exv10w12






Exhibit 10.12




 


REDEMPTION,

ASSET TRANSFER

AND

CONTRIBUTION

AGREEMENT




by and among




CALGON MITSUBISHI CHEMICAL CORPORATION,




MITSUBISHI CHEMICAL CORPORATION,




and




CALGON CARBON CORPORATION




Dated as of February 12, 2010




 








 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	1.	 	 	DEFINITIONS
	 	 	9	 
	 
	 	 	 	 	“Acceptance Deadline”
	 	 	9	 
	 	 	 	 	“Accounts Receivable”
	 	 	9	 
	 	 	 	 	“Adjustment”
	 	 	9	 
	 	 	 	 	“Agent”
	 	 	9	 
	 	 	 	 	“Agreement”
	 	 	9	 
	 	 	 	 	“Ancillary Agreements”
	 	 	9	 
	 	 	 	 	“Anti-Corruption Laws”
	 	 	9	 
	 	 	 	 	“Applicable Contract”
	 	 	9	 
	 	 	 	 	“Assigned Intellectual Property”
	 	 	9	 
	 	 	 	 	“Balance Sheet”
	 	 	9	 
	 	 	 	 	“Benefit Arrangements”
	 	 	9	 
	 	 	 	 	“Best Efforts”
	 	 	9	 
	 	 	 	 	“Breach”
	 	 	10	 
	 	 	 	 	“Business”
	 	 	10	 
	 	 	 	 	“Calgon”
	 	 	10	 
	 	 	 	 	“Calgon’s Advisors”
	 	 	10	 
	 	 	 	 	“Calgon Indemnified Persons”
	 	 	10	 
	 	 	 	 	“Closing”
	 	 	10	 
	 	 	 	 	“Closing Balance Sheet”
	 	 	10	 
	 	 	 	 	“Closing Date”
	 	 	10	 
	 	 	 	 	“Closing Date Net Assets Value”
	 	 	10	 
	 	 	 	 	“CMCC”
	 	 	10	 
	 	 	 	 	“CMCC Existing Employees”
	 	 	10	 
	 	 	 	 	“Competing Business”
	 	 	10	 
	 	 	 	 	“Confidential Information”
	 	 	10	 
	 	 	 	 	“Consent”
	 	 	11	 
	 	 	 	 	“Contemplated Transactions”
	 	 	11	 
	 	 	 	 	“Contract”
	 	 	11	 
	 	 	 	 	“Contributed Intellectual Property”
	 	 	11	 
	 	 	 	 	“Contribution Amount”
	 	 	11	 
	 	 	 	 	“Damages”
	 	 	11	 
	 	 	 	 	“Disclosure Letter”
	 	 	11	 
	 	 	 	 	“Employee”
	 	 	11	 
	 	 	 	 	“Encumbrance”
	 	 	11	 
	 	 	 	 	“Environmental Law”
	 	 	11	 
	 	 	 	 	“Equity Contribution”
	 	 	12	 
	 	 	 	 	“Final Closing”
	 	 	12	 
	 	 	 	 	“Final Closing Date”
	 	 	12	 
	 	 	 	 	“First Purchase Shares”
	 	 	12	 
	 	 	 	 	“First Share Purchase Price”
	 	 	12	 
	 	 	 	 	“First Redemption”
	 	 	12	 






1









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	“Fukui Facility”
	 	 	12	 
	 	 	 	 	“GAAP”
	 	 	12	 
	 	 	 	 	“Government”
	 	 	12	 
	 	 	 	 	“Government Official”
	 	 	12	 
	 	 	 	 	“Governmental Authorization”
	 	 	12	 
	 	 	 	 	“Governmental Body”
	 	 	12	 
	 	 	 	 	“Hazardous Activity”
	 	 	13	 
	 	 	 	 	“Hazardous Materials”
	 	 	13	 
	 	 	 	 	“Income Tax Act”
	 	 	13	 
	 	 	 	 	“Income Tax Withholding Amount”
	 	 	13	 
	 	 	 	 	“Intellectual Property Agreement”
	 	 	13	 
	 	 	 	 	“Intellectual Property Assignment Certifications”
	 	 	13	 
	 	 	 	 	“Intellectual Property Purchase Price”
	 	 	13	 
	 	 	 	 	“Interim Balance Sheet”
	 	 	13	 
	 	 	 	 	“Joint Venture Agreement”
	 	 	13	 
	 	 	 	 	“Knowledge”
	 	 	13	 
	 	 	 	 	“Kurosaki Facility”
	 	 	13	 
	 	 	 	 	“Legal Requirement”
	 	 	14	 
	 	 	 	 	“Leased Employee”
	 	 	14	 
	 	 	 	 	“Leased Period”
	 	 	14	 
	 	 	 	 	“Material Adverse Change”
	 	 	14	 
	 	 	 	 	“MCC”
	 	 	14	 
	 	 	 	 	“MCC Associated Agreements”
	 	 	14	 
	 	 	 	 	“MCC Basket”
	 	 	14	 
	 	 	 	 	“MCC Cap”
	 	 	14	 
	 	 	 	 	“MCC Indemnified Persons”
	 	 	14	 
	 	 	 	 	“MCC Leased Employees”
	 	 	14	 
	 	 	 	 	“Mitsubishi Marks”
	 	 	14	 
	 	 	 	 	“Net Assets Value Resolution Accountant”
	 	 	14	 
	 	 	 	 	“Order”
	 	 	14	 
	 	 	 	 	“Ordinary Course of Business”
	 	 	14	 
	 	 	 	 	“Organizational Documents”
	 	 	14	 
	 	 	 	 	“Person”
	 	 	14	 
	 	 	 	 	“Personnel Lease Agreement”
	 	 	14	 
	 	 	 	 	“Proceeding”
	 	 	15	 
	 	 	 	 	“Prohibited Payment”
	 	 	15	 
	 	 	 	 	“Proprietary Rights Agreement”
	 	 	15	 
	 	 	 	 	“Redemption”
	 	 	15	 
	 	 	 	 	“Related Person”
	 	 	15	 
	 	 	 	 	“Release”
	 	 	15	 
	 	 	 	 	“Representative”
	 	 	15	 
	 	 	 	 	“Restricted Period”
	 	 	15	 
	 	 	 	 	“Second Purchase Shares”
	 	 	15	 
	 	 	 	 	“Second Share Purchase Price”
	 	 	15	 
	 	 	 	 	“Second Redemption”
	 	 	15	 
	 	 	 	 	“Share Acquisition Date”
	 	 	15	 






2









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	“Share Purchase Price”
	 	 	15	 
	 	 	 	 	“Share Restriction Period”
	 	 	15	 
	 	 	 	 	“Shares”
	 	 	15	 
	 	 	 	 	“Specified Intellectual Property Assets”
	 	 	16	 
	 	 	 	 	“Specified Net Assets Value”
	 	 	16	 
	 	 	 	 	“Tax”
	 	 	16	 
	 	 	 	 	“Tax Return”
	 	 	16	 
	 	 	 	 	“Technical Information”
	 	 	16	 
	 	 	 	 	“Threatened”
	 	 	16	 
	 	 	 	 	“Toyota”
	 	 	16	 
	 	 	 	 	“Toyota Co-owned Patents”
	 	 	16	 
	 	 	 	 	“Toyota License”
	 	 	16	 
	 	 	 	 	“Transition Period”
	 	 	16	 
	 
	 	2.	 	 	CONTRIBUTION; REDEMPTION; ASSET TRANSFER; CLOSING
	 	 	16	 
	 
	 	 	 	 	2.1 Equity Contribution
	 	 	16	 
	 	 	 	 	2.2 Redemption of Shares
	 	 	17	 
	 	 	 	 	2.3 Asset Transfer; License
	 	 	17	 
	 	 	 	 	2.4 Consideration
	 	 	18	 
	 	 	 	 	2.5 Closing
	 	 	18	 
	 	 	 	 	2.6 Closing Obligations
	 	 	19	 
	 	 	 	 	2.7 Final Closing Obligations
	 	 	20	 
	 	 	 	 	2.8 Payment of Adjustment Amount
	 	 	20	 
	 	 	 	 	2.9 Adjustment Procedure
	 	 	21	 
	 
	 	3.	 	 	REPRESENTATIONS AND WARRANTIES OF MCC TO CMCC AND CALGON
	 	 	22	 
	 
	 	 	 	 	3.1 Organization and Good Standing
	 	 	22	 
	 	 	 	 	3.2 Authority; No Conflict
	 	 	22	 
	 	 	 	 	3.3 Certain Proceedings
	 	 	22	 
	 	 	 	 	3.4 Title to Shares
	 	 	22	 
	 	 	 	 	3.5 Contributed Intellectual Property
	 	 	23	 
	 
	 	4.	 	 	REPRESENTATIONS AND WARRANTIES OF MCC TO CALGON
	 	 	24	 
	 
	 	 	 	 	4.1 Existence and Good Standing
	 	 	24	 
	 	 	 	 	4.2 Authority; No Conflict
	 	 	24	 
	 	 	 	 	4.3 Capitalization
	 	 	25	 
	 	 	 	 	4.4 Financial Statements
	 	 	25	 
	 	 	 	 	4.5 Books and Records
	 	 	25	 
	 	 	 	 	4.6 Title to Properties, Encumbrances
	 	 	25	 
	 	 	 	 	4.7 Condition and Sufficiency of Assets
	 	 	26	 
	 	 	 	 	4.8 Accounts Receivable
	 	 	26	 
	 	 	 	 	4.9 Inventory
	 	 	27	 
	 	 	 	 	4.10 No Undisclosed Liabilities
	 	 	27	 
	 	 	 	 	4.11 Taxes
	 	 	27	 
	 	 	 	 	4.12 No Material Adverse Change
	 	 	28	 
	 	 	 	 	4.13 Employee Benefits
	 	 	28	 






3









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	4.14 Compliance with Legal Requirements; Governmental Authorizations
	 	 	29	 
	 	 	 	 	4.15 Legal Proceedings; Orders
	 	 	30	 
	 	 	 	 	4.16 Absence of Certain Changes and Events
	 	 	31	 
	 	 	 	 	4.17 Contracts; No Defaults
	 	 	32	 
	 	 	 	 	4.18 Insurance
	 	 	34	 
	 	 	 	 	4.19 Environmental Matters
	 	 	34	 
	 	 	 	 	4.20 Employees
	 	 	35	 
	 	 	 	 	4.21 Labor Relations; Compliance
	 	 	35	 
	 	 	 	 	4.22 Intellectual Property
	 	 	36	 
	 	 	 	 	4.23 Compliance with Anti-Corruption Laws; Status of Agent Relationships
	 	 	37	 
	 	 	 	 	4.24 Relationships with Related Persons
	 	 	39	 
	 	 	 	 	4.25 Customer and Other Relations
	 	 	39	 
	 	 	 	 	4.26 Disclosure
	 	 	39	 
	 
	 	5.	 	 	REPRESENTATIONS AND WARRANTIES OF CALGON TO MCC
	 	 	39	 
	 
	 	 	 	 	5.1 Existence and Good Standing
	 	 	39	 
	 	 	 	 	5.2 Authority; No Conflict
	 	 	39	 
	 
	 	6.	 	 	REPRESENTATIONS AND WARRANTIES OF CALGON TO MCC
	 	 	40	 
	 
	 	 	 	 	6.1 Organization and Good standing
	 	 	40	 
	 	 	 	 	6.2 Authority; No Conflict
	 	 	40	 
	 	 	 	 	6.3 Certain Proceedings
	 	 	41	 
	 
	 	7.	 	 	COVENANTS
	 	 	41	 
	 
	 	 	 	 	7.1 Board and Shareholder Approval of Redemption
	 	 	41	 
	 	 	 	 	7.2 Change of Name
	 	 	41	 
	 	 	 	 	7.3 Nomination of Directors and Statutory Auditors
	 	 	41	 
	 	 	 	 	7.4 Registration of New Company Name, Directors and Statutory Auditors
	 	 	41	 
	 	 	 	 	7.5 Repayment of the Borrowing from MCFA
	 	 	41	 
	 	 	 	 	7.6 Proper Employees of CMCC
	 	 	42	 
	 	 	 	 	7.7 Access and Investigation
	 	 	42	 
	 	 	 	 	7.8 Operation of the Business of CMCC
	 	 	42	 
	 	 	 	 	7.9 Notification
	 	 	43	 
	 	 	 	 	7.10 No Negotiation
	 	 	44	 
	 	 	 	 	7.11 Confidentiality; Privilege
	 	 	44	 
	 	 	 	 	7.12 Restrictive Covenants
	 	 	45	 
	 	 	 	 	7.13 Record Retention and Access
	 	 	47	 
	 	 	 	 	7.14 IT Systems
	 	 	47	 
	 	 	 	 	7.15 Continuation of MCC Associated Agreements
	 	 	47	 
	 	 	 	 	7.16 Leased Employee Matters
	 	 	48	 
	 	 	 	 	7.17 Co-owned Patents
	 	 	48	 
	 	 	 	 	7.18 Restrictions Regarding Second Purchase Shares
	 	 	48	 
	 	 	 	 	7.19 Purchase activated carbon
	 	 	49	 






4









 






	 	 	 	 	 	 	 	 	 
	 	8.	 	 	CONDITIONS PRECEDENT TO CALGON’S OBLIGATION TO CLOSE
	 	 	49	 
	 
	 	 	 	 	8.1 Accuracy of Representations
	 	 	49	 
	 	 	 	 	8.2 Performance
	 	 	49	 
	 	 	 	 	8.3 No Proceedings
	 	 	50	 
	 	 	 	 	8.4 No Prohibition
	 	 	50	 
	 	 	 	 	8.5 Trademark Use
	 	 	50	 
	 	 	 	 	8.6 MCC Co-owned Patents
	 	 	50	 
	 	 	 	 	8.7 Financing Matters
	 	 	50	 
	 	 	 	 	8.8 Resignations; Certain Agreements
	 	 	50	 
	 	 	 	 	8.9 Due Diligence
	 	 	51	 
	 	 	 	 	8.10 No Material Adverse Change
	 	 	51	 
	 	 	 	 	8.11 Employees; Employment Violations
	 	 	51	 
	 	 	 	 	8.12 Office Lease
	 	 	51	 
	 	 	 	 	8.13 Assignment of Agreements
	 	 	51	 
	 	 	 	 	8.14 Assignment of Security
	 	 	51	 
	 	 	 	 	8.15 Material Consents
	 	 	51	 
	 	 	 	 	8.16 Exclusive Agreement
	 	 	52	 
	 
	 	9.	 	 	CONDITIONS PRECEDENT TO MCC’S OBLIGATION TO CLOSE
	 	 	52	 
	 
	 	 	 	 	9.1 Accuracy of Representations
	 	 	52	 
	 	 	 	 	9.2 Performance
	 	 	52	 
	 	 	 	 	9.3 Financing Matters
	 	 	52	 
	 	 	 	 	9.4 No Injunction
	 	 	52	 
	 
	 	10.	 	 	TERMINATION
	 	 	53	 
	 
	 	 	 	 	10.1 Termination of Events
	 	 	53	 
	 	 	 	 	10.2 Effect of Termination
	 	 	53	 
	 
	 	11.	 	 	INDEMNIFICATION; REMEDIES
	 	 	54	 
	 
	 	 	 	 	11.1 Survival; Right to Indemnification Not Affected by Knowledge
	 	 	54	 
	 	 	 	 	11.2 Indemnification and Payment of Damages by MCC
	 	 	54	 
	 	 	 	 	11.3 Indemnification and Payment of Damages by MCC—Environmental Matters
	 	 	55	 
	 	 	 	 	11.4 Indemnification and Payment of Damages by Calgon
	 	 	56	 
	 	 	 	 	11.5 Indemnification and Payment of Damages by Calgon—Environmental Matters
	 	 	56	 
	 	 	 	 	11.6 Time Limitations
	 	 	57	 
	 	 	 	 	11.7 Limitations on Amount—MCC
	 	 	57	 
	 	 	 	 	11.8 Limitations on Amount—Calgon
	 	 	58	 
	 	 	 	 	11.9 Procedure for Indemnification—Third-Party Claims
	 	 	58	 
	 	 	 	 	11.10 Procedure for Indemnification—Other Claims
	 	 	59	 
	 
	 	12.	 	 	GENERAL PROVISIONS
	 	 	59	 
	 
	 	 	 	 	12.1 Expenses
	 	 	59	 
	 	 	 	 	12.2 Public Announcements
	 	 	59	 
	 	 	 	 	12.3 Termination of Joint Venture Agreement
	 	 	60	 
	 	 	 	 	12.4 Waiver and Release
	 	 	60	 
	 	 	 	 	 
	 	 	 	 





5









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	12.5 Notices
	 	 	60	 
	 	 	 	 	12.6 Arbitration
	 	 	61	 
	 	 	 	 	12.7 Further Assurances
	 	 	61	 
	 	 	 	 	12.8 Waiver
	 	 	62	 
	 	 	 	 	12.9 Entire Agreement and Modification
	 	 	62	 
	 	 	 	 	12.10 Disclosure Letter
	 	 	62	 
	 	 	 	 	12.11 Assignments, Successors, and No Third-Party Rights
	 	 	62	 
	 	 	 	 	12.12 Severability
	 	 	63	 
	 	 	 	 	12.13 Section Headings, Construction
	 	 	63	 
	 	 	 	 	12.14 Governing Law
	 	 	63	 
	 	 	 	 	12.15 Counterparts
	 	 	63	 
	 	 	 	 	 
	 	 	 	 





6









 






EXHIBITS




Exhibit A            Assigned Intellectual Property

Exhibit B            Specified Intellectual Property Assets

Exhibit C            Licensed Intellectual Property

Exhibit D            Toyota Co-owned Patents

Exhibit E            Co-owned MCC Patents

Exhibit F            Co-owned CMCC Patent

Exhibit G            Major Terms and Conditions of the Loan Agreement

Exhibit H            IT Systems List

Exhibit I            Key Person List




7









 





REDEMPTION, ASSET TRANSFER AND CONTRIBUTION AGREEMENT




THIS REDEMPTION, ASSET TRANSFER AND CONTRIBUTION AGREEMENT (this “Agreement”) is made and entered
into as of this 12th day of February, 2010 by and among:





	(1)	 	CALGON MITSUBISHI CHEMICAL CORPORATION, a kabushiki kaisha duly organized and existing under
the laws of Japan with its principal office at 1-5, Kyobashi 1-chome, Chuo-ku, Tokyo, Japan
(“CMCC”);






	(2)	 	MITSUBISHI CHEMICAL CORPORATION, a kabushiki kaisha duly organized and existing under the
laws of Japan with its principal office at 14-1, Shiba 4-chome, Minato-ku, Tokyo, Japan
(“MCC”); and






	(3)	 	CALGON CARBON CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware, U.S.A., with its principal office at 400 Calgon Carbon Drive, Pittsburgh,
Pennsylvania, U.S.A. (“Calgon”).





(CMCC, MCC, and Calgon are hereinafter also collectively referred to as the “Parties” and
individually as a “Party”).




