Amendment to SUPPLY AGREEMENT No.2
Exhibit
10.86
[*]
= 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
to SUPPLY AGREEMENT No.2
The
SUPPLY AGREEMENT No.2 signed on September 14, 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:
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 [*] 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.”
Clause
4.3 in aforesaid original SUPPLY AGREEMENT shall be superseded by the above
clause.
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 sixty (60) 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
[*].
Clause
5.5 in aforesaid original SUPPLY AGREEMENT No.2
shall
be
superseded by the clause above.
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TIANWEI
Initials & Date AG
October 24, 2008
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HOKU
Initials & Date DS
October 24, 2008
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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) for
the SUPPLY AGREEMENT signed on August 4, 2008
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 No 2 shall and does remain in effect as
originally written, except as herein above specially amended.
The
amendment to SUPPLY AGREEMENT is hereby authorized by:
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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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|
TIANWEI
Initials & Date AG
October 24, 2008
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HOKU
Initials & Date DS
October 24, 2008
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