Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A First Amendment to Registration Statement 59 239K
3: EX-2 Merger Certificate International Into Sub 2 9K
2: EX-2 Merger of Spongetech Delivery Into Spongetech Sub 2 9K
6: EX-3 Certificate of Amendment Rsi to International 1 7K
8: EX-3 Certificate of Amendment Sub to Delvery 1 7K
4: EX-3 Certificate of Incorporation 2± 9K
5: EX-3 Certificate of Incorporation of Merger Sub 4 20K
7: EX-3.(I) Certificate of Amendment of Romantic 1 7K
9: EX-5 Revised Opinion of Counsel 2± 10K
11: EX-10 License Agreement 9 22K
10: EX-10 Manufacturers Representative Agreement 12 31K
14: EX-10 Put Agreement 20 90K
12: EX-10 Supply Agreement 12 48K
13: EX-23 Accountants' Consent 1 6K
EX-10 — Supply Agreement
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SUPPLY AND REQUIREMENTS AGREEMENT
H. H. BROWN SHOE TECHNOLOGIES, INC.
d/b/a/ DICON TECHNOLOGIES
and
RSI ENTERPRISES, INC.
Prepared by:
Daniel H. Bobis, Esq.
Lerner, David, Littenberg,
Krumholz & Mentlik, LLP
Westfield, New Jersey 07090
Alan H. Kaplan, Esq.
Counsel
RSI Enterprises, Inc.
July 1, 2001
SUPPLY AND
REQUIREMENTS AGREEMENT
Agreement made as of the 1st day of July 2001 between:
H.H. BROWN SHOE TECHNOLOGIES, INC.
d/b/a DICON TECHNOLOGIES
a Delaware Corporation
having a place of business at
3-00 Banta Place
Fair Lawn, NJ 07410
hereinafter DICON, and
RSI ENTERPRISES, INC.
A Delaware Corporation
Having a place of business at
183 Madison Ave, Suite 803
New York, NY 10016
hereinafter RSI.
STATEMENT
DICON is a developer and manufacturer of HYDROPHILIC FOAM MATERIALS
manufactured in sized sheets, rolls of defined thickness and shaped foam
products which have uses in many applications, and are sold internationally with
the trademark "DRYZ" affixed thereto, as shown in EXHIBIT A, attached.
DICON is the owner of substantial technology, issued and pending U.S. and
Foreign Patents, technological know-how and proprietary information all relating
to said hydrophilic foam materials and their applications.
DICON has developed a molded hydrophilic foam product with superabsorbent
polymer and detergents, soaps and waxes which is adapted for use as an absorbing
and cleaning sponge product, hereinafter referred to as the DICON PRODUCTS and
more fully defined, below, and on which an application for U.S. Letters Patent
will or has been filed.
RSI is engaged in the promotion, merchandising, marketing, offering for
sale and sale of cleaning products and it markets and sells such cleaning
products, directly and through dealers and distributors, to the purchasing
public.
RSI desires to acquire an exclusive right to use the DICON PRODUCTS as
defined herein on and in connection with the advertising, promotion and
marketing of their cleaning products, and DICON is willing to grant such
exclusive right to RSI in this specific field of use defined below, all on the
terms and conditions as hereinafter set forth.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable considerations, the receipt of which is acknowledged between the
parties, it is mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS
1.1 "DRYZ" is a trademark of DICON on which applications for U.S. Trademark
Registrations have been filed with the U.S. Patent and Trademark Office, as
-2-
identified on EXHIBIT A attached and referred as the "DICON TRADEMARK".
1.2 DICON PRODUCTS as used herein means a hydrophilic foam material which
includes, at least one superabsorbent polymer and combinations of
detergents and/or soaps or waxes as shown and disclosed in pending
provisional application bearing Application No. --------- filed
--------------- which is incorporated by reference and made part hereof, a
copy of which and a copy of the corresponding Utility Application thereon
when filed, will be furnished under conditions of confidentiality to RSI.
1.3 "RSI SPONGE PRODUCTS" as used herein shall mean molded sponge products made
of the DICON PRODUCTS used for cleaning and polishing land, sea and air
transportation vehicles.
