EXHIBIT 10(ai)
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Confidential Treatment Requested as to certain information contained in this
Exhibit and filed separately with the Securities and Exchange Commission.
PURCHASE AND SALE AGREEMENT
60 MW Solar Cell Production Line,
for 156mm Multi Crystalline Solar Cells
August 26, 2009
1. The Parties:
Spire Corporation (the "Seller"), a business incorporated in the
Commonwealth of Massachusetts, with its principal place of business at
Xxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000-0000, U.S.A.;
Uni-CHEM Co., Ltd. (the "Buyer"), a business established in Republic of
Korea, with its principle place of business at 0 Xxxxx, XXXXXX Xxxxxxxx,
00-00 Xxxxxx-Xxxx, Xxxxxx-Xx, Xxxxx, Xxxxx
2. Terms of Agreement:
Seller agrees to sell to Buyer and Buyer agrees to buy from Seller the
Products described in Article 3 below, pursuant to the provisions of the
Purchase and Sale Agreement hereinafter set forth. Such provisions shall
prevail and no other article, condition, clause or term shall have any
effect unless specifically admitted by this document.
3. The Products bought by Buyer and sold by Seller are set forth in this
Article below and will be shipped to Buyer on or before June 20, 2010.
The capacity of the line is based on twenty-four hours per-day, seven
days per-week, fifty weeks per-year operation. Partial shipments are
allowed as needed and any shipment may be transshipped as may be
appropriate. The specifications of the Products are delineated in
Attachment B hereto.
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*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
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b. PROCESS AND QUALITY CONTROL EQUIPMENT
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NOTE: Shipments schedule are contingent upon receipt by Seller of
Buyer's non-refundable down payment on or before October 20, 2009 as
well as the fulfillment of certain other conditions that, if applicable,
are stated elsewhere below. Any failure by Buyer to adhere to the
payment plan as outlined in Article 4 may cause Seller to revise the
shipment schedule.
4. Price and Terms of Payment:
a. Price:
The price for the Products, including technical documents, technical
services, and training in their operation and maintenance, as set
forth above, is a total of U.S. Dollars $21,750,000.00 (Twenty one
Million Seven Hundred Fifty Thousand US Dollars), Ex-Works loaded
USA and Europe ports. Seller will advise Buyer three (3) months in
advance of shipments of all shipping ports.
60MW Automated Cell Production Line
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Item Description Quantity
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Process Equipment 1
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*** 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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Process & Quality Control Equipment
***
Total Equipment
Installation, Training, Process training
Facility design, Purchasing
Total (excluding crating and packing) $21,750.000
b. Payment:
Buyer shall make payments to Seller in accordance with the schedule
outlined below:
Buyer shall send non-refundable Down Payment, on or before
October 20, 2009 based upon Seller's invoice, in the amount of
***
Such payment shall be effected by Buyer via telegraphic transfer
to Seller's bank as below:
***
ii. Buyer subsequently shall establish irrevocable, transferable,
and divisible Letter of Credit advised by advising bank for the
remaining balance price of the Products of each shipment:
A Letter of Credit of *** shall be established.
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
Such Letter of Credit shall be established within 90 days prior
to first shipment of the Cell Line Equipment. The expiration
date for the Letter of Credit described in this Article shall
not be earlier than sixteen months from the date of the last
scheduled shipment. Such Letter of Credit shall be drawable by
Seller in one (1) sequence: a draw of *** on an individual
equipment piece basis, upon presentation of commercial invoice
and applicable Ready to Ship Equipment Certificates issued by
Seller. In case individual equipment(s) is/are ready to ship,
such commercial invoices shall be valued at the equipment price
plus the pro-rata value of the installation, training,
purchasing, and like services. Other terms and conditions of
this Letter of Credit shall be in accordance with the document
entitled "Letters of Credit Requirements" and attached hereto as
Attachment A. Buyer agrees to amend this Letter of Credit
promptly upon Seller's request provided that Seller furnishes a
satisfactory and reasonable explanation for such amendment, and
that the terms of the amendment are mutually agreed upon by
Buyer and Seller.
