Exhibit 10.87
[*] =
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.
AGREEMENT
This AGREEMENT,
by and between POLYMET ALLOYS, INC (hereinafter called
“POLYMET”), with offices at 1701 Providence Park, Suite
100, Birmingham, Alabama 35242; and HOKU MATERIALS, INC
(hereinafter called “HOKU”), with offices at One Hoku
Way, Pocatello, ID 83204 USA, whereby it is agreed as
follows:
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POLYMET is a
supplier of Silicon Metal (hereinafter called the
“Product”) which HOKU uses for its Polysilicon
manufacture. Polymet shall obtain Product only from RIMA Industrial
S/A, unless HOKU approves another source.
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HOKU hereby
appoints POLYMET to supply certain quantity of HOKU’s
requirement of the Product subject to the terms and conditions set
out in this AGREEMENT.
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2.1 POLYMET
warrants to HOKU that:
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The Product
supplied hereunder conforms with the technical specification
provided by HOKU to POLYMET (Annex 1).
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POLYMET will
inform HOKU of any material change in the raw material used in the
production process of the Product.
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The quantity of
the Product to be supplied by POLYMET to HOKU for twelve (12)
consecutive calendar months commencing January 1st, 2009 shall
be according to the following schedule:
3.1.1 Calendar
Year 2009: [*]
3.1.2 Calendar Year 2010: [*]
3.1.3 Calendar Year 2011: [*]
Additional
quantities above the minimum of [*] Metric Tons may be discussed
and agreed in writing between the parties.
The Product
shall be shipped in approximate equal amounts each calendar month,
or as otherwise agreed in writing by the parties, using scheduling
process and parameters to be determined and decided between the
parties.
The price of
the Product in calendar year 2009 shall be a Fixed Price of
[*]
The price of
the Product in calendar year 2010 and 2011 will be freely
negotiated for each such calendar year. If the Parties
are unable to agree on the price at least 60 days prior to the
beginning of the applicable calendar 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 calendar year.
Payments Terms
for this Agreement are Net [*] days from the delivery date of the
material to HOKU’s Pocatello, Idaho plant, via wire
transfer.
The Product
shall be delivered FOB Pocatello, ID or as directed by HOKU, in
amounts and at the times specified in the delivery schedule agreed
upon in writing between the parties. In case of any delay that is
not POLYMET’s fault, HOKU shall unconditionally accept such
delay up to a maximum of [*] days. Also, POLYMET shall
unconditionally accept a postponing of any shipment for a maximum
of [*] days if such postponing is not HOKU’s fault and is
informed to Polymet prior to the production date of that material
in Brasil.
The Product to
be supplied by POLYMET to HOKU hereunder shall be packed in [*] lb
maximum supersacs meeting HOKU’s
specifications. HOKU and POLYMET will work together to
minimize costs associated with packaging.
POLYMET’s
certified weight shall apply with a tolerance up to [*].
POLYMET’s
certified analysis shall apply. However if HOKU’s analysis of
the Product deviates from POLYMET’s analysis, HOKU will
inform POLYMET immediately in writing. If HOKU and POLYMET are
unable to resolve the discrepancy within 15 days after
HOKU's notice, the parties, within 15 days of HOKU's
notice, shall
select an independent expert to analyze
the Product and resolve the dispute. If the parties are
unable to agree on an independent
expert, the experts nominated by each party shall
meet and no later than 15 days after HOKU's notice, shall
jointly designate a third expert to analyze the Product and
resolve the dispute. If a party fails to
timely designate an independent expert, the dispute shall
be decided by the expert timely designated. The expert selected
shall
