a5824234ex10-3.htm


    
      
        Exhibit
10.3

      

       

       

       

    

    Distribution
Agreement

    


    This
Distribution Agreement (the “Agreement”) is made this
31st
day of October, 2008, (the “Effective Date”) by and
between Rogers Technologies (Suzhou) Co. Ltd., a corporation organized and
existing under the laws of the People's Republic of China having its principal
place of business at 338 Shenhu Road, Suzhou Industrial Park, Suzhou, People's
Republic of China 215122, Rogers Technologies (Singapore) Inc., a corporation
organized and existing under the laws of Singapore having its principal place of
business at 60 Kaki Bukit Place, #03-14 Eunos TechPark , Singapore 415979, and
Rogers Southeast Asia, Inc., a corporation organized and existing under the laws
of Hong Kong having its principal place of business at Unit 1111, 11/F, Delta
House, 3 On Yiu Street, Shatin, New Territories, Hong Kong (collectively, the
“Distributor”), and
Rogers Induflex NV, a Belgian company with registered office at 9000 Ghent,
Ottergemsesteenweg 799 and registered with the Crossroads Bank of Enterprises
under enterprise number 0427693784 (“Company”) (which will be
renamed “Induflex NV” shortly after the change of control occurring as of the
date hereof and described below).  Distributor and Company are each
referred to herein, individually, as a “Party” and, collectively, as
the “Parties”.

     

    The
Parties hereto agree as follows:

    


    Whereas,
Company is in the business of the development, manufacture and sale of
laminates, coated tapes and films for purposes of shielding, insulating, barring
and identification;

    


    Whereas,
Distributor has, prior to Effective Date, distributed the Company’s
products;

    


    Whereas,
Company has recently undergone a change of control; and

    


    Whereas,
following such change of control, Distributor has agreed to continue to act as a
distributor of the Company’s products to its customers, subject to the terms and
conditions set forth herein.

    


    Now
therefore, in consideration of the mutual agreements and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto, intending to
be legally bound, hereby agree as follows:

     

    
      	
              1.

            	
              Term: Unless earlier
      terminated as provided for herein, the term of this Agreement shall
      commence on the Effective Date and end on the six month anniversary
      thereof (the “Initial Term”).  Following
      the Initial Term, this Agreement may be renewed for an additional six
      month term unless either Party shall have given the other written notice
      of non-renewal at least thirty (30) days’ prior to the expiration of the
      then current term.

            


    

     

    
      	
              2.

            	
              Products:
      This Agreement governs Distributor’s distribution of multilayer laminates
      comprised of layers of any of the following
      products:  polyethylene terephthalate (PET), polyethylene
      naphthalate (PEN), polyvinyl chloride (PVC), aluminum, copper, Mylar,
      Tedlar and adhesives, as currently manufactured by the Company (the “Products”).

            


    

    


    
      	
              3.

            	
              Orders:
      Distributor will supply purchase orders to Company on a mutually
      acceptable form, via fax, email or phone to a person designated in advance
      by the Company in accordance with Section 15.  All purchases by
      Distributor of Products shall be subject to Distributor’s general terms
      and conditions of purchase.

            


    

    


    
      	
              4.

            	
              Product
      Pricing:

            


    

    


    
      	
              (a)

            	
              Product Price: The
      Product Price for each Product shall be the retail price for each such
      Product, less a fifteen percent (15%) discount (the “Product
      Price”).  All Product Prices shall be expressed in U.S.
      dollars.

            


    

    


    
      	
              (b)

            	
              Adjustment: In the
      event that the currency exchange rate of the U.S. dollar (USD) to the
      China Yuan Renminbi (CNY) deviates
      more than five percent (5%) from the rate of 1 USD = 6.8 CNY, then the Product
      Price will be adjusted accordingly.


            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              5.

            	
              Payment
      Terms: All of Company’s invoices for Products shall be due and
      payable by Distributor within seventy-five (75) days after receipt of
      Products  by Distributor.

            


    

    


    
      	
              6.

            	
              Delivery;
      Risk of Loss: All deliveries of Products will be made CFR, Shanghai
      (Incoterms 2000). Distributor shall pay all applicable insurance, duties,
      taxes inland freight and similar charges from the delivery
      point.  Distributor shall give Company written notice of any
      claimed shipping error within seventy-five (75) days after the date of
      receipt of Products by Distributor.

            


    

    


    
      	
              7.

