ENGINEERING, PROCUREMENT & CONSTRUCTION MANAGEMENT AGREEMENT

E XHIBIT 10.53

ENGINEERING, PROCUREMENT & CONSTRUCTION

MANAGEMENT AGREEMENT

This Engineering, Procurement & Construction Management Agreement (this “ Agreement ”), is dated as of August 7, 2007, and is entered into by and between HOKU MATERIALS, INC., a Delaware corporation (hereinafter referred to as “ Owner ”) and STONE & WEBSTER, INC. (hereinafter referred to as “ Contractor ”). Contractor and Owner are referred to herein as a “Party” and together as the “Parties.”

R ECITALS

WHEREAS, Owner is building a 2000 Metric Ton/Year Polysilicon Plant to be located in Pocatello, Idaho (hereinafter referred to as the “ Project ”); and

WHEREAS, Owner intends to hire Contractor to perform certain engineering, procurement, and construction management services for the Project as hereinafter set forth; and

WHEREAS, Contractor desires to perform such services for Owner;

NOW, THEREFORE, pursuant to the terms and conditions and the mutual consideration set forth herein, Owner and Contractor agree as follows.

A GREEMENT

ARTICLE 1. DEFINITIONS.

Capitalized terms used in this Agreement and not otherwise defined, are defined in this ARTICLE 1.

1.1. AGREEMENT. The term “ Agreement ” means this Engineering, Procurement and Construction Management Agreement, together with all schedules, exhibits and appendices hereto, as such may be amended or amended and restated from time to time.

1.2. APPLICATION FOR PAYMENT. The term “ Application for Payment ” is defined in Article 10.1.1 of this Agreement.

1.3. CONTRACT PRICE. The “ Contract Price ” is defined in Article 7 of this Agreement.

1.4. CONTRACT TIME SCHEDULE. The “ Contract Time Schedule ” is defined in Article 6.1 of this Agreement.

1.5. CONTRACT TIMES. The number of Days or the dates stated in the Agreement (i) to achieve Substantial Completion, and (ii) to complete the Work so that it is ready for final payment in accordance with ARTICLE 10 of this Agreement.

1.6. CONSTRUCTION MANAGEMENT. As Owner’s representative and an integral member of the project team during all phases of the project, that portion of Contractor’s Work related to planning, coordinating, monitoring, status assessment and reporting on construction progress, schedule and budget.

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1.7. DAY. The term “ Day ” shall mean a calendar day unless otherwise specifically designated.

1.8. ENGINEERING SERVICES. That portion of Contractor’s Work relating to the preparation of Drawings, Specifications, and other design documents specified in the Contract Documents and required to be performed by licensed design professionals.

1.9. HAZARDOUS SUBSTANCE. The term “Hazardous Substance” means any and all chemicals, constituents, contaminants, pollutants, materials, and wastes and any other carcinogenic, corrosive, ignitable, radioactive, reactive, toxic or otherwise hazardous substances or mixtures (whether solids, liquids, gases), or any substances now or at any time subject to regulation, control, remediation or otherwise addressed as a hazardous substance under applicable laws, including those laws, regulations and policies relating to the discharge, emission, spill, release, or threatened release into the environment or relating to the disposal, distribution, manufacture, processing, storage, transport, treatment, or other use of such substances.

1.10. MILESTONE. A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work.

1.11. OWNER AND CONTRACTOR. Contractor is an independent contractor and, except for the procurement of engineered equipment necessary for the Project and its Construction Management Services, is not an agent of Owner. This Agreement shall not be construed as establishing an employment agreement, a partnership, a general agency, or a joint venture, and neither party shall have any authority to incur or commit for expenditures on behalf of the other party or to obligate that party except as expressly authorized by that party in writing.

1.12. PRELIMINARY DOCUMENTS. The term “ Preliminary Documents ” is defined in Article 3.2.1 of this Agreement.

1.13. PROJECT. The “ Project ” is defined in the recitals to this Agreement, and includes total construction, which may include construction by other contractors of Owner and/or Owners own forces and Contractor’s Work.

1.14. SITE. Lands or other areas designated in the Contract Documents as being furnished by Owner for the performance of construction, storage, lay down, or access.

1.15. SUBCONTRACTOR. The term “ Subcontractor ” shall mean a person or entity who has a direct contract with Contractor to perform a portion of the Work. Subcontractor shall include an authorized representative of the Subcontractor. The term Subcontractor does not include any separate contractor employed by Owner.

1.16. SUB-SUBCONTRACTOR. A Sub-subcontractor is a person or entity who has an agreement with a Subcontractor to perform any portion of the Subcontractor’s work.

1.17. SUBSTANTIAL COMPLETION. The time at which the Work (or a specified part) has progressed to the point where it is sufficiently complete, in accordance with the Contract Documents, so that the Project (or a specified part) can be utilized for the purposes for which it is intended. The terms “substantially complete” and “substantially completed” as applied to all or part of the Project refer to Substantial Completion thereof.

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1.18. TARGET PRICE. The term “ Target Price ” is defined on Addendum 1 to Exhibit D of this Agreement.

1.19. TECHNICAL SPECIFICATIONS. Means all equipment, process and related specifications concerning the engineering, construction, integration into the Project, and operation of such equipment or processes as such may be provided by Contractor, one or more Subcontractors, Owner or a contractor or subcontractor that is hired by Owner.

1.20. TIC (Total Installed Cost). The term “ TIC ” is defined in Addendum 1 to Exhibit D of the Agreement.

1.21. WORK. The term “ Work ” shall mean engineering, procurement and construction management services of the Project to be performed by Contractor under this Agreement and includes all services, labor, and tests provided or to be provided to fulfill Contractor’s obligations under this Agreement, as described on Exhibit A attached hereto.

ARTICLE 2. THE CONTRACT DOCUMENTS

2.1. CONTRACT DOCUMENTS. The Contract Documents comprise the entire Agreement between Owner and Contractor. The Contract Documents are as follows:

2.1.1. AGREEMENT. This Engineering, Procurement and Construction Management Agreement;

2.1.2. DOCUMENTS RELATING TO CONTRACTOR’S SCOPE OF WORK, including, without limitation, Exhibit A attached to this Agreement, and all schedules and appendices attached thereto;

2.1.3. DRAWINGS AND SPECIFICATIONS. The Drawings and Specifications prepared by Contractor and approved by Owner as listed on Exhibit A , including all schedules and appendices attached thereto, together with all additions and revisions thereto; and

2.1.4. MODIFICATIONS. A modification is (1) an amendment to this Agreement signed by both Parties and Agent as outlined in Exhibit E attached hereto, (2) a Change Order as outlined in Section 8 of this Agreement, or (3) a written order for a minor change in the Work issued by Owner.

2.2. INTENT OF CONTRACT DOCUMENTS. The Contract Documents are intended to describe a functionally complete Project to be designed and constructed in accord with the Contract Documents. Any work, services, materials, or equipment that may reasonably be inferred from prevailing custom or trade usage as being required to complete the Work in accord with the Contract Documents will be furnished and performed whether or not specifically called for. When words or phrases which have a well-known technical, construction industry, or trade meaning are used to describe work, materials, or equipment, such words or phrases shall be interpreted in accord with that meaning.

2.3. CONTRACT DOCUMENTS ARE COMPLEMENTARY. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. In the event of a discrepancy in the Contract Documents, the order of precedence shall be as outlined in 2.4 below.

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2.4. PRECEDENCE OF CONTRACT DOCUMENTS. The precedence of the Contract Documents for interpretation shall be in the following sequences:

1. This Agreement and any amendments thereto;

2. DOCUMENTS RELATING TO CONTRACTOR’S SCOPE OF WORK, wherein precedence shall be large scale plans, over small scale, figured dimensions over scaled dimensions and noted materials over graphic indications.

