EXHIBIT 10(n)
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Confidential Treatment Requested as to certain information contained in this
Exhibit 10(n) and filed separately with the Securities and Exchange Commission.
DEVELOPMENT, MANUFACTURING, AND SALES
CONSORTIUM AGREEMENT
THIS CONSORTIUM AGREEMENT is made, with the effective date of 16 May 2005
(hereinafter "Effective Date") by and between:
NISSHINBO INDUSTRIES, INC. (hereinafter "Nisshinbo") a corporation organized
under the laws of Japan, with its principal office at 2-31-11, Ningyo-cho,
Nihonbashi, Chuo-ku, Tokyo 103-8650, Japan, and,
SPIRE CORPORATION, (hereinafter "Spire") a corporation organized under the laws
of the Commonwealth of Massachusetts in the United States of America, with its
principal office at One Patriots Park, Bedford, MA 01730-2396, U.S.A.
Each a "Party" (such term to include each Party's respective affiliates and
subsidiaries), and together the "Parties."
WHEREAS:
(A) Nisshinbo is a company registered in Japan and organized for the
business purpose of, among other things, the fabrication of general
manufacturing equipment.
(B) Spire is a company registered in the Commonwealth of Massachusetts
and organized for the business purpose of, among other things, the
fabrication of equipment used to manufacture solar photovoltaic
modules.
(C) Nisshinbo wishes to obtain a firm position in the market for solar
photovoltaic module manufacturing equipment by cooperating with a
leading entity in that industry.
(D) Spire wishes to form a relationship with a party who has a
reputation for building quality fabrication and factory equipment
with whom it may cooperate to improve its technical expertise,
manufacturing capability, and sales capability.
(E) The Parties have concluded that their individual capabilities and
requirements are sufficiently congruent to form a Consortium so
that they may collaborate to promote their individual and joint
interests.
(F) This Agreement sets forth the respective rights and obligations of
the Parties with respect to the Consortium.
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ARTICLE 1. DEFINITIONS
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1.1 "Agreement" shall mean this Consortium Agreement and all of its
appendices and exhibits that are attached hereto as may be amended
from time to time in accordance with its terms.
1.2 "Consortium" shall mean the cooperative relationship between the
Parties hereto for the purpose of their joint development of
technology, their joint management of efficiently coordinated
marketing and sales efforts, and the utilization of their joint
fabrication capabilities in the solar photovoltaic module
manufacturing equipment industry for mutual and individual benefit.
1.3. "Technology" shall mean the methods of engineering, designing,
manufacturing, testing, repairing and servicing the solar
photovoltaic module manufacturing equipment and its components,
processes and associated parts which are currently used, or under
development, or as will be developed during the Term by the Parties,
including without limitation:
a. "Existing Technology" shall mean all the Technology that Spire has
acquired (whether directly or indirectly) as of the Effective Date in
respect of the Equipment listed in Exhibit No.1.
b. "Developing Technology" shall mean all the Technology that Spire has
under development as at the Effective Date in respect of the
Equipment listed in Exhibit No. 1.
c. "New Technology" shall mean all the Technology that each Party will
acquire (whether directly, indirectly, jointly or severally) during
the Term as from the Effective Date, which excludes the Existing and
Developing Technology.
d. "Revolutionary Technology" shall mean all the Technology that each
Party will acquire (whether directly, indirectly, jointly or
severally) during the Term as from the Effective Date where the
motivating concept behind the Technology fundamentally departs from
what the Parties currently use.
1.3.2 "Nisshinbo Existing Technology" shall mean any change, enhancement
and improvement that has been made to the Existing Technology by
Nisshinbo as sub-licensee to a previous licensee of Spire and that
has already been in commercial use. ***
1.4 "Territory" shall mean the world, ***
*** 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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1.5 "Equipment" shall mean all units of solar photovoltaic module
manufacturing equipment and their components, processes and
associated parts that use Technology as defined in Article 1.3.1 and
regardless of which Party manufactures it.
1.6 "Customer(s)" shall mean the end users to whom the Parties shall sell
the Equipment during the Term.
1.7 "Program(s)" shall mean an effort, whether undertaken by either Party
individually or both Parties collectively, during the Term, in which
advancements or improvements in the Technology are deliberately
sought.
1.8 "Management Team" shall mean the group of management personnel
representing each of the Parties and who shall take joint
responsibility for the operation and administration of this
Agreement. The Management Team will consist of two representatives
and two alternates nominated by each Party.
1.9 "Term" shall mean the period during which this Agreement is in
effect.
1.10 "Third Party(ies)" shall mean, for the purposes of this Agreement,
all unrelated sales agents, sales representatives, distributors,
systems integrators, service subcontractors or other such similar
persons.
ARTICLE 2. SCOPE AND PURPOSE OF AGREEMENT
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2.1 The purpose of this Agreement is for the Parties to create and
utilize a cooperative relationship that employs the strengths,
capabilities and goals of each Party to their joint advantage. The
Parties will, therefore, collaborate in the development of the
Equipment and possibly other equipment which they will together
endeavor to sell throughout the Territory in accordance with their
respective obligations under this Agreement. Spire will bring to this
relationship its long experience in engineering and building the
Equipment as well as marketing and selling such Equipment; Nisshinbo
will bring to the relationship its long experience at building
precision equipment in general as well as marketing and selling such
Equipment. Each Party contributes certain marketing and sales
strengths with respect to certain customers. The Parties shall
provide all reasonable cooperation to each other in good faith in the
best interest of the Consortium in order to promote the successful
performance of these principal objectives and shall refrain from any
action or conduct, which may work contrary to such objectives.
2.2 The scope of this Agreement is limited to the joint development,
engineering, manufacturing, marketing and sales of the Equipment,
which shall include, for the avoidance of doubt, activities that
encompass development (including improvement), design, manufacture,
operation, service and repair, marketing and sales. Activities
*** 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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that do not relate to the photovoltaic module manufacturing equipment
industry are outside the scope of this Agreement.
2.3 This Agreement is entered into solely for the purposes stated in this
Agreement. This Agreement is mutually exclusive to each Party and
except as provided for in Article 2.4 below neither Party may enter
into the same or similar agreements with any other Party.
2.4 Notwithstanding Article 2.3, either Party may enter into any
agreement with a Third Party from their respective Focus Territory in
accordance with the following provisions:
(a) If any Party wishes to enter into an agreement under this Article
2.4, that Party must give full disclosure of the identity of the
Third Party and the nature and scope of such agreement to the other
Party and the Management Team.
