SALESAGREEMENT

This SALES AGREEMENT (this “Agreement”) is made as of 31 October, 2008, by and among Rogers Induflex NV (which will be renamed “Induflex NV” shortly after the acquisition of its shares as of the date hereof, as described below), a Belgian company registered with the Crossroads Bank of Enterprises under enterprise number 0427693784 ("Induflex"), Rogers BVBA, a Belgian company having its registered office at Afrikalaan 188, 9000 Ghent and registered with the Crossroads Bank of Enterprises under enterprise number 0406.657.553, and formerly known as Rogers NV (“Rogers BVBA”), and Rogers Corporation, a Massachusetts corporation (“Rogers”).  Each of Induflex, Rogers BVBA and Rogers may be referred to herein, individually, as a “Party” and, collectively, as the “Parties”.

WHEREAS, Induflex Holding NV, a Belgian company registered with the Crossroads Bank of Enterprises under enterprise number 0807.149.569 and Rogers are parties to that certain Stock Purchase Agreement, of even date herewith (the “Stock Purchase Agreement”), pursuant to which Induflex Holding NV is purchasing all of the issued and outstanding shares of capital stock of Induflex held by Rogers; and

WHEREAS, the parties desire to set forth in this Agreement the terms and conditions upon which Induflex will agree to continue to sell busbar insulation products (the “Products”) to Rogers BVBA and Rogers after the Closing Date.

NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and agreements hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which hereby are acknowledged, the parties agree as follows

The following terms shall have the meanings set forth below (such meanings to be equally applicable to the singular as well as the plural forms of the terms defined):

All other capitalized terms used but not defined herein shall have the meanings ascribed to them in the Stock Purchase Agreement.

2.1    Sales Of Products.  Induflex agrees that, subject to the terms and conditions of this Agreement, from and after the Closing Date, Rogers BVBA and Rogers, and any Affiliate of either of them, shall be permitted to purchase the Products on a non-exclusive basis from Induflex in the manner set forth herein; provided, that nothing set forth herein shall result in a commitment by Roger BVBA, Rogers or any such Affiliate to purchase the Products hereunder or to establish any minimum purchase requirements.   Induflex shall use its best efforts to assure the availability of the Products for the Term, at supply levels consistent with those as of the Closing Date.

2.2    Purchase Orders.  For each specified quantity of the Products, Rogers BVBA and Rogers, as applicable (each, an “Ordering Party”) shall deliver to Induflex a purchase order.  Whether or not expressly referenced in such purchase order, all sales of Product from Induflex hereunder shall be subject to Rogers’ Belgian Terms and Conditions of Purchase, set forth as Exhibit A and/or Exhibit B hereto, unless otherwise agreed in writing by the Parties, or unless otherwise expressly set forth in this Agreement.  The provisions of said Exhibit A and/or Exhibit B shall be incorporated into this Agreement as though expressly set forth herein.

The Ordering Party shall reference this Agreement on each purchase order, and shall specify the following information: (a) the purchase order number, (b) quantity of Products desired, (c) the locations to which the Products are to be delivered, (e) whether delivery of the Products will be made in one shipment or in installments, and (d) the dates for delivery for the one shipment or each installment.  No terms or conditions included in any purchase order, acknowledgement or other transmittal, whether on a standard business form or otherwise utilized by an Ordering Party or Induflex in connection with the sale of the Products, which are in conflict with any provision of this Agreement, Exhibit A or Exhibit B hereto shall be valid; nor shall any such terms or conditions shall be construed or deemed to be an amendment of or supplement to this Agreement or otherwise binding on such Ordering Party or Induflex.  Within ten (10) business days of receipt of any purchase order, Induflex shall confirm acceptance of the purchase order, unless either (a) a term of the purchase order, not provided in this Agreement or in Exhibit A hereto, is not reasonably acceptable to Induflex, in which case, within such time period, Induflex shall notify the Ordering Party of the reason therefor, and, if possible, shall offer to accept the purchase order without that term; or (b) Induflex has insufficient quantities of the Products available, in which case Induflex shall provide a notice to the Ordering Party within such time period stating same and modifying the purchase order to reflect the quantity which Induflex can provide. In the event that Induflex fails to either accept or reject (to the extent permitted herein) any purchase order within said ten (10) days, the purchase order shall be deemed accepted.

