-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LOKlYY9IscZWC0I7dqOeIR+KNyM5pko5aSF5nw/zRyRax0iyKo3A1gwmOtrx0sTY WSPiLHKso0Jyv6cbc2UYEQ== 0001072613-07-002111.txt : 20070910 0001072613-07-002111.hdr.sgml : 20070910 20070910165517 ACCESSION NUMBER: 0001072613-07-002111 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20070904 ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070910 DATE AS OF CHANGE: 20070910 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SPIRE CORP CENTRAL INDEX KEY: 0000731657 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 042457335 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-12742 FILM NUMBER: 071109203 BUSINESS ADDRESS: STREET 1: ONE PATRIOTS PARK CITY: BEDFORD STATE: MA ZIP: 01730-2396 BUSINESS PHONE: 6172756000 MAIL ADDRESS: STREET 2: ONE PATRIOTS PARK CITY: BEDFORD STATE: MA ZIP: 01730-2396 8-K 1 form8k_15419.txt FORM 8-K DTAED SEPTEMBER 4, 2007 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): September 4, 2007 - -------------------------------------------------------------------------------- SPIRE CORPORATION - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Charter) Massachusetts 0-12742 04-2457335 - -------------------------------------------------------------------------------- (State or Other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) One Patriots Park, Bedford, Massachusetts 01730-2396 - ----------------------------------------- ---------- (Address of Principal Executive Offices) (Zip Code) (781) 275-6000 - -------------------------------------------------------------------------------- (Registrant's telephone number, including area code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ================================================================================ ITEM 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS. On September 4, 2007, Spire Corporation (the "Company") and Gloria Solar Co., Ltd., a company organized under the laws of the Republic of China (Taiwan) ("Gloria Solar"), closed their previously announced transaction, entered into on July 31, 2007, pursuant to which (i) the Company sold to Gloria Solar certain assets belonging to the Company's solar systems business and (ii) the Company and Gloria Solar formed a joint venture (the "Joint Venture") for the purpose of pursuing the solar photovoltaic systems market within the United States; the Joint Venture will design, market, sell and manage the installation of systems for the generation of electrical power by solar photovoltaic means in primarily commercial/industrial and utility segments of such market. The Joint Venture's business is referred to herein as the "JV Business." The contractual relationship is characterized by the following three major agreements: 1. An Asset Purchase Agreement pursuant to which the Company sold certain assets belonging to its solar systems business to Gloria Solar for $4,000,000. Such assets included the Company's module production line it has used to make customized building integrated photovoltaic modules, module and systems designs and related technical information. This agreement requires the Company to recondition the equipment within a four-month period after closing and provide a one-year warranty. The Company is allowed the rent-free use of the equipment to complete certain existing requirements and for the training of its equipment customers. In connection with the Asset Purchase Agreement, the parties entered into certain ancillary agreements, including (i) a Subcontracting Agreement pursuant to which Gloria Solar will subcontract the operation of the purchased assets to the Joint Venture; and (ii) a Sublease Agreement pursuant to which the Company will lease space to the Joint Venture for the purpose of operating the acquired assets for Gloria Solar. 2. A Contribution Agreement pursuant to which (i) the Company contributed to the Joint Venture its assets primarily relating to the JV Systems Business, including certain intellectual property and know-how, access to information technology assets and relationships, relationships with current and previous customers, contract backlog and project opportunities, a license to certain registered trademarks, and employment relationships with staff members and (ii) Gloria Solar contributed $5,000,000 in cash. 3. The Operating Agreement of the Joint Venture, to be known as "Gloria Spire Solar, LLC." As noted above, the JV Systems Business is to pursue the solar photovoltaic systems market within the United States and, in connection therewith, the Joint Venture will design, market, sell and manage the installation of systems for the generation of electrical power by solar photovoltaic means in primarily commercial/industrial and utility segments of the market. Gloria Solar owns 55% of the Joint Venture and the Company owns 45% of the Joint Venture. The Joint Venture's term is indefinite with provisions for liquidation/termination, including in any instance of default, as set forth in the Operating Agreement. If the managing board, as described below, determines that additional capital is required to support the operations of the Company, the Joint Venture shall make a call for additional funds. Within ten (10) days after the members have received written notice of the call, the members shall make additional capital contributions to the Joint Venture in proportion to each member's interest in the Joint Venture. If a member fails to fund its pro rata portion of any capital call, the non-defaulting member may purchase the defaulting member's shortfall; however, in no event may the Company's or Gloria Solar's interest in the Joint Venture be reduced to below 10%. The Joint Venture will have a managing board composed of five (5) managers with a rotating chairmanship, allowing any member with at least 50% of the membership units to appoint three (3) managers, and any member with at least 35% of the membership units to appoint two (2) managers. 2 Major decisions of this body will require at least one affirmative vote by a Company-appointed manager and at least one affirmative vote by a Gloria Solar-appointed manager. With respect to transfers of membership interests, for the first twenty-four (24) months, neither party may transfer its membership interest. Thereafter, each member shall have a right of first refusal with respect to proposed transfers by the other member. In the event of a "change in control" of a member, the other members may purchase such member's interest in the Joint Venture. Further participation by the Company in the business of the Joint Venture is restricted; for a period of three (3) years, the Company may not mass manufacture, market or sell solar cell modules with less than 575 watt capacity, and may do so thereafter only outside the United States. The Company is not restricted in showing its equipment customers how to manufacture modules or from using module design technology for research and development purposes. The members are expected to refrain from competing with Joint Venture in the solar systems business in the U.S. market. For any purchase of photovoltaic modules, the Joint Venture shall first offer to acquire such modules from Gloria Solar, on the same terms it would otherwise acquire them from a third party supplier in an arm's-length transaction. If Gloria Solar cannot meet those terms, the Joint Venture may acquire such modules from a third party supplier. For any purchase of photovoltaic module manufacturing equipment, the Joint Venture shall first offer to acquire such equipment from the Company, on the same terms it would otherwise acquire them from a third party supplier in an arm's-length transaction. If the Company cannot meet those terms, the Joint Venture may acquire such equipment from a third party supplier. In connection with the Operating Agreement, the parties entered into several ancillary agreements, including (i) a Transitional Services Agreement, whereby the Company furnishes the Joint Venture with certain administrative and maintenance services at specified rates; (ii) a Technology License Agreement, whereby the Joint Venture grants the Company a limited license to certain photovoltaic module and systems technology which was part of the Company's contribution to the assets of the Joint Venture, for the purpose of allowing the Company to continue to do the things expressly permitted under the Operating Agreement; (iii) an Assignment and Assumption Agreement, whereby the Company assigns certain contracts and agreements to the Joint Venture; and (iv) several Trademark License Agreements, whereby the Company licenses the use of its primary mark ("Spire") and logo elements, for use only in conjunction with the term "Solar," or as a composite, as in "Gloria Spire Solar LLC." These licenses are both to Gloria Solar and to the Joint Venture, with a further one from Gloria Solar to the Joint Venture for use of the mark "Gloria." In addition, on July 31, 2007, the Company and Gloria Solar entered a purchase and sale agreement whereby Gloria Solar will purchase a nominal 50-megawatt module production line for the price of $3.8 million. The equipment is scheduled to be delivered in the first half of 2008. The disclosure set forth above is a summary of the material provisions of the Asset Purchase Agreement, the Contribution Agreement and the Operating Agreement. These summaries are not complete and are qualified in their entirety by reference to the full text of such agreements, each of which is attached as an exhibit to this Current Report on Form 8-K. Readers should review those agreements for a complete understanding of the terms and conditions associated with the transaction described herein. 3 ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (b) Pro Forma Financial Information. The Company is evaluating the financial significance of the acquisition of its interest in the Joint Venture resulting from this transaction. To the extent that such acquisition is determined to be significant, this report on Form 8-K will be amended to include the Company's unaudited pro forma condensed consolidated balance sheet and statement of operations as of September 30, 2007 and for the nine months then ended, and for the year ended December 31, 2006. Such pro forma financial information, if required, will be filed by amendment within 71 calendar days after the date this report on Form 8-K must be filed. (d) Exhibits. Exhibit No. Description 2.1 Asset Purchase Agreement, dated as of July 31, 2007, by and between the Company and Gloria Solar Co., Ltd.*+ 2.2 Contribution Agreement, dated as of July 31, 2007, by and among the Company, Gloria Solar Co., Ltd. and Gloria Solar (Delaware) Company, Ltd.*+ 10(x) Operating Agreement of Gloria Spire Solar, LLC, dated July 31, 2007, by and among the Company, Gloria Solar (Delaware) Company, Ltd. and Gloria Spire Solar, LLC.* * Portions of this Exhibit have been omitted pursuant to a request for confidential treatment. + The Company agrees to furnish supplementally to the Securities and Exchange Commission (the "Commission") a copy of any omitted schedule or exhibit to this agreement upon request by the Commission. 4 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. SPIRE CORPORATION Date: September 10, 2007 By: /s/ Christian Dufresne ------------------------------- Christian Dufresne Chief Financial Officer and Treasurer EXHIBIT INDEX Exhibit No. Description ----------- ----------- 2.1 Asset Purchase Agreement, dated as of July 31, 2007, by and between the Company and Gloria Solar Co., Ltd.*+ 2.2 Contribution Agreement, dated as of July 31, 2007, by and among the Company, Gloria Solar Co., Ltd. and Gloria Solar (Delaware) Company, Ltd.*+ 10(x) Operating Agreement of Gloria Spire Solar, LLC, dated July 31, 2007, by and among the Company, Gloria Solar (Delaware) Company, Ltd. and Gloria Spire Solar, LLC.* * Portions of this Exhibit have been omitted pursuant to a request for confidential treatment. + The Company agrees to furnish supplementally to the Securities and Exchange Commission (the "Commission") a copy of any omitted schedule or exhibit to this agreement upon request by the Commission. EX-2.1 2 exhibit2-1_15419.txt ASSET PURCHASE AGREEMENT EXHIBIT 2.1 ----------- Confidential treatment requested as to certain information contained in this Exhibit 2.1 and filed separately with the Securities and Exchange Commission. ASSET PURCHASE AGREEMENT Between SPIRE CORPORATION and GLORIA SOLAR CO., LTD. Dated as of July 31, 2007 TABLE OF CONTENTS Page CONTENTS ARTICLE I DEFINITIONS.........................................................1 SECTION 1.01. CERTAIN DEFINED TERMS........................................1 SECTION 1.02. DEFINITIONS..................................................7 SECTION 1.03. INTERPRETATION AND RULES OF CONSTRUCTION.....................7 ARTICLE II PURCHASE AND SALE..................................................8 SECTION 2.01. PURCHASE AND SALE OF PURCHASED ASSETS........................8 SECTION 2.02. ASSUMPTION AND EXCLUSION OF LIABILITIES......................8 SECTION 2.03. PURCHASE PRICE...............................................9 SECTION 2.04. CLOSING......................................................9 SECTION 2.05. CLOSING DELIVERIES BY THE SELLER.............................9 SECTION 2.06. CLOSING DELIVERIES BY THE PURCHASER..........................9 SECTION 2.07. CLOSING DELIVERIES BY THE COMPANY...........................10 SECTION 2.08. POST-CLOSING DELIVERIES.....................................10 SECTION 2.09. SUPPORT OF THE COMPANY......................................10 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER.....................10 SECTION 3.01. ORGANIZATION, AUTHORITY AND QUALIFICATION OF THE SELLER.....10 SECTION 3.02. NO CONFLICT.................................................11 SECTION 3.03. GOVERNMENTAL CONSENTS, APPROVALS AND THIRD PARTY CONSENTS..... SECTION 3.04. LITIGATION..................................................11 SECTION 3.05. COMPLIANCE WITH LAWS........................................12 SECTION 3.06. ENVIRONMENTAL AND OTHER PERMITS AND LICENSES; RELATED MATTERS.............................................12 SECTION 3.07. INTELLECTUAL PROPERTY.......................................12 SECTION 3.08. ASSETS......................................................13 SECTION 3.09. REAL PROPERTY...............................................13 SECTION 3.10. TAXES.......................................................13 SECTION 3.11. FULL DISCLOSURE.............................................13 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...................14 SECTION 4.01. ORGANIZATION AND AUTHORITY OF THE PURCHASER.................14 SECTION 4.02. NO CONFLICT.................................................14 SECTION 4.03. GOVERNMENTAL CONSENTS AND APPROVALS.........................15 SECTION 4.04. LITIGATION..................................................15 SECTION 4.05. EXPORT REGULATIONS AND OTHER LAWS. .........................15 ARTICLE V ADDITIONAL AGREEMENTS..............................................15 SECTION 5.01. ACCESS TO INFORMATION.......................................15 SECTION 5.02. CONFIDENTIALITY.............................................15 SECTION 5.03. SUBCONTRACTING AGREEMENT....................................16 SECTION 5.04. SUBLEASE AGREEMENT..........................................16 SECTION 5.05. BRANDING....................................................16 SECTION 5.06. TAX COOPERATION AND EXCHANGE OF INFORMATION.................16 SECTION 5.07. CONVEYANCE TAXES............................................17 SECTION 5.08. ALLOCATION OF CERTAIN TAXES.................................17 SECTION 5.09. SPIRE'S USE OF THE PURCHASED ASSETS POST-CLOSING............17 SECTION 5.10. REFURBISHMENT OF PURCHASED ASSETS; PRODUCT WARRANTY.........18 i SECTION 5.11. PERMITS.....................................................18 SECTION 5.12. NON-COMPETITION.............................................18 SECTION 5.13. FURTHER ACTION..............................................19 ARTICLE VI INDEMNIFICATION...................................................19 SECTION 6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..................19 SECTION 6.02. INDEMNIFICATION.............................................19 SECTION 6.03. TAX TREATMENT...............................................20 ARTICLE VII TERMINATION......................................................20 SECTION 7.01. TERMINATION.................................................20 ARTICLE VIII GENERAL PROVISIONS..............................................21 SECTION 8.01. EXPENSES....................................................21 SECTION 8.02. NOTICES.....................................................21 SECTION 8.03. PUBLICITY...................................................22 SECTION 8.04. SEVERABILITY................................................22 SECTION 8.05. ENTIRE AGREEMENT............................................22 SECTION 8.06. ASSIGNABILITY AND PARTIES IN INTEREST.......................22 SECTION 8.07. AMENDMENTS AND WAIVERS......................................22 SECTION 8.08. SPECIFIC PERFORMANCE........................................23 SECTION 8.09. NONDISCLOSURE OF TERMS OF AGREEMENT.........................23 SECTION 8.10. GOVERNING LAW...............................................23 SECTION 8.11. DISPUTE RESOLUTION..........................................23 SECTION 8.12. COUNTERPARTS................................................23 EXHIBITS 2.01(a) Purchased Assets 2.01(b) Excluded Assets 2.03(b) Purchase Price ii ASSET PURCHASE AGREEMENT, dated as of July 31, 2007, between SPIRE CORPORATION, a Massachusetts corporation (the "Seller"), and GLORIA SOLAR CO., LTD., a corporation incorporated in the Republic of China (the "Purchaser"; the Seller and the Purchaser, collectively, the "Parties", and individually, a "Party"). WHEREAS, the Seller designs and manufactures specialized equipment for producing photovoltaic ("PV") solar modules and is the owner of the Purchased Assets (as defined below); and WHEREAS, the Purchaser manufactures and sells PV solar modules; WHEREAS, concurrently with the execution and delivery of this Agreement, the Seller, the Purchaser and Gloria Solar (Delaware) Company, Ltd., a Delaware corporation wholly owned by the Purchaser ("Gloria (Delaware)"), are entering into a Contribution Agreement, dated as of the date hereof (the "Contribution Agreement"), pursuant to which the Seller, the Purchaser and Gloria (Delaware) will establish a limited liability company under the laws of the State of Delaware (the "Company") to engage in the Company Business; WHEREAS, concurrently with the execution and delivery of this Agreement, the Seller, Gloria (Delaware) and the Company are entering into an Operating Agreement, dated as of the date hereof (the "Operating Agreement"), which governs the rights and obligations of the Seller, Gloria (Delaware) and the Company in respect of the management and operation of the Company; and WHEREAS, the Purchaser wishes to purchase from the Seller, and the Seller wishes to sell to the Purchaser, the Purchased Assets, upon the terms and subject to the conditions set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, and intending to be legally bound, the Seller and the Purchaser hereby agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Certain Defined Terms. For purposes of this Agreement: "Action" means any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority. "Affiliate" means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person. For purposes of this Agreement, the Company, Spire and Gloria shall not be deemed to be Affiliates of each other. "Agreement" or "this Agreement" means this Asset Purchase Agreement (including the Exhibits and the Disclosure Schedule) and all amendments hereto made in accordance with the provisions of Section 8.07. "Ancillary Agreements" means the Asset Purchase Ancillary Agreements and the Joint Venture Ancillary Agreements. "Asset Purchase Ancillary Agreements" means the Bill of Sale, the Subcontracting Agreement, the Sublease Agreement, and the Spire-Gloria Trademark License Agreement. "Bill of Sale" means the Bill of Sale and Assignment executed by the Seller as of the date hereof with respect to the sale and transfer of the Purchased Assets by the Seller to the Purchaser. "BOS" means balance of system. "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 the Republic of China or the United States. