EXHIBIT 2.2
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Confidential treatment requested as to certain information contained in this
Exhibit 2.2 and filed separately with the Securities and Exchange Commission.
CONTRIBUTION AGREEMENT
by and among
SPIRE CORPORATION
▇▇▇▇▇▇ SOLAR CO., LTD.
and
▇▇▇▇▇▇ SOLAR (DELAWARE) COMPANY, LTD.
Dated as of July 31, 2007
TABLE OF CONTENTS
CONTENTS
SECTION 1.01. CERTAIN DEFINED TERMS....................................2
ARTICLE II ORGANIZATION AND CONTRIBUTIONS....................................10
SECTION 2.01. ORGANIZATION OF THE COMPANY.............................10
SECTION 2.02. CONTRIBUTION OF COMPANY BUSINESS TO THE COMPANY.........11
SECTION 2.03. ASSUMPTION AND EXCLUSION OF SPIRE LIABILITIES...........11
SECTION 2.04. ▇▇▇▇▇▇ ▇▇▇▇ CONTRIBUTION TO THE COMPANY.................11
SECTION 2.05. OWNERSHIP INTERESTS.....................................11
SECTION 2.06. CLOSING.................................................11
SECTION 2.07. CLOSING DELIVERIES BY SPIRE.............................12
SECTION 2.08. CLOSING DELIVERIES BY ▇▇▇▇▇▇............................12
SECTION 2.09. CLOSING DELIVERIES BY THE COMPANY.......................12
SECTION 2.10. POST-CLOSING ACTIONS AND DELIVERIES.....................12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SPIRE..........................13
SECTION 3.01. ORGANIZATION, AUTHORITY AND QUALIFICATION...............13
SECTION 3.02. NO CONFLICT.............................................14
SECTION 3.03. CONSENTS AND APPROVALS..................................14
SECTION 3.04. TITLE TO THE ASSETS.....................................14
SECTION 3.05. ABSENCE OF LITIGATION...................................14
SECTION 3.06. COMPLIANCE WITH LAWS; PERMITS...........................15
SECTION 3.07. CONTRACTS...............................................15
SECTION 3.08. TAXES...................................................15
SECTION 3.09. SUFFICIENCY OF SPIRE CONTRIBUTED ASSETS.................15
SECTION 3.10. EMPLOYEES; EMPLOYEE BENEFITS............................16
SECTION 3.11. SPIRE FINANCIALS........................................16
SECTION 3.12. INTELLECTUAL PROPERTY...................................16
SECTION 3.13. RECEIVABLES.............................................17
SECTION 3.14. FULL DISCLOSURE.........................................18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ (DELAWARE)....18
SECTION 4.01. ORGANIZATION, AUTHORITY AND QUALIFICATION...............18
SECTION 4.02. NO CONFLICT.............................................19
SECTION 4.03. CONSENTS AND APPROVALS..................................19
SECTION 4.04. ABSENCE OF LITIGATION...................................19
SECTION 4.05. EXPORT REGULATIONS AND OTHER LAWS.).....................19
ARTICLE V ADDITIONAL AGREEMENTS..............................................20
SECTION 5.01. ACCESS TO INFORMATION...................................20
SECTION 5.02. CONFIDENTIALITY.........................................20
SECTION 5.03. THIRD PARTY CONSENTS....................................20
SECTION 5.04. NOTICE OF DEVELOPMENTS..................................21
SECTION 5.05. TAX COOPERATION AND EXCHANGE OF INFORMATION.............21
SECTION 5.06. CONVEYANCE TAXES........................................21
SECTION 5.07. SPIRE TRANSFERRED EMPLOYEES.............................21
SECTION 5.08. IT ASSETS LICENSE AGREEMENT.............................22
SECTION 5.09. JOINT VENTURE ANCILLARY AGREEMENTS......................22
SECTION 5.10. NON-COMPETITION.........................................22
SECTION 5.11. FURTHER ACTION..........................................23
ARTICLE VI INDEMNIFICATION...................................................23
SECTION 6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..............23
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SECTION 6.02. INDEMNIFICATION.........................................23
ARTICLE VII TERMINATION AND WAIVER...........................................24
SECTION 7.01. TERMINATION.............................................24
SECTION 7.02. EFFECT OF TERMINATION...................................25
ARTICLE VIII GENERAL PROVISIONS..............................................25
SECTION 8.01. EXPENSES................................................25
SECTION 8.02. NOTICES.................................................25
SECTION 8.03. PUBLICITY...............................................26
SECTION 8.04. SEVERABILITY............................................26
SECTION 8.05. ENTIRE AGREEMENT........................................26
SECTION 8.06. INTERPRETATION..........................................26
SECTION 8.07. ASSIGNABILITY AND PARTIES IN INTEREST...................26
SECTION 8.08. AMENDMENTS AND WAIVERS..................................27
SECTION 8.09. SPECIFIC PERFORMANCE....................................27
SECTION 8.10. NONDISCLOSURE OF TERMS OF AGREEMENT.....................27
SECTION 8.11. GOVERNING LAW...........................................27
SECTION 8.12. DISPUTE RESOLUTION......................................27
SECTION 8.13. COUNTERPARTS............................................28
EXHIBITS
A Form of Employment Agreement
B Form of Severance Agreement and Release
C Quotation and Agreement for Services
SCHEDULES
2.02(a) Spire Contracts
2.02(b) Excluded Assets
SPIRE DISCLOSURE SCHEDULE
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CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT, dated as of July 31, 2007, by and among Spire
Corporation, a Massachusetts corporation ("Spire"); ▇▇▇▇▇▇ Solar Co., Ltd., a
corporation organized and existing under the laws of Taiwan, Republic of China
("▇▇▇▇▇▇"); ▇▇▇▇▇▇ Solar (Delaware) Company, Ltd., a Delaware corporation wholly
owned by ▇▇▇▇▇▇ ("▇▇▇▇▇▇ (Delaware)"); and ***, an individual residing in the
Commonwealth of Massachusetts (joining this Agreement solely for the purpose of
Section 5.07(b) (each of ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) being referred to
herein as a "Party" and, collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, Spire is a leading supplier in the design and manufacture of
specialized equipment for producing photovoltaic ("PV") solar modules. Spire
also manufactures, designs, and installs high-quality PV systems and components;
WHEREAS, ▇▇▇▇▇▇ manufactures and sells PV solar modules and intends to
enter the United States market;
WHEREAS, Spire and ▇▇▇▇▇▇ desire to organize a limited liability company
(the "Company") under the laws of the State of Delaware for the purpose of
conducting a business of design, marketing, sale and installation of PV Systems
using PV Modules manufactured by ▇▇▇▇▇▇ and the Company and intend that the
Company be a leading PV System provider to commercial, government and utility
customers in the United States;
WHEREAS, Spire desires to contribute to the Company Business, including all
right, title and interest of Spire in and to the property and assets (both
tangible and intangible) of the Company Business, and, in connection therewith,
the Company shall assume certain liabilities of Spire relating thereto, all upon
the terms and subject to the conditions set forth herein;
WHEREAS, ▇▇▇▇▇▇ Parties (as defined below) desire to contribute to the
Company the ▇▇▇▇▇▇ ▇▇▇▇ Contribution upon the terms and subject to the
conditions set forth herein;
WHEREAS, concurrently with the execution and delivery of this Agreement,
Spire and ▇▇▇▇▇▇ are entering into an Asset Purchase Agreement, dated as of the
date hereof (the "Asset Purchase Agreement"), pursuant to which ▇▇▇▇▇▇ will
purchase from Spire certain PV Module manufacturing assets;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and intending to be legally bound hereby, the Parties
hereby agree as follows:
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. For purposes of this Agreement:
"Action" means any claim, action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person. For
purposes of this Agreement, the Company, Spire and the ▇▇▇▇▇▇ Parties shall not
be deemed to be Affiliates of each other.
"Agreement" or "this Agreement" means this Contribution Agreement, dated as
of July 31, 2007, by and among ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) (including
the Exhibits and Schedules hereto) and all amendments hereto made in accordance
with the provisions hereof.
"Ancillary Agreements" means the Joint Venture Ancillary Agreements and the
Asset Purchase Ancillary Agreements.
"Asset Purchase Ancillary Agreements" means the Asset Purchase Ancillary
Agreements, as defined in the Asset Purchase Agreement.
"Assignment and Assumption Agreement " means the Assignment and Assumption
Agreement by and between Spire and the Company as of the date hereof, pursuant
to which Spire shall sell, convey, transfer, assign and deliver to the Company
all of Spire's right, title and interest in and to the Spire Contracts.
"Business Day" means any Day that is not a Saturday, a Sunday or other day
on which banks are required or authorized by applicable Law to be closed in the
Republic of China or the United States.
"Company Business" means the design, marketing, sale, installation
coordination and project management of PV Systems to commercial, government, and
utility customers in the United States using PV Modules and all other types of
photovoltaic electricity-generating panels ***, and the provision of services to
▇▇▇▇▇▇ or its Affiliates for purposes of manufacturing PV Modules pursuant to
the Subcontracting Agreement. For the avoidance of doubt, the Company Business
shall not be deemed to include the designing, building, and selling of PV Module
manufacturing equipment, including sales of any advanced manufacturing equipment
line to produce PV Systems for customers in all fields (specifically including,
without limitation, customers seeking to build utility-scale electric generation
stations and customers seeking to build equipment suitable for building such
manufacturing equipment).