(b) The Management Team shall review all disclosures and take each such
request to appoint a Third Party into consideration. The Parties
are required to withhold any action in respect of such Third Party
until the Management Team has (within 14 days of such disclosure)
reached a decision regarding the same.
(c) The Management Team shall approve such Third Party appointment with
or without limitation, or reject such Third Party appointment. The
Management Team's decision shall be final and binding on the
Parties hereto.
(d) This Article does not apply to any existing Third Party
relationship, as per Article 8.3, as of the Effective Date. Both
Parties will disclose all such existing appointments to the other
Party. However, any renewal or extension of these agreements will
be subject to this Article.
ARTICLE 3. LICENSE TO EXISTING AND DEVELOPING TECHNOLOGY
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3.1 Upon execution of this Agreement and for the consideration provided
herein, Spire grants to Nisshinbo an exclusive license, subject to
the qualification stated in Article 3.2, to use the Existing and
Developing Technology to manufacture, market, sell, operate, service
and repair the Equipment anywhere in the Territory during the Term,
provided that this license shall not preclude Spire from individually
using the Existing and Developing Technology to manufacture, market,
sell, operate, service and repair the Equipment in the Territory.
Nisshinbo shall not sub-license any of its rights granted under this
Article 3.1 without the written approval of Spire.
3.2 To the extent that the Existing and Developing Technology is funded
or sponsored by U.S. Government, Spire may be required to license it
to other parties subject to certain U.S. Government regulations.
Spire may grant limited licenses of the Existing and Developing
Technology to other parties for the purpose of subcontracting the
manufacture of some or all of the Equipment. No such license will be
granted that may conflict with the general license granted under
Article 3.1 of this Agreement. If any purported grant is found by the
Management Team and/or competent authority to conflict with this
Agreement, such grant shall be considered void and will be repudiated
without affecting the validity of the general license granted under
Article 3.1.
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3.3 The Parties acknowledge that the Existing and Developing Technology
is the property of Spire.
3.4 Following the expiration or termination of this Agreement for any
reason set forth in Articles 11 and 12, and upon all payments being
satisfied as described in Articles 6, 11 (in case of Nisshinbo's
rejection for any reason to enter into a new consortium agreement
only), and 12 (in case of termination for material breach or
convenience of Nisshinbo only), Spire shall grant Nisshinbo a
perpetual, royalty-free, non-exclusive right to use all of the
Existing and Developing Technology for any purpose anywhere in the
Territory.
ARTICLE 4. LICENSE TO NEW AND REVOLUTIONARY TECHNOLOGY
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4.1 Where Nisshinbo made less investment into the New and Revolutionary
Technology than that made by Spire, Spire shall own the New and
Revolutionary Technology and, for the consideration provided herein,
Spire hereby grants to Nisshinbo a non-exclusive license to use
Spire's New and Revolutionary Technology to manufacture, market,
sell, operate, service and repair the Equipment anywhere in the
Territory during the Term.
4.2 Where Spire made less investment into the New and Revolutionary
Technology than that made by Nisshinbo, Nisshinbo shall own the New
and Revolutionary Technology and, for the consideration provided
herein, Nisshinbo hereby grants to Spire a non-exclusive license to
use Nisshinbo's New and Revolutionary Technology to manufacture,
market, sell, operate, service and repair the Equipment anywhere in
the Territory during the Term.
4.3 In case that each Party has made an equivalent investment into the
New and Revolutionary Technology, both Parties shall jointly own the
New and Revolutionary Technology and shall have full rights to use
the New and Revolutionary Technology in the Territory. Upon
termination or expiration of this Agreement, both Parties shall be
able to use all jointly owned New and Revolutionary Technology to
manufacture, market, sell, operate, service and repair the Equipment
in the Territory. However, for a period of five (5) years after the
termination or expiration of this Agreement, no sublicense or
transfer of the subject Technology may occur, except in the event one
Party wishes to exit the solar photovoltaic module manufacturing
equipment business where it will have the full right to sell or
assign the New and Revolutionary Technology, however it must first
offer the New and Revolutionary Technology under consideration to the
other Party before offering to a third party.
4.4 Upon termination or expiration of this Agreement, all granted
licenses to New and Revolutionary Technology that originated from
Individual Programs shall be void. The Party that owns the subject
Technology as determined by Articles 4.1 and 4.2 shall have full
rights to such New and Revolutionary Technology. However, any time
prior to termination or expiration, each Party shall have the right
to buy a fully paid up royalty free license to the other Party's
Individual Programs subject to the sublicense and transfer conditions
imposed in this Agreement upon the payment of an mutually
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agreeable commensurate investment by the non-owning Party. Thereafter
the subject New and Revolutionary Technology shall be jointly owned
by the Parties in accordance with Article 4.3.
4.5 Upon termination or expiration of this Agreement, all granted
licenses to New and Revolutionary Technology that originated from
Joint Programs where the level of investment was unequal, shall be
void and then the owning Party shall grant to the other Party a
perpetual royalty-bearing, non-exclusive, non-sublicenseable license
to use subject New and Revolutionary Technology to manufacture,
market, sell, operate, service and repair the Equipment in the
Territory. The Parties shall execute a new agreement under similar
terms as contained in this Agreement. However, at any time prior to
termination or expiration, each Party having the right to buy a fully
paid up royalty-free license to the other Party's Joint Programs
subject to the sublicense and transfer conditions imposed in this
Agreement upon the payment of an mutually agreeable commensurate
investment by the non-owning Party. Thereafter the subject New and
Revolutionary Technology shall be jointly owned by the Parties in
accordance with Article 4.3.
ARTICLE 5. OTHER LICENSES GRANTED
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5.1 Each Party hereby grants to the other limited rights in the use of
that Party's primary trademarks and any other relevant trademark
belonging to it throughout the Term for uses relating to the purpose
of this Agreement. A list of all such trademarks is included in
Exhibit No. 4.
5.2 Each Party hereby grants to the other rights in the use of all
copyrighted materials that have been written and/or published by such
Party for the operation, repair, servicing and marketing and sales of
the Equipment. The fees and expenses for translating such copyright
materials into a Party's own language shall be borne by the Party
intending to make use of such copyright materials. The Party that
originally created such copyright materials in its own language
assumes no liability for any damages that result from any
mistranslation by the Party seeking to make use of such copyright
materials.
5.3 Each unit of Equipment contracted after the Effective Date shall, as
soon as possible thereafter, bear the name of the manufacturer of the
unit and an identification motif of the Consortium: such motif to be
located in the same area as the manufacturer's name. The Parties
shall agree to confirm the form and location of such identification
motif as soon as practicable after the Effective Date.
