Exhibit10.1 ASSETPURCHASE AGREEMENT

 

This ASSET PURCHASE AGREEMENT (the “Agreement”), made as of this 23rd day of March, 2009, by and among MTI Global Inc., a corporation organized under the laws of the province of Ontario, Canada (“MTI”) with offices at 7381 Pacific Circle, Mississauga, Ontario, Canada L5T 2A4, MTI Specialty Silicones Inc., a Delaware corporation (“MTI Silicones”) with offices at 8020 Whitepine Road, Richmond VA 23237, MTI Leewood GmbH, a corporation organized under the laws of Germany with offices at Walter-Geerdes-Straβe 22, 28307, D-28307 Bremen, Germany (“MTI Leewood Germany”) (MTI, MTI Silicones and MTI Leewood Germany are each referred to herein, individually, as a “Seller” and, collectively, as the “Sellers”), Rogers Corporation, a Massachusetts corporation with offices at One Technology Drive, Rogers, CT 06263 (“Rogers”), as well as such subsidiary or subsidiaries of Rogers which Rogers prior to the Closing may designate to acquire some or all of the Acquired Assets directly from Sellers pursuant hereto (collectively, “Buyer”).

1.01.  “Accounts Receivable” means cash, cash equivalents, notes receivable, investment securities and receivables of a Seller derived from sales of Products in the ordinary course of Sellers’ business, as well as the benefit of all security agreements and arrangements to the extent securing such receivables, and any accounts and notes corresponding to such receivables.

1.04.  “Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with that Person. For the purposes of this definition, “control” (including with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through ownership of voting securities or by contract or otherwise.

1.08.  “Benefit Plan” means any Plan established by Seller or any predecessor or Affiliate of Seller, existing at the Closing Date or prior thereto, to which Seller contributes or has contributed, and under which any employee or former employee of Seller or any beneficiary thereof is covered, is eligible for coverage or has benefit rights.

1.09.  “Business” means the Richmond Business and the Leewood Business, collectively, including without limitation any and all business conducted with the Acquired Assets, along with all research, development, marketing and sales of the Products, and of services related to the Products.

1.16.  “Claim” shall mean any and all administrative or judicial actions, suits, arbitrations, orders, claims, notices of violations, investigations, complaints, proceedings, or other similar actions, whether criminal or civil.  In the context of the Section 8.02 hereof, a “Claim” shall mean a claim for indemnification hereunder.

1.26.  “Environmental Claim” means any Claim pursuant to any applicable Environmental Law by any Person (including but not limited to any Governmental or Regulatory Authority, private person and citizens’ group) based upon, alleging, asserting, or claiming any actual or potential (a) violation of or Liability under any Environmental Law, (b) violation of any Environmental Permit, or (c) Liability for investigatory costs, cleanup costs, removal costs, remedial costs, response costs, natural resource Losses, property damage, personal injury, fines, or penalties arising out of, based on, resulting from, or related to the presence, release, or threatened release into the Environment, of any Hazardous Materials at any location, including but not limited to any off-Site location to which Hazardous Materials or materials containing Hazardous Materials were sent for handling, storage, treatment, or disposal.

1.27.  “Environmental Clean-up Site” means any location which is listed on the National Priorities List (as presented on the Environmental Protection Agency website at http://www.epa.gov/superfund/sites/npl/npl.htm, or any other successor link created after the Closing), the Comprehensive Environmental Response, Compensation and Liability Information System, or on any similar state list of sites requiring investigation or cleanup, or which is the subject of any pending (or, to Sellers’ Knowledge, threatened) action, suit, proceeding, or investigation related to or arising from any alleged violation of any Environmental Law, or at which there has been a release (or, to Sellers’ Knowledge, a threatened or suspected release) of a Hazardous Material.

1.28.  “Environmental Law” means all applicable federal, state, local and foreign environmental, health and safety Laws, common law orders, decrees, judgments, codes and ordinances and all rules and regulations promulgated thereunder, civil or criminal, including, without limitation, Laws relating to emissions, discharges, releases or threatened releases of Hazardous Materials, pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, pollutants, contaminants, chemicals, or industrial, solid, toxic or hazardous substances or wastes.

1.29.  “Environmental Permit” means any federal, state, local, provincial, or foreign permits, licenses, approvals, consents or authorizations required by any Governmental or Regulatory Authority under or in connection with any Environmental Law and includes any and all orders, consent orders or binding agreements issued or entered into by a Governmental or Regulatory Authority under any applicable Environmental Law.

1.37.  “GAAP” refers to “Generally Accepted Accounting Principles,” and shall mean (a) when used in reference to the preparation of a statement, that such statement has been prepared in accordance with generally accepted accounting principles in Canada, consistently applied, except that no footnotes or other required disclosures otherwise required under generally accepted accounting principles in Canada necessarily need to have been provided, and (b) when used in reference to a specific calculation or line item of a statement, that such calculation or line item has been prepared or valued in accordance with generally accepted accounting principles in Canada, consistently applied, provided however, that interim statements, and calculations and line items prepared for interim statements, shall be subject to normal adjustments in accordance with generally accepted accounting principles in Canada, consistently applied.

1.39.  “Governmental or Regulatory Authority” means any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States, any foreign country or any domestic or foreign state, county, city or other political subdivision, and shall include, without limitation, the Securities and Exchange Commission,  the Internal Revenue Service, and the various state and foreign securities regulators and taxation authorities.

1.43.  “Hazardous Material” means (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation and transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls (PCBs); (b) any chemicals, materials, substances or wastes which are now defined as or included in the definition of “hazardous substances”, “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants” or words of similar import, under any Environmental Law; and (c) any other chemical, material, substance or waste, exposure to which is now prohibited, limited or regulated by any Governmental or Regulatory Authority under any Environmental Law, including without limitation crystalline silica.

1.44.  “Indebtedness” of any Person means all obligations of such Person (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar instruments, (c) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of the Business), (d) under capital leases, and (e) in the nature of guarantees of the obligations described in clauses (a) through (d) above of any other Person.

1.48.  “Intellectual Property” shall mean any or all of the following, and all rights, and all title and interest therein or associated therewith:  (a) United States, Canadian, German and foreign patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) inventions (whether or not patentable), invention disclosures, invention improvements, trade secrets (including, without limitation, [*]), computer software programs (in both source code and object code form), technology, technical data and customer lists (including contact information for such customers), tangible or intangible proprietary information, and all documentation relating to any of the foregoing; (c) copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; (d) industrial designs and any registrations and applications therefor owned by a Seller; (e) trade names, including, without limitation, registered trademarks and common law trademarks and service marks, logos, trademark and service mark registrations and applications therefor throughout the world; (f) all databases and data collections and all rights therein throughout the world; (g) moral and economic rights specifically designated for authors or inventors, however denominated, throughout the world; and (h)  any similar or equivalent rights to any of the foregoing anywhere in the world.

1.50.  “Knowledge” means the actual knowledge of a Person with respect to any fact, event or condition, as well as the knowledge that such party reasonably would be expected to have acquired in the ordinary course of the Business and the prudent management of its own affairs; including without limitation that which could be acquired by making reasonable inquiry (including, in the case of Sellers, of the Key Employees).  Such definition shall include any form of such term, such as knows, known, etc., whether or not capitalized, as used in this Agreement with respect to a party’s awareness of the presence or absence of a fact, event or condition.

1.51.  “Law” and “Laws” means all laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law of the United States, any foreign country or any domestic or foreign state, county, city or other political subdivision or of any Governmental or Regulatory Authority.

1.53.  “Leewood Business” means the business conducted by MTI Leewood Germany within the twelve (12) month period immediately prior to the Closing, including, without limitation, the development, manufacture, sale and/or distribution of finished and semi-finished elastomeric products, as conducted by MTI Leewood Germany at its facilities in Bremen, Germany, but excluding the Retained Business.

1.54.  “Liability” or “Liabilities” means all Indebtedness, obligations and other liabilities of a Person (whether absolute, accrued, contingent (or based upon any contingency), fixed or otherwise, or whether due or to become due).

1.55.  “License” means any license, permit, certificate of authority, authorization, approvals, registration, franchise and similar consent granted or issued by any Governmental or Regulatory Authority.

1.56.  “Liens” means claims, pledges, security interests, mortgages, easements, covenants of record, liens, charges, restrictions, consignments, or other encumbrances of whatever nature, whether created by statute, contract, process of Law or otherwise, and whether or not recorded or otherwise perfected.

1.57.  “Loss” means any and all damages (including reasonably foreseeable incidental and consequential damages proximately related thereto, but not including punitive damages or exemplary damages), fines, fees, penalties, deficiencies, diminution in value of investment, losses and expenses, including without limitation, interest, reasonable expenses of investigation, court costs, reasonable fees and expenses of attorneys, accountants and other experts or other expenses of litigation or other proceedings or of any Claim, default or assessment, but specifically excluding (i) any costs incurred by or allocated to an Indemnified Party with respect to time spent by employees of the Indemnified Party or any of its Affiliates, and (ii) a decrease in value of an Acquired Asset due to factors or circumstances which would have had no significant adverse effect upon the value thereof had they occurred as of the Closing Date, but rather are caused primarily by the different use to which such Acquired Asset is put thereafter.