3. Modifications pursuant to Article 2.1.4 above.

2.5. MODIFICATION OF CONTRACT DOCUMENTS. Except where specifically provided by the Contract Documents, and except in the case of Change Orders, the Contract Documents may be amended, altered, or changed only by written agreement signed by both Owner and Contractor.

ARTICLE 3. CONTRACTOR’S RESPONSIBILITIES.

3.1. GENERAL SERVICES OF CONTRACTOR

3.1.1. CONTRACTOR SHALL COMPLETE THE WORK. Contractor shall complete or cause to be completed all of the Work in accord with the Contract Documents. Except as otherwise specified herein, Contractor shall cause the Work to be performed in accord with all federal, state and local laws, and regulations that are applicable and in effect as of the date of this Agreement.

3.1.2. PERSONNEL AND MATERIALS.

3.1.2.1. ADEQUATE PERSONNEL. Contractor shall furnish necessary and qualified engineers, architects, technicians, draftsmen, supervisors, labor, equipment, tools, materials, supplies, and incidentals to perform the Work in accord with the Contract Documents. Contractor shall be responsible for proper staffing of the Work to be performed under this Agreement.

3.1.2.2. RESPONSIBILITY FOR PERSONNEL. Contractor shall be fully responsible to Owner for all acts and omissions of Subcontractors and other personnel hired or retained by Contractor to perform or furnish any of the Work required by the Contract Documents. Contractor, however, shall not be responsible for any acts or omissions of personnel hired or retained by Owner in connection with the Project. Nothing in the Contract Documents shall create for the benefit of any personnel hired or retained by Owner any contractual relationship with Contractor nor shall it create any obligation on the part of Contractor to make payment to personnel hired by or retained by Owner.

3.1.2.3. RESPONSIBILITY FOR SCHEDULING. Contractor shall be responsible for scheduling and coordinating Subcontractors and other personnel retained or hired by Contractor to perform the Work or any portion thereof. Contractor shall require Subcontractors and other personnel hired or retained by Contractor to perform or furnish any of the Work to communicate with Owner only through Contractor.

3.1.3. SUBCONTRACTS. Contractor shall assure that all Subcontractors who are engaged or retained by Contractor to perform Work on the Project do so under the terms of an appropriate subcontract which is consistent with the applicable provisions of this Agreement and which binds the Subcontractor to the applicable terms and conditions of the Contract Documents.

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3.1.4. CONTRACTOR’S REPRESENTATIVE. Contractor shall designate a representative. The name of Contractor’s representative shall be given to Owner in writing. Owner shall be notified of any change in Contractor’s representative in writing. Contractor hereby names Mel Barnett as its Contractor’s representative.

3.1.5. COMPLIANCE. Contractor shall pay all payroll taxes, including taxes of any kind assessed against, deducted, or deductible from wages or salaries and shall comply with all applicable federal, state and local laws, ordinances, orders, rules and regulations including but not limited to, those relating to equal employment opportunity and affirmative action for disabled veterans, veterans of the Vietnam Era, handicapped persons and all other legally protected classes, the Americans with Disabilities Act, the Fair Labor Standards Act as amended, Title VII of the Civil Rights Act of 1964, and the Occupational Safety and Health Act.

3.1.6. PERMITS. Unless otherwise provided in the Contract Documents, Contractor shall assist Owner for all construction and operational permits and licenses, including those relating to environmental issues and those related to Owner’s process, which are necessary for the prosecution of the Work. Owner is responsible for governmental charges and inspection fees necessary for the prosecution of the Work.

3.1.7. LAWS AND REGULATIONS. Contractor shall give all notices and comply with all laws and regulations which are applicable to furnishing and performance of the Work. Changes in laws or regulations not known or foreseeable on the date of this Agreement which have an effect on the cost or the time of performance of the Work may be the subject of a request for a Change Order under ARTICLE 8 .

3.1.8. TAXES. Except for sales and use taxes required to be paid by Owner, Contractor shall pay all sales, consumer, use, gross receipts, and other similar taxes required to be paid by Contractor in accord with the laws and regulations of the place of the Project which are applicable during the performance of the Work. Contractor shall also provide Owner reasonable assistance to establish tax exemptions where applicable.

3.1.9. SAFETY. Contractor shall take necessary precautions for the safety of its employees on the Work and shall comply with all applicable provisions of federal, state, and municipal safety laws to prevent accidents or injury to person on, about, or adjacent to the Project Site. Contractor shall implement a Site safety program based upon the policies and procedures outlined in Contractor’s Corporate Safety Manual, a copy of which will be provided to Owner upon request. Contractor shall erect or shall cause to be erected and maintained, as required by the conditions and progress of the Work, necessary safeguards for the protection of its employees. It is understood and agreed, however, that Contractor shall have no responsibility for the elimination or abatement of safety hazards created or otherwise resulting from work at the Site carried on by other persons or firms directly employed by Owner as separate contractors or by Owner’s tenants, and Owner agrees to cause any such separate contractors and tenants to abide by and fully adhere to all applicable provisions of federal, state, and municipal laws and regulations and to comply with all reasonable requests and directions of Contractor for the elimination or abatement of any such safety hazards at the job site.

3.1.10. MAINTENANCE OF BOOKS AND RECORDS. As to any time and material work, Contractor’s books and records shall include time cards and other records relating to the time of Contractor personnel spent on the Work and any expenditures made by Contractor for which Contractor will request reimbursement from Owner hereunder.

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3.2. RESPONSIBILITIES WITH RESPECT TO ENGINEERING. Contractor is responsible for the general plant design and integration of the designs of other contractors of Owner into the overall Project.

3.2.1. DRAWINGS AND SPECIFICATIONS. Contractor shall prepare Drawings and Specifications based on Owner-approved preliminary documents attached hereto as Schedule 1 to Exhibit A (the “ Preliminary Documents ”). The Drawings and Specifications shall set forth the requirements for the construction of the Work in sufficient detail to enable Owner and its contractors to construct the Project. Drawings and Specifications shall ordinarily be submitted to Owner for its written approval. Owner shall approve or reject such Drawings and Specifications within 7 days of receipt from Contractor.

3.2.2. STANDARD OF CARE. The standard of care for all design services performed or furnished by Contractor under this Agreement will be the care and skill ordinarily used by members of the architectural and engineering profession practicing under similar conditions in the same locality. In the event that design services furnished by Contractor do not meet the foregoing standard of care, Contractor will re-perform such services at no cost to Owner, provided, however, that Owner notifies Contractor, in writing, of such design deficiency within a period of one year from the date of Substantial Completion of the Work or any separable portion of the Work containing a design deficiency.

3.2.3. NO WARRANTY FOR PERFORMANCE BY OTHERS. Contractor does not warrant any process, or the designs connected therewith, or any design services to be furnished by others, including but not limited to processes and designs furnished by Owner and any contractors retained by Owner. Additionally, Contractor does not warrant any materials or equipment purchased as Agent of Owner. Owner shall compensate Contractor for remedying or making changes in the Work or portions thereof requested by Owner which result from deficiencies or changes in such processes and designs by others.

3.2.4. BREACH OF DUTY OF CARE – ENGINEERING. In any event, Contractor’s liability under Article 3.2.2, shall be limited to the obligation to re-perform, at its sole cost and expense, any negligently designed portion of the Work. Contractor shall not incur any other responsibility or liability whatsoever to Owner, for losses or damages of any nature whatsoever arising out of or in connection with Article 3.2.2 of this Agreement and not expressly assumed hereunder.

