SUPPLY AGREEMENT
Exhibit
10.88
[*]
= 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.
This
Supply Agreement (this “Agreement”)
is made as of November 19, 2008 (the “Effective
Date”) between BHS Acquisition, LLC, a limited liability company
organized under the laws of the State of Utah (hereinafter “SUPPLIER”)
and HOKU MATERIALS, INC., a Delaware corporation (hereinafter “HOKU”). SUPPLIER
and HOKU are sometimes referred to in this Agreement as the “Parties”
or individually as a “Party”.
Recitals
Whereas,
SUPPLIER desires to supply Product (as defined below) to HOKU for use in HOKU’s
polysilicon production process beginning in the second quarter of calendar year
2009, and HOKU desires to purchase such Product from SUPPLIER;
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:
Agreement
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 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. “Business
Day” shall mean Monday through Friday, excluding United States federal
holidays.
1.4. “First Shipment
Date” shall mean June 30, 2009, which shall be the date on which the
first delivery of Guaranteed Weekly Quantity of Products is delivered to the
Hoku Facility in accordance with the terms of this Agreement.
1.5. “Guaranteed Weekly
Quantity of Product” shall mean [*] metric tons of Product, except that
for the first four weeks of the Agreement, the Guaranteed Weekly Quantity of
Product shall be [*] metric tons.
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HOKU Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 1 of
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1.6. “HOKU
Facility” shall mean HOKU’s polysilicon production facility located at
One Hoku Way, Pocatello, Idaho USA.
1.7. “Product”
shall mean 22° Bé Hydrochloric Acid (HCl), commonly known as muriatic acid, that
meets the Product Specifications.
1.8. “Product
Specifications” shall mean the quality and other specifications for the
Products as set forth on Appendix
2 to this Agreement.
1.9. “Term”
shall mean the period during which this Agreement is in effect, as more
specifically set forth in Section 7.1 of this Agreement.
1.10. “Year”
shall mean each of the twelve-month periods commencing on the First Shipment
Date.
2. Ordering; Supply; Shipment
& Delivery Obligations.
2.1. HOKU
hereby agrees to purchase from SUPPLIER, and SUPPLIER agrees to sell to HOKU
each week beginning on the First Shipment Date, through the expiration or
earlier termination of this Agreement pursuant to Section 8 below, the
Guaranteed Weekly Quantity of Product. The Product will be shipped in
the weekly volumes and invoiced at the prices set forth in Appendix
1 to this Agreement (the “Shipping
and Pricing
Schedule”). After the first Year, the pricing for each
subsequent year will be freely negotiated in good faith for each such
Year. If the Parties are unable to agree on the price at least 60
days prior to the beginning of the applicable Year, then either Party shall have
the right to terminate this Agreement without penalty, and following such
termination in writing, both Parties shall be released from any further
obligations under this Agreement, except for any obligations related to past or
pending shipments in the then-current Year.
2.2. The
entire Guaranteed Weekly Quantity of Product shall be delivered to the Hoku
Facility by the last Business Day of each week (the “Weekly Shipment
Date”) following the First Shipment Date, in shipments of not less than
[*] pounds of Product; provided, however, that the Parties may agree to modify
the daily delivery schedule within any given week without the need for formal
written amendment of the Agreement as long as any change to the delivery
schedule is made between an authorized party from each company.
2.3. If
SUPPLIER does not supply to HOKU the Guaranteed Weekly Quantity of Product
pursuant to Section 2.1 within [*] of any Weekly Shipment Date, SUPPLIER
will incur a purchase price adjustment applicable to the delayed week’s
shipments only. This purchase price adjustment does not apply to any
future shipments. This purchase price adjustment shall be [*] of the
value of the respective delayed Product for each day or part thereof that the
Product shipment is delayed beyond the [*] grace period, up to a maximum
purchase price adjustment of [*]. Any purchase price adjustments
incurred as a result of this Section 2.3 may be off-set by HOKU against
payment of any invoice. For the avoidance of doubt, the purchase
price adjustment shall not be considered to be either a penalty or liquidated
damages.