RECITALS




WHEREAS, Calgon and MCC entered into the Joint Venture Agreement dated August 12, 2002 (“Joint
Venture Agreement”) pursuant to which MCC acquired 26,020 shares (the “Shares”) of CMCC on October
1, 2002 (the “Share Acquisition Date”);




WHEREAS, Calgon owns 25,000 shares of CMCC;




WHEREAS, MCC wishes to sell to CMCC and CMCC wishes to purchase and redeem from MCC, the Shares, in
accordance with the terms and conditions of this Agreement;




WHEREAS, in connection with such redemption, the Joint Venture Agreement will be terminated;




WHEREAS, pursuant to the Joint Venture Agreement, MCC and CMCC entered into the MCC Personnel Lease
Agreement, the Building and Facility Lease Agreement, the Intellectual Property Agreement (the
“Intellectual Property Agreement”), the Utilities Supply Agreement, the Services Agreement and the
Office Lease Agreement, each of which is dated on or about October 1, 2002 (collectively, “MCC
Associated Agreements”);




WHEREAS, MCC wishes to sell to CMCC, and CMCC wishes to purchase from MCC, those certain
intellectual property assets that are currently licensed to CMCC pursuant to the Intellectual
Property Agreement; and




WHEREAS, MCC and CMCC wish to provide, among other things, for the continuation of certain of the
MCC Associated Agreements (except the Intellectual Property Agreement) for a specified period after
the Shares are purchased by CMCC.




NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as follows:




8









 








1. DEFINITIONS




     For purposes of this Agreement, the following terms have the meanings specified or referred to
in this Section 1:



     “Acceptance Deadline”—as defined in Section 7.6(3).



     “Accounts Receivable”—as defined in Section 4.8.



     “Adjustment”—as defined in Section 2.8.



     “Agent”—means: (i) any Person appointed by a power of attorney or similar instrument
granted by CMCC empowering that Person to represent CMCC in matters and dealings by or involving
CMCC; and, alternatively (ii) any agent, sales representative, sponsor or other Person appointed or
retained to assist CMCC to obtain business or promote the distribution, marketing or sales of
products or services of CMCC, including licensing agreements pursuant to which any Person
distributes, markets or sells the services, products or technology of CMCC in the name of CMCC.



     “Agreement” —as defined in the first paragraph of this Agreement.



     “Ancillary Agreements”— the certificates delivered pursuant to Sections 2.6(1)(ii),
2.6(3)(ii), 2.7 (1)(ii) and 2.7(2)(ii).



     “Anti-Corruption Laws”—means, collectively, (i) the United States Foreign Corrupt
Practices Act, (ii) applicable laws enacted pursuant to the Organization of Economic Cooperation
and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, including but not limited to the Unfair Competition Prevention Act (Act No.
47 of 1993, as amended), of Japan, (iii) the Act on Prohibition of Private Monopolization and
Maintenance of Fair Trade (Act No. 54 of 1947, as amended), and (iv) any other applicable laws of
Japan and other relevant jurisdictions prohibiting bribery, corruption, private monopolization, or
restraint of trade.



     “Applicable Contract”—any Contract (a) under which CMCC has or may acquire any rights, (b) under which CMCC has or
may become subject to any obligation or liability, or (c) by which CMCC or any of the assets owned
or used by it is or may become bound.



     “Assigned Intellectual Property” —as defined in Section 2.3.



     “Balance Sheet”—as defined in Section 4.4.



     “Benefit Arrangements”—as defined in Section 4.13.



     “Best Efforts”—the efforts that a prudent Person desirous of achieving a result would
use in similar circumstances to ensure that such result is achieved as expeditiously as possible.



9









 





     “Breach”—a “Breach” of a representation, warranty, covenant, obligation, or other
provision of this Agreement or any instrument delivered pursuant to this Agreement will be deemed
to have occurred if there is or has been (a) any inaccuracy in or breach of, or any failure to
perform or comply with, such representation, warranty, covenant, obligation, or other provision, or
(b) any claim (by any Person) or other occurrence or circumstance that is or was inconsistent with
such representation, warranty, covenant, obligation, or other provision, and the term “Breach”
means any such inaccuracy, breach, failure, claim, occurrence, or circumstance.



     “Business”—as defined in Section 7.12.



     “Calgon”—as defined in the first paragraph of this Agreement.



     “Calgon’s Advisors”—as defined in Section 7.7.



     “Calgon Indemnified Persons”—as defined in Section 11.2.



     “Closing”—as defined in Section 2.5.



     “Closing Balance Sheet”—as defined in Section 2.9(1).



     “Closing Date”—the date and time as of which the Closing actually takes place.



     “Closing Date Net Assets Value”—means the net assets value reflected on the Closing
Date Balance Sheet calculated in accordance with GAAP on a basis consistently applied with the
December 31, 2008 balance sheet.



     “CMCC”—as defined in the first paragraph of this Agreement.



     “CMCC Existing Employees”—as defined in Section 7.6.



     “Competing Business”—as defined in Section 4.24.



     “Confidential Information”—means of the following disclosed or exchanged in connection
with the Contemplated Transactions and all of the following owned or possessed by CMCC: (i) all
information that is a trade secret under applicable trade secret or other law; (ii) all information
concerning product specifications, data, know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current and planned
research and development, current and planned manufacturing or distribution methods and processes,
customer lists, current and anticipated customer requirements, price lists, market studies,
business plans, computer hardware, computer software and database technologies, systems, structures
and architectures; (iii) all information concerning the business and affairs of the disclosing
party (which includes historical and current financial statements, financial projections and
budgets, tax returns and accountants’ materials, historical, current and projected sales, capital
spending budgets and plans, business plans, strategic plans, marketing and advertising plans,
publications, client and customer lists and files, contracts, the names and backgrounds of key
personnel and personnel training techniques and materials, however documented), and all information
obtained from review of the disclosing party’s documents or property or discussions with the
disclosing party regardless of the form of the communication; (iv)



10









 





all proprietary information of CMCC; and (v) all notes, analyses, compilations, studies,
summaries and other material prepared by the receiving party to the extent containing or based, in
whole or in part, upon any information included in the foregoing. “Confidential Information” shall
not include any information that is already known to a party or to others not bound by a duty of
confidentiality or information that is publicly available through no fault of such party.




     “Consent”—any approval, consent, ratification, waiver, or other authorization
(including any Governmental Authorization).



     “Contemplated Transactions”—all of the transactions contemplated by this Agreement and
the Ancillary Agreements.



     “Contract”—any agreement, contract, obligation, promise, or undertaking (whether
written or oral and whether express or implied) that is legally binding.



     “Contributed Intellectual Property”—as defined in Section 2.3(2).



     “Contribution Amount”—as defined in Section 2.1.



     “Damages”—as defined in Section 11.2.



     “Disclosure Letter”—the disclosure letter delivered by MCC to Calgon concurrently with
the execution and delivery of this Agreement.



     “Employee”—as defined in Section 4.13.



     “Encumbrance”—any charge, claim, community property interest, condition, equitable
interest, lien, option, pledge, security interest, right of first refusal, or restriction of any
kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any
other attribute of ownership.



     “Environmental Law”—any Legal Requirement that requires or relates to the protection
of the environment or to human health and safety including, without limitation, (a) the Basic
Environment Act (Act No. 91 of 1993, as amended) of Japan, Air Pollution Control Act (Act No. 97 of
1968, as amended) of Japan, Water Pollution Control Act (Act No. 138 of 1970, as amended) of Japan,
Act on Special Measures against Dioxins (Act No. 105 of 1999, as amended) of Japan, Offensive Odor
Control Act (Act No. 91 of 1971, as amended) of Japan, Act on Confirmation, etc. of Releases of
Amounts of Specific Chemical Substances in the Environment and Promotion of Improvements to the
Management Thereof (Act No. 86 of 1999, as amended) of Japan, Soil Contamination Countermeasures
Act (Act No. 53 of 2002, as amended) of Japan, Waste Management and Public Cleansing Act (Act No.
137 of 1970, as amended) of Japan, and any analogous national or local statutes, ordinances, rules
and regulations promulgated under such statutes or ordinances in Japan currently in effect; (b) all
other applicable laws of any federal, foreign, state, prefecture, or local government; (b) all
other requirements pertaining to reporting, licensing, permitting, investigation or remediation of
emissions, discharges, Releases or threats of Releases of Hazardous Materials into the air, surface
water, groundwater or land, or relating to the manufacture, processing, distribution, use, sale,
treatment, receipt, storage, disposal, transport or



11









 





handling of Hazardous Materials, and (c) all other requirements pertaining to the protection
of the health and safety of employees or the public.




     “Equity Contribution”—as defined in Section 2.1.



     “Final Closing”—as defined in Section 2.5.



     “Final Closing Date”—the date and time as of which the Final Closing actually takes
place.



     “First Purchase Shares”—as defined in Section 2.2.



     “First Share Purchase Price”—as defined in Section 2.4.



     “First Redemption”—as defined in Section 2.2.



     “Fukui Facility”—the facility of CMCC located at Aza Hamawari 152-2, Yonodu 49,
Mikuni-cho, Sakai-City, Fukui, Japan.



     “GAAP”—generally accepted Japanese accounting principles, applied on a basis
consistent with the basis on which the Balance Sheet and the other financial statements referred to
in Section 4.4 were prepared.



     “Government”—includes, without limitation: (a) any government, including all levels
and subdivisions of government from national to local; (b) any government agency, department,
committee or other instrumentality; (c) any government-owned or government-managed company
(including, for example, a national oil company); (d) any political party; and (e) any public
international organization (including, for example, the United Nations, the World Bank, the
International Monetary Fund, etc.).



     “Government Official”—includes, (i) any officer, employee or agent of any Government or of any department, agency or
instrumentality (including any business or corporate entity owned, controlled, or managed by a
Government, such as a government-owned or —controlled water company) thereof, or any Person acting
in an official capacity or performing public duties or functions on behalf of any such Government,
department, agency or instrumentality, (ii) any political party or official thereof, (iii) any
candidate for public office, or (iv) any officer, employee or agent of a public international
organization, including, but not limited to, the United Nations, the International Monetary Fund or
the World Bank.




     “Governmental Authorization”—any approval, Consent, license, permit, waiver, or other
authorization issued, granted, given, or otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement.



     “Governmental Body”—any: (a) nation, state, prefecture, county, city, town, village,
district, or other jurisdiction of any nature; (b) national, state, prefectural, local, municipal,
foreign, or other government; (c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and any court or other
tribunal); (d) multi-national organization or body; or (e) body exercising, or entitled to
exercise,



12









 





any administrative, executive, judicial, legislative, police, regulatory, or taxing authority
or power of any nature.




     “Hazardous Activity”—the distribution, generation, handling, importing, management,
manufacturing, processing, production, refinement, Release, storage, transfer, transportation,
treatment, or use (including any withdrawal or other use of groundwater) of Hazardous Materials in,
on, under, about, or from the applicable facility or any part thereof into the environment, and any
other act, business, operation, or thing that increases the danger, or risk of danger, or poses an
unreasonable risk of harm to persons or property on or off the applicable facility, or that may
affect the value of the applicable facility or CMCC.



     “Hazardous Materials”—any waste or other substance that is listed, defined,
designated, or classified as, or otherwise determined to be, hazardous, radioactive, or toxic or a
pollutant or a contaminant under or pursuant to any Environmental Law.



     “Income Tax Act”—the Income Tax Act (Act No. 33 of March 31, 1965) of Japan.



     “Income Tax Withholding Amount”—the portion of the Share Purchase Price that CMCC is
obligated to withhold and pay to the Japanese government pursuant to Article 212, paragraph 3,
Article 174, paragraph 1, item 2, Article 25, paragraph 4, item 4 of the Income Tax Act.



     “Intellectual Property Agreement”—as defined in the Recitals of this Agreement.



     “Intellectual Property Assignment Certifications”—as defined in Section 2.6.



     “Intellectual Property Purchase Price”—as defined in Section 2.4.



     “Interim Balance Sheet”—as defined in Section 4.4.



     “Joint Venture Agreement”—as defined in the Recitals to this Agreement.



     “Knowledge”—an individual will be deemed to have “Knowledge” of a particular fact or
other matter if: (a) such individual is actually aware of such fact or other matter; or (b) a
prudent individual could be expected to discover or otherwise become aware of such fact or other
matter in the course of conducting a reasonably comprehensive investigation concerning the
existence of such fact or other matter. A Person (other than an individual) will be deemed to have
“Knowledge” of a particular fact or other matter if any individual who is serving, or who has at
any time served, as a director, officer, partner, executor, or trustee of such Person (or in any
similar capacity) has, or at any time had, Knowledge of such fact or other matter. Notwithstanding
the foregoing, the Knowledge of directors of CMCC who are also employees of Calgon, the Executive
Director of Corporate Planning of CMCC, and the Director of Corporate Planning of CMCC will not be
attributed to CMCC and the Knowledge of CMCC or facts or other matters related to CMCC or its
business shall not be attributed to any of the foregoing individuals solely because of their
position as an officer or director of CMCC.



     “Kurosaki Facility”—the plant of MCC located at Kurosaki Shiroishi 1-1,
Yahatanishi-Ku, Kitakyushu-City, Fukuoka, Japan.



13









 





     “Legal Requirement”—any national, federal, prefectural, state, local, municipal,
foreign, international, multinational, or other administrative order, ordinal, code, decree,
constitution, law, ordinance, principle of common law, rule, regulation, statute, or treaty.



     “Leased Employee”—as defined in Section 7.12.



     “Leased Period”—as defined in Section 7.16.



     “Material Adverse Change”—As defined in Section 4.12.



     “MCC”—as defined in the first paragraph of this Agreement.



     “MCC Associated Agreements”—as defined in the Recitals to this Agreement.



     “MCC Basket”—as defined in Section 11.7.



     “MCC Cap”—as defined in Section 11.7.



     “MCC Indemnified Persons”—as defined in Section 11.4



     “MCC Leased Employees”—as defined in Section 7.6.



     “Mitsubishi Marks”—as defined in Section 7.2.



     “Net Assets Value Resolution Accountant”—as defined in Section 2.9(2).



     “Order”—any award, decision, injunction, judgment, order, ruling, subpoena, or verdict
entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body
or by any arbitrator.



     “Ordinary Course of Business”—an action taken by a Person will be deemed to have been
taken in the “Ordinary Course of Business” only if: (a) such action is consistent with the past
practices of such Person and is taken in the ordinary course of the normal day-to-day operations of
such Person; (b) such action is not required to be authorized by the board of directors of such
Person (or by any Person or group of Persons exercising similar authority); and (c) such action is
similar in nature and magnitude to actions customarily taken, without any authorization by the
board of directors (or by any Person or group of Persons exercising similar authority), in the
ordinary course of the normal day-to-day operations of other Persons that are in the same line of
business as such Person.



     “Organizational Documents”—(a) any charter, articles of association, or similar
document adopted or filed in connection with the creation, formation, or organization of a Person;
and (b) any amendment to any of the foregoing.



     “Person”—any individual, corporation (including any non-profit corporation), general
or limited partnership, limited liability company, joint venture, estate, trust, association,
organization, or other entity or Governmental Body.



     “Personnel Lease Agreement”—as defined in Section 7.16.



14









 





     “Proceeding”—any action, arbitration, audit, hearing, investigation, litigation, or
suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought,
conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.



     “Prohibited Payment”—means any payment or provision of money or anything of value
(including any loan, reward, advantage or benefit of any kind), either directly or indirectly, to
any Government Official or relative of any Government Official, to influence any act, decision or
omission of any Government Official, to obtain or retain business, to direct business to CMCC or to
gain any advantage or benefit for CMCC.




     “Proprietary Rights Agreement”—as defined in Section 4.20(2).



     “Redemption”—as defined in Section 2.2.



     “Related Person”—means (a) with respect to a particular individual: (i) each other
member of such individual’s family (including spouse, siblings, ancestors, and lineal descendents);
(ii) any Person that is directly or indirectly controlled by such individual or one (1) or more
members of such individual’s family; (iii) any Person in which such individual or members of such
individual’s family hold (individually or in the aggregate) a material interest; and (b) with
respect to a specified Person other than an individual: (i) any Person that directly or indirectly
controls, is directly or indirectly controlled by, or is directly or indirectly under common
control with such specified Person; (ii) any Person that holds a material interest in such
specified Person; (iii) any Person in which such specified Person holds a material interest; and
(iv) any Related Person of any individual described in clause (b)(ii) or (b)(iii).



     “Release”—any spilling, leaking, emitting, discharging, depositing, escaping,
leaching, dumping, or other releasing into the Environment, whether intentional or unintentional.



     “Representative”—with respect to a particular Person, any director, officer, employee,
agent, consultant, advisor, or other representative of such Person, including legal counsel,
accountants, and financial advisors.



     “Restricted Period”—As defined in Section 7.12(3).



     “Second Purchase Shares”—as defined in Section 2.2.



     “Second Share Purchase Price”—as defined in Section 2.4.



     “Second Redemption”—as defined in Section 2.2.



     “Share Acquisition Date”—as defined in the Recitals to this Agreement.



     “Share Purchase Price”—as defined in Section 2.4.



     “Share Restriction Period”—as defined in Section 7.18(1).



     “Shares”—as defined in the Recitals of this Agreement.



15









 





     “Specified Intellectual Property Assets”—as defined in Section 4.22.



     “Specified Net Assets Value”—means 950 million Japanese Yen as the net assets value
reflected on the forecasted March 31, 2010 balance sheet of CMCC as agreed by MCC and Calgon.



     “Tax”— any present or future tax, levy, impost, duty, charge, assessment or fee of any
nature (including interest, penalties and additions thereto) that is imposed by any government or
other taxing authority in any manner whatsoever such as self-assessment and withholding at source,
including but not limited to income tax, corporate tax, consumption tax, inhabitant tax, enterprise
tax, stamp tax, fixed asset tax, and customs duties.



     “Tax Return”—any return (including any information return), report, statement,
schedule, notice, form, or other document or information filed with or submitted to, or required to
be filed with or submitted to, any Governmental Body in connection with the determination,
assessment, collection, or payment of any Tax owed to a Governmental Body or in connection with the
administration, implementation, or enforcement of or compliance with any Legal Requirement relating
to any Tax.



     “Technical Information”—all data, know-how and any other technical information
developed and owned by MCC on the Closing Date with respect to the technology owned by MCC for the
manufacture, use, and sale of activated carbon, regenerated activated carbon and other carbon
products made of activated carbon.



     “Threatened”—a claim, Proceeding, dispute, action, or other matter will be deemed to
have been “Threatened” if any demand or statement has been made (orally or in writing) or any
notice has been given (orally or in writing), or if any other event has occurred or any other
circumstances exist, that would lead a prudent Person to conclude that such a claim, Proceeding,
dispute, action, or other matter is likely to be asserted, commenced, taken, or otherwise pursued
in the future.



     “Toyota”—as defined in Section 7.17.



     “Toyota Co-owned Patents”—as defined in Section 3.5(3).



     “Toyota License”—as defined in Section 7.17.



     “Transition Period”—as defined in Section 7.2.




	2.	 	CONTRIBUTION; REDEMPTION; ASSET TRANSFER; CLOSING
	 
	2.1	 	Equity Contribution
	 
	 	 	If CMCC has insufficient funds to pay the Second Share Purchase Price to purchase and redeem
the Second Purchase Shares from MCC at the Final Closing, on the terms and subject to the
conditions set forth in this Agreement, at the Final Closing, Calgon shall make an equity
contribution to CMCC, provided in no event shall the voting rights of Calgon or MCC be
affected by any such contribution, (the “Equity Contribution”) of the





16









 





	 	 	 amount required to enable CMCC to pay the Second Share Purchase Price (the “Contribution
Amount”).






