EXHIBIT 10(x)
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Confidential treatment requested as to certain information contained in this
Exhibit 10(x) and filed separately with the Securities and Exchange Commission.
OPERATING AGREEMENT
OF XXXXXX XXXXX SOLAR, LLC
among
SPIRE CORPORATION
XXXXXX SOLAR (DELAWARE) COMPANY, LTD.
and
XXXXXX XXXXX SOLAR, LLC
July 31, 2007
OPERATING AGREEMENT
OF XXXXXX XXXXX SOLAR, LLC
This Operating Agreement of Xxxxxx Xxxxx Solar, LLC (the "Agreement") is
made and effective as of this 31st day of July, 2007, by and among Spire
Corporation, a Massachusetts corporation, with its principal place of business
at Xxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx ("Spire"), Xxxxxx Solar (Delaware)
Company, Ltd., a Delaware corporation, with its principal place of business at
Xx.000, Xxx. 0, Xxxxxxx Xx., Xxxxx Xxxxxxxx, Xxxxxx Xxxx 709, Taiwan, Republic
of China, ("Xxxxxx (Delaware)") and Xxxxxx Xxxxx Solar, LLC, a Delaware limited
liability company with its principal place of business at Xxx Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxxx (the "Company"; each of Xxxxx, Xxxxxx (Delaware) and the
Company, a "Party" and, collectively, the "Parties").
WHEREAS, Spire is a leading supplier in the design and manufacture of
specialized equipment for producing photovoltaic ("PV") solar modules and also
manufactures, designs, and installs high-quality PV systems and components;
WHEREAS , Xxxxxx (Delaware) manufactures and sells PV solar modules and
intends to enter the United States market; and
WHEREAS, Spire and Xxxxxx (Delaware) desire to organize the Company under
the laws of the State of Delaware for the purpose of conducting a business of
design, marketing, sale, installation coordination and project management of PV
Systems using PV Modules manufactured by Xxxxxx (Delaware) and the Company and
intend that the Company be a leading PV System provider to commercial,
government and utility customers in the United States; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
Xxxxxx (Delaware) and Spire are entering into a Contribution Agreement, dated as
of the date hereof (the "Contribution Agreement"), pursuant to which Spire and
Xxxxxx Solar Co., Ltd. ("Xxxxxx") have agreed to form the Company;
NOW, THEREFORE, in the light of their respective activities, abilities, and
objectives, as described above, both Parties wish to sell PV systems, and in
consideration of the mutual covenants and promises contained herein, the Parties
agree as follows:
ARTICLE 1
Definitions
As used in this Agreement, the following terms shall have the meanings
specified:
1.01 "Act" means the Delaware Limited Liability Company Act, as the same
may be amended from time to time.
1.02 "Affiliate" means a Person who, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, the Person specified. For purposes of this Agreement, the Company, Spire
and Xxxxxx (Delaware) shall not be deemed to be Affiliates of each other. For
purposes of this Agreement, "control" (including the terms "controlled by" and
"under common control with") means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
1.03 "Asset Purchase Agreement" means the Asset Purchase Agreement, dated
as of the date hereof, entered into by and between Spire and Xxxxxx, pursuant to
which Xxxxxx will purchase from Spire certain PV Module manufacturing assets.
1.04 "Assignment and Assumption Agreement" has the meaning provided in the
Contribution Agreement.
1.05 "Xxxx of Sale" has the meaning provided in the Asset Purchase
Agreement.
1.06 "Business Practices" means information relating to business
operations, business plans, accounting and financial information, products,
services, manufacturing processes and methods, test methods, equipment,
packaging, costs purchasing data, sources of supply, advertising and marketing
plans, customer lists, sales, profits, pricing methods, personnel and business
relationships.
1.07 "Business Day" means any Day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by applicable law to be closed in
Taiwan, the Republic of China or the United States.
1.08 "Closing" has the meaning provided in the Contribution Agreement.
1.09 "Company Business" means the design, marketing, sale, installation
coordination and project management of PV Systems to commercial, government, and
utility customers in the United States using PV Modules and all other types of
photovoltaic electricity-generating panels ***, and the provision of services to
Xxxxxx (Delaware) or its Affiliates for purposes of manufacturing PV Modules
pursuant to the Subcontracting Agreement. For the avoidance of doubt, 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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Company Business shall not be deemed to include the designing, building, and
selling of PV Module manufacturing equipment, including sales of any advanced
manufacturing equipment line to produce PV Systems for customers in all fields
(specifically including, without limitation, customers seeking to build
utility-scale electric generation stations and customers seeking to build
equipment suitable for building such manufacturing equipment).
1.10 "Confidential Information" means: (a) all non-public information,
technical data, and know-how, regardless of the form, whether tangible or
intangible, of which the receiving Party becomes aware as a result or in the
course of the performance of this Agreement, which could reasonably be
understood to be confidential, whether or not so marked and which is related to
the disclosing Party's business; and (b) all other information or data
identified as proprietary or confidential at the time of disclosure which either
Party or its representatives provides or discloses to the other Party in order
to perform its obligations pursuant to this Agreement.
1.11 "Days" or "days" means all calendar days, regardless of whether such
days are legal holidays under the laws of the United States or any State or the
laws of Taiwan, the Republic of China.
1.12 "GAAP" means United States generally accepted accounting principles as
in effect from time to time.
1.13 "Intellectual Property" means intellectual property of any type
throughout the world, including the following: (a) Patents; (b) Trade Secrets;
(c) database rights, original works of authorship, copyrights, copyright
registrations and applications therefor, renewals and extensions thereto and all
other rights corresponding thereof throughout the world; (d) Mask Works; (e)
industrial designs and any registrations and applications therefor throughout
the world; (f) rights in World Wide Web addresses and domain names and
applications and registrations therefor; (g) trade names, logos, common law
trademarks and service marks, trademark and service xxxx registrations and
applications therefor, including the goodwill of the business symbolized thereby
or associated therewith; and (h) Software, and any and all other proprietary
rights throughout the world.
1.14 "Mask Works" means mask works, mask work registrations and
applications therefore, and any equivalent or similar rights in semiconductor
masks, layouts, architectures or topology.
1.15 "Member" or "Members" means either or both of Spire and Xxxxxx
(Delaware), as the context may require, or a person or entity with an ownership
interest in the Company with the rights and obligations as specified herein.
1.16 "Membership Interest" means a Member's entire equity interest in the
Company, including the Membership Units owned by such Member and any right of
such Member to the return of Capital Contributions and any interest thereon.
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1.17 "Membership Unit" means a limited liability company interest in the
Company (not including any right to the return of capital contributions and any
interest thereon) representing such fractional part of the interest of all unit
holders pursuant to this Agreement as is equal to the quotient of one divided by
the total number of Membership Units as evidenced by a certificate in the form
of Exhibit A.
1.18 "Patents" means: (a) patents and patent applications, including
provisionals, continuations, continuations-in-part, reissues, reexaminations and
extensions thereof; (b) inventions, discoveries (whether or not patentable or
reduced to practice) and improvements thereto; (c) statutory invention
registrations; and (d) all other rights corresponding to the foregoing in
subsections (a) through (c) throughout the world.
1.19 "Person" means any individual, corporation, partnership, limited
partnership, limited liability company, joint venture, trust, unincorporated or
governmental organization or any agency or political subdivision thereof.
1.20 "PV Module" means a photovoltaic electricity-generating panel using
any variety of silicon and deposited metals with peak electricity production of
less than five hundred seventy-five (575) xxxxx and dimensions with a maximum
limit of two hundred fifty centimeters (250 cm) by one hundred fifty centimeters
(150 cm).
1.21 "PV System" means an electricity generating system comprising one or
more interconnected PV Modules and additional balance of system ("BOS")
components, typically installed on rooftops, or as ground-mounted arrays, or
integrated into building designs, which can be interconnected to the electric
utility grid (grid-tied) or separate from the utility grid (off-grid).
1.22 "Software" means all: (a) computer programs, applications, systems and
code, including software implementations of algorithms, models and
methodologies, and source code and object code; (b) Internet and intranet
websites, databases and compilations, including data and collections of data,
whether machine-readable or otherwise; (c) development and design tools, library
functions and compilers; (d) technology supporting websites, and the contents
and audiovisual displays of websites; and (e) documentation, other works of
authorship and media, including user manuals and training materials, relating to
or embodying any of the foregoing or on which any of the foregoing is recorded.
1.23 "Spire PV Technology" has the meaning provided in the Contribution
Agreement.
1.24 "Subcontracting Agreement" means the Subcontracting Agreement, dated
as of the date hereof, to be entered into by and between Xxxxxx and the Company,
pursuant to which Xxxxxx shall subcontract the Company to operate the assets
purchased by Xxxxxx from Spire under the Asset Purchase Agreement.
1.25 "Sublease Agreement" means the Sublease Agreement, dated as of the
date hereof, to be entered into by and between Spire and Xxxxxx, pursuant to
which Spire
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shall sublease certain premises to Xxxxxx for purposes of housing the assets
purchased by Xxxxxx from Spire under the Asset Purchase Agreement.
1.26 "Technology License Agreement" has the meaning provided in the
Contribution Agreement.
1.27 "Trade Secret" means trade secrets, know-how, and other confidential
or proprietary technical, business and other information, including
manufacturing and production processes and techniques, research and development
information, technology, drawings, specifications, designs, plans, proposals,
technical data and business data.
1.28 "Trademark License Agreements" has the meaning provided in the
Contribution Agreement.
1.29 "Transaction Documents" means this Agreement, the Contribution
Agreement, the Asset Purchase Agreement, the Xxxx of Sale, the Trademark License
Agreements, the Subcontracting Agreement, the Sublease Agreement, the
Transitional Services Agreement, the Assignment and Assumption Agreement and the
Technology License Agreement.
1.30 "Transitional Services Agreement" has the meaning provided in the
Contribution Agreement.
1.31 "***.
ARTICLE 2
Formation, Purpose and Scope
2.01 Formation.
a. The Members hereby form and confirm the formation of the Company as a
limited liability company under and pursuant to the provisions of the
Act and all other pertinent laws of the State of Delaware for the
purposes and upon the terms and conditions hereinafter set forth. The
Parties agree that their rights, duties and liabilities and the rights
duties and liabilities of any additional Member admitted to the
Company in accordance with the terms hereof, shall be as provided in
the Act, except as otherwise provided herein. Notwithstanding the
foregoing, the Members of the Company intend that the Company not be a
partnership (including a limited partnership) or joint venture and no
Member be a partner or joint venturer of or with any other Member for
any purposes other than for tax purposes; and that neither Member
shall be considered as an agent or fiduciary of the other or of the
Company. This Agreement shall not be construed to suggest otherwise.