1.4 "CONFIDENTIAL INFORMATION" as used herein shall mean certain trade secrets
and proprietary and confidential technical and business information
including all information, data and materials concerning current, future or
proposed equipment, materials, apparatus, processes, formulations,
techniques, drawings, specifications, production quantities, costs,
suppliers, customers, know-how and the like which is disclosed by one party
of the other and all analyses, compilations, studies, prototypes or other
documents or materials prepared by the receiving party which may
incorporate CONFIDENTIAL INFORMATION.
-3-
1.5 "ANNUAL PERIOD" as used herein shall mean twelve (12) months, and the first
ANNUAL PERIOD of this Agreement shall commence on July 1, 2001 and extend
to June 30, 2002, and successive ANNUAL PERIODS shall run from anniversary
to anniversary of said first ANNUAL PERIOD.
1.6 "FORCE MAJEURE" as used herein shall mean delays resulting from causes
beyond the reasonable control of DICON and/or RSI including, but not
limited to, fire, riots, strikes, the exercise of civil or military
authority, insurrection, embargoes, shortages in transportation equipment,
wrecks and delays of subcontractors or suppliers which result from the same
or similar conditions.
ARTICLE II
THE GRANT
2.1 As long as this Agreement is in force, DICON grants to RSI an exclusive
worldwide right in the field of land, sea and air transportation vehicles
to use the DICON PRODUCTS, as defined herein, on and in connection with the
advertising, promotion, manufacture, distribution, offering for sale and
sale of RSI SPONGE PRODUCTS.
2.2 RSI agrees to use commercially reasonable diligence in commencing the use,
distribution and/or offering for sale and sale of the RSI SPONGE PRODUCTS
as herein defined using the DICON PRODUCTS as above granted for this
exclusive field of use.
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2.3
(a) The parties acknowledge that each possess certain CONFIDENTIAL INFORMATION
which involves valuable property rights, and such CONFIDENTIAL INFORMATION
may be disclosed by each party to the other incident to this Agreement.
(b) Each party agrees to keep in strictest confidence and not:
(i) use for its own purposes or other than for the sole benefit of the
disclosing party; or
(ii) disclose or make available to any third party the disclosing party's
CONFIDENTIAL INFORMATION.
(c) CONFIDENTIAL INFORMATION may be disclosed only to those employees of the
receiving party who:
(i) reasonably require access to such information for the purposes
contemplated hereby;
(ii) have been informed of the confidential nature of the CONFIDENTIAL
INFORMATION; and
(iii) have been directed to act in accordance with the terms and conditions
of this Agreement.
(d) Notwithstanding the foregoing, nothing herein shall limit the disclosure of
such CONFIDENTIAL INFORMATION which:
(i) is legally in the possession of the receiving party or its employees
prior to receipt thereof from the disclosing party and the receiving
party can demonstrate this; or
(ii) was or enters into the public domain in substantially the same form
through no fault of the receiving party or its employees; or
(iii) is disclosed to the receiving party without restrictions or breach of
any duty of confidentiality by the third party who has the right to
make such disclosure; or
(iv) is independently developed by or for the receiving party without
reference to the disclosing party's CONFIDENTIAL INFORMATION and the
receiving party can demonstrate this; or
(v) after the end of the fifth (5th) ANNUAL PERIOD following termination
of this Agreement for any reason.
(e) If the receiving party is required by law or legal to disclose any
CONFIDENTIAL INFORMATION, the receiving party shall provide prompt notice
of such to the disclosing party so that legal protection for the
CONFIDENTIAL INFORMATION may be sought. In the event such protection is not
obtained, the receiving party's compliance with the non-disclosure
provisions of this Agreement, to the extent required to comply with such
law or legal process, shall be waived.
(f) All CONFIDENTIAL INFORMATION and any copies or derivatives thereof in
whatever form shall be returned to the disclosing party upon its request or
upon completion or termination of this Agreement.