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HOKU Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 2 of 14
2.4. In
addition to, and cumulative with, the purchase price adjustment and remedies
mentioned in Section 2.3 of this Agreement, if SUPPLIER fails to
deliver to HOKU the Guaranteed Weekly Quantity of Product pursuant to Section
2.1 above within [*] of the applicable Weekly Shipment Date, HOKU may, in its
sole discretion, and after providing written notice to SUPPLIER, choose to
forego delivery of the delayed Product. If HOKU elects to forego
delivery of the delayed Product pursuant to this Section 2.4, then HOKU may
purchase the undelivered quantity of Product from any other vendor of its
choosing for any time frame for which Supplier is unable to supply, and SUPPLIER
shall be required to reimburse or credit HOKU for the difference between what
HOKU would have paid to SUPPLIER for that Product (before applying any purchase
price adjustment to which HOKU would have been entitled to for that delivery),
and the net costs HOKU actually incurs in obtaining the replacement Product;
provided, however, that HOKU shall use commercially reasonable efforts to pay
not more than the then-current market price for such replacement
Products.
2.5. All
shipments shall be [*] (INCOTERMS 2000) HOKU’s facility at One Hoku Way
Pocatello, Idaho.
2.6. HOKU
shall have the option, during the term of this Agreement, to construct the
infrastructure needed for delivery of the Product to the HOKU Facility by rail
at Hoku’s sole discretion and cost. If HOKU constructs this
infrastructure, and if rail shipment would provide transportation cost savings
to SUPPLIER, then HOKU may require, with no less than 180 days’ written notice,
that SUPPLIER ship the PRODUCT by rail and credit HOKU with a per-ton
purchase price adjustment in the amount of [*] of SUPPLIER’s cost savings per
ton. If HOKU and SUPPLIER cannot agree on the amount of SUPPLIER’s
cost savings, then HOKU may, at its sole expense, hire an independent auditor to
determine SUPPLIER’s cost savings, and the decision of that independent auditor
shall be binding on the Parties.
2.7. HOKU
may at any time reduce the Guaranteed Weekly Quantity of Product by providing 30
days’ prior written notice to SUPPLIER. In the event that such
decrease reduces the number of SUPPLIER’s leased rail cars that SUPPLIER can
utilize for the applicable shipments, HOKU shall be liable for the actual
monthly lease expense for the unused rail cars, which SUPPLIER estimates to be
[*] per car per month (the “Railcar
Lease”) through the term of this Agreement; provided, however, that
SUPPLIER shall use commercially reasonable efforts to sublease or assign such
leases, or otherwise cover its lease costs, in which case HOKU shall only be
liable for the difference between the Railcar Lease and such amounts recovered,
if any.
3. Payments &
Advances.
3.1. SUPPLIER
shall invoice HOKU, once per month, for all of the Guaranteed Weekly Quantities
of Product delivered to HOKU during that month. Taxes, customs and
duties, if any, will be identified as separate items on SUPPLIER invoices. All
invoices shall be sent to HOKU’s notice address provided in this
Agreement. Payment terms for all invoiced amounts shall be [*] from
the date of invoice. All payments shall be made in U.S. Dollars via
wire transfer. If payments are not received within [*], SUPPLIER will
notify Hoku. Should payment not be received within [*] after
notification, SUPPLIER will have the right to suspend shipments.
3.2. The
prices for the Products do not include any excise, sales, use, import, export or
other similar taxes, which taxes will be separately identified on invoices and
paid by HOKU, provided that HOKU is legally or contractually obliged to pay such
taxes. SUPPLIER and HOKU will work together to Legally minimize the
possibility of taxes, but if there are any assessed, SUPPLIER shall promptly
remit to HOKU in full any such taxes paid by HOKU which are refunded to SUPPLIER
in whole or in part. Supplier shall be responsible for all
transportation charges, duties or charges for shipping and handling; thus, the
price for the Products set forth in Appendix 1 includes any and all such
charges.
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HOKU
Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 3 of 14
3.3. Notwithstanding
SUPPLIER’s obligation to pay all transportation charges associated with shipment
and delivery of the Products pursuant to Sections 2.5 and 3.2 above, SUPPLIER
shall invoice HOKU for any additional costs it incurs in shipping Products to
HOKU which are directly attributable to increases in the cost of fuel per the
BHS Marketing-Nampa Fuel Surcharge Program. If the fuel-related costs
incurred by SUPPLIER in shipping Products decrease, then SUPPLIER shall credit
HOKU in the amount of the difference between its costs as of the Effective Date
and its then-current costs. In addition, if the Product is shipped to
HOKU by rail, SUPPLIER may also invoice HOKU for any additional rail rate or
rail fuel surcharges it incurs in shipping Product to XXXX.