5.4 The Parties may create a specific brand to refer to the Equipment
sold by either Party under this Agreement. This brand and its
trademark representation will be the joint property of both Parties
in any jurisdiction in which it is registered, and all such costs to
create such brand and register any associated trademark shall be the
Parties' joint responsibility.
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ARTICLE 6. SCHEDULE OF PAYMENTS
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6.1 As soon as possible on or after the Effective Date, but no later than
fifteen (15) business days following the Effective Date, Nisshinbo
shall pay Spire Four Hundred Million Japanese Yen (JPY400,000,000).
This payment shall be made via wire transfer into Spire's account at
Citizens Bank of Massachusetts, the account details to be provided
separately. The payment due under this Article 6.1 shall be net of
all exchange fees, i.e. such fees to be borne by Spire with the
exception of any wire transfer fee(s) which shall be borne by
Nisshinbo. This payment is made in consideration of the License
granted hereunder in respect of the Existing and Developing
Technology as detailed in Article 3.
6.2 Not more than one (1) calendar month following the end of each of the
forty (40) quarters of the Term, Nisshinbo shall pay to Spire a ***
royalty that is equal to *** of the Nisshinbo invoice price ("***
Royalty") for every unit of Equipment (excluding Equipment using the
Revolutionary Technology) that is shipped according to the negotiated
INCOTERM to the Customer(s) or Third Party(ies) outside of Japan, or
finally accepted by Japanese Customer(s) or Third Party(ies), during
that quarter. The invoice price includes training, installation,
initial spare parts, any integrated systems, advanced functions or
other similar add-ons, but excludes any ancillary mechanisms
purchased or obtained by Nisshinbo from third parties (e.g. curing
furnace) and any non-integrated apparatus unrelated to the Equipment
itself (e.g. conveyer). For the purpose of this Agreement, the
invoice price is net of all shipping charges, taxes, and duties.
Nisshinbo shall report to Spire at the conclusion of each quarter
(but not more than ten (10) business days after), details of what
Equipment was shipped to which Customer(s) or Third Party(ies) and
what Equipment having been previously shipped was finally accepted by
the Customer(s) and Third Party(ies) and the revenue accrued with
each shipment/final acceptance. For this reason, notwithstanding the
usual practice Nisshinbo uses when quoting prices to its Customer(s)
or Third Party(ies), Nisshinbo shall provide final invoice price
information in this report sufficiently detailed to demonstrate the
amount of payments that Nisshinbo is required to make for that
quarter under this Article. The *** Royalty shall be denominated in
Japanese Yen. For avoidance of doubt, Nisshinbo shall not be required
to pay the *** Royalty for the Equipment using the Revolutionary
Technology. Also, the *** Royalty shall be accrued only for the Term
(i.e. for the ten (10) years period from the Effective Date subject
to the early termination based on Article 12) and, thereafter,
Nisshinbo shall not be obliged to pay the *** Royalty, except that
the Royalty payments provided for in this Article and that provided
in Article 6.3 below shall be payable, in the final year of the Term
(as a result of expiration or termination), on all orders received by
either Party, whether or not shipped or finally accepted during the
Term.
6.3 Not more than one (1) calendar month after the end of each forty (40)
quarters of the Term, Nisshinbo shall pay to Spire the *** Royalty
plus a *** on all Equipment which incorporate elements of the
Developing Technology and/or the New Technology in which Nisshinbo
has not fully shared costs, for each unit of Equipment shipped (as
used in Article 6.2) to a Customer or Third Party(ies) during that
quarter. *** In any case where Nisshinbo has made an investment in
the development costs for such Developing or New Technology, whether
already accrued by Spire or are projected for
*** 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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the completion of a Project as defined herein, that is equal to the
amount paid by Spire or that will be paid by Spire, *** In any case
where Nisshinbo has made a partial investment in such Developing or
New Technology, but not to the extent where such investment is equal
to that amount paid, or to be paid, by Spire, then *** The obligation
to pay the *** under this Article 6.3 is binding upon Spire in any
case where Equipment sold by Spire has incorporated a New Technology
into which Nisshinbo made more investment than that made by Spire,
and such payment of the *** shall be made on the same calculation
principle as stated herein. The *** under this Article 6.3 is
denominated in the currency of the Party making the payment.
6.4 In case that each Party has made an equivalent investment into the
New Technology, the both Parties shall jointly own the New Technology
and shall have full rights to use the New Technology in the Territory
and no *** shall be due either Party. Where Nisshinbo made less
investment into the New Technology than Spire's, Spire shall own the
New Technology and grant Nisshinbo a license of it in accordance with
to Article 4.1 and Nisshinbo shall pay the *** as determined by
Article 6.3. When Spire made less investment into the New Technology
than that made by Nisshinbo, Nisshinbo shall own the New Technology
and grant Spire a license in accordance with to Article 4.2 and Spire
shall pay the *** as determined by Article 6.3.
6.5 Any Revolutionary Technology in which each Party has made an
equivalent investment shall be jointly owned and neither Party shall
be required to make any royalty payments as provided for in this
Article 6 to each other. However, in any case where the investments
made by the Parties are not equivalent, a Party making the majority
investment shall own the Revolutionary Technology and grant a license
to the other Party as per Articles 4.1 and 4.2, provided however
that, in such case, the *** Royalty shall not be required and only
the *** shall be required in accordance with Article 6.3.
6.6 Either Party shall have the right, at any time in the first quarter
of each year of the Term, and the first quarter after expiration or
termination for any reason to conduct an audit of the relevant
financial and accounting records of the other during regular business
hours and with reasonable notice to that Party. Such audit will be
conducted at the sole expense of the auditing Party, but with the
reasonable cooperation of the audited Party, except that in any case
where the auditing Party detects a discrepancy of greater than five
(5) percent of the invoice price described by Article 6.2, then the
audited Party shall pay all associated costs of such audit.
6.7 Neither Party shall withhold any funds for the payment of taxes from
any of the payments made pursuant to the provisions of this Article
unless required under the taxation law of the U.S. or Japan, as the
case may be. Any Party doing so as required by law shall furnish a
clear accounting of all such withholdings, and shall assist the other
as necessary to avoid double tax liability in their own jurisdiction
by furnishing documentation as may be required.
6.8 In case one Party purchases Equipment from the other Party, no
royalty payment under Article 6 shall be due from that Party to the
other.