(g) No rights or obligations other than those expressly stated herein shall be
implied from this Agreement. In particular, except as provided herein, no
license or other right is hereby granted, either expressed or implied, to
the receiving party:
(i) with respect to the CONFIDENTIAL INFORMATION of the disclosing party;
or
(ii) under any patent, patent application, copyright, trademark or other
proprietary right now or hereafter owned or controlled by the
disclosing party.
(h) Each party acknowledges that money damages would not be an adequate
remedy for breach of this Agreement and agrees that the disclosing
party shall be entitled to seek specific performance, in addition to
such other remedies as may be available at law or in equity, for any
such breach.
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ARTICLE II
CONSIDERATION
3.1 So long as this Agreement is in force between the parties, and subject to
the limitations set forth herein, RSI agrees to purchase all their
requirements for the DICON PRODUCTS for the fields of use described in
paragraph 2.1, and DICON agrees to supply such DICON PRODUCTS to RSI in the
quantities, at the prices and other conditions of sale applicable to such
purchases. 3.2
(a) For the exclusive right granted by DICON to RSI, and subject to the
limitations as set forth herein, RSI shall purchase from DICON during
each given ANNUAL PERIOD quantities of the RSI SPONGE PRODUCTS in
accordance with the following schedule:
ANNUAL PERIOD NUMBER OF RSI SPONGE PRODUCTS
------------- -----------------------------
1st ANNUAL PERIOD 250,000
2ND ANNUAL PERIOD 500,000
and each succeeding
3RD ANNUAL PERIOD 1,000,000
and if RSI shall purchase such quantities of RSI SPONGE PRODUCTS from DICON
for the above listed ANNUAL PERIODS that this Agreement is in force, then
RSI shall have the option to extend this Agreement, for an additional two
(2) successive years on the same terms and conditions by a notice in
writing sent to DICON at least ninety (90) days prior to the end of the
third ANNUAL PERIOD that this Agreement is in force.
(b) During the first ANNUAL PERIOD, the pricing for DICON PRODUCTS shall
be as follows:
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AGGREGATE RSI PURCHASE PRICE PER RSI SPONGE PRODUCT
---------------------- ----------------------------
50,000 to 100,000 $.817 SPONGE ONLY*
100,000 to 250,000 $.795 SPONGE ONLY*
Over 250,000 $ .778 SPONGE ONLY*
and this pricing shall remain firm for the first ANNUAL PERIOD.
* (SPONGE ONLY SHALL INCLUDE ALL RAW MATERIALS AND LABOR TO MOLD).
(C) Beginning with the second ANNUAL PERIOD that this Agreement is in
force, if the quantities of the purchases of RSI SPONGE PRODUCTS to be
entered by RSI on DICON as above set forth to maintain the exclusive
right granted herein for the second and each succeeding ANNUAL PERIOD
thereafter shall fall below the quantity requirements either as set
forth in clause 3.2(b) or as may be mutually modified by the parties,
if RSI shall fail to cure such breach within thirty (30) days after
the end of such ANNUAL PERIOD, then RSI shall pay to DICON, as
liquidated damages and not as a penalty and as DICON'S sole remedy for
such breach, a dollar amount equivalent to $0.20 (20 cents) per RSI
SPONGE PRODUCT on the remaining quantity of the RSI SPONGE PRODUCTS
minimum due as herein provided for the given ANNUAL PERIOD in which
any such breach may occur, and if RSI shall pay such liquidated
damages, RSI shall retain the exclusive rights granted under Section
2.1 for the next succeeding ANNUAL PERIOD. If RSI does not make such
payment within thirty (30) days of the end of such ANNUAL PERIOD
during which such breach shall have occurred, then DICON may, at its
option, terminate or render this Agreement non-exclusive for the
succeeding ANNUAL PERIODS. Further, RSI agrees that DICON shall incur
no liability to RSI or any third party in privity with them by reason
of the exercise of such option.
3.3
(a) Except as otherwise provided herein, the terms and conditions for the sale
of RSI SPONGE PRODUCTS on purchase orders entered by RSI on DICON, such as
warranties, pricing, etc., shall be the current terms and conditions
applicable to such purchase orders entered by RSI on DICON as shown in
EXHIBITS B and C attached. To the extent that any term or conditions
contained in RSI's validly issued purchase order, which is accepted by
DICON, shall conflict with a term or condition contained in this Agreement,
then the term or condition contained in this Agreement shall control.
