SUPPLY AGREEMENT No. 2
Exhibit
10.84
CONFIDENTIAL
[*]
= 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.
SUPPLY
AGREEMENT No. 2
This
Supply Agreement No. 2 is made as of the last date set forth on the signature
page hereto (the “Effective
Date”)
between TIANWEI NEW ENERGY (CHENGDU) WAFER CO., LTD., a People’s Republic of
China company (hereinafter “TIANWEI”)
and
HOKU
MATERIALS, INC., a
Delaware corporation (hereinafter “HOKU”).
HOKU
and TIANWEI are sometimes referred to in the singular as a “Party”
or
in
the plural as the “Parties”.
Recitals
Whereas,
HOKU and TIANWEI are parties to that certain Supply Agreement dated August
4,
2008 (“Supply
Agreement No. 1”)
pursuant to which HOKU has agreed to sell to TIANWEI, and TIANWEI has agreed
to
purchase from HOKU an aggregate of [*] metric tons of Products over a ten-year
period.
Whereas,
HOKU desires to supply an additional [*] metric tons of polysilicon to TIANWEI
for its general use beginning in calendar year 2010 for a continuous period
of
ten years from the date of the first shipment.
Whereas,
in exchange for HOKU’s agreement to allocate the supply of polysilicon, TIANWEI
desires to provide HOKU with a firm order for an additional [*] metric tons
of
polysilicon upon the terms and conditions provided herein.
NOW,
THEREFORE, in furtherance of the foregoing Recitals and in consideration
of the
mutual covenants and obligations set forth in this Agreement, the Parties
hereby
agree as follows:
1. Definitions.
The
following terms used in this Agreement shall have the meanings set forth
below:
1.1. “Affiliate”
shall
mean, with respect to either Party to this Agreement, any entity that is
controlled by or under common control with such Party.
1.2. “Agreement”
shall
mean this Supply Agreement No. 2 and all appendices annexed to this Agreement
as
the same may be amended from time to time in accordance with the provisions
hereof.
1.3. “Effective
Date”
has
the
meaning set forth in the first paragraph of this Agreement.
TIANWEI
Initials & Date AG
September 14, 2008
|
HOKU
Initials & Date DS
September 14, 2008
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Exhibit
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CONFIDENTIAL
1.4. “First
Shipment Date”
shall
mean the first day after April 1, 2010, when HOKU commences deliveries
to
TIANWEI of Products pursuant to this Agreement.
1.5. “Facility”
shall
mean any facility used by HOKU for the production of the Product.
1.6. “Independent
Expert”
means
any Qualified Laboratory that is reasonably acceptable to each of HOKU
and
TIANWEI; provided, however that if such parties cannot agree on the Independent
Expert within ten (10) days, each Party shall select one independent
expert form
the list of Qualified Laboratories, and those two independent experts
shall
select the Independent Expert.
1.7. “Minimum
Annual Quantity of Product”
means
[*] metric tons ([*] kilograms).
1.8. “Product”
shall
mean the raw polysilicon in chunk form manufactured by HOKU and sold
to TIANWEI
pursuant to this Agreement.
1.9. “Product
Specifications”
shall
mean the quality and other specifications set forth on Appendix 2 to
this
Agreement.
1.10. “Qualified
Laboratory”
means
each qualified laboratory set forth on Appendix
2
to this
Agreement.
1.11. “Supply
Agreement No. 1”
has
the
meaning set forth in the first Recital to this Agreement.
1.12. “Term”
shall
mean the period during which this Agreement is in effect, as more specifically
set forth in Section 9
of this
Agreement.
1.13. “Total
Deposit”
shall
mean all deposits or prepayments made by TIANWEI to HOKU hereunder including
without limitation the Initial Deposit and the Main Deposit.
1.14. “Year”
shall
mean each of the ten (10) twelve-month periods commencing on the First
Shipment
Date.
2. Ordering.
Starting
on the First Shipment Date and each Year during the term of this Agreement
thereafter, TIANWEI agrees to purchase from HOKU, and HOKU agrees to
sell to
TIANWEI, the Minimum Annual Quantity of Product at the prices set forth
on
Appendix 1 to this Agreement (the “Pricing
Schedule”).
This
Agreement constitutes a firm order from TIANWEI for [*] metric tons of
Product
that cannot be cancelled during the term of this Agreement, except as
set forth
in Section 9
below.
3. Supply
Obligations.
3.1. HOKU
shall deliver each Year pursuant to this Agreement starting on the First
Shipment Date at least the Minimum Annual Quantity of Product in approximately
equal monthly shipments pursuant to Section 4.1 below; provided however,
that if
HOKU fails to deliver a monthly shipment, then HOKU may deliver any deficiency
within [*] days without breaching this section or incurring any purchase
price
adjustment (pursuant to Section 3.3
below).
The foregoing [*] day grace period shall not apply to the first shipment
that is
scheduled for April 30, 2010. Only shipments in excess of each scheduled
monthly
shipment pursuant to the Shipment Schedule (as defined in Section 4.1
below)
will be considered as making up a quantity deficiency as stated above.
Notwithstanding the preceding sentence, HOKU shall promptly inform TIANWEI
of
any occurrence which will, or may be expected to, result in material
delay of
the shipment date or quantity of any scheduled monthly shipment set forth
in the
Shipment Schedule, or any other material deviations from the Shipment
Schedule.
HOKU shall use all commercially reasonable efforts to make complete delivery
of
Products scheduled for monthly shipment pursuant to the Shipment Schedule
or, if
later, as soon as commercially practicable. In the event that HOKU fails
to
deliver Products in accordance with the Shipment Schedule, TIANWEI may
cause
HOKU at HOKU’s own shipping responsibility, cost and expense to deliver Products
to the locations designated by TIANWEI by rail or ocean cargo vessel.
