EXHIBIT 10(q)
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Confidential Treatment Requested as to certain information contained in this
Exhibit 10(q) and filed separately with the Securities and Exchange Commission.
TURN-KEY PROJECT AGREEMENT
March 16, 2006
1. THE PARTIES
Spire Corporation (the "Seller"), a business incorporated in the
Commonwealth of Massachusetts, with its principal place of business at One
Patriots Park, Bedford, Massachusetts, 01730-2396, U.S.A.;
*** (the "Buyer"), a business organized under the laws of ***, with a
principal place of business at ***
2. OBJECT OF AGREEMENT
Seller agrees to deliver at Buyer's site a fully operative Photovoltaic
Cell Manufacturing Line on "turn-key" basis, providing a nominal ***MW
annual production line producing 15% efficient cells (the "Manufacturing
Line"), consisting of the products defined in Article 3 below (the
"Products") which Buyer agrees to buy from Seller and Seller agrees to sell
to Buyer and install at Buyer's site, pursuant to the provisions of this
Agreement hereinafter set forth. Such provisions shall prevail and no other
article, condition, clause or term shall have any effect unless
specifically admitted by this document.
The Manufacturing Line will produce a minimum of 15% efficient cells from
mono- crystalline or multi-crystalline wafers based upon wafers with a
silicon minority carrier lifetime specified by Seller. The Manufacturing
Line shall be an automated cell manufacturing line capable of handling
wafer sizes of 100mm, 125mm and 156mm and said mono and multi crystalline
wafers.
Seller further agrees to supply to Buyer prior to the starting date of
production of the cells by the Manufacturing Line or within 60 days after
shipment of the Products, approximately 1,500,000 wafers, a volume which
should approximate a cell electrical capacity of ***MW under the specific
terms and conditions set forth in Article 11.
3. SHIPMENT OF THE PRODUCTS
The Products bought by Buyer and sold by Seller are set forth in this
Article 3 and will be shipped to Seller as further described in Article 4
on or before October 31, 2006. Partial shipments are allowed as needed and
any shipment may be transshipped as may be appropriate. The Products may be
delivered to Buyer directly by Seller or by any of Seller's sub-vendors,
but in the latter case, Seller shall be responsible for the compliance of
the shipment schedule to be agreed with Buyer in the Final Design Review
Meeting (as such term is defined in Article 5.b). The principal items among
the Products are set forth below (specifications for these items appear in
Attachment 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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Etch Station (Quantity: 1)
Dopant Spray Coater (Quantity: 2)
Belt Diffusion Furnace (Quantity: 2)
Plasma Etcher (Quantity: 1)
HF Etch Station (Quantity: 1)
Surface Resistivity Tester (Quantity: 1)
PECVD AR Coater (Quantity: 1)
Screen Printer & Collator (Quantity: 1)
Belt IR Furnace (Quantity: 1)
Screen Printer & Collator (Quantity: 1)
Belt IR Dryer (Quantity: 1)
Screen Printer & Collator (Quantity: 1)
Belt IR Furnace (Quantity: 1)
Screen Tension Gauge (Quantity: 1)
Spare Parts/Miscellaneous (Quantity: 1)
Non-Major Equipment
-------------------
Surface Resistivity Tester (Quantity: 1)
Vacuum Leak Detector (Quantity: 1)
Screen Cleaner (Quantity: 1)
Microscope (stereo zoom 10.5 to 45.0x (Quantity: 1)
Wafer Lifetime Tester (Quantity: 1)
All transport mechanisms needed to move and handle the processed wafers
between the major equipment during the manufacturing process of the
Manufacturing Line, including cassettes, carriers, carts, and the like.
4. PRICE AND TERMS OF PAYMENT
The price for the Manufacturing Line, including engineering support,
technical and design documents, technical services, the installation of all
the Products and the Manufacturing Line, in conformity with all applicable
technical or other *** regulations or standards, technical training, 30kW
of training materials, start up operations to make the Manufacturing Line
fully operative in accordance with the provisions set forth below, and
Warranty (after-service support) during the first two (2) years of
operation, is a total of U.S. $6,750,000.00 (Six Million, Seven Hundred
Fifty Thousand U.S. Dollars), hereinafter the "Purchase Price", Ex-Works
Factory ("Factory" in this case refers to the factory from which any unit
of equipment is shipped to Buyer's site). Buyer shall provide all
reasonable support possible to Seller regarding applicable *** regulations
or standards. The price breakdown of the Products is as listed below:
*** Represents text omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the
Securities and Exchange Commission.