(b) DICON agrees to manufacture and sell such RSI SPONGE PRODUCTS according to
the warranty set forth at EXHIBIT B attached, and the DICON PRODUCTS shall
have the same standards and quality described in specifications furnished
by DICON to RSI attached hereto as EXHIBIT C, and as also identified in
samples presently furnished by DICON to RSI and such additional samples as
may be provided by DICON and RSI during the life of this Agreement.
(c) Beginning with the second ANNUAL PERIOD, the pricing for the RSI SPONGE
PRODUCTS to be sold by DICON to RSI is shown in EXHIBIT D attached provided
further, however, that commencing with the second ANNUAL PERIOD and each
successive ANNUAL PERIOD thereafter, so long as this Agreement remains in
force, DICON shall have the right to adjust the pricing for such RSI SPONGE
PRODUCTS by a sixty (60) day notice in writing sent prior to the
commencement of each respective second or any successive ANNUAL PERIOD
thereafter provided further that any price increases in accordance with
this paragraph shall be based on bona fide increases for material and labor
to DICON plus the appropriate markup for overhead caused thereby, but such
increase not to exceed ten percent (10%) per ANNUAL PERIOD unless otherwise
agreed on by the parties in writing.
3.4 DICON and RSI shall not be liable to each other for any delays caused by
conditions of FORCE MAJEURE, and unless a given purchase order is cancelled
by RSI, if deliveries shall be delayed due to such conditions of FORCE
MAJEURE, the delivery schedule shall be adjusted in accordance with the
period of time that the delay ensued due to such FORCE MAJEURE, and on the
occurrence of such event or condition and the subsequent termination
thereof, this shall be confirmed between the parties in writing to
establish the period of delay applicable to each such given purchase order.
If delivery delays caused by FORCE MAJEURE extend beyond ninety (90) days
of expected delivery, RSI may, at its sole discretion, terminate this
Agreement upon thirty (30) days written notice to DICON. In such case,
neither party shall have further obligation to the other pursuant to this
Agreement, except that RSI shall be obligated to make payment to DICON for
DICON PRODUCTS received by RSI prior to the effective date of such
termination.
ARTICLE IV
DURATION, TERMINATION AND CANCELLATION
4.1 This Agreement shall be non-cancellable until the end of the first ANNUAL
PERIOD; thereafter, unless sooner cancelled, terminated or extended by
mutual agreement of the parties in writing and subject to the RSI option to
extend the exclusive right as herein provided, this Agreement shall
terminate at the end of the third ANNUAL PERIOD.
4.2
(a) After the first ANNUAL PERIOD, either party may terminate this Agreement
for breach or default by the other party of any of the terms or conditions
of this Agreement by a thirty (30) day notice in writing of the intention
to terminate; however, the breaching party may cure any breach or default
within such thirty (30) day period, or such extensions thereof on which the
parties mutually agree in writing, in which event such notice shall be null
and void as if the same had not been sent.
(b) Further, it shall be a breach of this Agreement if RSI elects to purchase
from third parties molded hydrophilic foam system products, as generally
defined herein as RSI SPONGE PRODUCTS, without the consent of RSI in which
event the non-breaching party shall have the right to terminate this
Agreement or in the case of such a breach by RSI, DICON may render the same
non-exclusive by a thirty (30) day notice in writing; however, the
breaching party may cure this breach within such thirty (30) day period, or
such extensions thereof on which the parties mutually agree in writing, in
which event such notice shall be null and void as if the same had not been
sent.