"Contract" means, as to any Person, any contract, subcontract, lease,
mortgage, indenture, understanding, arrangement, instrument, note, bond, option,
warranty, purchase order, license, sublicense, insurance policy, benefit plan,
permit, franchise or other instrument,
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
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obligation or commitment or undertaking of any nature as to which the Person is
a party or by which its assets, properties or business is bound.
"Control" (including the terms "controlled by" and "under common control
with"), with respect to the relationship between or among two or more Persons,
means the possession, directly or indirectly or as trustee, personal
representative or executor, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of voting
securities, as trustee, personal representative or executor, by contract, credit
arrangement or otherwise, including the ownership, directly or indirectly, of
securities or ownership interests having the power to elect a majority of the
board of directors or similar body governing the affairs of such person.
"Conveyance Taxes" means all sales, use, value added, transfer, stamp,
stock transfer, real property transfer, or gains and similar Taxes.
"Days" or "days" means all calendar days, regardless of whether such days
are legal holidays under the laws of the United States or any State or the laws
of the Republic of China.
"Employee Benefit Plan" means, with respect to any Party hereto, each plan,
fund, program, agreement, arrangement or scheme, including each plan, fund,
program, agreement, arrangement or scheme, in each case, that is at any time
sponsored or maintained or required to be sponsored or maintained by such Party
or such Party's Affiliates or to which such Party or such Party's Affiliates
made or has made, or has or has had an obligation to make, contributions
providing for employee benefits or for the remuneration, direct or indirect, of
the current and former employees, directors, managers, officers, consultants,
independent contractors, contingent workers or leased employees of such Party or
such Party's Affiliates or the dependents of any of them (whether written or
oral), including each deferred compensation, bonus, incentive compensation,
pension, retirement, stock purchase, stock option and other equity compensation,
bonus, incentive compensation, pension, retirement, stock purchase, stock option
and other equity compensation plan or "welfare" plan (within the meaning of
Section 3(1) of ERISA, determined without regard to whether such plan is subject
to ERISA), each "pension" plan (within the meaning of Section 3(2) of ERISA,
determined without regard to whether such plan is subject to ERISA), each
severance plan or agreement, health, vacation, supplemental unemployment
benefit, hospitalization insurance, medical, dental, legal plan and each other
employee benefit plan, fund, program, agreement, arrangement or scheme.
"Employment Liabilities" means all Liabilities arising under, resulting
from or relating to (whether incurred before, on or after the Closing): (a) the
Spire Employee Benefit Plan; or (b) Spire's or its Affiliates' employment of or
termination of or transfer of its current or former employees, directors,
managers, officers, consultants, independent contractors, contingent workers and
leased employees (including the Spire Transferred Personnel), including in
either case all accrued or unpaid salaries, wages, bonuses (including all
signing bonuses or other payments in connection with the transactions
contemplated by this Agreement, the Operating Agreement, and the Joint Venture
Ancillary Agreements), commissions, unreimbursed expenses, paid-time-off pay,
vacation pay, severance pay, compensation for non-competition, confidentiality,
non-solicitation, or any other covenant, royalties or rewards related to any
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Intellectual Property, and other compensation in relation to any services
performed by them or amounts required to be reimbursed to them.
"Encumbrance" means any security interest, pledge, hypothecation, mortgage,
lien (including environmental and tax liens), violation, charge, lease, license,
encumbrance, servient easement, adverse claim, reversion, reverter, preferential
arrangement, restrictive covenant, condition or restriction of any kind,
including any restriction on the use, voting, transfer, receipt of income or
other exercise of any attributes of ownership.
"Environmental Laws" means all Laws, now or hereafter in effect and as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety, natural resources or Hazardous Materials,
including CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. ▇▇.▇▇.
6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ▇▇.▇▇. 6901
et seq.; the Clean Water Act, 33 U.S.C. ▇▇.▇▇. 1251 et seq.; the Toxic
Substances Control Act, 15 U.S.C. ▇▇.▇▇. 2601 et seq.; the Clean Air Act, 42
U.S.C. ▇▇.▇▇. 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. ▇▇.▇▇. 300f
et seq.; the Atomic Energy Act, 42 U.S.C. ▇▇.▇▇. 2011 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ▇▇.▇▇. 136 et seq.; and the
Federal Food, Drug and Cosmetic Act, 21 U.S.C. ▇▇.▇▇. 301 et seq.
"ERISA" means the United States Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations promulgated
thereunder.
"Excluded Taxes" means: (a) all Income Taxes owed by Spire or any of its
Affiliates for any period; (b) all Taxes relating to the Company Business or the
Spire Contributed Assets for any Pre-Closing Period; (c) all Taxes of Spire or
any other Person by reason of being a member of a consolidated, combined,
unitary or affiliated group that includes Spire or any of its present or past
Affiliates, by reason of a tax sharing, tax indemnity of similar agreement
entered into by the Seller or any of its present or past Affiliates (other than
this Agreement) or by reason of transferee or successor liability arising in
respect of a transaction undertaken by Spire or any of its present or past
Affiliates; and (d) Taxes imposed on any ▇▇▇▇▇▇ Party as a result of any breach
by Spire of any representation or warranty or covenant relating to Taxes. For
purposes of this Agreement, in the case of any Straddle Period: (i) Income Taxes
relating to the Company Business or the Spire Contributed Assets for the
Pre-Closing Period shall be computed as if such taxable period ended as of the
closing of business on the date of the Closing; and (ii) Property Taxes related
to the Company Business or the Spire Contributed Assets for any Pre-Closing
Period shall be allocated by apportioning a pro rata portion of such Property
Taxes to each day in the relevant Straddle Period.
"▇▇▇▇▇▇ Parties" or "▇▇▇▇▇▇ Party" means ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware).
"▇▇▇▇▇▇-Company Trademark License Agreement" means that certain trademark
license agreement by and between ▇▇▇▇▇▇ and the Company as of the date hereof.
"Governmental Authority" means any foreign, federal, national,
supranational, state, provincial, municipal, local, or similar government,
governmental, regulatory or
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administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental
Authority.
"Hazardous Material" means: (a) petroleum and petroleum products,
radioactive materials, asbestos-containing materials, urea formaldehyde foam
insulation, transformers or other equipment that contain polychlorinated
biphenyls and radon gas; (b) any other chemicals, materials or substances
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous wastes", "restricted
hazardous wastes", "toxic substances", "toxic pollutants", "contaminants" or
"pollutants", or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance that is regulated by any
Environmental Law.
"Hazardous Material Activity" means the transportation, transfer,
recycling, storage, use, treatment, manufacture, removal, remediation, release,
exposure of others to, sale, or distribution of any Hazardous Material or any
product containing a Hazardous Material.
"Income Taxes" means Taxes imposed on or measured by reference to gross or
net income or receipts, and franchise, net worth, capital or other doing
business Taxes.
"Indemnified Party" means a Spire Indemnified Party or a ▇▇▇▇▇▇ Indemnified
Party, as the case may be.
"Indemnifying Party" means Spire pursuant to Section 6.02(a) or ▇▇▇▇▇▇
pursuant to Section 6.02(b), as the case may be.
"Intellectual Property" means intellectual property of any type throughout
the world, including the following: (a) Patents; (b) Trade Secrets; (c) database
rights, original works of authorship, copyrights, copyright registrations and
applications therefor, renewals and extensions thereto and all other rights
corresponding thereof throughout the world; (d) Mask Works; (e) industrial
designs and any registrations and applications therefor throughout the world;
(f) rights in World Wide Web addresses and domain names and applications and
registrations therefor; (g) trade names, logos, common law trademarks and
service marks, trademark and service ▇▇▇▇ registrations and applications
therefor, including the goodwill of the business symbolized thereby or
associated therewith; and (h) Software, and any and all other proprietary rights
throughout the world.
"IT Assets" means the InSpire Data Acquisition System.
"Joint Venture Ancillary Agreements" means the the Assignment and
Assumption Agreement, the Technology License Agreement, the ▇▇▇▇▇▇-Company
Trademark License Agreement, the Spire-Company Trademark License Agreement, and
the Transitional Services Agreement.
"Knowledge of Spire," "Spire's Knowledge" or similar terms used in this
Agreement mean the actual (but not constructive or imputed) knowledge of the
employees and
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officers of Spire and who would reasonably be expected to have knowledge of the
relevant subject matter.
"Law" means any foreign, federal, national, supranational, state,
provincial, municipal, local or similar statute, law, ordinance, regulation,
rule, code, order, requirement or rule of law (including common law).
"Liabilities" means any and all debts, liabilities and obligations, whether
accrued or fixed, absolute or contingent, matured or unmatured or determined or
determinable, including those arising under any Law (including any Environmental
Law), Action or Governmental Order and those arising under any contract,
agreement, arrangement, commitment or undertaking.
"Mask Works" means mask works, mask work registrations and applications
therefore, and any equivalent or similar rights in semiconductor masks, layouts,
architectures or topology.
