Exhibit 10.2 Exclusive Agency, Distribution and Marketing Agreement
between RMF Global, Inc. and Mr. Ko-Xxxxx Xxx.
EXCLUSIVE LICENSE AND MANUFACTURING AGREEMENT
This Agreement is effective as of November 25, 2002, (referred to herein as the
"Agreement") by and between Ko-Xxxxx Xxx, a citizen of the country of Korea with
his principal place of business at 00-0 Xxxxx-Xxxx, Xxxxxxxx Xxxx, Xxxxx, and
RMF Global, Inc., a corporation organized under the laws of the State of
Pennsylvania with an address of 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000.
RECITALS:
WHEREAS, Ko-Xxxxx Xxx represents that he is the exclusive owner, inventor,
manufacturer and licensor of a patented and proprietary technology relating to a
low density foamed polyethylene product known variously as Buoytex and/or
Eliotex, hereinafter referred to as the Eliotex Technologies; and
WHEREAS, RMF Global desires to develop, use, sell and market various products
and uses of the Eliotex Technologies including but not limited to swimsuits,
pillows and sleeping bags; and
WHEREAS, RMF Global wishes to exclusively license the Eliotex Technologies of
Ko-Xxxxx Xxx, and Ko-Xxxxx Xxx desires to grant to RMF Global an exclusive
license to develop, use, sell, and market all applications of the Eliotex
Technologies;
WHEREAS, Ko-Xxxxx Xxx is engaged in the manufacture of Eliotex and desires to
exclusively manufacture and supply Eliotex to RMF Global for use in amounts
sufficient to meet the needs of RMF Global; and
WHEREAS, RMF Global desires to purchase Eliotex from Ko-Xxxxx Xxx from time to
time as needed by RMF Global as set forth herein.
WITNESSETH, in exchange for good and valuable consideration the receipt of which
is hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I - DEFINITIONS
1.01. Eliotex. "Eliotex" means low density foamed polyethylene product known
variously as Buoytex and/or Eliotex.
1.02. Eliotex Technologies. "Eliotex Technologies" means all of Ko-Xxxxx Xxx 's
interest in any proprietary information, patents, inventions, developments,
trade secrets, know-how whether present or future, relating to all applications
of the Eliotex Technologies for all commercial, industrial, governmental and
other uses without limitation.
1.03. Eliotex Products. "Eliotex Products" means any item containing or made
from Eliotex or made using the Eliotex Technologies including but not limited to
swimsuits, cushions, pillows, sleeping bags, caps, hats and clothing items.
1.04. Effective Date. This Agreement is effective when duly signed by the
parties hereto.
1.05. Territory. "Territory" means all countries in the world other than Korea
and Japan.
1.06. Non-Territory. "Non-Territory" means Korea and Japan.
1.07. Ko-Xxxxx Xxx. "Ko-Xxxxx Xxx" means Ko-Xxxxx Xxx, his affiliates or any
individuals, corporations or other institutions to which Ko-Xxxxx Xxx'x
ownership and/or rights to, of or in the Eliotex Technologies has been
transferred or assigned.
ARTICLE II - GRANT OF LICENSE, EXCLUSIVE RIGHT TO PURCHASE
AND EXCLUSIVE AGREEMENT TO MANUFACTURE
2.01. Ko-Xxxxx Xxx grants to RMF Global the exclusive, unlimited, irrevocable
right and license, with the right to grant sublicenses to third parties, to
purchase, use, develop, commercialize, market, have marketed, sell and have
sold, manufacture and have manufactured products related to or utilizing Eliotex
or the Eliotex Technologies whether present or future, in the Territory.
The License granted hereunder includes, but is not limited to the following
Patents:
Country Patent Number
United States 6,083,999
Republic of Korea 97-35969
2.02. Ko-Xxxxx Xxx further grants to RMF Global the exclusive rights to any
current or future inventions, improvements, discoveries, patent applications and
letters of patent which Ko-Xxxxx Xxx now controls and owns or hereafter may own
or control and which relate to the Eliotex Technologies and to all information
and documents which Ko-Xxxxx Xxx now owns or controls, or hereafter may own or
control and which relate to the Eliotex Technologies.
2.03. The use of Eliotex and the Eliotex Technologies in the Non-Territory shall
be limited to manufacture of the Eliotex products in Korea and Japan and not for
the purpose of reselling product in bulk or for use in the manufacture or retail
of any product outside Korea and Japan.
2.04. Ko-Xxxxx Xxx will pay all applicable patent expenses and filing fees in
all jurisdictions relating to the Eliotex Technologies whether present or in the
future.
2.05. Patent Rights. Ko-Xxxxx Xxx represents and warrants that the patents
relating to the Eliotex Technologies are valid and enforceable in the Territory,
that he is the sole and exclusive owner thereof in the Territory, that he has
the full right, power, and authority to enter into this Agreement and to grant
the rights, licenses and privileges hereby granted to RMF Global, and to perform
all of his obligations hereunder.
2.06. Ko-Xxxxx Xxx shall inform RMF Global of any and all improvements, changes
and information relating to the Eliotex Technologies as soon as practical after
that information is made available to Ko-Xxxxx Xxx. This includes the status of
all Eliotex related research and development efforts by Ko-Xxxxx Xxx or any of
his affiliates. All improvements, changes and information shall be promptly
incorporated as part of this Agreement.