1.58.  “Material Adverse Effect” means any change or effect of any event or circumstance which, individually or when taken together with all other changes, effects, events or circumstances, is or could reasonably be expected to be materially adverse to the assets, financial condition, business or results of operation of a Person; excluding, however, any adverse effect due to changes, after the date of this Agreement, relating to or arising out of (a) conditions affecting the United States, Germany or worldwide economy generally or the general market addressed by such Person’s products and/or services, (b) any natural disaster, national emergency, war or act of terrorism or international political or social conditions, (c) any adverse change or effect arising from the negotiation or public announcement of this Agreement, (d) any failure of the Richmond Business or the Leewood Business to achieve any financial, sales or other projection or forecast, (e) any breach by Buyer or any of its Affiliates of the Confidentiality Agreement, or (f) any change in GAAP or generally accepted accounting principles in the United States, Canada or Germany (or any change in interpretation thereof).

1.59.  “MTI Leewood Sweden” means Leewood Elastomer AB, a corporation organized under the laws of Sweden with offices at Fräsarvägen 30, S-142 50, Skogas, Sweden.

1.61.  “Operative Documents” shall mean any and all certificates, instruments, agreements  and other documents between or among some or all of the parties hereto, or their employees, which are required to be executed and/or delivered pursuant to this Agreement.

1.65.  “Permitted Exceptions” means (a) liens for general real estate Taxes not yet due and payable; (b) liens or encumbrances of a definite or ascertainable amount and which will be paid and discharged in full by or for Sellers at or prior to the Closing; (c) with respect to real property, all zoning ordinances, building codes, and all easements, restrictions, and covenants of record and other liens or encumbrances that do not materially impair the use of such real property for its current use, nor materially diminish its market value; (d) statutory liens arising in the ordinary course of business with respect to amounts not yet overdue for a period of 60 days or in respect of amounts being contested in good faith; and (e) restrictions placed on any Seller Intellectual Property licensed to a Seller by any Third Party and disclosed on Schedule 6.20(g).

1.66.  “Person” means any natural person, corporation, general or limited partnership, limited liability company or partnership, proprietorship, other business organization, estate, trust, union, association or governmental or regulatory authority.

1.67.  “Plan” means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workmen’s compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, whether written or oral, including, but not limited to, any “employee benefit plan” within the meaning of Section 3(3) of ERISA.

1.68.  “Products” shall mean those products and services produced or sold by the Sellers in connection with the Business, or otherwise provided to the Sellers for sale in connection with the Business, together with all intellectual property rights associated therewith and the goodwill and business appurtenant thereto, except and solely to the extent listed as an Excluded Asset.

1.70.  “Registered Intellectual Property” shall mean (a) all Intellectual Property that is subject to any United States or foreign:  (i) patents and patent applications (including provisional applications); (ii) registered trademarks, applications to register trademarks, or intent-to-use applications to register trademarks; (iii) registered copyrights and applications to register copyrights; and (b) any other Intellectual Property that is the subject of an application, certificate, filing, registration, or other similar document issued by, filed with, or recorded by any state, government or other public legal authority.

1.71.  “Release” shall mean any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching, dumping or depositing.

1.73.  “Richmond Business” means the business conducted by MTI Silicones within the twelve (12) month period immediately prior to the Closing, including, without limitation, the development, manufacture and sale of foam, sponge and solid silicone materials and other products by MTI Silicones at its Richmond, Virginia facility in bun stock form, rolls or sheets, with conversion capabilities such as die cutting, slitting, adhesive application and assembly, and specifically including the manufacture of silicone foam applied to fabric for [*], but excluding the Retained Business.

1.78.  “Seller Intellectual Property” shall mean any Intellectual Property (excluding any Commercial Software Rights) that is owned by Seller or to which Seller has rights of use, and which is either necessary for or used in, or as of the Closing Date was developed or being developed primarily for or held primarily in connection with, the Business.  For the avoidance of doubt, Seller Intellectual Property excludes the [*] and any rights (trademark or otherwise) with respect to the names [*] but includes rights to the [*], and includes all Seller Registered Intellectual Property, except and solely to the extent listed as an Excluded Asset.

1.79.  “Seller Registered Intellectual Property” shall mean all of the Registered Intellectual Property (excluding, for the avoidance of doubt, any Commercial Software Rights) that is owned by, or filed in the name of, a Seller, which is either necessary for or used in, or as of the Closing Date was developed or being developed primarily for or held primarily in connection with, the Business, except and solely to the extent listed as an Excluded Asset by Sellers.  For the avoidance of doubt, Seller Registered Intellectual Property excludes any rights (trademark or otherwise) with respect to the names [*].

1.80.  “Site” means any of the real properties currently or previously owned, leased or operated by Seller or any past or present subsidiary of Seller which have been used in connection with the Business or any portion thereof.

1.81.  “Soft Furnishings Business” means the business of assembling MTI Leewood Germany’s fabricated [*] product under any existing contract including, without limitation, those certain contracts with [*], and any successor contract or relationship with respect thereto. For the avoidance of doubt, assets (tangible or intangible) of the Soft Furnishings Business shall only refer to those assets used exclusively in the assembly of the [*] or inventory held for such assembly, but shall not include assets used in the manufacture or sale of any of the component parts so assembled, nor raw materials or inventory not exclusively held for such assembly, nor any tangible and intangible assets of MTI Leewood Germany which are used in the assembly of the [*] product but have other uses or applications within the Business.

1.82.      “Tax” or “Taxes” means any and all federal, state, local or foreign taxes, fees, levies, duties, tariffs, imposts and other governmental charges of any nature (together with any interest, penalties and additions to tax) including, without limitation, taxes or other charges on, or with respect to, income, gross receipts, property, sales, use, capital or net worth.

 

2.01.      Purchase and Sale.  Upon the terms and subject to the conditions set forth in this Agreement, and in reliance on the representations and warranties of Sellers contained herein, at the Closing (as herein defined), Sellers each shall sell, convey, transfer, assign and deliver, and shall cause their respective Affiliates to sell, transfer, assign and deliver to Buyer, and Buyer shall purchase and assume from Sellers and such Affiliates of any of them (in each case except as set forth in Section 2.02 below), for the consideration hereinafter set forth herein and free and clear of all Liens and Third Party Claims (whether private, governmental or otherwise) whatsoever, other than Permitted Exceptions, good and marketable title to all tangible fixed assets and intangible assets which are either are used in, are necessary for, or as of December 31, 2008 were located at the facilities and/or offices of, the Business  (including any off-site locations such as temporary storage sites, including without limitation the assets held in the facility of [*] in Richmond, Virginia), other than Excluded Assets (collectively, the “Acquired Assets”); including, without limitation, the following:

 

(a)          Those fixed assets of the Business  (the “Fixed Assets”), including without limitation the machinery and equipment, testing devices, computer equipment (hardware, software, peripherals, laptops, PDAs, etc.), furniture, fixtures, any tooling, office equipment, signage, company owned vehicles and any other types of fixed assets  including, but not limited to, those items listed and described on Schedule 2.01(a) hereto, which Schedule shall be revised by the Sellers as of the Closing Date to correctly note any additions to and deletions from the Fixed Assets, if any, which may have occurred between the date hereof and the Closing Date, and to describe any material impact upon the operations of the Business caused thereby (provided that Sellers’ Liability therefor, to the extent provided in this Agreement, shall not be diminished by the fact that such changes have been disclosed).

 

(b)          All of Sellers’ rights, title and interest in, to and under all Contracts of or relating to the Business, as well as works in process and bids and proposals of Sellers that are related to the conduct of the Business including, without limitation, any and all deposits or prepayments thereunder, together with all necessary consents to assignment; provided that with respect to the contracts contemplating future work thereunder, Buyer may either accept the necessary consents thereto or separately negotiate an agreement with the other party or parties thereto prior to Closing. Such assigned or separately negotiated contracts are referred to collectively hereunder as the “Assumed Contracts”. Notwithstanding the foregoing sentence, however, Buyer’s acquisition of any rights, title or interest in any Contract, other than an Assumed Liability, shall not be deemed a consent or an agreement by Buyer to become a party thereto or otherwise to assume liability thereunder, unless such Contract is specified as an Assumed Contract on Schedule 6.19 hereto.

In order to effect the foregoing, Sellers shall execute and deliver to Buyer at the Closing a Bill of Sale in the form of Exhibit B hereto.  Except as otherwise set forth or disclosed herein, all the Acquired Assets are, and at the Closing Date will be, located at the facilities of MTI Silicones in Richmond, Virginia, and of MTI Leewood Germany in Bremen, Germany, respectively.

(a)           All tangible and intangible assets located at facilities of MTI Silicones in Richmond, Virginia, of MTI Leewood Germany in Bremen, Germany, respectively, on December 31, 2008 primarily relating to [*] (iii) the business conducted by MTI Silicones primarily at its facilities in Milton, Florida (other than the [*]), internally referred to as the Mold-Ex Division or Milton Division, (iv) Sterne SARL, (v) the portion of the Leewood Business conducted by MTI Leewood Sweden (which shall be subject to the Transition Services Agreement), and (vi) those specific businesses and assets of Sellers which are listed or specifically described on Schedule 2.02 (a) hereto (collectively, the “Retained Business”).