"Material Adverse Effect" means any change, event, violation, inaccuracy,
circumstance, or effect (any such item, an "Effect") that, individually or when
taken together with all other Effects that have occurred prior to the date of
determination of the occurrence of the Material Adverse Effect, has had or would
be reasonably expected to have a material adverse effect on: (a) the business,
operations, assets (including intangible assets), liabilities, financial
condition or results of operations of Spire or ▇▇▇▇▇▇ (as the case may be),
taken as a whole; or (b) Spire's or Gloria's ability (as the case may be) to
timely perform its obligations under this Agreement, the Operating Agreement,
and the Joint Venture Ancillary Agreements, except, in any case under clause (a)
or (b), for any such Effects arising primarily and directly out of any of the
following: (i) the performance by Spire or ▇▇▇▇▇▇ (as the case may be) of its
obligations under this Agreement, the Operating Agreement, and the Joint Venture
Ancillary Agreements, or the consummation by Spire or ▇▇▇▇▇▇ (as the case may
be) of the transactions contemplated hereby or thereby; (ii) the announcement of
this Agreement, the Operating Agreement, and the Joint Venture Ancillary
Agreements and the transactions contemplated hereby and thereby, as well as the
pendency of the transactions contemplated hereby and thereby; (iii) any changes
in general economic, regulatory or political conditions; or (iv) any changes
affecting the PV System or PV Module business generally.
"Operating Agreement" means the Operating Agreement by and among ▇▇▇▇▇,
▇▇▇▇▇▇ (Delaware) and the Company as of the date hereof, which governs the
rights and obligations of ▇▇▇▇▇, ▇▇▇▇▇▇ (Delaware) and the Company in respect of
the management and operation of the Company.
"Owned Intellectual Property" means all Intellectual Property owned by
Spire and used, through the date of Closing, in connection with the Company
Business.
"Patents" means: (a) patents and patent applications, including
provisionals, continuations, continuations-in-part, reissues, reexaminations and
extensions thereof; (b) inventions, discoveries (whether or not patentable or
reduced to practice) and improvements thereto; (c) statutory invention
registrations; and (d) all other rights corresponding to the foregoing in
subsections (a) through (c) throughout the world.
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"Permitted Encumbrances" means: (a) liens for Taxes and other governmental
charges or levies not yet due and payable; (b) Encumbrances imposed by Law, such
as materialmen's, mechanics', carriers', workmen's and repairmen's liens and
other similar liens arising in the ordinary course of business and not due to a
failure to pay the required amounts within applicable payment periods; (c)
pledges and deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; and (d) in the
case of real property, zoning, building, or other restrictions, variances,
covenants, rights of way, encumbrances, easements, minor survey exceptions, and
other customary encumbrances on title to real property, that, in each case, do
not materially adversely affect the value of such property or the use of such
property for its present purposes.
"Person" means any individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or other
entity or group of related entities.
"Pre-Closing Period" means any taxable period (or portion thereof) ending
on or prior to the date of the Closing.
"Primary Transaction Agreements" means this Agreement, the Operating
Agreement, and the Asset Purchase Agreement.
"Property Taxes" means real and personal AD VALOREM property Taxes and any
other Taxes imposed on a periodic basis and measured by the items' deemed value.
"PV Module" means a photovoltaic electricity-generating panel using any
variety of silicon and deposited metals with peak electricity production of less
than five hundred seventy-five (575) ▇▇▇▇▇ and dimensions with a maximum limit
of two hundred fifty centimeters (250 cm) by one hundred fifty centimeters (150
cm).
"PV System" means an electricity generating system comprising one or more
interconnected PV Modules and additional balance of system components, typically
installed on rooftops, or as ground-mounted arrays, or integrated into building
designs, which can be interconnected to the electric utility grid (grid-tied) or
separate from the utility grid (off-grid).
"Receivables" means any and all accounts receivable, notes and other
amounts receivable from third parties, including customers and employees,
arising from the conduct of the Company Business before the Closing, whether or
not in the ordinary course, together with any unpaid financing charges accrued
thereon.
"Software" means all: (a) computer programs, applications, systems and
code, including software implementations of algorithms, models and
methodologies, and source code and object code; (b) Internet and intranet
websites, databases and compilations, including data and collections of data,
whether machine-readable or otherwise; (c) development and design tools, library
functions and compilers; (d) technology supporting websites, and the contents
and audiovisual displays of websites; and (e) documentation, other works of
authorship and media, including user manuals and training materials, relating to
or embodying any of the foregoing or on which any of the foregoing is recorded.
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"Spire Disclosure Schedule" means the Disclosure Schedule of Spire attached
hereto, dated as of the date hereof, and forming a part of this Agreement.
"Spire Employee Benefit Plan" means each Employee Benefit Plan of Spire
with respect to current and former employees, directors, managers, officers,
consultants, independent contractors, contingent workers and leased employees
including the Spire Transferred Employees.
"Spire Financials" means (i) the balance sheets of the Company Business as
of December 31, 2005 and 2006, and the income statements and the cash flow
statements of the Company Business for the years ended December 31, 2005 and
2006, and (ii) the balance sheet of the Company Business as of June 30, 2007,
and the income statement and the cash flow statement of the Company Business for
the six-month period ended June 30, 2007.
"Spire PV Technology" means the Owned Intellectual Property and the IT
Assets necessary for the use of or otherwise used in connection with the design,
marketing, sales, installation and coordination of PV Systems to commercial,
government, or utility customers using PV Modules, but excluding items germane
to PV Modules or the manufacturing of PV Modules.
"Spire-Company Trademark License Agreement" means the trademark license
agreement by and between Spire and the Company as of the date hereof.
"Spire-▇▇▇▇▇▇ Trademark License Agreement" means the trademark license
agreement by and between Spire and ▇▇▇▇▇▇ as of the date hereof.
"Straddle Period" means any taxable period beginning on or prior to and
ending after the date of Closing.
"Subcontracting Agreement" means the Subcontracting Agreement by and
between ▇▇▇▇▇▇ and the Company as of the date hereof, pursuant to which ▇▇▇▇▇▇
shall subcontract the Company to operate the assets purchased by ▇▇▇▇▇▇ under
the Asset Purchase Agreement.
"Taxes" means any and all taxes, fees, levies, duties, tariffs, imposts,
and other charges of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto) imposed by
any government or taxing authority, including taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth; taxes or other
charges in the nature of excise, withholding, AD VALOREM, stamp, transfer, value
added, or gains taxes; license, registration and documentation fees; and
customs' duties, tariffs, and similar charges.
"Tax Returns" means any return, declaration, report, election, claim for
refund or information return or other statement or form filed or required to be
filed with any Tax authority relating to Taxes, including any schedule or
attachment thereto or any amendment thereof.
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"Technology License Agreement" means the Technology License Agreement by
and between the Company as licensor and Spire as the licensee as of the date
hereof.
"Trade Secret" means trade secrets, know-how, and other confidential or
proprietary technical, business and other information, including manufacturing
and production processes and techniques, research and development information,
technology, drawings, specifications, designs, plans, proposals, technical data
and business data.
"Trademark License Agreements" means the Spire-Company Trademark License
Agreement, the ▇▇▇▇▇▇-Company Trademark License Agreement, and the Spire-▇▇▇▇▇▇
Trademark License Agreement.
"Transitional Services Agreement" means the Transitional Services Agreement
by and between Spire and the Company as of the date hereof, pursuant to which
Spire shall provide certain transitional services to the Company with respect
the Company Business.
"US GAAP" means United States generally accepted accounting principles.
"***.
Section 1.02. Definitions. The following terms have the meanings set forth
in the Sections set forth below:
Definition Location
Asset Purchase Agreement Recitals
Assumed Liabilities 2.03(a)
Closing 2.06
Company Recitals
Employment Agreement 5.07
Excluded Assets 2.02(b)
Excluded Liabilities 2.03(b)
▇▇▇▇▇▇ Preamble
▇▇▇▇▇▇ ▇▇▇▇ Contribution 2.04
▇▇▇▇▇▇ Indemnified Party 6.02(a)
▇▇▇▇▇▇ (Delaware) Preamble
IT Assets License Agreement 5.08
Loss 6.02(a)
Offer Letter 5.07
Party or Parties Preamble
Permits 3.06(b)
PV Recitals
Severance Agreement and Release 5.07
Spire Preamble
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
9
Spire Contracts 2.02(a)
Spire Contributed Assets 2.02(a)
Spire Indemnified Party 6.02(a)
Spire Transferred Employees 3.10
Section 1.03. Interpretation and Rules of Construction. In this Agreement,
except to the extent otherwise provided or that the context otherwise requires:
(a) when a reference is made in this Agreement to an Article, Section,
Exhibit or Schedule, such reference is to an Article or Section of, or a
Schedule or Exhibit to, this Agreement unless otherwise indicated;
(b) the table of contents and headings for this Agreement are for reference
purposes only and do not affect in any way the meaning or interpretation of this
Agreement;
(c) whenever the words "include," "includes" or "including" are used in
this Agreement, they are deemed to be followed by the words "without
limitation";
(d) the words "hereof," "herein" and "hereunder" and words of similar
import, when used in this Agreement, refer to this Agreement as a whole and not
to any particular provision of this Agreement;
(e) all terms defined in this Agreement have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto, unless
otherwise defined therein;
(f) the definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms;
(g) any Law defined or referred to herein or in any agreement or instrument
that is referred to herein means such Law or statute as from time to time
amended, modified or supplemented, including by succession of comparable
successor Laws;
(h) references to a Person are also to its successors and permitted
assigns; and
(i) the use of "or" is not intended to be exclusive unless expressly
indicated otherwise.