*** 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. The name and mailing address of each Member shall be listed on
Schedule 2.01 attached hereto. Each of the Members is hereby admitted
as a Member of the Company. Additional Members shall be admitted as
Members of the Company in accordance with Section 7.03. The Chief
Executive Officer, or a designee of the Chief Executive Officer, shall
be required to update Schedule 2.01 from time to time, as necessary to
reflect accurately the information therein as known by the Chief
Executive Officer, but no such update shall modify Schedule 2.01 in
any manner inconsistent with this Agreement or the Act. Any amendment
or revision to Schedule 2.01 made in accordance with this Agreement
shall not be deemed an amendment to this Agreement for purposes of
Section 15.15(a). Any reference in this Agreement to Schedule 2.01
shall be deemed to be a reference to Schedule 2.01, as amended and in
effect from time to time.
c. The Company's Certificate of Formation, substantially in the form
attached hereto as Exhibit B, shall be filed in the office of the
Secretary of State of Delaware on the date hereof. The Chief Executive
Officer, or a designee of the Chief Executive Officer, is hereby
designated as an authorized person, within the meaning of the Act, to
execute, deliver and file, or to cause the execution, delivery and
filing of, any amendments or restatements of the Company's Certificate
of Formation and any other certificates, notices, statements or other
instruments (and any amendments or restatements thereof) necessary or
advisable for the formation of the Company or the operation of the
Company in all jurisdictions where the Company may elect to do
business, but no such amendment, restatement or other instrument may
be executed, delivered or filed unless adopted in a manner authorized
by this Agreement.
2.02 Scope and Purpose of the Company. The scope and purpose of the Company
shall be the Company Business and such other scope or purpose as the Managing
Board shall determine from time to time in accordance with Section 4.06(n).
2.03 Name of the Company. The name of the Company formed hereby is Xxxxxx
Xxxxx Solar, LLC. The Company Business may not be conducted under any other name
unless the Parties hereto expressly agree in writing.
2.04 Registered Office and Agent. Xxxxxx Xxxxx Solar, LLC, a Delaware
limited liability company, may have such offices, either within or outside the
State of Delaware, as the Members may require from time to time. The address of
the registered office of the Company shall be the Corporation Trust Center, 0000
Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle. The registered
agent of the Company shall be the Corporation Trust Center.
2.05 Powers. The Company shall have such powers as are necessary or
appropriate to carry out its purposes as defined hereinabove at Section 2.02,
including without limitation the following powers:
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a. to have and maintain one or more offices, and in connection therewith
to rent, lease, or purchase office or manufacturing space, facilities
and equipment, to engage and pay personnel and do such other acts and
things and incur such other expenses on its behalf as may be necessary
or advisable in the conduct of the Company Business;
b. to open, maintain, and close bank accounts, and to draw checks and
other orders for the payment of money;
c. to retain agents, independent contractors, attorneys, financial
accountants, and other experts selected by the Managing Board on
behalf of and at the expense of the Company; to employ and dismiss
from employment any and all employees, agents, or independent
contractors; to purchase, lease, or license assets or properties,
whether real or personal, tangible or intangible;
d. to enter into, make and perform all such contracts, agreements and
other undertakings, including indemnity agreements, as may be
necessary or advisable or incident to carrying out the foregoing; and
e. to engage in such other lawful business, trade, and activities as the
Managing Board may deem necessary or advisable in connection with the
foregoing, but only as such other business, trade, and activities
remain within the scope and purpose of the Company stated hereinabove
at Section 2.02.
2.06 Term and Duration. The term of the Company shall commence on the
Closing and shall continue until: (a) the Company is liquidated or dissolved
pursuant to applicable law or the terms of this Agreement; (b) all of the
Membership Interests of the Company are held by one Member; or (c) this
Agreement is terminated by mutual agreement of the Members or in accordance with
the provisions of this Agreement, whichever occurs first. After liquidation and
winding-up of the Company pursuant to Article 12, the Members shall not be bound
by the provisions of this Agreement except for any outstanding disputes or
claims and the continuing obligations in Articles 8, 14, and 15, which shall
survive any termination, liquidation and winding-up of the Company.
2.07 Maintenance of Separate Existence. The Company shall do all things
necessary to maintain its limited liability company existence separate and apart
from each Member and any Affiliate of any Member, including holding regular
meetings of the Members and maintaining its books and records on a current basis
separate from that of any Affiliate of the Company or any other Person, and
shall not commingle the Company's assets with those of any Affiliate of the
Company or any other Person. In furtherance, and not in limitation, of the
foregoing, the Company shall not:
a. Authorize or permit any Person other than the Chief Executive Officer
to act on its own behalf with respect to matters (other than matters
customarily delegated to others under powers of attorney) for which a
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limited liability company's members or managing member would
customarily be responsible;
b. Fail (i) to maintain or cause to be maintained by an agent under the
Company's control physical possession of all its books and records,
(ii) to maintain capitalization adequate for the conduct of its
business, (iii) to account for and manage all of its liabilities
separately from those of any other Person, including payment by it of
administrative expenses and taxes, other than income taxes, from its
own assets, or (iv) to identify or cause to be identified separately
all of its assets from those of any other Person;
c. Except as contemplated by Section 3.04, commingle, or permit the
commingling of, its funds with the funds of any Member or any
Affiliate of any Member or use its funds for other than the Company's
uses; or
d. Except as contemplated by Section 3.04, maintain, or permit the
maintenance of, joint bank accounts or other depository accounts to
which any Member would have independent access.
2.08 No Personal Liability. Except as provided by the Act, no Member or any
Manager shall be personally liable for any obligations of the Company and except
as specifically provided in Article 3, no Member shall have any obligation or be
required to make any capital contribution or loan or otherwise advance any funds
to the Company.
ARTICLE 3
Capital Contributions and Interests of the Company
3.01 Initial Capital Contributions. The initial Members of the Company and
their capital contributions to the Company, as agreed in, and pursuant to, the
terms of the Contribution Agreement, are set forth opposite such Member's name
on Schedule 3.01 hereto.
3.02 Membership Units. All Membership Units shall have identical rights in
all respects as all other Membership Units. Each Member hereby agrees that its
interest in the Company and in its Membership Units shall for all purposes be
personal property.
3.03 Return of Contributions. Other than as provided in Article 12, a
Member is not entitled to the return of any part of its capital contribution or
to be paid interest in respect of either its Membership Interest or its capital
contributions. An un-repaid capital contribution is not a liability of the
Company or of any Member.
3.04 Additional Contributions. If the Members determine that additional
capital is required to support the operations of the Company and such funding
shall be made in the form of additional capital contributions by the Members,
the Company shall
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make a call for funds after approval pursuant to Section 4.06(j) (a "Call").
Within ten (10) days after all Members have received written notice of the Call
(the "Contribution Period"), the Members shall make additional capital
contributions to the Company in proportion to each Member's share of the
Company's overall Membership Units.
3.05 Failure to Fund.
a. If any Member fails to deliver to the Company its PRO RATA portion of
any Call (with such portion not being contributed being referred to
herein as the "Funding Shortfall") within the Contribution Period,
such Member shall receive a notice ("Default Notice") from the Company
that such Member has failed to meet its funding obligation. If such
Funding Shortfall continues for ten (10) Business Days after receipt
by such Member of a Default Notice, such Member shall be designated as
a "Defaulting Member" and the Company shall promptly notify all
non-defaulting Members of the default of the Defaulting Member and
shall offer each non-defaulting Member the opportunity to purchase its
PRO RATA portion of the Funding Shortfall; provided that such offer
shall be conditional upon the funding by the non-defaulting Member of
its PRO RATA portion of the additional funding.
b. No consent of any Defaulting Member shall be required as a condition
precedent to any sale of the Defaulting Member's Membership Units
pursuant to this Section 3.05 and the Company, if the certificates
representing such Defaulting Member's Membership Units are not
provided to the Company, may cancel or otherwise deem the certificates
representing such Membership Units to be lost or destroyed and may
issue new certificates therefor with the name or names of the new
owners as determined in accordance with this Section 3.05.
c. However, and notwithstanding the foregoing, the Membership Units of
both Spire and Xxxxxx (Delaware) shall, under no circumstances, be
reduced to below ten percent (10%) on a fully diluted basis
consolidating all classes, in recognition of, and in consideration
for, those Members' early commitment and contribution to the Company.
ARTICLE 4
Operation and Management of the Company
4.01 General Activities. The Company shall only engage in those business
activities within its corporate purposes, as set forth in Section 2.02 and the
Certificate of Formation of the Company. In the event of any discrepancy between
this Agreement and the Certificate of Formation, the provisions of this
Agreement shall prevail. No Party hereto, acting alone, shall have any authority
to act for, or undertake or assume any obligation or responsibility for or on
behalf of any other Party hereto.
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4.02 Management of the Company. The management of the Company shall be
vested exclusively in the Managing Board (the "Managing Board"), which may from
time to time by resolution delegate authority to the officers or to others to
act on behalf of the Company. The Members shall exercise no management authority
over the business and affairs of the Company. The Managing Board shall be the
sole agents authorized to represent the Company in transactions with third
parties and shall have sole management authority over the Company Business. If
any Member binds or attempts to bind the Company in a transaction with one or
more third parties without express written authorization from the Managing
Board, the Member who does so shall be liable to the Company and the other
Members for any obligations or liability as a consequence of such action.
4.03 Managing Board.
a. The Managing Board shall be composed of five (5) individuals selected
by the Members (the "Managers"), of which two (2) individuals shall be
appointed by Spire (the "Spire Managers") and three (3) individuals
shall be appointed by Xxxxxx (Delaware) (the "Xxxxxx (Delaware)
Managers"). Upon the resignation, death, or removal of any Spire
Manager or Xxxxxx (Delaware) Manager, the successor shall be nominated
and elected by Spire or Xxxxxx (Delaware), as the case may be.