	2.2	 	Redemption of Shares






	 	(1)	 	On the terms and subject to the conditions set forth in this Agreement, at
the Closing, MCC shall sell, assign, transfer, convey, and deliver to CMCC, and CMCC
shall purchase and redeem from MCC, 19,770 shares of the Shares (the “First Purchase
Shares”), free and clear of all Encumbrances (the “First Redemption”).
	 
	 	(2)	 	On the terms and subject to the conditions set forth in this Agreement, at
the Final Closing, MCC shall sell, assign, transfer, convey, and deliver to CMCC, and
CMCC shall purchase and redeem from MCC, 6,250 shares of the Shares (the “Second
Purchase Shares”), free and clear of all Encumbrances (the “Second Redemption”,
together with the First Redemption, the “Redemption”). In case CMCC can not purchase
and redeem the Second Purchase Shares from MCC as of the Final Closing for any reason,
including without limitation a shortage of the surplus, Calgon shall purchase the
Second Purchase Shares from MCC under same terms and conditions of the Second
Redemption. Payment by Calgon to purchase the Second Purchase Shares shall be in full
satisfaction of the Second Purchase Price.






	2.3	 	Asset Transfer; License






	 	(1)	 	On the terms and subject to the conditions set forth in this Agreement, at
Closing, MCC shall sell, assign, transfer, convey, and deliver to CMCC, and CMCC shall
purchase from MCC, the intellectual property assets set forth on Exhibit A (the
“Assigned Intellectual Property”), free and clear of all Encumbrances.
	 
	 	(2)	 	On the terms and subject to the conditions set forth in this Agreement, at
Closing, MCC shall assign, transfer, convey, and deliver to CMCC all of MCC’s rights in
the patent applications identified on Exhibit E (“Co-owned MCC Patents”).
	 
	 	(3)	 	On the terms and subject to the conditions set forth in this Agreement, MCC
agrees to grant and hereby grants to CMCC a non-exclusive, worldwide, perpetual,
non-transferable, royalty-free license, under MCC’s patents and patent applications
listed in Exhibit C and under the Technical Information (collectively, the “Licensed
Intellectual Property”, together with the Assigned Intellectual Property, the
“Contributed Intellectual Property”) to manufacture, have manufactured, use, and sell
activated carbon, regenerated activated carbon and other carbon products made of
activated carbon. CMCC may grant to its customers to whom CMCC sells carbon materials,
sublicenses of claimed inventions as to the use of such carbon materials in Licensed
Intellectual Property, to the extent necessary for such sales. CMCC may transfer its
rights the Licensed Intellectual Property to its sucessors and assigns. From and after
the Closing, MCC shall take any and all actions required to prosecute and maintain the
patents





17









 





	 	 	 	and patent applications listed in Exhibit C, provided, however, that MCC may
abandon such patents and patent applications after providing CMCC fifteen (15) days
advance written notice thereof. If CMCC represents in writing to MCC within fifteen
(15) days from such notification, its desire to obtain from MCC the patent applications
and patents to be abandoned, then MCC agrees to immediately assign such patent
applications and patents without any compensation and to cooperate with CMCC and to
cause its employees to cooperate with CMCC, in each case, as reasonably requested by
CMCC in connection with its assingnment procedure of any such patents or patent
applications.
	 
	 	(4)	 	It is confirmed that Japanese patent No.4006931 provided in Exhibit A is to be
assigned from MCC to CMCC under Section 2.3 (1) in this Agreement. Effective as of the
Closing Date, CMCC hereby grants to MCC and The Kansai Coke and Chemicals Co., Ltd. a
non-exclusive, worldwide, non-transferable, royalty free license, without the right to
sublicense, to manufacture, use, and sell under Japanese patent No.4006931 using spent
activated carbon provided directly or through distributors by CMCC or any third parties
designated by CMCC; provided that such license shall terminate upon either an
assignment by or a change of control with respect to MCC or Kansai Coke and Chemicals
Co., Ltd.
	 
	 	(5)	 	MCC and CMCC hereby agree to terminate the Intellectual Property Agreement
dated October 1, 2002 effective as of the Closing Date.






	2.4	 	Consideration






	 	(1)	 	The purchase price for the First Purchase Shares shall be 721,810,146 Japanese
Yen (the “First Share Purchase Price”).
	 
	 	(2)	 	The purchase price for the Second Purchase Shares shall be 228,189,854 Japanese
Yen (the “Second Share Purchase Price”, together with the First Share Purchase Price,
the “Share Purchase Price”).
	 
	 	(3)	 	The price for assigning the Assigned Intellectual Property and MCC’s rights in
the Co-owned MCC Patents and licensing the Licensed Intellectual Property shall be
1,000,000 Japanese Yen (“Intellectual Property Purchase Price”).






	2.5	 	Closing






	 	(1)	 	The closing of the purchase and sale of the First Purchase Shares, the
Assigned Intellectual Property, and MCC’s interest in the Co-owned MCC Patents and the
license of the Licensed Intellectual Property (the “Closing”) provided for in this
Agreement will take place at the offices of Anderson Mori & Tomotsune in Tokyo, Japan,
at 9:00 a.m. (local time) on the later of (1) March 31, 2010, or (2) or at such other
time and place as the parties may mutually agree. Subject to the provisions of Section
10, failure to consummate the purchase and sale provided for in this Agreement on the
date and time and at the place determined pursuant to this Section 2.5(1) will not
result in the termination of this Agreement and will not relieve any party of any
obligation under this Agreement. Except as provided in this Section




18









 






	 	 	 	2.5(1) all transactions at the Closing shall be deemed to take place simultaneously
and no transaction at the Closing shall be deemed to have been completed and no
documents delivered until all transactions have been completed and all documents
delivered.
	 
	 	(2)	 	The closing of the Equity Contribution (if applicable) and the purchase and
sale of the Second Purchase Shares (the “Final Closing”) provided for in this Agreement
will take place at the offices of Anderson Mori & Tomotsune in Tokyo, Japan, at 9:00
a.m. (local time) on the later of (1) March 31, 2011, or (2) or at such other time and
place as the parties may mutually agree. Subject to the provisions of Section 10,
failure to consummate the purchase and sale provided for in this Agreement on the date
and time and at the place determined pursuant to this Section 2.5(2) will not result in
the termination of this Agreement and will not relieve any party of any obligation
under this Agreement. Except as provided in this Section 2.5(2) all transactions at
the Final Closing shall be deemed to take place simultaneously and no transaction at
the Final Closing shall be deemed to have been completed and no documents delivered
until all transactions have been completed and all documents delivered.






	2.6	 	Closing Obligations
	 
	 	 	At the Closing:






	 	(1)	 	Calgon will deliver to each of MCC and CMCC: (i) a copy of the resolutions of
the board of directors of Calgon authorizing this Agreement and the Contemplated
Transactions, and (ii) a certificate executed by Calgon representing and warranting to
the recipient that each of Calgon’s representations and warranties made to the
recipient in this Agreement was accurate in all respects as of the date of this
Agreement and, except as otherwise stated in such certificate, is accurate in all
respects as of the Closing Date as if made on the Closing Date.
	 
	 	(2)	 	MCC will deliver to CMCC: (i) certificates representing the First Purchase
Shares, duly issued; and (ii) such documentation as Calgon, in its reasonable
discretion, determines is necessary to transfer the Assigned Intellectual Property in
all applicable jurisdictions executed by MCC (the “Intellectual Property Assignment
Certifications”).
	 
	 	(3)	 	MCC will deliver to each of Calgon and CMCC: (i) a copy of the resolutions of
the board of directors of MCC authorizing this Agreement and the Contemplated
Transactions, and (ii) a certificate executed by MCC representing and warranting to the
recipient that each of MCC’s representations and warranties made to the recipient in
this Agreement was accurate in all respects as of the date of this Agreement and,
except as otherwise stated in such certificate, is accurate in all respects as of the
Closing Date as if made on the Closing Date.
	 
	 	(4)	 	CMCC will deliver to MCC payment of an amount equal to the Intellectual
Property Purchase Price plus the First Share Purchase Price less the Income Tax





19









 





	 	 	 	Withholding Amount by wire transfer to an account specified by MCC. CMCC will deliver to
Calgon the Record of Shareholders of CMCC as of immediately after the First Redemption.
	 
	 	(5)	 	CMCC will deliver to each of MCC and Calgon a copy of the resolutions of the
board of directors of CMCC authorizing this Agreement and the Contemplated
Transactions.






	 	 	As soon as reasonably practicable following the Closing, CMCC will deliver the Income Tax
Withholding Amount to the appropriate Governmental Body of Japan as required by the Income
Tax Act in full satisfaction of the First Share Purchase Price.






	2.7	 	Final Closing Obligations
	 
	 	 	At the Final Closing:






	 	(1)	 	Calgon will deliver to CMCC: (i) if applicable, the Contribution Amount by wire
transfer to an account specified by CMCC, and (ii) a certificate executed by Calgon
representing and warranting to CMCC that each of Calgon’s representations and
warranties in Section 6 are accurate in all respects as of the Final Closing Date as if
made on the Final Closing Date.
	 
	 	(2)	 	MCC will deliver to CMCC: (i) certificates representing the Second Purchase
Shares, duly issued, and (ii) a certificate executed by MCC representing and warranting
to CMCC that each of MCC’s representations and warranties in Sections 3.1, 3.2, 3.3,
and 3.4 are accurate in all respects as of the Final Closing Date as if made on the
Final Closing Date.
	 
	 	(3)	 	CMCC will deliver to MCC payment of the Second Share Purchase Price less the
Income Tax Withholding Amount by wire transfer to an account specified by MCC. CMCC
will deliver to Calgon the Record of Shareholders of CMCC as of immediately after the
Equity Contribution (if applicable) and the Second Redemption.






	 	 	As soon as reasonably practicable following the Final Closing, CMCC will deliver the Income
Tax Withholding Amount to the appropriate Governmental Body of Japan as required by the
Income Tax Act in full satisfaction of the Second Share Purchase Price.






	2.8	 	Payment of Adjustment Amount
	 
	 	 	Subject to Section 2.8(3) below, MCC or CMCC, as applicable, shall make a payment to the
other party as provided below (the “Adjustment”):






	 	(1) 	If the Specified Net Assets Value is greater than the Closing Date Net Assets
Value, MCC shall pay to CMCC 51% of the amount of such difference.
	 
	 	(2) 	If the Specified Net Assets Value is less than the Closing Date Net Assets
Value, CMCC shall pay to MCC 51% of the amount of such difference.






20











 






	 	(3) 	 	No Adjustment shall be made if the amount of such Adjustment is equal to or less than ¥10,000,000.






	 	(4) 	 	Payment of the amount of such Adjustment shall be made by adjusting the Second Share Purchase Price and made at the Final Closing by a wire transfer to an account specified by the applicable recipient.





2.9 Adjustment Procedure





	 	(1)	 	Within ninety (90) days after the Closing Date, Calgon shall cause to be
prepared and delivered to MCC a closing balance sheet as of the Closing Date reflecting
the Closing Date Net Assets Value (the “Closing Balance Sheet”). The Closing Balance
Sheet shall be prepared in accordance with GAAP on a basis consistently applied with
the December 31, 2008 balance sheet.
	 
	 	(2)	 	Within thirty (30) days after receipt of the Closing Balance Sheet, MCC shall
advise Calgon in writing whether it agrees with the determination of the Closing Date
Net Assets Value presented in the Closing Balance Sheet or whether it objects to the
same. In the event of an objection, MCC shall specify in writing its objections with
particularity and provide Calgon with its view as to the proper calculation of the
amount of the Closing Date Net Assets Value. If MCC does not provide Calgon with
written notice of an objection to the Closing Balance Sheet within said thirty (30)
day period, MCC shall be deemed to have accepted the Closing Balance Sheet as
delivered by Calgon. Calgon shall respond in writing to MCC’s objections no later
than thirty (30) days after receipt thereof. If Calgon fails to so respond or
responds but is unable to reach an agreement with MCC on the amount of the Closing
Date Net Assets Value by no later than thirty (30) days after the receipt of MCC’s
objection, then either party may submit the determination to an independent accounting
firm of national standing mutually selected by MCC and Calgon (the “Net Assets Value
Resolution Accountant”), who shall be directed to determine the Closing Date Net
Assets Value and whose decision shall be final and binding. In the event that MCC and
Calgon are unable to mutually agree on the selection of an accounting firm of national
standing to conduct the final determination of the Closing Date Net Assets Value, then
MCC and Calgon shall each select an independent accounting firm of national standing
and the resulting two independent accounting firms shall mutually select a third
independent accounting firm of national standing who shall be deemed the Net Assets
Value Resolution Accountant and whose decision shall be final and binding on MCC and
Calgon.
	 
	 	(3)	 	The expenses of the Net Assets Value Resolution Accountant shall be (i) paid
by MCC if the Net Assets Value Resolution Accountant confirms the amount of the
Closing Date Net Assets Value as set forth on the Closing Balance Sheet, (ii) paid by
Calgon if the Net Assets Value Resolution Accountant determines that the Closing Date
Net Assets Value exceeds the amount set forth on the Closing Balance Sheet by more
than 10%, or (iii) borne equally by MCC and Calgon in all other instances.




21









 










3. REPRESENTATIONS AND WARRANTIES OF MCC TO CMCC AND CALGON




       MCC represents and warrants to CMCC and Calgon, as of the date hereof, as of the Closing Date,
and, except with respect to Section 3.5, as of the Final Closing Date, as follows:


3.1 Organization and Good Standing





	 	 	MCC is a kabushiki kaisha duly organized, validly existing and in good standing under the
laws of Japan.




3.2 Authority; No Conflict





	 	(1)	 	This Agreement constitutes the legal, valid, and binding obligation of MCC,
enforceable against MCC in accordance with its terms. Upon the execution and delivery
by MCC of each of the Ancillary Agreements to which MCC is a party, such Ancillary
Agreements will constitute the legal, valid, and binding obligations of MCC,
enforceable against MCC in accordance with their respective terms. MCC has the
absolute and unrestricted right, power, authority, and capacity to execute and deliver
this Agreement and the Ancillary Agreements to which MCC is a party and to perform its
obligations hereunder and thereunder.
	 
	 	(2)	 	Neither the execution, delivery or performance of this Agreement and each of
the Ancillary Agreements to which MCC is a party, nor the consummation of Contemplated
Transactions will directly or indirectly (with or without notice or lapse of time): (i)
violate or contravene any Legal Requirement or Order to which MCC is subject, or any
provision of MCC’s internal regulations, (ii) violate any of MCC’s Organizational
Documents, (iii) conflict with, result in any contravention or violation or breach of,
constitute a default under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require any notice under any
Contract to which MCC is a party or by which it is bound or purports to be binding on
MCC or to which any of its assets is subject, or (iv) result in the creation or
imposition of any Encumbrance on the Shares or the Contributed Intellectual Property.
MCC is not and will not be required to give notice to or obtain any Consent from any
Person in connection with (A) the execution and delivery of this Agreement and each of
the Ancillary Agreements to which MCC is a Party, or (B) the consummation or
performance of any of the Contemplated Transactions.




3.3 Certain Proceedings





	 	 	There is no pending Proceeding that has been commenced against MCC (or that MCC intends to
initiate) and that challenges, or may have the effect of preventing, delaying, making
illegal, or otherwise interfering with, any of the Contemplated Transactions.




3.4 Title to Shares





	 	 	On the date hereof through and including the Closing Date, MCC is and shall be the legal
owner, beneficially and of record, of the entire right, title and interest in and to the
Shares,




22









 






	 	 	free and clear of any Encumbrances of any kind. From and after the Closing Date
through and including the Final Closing Date, MCC is and shall be the legal owner,
beneficially and of record, of the entire right, title and interest in and to the Second
Purchase Shares, free and clear of any Encumbrances of any kind. MCC is not a party to any
option, warrant, purchase right, right of first refusal, preemptive right or other contract
or commitment that
could require MCC to sell, transfer, or otherwise dispose of any of the Shares other than
pursuant to this Agreement. MCC is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any of the Shares, other than the
Joint Venture Agreement. As of the Closing, the First Purchase Shares shall be transferred
and delivered to CMCC free and clear of any Encumbrances of any kind. As of the Final
Closing, the Second Purchase Shares shall be transferred and delivered to CMCC free and
clear of any Encumbrances of any kind.




3.5 Contributed Intellectual Property





	 	(1)	 	Except as set forth on Part 3.5(1) of the Disclosure Letter, MCC is the sole
and exclusive owner of all of the Contributed Intellectual Property and the Co-owned
MCC Patents, including the ability to obtain and convey to CMCC all of MCC’s right,
title and interest in and to the Contributed Intellectual Property and the Co-owned MCC
Patents free and clear of any Encumbrances of any kind. Except as set forth on Part
3.5(1) of the Disclosure Letter, MCC has the right to use, sell, manufacture, have
manufactured, execute, reproduce, display, perform, modify, enhance, distribute,
prepare derivative works of, claim priority to, license and sublicense, without payment
to any other person, all the Contributed Intellectual Property and the Co-owned MCC
Patents, and the consummation of the Contemplated Transactions does not and will not
conflict with, violate, alter or impair any such rights. The Contributed Intellectual
Property and the Co-owned MCC Patents have not been and are not currently the subject
(or Threatened to be the subject) of any interference, opposition, re-examination,
invalidation or cancellation proceeding, or litigation or arbitration proceeding.
During the past two (2) years, MCC has not received notice from any other person
asserting any ownership interest in any Contributed Intellectual Property, or, except
as set forth on Exhibit E, the Co-owned MCC Patents.
	 
	 	(2)	 	With respect to the Contributed Intellectual Property that is registered or
subject to an application for registration and the Co-owned MCC Patents, Exhibit A,
Exhibit C, and Exhibit E collectively set forth a list of all jurisdictions in which
such Contributed Intellectual Property and Co-owned MCC Patents are registered or
registrations have been applied for and all registration and application numbers. All
of the patents, trademarks and copyrights, and all applications for any of the
foregoing, identified on Exhibit A, Exhibit C, and Exhibit E are currently in
compliance with all Legal Requirements (including payment of filing, examination,
renewal, extension of time and maintenance fees, and any office action responses,
proofs of use, the timely post-registration filing of declarations or affidavits of use
and incontestability and renewal applications, and any office action responses), and
are not, as of the date of this Agreement subject to any maintenance fees or taxes or
actions falling due within thirty (30) days after the




23









 






	 	 	 	Closing Date. To the Knowledge
of MCC, there is and has been no potentially interfering patent or patent application
of any third party.






	 	(3)	 	The Assigned Intellectual Property, the Specified Intellectual Property Assets,
the Licensed Intellectual Property, Co-owned MCC Patents, Co-owned CMCC Patent,
the patents and patent applications set forth in Exhibit D (the “Toyota Co-owned
Patents”) and Japanese Patent No.3420738 represents all of the intellectual property
rights necessary in order to operate the CMCC’s business in all respects as
currently conducted and as currently proposed to be conducted.
	 
	 	(4)	 	MCC is the rightful owner of Toyota Co-owned Patents.