At any
time during the term of this Agreement, HOKU may ship to TIANWEI up to
the full
cumulative balance of Minimum Annual Quantity of Product to be shipped
through
the end of this Contract (an “Excess
Shipment”)
with
TIANWEI’s written consent. This shipment will be credited against each
subsequent Minimum Annual Quantity of Product. For example, if the Minimum
Annual Quantity of Product for a given Year is [*] metric tons, and if
HOKU
delivers [*] metric tons in January, then the next shipment of [*] metric
tons
is not required until the following Year.
TIANWEI
Initials & Date AG
September 14, 2008
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HOKU
Initials & Date DS
September 14, 2008
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Exhibit
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3.2. HOKU
intends to manufacture the Products at its Facility; however,
notwithstanding
anything to the contrary herein, HOKU may deliver to TIANWEI
Products that are
manufactured by a third party other than HOKU (“Third
Party Products”),
where
HOKU is acting only as a reseller or distributor of such Products;
and provided
that the Products meet the Product Specifications and price set
forth in this
Agreement; and, provided further, that HOKU shall clearly label
all Third Party
Products and shall remain primarily liable for the acts and omissions
of such
third party producer in failing to meet the Quality Specifications.
HOKU shall
notify TIANWEI in writing prior to the delivery of Third Party
Products.
3.3. Except
in
the case of a force majeure pursuant to Section 12
below,
if HOKU does not supply any Products pursuant to Section 3.1
or
3.2
within
[*] days of the scheduled delivery date, HOKU will provide TIANWEI
with a
purchase price adjustment. Such purchase price adjustment shall
be [*] percent
([*]%) 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. Any
purchase price adjustment as a result of this Section 3.3
will be
immediately creditable by HOKU to the future invoiced price of
the Products to
be paid by TIANWEI commencing upon the date on which the purchase
price
reduction becomes due.
In lieu
of making a cash payment to TIANWEI pursuant to this Section
3.3,
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 adjustment shall not exceed [*] 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
9.2.1
below.
Notwithstanding the foregoing, if TIANWEI fails to make a payment
to HOKU within
the [*] period set forth in Section 5.5
below,
HOKU shall not be required to supply any Product to TIANWEI until
HOKU has
received the past due amount including any interest payable thereon
pursuant to
this Agreement. For the avoidance of doubt, TIANWEI’s right to reduce the
purchase price pursuant to this Section 3.3
shall
not apply if HOKU is not fulfilling its supply obligations for
this
reason.
3.4. HOKU
hereby covenants and agrees that during the term of this Agreement,
and provided
that TIANWEI is not in breach of any material term of this Agreement,
including,
without limitation, its payment obligations hereunder, HOKU shall
not ship any
Products to any third party that is not one of HOKU’s Other Customers (e.g.,
spot market sales), until HOKU has satisfied its delivery obligations
to TIANWEI
pursuant to Section 3.1
of this
Agreement.
4. Shipping
& Delivery.
TIANWEI
Initials & Date AG
September 14, 2008
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HOKU
Initials & Date DS
September 14, 2008
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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 April 1, 2010.
4.3. Section
4.3 of Supply Agreement No. 1 is hereby amended and
restated in its entirety to
read as follows:
“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 ship an additional [*] metric tons of Products
to TIANWEI in calendar year
2009, and an additional [*] metric tons of Products
in January and February,
2010. Any such shipments shall be invoiced at [*] U.S.
Dollars [*] per kilogram
pursuant to Section 5.5.
In the
event that HOKU fails to deliver the [*] metric tons
of additional Products as
specified above, TIANWEI shall receive purchase price
reduction equal to [*] of
the Year 1 price for the first [*] metric tons (or
such lesser amount that is
equal to the difference between [*] metric tons and
the actual amounts shipped
to TIANWEI pursuant to this Section 4.3) that are shipped
to TIANWEI beginning
on the First Shipment Date.”
4.4. Section
4.4 of Supply Agreement No. 1 is hereby amended and
restated in its entiremety
to read as follows:
“4.4 [Reserved]”
5. Payments
& Advances.
5.1. Within
fifteen (15) days after the Effective Date, TIANWEI
shall provide HOKU with a
prepayment of Ten Million U.S. Dollars (US$10,000,000)
via wire transfer of
immediately available funds (the “Initial
Deposit”).
5.2. TIANWEI
shall pay in cash to HOKU the additional sum of Twelve
Million U.S. Dollars
(US$12,000,000) (the “Second
Deposit”)
as an
advance payment for Products to be delivered under
this Agreement. Payment of
the Second Deposit shall be made on or before December
15, 2008.
5.3. TIANWEI
shall pay in cash to HOKU the additional sum of Twelve
Million U.S. Dollars
(US$12,000,000) (the “Third
Deposit”)
as an
advance payment for Products to be delivered under
this Agreement. Payment of
the Third Deposit shall be made on or before April
30, 2009.
5.4. TIANWEI
shall pay in cash to HOKU the additional sum of Two
Million U.S. Dollars
(US$2,000,000) (the “Fourth
Deposit”
and
together with the Second Deposit and the Third Deposit,
the “Main
Deposit”)
as an
advance payment for Products to be delivered under
this Agreement. Payment of
the Fourth Deposit shall be made when HOKU completes
the shipment to TIANWEI of
a cumulative aggregate of [*] metric tons of Products
pursuant to Section
4
of this
Agreement (including Products shipped in calendar year
2009).
TIANWEI
Initials & Date AG
September 14, 2008
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HOKU
Initials & Date DS
September 14, 2008
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CONFIDENTIAL
5.5. HOKU
shall invoice TIANWEI at or after the time
of each shipment of Products to
TIANWEI. Taxes, customs and duties, if any,
will be identified as separate items
on HOKU invoices. All invoices shall be sent
to TIANWEI’s address as provided
herein. Payment terms for all invoiced amounts
shall be [*] days from date of
shipment. All payments shall be made in U.S.