*** 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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ARTICLE 7. COLLABORATION AND JOINT ACTIVITIES
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SECTION A. RESEARCH AND DEVELOPMENT; TECHNOLOGY GENERATION
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7.A.1. The objective of the collaboration anticipated by this Agreement,
to the maximum extent practical, is to advance the state of the art
of high yield, low cost solar photovoltaic module manufacturing.
The Parties shall fulfill this objective by the following means set
forth in this Section:
(a) Existing and Developing Technology Transfer (Initial):
Within thirty (30) days from the Effective Date, Spire, being
the source of the Technology, shall prepare and deliver in
documentary form, all essential information regarding the
Equipment and all other such equipment and components which
constitute the Existing and Developing Technology, all of which
will be furnished in the English language, and using the English
system of measurement unless originally or already prepared in
the metric system.
Thereafter, Nisshinbo may dispatch as many of its technical
staff as it sees fit (but for the purposes of administration and
logistics, not greater than five (5) staff at one time) to
Spire's facility for review and evaluation of the Existing and
Developing Technology of Spire and any of Nisshinbo Existing
Technology. All such staff of Nisshinbo shall have a competence
in the English commensurate with the needs of a technical
interchange, or Nisshinbo shall provide such skilled
translators/interpreters as it deems necessary. Each Party shall
bear its own costs to support this activity. This review and
evaluation meeting shall last approximately two to three days.
(b) Subsequent Technology Review Meetings:
On approximately *** basis, the Parties shall meet to engage in
further technology review, an event that may be referred to as
the *** Technology Development and Planning Review Meeting. This
meeting will primarily be conducted by and for the engineering
staffs of both Parties, and their function shall be to make
recommendations to the Management Team, which will make all of
the substantive decisions in accordance with Article 2. The
focus of each such subsequent meeting shall be for each Party to
inform the other of every incremental improvement in the state
of the art that the Parties have made in the preceding year, to
share information on gains made in know-how; to discuss
innovative ideas and to summarize progress and future plans made
on any Program or Programs in which the Parties are jointly
engaged. Except as stated at the beginning of this paragraph,
the frequency, timing, and location of all such *** Development
and Planning Review Meetings shall be decided by the Management
Team.
(c) Technology Development and Planning (other activities):
The Management Team shall establish, and may modify from time to
time, other technology development and planning events, such as,
but not necessarily limited to, the nature and frequency of
communications between the engineering staffs of the Parties.
*** 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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7.A.2. The Parties shall purposefully advance the state of the art in high
yield, low cost solar photovoltaic manufacturing by conducting
research and development Programs to promote the generation of the
New Technology, as set forth below:
(a) Joint Programs:
During the *** of the Term and as needed from time to time
thereafter, the Management Team may establish, from time to
time, a development goal of mutual interest. The Management Team
shall establish a budget for Joint Programs, assemble a Program
development team, determine the criteria for success and monitor
its progress. Such Programs are funded by a negotiated cost
share approach between the Parties, in which the cost share may
be equivalent or something less than equivalent. The Management
Team shall decide on a method to ensure that all Programs costs
are properly validated and accounted. If the costs are shared by
the Parties on an equivalency basis, then rights in the results
of such Joint Programs shall be perpetually jointly-owned with
no further obligation upon either Party to make payment to the
other, otherwise they shall treated the same way as any other
New Technology according to Articles 4 and 6.
(b) Individual Programs:
The management of each Party may separately embark on Programs
after first having proposed them to the Management Team. If the
other Party does not conclude that the development goal is
relevant, then the Party proposing such goal may pursue it
individually. The ownership of all such New Technology generated
by these individual Programs vests solely with the Party
conducting the individual Program. In such instances, the other
Party shall obtain a license to use any New Technology according
to Article 4 and the royalty rate shall be determine according
to Article 6. If after initiation of Individual Program, the
other Party chooses to invest into a specific Individual
Program, the Parties shall determine a level of investment that
is mutually satisfactory and thereafter the Individual Program
shall be converted into a Joint Program with each Party being
considered as have made an equal investment for purposes of
determining ownership and the application of Articles 4 and 6.
(c) Sponsorship from Sources other than the Parties
New Technology originating with research and development
performed by a Party but sponsored by a third source other than
the Parties, and where the performing Party is allowed some or
all of the rights to the resulting technology, then a share of
such rights may be acquired by the other Party by paying a
portion of the valuation of such results, based upon an
assessment made jointly by the Parties, and in accordance with
the requirements of the agreement made with the sponsor.
7.A.3. The Parties may also enhance the technological base of the
Equipment or other equipment which is or may be used in the
manufacture of solar photovoltaic modules by acquiring licenses to
third party technology. In such case, one Party shall act as the
primary licensee, but shall seek to secure a sublicense for the
other Party on terms no less favorable than those enjoyed by the
Party acting as the licensee. The negotiation of any license under
these circumstances shall be subject to the approval of the
Management Team. All payments due and payable to any third party
licensor
*** 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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would be payable by each Party in proportion to the degree to which
either Party finds the technology from a third or outside party
useful.
7.A.4. The Existing Technology, Developing Technology, New Technology, and
Revolutionary Technology may be represented by intellectual property
in various forms. While most of the Technology is, or likely to be in
the form of know-how or trade secrets, to the extent any of it may be
subject to statutory protection, i.e. an invention for which a patent
may be obtained, it shall be the decision of the inventing Party as
to whether a patent is obtained, and any such protection shall be
obtained at the expense of that Party. The patent thus obtained is
the sole property of the Party responsible for the invention, subject
to the license and rights allocations set forth above. Patents of
such inventions may be obtained in any number of jurisdictions by
either Party at its expense or at the expense of both Parties. In all
cases, anything herein to the contrary notwithstanding, the principle
of ownership and rights to any intellectual property whether or not
represented by a patentable invention shall rest with the degree of
investment made by either or both Parties and not the expense made by
one Party or the other in securing any statutory protection. The
general principle for managing allegations of infringement by third
parties is stated Article 9.5 below.
SECTION B. SALES AND MARKETING
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7.B.1. The Parties hereto are obligated to cooperate where necessary to the
exploit the international market for solar photovoltaic module
manufacturing equipment and technology. Each Party shall capitalize
its own sales and marketing efforts, which may range freely
throughout the Territory. However, the Parties shall be guided by the
general provisions set forth below:
(a) ***
*** 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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(b) Use of Sales and Marketing Literature:
During the Term, each Party shall design and publish its own
sales and marketing literature, except that all such literature
shall acknowledge the existence of the relationship with the
other Party. Such notice shall be sufficiently prominent so that
it may be noticeable with casual perusal. Such notice will
refrain from implying the existence of a separate legal entity
created by the Parties' relationship. Marketing literature
published for this purpose shall be used within each Party's
***. The Parties shall furnish each other with a small quantity
of their sales and marketing literature whenever created or
revised. Sales and Marketing literature thus created and
published shall be done at the individual expense of each Party.