2
Item Quantity Item Price U.S. $
-------------------------------------------------------------------------------
1 1 Etch Station $***
2 2 Dopant Spray Coater ***
3 2 Belt Diffusion Furnace ***
4 1 Plasma Etcher ***
5 1 HF Etch Station ***
6 1 Surface Resistivity Tester ***
7 1 PECVD AR Coater ***
8 1 Vacuum Leak Detector ***
9 1 Screen Printer & Collater ***
10 1 Belt IR Drier and Furnace ***
11 1 Screen Printer & Collater ***
12 1 Belt IR Dryer ***
13 1 Screen Printer & Collater ***
14 1 Belt IR Drier & Furnace ***
15 1 Screen Cleaner ***
16 1 Screen Tension Gauge ***
17 1 Microscope, Stereo Zoom 10.5 to 45x ***
18 1 Wafer Lifetime Tester ***
19 Miscellaneous and 30kW of training Materials ***
20 1 Spare Parts included above
21 All transport mechanisms needed to move and
handle the processed wafers between the major
equipment during the manufacturing process of
the Manufacturing Line, including cassettes,
Carriers, carts and the like. included above
--------------
Total Equipment $***
--------------
22 1 Engineering $***
23 1 Installation and Training $***
--------------
Total $6,750,000
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Buyer shall arrange for milestone payments to Seller in accordance
with the schedule outlined below:
A. Within 10 business days as of the execution date of this Agreement,
Buyer shall pay Seller a down payment of US$*** U.S. Dollars ("Initial
Down Payment").
B. Within 15 business days as of the date of conclusion of the
Preliminary Design Review Meeting and delivery by Seller to Buyer of
the Provisional Project Documents, both
C. terms defined in Article 5(b), Buyer shall pay Seller US$*** U.S.
Dollars.
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
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D. Within 15 business days as of the date of conclusion of the Final
Design Review Meeting and delivery by Seller to Buyer of the Final
Project Documents, both terms defined in Article 5(b), Buyer shall pay
Seller US$*** U.S. Dollars unless Buyer notifies Seller within this
term its decision to not proceed with this Project as referred to
hereunder.
E. Within 15 business days as of the date of conclusion of the training
to be carried out at Buyer's site or, as previously agreed between the
parties in the aforementioned Final Design Review Meeting, at the site
of the Seller and any of the Seller's sub-vendors, in accordance
with the details set out in Article 7(c) below, Buyer shall pay Seller
US$*** U.S. Dollars.
F. Buyer shall establish through the appropriate banking facility a
Irrevocable Confirmed Letter of Credit for the amount of US$*** U.S.
Dollars.
The above US$*** Irrevocable Confirmed Letter of Credit shall be
opened by Buyer for the benefit of Seller within 120 days of the
execution date of this Agreement and will be drawn down by Seller upon
Ex-Works shipment of the Products by Seller in accordance with Article
3 above and with this Article 4. Such amount is to be proportionally
drawn down against the equipment prices indicated in this Article.
F. Within 15 business days as of the date of signature by Seller and
Buyer of the Acceptance Form of Installation of the Manufacturing Line
as defined in Article 5 (c), Buyer shall pay Seller US$*** U.S.
Dollars.
G. Buyer shall pay Seller US$*** U.S. Dollars in accordance with the
below payment schedule:
Upon the Manufacturing Line attaining the following performance
specifications, Buyer shall release payment to Seller as below:
Cell Cell
afer Throughput Efficiency Reject Rate
----------------- ---------- -----------
a. Payment of $*** to Seller upon *** MW annualized 13.4% <5%
b. Payment of $*** to Seller upon *** MW annualized 13.75% <5%
c. Payment of $*** to Seller upon *** MW annualized 14% <5%
d. Payment of $*** to Seller upon *** MW annualized 14.50% <5%
e. Payment of $*** to Seller upon *** MW annualized 15% <5%
*** 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 performance specifications and related payments outlined above shall be
based upon consistent performance aggregated over a calendar month period
and shall be inclusive of the accumulated values of the released payments.
It is understood that such performance specification evaluation period
shall extend nine (9) months from the Acceptance Form of Installation of
the Manufacturing Line. Such performance specification evaluation period
may be extended beyond the subject period if applicable and mutually agreed
by Buyer and Seller. Regarding the Cell Efficiency parameters laid down
above, a +-5% deviation due to measurement errors will be tolerated.
Save otherwise agreed by Buyer and Seller, should the Manufacturing Line
not perform in accordance with the specifications described in paragraph a.
of the aforementioned payment schedule within 90 days as of the date of
signature of the Acceptance Form of Installation of the Manufacturing Line,
the Buyer shall be fully entitled to claim the right of non-payment for the
amount mentioned under said point a. of the referred payment schedule, this
is to say, $*** which will be treated as a reduction of the Purchase Price
for non performance of the Manufacturing Line
Save otherwise agreed by Buyer and Seller, should the Manufacturing Line
not perform satisfactorily in accordance with the terms and conditions
agreed in Article 5(c) within 9 months as of the date of signature of the
Acceptance Form of Installation of the Manufacturing Line, the Buyer shall
be fully entitled to claim the right of non-payment for any subject balance
amount not yet released and paid, which will be treated as a reduction of
the Purchase Price for non performance of the Manufacturing Line.
If for any reason after the Final Design Review Meeting (as defined in
Article 5.b) below), Buyer decides to not proceed further with this
Project, Buyer shall notify Seller in writing of such decision within 10
days as of the date on which said meeting was held, and, upon receipt of
said notification, Seller shall reimburse 50% of the amounts pre-paid by
Buyer to Seller in account of the Purchase Price pursuant to section A) and
B) above, that is to say, US$***, being the Seller entitled to keep the
remaining 50%, that is to say, US$*** as the only compensation due by Buyer
to Seller pursuant to the termination by Buyer of this Agreement
The shipment schedule referred to in Article 3 is contingent upon receipt
by Seller of Buyer's Initial Down Payment to be made within 10 business
days as of the execution date of this Agreement. Any failure by Buyer to
adhere to the payment plan as outlined in this Article 4 may cause Seller
to revise said shipment schedule to be agreed between the parties in the
Final Design Review Meeting.
