer, including price, volume and shipping terms. TIANWEI shall provide HOKU with a written notice of acceptance of the Offer (the “Acceptance”) within 72 hours after receipt of the Offer. The Acceptance, together with the Offer, shall be a firm order which cannot be cancelled by either Party. The Acceptance may not change or add to the terms of the Offer, and any such changes shall be construed as a rejection of the Offer. If TIANWEI does not provide the Acceptance within 72 hours after receipt of the Offer, or if TIANWEI rejects the Offer, then HOKU may sell such Spot Market Products to any third party. If TIANWEI rejects the Offer, or fails to respond as provided herein within 72 hours, HOKU shall have thirty (30) calendar days to exercise its right to sell Spot Market Products to another customer on terms that are no more favorable to the other customer than those presented to TIANWEI in the Offer. If HOKU does not so sell Spot Market Products pursuant to the Offer within said thirty (30) day period, HOKU must repeat this process. The foregoing ROFR shall expire on the earliest to occur of (A) HOKU’s shipment of an aggregate of [*] metric tons of Spot Market Products to TIANWEI prior to March 31, 2010; or (B) March 31, 2010. Notwithstanding the foregoing, HOKU shall have no obligation to ship to TIANWEI any Products that do not meet (or exceed) the Product Specifications. “Spot Market Products” means Products that are not required to be shipped pursuant to any of HOKU’s existing commitments to Shanghai Alex New Energy Co., Ltd., Wuxi Suntech Power Co., Ltd., Solarfun Power Hong Kong Limited, Jiangxi Jinko Solar Co., Ltd. and Wealthy Rise International, Ltd. (the “Other Customers”), and which would otherwise be sold to other new customers or on the spot market. For the avoidance of doubt, the foregoing existing commitments do not include commitments to sell unallocated products to Shanghai Alex New Energy Co., Ltd., or Wealthy Rise International, Ltd.

Shipping & Delivery. TIANWEI Initials & Date ___________________________ HOKU Initials & Date ___________________________ 4.1. Except as provided in Section 3.2 above, shipments shall be made from the Facility on a monthly basis in accordance with a shipment schedule that will be provided by HOKU each Year under this Agreement (the “Shipment Schedule”) no later than [*] sixty (60) days prior to the applicable Year. The Shipment Schedule shall provide for approximately equal monthly shipments that add up to the Minimum Annual Quantity of Products. 4.2. HOKU will use commercially reasonable efforts to make available to TIANWEI its first shipment of Products on or before March 31, 2010. 4.3. In addition to the Minimum Annual Quantity of Product to be delivered to TIANWEI each Year beginning on the First Shipment Date pursuant to this Agreement, HOKU shall use commercially reasonable efforts to ship an additional [Reserved*] metric tons of Products to TIANWEI in calendar year 2009. Any such shipments shall be invoiced at [*] U.S. Dollars ([*].) per kilogram pursuant to Section 5.6. Any Products sold to TIANWEI pursuant to this Section 4.3 shall be from HOKU’s excess production output, which means that such Products are not required to be shipped pursuant to any of HOKU’s existing commitments to HOKU’s existing Customers (limited to SANYO Electric Co., Ltd., Suntech Power Holding Co., Ltd., Global Expertise Wafer Division, Ltd., Solarfun Power Hong Kong Limited, and Jiangxi Kinko Energy Co., Ltd.), and would otherwise be sold to other new customers or on the spot market (such unallocated Products, the “Spot Market Products”). Notwithstanding the foregoing, HOKU shall have no obligation to ship to TIANWEI any Products that do not meet (or exceed) the Product Specifications. TIANWEI Initials & Date AX Xxxxxx 0, 0000 XXXX Initials & Date DS August 4, 2008 4.4. In addition to the Minimum Annual Quantity of Product to be delivered to TIANWEI each Year beginning on the First Shipment Date pursuant to this Agreement, prior and in addition to any Products shipped to TIANWEI in calendar year 2009 pursuant to Section 4.3 above, during the First Shipment Datemonths of January and February, 2010, HOKU shall provide TIANWEI with a right of first refusal (the “ROFR”) on up to an aggregate of [*] metric tons of Spot Market Products (as defined in the final sentence of this paragraphSection 4.3 above). TIANWEI’s ROFR on Spot Market Products shall be subject to the conditions and procedures set forth in the next sentences of this Section 4.4. Prior to any sale of Spot Market Products to a third party, HOKU shall offer such Spot Market Products to TIANWEI in writing via facsimile or email (the “Offer”). The Offer shall include the material materials terms of the offer, including price, volume and shipping terms. TIANWEI shall provide HOKU with a written notice of acceptance of the Offer (the “Acceptance”) within 72 hours [*] after receipt of the Offer. The Acceptance, together with the Offer, shall be a firm order which cannot be cancelled by either Party. The Acceptance may not change or add to the terms of the Offer, and any such changes shall be construed as a rejection of the Offer. If TIANWEI does not provide the Acceptance within 72 hours [*] after receipt of the Offer, or if TIANWEI rejects the Offer, then HOKU may sell such Spot Market Products to any third party. If TIANWEI rejects the Offer, or fails to respond as provided herein within 72 hours, HOKU shall have thirty (30) calendar days to exercise its right to sell Spot Market Products to another customer on terms that are no more favorable to the other customer than those presented to TIANWEI in the Offer. If HOKU does not so sell Spot Market Products pursuant to the Offer within said thirty (30) day period, HOKU must repeat this process. The foregoing ROFR shall expire on the earliest to occur of (A) HOKU’s shipment of an aggregate of [*] metric tons of Spot Market Products to TIANWEI prior to March 31, during the months of January and February 2010; or (B) March 31February 28, 2010. Notwithstanding the foregoing, HOKU shall have no obligation to ship to TIANWEI any Products that do not meet (or exceed) the Product Specifications. “Spot Market Products” means Products that are not required to be shipped pursuant to any of HOKU’s existing commitments to Shanghai Alex New Energy Co., Ltd., Wuxi Suntech Power Co., Ltd., Solarfun Power Hong Kong Limited, Jiangxi Jinko Solar Co., Ltd. and Wealthy Rise International, Ltd. (the “Other Customers”), and which would otherwise be sold to other new customers or on the spot market. For the avoidance of doubt, the foregoing existing commitments do not include commitments to sell unallocated products to Shanghai Alex New Energy Co., Ltd., or Wealthy Rise International, Ltd..