3.3. RESPONSIBILITIES WITH RESPECT TO PROCUREMENT.

3.3.1. CONTRACTOR’S RESPONSIBILITIES. Acting as agent of Owner, Contractor shall procure engineered equipment necessary for the construction of the Project. Such procurement services shall include expediting of procured long lead equipment items. All procurement services shall be performed in accordance with the procurement plan attached hereto as Appendix 1 to Exhibit A (the “ Procurement Plan ”). Notwithstanding anything to the contrary in this Agreement or the Procurement Plan, Contractor shall obtain Owner’s prior written authorization prior to making each purchasing commitment as Owner’s agent.

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3.3.2. STANDARD OF CARE. The standard of care for all procurement services performed or furnished by Contractor under this Agreement will be the care and skill ordinarily used by members of the engineering profession practicing under similar conditions in the same locality. In the event that procurement services furnished by Contractor do not meet the foregoing standard of care, Contractor will re-perform such procurement services at no cost to Owner, provided, however, that Owner notifies Contractor, in writing, of such deficiency within a period of one year from the date of Substantial Completion of the Work or any separable portion of the Work containing a deficiency. In no event does Contractor provide any warranty to Owner on such material or equipment except that Contractor shall ensure that all such warranties provided by the vendors are in the name of, or assigned to, Owner.

3.4. RESPONSIBILITIES WITH RESPECT TO CONSTRUCTION MANAGEMENT.

3.4.1. CONTRACTOR’S RESPONSIBILITIES. Acting as agent of Owner, Contractor shall provide Construction Management Services to Owner.

3.4.2. STANDARD OF CARE. The standard of care for all construction management services performed or furnished by Contractor under this Agreement will be the care and skill ordinarily used by members of the architectural and engineering profession practicing under similar conditions in the same locality. In the event that construction management services furnished by Contractor do not meet the foregoing standard of care, Contractor will re-perform such services at no cost to Owner, provided, however, that Owner notifies Contractor, in writing, of such deficiency within a period of one year from the date of Substantial Completion of the Work or any separable portion of the Work containing a deficiency.

3.4.3. INITIAL START-UP. With the assistance of Owner’s personnel, Contractor shall direct the checkout of utilities and operation of systems and equipment for readiness and shall assist in their initial start-up and testing review.

ARTICLE 4. OWNER’S RESPONSIBILITIES

4.1. PROJECT INFORMATION. If reasonably required and applicable to the Project and the Work, Owner shall provide Contractor with the following:

4.1.1. ENVIRONMENTAL ASSESSMENT. Environmental assessment and impact statements;

4.1.2. SURVEYS. Property, boundary, easement, right-of-way, topographic, and utility surveys;

4.1.3. LAND USE RESTRICTIONS. Zoning, deed, and other land use restrictions;

4.1.4. SUBSURFACE INVESTIGATIONS. Subsurface investigations performed by or on behalf of Owner relating to the Site;

4.1.5. ENGINEERING SURVEYS. Engineering surveys to establish reference points for design and construction which in Contractor’s judgment are necessary to enable Contractor to proceed with the Work;

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4.1.6. OWNER SUPPLIED DELIVERABLES:

4.1.6.1. [*]: Owner shall use commercially reasonable efforts to provide native format PFD’s, P&ID’s, drawings, data sheets and other work product prepared on behalf of Owner by Owner’s other contractors for the Project.

4.1.6.2. [*]: Owner shall provide the documentation and equipment for the [*], which are necessary for the completion of the Work.

Owner deliverables under this Section 4.1.6.2 shall include:

4.1.6.3. [*]: Owner shall provide the system design documentation per [*] that is necessary for the completion of the Work.

Owner deliverables under this Section 4.1.6.3 shall include:

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4.1.6.4. TCS Production and Purification: Owner shall provide the following documentation regarding the TCS production and purification processes as soon as practicable so as not to delay the Project Schedule.

4.1.7. ASSISTANCE WITH APPROVALS. Assistance in filing documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project;

4.1.8. INFORMATION CONCERNING HAZARDS. Information known to or in the possession of Owner relating to the presence of hazardous materials and substances at the Site;

4.1.9. AVAILABILITY OF LANDS. The lands upon which the construction is to be performed, rights-of-way and easements for access thereto and, upon written request of Contractor, a statement of record legal title and a legal description of such lands. Owner shall identify any encumbrances or restrictions which specifically relate to the use of such lands so furnished with which Contractor will have to comply in performing the Work. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by Owner.

4.2. OWNER REVIEW. Owner shall give thorough and timely consideration to all sketches, plans, drawings, specifications, proposals, contracts, and other documents submitted by Contractor and shall inform Contractor promptly of its approval and/or comments. Such review period of Owner shall not exceed 7 days. Upon Owner’s request, Contractor shall immediately, and in any case, no later than 3 business days after receipt of such request, provide Owner with copies of all existing, supporting documents, and all Contract Documents (as defined in Article 2.1 above, whether in draft, partial or complete form), all procurement documentation, all subcontracts, and all time sheets and documents related to fees and payments.

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4.3. PROFESSIONAL SERVICES. Owner shall furnish such legal, accounting, and insurance counseling services as Owner may require.

4.4. OWNER’S REPRESENTATIVE. Owner shall, in writing, designate a person to act as Owner’s representative with respect to the services Contractor is to perform under this Agreement. Such person shall have complete authority from Owner to transmit instructions, receive information, and to interpret and define Owner’s policies and decisions with respect to such services. In addition, at Owner’s cost, Owner may hire one or more third party engineers to review, oversee and audit Contractor’s work pursuant to this Agreement. However, it is understood by both Parties that Contractor is under no obligation to follow any instruction or directive of such Owner’s third party representatives and Owner shall indemnify and hold harmless Contractor from any liabilities which may result from such Owner’s third party representatives. Contractor hereby agrees that it shall cooperate with such third party engineer who is designated in writing by Owner, and, at Owner’s request, Contractor shall provide such third party with all information and documentation that Owner is entitled to receive pursuant to this Agreement, including, without limitation, all Contract Documents (as defined in Article 2.1 above), all procurement documentation, all subcontracts, and all time sheets and documents related to fees and payments. Contractor acknowledges and agrees that Owner’s third party consultant may be an engineering, procurement and construction firm that is a competitor of Contractor; provided, however, that Contractor may require such third party to sign a commercially reasonable confidentiality agreement prior to disclosing Contractor’s confidential information that is included in such information and documents.

4.5. HAZARDOUS SUBSTANCES. Owner shall remove, transport and dispose of any Hazardous Substance, or shall cause the removal, transportation, and disposal of any such Hazardous Substance, (other than Hazardous Substances transported and released on Site by Contractor or created, used, or handled as part of Contractor’s Work at the Site) discovered or released at the Site.

4.6. PAYMENTS TO CONTRACTOR. Owner shall make payments to Contractor promptly when they are due as provided in this Agreement.

4.7. NOTICE OF FAULTS OR DEFECTS. If Owner becomes aware of any fault or defect in the Project or non-conformance with the Contract Documents, Owner shall give prompt written notice thereof to Contractor.

4.8. OWNER-FURNISHED EQUIPMENT AND MATERIALS. Owner will assure that any equipment or materials to be furnished by Owner for the Project is furnished in accord with the Project schedule prepared by Contractor.

4.9. PROMPTNESS; RELIANCE. The services and information required by the above paragraphs shall be furnished with reasonable promptness at Owner’s expense. In performing services under this Agreement, Contractor shall be entitled to rely on all information provided by Owner hereunder. Contractor shall not be responsible or liable in any manner for any defect or deficiency in the information supplied or for defects or deficiencies in Contractor’s performance or services to the extent they result from Contractor’s reliance on such information.

