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:

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

2.1 POLYMET warrants to HOKU that:

a)

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

b)

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, 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.

4.

PRICE

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.

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.

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, 2011, 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.

12.	FORCE MAJEURE

12.1. In the event that one of the parties cannot timely perform this AGREEMENT due to a force majeure 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 the force 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 settled by 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.

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:  13 November 2008

                           

Annex 1 Hoku Technical Specifications

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