In addition to sales and marketing literature created by each
Party for use in their ***, the Parties shall jointly prepare
and publish sales and marketing literature that presents the
experience of both Parties and of the Consortium in a unified
and mutually advantageous format. The Parties may use this sales
and marketing literature for all global, neutral and joint
marketing endeavors. The cost of such sales and marketing
literature shall be shared by the Parties based on the volume of
literature that each Party uses.
SECTION C. EQUIPMENT MANUFACTURING
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7.C.1. During the Term, each Party intends to manufacture the Equipment for
contract awards within its ***. Additionally, the
*** 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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Parties may manufacture units of Equipment for each other. Under such
circumstances, each Party shall not offer such Equipment to the other
at any price other than that which they would ordinarily consider to
be its most favorable price, i.e. that which would be the lowest
possible commercial price for which they sell Equipment to a third
party (but not below such price). No royalty payments from either
Party to the other as provided for in Article 6 shall be due and
payable in this case.
During the Term, each Party shall provide after sales service and
repair to all Equipment sold under contract awards that it executed,
and each Party is responsible for supporting its standard Equipment
warranty. The foregoing notwithstanding, either Party may request the
other Party for assistance and/or support for its after sales service
requirements, the cost of which the requesting Party shall bear.
SECTION D. MANAGEMENT TEAM
7.D.1. The Management Team shall consist of two management persons appointed
by Spire and two management persons appointed by Nisshinbo. The
Management Team shall provide oversight to the Parties' Activities
and act in a manner consistent with the interests of the Consortium.
The Management Team will not be required to provide a decision-making
function on ordinary matters under consideration by each Party
individually, but exists for the purpose of providing a unified
strategic business approach for the Consortium, and act, when
necessary, as the final authority for decisions affecting the
Consortium's business endeavors.
7.D.2. In the event that the two Parties cannot otherwise agree, sales
inquiries, purchase and sales agreements, purchase orders and other
transactions with prospective and current Customers *** which Party
shall supply the prospective or current customer with its stated
requirements.
ARTICLE 8. NATURE OF RELATIONSHIP
- ---------------------------------
8.1 This Agreement shall not be construed as creating any new legal
entity based upon the joint activities of the Parties. The Parties
and all of their activities remain legally separate from one another.
8.2 This Agreement does not authorize either Party to act as an agent or
representative of the other. No such authority shall be implied by
this Agreement, and to the extent any such authority is extended from
one Party to the other during the Term it shall be done by a separate
express instrument to that effect.
8.3 By virtue of the warranties made in Article 9 either Party may retain
any existing Third Party relationship as of the Effective Date
(beyond those existing between vendor and customer, and except as
where specified in Article 9 in the solar photovoltaic module
manufacturing equipment industry.
8.4 During the Term, neither Party may enter into any relationship
(regardless of how it is made) that will place that Party in breach
of the warranties in Article 9.
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and
Exchange Commission.
13
8.5 During the Term, the Parties may elect to convert this Consortium
into an incorporated joint venture. The Parties shall accomplish this
by mutual consent, and the failure of one Party or the other to agree
to negotiate the terms of such joint venture shall not be a
permissible cause for termination of this Agreement nor for any
request for arbitration. Should the Parties agree to the conversion
of this Agreement into a joint venture, this document shall remain in
force until the date the joint venture is established.
ARTICLE 9. WARRANTIES AND REPRESENTATIONS
- -----------------------------------------
9.1 The Parties hereto warrant and represent that they are
duly-constituted organizations organized for the purpose of
conducting business for a profit in the jurisdictions stated in the
heading paragraph to this Agreement. They further warrant and
represent that, by the time this Agreement becomes effective, and to
the best of their knowledge and belief, the Parties have full
authority to enter into the relationship contemplated by this
Agreement without permission from any other entity, public or
private.
9.2 The Parties hereto warrant and represent that, to the best of their
knowledge and belief, no obligation created by any provision of this
Agreement will conflict with any other obligation of any other
binding undertaking made with any public or private third party.
9.3 The Parties hereto warrant and represent that, during the Term, they
will not enter into any other relationship, however made, in which a
provision of that relationship conflicts with any provision of this
Agreement.
9.4 The Parties hereto warrant and represent that during the Term, that,
to the best of their ability, they will not engage in any activity,
or fail to any take action, that will violate the implied fiduciary
duty each Party has toward the other under this Agreement or be
prejudicial to the interests of the other Party.
9.5 The Parties hereto warrant and represent that, to the best of their
knowledge and belief, they are not now infringing upon the
intellectual property rights of any third party; they further warrant
and represent that they will not knowingly do so during the Term,
and, should either Party determine, or be informed that a third party
alleges, that it is infringing upon third party intellectual property
rights, it shall advise and consult with the other Party on the most
expedient method to manage any such infringement allegation.
9.6 The Parties hereto warrant and represent that, to the best of their
knowledge and belief, they are compliant with every relevant law,
statute, and administrative regulation in every jurisdiction in which
they do business, and, in no way diminishing the scope of this
Article, in particular the Parties warrant and represent that they
are compliant with the U.S. Foreign Corrupt Practices Act, and shall
comply with the equivalent Japanese law. The Parties further warrant
and represent that they will engage in reasonable due diligence
actions to insure continued compliance with all such relevant laws,
statutes, and administrative regulations. If either Party's economic
benefits are adversely and materially affected by the promulgation of
any new laws or regulations in either Party's home jurisdiction, or
by the amendment or interpretation of any existing law or regulation,
then the Parties shall promptly consult with each
14
other and use their best efforts to implement any adjustments
necessary to maintain each Party's economic benefits such as are
derived from this Agreement on a basis no less favorable than the
economic benefit it would have derived if such laws or regulations
had not been promulgated, amended, or so interpreted.
ARTICLE 10. INDEMNIFICATIONS
- ----------------------------
10.1 The Parties agree that each Party shall have the obligation to
indemnify and hold the other Party harmless in any circumstance where
the indemnified Party is a subject of any claim, controversy,
assertion of damages, action or suit, including, but not limited to,
intellectual property infringement ("Liability") from a third party
which arises from the negligent actions or misconduct of the
indemnifying Party, and any such fines or penalties as may be levied
against the indemnified Party. Such obligation may be mitigated or
void in instances where, and to the extent, that the indemnified
Party engaged in negligent actions or misconduct of its own accord
which has contributed to the Liability.
