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 Pre-Effective Amendment to Registration of 92 446K
Securities by a Small-Business Issuer
2: EX-1.1 Underwriting Agreement 37 177K
3: EX-1.2 Underwriting Agreement 33 85K
4: EX-4.1 Instrument Defining the Rights of Security Holders 2 21K
5: EX-4.2 Instrument Defining the Rights of Security Holders 34 89K
6: EX-4.3 Instrument Defining the Rights of Security Holders 5± 24K
7: EX-5 Opinion re: Legality 2 12K
8: EX-10.1 Material Contract 4 22K
15: EX-10.10 Material Contract 16 60K
16: EX-10.11 Material Contract 12 40K
17: EX-10.12 Material Contract 7 34K
18: EX-10.15 Material Contract 9 43K
19: EX-10.17 Material Contract 3 17K
20: EX-10.18 Material Contract 6 31K
21: EX-10.19 Material Contract 11 56K
9: EX-10.2 Material Contract 6 36K
10: EX-10.4 Material Contract 4 19K
11: EX-10.5 Material Contract 2 16K
12: EX-10.6 Material Contract 3 15K
13: EX-10.7 Material Contract 26 106K
14: EX-10.9 Material Contract 4± 19K
22: EX-23.1 Consent of Experts or Counsel 1 8K
23: EX-27 Financial Data Schedule (Pre-XBRL) 2 12K
24: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 13K
Exhibit 10.9
[DAMARK LOGO]
MARKETING AGREEMENT
PARTIES
Damark International, Inc. "DAMARK"
7101 Winnetka Avenue North
Minneapolis, MN 55428
Liquor By Wire "PARTNER"
2835 N. Sheffield Suite 409
Chicago, IL 60657
DAMARK and its affiliates (hereinafter collectively referred to as "DAMARK")
have established a variety of annual fee membership clubs and other marketing
programs (e.g. Order Thank You products, Early Gratification Offers,
Save/Renewal Products, Package Inserts) for its customers ("CLUB PROGRAMS").
CLUB PROGRAMS shall include programs operated by DAMARK on behalf of third
parties.
PARTNER and DAMARK would like to offer PARTNER benefits to CLUB PROGRAMS
customers, pursuant to the terms of this Agreement.
A. PARTNER Offer
The products, services, discounts and other offers to be made by PARTNER to CLUB
PROGRAMS customers ("Offer(s)") are described under "Offer Information" on this
Agreement and incorporated herein. Once agreed upon, the Offer may only be
changed upon written agreement of DAMARK and PARTNER.
B. Obligations of DAMARK
1. Creative Services. DAMARK will perform copywriting, typesetting, keylining,
camera and artwork and various other procedures and functions in order to
prepare the Offer(s) for use in any CLUB PROGRAMS.
2. Endorsement. DAMARK agrees to endorse and recommend PARTNER services to its
eligible CLUB PROGRAMS members.
3. Participation. PARTNER understands that DAMARK reserves the right to include
or not include the Offer(s) in any one or more of the CLUB PROGRAMS.
C. Obligations of PARTNER
1. Discounted Service and/or Promotion. PARTNER agrees to provide goods or
services and honor the agreed upon Offer(s), when included in any CLUB
PROGRAMS or marketing service programs of DAMARK, whether Offer(s) appear in
printed forms and/or in an on-line/interactive medium.
2. Payment. Eligible CLUB PROGRAMS members will pay for goods or services
through accepted payment methods as stated in the Offer or PARTNER's standard
payment terms. DAMARK is not responsible for the collection of the accounts
of any CLUB PROGRAMS customers.
3. Cost. PARTNER agrees to pay the advertising and participation cost as set out
in the Offer Information section of this Agreement.
4. Copy Approval. DAMARK shall provide PARTNER with a copy approval
authorization form prior to the first printing of the Offer. PARTNER must
review the copy and return the authorization form within ten (10) days. Any
changes thereafter to the content of the Offer will be provided to PARTNER
for copy approval authorization.
5. Compliance with Laws. PARTNER represents and warrants that the Offer and all
goods and services provided to CLUB PROGRAMS members will comply with all
relevant State and Federal laws and regulations and orders of courts or
agencies.
