PRODUCTION LICENSE
AGREEMENT
This Production License Agreement ("
Agreement ") is made as of this 31 st day
of October, 2008, by and between Rogers Induflex NV (which will be
renamed “Induflex NV” shortly after the acquisition of
its shares as of the date hereof, as described below), a Belgian
corporation having its registered office at Ottergemsesteenweg 799,
9000 Ghent, Belgium and registered with the Crossroads Bank of
Enterprises under enterprise number 0807.149.569 (the “
Company ”), and Rogers Corporation, a Massachusetts
corporation (“ Rogers ”).
WHEREAS , pursuant to that certain Stock Purchase
Agreement, of even date herewith (the “ Stock Purchase
Agreement ”), Induflex Holding NV (“ Holding
”) has agreed to purchase from Rogers all of the issued and
outstanding shares of capital stock of the Company;
WHEREAS , the Company has developed certain methodology
relating to the design, development and manufacture of multilayer
laminates comprised of layers of any of the following products:
Mylar, Tedlar and adhesives used in insulation of bus bars
currently used by the Company to manufacture the products set out
on Exhibit A hereto (collectively, “ Busbar
Insulation Laminates ”), as manufactured by Rogers
and/or its Affiliates (as such term is defined herein) and was
until the date of the Stock Purchase Agreement the owner of certain
expertise, Know-how (as defined herein) and trade secrets
pertaining thereto;
WHEREAS , Rogers owned certain technology for the
production of Busbar Insulation Laminates prior to its acquisition
of the Company, and desires to retain the right to use that
technology for its own use (but not transfer it to others), and
further desires to eliminate any question as to its legal right to
do so; and
WHEREAS , as a part of Roger’s sale of the Company
to Holding, Rogers is requiring that the Company grant to Rogers
and its Affiliates a non-exclusive license to use certain
Intellectual Property (as defined herein) of the Company in order
to manufacture the Busbar Insulation Laminates under certain
circumstances, upon the terms and conditions set forth herein, to
insure that Rogers has such license to use even though it did not
retain such rights from prior to its acquisition of the
Company;
NOW, THEREFORE
, for good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS
. In this Agreement, the following words and expressions
shall have the meanings set opposite each respectively:
“Affiliate” means (a) an
entity which is controlled by, controls, or is under common control
with another entity, (b) an entity owning a majority of the voting
securities of another entity, and (c) an entity a majority of whose
voting securities is owned by the other entity.
“Busbar Insulation
Laminates” has the meaning set forth in the
recitals.
“Confidential
Information” has the meaning set forth in Section
5.1.
“Disclosing Party” has the meaning
set forth in Section 5.1.
“Know-how” means the
knowledge and experience of the Company, its employees and
contractors, relating to and which may be relevant to the
manufacture of the Busbar Insulation Laminates, including without
limitation any and all processes, documents, reports, operating and
testing procedures, technical data, know-how, confidential
information, instructions, formulae, blueprints, and other
knowledge and information, whether similar or dissimilar to any of
the foregoing, and whether or not in any way recorded, and
howsoever recorded, relating or relevant to the development,
manufacture, and/or use of the Busbar Insulation
Laminates.
"Intellectual Property" means any and
all Know-how, inventions, patents, registered and unregistered
designs, utility models, prototypes, copyrights, design rights,
technical knowledge, trade secrets, methods of manufacture, plans,
drawings, sketches, blueprints, specifications, data and any other
commercial property rights and where applicable, any applications
for any of the foregoing and the right to apply therefor in any
part of the world insofar as the same may be used or usable herein
for the production of the Busbar Insulation Laminates, owned by the
Company that are being acquired by Holding in connection with the
Stock Purchase Agreement .
“Qualified Supplier”
means a supplier of Busbar Insulation Laminates which has
previously been qualified by Rogers or its Affiliate as
such.
“Receiving Party” has the meaning set
forth in Section 5.1.
“Stock Purchase Agreement” has the
meaning set forth in the recitals.
2. LICENSE
. Subject to the terms and conditions of this Agreement,
the Company hereby grants to Rogers and its Affiliates, during the
term hereof, a non-exclusive, irrevocable, worldwide,
fully paid, royalty free, non-transferable license to use any and
all Intellectual Property (specifically including Know-how)
belonging to the Company for the manufacture, by Rogers and its
Affiliates, solely for Rogers and/or its Affiliates’ own use,
of the Busbar Insulation Laminates. The Company agrees
that upon the expiration of the term hereof, the Company
nevertheless shall continue to allow Rogers and/or its Affiliates
to use the Intellectual Property solely for Rogers and/or its
Affiliates’ own use to manufacture products incorporating the
Busbar Insulation Laminates. Rogers agrees that all
improvements, developments, new inventions, additions, new products
or processes involving the Busbar Insulation Laminates and new
technology which may be conceived, devised or developed by the
Company after the date hereof shall belong to, be owned by and
inure to the benefit of the Company.
3. ACCESS TO RAW
MATERIALS . For the first three (3) years of the
term hereof, in the event of a shutdown in the Company’s
production of Busbar Insulation Laminates, whether or not caused by
any fault of the Company, Rogers and its Affiliates shall have the
right to purchase from the Company, at cost, upon request from
Rogers or such Affiliate, such amount of any raw material(s) used
in the manufacture of the Busbar Insulation Laminates as, in
Rogers’ view, may be necessary to exercise its rights
hereunder during the period of such
shutdown. Immediately upon any such request
from Rogers, the Company shall inform Rogers in writing
the extent of its then existing supply of such raw
material, and shall deliver the requested amounts to Rogers, at
Rogers’ sole expense, in the manner and at the time(s)
required by Rogers.
4. REPRESENTATIONS AND
WARRANTIES; LIMITATION ON LIABILITY .
4.1. Each party represents
and warrants to the other, as of the date hereof, that it has the
requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder.
4.2. EXCEPT AS EXPRESSLY
SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SUBJECT MATTER HEREOF AND EACH PARTY
EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
4.3. In no event shall
eithe