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4.10. REVIEW OF DRAWINGS AND SPECIFICATIONS. Owner shall promptly review with Contractor that are submitted to Owner in accord with Article 3.2.1 and indicate thereon that such drawings are “APPROVED FOR CONSTRUCTION” prior to their release for construction.

4.11. NON-WAIVER. Any approvals by Owner of the Work, the design documents or any changes, alterations, revisions or modifications thereto as required or allowed by this Agreement, or otherwise, at any time, shall not waive, release or diminish Contractor’s professional responsibilities hereunder.

4.12. CO-LOCATION. At Owner’s option, Owner may co-locate Owner’s Representative with Contractor’s Representative, and if such location is at Contractor’s place of business, then Contractor shall provide Owner’s Representative, at no charge, with reasonable access to an office, cubicle, conference room, or similarly suitable work space at Contractor’s place of business during Contractor’s normal business hours.

ARTICLE 5. SUBCONTRACTS.

5.1. SUBCONTRACTED WORK. All portions of the Work that Contractor does not perform with its own forces shall be performed under subcontracts.

5.2. RESPONSIBILITY FOR SUBCONTRACTORS. Owner reserves the right to obtain contractual relationships directly with any subcontractor. When requested by Owner, Contractor shall be responsible for the management of Owner’s subcontractors in the performance of their work. Owner shall communicate with subcontractors through Contractor. However, Contractor shall not be responsible for any liabilities which results from such subcontractors and Owner agrees to defend and indemnify Contractor from any liabilities claimed by such Owner subcontractors/vendors.

ARTICLE 6. TIMING OF WORK.

6.1. CONTRACT TIME SCHEDULE. Contractor shall put forth a good faith effort to ensure that the Work will be prosecuted by Contractor in accord with the schedule set forth in Exhibit B hereto (the “ Contract Time Schedule ”) and upon progress schedules mutually agreed upon with Owner.

6.2. DATE OF SUBSTANTIAL COMPLETION. The date or dates for the Preliminary Reactor Test Demonstration (as defined on Exhibit B ), Mechanical Completion (as defined on Exhibit B ), and Substantial Completion of the Work or a designated portion thereof are set forth in Exhibit B .

6.3. DELAYS. If Contractor is unable to meet the Contract Time Schedule due to any actual delay in the progress of the Work that is caused by: (1) any act or omission of Owner or by any separate contractor employed by Owner, (2) changes ordered in the Project; (3) any act of force majeure including, but not limited to, strikes, fire, or any event beyond the control of Contractor; (4) adverse weather conditions not reasonably anticipatable; or (5) by a delay authorized by Owner, then Contractor shall be entitled to a Change Order extending the applicable Milestone date and/or increasing the TIC and Target Price for the period of time and for such increase in the TIC and Target Price as are directly caused by any of the foregoing circumstances of such delay; provided, however, that Contractor shall use commercially reasonable efforts to mitigate any delay caused by the foregoing circumstances; and, provided, further that the Contract Time Schedule shall not be extended, and the TIC and Target Price shall not be increased to the extent that the acts or omissions of Contractor directly contributed to such

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delay. If the Work is delayed due to the fault of Contractor such that Contractor does not achieve the Preliminary Reactor Test Demonstration, Mechanical Completion or Substantial Completion on or before the applicable date set forth in the Contract Time Schedule, then the Contract Time Schedule shall not be adjusted, the TIC and Target Price shall not be increased, and Contractor shall pay Owner liquidated damages (LD’s) in the amount of [*] per day of delay in achieving the applicable milestone. Such LD’s owed by Contractor to Owner shall be limited to one million dollars ($1,000,000) in the aggregate. Such liquidated damages shall be Owner’s sole remedy against Contractor for Contractor’s failure to achieve any applicable milestone and Contractor shall not otherwise be liable for any direct, indirect, incidental, consequential or other damages which may be suffered or incurred by Owner or others resulting from any interruption or delay in start-up or use of, or production from, any of Owner’s existing facilities or those to be designed and constructed hereunder.

6.4. ACCEPTANCE OF WORK. When the Work shall have achieved Substantial Completion, Owner and Contractor shall make a joint inspection thereof and shall prepare and sign a list of items of Work remaining to be completed.

6.5. INSTALLED EQUIPMENT.

6.5.1. JOINT INSPECTION. When each item of equipment is installed and is ready for start-up, Owner and Contractor shall make a joint inspection of such equipment. Upon satisfactory demonstration that each such item has been properly installed, Owner and Contractor shall furnish a signed acceptance thereof and release of responsible party.

ARTICLE 7. CONTRACT PRICE.

7.1. TIME & MATERIALS. Owner agrees to pay Contractor for the satisfactory performance of the Work on a fully reimbursable basis for the rates, costs, expenses, fees, and other consideration set forth in Exhibit D , attached hereto, as modified and supplemented by Addendum 1 to Exhibit D , (the “ Contract Price ”) in accordance with the payment procedures described in ARTICLE 10 below.

ARTICLE 8. CHANGES IN THE WORK.

8.1. OWNER MAY REQUEST CHANGES. Owner, without invalidating this Agreement, may order changes in the Work within the general scope of this Agreement consisting of additions, deletions, or other revisions. If substantive changes are ordered, the TIC, Target Price, and the Contract Time Schedule shall be adjusted accordingly. All such changes in the Work shall be authorized by Change Order.

8.2. CHANGE ORDER. A Change Order is a written order signed by Owner or its authorized agent and by Contractor or its authorized agent which is issued after the execution of this Agreement and which may constitute a change in the Work and\or an adjustment in the TIC, Target Price, and/or the Contract Time Schedule.

8.3. EMERGENCIES. In any emergency affecting the safety of persons or property, Contractor shall act, at its discretion, to prevent threatened damage, injury, or loss. Any increase in the TIC, Target Price, or extension of the Contract Time Schedule claimed by Contractor on account of emergency work shall be determined as provided in this Article.

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8.4. OBLIGATION TO PROCEED. In the event any Change Order requested herein requires approval of the Agent as defined in Exhibit E , Contractor shall be under no obligation to commence Work under any Change Order hereunder until such Change Order has been approved by Agent as defined in Exhibit E .

ARTICLE 9. UNCOVERING AND CORRECTION OF WORK.

9.1. CORRECTION OF WORK.

9.1.1. WORK REJECTED BY OWNER. Contractor shall promptly correct Work rejected by Owner which fails to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed, or completed.

9.1.2. AFTER FINAL COMPLETION. If, within one year after the date of Substantial Completion of the Work or a designated portion thereof, or any longer period prescribed by any special guarantee required by the Contract Documents, any of the Work is found to be not in accord with the requirements of the Contract Documents, Contractor shall cause the Work to be corrected promptly after receipt of written notice from Owner to do so unless Owner has previously given Contractor a written acceptance of such condition. This obligation under this paragraph shall survive acceptance of and payment for the Work under this Agreement. The obligation under this paragraph shall also survive termination of this Agreement for cause. Owner shall give such notice promptly after discovery of the condition.

9.1.3. FAILURE TO CORRECT NON-CONFORMING WORK. If Contractor fails to correct non-conforming Work within a reasonable time, Owner may correct it in accord with Article 12.2.1.

ARTICLE 10. PAYMENTS TO CONTRACTOR.