4.3 RSI shall have the right to terminate this Agreement as follows:
(a) for any breach or default by DICON of any of the terms or conditions of
this Agreement by a thirty (30) day notice in writing of the intention to
terminate sent by RSI to DICON. A breach shall include DICON'S failure to
ship in a timely manner, a breach of the DICON warranty as set forth
herein, failure of the DICON PRODUCTS to meet the specifications as
provided at EXHIBIT C, or any increase in the price of the products other
than as provided a Paragraph 3.3 (herein). However, DICON may cure such
breach or default by remedying the same within the said thirty (30) day
period, or such extensions thereof, on which the parties mutually agree in
writing, in which event such notice shall be null and void as if the same
had not been sent;
(b) at will and without cause upon the end of the second or any successive
ANNUAL PERIOD that this Agreement is in force by a notice in writing of the
intention to terminate, such notice to be given no less than sixty (60)
days prior to the end of such ANNUAL PERIOD.
4.4 In the event of termination or cancellation by DICON or RSI and assuming
DICON is not in a state of breach of this Agreement, RSI shall be obligated
to pay and agrees to pay DICON on all purchase orders entered prior to the
effective date of such termination or cancellation, even though the
products on any such purchase orders are duly shipped and invoiced by DICON
after the effective date of such termination or cancellation.
ARTICLE V
ALTERNATE SOURCE OF SUPPLY FOR DICON PRODUCTS
5.1
(a) In the unfortunate event that DICON shall, at any time, for any reason
including FORCE MAJEURE which lasts more than ninety (90) days, have
difficulty in manufacturing or supplying to RSI the RSI SPONGE PRODUCTS as
herein provided, such that DICON is unable to produce and deliver
sufficient RSI SPONGE PRODUCTS for RSI's marketing, sales and distribution
needs, in accordance with the shipping schedules in RSI's purchase orders.
The parties shall mutually select and qualify at least one (1) third party
having the ability to manufacture the quantity and quality of the RSI
SPONGE PRODUCTS in accordance with the DICON quality standards and deliver
the same timely in accordance with the terms of the RSI purchase orders and
the terms and conditions of this Agreement.
(b) On the happening of any events as set forth at Paragraph 5.1 (a) either
party may, by a five (5) day notice in writing to the other party, request
that the parties meet to select and agree on a third party to be qualified
by DICON for the purpose set forth in Paragraph 5.1(a).
5.2 Such third party when qualified shall be considered as the agent and
distributor for DICON for this purpose and shall be subject to the control
and direction of DICON, and this arrangement shall continue until such time
as DICON shall again assume responsibility for the manufacture, supply and
sale of the RSI SPONGE PRODUCTS in accordance with the terms and conditions
of this Agreement. 5.3 RSI agrees that the qualification and performance by
any party qualified by DICON to manufacture and supply the DICON PRODUCTS
as set forth above shall not constitute a breach of the terms and
conditions of this Agreement, and DICON shall incur no liability under any
of the terms and conditions of either this Agreement arising out of either
the qualification or the performance by any party qualified as above
provided.
5.4 Other than the consideration as provided under the terms and conditions of
this Agreement, RSI shall not be required to pay any additional
consideration on orders for said RSI SPONGE PRODUCTS entered by RSI on any
such party qualified to manufacture and supply such RSI SPONGE PRODUCTS
solely to RSI.
ARTICLE VI
PRODUCT LIABILITY AND OTHER PRODUCTS
6.1
(a) DICON shall indemnify and hold harmless RSI, and RSI's officers and
directors and each of them, from and against any and all loss, damage and
expense of any nature (including reasonable attorney's fees) arising out of
or relating directly or indirectly to and including any claim, action, suit
or proceeding alleging, infringement or violation of any patent of any
third party. RSI agrees to promptly notify DICON in writing of any claim of
such infringement and will render to DICON at DICON'S expense whatever
information and assistance DICON may reasonably require in connection with
such claim.
(b) In the event of any infringement claim, and if required by RSI, DICON shall
do, at its option, one of the following: (i) modify the RSI SPONGE PRODUCTS
so as to avoid infringement, provided it remains of substantially
equivalent quality and purpose;
(ii) replace the same with a non-infringing product of substantially
equivalent quality and purpose; (iii) procure for RSI the right to
continue selling the RSI SPONGE PRODUCTS; or (iv) accept the return of
the non consumed RSI SPONGE PRODUCTS and refund the total price paid
for such returned products.