6. Reporting. PARTNER agrees to provide monthly redemption reports to include
total orders placed, and the dollar value of such orders. PARTNER agrees to
provide the information to DAMARK within ten (10) business days after the
close of the previous month.
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7101 Winnetka Avenue North, Minneapolis, MN 55428 Telephone: 612/531-0066
Telefax: 612/531-3095
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D. General Terms and Conditions
1. Effective Dates. This Agreement shall be effective as of the date shown in
the Offer Information section of this Agreement. Either party may terminate
this agreement upon written notice, sent certified mail, return receipt
requested. DAMARK may continue to print Offers in any CLUB PROGRAMS for 120
days after receipt of the cancellation notice. PARTNER shall continue to
honor any outstanding Offers to CLUB PROGRAMS members (including offers in
process but not yet sent at time of termination) pursuant to the terms of
such Offers. The provisions of Sections D. 3, 5 and 6 below shall survive the
termination of this Agreement.
2. Governing Law. This Agreement shall be governed by and administered in
accordance with the laws of the State of Minnesota.
3. Indemnity. PARTNER agrees to indemnify, defend and hold harmless DAMARK from
any and all liability, damages, costs, judgments, claims, causes of action,
demands, or expenses (including attorney's fees) arising out of the products
or services provided to CLUB PROGRAMS members, or any intentional or
negligent act, error or omission of PARTNER.
4. Tradenames and Trademarks. Both DAMARK and PARTNER agree that each shall use
the names, marks, and logos ("Marks") of the other only in connection with
the purposes of this Agreement and as specifically authorized by such party.
Such use shall not confer any proprietary rights in the Marks to the using
party. Upon expiration or termination of this Agreement, each party shall
cease all future use of the Marks of the other party.
5. Customer Lists. PARTNER recognizes that DAMARK'S list of CLUB PROGRAMS
customers is confidential and proprietary to DAMARK. If PARTNER obtains any
names or other information from DAMARK, PARTNER will make no use of any of
such names or other information received from DAMARK, except as specifically
limited to PARTNER's obligations to DAMARK or its CLUB PROGRAMS customers.
Under no circumstances shall PARTNER, or another entity with which PARTNER
has contracted, solicit CLUB PROGRAMS customers for any type of affinity
marketing program or membership club programs offered by PARTNER or such
other entity.
6. Confidential Information. It may be necessary for DAMARK to disclose
confidential and proprietary information pertaining to past, present and
future activities of DAMARK in order for PARTNER to fulfill its services.
PARTNER understands that all such information is proprietary to DAMARK and is
not to be disclosed to anyone within or outside of PARTNER's organization
except as is necessary for performance of PARTNER's obligations. Nor shall
such information or any copies thereof be used by PARTNER or PARTNER's
personnel in any way during or after the term hereof for the benefit of
anyone other than DAMARK or its CLUB PROGRAMS customers.
7. Relationship. DAMARK and PARTNER recognize PARTNER's functions are as an
independent contractor and that no partnership nor joint venture is created
by this Agreement. Neither party is granted authority to bind the other to
any obligation. The rights and obligations in this Agreement shall inure to
DAMARK and PARTNER and their respective successors and assigns.
Offer Information
1. PARTNER agrees to provide:
A. Members receive 10% off their purchase from Liquor By Wire.
B. Members receive 15% off their purchase from Liquor By Wire.
2. Terms and Conditions, and other Matters:
Offer may appear in all DAMARK CLUB PROGRAMS.
3. Effective date of PARTNER Agreement. This Agreement shall be effective
10/1/98.
4. Advertising and/or Participation Costs. The participation fee of $20 per
thousand printed has been waived.
DAMARK PARTNER
By (signed): /s/ Michael D. Moroz By (signed): /s/ Steve Olsher
--------------------------- --------------------------
Name (print): Michael D. Moroz Name (print): Steve Olsher
-------------------------- -------------------------
Title: Senior Vice President, Marketing Title: VP
--------------------------------- --------------------------------
Date: 10/12/98 Date: 10-5-98
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