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended through the Closing. "Claims" means any and all administrative, regulatory or judicial actions, suits, petitions, appeals, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations, proceedings, consent orders or consent agreements. "Code" means the Internal Revenue Code of 1986, as amended. "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 Gloria or its Affiliates for purposes of manufacturing PV Modules pursuant to the Subcontracting Agreement. For the avoidance of doubt, the 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). "Control" (including the terms "controlled by" and "under common control with"), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by contract, credit arrangement or otherwise, including the ownership, directly or indirectly, of securities or *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 2 ownership interests having the power to elect a majority of the board of directors or similar body governing the affairs of such person. "Conveyance Taxes" means all sales, use, value added, transfer, stamp, stock transfer, real property transfer, or gains and similar Taxes. "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 the Republic of China. "Disclosure Schedule" means the Disclosure Schedule attached hereto, dated as of the date hereof, delivered by the Seller to the Purchaser in connection with this Agreement. "Encumbrance" means any security interest, pledge, hypothecation, mortgage, lien (including environmental and tax liens), violation, charge, lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant, condition or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership. "Environment" means surface waters, groundwaters, soil, subsurface strata and ambient air. "Environmental Claims" means any Claims relating in any way to any Environmental Law or any Environmental Permit, including: (a) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law; and (b) any and all Claims by any Person seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the Environment. "Environmental Laws" means all Laws, now or hereafter in effect and as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, health, safety, natural resources or Hazardous Materials, including CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. ss.ss. 6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss.ss. 6901 et seq.; the Clean Water Act, 33 U.S.C. ss.ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss.ss. 2601 et seq.; the Clean Air Act, 42 U.S.C. ss.ss. 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. ss.ss. 300f et seq.; the Atomic Energy Act, 42 U.S.C. ss.ss. 2011 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss.ss. 136 et seq.; and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. ss.ss. 301 et seq. "Environmental Permits" means all permits, approvals, identification numbers, licenses and other authorizations required under or issued pursuant to any applicable Environmental Law. "Excluded Taxes" means: (a) all Income Taxes owed by the Seller or any of its Affiliates for any period; (b) all Taxes relating to the Excluded Assets or Retained Liabilities for any period; (c) all Taxes relating to the Purchased Assets, the Business or the Assumed 3 Liabilities for any Pre-Closing Period; (d) all Taxes of the Seller or any other Person by reason of being a member of a consolidated, combined, unitary or affiliated group that includes the Seller or any of its present or past Affiliates, by reason of a tax sharing, tax indemnity or similar agreement entered into by the Seller or any of its present or past Affiliates (other than this Agreement) or by reason of transferee or successor liability arising in respect of a transaction undertaken by the Seller or any of its present or past Affiliates; and (e) Taxes imposed on Purchaser as a result of any breach of warranty or misrepresentation under Section 3.09, or breach by the Seller of any covenant relating to Taxes. For purposes of this Agreement, in the case of any Straddle Period, Income Taxes relating to the Purchased Assets for the Pre-Closing Period shall be computed as if such taxable period ended as of the close of business on the date of the Closing. "Facility" means the module assembly line located at the Real Property used by the Seller to assemble standard or building-integrated PV Modules ***, and as described in further detail in Section 2.01(a). "Governmental Authority" means any federal, foreign, national, supranational, state, provincial, municipal, local, or similar government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body. "Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority. "Hazardous Materials" means: (a) petroleum and petroleum products, radioactive materials, asbestos-containing materials, urea formaldehyde foam insulation, transformers or other equipment that contain polychlorinated biphenyls and radon gas; (b) any other chemicals, materials or substances defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants", "contaminants" or "pollutants", or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance that is regulated by any Environmental Law. "Income Taxes" means Taxes imposed on or measured by reference to gross or net income or receipts, and franchise, net worth, capital or other doing-business Taxes. "Indemnified Party" means a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be. "Indemnifying Party" means the Seller pursuant to Section 6.02(a) or the Purchaser pursuant to Section 6.02(b), as the case may be. "Intellectual Property" means all: (a) patents, patent applications, inventions, discoveries (whether or not patentable or reduced to practice) and statutory invention registrations; (b) trademarks, service marks, domain names, trade dress, logos, trade names, corporate names and other identifiers of source or goodwill, including registrations and applications for registration thereof and including the goodwill of the business symbolized *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 4 thereby or associated therewith; (c) mask works, published and unpublished works of authorship (whether or not copyrightable), copyrights, including copyrights in computer software, registrations and applications for registration thereof, renewals and extensions therefor and all rights associated therewith; (d) confidential and proprietary information, including trade secrets, know-how and invention rights; and (e) any and all other proprietary rights. "IRS" means the Internal Revenue Service of the United States. "Joint Venture Ancillary Agreements" means the Joint Venture Ancillary Agreements, as defined in the Contribution Agreement. "Law" means any foreign, federal, national, supranational, state, provincial, municipal, local or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law). "Liabilities" means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable, including those arising under any Law (including any Environmental Law), Action or Governmental Order and those arising under any contract, agreement, arrangement, commitment or undertaking. "Licensed Intellectual Property" means all Intellectual Property licensed by third parties to the Seller pursuant to agreements between the Seller and such third parties and used in connection with the Seller's business, including, without limitation, its operation of the Purchased Assets. "Material Adverse Effect" means any circumstance, change in or effect on the Purchased Assets or the Seller that, individually or in the aggregate with all other circumstances, changes in or effects on the Purchased Assets or the Seller: (a) is or is reasonably likely to be materially adverse to the Purchased Assets; or (b) is reasonably likely to materially and adversely affect the ability of the Purchaser to operate the Purchased Assets in the manner in which it is currently or contemplated to be operated or conducted by the Seller. "Owned Intellectual Property" means all Intellectual Property owned by the Seller and used in connection with the Seller's business, including, without limitation, its operation of the Purchased Assets. "Person" means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity or group of related entities. "Pre-Closing Period" means any taxable period (or portion thereof) ending on or prior to the date of the Closing. "Primary Transaction Agreements" means this Agreement, the Operating Agreement, and the Asset Purchase Agreement. "Property Taxes" means real and personal AD VALOREM property Taxes and any other Taxes imposed on a periodic basis and measured by the items' deemed value. 5 "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) watts and dimensions with a maximum limit of two hundred fifty centimeters (250cm) by one hundred fifty centimeters (150 cm). "PV System" means an electricity generating system comprising one or more interconnected PV Modules and additional balance of system 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). "Real Property" means an internal portion of the improvements and building located at One Patriots Park, Bedford, Massachusetts. "Regulations" means the Treasury Regulations (including Temporary Regulations) promulgated by the United States Department of Treasury with respect to the Code. "Release" means disposing, discharging, injecting, spilling, leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing and the like into or upon any land or water or air or otherwise entering into the Environment. "Remedial Action" means all action to (a) clean up, remove, treat or handle in any other way Hazardous Materials in the Environment; (b) prevent the Release of Hazardous Materials so that they do not migrate, endanger or threaten to endanger public health or the Environment; or (c) perform remedial investigations, feasibility studies, corrective actions, closures and post-remedial or post-closure studies, investigations, operations, maintenance and monitoring. "Spire-Gloria Trademark License Agreement" means the trademark license agreement by and between Spire and Gloria as of the date hereof. "Spire PV Technology" means the Owned Intellectual Property and Licensed Intellectual Property used in connection with the Purchased Assets and the PV Modules, and as to each of the foregoing. "Straddle Period" means any taxable period beginning on or prior to and ending after the date of the Closing. "Taxes" means any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any government or taxing authority, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers' compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, AD VALOREM, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs' duties, tariffs, and similar charges. 6 "Tax Returns" means any return, declaration, report, election, claim for refund or information return or other statement or form filed or required to be filed with any Tax authority relating to Taxes, including any schedule or attachment thereto or any amendment thereof. "***. SECTION 1.02. Definitions. The following terms have the meanings set forth in the Sections set forth below: Definition Location "Allocation" 2.03(b) "Assumed Liabilities" 2.02(a) "Bank Account Designation Notice" 2.08(b) "Closing" 2.04 "Company" Recitals "Contribution Agreement" Recitals "Excluded Assets" 2.01(b) "Excluded Liabilities" 2.02(b) "Gloria (Delaware)" Recitals "Purchaser Indemnified Party" 6.02(a) "Loss" 6.02(a) "Operating Agreement" Recitals "Party" Preamble "Permits" 3.05 "Purchase Price" 2.03(a) "Purchased Assets" 2.01(a) "Purchaser" Preamble "PV" Recitals "Seller Indemnified Party" 6.02(b) "Sublease Agreement" 5.04 "Seller" Preamble "Subcontracting Agreement" 5.03 "Transferred Know-how" 3.07(a) "Warranty Period" 5.09(b) SECTION 1.03. Interpretation and Rules of Construction. In this Agreement, except to the extent otherwise provided or that the context otherwise requires: (a) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or a Schedule or Exhibit to, this Agreement unless otherwise indicated; (b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 7 (c) whenever the words "include," "includes" or "including" are used in this Agreement, they are deemed to be followed by the words "without limitation"; (d) the words "hereof," "herein" and "hereunder" and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein; (f) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms; (g) any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law or statute as from time to time amended, modified or supplemented, including by succession of comparable successor Laws; (h) references to a Person are also to its successors and permitted assigns; and (i) the use of "or" is not intended to be exclusive unless expressly indicated otherwise. ARTICLE II PURCHASE AND SALE SECTION 2.01. Purchase and Sale of Purchased Assets. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Seller shall sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to the Purchaser, and the Purchaser shall purchase from the Seller, the Facility, including, without limitation, (i) all assets comprising the Facility, including all ancillary equipment and furnishings, spare parts and supplies; and (ii) all of the assets set forth on Exhibit 2.01(a); all such assets collectively being referred to as the "Purchased Assets". (b) For the avoidance of doubt, the Purchased Assets shall exclude the assets set forth on Exhibit 2.01(b) (collectively, the "Excluded Assets"). SECTION 2.02. Assumption and Exclusion of Liabilities. (a) The Purchaser shall only be responsible for Liabilities arising from or in connection with the Purchased Assets to and only to the extent such Liabilities are incurred and due to be performed after the Closing (the "Assumed Liabilities"). 8 (b) The Seller shall retain, and shall be responsible for paying, performing and discharging when due, and the Purchaser shall not assume or have any responsibility for: (i) all Liabilities of the Purchased Assets (other than the Assumed Liabilities), including, without limitation, any and all Liabilities arising from or in connection with the Excluded Assets; and (ii) the Excluded Taxes (collectively, the "Excluded Liabilities"). The Seller shall pay and discharge the Excluded Liabilities as and when the same become due and payable. SECTION 2.03. Purchase Price. (a) The purchase price for the Purchased Assets shall be that amount set forth at Schedule 2.03 (the "Purchase Price"). (b) For all Tax purposes, the Purchaser and the Seller agree that the transactions contemplated in this Agreement shall be reported in a manner consistent with the terms of this Agreement, including the Allocation, and that none of them will take any position inconsistent therewith in any Tax Return, in any refund claim, in any litigation, or otherwise. Each of the Seller and the Purchaser agrees to cooperate with the other in preparing IRS Form 8594, and to furnish the other with a copy of such Form prepared in draft form within a reasonable period before its filing due date. Any subsequent adjustment to the Purchase Price shall be reflected in the Allocation in a manner consistent with Section 1060 of the Code and the Regulations thereunder. SECTION 2.04. Closing. Subject to the terms and conditions of this Agreement, the sale and purchase of the Purchased Assets shall take place at a closing (the "Closing") to be held at the office of Spire Corporation, One Patriots Park, Bedford, Massachusetts on the date hereof. SECTION 2.05. Closing Deliveries by the Seller. At the Closing, the Seller shall deliver or cause to be delivered to the Purchaser: (a) the Bill of Sale and such other instruments, in form and substance satisfactory to the Purchaser, as may be requested by the Purchaser to transfer the Purchased Assets to the Purchaser or evidence such transfer on the public records; (b) executed counterparts of each Asset Purchase Ancillary Agreement to which the Seller is a party; and (c) a certificate of the Secretary or an Assistant Secretary of the Seller certifying the names and signatures of the officers of the Seller authorized to sign this Agreement and the Asset Purchase Ancillary Agreements and the other documents to be delivered hereunder and thereunder. SECTION 2.06. Closing Deliveries by the Purchaser. At the Closing, the Purchaser shall deliver or cause to be delivered to the Seller or the Company, as applicable: (a) executed counterparts of each Asset Purchase Ancillary Agreement to which the Purchaser is a party; and (b) a certificate of the Secretary or an Assistant Secretary of the Purchaser certifying the names and signatures of the officers of the Purchaser authorized to sign this 9 Agreement and the Asset Purchase Ancillary Agreements and the other documents to be delivered hereunder and thereunder. SECTION 2.07. Closing Deliveries by the Company. At the Closing, the Seller and the Purchaser shall take all necessary action to cause the Company to deliver to Gloria executed counterparts of the Subcontracting Agreement. SECTION 2.08. Post-Closing Deliveries. (a) Within fourteen (14) days after the Closing, (i) the Seller shall deliver to the Purchaser a true and complete copy, certified by the Secretary or an Assistant Secretary of the Seller, of the resolutions duly and validly adopted by the Board of Directors of the Seller evidencing its authorization of the execution and delivery of this Agreement and the Asset Purchase Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby; (ii) the Purchaser shall deliver to the Seller a true and complete copy, certified by Chief Executive Officer of the Purchaser, of the resolutions duly and validly adopted by the Board of Directors of the Purchaser evidencing its authorization of the execution and delivery of this Agreement and the Asset Purchase Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby; and (iii) the Seller shall deliver a written notice in respect of the designation of a bank account for purposes of receiving the Purchase Price (the "Bank Account Designation Notice"). (b) Within thirty (30) days after the Closing, (i) the Purchaser shall deliver to the Seller the Purchase Price by wire transfer in immediately available funds to a bank account designated in the Bank Account Designation Notice; and (iii) and the Seller shall deliver to the Purchaser the receipt for the Purchase Price on the date on which the Purchase Price is delivered. SECTION 2.09. Support of the Company. The Parties agree that, after the Closing, the Purchaser shall provide primary and priority use of the Purchased Assets to support the Company in respect of the Company Business by supplying to the Company PV Modules manufactured by the Purchased Assets by subcontracting the operation of the Purchased Assets to the Company pursuant to the Subcontracting Agreement or, upon the expiration of the Subcontracting Agreement, on a best prices basis. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER As an inducement to the Purchaser to enter into this Agreement, the Seller hereby represents and warrants the hereinbelow items to the Purchaser, as of the date hereof and as of the Closing. Notwithstanding the foregoing, Seller shall not be liable for breach of the representations and warranties contained herein unless the accrued damage to the Purchaser exceeds Five Thousand U.S. Dollars (US$5,000.00) resulting from any single claim or multiple claims arising out of the same facts, events or circumstances, computed cumulatively. SECTION 3.01. Organization, Authority and Qualification of the Seller. The Seller is a corporation duly organized, validly existing and in good standing under the laws of 10 Massachusetts and has all necessary corporate power and authority to enter into this Agreement and the Asset Purchase Ancillary Agreements, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The Seller 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. The execution and delivery of this Agreement and the Asset Purchase Ancillary Agreements by the Seller, the performance by the Seller of its obligations hereunder and thereunder and the consummation by the Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of the Seller. This Agreement has been, and upon their execution the Asset Purchase Ancillary Agreements shall have been, duly executed and delivered by the Seller, and (assuming due authorization, execution and delivery by the Purchaser) this Agreement constitutes, and upon their execution the Asset Purchase Ancillary Agreements shall constitute, legal, valid and binding obligations of the Seller, enforceable against the Seller in accordance with their respective terms. SECTION 3.02. No Conflict. The execution, delivery and performance of this Agreement and the Asset Purchase Ancillary Agreements by the Seller do not and will not: (a) violate, conflict with or result in the breach of any provision of the Certificate of Incorporation or By-Laws of the Seller; (b) conflict with or violate (or cause an event which could have a Material Adverse Effect as a result of) any Law or Governmental Order applicable to the Seller, or any of its assets, properties or businesses, including the Purchased Assets; or (c) 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 of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Encumbrance on any of the Purchased Assets pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which the Seller is a party or by which any of the Purchased Assets is bound or affected. The Seller knows of no basis to believe, in the exercise of reasonable discretion and foresight, that a Material Adverse Effect is likely to arise from the execution and consummation of this Asset Purchase Agreement and the transactions thereby contemplated. SECTION 3.03. Governmental Consents, Approvals and Third Party Consents. The execution, delivery and performance of this Agreement and each Asset Purchase Ancillary Agreement by the Seller do not and will not require any consent, approval, authorization or other order of, action by, filing with or notification to, any Governmental Authority or third party. SECTION 3.04. Litigation. There are no Actions relating to the Purchased Assets or affecting any of the Purchased Assets pending before any Governmental Authority (or, to the best knowledge of the Seller after due inquiry, threatened to be brought by or before any Governmental Authority). Neither the Seller nor any of its assets or properties, including the Purchased Assets, is subject to any Governmental Order (nor, to the best knowledge of the Seller after due inquiry, are there any such Governmental Orders threatened to be imposed by any Governmental Authority) which has or has had a Material Adverse Effect or could affect the legality, validity or enforceability of this Agreement, any Asset Purchase Ancillary Agreement or the consummation of the transactions contemplated hereby or thereby. 11 SECTION 3.05. Compliance with Laws. The Seller has operated and continues to operate the Purchased Assets in accordance with all Laws and Governmental Orders applicable to the Seller or the Purchased Assets, and the Seller is not in violation of any such Law or Governmental Order. The Seller has obtained all governmental licenses, certifications, permits and authorizations necessary to operate the Facility as now operated (collectively, the "Permits") and the Permits may be freely re-issued in the name of the Purchaser after the Closing. The Seller has delivered to the Purchaser true and complete copies of the Permits prior to the date hereof. SECTION 3.06. Environmental and Other Permits and Licenses; Related Matters. The Seller (as it relates to the Real Property and the Purchased Assets) is in compliance with all applicable Environmental Laws and all Environmental Permits. There has been no Release of any Hazardous Material on the Real Property or from or by any of the Purchased Assets. There are no Environmental Claims pending or threatened against the Seller (relating to the Real Property or the Purchased Assets), and there are no circumstances that can reasonably be expected to form the basis of any such Environmental Claim. The Seller does not have any actual or alleged Liability, whether fixed or contingent, relating to the Real Property or the Purchased Assets under any Environmental Law. Neither the execution of this Agreement or the Asset Purchase Ancillary Agreements nor the consummation of the transactions contemplated hereby or thereby will require any Remedial Action or notice to or consent of Governmental Authorities or third parties pursuant to any applicable Environmental Law or Environmental Permit. SECTION 3.07. Intellectual Property. (a) There is no Spire PV Technology that is materially necessary for the operation of the Purchased Assets, and the manufacturing know-how described in Exhibit 2.01(a) (the "Transferred Know-how") constitutes all of the know-how used or held for use in the operation of the Purchased Assets, and there are no other items of Spire PV Technology that are material or necessary for the operation of the Purchased Assets immediately after the Closing in substantially the same manner as operated prior to the Closing. (b) The Seller is the lawful owner of the entire right, title and interest in and to the Transferred Know-how. There is no Action or Claim pending, asserted or threatened, contesting or challenging the ownership, validity, registerability or enforceability of the Seller's right to the Transferred Know-how. (c) The operation of the Purchased Assets as currently conducted and the use of the Transferred Know-how do not infringe, misappropriate or otherwise violate or conflict with the Intellectual Property of any third party, and no Action alleging any of the foregoing is pending, and no Claim has been threatened or asserted against the Seller alleging any of the foregoing. No Person is engaging in any activity that infringes, misappropriates or otherwise violates or conflicts with the Transferred Know-how. (d) The Seller has taken all reasonable measures to maintain the confidentiality and value of all confidential information used in connection with the operation of the Purchased Assets. No confidential information, trade secrets or other confidential Intellectual Property has been disclosed by the Seller to any Person except pursuant to valid and appropriate non-disclosure and/or license agreements that have not been breached. 12 (e) The consummation of the transactions contemplated by this Agreement will not result in the Purchaser being: (i) bound by, or subject to, any non-compete obligation, covenant not to sue, or other restriction on the operation or scope of its business; or (ii) obligated to pay any royalties, honoraria, fees or other payments to any Person in excess of those payable by the Seller prior to the Closing. SECTION 3.08. Assets. (a) The Seller has good and marketable title to all the Purchased Assets, free and clear of all Encumbrances. The Seller has caused the Purchased Assets to be maintained in accordance with good business practices, and has recently refurbished the Facility by replacing certain necessary components and providing preventive maintenance. All the Purchased Assets are in good operating condition and repair and are suitable for the purposes for which they are used and intended to be used. (b) The Seller has the complete and unrestricted power and unqualified right to sell, assign, transfer, convey and deliver the Purchased Assets to the Purchaser without penalty or other adverse consequences. Following the consummation of the transactions contemplated by this Agreement, the Purchaser will own good, valid and marketable title to the Purchased Assets, free and clear of any Encumbrances, and without incurring any penalty or other adverse consequence, including any increase in royalties, or license or other fees imposed as a result of, or arising from, the consummation of the transactions contemplated by this Agreement. SECTION 3.09. Real Property. There is no violation of any Law (including any building, planning or zoning law) relating to the Real Property. The Seller has made available to the Purchaser a true, legible and complete copy of the deed for the Real Property. The Seller is in peaceful and undisturbed possession of the Real Property, and there are no contractual or legal restrictions that preclude or restrict the ability to use the Real Property for the purposes for which it is currently being used. There are no material latent defects or material adverse physical conditions affecting the Real Property. The Seller has not subleased any parcel or any portion of the Real Property to any other Person and no other Person has any rights to the use, occupancy or enjoyment thereof pursuant to any lease, license, occupancy or other agreement. There are no condemnation proceedings or eminent domain proceedings of any kind pending or, to the best knowledge of the Seller after due inquiry, threatened against the Real Property. To the best knowledge of the Seller after due inquiry, there are no facts that would prevent the Real Property from being occupied by the Purchased Assets after the Closing in the same manner as occupied by the Purchased Assets immediately prior to the Closing. SECTION 3.10. Taxes. There are no Tax liens on any of the Purchased Assets. SECTION 3.11. Full Disclosure. The Seller is not aware of any facts pertaining to the Seller or the Purchased Assets which are reasonably probable to have a Material Adverse Effect and which have not been disclosed in this Agreement, the Disclosure Schedule or otherwise disclosed to the Purchaser by the Seller in writing. No representation or warranty of the Seller in this Agreement, nor any statement or certificate furnished or to be furnished to the Purchaser pursuant to this Agreement, or in connection with the transactions contemplated by this Agreement, contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading. 13 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER As an inducement to the Seller to enter into this Agreement, the Purchaser hereby represents and warrants the hereinbelow items to the Seller, as of the date hereof and as of the Closing. Notwithstanding the foregoing, Purchaser shall not be liable for breach of the representations and warranties contained herein unless the accrued damage to the Seller exceeds Five Thousand U.S. Dollars (US$5,000.00) resulting from any single claim or multiple claims arising out of the same facts, events or circumstances, computed cumulatively. SECTION 4.01. Organization and Authority of the Purchaser. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all necessary corporate power and authority to enter into this Agreement and the Asset Purchase Ancillary Agreements to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by the Purchaser of this Agreement and the Asset Purchase Ancillary Agreements to which it is a party, the performance by the Purchaser of its obligations hereunder and thereunder and the consummation by the Purchaser of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of the Purchaser. This Agreement has been, and upon their execution the Asset Purchase Ancillary Agreements to which the Purchaser is a party shall have been, duly executed and delivered by the Purchaser, and (assuming due authorization, execution and delivery by the Seller) this Agreement constitutes, and upon their execution the Asset Purchase Ancillary Agreements to which the Purchaser is a party shall constitute, legal, valid and binding obligations of the Purchaser, enforceable against the Purchaser in accordance with their respective terms. SECTION 4.02. No Conflict. Except as may result from any facts or circumstances relating solely to the Seller, the execution, delivery and performance by the Purchaser of this Agreement and the Asset Purchase Ancillary Agreements to which it is a party do not and will not: (a) violate, conflict with or result in the breach of any provision of the Certificate of Incorporation or By-laws (or similar organizational documents) of the Purchaser; (b) conflict with or violate any Law or Governmental Order applicable to the Purchaser; or (c) conflict with, or 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 of termination, amendment, acceleration, suspension, revocation or cancellation of, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which the Purchaser is a party, which would adversely affect the ability of the Purchaser to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement or the Asset Purchase Ancillary Agreements. Purchaser knows of no basis to believe, in the exercise of reasonable discretion and foresight, that a Material Adverse Effect is likely to arise from the execution and consummation of this Agreement and the transactions thereby contemplated. 14 SECTION 4.03. Governmental Consents and Approvals. The execution, delivery and performance by the Purchaser of this Agreement and each Asset Purchase Ancillary Agreement to which the Purchaser is a 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. SECTION 4.04. Litigation. No Action by or against the Purchaser is pending or, to the best knowledge of the Purchaser after due inquiry, threatened, which could affect the legality, validity or enforceability of this Agreement, any Asset Purchase Ancillary Agreement or the consummation of the transactions contemplated hereby or thereby. SECTION 4.05. Export Regulations and Other Laws. The Seller is subject to the export regulations of the United States Department of Commerce and other regulatory agencies that regulate the export from the United States of certain technical data and information. Because of these regulations, the Parties to this Agreement recognize that the Seller may furnish such technical data to the Purchaser and Gloria (Delaware) only on the condition that the Purchaser and Gloria (Delaware) not re-export the technical data and/or information to any country to which Spire may not, without a validated export license, export such data directly. The Purchaser and Gloria (Delaware) acknowledge that the Purchaser and Gloria (Delaware) are knowledgeable of such export regulations and agree not to violate them or take any action or fail to take such action that would allow technical data and/or information or any product based on them to be shipped either directly or indirectly to any country not permitted by said regulations unless prior, written authorization is obtained from the relevant agencies having jurisdiction over such shipment either directly or through Spire. The Parties hereby represent and warrant that the transaction contemplated by this Agreement does not and will not result in any violation of such export regulations or any other laws or regulations governing this Agreement by virtue of the nationality or structure of any owners or Affiliates of the Purchaser or Gloria (Delaware). ARTICLE V ADDITIONAL AGREEMENTS SECTION 5.01. Access to Information. In order to facilitate the resolution of any claims made by or against or incurred by the Purchaser after the Closing or for any other reasonable purpose, for a period of seven years following the Closing, the Seller shall: (i) retain the books and records of the Seller which relate to the Purchased Assets and its operations for periods prior to the Closing and which shall not otherwise have been delivered to the Purchaser; and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of the Purchaser reasonable access (including the right to make photocopies, at the Purchaser's expense), during normal business hours, to such books and records. SECTION 5.02. Confidentiality. The Seller agrees to, and shall cause its agents, representatives, Affiliates, employees, officers and directors to: (a) treat and hold as confidential (and not disclose or provide access to any Person to) all confidential or proprietary information 15 with respect to the Purchased Assets and the Purchaser; (b) in the event that the Seller or any such agent, representative, Affiliate, employee, officer or director becomes legally compelled to disclose any such information, provide the Purchaser with prompt written notice of such requirement so that the Purchaser may seek a protective order or other remedy or waive compliance with this Section 5.02; (c) in the event that such protective order or other remedy is not obtained, or the Purchaser waives compliance with this Section 5.02, furnish only that portion of such confidential information which is legally required to be provided and exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such information, and (d) promptly furnish to the Purchaser any and all copies of all such confidential information then in the possession of the Seller or any of its agents, representatives, Affiliates, employees, officers or directors and destroy any and all additional copies then in the possession of the Seller or any of its agents, representatives, Affiliates, employees, officers or directors of such information and of any analyses, compilations, studies or other documents prepared, in whole or in part, on the basis thereof; PROVIDED, HOWEVER, that this sentence shall not apply to any information that, at the time of disclosure, is available publicly and was not disclosed in breach of this Agreement by the Seller, its agents, representatives, Affiliates, employees, officers or directors. SECTION 5.03. Subcontracting Agreement. At the Closing, the Purchaser shall, and the Seller and the Purchaser shall cause the Company to, enter into a subcontracting agreement (the "Subcontracting Agreement"), pursuant to which the Purchaser shall subcontract the operation of the Purchased Assets to the Company, as more fully set forth in the Subcontracting Agreement. SECTION 5.04. Sublease Agreement. At the Closing, the Seller and the Purchaser shall enter into a Sublease Agreement (the "Sublease Agreement"), pursuant to which the Seller shall make available for lease by the Purchaser and the Purchaser shall lease from the Seller for purposes of housing the Purchased Assets, the Real Property, which shall be adequate and convenient for the operation of the Purchased Assets as currently operated and intended to be operated and is acceptable to the Purchaser in its sole discretion, as more fully set forth in the Sublease Agreement. The Parties hereby agree and acknowledge that the terms of the Sublease Agreement, including, without limitation, the rate per square foot, shall be commercially reasonable and competitive with amounts that would be paid to third parties in similar agreements for light industrial space in the Boston area on an "arms' length" basis. SECTION 5.05. Branding. The Parties hereby agree that following the Closing, the products manufactured by the Facility shall be sold under the brand of "Spire" or "Gloria-Spire" as determined by the Purchaser