            	
              Product
      Promotion: Distributor will not be obligated to promote Company’s
      Products, but Distributor will promote its own distribution services to
      its customers in accordance with Distributor’s standard business
      practices, which typically include (but are not limited to) informing
      Distributor’s customers of pricing available for products distributed by
      Distributor.

            


    

    


    
      	
              8.

            	
              Termination:
      This Agreement may be terminated as
follows:

            


    

    


    
      	
              (a)

            	
              By
      either Party immediately upon any material breach by either Party, where
      such material breach remains uncured for more than five (5) business days
      following notice by the non-breaching
Party.

            


    

    


    
      	
              (b)

            	
              Immediately
      upon notification or at any time thereafter, either Party may terminate
      this Agreement in the event that:

            


    

    


    
      	
               
      

            	
              (i)

            	
              the
      other Party shall file any petition under any bankruptcy, reorganization,
      insolvency or moratorium laws, or any other law or laws for the relief of
      or in relation to the relief of
debtors;

            


    

    


    
      	
               
      

            	
              (ii)

            	
              there
      shall be filed against the other Party any involuntary petition under any
      bankruptcy statute or a receiver or trustee shall be appointed to take
      possession of all or substantial part of the assets of the Party which has
      not been dismissed or terminated within sixty (60) days of the date of
      such filing or appointment;

            


    

    


    
      	
               
      

            	
              (iii)

            	
              the
      other Party shall make a general assignment for the benefit of creditors
      or shall become unable or admit in writing its inability to meet its
      obligations as they mature;

            


    

    


    
      	
               
      

            	
              (iv)

            	
              the
      other Party shall institute any proceedings for liquidation or the winding
      up of its business other than for purposes of reorganization,
      consolidation or merger; or

            


    

    


    
      	
               
      

            	
              (v)

            	
              the
      other Party’s financial condition shall become such as to endanger
      completion of its performance in accordance with the terms and conditions
      of this Agreement.

            


    

    


    
      	
              (c)

            	
              By
      Distributor upon fifteen (15) days written notice if Company is acquired
      in whole or in substantial part by, or is merged with, a third party, or
      sells all or substantially all of its assets to a third
    party.

            


    

    


    
      	
              (d)

            	
              By
      Company upon sixty (60) days’ written notice for any
    reason.

            


    

    


    
      	
              (e)

            	
              Effect of Termination:
      In the event of expiration or termination of this Agreement, Distributor
      shall be allowed a one time right to order an amount of Products, upon the
      terms and conditions valid at the date of termination and in line with
      market prices and conditions at such time, sufficient to fulfill all
      purchase orders outstanding as of the date of such
      termination.

            


    

    


    
      	
              9.

            	
              Statutory
      and Regulatory Compliance: Distributor and
      Company shall comply with all applicable laws and regulations governing
      their activities related to this Agreement, including without limitation,
      laws related to fraud and abuse, false claims and prohibition on
      kickbacks.

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      	
              10.

            	
              Confidentiality:
      Each Party shall take all reasonable actions and do all things reasonably
      necessary to ensure that any information contained in this Agreement, as
      well as any information relating to this Agreement or is acquired by
      virtue of this Agreement (in either case, “Confidential
      Information”) shall not be disclosed or used for purposes outside
      this Agreement; provided, however, that the foregoing shall not apply to
      information that: (i) is provided to the disclosing Party’s attorneys or
      accountants (who will agree to be bound by confidentiality restrictions no
      less restrictive than are set forth herein); (ii) is requested by a legal
      or regulatory authority; (iii) is provided by the disclosing Party to its
      Affiliate (provided such Affiliate is subject to the confidentiality
      restrictions herein), and for the purpose of this section “Affiliate” shall mean a
      person or another entity which directly or indirectly controls, is
      controlled by, or is under the common control with that entity; (iv) a
      Party can show it knew prior to disclosure without obligation of
      confidentiality; (v) is or becomes public knowledge through no fault said
      Party; (vi) is lawfully disclosed by a third party under no obligation of
      confidentiality; or (vii) is required to be disclosed pursuant to court
      order or by law; provided that the non-disclosing Party shall be provided
      with prompt written notice of any such requirement so that it may seek a
      protective order or other appropriate remedy. This Section shall survive
      any termination of this Agreement for a period of five (5) years
      thereafter. Each Party shall either return to the disclosing Party, or
      destroy, all Confidential Information received hereunder upon the
      expiration or termination of this Agreement, except that either Party may
      retain one (1) copy of such Confidential Information in order to satisfy
      any future legal obligations it may
have.