5. Performance and Performance Period:
a. Conditions precedent for Seller to begin performance:
i. Purchase and Sale Agreement signed by both Parties;
ii. Down Payment received by Seller on or before October 20, 2009.
b. Performance:
A Design Review Meeting ("DRM") shall be convened within the first
six (6) weeks of the period of performance. The DRM shall establish
all appropriate design specifications of the Products, such that the
Seller's procurement process can be initiated. Seller and Buyer
shall agree to the designed specifications outlined in the DRM in
writing. Seller shall make delivery in full of the DRM product,
including all Product components, installation at the Buyer's site
in accordance with standard industry practices as well as equipment
training (use and maintenance), using its best efforts in accordance
with the shipment schedule in Article 3 (and outlined in greater and
more definitive detail in the Attachments hereto). As a result of
any changes to the Seller's proposed Cell Line design, and the
Products, as a result of the mutually agreed DRM, Seller has the
right to modify its price accordingly. Installation shall be defined
as the mechanical set-up of all applicable Product (sometimes called
equipment), and the mechanical operation such that the equipment
performs the mechanical functions it was designed for as outlined in
Attachment B.
Seller shall provide all training services, equipment manuals, and
the like, to Buyer within one (1) month of the Installation.
Training shall be conducted in accordance with the agenda and
schedule (Attachment E), LINE ACCEPTANCE, PERFORMANCE AND TRAINING
SCHEDULE To be established in writing by Seller and Buyer.
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
Training will begin immediately upon installation of individual process and
material-handling equipment. One or more original-equipment-manufacturer
installation technicians and/or Seller personnel will conduct operational,
safety and maintenance training during installation. This start-up period will
be most useful for process engineering, electro-mechanical engineering,
electro-mechanical technicians, and senior-machine operators. Individual
training will repeat as additional equipment is installed and routed to
facilities
Process training required to match individual equipment into an
integrated solar-cell line will begin immediately after all process
equipment is installed. Management training will be performed in
conjunction with process training to make certain the buyer can
staff, control, and operate the line on a day-to-day basis. The
Seller will provide expert consultation for the process, operation,
and staffing needs from installation through final acceptance. The
Seller will not provide expert consultation for electro-mechanical
troubleshooting and maintenance of equipment. During the ramp up
period the Seller or its authorized local representative ("Support
Team") will provide on-site support to the Buyer. It is expected the
Seller's Support Team will be on-site for a period of up to six
months and will also provide maintenance, troubleshooting and
operational support. (Assumption is single shift operation with all
other support as needed on "on call service" basis.) This support,
by the Seller's Support Team does not relieve the Buyer from having
fully trained and skilled electo-mechanical engineers and
technicians to troubleshoot routine electro-mechanical problems and
provide day-to-day operational support
Every deliverable component shall be new; shall evidence
high-quality workmanship, and be free of any defects in design,
assembly and installation that may inhibit the smooth operation; and
which satisfies the purpose of this Agreement. Each unit of
deliverable equipment, where applicable, shall correspond to the
specifications attached as Attachment B; be accompanied by a
standard spare parts package which shall be defined by Seller prior
to the shipment; and be subject to a limited warranty as specified
elsewhere in Article 8 of this Agreement.
All of the Product components delivered by the Seller shall be
packed using new and strong packaging appropriate for shipping,
transportation, loading and unloading. According to the requirements
of each unit of equipment and any other items included with them,
the Seller shall, consistent with accepted industry practices,
supply any protection necessary to protect such equipment and other
items from humidity, water, rust, erosion, or any other
environmental factor which may damage the equipment or other items,
and to insure that the Products arrive at the Buyer's site safe and
intact.
Each package, box or crate shall include the following documents:
1. Two (2) copies of a detailed packing list;
2. Operation, service and repair manuals, written in English;
3. Spare parts list;
4. Two (2) copies of assembly drawing as required for routine
repair and maintenance.
c. Performance Period:
The period of performance shall commence when the conditions
precedent as described above are met and shall conclude with the
delivery of the Products, the installation of the same at a site
specified by the Buyer, completion of such training as is specified
herein, and the qualification of the Products as agreed herein by
the Parties.
d. Acceptance Criteria
The acceptance criteria for accepting the Product(s) will be
mutually defined during the first DRM held between the Buyer and the
Seller.