Dollars. Unless HOKU is entitled to
retain the Total Deposit as liquidated damages
pursuant to Section 11
below,
shipments
to TIANWEI shall be credited against the Total
Deposit on
a
straight-line basis during the second through
tenth Year from the First Shipment
Date.
5.6. The
prices for the Products do not include any
excise, sales, use, import, export or
other similar taxes, such taxes will not include
income taxes or similar taxes,
which taxes will be invoiced to and paid by
TIANWEI, provided that TIANWEI is
legally or contractually obliged to pay such
taxes. HOKU and TIANWEI shall work
together to eliminate the possibility of taxes,
but if there are any assessed,
HOKU shall promptly remit to TIANWEI in full
any such taxes paid by TIANWEI
which are refunded to HOKU in whole or in part.
TIANWEI shall be responsible for
all transportation charges, duties or charges,
liabilities and risks for
shipping and handling (and hereby indemnifies
HOKU for such costs, liabilities
and risks); thus, the price for the Products
shall not include any such
charges.
5.7. Late
payments and outstanding balances shall accrue
interest at the lesser of [*] per
annum or the maximum allowed by law.
6. Security
Interest.
6.1. Subject
to receipt of the Initial Deposit and or payment
of any portion of the Main
Deposit HOKU hereby grants to TIANWEI a security
interest to secure the
repayment by HOKU to TIANWEI of the Total Deposit
following any of the events
set forth in Section 9.5
below,
which shall be subordinated in accordance with
Section 6.2
below,
in all of the tangible and intangible assets
related to HOKU’s polysilicon
business (the “Collateral”).
6.2. TIANWEI
acknowledges and agrees that the security interests
and liens in the Collateral
will not be first priority security interests,
will be expressly subordinated to
HOKU’s third-party lenders (the “Senior
Lenders”)
that
provide debt financing for the construction
of any HOKU Facility, and may be
subordinated as a matter of law to other security
interests, and to security
interests that are created and perfected prior
to the security interest granted
to TIANWEI hereby. TIANWEI shall enter into
subordination agreements with the
Senior Lenders on terms and conditions reasonably
acceptable to the Senior
Lenders.
6.3. In
addition, TIANWEI shall enter into collateral,
intercreditor and other
agreements (the “Collateral
Agreements”)
with
HOKU’s Senior Lenders, and with Hoku’s other customers, which may include
Suntech Power Holding Co., Ltd., Solarfun Power
Hong Kong Limited, Jiangxi Kinko
Energy Co., Ltd., Wealthy Rise International,
Ltd., and HOKU’s other customers
who provide prepayments for Products (collectively,
“HOKU’s
Other Customers”),
as
may be reasonably necessary to ensure that
the security interest granted hereby
is pari passu with the security interests that
may be granted to HOKU’s Other
Customers. TIANWEI may not unreasonably refuse
to sign any such Collateral
Agreement, provided that such Collateral Agreement
grants TIANWEI a pari passu
priority with respect to HOKU’s Other Customers, and is expressly subordinated
to the Senior Lenders.
6.4. The
security interest granted hereby shall continue
so long as HOKU continues to
maintain any amount of the Total Deposit, and
only to the extent of such
remaining amount of the Total Deposit being
held by HOKU, which has not been
credited against the shipment of Products pursuant
to this Agreement, or
otherwise repaid to TIANWEI. Notwithstanding
anything to the contrary contained
in this Agreement, the Collateral consisting
of real property shall secure only
the obligations of HOKU to refund any portion
of the Total Deposit to TIANWEI in
accordance with the terms of this Agreement.
When the Total Deposit is no longer
held by HOKU, TIANWEI will sign such documents
as are necessary to release its
security interests.
TIANWEI
Initials & Date AG
September 14, 2008
|
HOKU
Initials & Date DS
September 14, 2008
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Exhibit
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CONFIDENTIAL
6.5. HOKU
and
TIANWEI each agree to act in good faith
to execute and deliver any additional
document or documents that may be required
in furtherance of the foregoing
provisions of this Section 6,
including the Collateral Agreements.
Neither HOKU nor TIANWEI may unreasonably
refuse to sign any such document.
7. Product
Quality Guarantee.
7.1. HOKU
warrants to TIANWEI that the Products
shall meet the Product Specifications.
For
each shipment, this warranty shall
survive for [*] days after the applicable
shipment date (the “Warranty
Period”).
Upon
release of the Products to a common
carrier or freight forwarder, FOB origin
(INCOTERMS 2000), HOKU warrants that
the Products shall be free of all liens,
mortgages, encumbrances, security interests
or other claims or rights. HOKU
will, upon prompt notification from
TIANWEI, and TIANWEI’s compliance with
HOKU’s instructions, refund in full, including
all direct costs, or replace, at
TIANWEI’s sole option and at HOKU’s expense, any Product which does not
meet the
Product Specifications, and TIANWEI
shall comply with the inspection and
return
goods policy described in Section 8
below
with respect to such Products. No employee,
agent or representative of HOKU has
the authority to bind HOKU to any oral
representation or warranty concerning
the
Products. Any oral representation or
warranty made prior to the purchase
of any
Product and not set forth in writing
and signed by a duly authorized officer
of
HOKU shall not be enforceable by TIANWEI.
HOKU makes no warranty and shall have
no obligation with respect to damage
caused by or resulting from accident,
misuse, neglect or unauthorized alterations
to the Products.