10.1. PAYMENT PROCEDURE. Payments shall be made by Owner to Contractor such that Contractor is kept cash and commitment neutral/positive according to the following procedure:

10.1.1. SUBMITTAL BY CONTRACTOR. Once each month, Contractor shall submit to Owner an application for payment (the “ Application for Payment ”). The period covered by each Application for Payment shall be one calendar month ending on the last day of the month or as otherwise mutually agreed to accommodate Contractor’s cost system as it is understood that Contractor’s labor costs are accumulated such that a pay period must end on a Sunday. Contractor will provide with each Application for Payment a projection estimate for the anticipated costs of the Work during the upcoming month. This projected estimate of costs plus the Contractor’s Fee of [*] on all estimated costs, less the retainage stipulated in Section 10.1.1.1, shall serve as the basis of Contractor’s payment for that month. Within thirty (30) days after the end of each month during which any Work is performed, Contractor shall provide the Owner a summary of the costs, as defined by Exhibit D to this Agreement, incurred during such period accompanied by the supporting documentation for such reimbursable costs as required herein. Contractor will then prepare, contemporaneous with the next month’s Application for Payment, a monthly reconciliation of the reimbursable costs that compares the advance funding received from the Owner against the actual summary of costs for the applicable period. Should the reconciliation show a deficiency in funding, the then current monthly Application for Payment will include the amount necessary to fully reimburse Contractor for any such deficiency plus the any proportionate Fee deficiency.

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If the reconciliation shows an excess funding, the excess will be deducted from the then current monthly Application for Payment. Invoices paid and reconciled are not considered to be accepted by the Owner and Owner shall retain its right to audit Contractor’s costs and Applications for Payment.

Reimbursements of the Cost of the Work shall not be construed as Owner’s approval or acceptance of the Work. If disputed charges are identified at the time of original invoicing or during an audit of invoiced charges, payment for the disputed items may be withheld subject to resolution and subject to the interest provisions of Section 10.1.4. A resolution of disputed charges will be attempted through negotiation between the Party representatives identified in Article 15.9, which negotiation shall occur within 15 calendar days of the Contractor’s receipt of the notice of any disputed charges. If the Party representatives are unable to resolve the dispute, either Party may submit the dispute for resolution in accordance with Article 13.

Provided that an Application for Payment is received by the Owner not later than the 1 ^st day of a month, the Owner shall make payment to the Contractor not later than the 15 ^th day of the same month. If an Application for Payment is received by the Owner after the application date fixed above, payment shall be made by the Owner not later than fifteen (15) days after the date it receives the Application for Payment.

With each Application for Payment, the Contractor shall submit partial release of liens, payroll information documenting actual hours worked with applicable rates, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence reasonably required by the Owner to support Contractor’s previous Applications for Payment and to demonstrate the cash disbursements already made by the Contractor on account of the cost of the Work.

Applications for Payment shall show the Cost of the Work that Contractor estimates that it will expend or incur through the end of the period covered by the Application for Payment and for which the Contractor has made or intends to make actual payment prior to the next Application for Payment plus the Contractor’s Fee of [*] on all such estimated costs, less the retainage stipulated in Section 10.1.1.1.

The amount of retainage with respect to progress payments, which will be reflected on the Application for Payment, will be:

10.1.1.1. [*] retainage on permits, fees, soil tests, construction testing, dumpsters, and miscellaneous direct third party costs;

10.1.1.2. [*] retainage on the Work until Substantial Completion. The Owner shall release and pay Contractor all amounts retained from the Applications for Payment within thirty (30) days of Contractor’s achievement of Substantial Completion.

10.1.2. FAILURE TO MAKE PAYMENT. If Owner should fail to pay Contractor at the time the payment of any amount becomes due, Contractor may, at its option, upon giving written notice that it will stop Work within ten (10) days after receipt of the notice by Owner, and after such ten (10) day period, stop the Work until payment of the amount owing has been received.

10.1.3. INTEREST. Payments due but unpaid shall bear interest at a rate equal to the [*] per month until paid.

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10.2. EVIDENCE OF PAYMENT. Before issuance of Final Payment, Owner may request satisfactory evidence that all payrolls, materials bills, and other indebtedness connected with the Work have been paid or otherwise satisfied.

10.3. REGULAR REPORTS. Notwithstanding the invoicing procedures, Contractor shall provide Owner with a weekly report of all hours worked; provided, however, that Owner shall have the right to audit all expense records and time tracking sheets on a daily basis.

ARTICLE 11. INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION

11.1. INDEMNITY.

11.1.1. INDEMNITY BY PARTIES. Contractor shall indemnify and hold Owner, Owner’s affiliates, officers, directors, employees, and the heirs, executors, administrators and successors of each of them harmless from and against any and all claims, suits, demands, liabilities, losses, damages, costs, and expenses (“Claims”) Owner may suffer or pay out as a consequence of the negligent acts, errors, or omissions of Contractor, its agents, employees or Subcontractors in the performance of this Agreement provided that such Claims are attributable to bodily injury, sickness, disease or death, or to injury to the or the destruction of tangible property (other than the Work itself). Owner shall indemnify and hold Contractor, Contractor’s affiliates, officers, directors, employees, and the heirs, executors, administrators and successors of each of them harmless from and against any and all claims, suits, demands, liabilities, losses, damages, costs, and expenses (“Claims”) Contractor may suffer or pay out as a consequence of the negligent, acts, errors or omissions of Owner, its agents, employees or contractors (other than Contractor) provided that such Claims are attributable to bodily injury, sickness, disease or death, or to injury to the or the destruction of tangible property (other than the Work itself). The foregoing indemnities shall not include damages sustained by either party for incidental or consequential damages including, but not limited to, losses of income, profits, or production or damages sustained by either party on account of closure or shut-down of one or more of its facilities, but shall include reasonable costs and attorneys’ fees incurred by the party indemnified in defending itself against a claim as to which the other party owes a duty of indemnification. Each indemnitor shall be entitled to (a) prompt written notice of the occurrence that gives rise to a claim for indemnification hereunder, and (b) an opportunity to defend the claim, suit, or demand through counsel of its choosing. Indemnitor shall have the right to control the defense and to be the sole judge of the acceptability of any compromise or settlement.

11.1.2. INDEMNITY BY OTHERS. If, after the date of this Agreement, Owner enters into or amends any contract between Owner and any other contractor for the performance of work in the areas where Contractor’s Work will be performed under this Agreement, Owner shall cause such contractor to agree to indemnify Owner and Contractor and hold them harmless from all claims for bodily injury and property damage (other than property insured under Article 11.6.1) that may arise from that contractor’s operations. Such provisions shall be in a form satisfactory to Contractor. With respect to any similar contract between Owner and any other contractor entered into before the date of this Agreement, Owner shall use reasonable efforts to cause any such contract to be amended to provide the aforementioned indemnity to Owner and Contractor.

11.1.3. APPLICATION OF INDEMNITIES. Owner and Contractor intend that the indemnity obligations set forth in Articles 11.1.1 and 11.1.2 above shall apply even if a claim or loss arises in whole or in part from the negligence, strict liability, statutory liability, or other wrongful act or omission of the indemnified party. In such event the indemnifying party’s obligation shall be reduced in proportion to the indemnified party’s contributing negligence or fault.

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11.1.4. PATENT INFRINGEMENT. Owner agrees to indemnify and hold harmless Contractor for any liabilities which result from any patent or copyright infringement for any Work performed by Contractor where such infringement claim is based on documentary information provided by Owner or Owner’s contractors to Contractor for incorporation into the Project. Contractor agrees to indemnify and hold harmless Owner for any liabilities which result from any patent or copyright infringement related to the Work performed by Contractor where such infringement claim is based on the acts of Contractor or any of its Subcontractors.

11.2. CONTRACTOR’S LIABILITY INSURANCE. Contractor shall purchase and maintain such insurance as will protect it from the claims set forth below which may arise out of or result from Contractor’s performance and furnishing of the Work under this Agreement whether such operations be by Contractor or by any Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Except for workers’ compensation, employer’s liability, and professional liability, such policies shall name Owner as an additional insured, but only to the extent of Contractor’s Indemnity obligations as set forth in this Article 11.