3.01.      Amount and Payment of the Purchase Price.  In consideration for the Acquired Assets, Rogers shall pay to the Sellers the aggregate amount of Seven Million Four Hundred Thousand Dollars (US$7,400,000.00) (the “Purchase Price”), payable in lawful currency of the United States as follows:

 

(a)           Three Million Five Hundred Thousand Dollars (US$3,500,000.00) with respect to the Richmond Business, which shall be paid by wire transfer to MTI Silicones on the Closing Date to the account(s) specified by MTI Silicones in writing;

 

(b)           Three Million Nine Hundred Thousand Dollars (US$3,900,000.00) with respect to the Leewood Business, which shall be paid by wire transfer to MTI Leewood Germany on the Closing Date to the account(s) specified by MTI Leewood Germany in writing; and

 

(b)          Any claims, acts, errors, omissions, Losses, costs or Liabilities with respect to any Seller, the Acquired Assets, such Seller’s trade practices or the Business as conducted by such Seller arising or accruing or based on the operation of the Business prior to the Closing Date or otherwise based on any acts or omissions of a Seller made at any time thereafter including, but not limited to, unpaid salary, products liability, environmental, tort, antitrust, workers’ compensation liability, employment practices liability, unfair competition, business practices liability and similar claims.

(a)          A Bill of Sale conveying good and marketable title in the Acquired Assets to Buyer in accordance with this Agreement, free and clear of all Liens (other than Permitted Exceptions), in substantially the form attached as Exhibit B hereto, executed by such Seller.

(ii)           Effect of Class B Schedule Updates.  In the event that the Sellers deliver any Class B Schedule Updates pursuant to Section 5.06(c)(i)(B), then (A) such Class B Schedule Updates shall be deemed to be attached to the Disclosure Schedule and become a part of the Disclosure Schedule, (B) all references to the Disclosure Schedule shall refer to the Disclosure Schedule as updated by the Class B Schedule Updates, including, without limitation, for purposes of determining whether or not a Buyer Indemnified Party is entitled to indemnification under Section 8.02, and the amount of any such indemnification, and (C) such Class B Schedule Updates shall not be given effect for determining whether the conditions to Closing set forth in Section 5.04 have been satisfied.

6.03.  Authority and Qualification.  Each Seller has full power and authority, and the legal capacity, to execute and deliver this Agreement and the Operative Documents which it is required to execute and/or deliver, and to perform its obligations hereunder and thereunder, all of which have been duly authorized by all proper and necessary action; and has duly executed and delivered this Agreement and such Operative Documents, and this Agreement and such Operative Documents constitute legal, valid and binding obligations of such Seller, enforceable in accordance with its and their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

Each Seller is duly qualified, licensed or admitted to do business and is in good standing in each jurisdiction in which the ownership, use or leasing of its assets (including, without limitation, the Acquired Assets) and other properties, or the conduct or nature of the Business, makes such qualification, licensing or admission necessary, except for such failures to be so qualified, licensed or admitted and in good standing which, individually or in the aggregate, (i) are not having and could not reasonably be expected to have a Material Adverse Effect, and (ii) could not reasonably be expected to have a material adverse effect on the validity or enforceability of this Agreement or any of the Operative Documents or on the ability of a Seller to perform its obligations hereunder or thereunder.

Schedule 6.03 of the Disclosure Schedule lists each business license and permit held by a Seller that is material to the conduct of the Business by such Seller (collectively, the “Permits”), are true and complete copies of which have been delivered to Buyer.  Each Permit is valid, binding and in full force and effect, and no Seller has received any notice that it is in default (or with the giving of notice or lapse of time or both, would be in default) under any applicable Permit or that any such Permit is subject to being revoked.

6.04.  Compliance.  Neither the execution and delivery of this Agreement and the Operative Documents, nor the consummation of the transactions contemplated hereby or thereby, assuming that a Seller obtains any consents, approvals and actions, makes any filings and gives any notices as are described in Schedule 6.11 of the Disclosure Schedule, will conflict with or result in a breach under (i) such Seller’s Certificate of Incorporation, Bylaws or other organizational documents, (ii) except as described on Schedule 6.11 of the Disclosure Schedule, the terms, conditions or provisions of any material Contract to which a Seller is a party and that relates to the Business or by which such Seller or any of the Acquired Assets are bound, or will give rise to a right of termination to any party thereto, (iii) any order, injunction or decree of any court or Governmental or Regulatory Authority, or (iv) any applicable Law to which a Seller is bound.

6.05.  Equipment, Inventory and other Corporate Assets.  Except as set forth on Schedule 6.05 of the Disclosure Schedule, the Acquired Assets comprise all of the assets (including all Licenses and agreements) that are  used in the operation of and necessary to permit the Buyer to operate the Business.  Each Seller has delivered to Buyer true and correct lists of all Acquired Assets in electronic, searchable format.  Except as set forth on Schedule 6.05, all of the Fixed Assets and inventory of each Seller used in the Business are, as of the date of this Agreement, in good operating condition and repair (ordinary wear and tear excepted), are performing satisfactorily, and are available for immediate use as and to the extent currently used in the conduct of the Business.  Sellers have provided Buyer with a true and complete list of inventory of each Seller located at any distributor, converter or other value-added reseller (or any Person acting in a similar capacity) and/or original equipment manufacturer to the Richmond Business and the Leewood Business. Attached as Schedule 2.01(a) is a list of each Seller’s Fixed Assets used in the Business, all of which are included in the Acquired Assets. No officer, director, stockholder, partner or employee of any Seller or, to a Seller’s Knowledge, any other Person, owns or has possession of any of the Acquired Assets.

The information systems (including all computer hardware and software) and technology (including but not limited to, information technology, embedded systems, or any other electro-mechanical or processor-based system) owned, licensed or otherwise used by each Seller in the Business are suitable and adequate for the purposes for which they are being used by such Seller consistent with common business practices applicable to the Business.

6.06.  Debts, Obligations and Liabilities.  Aside from (i) trade payables incurred prior to the date of the Financial Statements and reflected thereon, (ii) trade payables incurred subsequent thereto in the ordinary course of the Business as conducted by a Seller, (iii) normal employee compensation and benefit obligations incurred during the regular pay period in which the Closing Date occurs, (iv) the obligations of a Seller pursuant to any Lease obligation disclosed on Schedule 6.12 of the Disclosure Schedule, (v) any Assumed Contract disclosed on Schedule 6.19 of the Disclosure Schedule and not listed as an Excluded Liability in Section 4.03 hereto, and (vi) the Indebtedness and Liabilities disclosed on Schedule 6.06 of the Disclosure Schedules (which shall be satisfied on or prior to the Closing Date), no Seller, as of the date hereof, is subject to any Indebtedness, obligation, commitment or Liability to any Person in connection with the Business. Without limiting the generality of the foregoing, all debts owing from any Seller to [*] with respect to any Claims asserted in the past by [*] will have been completely repaid as of the Closing.

6.07.  Ownership of Assets; Absence of Liens; Personal Property Leases.   Each Seller is in possession of and has good and marketable title to, or has valid leasehold interests in, or valid rights under contract to use, all of the Acquired Assets owned and used by it in connection with the Business, subject to no Liens, except for Liens shown and stated on Schedule 6.07 of the Disclosure Schedule and Permitted Exceptions.  Schedule 6.07 of the Disclosure Schedule accurately sets forth and states the name and address of each Person who holds any Lien on any of the Acquired Assets, a description of the particular Acquired Asset on which such Lien is held, and the current balance of the debt owed to such Person which is secured by such Lien.

Set forth on Schedule 6.07 of the Disclosure Schedule is a true and correct list of all leases on Acquired Assets (other than real property) to which a Seller is a party and all of the accrued and unpaid obligations or other obligations of such Seller on or with respect to such leases as of the date hereof.  Each Seller has delivered to Buyer true and correct copies of all such leases.  All of such leases are in full force and effect and, to a Seller’s Knowledge, constitute legal, valid and binding obligations of the respective parties thereto; there currently are not any defaults thereunder by a Seller or, to such Seller’s Knowledge, any other party; and to a Seller’s Knowledge, no event has occurred which constitutes, or which with notice, lapse of time or both would constitute a default thereunder.  The validity, continuation and effectiveness of all such leases (except for any which Buyer included as an Excluded Asset) under the current terms thereof will not be materially adversely affected by the transactions contemplated by this Agreement.

6.08.  No Default.   No Seller is in default under any Law or regulation or under any order of any Governmental or Regulatory Authority having jurisdiction over such Seller in connection with the Business or the Acquired Assets, and there are no material claims, actions, suits or proceedings pending or, to a Seller’s Knowledge, threatened against or affecting any Seller in connection with the Business or any of the Acquired Assets, at law or in equity, or before or by any Governmental or Regulatory Authority having jurisdiction over a Seller that relates to the Business or any of the Acquired Assets and no notice of any Claim, action, suit or proceeding, whether pending or threatened, has been received by a Seller in connection with the Business or with respect to the Acquired Assets, except as otherwise specifically disclosed on Schedule 6.08 of the Disclosure Schedule.  Except as set forth on Schedule 6.08 of the Disclosure Schedule, each Seller has conducted and is conducting the Business and has maintained and is maintaining the Acquired Assets and the Leased Premises in compliance in all material respects with the requirements, standards, criteria and conditions set forth in applicable federal, state and local statutes, ordinances, permits, Licenses, orders, approvals, variances, rules and regulations and is not in violation of any of the foregoing which would, individually or in the aggregate, have a Material Adverse Effect on the Business.