6.2 DICON agrees to save harmless and to indemnify RSI against any and all
expenses, costs and reasonable attorney's fees on account of any injury,
damage of any kind sustained by, or any damages awarded or assessed, or any
other liability incurred by or imposed upon RSI which arise out of or in
connection with or results from the manufacture of any RSI SPONGE PRODUCTS
having or including the DICON PRODUCTS marketed, sold or distributed by
RSI, in the event that any claim is made or any suit is instituted against
RSI by reason of any defective manufacture of such RSI SPONGE PRODUCTS
including such DICON PRODUCTS supplied by DICON to RSI, then DICON agrees
to come in and defend RSI, at DICON'S own expense and to reimburse RSI for
all expenses, costs, reasonable attorney's fees and awards and RSI agrees
to give prompt notice of any such claim or suit and to forward all
documents thereon to DICON and to provide all reasonable cooperation in the
defense of any claim for which indemnification is required, provided the
reasonable expenses for travel and related disbursements thereof is also
assumed and paid for by DICON.
6.3 DICON may discharge its obligations under Paragraph 6.2 of this ARTICLE VI
with respect to any personal injury or property damage arising out of the
manufacturing of the RSI SPONGE PRODUCTS by PRODUCT LIABILITY INSURANCE in
at least the amount of Two Million Dollars ($2,000,000) for bodily injury
and Five Hundred Thousand Dollars ($500,000) property damage each
occurrence, and DICON agrees to maintain the coverage described above
during the term of this Agreement on claims arising from the manufacture of
said RSI SPONGE PRODUCTS having or including DICON PRODUCTS and provided
further that RSI shall be endorsed and protected under the same terms and
conditions of such PRODUCT LIABILITY INSURANCE. On written request, DICON
shall give written notice to RSI regarding endorsement of RSI on such
PRODUCT LIABILITY INSURANCE.
6.4 RSI agrees to save harmless and to indemnify DICON against any and all
expenses, costs and reasonable attorney's fees on account of any injury,
damage of any kind sustained by, or any damages awarded or assessed, or any
other liability incurred by or imposed upon DICON which arise out of or in
connection with or results from the marketing use, distribution,
advertising or promotional activities or sale or other disposition of any
RSI SPONGE PRODUCTS having or including the DICON PRODUCTS marketed, sold
or distributed by RSI, and in the event that any claim is made or any suit
is instituted against DICON by reason of such marketing, use distribution,
advertising or promotional activities or the sale or other distribution of
any of such RSI SPONGE PRODUCTS including DICON PRODUCTS, supplied by DICON
to RSI then RSI agrees to come in and defend DICON at RSI'S own expense and
to reimburse DICON for all expenses, costs, reasonable attorney's fees and
awards and DICON agrees to give prompt notice of any such claim or suit and
to forward all documents thereon to RSI and to provide all reasonable
cooperation in the defense of any claim for which indemnification is
required, provided by reasonable expenses for travel and related
disbursements thereof is also assumed and paid for by RSI.
6.5 RSI may discharge its obligations under Paragraph 6.4 of this ARTICLE VI
with respect to any personal injury or property damage arising out of the
marketing, use, sale, or other distribution, advertising or promotional
activities of said RSI SPONGE PRODUCTS having or including DICON PRODUCTS
by PRODUCT LIABILITY INSURANCE in at least the amount of Two Million
Dollars ($2,000,000) for bodily injury and Five Hundred Thousand Dollars
($500,000) property damage each occurrence, and RSI agrees to maintain the
coverage described above during the term of this Agreement on claims
arising from the marketing, use, sale or other distribution, advertising or
promotional activities of said RSI SPONGE PRODUCTS having or including
DICON PRODUCTS and provided further that DICON shall be endorsed and
protected under the same terms and conditions of such PRODUCT LIABILITY
INSURANCE. On written request, RSI shall given written notice to DICON
regarding endorsement of DICON on such PRODUCT LIABILITY INSURANCE.
