EXHIBIT 10.103
[*] = 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.
AMENDED & RESTATED SUPPLY AGREEMENT
This Amended & Restated Supply Agreement is entered into as of this 2nd day of
April, 2009 (the "Signature Date") between WEALTHY RISE INTERNATIONAL, LTD., a
Hong Kong company (hereinafter "CUSTOMER") and HOKU MATERIALS, INC., a Delaware
corporation (hereinafter "HOKU").
HOKU and CUSTOMER are sometimes referred to
in the singular as a "Party" or in the plural as the "Parties".
Recitals
Whereas, HOKU and CUSTOMER are parties to that certain Supply Agreement dated as
of September 4, 2008 (the "Prior Supply Agreement").
Whereas, HOKU and CUSTOMER desire to amend and restate the Prior Supply
Agreement in its entirety as set forth herein.
Whereas, HOKU desires to supply polysilicon to CUSTOMER for its general use
beginning in calendar year 2010 for a continuous period of ten years from the
date of the first shipment.
Whereas, in exchange for HOKU's agreement to allocate the supply of polysilicon,
CUSTOMER desires to provide HOKU with a firm order for polysilicon upon the
terms and conditions provided herein.
NOW, THEREFORE, in furtherance of the foregoing Recitals and in consideration of
the mutual covenants and obligations set forth in this Agreement, the Parties
hereby agree as follows:
1.
Effectiveness.
This Agreement shall become effective upon
CUSTOMER's initiation of remittance in full to HOKU of the Initial Deposit (the
"Effective Date").
Upon the effectiveness of this Agreement, HOKU agrees
irrevocably to waive any remedy that otherwise may have accrued under the Prior
Supply Agreement, including, without limitation, any claim it may have had to
interest.
2.
Definitions.
The following terms used in this Agreement shall have the meanings set forth
below:
2.1.
"Affiliate" shall mean, with respect to either Party to this
Agreement, any entity that is controlled by or under common control with such
Party.
2.2.
"Agreement" shall mean this Amended & Restated Supply Agreement
and all appendices annexed to this Agreement as the same may be amended from
time to time in accordance with the provisions hereof.
CUSTOMER Initials & Date
/s/ YIH
HOKU Initials & Date
/s/ DS 2 April 2009
Page 1 of 16
2.3.
"First Shipment Date" shall mean the date by which HOKU has
delivered to CUSTOMER an aggregate total of [*] metric tons of Products pursuant
to this Agreement.
2.4.
"Facility" shall mean any facility used by HOKU for the
production of the Product.
2.5.
"Independent Expert" means any Qualified Laboratory that is
reasonably acceptable to each of HOKU and CUSTOMER; provided, however that if
such parties cannot agree on the Independent Expert within ten (10) days, each
Party shall select one independent expert