6.09.  Restrictions on Business Activities.  Except as set forth in Schedule 6.09 of the Disclosure Schedule, and in confidentiality agreements and non-disclosure agreements entered into in the ordinary course of the Business as conducted by a Seller consistent with past practices, (i) there is no agreement (non-compete or otherwise), judgment, injunction, order or decree to which a Seller or any Affiliate thereof are a party or otherwise binding upon a Seller or any such Affiliate which has had or could be reasonably expected to have, with or without due notice or lapse of time or both, the effect of prohibiting or limiting the conduct of the Business by a Seller in any market or location, and (ii) except as set forth on Schedule 6.09 of the Disclosure Schedule, neither any Seller nor any Affiliate thereof has entered into any agreement under which such Seller is restricted from selling or otherwise distributing any of the Products to any class of customers, in any geographic area, during any period of time or in any segment of the market in the conduct of the Business.

6.10.  Taxes and Audits. Except as disclosed in Schedule 6.10 of the Disclosure Schedule, (i) each Seller has duly and timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by it in connection with the Business and all such filed Tax Returns are true, complete and accurate in all material respects; (ii) each Seller has paid all Taxes required to be paid by it in connection with the Business, including Taxes that such Seller is obligated to withhold from amounts owing to any employee, creditor or other Third Party; (iii) there are no pending or, to the Knowledge of a Seller, threatened audits, examinations, investigations or other proceedings in respect to Taxes or Tax Matters relating to a Seller in its conduct of the Business or otherwise affecting the Acquired Assets; (iv) there are no deficiencies or claims for any Taxes with respect to the Business, the Acquired Assets described herein or with respect to either of MTI Silicones or MTI Leewood Germany that have been proposed, asserted or assessed against a Seller; (v) there are no material Liens for Taxes against either of MTI Silicones or MTI Leewood Germany or upon the Acquired Assets, other than Liens for current Taxes not yet due and payable; (vi) no waiver or extension of the statute of limitations on, and no agreement for any extension of time with respect to, the assessment of any Taxes of, or relating to, a Seller in connection with the Business has been granted and is currently in effect; (vii) all Taxes required to be withheld, collected or deposited by or with respect to a Seller’s conduct of the Business have been timely withheld, collected or deposited, as the case may be, and, to the extent required, have been paid to the relevant taxing authority as of the date hereof; (viii) there is no request for information currently outstanding with respect to Taxes relating to either of MTI Silicones or MTI Leewood Germany or to the Business or the Acquired Assets; (ix) each Seller, in connection with its conduct of the Business, has disclosed on its Tax Returns all positions taken which could give rise to a “substantial understatement” within the meaning of Section 6662 of the Code or any equivalent applicable Law; (x) to a Seller’s Knowledge, there is no proposed adjustment, assessment or deficiency against either of MTI Silicones or MTI Leewood Germany or proposed reassessment of any property or property Tax imposed on an Acquired Asset owned by such Seller or other proposals that could increase the amount of any Tax to which such Seller would be subject (other than, for the sake of clarity, any reassessment which may result from the consummation of the transactions contemplated in this Agreement); and (xi) none of MTI Silicones or MTI Leewood Germany has been a party to any distribution within the three (3) years prior to the Closing that the parties to which treated as satisfying the requirements of Section 355 of the Code (or foreign equivalent).  Schedule 6.10 of the Disclosure Schedule also sets forth the U.S. taxpayer identification (or foreign equivalent) number of each Seller.

6.11.  Approval of Third Parties.  Except for such consents or approvals which have been or will be obtained and such notices as have been or will be given as listed on Schedule 6.11 of the Disclosure Schedule, no consent, approval or action of, filing with or notice to any Governmental or Regulatory Authority on the part of a Seller, or the consent or approval of any other Person, is required in connection with the execution, delivery and performance of this Agreement or any of the Operative Documents to which any Seller is a party or the consummation of transactions contemplated hereby or thereby.  The copy of the Trust Agreement and the Compensation Agreement, in the form delivered to Sellers and appended to Schedule 6.11 of the Disclosure Schedule, represent true and complete copies of such documents (together with all amendments, modifications and/or supplements thereto), as each are amended and/or restated and in effect immediately prior to the Closing Date.  The provisions of this Section 6.11 are subject to the provisions of Section 10.07 herein.

6.12.  Real Property.  Schedule 6.12 of the Disclosure Schedule contains a complete and accurate legal description of the premises leased by each Seller and used in the Business (the “Leased Premises”), which constitutes a complete list of the real property leased or occupied by each Seller and used in the Business, and a true and complete copy of each lease (and all amendments, modifications or extensions) with respect to the Leased Premises (each, a “Lease”) has been provided to Buyer.  No Seller has or has had any owned real property that is or was used in the Business, and the only interests in real property any Seller has which is used in the Business are those leasehold interests created by a Lease.  Each Seller has good and valid leasehold interests in its respective Leased Premises, in each case, free and clear of all Liens, except for Permitted Exceptions and Liens set forth on Schedule 6.12.  No Seller has assigned, sublet, transferred, hypothecated or otherwise disposed of its interest in any Lease and no penalties are accrued against and unpaid by any Seller under any Lease.  No Seller is in default under a Lease, nor has any event occurred which constitutes, or which with notice, lapse of time or both could constitute a default thereunder. There are no disputes outstanding, nor oral agreements or forbearance programs in effect, with respect to any Lease or Leased Premises.  Each Seller has paid all rent due and owing through the date of this Agreement under an applicable Lease. All consents and approvals necessary in order for Buyer to assume such Leases have been obtained or will be obtained by each Seller at or before the Closing Date.

There is (a) no Claim, action or proceeding, actual or to a Seller’s Knowledge threatened, against any Seller or any Leased Premises by any Person which would materially affect the future use, occupancy or value of such property or any part thereof, and (b) to a Seller’s Knowledge, there are no condemnation or appropriation proceedings pending or threatened against any Leased Premises or improvements thereon. All of the buildings, fixtures and improvements used by each Seller in the Business are located on the applicable Leased Premises. All Leased Premises are supplied with utilities and other services necessary for the operation of the Business as currently conducted thereon by the applicable Seller.

6.13.  Employees.  Schedule 6.13 of the Disclosure Schedule contains a complete and accurate list of all employees (including but not limited to leased employees, if any) and their current titles in the Business, officers and consultants of each Seller retained in connection with the Business and the current annual base salary, potential bonuses and other compensation  paid to such Persons.  Within fourteen (14) days after the Closing, Sellers shall provide Buyer with a true, accurate and complete chart or other document describing, for the MTI Silicones employees, each such Person’s function in terms of the equipment currently used in the Business which he/she is qualified to operate. Except as specifically identified and disclosed in Schedule 6.13 of the Disclosure Schedule, all of the U.S. employees used in the Business are “at-will” employees (meaning that they can be terminated with no more than 30 days’ notice, without penalty) and no employment contract exists with any such employee. Schedule 6.13 also accurately states and represents the current unemployment insurance tax rate, or foreign equivalent, paid by each Seller to its employees.  Each Seller has complied in all material respects with, and is not in violation of, any Laws, rules or regulations respecting employment or employment practices, including, without limitation, those dealing with employment discrimination and occupational health and safety laws (including, without limitation, OSHA and any foreign equivalent), United States and foreign federal and state income tax laws and United States or foreign unemployment and social security withholding laws.

Except as described on Schedule 6.22, there are no material controversies or pending claims for compensation, reimbursement or Losses between a Seller, on the one hand, and any current or former employee or consultant of such Seller listed on Schedule 6.13, on the other hand. No employee of a Seller listed on Schedule 6.13 is presently a member of a collective bargaining unit or party to a collective bargaining agreement or similar labor Contract relating to such employee’s employment with such Seller and to such Seller’s Knowledge there are no threatened or contemplated attempts to organize for collective bargaining purposes any of the employees of MTI Silicones or MTI Leewood Germany. No unfair labor practice complaint, sex or age discrimination Claim nor any other type of employment Claim of any kind is pending against any Seller before the National Labor Relations Board or any other Governmental or Regulatory Authority.  In the past five (5) years, there has been no work stoppage, strike or other concerted action by employees of MTI Silicones or MTI Leewood Germany.

To a Seller’s Knowledge, (a) no employee of a Seller listed on Schedule 6.13 recently has expressed in writing (including via e-mail or other electronic means) any intention to leave the employ of such Seller in the next twelve (12) months; and (b) the execution and implementation of this Agreement will not legally cause such an employee to acquire the right to renegotiate a compensation package, nor any other contractual right or benefit not expressly provided for herein, except as otherwise expressly provided in the “Supplementary Opinion on Employment Law Aspects” annexed hereto in Schedule 6.13.