ARTICLE II
ORGANIZATION AND CONTRIBUTIONS
Section 2.01. Organization of the Company. On the Closing Date, the Parties
shall take or cause to be taken all necessary action to incorporate the Company
with the name "▇▇▇▇▇▇ ▇▇▇▇▇ Solar, LLC" under the Delaware Limited Liability
Company Act. The Parties
10
agree that the Company shall adopt a Certificate of Formation substantially in
the form attached as Exhibit A to the Operating Agreement.
Section 2.0. Contribution of Company Business to the Company. (a) Effective
at the Closing, Spire hereby contributes and assigns all right, title and
interest in and to the assets and properties (both tangible and intangible)
owned by Spire primarily relating to the Company Business to the Company (the
"Spire Contributed Assets"), including, without limitation: (i) each Contract
listed on Schedule 2.02(a) (the "Spire Contracts"); (ii) the Spire PV
Technology; and (iii) all Receivables.
(b) For the avoidance of doubt, the Spire Contributed Assets shall exclude
the assets set forth on Schedule 2.02(b) (collectively, the "Excluded Assets").
Section 2.03. Assumption and Exclusion of Spire Liabilities. (a) The
Company shall only be responsible for (i) the obligation to provide services to
third parties under the Spire Contracts and (ii) the Liabilities arising from or
in connection with the Spire Contributed Assets, to and only to the extent such
Liabilities are due to be performed after the Closing (the "Assumed
Liabilities").
(b) Spire shall retain, and shall be responsible for paying, performing and
discharging when due, and the Company shall not assume or have any
responsibility for: (i) all Liabilities of Spire (other than the Assumed
Liabilities), including, without limitation, any and all Liabilities arising
from or in connection with the Excluded Assets; (ii) the Excluded Taxes; (iii)
all Employment Liabilities attributable to periods prior to their hire by the
Company, or as a result of the termination of their employment with Spire; and
(iv) all Liabilities relating to or arising out of: (A) the presence or release
of any Hazardous Materials in, on, from or under any property formerly owned,
leased, used or occupied by the Company Business, or any third party location to
which Spire sent, or caused to be sent, Hazardous Materials prior to the
Closing; or (B) any Hazardous Material Activity by the Company Business prior to
the Closing (collectively, the "Excluded Liabilities"). Spire shall pay and
discharge the Excluded Liabilities as and when the same become due and payable.
Section 2.04. ▇▇▇▇▇▇ ▇▇▇▇ Contribution to the Company. Within thirty (30)
days of the Closing Date, ▇▇▇▇▇▇ (Delaware) shall, and ▇▇▇▇▇▇ shall cause ▇▇▇▇▇▇
(Delaware) to, contribute that amount set forth at Schedule 2.04 to the Company
(the "▇▇▇▇▇▇ ▇▇▇▇ Contribution").
Section 2.05. Ownership Interests. On the terms and subject to the
conditions of this Agreement, at the Closing, ▇▇▇▇▇▇ and Spire shall directly or
indirectly own fifty-five percent (55%) and forty-five percent (45%),
respectively, of the equity interest in the Company.
Section 2.06. Closing. On the terms and subject to the conditions of this
Agreement, the delivery of the Spire Contributed Assets and the Cash
Contribution and the execution of the Agreement, the Operating Agreement, and
the Joint Venture Ancillary Agreements shall take place at a closing (the
"Closing") to be held at the office of Spire, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ as of the date hereof.
11
Section 2.07. Closing Deliveries by Spire. At the Closing, Spire shall
deliver or cause to be delivered to the Company or ▇▇▇▇▇▇, as applicable:
(a) executed counterparts of the Operating Agreement each Joint Venture
Ancillary Agreement to which Spire is a party;
(b) a certificate of the Secretary or an Assistant Secretary of Spire
certifying the names and signatures of the officers of Spire authorized to sign
this Agreement, the Operating Agreement, and the Joint Venture Ancillary
Agreements and the other documents to be delivered hereunder and thereunder;
(c) a list of all projects relating to the Company Business that Spire has
completed for its customers, which shall set forth a brief description of each
such project and the name of the corresponding customer, and a list of all
business opportunities in connection with the Company Business that Spire has
sought for from its existing or potential customers prior to the Closing, which,
in each case, the Company shall have the right to use for marketing purposes;
(d) Spire's PV System business plan setting forth a list of all on-going
projects of Spire relating to the Company Business.
Section 2.08. Closing Deliveries by ▇▇▇▇▇▇. At the Closing, ▇▇▇▇▇▇ shall
deliver or cause to be delivered to the Company or Spire, as applicable:
(a) executed counterparts of each Joint Venture Ancillary Agreement to
which a ▇▇▇▇▇▇ Party is a party; and
(b) a certificate of the Secretary or an Assistant Secretary of each ▇▇▇▇▇▇
Party certifying the names and signatures of the officers of each ▇▇▇▇▇▇ Party
authorized to sign this Agreement and the Joint Venture Ancillary Agreements and
the other documents to be delivered hereunder and thereunder.
Section 2.09. Closing Deliveries by the Company. At the Closing, the
Parties shall cause the Company to deliver or cause to be delivered to Spire or
▇▇▇▇▇▇, as applicable:
(a) executed counterparts of the Operating Agreement and each Joint Venture
Ancillary Agreement to which it is a party;
(b) such other instruments or documents that are reasonably necessary to
effect the transactions contemplated by this Agreement, the Operating Agreement,
and the Joint Venture Ancillary Agreements.
Section 2.10. Post-Closing Actions and Deliveries. (a) Within fourteen (14)
days after the Closing, (i) Spire shall deliver to ▇▇▇▇▇▇ a true and complete
copy, certified by the Secretary or an Assistant Secretary of Spire, of the
resolutions duly and validly adopted by the Board of Directors of Spire
evidencing its authorization of the execution and delivery of this Agreement,
the Operating Agreement, and the Joint Venture Ancillary Agreements to which it
is a party and the consummation of the transactions contemplated hereby and
thereby; (ii) ▇▇▇▇▇▇
12
shall deliver to Spire a true and complete copy, certified by the Chief
Executive Officer of ▇▇▇▇▇▇, of the resolutions duly and validly adopted by the
Board of Directors of ▇▇▇▇▇▇ evidencing its authorization of the execution and
delivery of this Agreement, the Operating Agreement, and the Joint Venture
Ancillary Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby; and (iii) Spire and ▇▇▇▇▇▇ shall
cause the Company to deliver to ▇▇▇▇▇▇ a written notice in respect of the
designation of a bank account for purposes of receiving the ▇▇▇▇▇▇ ▇▇▇▇
Contribution (the "Bank Account Designation Notice").
(b) Within thirty (30) days after the Closing: (i) ▇▇▇▇▇▇ shall deliver to
the Company the ▇▇▇▇▇▇ ▇▇▇▇ Contribution by wire transfer in immediately
available funds to a bank account designated in the Bank Account Designation
Notice, and the Company shall deliver to ▇▇▇▇▇▇ the receipt for the ▇▇▇▇▇▇ ▇▇▇▇
Contribution on the date on which the ▇▇▇▇▇▇ ▇▇▇▇ Contribution is delivered;
(ii) Spire shall expend commercially reasonable efforts to cause Stonewater
Control Systems, Inc., or any comparable provider, to deliver to the Company
executed counterparts of the IT Assets License Agreement pursuant to the
provisions of Section 5.08; and (iii) Spire shall expend commercially reasonable
efforts, and Spire and ▇▇▇▇▇▇ shall cause the Company to expend commercially
reasonable efforts, to deliver executed counterparts of: (A) the Employment
Agreement; (B) the Severance Agreement; and (C) the Offer Letter, in each case
duly executed and/or countersigned by ***.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SPIRE
Except as disclosed in the Spire Disclosure Schedule, Spire hereby
represents and warrants the hereinbelow items to each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
(Delaware), as of the date hereof and as of the Closing. Notwithstanding the
foregoing, Spire shall not be liable for breach of the representations and
warranties contained herein unless the accrued damage to ▇▇▇▇▇▇ and ▇▇▇▇▇▇
(Delaware) exceeds Five Thousand U.S. Dollars (US$5,000.00) resulting from any
single claim or multiple claims arising out of the same facts, events or
circumstances, computed cumulatively.
Section 3.01. Organization, Authority and Qualification. Spire is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization. Spire has all necessary
corporate power and authority to enter into this Agreement and the Joint Venture
Ancillary Agreements to which it is a party, to carry out its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. Spire is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary,
except to the extent that the failure to be so licensed or qualified would not
reasonably be expected to have a Material Adverse Effect. The execution and
delivery by Spire of this Agreement and the Joint Venture Ancillary Agreements
to which it is a party, the performance by Spire of its obligations hereunder
and thereunder and the consummation by Spire of the transactions contemplated
hereby and thereby have been duly
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exhange
Commission.