11.2.1. WORKMEN’S COMPENSATION. Claims under workers’ compensation, disability benefit, and other similar employee benefit acts which are applicable to the Work to be performed.

11.2.2. CLAIMS FOR EMPLOYEE INJURY. Claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor’s employees under any applicable employer’s liability law.

11.2.3. CLAIMS FOR INJURY TO OTHERS. Claims for damages because of bodily injury or death of any person other than Contractor’s employees.

11.2.4. OTHER CLAIMS. Claims for damages insured by customary personal injury liability coverage which are sustained (1) by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor or (2) by any other person.

11.2.5. DAMAGE TO PROPERTY. Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use therefrom.

11.2.6. OPERATION OF MOTOR VEHICLE. Claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle.

11.2.7. CONTRACTUAL LIABILITY. Claims arising out of the indemnity obligation assumed by Contractor under Article 11.1 of this Agreement.

11.2.8. PROFESSIONAL LIABILITY. Claims for professional negligence arising out of architectural and engineering services rendered by Contractor.

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11.3. INSURANCE LIMITS. Contractor’s Comprehensive General Liability, Workers’ Compensation, Automobile Liability insurance, and Professional Liability Insurance, as required by Article 11.2, shall be written for the limits of liability or amounts of coverage set forth in the Schedule of Insurance attached hereto as Exhibit C . Contractor insurance may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by Excess or Umbrella Liability policies.

11.4. CANCELLATION OF INSURANCE. The foregoing policies shall contain a provision that the coverages afforded under the policies will not be canceled, that renewal will not be refused, and that the amount of coverage will not be reduced below the limits specified in Exhibit C until at least thirty (30) days prior written notice has been given to Owner. A Certificate of Insurance showing such coverages to be in force shall be filed with Owner prior to commencement of the Work.

11.5. OWNER’S LIABILITY INSURANCE. Owner shall be responsible for purchasing and maintaining at its expense its own liability insurance and, at its option, may purchase and maintain such insurance as will protect it against claims which may arise from operations under this Agreement.

11.6. INSURANCE TO PROTECT THE PROJECT.

11.6.1. PROPERTY INSURANCE. Owner shall purchase and maintain property insurance in a form acceptable to Contractor upon the entire Project for the full cost of replacement at the time of any loss. This insurance shall be on a “course of construction/builder’s risk” policy form and shall insure against loss from the perils of Fire and Extended Coverage physical loss or damage including, without duplication of coverage, at least theft, vandalism, malicious mischief, transit, off-site storage, collapse, flood, earthquake, testing, and damage resulting from defective design, workmanship, or material. Owner will increase the limits of coverage, if necessary, to reflect estimated replacement cost. Owner will be responsible for any co-insurance penalties or losses falling within the deductible limits of any policies.

11.6.2. OFF-SITE MATERIALS OR EQUIPMENT. Owner (or Contractor upon written request of Owner and on Owner’s behalf and at Owner’s expense) shall purchase and maintain property insurance in a form acceptable to Contractor to cover materials and equipment stored at the Site or at another location prior to being incorporated into the Work, provided that such materials or equipment have been included in an Application for Payment submitted to and approved by Owner.

11.6.3. OTHER PROPERTY INSURANCE. If during the Project construction period Owner insures properties, real or personal or both, adjoining, adjacent to, on, or in the Site by property insurance under policies separate from those insuring the Project, or if after Final Payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during construction, Owner and its insurers shall waive all rights in accordance with the terms of Article 11.9 for damages caused by fire or other perils covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise.

11.6.4. INSURANCE UPON OCCUPANCY. If Owner finds it necessary to occupy or use a portion or portions of the Project prior to Substantial Completion thereof, such occupancy shall not commence prior to a time mutually agreed to by Owner and Contractor and to which the insurance company or companies providing the property insurance have consented by endorsement to any applicable policy or otherwise. Consent of Contractor and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld. Owner shall take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of applicable insurance.

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11.6.5. BOILER AND MACHINERY INSURANCE. Owner (or Contractor upon written request of Owner and on Owner’s behalf and at Owner’s expense) shall purchase and maintain such boiler and machinery insurance as may be required or necessary. This insurance shall include the interests of Owner, Contractor, and Subcontractors in the Work and Owner and Contractor shall be named insureds under such insurance.

11.6.6. LOSS OF USE OF PROPERTY. Owner (or Contractor upon written request of Owner and on Owner’s behalf and at Owner’s expense) shall purchase and maintain such insurance as will protect Owner and Contractor against loss of use of Owner’s property due to those perils insured pursuant to Article 11.6.1. Such policy will provide coverage for expenses of expediting materials, continuing overhead of Owner and Contractor, necessary labor expense including overtime, loss of income by Owner, and other determined exposures. Exposures of Owner and Contractor shall be determined by mutual agreement and separate limits of coverage fixed for each item. Owner and its insurers waives all rights of actions against Contractor for loss of use of Owner’s property including consequential losses due to the perils insured pursuant to Article 11.6.1.

11.7. OWNER’S POLICIES-CERTIFICATE OF INSURANCE. Owner shall furnish Contractor a Certificate of Insurance as to all policies provided by Owner pursuant to this Agreement immediately following execution of this Agreement and before an exposure to loss may occur. Contractor will be given thirty (30) days notice of cancellation, non-renewal, or any endorsements restricting or reducing coverage. If Owner does not intend to purchase the insurance specified in Article 11.6, it shall inform Contractor in writing prior to the commencement of the Work. Contractor may then effect insurance which will protect the interest of Contractor and the Subcontractors, and the Contract Price, Target Price and TIC shall be increased by Change Order. If Contractor is damaged by failure of Owner to purchase or maintain such insurance or to so notify Contractor, Owner shall bear all reasonable costs properly attributable thereto.

11.8. PROPERTY INSURANCE LOSS ADJUSTMENT.

11.8.1. PAYMENT OF AN INSURED LOSS. Any insured loss shall be adjusted with Owner and Contractor and made payable to Owner and Contractor as trustees for the insureds, as their interests may appear, subject to any applicable mortgage clause.

11.8.2. DISTRIBUTION OF MONIES. Upon the occurrence of an insured loss, monies received will be deposited in a separate account and the trustees shall make distribution in accord with the agreement of the parties in interest. In the absence of such agreement, any dispute between the parties as to the distribution of the monies received shall be determined in accord with the provisions of ARTICLE 13.

11.9. WAIVER OF RIGHTS.

11.9.1. WAIVER FOR PERILS COVERED BY INSURANCE. Owner and Contractor and their insurers waive all rights against each other and Subcontractors for damages caused by perils covered by insurance provided under this Article 11.6, except such rights as they may have to the proceeds of such insurance held by Owner and Contractor as trustees. Contractor shall require similar waivers from all Subcontractors and their insurers in favor of Owner and Contractor.

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11.9.2. WAIVER FOR DAMAGE TO EQUIPMENT. Owner and Contractor and their insurers waive all rights against each other and Subcontractors for loss or damage to any equipment used in connection with the Project which loss is covered by any property insurance. Contractor shall require similar waivers from all Subcontractors and their insurers in favor of Owner and Contractor.

11.9.3. WAIVER OF SUBROGATION BY CONTRACTOR’S INSURERS. Contractor shall obtain a waiver of subrogation consistent with this Article 11.9 by endorsement or otherwise from any insurer who issues any policy of insurance required of Contractor pursuant to the provisions of Article 11.6 above. Provided, however, Contractor shall not be required to obtain a waiver of subrogation under its professional liability policy required by Article 11.2.8 above. Contractor will obtain similar waivers of rights and waivers of subrogation interests from its Subcontractors and their insurers in favor of Contractor and Owner.