6. Alterations to Product:
The Products specified in Article 4 above and as described in detail in
Attachment B hereto are standard Products manufactured and assembled by
Seller. Any requirement by Buyer to have Seller modify specifications
and features of the Products may affect the price, even if such
modification eliminates a feature or relaxes a specification, as all
changes require an engineering charge. Other charges may apply. Buyer
will submit all such requirements to Seller as soon as they become
known. Seller will advise Buyer as soon as practical the effect all such
requirements are estimated to have on price, delivery schedule,
performance, and warranties as herein stated. In particular, Buyer
agrees that any subsequent requirement other than addressed above
thereafter agreed upon by the Parties will constitute a change in
Seller's performance requirements and may further affect the delivery
schedule cited above. In the event of any changes required by Buyer, in
requesting such change, Buyer thereby releases Seller from strict
adherence to this schedule, although Seller is expected to use its best
efforts to minimize or eliminate any delay that may result from changes
required by Buyer. Seller reserves the right to make changes to the type
or source of parts used to manufacture the components of the Products to
eliminate any procurement problems or to improve quality of operations.
Such changes will be made without notice to Buyer, but Seller's
responsibility to furnish Products of equal or improved in quality shall
not be altered.
7. Certain Responsibilities of Buyer:
a. Installation Site Preparation:
Buyer will have an installation site, including utility/facility
(power, water, compressed air, factory floor space) requirements,
prepared for Seller to install the Products at the time of its
arrival at the location/address specified by Buyer, but in any case
not later than thirty (30) days after the arrival of the last
Product at such location/address. Failure by Buyer to make such a
site, including all required utility/facility items available at or
before the expiration of the thirty day period will allow Seller, at
its sole discretion, to consider itself absolved of any further
performance with regard to training and installation except at
Seller's convenience thereafter. Any delay for any reason (save for
Force Majeure) arising with the Buyer
that delays the completion of installation beyond ninety (90) days
after the arrival of the Products at Buyer's site will cause the
full amount of the outstanding balance at that time to become due
and payable by Buyer, at Seller's sole discretion, and the Project
deemed complete. Buyer will promptly make the required change to the
Letter of Credit to facilitate this collection upon application of
Seller. Seller shall, in such instance adjust its installation
schedule for its own convenience but with consideration to Buyer's
schedule to the maximum extent possible. In addition, any direct
added costs incurred by Seller by reason of Buyer's failure to
proceed with installation of the Product and training of its
personnel shall be charged to Buyer, invoiced separately, and
payable thirty (30) days from invoice date. The site shall possess
all the utility/facility requirements as agreed by both parties. If
the Seller's technical staff is not able to arrive at the site at a
time mutually convenient, the Buyer may start inspection and
installation at its own risk.
b. Inspection:
The Buyer shall inform the Seller of the inspection date twenty (20)
days prior to the scheduled date for inspection. Seller may send its
representative(s) to join in the inspection at its expense. If any
part is missing, defective, damaged, or there is any other
non-conformity present, Buyer shall notify Seller immediately in
writing with appropriate documentation. Buyer shall correct such
non-conformities in accordance with the warranty attached to the
Agreement as Attachment C. Seller's adherence to the terms of the
warranty prior to the completion of installation does not in any way
shorten the ordinary warranty period. Seller has the right to
photograph or videotape the container opening and inspection
process.
c. Supplemental Training:
Seller will provide supplemental training during the course of the
installation process for up to four (4) operators (training of
additional operators may result in additional cost). All such
training is understood to be supplemental to the training conducted
at Seller's facility, and constitutes "on-the-job-training"
conducted during the Installation process. All such trainees must be
proficient in spoken and written English, or Buyer must provide at
its expense a skilled interpreter/translation expert to render
Seller's trainer/installer's instructions into trainee's native
language in an effective and efficient manner. Seller will provide
operation, repair and maintenance manuals to Buyer in English, and
will attempt to provide them to Buyer sufficiently in advance of the
installation process to allow Buyer to translate or have them
translated and copied. Seller does not warrant the content of such
documents if translated.