Managers of the Company shall receive no remuneration from the Company
by virtue of serving on such board unless approved by the Members
pursuant to Section 4.06(i). The Managing Board shall determine the
amount of reimbursement in respect of its members for travel, hotel,
and other incidental expenses incurred in connection with attendance
at each Managing Board meeting. The Managers shall in general
supervise and control all of the business and affairs of the Company
and shall have the authority, without specific authorization from the
Members, to pay the normal costs of the Company's operations, with the
prior approval of greater than fifty percent (50%) of the Managers for
all transactions, unless otherwise specified herein.
b. The number of Managers a Member may appoint to the Managing Board
shall be subject to adjustment according to the percentage of the
number of outstanding Membership Units held by such Member as follows:
(i) a Member holding more than fifty percent (50%) of the number of
outstanding Membership Units shall be entitled to appoint three (3)
Managers; (ii) a Member holding more than thirty-five percent (35%) of
the number of outstanding Membership Units shall be entitled to
appoint two (2) Managers and (iii) a Member holding more than twenty
percent (20%) of the number of outstanding Membership Units shall be
entitled to appoint one (1) Manager; a Member holding no more than
twenty percent (20%) of the number of outstanding Membership Units
shall have no right under this Agreement to appoint any Manager.
However, and notwithstanding the foregoing, Spire and Xxxxxx
(Delaware), as founding
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Members of the Company, shall each be entitled to appoint at least one
(1) Manager so long as it holds ten percent (10%) or more of the
number of outstanding Membership Units.
4.04 Meetings of the Managing Board. The Managing Board shall meet no less
frequently than quarterly at such place and time as shall be determined by a
majority of the Managers. Unless otherwise agreed by the Managers, the location
of the meetings shall rotate, with one meeting held in Tainan, Taiwan, and the
next held in Bedford, Massachusetts. Special meetings of the Managing Board
shall be called at the direction of the Chairman, the Chief Executive Officer,
or one or more Managers, and for reasonable cause shown (which is understood to
include, without limitation, any meeting called by a Manager to review any
determination made by the Company pursuant to this Agreement), upon not less
than ten (10) Business Days' notice given by the Chairman, the Chief Executive
Officer, or the Secretary of the Company (which officers shall give such notice
if properly directed so to do as aforesaid). Emergency meetings of the Managing
Board may be held upon not less than one (1) Business Day's telephone notice
specifying in reasonable detail the nature of such emergency (to be confirmed by
written telecopier notice) by any Manager, the Chairman, the Chief Executive
Officer or the Secretary of the Company.
4.05 Rotating Chairmen. The Managing Board shall meet, in person or by
telephone, periodically at reasonable intervals, and further, shall meet at the
specific request of either of the Members. Minutes for all such meetings shall
be recorded and maintained. The Managing Board shall select a Chairman who shall
preside over meetings of the Managing Board. The Members hereby agree that Spire
and Xxxxxx (Delaware) shall rotate the chairmanship of the Managing Board each
fiscal year, except that it is agreed that one of the Xxxxxx (Delaware) Managers
shall serve as the Chairman of the Managing Board for the period from the date
hereof through the end of the first full fiscal year of the Company. Spire and
Xxxxxx (Delaware) agree to cause their respective members to the Managing Board
to effect the foregoing.
4.06 Approval by the Managing Board. The Managing Board shall have
authority with respect to all aspects of the operation of the Company, except as
limited in the Act. All actions of the Managing Board shall require the
affirmative vote of a majority of the votes cast by the Managers present in
person or by proxy at a duly convened meeting of the Managing Board at which a
quorum is present or, in lieu of a meeting, by the unanimous written consent of
all members of the Managing Board; PROVIDED, HOWEVER, that the Company shall not
take any of the following actions without at least an affirmative vote cast by
one Spire Manager and at least an affirmative vote cast by one Xxxxxx (Delaware)
Manager:
a. admission of new Members;
b. the Company's authority to disburse funds of the Company in
transactions, or a series of related transactions, requiring payment
by the Company (in one or a series of transactions) in excess of
Twenty-five Thousand U.S. Dollars (US$25,000.00), or assumption of
debt by the
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Company (in one or a series of transactions) in excess of Ten Thousand
U.S. Dollars (US$10,000.00);
c. issuance of additional equity in the Company of any class (including
convertible debt) in one or any series of transactions within a
twenty-four (24) month period that, when fully converted, shall result
in the issuance of more than an additional twenty percent (20%) of the
Company's equity when fully diluted and executed (i.e., considering
the maximum conversion ratios on an accelerated basis);
d. valuation of the Company's assets or selection of a third party to
make such a valuation;
e. acquisition by the Company of an interest in any other company and/or
acquisition of assets to be held by the Company;
f. appointment and removal of the external auditors (the "Auditors") of
the Company, having in particular the duty of auditing the accounts,
as well as approval of the yearly accounts;
g. appointment, removal, or modification of the terms of compensation of
the officers of the Company or any other employee whose annual
compensation (including benefits) is in excess of One Hundred Fifty
Thousand U.S. Dollars (US$150,000.00) PER ANNUM;
h. establishment of any pension, profit sharing, or other benefit plan
for employees;
i. compensation of the Managers (but not reimbursement of reasonable
expenses);
j. requiring Members to make additional capital contributions to the
Company;
k. voluntary dissolution of the Company under Article 12;
l. electing to continue business after dissolution;
m. amendment of this Agreement or the Company's Certificate of Formation;
n. change in the scope and purpose of the Company, as well as the
strategy and goals for accomplishing that scope and purpose;
o. any change in corporate form, merger, reorganization or sale of all or
substantially all of the assets of the Company;
p. the filing of a voluntary petition in bankruptcy of the Company;
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q. the approval and consummation of any public offering of the Company's
equity or debt securities; and
r. instituting or beginning of defense of a material legal action in the
Company's name of and on its behalf.
4.07 Approval of Business Opportunities. To avoid any conflict of interest,
the Company shall not accept or refuse to accept any business opportunity
pursuant to Section 9.01 without an affirmative vote in favor thereof by greater
than fifty percent (50%) of those Managers not appointed by the Member offering
such business opportunity.
4.08 Quorum Requirement for Meetings of the Managing Board. The presence of
a majority of the Managers in person or by proxy, together with the presence of
at least one Manager appointed by Spire and one Manager appointed by Xxxxxx
(Delaware), shall constitute a quorum. A quorum must exist at all times of a
meeting, including the reconvening of any meeting that has been adjourned, for
any action taken at such meeting to be valid.
4.09 Actions Without a Meeting. Any action required or permitted to be
taken at a meeting of the Managers may be taken without a meeting, if a consent
in writing, setting forth the action so taken, is signed by at least the minimum
number of Managers which would be necessary to fulfill the affirmative vote
requirements set forth in Sections 4.03(a) and 4.06 for such action. Such
consent shall have the same force and effect as a vote of the Members at a
meeting. Such writing, which may be in counterparts, shall be manually executed
if practicable; provided, however, that if circumstances so require, effect
shall be given to written consent transmitted by telegraph, telex, facsimile,
telecopy or similar means of visual data transmission.
4.10 Telephone Meetings. Meetings of the Managing Board may be conducted by
means of conference telephone or similar audio communications equipment whereby
all persons participating in the meeting can hear and speak to one another.
4.11 Quorum Requirement for Meetings of Members. The quorum requirement for
a meeting of Members shall be Members holding eighty percent (80%) of the
outstanding Membership Units of the Company. Members represented in person or by
proxy shall be counted to determine the existence of a quorum at a meeting of
the Members. If less than a quorum is represented at a meeting, a majority of
the Members so represented may adjourn the meeting from time to time without
further notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. The Members represented at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough Members to leave less than a quorum.
4.12 Notice of Meeting. The Managing Board shall give each Member written
or printed notice stating the place, day, and hour of any meeting of the
Members, and the
14
purpose or purposes for which the meeting is called, not less than ten (10) days
nor more than sixty (60) days before the date of the meeting. Notices shall be
delivered in accordance with Section 15.04. Attendance by a Member, whether in
person or by proxy, at a meeting of which the Member has had no notice shall
constitute a waiver of notice of such meeting.
4.13 Officers. The Managing Board may appoint officers, including a Chief
Executive Officer, one or more Vice Presidents, a Secretary and such other
officers as it may deem necessary or appropriate, to serve as representatives of
the Company, each exercising the authority granted to such officer in a written
appointment signed by the Managing Board. Unless otherwise determined by the
Managing Board pursuant to Section 4.06(g), officers shall serve for one (1)
year terms. Initially, the officers of the Company shall be:
President and Chief Executive Officer: ***
Chief Operating Officer: [To be appointed by Spire]
Chief Financial Officer: ***
Secretary: [To be appointed by Xxxxxx (Delaware)]
ARTICLE 5
Allocations and Distributions
5.01 Capital Accounts. A Capital Account ("Capital Account") shall be
determined and maintained for each Member in accordance with 26 C.F.R.
1.704-1(b)(2)(iv). Accordingly:
a. Each Member's Capital Account shall be credited with all money and
with the fair market value of property contributed by that Member to
the Company (net of liabilities secured by the property that the
Company is considered to assume or take subject to).
b. Each Member's Capital Account shall be charged with all money and with
the fair market value of property distributed to that Member by the
Company (net of liabilities secured by the property that the Member is
considered to assume or take subject to).
c. Each Member's Capital Account shall be credited or charged with that
Member's share, under Section 5.02, of items of Company income, gain,
loss, and all other items as provided by 26 C.F.R. 1.704-1(b)(2)(iv).
d. If the Capital Accounts of the Members are computed with reference to
the book value of any asset which differs from the adjusted tax basis
of such Asset, then the Capital Accounts shall be adjusted for
depreciation, depletion, amortization and gain or loss as computed for
book purposes with respect to such Asset in accordance with 26 C.F.R.
1.704-1(b)(2)(iv).
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
15
e. If any interest in the Company is transferred in accordance with the
terms of this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent it relates to the transferred
interest, except as provided in 26 C.F.R. 1.704-1(b)(2)(iv)(1).
f. If property, other than money, is distributed to a Member, the Capital
Accounts of the Members shall be adjusted to reflect the manner in
which the unrealized income, gain, loss and deduction inherent in such
property (that has not been transferred in the Capital Accounts
previously) would be allocated among the Members if there was a
taxable disposition of such property for the fair market value of such
property (taking Section 7701(g) of the United States Internal Revenue
Code ("Code") into account) on the date of distribution. For this
purpose, the fair market value of the property shall be determined by
the Members.
g. The foregoing provisions, and the other provisions of this Agreement
relating to the maintenance of Capital Accounts and the allocations of
income, gain, loss, deduction and credit, are intended to comply with
26 C.F.R. 1.704-1(b), and shall be interpreted and applied in a manner
consistent with such Treasury Regulation. If the Members shall
determine that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto, are computed in order to
comply with such Treasury Regulation, the Members may make such
modification, provided that it is not likely to have a material effect
on the amount distributable to any Member upon liquidation of the
Company pursuant to Article 12 of this Agreement.