2.3           Consignment Stock.  Induflex shall provide Products to Rogers BVBA on a consignment basis, when and as ordered by Rogers BVBA on such basis in accordance with the provisions hereof. Rogers BVBA shall submit reports to Induflex, at least twice each month, indicating in reasonable detail the Products consumed or sold during the most recently concluded semi-monthly period, along with a purchase order for such Products. Induflex shall issue an invoice to Rogers BVBA for the Products described in such purchase order, with payment therefor due net thirty (30) days from the date of such invoice; provided, that Induflex may, at its option, deliver an invoice to Rogers BVBA for any Products consigned pursuant to this Section 2.3 that remain unused or unsold for more than three (3) months from the date of delivery.  Rogers BVBA shall keep such books and records as it deems reasonably necessary to record the consumption and sale of any consigned Products, which books and records shall be made available to Induflex for inspection in the premises of Rogers BVBA upon reasonable request.

2.4    Specifications.  All Products supplied hereunder shall be manufactured by Induflex in conformance with applicable specifications currently utilized by the Company, or as otherwise agreed to by the Parties and annexed as a schedule hereto, such specifications to set forth, at a minimum, the manufacturing and testing procedures and acceptance criteria for the Products (the “Specifications”).  The Specifications shall not thereafter be modified without the mutual agreement of the parties to such order.

3.1  Payment Terms.  Payment for the Products shall be made in Euros or dollars, as specified in the applicable purchase order, net seventy-five (75) days from receipt of an invoice for the Products described therein (other than consignment sales described in Section 2.3 hereof, which shall be paid net thirty (30) days therefrom), by wire transfer of immediately available funds to a bank account designated in writing by Induflex, unless otherwise agreed.

3.2  Competitive Pricing.

The selling price for all Products sold by Induflex to Rogers hereunder shall be no higher than any sale made by Induflex within the three (3) months immediately preceding such sale, to any other customer of the Products in similar or lesser quantities. Notwithstanding the preceding sentence, however, Induflex shall not be required to make available to Rogers special prices occasionally granted to customer under extenuating circumstances, such as, for example, commercial gestures to attract a new customer or to remedy a dispute or problem (such as late delivery or broken promises) with existing customers.

Induflex acknowledges that the prices currently paid by Rogers and Rogers BVBA for Products are as set forth on Exhibit B hereto. Induflex agrees not to increase, and shall not be required to decrease, the price for any of the Products during the term hereof unless the average price for all raw materials used in that Product during a fiscal quarter (the “Price Change Quarter”), expressed as a percentage of the average purchase price then in effect for that Product during the Price Change Quarter, has increased or decreased from its level immediately prior to the commencement of the Price Change Quarter by seven percent (7%) or more. If it has so increased or decreased, then Induflex shall notify Rogers and Rogers BVBA of that fact within ten (10) days after the end of the Price Change Quarter. The new Product price shall be the price which is sufficient to bring the raw materials percentage described above fully back up, or back down, to its level prior to the Price Change Quarter began. The price change for such Product shall commence at the beginning of the second fiscal quarter after the end of the Price Change Quarter (so, for example, if the Price Change Quarter ends on March 31 of a year, the price increase or decrease shall be effective beginning July 1st of that year).  During the three months preceding the last quarter of the fifth year of the term of this agreement, both parties will convene and assess whether general economic or other changes in circumstances justify continuation of this arrangement. Unless the parties otherwise agree at that meeting, this Section 3.2 shall be of no further force and effect after the expiration of five (5) years from the commencement of this agreement.

4.1  Term. The term of this Agreement (the “Term”) shall commence on the date hereof and shall continue for fifteen (15) years thereafter, unless and until terminated in accordance with Section 4.2.  The Parties, by mutual agreement, may extend the Term.  As used herein, “Term” shall refer both to the initial Term and any extension thereof.

4.2  Termination.

4.2.1  Material Breach.  If any Party materially breaches any of the terms of this Agreement and such material breach remains uncured for a period of sixty (60) days after having received written notification of such violation, then either of the non-breaching Parties may thereafter immediately terminate this Agreement by so notifying all of the Parties in writing.  Such termination shall not prejudice the damage rights of the non-breaching Parties as against the breaching Party, which shall have all of the rights and remedies available to them under this Agreement, at law, in equity, or otherwise.