Other than set forth on Schedule 6.13, all salaries, bonuses and other compensation have been paid by each Seller to its respective employees listed thereon on a timely basis consistent with past practice, without acceleration or deceleration and no Liability exists as of the date hereof for any such salaries, bonuses or other compensation (except for such salaries and related compensation accrued for the most recent and current pay period).

6.14.  Employee Benefits.  Schedule 6.14 of the Disclosure Schedule sets forth a complete and accurate list of all Benefit Plans and other Plans, if any, maintained and provided by each Seller for the benefit of any of its employees retained in connection with the Business.  Schedule 6.14 also specifies which employees are covered by which Plans. No Seller maintains or contributes to (nor has ever maintained or contributed to) any Plan in connection with the Business which is subject to Part 3 of Title 1 of ERISA, Section 412 of the Code or Title IV of ERISA or any equivalent applicable Law, except as otherwise disclosed on Schedule 6.14.  The terms of all Benefit Plans and other Plans listed on Schedule 6.14 and the administration and operation thereof comply, and have at all times complied in all material respects with their terms and with ERISA, the Code and such other statutes, laws, ordinances, codes, rules and regulations as are applicable.  The Seller has made all contributions which it was required to make for each Benefit Plan and other Plan listed on Schedule 6.14 under the terms thereof and applicable Law, and all benefit payments due and payable to participants under each such Benefit Plan and other Plan will have been made as of the Closing Date, and all benefits accrued under any unfunded Benefit Plan or other Plan will have been paid, accrued or otherwise adequately reserved as of such date and each Seller has performed all material obligations required to be performed as of the  Closing Date under all such Benefit Plans or other Plans.  Each Benefit Plan and other Plan listed on Schedule 6.14 that is intended to qualify under Section 401(a) of the Code or any equivalent applicable Law, and each trust which forms a part of any such Benefit Plan and other Plan has received a favorable determination letter from the U.S. Internal Revenue Service (and any applicable state or foreign taxing authority), and no suit, actions or other litigation (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought against or with respect to any such Benefit Plan or other Plan.  True, complete and accurate copies of the documents setting forth the terms of each Benefit Plan and other Plan listed in Schedule 6.14 of the Disclosure Schedule and all related contracts and other agreements thereto have been delivered to Buyer.  Each Benefit Plan or Plan that provides for deferred compensation (other than Plans that are intended to comply with Section 401(a) of the Code) was reviewed and amended to comply with Section 409A of the Code before 2009.

6.15.  Accounts Receivable. Schedule 6.15 of the Disclosure Schedule contains a complete and accurate list of Accounts Receivable, with aging, indicating name of counter-party and amount owed per invoice date, as of February 25, 2009 (for MTI Leewood Germany) and as of February 28, 2009 (for MTI Silicones), and as of the Closing Date.

(a)          The, reports, statements, schedules, prospectuses, and other documents required to be filed by MTI with the applicable securities regulatory authority in each of the Provinces of Ontario and Alberta (collectively, the “Canadian Authorities”) in accordance with the applicable securities legislation of each such provincial regulatory authority and the respective rules, regulations and written and published policies thereunder for the past five (5) years, (collectively, as amended and/or supplemented to date, the “Securities Filings”) to the extent they relate to the Business, did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  A true and complete copy of all Securities Filings is available for review by Buyer at www.sedar.com.

 

(b)          The financial statements, balance sheets and income statements (including, in each case, any related notes thereto) relating to the Business as an independent segment for the fiscal year ended December 31, 2007 and the nine months ended September 30, 2008, as well as statements of profit and loss for the Richmond Business and the Leewood Business as of December 31, 2008, are included on Schedule 6.16 of the Disclosure Schedule (collectively, the “Divisional Financial Statements”) , (i) have been prepared in all material respects in accordance with GAAP applied on a consistent basis throughout the periods involved (except (A) to the extent disclosed therein or required by changes in GAAP, (B) as may be indicated in the notes thereto, and (C) inter-company balances, transactions and management fees charged for accounting and information technology systems which are eliminated upon consolidation), and (ii) fairly present in all material respects the financial position of the Business as an independent segment as of the respective dates thereof and the consolidated results of operations and cash flows of the Business for the periods indicated (subject, in the case of unaudited consolidated financial statements for interim periods, to adjustments necessary to present fairly such results of operations and cash flows).

 

(c)          The financial statements contained in the Securities Filings, to the extent that such financial statements (including, in each case, any related notes thereto), relate to the Business (collectively, the “Consolidated Financial Statements” and, together with the Divisional Financial Statements, the “Financial Statements”), (i) have been prepared in all material respects in accordance with the published rules and regulations of the Canadian Authorities and GAAP applied on a consistent basis throughout the periods involved (except (A) to the extent disclosed therein or required by changes in GAAP, (B) with respect to Securities Filings filed prior to the date of this Agreement, as may be indicated in the notes thereto, and (C) in the case of the unaudited financial statements, as permitted by the rules and regulations of the Canadian Authorities) and (ii) fairly present in all material respects the consolidated financial position of MTI and its subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of MTI for the periods indicated (subject, in the case of unaudited consolidated financial statements for interim periods, to adjustments necessary to present fairly such results of operations and cash flows), except that any pro forma financial statements contained in such consolidated financial statements are not necessarily indicative of the consolidated financial position of MTI and its subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows for the periods indicated.

 

(d)          Except as disclosed in the Securities Filings, MTI maintains a system of internal accounting controls with respect to the Business sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 (d)  Any purchase or disposition of any Acquired Assets made, or agreed to be made, other than acquisitions or dispositions of property in the ordinary course of the Business as conducted by such Seller and consistent with past practice and the terms of this Agreement and the Operative Documents;

 (e)  Any material change in the accounting methods or procedures of a Seller relating to the Business, or any material change in the reserves or the percentage or method of calculating the reserves applicable to a Seller in connection with the Business, as contained in the Financial Statements;

Except for transactions contemplated by this Agreement and the Operative Documents, since the date of the Financial Statements, other than set forth in Schedule 6.17 of the Disclosure Schedule, each Seller has conducted the Business only in the ordinary course of the Business as conducted by such Seller, consistent with past practice.  Without limiting the generality of the foregoing, since the date of the Financial Statements, each Seller has (i) preserved intact the business organization of such Seller with respect to the Business, (ii) maintained the Acquired Assets and Leased Premises of such Seller (including without limitation its equipment, whether owned or leased) in good working order and condition, (iii) preserved from lapse, violation or infringement all of its Intellectual Property used in the Business, (iv) maintained the goodwill of customers, suppliers, lenders and other Persons that relate to the Business with whom such Seller has significant business relationships with respect to such Seller’s conduct of the Business, and (v) continued all such Seller’s general sales, marketing and promotional activities relating to the Business, and (vi) paid all trade payables and other debts and expenses of such Seller in its conduct of the Business generally as they have become due.

6.18.  Insurance.  Schedule 6.18 of the Disclosure Schedule sets forth a complete and accurate list and description of all insurance policies maintained by each Seller in its conduct of the Business or which otherwise provide coverage for the Business or the Acquired Assets, including the type of insurance, the name and address and phone number of the insurance company and the agent who sold the policy to such Seller, the amount of coverage, the annual premium rates, the date when the next premium payment is due, and the date of expiration.  Each Seller has provided to Buyer copies of all current insurance policies.  With respect to each such insurance policy:  (a) the policy is legal, valid, binding, enforceable, and in full force and effect; (b) the policy will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (c) neither a Seller nor, to such Seller’s Knowledge, any other party to the policy is in breach or default (including with respect to the payment of premiums or the giving of notices), and no event has occurred which, with notice or the lapse of time, would constitute such a breach or default, or permit termination, modification, or acceleration, under the policy; (d) to a Seller’s Knowledge, no other party to the policy has repudiated any provision thereof; (e) no historical limits have been eroded or significantly impaired; and (f) no material claims are pending as to which coverage has been denied or disputed.  Each Seller has been covered at all times since its respective dates of incorporation by insurance (including self-insurance arrangements) in scope and amount customary and reasonable for the Business as conducted by such Seller during such period and, except as set forth in Schedule 6.18 of the Disclosure Schedule, no Seller has been refused coverage or failed to acquire coverage with respect to its conduct of the Business or any Acquired Asset for which it had previously applied.  Schedule 6.18 of the Disclosure Schedule also describes any self-insurance arrangements affecting any Seller in its conduct of the Business.  If any insurance policy described above is a “claims made” policy, then the Sellers shall either purchase a “tail” policy therefor, or else shall retain such policy in force for twenty-four (24) months following the Closing.