4. REPRESENTATIONS AND WARRANTIES OF MCC TO CALGON




     MCC represents and warrants to Calgon, as of the date hereof and as of the Closing Date, as
follows:


4.1 Existence and Good Standing





	 	 	CMCC is a kabushiki kaisha duly organized, validly existing and in good standing under the
laws of Japan, with full corporate power and authority to conduct its business as it is now
being conducted, to own or use the properties and assets that it purports to own or use, and
to perform all its obligations under Applicable Contracts. MCC has caused CMCC to deliver
to Calgon copies of the Organizational Documents of CMCC, as currently in effect. CMCC does
not currently have, and has never had since the Share Acquisition Date, any subsidiaries.




4.2 Authority; No Conflict





	 	(1)	 	This Agreement constitutes the legal, valid, and binding obligation of CMCC,
enforceable against CMCC in accordance with its terms. Upon the execution and delivery
by CMCC of each of the Ancillary Agreements to which CMCC is a party, such Ancillary
Agreements will constitute the legal, valid, and binding obligations of CMCC,
enforceable against CMCC in accordance with their respective terms. CMCC has the
absolute and unrestricted right, power, authority, and capacity to execute and deliver
this Agreement and the Ancillary Agreements to which CMCC is a party and to perform its
obligations hereunder and thereunder.
	 
	 	(2)	 	Neither the execution, delivery or performance of this Agreement and each of
the Ancillary Agreements by CMCC, nor the consummation of Contemplated Transactions
will directly or indirectly (with or without notice or lapse of time): (i) violate or
contravene any Legal Requirement or Order to which CMCC is subject, or any provision of
CMCC’s internal regulations, (ii) violate any of CMCC’s Organizational Documents, (iii)
conflict with, result in any contravention or violation or breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any Contract to
which CMCC is a party or by which it is bound or purports to be binding on CMCC or to
which any of its assets is subject, or (iv)




24









 






	 	 	 	result in the creation or imposition of any
Encumbrance on any of the assets owned or used by CMCC. CMCC is not and will not be
required to give notice to or obtain any Consent from any Person in connection with (A)
the execution and delivery of this Agreement and each of the Ancillary Agreements to
which CMCC
is a Party, or (B) the consummation or performance of any of the Contemplated
Transactions.




4.3 Capitalization





	 	 	The authorized equity securities of CMCC consist of 80,000 shares, of which 51,020 are
issued and outstanding, of which 25,000 are owned by Calgon and 26,020 are owned by MCC.
There are no Contracts relating to the issuance, sale, or transfer of any equity securities
or other securities of CMCC. There are no securities outstanding which are convertible
into, exercisable for or exchangeable for equity securities of CMCC. CMCC does not own, or
have any Contract to acquire, any equity securities or other securities of any Person or any
direct or indirect equity or ownership interest in any other business. At the Closing, all
of the books and records will be in the possession of CMCC.




4.4 Financial Statements





	 	 	MCC has caused CMCC to deliver to Calgon: (1) a balance sheet of CMCC as at December 31,
2008 (including the notes thereto, the “Balance Sheet”) and the related statements of income
and cash flow for the fiscal year then ended, together with the report thereon of Ernst &
Young Shinnihon LLC, independent certified public accountants, and (2) an unaudited balance
sheet of CMCC as at November 30, 2009 (the “Interim Balance Sheet”) and the related
statements of income and cash flow for the period then ended, including in each case the
notes thereto. Such financial statements and notes fairly present the financial condition
and the results of operations, changes in stockholders’ equity, and cash flow of CMCC as at
the respective dates of and for the periods referred to in such financial statements, all in
accordance with GAAP; the financial statements referred to in this Section 4.4 reflect
consistent application of such accounting principles throughout the periods involved.




4.5 Books and Records





	 	 	The books of account, minute books, stock record books, and other records of CMCC, all of
which have been made available to Calgon, are complete and correct and have been maintained
in accordance with sound business practices. The minute books of CMCC contain accurate and
complete records of all meetings held of, and corporate action taken by, the shareholders,
the board of directors, and committees of the board of directors of CMCC, and no meeting of
any such shareholders, board of directors, or committee has been held for which minutes have
not been prepared and are not contained in such minute books. At the Closing, all of those
books and records will be in the possession of CMCC.




4.6 Title to Properties, Encumbrances





	 	 	CMCC does not own and has never, since the Share Acquisition Date, owned any real property
other than the Fukui Facility. Since the Share Acquisition Date, CMCC has




25









 






	 	 	maintained its
real property in compliance with all applicable Legal Requirements, including without
limitation, the Factory Location Act (Act No. 24 of 1959, as amended) of Japan, the Building
Standards Act (Act No. 201 of 1950, as amended) of Japan, and the Fire Defense Act (Act No.
186 of 1948, as amended) of Japan. CMCC owns (subject only
to the matters permitted by the following sentence) all the properties and assets (whether
real, personal, or mixed and whether tangible or intangible) that it purports to own,
including all of the properties and assets reflected in the Balance Sheet and the Interim
Balance Sheet (except for assets held under capitalized leases and personal property sold
since the date of the Balance Sheet and the Interim Balance Sheet, as the case may be, in
the Ordinary Course of Business), and all of the properties and assets purchased or
otherwise acquired by CMCC since the date of the Balance Sheet (except for personal property
acquired and sold since the date of the Balance Sheet in the Ordinary Course of Business and
consistent with past practice). All material properties and assets reflected in the Balance
Sheet and the Interim Balance Sheet are free and clear of all Encumbrances except: (1)
mortgages or security interests shown on the Balance Sheet or the Interim Balance Sheet as
securing specified liabilities or obligations, with respect to which no default (or event
that, with notice or lapse of time or both, would constitute a default) exists, (2)
mortgages or security interests incurred in connection with the purchase of property or
assets after the date of the Interim Balance Sheet (such mortgages and security interests
being limited to the property or assets so acquired), with respect to which no default (or
event that, with notice or lapse of time or both, would constitute a default) exists, and
(3) liens for current taxes not yet due.




4.7 Condition and Sufficiency of Assets





	 	 	The assets of CMCC are in good operating condition and repair, and are adequate for the uses
to which they are being put, and none of such assets is in need of maintenance or repairs
except for ordinary, routine maintenance and repairs that are not material in nature or
cost. The assets of CMCC are sufficient for the continued conduct of CMCC’s business after
the Closing in substantially the same manner as conducted prior to the Closing.




4.8 Accounts Receivable





	 	 	All accounts, notes, and other receivables of CMCC that are reflected on the Balance Sheet,
the Interim Balance Sheet, or on the accounting records of CMCC as of the Closing Date
(collectively, the “Accounts Receivable”) represent or will represent valid obligations
arising from sales actually made, services actually performed, or loans actually made, in
each case, in the Ordinary Course of Business. Unless paid prior to the Closing Date, the
Accounts Receivable are or will be as of the Closing Date current and collectible net of the
respective reserves shown on the Balance Sheet, the Interim Balance Sheet, or on the
accounting records of CMCC as of the Closing Date (which reserves are adequate and
calculated consistent with past practice and, in the case of the reserve as of the Closing
Date, will not represent a greater percentage of the Accounts Receivable as of the Closing
Date than the reserve reflected in the Interim Balance Sheet represented of the Accounts
Receivable reflected therein and will not represent a material adverse change in the
composition of such Accounts Receivable in terms of aging).




26









 










4.9 Inventory





	 	 	Except as set forth in Part 4.9 of the Disclosure Letter, All inventory of CMCC that is
reflected in the Balance Sheet or the Interim Balance Sheet, consists of a quality and
quantity usable and salable in the Ordinary Course of Business, except for obsolete items
and items of below-standard quality, all of which have been written off or written down to
net realizable value in the Balance Sheet or the Interim Balance Sheet or on the accounting
records of CMCC as of the Closing Date, as the case may be. All inventories not written off
have been priced at the lower of market price or cost on a average basis. The quantities of
each item of inventory (whether raw materials, work-in-process, or finished goods) are not
excessive, but are reasonable in the present circumstances of CMCC.




4.10 No Undisclosed Liabilities





	 	 	CMCC has no liabilities or obligations of any nature (whether known or unknown and whether
absolute, accrued, contingent, or otherwise) except for liabilities or obligations reflected
or reserved against in the Balance Sheet or the Interim Balance Sheet and current
liabilities incurred in the Ordinary Course of Business since the respective dates thereof.




4.11 Taxes





	 	(1)	 	CMCC has filed or caused to be filed (on a timely basis since the Share
Acquisition Date) all Tax Returns that are or were required to be filed by or with
respect to it, either separately or as a member of a group of corporations, pursuant to
applicable Legal Requirements. MCC has caused CMCC to deliver to Calgon copies of all
such Tax Returns filed since the Share Acquisition Date. CMCC has paid, or made
provision for the payment of, all Taxes that have or may have become due pursuant to
those Tax Returns or otherwise, or pursuant to any assessment received by MCC or CMCC.
	 
	 	(2)	 	CMCC has never been audited by any Governmental Authority. Neither MCC nor
CMCC has given or been requested to give waivers or extensions (or is or would be
subject to a waiver or extension given by any other Person) of any statute of
limitations relating to the payment of Taxes of CMCC or for which CMCC may be liable.
	 
	 	(3)	 	As of the date of the Interim Balance Sheet, the reserves with respect to Taxes
on the books of CMCC are sufficient to cover in full CMCC’s liability for Taxes for or
with respect to periods through to the date of the Interim Balance Sheet, and since
that date, such reserves have been adjusted in accordance with past practice, are no
more than the same percentage to gross revenues than the percentage implied by the
Interim Balance Sheet, and are sufficient to cover in full CMCC’s liability for Taxes
through to Closing. There exists no proposed tax assessment against CMCC. All Taxes
that CMCC is or was required by Legal Requirements to withhold or collect have been
duly withheld or collected and, to the extent required, have been paid to the proper
Governmental Body or other Person.




27









 






	 	(4)	 	All Tax Returns filed by (or that include on a consolidated basis) CMCC are
true, correct, and complete. There is no tax sharing agreement or similar arrangement
that will require any payment by CMCC after the date of this Agreement.




4.12 No Material Adverse Change





	 	 	Since the date of the Balance Sheet, there has not been any event, circumstance or condition
which individually or in the aggregate has had or could reasonably be expected to have a
material adverse effect on the business, operations, properties, prospects, assets, or
condition, financial or otherwise, of CMCC (“Material Adverse Change”), and no event has
occurred or circumstance exists that may result in a Material Adverse Change.




4.13 Employee Benefits





	 	(1)	 	Part 4.13(1) of the Disclosure Letter contains a complete and accurate list of
each employee benefit plan or arrangement, or any plan, agreement or program providing
for deferred compensation, bonuses, pension, stock appreciation or other forms of
incentive compensation that (i) is entered into, maintained or contributed to, as the
case may be, by CMCC and (ii) covers any employee or former employee of CMCC
(collectively the “Benefit Arrangements”). Each Benefit Arrangement has been
maintained and administered in material compliance with its terms and with the
requirements prescribed by any and all statutes, laws, ordinances and regulations which
are applicable to such Benefit Arrangements. No Benefit Arrangements have unfunded
liabilities that, as of the Closing Date, will not be offset by insurance or fully
accrued or reserved against in the Balance Sheet except for overtime and social
security obligations of the current month.
	 
	 	(2)	 	No Benefit Arrangements provide, or have any liability to provide, life
insurance, medical or other employee benefits to any current, former, or retired
employee, consultant or director of CMCC or any affiliate of CMCC (an “Employee”) upon
his or her retirement or termination of employment for any reason, except as may be
required by statute, and CMCC has not ever represented, promised or contracted (whether
in oral or written form) to any Employee (either individually or to Employees as a
group) that such Employee(s) would be provided with life insurance, medical or other
employee welfare benefits upon their retirement or termination of employment, except to
the extent required by statute.
	 
	 	(3)	 	The execution of this Agreement and the consummation of the Contemplated
Transactions will not constitute an event under any Benefit Arrangements, trust or loan
that will or may result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits
or obligation to fund benefits with respect to any Employee.
	 
	 	(4)	 	CMCC (i) is in compliance in all material respects with all applicable
national, prefectural, foreign and local laws, rules, ordinances and regulations
respecting employment, employment practices, terms and conditions of employment and




28









 






	 	 	 	wages and hours, in each case, with respect to Employees; (ii) has withheld all amounts
required by law or by agreement to be withheld from the wages, salaries and other
payments to Employees; (iii) is not liable for any arrears of wages or any taxes or any
penalty for failure to comply with any of the foregoing; and (iv) is not
liable for any payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation benefits, social
security or other benefits or obligations for Employees (other than routine payments
to be made in the Ordinary Course of Business).
	 
	 	(5)	 	No Employee of CMCC is in violation of any term of any employment contract,
patent disclosure agreement, non-competition agreement, or any restrictive covenant to
a former employer relating to the right of any such employee to be employed by CMCC
because of the nature of the business conducted or presently proposed to be conducted
by CMCC or to the use of trade secrets or proprietary information of others. No notice
has been given to MCC or CMCC, nor is MCC or CMCC otherwise aware, that any employee
intends to terminate his or her employment with CMCC.
	 
	 	(6)	 	Part 4.13(6) of the Disclosure Letter contains a complete and accurate list of
the benefits provided to the MCC Leased Employees including without limitation a
description of each employee benefit plan or arrangement, or any plan, agreement or
program providing for deferred compensation, bonuses, pension, stock appreciation or
other forms of incentive compensation that covers any MCC Leased Employee.




4.14 Compliance with Legal Requirements; Governmental Authorizations





	 	(1)	 	Except as set forth in Part 4.14(1) of the Disclosure Letter, (i) CMCC is, and
at all times since the Share Acquisition Date has been, in full compliance with each
Legal Requirement that is or was applicable to it or to the conduct or operation of its
business or the ownership or use of any of its assets; (ii) no event has occurred or
circumstance exists that (with or without notice or lapse of time) (A) may constitute
or result in a violation by CMCC of, or a failure on the part of CMCC to comply with,
any Legal Requirement, or (B) may give rise to any obligation on the part of CMCC to
undertake, or to bear all or any portion of the cost of, any remedial action of any
nature; and (iii) CMCC has not received, at any time since the Share Acquisition Date,
any notice or other communication (whether oral or written) from any Governmental Body
or any other Person regarding (A) any actual, alleged, possible, or potential violation
of, or failure to comply with, any Legal Requirement, or (B) any actual, alleged,
possible, or potential obligation on the part of CMCC to undertake, or to bear all or
any portion of the cost of, any remedial action of any nature.
	 
	 	(2)	 	Part 4.14(2) of the Disclosure Letter contains a complete and accurate list of
each Governmental Authorization that is held by CMCC or that otherwise relates to the
business of, or to any of the assets owned or used by, CMCC. Each Governmental




29









 






	 	 	 	Authorization listed or required to be listed in Part 4.14(2) of the Disclosure Letter
is valid and in full force and effect.






     (i) CMCC is, and at all times since the Share Acquisition Date has been, in
full compliance with all of the terms and requirements of each Governmental
Authorization identified or required to be identified in Part 4.14(2) of the
Disclosure Letter;




     (ii) no event has occurred or circumstance exists that may (with or without
notice or lapse of time) (A) constitute or result directly or indirectly in a
violation of or a failure to comply with any term or requirement of any Governmental
Authorization listed or required to be listed in Part 4.14(2) of the Disclosure
Letter, or (B) result directly or indirectly in the revocation, withdrawal,
suspension, cancellation, or termination of, or any modification to, any
Governmental Authorization listed or required to be listed in Part 4.14(2) of the
Disclosure Letter;




     (iii) CMCC has not received, at any time since the Share Acquisition Date, any
notice or other communication (whether oral or written) from any Governmental Body
or any other Person regarding (A) any actual, alleged, possible, or potential
violation of or failure to comply with any term or requirement of any Governmental
Authorization, or (B) any actual, proposed, possible, or potential revocation,
withdrawal, suspension, cancellation, termination of, or modification to any
Governmental Authorization; and




     (iv) all applications required to have been filed for the renewal of the
Governmental Authorizations listed or required to be listed in Part 4.14(2) of the
Disclosure Letter have been duly filed on a timely basis with the appropriate
Governmental Bodies, and all other filings required to have been made with respect
to such Governmental Authorizations have been duly made on a timely basis with the
appropriate Governmental Bodies.




	 	 	The Governmental Authorizations listed or required to be listed in Part 4.14(2) of the
Disclosure Letter collectively constitute all of the Governmental Authorizations necessary
to permit CMCC to lawfully conduct and operate its business in the manner it currently
conducts and operates its business and to permit CMCC to own and use its assets in the
manner in which it currently owns and uses its assets. The Contemplated Transactions will
not result in the termination or modification of any such Governmental Authorizations.




4.15 Legal Proceedings; Orders





	 	(1)	 	There exists no pending Proceeding: (i) that has been commenced by or against
CMCC or that otherwise relates to or may affect the business of, or any of the assets
owned or used by, CMCC; or (ii) that challenges, or that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. To the Knowledge of MCC, (A) no such Proceeding has been
Threatened, and (B) no event has occurred or circumstance exists that may give rise to
or serve as a basis for the commencement of any such Proceeding.




30









 






	 	(2)	 	(i) There is no Order to which CMCC, or any of the assets owned or used by
CMCC, is subject; (ii) CMCC is not subject to any Order that relates to the business
of, or any of the assets owned or used by, CMCC; and (iii) to the Knowledge of MCC, no
officer, director, agent, or employee of CMCC is subject
to any Order that prohibits such officer, director, agent, or employee from engaging
in or continuing any conduct, activity, or practice relating to the business of
CMCC.
	 
	 	(3)	 	(i) CMCC is, and at all times since the Share Acquisition Date has been, in
full compliance with all of the terms and requirements of each Order to which it, or
any of the assets owned or used by it, is or has been subject; (ii) no event has
occurred or circumstance exists that may constitute or result in (with or without
notice or lapse of time) a violation of or failure to comply with any term or
requirement of any Order to which CMCC, or any of the assets owned or used by CMCC, is
subject; and (iii) CMCC has not received, at any time since the Share Acquisition Date,
any notice or other communication (whether oral or written) from any Governmental Body
or any other Person regarding any actual, alleged, possible, or potential violation of,
or failure to comply with, any term or requirement of any Order to which CMCC, or any
of the assets owned or used by CMCC, is or has been subject.