10.2 The Parties represent to each other that they are adequately insured
by a reputable insurance carrier for general liability claims made
against either Party by a third party. Each Party agrees that it will
maintain such insurance for the Term, including any extensions
thereto, and shall name the other Party as an additional insured.
Each Party shall notify the other at the earliest possible date in
the event of cancellation or non-renewal for whatever reason.
ARTICLE 11. TERM
- ----------------
11.1 This Agreement shall have a term of ten (10) years from the
Effective Date and shall expire at the end of the ten (10) years
period.
11.2 Not later than one-hundred and eighty (180) days prior to the end of
the Term, the Parties shall indicate to each other in writing whether
or not they intend to negotiate a successor consortium agreement. If
both Parties agree that a new consortium agreement should be
negotiated, then the Parties to proceed with such negotiations
promptly and in good faith. Such successor consortium agreement shall
have a term of five (5) years.
11.3 In the event Nisshinbo should decline to enter into a new mutually
acceptable consortium agreement, Nisshinbo shall pay to Spire an
amount equivalent to the sum of all the payments made by it to Spire
under Articles 6.2 and 6.3 during the period from May 16, 2013 to May
15, 2015.
ARTICLE 12. TERMINATION
- -----------------------
12.1 Either Party to this Agreement may terminate it for the reasons
stated below, after first attempting to resolve any such issues with
the Management Team, with the appropriate notice and as set forth
below:
15
(a) for material breach. The Parties shall regard egregious and/or
repeated failure of a Party to fulfill its obligations under this
Agreement to constitute a material breach, but not any event of
FORCE MAJEURE so long as such event has not ended. Any failure to
perform the obligations under this Agreement shall be resolved by
the Management Term. In any instance where one Party has materially
breached this Agreement, the other Party shall allow the breaching
Party a period of sixty (60) days beginning from the date of the
notice of termination to affect a cure of such breach. If at the
end of the sixty-day period, the breaching Party has not affected a
wholly satisfactory cure, the other Party may allow, at its
discretion, the breaching Party the final thirty (30) day period to
affect a cure satisfactory to the other Party. Any Party breaching
this Agreement without having affected a cure shall be obligated to
pay the appropriate termination fee as provided for in Article
12.2.
(b) for bankruptcy. In any instance where an involuntary bankruptcy
proceeding is filed against either Party, the Party subject to such
proceeding is required to inform the other within ten (10) days of
having been received notice of such filing. The other Party may
terminate upon thirty (30) days notice if such involuntary
proceeding is not dismissed within ninety (90) days from the date
it was filed.
(c) for convenience. Either Party may terminate this Agreement for its
convenience. The Party terminating this Agreement must give not
less than one hundred eighty (180) days notice of such termination
to the other Party.
12.2 Except as provided in Article 12.3 below, where this Agreement is
actually terminated by either Party based on Article 12.1 (a) or (c),
a penalty shall be paid by the breaching Party to the other Party (in
case of Article 12.1 (a)), or by the terminating Party to the other
Party (in case of Article 12.1 (c)), in accordance with the schedule
below, such that if:
(a) Nisshinbo is the breaching or terminating Party, it shall pay to
Spire a penalty equal to *** for each year remaining in the Term,
with amounts for fractional years prorated. Such penalty shall be
at no time less than the equivalent of the sum of the payments paid
by Nisshinbo to Spire during the two year period immediately past
under Articles 6.2 and 6.3.
(b) Spire is the breaching or terminating Party; it shall pay to
Nisshinbo a penalty equal to *** for each year remaining in the
Term, with amounts for fractional years prorated.
12.3 Should either Party dissolve the business unit engaged in the
activities contemplated under this Agreement, or be forced out of
business due to a FORCE MAJEURE circumstance as defined in Article
16.9 below or otherwise cease to engage in this the solar
photovoltaic module manufacturing equipment business or all business
activities, no penalty shall be due and owing to the other Party
under this Article, unless the Party should re-enter the subject
matter business with a period of five (5) years from having exited
it, in which case that Party shall pay the other the original penalty
as provided for hereunder plus a premium equal to *** of its value.
12.4 In the event of termination or expiration of this Agreement, Articles
3, 4, 6, 10, and 14 shall survive.
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and
Exchange Commission.
16
ARTICLE 13. RESOLUTION OF DISPUTES
- ----------------------------------
13.1 The Parties shall make every commercially reasonable attempt to
require the Management Team constituted under this Agreement to
devise solutions to all disputes between the Parties, and take under
advisement in good faith any recommendations made by the Management
Team.
13.2 All such disputes between the Parties as cannot be resolved by the
Management Team shall be referred to the International Chamber of
Commerce by joint communication to that body initiated by the ranking
member of the Management Team from each Party. The proceedings will
be conducted by three (3) arbitrators appointed in accordance with
the rules of this organization. Should the Parties meet in person,
such meeting shall be held in Vancouver, British Columbia, Canada.
The panel of arbitrators shall have three members who shall apply the
rules of arbitration of the International Chamber of Commerce to the
resolution of the dispute. All such judgments as shall be rendered by
the arbitration panel shall be final and binding on the Parties.
13.3 The Parties shall not be liable in any event for any claim of
indirect, incidental, special or consequential damages incurred by
either Party of any Customer, including, but not limited to loss of
revenue (except where due and payable under the provisions of this
Agreement), loss of capital, loss of business reputation or
opportunity regardless of the legal theory under which such claim may
be asserted.
ARTICLE 14. TREATMENT OF CONFIDENTIAL INFORMATION
- -------------------------------------------------
14.1 Each Party, which shall include its employees, directors, affiliates
and subsidiaries shall be bound to the terms and conditions of the
most recently executed Confidential Disclosure Agreement, as amended,
which shall be attached hereto and incorporated into this Agreement
as Exhibit No.5.
ARTICLE 15. ASSIGNMENT
- ----------------------
15.1 This Agreement and all of its covenants, terms and conditions shall
bind and inure to the benefit of the Parties hereto and their
respective heirs, devisees and successors, however, the Parties agree
as set forth below:
(a) Neither Party may assign this Agreement, nor any of its rights and
obligations hereunder to any third party without prior written
permission of the other Party except for its sale of all, or
substantially all of its assets or the sale of all of the equity of
either Party. As provided for elsewhere herein, either Party may
subcontract one or more of its obligations to be fulfilled under
this Agreement according the provisions stated above but shall
remain wholly responsible to the other for the nature and extent of
the fulfillment of such obligation.
