EXHIBIT 10.106
[*] = 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. 3 TO SUPPLY
AGREEMENT NO. 1
This Amendment
No. 3 to Supply Agreement No. 1 (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 dated as
of August 4, 2008, as amended by that Amendment to Supply Agreement
dated as of August 14, 2008, and further amended by that Amendment
No. 2 to Supply Agreement dated as of October 24, 2008 (as amended,
“ Supply Agreement No. 1 ”), pursuant to
which 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 US$40,000,000 as of April 1,
2009, in product prepayments and advances, in fulfillment of
TIANWEI’s obligations under Sections 5.1, 5.2 and 5.3 of
Supply Agreement No. 1.
WHEREAS,
TIANWEI is obligated to pay HOKU the Fourth Deposit in the amount
of US$5,000,000 upon HOKU’s first shipment of Products
pursuant to Section 5.4 of Supply Agreement No. 1.
WHEREAS,
TIANWEI has agreed to accelerate the timing of payment of
US$4,000,000 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. 1
which, when effective, shall supersede the corresponding provisions
of Supply Agreement No. 1.
WHEREAS,
contemporaneously and in conjunction with this Amendment, the
parties have agreed to amend (“ Amendment No. 2
”) 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 previously
amended, “ Supply Agreement No. 2
”).
|
TIANWEI Initials
& Date
AG 2009-5-2
|
HOKU Initials & Date
DS May 2, 2009
|
NOW, THEREFORE,
in furtherance of the foregoing Recitals and in consideration of
the mutual covenants and obligations set forth in this Amendment,
the Parties hereby agree as follows:
1.
Definitions . Unless otherwise defined herein, capitalized
terms used in this Amendment have the meanings set forth in Supply
Agreement No. 1.
2.
Effectiveness . This Amendment shall be
contingent, and shall take effect upon the latest to occur of (A)
the effectiveness of Amendment No. 2 to Supply Agreement No. 2; (B)
payment to HOKU of US$2,000,000 of the Accelerated Deposit on or
before May 31, 2009; and (C) payment to HOKU of US$2,000,000 of the
Accelerated Deposit on or before June 30, 2009. This
Amendment shall have no force or effect until all such events have
occurred.
3.
Amendments . The following provisions of Supply
Agreement No. 1 are amended or amended and restated, as indicated
in each case, as follows:
A. To eliminate the requirement
that