            


    

    


    
      	
              11.

            	
              Warranty:
      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.

            


    

    


    
      	
              12.

            	
              Mutual
      Indemnification:

            


    

    


    
      	
              (a)

            	
              Distributor
      will indemnify and hold Company harmless from and against any loss, cost,
      damage, expense, or other liability, including, without limitation,
      reasonable costs and attorney fees (“Costs”) incurred in
      connection with any and all third party claims, suits, investigations or
      enforcement actions (“Claims”) as a result of
      Distributor’s negligent acts, negligent omissions, or willful misconduct,
      or Distributor’s breach of this Agreement, except and to the extent caused
      by the negligence or willful misconduct of Company or Company’s breach of
      this Agreement.

            


    

    


    
      	
              (b)

            	
              Company
      will indemnify and hold Distributor harmless from and against any Costs
      for Claims incurred by Distributor as a result of Company’s manufacturing
      of the Products, negligent acts, negligent omissions, willful misconduct,
      or Company’s breach of this Agreement, except and to the extent caused by
      the negligence or willful misconduct of Distributor or Distributor’s
      breach of this Agreement.

            


    

    


    
      	
              (c)

            	
              In
      the event that Distributor is unable, due to the insolvency of any
      customer, to collect the full amount of an invoice for the Products from
      such customer, then Distributor shall have the right to charge back an
      amount equal to eighty-five percent (85%) of such uncollected invoice to
      Company.

            


    

    


    
      	
              (d)

            	
              As a
      condition of indemnification, the Party seeking indemnification shall
      notify, to the extent possible under applicable law, the indemnifying
      Party in writing promptly upon learning of any Claim for which
      indemnification may be sought hereunder. The indemnifying Party shall
      control the defense of such Claim and the indemnified Party shall have a
      right to participate in the defense of such Claim at its expense, and the
      Parties will cooperate in such defense. The indemnifying Party shall not
      settle any Claim without the written consent of the indemnified Party,
      which consent shall not be unreasonably
  withheld.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              13.

            	
              Limitation on
      Liability:

            


    

    


    
      	
               
      

            	
              IN
      NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
      INDIRECT OR SPECIAL DAMAGES OF ANY KIND WHATSOEVER IN CONNECTION WITH THIS
      AGREEMENT; PROVIDED, THAT NOTHING HEREIN SHALL LIMIT A PARTY'S RIGHT TO
      CLAIM INDEMNIFICATION FOR LOSSES IT HAS INCURRED AS A RESULT OF LIABILITY
      FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND
      WHATSOEVER TO THIRD PARTIES.

            


    

    


    
      	
              14.

            	
              Insurance:
      Distributor and Company shall maintain such policies of general
      liability, professional liability, and other insurance of the types and in
      amounts customarily carried by their respective businesses. Each Party
      shall provide the other with reasonable proof of insurance upon written
      request.

            


    

    


    
      	
              15.

            	
              Notice:
      All notices, consents, claims (for Costs or otherwise), waivers and
      other communications under this Agreement must be in writing (in the
      English language) and will be deemed to have been duly given when (i)
      delivered by hand (with written confirmation of receipt), (ii) sent by
      telecopier (with confirmation of receipt in a manner permitted herein), or
      (iii) when received by the addressee, if sent by courier or other delivery
      service, in each case to the appropriate address and telecopier numbers
      set forth below (or to such other addresses and telecopier numbers as a
      Party may designate by notice to the other
  Parties):

            


    

    


     

    
      	
               
      

            	
              If
      to Distributor:

            


    

     

    
      	 	
                  c/o
      Rogers Corporation

            
	
               
      

            	
                  One
      Technology Drive

            


    

    
      	
               
      

            	
                  Rogers,
      CT 06263

            


    

    
      	
               
      

            	
                  Facsimile No:
      +1-860-779-5585

            


    

    
      	
               
      

            	
                  Attn.:
      Corporate Secretary

            


    

    


    
      	
               
      

            	
              With
      copies to:

            


    

    


    
      	
               
      

            	
                  Burns
      & Levinson LLP

            


    

    
      	
               
      

            	
                  125
      Summer Street

            


    

    
      	
               
      

            	
                  Boston,
      MA  02110

            


    

    
      	
               
      

            	
                  Facsimile
      No:  +1-617- 345-3299

            


    

    
      	
               
      

            	
                  Attn:  Samuel
      M. Shafner, Esq.