13
authorized by all requisite action on the part of Spire, and no other corporate
proceedings on the part of Spire is required in connection therewith. This
Agreement has been, and upon its execution, each of the Joint Venture Ancillary
Agreements to which Spire is a party will be, duly executed and validly
delivered by Spire, and (assuming, if applicable, due authorization, execution
and delivery by each of the other parties hereto and thereto) this Agreement
constitutes and, upon its execution, each of the Joint Venture Ancillary
Agreements to which Spire is a party shall constitute, a legal, valid and
binding obligation of Spire, enforceable against Spire in accordance with its
terms.
Section 3.02. No Conflict. The execution, delivery and performance by Spire
of this Agreement and the Joint Venture Ancillary Agreements to which it is a
party do not and will not: (a) violate or conflict with any provision of its
certificate of incorporation, Memorandum and Articles of Association, Articles
of Incorporation, by-laws or similar organizational documents; (b) conflict with
or violate in any material respect any Law or Governmental Order applicable to
Spire or any of its respective assets, properties or business; or (c) conflict
in any material respect with, result in any material breach of, constitute a
material default (or event which with the giving of notice or a lapse of time,
or both, would become a material default) under, or result in the creation of
any Encumbrance (other than a Permitted Encumbrance) on, or give rise to any
loss of material rights under, or otherwise materially and adversely affect, the
Spire Contributed Assets (or any portion thereof) pursuant to any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which it is a party or pursuant
to which any of the Spire Contributed Assets is bound or affected. Spire has no
basis to believe, in the exercise of reasonable discretion and foresight, that a
Material Adverse Effect is likely to arise from the execution and consummation
of this Agreement and the transactions hereby contemplated.
Section 3.03. Consents and Approvals. The execution, delivery and
performance by Spire of this Agreement and each Joint Venture Ancillary
Agreement to which it is a party do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to, any Governmental Authority or other third Person, except as set
forth on Section 3.03 of the Spire Disclosure Schedule and except where failure
to obtain such consent, approval, authorization, order or action, or to make
such filing or notification, would not, individually or in the aggregate,
reasonably be expected to prevent or materially delay Spire from performing any
of its material obligations under this Agreement and each Joint Venture
Ancillary Agreement to which it is a party.
Section 3.04. Title to the Assets. Spire is the true and lawful owner of,
and holds good and marketable title to, all of the Spire Contributed Assets,
free and clear of any and all Encumbrances other than Permitted Encumbrances.
Upon the contribution of the Spire Contributed Assets to the Company pursuant to
Section 2.02, title to all of the Spire Contributed Assets shall have been
legally and validly transferred to the Company under applicable Law, and the
Company will be the true and lawful owner of, and will receive good and
marketable title to, the Spire Contributed Assets, free and clear of any
Encumbrances other than Permitted Encumbrances.
Section 3.05. Absence of Litigation. There is no Action pending or, to the
knowledge of Spire, threatened against Spire: (a) that seeks to restrain or
enjoin or otherwise
14
challenge the legality, validity or enforceability of this Agreement, the
Operating Agreement, or any Joint Venture Ancillary Agreement; or (b) that
relates to the Company Business or the Spire Contributed Assets (taken as a
whole).
Section 3.06. Compliance with Laws; Permits. (a) Spire is not in conflict
in any material respect with, in material default under, or in material
violation of, any Laws or Governmental Orders applicable to the Company Business
or the Spire Contributed Assets (or any portion thereof), or by which either
Spire believes it is reasonably likely to be bound or affected. There is no
material judgment, injunction, order or decree that is binding upon Spire which
has, or would reasonably be expected to have, the effect of prohibiting or
materially impairing the conduct of the Company Business as currently conducted
or as currently contemplated to be conducted by the Company following the
Closing.
(b) Spire currently holds all material permits, licenses, authorizations,
certificates, exemptions, registrations and approvals of Governmental
Authorities (collectively, "Permits") necessary or proper for the current
operation of the Company Business and the current use of the Spire Contributed
Assets, such Permits are in full force and effect, and no suspension,
cancellation or non-renewal of any such Permit is pending or, to the knowledge
of Spire, threatened.
Section 3.07. Contracts. Each Spire Contract is valid and in full force and
effect and Spire is not in material breach of, or material default under, any
such Spire Contract, and, to the Knowledge of Spire, no event has occurred that,
with notice or lapse of time (or both), would constitute such a material breach
or material default or permit termination, modification or acceleration under
any such Spire Contract. Spire has not received any written notice of material
breach, or material default under, or termination of, any Spire Contract.
Section 3.08. Taxes. Except to the extent the failure of this
representation to be true and correct would not materially adversely affect the
Company Business or the Spire Contributed Assets: (a) Spire has filed all
material Tax Returns required to be filed by it and has paid, or has adequately
reserved for the payment of, all Taxes required to be paid (whether or not shown
on any Tax Returns); (b) no material deficiencies for any Taxes have been
asserted or assessed, or, to the knowledge of Spire, proposed, against Spire
that are not subject to adequate reserves; and (c) no audit or other examination
of any Tax Return of Spire is presently in progress, nor has Spire been notified
of any request for such an audit or other examination. There are no Tax liens on
any of the Spire Contributed Assets.
Section 3.09. Sufficiency of Spire Contributed Assets. The Spire
Contributed Assets and the IT Assets, together with the Spire Transferred
Employees and the benefits to be provided by Spire to the Company pursuant to
the Transitional Services Agreement, constitute (a) all of the rights, Permits,
properties and assets (including contracts and other intangible rights and
assets, inventory, personal and tangible property and Intellectual Property) and
(b) all of the employees, in the case of both clause (a) and (b), as are
necessary for the Company Business to be conducted immediately following the
Closing on a stand-alone basis but otherwise in the same manner in all material
respects as conducted by Spire before the date hereof in the ordinary course
consistent with past practice.
15
Section 3.10. Employees; Employee Benefits. Section 3.11(a)(1) of the Spire
Disclosure Schedule includes a list of all employees, managers, officers and
temporary workers of Spire who are related to the Company Business as of the
date of such list (the "Spire Transferred Employees"). Opposite the name of each
individual on Section 3.11(a)(1) of the Spire Disclosure Schedule is the
position held by such individual, their date of hire by Spire, their salary
level and their leave status, if any. Section 3.11(a)(2) of the Spire Disclosure
Schedule contains: (a) all employment agreements of Spire with Spire Transferred
Employees; and (b) all material severance programs and policies of Spire with
respect to the Spire Transferred Employees. To the Knowledge of Spire, no Spire
Transferred Employee is in material breach of such employment agreement. There
is no other employment agreement between Spire and any Spire Transferred
Employee.
Section 3.11. Spire Financials. Section 3.12 of the Spire Disclosure
Schedule sets forth a true and correct copy of the Spire Financials. The Spire
Financials were prepared in accordance with US GAAP and fairly present in all
material respects the direct revenues and direct expenses of the Company
Business for the periods indicated therein. Since December 31, 2006, the Company
Business has been conducted in the ordinary course and consistent with past
practice in all material respects. Since December 31, 2006, there have no
Liabilities arising out of or in connection with the Spire Contributed Assets,
except for Liabilities that are not material to the Spire Contributed Assets and
the Liabilities provided under Section 2.04.
Section 3.12. Intellectual Property. (a) Section 3.13(a) of the Spire
Disclosure Schedule sets forth a true and complete list of all registered Owned
Intellectual Property necessary for the use of Spire PV Technology or otherwise
used in the Spire PV Technology.
(b) Spire is the lawful owner of the entire right, title and interest in
and to the Owned Intellectual Property, and has a valid license to use the IT
Assets. Spire has sufficient rights to use all such Owned Intellectual Property
and the IT Assets in connection with the Company Business without limitation,
all of which rights shall survive unchanged after the consummation of the
transactions contemplated by this Agreement. The Spire PV Technology constitutes
all of the Intellectual Property used or held for use in the operation of the
Company Business and there are no other items of Intellectual Property that are
material to or necessary for the operation of the Spire PV Technology. The Spire
PV Technology: (i) has not been adjudged invalid or unenforceable in whole or in
part, and is valid, subsisting and enforceable; and (ii) is currently in
compliance with any and all formal legal requirements necessary to maintain the
validity and enforceability thereof. There is no Action or claim pending,
asserted or threatened, contesting or challenging the ownership, validity,
registerability or enforceability of, or Spire's right to use any Spire PV
Technology.
(c) The operation of the Spire PV Technology and the use thereof do not
infringe, misappropriate or otherwise violate or conflict with the Intellectual
Property of any third party, and no Action alleging any of the foregoing is
pending, and no claim has been threatened or asserted against Spire alleging any
of the foregoing. No Person is engaging in any activity that infringes,
misappropriates or otherwise violates or conflicts with the Spire PV Technology.
16
(d) No Spire PV Technology is subject to any outstanding decree, order,
injunction, judgment, agreement or ruling adversely affecting the use of such
Intellectual Property or that would impair the validity or enforceability of
such Intellectual Property.
(e) Spire has taken all reasonable measures to maintain the confidentiality
and value of all confidential information used in connection with the Company
Business and Spire PV Technology. No Trade Secrets have been disclosed by Spire
to any Person except that the Trade Secrets have been disclosed pursuant to a
valid and appropriate non-disclosure agreement and/or license agreement and no
law or obligation of confidentiality has been breached by such disclosure.