ARTICLE VII
ARBITRATION
7.1 In the event that disputes arise under the terms of the Agreement on which
there is a continuing disagreement for more than thirty (30) days, either
party may elect by a thirty (30) day notice in writing to submit the matter
to Arbitration. If the dispute is not settled within the said thirty (30)
day period of such Notice, the following shall apply to such Arbitration:
(a) The Arbitration shall be conducted in Metropolitan New Jersey.
(b) The Arbitration shall be conducted in accordance with the Rules of the
American Arbitration Association applicable to the dispute.
(c) The costs of the Arbitration shall be distributed equally, and each
party shall otherwise bear their own additional or other expenses and
attorney's fees.
(d) The Arbitration Tribunal hearing such Arbitration shall not have
authority to award pecuniary or punitive damages and shall have
authority to limit and control the amount of discovery permissible in
said arbitration preferably limiting such discovery-up to thirty (30)
days.
7.2 The Decision of the Arbitration Tribunal shall be binding on the parties,
and such Decision shall be enforceable in any Court having jurisdiction of
the party against whom any such Decision or Award is granted.
ARTICLE VIII
OWNERSHIP AND USE OF TRADEMARKS
8.1 DICON'S trademark "DRYZ" is shown at EXHIBIT A, and applications for U.S.
Trademark Registrations thereon have or are being filed.
8.2 (a) As and for a consideration for the terms and conditions of the present
Agreement, RSI shall use the "DRYZ" trademark as shown herein on both the RSI
SPONGE PRODUCTS which include the DICON PRODUCTS, as supplied by DICON, and on
and in connection with the advertising in accordance with guidelines as
hereinafter set forth and any other instructions in writing from DICON to RSI.
(b) RSI agrees not to make any changes to such guidelines without the
written consent of DICON. 8.3 The guidelines for the use of the
trademark "DRYZ" are as follows:
(a) The "DRYZ" logo shall always be used by RSI in the manner shown in
EXHIBIT A attached. RSI during such use shall not modify or change the
logo in any manner and shall maintain the proportions as shown in
EXHIBIT A in both size, arrangement and color provided further when
the "DRYZ" trademark is used in printing or media of any other type
RSI agrees to furnish a copy thereof to DICON for review and within
three (3) days of the receipt of such copy, if DICON shall fail to
object thereto, then such use shall deemed to comply with the object
and purpose of this paragraph.
(b) The "DRYZ" trademark shall only be used on and in connection with
those RSI SPONGE PRODUCTS, which include DICON PRODUCTS as, supplied
by DICON, and such RSI SPONGE PRODUCTS shall, as a minimum, bear the
mark "DRYZ" on the packaging in the manner approved and agreed to by
the parties.
(C) RSI shall maintain the integrity of the "DRYZ" trademark at all times
and shall not use the trademark in juxtaposition with any other
trademarks during its advertising, marketing, promotion, offering for
sale and sale of the RSI SPONGE PRODUCTS in the fields of use as
described in Paragraph 2.1.
(d) RSI acknowledges that the use of the "DRYX" trademark on and in
connection with the marketing, promotion, advertising, offering for
sale and sale of the RSI SPONGE PRODUCTS shall inure to the benefit of
DICON, and RSI agrees on written request from DICON to supply
information and proof to DICON showing how it utilizes the "DRYZ"
trademark on and in connection with any actions taken by DICON for the
preservation, renewal and continuation of such trademark rights and,
if necessary, testimony in any suit or administration proceedings,
provided the reasonable expenses therefore are paid by DICON.
(e) RSI shall indicated during the use of the "DRYZ" trademark as provided
herein, by a legend or other suitable indicia, that "DRYZ" is a
registered trademark of DICON.