            
	 	 
	 	
                  Rogers
      BVBA

            
	 	
                  Afrikalaan
      188

            
	 	
                  Gent,
      B-9000, Belgium

            
	 	
                  Facsimile No:
      +32-9-235-3658

            
	 	
                  Attn:
      Vice President, Rogers Europe

            
	 	 
	 	
                  Rogers
      Technologies (Suzhou)

            
	 	
                  338
      ShenHu Road

            
	 	
                  Suzhou
      Industrial Park,

            
	 	
                  Suzhou,

            
	 	
                  People's
      Republic of China 215122

            
	 	
                  Attn:
      Vice President, Asia

            
	 	 


    

    


    
    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      	
               
      

            	
              If
      to Company:

            
	 	 
	 	
              Rogers
      Induflex NV

            
	 	
              Ottergemsesteenweg
      799,

            
	 	
              9000
      Ghent, Belgium

            
	 	
              Facsimile
      No: +32-9-222-37-91

            
	 	
              Attn.:
      Joel Ludvigsen

            


    

    


    
      	
              16.

            	
              Severability:
      In the event any portion of this Agreement shall be held illegal, void or
      ineffective, such portion(s) shall be deemed stricken and the remaining
      portions hereof shall remain in full force and effect, except to the
      extent that doing so would result in a manifest injustice. Subject to the
      consent of both Parties, such consent not to be unreasonably withheld, if
      any of the terms or provisions of this Agreement are in conflict with any
      applicable statute or rule of law, then such terms or provisions shall be
      deemed inoperative to the extent that they may conflict therewith and
      shall be deemed to be modified to conform with such statute or rule of
      law.

            


    

    


    
      	
              17.

            	
              Audit: Both Parties shall
      have the right to conduct an audit of the other Party’s books and records
      on reasonable advance notice to determine whether the other Party has
      complied with the terms and provisions of this Agreement. Each Party shall
      pay their respective expenses associated with the audit. The audit shall
      be conducted at the audited Party’s place of business during such Party’s
      normal business hours; provided, that the auditors agree to be bound by
      confidentiality restrictions no less restrictive than are set forth
      herein.

            


    

    


    
      	
              18.

            	
              Entire
      Agreement: With regard to the issues addressed herein, this
      Agreement and the Exhibits hereto contain the entire agreement and
      understanding of the Parties, and supersedes any and all prior agreements
      and understandings regarding the same subject matter. No amendment,
      modification, revision, representation, warranty, promise or waiver of or
      to this Agreement shall be effective unless the same shall be in writing
      and signed by both Parties.

            


    

    


    
      	
              19.

            	
              Counterparts:
      This Agreement may be executed in any number of counterparts, all of which
      together shall constitute one and the same
  instrument.

            


    

    


    
      	
              20.

            	
              Assignment:
      Company may not assign this Agreement without the written consent
      of Distributor.  Distributor shall have the right to (a) assign
      this Agreement, and (ii) delegate certain administrative functions as set
      forth herein to an affiliated
entity.

            


    

    


    
      	
              21.

            	
              Delegation
      of Responsibilities: Distributor may
      engage a third party to conduct certain administrative functions on its
      behalf, including, but not limited to, data compilation and reporting
      services, financial accounting and processing services, or any other
      function relating to any of Distributor’s obligations set forth herein.
      Company agrees to cooperate with Distributor’s reasonable requests
      relating to Distributor’s engagement of any such third party and such
      third will be bound by confidentiality restrictions no less restrictive
      than are set forth herein.

            


    

    


    
      	
              22.

            	
              Force
      Majeure: Notwithstanding anything to the contrary herein, neither
      Party shall be liable in any manner for any delay to perform its
      obligations hereunder which are beyond a Party’s reasonable control,
      including, without limitation, any delay or failure due to strikes, labor
      disputes, riots, earthquakes, storms, hurricanes, floods or other extreme
      weather conditions, fires, explosions, acts of God, embargoes, war or
      other outbreak of hostilities, government acts or regulations, or the
      failure or inability of carriers, suppliers, delivery services, or
      telecommunications providers to provide services necessary to enable a
      Party to perform its obligations hereunder. In any such circumstance, the
      Party unable to perform its obligations shall notify the other Party of
      such circumstance, and said other Party shall have the right to terminate
      this Agreement immediately upon provision of written notice if the Party
      of the first part continues to be unable to perform its obligations
      hereunder for a period of thirty (30)
days.