Should Seller fail to deliver any of the Products ultimately by January 31,
2007, Seller shall be liable to the following monthly Purchase Price
reductions:
o ***% of the Purchase Price if delivery is not made by the end of the
month of February 2007;
o ***% of the Purchase Price if delivery is not made by the end of the
month of March 2007;
*** 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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o ***% of the Purchase Price if delivery is not made by the end of the
month of April 2007;
o ***% of the Purchase Price if delivery is not made by the end of the
month of May 2007.
Should the delay be longer than May 31, 2007, Buyer shall be entitled to
terminate this Agreement by notifying Seller in writing of such decision
and Seller shall immediately reimburse Buyer all payments made by Buyer to
Seller on account of the Purchase Price. Upon receipt of said
reimbursement, Buyer shall return to Seller all Products delivered to
Buyer. Seller shall exclusively bear all costs, duties and related fees
required for the re-packaging and shipment of said Products to Seller. In
this case, Seller shall be liable to pay Buyer a penalty in the amount
equivalent to ***% of the Purchase Price, which shall be paid by Seller to
Buyer together with the aforementioned reimbursement.
Notwithstanding the above, should the Buyer, at his sole discretion, decide
not to exercise its right to terminate the Agreement according to the above
paragraph, the penalty established for the month of May 2007 will remain
applicable for each month of delay until all the Products are delivered to
Buyer.
Purchase Price reduction referred to above may be applied by Buyer against
any outstanding amount of the Purchase Price due by Buyer to Seller
pursuant to this Agreement.
5. PERFORMANCE AND PERFORMANCE PERIOD
a. CONDITIONS PRECEDENT FOR SELLER TO BEGIN PERFORMANCE
(i) Turn-Key Project Agreement signed by both Parties;
(ii) Initial Down Payment received by Seller.
b. PERFORMANCE
A Preliminary Design Review Meeting ("PDRM") shall be held at Buyer's
site within the first four (4) to five (5) weeks after the execution
date of this Agreement. During the PDRM Seller shall provide Buyer
with preliminary documents including but not limited to the following
("Provisional Project Documents"):
i) All appropriate preliminary design documents, including general
arrangement drawings, utilities, process flow diagrams, detailed
facility infrastructure requirements, and the like.
ii) Preliminary Project Schedule (including Products delivery/shipment
targets).
iii) Listing of potential vendors, including their delivery schedule,
payment, technical specification, guarantee conditions, and the like.
iv) Outline of training agenda and technical process manuals.
v) Cell analysis (solar cell device modeling).
*** 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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Seller and Buyer shall agree to the design specifications to be implemented
in the Project. Upon the receipt of Seller's detailed facility
infrastructure requirements, Buyer shall provide to Seller all applicable
technical information associated with the construction of the facility
being designed and constructed to house such Manufacturing Line. Upon the
conclusion of the PDRM, the Provisional Project Documents shall be signed
by both parties to evidence their acceptance.
A Final Design Review Meeting (FDRM) shall be held at Buyer's site (unless
otherwise mutually agreed between the Parties) within the first four (4) to
five (5) weeks after the PDRM was held. During the FDRM Seller shall
provide Buyer with final documents as addressed in the PDRM to include, but
not limited to the following ("Final Project Documents"):
i) All final design documents, including general arrangement drawings,
utilities process flow diagrams, detailed facility infrastructure
requirements and general lay - out, maintenance and operation manuals, and
the like.
ii) Final Project Schedule (including Products delivery/shipment
schedules).
iii) Final selection of all Vendors including delivery schedule, technical
specifications, guarantee conditions, and the like.
iv) Final training agenda, dates and location(s).
v) Final Cell analysis (solar cell device modeling, including technical and
quality standards to be met).
vi) Acceptance Protocols for individual Product(s)/equipment for mutual
understanding purposes shall be mutually agreed upon. However, it is
understood the Acceptance Form of Performance of the Manufacturing Line
shall be the final document to establish contractual and Letter of Credit
completion.
The Final Project Documents shall be forwarded to Buyer prior to FDRM.
Seller and Buyer shall attempt to aggregate shipments as best possible and
utilize such aggregation of Product(s)/equipment for the applicable Letter
of Credit drawn down by Seller.
Seller shall make delivery in full of the Products, including all Products
components, installation at the Buyer's site in accordance with standard
industry practices as well as equipment training (use and maintenance), in
accordance with the shipment schedule referred to in Article 3 (as stated
in greater and more definitive detail in the shipment schedule to be agreed
by the parties in the FDRM). Installation shall be defined as the
mechanical set-up of all applicable equipment, and the mechanical operation
such that the equipment performs the mechanical functions it was designed
for as outlined in Attachment A. Seller shall provide all training
services, training materials, Products equipment manuals, and the like, to
Buyer within one (1) month of the complete installation of the
Manufacturing Line. Training shall be conducted in accordance with the
agenda and schedule to be agreed upon between Seller and Buyer in the FDRM.