in its sole discretion pursuant to a trademark license agreement to be entered into between the Seller as licensor and the Purchaser as licensee at the Closing (the "Trademark License Agreement"). SECTION 5.06. Tax Cooperation and Exchange of Information. The Seller and the Purchaser shall provide each other with such cooperation and information as either of them reasonably may request of the other relating to the Purchased Assets (including access to books and records) as is reasonably necessary for: (a) filing any Tax Return, amended Tax Return or claim for refund; (b) determining a liability for Taxes or a right to a refund of Taxes; (c) participating in or conducting any audit or other proceeding in respect of Taxes, or (d) making 16 representations to or furnishing information to parties subsequently desiring to purchase any part of the Purchased Assets from the Purchaser. Each of the Seller and the Purchaser shall retain all Tax Returns, schedules and work papers, records and other documents in its possession (or in the possession of its Affiliates) relating to Tax matters relevant to the Purchased Assets for each taxable period first ending after the Closing and for all prior taxable periods until the later of: (i) the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions except to the extent notified by the other Party in writing of such extensions for the respective Tax periods; and (ii) six (6) years following the due date (without extension) for such Tax Returns. SECTION 5.07. Conveyance Taxes. The Seller shall be liable for and shall hold the Purchaser harmless against any Conveyance Taxes which become payable in connection with the transactions contemplated by this Agreement. The Seller, after the review and consent by the Purchaser, shall file such applications and documents as shall permit any such Conveyance Tax to be assessed and paid on or prior to the Closing in accordance with any available pre-sale filing procedure. SECTION 5.08. Allocation of Certain Taxes(a) . Except as set forth below, the Purchaser shall be liable for and shall hold the Seller harmless against any and all Taxes arising from the ownership, use and/or operation of the Purchased Assets from and after the Closing. With respect to Property Taxes for the current Tax year, the Seller shall be responsible for all such Property Taxes for the Pre-Closing Period and the Purchaser shall be responsible for all such Property Taxes for the Post-Closing Period. All such Property Taxes assessed on an annual basis shall be prorated on the assumption that an equal amount of Property Tax applies to each day of the year, regardless of how installment payments are billed or made and any supplemental Property Taxes or assessments which arise out of a revaluation of any Purchased Asset, which revaluation would not have occurred except for the change in the ownership of such Purchased Asset, shall be allocated to the Post-Closing Period and shall accordingly be borne by the Purchaser. Any payment of Taxes due from one Party to the other pursuant to the foregoing provisions of this Section 5.08 shall be paid at the Closing. If the current year's Taxes and assessments are not available at the Closing, for purposes of apportionment between the Seller and the Purchaser and payment pursuant to this Section 5.08, the amount thereof shall be estimated on the basis of the prior year's Taxes and assessments, and any incremental payment shall be adjusted after receipt of the final Tax statements, but within fifteen (15) days after such statements are provided by the appropriate Tax authorities. SECTION 5.09. Spire's Use of the Purchased Assets Post-Closing. At times convenient and acceptable to the Company, and for a period of no longer than one hundred twenty (120) days weeks after the Closing, Spire shall be allowed to use the Purchased Assets for the purpose of training related to equipment projects entered into by Spire prior to the Closing. For the avoidance of doubt, the Purchased Assets shall be primarily used for Company Business at all times during this period. 17 SECTION 5.10. Refurbishment of Purchased Assets; Product Warranty(a) . (a) The Seller agrees that as promptly as possible but in no event later than one hundred twenty (120) days after the Closing, it shall refurbish the Purchased Assets by replacing certain necessary components and providing preventive maintenance. (b) The Purchased Assets will be free from defects in workmanship and materials for a period of twelve (12) months after the completion of the refurbishment described in clause (a) above (the "Warranty Period"). During the Warranty Period, in the event that any Purchased Asset, including, without limitation, any component or system in the Facility, is found to contain a defect in materials or workmanship, or otherwise fails to perform in the ordinary manner, the Seller shall, at its expense and in its sole and reasonable discretion, replace or repair such Purchased Asset. SECTION 5.11. Permits. The Seller shall use its commercially reasonable efforts to have all Permits re-issued in the name of the Purchaser as soon as practicable but in no event later than sixty (60) days after the Closing. SECTION 5.12. Non-Competition. Neither the Purchaser 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 restrictions, Spire shall have the right to continue to do the following on a non-exclusive basis: (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 the Purchaser and the Company pursuant to a long-term intellectual property license agreement on commercially reasonable terms and conditions. For the avoidance of doubt, the Purchaser shall have the right to sell PV Modules as a commodity item throughout the world. *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 18 SECTION 5.13. Further Action. Each of the Parties shall use all reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable Law, and to execute and deliver such documents and other papers, as may be required to carry out the provisions of this Agreement and the Asset Purchase Ancillary Agreements to which it is a party and consummate and make effective the transactions contemplated hereby and thereby. ARTICLE VI INDEMNIFICATION SECTION 6.01. Survival of Representations and Warranties. The representations and warranties of the Seller and the Purchaser contained in this Agreement and the Asset Purchase Ancillary Agreements shall survive the Closing until sixty (60) days after the expiration of the relevant statute of limitations for the liabilities in question; PROVIDED, HOWEVER, that the representations and warranties made pursuant to Sections 3.01, 3.02, 3.08, 4.01 and 4.02 shall survive indefinitely. Neither the period of survival nor the liability of a Party with respect to such Party's representations and warranties shall be reduced by any investigation made at any time by or on behalf of the other Party. If written notice of a claim has been given prior to the expiration of the applicable representations and warranties, then the relevant representations and warranties shall survive as to such claim, until such claim has been finally resolved. SECTION 6.02. Indemnification. (a) The Purchaser and its Affiliates, officers, directors, employees, agents, successors and assigns (each a "Purchaser Indemnified Party") shall be indemnified and held harmless by the Seller 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 them (including any 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 the Seller contained in this Agreement or any Asset Purchase Ancillary Agreement; (ii) the breach of any covenant or agreement by the Seller contained in this Agreement or any Asset Purchase Ancillary Agreement; (iii) any and all Losses suffered or incurred by the Purchaser by reason of or in connection with any claim or cause of action of any third party to the extent arising out of any action, inaction, event, condition, liability or obligation of the Seller occurring or existing prior to the Closing; and (iv) the Excluded Liabilities. 19 (b) The Seller and its Affiliates, officers, directors, employees, agents, successors and assigns (each a "Seller Indemnified Party") shall be indemnified and held harmless by the Purchaser for and against any and all Losses arising out of or resulting from: (i) the breach of any representation or warranty made by the Purchaser contained in this Agreement or any Asset Purchase Ancillary Agreement; and (ii) the breach of any covenant or agreement by the Purchaser contained in this Agreement or any Asset Purchase Ancillary Agreement. (c) However and notwithstanding clauses (a) and (b) above, an Indemnifying Party shall not be liable for any claim for indemnification pursuant to this Section 6.02, unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Party equals or exceeds Twenty-Five Thousand US Dollars (US$25,000.00), whereupon the Indemnified Party shall be entitled to indemnification for the full amount of such Lossess. SECTION 6.03. Tax Treatment. The Seller and the Purchaser agree that all payments made by either of them to or for the benefit of the other under this Article VII, under other indemnity provisions of this Agreement and for any misrepresentations or breaches of warranties or covenants shall be treated as adjustments to the Purchase Price for Tax purposes and that such treatment shall govern for purposes hereof except to the extent that the Laws of a particular jurisdiction provide otherwise, in which case such payments shall be made in an amount sufficient to indemnify the relevant Party on an after-Tax basis. ARTICLE VII TERMINATION SECTION 7.01. Termination. This Agreement may be terminated at any time: (a) by either the Seller or the Purchaser if the Closing shall not have occurred as of the date hereof; PROVIDED, HOWEVER, that the right to terminate this Agreement under this Section 7.01(a) shall not be available to any Party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date; (b) by the Seller if the Purchaser fails to pay the Purchase Price pursuant to Section 2.07(b); (c) by either the Purchaser or the Seller in the event that any Governmental Authority shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and nonappealable; (d) by either Party in the event that the other Party: (i) terminates the Operating Agreement or the Contribution Agreement; or (ii) defaults under, breaches, or fails to perform any of the material obligations, covenants, or agreements (such default or breach 20 hereinafter a "Material Breach") contained in the Operating Agreement or the Contribution Agreement, and such Material Breach is not remedied within thirty (30) days after notification thereof by the non-defaulting Party; PROVIDED, HOWEVER, that the right to terminate this Agreement under this Section 7.01(d) shall not be available to any Party whose failure to fulfill any obligation under the Operating 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 the Material Breach, as the case may be. (e) by the mutual written consent of the Seller and the Purchaser. SECTION 7.02. Effect of Termination. In the event of termination of this Agreement as provided in Section 7.01, this Agreement shall forthwith become void and there shall be no liability on the part of either Party except: (a) as set forth in Sections 5.02 and 8.01; and (b) that nothing herein shall relieve either Party from liability for any breach of this Agreement. ARTICLE VIII GENERAL PROVISIONS SECTION 8.01. 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, whether or not the Closing shall have occurred. SECTION 8.02. 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 specified by notice given in accordance with this Section 8.02): (a) if to the Seller: Spire Corporation One Patriots Park New Bedford, Massachusetts 01730 Facsimile: +1-781-275-7470 Attention: Rodger LaFavre, Chief Operating Officer (b) if to the Purchaser: Gloria Solar Co., Ltd. No. 498, Section 2, Bentian Road An-Nan Dist., Tainan 70955, Taiwan, Republic of China Facsimile: +866-6-38407333 Attention: George Hsu, Chief Operating Officer 21 SECTION 8.03. Publicity. So long as this Agreement is in effect, no Party 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 Party, except as such release or announcement may be required by Law or the rules or regulations of any securities exchange, in which case the Party required to make the release or announcement shall, to the extent practicable, allow the other Party reasonable time to comment on such release or announcement in advance of such issuance SECTION 8.04. 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 Law, 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 Parties. SECTION 8.05. Entire Agreement. The Primary Transaction Agreements and the Ancillary Agreements constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, between the Seller and the Purchaser with respect to the subject matter hereof and thereof. In the event of any inconsistency among the terms and conditions of the Primary Transactions Agreements related to the subject matter herein, the terms and conditions shall govern in the following order: (a) the Operating Agreement; (b) the Contribution Agreement; (c) this Agreement. In the event of any inconsistency among the terms and conditions of this Agreement and the Asset Purchase Ancillary Agreements related to the subject matter herein, the terms and conditions of this Agreement shall govern over the Asset Purchaser Ancillary Agreements. 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. SECTION 8.06. Assignability and Parties in Interest. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties 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 Party without the prior, written consent of the other Party, except as provided herein; PROVIDED, HOWEVER, that this Agreement or any of its rights and obligations hereunder may be assigned by any Party to one or more of its Affiliates without the prior written consent of the other Party. The rights and remedies of this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns and are not intended to create or confer any rights or obligations enforceable by any third party, except as otherwise provided by applicable Law. SECTION 8.07. 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 amendment, by both Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. 22 (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. SECTION 8.08. Specific Performance. The Seller agrees that the Purchaser would suffer irreparable damage in the event any provision of this Agreement was not performed by the Seller in accordance with the specific terms hereof and that the Purchaser shall be entitled to specific performance of such terms, in addition to any other remedy at law or in equity. SECTION 8.09. Nondisclosure of Terms of Agreement. Each Party 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 Party, except to the extent required by Law or Governmental Orders or unless served with compulsory process in any judicial proceeding, in which event, such Party agrees to give prompt notice to the other Party of the compulsory process. SECTION 8.10. 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. SECTION 8.11. Dispute Resolution. (a) 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 clause (b), hereinbelow. The Parties hereby exclude recourse to the courts, unless required for urgent interim measures of protection, such as the threat of irreparable harm. (b) 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 the Purchaser and the Seller each picking one arbitrator, and the two arbitrators picking a third arbitrator. (c) 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. SECTION 8.12. 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. [SIGNATURES APPEAR ON NEXT PAGE] [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 23 IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized. SPIRE CORPORATION By: /s/ Roger G. Little 7/31/07 --------------------------------------- Name: Roger G. Little Title: CEO GLORIA SOLAR CO., LTD. By: /s/ George Hsu 7/31/07 --------------------------------------- Name: George Hsu Title: COO EX-2.2 3 exhibit2-2_15419.txt CONTRIBUTION AGREEMENT EXHIBIT 2.2 ----------- Confidential treatment requested as to certain information contained in this Exhibit 2.2 and filed separately with the Securities and Exchange Commission. CONTRIBUTION AGREEMENT by and among SPIRE CORPORATION GLORIA SOLAR CO., LTD. and GLORIA SOLAR (DELAWARE) COMPANY, LTD. Dated as of July 31, 2007 TABLE OF CONTENTS CONTENTS SECTION 1.01. CERTAIN DEFINED TERMS....................................2 ARTICLE II ORGANIZATION AND CONTRIBUTIONS....................................10 SECTION 2.01. ORGANIZATION OF THE COMPANY.............................10 SECTION 2.02. CONTRIBUTION OF COMPANY BUSINESS TO THE COMPANY.........11 SECTION 2.03. ASSUMPTION AND EXCLUSION OF SPIRE LIABILITIES...........11 SECTION 2.04. GLORIA CASH CONTRIBUTION TO THE COMPANY.................11 SECTION 2.05. OWNERSHIP INTERESTS.....................................11 SECTION 2.06. CLOSING.................................................11 SECTION 2.07. CLOSING DELIVERIES BY SPIRE.............................12 SECTION 2.08. CLOSING DELIVERIES BY GLORIA............................12 SECTION 2.09. CLOSING DELIVERIES BY THE COMPANY.......................12 SECTION 2.10. POST-CLOSING ACTIONS AND DELIVERIES.....................12 ARTICLE III REPRESENTATIONS AND WARRANTIES OF SPIRE..........................13 SECTION 3.01. ORGANIZATION, AUTHORITY AND QUALIFICATION...............13 SECTION 3.02. NO CONFLICT.............................................14 SECTION 3.03. CONSENTS AND APPROVALS..................................14 SECTION 3.04. TITLE TO THE ASSETS.....................................14 SECTION 3.05. ABSENCE OF LITIGATION...................................14 SECTION 3.06. COMPLIANCE WITH LAWS; PERMITS...........................15 SECTION 3.07. CONTRACTS...............................................15 SECTION 3.08. TAXES...................................................15 SECTION 3.09. SUFFICIENCY OF SPIRE CONTRIBUTED ASSETS.................15 SECTION 3.10. EMPLOYEES; EMPLOYEE BENEFITS............................16 SECTION 3.11. SPIRE FINANCIALS........................................16 SECTION 3.12. INTELLECTUAL PROPERTY...................................16 SECTION 3.13. RECEIVABLES.............................................17 SECTION 3.14. FULL DISCLOSURE.........................................18 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF GLORIA AND GLORIA (DELAWARE)....18 SECTION 4.01. ORGANIZATION, AUTHORITY AND QUALIFICATION...............18 SECTION 4.02. NO CONFLICT.............................................19 SECTION 4.03. CONSENTS AND APPROVALS..................................19 SECTION 4.04. ABSENCE OF LITIGATION...................................19 SECTION 4.05. EXPORT REGULATIONS AND OTHER LAWS.).....................19 ARTICLE V ADDITIONAL AGREEMENTS..............................................20 SECTION 5.01. ACCESS TO INFORMATION...................................20 SECTION 5.02. CONFIDENTIALITY.........................................20 SECTION 5.03. THIRD PARTY CONSENTS....................................20 SECTION 5.04. NOTICE OF DEVELOPMENTS..................................21 SECTION 5.05. TAX COOPERATION AND EXCHANGE OF INFORMATION.............21 SECTION 5.06. CONVEYANCE TAXES........................................21 SECTION 5.07. SPIRE TRANSFERRED EMPLOYEES.............................21 SECTION 5.08. IT ASSETS LICENSE AGREEMENT.............................22 SECTION 5.09. JOINT VENTURE ANCILLARY AGREEMENTS......................22 SECTION 5.10. NON-COMPETITION.........................................22 SECTION 5.11. FURTHER ACTION..........................................23 