            


    

    


    
      	
              23.

            	
              Waiver: No waiver of any term
      of this Agreement shall be valid unless waived in writing and signed by
      the Party against whom the waiver is sought. The failure of either Party
      to require performance by the other Party of any provision hereof shall
      not affect in anyway the right to require such performance at any time
      thereafter.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      	
              24.

            	
              Independent
      Contractors: Nothing in this Agreement is intended to create any
      relationship between Distributor and Company other than as independent
      contractors and neither Party, nor any of their employees, staff, agents,
      officers or directors shall be construed to be the agent, fiduciary,
      employee, or representative of the
other.

            


    

    


    
      	
              25.

            	
              Choice
      of Law: This Agreement and performance of the obligations
      hereunder, shall be governed by, and construed in accordance with, the
      laws of Belgium.  Any dispute, controversy or claim arising out
      of or relating to this Agreement, or the breach or invalidity thereof,
      will be settled by arbitration in accordance with the provisions of
      Section 9(f) of that certain Stock Purchase Agreement, dated as of the
      date hereof, by and among Rogers Corporation, a Massachusetts corporation
      and affiliate of Distributor, and Company, which are incorporated herein
      by reference, mutadis
      mutandis, as if they were expressly set forth
      herein.  The Parties expressly reject the applicability to this
      Agreement of the United Nations Convention on Contracts for the
      International Sale of Goods.  This Agreement may be translated
      into languages other than the English; provided, that in the event of
      conflict, the English language version shall
  control.

            


    

    


    
      	
              26.

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

            


    

    


    
      	
              27.

            	
              Guaranteed
      Supply: Company hereby represents to Distributor that during the
      Term it shall be able to provide Distributor with all Products ordered as
      requested in each purchase order. In the event that Company is unable to
      supply ordered Products, Company agrees to reimburse Distributor for all
      reasonable costs and liability incurred by Distributor resulting from such
      failure (including, without limitation, reasonable attorneys’ fees). Such
      reimbursements shall be received by Distributor within sixty (60) days
      following the request.

            


    

    


    
      	
              28.

            	
              Standard
      Forms: Without limiting the foregoing, the terms and conditions set
      forth in this Agreement (including any Exhibit hereto) shall supersede any
      inconsistent terms and conditions set forth in any purchase order or other
      standard form used by either Party.

            


    

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    In witness
whereof, the undersigned, duly authorized, has executed this Distribution
Agreement, effective as of the date first set forth above.

     

    COMPANY:

    
       

      Rogers
Induflex NV


       

      
        	
                By:

              	 	
                /s/ J. D.
      Ludvigsen

              
	 	 	 
	
                Print

              	 	 
	
                Name:

              	 	
                J. D.
      Ludvigsen

              
	 	 	 
	
                Title:

              	 	
                Managing
      Director

              
	 	 	 


      

       

      
 

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    
      DISTRIBUTOR:

    

    

      Rogers
Technologies (Suzhou) Co. Ltd.

       

    

    
      	
              By:

            	 	
              
                /s/ Michael L.
      Cooper

              

            
	 	 	 
	
              Print

            	 	 
	
              Name:

            	 	
              
                Michael L.
      Cooper

              

            
	 	 	 
	
              Title:

            	 	
              
                Vice President, Rogers
      Asia

              

            
	 	 	 


       

      
        Rogers
Technologies (Singapore) Inc.


      

      
        	
                By:

              	 	
                
                  /s/ Michael L.
      Cooper

                

              
	 	 	 
	
                Print

              	 	 
	
                Name:

              	 	
                
                  Michael L.
      Cooper

                

              
	 	 	 
	
                Title:

              	 	
                
                  Vice President, Rogers
      Asia

                

              
	 	 	 


         

        
          Rogers
Southeast Asia, Inc.

           

        

        
          
            	
                    By:

                  	 	
                    
                      /s/ Michael L.
      Cooper

                    

                  
	 	 	 
	
                    Print

                  	 	 
	
                    Name:

                  	 	
                    
                      Michael L.
      Cooper

                    

                  
	 	 	 
	
                    Title:

                  	 	
                    
                      Vice President, Rogers
      Asia