EXHIBIT
10.97





[*] =
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.





FIRST AMENDED AND RESTATED
SUPPLY AGREEMENT





This
FIRST AMENDED AND RESTATED SUPPLY AGREEMENT (this “AGREEMENT”) is made as of the
date last set forth on the signature page hereto, 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 1288 Ala Moana Blvd., Ste. 220 Honolulu, HI 96814
USA.





RECITALS





WHEREAS, POLYMET and HOKU are parties
to that certain supply agreement dated as of November 13, 2008, for the sale by
POLYMENT and the purchase by HOKU of silicon metal (the “Original Supply
Agreement”); and





WHEREAS, POLYMET and HOKU wish to amend
and restate the Original Supply Agreement in its entirety by this AGREEMENT,
which shall supersede the Original Supply Agreement.





NOW, THEREFORE, in furtherance of the
foregoing Recitals and in consideration of the mutual covenants and obligations
set forth in this AGREEMENT, POLYMET and HOKU hereby agree as
follows:





1.
            APPOINTMENT
      OF SUPPLIER





1.1
            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.





1.2
            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.








2.
            QUALITY





POLYMET
warrants to HOKU that:





2.1
            The
      Product supplied hereunder conforms with the technical specification
      provided by HOKU to POLYMET (Annex
1).




2.2
            POLYMET
      will inform HOKU of any material change in the raw material used in the
      production process of the Product.








3.
            QUANTITY





The
quantity of the Product to be supplied by POLYMET to HOKU for twelve (12)
consecutive calendar months   commencing January 1st, 2010 shall
be according to the following schedule:





3.1
            Calendar
      Year 2010: Approx.  [*] but no less than 65 percent HOKU’s
      calendar yearly consumption except as per clause
  4.




3.2
            Calendar
      Year 2011: Approx. [*] but no less than 65 percent HOKU’s calendar yearly
      consumption except as per clause 4.






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3.3
            Calendar
      Year 2012: Approx. [*] but no less than 65 percent of HOKU’s calendar
      yearly consumption except as per clause
4.





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.








4.
            PRICE





With
regard to the quantities specified in paragraph 3, the prices of the Product in
calendar years 2010, 2011 and 2012 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 the
following shall apply:  in the respective calendar year for each
purchase of the Product by HOKU, if the total purchases by HOKU for that
calendar year from POLYMET, in the aggregate total less than the greater of (a)
the amount specified for that year in paragraph 3 of this AGREEMENT above, or
(b) 65 percent of HOKU’s estimated calendar year consumption for that calendar
year, then before HOKU purchasesany
quantity of Product from another supplier, HOKU must offer that certain quantity
to POLYMET and POLYMET will have the right to accept or reject such offer in
equivalent conditions (price, payment conditions and place of delivery)
(“Conditions”) of the lowest price offer presented to HOKU by other suppliers
(“Lowest Third Party Price Offer”). POLYMET shall have the right to review and
verify the bona fides of such Lowest Third Party Price Offer either (a) by HOKU
providing such information about the Conditions of such Lowest Third Party Offer
directly to POLYMET, without disclosing the identity of such third party
supplier, or (b) by an independent third party that is mutually acceptable to
HOKU and POLYMET in each such party’s reasonable judgment (“Independent Party”)
that shall review and verify for POLYMET the bona fide nature of such Lowest
Third Party Price Offer, provided that such Independent Party shall be subject
to a confidentiality agreement with HOKU. POLYMET must accept or reject any such
offer within seven calendar days from receipt from HOKU or from the Independent
Party as the case may be, by fax or e-mail of the relevant information about
such Conditions, followed up by a telephone call to [*].





The price
of the Product in any calendar year shall be a Fixed Price on a per pound of
material basis plus any Inland Freight and pallet charges associated with
transporting the product from the port of entry in the United States to Hoku’s
Pocatello, Idaho production plant.  These charges will be separate
line items on each invoice.





Payments
Terms for this AGREEMENT are Net [*] days from the delivery date of the material
to HOKU’s Pocatello, Idaho plant, via wire transfer.








5.
            SHIPMENT





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.





6.
            PACKING





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.





7.
            WEIGHT
      and ANALYSIS





Weight


POLYMET’s
certified weight shall apply with a tolerance up to [*]%.





Analysis


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
analyze the Product and the average of the expert's test results and
the test results of the analysis by the party closest to the expert's
test results shall be final and binding. The parties shall share the cost
of selection of an expert and the costs of the expert's analysis
equally.






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8.
            SECRECY





Neither
party shall disclose any contents hereof nor any information obtained hereunder
to any third party, except for either party’s attorneys, accountants, auditors
and others as necessary in the normal course of business without the prior
written consent of the other party except as required by
law.  Notwithstanding the foregoing: (A) the Parties will work
together to issue a joint press release within two (2) days after execution of
this Agreement; and (B) 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.