This requirement may be waived or altered by Buyer at its discretion
(except that any expansion of this period may affect the total price as
stated above). Every deliverable Products component shall be new; shall
evidence high-quality
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workmanship, and be free of any defects in design, assembly and
installation that may inhibit the smooth operation; and which satisfies the
purpose of this Agreement. Each unit of deliverable Products, where
applicable, shall correspond to the specifications attached as Attachment
A; be accompanied by a standard spare parts package which shall be defined
by Seller prior to the Ex-Works shipment; and be subject to a warranty as
specified in Article 8 of this Agreement. Seller shall ensure that Buyer
can enforce and take full benefit of each and every Products guarantee
under the same terms and conditions guaranteed to Seller by the suppliers
of the Products or their manufacturers.
All of the Products components delivered by the Seller shall be packed
using new and strong packaging appropriate for shipping, transportation,
loading and unloading. According to the requirements of each unit of
Products equipment and any other items included with them, the Seller
shall, consistent with accepted industry practices, supply any protection
necessary to protect such Products equipment and other items from humidity,
water, rust, erosion, or any other environmental factor which may damage
the Products equipment or other items, and to insure that the Products
arrive at the Buyer's site safe and intact.
Each package, box or crate shall include the following documents:
1. Two copies of a detailed packing list;
2. Operation, service and repair manuals;
3. Spare parts list;
4. Two copies of assembly drawing as required for routine repair and
maintenance;
5. Original guarantees of each and every Product and any other legal
documentation of the Products.
c. PERFORMANCE PERIOD
The period of performance shall commence when the conditions precedent as
described above are met and shall conclude with the delivery of the
Products, the satisfactory installation of the same at a site specified by
the Buyer, the satisfactory performance of the Manufacturing Line and the
training of Seller's personnel as specified herein, are completed.
The Products will be considered to be satisfactorily installed, when the
Manufacturing Line is fully operative and capable of production. In such
case, Seller and Buyer shall sign two originals of the so called
"Acceptance Form of Installation of the Manufacturing Line" in accordance
with the draft form enclosed herewith as Attachment B.
The Manufacturing Line will be considered to be performing satisfactorily,
should not later than the ninth (9th) month after the date of signature of
the Acceptance Form of Installation of the Manufacturing Line, the
following criteria be consistently met: (a) a minimum production capacity
of 90% (1.875MW per month); (b) a minimum of 15% efficient cells produced
(with a maximum margin of error of 5%, that is to say, a minimum of 14.25%
efficient cells); and (c) a rejection level lower than 5% cells of total
production. In the case that Parties cannot agree on the cell electrical
characterization, the Parties agree that Fraunhofer Institute for Solar
Energy Systems shall perform such independent evaluation for electrical
characterization and be the definitive authority. In such case, Seller and
Buyer shall sign two originals of the so called "Acceptance Form of
Performance of the Manufacturing Line" in accordance with the draft form
enclosed herewith as Attachment C. Notwithstanding the foregoing, the
required minimum
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monthly production capacity of 1.875MW per month referred to above may be
modified for one or various months/time periods provided that the parties
agree so in writing.
6. ALTERATIONS TO PRODUCTS
The Products specified in Article 3 above and as described in detail in
Attachment A hereto are Products manufactured, assembled and/or procured by
Seller. Any requirement by Buyer to have Seller modify specifications and
features of the Products beyond the specification and features agreed in
the FDRM may affect the Purchase Price, even if such modification
eliminates a feature or relaxes a specification, as all changes require an
engineering charge. Other charges may apply. Buyer will submit all such
requirements to Seller as soon as they become known. Seller will advise
Buyer as soon as practical the effect all such requirements are estimated
to have on price, delivery schedule, performance, and warranties as herein
stated. In particular, Buyer agrees that any subsequent requirement other
than addressed above thereafter agreed upon by the Parties will constitute
a change in Seller's performance requirements and may further affect the
delivery schedule cited above. In the event of any changes required by
Buyer, Buyer hereby releases Seller from strict adherence to this schedule,
although Seller is expected to minimize or eliminate any delay that may
result from changes required by Buyer. Seller reserves the right to make
changes to the type or source of parts used to manufacture the components
of the Products to eliminate any procurement problems or to improve quality
of operations. Prior to the implementation of any of those changes, Seller
shall explain to Buyer the proposed Products alterations/changes and
provide Buyer with sufficient evidence that the proposed changes or
alterations of the Products do not jeopardize the quality and technical
specifications of the originally agreed Products to be alter or replaced.
7. CERTAIN RESPONSIBILITIES OF BUYER AND SELLER
a. INSTALLATION SITE PREPARATION. Buyer will have an installation site,
including but not limited to utility/facility (power, water,
compressed air, factory floor space) requirements in accordance with
the lay-out agreed with Seller in the FDRM, prepared for Seller to
install the Products at the time of its arrival at the
location/address specified by Buyer. Within thirty (30) days after the
arrival of the last Product at such location/address, Buyer and Seller
shall agree on the date on which Seller shall start the installation
of the Products at Buyer's site. Any delay for any reason (save for
FORCE MAJEURE) arising with the Buyer that delays the starting date of
the installation beyond one hundred twenty (120) days after the agreed
start installation date of the Products at Buyer's site, will entitle
Seller, at its option, to terminate this Agreement by notifying Buyer
in writing of such decision and Seller shall be entitled to retain all
payments made by Buyer on account of the Purchase Price. In addition,
any direct added costs incurred by Seller by reason of Buyer's failure
to proceed with installation of the Products and training of its
personnel shall be charged to Buyer, invoiced separately, and payable
thirty (30) days from invoice date with the maximum limit of US$***
U.S. Dollars).