4.2.2  Insolvency.  If any Party makes an assignment for the benefit of creditors, or has a receiver, trustee in bankruptcy, or similar officer appointed to take charge of all or part of its property, then either of the other Parties may terminate this Agreement with immediate effect by delivering written notice thereof.

4.2.3  Force Majeure.  If any Party is unable to fully perform its obligations hereunder for a period of sixty (60) days following an event described in Section 8.6, and such inability remains uncured for a period of sixty (60) days following written notice by the Party unable to perform, either of the remaining Parties may thereafter terminate upon thirty (30) days’ written notice.

4.2.4  Termination for Dormancy.  If no purchase orders are submitted by Rogers or any of its Affiliates for twelve (12) consecutive months hereunder, either Rogers or Rogers BVBA, on the one hand, or Induflex, on the other, thereafter may terminate this agreement upon ten (10) days’ notice to the other parties hereto.

4.3  Survival. Expiration or termination of this Agreement for any reason shall not relieve any Party for a breach of this Agreement occurring prior to such expiration or termination.  Any warranties,  indemnities and other provisions in this Agreement or in Exhibit A hereto shall survive the termination or expiration of this Agreement with respect to Products delivered or ordered prior to such termination.

5.1   Representations and Warranties of each Party.  Each Party hereby represents and warrants that (a) it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder, (b) this Agreement has been duly executed and delivered and represents a legal and valid obligation, binding upon and enforceable against it in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditor’s rights generally, or (ii) general principles of equity, whether considered in a proceeding in equity or at law, (c) the execution, delivery and performance of this Agreement by it does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it is bound, (d) the execution of this Agreement by each Party, and its performance by such Party in accordance with its terms, does not and would not violate any law or regulation of any court, governmental body or administrative or other agency within the jurisdiction to which such Party is currently subject as of the date hereof, and (e) all necessary consent, approvals and authorizations of any governmental authorities and third parties required to be obtained by it in connection with this Agreement have been obtained. These are in addition to the various warranties set forth on Exhibit A hereto.

6.1  Confidentiality. A Party that receives (the "Receiving Party") confidential information disclosed to it by another Party (the "Disclosing Party") shall keep confidential and not disclose to any third party any confidential information disclosed to it hereunder.  (For purposes hereof, “confidential information” shall mean only that information which is clearly labeled as such.) The Receiving Party shall use the same care and security measures that each uses to protect its own confidential information, but in any event the Receiving Party shall use no less than reasonable care in protecting the Disclosing Party's confidential information.  The obligation to keep the confidential information disclosed by the Disclosing Party strictly confidential shall survive the expiration or termination of this Agreement and shall continue in force until the confidential information has been generally disclosed to the public other than by a breach of this Agreement.

 

6.2  Permitted Disclosure. To the extent that the Disclosing Party discloses any confidential information to the Receiving Party, the Receiving Party may disclose the confidential information only to those of its respective employees, agents and contractors who need to know such confidential information for purposes of this Agreement and who have executed a confidentiality agreement with the Receiving Party with obligations of confidentiality and nonuse that are no less stringent that those in this Agreement.

6.3  Limitation on Use.  The Receiving Party shall not use any of the Disclosing Party's confidential information and shall ensure that its respective employees and contractors will not use any of the Disclosing Party's confidential information disclosed to it hereunder for any purpose other than in accordance with this Agreement and will not reverse engineer any such confidential information.  All rights, title and ownership in and to all confidential information disclosed by any Disclosing Party hereunder, including discoveries or inventions based upon or derived from such confidential information,  shall remain in the Disclosing Party.

Each Party agrees to promptly disclose to a Disclosing Party any discoveries or inventions principally based upon or principally derived from such Disclosing Party’s confidential information and further agrees to assign (and does hereby assign) to such Disclosing Party, the sole and exclusive ownership in all such discoveries and inventions and to sign all documents and do all things reasonably necessary to give effect thereto.  Notwithstanding the preceding sentence: (a) if such discoveries or inventions relate primarily to “Laminates” (as that term is defined in the Non-Competition Agreement between Induflex Holding NV and Rogers of even date herewith), then such discoveries or inventions shall remain the sole and exclusive property of Induflex, even if based upon confidential information from Rogers; and (b) if such discoveries or inventions relate primarily to busbars, then such discoveries or inventions shall remain the sole and exclusive property of Rogers, even if based upon confidential information from Induflex.