11.9.4. WAIVER OF SUBROGATION BY OWNER’S INSURERS. Owner shall obtain a waiver of subrogation consistent with this Article 11.9 by endorsement or otherwise, from any insurer who issues any policy of insurance required pursuant to the provisions of Article 11.6 above. Owner will obtain a waiver of subrogation in favor of Contractor and Subcontractors on property and consequential loss policies purchased for the Project after its completion. Owner will obtain similar waivers of rights and waivers of subrogation interests from its separate contractors or consultants and their insurers in favor of Contractor and Subcontractors.

11.9.5. EFFECT OF ENDORSEMENTS. If the policies of insurance referred to in this ARTICLE 11 require an endorsement to provide for continued coverage where there is a waiver of subrogation, Owner and Contractor will cause them to be endorsed.

ARTICLE 12. SUSPENSION OR TERMINATION OF THE AGREEMENT.

12.1. TERMINATION BY CONTRACTOR. If the Project is suspended or stopped for a period of more than thirty (90) days by Owner or under an order of any court or other public authority having jurisdiction, or as a result of any act of government, such as a declaration of a national emergency making materials unavailable, through no act or fault of Contractor, or if Owner fails for a period of ninety (90) days to pay Contractor any amount properly due under this Agreement, then Contractor may, upon seven days’ written notice to Owner and provided Owner does not remedy such suspension, stoppage, or failure within that time, terminate this Agreement and recover from Owner payment for all Work executed by Contractor together with any loss sustained by Contractor (whether expense, damage, or profits) as a result of such suspension, stoppage, or failure.

12.2. OWNER’S RIGHT TO PERFORM CONTRACTOR’S OBLIGATIONS AND TERMINATION BY OWNER FOR CAUSE.

12.2.1. CONTRACTOR’S FAILURE TO PERFORM. If Contractor fails to perform any of its obligations under this Agreement, Owner may, after seven days’ written notice during which period Contractor fails to initiate the performance of such obligation, make good such deficiencies. The TIC shall not be increased as a result of Owner making good such deficiencies.

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12.2.2. INSOLVENCY OF CONTRACTOR. If Contractor is adjudged a bankrupt, or if it makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency, or if it persistently or repeatedly refuses or fails, except in cases for which an extension of time is provided, to supply enough properly skilled workmen or proper materials, or if it fails to make proper payment to Subcontractors or for materials or labor, or persistently disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, or otherwise is guilty of a substantial violation of this Agreement, then Owner may, without prejudice to any right or remedy and after giving Contractor and its surety, if any, seven (7) days written notice, during which period Contractor fails to cure the violation, terminate the employment of Contractor and take possession of the Site and of all materials and equipment to be used in the project and may finish the Work by whatever reasonable method it may deem expedient. In such case, Contractor shall be entitled to payment for Work satisfactorily completed up to the date of termination.

12.3. TERMINATION BY OWNER FOR CONVENIENCE. Upon seven days written notice to Contractor, Owner may, without cause and without prejudice to any other right or remedy of Owner, elect to terminate the Agreement. In such case, Contractor shall be paid for:

12.3.1. COMPLETED AND ACCEPTED WORK. Completed and accepted Work executed in accord with the Contract Documents prior to the effective date of termination at the rates outlined in Exhibit D ;

12.3.2. EXPENSES. Reasonable expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work at the rates outlined in Exhibit D ;

12.3.3. SETTLEMENTS. Amounts paid in settlement of terminated contracts with Subcontractors and others (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs incurred in connection with termination of contracts with Subcontractors, and others); and

12.3.4. TERMINATION EXPENSES. Reasonable expenses incurred by Contractor directly attributable to termination.

12.4. RELEASE OF CONTRACT DOCUMENTS. If Owner terminates pursuant to Article 12.2 or 12.3, Contractor, upon receipt of final payment to Contractor from Owner, shall immediately deliver to Owner all Contract Documents (as defined in Article 2.1 above), all Designs and Specifications, all procurement documentation, all subcontracts and all other documents and records related to the Work.

12.5. SUSPENSION OF THE WORK. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 days by notice in writing to Contractor which will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be allowed an adjustment in the TIC, Target Price or an extension of the Contract Time Schedule, or both, directly attributable to any such suspension if Contractor makes a claim therefor as provided in ARTICLE 8.

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ARTICLE 13. DISPUTE RESOLUTION.

13.1. DISPUTE RESOLUTION. If any controversy or claim arises out of or relates to this Agreement, or breach thereof, the parties agree to the following procedure:

13.1.1. DIRECT NEGOTIATION. The parties shall initially attempt to resolve the dispute by direct negotiation in an amicable manner.

13.1.2. MEDIATION. If the parties fail to reach agreement by direct negotiation within (60) days from the commencement of negotiation, the parties will submit the dispute to non-binding mediation under the Construction Industry Mediation Rules of the American Arbitration Association. The mediation shall be held in the county and state where the Project is located, unless otherwise agreed to by the parties in writing.

13.1.3. ARBITRATION. If the parties cannot settle the dispute by non-binding mediation within 60 days from the commencement of mediation, the dispute shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect unless the parties mutually agree otherwise. In any such arbitration proceeding, either party may join any third party who participated in the Project who is or may be necessary to resolution of the dispute. Such arbitration proceeding shall be held in the county and state where the Project is located, unless otherwise agreed to by the parties in writing.

13.1.4. DEMAND FOR ARBITRATION. Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association within 60 days after the parties fail to reach agreement by non-binding mediation.

13.1.5. DISCOVERY BEFORE ARBITRATION. Prior to any arbitration hearing, discovery shall be limited to: interrogatories; requests for production of documents; exchange of written reports prepared by expert witnesses retained by any party to the proceeding; depositions of such expert witnesses; and depositions of no more than ten (10) witnesses by each party, unless otherwise agreed to by the parties in writing. The parties shall be entitled to take such discovery from third parties as agreed to or as ordered or approved by the arbitrator(s).

13.1.6. JUDGMENT. Judgment upon the award rendered by the arbitrators shall be final and may be entered in any court having lawful jurisdiction thereof.

13.1.7. PERFORMANCE PENDING RESOLUTION OF DISPUTE. Unless otherwise agreed in writing, Contractor shall continue its services and maintain its progress during any dispute resolution proceedings, and Owner shall continue to make payments to Contractor in accord with this Agreement.

ARTICLE 14. ASSIGNMENT AND GOVERNING LAW.

14.1. ASSIGNMENT OF AGREEMENT. Neither Owner nor Contractor shall assign its interest in this Agreement without the written consent of the other party, which such assignment shall not be unreasonably withheld, except as to the assignment of proceeds. In the event of any assignment of this Agreement, including an assignment by operation of law, this Agreement shall be binding on the assigning Party’s successors and assigns.

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14.2. CHOICE OF LAW. This Agreement shall be governed by the laws of the State of Idaho.

ARTICLE 15. MISCELLANEOUS PROVISIONS.

15.1. EXTENT OF AGREEMENT. This Agreement shall become effective on the date first set forth above (the “ Effective Date ”) Upon the effective date, this Agreement shall represent the entire agreement between Owner and Contractor relating to the Project and shall supersede all prior negotiations, representations, or agreements. This Agreement may be amended only by written instrument signed by both Owner and Contractor.