ARTICLE VI INDEMNIFICATION...................................................23 SECTION 6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..............23 i SECTION 6.02. INDEMNIFICATION.........................................23 ARTICLE VII TERMINATION AND WAIVER...........................................24 SECTION 7.01. TERMINATION.............................................24 SECTION 7.02. EFFECT OF TERMINATION...................................25 ARTICLE VIII GENERAL PROVISIONS..............................................25 SECTION 8.01. EXPENSES................................................25 SECTION 8.02. NOTICES.................................................25 SECTION 8.03. PUBLICITY...............................................26 SECTION 8.04. SEVERABILITY............................................26 SECTION 8.05. ENTIRE AGREEMENT........................................26 SECTION 8.06. INTERPRETATION..........................................26 SECTION 8.07. ASSIGNABILITY AND PARTIES IN INTEREST...................26 SECTION 8.08. AMENDMENTS AND WAIVERS..................................27 SECTION 8.09. SPECIFIC PERFORMANCE....................................27 SECTION 8.10. NONDISCLOSURE OF TERMS OF AGREEMENT.....................27 SECTION 8.11. GOVERNING LAW...........................................27 SECTION 8.12. DISPUTE RESOLUTION......................................27 SECTION 8.13. COUNTERPARTS............................................28 EXHIBITS A Form of Employment Agreement B Form of Severance Agreement and Release C Quotation and Agreement for Services SCHEDULES 2.02(a) Spire Contracts 2.02(b) Excluded Assets SPIRE DISCLOSURE SCHEDULE ii CONTRIBUTION AGREEMENT CONTRIBUTION AGREEMENT, dated as of July 31, 2007, by and among Spire Corporation, a Massachusetts corporation ("Spire"); Gloria Solar Co., Ltd., a corporation organized and existing under the laws of Taiwan, Republic of China ("Gloria"); Gloria Solar (Delaware) Company, Ltd., a Delaware corporation wholly owned by Gloria ("Gloria (Delaware)"); and ***, an individual residing in the Commonwealth of Massachusetts (joining this Agreement solely for the purpose of Section 5.07(b) (each of Spire, Gloria and Gloria (Delaware) being referred to herein as a "Party" and, collectively, the "Parties"). W I T N E S S E T H: WHEREAS, Spire is a leading supplier in the design and manufacture of specialized equipment for producing photovoltaic ("PV") solar modules. Spire also manufactures, designs, and installs high-quality PV systems and components; WHEREAS, Gloria manufactures and sells PV solar modules and intends to enter the United States market; WHEREAS, Spire and Gloria desire to organize a limited liability company (the "Company") under the laws of the State of Delaware for the purpose of conducting a business of design, marketing, sale and installation of PV Systems using PV Modules manufactured by Gloria and the Company and intend that the Company be a leading PV System provider to commercial, government and utility customers in the United States; WHEREAS, Spire desires to contribute to the Company Business, including all right, title and interest of Spire in and to the property and assets (both tangible and intangible) of the Company Business, and, in connection therewith, the Company shall assume certain liabilities of Spire relating thereto, all upon the terms and subject to the conditions set forth herein; WHEREAS, Gloria Parties (as defined below) desire to contribute to the Company the Gloria Cash Contribution upon the terms and subject to the conditions set forth herein; WHEREAS, concurrently with the execution and delivery of this Agreement, Spire and Gloria are entering into an Asset Purchase Agreement, dated as of the date hereof (the "Asset Purchase Agreement"), pursuant to which Gloria will purchase from Spire certain PV Module manufacturing assets; NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set forth and intending to be legally bound hereby, the Parties hereby agree as follows: *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. ARTICLE I DEFINITIONS Section 1.01. Certain Defined Terms. For purposes of this Agreement: "Action" means any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority. "Affiliate" means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person. For purposes of this Agreement, the Company, Spire and the Gloria Parties shall not be deemed to be Affiliates of each other. "Agreement" or "this Agreement" means this Contribution Agreement, dated as of July 31, 2007, by and among Spire, Gloria and Gloria (Delaware) (including the Exhibits and Schedules hereto) and all amendments hereto made in accordance with the provisions hereof. "Ancillary Agreements" means the Joint Venture Ancillary Agreements and the Asset Purchase Ancillary Agreements. "Asset Purchase Ancillary Agreements" means the Asset Purchase Ancillary Agreements, as defined in the Asset Purchase Agreement. "Assignment and Assumption Agreement " means the Assignment and Assumption Agreement by and between Spire and the Company as of the date hereof, pursuant to which Spire shall sell, convey, transfer, assign and deliver to the Company all of Spire's right, title and interest in and to the Spire Contracts. "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 the Republic of China or the United States. "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 Gloria or its Affiliates for purposes of manufacturing PV Modules pursuant to the Subcontracting Agreement. For the avoidance of doubt, the 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). "Contract" means, as to any Person, any contract, subcontract, lease, mortgage, indenture, understanding, arrangement, instrument, note, bond, option, warranty, purchase order, license, sublicense, insurance policy, benefit plan, permit, franchise or other instrument, *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 2 obligation or commitment or undertaking of any nature as to which the Person is a party or by which its assets, properties or business is bound. "Control" (including the terms "controlled by" and "under common control with"), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by contract, credit arrangement or otherwise, including the ownership, directly or indirectly, of securities or ownership interests having the power to elect a majority of the board of directors or similar body governing the affairs of such person. "Conveyance Taxes" means all sales, use, value added, transfer, stamp, stock transfer, real property transfer, or gains and similar Taxes. "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 the Republic of China. "Employee Benefit Plan" means, with respect to any Party hereto, each plan, fund, program, agreement, arrangement or scheme, including each plan, fund, program, agreement, arrangement or scheme, in each case, that is at any time sponsored or maintained or required to be sponsored or maintained by such Party or such Party's Affiliates or to which such Party or such Party's Affiliates made or has made, or has or has had an obligation to make, contributions providing for employee benefits or for the remuneration, direct or indirect, of the current and former employees, directors, managers, officers, consultants, independent contractors, contingent workers or leased employees of such Party or such Party's Affiliates or the dependents of any of them (whether written or oral), including each deferred compensation, bonus, incentive compensation, pension, retirement, stock purchase, stock option and other equity compensation, bonus, incentive compensation, pension, retirement, stock purchase, stock option and other equity compensation plan or "welfare" plan (within the meaning of Section 3(1) of ERISA, determined without regard to whether such plan is subject to ERISA), each "pension" plan (within the meaning of Section 3(2) of ERISA, determined without regard to whether such plan is subject to ERISA), each severance plan or agreement, health, vacation, supplemental unemployment benefit, hospitalization insurance, medical, dental, legal plan and each other employee benefit plan, fund, program, agreement, arrangement or scheme. "Employment Liabilities" means all Liabilities arising under, resulting from or relating to (whether incurred before, on or after the Closing): (a) the Spire Employee Benefit Plan; or (b) Spire's or its Affiliates' employment of or termination of or transfer of its current or former employees, directors, managers, officers, consultants, independent contractors, contingent workers and leased employees (including the Spire Transferred Personnel), including in either case all accrued or unpaid salaries, wages, bonuses (including all signing bonuses or other payments in connection with the transactions contemplated by this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements), commissions, unreimbursed expenses, paid-time-off pay, vacation pay, severance pay, compensation for non-competition, confidentiality, non-solicitation, or any other covenant, royalties or rewards related to any 3 Intellectual Property, and other compensation in relation to any services performed by them or amounts required to be reimbursed to them. "Encumbrance" means any security interest, pledge, hypothecation, mortgage, lien (including environmental and tax liens), violation, charge, lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant, condition or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership. "Environmental Laws" means all Laws, now or hereafter in effect and as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, health, safety, natural resources or Hazardous Materials, including CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. ss.ss. 6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss.ss. 6901 et seq.; the Clean Water Act, 33 U.S.C. ss.ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss.ss. 2601 et seq.; the Clean Air Act, 42 U.S.C. ss.ss. 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. ss.ss. 300f et seq.; the Atomic Energy Act, 42 U.S.C. ss.ss. 2011 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss.ss. 136 et seq.; and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. ss.ss. 301 et seq. "ERISA" means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder. "Excluded Taxes" means: (a) all Income Taxes owed by Spire or any of its Affiliates for any period; (b) all Taxes relating to the Company Business or the Spire Contributed Assets for any Pre-Closing Period; (c) all Taxes of Spire or any other Person by reason of being a member of a consolidated, combined, unitary or affiliated group that includes Spire or any of its present or past Affiliates, by reason of a tax sharing, tax indemnity of similar agreement entered into by the Seller or any of its present or past Affiliates (other than this Agreement) or by reason of transferee or successor liability arising in respect of a transaction undertaken by Spire or any of its present or past Affiliates; and (d) Taxes imposed on any Gloria Party as a result of any breach by Spire of any representation or warranty or covenant relating to Taxes. For purposes of this Agreement, in the case of any Straddle Period: (i) Income Taxes relating to the Company Business or the Spire Contributed Assets for the Pre-Closing Period shall be computed as if such taxable period ended as of the closing of business on the date of the Closing; and (ii) Property Taxes related to the Company Business or the Spire Contributed Assets for any Pre-Closing Period shall be allocated by apportioning a pro rata portion of such Property Taxes to each day in the relevant Straddle Period. "Gloria Parties" or "Gloria Party" means Gloria and Gloria (Delaware). "Gloria-Company Trademark License Agreement" means that certain trademark license agreement by and between Gloria and the Company as of the date hereof. "Governmental Authority" means any foreign, federal, national, supranational, state, provincial, municipal, local, or similar government, governmental, regulatory or 4 administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body. "Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority. "Hazardous Material" means: (a) petroleum and petroleum products, radioactive materials, asbestos-containing materials, urea formaldehyde foam insulation, transformers or other equipment that contain polychlorinated biphenyls and radon gas; (b) any other chemicals, materials or substances defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants", "contaminants" or "pollutants", or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance that is regulated by any Environmental Law. "Hazardous Material Activity" means the transportation, transfer, recycling, storage, use, treatment, manufacture, removal, remediation, release, exposure of others to, sale, or distribution of any Hazardous Material or any product containing a Hazardous Material. "Income Taxes" means Taxes imposed on or measured by reference to gross or net income or receipts, and franchise, net worth, capital or other doing business Taxes. "Indemnified Party" means a Spire Indemnified Party or a Gloria Indemnified Party, as the case may be. "Indemnifying Party" means Spire pursuant to Section 6.02(a) or Gloria pursuant to Section 6.02(b), as the case may be. "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 mark 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. "IT Assets" means the InSpire Data Acquisition System. "Joint Venture Ancillary Agreements" means the the Assignment and Assumption Agreement, the Technology License Agreement, the Gloria-Company Trademark License Agreement, the Spire-Company Trademark License Agreement, and the Transitional Services Agreement. "Knowledge of Spire," "Spire's Knowledge" or similar terms used in this Agreement mean the actual (but not constructive or imputed) knowledge of the employees and 5 officers of Spire and who would reasonably be expected to have knowledge of the relevant subject matter. "Law" means any foreign, federal, national, supranational, state, provincial, municipal, local or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law). "Liabilities" means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable, including those arising under any Law (including any Environmental Law), Action or Governmental Order and those arising under any contract, agreement, arrangement, commitment or undertaking. "Mask Works" means mask works, mask work registrations and applications therefore, and any equivalent or similar rights in semiconductor masks, layouts, architectures or topology. "Material Adverse Effect" means any change, event, violation, inaccuracy, circumstance, or effect (any such item, an "Effect") that, individually or when taken together with all other Effects that have occurred prior to the date of determination of the occurrence of the Material Adverse Effect, has had or would be reasonably expected to have a material adverse effect on: (a) the business, operations, assets (including intangible assets), liabilities, financial condition or results of operations of Spire or Gloria (as the case may be), taken as a whole; or (b) Spire's or Gloria's ability (as the case may be) to timely perform its obligations under this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements, except, in any case under clause (a) or (b), for any such Effects arising primarily and directly out of any of the following: (i) the performance by Spire or Gloria (as the case may be) of its obligations under this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements, or the consummation by Spire or Gloria (as the case may be) of the transactions contemplated hereby or thereby; (ii) the announcement of this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements and the transactions contemplated hereby and thereby, as well as the pendency of the transactions contemplated hereby and thereby; (iii) any changes in general economic, regulatory or political conditions; or (iv) any changes affecting the PV System or PV Module business generally. "Operating Agreement" means the Operating Agreement by and among Spire, Gloria (Delaware) and the Company as of the date hereof, which governs the rights and obligations of Spire, Gloria (Delaware) and the Company in respect of the management and operation of the Company. "Owned Intellectual Property" means all Intellectual Property owned by Spire and used, through the date of Closing, in connection with the Company Business. "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. 6 "Permitted Encumbrances" means: (a) liens for Taxes and other governmental charges or levies not yet due and payable; (b) Encumbrances imposed by Law, such as materialmen's, mechanics', carriers', workmen's and repairmen's liens and other similar liens arising in the ordinary course of business and not due to a failure to pay the required amounts within applicable payment periods; (c) pledges and deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statutory obligations; and (d) in the case of real property, zoning, building, or other restrictions, variances, covenants, rights of way, encumbrances, easements, minor survey exceptions, and other customary encumbrances on title to real property, that, in each case, do not materially adversely affect the value of such property or the use of such property for its present purposes. "Person" means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity or group of related entities. "Pre-Closing Period" means any taxable period (or portion thereof) ending on or prior to the date of the Closing. "Primary Transaction Agreements" means this Agreement, the Operating Agreement, and the Asset Purchase Agreement. "Property Taxes" means real and personal AD VALOREM property Taxes and any other Taxes imposed on a periodic basis and measured by the items' deemed value. "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) watts and dimensions with a maximum limit of two hundred fifty centimeters (250 cm) by one hundred fifty centimeters (150 cm). "PV System" means an electricity generating system comprising one or more interconnected PV Modules and additional balance of system 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). "Receivables" means any and all accounts receivable, notes and other amounts receivable from third parties, including customers and employees, arising from the conduct of the Company Business before the Closing, whether or not in the ordinary course, together with any unpaid financing charges accrued thereon. "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. 