(f) The IT Assets are adequate for, and operate and perform in all material
respects in accordance with their documentation and functional specifications
and otherwise as required in connection with, the Company Business. The IT
Assets have not materially malfunctioned or failed within the past three (3)
years and do not contain any viruses, worms, Trojan horses, bugs, faults or
other devices, errors, contaminants or effects that significantly disrupt or
adversely affect the functionality of any IT Assets or other software or
systems, except as disclosed in Section 3.13(f) of the Spire Disclosure
Schedule. Spire has implemented reasonable backup, security and disaster
recovery technology consistent with industry practices, and no Person has gained
unauthorized access to any IT Assets.
(g) The consummation of the transactions contemplated by this Agreement
will not result in: (i) the grant of any license under or creation of any
Encumbrance on any Owned Intellectual Property used in connection with the
Company Business or the IT Assets or any Intellectual Property that is owned by
or licensed to ▇▇▇▇▇▇ prior to the Closing; or (ii) ▇▇▇▇▇▇ being: (A) bound by,
or subject to, any non-compete obligation, covenant not to ▇▇▇, or other
restriction on the operation or scope of its business; or (B) obligated to pay
any royalties, honoraria, fees or other payments to any Person in excess of
those payable by Spire prior to the Closing.
(h) Neither Spire nor any of its Affiliates has granted or agreed to grant
any license of or right to use, or authorized the retention of any rights to use
any Spire PV Technology to any third party. Neither Spire nor any of its
Affiliates has entered into any agreement granting to any third party the right
to bring infringement actions with respect to, or otherwise to enforce rights
with respect to, any of the Spire PV Technology. No Governmental Authority
funding, facilities of a university, college or research center or funding from
third parties was used in the development of any of the Spire PV Technology, as
a result of which any such Governmental Authority or institution, research
center or third party would have any material claim that would constitute a
material Encumbrance on the Spire PV Technology.
(i) Spire owns the trademarks set forth in Section 3.13(i) of the Spire
Disclosure Schedule and has the right to convey a license to the trademarks to
the Company, as set forth in the Spire-Company Trademark License Agreement.
Section 3.13. Receivables. Section 3.14 of the Disclosure Schedule contains
an aged list of the Receivables. All Receivables arose from sale of inventory
and the provision of services to Persons not affiliated with Spire and in the
ordinary course of business consistent
17
with past practice and constitute or will constitute, as the case may be, only
valid, undisputed (to the Knowledge of Spire) claims of Spire not subject (to
the Knowledge of Spire) to valid claims of setoff or other defenses or
counterclaims other than normal cash discounts accrued in the ordinary course of
business consistent with past practice. All Receivables are or will be good and
have been collected or are or will be collectible, without resort to litigation
or extraordinary collection activity, within one hundred twenty (120) days after
the Closing.
Section 3.14. Full Disclosure. Spire is not aware of any facts pertaining
to the Company Business or the Spire Contributed Assets which are reasonably
probable to have a Material Adverse Effect and which have not been disclosed in
this Agreement, the Spire Disclosure Schedule or otherwise disclosed to ▇▇▇▇▇▇
by Spire in writing. No representation or warranty of Spire in this Agreement,
nor any statement or certificate furnished or to be furnished to ▇▇▇▇▇▇ pursuant
to this Agreement, or in connection with the transactions contemplated by this
Agreement, contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ (DELAWARE)
Each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) hereby represents and warrants the
hereinbelow items to Spire, as of the date hereof and as of the Closing.
Notwithstanding the foregoing, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) shall not be liable
for breach of the representations and warranties contained herein unless the
accrued damage to Spire exceeds Five Thousand U.S. Dollars (US$5,000.00)
resulting from any single claim or multiple claims arising out of the same
facts, events or circumstances, computed cumulatively.
Section 4.01. Organization, Authority and Qualification. Each of ▇▇▇▇▇▇ and
▇▇▇▇▇▇ (Delaware) is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization.
Each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) has all necessary corporate power and
authority to enter into this Agreement and the Joint Venture Ancillary
Agreements to which it is a party, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
Each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so licensed
or qualified would not reasonably be expected to have a Material Adverse Effect.
The execution and delivery by each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) of this
Agreement and the Joint Venture Ancillary Agreements to which it is a party, the
performance by each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) of its respective
obligations hereunder and thereunder and the consummation by each of ▇▇▇▇▇▇ and
▇▇▇▇▇▇ (Delaware) of the transactions contemplated hereby and thereby have been
duly authorized by all requisite action on the part of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
(Delaware), and no other corporate proceedings on the part of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
(Delaware) is required in connection therewith. This Agreement has been, and
upon its execution, each of the Joint Venture Ancillary Agreements to which
▇▇▇▇▇▇ or ▇▇▇▇▇▇ (Delaware) is a party will be, duly
18
executed and validly delivered by ▇▇▇▇▇▇ or ▇▇▇▇▇▇ (Delaware) (as the case may
be), and (assuming, if applicable, due authorization, execution and delivery by
each of the other parties hereto and thereto) this Agreement constitutes and,
upon its execution, each of the Joint Venture Ancillary Agreements to which
▇▇▇▇▇▇ or ▇▇▇▇▇▇ (Delaware) is a party shall constitute, a legal, valid and
binding obligation of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware), enforceable against ▇▇▇▇▇▇
and ▇▇▇▇▇▇ (Delaware) in accordance with its terms. Neither ▇▇▇▇▇▇, nor ▇▇▇▇▇▇
(Delaware) has any basis to believe, in the exercise of reasonable discretion
and foresight, that a Material Adverse Effect is likely to arise from the
execution and consummation of this Agreement and the transactions hereby
contemplated.
Section 4.02. No Conflict. The execution, delivery and performance by each
of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) of this Agreement and the Joint Venture
Ancillary Agreements to which it is a party do not and will not: (a) violate or
conflict with any provision of its certificate of incorporation, Memorandum and
Articles of Association, Articles of Incorporation, or by-laws or similar
organizational documents; (b) conflict with or violate in any material respect
any Law or Governmental Order applicable to ▇▇▇▇▇▇, ▇▇▇▇▇▇ (Delaware) or any of
their respective assets, properties or business; or (c) conflict in any material
respect with, result in any material breach of, constitute a material default
(or event which with the giving of notice or a lapse of time, or both, would
become a material default) under, or result in the creation of any Encumbrance
(other than a Permitted Encumbrance) on, or give rise to any loss of material
rights under, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which
it is a party.
Section 4.03. Consents and Approvals. The execution, delivery and
performance by each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) of this Agreement and each
Joint Venture Ancillary Agreement to which it is a party do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to, any Governmental Authority or other third
Person.
Section 4.04. Absence of Litigation. There is no Action pending or, to the
knowledge of ▇▇▇▇▇▇, threatened against ▇▇▇▇▇▇ or ▇▇▇▇▇▇ (Delaware) that seeks
to restrain or enjoin or otherwise challenge the legality, validity or
enforceability of this Agreement , the Operating Agreement, or any Joint Venture
Ancillary Agreement.
Section 4.05. Export Regulations and Other Laws. Spire is subject to the
export regulations of the United States Department of Commerce and other
regulatory agencies that regulate the export from the United States of certain
technical data and information. Because of these regulations, the Parties to
this Agreement recognize that Spire may furnish such technical data to ▇▇▇▇▇▇
and ▇▇▇▇▇▇ (Delaware) only on the condition that ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware)
not re-export the technical data and/or information to any country to which
Spire may not, without a validated export license, export such data directly.
▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) acknowledge that ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Delaware) are
knowledgeable of such export regulations and agree not to violate them or take
any action or fail to take such action that would allow technical data and/or
information or any product based on them to be shipped either directly or
indirectly to any country not permitted by said regulations unless prior,
written authorization is obtained from the relevant agencies having jurisdiction
over such shipment either directly or through Spire. The Parties hereby
represent and warrant that the transaction contemplated by this Agreement does
19
not and will not result in any violation of such export regulations or any other
laws or regulations governing this Agreement by virtue of the nationality or
structure of any owners or Affiliates of ▇▇▇▇▇▇ or ▇▇▇▇▇▇ (Delaware).
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.01. Access to Information. In order to facilitate the resolution
of any claims made by or against or incurred by ▇▇▇▇▇▇ after the Closing or for
any other reasonable purpose, for a period of seven (7) years following the
Closing, Spire shall: (a) retain the books and records of Spire which relate to
the Company Business and the Spire Contributed Assets (including the Spire PV
Technology) for periods prior to the Closing and which shall not otherwise have
been delivered to ▇▇▇▇▇▇; and (b) upon reasonable notice, afford the officers,
employees, agents and representatives of ▇▇▇▇▇▇ reasonable access (including the
right to make photocopies, at Gloria's expense), during normal business hours,
to such books and records.