d. Materials
Buyer must send a minimum of each type of wafer to be used 8 weeks
before the scheduled shipment date. The wafer will be used for set
and test of the equipment prior to shipment. In addition, at the
time of installation Buyer must have available a minimum six
thousand (6,000) solar wafers of the type that the system will run
in the initial production configuration.
e. The Buyer is expected to sign off and accept the Seller cell line
after successful installation. If the Buyer uses the cell line for
commercial purposes or is making cells for use on photovoltaic
modules for a period of more than 30 days then the Buyer's cell line
considered fully accepted and applicable payments due Seller made.
8. Warranty:
Seller sells the Products set forth herein with a Limited Warranty as
shown in Attachment C hereto. It is this Limited Warranty and no other
that shall apply to any claims of defects in parts and/or labor on any
unit of the Products. Seller expressly disclaims any and all other
promises or guarantees that may be purported to apply.
If any defects are found except where limited by the specific terms of
the Limited Warranty, including but not limited to damaged, missing,
substandard or malfunctioning parts and components, the Buyer has the
right to have the Products and/or any of their components repaired
and/or replaced in accordance with the Limited Warranty terms by the
Seller.
9. Product Qualification; Standard for Equipment Acceptance and Completion:
Provided that the Buyer has satisfied its obligations as set forth
herein, Seller will provide performance conditions in accordance with
Attachment D hereto; the "Acceptance Protocol."
In the event that the results of the Acceptance Protocol show that the
Product(s) fail to meet one or more of the performance conditions and
such failure is demonstrably attributable to the Seller, Seller, at no
additional charge to Buyer, shall undertake actions to correct such
defective performance.
The liabilities expressly assumed by Seller under this Agreement shall
be Seller's only liability hereunder, at contract and law, and Buyer
hereby releases Seller from any and all liability and claims of
liability in excess thereof. Seller's total aggregate maximum total
liability shall be determined jointly by both Parties pursuant to an
analysis of the deficiencies giving rise to any claim by Buyer.
10. Indemnity:
Buyer shall indemnify, defend, protect and hold harmless Seller from any
action, suit, complaint, allegation and controversy of whatever kind
which originates in Buyer's operation of the installed Products and the
sale or use of any products that was manufactured using the Products,
provided that Buyer failed to follow all or some portion of the
instructions for use provided by Seller, and provided also that no
portion of the cause has its origin in any act of gross negligence on
the part of Seller.
11. Confidentiality:
Certain matters regarding this relationship embodied by this Agreement
may be considered confidential or sensitive to one or the other Party to
this Agreement. The Parties agree that all such matters, once
identified, will be treated in accordance with the Confidential
Disclosure Agreement attached hereto as Attachment F. This Agreement
does not confer any right of ownership to any technical data disclosed
to Buyer for Process Technology development purposes, and Buyer shall
not release any technical data to any third party without the written
approval of Seller.
12. No License:
This Agreement does not convey any license to Buyer to use Seller's name
or any form of its corporate identification in any jurisdiction. Buyer
is allowed a limited non-exclusive license to use certain technical data
for the purpose of developing process technology.
13. General Provisions:
a. No Waiver - Waiver of any provision of this Agreement, in whole or
in part, in any one instance shall not constitute a waiver of any
other provision in the same instance, or any waiver of the same
provision in any other instance, but each provision shall continue
in full force and effect with respect to any other then-existing or
subsequent breach.
b. Notice - Any notice required or permitted under this Agreement shall
be given in writing to the Parties at their respective addresses as
specified above, or at such other address for a Party as that Party
may specify by notice (i) by delivery in hand or, (ii) registered or
certified mail, return receipt requested, or courier or some other
form of expedited delivery service that provides for delivery to the
sender of a signed receipt. Notice so sent shall be effective upon
receipt unless otherwise specified herein or in the notice.
c. Arbitration of Disputes - All disputes arising out of or in
connection with this Agreement that cannot be readily or amicably
solved by the Parties shall be finally settled pursuant to the Rules
of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with said rules. The place of
arbitration shall be the city of New York USA and the arbitration
shall be conducted in the English language.