(f) DICON shall have the right to reasonably modify the above guidelines
by a sixty (60) day notice in writing to RSI. (g) Except as provided
herein, RSI agrees for the United States, and all foreign countries of
the world, not to adopt,
use, apply to register, obtain or acquire any trademark or registration for a
trademark, service mark or to use any business name which is identical to or
similar or substantially similar to the DICON trademark "DRYX" or the business
name DICON, nor to aid and abet any third parties to adopt any such trademark or
business name or to obtain any registration thereon in the United States and all
foreign countries of the world, and this limitation and restriction shall
survive termination of this Agreement for any reason. 8.4 DICON and DICON'S
affiliates and agents shall not use the English or any translation of any
trademarks, trade names, brand names, front marks, labels or package designs of
RSI, or any names, marks, labels or package designs similar thereto, except in
accordance with this Agreement. DICON acknowledges that no right, title or
interest in or to any trademark, trade name, brand name, front mark, and label
or package design of RSI is conferred by virtue of this Agreement. DICON may not
sue, adopt, register or attempt to register as a trademark any word, symbol or
emblem which is identical or similar to any of the trademarks, trade names,
brand names, front marks, labels, package designs, business names or corporate
names or part thereof of RSI, whether during the continuance of this Agreement
or after its termination, howsoever arising. DICON agrees to cooperate freely
with the registration of any new trademark or trade names by RSI. This provision
shall survive the expiration of termination of this Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.1 (a) RSI, on behalf of itself, its officers, directors and employees,
acknowledges and agrees that they do not have and that they will not hold
themselves or either of them out as having any right, power or authority to
create any contract or obligation, expressed or implied, on behalf of or in
the name of or binding upon DICON and that no other relationship than that
of VENDOR-VENDEE is established by reason of the making of this Agreement.
(b) DICON, on behalf of itself, its officers, directors and employees,
acknowledges and agrees that they do not have and that they will not
hold themselves or either of them out as having any right, power or
authority to create any contract or obligation, expressed or implied
on behalf of or in the name of or binding upon RSI and that no other
relationship than that of VENDOR-VENDEE is established by reason of
the making of this Agreement.
9.2 All notices to be sent under the terms of this Agreement by either of the
parties to the other shall be in writing and shall be sent first-class
registered mail or express mail to the address stated herein or to any
later address either party shall specify in writing to the other party, and
such notice shall start with the official stamp date on such notice.
9.3 This Agreement shall be assignable or transferable to a financially
responsible successor to the RSI business relating to this portion of its
product line provided that such successor shall execute a suitable notation
in writing agreeing to be bound by the terms and conditions of this
Agreement.
9.4 This Agreement shall be binding on and inure to the benefit of DICON, its
assigns, successors and legal representatives and to RSI, its permitted
assigns, successors and legal representatives. 9.5 This Agreement
constitutes the entire Agreement and understating between the parties and
supersedes all prior agreements and understandings with respect to the
right granted hereunder. No modifications, changes or waivers of any of the
terms and conditions subsequent to the execution of this Agreement shall be
valid unless in writing and signed by an authorized representative of the
party against whom such modification, change or waiver is sought to be
enforced.
9.6 If any part or section of this Agreement be held unenforceable or in
conflict with the law of any jurisdiction, such parts or sections shall be
inoperative and shall not affect the validity or enforceability of the
remaining parts, terms and conditions of this Agreement.
9.7 This Agreement shall be governed by the laws of the State of New Jersey and
of the United States as to all matters of interpretation, performance,
remedies and enforceability insofar as such law is existent and can or will
be applied in the jurisdiction on any matter in dispute under the terms and
conditions of this Agreement.
SEPARATE LAST PAGE
ALL SIGNATURES AND DRYZ LOGO ON FILE
IN WITNESS WHEREOF, the parties have caused this agreement to be duly
executed by their authorized representative and the effective date of this
agreement to be the date first above set forth.
Signed at Fairlawn, New Jersey
On this 11st day of January, 2001
H.H. BROWN SHOE TECHNOLOGIES, INC.
d/b/a/ DICON TECHNOLOGIES
By /s/Wayne Celia
WAYNE CELIA, VICE PRESIDENT
Signed at Fairlawn, New Jersey
On this 11st day of January, 2001
RSI ENTERPRISES, INC.
By /s/Michael Metter
MICHAEL L. METTER, PRESIDENT
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘SB-2/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/13/03 | | | | | | | None on these Dates |
| | 6/30/02 | | 5 |
| | 7/1/01 | | 1 | | 5 |
| List all Filings |
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