6.4  Exclusions.   Confidential information shall not include information that: (a) at the time of its disclosure is available to the public; (b) after disclosure becomes available to the public through no fault of the Receiving Party; (c) the Receiving Party can show, through adequate written documentation, was received by it from a third party without breach of an obligation of confidentiality; or (d) the Receiving Party can show, through adequate written documentation, was independently developed without use or reference to any  of the Disclosing Party’s confidential information.

6.5  Duties Upon Expiration or Termination. Upon the written request by the Disclosing Party and/or after expiration or termination of this Agreement, the Receiving Party shall either return all of the Disclosing Party's confidential information received by the Receiving Party or destroy the same, but in any event the Receiving Party shall make no further use of the Disclosing Party's confidential information.

6.6  Unauthorized Use.  In case any Receiving Party becomes aware or has knowledge of any unauthorized use or disclosure of confidential information, it shall promptly notify the Disclosing Party of such unauthorized use or disclosure and take any and all steps reasonably necessary to assist the Disclosing Party in attempting to minimize any potential or actual damages or losses resulting from such unauthorized use or disclosure.

 

6.7  Compelled Disclosure.  The Receiving Party may disclose the Disclosing Party's confidential information to the extent required to comply with, a court or administrative subpoena or order which appears to be lawful on its face, provided that the Receiving Party first uses its best efforts to obtain an order preserving the confidentiality of the information of the Disclosing Party and provided the Receiving Party gives the Disclosing Party timely notice of the contemplated disclosure to give the Disclosing Party an opportunity to intervene to preserve the confidentiality of the information.

Each Party acknowledges that it was represented by counsel in connection with the negotiation, preparation and execution of this Agreement, is fully competent to execute this Agreement, understands its terms and provisions, and is authorized to and has voluntarily executed this Agreement.  Each Party further acknowledges that, in executing this Agreement, it has relied upon its own knowledge and judgment and/or the advice of its counsel.  It is expressly understood, agreed and warranted that in entering into this Agreement, no Party has relied upon any warranty, representation, statement, promise, action or advice of any other Party, except those expressly set forth herein.

8.1  Entire Agreement. This Agreement and the Stock Purchase Agreement constitute the entire agreement of the Parties, and supersedes any prior or contemporaneous agreements between the Parties, with respect to the subject of this Agreement. The Parties shall be bound only by a writing that memorializes this Agreement and which is signed by an authorized representative of each Party.

8.2  Modifications to Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a writing that specifically refers to this Agreement and which is signed by an authorized representative of each Party.

8.3  Notices.  All notices and other communications required or permitted to be given by any Party herein to another Party shall be in writing and shall be deemed given when received, and may be sent by mail, courier or similar means. Such notices and communications also may be made via facsimile, electronic mail or other electronic means; provided, that receipt thereof is acknowledged by the recipient in a manner constituting valid notice hereunder. Such notices and other communications shall be addressed to the recipient Party or Parties at the addresses below, or at such other address as such Party hereafter may furnish to all of the other Parties in a manner constituting valid notice hereunder:

8.5  Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been part of this Agreement.

8.6  Force Majeure. If the performance of any duty (other than payment and confidentiality obligations) under this Agreement is prevented, restricted or interfered with by reason of war, revolution, civil commotion, acts of public enemies or terrorists, blockade, embargo, strikes, outage of the Internet, law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this paragraph, which is beyond the reasonable control of the Party affected, then, subject to Section 4.2.3, the Party so affected shall, upon giving prior written notice to the other Party, be excused from such performance to the extent of such prevention, restriction, or interference; provided, that the Party so affected shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.

8.7  Waiver. All waivers of any rights or breach hereunder must be in writing to be effective, and no failure to enforce any right or provision shall be deemed to be a waiver of the same or other right or provision on that or any other occasion.

8.8  Assignment.  No Party shall have the right to assign this Agreement without prior written consent of the remaining Parties, and any attempted assignment of this Agreement by a Party without prior written consent of the other Parties shall be void.

8.9  Further Assurances.  The Parties agree to execute, acknowledge and deliver all such further instruments, and to do all such other acts as may be necessary or appropriate, in order to carry out the intent and purposes of this Agreement.