5.02 Allocations. Subject to Code Section 704(c) and 26 C.F.R. 1.704-1(b),
each item of Company income, gain, loss, deduction and credit, including
expenditures of the Company described in Code Section 705(a)(2)(B), shall be
allocated among the Members in proportion to each Member's share of the
Company's overall Membership Units.
5.03 Net Cash Flow. For purposes of this Agreement, the term "Net Cash
Flow" shall mean the amount, if any, by which all funds actually received by the
Company during the calendar year exceed the sum of: (a) the amount of all funds
actually expended by the Company during such year; plus (b) the amount needed to
meet the working capital requirements of the Company for the next six months;
plus (c) the amount needed to make all additions to capital expenditure and/or
other reserves, including, without limitation, reserves required under
agreements with lenders, established for the Company.
5.04 Member Cash Distributions.
a. From time to time as determined by the Managing Board, the Company
shall distribute to each Member the Net Cash Flow in proportion to
each Member's share of the Company's overall Membership Units.
16
b. Notwithstanding any other provision of the Agreement, each year the
Company shall distribute cash to the Members in a minimum amount equal
to each Member's liability for federal and state income tax and any
other pass-through tax obligation incurred by the Members in respect
of the Company net income allocated to such Member. Distributions to
be made under the preceding sentence shall be calculated assuming that
all Members are taxed on their allocable net income at the maximum
marginal federal and state income tax rate then in effect with respect
to any Member. Such distributions shall be made during each taxable
year at the times and in the amounts necessary to allow the Members to
make estimated tax payments and the final payment with their income
tax returns.
ARTICLE 6
Accounting Matters
6.01 Records and Books of Account. The Company shall keep, or cause to be
kept, separate, accurate, and complete records and books of account pertaining
solely to the activities of the Company and containing an accurate and complete
record of all transactions and other matters relative to the business of the
Company. Such records and books of account shall be: (a) maintained on the cash
or accrual basis method of accounting, as determined by the Member; (b) kept at
the principal office of the Company; and (c) available to any Member for
inspection and audit (at such Member's cost and expense) at any time during
normal business hours, provided that the Company has received a prior, written
request for such inspection and audit at least five (5) Business Days prior to
the date on which such inspection or audit shall be conducted.
6.02 Separate Operating Account. The funds of the Company shall be
deposited in such account or accounts as are designated by the Members and shall
not be commingled with the funds of any Member; provided, however, that nothing
in this Section 6.02 shall be construed to prevent any Member from maintaining
deposits and other accounts at the same financial institution in which the
Company maintains its account(s).
6.03 Fiscal and Taxable Years. For accounting and federal income tax
reporting purposes, the fiscal and taxable years of the Company shall end on
December 31 each year.
6.04 Financial Statements. The following financial information, prepared,
in accordance with GAAP, shall be transmitted by the Company to each Member at
the times hereinafter set forth:
a. Within sixty (60) days after the close of each fiscal year, the
following financial statements, examined by and certified to by the
Auditors:
17
(i) the balance sheet of the Company as of the close of such fiscal
year;
(ii) a statement of the Company's income for such fiscal year; and
(iii) a statement of such Member's Capital Account as of the close of
such fiscal year, and changes therein during such fiscal year.
b. Within sixty (60) days after the close of each fiscal year, a
statement indicating such Member's share of each item of Company
income, gain, loss, deduction or credit for such fiscal year for
income tax purposes.
c. As soon as available and in any event within twenty five (25) days
after the end of each three-month period, balance sheets of the
Company as of the end of such three-month period and statements of
income, certified by the Chief Financial Officer or Treasurer of the
Company.
d. As soon as practicable and in any event within twenty (20) days
following the end of each calendar month, a monthly operating summary
of the Company's activities in a form to be established by the
Managing Board.
6.05 Income Tax Returns. As soon as practicable after the end of each
taxable year of the Company, but in no event later than April 1, the Company
shall prepare and file, or shall cause to be prepared and filed, all required
federal and state income tax returns and related reports for the Company.
6.06 Designation of Tax Matters Member. The Company shall appoint Spire to
act as the tax matters member ("TMM") of the Company under the Code, and in any
similar capacity under state or local law. The TMM shall take no action with
respect to tax matters, including, without limitation, the making of any
elections, without the prior approval of all of the Members. The TMM shall not
be required to take any action or incur any expenses for the prosecution of any
administrative or judicial remedies in his capacity as TMM unless the Members
agree on a method of sharing expenses incurred in connection with such action.
6.07 Information Request of TMM. The Members shall furnish to the TMM,
within ten (10) days after the receipt of a request therefor, such information
as the TMM may reasonably request to permit the TMM to provide the Internal
Revenue Service with sufficient information for purposes of Code Sections 6223
and 6050K. All information requested from TMM shall be in writing and shall be
given (and shall be deemed to have been duly given upon receipt) by delivery in
person, by courier service, by fax or by registered or certified mail (postage
prepaid, return receipt requested) to the respective Party at the following
address:
To the Company:
c/o Spire Corporation
00
Xxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx, 00000 XXX
Fax No.: x0-000-000-0000
Attention: Spire CFO
6.08 TMM Agreements with IRS. The TMM shall not agree to any extension of
the statute of limitations for making assessments on behalf of any Member
without obtaining the prior, written consent of such Member. The TMM shall not
bind any Member to a settlement agreement in tax audits without obtaining the
prior, written consent of such Member. Any Member who enters into a settlement
agreement with the Secretary of the Treasury with respect to any Company items,
as defined by Code Section 6231(a)(3), shall notify the TMM of such settlement
agreement and its terms within ninety (90) days from the date of settlement.
6.09 Inconsistent Treatment of Company Item. If any Member intends to file
a notice of inconsistent treatment under Code Section 6222(b), such Member
shall, prior to the filing of such notice, notify the TMM of such intent and the
manner in which the Member's intended treatment of the Company item(s) is, or
may be, inconsistent with the treatment of that item by the Company. Within five
(5) days of receipt, the TMM shall remit copies of such notification to all of
the other Members. If an inconsistency notice is filed solely because a Member
has not received a Schedule K-1 in time for filing of his income tax return, the
TMM need not be notified.
6.10 Requests for Administrative Adjustments. No Member shall file a
request pursuant to Code Section 6227 for an administrative adjustment of the
Company's taxable year without first notifying all of the other Members. If all
of the other Members agree with the requested adjustment, the TMM shall file the
request for administrative adjustment on behalf of the Company. If unanimous
consent is not obtained within thirty (30) days from such notice, or within the
period required to file the request for administrative adjustment timely, if
shorter, any Member, including the TMM, may file a request for administrative
adjustment on its own behalf.
6.11 Judicial Proceedings. Any Member intending to file a petition under
Section 6226, 6228 or other Sections of the Code with respect to any Company
items, or other tax matters involving the Company, shall notify the other
Members of such intention and the nature of the contemplated proceeding. If a
Member intends to seek review of any court decision rendered as a result of such
a proceeding, such Member shall notify the other Members.
ARTICLE 7
Transfer of Membership Interests
7.01 Transfer of Membership Interest. The provisions of this Article 7
shall apply to any sale, exchange, assignment, pledge, transfer, or proposed
transfer, voluntary or involuntary (whether as a result of bankruptcy, operation
of law, or otherwise), with or without consideration (collectively, a
"Transfer"), of Membership Interests of the
19
Company by the Members. No Member
may transfer any portion of the Member's Membership Interest in the Company
except as provided in this Article 7.
7.02 Standstill. Notwithstanding the provisions of Section 7.03 and except
as provided under Section 7.05 or otherwise agreed by Spire and Xxxxxx
(Delaware), for twenty-four (24) months from the date of this Agreement, no
Member may Transfer any Membership Interest of the Company. Thereafter, the
Company shall have a right of first refusal with respect to all Membership
Interests of the Company, which right, unless waived, may be exercised in
accordance with Section 7.04 in connection with any proposed Transfer, other
than a Transfer in accordance with Section 7.05 of this Agreement; PROVIDED,
HOWEVER, that the Company shall have no obligation to purchase all or any part
of the Membership Interests held by a Member. Except as otherwise provided
herein, no Member may partially or completely withdraw from the Company without
the written consent of the majority of the other Membership Interests.
7.03 New Members and Permitted Transfers. New Members (other than Permitted
Transferees) shall be admitted to the Company only with the approval of the
Managing Board pursuant to Section 4.06(a) on terms and conditions which are
consistent with this Agreement, the Certificate of Formation of the Company, the
Act and any applicable provision of law or rule of a governmental agency which
has jurisdiction over the business of the Company. The transferee or assignee of
any Membership Units shall have no right to participate in the management of the
business and affairs of the Company or to become a Member unless the Members
representing at least eighty percent (80%) of the outstanding Membership Units
approve, in writing, the admission and the transferee executes and delivers to
the Company a written agreement to be bound by all of the terms and provisions
of this Agreement. The approval of the other Members may be withheld reasonably
or unreasonably. In the absence of any such approval, the transferee or assignee
of all or a part of a Membership Interest of the Company shall be allocated the
portion of the Company's net profits and net losses in relation to the
Membership Units, or portion thereof, that has been transferred, but the
transferee shall have no other rights of a member, such as the right to
participate in the management of the Company, to act on behalf of the Company,
or to inspect records of the Company.
7.04 Right of First Refusal. After the second anniversary of the date
hereof, if any Member receives a BONA FIDE offer from a third party to purchase
its Membership Interest in the Company, and that Member wishes to accept that
BONA FIDE offer, then such Member (herein "Seller") must notify the other Member
in writing of its desire to consummate the Transfer, giving the name of the
proposed transferee, the price to be paid by the proposed transferee for the
Membership Interest (the "Transfer Amount"), and the principal terms of the
proposed Transfer (such notice being a "Transfer Notice"). Within thirty (30)
Business Days following the receipt of the Transfer Notice, the other Members
shall notify the Seller if the other Member desires to purchase the Transfer
Amount (a "Positive Response") or if the Seller is free to sell the Transfer
Amount (a "Negative Response"). If the other Members send a Positive Response to
the Seller, it shall purchase, and the Seller shall sell to it, the Transfer
Amount on the substantial terms of the BONA FIDE offer described in the Transfer
Notice. The purchase and sale shall occur
20
on a day selected by the other Member and set forth in the Positive Response,
but in any event within ten (10) Business Days after the transmission of the
Positive Response. The purchase and sale shall occur in accordance with such
reasonable procedures as the other Member may impose. If the other Member, in
response to a Transfer Notice, sends a Negative Response to the Seller, the
Seller shall be free to sell the Transfer Amount to the maker of the BONA FIDE
offer described in the Transfer Notice at any time within sixty (60) days after
the transmission of the Negative Response.