7.2. HOKU
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING THE WARRANTIES OF MERCHANTABILITY,
AND FITNESS FOR A PARTICULAR
PURPOSE. HOKU’s sole responsibility and TIANWEI’s exclusive remedy for any claim
arising out of the purchase of any
Product is a refund or replacement,
as
described above. In no event shall
HOKU’s liability exceed the purchase price
paid therefor plus the direct expenses
associated with the refund or
replacement; nor shall HOKU be liable
for any claims, losses or damages of
any
individual or entity or for lost profits
or any special, indirect, incidental,
consequential, or exemplary damages,
howsoever arising, even if HOKU has
been
advised of the possibility of such
damages.
7.3. HOKU
shall, at its own expense, indemnify
and hold TIANWEI and its Affiliates
harmless from and against any expense
or loss resulting from any actual or
alleged infringement of any patent,
trademark, trade secret, copyright,
mask
work or other intellectual property
related to the Products, and shall
defend at
its own expense, including attorneys
fees, any suit brought against TIANWEI
or
TIANWEI’s Affiliates alleging any such infringement.
TIANWEI agrees that: (i)
TIANWEI shall give HOKU prompt notice
in writing of any such suit; (ii) if
HOKU
provides evidence reasonably satisfactory
to TIANWEI of HOKU’s financial ability
to defend the matter vigorously and
pay any reasonably foreseeable damages,
TIANWEI shall permit HOKU, through
counsel of HOKU’s choice, to answer the
charge of infringement and defend such
suit (but TIANWEI, or TIANWEI’s Affiliate
may be represented by counsel and participate
in the defense at its own
expense); and (iii) TIANWEI shall give
HOKU all needed information, assistance,
and authority, at HOKU’s expense, to enable HOKU to defend
such suit. In case of
a final award of damages in any such
suit HOKU shall pay such award, but
shall
not be responsible for any settlement
made without its prior consent. Except
as
otherwise expressly set forth herein,
HOKU disclaims any obligation to defend
or
indemnify TIANWEI, its officers, agents,
or employees, from any losses, damages,
liabilities, costs or expenses which
may arise out of the acts of omissions
of
HOKU.
TIANWEI
Initials & Date AG
September 14, 2008
|
HOKU
Initials & Date DS
September 14, 2008
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Exhibit
10.84
CONFIDENTIAL
8. Inspection
and Return Goods Policy.
8.1. An
inspection of appearance of
each shipment of Product shall
be made by TIANWEI in
accordance with sound business
practice upon the delivery
of the Product, and in
no case later than [*]
weeks
after delivery at TIANWEI’s factory. TIANWEI shall inform
HOKU promptly, and in
no case later than [*]
weeks
after delivery of Product,
in case of any obvious damages
or other obvious
defects to the Product which
TIANWEI discovers under the
inspection of
appearance.
All
Products shall be double-packaged
in polyethylene bags suitable
for maintaining
the quality of the Products
and for long-distance overseas
shipping, which will
be weighed and bar-coded for
tracking purposes prior to
shipment.
8.2. TIANWEI
shall perform final inspection
of the Product upon introducing
the Product into
TIANWEI’s production process. Such
inspection shall take place
during the
Warranty Period. If the Product
does not meet the Product Specifications,
TIANWEI shall notify HOKU in
writing without undue delay
after the inspection
and, together with the notification,
submit documentary evidence
of the result
of the final inspection whereupon
HOKU shall have the right to
undertake its own
inspection prior to any return
of the Products pursuant to
Section 8.3
below.
HOKU is
required to acknowledge TIANWEI’s notification within [*]
business
days and provide an action
plan within [*]
business
days thereafter to solve the
issue. If no such action plan
is received by
TIANWEI within [*],
it
shall be deemed that HOKU has
accepted the returned Products.
HOKU reserves the
right to reverse any credit
issued to TIANWEI if, upon
return, such Product is
determined by an Independent
Expert not to be defective.
The conclusion of the
Independent Expert shall be
final, binding and non-appealable
in respect of the
conformity of the Products
to the warranties set forth
in Section 7.1
above.
The fees and expenses of the
Independent Expert shall be
paid solely by the
party that does not succeed
in the dispute.
8.3. Products
may be returned to HOKU within
the later of (a) [*] days after
discovery of a
defect consistent with Sections
8.1
and
8.2
above;
and (b) [*] days after HOKU
completes its inspection and
confirms the defect
pursuant to Section 8.2
above,
for replacement or a refund
including all other direct
expenses. To assure
prompt handling, HOKU shall
provide TIANWEI a return goods
authorization number
within [*] hours of TIANWEI’s request. Provided that HOKU
communicates this
number to TIANWEI within such
timeframe, TIANWEI will reference
this number on
return shipping documents.
Returns made without the authorization
number
provided by HOKU in accordance
with the foregoing may be subject
to HOKU’s
reasonable charges due to HOKU’s additional handling costs.
9. Term
and Termination.
9.1. The
term
of this Agreement shall begin
on the Effective Date and provided
that the first
delivery of the Product under
this Agreement shall occur
on June 30, 2010, or
earlier, and unless previously
terminated as hereinafter set
forth, shall remain
in force for a period of ten
Years beginning with the First
Shipment Date.
9.2. Each
Party may, at its discretion,
upon written notice to the
other Party, and in
addition to its rights and
remedies provided under this
Agreement or any other
agreement executed in connection
with this Agreement and at
law or in equity,
terminate this Agreement in
the event of any of the following:
TIANWEI
Initials & Date AG
September 14, 2008
|
HOKU
Initials & Date DS
September 14, 2008
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Exhibit
10.84
CONFIDENTIAL
9.2.1. Upon
a
material breach of
the other Party of
any material provision
in this Agreement,
and failure of the
other Party to cure
such material breach
within [*]
days
after written notice
thereof;
provided, however,
that such cure period
shall not modify or
extend the
[*]
cure
period for HOKU’s delivery obligations
pursuant to Section
3.3
above;
and provided, further
that such [*]
day cure
period shall not apply
to TIANWEI’s failure to make any
payment to HOKU pursuant
to this Agreement.