6.19.  Contracts.  All material Contracts, the parties thereto and the dates and descriptions thereof are listed on Schedule 6.19 of the Disclosure Schedule, and each Seller has made available for review by Buyer a true and complete copy of each Assumed Contract to which such Seller is a party, and such copies (and descriptions thereof in the Disclosure Schedule) are true, complete and accurate and include all amendments, supplements, modifications or waivers or other changes thereto. Schedule 6.19 of the Disclosure Schedule also contains a true, accurate and complete list of which of the material Contracts are Assumed Contracts. Except as set forth on Schedule 6.19 of the Disclosure Schedule, (a) all Assumed Contracts, (b) all other Contracts of a Seller granting such Seller the right to the Acquired Assets, and (c) all other Contracts of a Seller material to the Business as it is currently operated by such Seller are, as of the date hereof, valid, binding and in full force and effect upon each such Seller and, to each such Seller’s Knowledge, the other parties thereto, in accordance with their terms and conditions and have been entered into in the ordinary course of the Business as conducted by each Seller.  There is no existing material default, event of default or other event with respect to any Assumed Contract to which any Seller is a party or by which any Seller or its properties used in the Business is bound which, with or without due notice, the passage of time or both, would constitute a material default or event of default on the part of such Seller.  There will not be, as of the Closing Date, any circumstances which will result in any customer having the legal right to a credit or offset against charges otherwise due after the Closing Date under any Assumed Contract.

(a)          Schedule 6.20(a) of the Disclosure Schedule sets forth (i) a complete list of all Seller Registered Intellectual Property and specifies the jurisdiction(s) in which such Seller Registered Intellectual Property has been issued or registered or in which an application for such issuance or registration has been filed, including the respective registration or application numbers and the names of all relevant owners, and (ii) a list of all Products currently marketed by each Seller, with an indication as to which copyrights, if any, in and to such Products have been registered (and, if so, in whose name they have been registered) with the United States Copyright Office or any foreign copyright offices.

(b)          Schedule 6.20(b) of the Disclosure Schedule sets forth a complete list of all licenses, sublicenses and other agreements to which a Seller is a party pursuant to which a Seller or any other Person is now authorized to use any Seller Intellectual Property, and includes the date thereof and identity of all parties thereto.

 

(c)          Schedule 6.20(c) of the Disclosure Schedule sets forth any agreement pursuant to which a Third Party is licensing any Seller Intellectual Property or has assigned any Intellectual Property to a Seller (except for agreements with respect to Commercial Software Rights) and includes the date thereof and identity of all parties thereto.

 

(d)          The execution and delivery of this Agreement by each Seller, and the consummation of the transactions contemplated hereby on the Closing Date, will not cause any Seller to be in violation or default in any material respect under any license, sublicense or agreement listed on Schedule 6.20(b) or Schedule 6.20(c) of the Disclosure Schedule, nor entitle any other party to any such license, sublicense or agreement to terminate or modify such license, sublicense or agreement.

 

(e)          Unless otherwise indicated in Schedule 6.20(a), Schedule 6.20(b) or Schedule 6.20(c) of the Disclosure Schedule, each item of Seller Registered Intellectual Property is valid and subsisting.  All necessary registration, maintenance and renewal fees currently due in connection with such Seller Registered Intellectual Property have been paid and all necessary or material documents, recordations and certificates in connection with such Seller Registered Intellectual Property have been filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Seller Registered Intellectual Property.

 

(f)          Each Seller is, or as of the Closing Date will be, the sole and exclusive owner or licensee of, with all right, title, and interest in and to each item of Seller Intellectual Property attributable to such Seller, free and clear of any Lien or encumbrance, except Permitted Exceptions, and has or will have as of the Closing Date sole and exclusive rights (and is not or shall not be contractually obligated to pay any compensation other than licensing fees and royalties set forth in the applicable license to any Third Party in respect thereof) to the use thereof or the material covered thereby in connection with the Products and the Business in respect of which such Seller Intellectual Property is being used.  Except as set forth on Schedule 6.20(g) of the Disclosure Schedule, no Seller Intellectual Property is subject to any restrictions with respect to its use, modification or distribution.

 

(g)          To the extent that any Seller Intellectual Property used in the operation of the Business or necessary to permit the Buyer to operate the Business has been developed or created for a Seller by any employee, independent contractor or other Third Party (each, an “Other Party”), except as provided on Schedule 6.20(g) of the Disclosure Schedule,  each Seller either (i) has obtained ownership of, and is the exclusive owner of, or (ii) has obtained a license (sufficient for the conduct of the Business) to all such Other Party’s intellectual property in such Seller Intellectual Property, either by operation of Law or by valid assignment.  Each Seller has delivered to Buyer all written agreements assigning Seller Intellectual Property developed or created by any Other Party not otherwise in a “work for hire” relationship with such Seller.

 

(h)          No Seller has transferred ownership of, or granted any exclusive license with respect to, any of its Intellectual Property to any Third Party. All Seller Intellectual Property can be transferred to Buyer in accordance with this Agreement, and all consents and approvals necessary therefor have been obtained or shall be obtained by Closing.

 

(i)           All Assumed Contracts relating to Seller Intellectual Property as used in the Business or relating to the Acquired Assets are in full force and effect.  Each Seller is in material compliance with, and has not breached any material term of, such Assumed Contracts and, to the Knowledge of each Seller, all other parties to such Assumed Contracts are in compliance with, and have not breached any material term of, such Assumed Contracts.  Following the Closing Date, Buyer will have the right to exercise all of a Seller’s rights under such Assumed Contracts to the same extent that such Seller would have been able to had the transactions contemplated by this Agreement not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which such Seller would otherwise be required to pay.

 

(j)           No Seller has been sued or charged as a defendant in any Claim, suit, action, or proceeding which involves a Claim of infringement of any intellectual property of any Third Party and which has not been finally terminated prior to the date hereof, nor does any Seller have Knowledge of any such charge or Claim or any infringement Liability with respect to, or infringement or violation by, such Seller of any intellectual property of any Third Party with respect to the Products.  No Claim with respect to infringement of any Seller Intellectual Property based upon its use in the Business, or any Claim with respect to the ownership, validity or effectiveness of any Seller Intellectual Property has been asserted and remain outstanding or, to the Knowledge of any Seller, has been threatened by a Third Party.  To each Seller’s Knowledge, there is no unauthorized use, infringement or misappropriation of any Seller Intellectual Property by any Third Party, including any employee or former employee of such Seller.

 

(k)          Each Seller has taken reasonable steps to protect Seller’s rights in Seller’s confidential information, trade secrets and other confidential information to the Business that it wishes to protect or any trade secrets or confidential information of third parties provided to such Seller.

 

(l)           The Seller Intellectual Property, including without limitation the [*], together with the other Acquired Assets, are sufficient to enable Buyer to continue operation of the Business in the same manner as it has been operated by the Sellers within the twelve (12) month period prior to the Closing Date.

 

6.21.  Brokers.  No Seller has entered into any agreement or had any discussions with any Third Party regarding any transaction involving such Seller which could result in Buyer being subject to any Claim giving rise to any Liability to said Third Party as a result of entering into this Agreement or the Operative Documents or consummating the transactions contemplated hereby or thereby.

 

6.22.  Litigation; Warranty Claims and Recalls.  Except as otherwise specifically identified and disclosed on Schedule 6.22 of the Disclosure Schedule, there is no litigation, Claim, action, suit, administrative, arbitration or other proceeding pending or to a Seller’s Knowledge threatened against such Seller or relating to any of the Acquired Assets, nor are there any disputes, disagreements, or any other facts or circumstances relating or pertaining to a Seller that relate to the Business or the Acquired Assets which are reasonably likely to give rise to the same in the foreseeable future.  No Seller is subject to any order, writ, judgment, award, injunction or any decree of any court or Governmental or Regulatory Authority or arbitrator, which affects or which might affect any of the Acquired Assets or which might interfere with the transactions contemplated in this Agreement.  No Seller has Knowledge of any fact which would suggest that any present or former employee of or Person providing services to such Seller has or is likely to make any Claim against such Seller and/or Buyer by virtue of any obvious or latent employment-related health defect or any severance, discrimination, harassment or termination action.

 

(iv)         There has been no Release of any Hazardous Material on or affecting any Site currently or, to a Seller’s Knowledge, formerly owned, operated or otherwise used by a Seller in the Business, or, to the Knowledge of a Seller, by any predecessors of such Seller, which Release would be reasonably likely to result in Liability to Buyer under Environmental Laws.

 

(v)          No Seller has received any written notice asserting an alleged Liability or obligation of such Seller under any Environmental Laws with respect to the investigation, remediation, removal or monitoring of a Release of any Hazardous Material or the threatened Release of any Hazardous Material at or from any property currently or formerly owned, operated or otherwise used by such Seller in the Business, or at or from any off-site location where Hazardous Material from the Seller’s operations in connection with the Business have been sent for treatment, disposal, storage or handling.

 

(vi)         No Seller has transported or arranged for the treatment, storage, handling, disposal, or transportation of any Hazardous Material to any off-site location which could result in an Environmental Claim against such Seller.

 

(vii)        No Site is a current (or, to a Seller’s Knowledge, proposed) Environmental Clean-up Site. To a Seller’s Knowledge, there are no Liens arising under or pursuant to any Environmental Law on any Site.

(b)           There have been no environmental investigations, studies, audits or other analyses conducted by or on behalf of a Seller, or in the possession of a Seller, during the five (5) year period prior to the Closing Date addressing potentially material matters arising under Environmental Laws with respect to any property owned, operated or otherwise used by any Seller in the Business that have not been delivered or otherwise made available to Buyer prior to the Closing Date.