0. Product Quality
Guarantee.
4.1. SUPPLIER
warrants to HOKU that the Products shall meet the Product Specifications. For
each shipment during the first Year, this warranty shall survive for [*] days
after the applicable delivery date, and for each shipment after the first Year,
this warranty shall survive for [*] days after the applicable delivery date (the
“Warranty
Period”), given that the product integrity is protected by Hoku during
the product storage and use process. If Hoku stores or processes the
product in a manner inconsistent with recommended industry practices (e.g. using
materials of construction not recommended for the storage and handling of
Hydrochloric Acid 22 degree), SUPPLIER warranty shall be
void. SUPPLIER warrants that the Products shall be free of all liens,
mortgages, encumbrances, security interests or other claims or
rights. SUPPLIER will, upon prompt notification and compliance with
SUPPLIER’s instructions, refund or replace any Product which does not meet the
Product Specifications, and HOKU shall comply with the inspection and return
goods policy described in Section 5 below with
respect to such Products. No employee, agent or representative of
SUPPLIER has the authority to bind SUPPLIER 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 SUPPLIER shall not be enforceable by
HOKU. Any disagreement between the Parties regarding the Product
Specifications shall be resolved by a third party testing lab that is chosen
from among the labs set forth on Appendix 3 (the “Independent
Labs”). If the Parties are unable to agree on which of the
Independent Labs should conduct the testing, then each Party shall choose one of
the Independent Labs, and those two Independent Labs shall choose a third lab to
conduct the testing. The results of the independent lab shall be
final and binding on the Parties. All costs associated with the
independent lab testing, including, without limitation, transportation costs,
and lab fees, shall be borne by the non-prevailing Party.
4.2. SUPPLIER
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING THE WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE. SUPPLIER’s sole responsibility and HOKU’s exclusive remedy
for any warranty claim arising out of the purchase of any Product is a refund or
replacement, as described above. In no event shall SUPPLIER’s
liability for breach of warranty exceed the purchase price paid therefor; nor
shall SUPPLIER 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, arising as a result of a breach of warranty, even if
SUPPLIER has been advised of the possibility of such damages. None of
the limitations in this paragraph, however, will prevent either party from
exercising any remedies to which they may be entitled under Section 2.4, 3, 5,
8.2, or 8.2.5.
5. Inspection and Return Goods
Policy.
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HOKU Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 4 of 14
5.1. An
inspection of each shipment of Product shall be made by HOKU in accordance with
sound business practice upon the delivery of the Product, and in no case later
than 30 days after delivery at the HOKU Facility. HOKU shall inform SUPPLIER
promptly, and in no case later than 30 days after delivery of Product, in case
of any obvious damages or other obvious defects to the Product which HOKU
discovers under the inspection of appearance.
5.2. HOKU
shall perform final inspection of the Product upon introducing the Product into
HOKU’s production process. Such inspection shall take place during the Warranty
Period, if at all. If the Product does not meet the Product
Specifications, HOKU shall notify SUPPLIER 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
immediately return the Products to SUPPLIER at SUPPLIER’s sole expense for
replacement or a refund. SUPPLIER reserves the right to reverse any
credit issued to HOKU if, upon return, such Product is determined by a
predetermined third party to meet the Product Specifications.
6. Indemnification.
6.1. SUPPLIER
agrees to indemnify and hold harmless HOKU and its officers, directors,
employees and agents from and against any and all liabilities (including tort,
negligence and strict liability), obligations, losses, damages, costs, claims,
judgments, suits and all legal proceedings, and any and all costs and expenses
in connection therewith, including reasonable attorneys’ fees, of whatever kind
or nature (“Claims”)
imposed on Hoku, SUPPLIER’s production of the Product, and HOKU’s use of the
Product in its polysilicon production process, except to the extent caused by
HOKU’s negligence, use of the product in a means other than those that are
accepted industry practices, or intentional acts or omissions including, without
limitation, claims for injury or death of persons or damage to
property.
6.2. HOKU
agrees to indemnify and hold harmless SUPPLIER and its officers, directors,
employees and agents from and against any and all Claims arising out of HOKU’s
breach of this Agreement, HOKU’s use of the Product in its polysilicon
production process, HOKU’s use of the Product in a means other than those that
are accepted by industry practices, or HOKU’s intentional acts or omissions,
including, without limitation, claims for injury or death of persons or damage
to property, except in all cases, to the extent caused by SUPPLIER’s negligence,
intentional acts or omissions.
