EXHIBIT 10(r)
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Confidential Treatment Requested as to certain information contained in this
Exhibit 10(r) and filed separately with the Securities and Exchange Commission
WAFERS SUPPLY 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 supply at Buyer's site a maximum of approximately
4,500,000 wafers, a volume which should approximate a cell electrical
capacity of ***MW, such wafers shall be either mono-crystalline or
multi-crystalline wafers, and based upon wafers sizes of 100mm, and/or
125mm and/or 156mm with a silicon minority carrier life time specified by
Seller, hereinafter "wafers". It is understood that the intent of this
supply is to allow Buyer to produce approximately ***MW of cells with an
electrical efficiency of 15% through the Photovoltaic Cell Manufacturing
Line (the "Manufacturing Line") to be supplied and installed by Seller at
Buyer's site pursuant to the Turn-Key Project Agreement signed today
between the Seller and the Buyer.
3. SUPPLY TERMS
Seller commits to supply Buyer said maximum of approximately 4,500,000
wafers, a volume which should approximate a cell electrical capacity of
***MW to be used by Buyer for the production of the cells through the
Manufacturing Line during the first three quarters of 2007 ("Maximum Term
of Supply of Wafers").
Unless otherwise agreed between the Parties, Seller shall supply said
wafers within the Maximum Term of Supply of Wafers on the basis of a
minimum supply of ***MW and a maximum supply of ***MW per each of the said
three quarters of 2007. 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.
*** 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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Before Seller purchases from any third party (supplier, sub-vendor, etc.)
the wafers to be supplied to Buyer pursuant to this Agreement, 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.
During the whole Maximum Term of Supply of Wafers, Buyer shall be freely
entitled to purchase the wafers from other suppliers. In such case,
Seller's obligation to supply wafers shall be reduced proportionally in the
same amount of wafers to be purchased by Buyer from other suppliers.
The quality of the wafers supplied by Seller to Buyer pursuant to this
Agreement must be sufficient to guarantee that the Manufacturing Line
produces cells with a 15% electrical efficiency, as further defined in the
Turn-Key Project Agreement signed today.
4. PRICE AND TERMS OF PAYMENT
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 the wafers shall be fixed by the parties on
the basis of the average purchase price of major recognized international
wafers 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.
5. WARRANTY
Seller sells the wafers with a Warranty as shown in Attachment A hereto. It
is this Warranty and no other that shall apply to any claims of defects in
the wafers, save for any mandatory product liability rules applicable in
the jurisdiction of the Buyer.
6. INDEMNITY
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 on a violation or infringement of
any and all invention rights, patents, designs, copy-rights, trademarks,
service marks, data basis, topographic rights, trade secrets, know how and
other similar rights which may apply to the wafers supplied by Buyer,
whether or not such rights have been registered.
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 for the sale or use of any products that was
manufactured using the wafers, 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.
*** 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. 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 B. 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.
8. 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, 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 11, 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 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.
9. 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.
10. 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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11. 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.
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/ ***
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By: ***
Title: ***
Place: ***
Date: March 16, 2006
Spire Corporation
/s/ Rodger W. LaFavre
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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.
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ATTACHMENT A
STANDARD WARRANTY FOR WAFERS SUPPLIED BY SPIRE
Seller's Warranty: Seller warrants the wafers against defects and workmanship
and warrants that the wafers will meet the quality and technical specifications
agreed by the Parties in this Wafers Supply Agreement. Seller's warranty is
limited to the replacement of those wafers which do not meet said quality and
technical criteria, including labor, for a period of one (1) year after the date
of supply of the wafers to Buyer, or until such wafers are utilized by Buyer in
the Manufacturing Line, whichever comes first. This warranty is void where it is
determined that the wafers in question were subject to accident, negligence,
misuse, using the Manufacturing Line for purposes other than what it was
supplied for, or not maintaining the wafers in accordance with the
specifications and instructions provided by Seller.
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ATTACHMENT B
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 of wafers to
be used by Buyer for the production of cell through the Photovoltaic Cell
Manufacturing Line as further described in the Turn-Key Project Agreement
executed today between the parties to which this Agreement is attached to.
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.
*** 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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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.
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.
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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.
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