 

6.26.  Insolvency.  No petition in bankruptcy or similar arrangement has been filed by or against any Seller, nor has any Seller taken advantage of any applicable federal, state or local insolvency Law.  No receiver, trustee, custodian, liquidator, assignee, sequestrator or other similar official has been appointed over any Seller or all or a substantial part of the Acquired Assets nor has any Seller made any assignment for the benefit of creditors or otherwise suffered any action which adversely affects its title to the Acquired Assets.

 

6.27.  Product Warranties; Defects; Liabilities.  Except as set forth on Schedule 6.27 of the Disclosure Schedule, (a) each product, item, good or other object produced by each Seller for sale in connection with the Products has been in all material respects in conformity with all applicable contractual commitments and all applicable express and implied warranties, (b)  no Seller has any Liability or obligation (and to a Seller’s Knowledge, there is no basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, Claim or demand against such Seller giving rise to any Liability or obligation) for replacement or repair thereof or other Losses or Liabilities in connection therewith except Liabilities incurred in the ordinary course of the Business as conducted by such Seller and consistent with past practice  and (c) no Product is subject to any guaranty, warranty, or other indemnity beyond the applicable standard terms and conditions of sale, license or lease or beyond that implied or imposed by applicable Law.  Appended to Schedule 6.27 is a true and complete description of the current standard terms and conditions of sale, license or lease of each Seller for each of the Products, including all applicable guaranties, warranties and indemnities made by any Seller in connection therewith.

 

6.28.  Full Disclosure.  No representation, warranty or covenant made to Buyer in this Agreement nor any Operative Document delivered and/or executed by a Seller hereunder contains any untrue statement of a material fact or omits a material fact necessary to make the statements contained in this Agreement and the Operative Documents not misleading.

7.01.      Organization.  Rogers is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts.  Any designee of Rogers acquiring any of the Acquired Assets hereunder is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.

 

7.02.      Qualification and Organizational Power.  Buyer is duly qualified to conduct business under the Laws of each jurisdiction where such qualification is necessary, except where the failure to be so qualified would not have a Material Adverse Effect.

 

7.03.      Authorization of Transactions.  Buyer has all requisite corporate or other power and authority to execute and deliver this Agreement and the Operative Documents to which it is a party, and to perform their respective obligations hereunder and thereunder.  The execution and delivery by Buyer of this Agreement and the Operative Documents to which it is a party, and the performance by Buyer of its obligations hereunder and thereunder, have been duly and validly authorized by all necessary corporate action on the part of Buyer.  This Agreement has been, and upon execution and delivery thereof, each of the Operative Documents to which Buyer is a party will be, duly and validly executed and delivered by Buyer and are valid and binding obligations of Buyer, enforceable against Buyer in accordance with their terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

7.04.      Noncontravention.  There is no requirement applicable to Buyer to make any filing with, or to obtain any permit, authorization, consent or approval of, any governmental entity as a condition to the lawful consummation by Buyer of the transactions contemplated pursuant to this Agreement.  The execution, delivery and performance of this Agreement by Buyer do not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice, the lapse of time or both), (i) conflict with or result in any breach of any provision of the Articles of Organization, Bylaws or other governing documents of Buyer, (ii) violate any applicable Law, rule, regulation, order, writ, judgment, ordinance, injunction or decree of any governmental entity to which Buyer is a party or is bound, or (iii) result in a material breach of, or constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, or give rise to a right of termination, cancellation or acceleration of any obligation or loss of a benefit under, or result in the creation of any lien upon any of the properties, rights or assets of Buyer pursuant to, any Contract to which Buyer is a party or by which it is bound or affected (except, in the case of clause (iii), any such defaults, rights or liens that would not materially impair the ability of Buyer to consummate the transactions contemplated by this Agreement).

7.05.      Brokers.  Buyer shall have no Liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement or any of the Operative Documents.

 

7.06.      Legal Proceedings.  As of the date hereof, there are no Claims pending by or against or, to the Knowledge of Buyer, threatened against, Buyer that would materially impair the ability of Buyer to consummate the transactions contemplated by this Agreement.

 

(a)          MTI jointly and severally agrees, and each of MTI Silicones and MTI Leewood Germany severally and not jointly agree, from and after the Closing Date, for the appropriate period(s) specified in Section 8.01, above, to indemnify and hold Buyer and its officers, directors, attorneys, employees, agents or Affiliates and their respective successors and assigns (the “Buyer Indemnified Parties”), harmless from and against any Loss incurred by any Buyer Indemnified Party, directly or indirectly, resulting from (i) any inaccuracy in, or breach of, a representation or warranty of Seller contained in this Agreement or in any Operative Document or other agreement or instrument delivered by Seller in connection with the transactions set forth herein, (ii) any Excluded Liability, or (iii) any failure by Seller to perform or comply with any applicable covenant contained herein.

 

(b)          The Liability of Sellers to provide indemnification pursuant to Section 8.02(a) shall be limited as follows:  (i) Sellers shall not be liable with respect to any matter referred to in Section 8.02(a)(i) unless the aggregate Loss thereunder exceeds Fifty Thousand Dollars (US$50,000.00) (the “Basket”), in which event Buyer Indemnified Party will be entitled to make a Claim against such Seller to the full extent of such Loss counting back to the first dollar amount thereof, and (ii) the collective aggregate Liability of the Sellers under Section 8.02(a) shall not exceed Two Million Dollars (US$2,000,000.00) (the “Indemnity Cap”); provided, however, that any Loss shall not be subject to the Indemnity Cap to the extent arising as the result of: (A) fraud or intentional misrepresentation; (B) a Claim with respect to any Excluded Asset or Excluded Liability; (C) a warranty or similar Claim made by a direct or indirect customer or end user based upon any sale made by the Sellers prior to the Closing; (D) any Claim based upon violation of occupational health and safety Laws (including, without limitation, pursuant to OSHA and workers’ compensation-related Claims), or for any claims by employees of Sellers for compensation, reimbursement or Losses, to the extent occurring or arising out of occurrences prior to the Closing Date; (E) a Claim of infringement with respect to Intellectual Property; (F) Environmental Claims and Liabilities therefrom; or (G) the invalidity or unenforceability of the Trustee’s Amendment, Confirmation and Consent described in Section 5.02(q) hereof, for any reason, or the inaccuracy of the opinion of Mr. [*] described in Section 5.02(r) as regards the accurate identities of the parties to the various agreements described in Section 4.02(g) hereof, or the representation regarding such agreements in the penultimate sentence of Section 6.11 hereof. In addition, the matters described in clause (G) above shall not be subject to the Basket; nor shall any liability for the Claims of the four former employees of MTI Leewood Germany described in Section 4.03(g) hereof.

 

For a period of six (6) years after the Closing date, Buyer shall preserve the books and records of Seller delivered to Buyer; and Seller shall similarly make available to Buyer any records which Buyer permits Seller to retain; each party will make such books and records available to the other party at all reasonable times and permit the other party to make extracts from or copies of all such records.

 

10.01.    Employment of MTI Leewood Germany Employees.  Buyer agrees to offer employment to all MTI Leewood Germany employees involved in the Business, as and to the extent required by applicable German law, conditioned on the consummation of the purchase and sale of the Acquired Assets pursuant hereto. MTI Leewood Germany hereby authorizes Rogers to offer such employment to such employees, waives any rights either of them may have to prohibit such employees from being employed by Rogers, and shall not offer new employment to any such employees.  Nothing in this Section 10.01 shall be deemed to be a contract for the benefit of any employee of any Seller.  MTI Leewood Germany shall use its best efforts to assist Rogers in obtaining the services of all current employees of MTI Leewood Germany that Rogers wishes to so retain.  Prior to the Closing Date, Sellers shall use its commercial best efforts to insure that Rogers shall receive written acceptance of employment from each Key Employee.

(b)          401(k) Plans.  Buyer shall not accept “eligible rollover distributions” (as such term is defined under Section 402(c)(4) of the Code), including outstanding loans, from the vested account balances of any Acquired Employee under the Magnifoam Delaware, Inc. 401K Plan, or any other 401K plan of Sellers (the “Seller 401(k) Plan”).

 

(a)          Accounts Receivable.  (i) Buyer will use its commercial best efforts to collect all Accounts Receivable of the Leewood Business which are validly due and owing during the first twelve (12) months after the Closing as soon as reasonably practicable in accordance with the terms thereof and customary business practices; (ii) Buyer will provide periodic reports to Sellers as to the status of such collections; (iii) Buyer will not settle any such Accounts Receivable at a discount in excess of Twenty-Five Thousand Dollars ($25,000.00) in the aggregate, except with the prior consent of the Sellers, and except as otherwise provided in clause (v) below, (iv) Buyer will apply general payments received from customers on account of such Accounts Receivable to those which have been outstanding the longest, except to the extent that the customer has specified that a payment be credited to specific invoices; and (v) if any such Accounts Receivable cannot be collected within 120 days, Buyer and Seller will consult with one another to develop a plan or proposal to collect such Accounts Receivable; provided that Buyer retains the final discretion to deal with such Accounts Receivable in Buyer’s sole but reasonable judgment.

