EXHIBIT 10(ak)
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Confidential Treatment Requested as to certain information contained in this
Exhibit and filed separately with the Securities and Exchange Commission.
Project Management Agreement
for
Utilities & Infrastructure Supply
for Spire Cell and Module Line
August 26, 2009
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.;
Uni-CHEM Co., Ltd. (the "Buyer"), a business established in Republic of
Korea, with its principle place of business at 7 Floor, SAMWOO Building,
50-12 Bangpo-Dong, Seocho-Gu, Seoul, Korea
2. Terms of Agreement:
Seller agrees to sell to Buyer and Buyer agrees to buy from Seller the
Services described in Article 3 below.
3. Description and Price:
a. DESCRIPTION
Seller will be responsible for providing the civil, architectural,
utilities, and infrastructure aspects of the building structure
selected for the Solar Photovoltaics Cell and Module Lines provided
by Seller to Buyer under separate Purchase and Sale Agreements. In
this role, Seller will provide utility equipment design and project
management guidance to Buyer and Buyer's contractors for the purpose
of modifying and preparing a facility to house Buyer's subject Cell
and Module Line, with all appropriate capabilities for operation.
Seller's scope of services specifically excludes any and all direct
construction execution activities, other than that related to the
installation of the applicable utility equipment. Seller will
provide following activities:
i. PREPARE PROJECT PLAN, Matters to be included in the project plan
are scope of responsibilities, deliverables, participants, timeline,
key checkpoints, and budget-related information;
ii. EVALUATION PROCESS. Seller will support Buyer in its evaluation
process for the selection of appropriate contractors;
iii. CONTRACTS. Seller shall, based upon Buyer's agreement, enter
into contracts with the applicable civil/architectural contractors
for the facility modification. Such contractors shall provide all
appropriate guarantees through Seller; any recourse that Buyer may
have shall be limited to that provided to Seller by the contractors.
iv. COORDINATION. Seller will be responsible for coordinating all
the parties involved such as:
a) Architect- Engineering firm
b) Contractors
c) Consultants
v. FACILITY INFRASTRUCTURE. Seller shall review and coordinate all
facility-related specifications, prepare bid packages, and provide
the applicable utility equipment to Buyer for contractor selection.
The facility infrastructure shall include the following:
GENERAL BUILDING SYSTEMS
The general building systems comprise:
***
PROCESS CRITICAL SYSTEMS
The process critical systems comprise:
***
The services that Seller shall carry out for the general building
systems and process critical systems are:
***
vi. CONTRACTOR MANAGEMENT. Seller shall:
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
a. Provide recommendations on local contractors; and
b. Together with Buyer, Seller will choose and sign
contracts with various suppliers/ agencies for project
management consulting regarding utilities and
infrastructure; and
c. Coordinate and follow up on any necessary and applicable
obligations that pertain to Seller's responsibilities
that yet remain.
vii. FACILITY MODIFICATION. Building will be provided for leasing by
Seller. Building modification and preparation shall be a regional
activity involving local labor and local contractors.
viii. APPROVALS AND PERMITS. All regulatory approvals, building
permits, and other required appropriate formal documentation shall
be obtained by Buyer.
ix. INSTALLATIONS. Seller shall oversee all facility equipment
installation and acceptance. In addition, Seller shall also oversee
all process equipment hookups. Seller shall provide on-site
supervisory services during all above activities.
b. PRICE:
The price for the services discussed herein, including technical
documents, technical services, and training in their operation and
maintenance, as set forth above, is a total of U.S. Dollars
$11,500,000.00 (Eleven Million Five Hundred Thousand US Dollars).
Such payment shall be due within ten (10) business days of Buyer's
receipt of Seller's invoice for these services.
Item Description Quantity
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1 Infrastructure and Utilities 1
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$11,500,000
4. 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 all or some portion of the
instructions for use provided by Seller, and provided also that no
portion of the cause has its origin in any act of gross negligence on
the part of Seller.
5. 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 F. 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.
6. 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.
7. 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 the city of New York USA 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, major mechanical
breakdown, labor disputes, flood or catastrophe, acts of God,
insurrection, war, riots, severe weather, delays of suppliers, or
failure of transportation, communication or power supply.
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
Commonwealth of Massachusetts applicable to contracts
made, accepted, and performed wholly in The Commonwealth, 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, superseding 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 sixty (60) 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. Buyer shall nevertheless be obligated to pay
Seller all payments due pursuant to Seller's costs to date.
8. 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. Buyer acknowledges that Buyer is
knowledgeable of such Export Regulations and agrees not to violate them
or take any action or fail to take such action that would allow
technical data and/or information or any product based upon them to be
shipped either directly or indirectly to any country not permitted by
said regulations unless prior written authorization is obtained from the
relevant agencies having jurisdiction over such shipment either directly
or through Seller.
9. 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.
10. 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 hands and seals
signifying their concurrence with, and endorsement of, the foregoing in a number
of counterpart copies, each of which shall be deemed to be an original for all
purposes and effective upon the date first written above.
Spire Corporation Uni-CHEM Co., Ltd.
By: /s/ Roger G. Little By: /s/ Hochan Lee
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Name: Roger G. Little Name: Hochan Lee
Title: CEO Title: Chairman
Date: 8/26/09 Date: Aug. 26, 2009