7. Term.
7.1. The
term of this Agreement shall begin on the Effective Date and, unless previously
terminated as hereinafter set forth, shall remain in force for a period of eight
(8) Years. This Agreement will be automatically extended for periods
of one (1) year unless either party notifies the other within 180 days prior to
the end of the original agreement or any extension period thereof.
8. Termination and
Remedies.
8.1. HOKU
may terminate this agreement after written notice to SUPPLIER, if, at any time
within a given twelve month period, SUPPLIER has, on three separate occasions,
or on two consecutive occasions, delivered a Guaranteed Weekly Quantity of
Product to HOKU that is either more than ten (10) days late, or that materially
fails to conform to the Product Specifications. HOKU may also
terminate this agreement if SUPPLIER fails to deliver any Guaranteed Weekly
Quantity of Product within thirty (30) days of the Weekly Shipment Date for that
delivery.
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HOKU
Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 5 of 14
8.2. Either Party
may, 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:
8.2.1. Upon
a material breach of the other Party to this Agreement, and failure of the other
Party to cure such material breach within thirty (30) days after written notice
thereof; provided, however, that such cure period shall not modify or extend the
10-day cure period for SUPPLIER’s delivery obligations pursuant to Section 2.3
above, nor shall it apply to or alter HOKU’s termination rights under Section
8.2, above; and provided, further that such thirty (30) day cure period shall
not apply to HOKU’s failure to make any payment to SUPPLIER pursuant to this
Agreement. In the event of HOKU’s failure to make payment on the
15-day payment terms set forth in Section 3.1 hereof, termination by SUPPLIER
shall require Hoku to cure such material breach with 5 days after written
notice. A “material breach” of this Agreement shall include (i) the
breach of any material term of this Agreement, including any of the
representations or warranties set forth in Section 10 of this Agreement; and
(ii) the repeated or continuous breach of any term of this Agreement, which
breach materially adversely affects the non-breaching Party.
8.2.2. 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 sixty (60)
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; Should Buyer be involved with a voluntary or involuntary
bankruptcy or insolvency proceeding, all shipments after such filing such be
delivered with payment terms of COD.
8.2.3. 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
8.2.4. In
accordance with the provisions of Section 9 below.
8.2.5. In
accordance with the provisions of Section 2.1 above if the Parties are
unable to agree on pricing for a subsequent year.
8.3. Apart
from the purchase price adjustment and reimbursement provisions discussed in
Section 2.4, above, neither Party shall be liable to the other Party for any
special, consequential, or liquidated damages for breach of this agreement,
except, however, that if HOKU terminates this Agreement pursuant to Section 8.1,
then SUPPLIER shall be liable to HOKU, for the remainder of the Term specified
in Section 7 of this Agreement, or under any subsequent written extension of
this agreement, for any additional costs that HOKU incurs in obtaining the
Guaranteed Weekly Quantity of Product from any other vendor or vendors, above
what HOKU would have paid to SUPPLIER for the same amount of Product under the
Pricing and Shipping Schedule.
8.4. Upon
the expiration or termination of this Agreement howsoever arising and subject
always to the provisions of Section 8.5 below, the following Sections shall
survive such expiration or termination: Sections 1 (Definitions); Section 4
(Product Quality Guarantee), Section 5 (Inspection and Return Goods Policy);
Section 7 (Term); Section 8 (Termination and Remedies); and Section 10 (General
Provisions).
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HOKU
Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 6 of 14
8.5. Upon
expiration or termination of this Agreement for any reason, all outstanding
Orders placed prior to such expiration or termination shall be completed by
SUPPLIER and for this purpose and to that extent, the provisions of this
Agreement shall continue in full force and effect. The foregoing shall not apply
for the Order(s) that is (are) terminated at the same time as the
Agreement.
9.
Force
Majeure.
9.1. 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 performance
of SUPPLIER is delayed for Force Majeure for a cumulative period of thirty (30)
days or more, SUPPLIER will use commercially reasonable efforts to transition
its delivery of the Products for the duration of the Force Majeure to an
alternate source (which may be a competitor). If the conditions of
force majeure apply for a period of more than sixty (60) days, and, in the event
that SUPPLIER is the affected Party, if SUPPLIER has not transitioned its
delivery pursuant to the previous sentence, then the non-affected Party shall be
entitled to terminate this Agreement by written notice to the other
Party.