Section 5.02. Confidentiality. Spire agrees to, and shall cause its agents,
representatives, Affiliates, employees, officers and directors to: (a) treat and
hold as confidential (and not disclose or provide access to any Person to) all
confidential or proprietary information with respect to the Company Business,
the Spire Contributed Assets (including the Spire PV Technology) and the ▇▇▇▇▇▇
Parties; (b) in the event that Spire or any such agent, representative,
Affiliate, employee, officer or director becomes legally compelled to disclose
any such information, provide ▇▇▇▇▇▇ with prompt written notice of such
requirement so that ▇▇▇▇▇▇ may seek a protective order or other remedy or waive
compliance with this Section 5.02; (c) in the event that such protective order
or other remedy is not obtained, or ▇▇▇▇▇▇ waives compliance with this Section
5.02, furnish only that portion of such confidential information which is
legally required to be provided and exercise its commercially reasonable efforts
to obtain assurances that confidential treatment will be accorded such
information; and (d) promptly furnish to ▇▇▇▇▇▇ any and all copies of all such
confidential information then in the possession of Spire or any of its agents,
representatives, Affiliates, employees, officers or directors and destroy any
and all additional copies then in the possession of Spire or any of its agents,
representatives, Affiliates, employees, officers or directors of such
information and of any analyses, compilations, studies or other documents
prepared, in whole or in part, on the basis thereof; PROVIDED, HOWEVER, that
this sentence shall not apply to any information that, at the time of
disclosure, is available publicly and was not disclosed in breach of this
Agreement by Spire, its agents, representatives, Affiliates, employees, officers
or directors.
Section 5.03. Third Party Consents. Spire shall, at its own expense, give
promptly notices to third parties and use commercially reasonable efforts to
obtain the third party consents listed on Section 3.03 of the Spire Disclosure
Schedule, including, without limitation, the third party consents required in
connection with the Assignment and Assumption Agreement as soon as practicable
but in no event later than sixty (60) days following the Closing. The Parties
hereby agree that the failure by Spire to obtain any of such third party
consents shall constitute a Material Breach (as defined in the Operating
Agreement) under the Operating
20
Agreement and ▇▇▇▇▇▇ or ▇▇▇▇▇▇ (Delaware) shall have the right to enforce
Article 13 of the Operating Agreement.
Section 5.04. Notice of Developments. Until each Party obtains all
authorizations, consents, orders and approvals of all Governmental Authorities
and third parties set forth in Section 5.03 above, such Party shall promptly
notify each other Party in writing of: (a) all events, circumstances, facts and
occurrences arising subsequent to the date of this Agreement which could result
in any breach of a representation or warranty or covenant of the notifying Party
in this Agreement or which could have the effect of making any representation or
warranty of the notifying Party in this Agreement untrue or incorrect in any
respect; and (b) all other material developments affecting the Company Business,
the Spire Contributed Assets and the Spire PV Technology.
Section 5.05. Tax Cooperation and Exchange of Information. The Parties
shall provide each other with such cooperation and information as either of them
reasonably may request of the other relating to the Spire Contributed Assets
(including access to books and records) as is reasonably necessary for: (a)
filing any Tax Return, amended Tax Return or claim for refund; (b) determining a
liability for Taxes or a right to a refund of Taxes; or (c) participating in or
conducting any audit or other proceeding in respect of Taxes. Each of the
Parties shall retain all Tax Returns, schedules and work papers, records and
other documents in its possession (or in the possession of its Affiliates)
relating to Tax matters relevant to the Spire Contributed Assets for each
taxable period first ending after the Closing and for all prior taxable periods
until the later of: (i) the expiration of the statute of limitations of the
taxable periods to which such Tax Returns and other documents relate, without
regard to extensions except to the extent notified by the other Party in writing
of such extensions for the respective Tax periods; and (ii) six (6) years
following the due date (without extension) for such Tax Returns.
Section 5.06. Conveyance Taxes. Spire shall be liable for and shall hold
▇▇▇▇▇▇ harmless against any Conveyance Taxes which become payable in connection
with the transactions contemplated by this Agreement. Spire, after the review
and consent by ▇▇▇▇▇▇, shall file such applications and documents as shall
permit any such Conveyance Tax to be assessed and paid on or prior to the
Closing in accordance with any available pre-sale filing procedure.
Section 5.07. Spire Transferred Employees. (a) Within thirty (30) days
after Closing, (i) the Parties shall cause the Company to offer employment to
*** and each of the other Spire Transferred Employees by sending an offer letter
with terms mutually acceptable to Parties (the "Offer Letter"); and (ii) Spire
shall cause *** and each of the other Spire Transferred Employees to accept such
offer and enter into an Employment Agreement substantially in the form of
Exhibit A (the "Employment Agreement") and the Severance Agreement and Release
substantially in the form of Exhibit B attached hereto (the "Severance Agreement
and Release").
(b) *** hereby acknowledges and accepts *** interim appointment as an agent
and Manager of the Company, as of the Closing, effective until the sooner of the
satisfaction of clause (ii) in the foregoing paragraph, or thirty (30) days from
the Closing. During such interim period, Spire shall continue to pay, at its own
expense, the customary salary
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
21
and benefits of ***, and acknowledges *** primary duty, as an officer from
Closing, to the Company.
(c) Spire shall use commercially reasonable efforts to cause each of the
other Spire Transferred Employees to accept the Company's offer and enter into
the Employment Agreement and the Severance Agreement and Release within thirty
(30) days after the Closing.
Section 5.08. IT Assets License Agreement. ***.
Section 5.09. Joint Venture Ancillary Agreements. At the Closing, each
Party shall, and shall cause the Company to, enter into each Joint Venture
Ancillary Agreement to which such Party or the Company (as the case may be) is a
party.
Section 5.10. Non-Competition. Neither ▇▇▇▇▇▇ nor Spire shall, directly or
indirectly, compete with the Company in the design, marketing, sale,
installation coordination, or project management of PV Systems in the United
States by using PV Modules or any other type of photovoltaic
electricity-generating panels (***). For three (3) years from the date hereof,
Spire shall not mass manufacture, market, or sell any PV Modules throughout the
world. Beginning on the fourth (4th) anniversary of the date hereof, Spire shall
only be allowed to sell PV Modules as a commodity item outside of the United
States. Subject to the foregoing restrictions, Spire shall have the right to
continue to do the following on a non-exclusive basis: (i) design, build, and
sell PV Module manufacturing equipment, including sales of any advanced
manufacturing equipment line to produce PV Systems for Spire's customers,
including customers in all fields (specifically including, without limitation,
customers seeking to build utility-scale electric generation stations and
customers seeking to build equipment suitable for building such manufacturing
equipment, whether conducted by Spire directly or under license (or sublicense)
from Spire); (ii) receive CE markings and Underwriters Laboratories listings;
(iii) instruct module design theory and assembly processes to customers; (iv)
design and produce prototype modules in support of manufacturing equipment sales
or research and development programs; (v) use the Spire PV Technology to sell PV
Modules and PV Systems, pursuant to the above-stated restrictions, and to
conduct all PV Systems business on a non-exclusive basis, in any territory other
than the United States, and including, without limitation, as allowed pursuant
to the Technology License Agreement; and (vi) develop, research, enhance,
perfect, file letters patent on, retain trade secrets on, sell, license, or
otherwise use Spire Intellectual Property, provided that if Spire develops any
new PV Module technology during the term of this Agreement, Spire shall be
prevented from any market launch of such technology for one (1) year from the
date of the Closing, and Spire shall, in good faith, offer to license the new PV
Module
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
22
technology to ▇▇▇▇▇▇ and the Company pursuant to a long-term intellectual
property license agreement on commercially reasonable terms and conditions. For
the avoidance of doubt, ▇▇▇▇▇▇ shall have the right to sell PV Modules as a
commodity item throughout the world.
Section 5.11. Further Action. Upon the terms and subject to the conditions
of this Agreement, each of the Parties shall use its commercially reasonable
efforts to take, or cause to be taken, all appropriate action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
Laws, and execute and deliver such documents and other papers, as may be
required to carry out the provisions of this Agreement, the Operating Agreement,
and the Joint Venture Ancillary Agreements and to consummate and make effective
the transactions contemplated hereby.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Survival of Representations and Warranties. The
representations and warranties of the Parties contained in this Agreement, the
Operating Agreement, and the Joint Venture Ancillary Agreements shall survive
the Closing until sixty (60) days after the expiration of the relevant statute
of limitations for the Liabilities in question; PROVIDE, HOWEVER, that the
representations and warranties made pursuant to Sections 3.01, 3.02, 3.04, 3.09,
4.01 and 4.02 shall survive indefinitely. Neither the period of survival nor the
liability of a Party with respect to such Party's representations and warranties
shall be reduced by any investigation made at any time by or on behalf of the
other Party. If written notice of a claim has been given prior to the expiration
of the applicable representations and warranties, then the relevant
representations and warranties shall survive as to such claim, until such claim
has been finally resolved.
Section 6.02. Indemnification. (a) The ▇▇▇▇▇▇ Parties and their Affiliates,
officers, directors, employees, agents, successors and assigns (each a "▇▇▇▇▇▇
Indemnified Party") shall be indemnified and held harmless by Spire (the
"Indemnifying Party") for and against any and all Liabilities, losses, damages,
claims, costs and expenses, interest, awards, judgments and penalties (including
attorneys' and consultants' fees and expenses) actually suffered or incurred by
the Indemnified Parties (including any Action brought or otherwise initiated by
any of them) (hereinafter a "Loss") arising out of or resulting from:
(i) the breach of any representation or warranty made by Spire contained in
this Contribution Agreement or any Joint Venture Ancillary Agreement;
(ii) the breach of any covenant or agreement by Spire contained in this
Contribution Agreement or any Joint Venture Ancillary Agreement;
(iii) Excluded Liabilities; and
(iv) any and all Losses suffered or incurred by ▇▇▇▇▇▇ or any of its
Affiliates, officers, directors, employees, agents, successors and assigns by
reason of or in connection with any claim or cause of action of any third party
to the extent arising out of
23
any action, inaction, event, condition, liability or obligation of Spire
occurring or existing prior to the Closing.