*** Represents text omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with the
Securities and Exchange Commission.
9
Any delay for any reason (save for FORCE MAJEURE) arising with the
Seller that delays the starting date of the installation beyond one
hundred twenty (120) days after the agreed start installation date of
the Products at Buyer's site, will entitle Buyer, at its option, to
terminate this Agreement by notifying Seller in writing of such
decision and Seller shall immediately reimburse Buyer all payments
made by Buyer to Seller on account of the Purchase Price against
return to the Seller of the Products. In addition, any direct added
costs incurred by Buyer by reason of Seller's failure to proceed with
installation of the Products, including the expenses and costs
incurred by the Buyer for the construction and preparation of the
Buyer's site in accordance with the Final Project Documents, hiring
and training of personnel and obligations assumed in relation to third
parties (clients, suppliers, public authorities, lost of subsidies,
etc.) shall be charged to Seller, invoiced separately, and payable
thirty (30) days from invoice date with the maximum limit of
US$***U.S. Dollars).
b. OPENING AND UNPACKING PRODUCTS AT BUYER'S SITE. Buyer shall inform
Seller of the date upon which it intends to open and unpack shipping
containers so as to give Seller twenty (20) days notice. Seller may
send its representative(s) to witness opening and unpacking task at
its expense. If Seller witnesses the opening and unpacking task at
Buyer's site, it shall make note of any missing, defective or damaged
equipment or part, or of any other non-conformity once the same is
jointly established by both parties. If Seller is not present and
there is any missing, defective, or damaged equipment or part, or
there is any other non-conformity present, Buyer shall notify Seller
immediately in writing with appropriate documentation. Seller shall
correct such non-conformities in accordance to the extent necessary to
ensure that all deliverable item in proper working order are present
when installation commences, provided that any non-conformity is the
sole responsibility of Seller
Seller has the right to photograph or videotape the container opening and
inspection process.
Defects discovered during the warranty period will be treated in accordance
with the provisions of the warranty attached hereto as Attachment D.
c. TRAINING. Seller will provide to Buyer training during the course of
the installation process for up to four (4) operators per unit of
equipment at Buyer's site. All such training is understood to be
additional to any training conducted at the Seller's site, or if
previously agreed by the parties at any sub-vendor's facility, and is
associated with any "on-the-job-training" conducted during the
installation process. Additionally, Seller will fully train Buyer's
technicians at Seller's site prior to the installation of the
Manufacturing Line and on the period and conditions previously agreed
with Buyer during the FDRM. All the foregoing training costs will be
deemed to be included in the Purchase Price. All such trainees must be
proficient in spoken and written English, or Buyer must provide a
skilled interpreter/ translation expert to render Seller's
trainer/installer's instructions into trainee's native language in an
effective and efficient manner. Seller will provide operation, repair
and maintenance manuals to Buyer in English, and will attempt to
provide them to Buyer sufficiently in advance of the installation
process to allow Buyer to translate or have them translated and
copied. Seller does not warrant the content of such documents if
translated. Further details regarding the training program for Buyer's
personnel to be agreed between the Parties in the FDRM. Seller will
provide Buyer with training materials capable of producing a minimum
of 30kW of 15% efficient cells (included in the Purchase Price).
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
10
d. WARRANTY (AFTER-SERVICE SUPPORT). Seller will provide Buyer
appropriate warranty (after-service support) associated with the
Manufacturing Line and the Products during the first two (2) years
after the date of signing by Seller and Buyer of the Acceptance Form
of Installation of the Manufacturing Line referred to in Article 5
(c).
e. INTERNATIONAL QUALITY CERTIFICATIONS. Seller will cooperate with Buyer
to assist it to obtain the necessary international quality
certification(s), allowing Buyer to sell its cells on the worldwide
market.
8. WARRANTY
Seller sells the Products set forth herein with a Warranty as shown in
Attachment D hereto. It is this Warranty and no other that shall apply to
any claims of defects in parts and/or labor on any unit of the Products,
save for any mandatory product liability rules applicable in the
jurisdiction of the Buyer.
9. PERFORMANCE GUARANTEE:
Provided that the Buyer has satisfied its obligations as set forth herein,
Seller will provide Performance Guarantees in accordance with the
Acceptance Protocols to be agreed between the parties in the FDRM.
In the event that the results of the Acceptance Protocols show that the
Product(s) fail to meet one or more of the Performance Guarantee
conditions, and such failure is not demonstrably attributable to Buyer,
Seller, at no additional charge to Buyer, shall undertake actions to
correct such defective performance.
The liabilities expressly or implicitly assumed by Seller under this
Agreement shall be Seller's only liability hereunder, at contract and law
(save for mandatory rules which will necessarily apply), and Buyer hereby
releases Seller from any and all liability and claims of liability in
excess thereof.