7 "Spire Disclosure Schedule" means the Disclosure Schedule of Spire attached hereto, dated as of the date hereof, and forming a part of this Agreement. "Spire Employee Benefit Plan" means each Employee Benefit Plan of Spire with respect to current and former employees, directors, managers, officers, consultants, independent contractors, contingent workers and leased employees including the Spire Transferred Employees. "Spire Financials" means (i) the balance sheets of the Company Business as of December 31, 2005 and 2006, and the income statements and the cash flow statements of the Company Business for the years ended December 31, 2005 and 2006, and (ii) the balance sheet of the Company Business as of June 30, 2007, and the income statement and the cash flow statement of the Company Business for the six-month period ended June 30, 2007. "Spire PV Technology" means the Owned Intellectual Property and the IT Assets necessary for the use of or otherwise used in connection with the design, marketing, sales, installation and coordination of PV Systems to commercial, government, or utility customers using PV Modules, but excluding items germane to PV Modules or the manufacturing of PV Modules. "Spire-Company Trademark License Agreement" means the trademark license agreement by and between Spire and the Company as of the date hereof. "Spire-Gloria Trademark License Agreement" means the trademark license agreement by and between Spire and Gloria as of the date hereof. "Straddle Period" means any taxable period beginning on or prior to and ending after the date of Closing. "Subcontracting Agreement" means the Subcontracting Agreement by and between Gloria and the Company as of the date hereof, pursuant to which Gloria shall subcontract the Company to operate the assets purchased by Gloria under the Asset Purchase Agreement. "Taxes" means any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any government or taxing authority, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers' compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, AD VALOREM, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs' duties, tariffs, and similar charges. "Tax Returns" means any return, declaration, report, election, claim for refund or information return or other statement or form filed or required to be filed with any Tax authority relating to Taxes, including any schedule or attachment thereto or any amendment thereof. 8 "Technology License Agreement" means the Technology License Agreement by and between the Company as licensor and Spire as the licensee as of the date hereof. "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. "Trademark License Agreements" means the Spire-Company Trademark License Agreement, the Gloria-Company Trademark License Agreement, and the Spire-Gloria Trademark License Agreement. "Transitional Services Agreement" means the Transitional Services Agreement by and between Spire and the Company as of the date hereof, pursuant to which Spire shall provide certain transitional services to the Company with respect the Company Business. "US GAAP" means United States generally accepted accounting principles. "***. Section 1.02. Definitions. The following terms have the meanings set forth in the Sections set forth below: Definition Location Asset Purchase Agreement Recitals Assumed Liabilities 2.03(a) Closing 2.06 Company Recitals Employment Agreement 5.07 Excluded Assets 2.02(b) Excluded Liabilities 2.03(b) Gloria Preamble Gloria Cash Contribution 2.04 Gloria Indemnified Party 6.02(a) Gloria (Delaware) Preamble IT Assets License Agreement 5.08 Loss 6.02(a) Offer Letter 5.07 Party or Parties Preamble Permits 3.06(b) PV Recitals Severance Agreement and Release 5.07 Spire Preamble *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 9 Spire Contracts 2.02(a) Spire Contributed Assets 2.02(a) Spire Indemnified Party 6.02(a) Spire Transferred Employees 3.10 Section 1.03. Interpretation and Rules of Construction. In this Agreement, except to the extent otherwise provided or that the context otherwise requires: (a) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or a Schedule or Exhibit to, this Agreement unless otherwise indicated; (b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; (c) whenever the words "include," "includes" or "including" are used in this Agreement, they are deemed to be followed by the words "without limitation"; (d) the words "hereof," "herein" and "hereunder" and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein; (f) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms; (g) any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law or statute as from time to time amended, modified or supplemented, including by succession of comparable successor Laws; (h) references to a Person are also to its successors and permitted assigns; and (i) the use of "or" is not intended to be exclusive unless expressly indicated otherwise. ARTICLE II ORGANIZATION AND CONTRIBUTIONS Section 2.01. Organization of the Company. On the Closing Date, the Parties shall take or cause to be taken all necessary action to incorporate the Company with the name "Gloria Spire Solar, LLC" under the Delaware Limited Liability Company Act. The Parties 10 agree that the Company shall adopt a Certificate of Formation substantially in the form attached as Exhibit A to the Operating Agreement. Section 2.0. Contribution of Company Business to the Company. (a) Effective at the Closing, Spire hereby contributes and assigns all right, title and interest in and to the assets and properties (both tangible and intangible) owned by Spire primarily relating to the Company Business to the Company (the "Spire Contributed Assets"), including, without limitation: (i) each Contract listed on Schedule 2.02(a) (the "Spire Contracts"); (ii) the Spire PV Technology; and (iii) all Receivables. (b) For the avoidance of doubt, the Spire Contributed Assets shall exclude the assets set forth on Schedule 2.02(b) (collectively, the "Excluded Assets"). Section 2.03. Assumption and Exclusion of Spire Liabilities. (a) The Company shall only be responsible for (i) the obligation to provide services to third parties under the Spire Contracts and (ii) the Liabilities arising from or in connection with the Spire Contributed Assets, to and only to the extent such Liabilities are due to be performed after the Closing (the "Assumed Liabilities"). (b) Spire shall retain, and shall be responsible for paying, performing and discharging when due, and the Company shall not assume or have any responsibility for: (i) all Liabilities of Spire (other than the Assumed Liabilities), including, without limitation, any and all Liabilities arising from or in connection with the Excluded Assets; (ii) the Excluded Taxes; (iii) all Employment Liabilities attributable to periods prior to their hire by the Company, or as a result of the termination of their employment with Spire; and (iv) all Liabilities relating to or arising out of: (A) the presence or release of any Hazardous Materials in, on, from or under any property formerly owned, leased, used or occupied by the Company Business, or any third party location to which Spire sent, or caused to be sent, Hazardous Materials prior to the Closing; or (B) any Hazardous Material Activity by the Company Business prior to the Closing (collectively, the "Excluded Liabilities"). Spire shall pay and discharge the Excluded Liabilities as and when the same become due and payable. Section 2.04. Gloria Cash Contribution to the Company. Within thirty (30) days of the Closing Date, Gloria (Delaware) shall, and Gloria shall cause Gloria (Delaware) to, contribute that amount set forth at Schedule 2.04 to the Company (the "Gloria Cash Contribution"). Section 2.05. Ownership Interests. On the terms and subject to the conditions of this Agreement, at the Closing, Gloria and Spire shall directly or indirectly own fifty-five percent (55%) and forty-five percent (45%), respectively, of the equity interest in the Company. Section 2.06. Closing. On the terms and subject to the conditions of this Agreement, the delivery of the Spire Contributed Assets and the Cash Contribution and the execution of the Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements shall take place at a closing (the "Closing") to be held at the office of Spire, One Patriots Park, Bedford, Massachusetts as of the date hereof. 11 Section 2.07. Closing Deliveries by Spire. At the Closing, Spire shall deliver or cause to be delivered to the Company or Gloria, as applicable: (a) executed counterparts of the Operating Agreement each Joint Venture Ancillary Agreement to which Spire is a party; (b) a certificate of the Secretary or an Assistant Secretary of Spire certifying the names and signatures of the officers of Spire authorized to sign this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements and the other documents to be delivered hereunder and thereunder; (c) a list of all projects relating to the Company Business that Spire has completed for its customers, which shall set forth a brief description of each such project and the name of the corresponding customer, and a list of all business opportunities in connection with the Company Business that Spire has sought for from its existing or potential customers prior to the Closing, which, in each case, the Company shall have the right to use for marketing purposes; (d) Spire's PV System business plan setting forth a list of all on-going projects of Spire relating to the Company Business. Section 2.08. Closing Deliveries by Gloria. At the Closing, Gloria shall deliver or cause to be delivered to the Company or Spire, as applicable: (a) executed counterparts of each Joint Venture Ancillary Agreement to which a Gloria Party is a party; and (b) a certificate of the Secretary or an Assistant Secretary of each Gloria Party certifying the names and signatures of the officers of each Gloria Party authorized to sign this Agreement and the Joint Venture Ancillary Agreements and the other documents to be delivered hereunder and thereunder. Section 2.09. Closing Deliveries by the Company. At the Closing, the Parties shall cause the Company to deliver or cause to be delivered to Spire or Gloria, as applicable: (a) executed counterparts of the Operating Agreement and each Joint Venture Ancillary Agreement to which it is a party; (b) such other instruments or documents that are reasonably necessary to effect the transactions contemplated by this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements. Section 2.10. Post-Closing Actions and Deliveries. (a) Within fourteen (14) days after the Closing, (i) Spire shall deliver to Gloria a true and complete copy, certified by the Secretary or an Assistant Secretary of Spire, of the resolutions duly and validly adopted by the Board of Directors of Spire evidencing its authorization of the execution and delivery of this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby; (ii) Gloria 12 shall deliver to Spire a true and complete copy, certified by the Chief Executive Officer of Gloria, of the resolutions duly and validly adopted by the Board of Directors of Gloria evidencing its authorization of the execution and delivery of this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby; and (iii) Spire and Gloria shall cause the Company to deliver to Gloria a written notice in respect of the designation of a bank account for purposes of receiving the Gloria Cash Contribution (the "Bank Account Designation Notice"). (b) Within thirty (30) days after the Closing: (i) Gloria shall deliver to the Company the Gloria Cash Contribution by wire transfer in immediately available funds to a bank account designated in the Bank Account Designation Notice, and the Company shall deliver to Gloria the receipt for the Gloria Cash Contribution on the date on which the Gloria Cash Contribution is delivered; (ii) Spire shall expend commercially reasonable efforts to cause Stonewater Control Systems, Inc., or any comparable provider, to deliver to the Company executed counterparts of the IT Assets License Agreement pursuant to the provisions of Section 5.08; and (iii) Spire shall expend commercially reasonable efforts, and Spire and Gloria shall cause the Company to expend commercially reasonable efforts, to deliver executed counterparts of: (A) the Employment Agreement; (B) the Severance Agreement; and (C) the Offer Letter, in each case duly executed and/or countersigned by ***. ARTICLE III REPRESENTATIONS AND WARRANTIES OF SPIRE Except as disclosed in the Spire Disclosure Schedule, Spire hereby represents and warrants the hereinbelow items to each of Gloria and Gloria (Delaware), as of the date hereof and as of the Closing. Notwithstanding the foregoing, Spire shall not be liable for breach of the representations and warranties contained herein unless the accrued damage to Gloria and Gloria (Delaware) exceeds Five Thousand U.S. Dollars (US$5,000.00) resulting from any single claim or multiple claims arising out of the same facts, events or circumstances, computed cumulatively. Section 3.01. Organization, Authority and Qualification. Spire is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization. Spire has all necessary corporate power and authority to enter into this Agreement and the Joint Venture Ancillary Agreements to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Spire 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 reasonably be expected to have a Material Adverse Effect. The execution and delivery by Spire of this Agreement and the Joint Venture Ancillary Agreements to which it is a party, the performance by Spire of its obligations hereunder and thereunder and the consummation by Spire of the transactions contemplated hereby and thereby have been duly *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exhange Commission. 13 authorized by all requisite action on the part of Spire, and no other corporate proceedings on the part of Spire is required in connection therewith. This Agreement has been, and upon its execution, each of the Joint Venture Ancillary Agreements to which Spire is a party will be, duly executed and validly delivered by Spire, and (assuming, if applicable, due authorization, execution and delivery by each of the other parties hereto and thereto) this Agreement constitutes and, upon its execution, each of the Joint Venture Ancillary Agreements to which Spire is a party shall constitute, a legal, valid and binding obligation of Spire, enforceable against Spire in accordance with its terms. Section 3.02. No Conflict. The execution, delivery and performance by Spire of this Agreement and the Joint Venture Ancillary Agreements to which it is a party do not and will not: (a) violate or conflict with any provision of its certificate of incorporation, Memorandum and Articles of Association, Articles of Incorporation, by-laws or similar organizational documents; (b) conflict with or violate in any material respect any Law or Governmental Order applicable to Spire or any of its respective assets, properties or business; or (c) conflict in any material respect with, result in any material breach of, constitute a material default (or event which with the giving of notice or a lapse of time, or both, would become a material default) under, or result in the creation of any Encumbrance (other than a Permitted Encumbrance) on, or give rise to any loss of material rights under, or otherwise materially and adversely affect, the Spire Contributed Assets (or any portion thereof) pursuant to any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which it is a party or pursuant to which any of the Spire Contributed Assets is bound or affected. Spire has no basis to believe, in the exercise of reasonable discretion and foresight, that a Material Adverse Effect is likely to arise from the execution and consummation of this Agreement and the transactions hereby contemplated. Section 3.03. Consents and Approvals. The execution, delivery and performance by Spire of this Agreement and each Joint Venture Ancillary Agreement to which it is a 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 or other third Person, except as set forth on Section 3.03 of the Spire Disclosure Schedule and except where failure to obtain such consent, approval, authorization, order or action, or to make such filing or notification, would not, individually or in the aggregate, reasonably be expected to prevent or materially delay Spire from performing any of its material obligations under this Agreement and each Joint Venture Ancillary Agreement to which it is a party. Section 3.04. Title to the Assets. Spire is the true and lawful owner of, and holds good and marketable title to, all of the Spire Contributed Assets, free and clear of any and all Encumbrances other than Permitted Encumbrances. Upon the contribution of the Spire Contributed Assets to the Company pursuant to Section 2.02, title to all of the Spire Contributed Assets shall have been legally and validly transferred to the Company under applicable Law, and the Company will be the true and lawful owner of, and will receive good and marketable title to, the Spire Contributed Assets, free and clear of any Encumbrances other than Permitted Encumbrances. Section 3.05. Absence of Litigation. There is no Action pending or, to the knowledge of Spire, threatened against Spire: (a) that seeks to restrain or enjoin or otherwise 14 challenge the legality, validity or enforceability of this Agreement, the Operating Agreement, or any Joint Venture Ancillary Agreement; or (b) that relates to the Company Business or the Spire Contributed Assets (taken as a whole). Section 3.06. Compliance with Laws; Permits. (a) Spire is not in conflict in any material respect with, in material default under, or in material violation of, any Laws or Governmental Orders applicable to the Company Business or the Spire Contributed Assets (or any portion thereof), or by which either Spire believes it is reasonably likely to be bound or affected. There is no material judgment, injunction, order or decree that is binding upon Spire which has, or would reasonably be expected to have, the effect of prohibiting or materially impairing the conduct of the Company Business as currently conducted or as currently contemplated to be conducted by the Company following the Closing. (b) Spire currently holds all material permits, licenses, authorizations, certificates, exemptions, registrations and approvals of Governmental Authorities (collectively, "Permits") necessary or proper for the current operation of the Company Business and the current use of the Spire Contributed Assets, such Permits are in full force and effect, and no suspension, cancellation or non-renewal of any such Permit is pending or, to the knowledge of Spire, threatened. Section 3.07. Contracts. Each Spire Contract is valid and in full force and effect and Spire is not in material breach of, or material default under, any such Spire Contract, and, to the Knowledge of Spire, no event has occurred that, with notice or lapse of time (or both), would constitute such a material breach or material default or permit termination, modification or acceleration under any such Spire Contract. Spire has not received any written notice of material breach, or material default under, or termination of, any Spire Contract. Section 3.08. Taxes. Except to the extent the failure of this representation to be true and correct would not materially adversely affect the Company Business or the Spire Contributed Assets: (a) Spire has filed all material Tax Returns required to be filed by it and has paid, or has adequately reserved for the payment of, all Taxes required to be paid (whether or not shown on any Tax Returns); (b) no material deficiencies for any Taxes have been asserted or assessed, or, to the knowledge of Spire, proposed, against Spire that are not subject to adequate reserves; and (c) no audit or other examination of any Tax Return of Spire is presently in progress, nor has Spire been notified of any request for such an audit or other examination. There are no Tax liens on any of the Spire Contributed Assets. Section 3.09. Sufficiency of Spire Contributed Assets. The Spire Contributed Assets and the IT Assets, together with the Spire Transferred Employees and the benefits to be provided by Spire to the Company pursuant to the Transitional Services Agreement, constitute (a) all of the rights, Permits, properties and assets (including contracts and other intangible rights and assets, inventory, personal and tangible property and Intellectual Property) and (b) all of the employees, in the case of both clause (a) and (b), as are necessary for the Company Business to be conducted immediately following the Closing on a stand-alone basis but otherwise in the same manner in all material respects as conducted by Spire before the date hereof in the ordinary course consistent with past practice. 