10. Representations and
Warranties.
10.1. SUPPLIER
and HOKU each represent and warrant to the other Party the
following:
10.1.1. This Agreement constitutes
the legal, valid and binding obligation of such Party, enforceable against such
Party in accordance with its terms, except as to the effect, if any, of
(i) applicable bankruptcy, insolvency, reorganization, moratorium and
similar Laws affecting creditors’ rights and remedies generally, (ii) rules
of Law governing specific performance, injunctive relief and other equitable
remedies, and (iii) general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing .
10.1.2. Such
Party has the absolute and unrestricted right, power and authority to execute
and deliver this Agreement and to perform its obligations under this Agreement,
and such action has been duly authorized by all necessary action by such party’s
shareholders and board of directors, to the extent such authorization is
required by such party’s governing documents, or by applicable law, code, rule
or regulation.
10.1.3. Neither
the execution and delivery of this Agreement by such Party nor the consummation
of the transactions contemplated hereby, will conflict in any respect
with, or result in any violation of or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination or cancellation
or acceleration under, any provision of (i) the certificate of formation
and operating agreement of such Party; (ii) any company
resolution of such Party; (iii) any contract to which such Party is a party or
by which any of the properties or assets of such Party are bound; (iv) any
order applicable to such Party or by which any of the properties or assets of
such Party are bound; or (v) any law or regulation applicable to such
Party.
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HOKU
Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 7 of 14
10.1.4. Such
Party is not and will not be required to obtain any consent from any third party
in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the transactions contemplated
hereby.
10.2. SUPPLIER
further represents and warrants to HOKU that SUPPLIER has, and will continue to
have during the term of this Agreement, the capacity to manufacture or otherwise
procure the Guaranteed Weekly Quantity of Product from a secure source, and the
capacity to deliver such Product to HOKU according to the Shipping and Pricing
Schedule set forth in Appendix
1.
11. General
Provisions.
11.1. This
Agreement shall be construed under and governed by the laws of the State of
Idaho, U.S.A. In any legal proceeding between the Parties that is
brought to enforce this agreement, or arising out of this Agreement, the
prevailing party shall be entitled to its legal fees, costs, and other
expenses.
11.2. Upon
notice from one Party to the other of a material breach of this Agreement under
Section 8.1 or Section 8.2.1 of this Agreement, the Parties agree to hold a
meeting within fifteen (15) 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 Idaho, USA. In any such
proceeding, neither Party shall assert that such a court lacks jurisdiction over
it or the subject matter of the proceeding.
11.3. Each
Party may assign this Agreement to any of its Affiliates that have the ability
to perform the obligations of this Agreement, and HOKU may assign its rights
under this Agreement to any collateral agent as collateral security for HOKU’s
secured obligations in connection with the financing a HOKU Facility, without
the consent of SUPPLIER. Except as stated in the previous sentence,
neither HOKU nor SUPPLIER 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.
11.4. 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 11.4 and if the
addressee has received the notice. A notice is deemed to have been received as
follows:
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(a)
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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;
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(b)
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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;
or
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HOKU Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
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Page 8 of 14
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(c)
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If
a notice is sent by e-mail, upon receipt by the Party giving the notice of
an acknowledgement or transmission report indicating that the e-mail was
sent in its entirety to the addressee’s e-mail
address.
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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:
HOKU:
HOKU
MATERIALS, INC.
Xxx Xxxx
Xxx
Xxxxxxxxx,
Xxxxx 00000 XXX
Attn: Xx.
Xxxx Xxxx, CTO
E-mail: xxxxx@xxxxxxx.xxx
Facsimile: x0
(000) 000-0000
With a
copy to:
HOKU
SCIENTIFIC, INC.
0000 Xxx
Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
Xxxxxx 00000
Attn: Xx.
Xxxxxx Xxxxxx, CEO
E-mail: xxxxxxx@xxxxxxx.xxx
Facsimile: x0
(000) 000-0000
SUPPLIER:
BHS
Acquisitions, LLC
0000 X
Xxxxx Xxx
Xxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxx
E-mail: XXXxxxx@xxx.xxx
Facsimile:
000-000-0000
Copy
to:
BHS
Marketing LLC
0000 X
Xxxxxxx Xxx
Xxxx Xxxx
Xxxx, XX 00000
Attn: Xxxxx
Xxxxxxxxxxx
E-mail: XXXXXXXX@xxx.xxx
Facsimile:
000-000-0000
11.5. 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.
