Exhibit 10.58
CONFIDENTIAL
[*] = 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.
SECOND AMENDED & RESTATED SUPPLY AGREEMENT
This Second Amended & Restated Supply Agreement is entered into as of this 31st
day of March, 2010 (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 Amended and Restated
Supply Agreement dated as of April 2, 2009 (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 2011 for a continuous period of three 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 first Monthly Deposit
(the "Effective Date"); provided, however, that the price reduction for the
Products shall only be effective upon the earlier of HOKU's first delivery of
Products to CUSTOMER or CUSTOMERS's payment in full to HOKU of the Main Deposit
pursuant to Section 6.2 below, it being understood that HOKU has no obligation
to deliver Product until CUSTOMER has paid the Main Deposit in full.
Upon the
Effective Date 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.
Page 1 of 18
2.2
"Agreement" shall mean this Second 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.
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