4.16 Absence of Certain Changes and Events





	 	 	Since the date of the Balance Sheet, CMCC has conducted its business only in the Ordinary
Course of Business and there has not been any:






	 	(1)	 	change in CMCC’s authorized or issued capital stock; grant of any stock option
or right to purchase shares of capital stock of CMCC; issuance of any security
convertible into or exchangeable for such capital stock; purchase, redemption,
retirement, or other acquisition by CMCC of any shares of any such capital stock; or
declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
	 
	 	(2)	 	amendment to the Organizational Documents of CMCC;
	 
	 	(3)	 	payment or increase by CMCC of any bonuses, salaries, or other compensation to
any shareholder, director, officer, or (except in the Ordinary Course of Business)
employee or entry into any employment, severance, or similar Contract with any
director, officer, or employee;
	 
	 	(4)	 	adoption of, or increase in the payments to or benefits under, any profit
sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or
other employee benefit plan for or with any employees of CMCC;
	 
	 	(5)	 	damage to or destruction or loss of any asset or property of CMCC, whether or
not covered by insurance, materially and adversely affecting the properties, assets,
business, financial condition, or prospects of CMCC, taken as a whole;




31









 






	 	(6)	 	entry into, termination of, or receipt of notice of termination of (i) any
license, distributorship, dealer, sales representative, joint venture, credit, or
similar agreement, or (ii) any Contract or transaction involving a total remaining
commitment by or to CMCC of at least ¥10,000,000;
	 
	 	(7)	 	sale, lease, or other disposition of any asset or property of CMCC or mortgage,
pledge, or imposition of any lien or other encumbrance on any material asset or
property of CMCC;
	 
	 	(8)	 	cancellation or waiver of any claims or rights with a value to CMCC in excess
of ¥10,000,000;
	 
	 	(9)	 	material change in the accounting methods used by CMCC; or
	 
	 	(10)	 	agreement, whether oral or written, by CMCC to do any of the foregoing.




4.17 Contracts; No Defaults





	 	(1)	 	Part 4.17(1) of the Disclosure Letter contains a complete and accurate list,
and MCC has caused CMCC to deliver to Calgon true and complete copies, of: (i) each
Applicable Contract that CMCC has entered into with the top eight (8) customers with
respect to transaction amounts); (ii) each Applicable Contract that CMCC has entered
into with the top eight (8) suppliers with respect to transaction amounts); (iii) each
Applicable Contract that was not entered into in the Ordinary Course of Business; (iv)
each lease, license, installment and conditional sale agreement, and other Applicable
Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or
other interest in, any real or personal property; (v) each licensing agreement or other
Applicable Contract with respect to patents, trademarks, copyrights, or other
intellectual property, including agreements with current or former employees,
consultants, or contractors regarding the appropriation or the non-disclosure of any of
CMCC’s intellectual property assets; (vi) each collective bargaining agreement and
other Applicable Contract to or with any labor union or other employee representative
of a group of employees; (vii) each joint venture, partnership, and other Applicable
Contract (however named) involving a sharing of profits, losses, costs, or liabilities
by CMCC with any other Person; (viii) each Applicable Contract containing covenants
that in any way purport to restrict the business activity of CMCC or limit the freedom
of CMCC or any affiliate of CMCC to engage in any line of business or to compete with
any Person; (ix) each Applicable Contract providing for payments to or by any Person
based on sales, purchases, or profits, other than direct payments for goods; (x) each
power of attorney that is currently effective and outstanding; (xi) each Applicable
Contract entered into other than in the Ordinary Course of Business that contains or
provides for an express undertaking by CMCC to be responsible for consequential
damages; (xii) each Applicable Contract for capital expenditures in excess of
¥30,000,000; (xiii) each written warranty, guaranty, and or other similar undertaking
with respect to contractual performance extended by CMCC other




32









 






	 	 	 	than in the Ordinary
Course of Business; and (xiv) each amendment, supplement, and modification (whether
oral or written) in respect of any of the foregoing.






	 	(2)	 	(i) Except as set forth in Part 4.17(2) of the Disclosure Letter, neither MCC
nor any Related Person of MCC has or may acquire any rights under, and MCC does not
have or may not become subject to any obligation or liability under, any Contract
that relates to the business of, or any of the assets owned or used by, CMCC; and
(ii) to the Knowledge of MCC, no officer, director, agent, employee, consultant, or
contractor of CMCC is bound by any Contract that purports to limit the ability of
such officer, director, agent, employee, consultant, or contractor to (A) engage in
or continue any conduct, activity, or practice relating to the business of CMCC, or
(B) assign to CMCC or to any other Person any rights to any invention, improvement,
or discovery.
	 
	 	(3)	 	Each Applicable Contract identified or required to be identified in Part
4.17(1) of the Disclosure Letter or that involves performance of services or delivery
of goods or materials of an amount or value in excess of ¥10,000,000 is in full force
and effect and is valid and enforceable in accordance with its terms.
	 
	 	(4)	 	Except as set forth in Part 4.17(4) of the Disclosure Letter, (i) CMCC is, and
at all times since the Share Acquisition Date has been, in full compliance with all
applicable terms and requirements of each Contract under which CMCC has or had any
obligation or liability or by which CMCC or any of the assets owned or used by CMCC is
or was bound; (ii) to the Knowledge of MCC, each other Person that has or had any
obligation or liability under any Contract under which CMCC has or had any rights is,
and at all times since the Share Acquisition Date has been, in full compliance with all
applicable terms and requirements of such Contract; and (iii) no event has occurred or
circumstance exists that (with or without notice or lapse of time) may contravene,
conflict with, or result in a violation or breach of, or give CMCC or any other Person
the right to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any Applicable
Contract.
	 
	 	(5)	 	There are no renegotiations of, attempts to renegotiate, or outstanding rights
to renegotiate any material amounts paid or payable to CMCC under current or completed
Contracts with any Person and, no such Person has made written demand for such
renegotiation. MCC does not have any Knowledge of any termination of, or intent to
terminate, any current Contracts with CMCC.
	 
	 	(6)	 	The Contracts relating to the sale, design, manufacture, or provision of
products or services by CMCC have been entered into in the Ordinary Course of Business
and have been entered into without the commission of any act alone or in concert with
any other Person, or any consideration having been paid or promised, that is or would
be in violation of any Legal Requirement.
	 
	 	(7)	 	All security and other deposits or prepaid amounts paid in satisfaction of or
to secure an obligation to CMCC were paid directly to and are currently held directly




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	 	 	 	by CMCC. All rights and interests in any deposits or other prepaid amounts paid by or
on behalf of CMCC, including the right to the return of such amounts is held directly
and exclusively by CMCC.




4.18 Insurance





	 	(1)	 	MCC has caused CMCC to deliver to Calgon: (i) true and complete copies of all
policies of insurance to which CMCC is a party or under which CMCC, or any director of
CMCC, is or has been covered at any time since the Share Acquisition Date; (ii) true
and complete copies of all pending applications for policies of insurance; and (iii)
any statement by the auditor of CMCC’s financial statements with regard to the adequacy
of such entity’s coverage or of the reserves for claims.
	 
	 	(2)	 	Part 4.18(2) of the Disclosure Letter describes: (i) any self-insurance
arrangement by or affecting CMCC, including any reserves established thereunder; (ii)
any contract or arrangement, other than a policy of insurance, for the transfer or
sharing of any risk by CMCC; and (iii) all obligations of CMCC to third parties with
respect to insurance (including such obligations under leases and service agreements)
and identifies the policy under which such coverage is provided.
	 
	 	(3)	 	(i) All policies to which CMCC is a party or that provide coverage to CMCC, or
any director or officer of CMCC: (A) are valid, outstanding, and enforceable; (B) are
issued by an insurer that is financially sound and reputable; (C) taken together,
provide adequate insurance coverage for the assets and the operations of CMCC; (D) are
sufficient for compliance with all Legal Requirements and Contracts to which CMCC is a
party or by which any of them is bound; (E) will continue in full force and effect
following the consummation of the Contemplated Transactions; and (F) do not provide for
any retrospective premium adjustment or other experienced-based liability on the part
of CMCC; (ii) CMCC has not received (A) any refusal of coverage or any notice that a
defense will be afforded with reservation of rights, or (B) any notice of cancellation
or any other indication that any insurance policy is no longer in full force or effect
or will not be renewed or that the issuer of any policy is not willing or able to
perform its obligations thereunder; (iii) CMCC has paid all premiums due and has
otherwise performed all of its obligations under each policy to which CMCC is a party
or that provides coverage to CMCC or director thereof; and (iv) CMCC has given notice
to the insurer of all claims that may be insured thereby.




4.19 Environmental Matters





	 	 	The operation and condition of the Kurosaki Facility does not violate and has not violated
Environmental Laws and no condition has existed or event has occurred with respect to the
Kurosaki Facility that, with notice or the passage of time, or both, could result in any
liability to or obligation of CMCC or Calgon, or any of their respective affiliates, under
Environmental Laws. Neither MCC nor CMCC has received any written notice from any Person
that the operation or condition of the Kurosaki Facility is or was in violation of or that
CMCC is otherwise alleged to have liability related to the Kurosaki Facility under any




34









 






	 	 	Environmental Law, including, but not limited to, responsibility (or potential
responsibility) for the cleanup or other remediation of any Hazardous Materials at, on,
beneath, or originating from the Kurosaki Facility.




4.20 Employees





	 	(1)	 	Part 4.20(1) of the Disclosure Letter contains a complete and accurate list of
the following information for each employee or director of CMCC, including each
employee on leave of absence or layoff status: employer; name; job title; current
compensation paid or payable and any change in compensation since the Balance Sheet
Date; vacation accrued; and service credited for purposes of vesting and eligibility to
participate under CMCC’s pension, retirement, profit-sharing, thrift-savings, deferred
compensation, stock bonus, stock option, cash bonus, or employee stock ownership plans
(including investment credit or payroll stock ownership), severance pay, insurance,
medical, welfare, or vacation plan, or any other employee benefit plan.
	 
	 	(2)	 	No employee or director of CMCC is a party to, or is otherwise bound by, any
agreement or arrangement, including any confidentiality, noncompetition, or proprietary
rights agreement, between such employee or director and any other Person (“Proprietary
Rights Agreement”) that in any way adversely affects or will affect (i) the performance
of his duties as an employee or director of CMCC, or (ii) the ability of CMCC to
conduct its business, including any Proprietary Rights Agreement with MCC or CMCC by
any such employee or director. To MCC’s Knowledge, no director, officer, or other key
employee of CMCC intends to terminate his employment with CMCC. No employee or
director of CMCC is a party to, or is otherwise bound by, any agreement or arrangement
which requires notice of termination or severance pay in excess of what is required
under applicable Legal Requirements.
	 
	 	(3)	 	There are no retired employees or directors of CMCC (or their dependents) who
are currently receiving or who are scheduled to receive in the future any pension
benefits, pension option elections, retiree medical insurance coverage, retiree life
insurance coverage or other similar post-retirement benefits.
	 
	 	(4)	 	No current or former employee or director of CMCC will become entitled to any
bonus, retirement, severance, job security or similar benefit or any enhanced benefit
as a result of the Contemplated Transactions.




4.21 Labor Relations; Compliance





	 	 	Since the Share Acquisition Date, CMCC has not been and is not a party to any collective
bargaining or other labor Contract. Since the Share Acquisition Date, there has not been,
there is not presently pending or existing, and there is not Threatened, (a) any strike,
slowdown, picketing, work stoppage, or employee grievance process, (b) any Proceeding
against or affecting CMCC relating to the alleged violation of any Legal Requirement
pertaining to labor relations or employment matters, including any charge or complaint




35









 






	 	 	filed
by an employee or union with any Governmental Body, organizational activity, or other labor
or employment dispute against or affecting any of CMCC or its premises, or (c) any
application for certification of a collective bargaining agent. No event has occurred or
circumstance exists that could provide the basis for any work stoppage or other labor
dispute. CMCC has complied in all respects with all Legal Requirements relating to
employment, equal employment opportunity, nondiscrimination, immigration, wages, hours,
benefits, collective bargaining, the payment of social security and similar taxes,
occupational safety and health, and plant closing. CMCC is not liable for the payment of
any compensation, damages, taxes, fines, penalties, or other amounts, however designated,
for failure to comply with any of the foregoing Legal Requirements.




4.22 Intellectual Property





	 	(1)	 	The term “Specified Intellectual Property Assets” means: (i) registered and
unregistered trademarks, service marks, and applications; (ii) all patents, patent
applications, and inventions and discoveries that may be patentable; (iii) all
copyrights in both published works and unpublished works; (iv) all rights in mask
works; and (v) all know-how, trade secrets, confidential information, customer lists,
software, technical information, data, process technology, plans, drawings, and blue
prints; in each case, the rights to which: (A) were assigned or licensed to CMCC by
MCC, or (B) were developed or acquired by CMCC independently to any other Person after
the Share Acquisition Date, provided, however, that Specific Intellectual Property
Assets shall not include (i) registered and unregistered trademarks, service marks, and
applications; (ii) all patents, patent applications, and inventions and discoveries
that may be patentable; (iii) all copyrights in both published works and unpublished
works; (iv) all rights in mask works; and (v) all know-how, trade secrets, confidential
information, customer lists, software, technical information, data, process technology,
plans, drawings, and blue prints; in each case, the rights to which were licensed or
assigned to CMCC by Calgon. Exhibit B sets forth a correct and complete list of all
Specified Intellectual Property Assets that is registered or subject to an application
for registration.
	 
	 	(2)	 	Except as set forth in Part 4.22(2) of the Disclosure Letter, CMCC is the sole
and exclusive owner of, or has the exclusive, worldwide, perpetual royalty-free right
to use, all of the Specified Intellectual Property Assets and the Co-owned CMCC Patent.
Except as set forth in Part 4.22(2) of the Disclosure Letter, CMCC has the right to
use, sell, manufacture, have manufactured, execute, reproduce, display, perform,
modify, enhance, distribute, prepare derivative works of, claim priority to, license
and sublicense, without payment to any other person, all the Specified Intellectual
Property Assets and the Co-owned CMCC Patent, and the consummation of the Contemplated
Transactions does not and will not conflict with, alter or impair any such rights. The
Specified Intellectual Property Assets and the Co-owned CMCC Patent are not currently
the subject (or Threatened to be the subject) of any interference, opposition,
re-examination, invalidation or cancellation proceeding, or litigation or arbitration
proceeding. During the past two (2) years, CMCC has not received written notice from
any other person




36









 






	 	 	 	asserting any ownership interest in any Specified Intellectual
Property Assets or, except as set forth on Exhibit F, the Co-owned CMCC Patent.
	 
	 	(3)	 	With respect to the Specified Intellectual Property Assets that are registered
or subject to an application for registration, Exhibit B sets forth a list of all
jurisdictions in which such Specified Intellectual Property Assets are registered or
registrations have been applied for and all registration and application numbers.
Except as otherwise set forth on Exhibit B, all of the patents, trademarks and
copyrights, and all applications for any of the foregoing, identified on Exhibit B are
currently in compliance with all Legal Requirements (including payment of filing,
examination, renewal, extension of time and maintenance fees, proofs of use, the timely
post-registration filing of declarations or affidavits of use and incontestability and
renewal applications, and any office action responses), and are not, as of the date of
this Agreement subject to any maintenance fees or taxes or actions falling due within
thirty (30) days after the Closing Date. To the Knowledge of MCC, there is and has
been no potentially interfering patent or patent application of any third party.
	 
	 	(4)	 	With respect to the patent application identified on Exhibit F (“Co-owned CMCC
Patent”), CMCC is the rightful owner of such patent application. Exhibit F sets forth
a list of all jurisdictions in which registrations for the Co-owned CMCC Patent have
been applied for and all application numbers. Such patent application is currently in
compliance with all Legal Requirements (including payment of filing, examination,
renewal, extension of time and maintenance fees, proofs of use, the timely
post-registration filing of declarations or affidavits of use and incontestability and
renewal applications, and any office action responses), and are not, as of the date of
this Agreement subject to any maintenance fees or taxes or actions falling due within
thirty (30) days after the Closing Date. To the Knowledge of MCC, there is and has
been no potentially interfering patent or patent application of any third party.
	 
	 	(5)	 	The Assigned Intellectual Property, the Specified Intellectual Property Assets,
the Licensed Intellectual Property, Co-owned MCC Patents, Co-owned CMCC Patent, the
Toyota Co-owned Patents and Japanese Patent No.3420738 represents all of the
intellectual property rights necessary in order to operate CMCC’s business in all
respects as currently conducted and as currently proposed to be conducted.




4.23 Compliance with Anti-Corruption Laws; Status of Agent Relationships





	 	(1)	 	MCC, CMCC, each of their respective Representatives, and, to the Knowledge of
CMCC and MCC, Agents have used only legitimate business and ethical practices in CMCC’s
business and in promoting CMCC’s position on issues before any Governmental Body.
	 
	 	(2)	 	neither MCC, CMCC nor any of their respective Representatives or, to the
Knowledge of CMCC and MCC, Agents have given, offered, promised or authorized any
Prohibited Payment.




37









 






	 	(3)	 	neither MCC, CMCC nor any of their respective Representatives or, to the
Knowledge of CMCC and MCC, Agents have given, offered, promised or
authorized the giving of money or anything of value, directly or indirectly, to any
Person while knowing or being aware of a probability that all or a portion of such
money or thing of value would be used to make a Prohibited Payment.
	 
	 	(4)	 	CMCC has complied in all respects with the applicable Anti-Corruption Laws.
	 
	 	(5)	 	neither MCC nor CMCC have retained any Agents in connection with CMCC’s
business or undertaken or incurred any obligations to the Agents or to third parties
which might give rise to any obligations to such Agents.
	 
	 	(6)	 	no individual Representative of CMCC, nor any relative of any of these, is a
Government Official of any country in which CMCC’s business is presently conducted.
	 
	 	(7)	 	CMCC has not entered into or obtained any Contracts in violation of the
warranties set forth in this Section 4.23.
	 
	 	(8)	 	all machinery, equipment, vehicles, tools, apparatus, computers, software,
office furniture, office supplies, inventory, products, chemicals, supplies and other
tangible personal property that has been imported into or exported from any
jurisdiction in which CMCC’s business has been conducted, have been imported or
exported by CMCC strictly in accordance with Legal Requirements (including the
obtaining of any required licenses or regulatory approvals in respect of all such
imports and exports), and all Taxes have been paid in full by CMCC in connection with
all such imports and exports.
	 
	 	(9)	 	during the past five (5) years, CMCC has not engaged in any commercial
activities in or related to the following countries: (i) Cuba; (ii) Iran; (iii) Myanmar
(f/k/a Burma); (iv) North Korea; (v) Sudan; (vi) Syria; (vii) Libya prior to April 29,
2004, or (viii) Iraq prior to May 22, 2003, including without limitation providing
services to entities located in such countries, selling or delivering products to such
countries, or entering into any contract or other obligation to provide services or
products to such countries or to purchase goods or services from such countries.
	 
	 	(10)	 	Part 4.23(10) of the Disclosure Letter sets forth a list of all amounts due and
owing by CMCC to, and includes a summary of obligations by CMCC to, its Agents. MCC
has provided to Calgon copies of all documents and agreements pertaining to any Agent,
including any amounts owed to any such Agent or any obligations of CMCC to any such
Agent.
	 
	 	(11)	 	during the past five (5) years, CMCC has not to its Knowledge, or to MCC’s
Knowledge, engaged in any commercial activity with persons who were identified on the
United States Treasury Department’s Specially Designated Nationals (SDN) List at the
time of such commercial activity.




38









 










4.24 Relationships with Related Persons





	 	 	Except for KN Carbon Tech Co., Ltd., neither MCC nor any Related Person of MCC or of CMCC
is, or since the Share Acquisition Date has owned (of record or as a beneficial owner) an
equity interest or any other financial or profit interest in, a Person that has (a) had
business dealings or a material financial interest in any transaction with CMCC other than
business dealings or transactions conducted in the Ordinary Course of Business with CMCC at
substantially prevailing market prices and on substantially prevailing market terms, or (b)
engaged in competition with CMCC with respect to any line of services or products of CMCC (a
“Competing Business”) in any market presently served by CMCC except for owning less than one
percent (1%) of the outstanding capital stock of any Competing Business that is publicly
traded on any recognized exchange or in the over-the-counter market. Neither MCC nor any
Related Person of MCC or of CMCC is a party to any Contract with, or has any claim or right
against, CMCC.