In the event of TIANWEI’s failure to make payment
on the
[*]
payment
terms set forth in
Section 5.5
hereof,
termination by HOKU
shall require the issuance
of a written notice
of default
containing the threat
of immediate termination
if payment is not made
within an
additional grace period
of not less than [*]
business
days.
For
purposes of this Section 9.2.1,
a
“material breach” means a monthly shipment
which is delayed beyond
[*]
days, a
payment default or
any other material
breach of this Agreement
which materially
and adversely affects
a Party or which occurs
on multiple
occasions.
9.2.2. Upon
the
voluntary or involuntary
initiation of bankruptcy
or insolvency proceedings
against the other Party;
provided, that for
an involuntary bankruptcy
or
insolvency proceeding,
the Party subject to
the proceeding shall
have [*]
working days within
which to dissolve the
proceeding or demonstrate
to the
terminating Party’s satisfaction the
lack of grounds for
the initiation of such
proceeding;
9.2.3. If
the
other Party (i) becomes
unable, or admits in
writing its inability,
to pay its
debts generally as
they mature, (ii) becomes insolvent (as
such term may be
defined or interpreted
under any applicable
statute); or
9.2.4. In
accordance with the
provisions of Section
12
(Force
Majeure) below; provided,
however, that TIANWEI
may not terminate this
Agreement
pursuant to Section
12
if HOKU
is supplying Products
to TIANWEI pursuant
to Section 3.2
of this
Agreement.
9.2.5. Without
limiting the foregoing,
TIANWEI shall have
the right to terminate
this Agreement
if the First Shipment
Date does not occur
on or before June 30,
2010.
9.3. HOKU
shall have the right
to terminate this Agreement
if (A) on or before
the
fifteenth (15th) calendar
day after the Effective
Date, TIANWEI has failed
to
pay the Initial Deposit;
(B) on or before December
15, 2008, TIANWEI has
failed
to pay the Second Deposit,
in which case HOKU
shall retain the Initial
Deposit
as liquidated damages;
(C) on or before April
30, 2009, TIANWEI has
failed to
pay the Third Deposit,
in which case HOKU
shall retain the Initial
Deposit and
the Second Deposit
as liquidated damages;
or (D)
TIANWEI
has failed to pay the
Fourth Deposit in accordance
with Section 5.4
of this
Agreement, in which
case HOKU shall retain
the Initial Deposit,
the Second
Deposit and the Third
Deposit as liquidated
damages.
9.4. Upon
the
expiration or termination
of this Agreement howsoever
arising, the following
Sections shall survive
such expiration or
termination: Sections
1
(Definitions); Section
7
(Product
Quality Guarantee),
Section 8
(Inspection and Return
Goods Policy); Section
9
(Term
and Termination); Section
10
(Liability); Section
11
(Liquidated Damages);
and Section 13
(General
Provisions).
9.5. If
TIANWEI terminates
this Agreement pursuant
to Section 9.2.1,
9.2.2,
9.2.3,
9.2.4,
9.2.5
or
12
then any
funds remaining on
the Total Deposit on
such date of termination
shall be
returned to TIANWEI;
provided however that
if TIANWEI is in material
breach of
this Agreement at the
time it terminates
this Agreement, then
HOKU shall not be
required to repay any
remaining amount of
the Total Deposit up
to the amounts of
HOKU’s direct loss from
such material breach
(unless TIANWEI cures
such breach
within the applicable
cure period) or TIANWEI’s other outstanding
and unpaid
obligations hereunder
(including, without
limitation, obligations
under Section
11).
TIANWEI
Initials
& Date AG
September
14, 2008
|
HOKU
Initials
& Date DS
September
14, 2008
|
Page
8 of
15
Exhibit
10.84
CONFIDENTIAL
9.6. If
HOKU
terminates
this Agreement
pursuant to
Section 9.2.1,
9.2.2,
9.2.3,
9.2.4,
or
12
then
HOKU shall
be entitled
to retain the
Total Deposit
including any
funds remaining
on the Total
Deposit on
such date of
termination
in accordance
with Section
11.
“Funds
remaining”
on
the
Total Deposit
are funds not
applied against
TIANWEI’s purchase
of Product,
pursuant to
Section 5.5
above,
for Product
actually shipped
to TIANWEI
hereunder.
9.7. If
TIANWEI terminates
this Agreement
pursuant to
Section 9.2.1
due to
HOKU’s breach of
Section 3.4,
then
[*]% of the
funds remaining
on the Total
Deposit on
such date of
termination
shall be returned
to TIANWEI
within [*]
calendar days,
with any late
payment
accruing interest
pursuant to
Section 5.7
above;
provided however
that if TIANWEI
is in material
breach of this
Agreement at
the
time it terminates
this Agreement,
then HOKU shall
not be required
to repay any
portion of
the Total Deposit
up to the amounts
of HOKU’s direct loss
from such
material breach
(unless TIANWEI
cures such
breach within
the applicable
cure
period) or
TIANWEI’s other outstanding
and unpaid
obligations
hereunder
(including,
without limitation,
obligations
under Section
11).
10. Liability.
10.1. IN
NO
EVENT SHALL
EITHER PARTY
BE LIABLE FOR
INDIRECT, SPECIAL,
INCIDENTAL
OR
CONSEQUENTIAL
DAMAGES OR
FOR EXEMPLARY
OR PUNITIVE
DAMAGES, EVEN
IF TIANWEI
OR
HOKU HAS BEEN
ADVISED OF
THE POSSIBILITY
OF SUCH DAMAGES.
