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
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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
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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
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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.
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"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.
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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
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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.
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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.
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"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.
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"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.
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(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").
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(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
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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 Purc