4.25 Customer and Other Relations





	 	 	There exists no condition or state of facts or circumstances involving CMCC’s customers,
suppliers, distributors or sales representatives that MCC can reasonably foresee could
adversely affect the CMCC’s business after the Closing Date. No customer or distributor has
since the Balance Sheet Date informed CMCC or MCC of an intention to cease doing business
with CMCC or materially reducing its business with CMCC, refused to honor a purchase
commitment or advised CMCC or MCC that it may cease doing business with CMCC, or that it may
reduce the volume of business that it does with CMCC if the Contemplated Transactions are
consummated.




4.26 Disclosure





	 	 	No representation or warranty of MCC in this Agreement and no statement in the Disclosure
Letter or any Exhibit to this Agreement omits to state a material fact necessary to make the
statements herein or therein, in light of the circumstances in which they were made, not
misleading. MCC has caused CMCC to provide all information responsive to the Due Diligence
Information Request List provided to MCC in connection with this Agreement.




5. REPRESENTATIONS AND WARRANTIES OF CALGON TO MCC





	 	 	Calgon will represent and warrant to MCC, as of the Final Closing Date, as follows:




5.1 Existence and Good Standing





	 	 	CMCC is a kabushiki kaisha duly organized and validly existing under the laws of Japan.




5.2 Authority; No Conflict





	 	(1)	 	This Agreement constitutes the legal, valid, and binding obligation of CMCC,
enforceable against CMCC in accordance with its terms. CMCC has the absolute




39









 





	 	 	 	and unrestricted right, power, authority, and capacity to perform its obligations
hereunder that are to be performed at the Final Closing.






	 	(2)	 	Neither the performance by CMCC of its obligations under this Agreement that
are to be performed at the Final Closing, nor the consummation of Contemplated
Transactions that are to be consummated at the Final Closing will give any Person the
right to prevent, delay, or otherwise interfere with such Contemplated Transactions
pursuant to: (i) any amendment to any provision of CMCC’s Organizational Documents made
after the Closing Date; (ii) any resolution adopted by the board of directors or the
stockholders of CMCC after the Closing Date; (iii) any Legal Requirement or Order to
which CMCC became subject after the Closing Date; or (iv) any Contract that CMCC
entered into after the Closing Date.




6. REPRESENTATIONS AND WARRANTIES OF CALGON TO MCC




      Calgon represents and warrants to MCC, as of the date hereof, as of the Closing Date, and as
of the Final Closing Date, as follows:


6.1 Organization and Good standing





	 	 	Calgon is a corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, U.S.A.




6.2 Authority; No Conflict





	 	(1)	 	This Agreement constitutes the legal, valid, and binding obligation of Calgon,
enforceable against Calgon in accordance with its terms. Upon the execution and
delivery by Calgon of each of the Ancillary Agreements to which Calgon is a party, such
Ancillary Agreements will constitute the legal, valid, and binding obligations of
Calgon, enforceable against Calgon in accordance with their respective terms. Calgon
has the absolute and unrestricted right, power, authority, and capacity to execute and
deliver this Agreement and the Ancillary Agreements to which Calgon is a party and to
perform its obligations hereunder and thereunder.






	 	(2)	 	Neither the execution nor delivery of this Agreement by Calgon nor the
consummation or performance of any of the Contemplated Transactions by Calgon will give
any Person the right to prevent, delay, or otherwise interfere with any of the
Contemplated Transactions pursuant to: (i) any provision of Calgon’s Organizational
Documents; (ii) any resolution adopted by the board of directors or the stockholders of
Calgon; (iii) any Legal Requirement or Order to which Calgon may be subject; or (iv)
any Contract to which Calgon is a party or by which Calgon may be bound. Calgon is not
and will not be required to give notice to or obtain any Consent from any Person in
connection with (A) the execution and delivery of this Agreement and each of the
Ancillary Agreements to which Calgon is a Party, or (B) the consummation or performance
of any of the Contemplated Transactions.






40











 




6.3 Certain Proceedings





There is no pending Proceeding that has been commenced against Calgon and that challenges,
or may have the effect of preventing, delaying, making illegal, or otherwise interfering
with, any of the Contemplated Transactions.


7. COVENANTS



7.1 Board and Shareholder Approval of Redemption





	 	(1)	 	Prior to the Closing, each of Calgon and MCC shall take, and shall cause the
board of directors of CMCC to take, such actions as are required to comply with the
procedures set forth in the Companies Act (Act No. 86 of 2005) of Japan relating to the
First Redemption.
	 
	 	(2)	 	Prior to the Final Closing, Calgon shall take, and shall cause the board of
directors of CMCC to take, such actions as are required to comply with the procedures
set forth in the Companies Act of Japan relating to the Second Redemption.




7.2 Change of Name





Prior to the Closing, each of Calgon and MCC shall vote in favor of a shareholder resolution
of CMCC to remove the word “Mitsubishi” from its name effective as of the Closing Date.
CMCC shall cease to use any trade name and trade mark indicating “Mitsubishi” or “Three
Diamond” (the “Mitsubishi Marks”) by the Closing Date, provided, however, that CMCC may, if
CMCC obtains MCC’s prior written consent, use the Mitsubishi Marks according to the manner
instructed by MCC for the period given by MCC.


7.3 Nomination of Directors and Statutory Auditors





Prior to the Closing, each of Calgon and MCC shall vote in favor of a shareholder resolution
of CMCC to appoint a replacement effective as of the Closing Date, as designated by Calgon,
for each director and statutory auditor who is to submit a resignation pursuant to the
provisions of Section 8.8.


7.4 Registration of New Company Name, Directors and Statutory Auditors





On the Closing, each of Calgon and MCC shall cause CMCC to file for registration of the new
company name and directors and statutory auditors approved by CMCC pursuant to the
provisions of Section 7.2 and 7.3 respectively.


7.5 Repayment of the Borrowing from MCFA





	 	(1)	 	Between the Closing Date and the Final Closing Date, MCC shall cause MCFA
Inc., a wholly owned subsidiary of MCC (“MCFA”) to loan funds to CMCC under a new
loan agreement on the terms and conditions identified on Exhibit G, provided, that MCC
holds 20% of shares in CMCC. Calgon shall cause CMCC,




41









 






	 	 	 	and MCC shall cause MCFA, to enter into a termination agreement to terminate the
Loan Agreement dated October 1, 2002 executed between CMCC and MCFA as of the
Closing Date.
	 
	 	(2)	 	On or prior to the Final Closing Date, Calgon shall cause CMCC to pay MCFA,
back all of its borrowing from MCFA with interest thereof and without any prepayment
or other penalties, by wire transfer to account specified by MCFA.
	 
	 	(3)	 	On or prior to the Final Closing Date, Calgon shall cause CMCC to obtain
funds needed by CMCC from other commercial banks on its own responsibility; provided
however, that MCC shall cooperate in good faith with CMCC’s financing from other
commercial banks.




7.6 Proper Employees of CMCC





	 	(1)	 	On the Closing Date, CMCC shall use commercially reasonable efforts to provide
continued employment to those employees of CMCC and to offer such employees
substantially similar compensation and benefit packages (the “CMCC Existing
Employees”).
	 
	 	(2)	 	On or prior to the Closing Date, CMCC shall use commercially reasonable efforts
to offer employment to those employees of MCC who MCC currently leases to CMCC (the
“MCC Leased Employees”). CMCC shall use commercially reasonable efforts to offer the
MCC Leased Employees compensation and benefit packages that are substantially similar
to such MCC Leased Employees’ respective current compensation and benefit packages.
	 
	 	(3)	 	MCC Leased Employees shall have until October 1, 2010 (“Acceptance Deadline”)
to decide whether to accept CMCC’s offer of employment.




7.7 Access and Investigation





Between the date of this Agreement and the Closing Date, MCC will, and will cause each of
CMCC and its Representatives to (1) afford Calgon and its Representatives and prospective
lenders and their Representatives (collectively, “Calgon’s Advisors”) full and free access
to CMCC’s personnel, properties, contracts, books and records, and other documents and data,
(2) furnish Calgon and Calgon’s Advisors with copies of all such contracts, books and
records, and other existing documents and data as Calgon may reasonably request, and (3)
furnish Calgon and Calgon’s Advisors with such additional financial, operating, and other
data and information as Calgon may reasonably request.


7.8 Operation of the Business of CMCC





	 	(1)	 	Between the date of this Agreement and the Closing Date, MCC will, and will
cause CMCC to: (i) conduct the business of CMCC only in the Ordinary Course of
Business; (ii) use its Best Efforts to preserve intact the current business
organization of CMCC, keep available the services of the current officers, employees,
and agents of CMCC, and maintain the relations and goodwill with




42









 






	 	 	 	suppliers, customers, landlords, creditors, employees, agents, and others having
business relationships with CMCC; (iii) confer with Calgon concerning operational
matters of a material nature; and (iv) otherwise report periodically to Calgon
concerning the status of the business, operations, and finances of CMCC.
	 
	 	(2)	 	Except as otherwise expressly permitted by this Agreement, between the date of
this Agreement and the Closing Date, MCC will not, and will cause CMCC not to, without
the prior consent of Calgon, which consent shall be at Calgon’s sole and absolute
discretion, (i) enter into or amend any Contracts with MCC or any MCC Related Person,
(ii) amend any of the MCC Associated Agreements; (iii) make any expenditure, enter into
any Contract, or make a commitment of any kind, in each case involving a payment or
aggregate obligation of CMCC in excess of ¥10,000,000; (iv) enter into any Contract
that would be required to be listed in Part 4.17(1) of the Disclosure Letter or that
involves performance of services or delivery of goods or materials of an amount or
value in excess of ¥10,000,000; or (v) take any affirmative action, or fail to take any
reasonable action within their or its control, as a result of which any of the changes
or events listed in Section 4.16 is likely to occur.
	 
	 	(3)	 	Except as otherwise expressly permitted by this Agreement, and notwithstanding
anything to the contrary contained in the Joint Venture Agreement, between the date of
this Agreement and the Closing Date (unless Calgon shall otherwise approve in writing,
which approval shall be in Calgon’s sole and absolute discretion), no orders or
authorizations shall unilaterally be given by any Party as a shareholder of CMCC (or
any of its appointees who are directors, statutory auditors, or the President-Director
of CMCC) to any or all of the representative directors, whether pursuant to CMCC’s
internal regulations or otherwise, and all such orders or authorizations, as the case
may be, shall be jointly given by each of Calgon and CMCC in the case of an order, or
unanimously approved by the board of directors in the case of an authorization.




7.9 Notification





Between the date of this Agreement and the Closing Date, each of MCC and CMCC will promptly
notify Calgon in writing if either MCC or CMCC becomes aware of any fact or condition that
causes, constitutes, or is reasonably likely to cause or constitute a Breach of MCC’s
representations and warranties, or if either MCC or CMCC becomes aware of the occurrence
after the date of this Agreement of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a Breach of any such representation or
warranty had such representation or warranty been made as of the time of occurrence or
discovery of such fact or condition. Should any such fact or condition require any change
in the Disclosure Letter if the Disclosure Letter were dated the date of the occurrence or
discovery of any such fact or condition, MCC will promptly deliver to Calgon a supplement to
the Disclosure Letter specifying such change. During the same period, each of MCC and CMCC
will promptly notify Calgon of the occurrence of any Breach of any covenant in this Section
7 or of the occurrence of any event that may make the satisfaction of the conditions in
Section 8 impossible or unlikely.



43









 




7.10 No Negotiation





Until such time, if any, as this Agreement is terminated pursuant to Section 10, MCC will
not, and will cause CMCC and each of their Representatives not to, directly or indirectly
solicit, initiate, or encourage any inquiries or proposals from, discuss or negotiate with,
provide any non-public information to, or consider the merits of any unsolicited inquiries
or proposals from, any Person (other than Calgon) relating to any transaction involving the
sale of the business or assets (other than in the Ordinary Course of Business) of CMCC, or
any of the capital stock of CMCC, or any merger, consolidation, business combination, or
similar transaction involving CMCC.


7.11 Confidentiality; Privilege





From and after the date hereof and prior to Closing, each Party shall maintain in
confidence, and each Party shall cause its agents, representatives and Affiliates to
maintain in confidence, and no Party shall use to the detriment or competitive disadvantage
of another Party or Affiliate, any and all information exchanged in connection with the
Contemplated Transactions (including all Confidential Information, information of a
proprietary nature and all trade secrets under applicable state law) in connection with this
Agreement or the Contemplated Transactions. The foregoing covenants shall not apply to the
extent necessary or appropriate in making any filing or obtaining any Consent or
Governmental Authorization required for the consummation of the Contemplated Transactions.
From and after the date hereof, and from and after Closing, MCC shall maintain in
confidence, and shall not use to the competitive disadvantage of CMCC, Calgon or their
respective Affiliates, any Confidential Information related to or arising out of the
business conducted by CMCC. The foregoing covenants shall not apply with respect to
information that is already known to a party or to others not bound by a duty of
confidentiality or such information that becomes publicly available through no fault of such
party, to the extent necessary or appropriate in making any filing or obtaining any Consent
or Governmental Authorization required for the consummation of the Contemplated
Transactions. If a party is compelled in any legal proceeding (other than between the
parties hereto) or is requested by a Governmental Body having regulatory jurisdiction over
the Contemplated Transactions to make any disclosure that is prohibited or otherwise
constrained by this Section, such party shall provide the disclosing party with prompt
notice of such compulsion or request so that it may seek an appropriate protective order or
other appropriate remedy or waive compliance with the provisions of this Section. In the
absence of a protective order or other remedy, the receiving party may disclose that portion
(and only that portion) of the Confidential Information of the disclosing party that, based
upon advice of the receiving party’s counsel, the receiving party is legally compelled to
disclose or that has been requested by such Governmental Body, provided, however, that the
receiving party shall use reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded by any person to whom any Confidential Information is so
disclosed. The disclosing party is not waiving, and will not be deemed to have waived or
diminished, any of its attorney work product protections, attorney-client privileges or
similar protections and privileges as a result of disclosing its Confidential Information
(including Confidential Information related to pending or Threatened litigation) to the
receiving party, regardless of whether the disclosing party has asserted, or



44









 







is or may be entitled to assert, such privileges and protections. The parties (1) share a
common legal and commercial interest in all of the disclosing party’s Confidential
Information that is subject to such privileges and protections; (2) are or may become joint
defendants in proceedings to which the disclosing party’s Confidential Information covered
by such protections and privileges relates; (3) intend that such privileges and protections
remain intact should either party become subject to any actual or Threatened proceeding to
which the disclosing party’s Confidential Information covered by such protections and
privileges relates; and (4) intend that after the Closing the receiving party shall have the
right to assert such protections and privileges. No receiving party shall admit, claim or
contend, in proceedings involving either party or otherwise, that any disclosing party
waived any of its attorney work-product protections, attorney-client privileges or similar
protections and privileges with respect to any information, documents or other material not
disclosed to a receiving party due to the disclosing party disclosing its Confidential
Information (including Confidential Information related to pending or Threatened litigation)
to the receiving party. The covenants contained in this Section are independent of any other
provision of this Agreement and the existence of any claim that any Party may allege against
any other Party, whether based on this Agreement or otherwise, shall not prevent the
enforcement of this covenant. Each Party agrees that the remedies at law for any breach or
threat of breach by any Party of the provisions of this Section will be inadequate, and that
each Party shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Section and to enforce specifically the terms and provisions hereof, in
addition to any other remedy to which such Party may be entitled at law or equity. The
provisions of this Section 7.11 shall supercede the Confidentiality Agreement, dated October
6, 2009, between Calgon and MCC.


7.12 Restrictive Covenants





CMCC has developed valuable proprietary confidential information, and due to MCC’s
relationship with CMCC, the following covenants are necessary in order to protect such
information:




	 	(1)	 	In order to protect the intellectual property and know-how of CMCC (including
without limitation such that is conveyed pursuant to the Intellectual Property
Assignment Certifications), from and after the Closing Date for a period ending two (2)
years after the Final Closing Date, neither MCC nor any of its affiliates will (i)
directly or indirectly manage, operate or engage in the business of the manufacture,
sale, distribution, or reactivation of activated carbon for any use or purpose, or
research and development related to activated carbon, in Japan (the “Business”) or (ii)
directly or indirectly acquire an ownership or other interest in any Person that
manages, operates or engages in the Business in Japan. MCC’s ownership of an interest
in KN Carbon Tech Co., Ltd. shall not be a violation of this Section 7.12(1).
	 
	 	(2)	 	From and after the Closing Date for a period ending two (2) years after the
Final Closing Date, MCC will not license the “Mitsubishi” name or any other Mitsubishi
Marks to KN Carbon Tech Co., Ltd. or any of its affiliates.




45









 












	 	(3)	 	MCC will not lease to KN Carbon Tech Co., Ltd. or any of its affiliates any
employee that is or has previously been leased by MCC to CMCC (each a “Leased
Employee”) during any period that such Leased Employee is working for CMCC and for a
period of two (2) years from and after the date that such Leased Employee ceases to
work for CMCC (the “Restricted Period”). MCC will prohibit KN Carbon Tech Co., Ltd.
from (i) hiring or engaging to serve in any capacity, including without limitation, as
a director, officer, consultant or agent, any Leased Employee during the Restricted
Period or (ii) hiring or engaging to serve in any capacity, including without
limitation, as a director, officer, consultant or agent, any individual who previously
served as a director of CMCC during the Restricted Period.
	 
	 	(4)	 	From and after the Closing Date for a period ending two (2) years after the
Final Closing Date, neither MCC nor any of its affiliates shall, directly or indirectly
(i) solicit the business of any person who is or was during the year prior to the date
of this Agreement a customer of CMCC or is a potential customer of CMCC as of the
Closing Date; (ii) cause, induce or attempt to cause or induce any customer, supplier,
licensee, licensor, franchisee, employee, consultant or other business relation of CMCC
to cease doing business with CMCC or to materially reduce the amount of business such
party conducts with CMCC, to deal with any competitor of CMCC or in any way interfere
with its relationship with CMCC; or (iii) hire, retain or attempt to hire or retain any
employee or independent contractor of CMCC or in any way interfere with the
relationship between CMCC and any of its employees or independent contractors.
	 
	 	(5)	 	The restrictive covenants contained in this Section are independent of any
other provision of this Agreement and the existence of any claim that MCC may allege
against Calgon or CMCC, whether based on this Agreement or otherwise, shall not prevent
the enforcement of this covenant. MCC agrees that CMCC’s and Calgon’s remedies at law
for any breach or threat of breach by MCC of the provisions of this Section will be
inadequate, and that Calgon or CMCC shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Section and to enforce specifically the
terms and provisions hereof, in addition to any other remedy to which Calgon or CMCC
may be entitled at law or equity. In the event of litigation or arbitration regarding
the covenant not to compete, the prevailing party in such proceeding shall, in addition
to any other remedies the prevailing party may obtain in such proceeding, be entitled
to recover from the other party its reasonable legal fees and out of pocket costs
incurred by such party in enforcing or defending its rights hereunder. The length of
time for which this covenant not to compete shall be in force shall be extended for a
period of time equal to the period of violation or any other period required for
litigation during which Calgon or CMCC seeks to enforce this covenant. Should any
provision of this Section be adjudged to any extent invalid by any competent tribunal,
such provision shall be deemed modified to the extent necessary to make it enforceable.