7.05 Change in Control.
a. For purposes of this Section 7.05, a "Change in Control" of a Member
means the acquisition by one or more unaffiliated third parties of
beneficial ownership of more than fifty-one percent (51%) of the total
combined voting power of such Member's outstanding capital stock or
acquisition by such unaffiliated third parties of all or substantially
all of the stock or assets of such Member (herein the "Acquired
Member").
b. Generally, an Acquired Member shall give the Company and the other
Members (herein the "Remaining Members") immediate written notice of
any Change in Control ("Change in Control Notice"). Upon receipt of
the Change in Control Notice, the Remaining Members may, by giving
written notice to the Acquired Member (the "Election Notice"), elect
to purchase all (but not less than all) of the Acquired Member's
Membership Interests in the Company in proportion to each such
Member's share of the Company's overall Membership Units at a purchase
price of the fair market value (the "FMV") of such Membership
Interest, as determined in good faith by the Members pursuant to
Section 7.05(c) of this Agreement.
c. The Acquired Member and Remaining Members shall in good faith attempt
mutually to agree as to the FMV within thirty (30) days after delivery
of the Election Notice. If the FMV is so determined and mutually
agreed, it shall be set forth in writing and shall be final,
conclusive, and binding upon the Members. The Members shall each use
all reasonable efforts to cause the purchase and sale of the
Membership Interest to occur prior to the Change in Control of the
Acquired Member, but in any event within ten (10) Business Days after
the FMV purchase price has been determined. If the Members fail to
agree mutually as to the FMV within thirty (30) days after delivery of
the Election Notice, then the Members shall, within ten (10) days,
select an international, first-tier accounting firm that is not then
representing any of the Members or the Company or any Affiliate (the
"Appraiser"). The Appraiser shall determine the FMV, set forth its
determination in writing, and deliver this determination to the
Members within thirty (30) days of its selection. The Appraiser's
determination shall be final, conclusive, and binding upon the
Members. The Appraiser's fee shall be equally shared by the Acquired
Member and Remaining Members.
21
7.06 Effect of Transfer. Any Transfer of a Membership Interest of the
Company permitted under this Article 7 shall be an assignment and transfer of
all the transferring Member's rights, obligations, and liabilities under this
Agreement with respect to such Membership Interest. The transferee shall
expressly agree in writing to be bound by all of the terms and conditions of
this Agreement, and assume and agree to perform all of the transferring Member's
agreements, obligations, and liabilities under this Agreement with respect to
such Membership Interest existing or arising at the time of and subsequent to
such Transfer. No Transfer pursuant to this Article 7 shall be permitted if such
Transfer would violate federal or state securities laws or any other laws of the
United States. Any purported Transfer of Membership Interest of the Company not
permitted by or in conformance with this Article 7 shall be null and void and
have no effect whatsoever.
ARTICLE 8
Confidentiality and Restrictions on Use
8.01 Restrictions on Disclosure. Except as provided herein or as otherwise
agreed to by the prior, written consent of the Member having provided any
Confidential Information, each Member shall and shall cause its Affiliates,
officers, directors, employees, attorneys, accountants, auditors and agents
(collectively, "Representatives"), to the extent such Persons receive
Confidential Information, to:
a. maintain in the strictest confidence the Confidential Information and
not disclose or make available to any third party all or any part of
the Confidential Information except as necessary to operate its
business and provided that such disclosure is pursuant to a
nondisclosure agreement with terms no less restrictive than those
contained herein;
b. limit access to the Confidential Information to such of
Representatives as may be reasonably required in connection with the
activities of the Company as contemplated by this Agreement;
c. refrain from use of the Confidential Information for any purpose other
than the activities of the Company as contemplated by this Agreement;
PROVIDED, HOWEVER, that the disclosing Party may use or continue to
use its Confidential Information in and for its own business to the
extent such use is not in contravention of the other provisions of
this Agreement; and
d. exercise the same degree of care as such Member takes to protect its
own proprietary and confidential business information but no less than
a reasonable standard of care to avoid disclosure of the Confidential
Information.
8.02 Exceptions to Confidentiality. The obligations of confidentiality in
Section 8.01 shall not apply to Confidential Information which: (a) is or
becomes publicly available (other than as a result of an unauthorized
disclosure); (b) is already
22
known by a receiving Party without an obligation of confidentiality prior to the
disclosure thereof by the disclosing Party as evidenced by business records
maintained in the ordinary course; (c) is or becomes available to a Party from a
source other than the disclosing Party or its representatives, provided that
such source represents that it is not prohibited from disclosing such
information by a contractual, legal, or fiduciary obligation; or (d) is
independently developed by the other Party without violating the disclosing
Party's rights as evidenced by business records maintained in the ordinary
course. The obligations in Section 8.01 shall not restrict any disclosure by
either Party pursuant to any applicable law or by order of any court of
competent jurisdiction or government agency, provided that the receiving Party
shall, as promptly as possible after determining that it is obligated to make
such disclosure, notify the disclosing Party of its intention to make such
disclosure (using its reasonable efforts to give such notice prior to making any
such disclosure), so that the disclosing Party may have an opportunity to object
to such disclosure or to obtain a protective order or other appropriate relief.
Notwithstanding the foregoing exceptions, it is expressly acknowledged and
agreed to by the Parties that Section 8.02(b) shall not apply to Spire in
respect of Spire PV Technology licensed to Spire pursuant to the Technology
License Agreement, and that to the extent the licensed Spire PV Technology
includes Confidential Information, such Confidential Information shall remain
subject to the restrictions set forth in Section 8.01.
8.03 Return of Confidential Information. Upon expiration or termination of
this Agreement for any reason, all Confidential Information of a Party disclosed
hereunder, and all copies thereof, shall, upon the request of the disclosing
Party, be promptly returned to the disclosing Party or, at the disclosing
Party's option, erased or destroyed. The recipient of the Confidential
Information shall provide to the disclosing Party certificates signed by an
officer of the receiving Party evidencing such destruction or return.
ARTICLE 9
Conflicts of Interest
9.01 Participation in Same or Competing Businesses.
a. Each Member hereby agrees to promote and develop for the Company all
business opportunities that come to its attention relating to current
or anticipated future business of the Company pursuant to the scope
and purpose of the Company, as provided hereinabove at Section 2.02,
in a manner consistent with the best interests of the Company. It is
expressly understood that in developing any business opportunity for
itself, such development may not in any direct way conflict or compete
with the scope or purposes of the Company under this Agreement, except
as provided in this Agreement, or by mutual agreement of the Members.
b. If any Member identifies an available opportunity (i) within the scope
of the Company Business or (ii) relating to the design, development,
***, the Member
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
23
shall offer the opportunity to the Company, and the Company shall have
the right to accept, by vote of the Managing Board in accordance with
Section 4.07, the opportunity presented and to cause the Company to
participate therein in lieu of the offering Member. However, if the
Managing Board does not accept an opportunity presented by the Member
as provided in this Section 9.01 or if the Company does not actively
participate therein, the offering Member shall be at liberty to
participate separately and for its own account.
c. The Company may transact business with any Member or an affiliate of
any Member, provided that the terms of those transactions are no less
favorable to the Company than those which could be obtained from
unrelated third parties. Each of Xxxxx, Xxxxxx (Delaware), and the
Company shall give the other Parties best prices for all transactions
between the Parties related to the scope and purpose of the Company
pursuant to Section 2.02 of the Agreement. For any purchase of PV
Modules by the Company, the Company shall first offer to acquire PV
Modules from Xxxxxx (Delaware), on the same terms that it would
otherwise acquire them from a third party supplier in an arm's-length
transaction. If Xxxxxx (Delaware) cannot meet those terms, the Company
may acquire the PV Modules from any third party supplier. For any
purchase of PV Module manufacturing equipment by the Company or Xxxxxx
(Delaware) (only to the extent relating to Xxxxxx (Delaware)'s PV
Module commodity business in the United States), the Company or Xxxxxx
(Delaware), as the case may be, shall first offer to purchase the
manufacturing equipment from Spire, on the same terms that it would
otherwise purchase from a third party supplier it in an arm's-length
transaction. If Spire cannot meet those terms, the Company or Xxxxxx
(Delaware), as the case may be, may purchase such manufacturing
equipment from any third party supplier.
d. The Company hereby agrees and acknowledges that it shall not compete,
or assist any other party to compete, with Spire or Xxxxxx (Delaware),
directly or indirectly, throughout the world, in any business outside
the scope and purpose of the Company, as provided in Section 2.02.
e. Neither Xxxxxx (Delaware) nor Spire shall, directly or indirectly,
compete with the Company in the design, marketing, sale, installation
coordination, or project management of PV Systems in the United States
by using PV Modules or any other type of photovoltaic
electricity-generating panels (***). For three (3) years from the date
hereof, Spire shall not mass manufacture, market, or sell any PV
Modules throughout the world. Beginning on the fourth (4th)
anniversary of the date hereof, Spire shall only be allowed to sell PV
Modules as a commodity item outside of the United States. Subject to
the foregoing
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
24
restrictions, Spire shall have the right to continue to do the
following: (i) design, build, and sell PV Module manufacturing
equipment, including sales of any advanced manufacturing equipment
line to produce PV Systems for Spire's customers, including customers
in all fields (specifically including, without limitation, customers
seeking to build utility-scale electric generation stations and
customers seeking to build equipment suitable for building such
manufacturing equipment, whether conducted by Spire directly or under
license (or sublicense) from Spire); (ii) receive CE markings and
Underwriters Laboratories listings; (iii) instruct module design
theory and assembly processes to customers; (iv) design and produce
prototype modules in support of manufacturing equipment sales or
research and development programs; (v) use the Spire PV Technology to
sell PV Modules and PV Systems, pursuant to the above-stated
restrictions, and to conduct all PV Systems business on a
non-exclusive basis, in any territory other than the United States,
and including, without limitation, as allowed pursuant to the
Technology License Agreement; and (vi) develop, research, enhance,
perfect, file letters patent on, retain trade secrets on, sell,
license, or otherwise use Spire Intellectual Property, provided that
if Spire develops any new PV Module technology during the term of this
Agreement, Spire shall be prevented from any market launch of such
technology for one (1) year from the date of the Closing, and Spire
shall, in good faith, offer to license the new PV Module technology to
Xxxxxx and the Company pursuant to a long-term intellectual property
license agreement on commercially reasonable terms and conditions. For
the avoidance of doubt, Xxxxxx shall have the right to sell PV Modules
as a commodity item throughout the world.