10. INDEMNITY
Buyer shall indemnify, defend, protect and hold harmless Seller from any
action, suit, complaint, allegation and controversy of whatever kind which
originates in Buyer's operation of the installed Products and the sale or
use of any products that was manufactured using the Products, provided that
Buyer failed to follow the instructions for use provided by Seller in their
entirety, and provided also that no portion of the cause has its origin in
any act of gross negligence on the part of Seller.
Seller shall indemnify, defend, protect and hold harmless Buyer from any
action, suit, complaint, allegation and controversy of whatever kind
directed against Buyer which originates from a violation or infringement of
any of the invention rights, patents, designs, copyrights, trade marks,
service marks, data basis, topographic rights, trade secrets, know-how and
other similar rights which may apply to the Products, whether or not such
rights have been registered. Seller shall have the right to modify, at its
own expense, the design and/or the Product(s) in order to remove any
infringement violation so long as such modifications do not alter the
performance of such Product(s).
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11. WAFERS SUPPLY COMMITMENTS
Seller undertakes to supply Buyer a maximum of approximately 1,500,000
wafers, a volume which should approximate a cell electrical capacity of
***MW prior to the starting date of production of the cells by the
Manufacturing Line or within 60 days after the shipment of the Products.
Buyer shall confirm to Seller the amount of wafers to be supplied through
specific written orders. Said supply orders shall include (i) quantity of
wafers ordered (ii) date of delivery (iii) purchase price (iv) payment
conditions and (v) technical specifications of the wafers ordered.
Before Seller purchases from any third party (supplier, sub-vendor, etc.)
the wafers to be supplied to Buyer according to this Article 11, Seller
should notify Buyer the terms and conditions of such purchase. Buyer shall
provide approval for the purchase of said wafers within a maximum of 1
month as of the date Seller requested its approval for the purchase. Such
approval will not be unreasonable withheld.
This Seller's supply obligation may be cancelled by Buyer, provided that
Buyer gives Seller, at least, one (1) month's written notice of
cancellation from the date Buyer ordered the wafers from Seller.
The quality of the wafers supplied by Seller to Buyer must be sufficient to
guarantee that the Manufacturing Line produces cells with a minimum of 15%
electrical efficiency. Should Buyer purchase from other suppliers
mono-crystalline or multi-crystalline wafers with the same quality (as
defined in the FDRM documents) than those that Seller would be able to
supply to Buyer but on better price conditions, Seller shall not be able to
allege that those wafers do not allow the Manufacturing Line to produce
cells with the agreed electrical efficiency which is the subject matter of
this Agreement.
Without prejudice to the above, should Purchaser acquires from a third
party wafers with lower quality than those defined in the FDRM documents,
the Parties shall agree in writing on the cell electrical characterization
of the cells to be produced by the Manufacturing Line from such wafers.
Should the Parties fail to reach an agreement on the cell electrical
characterization of the cells to be produced from said wafers acquired by
the Purchaser, it is hereby agreed that Fraunhofer Institute for Solar
Energy Systems shall determine whether the quality and technical conditions
of said wafers are sufficient to produce 15% electrical efficiency cells
and, if applicable, what would be the maximum electrical efficiency to be
achieved with wafers of such quality conditions. In such event, Fraunhofer
Institute for Solar Energy Systems will be the definitive authority and its
decision will be binding between the Parties.
The purchase price of the wafers shall be agreed between Seller and Buyer
for each supply on the basis of the wafers worldwide market conditions,
failing which purchase price of said wafers shall be fixed by the parties
on the basis of the average purchase price of major recognized
international wafer vendors, including but not limited to following
vendors: ***. Upon receipt of the quotation of such vendors either party
will inform the other party of the appropriate purchase price. It is
understood that Buyer shall pay Seller the purchase price of the wafers
supplied by Seller pursuant to this Article 11 separated from the Purchase
Price of the Manufacturing Line.
*** 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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12. CONFIDENTIALITY
Certain matters regarding this relationship embodied by this Agreement may
be considered confidential or sensitive to one or the other Party to this
Agreement. The Parties agree that all such matters, once identified, will
be treated in accordance with the Confidential Disclosure Agreement
attached hereto as Attachment E. This Agreement does not confer any right
of ownership to any technical data disclosed to Buyer for Process
Technology development purposes, and Buyer shall not release any technical
data to any third party without the written approval of Seller. It is
understood that certain aspects of this Agreement may be required to be
revealed to governmental authorities, including without limit *** and
United States regulatory authorities.
13. NO LICENSE
This Agreement does not convey any license to Buyer to use Seller's name or
any form of its corporate identification in any jurisdiction. Buyer is
allowed a limited non-exclusive license to use certain technical data for
the purpose of developing process technology.