46









 










7.13 Record Retention and Access





Upon reasonable advance written request of MCC, during normal business hours, and in
accordance with a reasonable confidentiality agreement, Calgon shall cause CMCC to afford
promptly to MCC and their agents reasonable access to CMCC’s properties, books and records
relating to the Business of CMCC solely prior to the Final Closing Date, for purpose of
preparing prosecution and defense of litigation and all other proper business purposes,
provided, that in connection with such access MCC shall at all times comply with CMCC’s
normal visitor safety and security procedures and requirements.


7.14 IT Systems





	 	(1)	 	For a term of twelve (12) months after the Closing Date, MCC shall continue to
allow and shall cause Ryoka Systems Inc. to continue to provide CMCC the use of its IT
systems that are nominated by CMCC in the list as provided on Exhibit H under MCC’s
network rules and the same terms and conditions as described in the IT Service
Agreement dated October 1, 2002 executed between Ryoka Systems Inc. and CMCC.
	 
	 	(2)	 	For a term of twelve (12) months after the later of the Final Closing Date or
the expiration of the initial twelve (12) month term in Section 7.14(1) above, MCC
shall continue to allow and shall cause Ryoka Systems Inc. to continue to provide CMCC
the use of its IT systems that are nominated by CMCC in the list as provided on Exhibit
H under MCC’s network rules, the service rate for the third party and other terms and
conditions as agreed between Ryoka Systems Inc. and CMCC.




7.15 Continuation of MCC Associated Agreements





	 	(1)	 	Unless CMCC otherwise requests, for a term of one (1) year from the Closing
Date, MCC shall continue to lease CMCC its buildings and facilities in Kurosaki Plant
of MCC under the same terms and conditions as described in the Building and Facility
Lease Agreement dated October 1, 2002 as amended executed between MCC and CMCC.
	 
	 	(2)	 	Unless CMCC otherwise requests, for a term of one (1) year from the Closing
Date, MCC shall continue to provide CMCC certain utilities and service under the same
terms and conditions as described in the Utilities Supply Agreement and the Services
Agreement dated October 1, 2002 as amended executed between MCC and CMCC.
	 
	 	(3)	 	Unless CMCC otherwise requests, for a term of one (1) year from the Closing
Date, MCC shall continue to lease CMCC its office in Osaka Branch Office of MCC under
the same terms and conditions as described in the Office Lease Agreement dated June 1,
2008 executed between MCC and CMCC.




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7.16 Leased Employee Matters





	 	(1)	 	For a period of one (1) year after the Acceptance Deadline (the “Leased
Period”), MCC shall continue to lease the MCC Leased Employees (except the employees
who transferred to CMCC) to CMCC under the same terms and conditions as described in
the Personnel Lease Agreement dated October 1, 2002 executed between MCC and CMCC (the
“Personnel Lease Agreement”).
	 
	 	(2)	 	At the sole and absolute discretion of CMCC, MCC shall extend the Leased Period
for additional one (1) year periods or further extension periods as agreed by the
Parties on the same terms and conditions in the Personnel Lease Agreement.
	 
	 	(3)	 	Once CMCC determines in its sole discretion that no MCC Leased Employees are
necessary in order to operate the Business and gives MCC a written notice of
termination to the Personnel Lease Agreement at least three (3) months prior to the
date of such termination, Calgon shall cause CMCC to and MCC shall, enter into the
termination agreement to terminate the Personnel Lease Agreement.




7.17 Co-owned Patents





	 	(1)	 	MCC shall make reasonable efforts to enter into and cause Toyota Motor
Corporation (“Toyota”) to, enter into a license agreement with CMCC providing CMCC
with a worldwide, perpetual license, under all of the Toyota Co-owned Patents (the
“Toyota License”) to make, have made, use, and sel the invention Toyota Co-owned
Patents, prior to the Closing. In the event that such a license agreement is not
entered into prior to Closing, MCC shall continue to make reasonable efforts to enter
into and cause Toyota to enter into such a license agreement. Calgon and CMCC
acknowledge that such license may require royalty payments for the benefit of Toyota
and MCC. CMCC may transfer its rights the Toyata License to its sucessors and
assigns, subject to Toyota’s consent.
	 
	 	(2)	 	MCC shall make reasonable efforts, and CMCC shall cooperate with MCC, to
obtain consent from the co-owners of the Co-owned MCC Patents with respect to the
transfer of the Co-owned MCC Patents to CMCC. In the event that consent is not
obtained prior to Closing, MCC shall continue to make reasonable efforts to obtain
such consent, and CMCC shall continue to cooperate with MCC.




7.18 Restrictions Regarding Second Purchase Shares 





	 	(1)	 	During the period beginning on the Closing Date and ending on the Final Closing
Date (the “Share Restriction Period”), at any meeting of the shareholders of CMCC, or
in connection with any written consent of the shareholders of CMCC, MCC shall, in each
case to the fullest extent that MCC, as the holder of the Second Purchase Shares, is
entitled to vote thereon or consent thereto, vote or deliver written consent in the
same way as Calgon votes or delivers written consent.
	 
	 	(2)	 	During the Share Restriction Period, MCC shall not (i) sell, assign, transfer,
pledge, encumber or otherwise dispose of any of the Second Purchase Shares, (ii)
deposit




48









 





	 	 	 	any of the Second Purchase Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Second Purchase Shares or grant any
proxy or power of attorney with respect thereto (other than pursuant to this
Agreement), or (iii) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect sale, assignment, transfer or
other disposition of any of the Second Purchase Shares.
	 
	 	(3)	 	MCC acknowledges and agrees that from and after the Closing Date its sole
expectation of profits arising in connection with its ownership of the Second Purchase
Shares is the payment of the Second Share Purchase Price to be made at the Final
Closing, and that from and after the Closing Date, MCC shall not be entitled to any
further dividends or other economic benefits with respect to the Second Purchase
Shares.




7.19 Purchase activated carbon





MCC shall purchase activated carbon used to manufacture capacitor from CMCC, if and to the
extent that CMCC is able to supply such activated carbon on prices, quality and other
conditions not less favourable than those which MCC can obtain from the other companies.


8. CONDITIONS PRECEDENT TO CALGON’S OBLIGATION TO CLOSE





Calgon’s obligation to make the Equity Contribution, if applicable, and to take the other
actions required to be taken by Calgon at the Closing and CMCC’s obligation to redeem the
First Purchase Shares and take the other actions required to be taken by CMCC at the Closing
are both subject to the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived solely by Calgon, in whole or in part):


8.1 Accuracy of Representations





All of MCC’s representations and warranties in this Agreement (considered collectively), and
each of these representations and warranties (considered individually), must have been
accurate in all material respects as of the date of this Agreement, and must be accurate in
all material respects as of the Closing Date as if made on the Closing Date, without giving
effect to any supplement to the Disclosure Letter.


8.2 Performance





	 	(1)	 	All of the covenants and obligations that MCC is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered individually),
must have been duly performed and complied with in all material respects. MCC must have
delivered each of the documents required to be delivered by MCC pursuant to Section
2.6.
	 
	 	(2)	 	All of the covenants and obligations that CMCC is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing (considered




49









 






	 	 	 	collectively), and each of these covenants and obligations (considered
individually), must have been duly performed and complied with in all material
respects. CMCC must have delivered each of the documents required to be delivered
by CMCC pursuant to Section 2.6 and must have made the cash payment required to be
made by CMCC at Closing pursuant to Section 2.6.




8.3 No Proceedings





Since the date of this Agreement, there must not have been commenced or Threatened against
Calgon or CMCC, or against any Person affiliated with Calgon or CMCC, any Proceeding (1)
involving any challenge to, or seeking damages or other relief in connection with, any of
the Contemplated Transactions, or (2) that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with any of the Contemplated Transactions.


8.4 No Prohibition





Neither the consummation nor the performance of any of the Contemplated Transactions will,
directly or indirectly (with or without notice or lapse of time), materially contravene, or
conflict with, or result in a material violation of, or cause Calgon, CMCC or any Person
affiliated with Calgon or CMCC to suffer any material adverse consequence under, (1) any
applicable Legal Requirement or Order, or (2) any Legal Requirement or Order that has been
published, introduced, or otherwise proposed by or before any Governmental Body.


8.5 Trademark Use





MCC shall have obtained the approval of Mitsubishi Trademark Committee with respect to
continued use of Mitsubishi Marks by CMCC after the Closing Date, in the manner and for the
period, agreed on by CMCC and MCC.


8.6 MCC Co-owned Patents





MCC shall have obtained written consent from each of the co-owners of the Co-owned MCC
Patents with respect to MCC’s transfer to CMCC of MCC’s interest in each of the respective
Co-owned MCC Patents.


8.7 Financing Matters





CMCC shall have entered into the loan agreement with MCFA in Japanese language based on
major terms and conditions identified on Exhibit G and the termination agreement in Japanese
language to terminate the Loan Agreement dated October 1, 2002 executed between CMCC and
MCFA.


8.8 Resignations; Certain Agreements





Each of the directors and statutory auditors of CMCC nominated by MCC shall have submitted
signed resignations effective as of the Closing Date and shall have entered into



50









 







confidentiality and non-compete agreements with CMCC on terms that are satisfactory to
Calgon in its reasonable discretion.


8.9 Due Diligence





Calgon shall have completed to its satisfaction, in its reasonable discretion, its
financial, business, and legal due diligence investigation of CMCC.


8.10 No Material Adverse Change





Between the date of this Agreement and the Closing Date, there shall have been no Material
Adverse Change, regardless of insurance coverage.


8.11 Employees; Employment Violations





	 	(1)	 	CMCC shall have received offers of acceptance for employment from the
majority of MCC Leased Employees who are identified on Exhibit I as a key person of
CMCC which are satisfactory to Calgon in its reasonable discretion.
	 
	 	(2)	 	CMCC shall have resolved any discrepancies and cured any and all violations
of employment law set forth on Part 8.11(2) of the Disclosure Letter, in a manner
which is acceptable to Calgon.




8.12 Office Lease





MCC shall obtain and deliver to Calgon the consent of the master landlord with respect to
the office lease at CMCC’s office located in Osaka.


8.13 Assignment of Agreements





MCC shall assign to CMCC and/or novate, as necessary, the Contracts set forth on Part 8.13
of the Disclosure Letter.


8.14 Assignment of Security





MCC shall assign to CMCC all security deposits, including any interest thereon, obtained by
MCC in connection with CMCC’s business, held by MCC for CMCC’s benefit or that are otherwise
necessary to operate the CMCC’s business set forth on Part 8.14 of the Disclosure Letter.


8.15 Material Consents





MCC shall have caused CMCC to acquire from its other party the consents of continuance
after the Closing Date regarding the agreements identified on Part 8.15 of the Disclosure
Letter, and consents to the assignment and/or novation of the agreements identified on Part
8.13 of the Disclosure Letter.



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8.16 Exclusive Agreement





CMCC and KN Carbon Tech Co., Ltd. shall have entered into an exclusive reproduction service
agreement with a term of at least four (4) years from the Closing Date with respect to
reactivated carbon, coconut-based new carbon, and impregnated carbon.


9. CONDITIONS PRECEDENT TO MCC’S OBLIGATION TO CLOSE





MCC’s obligation to sell the First Purchase Shares and the Assigned Intellectual Property,
to grant the Licensed Intellectual Property, and to take the other actions required to be
taken by MCC at the Closing is subject to the satisfaction, at or prior to the Closing, of
each of the following conditions (any of which may be waived by MCC, in whole or in part):


9.1 Accuracy of Representations





All of Calgon’s representations and warranties in this Agreement (considered collectively),
and each of these representations and warranties (considered individually), must have been
accurate in all material respects as of the date of this Agreement and must be accurate in
all material respects as of the Closing Date as if made on the Closing Date.


9.2 Performance





	 	(1)	 	All of the covenants and obligations that Calgon is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered individually),
must have been performed and complied with in all material respects. Calgon must have
delivered each of the documents required to be delivered by Calgon pursuant to Section
2.6.
	 
	 	(2)	 	All of the covenants and obligations that CMCC is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered individually),
must have been duly performed and complied with in all material respects. CMCC must
have delivered each of the documents required to be delivered by CMCC pursuant to
Section 2.6 and must have made the cash payment required to be made by CMCC at Closing
pursuant to Sections 2.6.




9.3 Financing Matters





MCFA shall have entered into the loan agreement with CMCC in Japanese language based on
major terms and conditions identified on Exhibit G and the termination agreement in Japanese
language to terminate the Loan Agreement dated October 1, 2002 executed between CMCC and
MCFA.


9.4 No Injunction





There must not be in effect any Legal Requirement or any injunction or other Order that (1)
prohibits the sale of the Shares or the Assigned Intellectual Property by MCC to CMCC,



52









 







and the license of the Licensed Intellectual Property by MCC to CMCC and (2) has been
adopted or issued, or has otherwise become effective, since the date of this Agreement.


10. TERMINATION



10.1 Termination of Events





This Agreement may, by notice given prior to or at the Closing, be terminated:




	 	(1)	 	by either Calgon or MCC if a material Breach of any provision of this Agreement
has been committed by the other party (and in cases where Calgon is the terminating
party, breaches by CMCC) and such Breach has not been waived;
	 
	 	(2)	 	(i) by Calgon if any of the conditions in Section 8 has not been satisfied as
of the Closing Date or if satisfaction of such a condition is or becomes impossible
(other than through the failure of Calgon to comply with its obligations under this
Agreement) and Calgon has not waived such condition on or before the Closing Date; or
(ii) by MCC, if any of the conditions in Section 9 has not been satisfied of the
Closing Date or if satisfaction of such a condition is or becomes impossible (other
than through the failure of MCC or CMCC to comply with its obligations under this
Agreement) and MCC has not waived such condition on or before the Closing Date;
	 
	 	(3)	 	by mutual consent of Calgon and MCC; or
	 
	 	(4)	 	by either Calgon or MCC if the Closing has not occurred (other than through the
failure of the party seeking to terminate this Agreement (and in the case of MCC
seeking to terminate, or through the failure of CMCC) to comply fully with its
obligations under this Agreement) on or before March 31, 2010, or such later date as
the parties may agree upon.




10.2 Effect of Termination





Each party’s right of termination under Section 10.1 is in addition to any other rights it
may have under this Agreement or otherwise, and the exercise of a right of termination will
not be an election of remedies. If this Agreement is terminated pursuant to Section 10.1,
all further obligations of the parties under this Agreement will terminate, except that the
obligations in Sections 7.11, 12.1, 12.2, 12.4, 12.6, and 12.14 will survive; provided,
however, that if this Agreement is terminated by a party because of the Breach of the
Agreement by the other party or because one (1) or more of the conditions to the terminating
party’s obligations under this Agreement is not satisfied as a result of the other party’s
failure to comply with its obligations under this Agreement, the terminating party’s right
to pursue all legal remedies will survive such termination unimpaired.



53









 




11. INDEMNIFICATION; REMEDIES



11.1 Survival; Right to Indemnification Not Affected by Knowledge





All representations, warranties, covenants, and obligations in this Agreement, the
Disclosure Letter, the supplements to the Disclosure Letter, all Exhibits to this Agreement,
the certificates delivered pursuant to Sections 2.6(1)(ii), 2.6(3)(ii), 2.7(1)(ii), and
2.7(2)(ii), the Intellectual Property Assignment Certifications, and any other certificate
or document delivered pursuant to this Agreement will survive the Closing. The right to
indemnification, payment of Damages or other remedy based on such representations,
warranties, covenants, and obligations will not be affected by any investigation conducted
with respect to, the ownership of equity securities in CMCC, or any Knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution and delivery
of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant, or obligation. The waiver of
any condition based on the accuracy of any representation or warranty, or on the performance
of or compliance with any covenant or obligation, will not affect the right to
indemnification, payment of Damages, or other remedy based on such representations,
warranties, covenants, and obligations.


11.2 Indemnification and Payment of Damages by MCC





	 	(1)	 	Except as provided in Section 11.2(2) below, MCC will indemnify and hold
harmless Calgon, CMCC, and their respective Representatives, shareholders, controlling
persons, officers, directors and affiliates (collectively, the “Calgon Indemnified
Persons”) for, and will pay to the Calgon Indemnified Persons the amount of, any loss,
liability, claim, damage (including incidental and consequential damages), expense
(including costs of investigation and defense and reasonable attorneys’ fees), fines,
penalties or diminution of value, whether or not involving a third-party claim
(collectively, “Damages”), arising, directly or indirectly, from or in connection
with:






	 	(a)	 	any Breach of any representation or warranty made by MCC in
this Agreement (without giving effect to any supplement to the Disclosure
Letter), the Disclosure Letter, the supplements to the Disclosure Letter, the
Exhibits to this Agreement, or any other certificate or document delivered by
MCC pursuant to this Agreement;
	 
	 	(b)	 	any Breach by MCC of any covenant or obligation of MCC in
this Agreement;
	 
	 	(c)	 	ownership and operation, or condition of the Kurosaki
Facility at any time on or prior to the Share Acquisition Date;
	 
	 	(d)	 	claims for or allegations of: (i) infringement, (ii) past or
future royalties, and (iii) any other fees and expenses, in each case,
relating to the intellectual




54









 






	 	 	 	property covered by the Toyota Co-owned Patents, except for the royalty
stipulated in 7.17 (1);






	 	(e)	 	any matter disclosed or required to be disclosed on Part 4.23
of the Disclosure Letter; and
	 
	 	(f)	 	any claims, allegations, violations, breaches, penalties or
fines, whether intentional or unintentional, known or unknown, enforced
against, CMCC, Calgon or MCC by any Governmental Body related to any action or
inaction on the part of MCC.






	 	(2)	 	Notwithstanding the provision of Section 11.2(1) above, MCC will indemnify
and hold harmless the Calgon Indemnified Persons for, and will pay to the Calgon
Indemnified Persons fifty-one percent (51%) of any Damages, arising, directly or
indirectly, from or in connection with any Breach of any representation or warranty
made by MCC under the provisions of Section 4 other than Sections 4.1, 4.2, 4.3, 4.14,
4.19 and 4.23.




11.3 Indemnification and Payment of Damages by MCC—Environmental Matters





In addition to the provisions of Section 11.2, from and after Closing, MCC will indemnify
and hold harmless Calgon, CMCC and the other Calgon Indemnified Persons for, and will pay to
Calgon, CMCC, and the other Calgon Indemnified Persons the amount of, any Damages (including
costs of cleanup, containment, or other remediation) arising, directly or indirectly, from
or in connection with:




	 	(1)	 	any Environmental, Health, and Safety Liabilities arising out of or relating
to: (i) the ownership, operation, or condition of the Kurosaki Facility or any other
properties and assets (whether real, personal, or mixed and whether tangible or
intangible) which MCC contributed to CMCC, or (ii) any Hazardous Materials or other
contaminants that are or were present on the Kurosaki Facility or such other properties
and assets at any time; or
	 
	 	(2)	 	any bodily injury (including illness, disability, and death, and regardless of
when any such bodily injury occurred, was incurred, or manifested itself), personal
injury, property damage (including trespass, nuisance, wrongful eviction, and
deprivation of the use of real property), or other damage of or to any Person,
including any employee or former employee of MCC or CMCC or any other Person for whose
conduct they are or may be held responsible, in any way arising from or allegedly
arising from any Hazardous Activity conducted or allegedly conducted with respect to
the Kurosaki Facility, or from Hazardous Materials present or suspected to be present
on or at the Kurosaki Facility (or present or suspected to be present on any other
property, if such Hazardous Materials emanated or allegedly emanated from the Kurosaki
Facility).






