Distribution
Agreement
This
Distribution Agreement (the “ Agreement ”) is
made this 31 st day
of October, 2008, (the “ Effective Date ”) by
and between Rogers Technologies (Suzhou) Co. Ltd., a corporation
organized and existing under the laws of the People's Republic of
China having its principal place of business at 338 Shenhu Road,
Suzhou Industrial Park, Suzhou, People's Republic of China 215122,
Rogers Technologies (Singapore) Inc., a corporation organized and
existing under the laws of Singapore having its principal place of
business at 60 Kaki Bukit Place, #03-14 Eunos TechPark , Singapore
415979, and Rogers Southeast Asia, Inc., a corporation organized
and existing under the laws of Hong Kong having its principal place
of business at Unit 1111, 11/F, Delta House, 3 On Yiu Street,
Shatin, New Territories, Hong Kong (collectively, the “
Distributor ”), and Rogers Induflex NV, a Belgian
company with registered office at 9000 Ghent, Ottergemsesteenweg
799 and registered with the Crossroads Bank of Enterprises under
enterprise number 0427693784 (“ Company ”)
(which will be renamed “Induflex NV” shortly after the
change of control occurring as of the date hereof and described
below). Distributor and Company are each referred to
herein, individually, as a “ Party ” and,
collectively, as the “ Parties ”.
The Parties
hereto agree as follows:
Whereas
, Company is in the business of the
development, manufacture and sale of laminates, coated tapes and
films for purposes of shielding, insulating, barring and
identification;
Whereas
, Distributor has, prior to Effective
Date, distributed the Company’s products;
Whereas
, Company has recently undergone a
change of control; and
Whereas
, following such change of control,
Distributor has agreed to continue to act as a distributor of the
Company’s products to its customers, subject to the terms and
conditions set forth herein.
Now
therefore , in
consideration of the mutual agreements and covenants contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties
hereto, intending to be legally bound, hereby agree as
follows:
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Term
: Unless earlier terminated as provided for herein,
the term of this Agreement shall commence on the Effective Date and
end on the six month anniversary thereof (the “
Initial Term ”). Following the
Initial Term, this Agreement may be renewed for an additional six
month term unless either Party shall have given the other written
notice of non-renewal at least thirty (30) days’ prior to the
expiration of the then current term.
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Products:
This Agreement governs
Distributor’s distribution of multilayer laminates comprised
of layers of any of the following products: polyethylene
terephthalate (PET), polyethylene naphthalate (PEN), polyvinyl
chloride (PVC), aluminum, copper, Mylar, Tedlar and adhesives, as
currently manufactured by the Company (the “ Products
”).
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Orders:
Distributor will supply purchase
orders to Company on a mutually acceptable form, via fax, email or
phone to a person designated in advance by the Company in
accordance with Section 15. All purchases by Distributor
of Products shall be subject to Distributor’s general terms
and conditions of purchase.
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(a)
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Product
Price : The Product Price
for each Product shall be the retail price for each such Product,
less a fifteen percent (15%) discount (the “ Product
Price ”). All Product Prices shall be
expressed in U.S. dollars.
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(b)
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Adjustment : In the event that the currency exchange rate of
the U.S. dollar (USD) to the China Yuan Renminbi
(CNY) deviates more than five percent (5%) from the rate of 1
USD = 6.8 CNY, then the Product Price will be adjusted
accordingly.
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Payment
Terms: All of
Company’s invoices for Products shall be due and payable by
Distributor within seventy-five (75) days after receipt of
Products by Distributor.
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Delivery; Risk of
Loss: All deliveries of
Products will be made CFR, Shanghai (Incoterms 2000). Distributor
shall pay all applicable insurance, duties, taxes inland freight
and similar charges from the delivery point. Distributor
shall give Company written notice of any claimed shipping error
within seventy-five (75) days after the date of receipt of Products
by Distributor.
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Product
Promotion: Distributor
will not be obligated to promote Company’s Products, but
Distributor will promote its own distribution services to its
customers in accordance with Distributor’s standard business
practices, which typically include (but are not limited to)
informing Distributor’s customers of pricing available for
products distributed by Distributor.
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Termination:
This Agreement may be terminated as
follows:
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(a)
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By either Party immediately upon any material
breach by either Party, where such material breach remains uncured
for more than five (5) business days following notice by the
non-breaching Party.
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(b)
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Immediately upon notification or at any time
thereafter, either Party may terminate this Agreement in the event
that:
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(i)
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the other Party shall file any petition under any
bankruptcy, reorganization, insolvency or moratorium laws, or any
other law or laws for the relief of or in relation to the relief of
debtors;
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(ii)
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there shall be filed against the other Party any
involuntary petition under any bankruptcy statute or a receiver or
trustee shall be appointed to take possession of all or substantial
part of the assets of the Party which has not been dismissed or
terminated within sixty (60) days of the date of such filing or
appointment;
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(iii)
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the other Party shall make a general assignment
for the benefit of creditors or shall become unable or admit in
writing its inability to meet its obligations as they
mature;
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(iv)
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the other Party shall institute any proceedings
for liquidation or the winding up of its business other than for
purposes of reorganization, consolidation or merger; or
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(v)
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the other Party’s financial condition shall
become such as to endanger completion of its performance in
accordance with the terms and conditions of this
Agreement.
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(c)
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By Distributor upon fifteen (15) days written
notice if Company is acquired in whole or in substantial part by,
or is merged with, a third party, or sells all or substantially all
of its assets to a third party.
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(d)
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By Company upon sixty (60) days’ written
notice for any reason.
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(e)
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Effect of Termination : In the event of expiration or termination of
this Agreement, Distributor shall be allowed a one time right to
order an amount of Products, upon the terms and conditions valid at
the date of termination and in line with market prices and
conditions at such time, sufficient to fulfill all purchase orders
outstanding as of the date of such termination.
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Statutory and Regulatory
Compliance: Distributor and Company shall comply with all
applicable laws and regulations governing their activities related
to this Agreement, including without limitation, laws related to
fraud and abuse, false claims and prohibition on
kickbacks.
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Confidentiality:
Each Party shall take all reasonable
actions and do all things reasonably necessary to ensure that any
information contained in this Agreement, as well as any information
relating to this Agreement or is acquired by virtue of this
Agreement (in either case, “ Confidential Information
”) shall not be disclosed or used for purposes outside this
Agreement; provided, however, that the foregoing shall not apply to
information that: (i) is provided to the disclosing Party’s
attorneys or accountants (who will agree to be bound by
confidentiality restrictions no less restrictive than are set forth
herein); (ii) is requested by a legal or regulatory authority;
(iii) is provided by the disclosing Party to its Affiliate
(provided such Affiliate is subject to the confidentiality
restrictions herein), and for the purpose of this section “
Affiliate ” shall mean a person or another entity
which directly or indirectly controls, is controlled by, or is
under the common control with that entity; (iv) a Party can show it
knew prior to disclosure without obligation of confidentiality; (v)
is or becomes public knowledge through no fault said Party; (vi) is
lawfully disclosed by a third party under no obligation of
confidentiality; or (vii) is required to be disclosed pursuant to
court order or by law; provided that the non-disclosing
Party
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