d. Force Majeure - Neither Party to this Agreement shall be responsible
to the other Party for delays or errors in its performance or other
breach under this Agreement occurring solely by reason of
circumstances beyond its control, including acts of civil or
military authority, national emergencies, fire, major mechanical
breakdown, labor disputes, flood or catastrophe, acts of God,
insurrection, war, riots, severe weather, delays of suppliers, or
failure of transportation, communication or power supply.
e. Miscellaneous - This Agreement: (i) may be executed in any number of
counterparts, each of which, when executed by both Parties to this
Agreement shall be deemed to be an original, and all of which
counterparts together shall constitute one in the same instrument;
(ii) shall be governed by and construed under the laws of The
Commonwealth of Massachusetts applicable to contracts made,
accepted, and performed wholly in The Commonwealth, without
application to the principle of conflict of laws; (iii) except and
to the extent expressly provided for in Article 11, this Agreement
constitutes the entire agreement between the Parties with respect to
its subject matter, superceding all prior oral and written (except
as previously noted) written communications, proposals,
negotiations, representations, understandings, courses of dealing,
agreements, contracts, and the like between the Parties in such
respect; (iv) may be amended, modified, and any right under this
Agreement may be waived in whole or in part, only by a writing
signed by both Parties; (v) contains headings only for convenience,
which headings do not form part, and shall not be used in
construction, of this Agreement; (vi) shall bind and inure to the
benefit of the Parties and their respective legal representatives,
successors and assigns, including, without limitation, to a Parties
corporate parents or affiliates, provides that no Party may delegate
any of its obligations under this Agreement or assign this Agreement
except to a related entity or successor by sale or merger, without
prior written consent of the other party. This Agreement is in the
English language only which language shall be controlling in all
aspects.
f. In the event either Party is in default for sixty (60) days in any
obligation hereunder, and the other Party has given written notice
specifying the claimed particulars of such default, which shall
continue for a period of thirty (30) days after the date of such
notice, the party giving notice may thereupon terminate this
Agreement forthwith by giving the other Party ten (10) days written
notice of termination. Buyer shall nevertheless be obligated to pay
Seller all payments due pursuant to Seller's costs to date.
14. United States Export Regulations:
Seller is subject to the Export Regulations of the United States
Department of Commerce and other regulatory agencies that regulate the
export from the United States of certain technical data and information.
Because of these regulations, the Parties to this Agreement recognize
that Seller can furnish such technical data to Buyer only on the
condition that Buyer not re-export the technical data and/or information
to any country to which Seller may not, without a validated export
license, export such data directly. Buyer acknowledges that Buyer is
knowledgeable of such Export Regulations and agrees not to violate them
or take any action or fail to take such action that would allow
technical data and/or information or any product based upon them to be
shipped either directly or indirectly to any country not permitted by
said regulations unless prior written authorization is obtained from the
relevant agencies having jurisdiction over such shipment either directly
or through Seller.
15. Compliance with Laws Generally:
indemnifying Party to comply with any relevant law, statute, order or
administrative regulation. The Parties hereby certify that they are, to
the best of their knowledge, compliant with all such laws, statutes,
orders, and administrative regulations.
16. Assignment:
This Agreement shall not be assignable by either party hereto without
the express prior written consent of the other party, except that it may
be assigned without such consent to the successors to and assigns of
substantially the entire assets and business of such party. No
assignment hereof shall be valid without the assumption in writing by
such successors or assigns of all obligations under this Agreement. When
duly assigned in accordance with the foregoing, this Agreement shall be
binding upon and inure to the benefit of the assignee.
IN WITNESS WHEREOF, the Parties hereto have set their respective hand and seals
signifying their concurrence and endorsement with and of the foregoing, in a
number of counterpart copies, each of which shall be deemed to be an original
for all purposes and deemed effective and binding on the date at the head of
this document.