14. GENERAL PROVISIONS
a. NO WAIVER. Waiver of any provision of this Agreement, in whole or in
part, in any one instance shall not constitute a waiver of any other
provision in the same instance, or any waiver of the same provision in
any other instance, but each provision shall continue in full force
and effect with respect to any other then-existing or subsequent
breach.
b. NOTICE. Any notice required or permitted under this Agreement shall be
given in writing to the Parties at their respective addresses as
specified above, or at such other address for a Party as that Party
may specify by notice (i) by delivery in hand or, (ii) registered or
certified mail, return receipt requested, or courier or some other
form of expedited delivery service that provides for delivery to the
sender of a signed receipt. Notice so sent shall be effective upon
receipt unless otherwise specified herein or in the notice.
c. ARBITRATION OF DISPUTES. All disputes arising out of or in connection
with this Agreement that cannot be readily or amicably solved by the
Parties shall be finally settled pursuant to the Rules of Arbitration
of the International Chamber of Commerce by three arbitrators
appointed in accordance with said rules. The place of arbitration
shall be *** and the arbitration shall be conducted in the English
language.
d. FORCE MAJEURE. Neither Party to this Agreement shall be responsible to
the other Party for delays or errors in its performance or other
breach under this Agreement occurring solely by reason of
circumstances beyond its control, including acts of civil or military
authority, national emergencies, fire, labor disputes, flood or
catastrophe, acts of God, insurrection, war, riots, severe weather,
delays of suppliers if not under Seller's control, or failure of
transportation, communication or power supply.
*** 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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e. MISCELLANEOUS. This Agreement: (i) may be executed in any number of
counterparts, each of which, when executed by both Parties to this
Agreement shall be deemed to be an original, and all of which
counterparts together shall constitute one in the same instrument;
(ii) shall be governed by and construed under the laws of the ***,
without application to the principle of conflict of laws; (iii) except
and to the extent expressly provided for in Article 12, this Agreement
constitutes the entire agreement between the Parties with respect to
its subject matter, superceding all prior oral and written (except as
previously noted) written communications, proposals, negotiations,
representations, understandings, courses of dealing, agreements,
contracts, and the like between the Parties in such respect; (iv) may
be amended, modified, and any right under this Agreement may be waived
in whole or in part, only by a writing signed by both Parties; (v)
contains headings only for convenience, which headings do not form
part, and shall not be used in construction, of this Agreement; (vi)
shall bind and inure to the benefit of the Parties and their
respective legal representatives, successors and assigns, including,
without limitation, to a Parties corporate parents or affiliates,
provides that no Party may delegate any of its obligations under this
Agreement or assign this Agreement except to a related entity or
successor by sale or merger, without prior written consent of the
other party. This Agreement is in the English language only which
language shall be controlling in all aspects.
f. In the event either Party is in default for a hundred and twenty (120)
days in any obligation hereunder, and the other Party has given
written notice specifying the claimed particulars of such default,
which shall continue for a period of thirty (30) days after the date
of such notice, the party giving notice may thereupon terminate this
Agreement forthwith by giving the other Party ten (10) days written
notice of termination.
15. UNITED STATES EXPORT REGULATIONS
Seller 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 Seller can
furnish such technical data to Buyer only on the condition that Buyer not
re-export the technical data and/or information to any country to which
Seller may not, without a validated export license, export such data
directly.
16. COMPLIANCE WITH LAWS GENERALLY
Both Parties agree that they will diligently comply with all relevant laws,
statutes, orders and administrative regulations of all relevant
jurisdictions, at all relevant times. Each Party additionally agrees to
indemnify and hold the other Party harmless from any governmental action at
law that results from the willful or negligent failure of the indemnifying
Party to comply with any relevant law, statute, order or administrative
regulation. The Parties hereby certify that they are, to the best of their
knowledge, compliant with all such laws, statutes, orders, and
administrative regulations.
*** 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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17. ASSIGNMENT
This Agreement shall not be assignable by either party hereto without the
express prior written consent of the other party, except that it may be
assigned without such consent to the successors to and assigns of
substantially the entire assets and business of such party. No assignment
hereof shall be valid without the assumption in writing by such successors
or assigns of all obligations under this Agreement. When duly assigned in
accordance with the foregoing, this Agreement shall be binding upon and
inure to the benefit of the assignee.
18. MAXIMUM AGGREGATE LIABILITY OF SELLER
Seller shall be exclusively compelled to pay Buyer an aggregate maximum
amount of up to US$*** U.S. Dollars) as a consequence of its liability
and/or penalties for failure to deliver the Products to the Buyer on due
time according to Article 4 above, failure to start the installation beyond
the agreed start installation date according to Article 7.a above and loss
of profits and other consequential damages resulting from a failure or
defect of the equipment/Products(s) according to Attachment D.
In addition to the above the maximum liability of the Seller for the non
satisfactory performance of the Manufacturing Line in accordance with the
terms and conditions of Article 5 (c), will be limited to the reduction of
the Purchase Price referred to in Article 4.G.
IN WITNESS WHEREOF, the Parties hereto have set their respective hand and seals
signifying their concurrence and endorsement with and of the foregoing, in a
number of counterpart copies, each of which shall be deemed to be an original
for all purposes and deemed effective and binding on the date at the head of
this document.
***
/S/ ***
- ---------------------------------
By: ***
Title: ***
Place: ***
Date: March 16, 2006
Spire Corporation
/s/ Rodger W. LaFavre
- ---------------------------------
By: Rodger W. LaFavre
Title: Chief Operating Officer, Spire Corporation
Place: Bedford, Massachusetts, U.S.A.