15 Section 3.10. Employees; Employee Benefits. Section 3.11(a)(1) of the Spire Disclosure Schedule includes a list of all employees, managers, officers and temporary workers of Spire who are related to the Company Business as of the date of such list (the "Spire Transferred Employees"). Opposite the name of each individual on Section 3.11(a)(1) of the Spire Disclosure Schedule is the position held by such individual, their date of hire by Spire, their salary level and their leave status, if any. Section 3.11(a)(2) of the Spire Disclosure Schedule contains: (a) all employment agreements of Spire with Spire Transferred Employees; and (b) all material severance programs and policies of Spire with respect to the Spire Transferred Employees. To the Knowledge of Spire, no Spire Transferred Employee is in material breach of such employment agreement. There is no other employment agreement between Spire and any Spire Transferred Employee. Section 3.11. Spire Financials. Section 3.12 of the Spire Disclosure Schedule sets forth a true and correct copy of the Spire Financials. The Spire Financials were prepared in accordance with US GAAP and fairly present in all material respects the direct revenues and direct expenses of the Company Business for the periods indicated therein. Since December 31, 2006, the Company Business has been conducted in the ordinary course and consistent with past practice in all material respects. Since December 31, 2006, there have no Liabilities arising out of or in connection with the Spire Contributed Assets, except for Liabilities that are not material to the Spire Contributed Assets and the Liabilities provided under Section 2.04. Section 3.12. Intellectual Property. (a) Section 3.13(a) of the Spire Disclosure Schedule sets forth a true and complete list of all registered Owned Intellectual Property necessary for the use of Spire PV Technology or otherwise used in the Spire PV Technology. (b) Spire is the lawful owner of the entire right, title and interest in and to the Owned Intellectual Property, and has a valid license to use the IT Assets. Spire has sufficient rights to use all such Owned Intellectual Property and the IT Assets in connection with the Company Business without limitation, all of which rights shall survive unchanged after the consummation of the transactions contemplated by this Agreement. The Spire PV Technology constitutes all of the Intellectual Property used or held for use in the operation of the Company Business and there are no other items of Intellectual Property that are material to or necessary for the operation of the Spire PV Technology. The Spire PV Technology: (i) has not been adjudged invalid or unenforceable in whole or in part, and is valid, subsisting and enforceable; and (ii) is currently in compliance with any and all formal legal requirements necessary to maintain the validity and enforceability thereof. There is no Action or claim pending, asserted or threatened, contesting or challenging the ownership, validity, registerability or enforceability of, or Spire's right to use any Spire PV Technology. (c) The operation of the Spire PV Technology and the use thereof do not infringe, misappropriate or otherwise violate or conflict with the Intellectual Property of any third party, and no Action alleging any of the foregoing is pending, and no claim has been threatened or asserted against Spire alleging any of the foregoing. No Person is engaging in any activity that infringes, misappropriates or otherwise violates or conflicts with the Spire PV Technology. 16 (d) No Spire PV Technology is subject to any outstanding decree, order, injunction, judgment, agreement or ruling adversely affecting the use of such Intellectual Property or that would impair the validity or enforceability of such Intellectual Property. (e) Spire has taken all reasonable measures to maintain the confidentiality and value of all confidential information used in connection with the Company Business and Spire PV Technology. No Trade Secrets have been disclosed by Spire to any Person except that the Trade Secrets have been disclosed pursuant to a valid and appropriate non-disclosure agreement and/or license agreement and no law or obligation of confidentiality has been breached by such disclosure. (f) The IT Assets are adequate for, and operate and perform in all material respects in accordance with their documentation and functional specifications and otherwise as required in connection with, the Company Business. The IT Assets have not materially malfunctioned or failed within the past three (3) years and do not contain any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants or effects that significantly disrupt or adversely affect the functionality of any IT Assets or other software or systems, except as disclosed in Section 3.13(f) of the Spire Disclosure Schedule. Spire has implemented reasonable backup, security and disaster recovery technology consistent with industry practices, and no Person has gained unauthorized access to any IT Assets. (g) The consummation of the transactions contemplated by this Agreement will not result in: (i) the grant of any license under or creation of any Encumbrance on any Owned Intellectual Property used in connection with the Company Business or the IT Assets or any Intellectual Property that is owned by or licensed to Gloria prior to the Closing; or (ii) Gloria being: (A) bound by, or subject to, any non-compete obligation, covenant not to sue, or other restriction on the operation or scope of its business; or (B) obligated to pay any royalties, honoraria, fees or other payments to any Person in excess of those payable by Spire prior to the Closing. (h) Neither Spire nor any of its Affiliates has granted or agreed to grant any license of or right to use, or authorized the retention of any rights to use any Spire PV Technology to any third party. Neither Spire nor any of its Affiliates has entered into any agreement granting to any third party the right to bring infringement actions with respect to, or otherwise to enforce rights with respect to, any of the Spire PV Technology. No Governmental Authority funding, facilities of a university, college or research center or funding from third parties was used in the development of any of the Spire PV Technology, as a result of which any such Governmental Authority or institution, research center or third party would have any material claim that would constitute a material Encumbrance on the Spire PV Technology. (i) Spire owns the trademarks set forth in Section 3.13(i) of the Spire Disclosure Schedule and has the right to convey a license to the trademarks to the Company, as set forth in the Spire-Company Trademark License Agreement. Section 3.13. Receivables. Section 3.14 of the Disclosure Schedule contains an aged list of the Receivables. All Receivables arose from sale of inventory and the provision of services to Persons not affiliated with Spire and in the ordinary course of business consistent 17 with past practice and constitute or will constitute, as the case may be, only valid, undisputed (to the Knowledge of Spire) claims of Spire not subject (to the Knowledge of Spire) to valid claims of setoff or other defenses or counterclaims other than normal cash discounts accrued in the ordinary course of business consistent with past practice. All Receivables are or will be good and have been collected or are or will be collectible, without resort to litigation or extraordinary collection activity, within one hundred twenty (120) days after the Closing. Section 3.14. Full Disclosure. Spire is not aware of any facts pertaining to the Company Business or the Spire Contributed Assets which are reasonably probable to have a Material Adverse Effect and which have not been disclosed in this Agreement, the Spire Disclosure Schedule or otherwise disclosed to Gloria by Spire in writing. No representation or warranty of Spire in this Agreement, nor any statement or certificate furnished or to be furnished to Gloria pursuant to this Agreement, or in connection with the transactions contemplated by this Agreement, contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF GLORIA AND GLORIA (DELAWARE) Each of Gloria and Gloria (Delaware) hereby represents and warrants the hereinbelow items to Spire, as of the date hereof and as of the Closing. Notwithstanding the foregoing, Gloria and Gloria (Delaware) shall not be liable for breach of the representations and warranties contained herein unless the accrued damage to Spire exceeds Five Thousand U.S. Dollars (US$5,000.00) resulting from any single claim or multiple claims arising out of the same facts, events or circumstances, computed cumulatively. Section 4.01. Organization, Authority and Qualification. Each of Gloria and Gloria (Delaware) is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization. Each of Gloria and Gloria (Delaware) has all necessary corporate power and authority to enter into this Agreement and the Joint Venture Ancillary Agreements to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Each of Gloria and Gloria (Delaware) 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 reasonably be expected to have a Material Adverse Effect. The execution and delivery by each of Gloria and Gloria (Delaware) of this Agreement and the Joint Venture Ancillary Agreements to which it is a party, the performance by each of Gloria and Gloria (Delaware) of its respective obligations hereunder and thereunder and the consummation by each of Gloria and Gloria (Delaware) of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of Gloria and Gloria (Delaware), and no other corporate proceedings on the part of Gloria and Gloria (Delaware) is required in connection therewith. This Agreement has been, and upon its execution, each of the Joint Venture Ancillary Agreements to which Gloria or Gloria (Delaware) is a party will be, duly 18 executed and validly delivered by Gloria or Gloria (Delaware) (as the case may be), and (assuming, if applicable, due authorization, execution and delivery by each of the other parties hereto and thereto) this Agreement constitutes and, upon its execution, each of the Joint Venture Ancillary Agreements to which Gloria or Gloria (Delaware) is a party shall constitute, a legal, valid and binding obligation of Gloria and Gloria (Delaware), enforceable against Gloria and Gloria (Delaware) in accordance with its terms. Neither Gloria, nor Gloria (Delaware) has any basis to believe, in the exercise of reasonable discretion and foresight, that a Material Adverse Effect is likely to arise from the execution and consummation of this Agreement and the transactions hereby contemplated. Section 4.02. No Conflict. The execution, delivery and performance by each of Gloria and Gloria (Delaware) of this Agreement and the Joint Venture Ancillary Agreements to which it is a party do not and will not: (a) violate or conflict with any provision of its certificate of incorporation, Memorandum and Articles of Association, Articles of Incorporation, or by-laws or similar organizational documents; (b) conflict with or violate in any material respect any Law or Governmental Order applicable to Gloria, Gloria (Delaware) or any of their respective assets, properties or business; or (c) conflict in any material respect with, result in any material breach of, constitute a material default (or event which with the giving of notice or a lapse of time, or both, would become a material default) under, or result in the creation of any Encumbrance (other than a Permitted Encumbrance) on, or give rise to any loss of material rights under, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which it is a party. Section 4.03. Consents and Approvals. The execution, delivery and performance by each of Gloria and Gloria (Delaware) of this Agreement and each Joint Venture Ancillary Agreement to which it is a 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 or other third Person. Section 4.04. Absence of Litigation. There is no Action pending or, to the knowledge of Gloria, threatened against Gloria or Gloria (Delaware) that seeks to restrain or enjoin or otherwise challenge the legality, validity or enforceability of this Agreement , the Operating Agreement, or any Joint Venture Ancillary Agreement. Section 4.05. Export Regulations and Other Laws. Spire is subject to the export regulations of the United States Department of Commerce and other regulatory agencies that regulate the export from the United States of certain technical data and information. Because of these regulations, the Parties to this Agreement recognize that Spire may furnish such technical data to Gloria and Gloria (Delaware) only on the condition that Gloria and Gloria (Delaware) not re-export the technical data and/or information to any country to which Spire may not, without a validated export license, export such data directly. Gloria and Gloria (Delaware) acknowledge that Gloria and Gloria (Delaware) are knowledgeable of such export regulations and agree not to violate them or take any action or fail to take such action that would allow technical data and/or information or any product based on them to be shipped either directly or indirectly to any country not permitted by said regulations unless prior, written authorization is obtained from the relevant agencies having jurisdiction over such shipment either directly or through Spire. The Parties hereby represent and warrant that the transaction contemplated by this Agreement does 19 not and will not result in any violation of such export regulations or any other laws or regulations governing this Agreement by virtue of the nationality or structure of any owners or Affiliates of Gloria or Gloria (Delaware). ARTICLE V ADDITIONAL AGREEMENTS Section 5.01. Access to Information. In order to facilitate the resolution of any claims made by or against or incurred by Gloria after the Closing or for any other reasonable purpose, for a period of seven (7) years following the Closing, Spire shall: (a) retain the books and records of Spire which relate to the Company Business and the Spire Contributed Assets (including the Spire PV Technology) for periods prior to the Closing and which shall not otherwise have been delivered to Gloria; and (b) upon reasonable notice, afford the officers, employees, agents and representatives of Gloria reasonable access (including the right to make photocopies, at Gloria's expense), during normal business hours, to such books and records. Section 5.02. Confidentiality. Spire agrees to, and shall cause its agents, representatives, Affiliates, employees, officers and directors to: (a) treat and hold as confidential (and not disclose or provide access to any Person to) all confidential or proprietary information with respect to the Company Business, the Spire Contributed Assets (including the Spire PV Technology) and the Gloria Parties; (b) in the event that Spire or any such agent, representative, Affiliate, employee, officer or director becomes legally compelled to disclose any such information, provide Gloria with prompt written notice of such requirement so that Gloria may seek a protective order or other remedy or waive compliance with this Section 5.02; (c) in the event that such protective order or other remedy is not obtained, or Gloria waives compliance with this Section 5.02, furnish only that portion of such confidential information which is legally required to be provided and exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such information; and (d) promptly furnish to Gloria any and all copies of all such confidential information then in the possession of Spire or any of its agents, representatives, Affiliates, employees, officers or directors and destroy any and all additional copies then in the possession of Spire or any of its agents, representatives, Affiliates, employees, officers or directors of such information and of any analyses, compilations, studies or other documents prepared, in whole or in part, on the basis thereof; PROVIDED, HOWEVER, that this sentence shall not apply to any information that, at the time of disclosure, is available publicly and was not disclosed in breach of this Agreement by Spire, its agents, representatives, Affiliates, employees, officers or directors. Section 5.03. Third Party Consents. Spire shall, at its own expense, give promptly notices to third parties and use commercially reasonable efforts to obtain the third party consents listed on Section 3.03 of the Spire Disclosure Schedule, including, without limitation, the third party consents required in connection with the Assignment and Assumption Agreement as soon as practicable but in no event later than sixty (60) days following the Closing. The Parties hereby agree that the failure by Spire to obtain any of such third party consents shall constitute a Material Breach (as defined in the Operating Agreement) under the Operating 20 Agreement and Gloria or Gloria (Delaware) shall have the right to enforce Article 13 of the Operating Agreement. Section 5.04. Notice of Developments. Until each Party obtains all authorizations, consents, orders and approvals of all Governmental Authorities and third parties set forth in Section 5.03 above, such Party shall promptly notify each other Party in writing of: (a) all events, circumstances, facts and occurrences arising subsequent to the date of this Agreement which could result in any breach of a representation or warranty or covenant of the notifying Party in this Agreement or which could have the effect of making any representation or warranty of the notifying Party in this Agreement untrue or incorrect in any respect; and (b) all other material developments affecting the Company Business, the Spire Contributed Assets and the Spire PV Technology. Section 5.05. Tax Cooperation and Exchange of Information. The Parties shall provide each other with such cooperation and information as either of them reasonably may request of the other relating to the Spire Contributed Assets (including access to books and records) as is reasonably necessary for: (a) filing any Tax Return, amended Tax Return or claim for refund; (b) determining a liability for Taxes or a right to a refund of Taxes; or (c) participating in or conducting any audit or other proceeding in respect of Taxes. Each of the Parties shall retain all Tax Returns, schedules and work papers, records and other documents in its possession (or in the possession of its Affiliates) relating to Tax matters relevant to the Spire Contributed Assets for each taxable period first ending after the Closing and for all prior taxable periods until the later of: (i) the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions except to the extent notified by the other Party in writing of such extensions for the respective Tax periods; and (ii) six (6) years following the due date (without extension) for such Tax Returns. Section 5.06. Conveyance Taxes. Spire shall be liable for and shall hold Gloria harmless against any Conveyance Taxes which become payable in connection with the transactions contemplated by this Agreement. Spire, after the review and consent by Gloria, shall file such applications and documents as shall permit any such Conveyance Tax to be assessed and paid on or prior to the Closing in accordance with any available pre-sale filing procedure. Section 5.07. Spire Transferred Employees. (a) Within thirty (30) days after Closing, (i) the Parties shall cause the Company to offer employment to *** and each of the other Spire Transferred Employees by sending an offer letter with terms mutually acceptable to Parties (the "Offer Letter"); and (ii) Spire shall cause *** and each of the other Spire Transferred Employees to accept such offer and enter into an Employment Agreement substantially