10.2. NEITHER
PARTY’S TOTAL LIABILITY
TO THE OTHER
FOR ANY KIND
OF LOSS, DAMAGE
OR LIABILITY
ARISING UNDER
OR IN CONNECTION
WITH THIS AGREEMENT,
UNDER ANY THEORY
OF
LIABILITY,
SHALL EXCEED
IN THE AGGREGATE
THE TOTAL DEPOSIT,
EXCEPT (A)
WITH
RESPECT TO
TIANWEI’S CONTINUING
OBLIGATION
TO PURCHASE
THE PRODUCTS
AS SET FORTH
HEREIN, AND
(B) HOKU’S OBLIGATION
TO PAY [*]%
OF THE FUNDS
REMAINING ON
THE
TOTAL DEPOSIT
PURSUANT TO
SECTION 9.7
ABOVE.
11. Liquidated
Damages.
11.1. THE
PARTIES ACKNOWLEDGE
AND AGREE THAT
ANY BREACH
OF THIS AGREEMENT
BY TIANWEI
MAY
CAUSE IRREPARABLE
AND IMMEASURABLE
DAMAGE TO HOKU.
BECAUSE IT
IS DIFFICULT
TO
MEASURE THESE
DAMAGES, IN
THE EVENT THAT
THIS AGREEMENT
IS TERMINATED
BY HOKU
PURSUANT TO
SECTION 9.2.1,
9.2.2,
9.2.3,
9.2.4,
9.3
or
12,
THEN
HOKU SHALL
BE ENTITLED
TO RETAIN AS
LIQUIDATED
DAMAGES, THE
TOTAL DEPOSIT
(INCLUDING
ANY REMAINING
PORTION THEREOF
NOT CREDITED
AGAINST PRODUCT
SHIPMENTS).
ANY AMOUNTS
DUE FOR UNDELIVERED
PRODUCT UNDER
THIS AGREEMENT
ARE
STILL DUE,
UNLESS OTHERWISE
AGREED BY BOTH
PARTIES IN
WRITING.
11.2. THE
PARTIES ACKNOWLEDGE
AND AGREE THAT
ANY BREACH
OF SECTION
3.4
OF THIS
AGREEMENT BY
HOKU MAY CAUSE
IRREPERABLE
AND IMMEASURABLE
DAMAGE TO TIANWEI.
BECAUSE IT
IS DIFFICULT
TO MEASURE
THESE DAMAGES,
IN THE EVENT
THAT THIS
AGREEMENT IS
TERMINATED
BY TIANWEI
PURSUANT TO
SECTION 9.2.1
DUE TO
HOKU’S BREACH OF
SECTION 3.4,
THEN
HOKU SHALL
BE OBLIGATED
TO PAY AS LIQUIDATED
DAMAGES, [*]%
OF THE FUNDS
REMAINING ON
THE TOTAL DEPOSIT.
TIANWEI
Initials
&
Date
AG
September
14,
2008
|
HOKU
Initials
&
Date
DS
September
14,
2008
|
Page
9 of
15
Exhibit
10.84
CONFIDENTIAL
12. Force
Majeure.
Neither
Party
shall
be
liable
to
the
other
Party
for
failure
of
or
delay
in
performance
of
any
obligation
under
this
Agreement,
directly,
or
indirectly,
owing
to
acts
of
God,
war,
war-like
condition,
embargoes,
riots,
strike,
lock-out
and
other
events
beyond
its
reasonable
control
which
were
not
reasonably
foreseeable
and
whose
effects
are
not
capable
of
being
overcome
without
unreasonable
expense
and/or
loss
of
time
to
the
affected
Party
(i.e.,
the
Party
that
is
unable
to
perform).
If
such
failure
or
delay
occurs,
the
affected
Party
shall
notify
the
other
Party
of
the
occurrence
thereof
as
soon
as
possible,
and
the
Parties
shall
discuss
the
best
way
to
resolve
the
event
of
force
majeure.
If
the
conditions
of
Force
Majeure
continue
to
materially
impede
performance
of
any
material
obligation
under
this
Agreement
for
a period
of
more
than
three
(3)
consecutive
calendar
months,
then
the
non-affected
Party
shall
be
entitled
to
terminate
this
Agreement
by
30
days’
prior
written
notice
to
the
other
Party. For
the
purposes
of
this
Section 12,
the
inability
of
TIANWEI
to
receive,
accept
or
take
delivery
of
Products
that
have
been
made
available
by
HOKU
pursuant
to
this
Agreement
shall
not
constitute
an
event
of
force
majeure.
13. General
Provisions.
13.1. HOKU
hereby
represents
and
warrants
to
TIANWEI
that
as
of
the
Effective
Date
of
this
Agreement:
(i)
the
anticipated
production
output
for
its
planned
polysilicon
production
Facility
in
Pocatello,
Idaho,
is
not
less
than
4,000
metric
tons
per
year
(the
“Rated
Capacity”);
and
(ii)
the
aggregate
of
HOKU’s firm
sales
commitments
for
the
first
Year
under
this
Agreement,
including
all
firm
commitments
to
TIANWEI
under
this
Agreement
and
Supply
Agreement
No.
1,
and
firm
commitments
to
HOKU’s Other
Customers,
does
not
exceed
the
Rated
Capacity.
13.2. TIANWEI
acknowledges
that
it
is
the
policy
of
HOKU
to
scrupulously
comply
with
the
Foreign
Corrupt
Practices
Act
of
1977
(as
amended,
the
“FCPA”)
and
to
adopt
appropriate
and
reasonable
practices
and
procedures
that
are
undertaken
in
such
a manner
as
to
substantially
eliminate
the
potential
for
violation
of
the
FCPA.