9.02 Non-Solicitation.
a. Neither the Company nor any Member shall, without prior written
approval of the affected Member, which approval may be withheld for
any reason: (i) directly or indirectly, in one or a series of
transactions, recruit or solicit any director, officer, employee,
sales agent, investor, lessor, supplier, customer, agent,
representative, or any other Person that has a business relationship
with such affected Member or had a business relationship with such
Member within the six (6) month period preceding the date of the
incident in question, to discontinue, reduce, or modify such
employment, agency, or business relationship with such Member; or (ii)
employ or seek to employ any person or agent who is then (or was at
any time within six (6) months prior to the date that the Company
seeks to employ such person) employed or retained by such Member;
provided, HOWEVER, that the term "solicit for employment" shall not be
deemed to include general solicitations of employment not specifically
directed toward employees of such Member.
25
b. No Member shall, without prior written approval of the Managing Board,
which approval may be withheld for any reason: (i) directly or
indirectly, in one or a series of transactions, recruit or solicit any
director, officer, employee, sales agent, investor, lessor, supplier,
customer, agent, representative, or any other Person that has a
business relationship with the Company or had a business relationship
with the Company within the six (6) month period preceding the date of
the incident in question, to discontinue, reduce, or modify such
employment, agency, or business relationship with the Company; or (ii)
employ or seek to employ any person or agent who is then (or was at
any time within six (6) months prior to the date that a Member seeks
to employ such person) employed or retained by the Company; PROVIDED,
HOWEVER, that the term "solicit for employment" shall not be deemed to
include general solicitations of employment not specifically directed
toward employees of the Company.
ARTICLE 10
Representations and Warranties
10.01 Representations and Warranties. Each Member severally, but not
jointly, represents and warrants to the Company and each other Member as
follows:
a. Organization and Authority. To the extent such Member is not a natural
person, it is duly incorporated or organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
or organization and has all necessary power and authority to enter
into this Agreement, to carry out its obligations hereunder and to
perform the actions contemplated hereby. Such Member is duly licensed
or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the
operation of its business makes such licensing or qualification
necessary, except to the extent that the failure to be so licensed or
qualified would not prevent or materially hinder the performance of
the actions contemplated by this Agreement. The execution and delivery
of this Agreement by such Member, the performance by it of its
obligations hereunder and the performance by it of the actions
contemplated hereby have been duly authorized by all requisite action
on its part. This Agreement has been duly executed and delivered by
such Member, and (assuming due authorization, execution and delivery
by the other Persons signatory hereto) this Agreement constitutes a
legal, valid and binding obligation of such Member enforceable against
it in accordance with its terms.
b. No Conflict. The execution, delivery and performance of this Agreement
by such Member do not and will not (i) violate, conflict with or
result in the breach of any provision of its charter or by-laws (or
similar organizational documents), to the extent it has such, (ii)
conflict with or violate any law, governmental regulation or
governmental order applicable
26
to such Party or any of its assets, properties or businesses or (iii)
conflict with, result in any breach of, constitute a default (or event
which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others
any rights pursuant to, any contract, agreement or arrangement by
which such Party is bound, except to the extent that any conflict
under (ii) or (iii) above would not prevent or materially hinder the
performance of the actions contemplated by this Agreement.
c. Consents and Approvals. The execution, delivery and performance of
this Agreement by such Party do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to, any governmental authority, except where failure to
obtain such consent, approval, authorization or action, or to make
such filing or notification, would not prevent or materially delay the
consummation by such Party of the transactions contemplated by this
Agreement.
d. No Litigation. There is no action, claim, suit, judicial or
administrative proceeding, arbitration, investigation, or review by
any governmental authority pending, filed, or threatened against or
involving the Member or its properties, assets, or rights that could
impair the ability of the Member to consummate the transactions
contemplated by this Agreement.
e. Investment Representations.
i. Such Member is not loaning money to the Company, but rather
acquiring a membership right in the Company;
ii. Such Member is purchasing its Membership Interest for its own
account for investment only, and not with a view to, or for sale
in connection with, any distribution of the Membership Interest
in violation of the Securities Act of 1933 or the Securities Act
of 1934 (the "Securities Acts"), or any rule or regulation under
the Securities Acts.
iii. Such Member has had such opportunity as it has deemed adequate to
obtain from representatives of the Company such information as is
necessary to permit it to evaluate the merits and risks of
investment in the Company.
iv. Such Member has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in
the purchase of its Membership Interest and to make an informed
investment decision with respect to such purchase.
27
v. Such Member can afford a complete loss of the value of its
Membership Interest and is able to bear the economic risk of
holding such Membership Interest for an indefinite period.
vi. Such Member understands that: (i) there is now no registration
statement on file with the Securities and Exchange Commission
with respect to any Membership Interests of the Company, and the
Company has no obligation or current intention to register the
Membership Interests under the Securities Acts; and (ii) there is
now no registration statement on file with any state with respect
to any Membership Interests of the Company, and the Company has
no obligation or current intention to register the Membership
Interests with any state.
vii. Such Member acknowledges receipt of all pertinent documents
relative to the Company, its business, and corporate structure.
Such Member has reviewed such documents to its satisfaction, and
has had the opportunity to review such documents and any such
matters with legal counsel, if appropriate. Such Member
acknowledges that purchase and ownership of its Membership
Interest will result in it being a member in a limited liability
company electing partnership tax status, whereby corporate income
will be taxable directly to such Member, regardless of whether an
actual distribution of such income occurs.
viii. Such Member is an "accredited investor" pursuant to Rule
501(a)(5) or (6) of the Securities Act of 1933 or qualifies for
other pertinent exemption(s) set forth in Rule 501.
10.02 Further Covenants. Each Member hereby covenants that it shall act in
good faith and vote its Membership Interest in a manner so as to accomplish and
to carry out, or cause its members of the Managing Board to cause the Company to
carry out the purpose and terms of this Agreement. No Member shall disparage,
discredit, or otherwise treat in any detrimental manner, the Company or any
other Member, its Affiliates, directors, and employees.
ARTICLE 11
Liability and Indemnification
11.01 Indemnification by Company. The Company shall indemnify the Managers,
officers and registered agent of the Company (collectively, the "Officers"), as
well as each Member and their respective officers, directors, employees,
stockholders, representatives, and agents (collectively, the "Indemnified
Parties") against, and agrees to hold them harmless from, any loss, liability,
claim, damage, or expense (including reasonable legal fees and expenses)
("Losses"), including, but not limited to, any claim that any transaction
provided herein is not for fair and reasonable consideration, that may
28
be imposed upon, or reasonably incurred by, such Indemnified Parties, for or on
account of or arising from or in connection with or otherwise with respect to:
(a) any claim, action, suit or proceeding or threat thereof, made or instituted
in which such Indemnified Parties may be involved or be made a party by reason
of such Officer or Member being, or having been in the past, an Officer or
Member (including, in the case of Spire, a TMM), or by reason of any action
alleged to have been taken or omitted by such Officer or Member in such
capacity, or by such Other Indemnified Parties acting on behalf of such Member
or the Company, but only if such Indemnified Parties were acting in good faith
and with reasonable care in what it (or they) reasonably believed to be its (or
their) scope of authority as set forth in this Agreement and in the best
interests of the Company, and with respect to any criminal action or proceeding,
such Indemnified Party had no reasonable cause to believe such conduct was
unlawful; and (b) any claim, action, suit or proceeding or threat thereof, made
or instituted in which the Indemnified Parties may be involved or be made a
party because and to the extent that such Indemnified Parties have guaranteed to
a third party the performance of any obligation of the Company, except that no
Indemnified Party shall be entitled to be indemnified in respect of any Losses
incurred by such Indemnified Party by reason of gross negligence, bad faith or
willful misconduct; PROVIDED, HOWEVER, that the indemnification and hold
harmless agreement provided in this Section 12.01 shall not apply to a claim by
one or more Members against one or more other Members. The Company shall, so
long as duly approved, purchase insurance to protect itself and the Indemnified
Parties, whether or not the Company would have the power or duty to indemnify
the Indemnified Parties for the items covered by such insurance.
11.02 Indemnification by Members
a. Xxxxxx (Delaware) and its Affiliates, officers, directors, employees,
agents, successors and assigns (each a "Xxxxxx (Delaware) Indemnified Party")
shall be indemnified and held harmless by Spire (the "Indemnifying Party") for
and against any and all liabilities, losses, damages, claims, costs and
expenses, interest, awards, judgments and penalties (including attorneys' and
consultants' fees and expenses) actually suffered or incurred by the Indemnified
Parties (including any civil action brought or otherwise initiated by any of
them) (hereinafter a "Loss") arising out of or resulting from:
(i) the breach of any representation or warranty made by Spire contained
in this Agreement; and
(ii) the breach of any covenant or agreement by Spire contained in this
Agreement.
b. Spire and its Affiliates, officers, directors, employees, agents,
successors and assigns (each a "Spire Indemnified Party") shall be indemnified
and held harmless by Xxxxxx (Delaware) (the "Indemnifying Party") for and
against any and all Losses arising out of or resulting from:
29
(i) the breach of any representation or warranty made by Xxxxxx (Delaware)
contained in this Agreement; and
(ii) the breach of any covenant or agreement by Xxxxxx (Delaware) contained
in this Agreement.
c. However and notwithstanding clauses (a) and (b) above: (i) an
Indemnified Party shall not be liable for any claim for indemnification pursuant
to this Section 11.02, unless and until the aggregate amount of indemnifiable
Losses which may be recovered from the Spire or Xxxxxx (Delaware) Indemnified
Party, as the case may be, equals or exceeds Twenty-Five Thousand US Dollars
(US$25,000.00), whereupon the Spire or Xxxxxx (Delaware) Indemnified Party, as
the case may be, shall be entitled to indemnification for the full amount of
such Losses; and (ii) no Losses may be claimed under clause (a) or (b) above by
an Indemnified Party, or shall be reimbursable by the Spire or Xxxxxx (Delaware)
Indemnifying Party, as the case may be, or shall be included in calculating the
aggregate Losses set forth in (c)(i) above other than Losses in excess of Five
Thousand Dollars (US$5,000.00) resulting from any single claim or multiple
claims arising out of the same facts, events, or circumstances, computed
cumulatively.
11.03 Procedures.
a. In order for an Indemnified Party to be entitled to any
indemnification provided for under this Agreement in respect of,
arising out of, or involving a claim made by any person against the
Indemnified Party (a "Third Party Claim"), such Indemnified Party
shall notify the Company in writing of the Third Party Claim within a
reasonable time after receipt by such Indemnified Party of written
notice of the Third Party Claim; provided, HOWEVER, that failure to
give such notification shall not affect the indemnification provided
in this Article 11 except: (i) to the extent the Company has been
actually prejudiced as a result of such failure; and (ii) that the
Company shall not be liable for any expenses incurred during the
period in which the Indemnified Party failed to give such notice.