11.6. 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.
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HOKU Initials & Date ____DS 11/19/08
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SUPPLIER Initials & Date ___MTM 11/19/08___________________
|
Page 9 of 14
11.7. 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.
11.8. 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.
11.9. 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.
11.10. 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.
11.11. The
headings are inserted for convenience of reference and shall not affect the
interpretation and or construction of this Agreement.
11.12. Words
expressed in the singular include the plural and vice-versa.
11.13. This
Agreement may be executed in one or more counterparts, including counterparts
transmitted by telecopier, telefax or email PDF, which taken together shall
constitute one and the same legally binding instrument.
|
HOKU
Initials & Date ____DS 11/19/08
|
SUPPLIER Initials & Date ___MTM 11/19/08___________________
|
Page 10 of 14
IN
WITNESS WHEREOF, the Parties have executed this Supply Agreement as of the date
first set forth above.
| HOKU: | SUPPLIER: | |||
| HOKU MATERIALS, INC. | BHS ACQUISITIONS, LLC | |||
|
By:
|
/s/ Xxxxxx Xxxxxx
|
By:
|
/s/ Xxxxxxx X. Xxxxx
|
|
|
Name:
|
Xxxxxx Xxxxxx
|
Name:
|
Xxxxxxx X. Xxxxx
|
|
|
Title:
|
Chief Executive Officer
|
Title:
|
Vice President
|
|
| Authorized Signatory | Authorized Signatory | |||
Appendix
1
Shipping
and Pricing Schedule
|
Year
|
Total
Annual Quantity
of
Product
|
Guaranteed
Weekly
Quantity
of Product
|
Weekly
Delivery Date
|
DEQ
Price
($/ton)
|
||||
|
1
|
[*]
|
[*]
|
Last
Business Day of each week
|
$257.20
|
||||
|
2
|
[*]
|
[*]
|
Last
Business Day of each week
|
**
|
||||
|
3
|
[*]
|
[*]
|
Last
Business Day of each week
|
**
|
||||
|
4
|
[*]
|
[*]
|
Last
Business Day of each week
|
**
|
||||
|
5
|
[*]
|
[*]
|
Last
Business Day of each week
|
**
|
||||
|
6
|
[*]
|
[*]
|
Last
Business Day of each week
|
**
|
||||
|
7
|
[*]
|
[*]
|
Last
Business Day of each week
|
**
|
||||
|
8
|
[*]
|
[*]
|
Last
Business Day of each week
|
**
|
*Except
for the first four deliveries of product, for which the Guaranteed Weekly
Quantity of Product shall be [*]
**Pricing
to be negotiated pursuant to Section 2.1 of the Agreement.
|
HOKU Initials & Date ____DS 11/19/08
|
SUPPLIER Initials & Date ___MTM 11/19/08___________________
|
Appendix 2 to Supply Agreement
Page 12
of 14
Appendix
2
Product
Specifications
22º
Bé Muriatic Acid
(HCL)
BURNER
GRADE
|
COMPONENT
|
SPECIFICATIONS
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
|
[*]
|
[*]
|
|
HOKU Initials & Date ____DS 11/19/08
|
SUPPLIER Initials & Date ___MTM 11/19/08___________________
|
Appendix 2 to Supply Agreement
Page 13 of 14
Appendix
3
Independent
Labs
Analytical
Laboratories, Inc.
0000 X
00XX
Xxxxx, XX
00000
0-000-000-0000
0-000-000-0000
Anatek
Laboratories
0000
Xxxxxxx Xxxxx
Xxxxxx,
XX 00000
000-000-0000
DataChem
Laboratories, Inc.
000 X.
XxXxx Xxxxx
Xxxx Xxxx
Xxxx, XX 00000
000-000-0000
Edge
Analytical Laboratories
0000 X
Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Burlington
Office
(000)
000-0000
|
HOKU Initials & Date ____DS 11/19/08
|
SUPPLIER Initials & Date ___MTM 11/19/08___________________
|
Appendix 2 to Supply Agreement
Page 14 of 14
