Amendment No.2 to SUPPLY AGREEMENT
Exhibit
10.85
[*]
= 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.2 to SUPPLY AGREEMENT
The
SUPPLY AGREEMENT signed on August 4, 2008 for the supply of [*] metric tons
of
Polysilicon for a continuous period of ten years 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”)
is
hereby amended, in part, in the following particular:
5.6. 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 [*].
Clause
5.6 in aforesaid original SUPPLY AGREEMENT shall be superseded by the clause
above.
As
full
and complete consideration for HOKU agreeing to the foregoing amendments, and
as
an express condition to the effectiveness of the foregoing amendments, TIANWEI
hereby agrees to pay to HOKU in full the Second Deposit (as defined in SUPPLY
AGREEMENT) in the amount of Fifteen Million U.S. Dollars (USD $15,000,000)
via
wire transfer on or before October 28, 2008.
The
aforesaid original SUPPLY AGREEMENT shall and does remain in effect as
originally written, and as amended pursuant to the Supply Agreement No. 2 signed
on September 14, 2008, except as herein above specially amended.
The
amendment to SUPPLY AGREEMENT is hereby authorized by:
TIANWEI:
TIANWEI
NEW ENERGY (CHENGDU) WAFER CO., LTD.
By: /s/
XXXXX XXX
Name: Xxxxx
Xxx
Title: General
Manager
Authorized
Signatory
Date: October
24, 2008
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HOKU:
HOKU
MATERIALS, INC.
By: /s/
XXXXXX X. XXXXXX
Name: Xxxxxx
X. Xxxxxx
Title: Chief
Executive Officer
Authorized
Signatory
Date: October
24, 2008
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