Date: March 16, 2006
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
15
ATTACHMENT A
DATA SHEETS (***)
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
16
ATTACHMENT B
ACCEPTANCE FORM OF INSTALLATION OF THE MANUFACTURING LINE
SIGNED BY APPLICANT AND BENEFICIARY
Agreement: Turn-Key Project Agreement dated January 18,
2006
Beneficiary: Spire Corporation
Applicant: ***
Description of Items Installed
of the Manufacturing Line: Etch Station: US$***
Dopant Spray Coater: US$***
Belt Diffusion Furnace: US$***
Plasma Etcher: US$***
HF Etch Station: US$***
Surface Resistivity Tester: US$***
PECVD AR Coater: US$***
Vacuum Leak Detector: US$***
Screen Printer & Collater: US$***
Belt IR Drier and Furnace: US$***
Screen Printer & Collater: US$***
Belt IR Dryer: US$***
Screen Printer & Collater: US$***
Belt IR Drier & Furnace: US$***
Screen Cleaner: US$***
Screen Tension Gauge: US$***
Microscope, Stereo Zoom 10.5 to 45x: US$***
Wafer Lifetime Tester: US$***
Miscellaneous and 30kW of training
Materials: US$***
Spare Parts: Price included above
All transport mechanisms needed
to move and handle the processed
wafers between the major
equipment during the
manufacturing process of the
Manufacturing Line, including
cassettes, carriers, carts and
the like: Price Included above.
This document confirms in entirety the installation of the Manufacturing Line
according to the terms and conditions of the aforementioned Agreement entered
into by the Applicant and Beneficiary, which is signed below by both parties on
[ ].
*** SPIRE CORPORATION
Signature: Signature:
----------------------- -------------------------
Typed Name: Typed Name:
----------------------- -------------------------
Title: Title:
----------------------- -------------------------
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
17
ATTACHMENT C
ACCEPTANCE FORM OF PERFORMANCE OF THE MANUFACTURING LINE
SIGNED BY APPLICANT AND BENEFICIARY
Agreement: Turn-Key Project Agreement dated January 18, 2006
Beneficiary: Spire Corporation
Applicant: ***
Description of Performance
of the Manufacturing Line: Satisfactory Performance
This document confirms in entirety the performance of the Manufacturing Line
according to the terms and conditions of the aforementioned Agreement entered
into by the Applicant and Beneficiary, which is signed below by both parties on
[ ].
***
Signature:
-------------------------------
Typed Name:
-------------------------------
Title:
-------------------------------
SPIRE CORPORATION
Signature:
-------------------------------
Typed Name:
-------------------------------
Title:
-------------------------------
*** 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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ATTACHMENT D
STANDARD WARRANTY FOR SPIRE EQUIPMENT/PRODUCTS
Seller's Warranty: Seller warrants this equipment/Product(s) against defective
components (excluding expendables) and workmanship and warrants that the
equipment/Product(s) will operate in accordance with current specification
sheets for that equipment/Product(s). Seller's warranty is limited to the repair
and replacement of the equipment/Product(s), including all necessary parts and
labor, for a period of two (2) years after the date of signing by Seller and
Buyer of the Acceptance Form of Installation of the Manufacturing Line referred
to in Attachment B of the Agreement. It is understood that Buyer's personnel
will be responsible for the replacement of parts of the Product(s) that can
reasonably and safely be replaced in under two hours. This warranty is void
where it is determined that the equipment/Product(s) in question was subject to
accident, negligence, misuse, using the equipment for purposes other than what
it was designed for, or not maintaining the equipment/Product(s) in accordance
with the specifications and instructions provided. The subject
equipment/Product(s) is designed to operate on a nominal 24 hour per day period
(exclusive of normal maintenance time), as such, the nominal 24 hour per day
operation (exclusive of normal maintenance time) is not considered abuse.
Repairs and modifications are warranted only when performed by Seller's
personnel or Buyer's personnel authorized by Seller. This warranty is valid only
to the original purchaser of the equipment.. Items not covered by this include
lamps, test fixtures, vacuum cups filters and other expendable items.
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ATTACHMENT E
CONFIDENTIAL DISCLOSURE AGREEMENT
AGREEMENT made this 18th day of January 2006 between SPIRE CORPORATION, One
Patriots Park, Bedford, Massachusetts, 01730-2396 (hereinafter called "SPIRE"),
and *** (hereinafter called "COMPANY").
WHEREAS, COMPANY and SPIRE have represented to each other that each owns, may
own or is interested in receiving Proprietary Information (as defined below)
pertaining to: The design, engineering, manufacture and marketing, and sale of a
Photovoltaic Cell Manufacturing Line as further described in the Turn Key
Project Agreement to which this Agreement is attached to: its use and operation,
the establishment and operation of a photovoltaic device manufacturing business,
business plans and strategies, etc.
WHEREAS, COMPANY and SPIRE intend to exchange Proprietary Information for the
following purpose(s): Establishment, development and maintenance of a
vendor-customer relationship.
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, phototypes, test results, trade secrets,
processes, patentable inventions, plans and other business, financial ort
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 labelled 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 labelled.
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.
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
20
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.
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 ***.
6. TERM
The term of this agreement shall be three (3) year(s) from the date written
above, except as to the obligations set forth in paragraph 2.
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
21