(b) Spire and its Affiliates, officers, directors, employees, agents,
successors and assigns (each a "Spire Indemnified Party") shall be indemnified
and held harmless by ▇▇▇▇▇▇ (the "Indemnifying Party") for and against any and
all Losses arising out of or resulting from:
(i) the breach of any representation or warranty made by ▇▇▇▇▇▇ contained
in this Agreement or any Joint Venture Ancillary Agreement; and
(ii) the breach of any covenant or agreement by the ▇▇▇▇▇▇ Parties
contained in this Agreement or any Joint Venture Ancillary Agreement.
(c) However and notwithstanding clauses (a) and (b) above: (i) an
Indemnified Party shall not be liable for any claim for indemnification pursuant
to this Section 6.02, unless and until the aggregate amount of indemnifiable
Losses which may be recovered from the Indemnifying Party equals or exceeds
Twenty-Five Thousand US Dollars (US$25,000.00), whereupon the Indemnified Party
shall be entitled to indemnification for the full amount of such Losses.
ARTICLE VII
TERMINATION AND WAIVER
Section 7.01. Termination. This Agreement may be terminated at any time:
(a) by any Party if the Closing shall not have occurred as of the date
hereof; PROVIDED, HOWEVER, that the right to terminate this Agreement under this
Section 7.01(a) shall not be available to any Party whose failure to fulfill any
obligation under this Agreement shall have been the cause of, or shall have
resulted in, the failure of the Closing to occur on such date;
(b) by Spire if the ▇▇▇▇▇▇ Parties fails to make the ▇▇▇▇▇▇ ▇▇▇▇
Contribution pursuant to Section 2.04;
(c) by any Party in the event that any Governmental Authority shall have
issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become final
and nonappealable;
(d) by any Party in the event that any other Party: (i) terminates the
Operating Agreement or the Asset Purchase Agreement; or (ii) defaults under,
breaches, or fails to perform any of the material obligations, covenants, or
agreements (such default or breach hereinafter a "Material Breach") contained in
the Operating Agreement or the Asset Purchase Agreement, and such Material
Breach is not remedied within thirty (30) days after notification thereof by the
non-defaulting Party; PROVIDED, HOWEVER, that the right to terminate this
Agreement under this Section 7.01(d) shall not be available to any Party whose
failure to fulfill any obligation under
24
the Operating Agreement or the Asset Purchase Agreement, as the case may be,
shall have been the cause of, or shall have resulted in, the termination or
Material Breach, as the case may be;
(e) by the mutual written consent of Spire and ▇▇▇▇▇▇; or
(f) by any Party upon a material breach by the other Party of its
representation, warranty, covenant or agreement set forth in this Agreement if
such breach is not curable within thirty (30) days after a written notice of
such breach is provided to the breaching party.
Section 7.02. Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.01, this Agreement shall forthwith become
void and there shall be no liability on the part of any Party except: (a) as set
forth in Sections 5.02 and 8.01; (b) that nothing herein shall relieve any Party
from liability for any breach of this Agreement; and (c) that the Parties shall
liquidate the Company pursuant to the applicable Law and the Operating
Agreement.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the Party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
Section 8.02. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by courier
service, by fax or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specification notice given in
accordance with this Section 8.02:
(a) if to Spire:
Spire Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Operating Officer
(b) if to ▇▇▇▇▇▇:
▇▇▇▇▇▇ Solar Co., Ltd.
▇▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇-▇▇▇ Dist., ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of China
Facsimile: ▇▇▇▇-▇-▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇, Chief Operating Officer
25
(c) if to ▇▇▇▇▇▇ (Delaware):
▇▇▇▇▇▇ Solar Co., Ltd.
▇▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇-▇▇▇ Dist., ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of China
Facsimile: ▇▇▇▇-▇-▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇, Chief Operating Officer
Section 8.03. Publicity. So long as this Agreement is in effect, no Party
shall issue or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this Agreement
without the consent of the other Party, except as such release or announcement
may be required by Law or the rules or regulations of any securities exchange,
in which case the Party required to make the release or announcement shall, to
the extent practicable, allow the other Parties reasonable time to comment on
such release or announcement in advance of such issuance
Section 8.04. Severability. If any term or provision of this Agreement is
held by a court or arbitral panel of competent jurisdiction to be in violation
of any applicable Law, judicial decision or public policy, and if such court or
arbitral panel declares such term or provision to be illegal, invalid, unlawful,
void, voidable or unenforceable as written, then such provision shall be given
full force and effect to the fullest possible extent that it is legal, valid and
enforceable, and the remainder of the terms and provisions shall be construed as
if such illegal, invalid, unlawful, void, voidable or unenforceable term or
provision was not contained herein, but only to the extent that giving effect to
such provision and the remainder of the terms and provisions shall be in
accordance with the intent of the Parties.
Section 8.05. Entire Agreement. The Primary Transaction Agreements and the
Ancillary Agreements constitute the entire agreement of the Parties with respect
to the subject matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, among the Parties with respect to the
subject matter hereof and thereof.
Section 8.06. Interpretation. In the event of any inconsistency among the
terms and conditions of the Primary Transactions Agreements related to the
subject matter herein, the terms and conditions shall govern in the following
order: (a) the Operating Agreement; (b) this Agreement; (c) the Asset Purchase
Agreement. In the event of any inconsistency among the terms and conditions of
this Agreement and the Joint Venture Ancillary Agreements related to the subject
matter herein, the terms and conditions of this Agreement shall govern over the
Joint Venture Ancillary Agreements. In the event of a minor inconsistency
between such documents, the provisions thereof shall be interpreted so as to
minimize any such inconsistency, to be read as a harmonious whole.
Section 8.07. Assignability and Parties in Interest. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or
26
obligations hereunder shall be assigned by any Party without the prior, written
consent of the other Party, except as provided herein; PROVIDED, HOWEVER, that
this Agreement or any of its rights and obligations hereunder may be assigned by
any Party to one or more of its Affiliates without the prior written consent of
the other Parties. The rights and remedies of this Agreement are intended solely
for the benefit of the Parties, their successors and permitted assigns and are
not intended to create or confer any rights or obligations enforceable by any
third party, except as otherwise provided by applicable Law.
Section 8.08. Amendments and Waivers. (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by all Parties, or in the case of a
waiver, by the Party against whom the waiver is to be effective.
(a) No failure or delay by any Party in exercising any right, power or
privilege hereunder (other than a failure or delay beyond a period of time
specified herein) shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by Law.
Section 8.09. Specific Performance. Spire agrees that the ▇▇▇▇▇▇ Parties
would suffer irreparable damage in the event any provision of this Agreement was
not performed by Spire in accordance with the specific terms hereof and that the
▇▇▇▇▇▇ Parties shall be entitled to specific performance of such terms, in
addition to any other remedy at law or in equity.
Section 8.10. Nondisclosure of Terms of Agreement. Each Party agrees that
it shall not disclose the terms of this Agreement, other than to its agents,
officers, attorneys, accountants, and other required professionals, without the
consent of the other Party, except to the extent required by Law or Governmental
Orders or unless served with compulsory process in any judicial proceeding, in
which event, such Party agrees to give prompt notice to the other Parties of the
compulsory process.
Section 8.11. Governing Law. This Agreement shall be governed by the laws
of the State of Delaware (regardless of the laws that might otherwise govern
under applicable principles of conflicts of law) as to all matters, including,
without limitation, matters of validity, construction, effect, performance, and
remedies.
Section 8.12. Dispute Resolution. (a) If any dispute is not resolved within
fourteen (14) days after the notice given by the Party raising such dispute to
the other, either Party may give notice to the other Party of this failure and,
thereupon, may commence Arbitration pursuant to clause (b) herein below. The
Parties hereby exclude recourse to the courts, unless required for urgent
interim measures of protection, such as the threat of irreparable harm.
(b) The Arbitration proceedings shall be conducted under the rules of
Arbitration of the International Chamber of Commerce. The place of arbitration
shall be Singapore. The arbitration shall be conducted in the English language
and there shall be three
27
arbitrators, with Spire and any ▇▇▇▇▇▇ Party each picking one arbitrator, and
the two arbitrators picking a third arbitrator.
(c) In the resolution of the dispute, the arbitrators shall give effect to
the letter and the spirit of this Agreement and, where necessary, reconcile
conflicting provisions of the Agreement in this spirit. In case of conflict
between the Agreement and the applicable Law, the arbitrators shall give effect
to this Agreement and the reasonable intentions and expectations of the Parties.
Section 8.13. Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have caused this Contribution Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
SPIRE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CEO
▇▇▇▇▇▇ SOLAR CO., LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: COO
▇▇▇▇▇▇ SOLAR (DELAWARE) COMPANY, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: COO
ACKNOWLEDGED AND AGREED
By: /s/ ***
------------------------
Name: ***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
29