Thereafter, the Indemnified Party shall deliver to the Company, within
a reasonable time after the Indemnified Party's receipt thereof,
copies of all notices and documents (including court documents,
pleadings, and correspondence) received by the Indemnified Party
relating to the Third Party Claim.
b. If a Third Party Claim is made against an Indemnified Party, the
Company shall be entitled to participate in the defense thereof and,
if it so chooses, to assume the defense thereof with counsel selected
by the Company; provided that such counsel is not reasonably objected
to by the Indemnified Party; and provided further that the Company
first admits in writing its liability to the Indemnified Party with
respect to all material elements of the Third Party Claim. Should the
Company so elect to assume the defense of a Third Party Claim, the
Company shall not be liable to the Indemnified Party for any legal
expenses subsequently
30
incurred by the Indemnified Party in connection with the defense
thereof. If the Company elects to assume the defense of a Third Party
Claim, the Indemnified Party shall: (i) cooperate in all reasonable
respects with the Company in connection with such defense; (ii) not
admit any liability with respect to, or settle, compromise or
discharge, any Third Party Claim without the Company's prior, written
consent; and (iii) agree to any settlement, compromise or discharge of
a Third Party Claim that the Company recommends and that by its terms
obligates the Company to pay the full amount of the liability in
connection with such Third Party Claim, releases the Indemnified Party
completely in connection with such Third Party Claim and would not
materially adversely affect the Indemnified Party's business or
personal reputation. In the event the Company assumes the defense of
any Third Party Claim, the Indemnified Party shall be entitled to
participate in (but not control) such defense with its own counsel at
its own expense. If the Company does not assume the defense of any
such Third Party Claim, the Indemnified Party may defend the Third
Party Claim in such manner as it may deem appropriate, including
settling such claim or litigation, and the Company shall promptly
reimburse the Indemnified Party in all respects thereto upon request.
11.03 Rights after Successful Defense. To the extent that a Member has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in this Article 11, or in defense of any claim issue or
matter therein, such Member shall be indemnified against expenses, including
reasonable attorneys' fees, actually and reasonably incurred by such Member in
connection therewith.
11.04 Other Determination of Rights. Any indemnification under Section
12.01 shall be made by the Company only as authorized in a specific case upon a
determination that indemnification of a Member is proper under the circumstances
because such Member has met the applicable standard of conduct set forth
therein. Such determination shall be made by a majority vote of all Members, or
if such vote is unobtainable, by legal counsel (compensated by the Company) in a
written opinion.
11.05 Other Remedies. The Members agree that equitable relief, including
the remedies of specific performance and injunction, shall be available with
respect to any breach or attempted breach of any provision of this Agreement or
any document delivered in connection with this Agreement.
11.06 Limitation of Liability. In no event shall any Member be liable for
any claim, whether based in warranty, contract, tort, product liability or
otherwise, for indirect or consequential damages, including but not limited to,
loss of profits, loss of business opportunity or loss of use arising from this
Agreement or its performance, unless such obligation comprises gross negligence
or wilful misconduct.
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ARTICLE 12
Default and Dissolution and Termination
12.01 Events of Default.
a. In the event that a Member ("Defaulting Member"):
i. (A) admits in writing its inability to pay its debts as they
mature; or (B) makes a general assignment for the benefit of
creditors; or (C) applies for or consents to the appointment of a
receiver, trustee, or liquidator of all or a substantial part of
its assets; or (D) files a petition or is the subject of an
involuntary petition in bankruptcy or for reorganization or for
an arrangement pursuant to a bankruptcy act or insolvency; or (E)
is adjudicated as bankrupt or insolvent appointment of a trustee
or a receiver; or
ii. (A) terminates this Agreement, the Contribution Agreement, or the
Asset Purchase Agreement; or (B) defaults under, breaches, or
fails to perform any of the material obligations, covenants, or
agreements contained in this Agreement, the Contribution
Agreement, or the Asset Purchase Agreement (such default or
breach is being referred hereinafter as "Material Breach"), and
such Material Breach is not remedied within thirty (30) days
after notification thereof by the non-defaulting Member;
then the other Member(s) (each, a "Non-Defaulting Member") may
decide, upon declaration or discovery of the default and the
expiration of the cure period, if any, at its sole option: (i) to
dissolve or liquidate the Company in accordance with the Act, in
which case the Defaulting Member shall be obliged to cooperate in
liquidating and dissolving the Company; or (ii) purchase all but
not less than all of the Membership Units of the Company then
held by the Defaulting Member at ninety percent (90%) of the fair
market value of the Membership Units, except that the Defaulting
Member shall not be considered in default if it provides notice
to the Non-Defaulting Member of a Force Majeure event, as such is
defined in Article 13; provided, however, that the right to
terminate this Agreement under this Section 12.01(a) shall not be
available to any Party whose failure to fulfill any obligation
under the Contribution Agreement or the Asset Purchase Agreement,
as the case may be, shall have been the cause of, or shall have
resulted in, the termination or Material Breach, as the case may
be.
b. For the purposes of this Section 12.01, "fair market value" shall
mean the valuation of the Company on a going concern basis,
presuming the sole
32
ownership of the Company by the Non-Defaulting Member, as
determined by an international, accounting firm, selected by the
Non-Defaulting Member and not currently providing services to any
Member. In addition, should the Defaulting Member invoke the
provisions of Article 14 to resolve any dispute between the
Parties, the dissolution provisions contained herein at Section
12.01 shall not be invoked until full resolution of the dispute
pursuant to the provisions of Article 14.
c. These remedies shall be separate from and in addition to all
other remedies provided by law or equity resulting from the
specific breach or default under this Agreement which trigger the
remedy set forth in this Section 12.01 or from any other breach
of or default under this Agreement or any of the other agreements
contemplated hereby, and any exercise of such rights shall not
relieve the Defaulting Member from any obligations accrued prior
to the date of transfer of Membership Interest or any liability
for damage to the other Party for breach of any of the agreements
giving rise to the transfer of the Membership Interest or
dissolution nor shall it limit the Non-Defaulting Member's right
to seek such damage on any other grounds. It is expressly agreed
by the Members that the ten percent (10%) difference between the
amount paid and the fair market value pursuant to option (ii) is
not intended to constitute liquidated damages, a penalty, or any
other limitation of damages or remedies available under law or
equity.
12.02 Dissolution. The Company shall be dissolved upon an affirmative vote
of the Member(s) representing at least eighty percent (80%) of the then
outstanding Membership Units of the Company. Upon the dissolution of the Company
pursuant to this Article 12 and without prejudice to the rights and obligations
of the Members, the Members shall agree upon equitable arrangements to
facilitate the completion of contracts not fully performed by the Company at the
time of dissolution and any other matters attendant to the winding up of the
Company.
12.03 Winding Up. After all the liabilities of the Company have been
satisfied, or upon provision being made therefore, the Managing Board of the
Company shall liquidate and dissolve the affairs and assets of the business of
the Company and distribute the same to the Members, according to their
respective rights and interests, and in accordance with each Member's share of
the Company's overall Membership Units. In the event that a Member furnishes to
the Company, as a capital contribution pursuant to Section 3.01, technology,
know-how or other intangible property in exchange for all or part of its
Membership Interest in the Company, that Member shall be entitled to the return
of that capital contribution in the event of the liquidation and dissolution of
the Company provided that the other Members of the Company receive and
equivalent value in a cash or non-cash distribution, in accordance with each
Member's share of the Company's overall Membership Units.
33
ARTICLE 13
Force Majeure
13.01 Non-Performance. Non-performance by a Party is excused if that Party
proves that the non-performance was due to an impediment beyond its control and
it could not reasonably be expected to have taken the impediment into account at
the time of the conclusion of the Agreement or to have avoided or overcome it or
its consequences ("an Impediment of Performance," 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 supplies).
13.02 Impediment Shall Not Include. Unless otherwise provided in the
present Agreement, an Impediment of Performance within the meaning of Section
13.01 does not include the lack of any authorization, license, entry or
residence permit, or of any approval necessary for the performance of the
Agreement and required to be issued by a public authority of any kind whatsoever
in the country of the Party seeking excuse for non-performance.
13.03 Temporary Impediment. When the impediment is only temporary, the
excuse for non-performance shall have effect for such period as is reasonable,
having regard to the effect of the impediment on the performance of the
Agreement.
13.04 Timing of Non-Performance. The excuse for non-performance takes
effect from the time of the impediment.
13.05 Notice of Impediment of Performance. The Party that fails to perform
due to such an Impediment of Performance must give notice to the other Party of
the impediment and its effect on that Party's ability to perform. If the notice
is not received by the other Party within a reasonable time after the Party
which fails to perform knew or ought to have known of the impediment, the
failing Party is liable for damages resulting from such non-receipt.
13.06 Consequences to Operations. As soon as notice according to Section
13.05 has been given, the Parties shall consult about the consequences for the
operations of the Company. Both Parties shall make their commercially reasonable
efforts to overcome any obstacles to the activities of the Company that may
result from the excused non-performance. Such excuse does not relieve the Party
concerned from its obligation to assume its share of any financial additional
commitments that may be necessary to overcome the obstacle.
13.07 Right to Terminate. Nothing in this Article prevents a Party from
exercising a right to terminate the Agreement or to withhold performance or
request interest on money due, as otherwise permitted pursuant to this
Agreement.
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ARTICLE 14
Dispute Resolution
14.01 Commencement of Arbitration. If any dispute is not resolved within
fourteen (14) days after the notice given by the Party raising such dispute to
the other, either Party may give notice to the other Party of this failure and,
thereupon, may commence Arbitration pursuant to Section 14.03 ET seq. The
Parties hereby exclude recourse to the courts, unless required for urgent
interim measures of protection, such as the threat of irreparable harm.
14.02 Governing Law. This Agreement shall be governed by the laws of the
State of Delaware (regardless of the laws that might otherwise govern under
applicable principles of conflicts of law) as to all matters, including, without
limitation, matters of validity, construction, effect, performance, and
remedies.
14.03 Place and Rules. The Arbitration proceedings shall be conducted under
the rules of Arbitration of the International Chamber of Commerce. The place of
arbitration shall be Singapore. The arbitration shall be conducted in the
English language and there shall be three arbitrators, with Spire and Xxxxxx
(Delaware) each picking one arbitrator, and the two arbitrators picking a third
arbitrator.