in the form of Exhibit A (the "Employment Agreement") and the Severance Agreement and Release substantially in the form of Exhibit B attached hereto (the "Severance Agreement and Release"). (b) *** hereby acknowledges and accepts *** interim appointment as an agent and Manager of the Company, as of the Closing, effective until the sooner of the satisfaction of clause (ii) in the foregoing paragraph, or thirty (30) days from the Closing. During such interim period, Spire shall continue to pay, at its own expense, the customary salary *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 21 and benefits of ***, and acknowledges *** primary duty, as an officer from Closing, to the Company. (c) Spire shall use commercially reasonable efforts to cause each of the other Spire Transferred Employees to accept the Company's offer and enter into the Employment Agreement and the Severance Agreement and Release within thirty (30) days after the Closing. Section 5.08. IT Assets License Agreement. ***. Section 5.09. Joint Venture Ancillary Agreements. At the Closing, each Party shall, and shall cause the Company to, enter into each Joint Venture Ancillary Agreement to which such Party or the Company (as the case may be) is a party. Section 5.10. Non-Competition. Neither Gloria 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 restrictions, Spire shall have the right to continue to do the following on a non-exclusive basis: (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 *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 22 technology to Gloria and the Company pursuant to a long-term intellectual property license agreement on commercially reasonable terms and conditions. For the avoidance of doubt, Gloria shall have the right to sell PV Modules as a commodity item throughout the world. Section 5.11. Further Action. Upon the terms and subject to the conditions of this Agreement, each of the Parties shall use its commercially reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws, and execute and deliver such documents and other papers, as may be required to carry out the provisions of this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements and to consummate and make effective the transactions contemplated hereby. ARTICLE VI INDEMNIFICATION Section 6.01. Survival of Representations and Warranties. The representations and warranties of the Parties contained in this Agreement, the Operating Agreement, and the Joint Venture Ancillary Agreements shall survive the Closing until sixty (60) days after the expiration of the relevant statute of limitations for the Liabilities in question; PROVIDE, HOWEVER, that the representations and warranties made pursuant to Sections 3.01, 3.02, 3.04, 3.09, 4.01 and 4.02 shall survive indefinitely. Neither the period of survival nor the liability of a Party with respect to such Party's representations and warranties shall be reduced by any investigation made at any time by or on behalf of the other Party. If written notice of a claim has been given prior to the expiration of the applicable representations and warranties, then the relevant representations and warranties shall survive as to such claim, until such claim has been finally resolved. Section 6.02. Indemnification. (a) The Gloria Parties and their Affiliates, officers, directors, employees, agents, successors and assigns (each a "Gloria 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 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 Contribution Agreement or any Joint Venture Ancillary Agreement; (ii) the breach of any covenant or agreement by Spire contained in this Contribution Agreement or any Joint Venture Ancillary Agreement; (iii) Excluded Liabilities; and (iv) any and all Losses suffered or incurred by Gloria or any of its Affiliates, officers, directors, employees, agents, successors and assigns by reason of or in connection with any claim or cause of action of any third party to the extent arising out of 23 any action, inaction, event, condition, liability or obligation of Spire occurring or existing prior to the Closing. (b) Spire and its Affiliates, officers, directors, employees, agents, successors and assigns (each a "Spire Indemnified Party") shall be indemnified and held harmless by Gloria (the "Indemnifying Party") for and against any and all Losses arising out of or resulting from: (i) the breach of any representation or warranty made by Gloria contained in this Agreement or any Joint Venture Ancillary Agreement; and (ii) the breach of any covenant or agreement by the Gloria Parties contained in this Agreement or any Joint Venture Ancillary 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 6.02, unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Party equals or exceeds Twenty-Five Thousand US Dollars (US$25,000.00), whereupon the Indemnified Party shall be entitled to indemnification for the full amount of such Losses. ARTICLE VII TERMINATION AND WAIVER Section 7.01. Termination. This Agreement may be terminated at any time: (a) by any Party if the Closing shall not have occurred as of the date hereof; PROVIDED, HOWEVER, that the right to terminate this Agreement under this Section 7.01(a) shall not be available to any Party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on such date; (b) by Spire if the Gloria Parties fails to make the Gloria Cash Contribution pursuant to Section 2.04; (c) by any Party in the event that any Governmental Authority shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and nonappealable; (d) by any Party in the event that any other Party: (i) terminates the Operating Agreement or the Asset Purchase Agreement; or (ii) defaults under, breaches, or fails to perform any of the material obligations, covenants, or agreements (such default or breach hereinafter a "Material Breach") contained in the Operating Agreement or the Asset Purchase Agreement, and such Material Breach is not remedied within thirty (30) days after notification thereof by the non-defaulting Party; PROVIDED, HOWEVER, that the right to terminate this Agreement under this Section 7.01(d) shall not be available to any Party whose failure to fulfill any obligation under 24 the Operating 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; (e) by the mutual written consent of Spire and Gloria; or (f) by any Party upon a material breach by the other Party of its representation, warranty, covenant or agreement set forth in this Agreement if such breach is not curable within thirty (30) days after a written notice of such breach is provided to the breaching party. Section 7.02. Effect of Termination. In the event of termination of this Agreement as provided in Section 7.01, this Agreement shall forthwith become void and there shall be no liability on the part of any Party except: (a) as set forth in Sections 5.02 and 8.01; (b) that nothing herein shall relieve any Party from liability for any breach of this Agreement; and (c) that the Parties shall liquidate the Company pursuant to the applicable Law and the Operating Agreement. ARTICLE VIII GENERAL PROVISIONS Section 8.01. 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, whether or not the Closing shall have occurred. Section 8.02. 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 8.02: (a) if to Spire: Spire Corporation One Patriots Park New Bedford, Massachusetts 01730 Facsimile: +1-781-275-7470 Attention: Rodger LaFavre, Chief Operating Officer (b) if to Gloria: Gloria Solar Co., Ltd. No. 498, Section 2, Bentian Road An-Nan Dist., Tainan 70955, Taiwan, Republic of China Facsimile: +866-6-38407333 Attention: George Hsu, Chief Operating Officer 25 (c) if to Gloria (Delaware): Gloria Solar Co., Ltd. No. 498, Section 2, Bentian Road An-Nan Dist., Tainan 70955, Taiwan, Republic of China Facsimile: +866-6-38407333 Attention: George Hsu, Chief Operating Officer Section 8.03. Publicity. So long as this Agreement is in effect, no Party 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 Party, except as such release or announcement may be required by Law or the rules or regulations of any securities exchange, in which case the Party required to make the release or announcement shall, to the extent practicable, allow the other Parties reasonable time to comment on such release or announcement in advance of such issuance Section 8.04. 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 Law, 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 Parties. Section 8.05. Entire Agreement. The Primary Transaction Agreements and the Ancillary Agreements constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. Section 8.06. Interpretation. In the event of any inconsistency among the terms and conditions of the Primary Transactions Agreements related to the subject matter herein, the terms and conditions shall govern in the following order: (a) the Operating Agreement; (b) this Agreement; (c) the Asset Purchase Agreement. In the event of any inconsistency among the terms and conditions of this Agreement and the Joint Venture Ancillary Agreements related to the subject matter herein, the terms and conditions of this Agreement shall govern over the Joint Venture Ancillary Agreements. 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. Section 8.07. Assignability and Parties in Interest. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or 26 obligations hereunder shall be assigned by any Party without the prior, written consent of the other Party, except as provided herein; PROVIDED, HOWEVER, that this Agreement or any of its rights and obligations hereunder may be assigned by any Party to one or more of its Affiliates without the prior written consent of the other Parties. The rights and remedies of this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns and are not intended to create or confer any rights or obligations enforceable by any third party, except as otherwise provided by applicable Law. Section 8.08. 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 amendment, by all Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. (a) 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. Section 8.09. Specific Performance. Spire agrees that the Gloria Parties would suffer irreparable damage in the event any provision of this Agreement was not performed by Spire in accordance with the specific terms hereof and that the Gloria Parties shall be entitled to specific performance of such terms, in addition to any other remedy at law or in equity. Section 8.10. Nondisclosure of Terms of Agreement. Each Party 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 Party, except to the extent required by Law or Governmental Orders or unless served with compulsory process in any judicial proceeding, in which event, such Party agrees to give prompt notice to the other Parties of the compulsory process. Section 8.11. 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. Section 8.12. Dispute Resolution. (a) 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 clause (b) herein below. The Parties hereby exclude recourse to the courts, unless required for urgent interim measures of protection, such as the threat of irreparable harm. (b) 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 27 arbitrators, with Spire and any Gloria Party each picking one arbitrator, and the two arbitrators picking a third arbitrator. (c) 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. Section 8.13. 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. [SIGNATURES APPEAR ON NEXT PAGE] [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 28 IN WITNESS WHEREOF, the Parties have caused this Contribution Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized. SPIRE CORPORATION By: /s/ Roger G. Little ------------------------ Name: Roger G. Little Title: CEO GLORIA SOLAR CO., LTD. By: /s/ George Hsu ------------------------ Name: George Hsu Title: COO GLORIA SOLAR (DELAWARE) COMPANY, LTD. By: /s/ George Hsu ------------------------ Name: George Hsu Title: COO ACKNOWLEDGED AND AGREED By: /s/ *** ------------------------ Name: *** *** Represents text omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. 29 EX-10.X 4 exhibit10-x_15419.txt OPERATING AGREEMENT EXHIBIT 10(x) ------------- 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 GLORIA SPIRE SOLAR, LLC among SPIRE CORPORATION GLORIA SOLAR (DELAWARE) COMPANY, LTD. and GLORIA SPIRE SOLAR, LLC July 31, 2007 OPERATING AGREEMENT OF GLORIA SPIRE SOLAR, LLC This Operating Agreement of Gloria Spire 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 One Patriots Park, Bedford, Massachusetts ("Spire"), Gloria Solar (Delaware) Company, Ltd., a Delaware corporation, with its principal place of business at No.498, Sec. 2, Bentian Rd., Annan District, Tainan City 709, Taiwan, Republic of China, ("Gloria (Delaware)") and Gloria Spire Solar, LLC, a Delaware limited liability company with its principal place of business at One Patriots Park, Bedford, Massachusetts (the "Company"; each of Spire, Gloria (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 , Gloria (Delaware) manufactures and sells PV solar modules and intends to enter the United States market; and WHEREAS, Spire and Gloria (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 Gloria (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, Gloria (Delaware) and Spire are entering into a Contribution Agreement, dated as of the date hereof (the "Contribution Agreement"), pursuant to which Spire and Gloria Solar Co., Ltd. ("Gloria") 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 Gloria (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 Gloria, pursuant to which Gloria 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 "Bill 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 Gloria (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. 3 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 mark 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 Gloria (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. 4 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) watts 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 Gloria and the Company, pursuant to which Gloria shall subcontract the Company to operate the assets purchased by Gloria 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 Gloria, pursuant to which Spire 5 shall sublease certain premises to Gloria for purposes of housing the assets purchased by Gloria 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 Bill 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. 6 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 Gloria Spire 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. Gloria Spire 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, 1209 Orange Street, in the City of Wilmington, County 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: 7 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 8 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 9 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 Gloria (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. 10 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 Gloria (Delaware) (the "Gloria (Delaware) Managers"). Upon the resignation, death, or removal of any Spire Manager or Gloria (Delaware) Manager, the successor shall be nominated and elected by Spire or Gloria (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 Gloria (Delaware), as founding 11 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 Gloria (Delaware) shall rotate the chairmanship of the Managing Board each fiscal year, except that it is agreed that one of the Gloria (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 Gloria (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 Gloria (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 12 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; 13 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 Gloria (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 Gloria (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 18 One Patriots Park Bedford, Massachusetts, 01730 USA Fax No.: +1-781-275-7470 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 Gloria (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 Spire, Gloria (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 Gloria (Delaware), on the same terms that it would otherwise acquire them from a third party supplier in an arm's-length transaction. If Gloria (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 Gloria (Delaware) (only to the extent relating to Gloria (Delaware)'s PV Module commodity business in the United States), the Company or Gloria (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 Gloria (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 Gloria (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 Gloria (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 Gloria and the Company pursuant to a long-term intellectual property license agreement on commercially reasonable terms and conditions. For the avoidance of doubt, Gloria 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. Gloria (Delaware) and its Affiliates, officers, directors, employees, agents, successors and assigns (each a "Gloria (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 Gloria (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 Gloria (Delaware) contained in this Agreement; and (ii) the breach of any covenant or agreement by Gloria (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 Gloria (Delaware) Indemnified Party, as the case may be, equals or exceeds Twenty-Five Thousand US Dollars (US$25,000.00), whereupon the Spire or Gloria (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 Gloria (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. 31 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. 34 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 Gloria (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 Gloria (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 Gloria (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 One Patriots Park Bedford, Massachusetts 01730 USA Fax No.: +1-781- 257-7470 Attention: Rodger W. LaFavre 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 Gloria (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. ss.ss. 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/ Roger G. Little ------------------------------ By: Roger G. Little Date: July 31, 2007 GLORIA SOLAR (DELAWARE) COMPANY, LTD. /s/ George Hsu ------------------------------ By: George Hsu Date: July 31, 2007 GLORIA SPIRE 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 Gloria Spire 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 Gloria Spire 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 Gloria Spire 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 Gloria Spire Solar, LLC Please see attached. CERTIFICATE OF FORMATION OF Gloria Spire 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, 1209 Orange Street, in the City of Wilmington, County 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 Gloria Spire Solar, LLC, this 30th day of July, 2007. /s/ David J. Shlansky -------------------------------- -------------------------------- -------------------------------- SCHEDULE 2.01 ------------- Spire Corporation One Patriots Park Bedford, Massachusetts 01703 USA Fax: +1-781-275-7470 Attention: Rodger LaFavre, Chief Operating Officer E-mail: rlafavre@spirecorp.com Gloria Solar (Delaware) No. 498, Section 2, Bentian Road Company, Ltd. An-Nan District, Tainan 70955 Taiwan, Republic of China Fax: +866-6-38407333 Attn: George Hsu, Chief Operating Officer E-mail: george@gloriasolar.com SCHEDULE 3.01 ------------- MEMBERS PERCENT OWNERSHIP - ------- ----------------- Gloria Solar (Delaware) Company, Ltd. 55% Spire Corporation 45% -----END PRIVACY-ENHANCED MESSAGE-----