Uni-Chem Co. Ltd Spire Corporation
/s/ Xxxxxx Xxx /s/ Xxxxxx XxXxxxx
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By: Xxxxxx Xxx By: Xxxxxx XxXxxxx
Title: Chairman/CEO Title: Chief Operating Officer
ATTACHMENT A
LETTERS OF CREDIT (L/C) REQUIREMENTS
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*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
ATTACHMENT B
DATA SHEETS (REPRESENTATIVE)
TO BE SUPPLIED LATER
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
ATTACHMENT C
STANDARD LIMITED WARRANTY FOR SPIRE EQUIPMENT
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
ATTACHMENT D
ACCEPTANCE PROTOCOLS
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
ATTACHMENT E
LINE ACCEPTANCE, PERFORMANCE AND TRAINING SCHEDULE
***
*** Represents text omitted pursuant to a request for confidential treatment.
The omitted material has been filed separately with the Securities and Exchange
Commission.
ATTACHMENT F
CONFIDENTIAL DISCLOSURE AGREEMENT
ATTACH COPY HERE
1. PASSING OF TITLE AND TRANSFER OF RISK
a) Spire Corporation ("Spire") shall retain ownership of the Products
supplied until full payment has been received. The Customer shall
take all necessary measures for the protection of the proprietary
rights of Spire until such time that all title is legally
transferred to Customer.
b) Title of any part of the Work shall pass to the Buyer upon the date
on which complete (100%) payment for that work has been made by the
Buyer. Any understanding to the contrary is null and void unless
expressly admitted in writing by Spire.
c) Notwithstanding the clause "Termination for Cause", if no specific
Incoterms have been defined herein, then the risk of damage to and
loss and any part of the Work shall pass to the Buyer on the date of
Certification of Ready to Ship.
2. TERMINATION FOR CAUSE
Without prejudice to any other rights of Spire under applicable law:
a) if the Buyer commits a breach of its obligations under this
Contract, which breach is not remedied within a reasonable time
period, the term of which shall be solely determined by Spire, or
b) if the Buyer becomes insolvent or files a petition in bankruptcy or
has such petition filed against it
then Spire may, by written notice, terminate this Contract without
prejudice or any liability of the Buyer under this Contract prior to
such termination.
3. CANCELLATION
a) Prior to shipment, Customer may unilaterally cancel or terminate any
delivery of Products under the Terms and Conditions of Offer with
written notice to Spire and upon payment of cancellation penalties
as follows: if Spire receives Customer's written cancellation notice
i. within 60 days of the scheduled shipment date, cancellation
charges shall be 80% of the applicable order amount, or
applicable fraction thereof.
ii. more than 60 days, but less than 90 days of the scheduled
shipment date, cancellation charges shall be 60% of the
applicable order amount, or applicable fraction thereof.
iii. 90 days or more, but less than 150 days of the scheduled
shipment date, cancellation charges shall be 40% of the
applicable order amount, or applicable fraction thereof.
iv. 150 days or more of the scheduled shipment date, cancellation
charges shall be 35% of the applicable order amount, or
applicable fraction thereof.
4. DELAY IN ACCEPTANCE
Costs that are incurred due to a delay in Product acceptance, which are
not due to any fault or defect in the Spire product itself, must be paid
by the Buyer. Delays of Product acceptance as described above may
require a readjustment of the delivery time in accordance with and
appropriate to the delays of the acceptance of the Product.
5. WARRANTY
Unless stated elsewhere in writing and endorsed in writing by Seller, the
Limited Warranty will last 12 (twelve) months from the date upon which it became
effective ("Effective Date"). The term of this Limited Warranty begins with the
earliest occurrence of the following events, which shall define as the Effective
Date of the Limited Warranty:
a) the day after the conclusion of the successful Factory Acceptance
Test (or any equivalent event) of the Product covered by this
Limited Warranty; or
b) sixty-one (61) days after arriving at Buyer's site, if the Factory
Acceptance Test has not commenced prior to that date as a result of
Buyer's actions for any reason; or
c) sixty-one (61) days from the date of Seller's notice to Buyer of
"Certificate-Product Ready to Ship", if the failure to ship prior to
that date is due to Buyer's delay for any reason, or
d) the date upon which the Product is first used in commercial
production.
i. "commercial production" shall be defined as the use of Product
to manufacture goods for commercial sale.