TIANWEI
further
acknowledges
that
it
shall
be
bound
by
any
law,
regulation
or
other
legal
enactment,
that
prohibits
corrupt
practices
of
the
type
or
nature
described
in
the
FCPA
and
that
is
applicable
to
TIANWEI,
and
TIANWEI
hereby
represents
and
warrants
that
neither
HOKU,
nor
to
TIANWEI’s knowledge,
any
other
authorized
person
or
entity
associated
with
or
acting
for
or
on
behalf
of
HOKU,
has
knowingly
directly
or
indirectly
made
any
contribution,
gift,
bribe,
rebate,
payoff,
influence
payment,
kickback,
or
other
payment
to
TIANWEI,
whether
in
money,
property,
or
services
(i)
to
obtain
favorable
treatment
in
securing
business
from
TIANWEI,
(ii)
to
pay
for
favorable
treatment
for
business
secured
from
TIANWEI,
or
(iii)
to
obtain
special
concessions
or
for
special
concessions
already
obtained
from
TIANWEI,
for
or
in
respect
of
HOKU,
in
violation
of
any
legal
requirement
or
applicable
law.
13.3. This
Agreement
shall
be
construed
under
and
governed
by
the
laws
of
the
State
of
California,
U.S.A.
13.4. Upon
notice
from
one
Party
to
the
other
of
a dispute
hereunder,
the
Parties
agree
to
hold
a meeting
within
[*]
days
of
receipt
of
such
notice
with
at
least
one
(1)
representative
from
each
Party
who
has
decision-making
authority
for
such
company.
At
this
meeting,
the
Parties
will
attempt
to
resolve
the
dispute
in
good
faith.
If,
after
the
meeting,
the
dispute
has
not
been
resolved,
only
then
may
a Party
resort
to
litigation.
Any
proceeding
to
enforce
or
to
resolve
disputes
relating
to
this
Agreement
shall
be
brought
in
California,
USA.
In
any
such
proceeding,
neither
Party
shall
assert
that
such
a court
lacks
jurisdiction
over
it
or
the
subject
matter
of
the
proceeding.
13.5. HOKU
may
assign
this
Agreement
to
any
of
its
Affiliates,
and
may
assign
its
rights
under
this
Agreement
to
any
collateral
agent
as
collateral
security
for
HOKU’s secured
obligations
in
connection
with
the
financing
of
a HOKU
Facility,
without
the
consent
of
TIANWEI.
When
HOKU
assigns
this
agreement
to
any
of
its
Affiliates,
such
Affiliate
receiving
the
assignment
must
have
the
capacity
to
fulfill
the
remaining
contract
obligations
and
under
the
circumstance
that
such
Affiliate
is
unable
to
fulfill
the
obligations,
HOKU
shall
be
held
jointly
and
severally
liable.
Except
as
stated
in
the
previous
sentences,
neither
HOKU
nor
TIANWEI
may
assign
this
Agreement
to
a third
party
without
the
prior
written
consent
of
the
other
Party,
which
consent
shall
not
be
unreasonably
withheld.
Notwithstanding
the
foregoing,
an
assignment
of
this
Agreement
by
either
Party
in
connection
with
a merger,
acquisition,
or
sale
of
all
or
substantially
all
of
the
assets
or
capital
stock
of
such
Party
shall
not
require
the
consent
of
the
other
Party.
If
this
Agreement
is
assigned
effectively
to
a third
party,
this
Agreement
shall
bind
upon
successors
and
assigns
of
the
Parties
hereto.
TIANWEI
Initials
&
Date
AG
September
14,
2008
|
HOKU
Initials
&
Date
DS
September
14,
2008
|
Page
10
of
15
Exhibit
10.84
CONFIDENTIAL
13.6. All
notices
delivered
pursuant
to
this
Agreement
shall
be
in
writing
and
in
the
English
language.
Except
as
provided
elsewhere
in
this
Agreement,
a
notice
is
effective
only
if
the
Party
giving
or
making
the
notice
has
complied
with
this
Section
13.6
and
if
the
addressee
has
received
the
notice.
A
notice
is
deemed
to
have
been
received
as
follows:
(a)
|
If
a
notice
is
delivered
in
person,
or
sent
by
registered
or
certified
mail,
or
nationally
or
internationally
recognized
overnight
courier,
upon
receipt
as
indicated
by
the
date
on
the
signed
receipt;
or
|
(b)
|
If
a
notice
is
sent
by
facsimile,
upon
receipt
by
the
Party
giving
the
notice
of
an
acknowledgment
or
transmission
report
generated
by
the
machine
from
which
the
facsimile
was
sent
indicating
that
the
facsimile
was
sent
in
its
entirety
to
the
addressee’s
facsimile
number.
|
Each
Party
giving
a
notice
shall
address
the
notice
to
the
appropriate
person
at
the
receiving
Party
at
the
address
listed
below
or
to
a
changed
address
as
the
Party
shall
have
specified
by
prior
written
notice:
TIANWEI:
TIANWEI
NEW
ENERGY
(CHENGDU)
WAFER
CO.,
LTD.
Road
8,
Southwest
Airport
Economical
Development
Zone
Chengdu,
China
(Postal
610200)
Tel:
[*]
Fax:
[*]
Attn:
[*]
With
a
copy
to:
SINOTRANSPACIFIC
POLY
LLC
00000
XxxXxxxxx
Xxxx.
Xxxxx
000
Xxxxxx,
XX
00000
Tel:
[*]
Fax:
[*]
Attn:
[*]
HOKU:
HOKU
MATERIALS,
INC.
0000
Xxxxxxxxx
Xxxxxx
Xxxxxxx,
XX
00000
Attn:
Xx.
Xxxxxx
Xxxxxx,
CEO
Facsimile:
[*]
TIANWEI
Initials
&
Date
AG
September
14,
2008
|
HOKU
Initials
&
Date
DS
September
14,
2008
|
Page
11
of
15
Exhibit
10.84
CONFIDENTIAL
13.7. The
waiver
by
either
Party
of
the
remedy
for
the
other
Party’s
breach
of
or
its
right
under
this
Agreement
will
not
constitute
a
waiver
of
the
remedy
for
any
other
similar
or
subsequent
breach
or
right.