 

(b)          Mail.  Buyer covenants and agrees to promptly deliver or cause to be delivered to Sellers all mail and other communications received by Buyer which directly relates to any Seller or which may otherwise affect any Seller and which does not relate to the Business, and Sellers each covenants and agrees to promptly deliver or cause to be delivered to Buyer all mail and other communications received by a Seller which directly relates to any Buyer or which may otherwise affect any Buyer, or which relates to the Business.

(b)   by either Sellers (acting collectively) or Buyer in the event that either such party desiring to terminate this Agreement and to be excused from its obligation to consummate the transactions contemplated hereby (the “Excusing Party”) fails or is unable to satisfy a material condition precedent to the Closing set forth herein; provided, that (i) such Excusing Party has used its commercially reasonable best efforts to satisfy such material condition (including, without limitation, the offer and payment of funds to a commercially reasonable extent), (ii) the satisfaction of such material obligation of the Excusing Party is in fact beyond the Excusing Party’s actual control, and (iii) following notice by the Excusing Party to the other party of its failure to satisfy such condition (which notice shall state, with reasonable detail, the reasons for such failure, and the actions taken by the Excusing Party to satisfy such condition) the other party refuses, or fails within ten (10) days after such notice, to waive such condition.  Waiver of a condition shall not imply waiver of the indemnification consequences thereof; accordingly, if the other party does waive such condition, nothing herein shall be construed to prevent or limit the ability of such other party to seek indemnification for any Loss occasioned by the condition waived.

 

12.01.    Governing Law; Jurisdiction.  This Agreement shall be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts, except that no application shall be given to the conflicts of laws principles thereof; and for the avoidance of doubt, the actual transfer of Acquired Assets by MTI Leewood Germany shall be governed by any mandatory Laws of Germany to the extent applicable).  Any dispute, controversy or Claim made by a party under this Agreement or any Operative Document shall be resolved exclusively by arbitration in Boston, Massachusetts under the then-current rules and procedures for the arbitration of commercial disputes of the American Arbitration Association or any successor thereof (“AAA” and the “AAA Rules”); except that any such dispute, controversy or Claim relating to a breach of a Seller’s violation of its representation or warranty set forth in Sections 6.20 (“Intellectual Property Rights”), 6.23 (“Regulatory and Employee Safety Matters”) or 6.25 (“Environmental Matters”), and any dispute, controversy or Claim related to a breach of a covenant hereunder, or under an Operative Document or a certificate delivered hereunder or thereunder, for which injunctive relief is sought, shall instead be brought before and shall be enforceable exclusively in the federal and state courts located in Suffolk County, Massachusetts.

 

Any arbitration shall be commenced by a party filing a demand for arbitration pursuant to the AAA Rules (an “Arbitration Demand”).  That party also shall send a copy of the Arbitration Demand to the other parties.  Any dispute, controversy or Claim submitted for arbitration hereunder shall be heard before a panel comprised of three (3) arbitrators, unless otherwise agreed in writing by the parties to such dispute, controversy or Claim, such panel to be selected in accordance with AAA rules and to be seated in Suffolk County, Massachusetts. The parties shall each bear their own costs and legal expenses of arbitration, except to the extent that the arbitration relates to Pre-Closing Adjustments pursuant to Section 5.06(c)(iv) hereof, in which case the losing party shall pay the legal expenses of the prevailing party. The Buyer, on the one hand, and those Sellers collectively involved in the arbitration, on the other hand, shall equally split the costs of the AAA and the costs of stenographers and other forum costs in connection therewith. The arbitration shall be conducted pursuant to the Federal Arbitration Act and such other procedures as the parties to the arbitration may agree or, in the absence of such agreement, pursuant to the AAA Rules and the provisions of this Section 12.01.  The decision of the arbitrators will be final and binding on all parties hereto and upon their Affiliates, whether or not a party to the arbitration. The panel shall be instructed to provide a written decision explaining the basis for its ruling.  The parties agree that a judgment may be entered on the arbitration award in any court of competent jurisdiction.  The arbitrators in reviewing any dispute, controversy or Claim under this Agreement shall have the exclusive authority to determine any issues as to arbitrability of such dispute, controversy or Claim or related disputes hereunder.  In reaching a decision, the arbitrators shall interpret, apply and be bound by this Agreement and applicable law and shall have no authority to add to, detract from or modify this Agreement or any applicable law in any respect.  The arbitrators may grant any remedy for equitable relief that a court of competent jurisdiction could grant.

 

12.02     Modification.  This Agreement may be modified, amended or terminated, and the requirements of any provision hereof may be waived, with the mutual consent of each Seller and Rogers by written instrument signed by them or their respective successors or assigns in any manner deemed necessary or appropriate by them.

 

12.03     Drafting Presumptions. This Agreement has been extensively negotiated by counsel for both the Sellers and Buyer, and therefore the parties acknowledge and agree that no negative presumption shall be made regarding the party whose counsel prepared the original or other drafts hereof, or of any of the Operative Documents.

 

12.04.    Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  This Agreement shall be deemed effective upon the receipt by each Party of an executed signature page hereto signed by the other, which in accordance with the provisions of Section 12.05 hereof may be transmitted by facsimile or electronic means.

 

12.05.    Notices.  Any notice or other communication hereunder may be sent by any means (including facsimile or email or other electronic means, provided that receipt thereof is acknowledged and confirmed by the recipient) and shall be effective upon receipt; except that, if sent via domestic certified mail or via international overnight courier such as Federal Express, said notice shall be conclusively deemed to have been received by a party hereto and be effective on the earlier of (a) the actual date of receipt, or, if earlier, (b) the third business day following the date given to the post office or courier for delivery. In addition to such notices and communications as shall be addressed to such party at the address set forth at the outset of this Agreement (or such other address as such party shall specify to the other party in writing), mandatory copies, sent in such manner, shall be delivered to the additional addressees set forth below:

 

12.06.    Entire Agreement.  This Agreement, together with its schedules, exhibits and the Operative Documents, constitutes the entire contract among the parties and supersedes all other understandings and agreements, oral or written, with respect to the subject matter hereof.

 

12.07.    Headings.  The descriptive headings of the several Sections and Paragraphs of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

 

12.08.    Equitable Remedies.  In the event that any party to this Agreement shall default in the performance of any obligation, covenant or agreement hereunder, the other parties to this Agreement shall, in addition to all other remedies which may be available to it, be entitled to injunctive and equitable relief, including without limitation specific performance, and shall be entitled to recover from the defaulting party or parties its costs and expenses (including reasonable attorneys’ fees) incurred by it in securing such injunctive or equitable relief.

 

12.09.    Severability.  In the event that any provision of this Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement should remain in full force and effect and be interpreted as if such invalid or unenforceable provision had not been a part hereof; provided, however, if any particular portion of this Agreement shall be adjudicated invalid or unenforceable by reason of the length of time or scope of applicability provided for herein, this Agreement shall be deemed amended to diminish such time and/or reduce such scope to the longest enforceable time and the broadest enforceable scope of applicability.

 

12.10.    Assignment.  Buyer shall be entitled to assign all or part of their respective rights, title and interest under this Agreement to an Affiliate; provided that the Acquired Assets and Assumed Liabilities of MTI Silicones shall be assumed by an entity organized under the laws of a State of the United States and the Acquired Assets and Assumed Liabilities of MTI Leewood Germany shall be assumed by an entity organized under the laws of Germany  and provided, further that such Affiliate shall assume the corresponding obligations of Buyer under this Agreement.  A copy of any assignment made hereunder shall be promptly forwarded to Sellers.  No Seller may assign all or any part of its rights, title and interest under this Agreement without the prior written consent of Rogers. In the event of an assignment of a party’s rights under this Agreement, whether as a result of the proviso above or upon the consent of the parties hereto, such assignment shall not relieve the assigning party of its obligations under this Agreement and all such obligations shall remain the valid and binding obligations of the assigning party, and the non-assigning parties shall retain the right to pursue the assigning party directly for any and all claims it may have hereunder or thereunder.

 

12.11.    Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties herein and their successors and permitted assigns.

 

12.12.    Acceptance of Counsel.  Whenever in this Agreement it is provided that a party hereto shall deliver an agreement or other instrument to the other of them, such agreement or instrument shall be in form reasonably satisfactory to counsel for the party to whom the same is to be delivered.

 

12.13.    Expenses.  Except to the extent otherwise expressly provided herein, each party hereto shall pay its own expenses, including the fees and disbursements of its own counsel, incident to the preparation of this Agreement and the consummation of the transactions contemplated hereby.

 

12.14.    Publicity.  Without the consent of MTI or Rogers, no other party shall issue nor cause the publication of any press release or other announcement with respect to this Agreement or the transactions contemplated hereby, which consent shall not be unreasonably withheld, except where such release or announcement is required by applicable Law or the rules of any stock exchange, stock market or Governmental or Regulatory Authority having authority over a party.

 

12.15.    English Language.  The parties agree that this Agreement, the Operative Documents and any additional documents proposing to govern the transactions contemplated herein or therein shall be written in the English language, unless otherwise required by applicable Law. The parties acknowledge that certain documents and other items provided to Buyer or counsel for and consultants to Buyer in connection with its due diligence may not be in the English language.  In the event that this Agreement or any Operative Document must be translated into another language for filing or other purposes, and such translation deviates from the English version, the English version shall control.