Shipping & Delivery. TIANWEI 4.1. Except as provided in Section 0 above, shipments shall be made from the Facility on a monthly basis in accordance with a shipment schedule that will be provided by HOKU each Year under this Agreement (the “Shipment Schedule”) no later than sixty (60) days prior to the applicable Year. The Shipment Schedule shall provide for approximately equal monthly shipments in amounts not less than the Minimum Monthly Quantity that adds up to the Minimum Annual Quantity of Products. 4.2. HOKU will use commercially reasonable efforts to make available to CUSTOMER its first shipment of Products on or before [*]. CUSTOMER Initials & Date ___________________________ HOKU Initials & Date ___________________________ 4.1. Except as provided in Section 3.2 above, shipments shall be made from the Facility on a monthly basis in accordance with a shipment schedule that will be provided by HOKU each Year under this Agreement (the “Shipment Schedule”) no later than [*] days prior to the applicable Year. The Shipment Schedule shall provide for approximately equal monthly shipments that add up to the Minimum Annual Quantity of Products. 4.2. HOKU will use commercially reasonable efforts to make available to TIANWEI its first shipment of Products on or before March 31, 2010. 4.3. [Reserved]. 4.4. In addition to the Minimum Annual Quantity of Product to be delivered to TIANWEI CUSTOMER each Year beginning on the First Shipment Date no later than [*], pursuant to this Agreement, prior HOKU hereby agrees to the First Shipment Datesell to CUSTOMER, and CUSTOMER may elect to purchase from HOKU shall provide TIANWEI with a right of first refusal (the “ROFR”) on from [*], through and including [*], up to an aggregate of [*] metric tons percent ([*]%) of HOKU’s Spot Market Products (Products, as defined in the final sentence of this paragraph)next sentence. TIANWEI’s ROFR on Spot Market Products shall be subject to the conditions and procedures set forth in the next sentences For purposes of this Section 4.4. Prior to any sale of Spot Market Products to a third party0, HOKU shall offer such Spot Market Products to TIANWEI in writing via facsimile or email (the “Offer”). The Offer shall include the material terms of the offer, including price, volume and shipping terms. TIANWEI shall provide HOKU with a written notice of acceptance of the Offer (the “Acceptance”) within 72 hours after receipt of the Offer. The Acceptance, together with the Offer, shall be a firm order which cannot be cancelled by either Party. The Acceptance may not change or add to the terms of the Offer, and any such changes shall be construed as a rejection of the Offer. If TIANWEI does not provide the Acceptance within 72 hours after receipt of the Offer, or if TIANWEI rejects the Offer, then HOKU may sell such Spot Market Products to any third party. If TIANWEI rejects the Offer, or fails to respond as provided herein within 72 hours, HOKU shall have thirty (30) calendar days to exercise its right to sell Spot Market Products to another customer on terms that are no more favorable to the other customer than those presented to TIANWEI in the Offer. If HOKU does not so sell Spot Market Products pursuant to the Offer within said thirty (30) day period, HOKU must repeat this process. The foregoing ROFR shall expire on the earliest to occur of (A) HOKU’s shipment of an aggregate of [*] metric tons of Spot Market Products to TIANWEI prior to March 31, 2010; or (B) March 31, 2010. Notwithstanding the foregoing, HOKU shall have no obligation to ship to TIANWEI any Products that do not meet (or exceed) the Product Specifications. “Spot Market Products” means Products that meet the Product Specifications, and which are from HOKU’s excess production output, which means that such Products are not required to be shipped pursuant to any of HOKU’s existing commitments to Shanghai Alex New Energy HOKU’s other Customers that provide prepayments for Products (including SANYO Electric Co., Ltd., Wuxi Suntech Power Holding Co., Ltd., Global Expertise Wafer Division, Ltd., Solarfun Power Hong Kong Limited, Jiangxi Jinko Solar Kinko Energy Co., Ltd. Ltd., and Wealthy Rise InternationalTianwei New Energy (Chengdu) Wafer Co., Ltd. (the “Other Customers”Ltd.), and which would otherwise be sold HOKU intends to other new customers or sell on the spot market. For Notwithstanding the avoidance foregoing, (A) HOKU shall have no obligation to ship to CUSTOMER any Products that HOKU intends to reserve for its inventory; and (B) HOKU is not guaranteeing that any Spot Market Products will be available. Any such shipments of doubtSpot Market Products shall be invoiced at the [*] Price as reflected in the Pricing Schedule on Appendix 1, FOB Hoku’s Facility (INCOTERMS 2000) pursuant to Section 0 below. Notwithstanding anything to the contrary, HOKU shall have no obligation to ship any Spot Market Products pursuant to this Agreement until CUSTOMER has paid in full the Initial Deposit, the foregoing existing commitments do not include commitments to sell unallocated products to Shanghai Alex New Energy Co.Second Deposit, Ltd., or Wealthy Rise International, Ltd.and the Third Deposit.