EXHIBIT 10.107
[*] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED FROM PUBLIC FILING PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT SUBMITTED TO THE U.S. SECURITIES AND
EXCHANGE COMMISSION. THE OMITTED INFORMATION, WHICH HAS BEEN
IDENTIFIED WITH THE SYMBOL “[*],” HAS BEEN FILED
SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
AMENDMENT NO. 2 TO SUPPLY
AGREEMENT NO. 2
This Amendment No. 2 to Supply
Agreement No. 2 (this “ Amendment ”) is
entered into as of the date written last on the signature page
hereof, between TIANWEI NEW ENERGY (CHENGDU) WAFER CO., LTD., a
People’s Republic of China company (hereinafter “
TIANWEI ”) and HOKU MATERIALS, INC., a Delaware
corporation (hereinafter “ HOKU ”). HOKU
and TIANWEI are sometimes referred to herein in the singular as a
“ Party ” and in the plural as the
“ Parties ”.
Recitals
WHEREAS, HOKU and TIANWEI are
parties to that certain Supply Agreement No. 2 dated as of
September 14, 2008, as amended by that Amendment to Supply
Agreement No. 2 dated as of October 24, 2008 (as amended, “
Supply Agreement No. 2 ”), pursuant to which,
in addition to the [*] metric tons of product to be sold pursuant
to Supply Agreement No. 1 (as defined in the sixth recital below),
HOKU has agreed to sell to TIANWEI, and TIANWEI has agreed to
purchase from HOKU, an aggregate of [*] metric tons of Products
over a ten-year period.
WHEREAS, TIANWEI has paid to HOKU a
total of Twenty-Two Million US Dollars (US$22,000,000) as of April
1, 2009, in product prepayments and advances, in fulfillment of
TIANWEI’s obligations under Sections 5.1 and 5.2 of Supply
Agreement No. 2, with an additional Third Deposit in the amount of
Twelve Million US Dollars (US$12,000,000) due on or before April
30, 2009, pursuant to Section 5.3 of Supply Agreement No.
2.
WHEREAS, TIANWEI is obligated to pay
HOKU the Fourth Deposit in the amount of Two Million U.S. Dollars
(US$2,000,000) upon HOKU’s first shipment of Products
pursuant to Section 5.4 of Supply Agreement No. 2.
WHEREAS, TIANWEI has agreed to
accelerate the timing of payment of US$1,000,000 of the Fourth
Deposit (the “ Accelerated Deposit ”),
and such other amendments as set forth herein, and HOKU has agreed
to adjust the price of the Products, and such other amendments as
set forth herein.
WHEREAS, the Parties have agreed to
certain amendments to Supply Agreement No. 2 which amendments, when
effective, shall supersede the corresponding provisions of Supply
Agreement No. 2.
WHEREAS, contemporaneously and in
conjunction with this Amendment, the parties