17
(b) Either Party may assign this Agreement together with its rights and
obligations hereunder to any parent, wholly-owned subsidiary or
affiliate by giving the other Party thirty (30) days prior notice
of signing of such assignment.
ARTICLE 16. GENERAL PROVISIONS
- ------------------------------
16.1 This Agreement with its Exhibits contains the entire agreement and
understanding with regard to the subject matter hereof and supercedes
any and all prior understandings, correspondence and agreements, oral
and written, between the Parties.
16.2 No change, amendment or modification to or of this Agreement shall
obligate or be binding upon a Party or the Parties unless made by a
writing bearing the signatures of the authorized representatives of
both Parties.
16.3 The titles of each of the Articles to this Agreement shall not be
construed as limiting the intent of the subject matter they
introduce.
16.4 This Agreement may be executed in any number of counterparts. So long
as each counterpart bears the original signatures of the authorized
representatives of each Party, it shall be deemed an original.
16.5 The English language version of this Agreement shall be considered
the official version. Differences in the interpretation of versions
written in other languages and this English version shall be resolved
in favor of any interpretation based on this English language
original.
16.6 No provision of this Agreement shall be deemed waived unless through
a written instrument from the Party with the authority to make such
waiver and signed by an individual representing the Party with such
authority. No passage of time or previous waiver shall imply the
existence or continuation of any waiver.
16.7 This Agreement shall be construed under the laws of England. The
venue for all such proceeding as may be necessary pursuant to the
provisions of this Agreement shall be held in London, England.
16.8 Each provision of this Agreement is fully severable; should a
competent authority having jurisdiction over this Agreement rule that
any part or provision to be unlawful or unenforceable, the Parties
shall consider the balance to be effective and enforceable. The
Parties shall jointly act to remove any part or portion of this
Agreement found to be unlawful or unenforceable with such provisions
as may effectively replace them.
16.9 Neither Party shall be held liable by the other for any delay in
fulfilling any obligation hereunder where such delay results from an
instance of FORCE MAJEURE. For the purpose of this Agreement, any
occurrence of a force of nature, an act of God, or of any
legally-constituted government authority; any incidence of strikes,
riots, insurrection, terrorism, military action, any unanticipated
and unavoidable breakdown of mechanical, electrical or other
machinery, equipment or apparatus or any action, incidence or
occurrence not stated in the foregoing but may be construed as such
shall constitute an instance of FORCE MAJEURE. The Party affected
shall notify the non-
18
affected Party in writing without delay, and within fifteen (15) days
provide detailed information concerning such events and documents, to
the extent existing or can be created, evidencing such events
explaining the reasons for its inability to perform, or for its delay
in the performance of, all or part of this Agreement.
When the FORCE MAJeure is of such an extent that (i) the objectives
of this Agreement are substantially impaired, or (ii) that a Party's
performance is impaired for more than three (3) months, then the
other Party may terminate this Agreement with immediate effect
without any liability to either Party hereunder.
16.10 Where this Agreement shall require that notice by one Party shall be
given to the other or for any other like communication between the
Parties, such notice shall be in English and given by certified mail,
express delivery service or via facsimile transmission, with an
original copy to follow via the other two means stated above, and
addressed 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.
19
Further, and finally, the Parties acknowledge a requirement to treat with each
other according to high standards of good faith and fair dealing in the exercise
of all rights and the fulfillment of all obligations set forth above.
IN WITNESS WHEREOF, the Parties hereto signify their acknowledgement,
endorsement, and agreement of and with every covenant above and cause this
Agreement to be executed by their respective authorized representatives as of
the date first stated above:
Nisshinbo Industries, Inc. Spire Corporation
Signature: /s/ Yoshihiro Sakaki Signature: /s/ Rodger W. LaFavre
----------------------- -----------------------
Printed Name: Yoshihiro Sakaki Printed Name: Rodger W. LaFavre
Its: Director of Precision Its: Chief Operating Officer
Instrument & Machinery
Division
Date: May 26, 2005 Date: May 26, 2005
----------------------- -----------------------
20
EXHIBIT # 1
Spire Existing Technology includes the following:
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and
Exchange Commission.
21
Spire Developing Technology includes the following:
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and
Exchange Commission.
22
Nisshinbo Existing Technology:
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and
Exchange Commission.
23
EXHIBIT # 2
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and
Exchange Commission.
24
EXHIBIT # 3
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and
Exchange Commission.
25
EXHIBIT #4 Trademarks
SPIRE CORPORATION TRADEMARKS
- ----------------------------
REGISTERED:
-----------
SPIRE
UNREGISTERED:
-------------
SPI-CELL TEST 150
SPI-CELL TEST 1000M
SPI-STRINGER 500
SPI-STRINGER 1000
SPI-ASSEMBLER 5000
SPI-VAC PIK 660
SPI-LAMINATOR 240
SPI-LAMINATOR 350
SPI-LAMINATOR 480
SPI-LAMINATOR 580
SPI-LAMINATOR 580N
SPI-SUN SIMULATOR 130i
SPI-SUN SIMULATOR 240A
SPI-SUN SIMULATOR 240AL
SPI-SUN SIMULATOR 350i
SPI-SUN SIMULATOR 460i
SPI-SUN SIMULATOR 660
SPI-SUN SIMULATOR 660i
SPI-MODULE QA 460
SPI-FRAME PRESS 350
SPI-ARRAY TEST 800
SPI-ARRAY TEST 1000
SPI-BUFFER 350
SPI-TRIM 350 SPI-FRAME 350
SPI-BOXER 350
SPI-ARRAY TESTER 5000
NISSHINBO TRADEMARKS
--------------------
REGISTERED:
-----------
NISSHINBO
UNREGISTERED:
-------------
Lam0714S
Lam1016S
26
Lam1222S
Lam1522S
Lam1522N
Lam1722N
Lam1730N
Lam1734N
Lam2030N
Lam2034N
Simulator SSS0510i
Simulator SSS1010i
Simulator SSS1015i
Simulator Sun1116N
Simulator Sun1040i
27
EXHIBIT # 5
CONFIDENTIAL DISCLOSURE AGREEMENT
AGREEMENT made this 21st day of April, 2003 between Spire Corporation, One
Patriots Park, Bedford, Massachusetts, 01730-2396 (hereinafter called "Spire"),
and Nisshinbo Industries, Inc., Nisshinbo Mechatronics Division, 444-8560
Azukizaka 30, Miai Okazaki, Aichi Prefecture, Japan (hereinafter called
"Company").
