Unassociated Document


    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

              


      

    

     

    
      
        
        

      

      
        Page
1

        
          

        

      

      
        
        

      

    

     

    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 HOKU ship an additional [*] metric tons of
product to TIANWEI in calendar year 2009, Section 4.3 of Supply Agreement No. 1
is hereby amended and restated in its entirety to read as follows:

    


    4.3    [Reserved]

    


    B.  Section
4.4 of Supply Agreement No. 1 is hereby amended and restated in its entirety to
read as follows:

    


    4.4.    In
addition to the Minimum Annual Quantity of Product to be delivered to TIANWEI
each Year beginning on the First Shipment Date pursuant to this Agreement, prior
to the First Shipment Date, HOKU shall provide TIANWEI with a right of first
refusal (the “ROFR”) on
up to an aggregate of [*] metric tons of Spot Market Products (as defined in the
final sentence of this paragraph).  TIANWEI’s ROFR on Spot Market
Products shall be subject to the conditions and procedures set forth in the next
sentences of this Section 4.4.  Prior to any sale of Spot Market
Products to a third party, HOKU shall offer such Spot Market Products to TIANWEI
in writing via facsimile or email (the “Offer”).  The
Offer shall include the material terms of the offer, including price, volume and
shipping terms.  TIANWEI shall provide HOKU with a written notice of
acceptance of the Offer (the “Acceptance”)
within 72 hours after receipt of the Offer.  The Acceptance, together
with the Offer, shall be a firm order which cannot be cancelled by either
Party.  The Acceptance may not change or add to the terms of the
Offer, and any such changes shall be construed as a rejection of the
Offer.  If TIANWEI does not provide the Acceptance within 72 hours
after receipt of the Offer, or if TIANWEI rejects the Offer, then HOKU may sell
such Spot Market Products to any third party.  If TIANWEI rejects the
Offer, or fails to respond as provided herein within 72 hours, HOKU shall have
thirty (30) calendar days to exercise its right to sell Spot Market Products to
another customer on terms that are no more favorable to the other customer than
those presented to TIANWEI in the Offer.  If HOKU does not so sell
Spot Market Products pursuant to the Offer within said thirty (30) day period,
HOKU must repeat this process. The foregoing ROFR shall expire on the earliest
to occur of (A) HOKU’s shipment of an aggregate of [*] metric tons of Spot
Market Products to TIANWEI prior to March 31, 2010; or (B) March 31,
2010.  Notwithstanding the foregoing, HOKU shall have no obligation to
ship to TIANWEI any Products that do not meet (or exceed) the Product
Specifications.  “Spot Market
Products” means Products that are not required to be shipped pursuant to
any of HOKU’s existing commitments to HOKU’s Other Customers (limited to
Shanghai Alex New Energy Co., Ltd., Wuxi Suntech Power Co., Ltd., Solarfun Power
Hong Kong Limited, Jiangxi Jinko Solar Co., Ltd. and Wealthy Rise International,
Ltd.), and which would otherwise be sold to other new customers or on the spot
market.  For the avoidance of doubt, the foregoing existing
commitments do not include commitments to sell unallocated products to Shanghai
Alex New Energy Co., Ltd., or Wealthy Rise International, Ltd.

     

    
      
        	
                TIANWEI
      Initials & Date       
      AG   
      2009-5-2

              	
                HOKU Initials & Date   DS    May
      2, 2009

              


      

    

     

    
      
        
        

      

      
        Page
2

        
          

        

      

      
        
        

      

       

    

    C.  The
last sentence of Section 5.6 of Supply Agreement No. 1 is hereby amended to read
as follows:

    


    Unless
HOKU is entitled to retain the Total Deposit as liquidated damages pursuant to
Section 11, shipments to TIANWEI shall be credited against the Total Deposit in
accordance with the Credit Schedule on Appendix 1.

    


    D.  Due
to HOKU’s change of address and fax number, HOKU’s address and fax number, as
set forth in Section 14.5 of Supply Agreement No. 1, are hereby amended to read
as follows:

    


    HOKU:

    


    HOKU
MATERIALS, INC.

    1288 Ala
Moana Blvd., Ste. 220

    Honolulu,
HI 96814

    Attn:  Mr.
Dustin Shindo, CEO

    Facsimile:  +1
(808) 440-0357

    


    E.  Appendix
1 of Supply Agreement No. 1 is hereby amended and restated in its entirety and
replaced with Appendix 1 to this Amendment.

    


    4.  Original
Agreement.  Supply Agreement No. 1 shall and does remain in
effect as originally written, except as herein above specially amended or as
otherwise necessary to give the foregoing amendments full force and
effect.

    


    [Signature
page follows]

     

    
      	
              TIANWEI
      Initials & Date       
      AG   
      2009-5-2

            	
              HOKU Initials & Date   DS    May
      2, 2009

            


    

     

    
      
        
        

      

      
        Page
3

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 3 to Supply
Agreement No. 1 as of the last date set forth below.

     

    
      
        	

                TIANWEI:

                 

                TIANWEI
      NEW ENERGY (CHENGDU) WAFER CO., LTD.

              	
                

                   

                

              	

                

                  

                    HOKU:

                     

                    HOKU
      MATERIALS, INC.

                  

                

              
	 	 	 	 	 
	 	 	
                 

              	 	
                 

              
	
                By: 

              	/s/
      AIHUA GUO	 	

                By:  

              	/s/
      DUSTIN M. SHINDO
	 	 	 	 	 
	Name:  	 	
                 

              	Name:  	
                Dustin
      M. Shindo

              
	
                 

              	 	 	 	 
	Title:  	 	 	Title:  	 Chief
      Executive Officer
	
                Authorized
      Signatory

              	
                 

              	Authorized
      Signatory
	 	 	 	 
	
                Date:  

              	

                2009-5-2

              	 	

                Date:  

              	 May
      2, 2009


      

    

    
 

     

    
      
        
        

      

      
        
          Signature
page to Amendment No. 3 to Supply Agreement No. 1

        

        
          

        

      

      
        
        

      

    

     

    Appendix
1

     

    Pricing
Schedule

     

    
      	 
      	
              Yr
      1

            	
              Yr
      2

            	
              Yr
      3

            	
              Yr
      4

            	
              Yr
      5

            	
              Yr
      6

            	
              Yr
      7

            	
              Yr
      8

            	
              Yr
      9

            	
              Yr
      10

            	
              Total

            
	
              Tons
      per Year

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            
	
              Price
      per kg*

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	 
      


    

    


    If there
is uncertainty in price between the delivery period and the total quantity for
that period based on the table above, the price assigned to the quantity shall
prevail.  For example, the first [*]
MT shall be invoiced at $[*]
per kilogram.

     

    Credit
Schedule

     

    Pursuant
to Section 5.6, the Total Deposit shall be credited [*]
according to the following schedule:

    


    
      	 
      	
              Yr
      1

            	
              Yr
      2

            	
              Yr
      3

            	
              Yr
      4

            	
              Yr
      5

            	
              Yr
      6

            	
              Yr
      7

            	
              Yr
      8

            	
              Yr
      9

            	
              Yr
      10

            	
              Total

            
	
              Total
      Credit Per Year

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              $45,000,000

            
	
              Net
      Cash Price per kg

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	
              [*]

            	 
      


    

     

    
      
        
          	
                  TIANWEI
      Initials & Date                           
      May 2,
      2009

                	
                  HOKU Initials &
      Date   DS    May
      2,
2009