9.
            ASSIGNMENT





Neither
party shall assign any rights under this document to a third party without the
prior written consent from the other party. Notwithstanding the above, and
provided that the assignee takes over all rights and obligations set forth in
this Agreement, any Party hereto shall have the right to assign this Agreement,
upon written notice to the other Party, but without their prior consent,
to:





9.1
            Any
      affiliates, provided that, in such case, the assignor shall remain jointly
      and severally liable for the implementation by the assignee of its
      obligations under this Agreement.





9.2
            Any
      successors as a result of a statutory merger or consolidation or a company
      acquisition of all or substantially all its assets including the part
      concerned by this Agreement.





9.3
            Any
      collateral agent as collateral security for such Party’s secured
      obligations in connection with the purchase or sale of the
      Product.





10.
            DURATION





10.1.
            This
      AGREEMENT shall be effective from the date hereof until December 31, 2012,
      unless earlier terminated as provided
herein.





10.2.
            Termination





10.2.1.
If either party is in breach of any of its obligations pursuant to the terms of
this AGREEMENT (the “Defaulting Party”) and remains in such breach for a period
of ten (10) Business Days following the delivery of a written notice from the
other party (the “Aggrieved Party”) requesting the remediation of such breach,
then the Aggrieved Party may elect to terminate this Agreement or pursue
any other remedy available under applicable law, including, without
limitation, the Uniform Commercial Code, common law or otherwise.  An
election by the Aggrieved Party to obtain cover or terminate this
agreement shall not prejudice or limit any additional rights or
remedies the Aggrieved Party may have against the Defaulting
Party under applicable law.





10.2.2.
If either party goes into liquidation or if a petition for liquidation has been
presented against it , whether voluntarily or compulsorily (except for the
purposes of amalgamation or reconstruction), the other party shall be entitled
to terminate this Contract forthwith by giving notice in writing to the default
party.





11.
            HARDSHIP





Should
the occurrence of any event not contemplated by the parties fundamentally alter
the equilibrium of this AGREEMENT, thereby placing an excessive burden on one
party in the performance of its contractual obligations under this AGREEMENT,
that party may request in writing a revision of the AGREEMENT. The parties shall
then, within
fourteen days, consult one another to try to revise the AGREEMENT on an
equitable basis, so that neither party suffers excessive prejudice under the
AGREEMENT.






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12.
            FORCE
      MAJEURE





12.1. In
the event that one of the parties cannot timely perform this AGREEMENT due to a
force majuere event resulting from causes beyond the reasonable control of the
party whose performance is affected, including, without limitation, resulting
from fire, explosions, strike, lockout, labor dispute, acts of civil or military
authority, riot, embargo, delays in transportation, acts of God or the public
enemy, or  other cause, whether or not having the same character as
the foregoing and beyond the reasonable control of the party concerned; such
party shall not be in default hereunder, but the party's performance so
affected will be excused for the duration of such force majeure
event





12.2. The
party subject to force majeure shall promptly notify the other party in writing
explaining the cause of theforce majeure. The other party may decide to cancel
the quantity of the product affected by such force majeure.





13.
            ARBITRATION





Any
controversy or claim arising out of or relating to this Agreement or the breach
thereof which cannot be settledby the parties within sixty (60) days after
written notice from one party to the other, shall be settled by arbitration in
New York City in the English language, administered by the American Arbitration
Association under its Commercial Arbitration Rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.





14.
            APPLICABLE
      LAW





This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without regard to the conflict of laws rules and
choice of law rules of New York State.  Subject to paragraph (13)
above, each party hereto hereby irrevocably, each party hereto hereby
irrevocably, (a) submits to the non-exclusive jurisdiction of any New York State
and U.S. Federal court sitting in New York City, New York, with respect to any
suit, action, or proceeding arising out of or relating hereto; (b) agrees that
all claims with respect to each such suit, action or proceeding may be heard and
determined in such New York State or U.S. Federal court; (c) waives, to the
fullest possible extent, the defense of an inconvenient forum; (d) consents to
service of process upon it by mailing or delivering such service or process to
it at its address above, or by any other method permitted by law; (e) waives the
right to a trial by jury; and (f) agrees that a final judgment in any such suit,
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.





15.
            PRIOR
      AGREEMENTS





This
AGREEMENT constitutes the entire agreement between the Parties and supersedes
all prior proposal(s) and discussions, including without limitation the Original
Supply Agreement, relative to the subject matter of this AGREEMENT and neither
POLYMET nor HOKU 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
POLYMET or HOKU hereto shall alter the meaning or interpretation of this
AGREEMENT.





IN
WITNESS WHEREOF, the parties hereto set their respective signature to this
AGREEMENT.





This
Agreement is signed in duplicate, one original of which shall be held by each
party.




DATE:  May
      21, 2009HOKU
      Materials
              
              
              Polymet
      Alloys, Inc./s/
      Scott Paul
              
              
              /s/
      Braulio LageName: 
      Scott Paul
              
              
              Name: 
      Braulio LageTitle: 
      Chief Operating Officer
              
              
              Title: 
      Vice President




5/21/2009








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Annex 1
Hoku Technical Specifications





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