MCC will be entitled to control any cleanup, any related Proceeding, and, except as provided
in the following sentence, any other Proceeding with respect to which indemnity



55









 







may be sought under this Section 11.3. The procedure described in Section 11.9 will apply
to any claim solely for monetary damages relating to a matter covered by this Section 11.3.


11.4 Indemnification and Payment of Damages by Calgon





	 	(1)	 	Calgon will indemnify and hold harmless MCC and its respective Representatives,
shareholders, controlling persons, and affiliates (collectively, the “MCC Indemnified
Persons”) for, and will pay to such MCC Indemnified Persons the amount of any Damages,
arising, directly or indirectly, from or in connection with:






	 	(a)	 	any Breach of any representation or warranty made by Calgon in
this Agreement or any other certificate or document delivered by Calgon
pursuant to this Agreement;
	 
	 	(b)	 	any Breach by Calgon of any covenant or obligation of Calgon in
this Agreement; or
	 
	 	(c)	 	ownership and operation, or condition of the Fukui Facility at
any time on or prior to the Share Acquisition Date.






	 	(2)	 	Calgon will indemnify and hold harmless the MCC Indemnified Persons for, and
will pay to such MCC Indemnified Persons the amount of any Damages (excluding
consequential damages) arising directly or indirectly from or in connection with acts
or omissions of CMCC after the Closing Date; provided that Calgon will have no
liability for indemnification with respect to any matter related to or arising in
connection with a Breach of this Agreement or any Ancillary Agreement by MCC.




11.5 Indemnification and Payment of Damages by Calgon—Environmental Matters





In addition to the provisions of Section 11.4, from and after Closing, Calgon will indemnify
and hold harmless MCC and the other MCC Indemnified Persons for, and will pay to MCC, and
the other MCC Indemnified Persons the amount of, any Damages (including costs of cleanup,
containment, or other remediation) arising, directly or indirectly, from or in connection
with:




	 	(1)	 	any Environmental, Health, and Safety Liabilities arising out of or relating
to: (i) the ownership, operation, or condition of the Fukui Facility or any other
properties and assets (whether real, personal, or mixed and whether tangible or
intangible) which Calgon contributed to CMCC, or (ii) any Hazardous Materials or other
contaminants that are or were present on the Fukui Facility or such other properties
and assets at any time; or
	 
	 	(2)	 	any bodily injury (including illness, disability, and death, and regardless of
when any such bodily injury occurred, was incurred, or manifested itself), personal
injury, property damage (including trespass, nuisance, wrongful eviction, and
deprivation of the use of real property), or other damage of or to any Person,
including any employee or former employee of Calgon or CMCC or any other Person for
whose conduct they are or may be held responsible, in any way arising




56









 






	 	 	 	from or allegedly arising from any Hazardous Activity conducted or allegedly
conducted with respect to the Fukui Facility, or from Hazardous Materials present or
suspected to be present on or at the Fukui Facility (or present or suspected to be
present on any other property, if such Hazardous Material emanated or allegedly
emanated from the Fukui Facility).






Calgon will be entitled to control any cleanup, any related Proceeding, and, except as
provided in the following sentence, any other Proceeding with respect to which indemnity may
be sought under this Section 11.5. The procedure described in Section 11.9 will apply to
any claim solely for monetary damages relating to a matter covered by this Section 11.5.


11.6 Time Limitations





	 	(1)	 	If the Closing occurs, MCC will have no liability (for indemnification or
otherwise) with respect to any representation or warranty, or covenant or obligation to
be performed and complied with prior to the Closing Date, other than those in Sections
3.4, 4.3, 4.14, 4.19 and 4.23, unless on or before the second anniversary of the
Closing Date, Calgon notifies MCC of a claim, specifying the factual basis of that
claim in reasonable detail to the extent then known by Calgon. A claim with respect to
(A) Section 4.14 and 4.23, or a claim for indemnification or reimbursement not based
upon any representation or warranty or any covenant or obligation to be performed and
complied with prior to the Closing Date, may be made on or before the fifth anniversary
of the Closing Date, and (B) Sections 3.4, 4.3, and 4.19 may be made at any time.
	 
	 	(2)	 	If the Closing occurs, Calgon will have no liability (for indemnification or
otherwise) with respect to any representation or warranty, or covenant or obligation to
be performed and complied with prior to the Final Closing Date unless on or before the
second anniversary of the Closing Date, MCC notifies Calgon of a claim, specifying the
factual basis of that claim in reasonable detail to the extent then known by MCC.




11.7 Limitations on Amount—MCC 





MCC will have no liability (for indemnification) with respect to the matters described in
clause (1)(a) other than Breaches of Sections 3.4, 4.3, 4.14, 4.19, and 4.23, clause (1)(b),
clause (1)(d) or clause (2) of Section 11.2 until the total of all Damages with respect to
such matters exceeds ¥30,000,000, and then only for the amount by which such Damages exceed
¥30,000,000 (the “MCC Basket”); provided, however, that MCC shall not be liable for such
Damages in excess of 50% of the Share Purchase Price (the “MCC Cap”); provided, further, and
notwithstanding anything to the contrary contained herein any Breaches of Sections 3.4, 4.3,
4.14, 4.19, and 4.23 shall not be subject to the MCC Basket or the MCC Cap in any respect.
However, this Section 11.7 will not apply to any Breach of any of MCC’s representations and
warranties of which MCC had Knowledge at any time prior to the date on which such
representation and warranty is made or any intentional Breach by MCC of any covenant or
obligation.




57












 





11.8 Limitations on Amount—Calgon





	 	 	Calgon will have no liability (for indemnification) with respect to the matters described in
clause (1)(a), or clause (1)(b) of Section 11.4 until the total of all Damages with respect
to such matters exceeds ¥30,000,000, and then only for the amount by which such Damages
exceed ¥30,000,000; provided that Calgon shall not be liable for such Damages in excess of
50% of the Share Purchase Price. However, this Section 11.8 will not apply to any Breach of
any of Calgon’s representations and warranties of which Calgon had Knowledge at any time
prior to the date on which such representation and warranty is made or any intentional
Breach by Calgon of any covenant or obligation, and Calgon will be liable for all Damages
with respect to such Breaches.





11.9 Procedure for Indemnification—Third-Party Claims





	 	(1)	 	Promptly after receipt by an indemnified party under Section 11.2, 11.3, 11.4,
or 11.5 of notice of the commencement of any Proceeding against it, such indemnified
party will, if a claim is to be made against an indemnifying party under such Section,
give notice to the indemnifying party of the commencement of such claim, but the
failure to notify the indemnifying party will not relieve the indemnifying party of any
liability that it may have to any indemnified party, except to the extent that the
indemnifying party demonstrates that the defense of such action is prejudiced by the
indemnifying party’s failure to give such notice.
	 
	 	(2)	 	If any Proceeding referred to in Section 11.9(1) is brought against an
indemnified party and it gives notice to the indemnifying party of the commencement of
such Proceeding, the indemnifying party will, unless the claim involves Taxes, be
entitled to participate in such Proceeding and, to the extent that it wishes (unless
(i) the indemnifying party is also a party to such Proceeding and the indemnified party
determines in good faith that joint representation would be inappropriate, or (ii) the
indemnifying party fails to provide reasonable assurance to the indemnified party of
its financial capacity to defend such Proceeding and provide indemnification with
respect to such Proceeding), to assume the defense of such Proceeding with counsel
satisfactory to the indemnified party and, after notice from the indemnifying party to
the indemnified party of its election to assume the defense of such Proceeding, the
indemnifying party will not, as long as it diligently conducts such defense, be liable
to the indemnified party under this Section 11 for any fees of other counsel or any
other expenses with respect to the defense of such Proceeding, in each case
subsequently incurred by the indemnified party in connection with the defense of such
Proceeding, other than reasonable costs of investigation. If the indemnifying party
assumes the defense of a Proceeding, (i) it will be conclusively established for
purposes of this Agreement that the claims made in that Proceeding are within the scope
of and subject to indemnification; (ii) no compromise or settlement of such claims may
be effected by the indemnifying party without the indemnified party’s consent unless
(A) there is no finding or admission of any violation of Legal Requirements or any
violation of the rights of any Person and no effect on any other claims that may be
made against the indemnified party, and (B) the sole relief provided is monetary
damages that are




58









 






	 	 	 	paid in full by the indemnifying party; and (iii) the indemnified party will have no
liability with respect to any compromise or settlement of such claims effected
without its consent. If notice is given to an indemnifying party of the
commencement of any Proceeding and the indemnifying party does not, within ten (10)
days after the indemnified party’s notice is given, give notice to the indemnified
party of its election to assume the defense of such Proceeding, the indemnifying
party will be bound by any compromise or settlement effected by the indemnified party.
	 
	 	(3)	 	Notwithstanding the foregoing, if an indemnified party determines in good faith
that there is a reasonable probability that a Proceeding may adversely affect it or its
affiliates other than as a result of monetary damages for which it would be entitled to
indemnification under this Agreement, the indemnified party may, by notice to the
indemnifying party, assume the exclusive right to defend, compromise, or settle such
Proceeding, but the indemnifying party will not be bound by any compromise or
settlement effected without its consent (which may not be unreasonably withheld).
	 
	 	(4)	 	MCC hereby consents to the non-exclusive jurisdiction of any court in which a
Proceeding is brought against any Indemnified Person for purposes of any claim that an
Indemnified Person may have under this Agreement with respect to such Proceeding or the
matters alleged therein, and agrees that process may be served on MCC with respect to
such a claim anywhere in the world.





11.10 Procedure for Indemnification—Other Claims





	 	 	A claim for indemnification for any matter not involving a third-party claim may be asserted
by notice to the party from whom indemnification is sought.





12. GENERAL PROVISIONS




12.1 Expenses





	 	 	Except as otherwise expressly provided in this Agreement, each Party will bear its
respective expenses incurred in connection with the preparation, execution, and performance
of this Agreement and the Contemplated Transactions, including all fees and expenses of
agents, representatives, counsel, and accountants, provided, however, that the expenses
paid to Mizuho Securities Co., Ltd. will be borne by MCC.





12.2 Public Announcements





	 	 	Any public announcement or similar publicity with respect to this Agreement or the
Contemplated Transactions will be issued, if at all, at such time and in such manner as
Calgon determines. Unless consented to by Calgon in advance or required by Legal
Requirements, prior to the Closing MCC shall, and shall cause CMCC to, keep this Agreement
strictly confidential and may not make any disclosure of this Agreement to any Person. MCC
and Calgon will consult with each other concerning the means by which CMCC’s employees,
customers, and suppliers and others having dealings with CMCC will




59









 






	 	 	be informed of the Contemplated Transactions, and Calgon will have the right to be present
for any such communication.





12.3 Termination of Joint Venture Agreement





	 	 	MCC and Calgon acknowledge and agree that effective upon the Closing Date, the Joint Venture
Agreement shall be terminated; provided that the confidentiality obligations set forth in
Article 21 of the Joint Venture Agreement shall survive such termination.





12.4 Waiver and Release





	 	 	MCC hereby waives any potential claims against and releases and forever discharges CMCC and
Calgon and their respective directors, officers, representatives, agents and each of their
respective successors and assigns from any and all claims, liabilities, damages and causes
of action which MCC now has, has ever had or may hereafter have against such Persons arising
in connection with the Toyota Co-owned Patents.





12.5 Notices





	 	 	All notices, consents, waivers, and other communications under this Agreement must be in
writing and will be deemed to have been duly given when (1) delivered by hand (with written
confirmation of receipt), (2) sent by facsimile (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested, or (3) when
received by the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile numbers set
forth below (or to such other addresses and facsimile numbers as a party may designate by
notice to the other parties):





	 	 	 	 	 
	 

	 	MCC:
	 	Mitsubishi Chemical Corporation
	 

	 	 	 	14-1, Shiba 4-chome, Minato-ku, Tokyo, Japan
	 

	 	 	 	Attention: General Manager,
	 

	 	 	 	               Performance Products Planning Department
	 

	 	 	 	Telephone No.: +81-3-6414-3937
	 

	 	 	 	Facsimile No.: +81-3-6414-3289
	 
	 	 	 	 
	 

	 	Calgon:
	 	Calgon Carbon Corporation
	 

	 	 	 	400 Calgon Carbon Drive, Pittsburgh, PA, USA
	 

	 	 	 	Attention: General Counsel
	 

	 	 	 	Telephone No.: 412-787-6786
	 

	 	 	 	Facsimile No.: 412-787-4511
	 
	 	 	 	 
	 	 	with a copy (not constituting notice) to:
	 
	 	 	 	 
	 

	 	 	 	K&L Gates LLP
	 

	 	 	 	Henry W. Oliver Building
	 

	 	 	 	535 Smithfield Street, Pittsburgh, PA, USA
	 

	 	 	 	Attention: David Grubman
	 

	 	 	 	Telephone No.: 412-355-6527
	 

	 	 	 	Facsimile No.: 412-355-6501






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	 	 	 	Anderson Mori & Tomotsune
	 

	 	 	 	Izumi Garden Tower
	 

	 	 	 	6-1, Roppongi 1-chome, Minato-ku, Tokyo, Japan
	 

	 	 	 	Attention: James Minamoto
	 

	 	 	 	Telephone No.: +81-3-6888-1056
	 

	 	 	 	Facsimile No.: +81-3-6888-3056
	 
	 	 	 	 
	 

	 	CMCC:
	 	Calgon Mitsubishi Chemical Corporation
	 

	 	 	 	1-5, Kyobashi 1-chome, Chuo-ku, Tokyo, Japan
	 

	 	 	 	Attention: Director of Administration Department
	 

	 	 	 	Telephone No.: +81-3-5205-0666
	 

	 	 	 	Facsimile No.: +81-3-5205-0660






12.6 Arbitration





	 	 	Each Party shall use its reasonable commercial efforts to solve, through mutual
consultation, without recourse to arbitration, any disputes or differences which might arise
in connection with this Agreement. However, all disputes, controversies or differences which
may arise between the parties hereto, out of or in relation to or in connection with this
Agreement shall be finally settled by arbitration in New York City, New York, U.S.A. in
accordance with the Rules of Arbitration of the International Chamber of Commerce, which
rules are deemed to be incorporated by reference in this clause. The language of the
arbitration shall be English. The arbitral award shall be final, binding and conclusive on
the Parties, with no further rights of appeal. Judgment upon the award rendered may be
entered in any court having jurisdiction or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as the case may be.
Notwithstanding the foregoing, the Parties are permitted to seek injunctive relief from a
court having jurisdiction pursuant to the provisions of Sections 7.11, 7.12, 7.14, 7.15,
7.16, and 12.7, including without limitation, to enforce any interim award or award of
injunctive relief by any arbitrator.





12.7 Further Assurances





	 	 	The parties agree (1) to furnish upon request to each other such further information, (2) to
execute and deliver to each other such other documents, and (3) to do such other acts and
things, all as the other party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement. Without limiting
the generality of the foregoing sentence, MCC agrees that to the extent it is determined
after the Closing Date that any Contracts that were used by CMCC in its business prior to
the Closing Date are in the name of MCC or any of its affiliates, upon request, MCC shall
take or cause such affiliate to take, as applicable, any and all actions necessary including
the payment of money to assign such Contracts to CMCC.




61









 










12.8
Waiver





	 	 	The rights and remedies of the parties to this Agreement are cumulative and not alternative.
Neither the failure nor any delay by any party in exercising any right, power, or privilege
under this Agreement or the documents referred to in this Agreement will operate as a waiver
of such right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (1) no claim or right arising out of this Agreement or the
documents referred to in this Agreement can be discharged by one (1) party, in whole or in
part, by a waiver or renunciation of the claim or right unless in writing signed by the
other party; (2) no waiver that may be given by a party will be applicable except in the
specific instance for which it is given; and (3) no notice to or demand on one (1) party
will be deemed to be a waiver of any obligation of such party or of the right of the party
giving such notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.





12.9 Entire Agreement and Modification





	 	 	This Agreement supersedes all prior agreements between the parties with respect to its
subject matter and constitutes (along with the documents referred to in this Agreement) a
complete and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a written
agreement executed by the party to be charged with the amendment.





12.10 Disclosure Letter





	 	(1)	 	The disclosures in the Disclosure Letter, and those in any supplement thereto,
must relate only to the representations and warranties in the Section of the Agreement
to which they expressly relate and not to any other representation or warranty in this
Agreement.
	 
	 	(2)	 	In the event of any inconsistency between the statements in the body of this
Agreement and those in the Disclosure Letter (other than an exception expressly set
forth as such in the Disclosure Letter with respect to a specifically identified
representation or warranty), the statements in the body of this Agreement will control.





12.11 Assignments, Successors, and No Third-Party Rights





	 	 	Neither party may assign any of its rights under this Agreement without the prior consent of
the other parties, except that Calgon may assign any of its rights under this Agreement to
any direct or indirect wholly owned subsidiary. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this Agreement any
legal or equitable right, remedy, or claim under or with respect to this Agreement or any
provision of this Agreement. Except for the provisions in Section 11 relating to




62









 






	 	 	Calgon Indemnified Persons and MCC Indemnified Persons, this Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties to this
Agreement and their successors and assigns.





12.12 Severability





	 	 	If any provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in full force and
effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.





12.13 Section Headings, Construction





	 	 	The headings of Sections in this Agreement are provided for convenience only and will not
affect its construction or interpretation. All references to “Section” or “Sections” refer
to the corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances require.
Unless otherwise expressly provided, the word “including” does not limit the preceding words
or terms.





12.14 Governing Law





	 	 	This Agreement will be governed by the laws of Japan without regard to conflict of laws
principles.





12.15 Counterparts





	 	 	This Agreement may be executed in one (1) or more counterparts, each of which will be deemed
to be an original copy of this Agreement and all of which, when taken together, will be
deemed to constitute one (1) and the same agreement.





[SIGNATURE PAGE FOLLOWS]




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



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	IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
first written above.





	 	 	 	 	 
	

CALGON MITSUBISHI CHEMICAL CORPORATION

 	 
	By:  	/s/ Hidenori Inami
 	 
	 	Name:  	Hidenori Inami 	 
	 	Title:  	President 	 
	 



	 	 	 	 	 
	MITSUBISHI CHEMICAL CORPORATION

 	 
	By:  	/s/ Shigeru Tsuyuki
 	 
	 	Name:  	Shigeru Tsuyuki 	 
	 	Title:  	Member of the Board

Managing Exective Officer
Chief Operation Officer of Performance Products Division 	 
	 



	 	 	 	 	 
	CALGON CARBON CORPORATION

 	 
	By:  	/s/ Leroy M. Ball
 	 
	 	Name:  	Leroy M. Ball 	 
	 	Title:  	Vice President

Chief Financial Officer 	 
	 




64