14.04 Letter and Spirit of the Agreement. In the resolution of the dispute,
the arbitrators shall give effect to the letter and the spirit of this Agreement
and, where necessary, reconcile conflicting provisions of the Agreement in this
spirit. In case of conflict between the Agreement and the applicable law, the
arbitrators shall give effect to this Agreement and the reasonable intentions
and expectations of the Parties.
14.05 Valuation. In the case of any disputes relating to questions of
valuation, either Party may request the appointment of an independent expert,
which shall be an international, first-tier accounting firm (the "Independent
Expert"), according to proceedings to be agreed by the Parties. If the Parties
fail to agree on the appointment of an Independent Expert and on the applicable
rules, the Rules for Expertise of the International Chamber of Commerce's
International Centre for Expertise shall apply. The Independent Expert's
valuation shall be final and binding on the Parties.
ARTICLE 15
Additional Provisions
15.01 Nondisclosure of Terms of Agreement. Each Member agrees that it shall
not disclose the terms of this Agreement, other than to its agents, officers,
attorneys, accountants, and other required professionals, without the consent of
the other Members, except to the extent required by law or governmental
regulation or unless served with compulsory process in any judicial proceeding,
in which event, such Member agrees to give prompt notice to the other Member of
the compulsory process, and shall seek to
35
redact any confidential or proprietary information, to the extent possible, from
such disclosure.
15.02 Legal Representation. The Parties agree that the terms and conditions
of this Agreement and all other Transaction Documents are the result of
negotiations between the Parties and that each such Agreement shall not be
construed in favor of or against any Party by reason of the extent to which any
Party or its professional advisors participated in the preparation of each such
Agreement. Spire and Xxxxxx (Delaware) each acknowledge and represent that each
has had full and ample opportunity to review this document and the ancillary
agreements contemplated hereby, and to consult with legal counsel and financial
advisors of their choice. Each of Spire and Xxxxxx (Delaware) understands the
consequences hereof, and each enters into this Agreement voluntarily with the
intention to be bound.
15.03 Conflicts. In the event of any conflict between the provisions of
this Agreement and the Company's Certificate of Formation, the provisions of
this Agreement shall prevail as between the Members. Further, the Act shall
govern all rights and liabilities of the Parties to the extent not otherwise
addressed by this Agreement and the Company's Certificate of Formation. The
Members shall exercise all voting and other rights and powers available to them
so as to give effect to the provisions of this Agreement.
15.04 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by courier
service, by fax or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a Party as shall be specification notice given in
accordance with this Section 15.04:
a. If to the Company:
Spire Corporation
Xxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000 XXX
Fax No.: +1-781- 000-0000
Attention: Xxxxxx X. XxXxxxx
b. If to a Member, then to the address or fax number set forth opposite
such Member's name on Schedule 2.01 hereto.
36
15.05 Assignability and Parties in Interest. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the Members
and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any Member without the prior written consent of the other Members,
except as provided herein; PROVIDED, HOWEVER, that this Agreement or any of its
rights and obligations hereunder may be assigned by Xxxxxx (Delaware) or Spire
to one or more of its Affiliates without the prior written consent of the other
Members. The rights and remedies of this Agreement are intended solely for the
benefit of the Members, their successors and permitted assigns and are not
intended to create or confer any rights or obligations enforceable by any third
party, including any creditor of the Company, except as otherwise provided by
applicable law.
15.06 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
15.07 Publicity. So long as this Agreement is in effect, no Member shall
issue or cause the publication of any press release or other public announcement
with respect to the transactions contemplated by this Agreement without the
consent of the other Members, except as such release or announcement may be
required by law or the rules or regulations of any securities exchange, in which
case the Member required to make the release or announcement shall, to the
extent practicable, allow the others reasonable time to comment on such release
or announcement in advance of such issuance.
15.08 Complete Agreement. This Agreement and the other Transaction
Documents constitute the entire understanding between and among the Members with
respect to the transactions contemplated herein and, except as provided herein,
supersede all previous oral and written and all contemporaneous oral
negotiations, commitments, writings and understandings.
15.09 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. In the event of any inconsistency among the
terms and conditions of the documents related to the subject matter herein, the
terms and conditions set forth in the following documents shall govern in the
following order: (i) this Agreement; (ii) the Contribution Agreement; and (iii)
the Asset Purchase Agreement. In the event of a minor inconsistency between such
documents, the provisions thereof shall be interpreted so as to minimize any
such inconsistency, to be read as a harmonious whole.
37
15.10 Severability. If any term or provision of this Agreement is held by a
court or arbitral panel of competent jurisdiction to be in violation of any
applicable local, state or federal ordinance, statute, law, administrative or
judicial decision, or public policy, and if such court or arbitral panel
declares such term or provision to be illegal, invalid, unlawful, void, voidable
or unenforceable as written, then such provision shall be given full force and
effect to the fullest possible extent that it is legal, valid and enforceable,
and the remainder of the terms and provisions shall be construed as if such
illegal, invalid, unlawful, void, voidable or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such
provision and the remainder of the terms and provisions shall be in accordance
with the intent of the Members.
15.11 Additional Regulations. Should either of the Parties be subject to:
(a) the Export Regulations of the United States Department of Commerce and/or
other regulatory agencies that regulate the export from the United States of
certain technical data, information and materials; (b) taxes in any jurisdiction
other than the United States; (c) any customs or importation duties or
regulations; or (d) any other laws or regulations governing this Agreement,
including, but not limited to, the Foreign Corrupt Practices Act of 1977 (15
U.S.C. xx.xx. 78dd-1, et seq.), the Party incurring any taxes, duties, or
additional legal obligations as a result of those laws or regulations shall be
liable and responsible for fulfilling its obligations thereunder. The Parties to
this Agreement recognize that they may not be able to export certain technical
data, information and materials to certain countries, if at all, without a
validated export license.
15.12 Independent Contractors. Each of the Parties shall be an independent
contractor and is engaged in the operation of its own respective business. No
Party shall be considered to be an agent of any other Party for any purposes
whatsoever, nor except as specifically set forth herein, shall a Party have any
authorization to enter into any contract or assume any obligations for any other
Party hereto. Nothing contained in this Agreement or any other Transaction
Document, or the performances thereof, shall be construed to make any employees
of either Party the employees of the other Party.
15.13 Specific Performance. The Parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties hereto shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
15.14 Expenses. Except as otherwise specified in this Agreement, all costs
and expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the Party incurring
such costs and expenses.
15.15 Amendments and Waivers.
a. Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in
the case of an
38
amendment, by all Parties hereto, or in the case of a waiver, by
the Party or Parties against whom the waiver is to be effective;
PROVIDED HOWEVER, that Schedule 2.01 to this Agreement shall be
deemed amended from time to time to reflect the admission of a
new Member, the withdrawal or resignation of a Member and the
adjustment of the Membership Units resulting from any sale or
other disposition of a Membership Unit, in each case that is made
in accordance with the provisions hereof.
b. No failure or delay by any party in exercising any right, power
or privilege hereunder (other than a failure or delay beyond a
period of time specified herein) shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
[SIGNATURES APPEAR ON NEXT PAGE]
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
39
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
SPIRE CORPORATION
/s/ Xxxxx X. Xxxxxx
------------------------------
By: Xxxxx X. Xxxxxx
Date: July 31, 2007
XXXXXX SOLAR (DELAWARE) COMPANY, LTD.
/s/ Xxxxxx Xxx
------------------------------
By: Xxxxxx Xxx
Date: July 31, 2007
XXXXXX XXXXX SOLAR, LLC
/s/ ***
------------------------------
By: ***
Date: July 31, 2007
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
40
EXHIBIT A
Member Certificate
Operating Agreement of Xxxxxx Xxxxx Solar, LLC
THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OF 1933 OR AN EXEMPTION THEREFROM AND, IN EACH CASE, IN
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.
THE MEMBERSHIP UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN AN OPERATING AGREEMENT DATED AS OF
_______ __, 2007, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY. NO REGISTRATION OF
TRANSFER OF THESE MEMBERSHIP UNITS WILL BE MADE ON THE BOOKS OF THE COMPANY
UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH.
All capitalized terms used herein but not otherwise defined shall have the
meaning set forth in the Operating Agreement of Xxxxxx Xxxxx Solar, LLC dated as
of [July 30, 2007], as amended from time to time (the "Agreement").
The undersigned hereby acknowledges that in exchange for a capital contribution
with a value of $____________, the undersigned has received [__] Membership
Units in Xxxxxx Xxxxx Solar, LLC (the "Company").
The undersigned further acknowledges that it has been given a copy of, and has
reviewed carefully, the Agreement. The undersigned agrees to be bound by all
terms and provisions of the Agreement and to assume all obligations of the
transferor of such Membership Units. The undersigned hereby accepts, ratifies
and agrees to be bound by all actions duly taken pursuant to the terms and
provisions of the Agreement by the Company prior to the date hereof.
Dated ___________, ____.
________________________________________
[Name of Member]
EXHIBIT B
Form of Certificate of Formation of
Xxxxxx Xxxxx Solar, LLC
Please see attached.
CERTIFICATE OF FORMATION
OF
Xxxxxx Xxxxx Solar, LLC
1. The name of the limited liability company is Gloia Spire Solar, LLC.
2. The address if its registered office and agent for process in the
State of Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx
xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation of shall be effective as of date of
filing.
IN WITNESS WHEREOF, the undersigned have executed and filed this
Certificate of Formation of Xxxxxx Xxxxx Solar, LLC, this 30th day of July,
2007.
/s/ Xxxxx X. Xxxxxxxx
--------------------------------
--------------------------------
--------------------------------
SCHEDULE 2.01
-------------
Spire Corporation Xxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000 XXX
Fax: x0-000-000-0000
Attention: Xxxxxx XxXxxxx, Chief Operating Officer
E-mail: xxxxxxxx@xxxxxxxxx.xxx
Xxxxxx Solar (Delaware) Xx. 000, Xxxxxxx 0, Xxxxxxx Xxxx
Company, Ltd. Xx-Xxx Xxxxxxxx, Xxxxxx
00000 Xxxxxx, Xxxxxxxx of China
Fax: x000-0-00000000
Attn: Xxxxxx Xxx, Chief Operating Officer
E-mail: xxxxxx@xxxxxxxxxxx.xxx
SCHEDULE 3.01
-------------
MEMBERS PERCENT OWNERSHIP
------- -----------------
Xxxxxx Solar (Delaware) Company, Ltd. 55%
Spire Corporation 45%