15.2. INFORMATION AND DOCUMENTS.

15.2.1. PROPRIETARY INFORMATION. All information disclosed to Contractor by Owner or acquired by Contractor solely in connection with the performance of the Work shall be held in confidence by Contractor and shall not be disclosed to third parties (other than Subcontractors or Sub-subcontractors) without Owner’s prior written consent unless Contractor can show to Owner’s satisfaction that said information (a) is generally known to the public without breach hereof, (b) was known to Contractor or in its possession prior to disclosure by Owner, (c) was disclosed to Contractor, after disclosure by Owner, by a third party having the unrestricted legal rights to disclose the same, or (d) is required by law to be disclosed.

15.2.2. OWNERSHIP OF DOCUMENTS. All documents prepared by Contractor, including but not limited to sketches, drawings, plans, specifications, models, calculations, computer software, and electronic media are instruments of service for the Project and are the property of Owner. The use of any documents prepared or furnished by Contractor for any purpose other than as set forth in this Agreement or modifications to such documents by anyone other then Contractor shall be at Owner’s sole risk and without liability or legal exposure to Contractor. Owner shall indemnify and hold harmless Contractor from all claims, damages, losses and expenses, including attorneys’ fees, arising out of or resulting from such other use or modification. Contractor reserves the right to retain reproducible media of all documents.

15.2.3. DOCUMENTS UPON TERMINATION. Upon notice of termination of this Agreement, Contractor shall clearly describe in writing to Owner all documents produced under this Agreement which then exist and the location of each. Subject to the provisions of Article 15.2.2 above, Contractor shall promptly comply with any directions from Owner regarding the disposition of the materials for which directions are delivered to Contractor by Owner within sixty (60) days after notice of termination.

15.2.4. PATENT RIGHTS. With regard to any patent rights granted and assigned to Owner under this Agreement, Contractor agrees to cooperate with Owner in keeping complete and accurate records pertaining thereto and in the prosecution of patents.

15.3. ELECTRONIC MEDIA.

15.3.1. Electronic media, including magnetic and optical disks and magnetic tapes, submitted by Contractor to Owner under this Agreement are intended to operate on a system of hardware and software identical to that utilized by Contractor to produce such media. Contractor makes no warranty or representation as to the capability of such media to operate on any other system of hardware

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or software. Owner acknowledges that, with the passage of time, the system on which the electronic media was produced may be changed and updated and agrees that Contractor is under no obligation to maintain electronic media for this Project to operate on these systems.

15.3.2. Owner acknowledges that:

Owner agrees that Contractor shall not be responsible for the effects of the above.

15.3.3. Owner is responsible for the accuracy of any information it furnishes to Contractor on electronic media for use under this Agreement. If such information is found to be unusable as a result of data format, media deterioration or software incompatibility, Contractor shall be compensated for costs incurred to make the information usable.

15.3.4. Contractor shall not be required to produce electronic media to Owner’s specifications unless Owner’s specifications are made available to Contractor for review and comment prior to execution of this Agreement and such specifications are specifically identified herein and made a part of this Agreement. Owner’s specifications pertaining to electronic media which are applicable to Contractor’s services under this Agreement and which are incorporated as part of this Agreement include the following: NONE.

15.3.5. Neither party shall be responsible to the other for the effects of computer viruses transmitted through the exchange of electronic media.

15.4. ENVIRONMENTAL MATTERS. Contractor agrees that all products furnished or Work performed shall be in compliance with all applicable federal, state and local laws and regulations respecting the environment, including, but not limited to, the Clean Air Act, the Toxic Substance Control Act, the Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation and the Liability Act, the Superfund Amendments and Reauthorization Act, the Environmental Planning and Community Right-To-Know Act, the Oil Pollution Act of 1990, the Clean Air Act Amendments of 1990, the Migratory Bird Treaty Act, the Endangered Species Act, and the Resource Conservation and Recovery Act. The handling of any solid or hazardous waste subject to the Resource Conservation and Recovery Act shall be in compliance with EPA Regulations at Parts 260 through 265, and Parts 122 through 125 of Title 40, Code of Federal Regulations, and any other applicable regulation under the Resource Conservation and Recovery Act. Contractor agrees at all times in performance of the Work hereunder, to abide by all the federal, state, and local laws listed above as said laws or regulations may be amended from time-to-time subsequent to the Effective Date of this Agreement and all other laws, orders, rules and regulations, prescribed by any governmental body having jurisdiction.

15.5. EXCLUSION OF WARRANTIES AND DAMAGES. Contractor makes no warranty or guarantee of any kind in connection with performance of the Work under this Agreement other than those

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expressly provided for under this Agreement. ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. UNDER NO CIRCUMSTANCES SHALL CONTRACTOR BE LIABLE TO OWNER OR ANY THIRD PARTY FOR ANY SPECIAL, COLLATERAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, IN NO EVENT SHALL CONTRACTOR’S AGGREGATE LIABILITY TO OWNER ARISING OUT OF CONTRACTOR’S OBLIGATIONS UNDER THIS AGREEMENT, FOR ANY REASON, INCLUDING THE NEGLIGENCE OF CONTRACTOR, EXCEED THE SUM OF ONE MILLION DOLLARS ($1,000,000) PLUS ANY PROCEEDS RECEIVED FROM CONTRACTOR’S INSURANCE COVERAGE PURSUANT TO ARTICLE 11 ABOVE.

15.6. WAIVER. The failure of either party to enforce any of the provisions of this Agreement at any time, or from time to time, shall not operate as a waiver with respect to future actions.

15.7. EFFECT OF AGREEMENT. The rights and obligations of the parties under this Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns.

15.8. FINANCING. Contractor acknowledges that Owner will be financing the Project, through a combination of debt, equity and prepayments from Owner’s customers. In connection with any debt financing, the lenders and the collateral agent may request Contractor to execute consents and provide a legal opinion. As such, Contractor agrees that on or prior to the date of financial closing on Owner’s senior credit agreement providing for the financing of the Project, Contractor shall (and hereby agrees to) enter into a consent and agreement for the benefit of the collateral agent and secured parties substantially identical to the form of consent and agreement attached as Exhibit E hereto (the “ Consent ”), and Contractor shall (and hereby agrees, and instructs its counsel, to) provide an opinion of legal counsel substantially in the form and scope of the form of legal opinion attached to the Consent as Exhibit A. Unless the Consent or Legal Opinion are substantially different than Exhibit E, Contractor’s refusal to sign the Consent or provide the Legal Opinion for any reason shall constitute a material breach of this Agreement entitling Owner to immediately terminate the Agreement.

15.9. NOTICES. All notices, requests, demands, and other communications under this Agreement shall be deemed to have been duly given if delivered in person or if mailed in the United States mail, certified mail, return receipt requested, and properly addressed as follows:

If to Owner, to:

HOKU MATERIALS, INC.

Attn: Karl Taft

One Hoku Way

Pocatello, Idaho 83201

Tel: 808-682-7800

Fax: 808-682-7807

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With a copy to:

HOKU SCIENTIFIC, INC.

Attn: Dustin Shindo

1075 Opakapaka Street

Kapolei, Hawaii 96707

Fax: (808) 682-7807

Tel: (808) 682-7800

If to Contractor, to:

STONE & WEBSTER, INC.

Attn : Mel Barnett

One Main Street

Cambridge, MA 02142

Fax: [*]

Tel: [*]

With a copy to:

STONE & WEBSTER, INC.

Attn: Mike Rich

1430 Enclave Parkway

Houston, TX 77077

Fax: [*]

Tel: [*]

If mailed, any such notice, request, demand, or other communication is effective on the date shown on the return receipt. From time to time either party may designate another person or address for all purposes of the Agreement by giving to the other party not less than fifteen (15) days’ advance written notice of such change of person or address in accord with the provisions hereof.

15.10. LIMITATION ON SOLICITING EMPLOYEES. Each Party agrees that,