8.10  Successors and Assigns. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

8.11 English Language. The Parties confirm that it is their desire to have this Agreement, as well as any and all other documents attached or relating hereto, including notices, written in the English language exclusively.

8.12  Independent Contractors. Nothing in this Agreement is intended to create any relationship between the Parties other than as independent contractors and no Party, nor any of its employees, staff, agents, officers or directors shall be construed to be the agent, fiduciary, employee, or representative of any other Party.

8.13  Third Party Beneficiaries. This Agreement is not a third party beneficiary contract, and, therefore, there are no third party beneficiaries to this Agreement.

8.14  Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall constitute an original and both of which together shall be deemed a single instrument. This Agreement shall be deemed effective upon the receipt by each party of an executed signature page hereto signed by the other, which may be transmitted by facsimile or electronic means.

"Agreement" shall mean any agreement of sale and purchase whereby Seller sells Goods and/or Services to Rogers;

“Business Day” shall mean a day on which banks located in the respective place of the registered office of Rogers and Seller are open for normal banking business;

"Days" shall mean calendar days;

“Goods and/or Services” shall mean the goods and/or services as described in the Purchase Order;

"Purchase Order" shall mean the written details appearing on the reverse of these Terms and Conditions;

"Rogers" shall mean Rogers Corporation or the subsidiary or affiliate of Rogers Corporation indicated on the face hereof;

“Seller” shall mean the natural or legal person who or which intends to sell the Goods and/or Services to Rogers.

“Termination for Cause” shall mean a termination of this Purchase Order by Rogers pursuant to Section 16.2.

13.  ASSIGNMENT  No part of the Purchase Order may be assigned or subcontracted by Seller without the prior written approval of an Authorized Rogers Employee.

14.  INTELLECTUAL PROPERTY INDEMNIFICATION  Seller represents and warrants to Rogers that no use or sale of any item to be delivered hereunder, alone or in any combination recommended or specified by Seller, and no service supplied or work performed hereunder by Seller, its agents, employees or representatives, will infringe any U.S. or foreign patent, copyright, trademark, service mark or other intellectual property.  Seller agrees to indemnify and hold Rogers and its customers harmless from and against any and all costs, damages, and expenses (including without limitation prompt reimbursement of legal fees and expenses, expended or incurred by Rogers to defend itself therefrom or otherwise as a consequence thereof) and all judgments and decrees resulting from any actual or alleged infringements or contributory infringement of any U.S. or foreign patent, copyright,  trademark, service mark or other intellectual property by such use or sale of any such item or by any services supplied or work performed hereunder by Seller, its agents, employees or representatives. Other than for trade mark or service mark infringements, Rogers and its customers shall not be entitled to make any claims under this clause for infringements known by Rogers with respect to the products as described in Exhibit B as long as the features of the products as described in Exhibit B  have not been changed.

 

 

If it should be determined that a Termination for Cause by Rogers has been improper,then such termination shall be deemed to have been for Rogers’ convenience, and treatedfor all purposes as set forth in Section 16.1, with no other liability than as expressly statedtherein.

If Rogers determines that gratuities (in the form of entertainment, gifts or otherwise) were offered or given by Seller to any employee, agent or representative of Rogers with a view towards securing a contract or securing favorable treatment with respect to the awarding, amending or the making of any determination with respect to the performance of such contract, Rogers may Terminate for Cause by notice to Seller pursuant to Section 16.2.

Seller and Rogers agree to conduct the transactions governed by these terms and conditions by electronic means except: (i) as to matters where a manual signature of an Authorized Rogers Employee is required hereby; and (ii) Rogers’ liability hereunder  may not be increased or expanded except by an amendment or waiver complying with the terms of Section 3 bearing the manual signature of an Authorized Rogers Employee.

These terms and conditions and any relationship to which these terms and conditions apply shall be governed, construed, interpreted, enforced by, and the relations between Rogers and Seller shall be determined in accordance with the Belgian laws, and no effect shall be given to any other choice-of-law or conflict-of-laws rules or provisions (those of Belgian, foreign or international nature) that would cause the laws of any other jurisdiction to be applicable, nor to the UN Convention of Vienna on Contracts for the International Sale of Goods (dated 11 April 1980).