WHEREAS, Spire and Company have represented to each other that each owns,
may own or is interested in receiving Proprietary Information (as defined below)
pertaining to:
Conception, development, design and manufacture of complex,
electro-mechanical equipment and devices in general, and equipment and
devices used in the photovoltaic module fabrication process in particular;
data and information on costs, pricing and related subjects.
WHEREAS, Spire and Company intend to exchange Proprietary Information for
the following purpose(s):
of development and maintenance of business relations.
NOW, THEREFORE, for the good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITION
For purposes of this Agreement, "Proprietary Information" means data,
reports, specifications, designs, prototypes, test results, trade secrets,
processes, patentable inventions, plans or other business, financial or
technical information in written, electronic magnetic or oral form (i) which is
known only to the disclosing party, (or to others to whom the disclosing party
has voluntarily disclosed it subject to restrictions similar to those set forth
in this Agreement); (ii) as to which the disclosing party has taken reasonable
precautions against disclosure; and (iii) which has been clearly labeled by the
disclosing party as "confidential," "proprietary," "secret" or other term or
similar import. Orally disclosed Proprietary Information shall retain its
character as Proprietary Information so long as the proprietary, protected
nature of the disclosed information is conveyed to the recipient: (a) orally at
the same meeting or in the same conversation as the Proprietary Information is
discussed and in writing within thirty (30) days of the original disclosure; or
(b) in writing only, within ten (10) days of the original disclosure, in which
case the recipient shall not be held liable for any disclosure of the
Proprietary Information prior to it being so labeled.
2. OBLIGATION TO PROTECT PROPRIETARY INFORMATION
(a) Each party agrees that if it is a recipient under this Agreement, it
will not publish or otherwise disclose Proprietary Information received from the
disclosing party to any third party or to any person employed by the recipient
other than those who have a "need to know" in order to evaluate Proprietary
Information and make the decisions contemplated by this Agreement. Any employee,
consultant or other agent to whom a recipient party discloses Proprietary
Information received for a disclosing party as provided in this Agreement, shall
be subject to confidentiality obligations to such recipient party covering the
Proprietary Information to at least the same extent as the recipient party is
obligated by this Agreement. Each recipient party agrees to exercise reasonable
care to protect the disclosing party's Proprietary Information and shall utilize
the same procedures and systems to protect such Proprietary Information as it
utilizes to protect its own Proprietary Information and other proprietary data.
(b) Each party agrees to use Proprietary Information received from the
other party only for the purposes described in this Agreement.
(c) Immediately upon the request of the disclosing party, the recipient
shall return to the disclosing party any of the disclosing party's Proprietary
Information so requested without retaining any copies thereof. Upon termination
of the relationship or discussions contemplated by this Agreement, all
Proprietary Information shall be returned by the recipient to the disclosing
party without retaining any copies thereof.
28
(d) Unless otherwise stated in writing signed by the parties, a recipient's
obligation to protect Proprietary Information shall continue for five (5) years
from disclosure.
(e) Company further agrees that it will at no time during the five (5)
years from the date written above use its access to Spire employees as an
opportunity to solicit their employment elsewhere on Company's or any other
party's behalf and for any purpose.
3. LIMITATIONS ON THE PARTIES' OBLIGATIONS
No obligation to protect Proprietary Information shall exist under this
Agreement with respect to any information which: (a) at the time of disclosure
is in the public domain, (b) enters the public domain through no act or failure
to act by the recipient, (c) comes into the possession of the recipient from a
third party without obligation on the recipient to maintain it in confidence, or
(d) at the time of disclosure to the recipient was already known to the
recipient as evidenced by appropriate documentation.
4. EFFECT OF AGREEMENT
All Proprietary Information remains the property of the disclosing party at
all times. This Agreement does not constitute the promise or intention of either
party to buy, or sell or market any products or services or to enter into any
other type of arrangement or agreement. This Agreement does not constitute or
imply the grant of any license or permission to use any intellectual property or
Proprietary Information except to the limited extent and for the limited
purposes set forth herein.
5. MISCELLANEOUS
Any failure by either party to enforce its rights under this Agreement in
any one instance shall not constitute a waiver of those rights in any other
instance. The Parties acknowledge that a breach of this Agreement by a recipient
may result in irreparable harm to the disclosing party not easily measured in
monetary damages alone. Therefore, in addition to all other remedies available
at law, the parties consent to the imposition of equitable remedies including
injunctive relief without the necessity of proof of actual damages. This
Agreement shall be governed and construed under the laws of the Commonwealth of
Massachusetts.
6. TERM
The term of this Agreement shall be three (3) years from the date written
above, except as to the obligations set forth in paragraph 2.
AGREED, by the parties whose names appear below and signed by authorized
representatives, effective as of the date above.
SPIRE CORPORATION
Authorized Signature: /s/ R. W. LaFavre
----------------------
Printed Name: R. W. LaFavre
Title: C.O.O.
NISSHINBO INDUSTRIES, INC., NISSHINBO MECHATRONICS DIVISION
Authorized Signature: /s/ Takashi Iwashita
----------------------
Printed Name: Takashi Iwashita
Title: Executive Director
29
AMENDMENT NO. 1
TO CONFIDENTIAL DISCLOSURE AGREEMENT
Effective Date: 16 May 2005
This Amendment No. 1 to the Confidential Disclosure Agreement dated 21 April,
2003 between Spire Corporation and Nisshinbo Industries, Inc. shall amend the
following Articles:
Article 2. Obligation to Protect Proprietary Information, paragraph (d) shall
now state as set forth below.
"Unless otherwise stated in writing, signed by the parties, a recipient's
obligation to protect proprietary information shall continue for five (5) years
from the date of the end of the term (including all renewals) of the
Development, Manufacturing, and Sales Consortium Agreement between the parties
hereto and effective 16 May 2005."
Article 6. Term shall now state as set forth below.
"The term of this Agreement shall end on the date of the end of the term
(including all renewals) of the Development, Manufacturing, and Sales Consortium
Agreement between the parties hereto and effective 16 May 2005."
AGREED, by the parties to this Agreement whose names appear below, and are
signed by their authorized representatives, effective as of the date above.
SPIRE CORPORATION NISSHINBO INDUSTRIES, INC.
Authorized Signature: /s/ R. W. LaFavre Authorized Signature: /s/ Y. Sakaki
------------------- ---------------------
Printed Name: R. W. LaFavre Printed Name: Y. Sakaki
Title: C.O.O. Title: Director of Precision Instrument &
Machinery Division
30