13.8. If
any
provision
of
this
Agreement
is
or
becomes,
at
any
time
or
for
any
reason,
unenforceable
or
invalid,
no
other
provision
of
this
Agreement
shall
be
affected
thereby,
and
the
remaining
provisions
of
this
Agreement
shall
continue
with
the
same
force
and
effect
as
if
such
unenforceable
or
invalid
provisions
had
not
been
inserted
in
this
Agreement.
13.9. No
changes,
modifications
or
alterations
to
this
Agreement
shall
be
valid
unless
reduced
to
writing
and
duly
signed
by
respective
authorized
representatives
of
the
Parties.
13.10. No
employment,
agency,
trust,
partnership
or
joint
venture
is
created
by,
or
shall
be
founded
upon,
this
Agreement.
Each
Party
further
acknowledges
that
neither
it
nor
any
Party
acting
on
its
behalf
shall
have
any
right,
power
or
authority,
implied
or
express,
to
obligate
the
other
Party
in
any
way.
13.11. Neither
Party
shall
make
any
announcement
or
press
release
regarding
this
Agreement
or
any
terms
thereof
without
the
other
Party’s
prior
written
consent;
provided,
however,
that
the
Parties
will
work
together
to
issue
a
joint
press
release
within
two
(2)
days
after
execution
of
this
Agreement.
Notwithstanding
the
foregoing,
either
Party
may
publicly
disclose
the
material
terms
of
this
Agreement
pursuant
to
the
United
States
Securities
Act
of
1933,
as
amended,
the
United
States
Securities
Exchange
Act
of
1934,
as
amended,
or
other
applicable
law;
provided,
however,
that
the
Party
being
required
to
disclose
the
material
terms
of
this
Agreement
shall
provide
reasonable
advance
notice
to
the
other
Party,
and
shall
use
commercially
reasonable
efforts
to
obtain
confidential
treatment
from
the
applicable
governing
entity
for
all
pricing
and
technical
information
set
forth
in
this
Agreement.
13.12. This
Agreement
constitutes
the
entire
agreement
between
the
Parties
and
supersedes
all
prior
proposal(s)
and
discussions,
relative
to
the
subject
matter
of
this
Agreement
and
neither
of
the
Parties
shall
be
bound
by
any
conditions,
definitions,
warranties,
understandings
or
representations
with
respect
to
such
subject
matter
other
than
as
expressly
provided
herein.
No
oral
explanation
or
oral
information
by
either
Party
hereto
shall
alter
the
meaning
or
interpretation
of
this
Agreement.
Except
where
Supply
Agreement
No.
1
is
specifically
amended
by
this
Agreement,
Supply
Agreement
No.
1
shall
continue
to
be
in
full
force
and
effect
without
modification
after
the
execution
of
this
Agreement.
13.13. The
headings
are
inserted
for
convenience
of
reference
and
shall
not
affect
the
interpretation
and
or
construction
of
this
Agreement.
13.14. Words
expressed
in
the
singular
include
the
plural
and
vice-versa.
13.15. This
Agreement
may
be
executed
in
one
or
more
counterparts,
including
counterparts
transmitted
by
telecopier,
telefax,
or
e-mail
PDF.
All
such
counterparts,
when
taken
together,
shall
constitute
one
and
the
same
binding
Agreement
on
the
Parties
hereto.
TIANWEI
Initials
&
Date
AG
September
14,
2008
|
HOKU
Initials
&
Date
DS
September
14,
2008
|
Page
12
of
15
Exhibit
10.84
CONFIDENTIAL
IN
WITNESS
WHEREOF,
the
Parties
have
executed
this
Supply
Agreement
No.
2
as
of
the
date
last
set
forth
below.
TIANWEI:
TIANWEI
NEW
ENERGY
(CHENGDU)
WAFER
CO.,
LTD.
By: /s/
XXXXX
XXX
Name: Xxxxx
Xxx
Title: General
Manager
Authorized
Signatory
Date: September
14,
2008
|
HOKU:
HOKU
MATERIALS,
INC.
By: /s/
XXXXXX
XXXXXX
Name: Xxxxxx
Xxxxxx
Title: CEO
Authorized
Signatory
Date: September
14,
2008
|
Signature
Page
to
Supply
Agreement
No.
2
Page
13
of
15
Exhibit
10.84
CONFIDENTIAL
Appendix
1
Pricing
Schedule
Yr
1
|
Yr
2
|
Yr
3
|
Yr
4
|
Yr
5
|
Yr
6
|
Yr
7
|
Yr
8
|
Yr
9
|
Yr
10
|
Total
|
|
Tons
per
Year
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
Price
per
kg
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
|
If
there
is
uncertainty
in
price
between
the
delivery
period
and
the
total
quantity
for
that
period
based
on
the
table
above,
the
price
assigned
to
the
quantity
shall
prevail.
For
example,
the
first
[*]
MT
shall
be
invoiced
at
$[*]
per
kilogram.
TIANWEI
Initials
&
Date
AG
September
14,
2008
|
HOKU
Initials
&
Date
DS
September
14,
2008
|
Appendix
1
to
Supply
Agreement
No.
2
Page
14
of
15
Exhibit
10.84
CONFIDENTIAL
Appendix
2
--
Product
Specifications
[*]
Product
Specifications
shall
be
tested
in
accordance
with
the
following
procedures:
graphite
furnace
atomic
absorption
spectroscopy,
inductively
coupled
plasma-mass
spectroscopy
and
Fourier
transform
infrared
absorption
spectroscopy.
Qualified
Laboratories:
[*]
TIANWEI
Initials
&
Date
AG
September
14,
2008
|
HOKU
Initials
&
Date
DS
September
14,
2008
|
Appendix
2
to
Supply
Agreement
No.
2
Page
15
of
15