2.07. Ko-Xxxxx Xxx shall furnish to RMF Global, or its nominees, all information
required by RMF Global to commercialize and exploit Eliotex and the Eliotex
Technologies. Ko-Xxxxx Xxx shall not reveal the Eliotex Technologies or any
information to any other person without the written approval of RMF Global.
2.08. Ko-Xxxxx Xxx shall promptly notify RMF Global if he learns of any
infringement of any patent rights respecting or pertaining to the patents or
Technology licensed hereunder or of any unauthorized use of the Technology by
any third party.
2.09. Ko-Xxxxx Xxx agrees to defend, at his own expense, all infringement suits
that may be brought against RMF Global or its sublicenses based on or related to
the manufacture, use, sale, or marketing of products based on or using the
patents, information, or trademarks pertaining to Eliotex or the Eliotex
Technologies. In the event any information is brought to the attention of
Ko-Xxxxx Xxx that others are infringing any of the rights granted pursuant to
this Agreement, Ko-Xxxxx Xxx shall, at his own expense, diligently prosecute all
such infringers. In any of the foregoing suits, RMF Global may, at Ko-Xxxxx
Xxx'x expense, be represented by counsel of its own choice.
2.10. Ko-Xxxxx Xxx agrees to exclusively manufacture and sell Eliotex to RMF
Global in such quantities as requested by RMF Global from time to time and that
he will not, other than in the Non-Territory as provided herein, grant any
rights to use, purchase, market, license, distribute, sell, give away, or
deliver to any other person, firm or entity, any materials manufactured by him
relating to, using, arising or made from, containing, or competing with Eliotex,
a product similar to Eliotex or the Eliotex Technologies during the term of this
Agreement.
2.11. Ko-Xxxxx Xxx shall provide RMF Global amounts of Eliotex in sufficient
quantities to fill the orders placed by RMF Global to meet all size, width and
other specifications as may be requested by RMF Global.
2.12. RMF Global may at its option trademark and utilize the names or variations
of the names Eliotex and/or Buoytex in those areas in which it conducts its
business operations, and Ko-Xxxxx Xxx shall permit no other individual, entity
or organization to make use of said trademarks. Ko-Xxxxx Xxx shall not obtain
any trademarks, grant or use any tradenames that are similar to any names used
by RMF Global or RMF Global's sub-licensees.
ARTICLE III - DELIVERY, PAYMENT AND MINIMUM ORDER OF ELIOTEX
3.01. Ko-Xxxxx Xxx shall promptly deliver to RMF Global within twenty-eight (28)
days of receiving an order from RMF Global, at RMF Global's place of business,
all Eliotex ordered by RMF Global. RMF Global shall pay for said order within 30
days of delivery to RMF Global's facilities. All orders placed by RMF Global
shall be placed by telephone or written facsimile order. The costs of shipping
of all Eliotex product by Ko-Xxxxx Xxx to RMF Global shall be paid by RMF Global
and the risk of loss from the facilities of Ko-Xxxxx Xxx to the facilities of
RMF Global shall be borne by RMF Global.
3.02. RMF Global shall pay $.60 USD per meter for all Eliotex ordered from
Ko-Xxxxx Xxx. This price shall remain $.60 USD per meter for a period of ten
(10) years from the date of execution of this Agreement. Thereafter said price
shall be adjusted for subsequent ten (10) year terms at a price increase of no
more than twelve percent (12%) per ten (10) year term. The price paid by RMF
Global for Eliotex shall remain the same for each ten (10) year term.
3.03. RMF Global shall order Eliotex from Ko-Xxxxx Xxx from time to time as
needed and shall not be required to purchase any minimum amount of Eliotex
during the term of this Agreement and RMF Global is not required to make any
minimum annual payment to Ko-Xxxxx Xxx. However, should RMF Global place an
order, any quantity ordered must be a minimum of 55,000 meters of Eliotex.
3.04. On all Sublicensee Payments received by RMF Global from third party
Sublicensees, RMF Global shall not pay any fees to Ko-Xxxxx Xxx.
ARTICLE IV - TERM
4.01. This Agreement shall be in full legal force and effect for an initial term
of ten (10) years from the date of execution hereof. RMF Global shall have the
option to renew this Agreement for up to four (4) successive terms of ten (10)
years each by giving Notice to Ko-Xxxxx Xxx of its intention to so renew not
less than ninety (90) days prior to the expiration of the then-current term.
ARTICLE V - REPRESENTATIONS, WARRANTIES AND COVENANTS OF KO-XXXXX XXX
5.01. Ko-Xxxxx Xxx represents that he is the inventor, exclusive manufacturer,
sole owner, holder, holder in due course of all right, title and interest to and
in Eliotex and the Eliotex Technologies.
5.02. Ko-Xxxxx Xxx represents that any prior licenses granted by him have been
lawfully rescinded, terminated and/or revoked and have no further force or
effect.
5.03. Ko-Xxxxx Xxx represents that he has the capacity and unlimited ability to
manufacture said product in quantities sufficient to meet the requirements of
RMF Global as they currently exist and as they may exist and expand in the
future.
5.04. Ko-Xxxxx Xxx has the sole and exclusive lawful authority to enter into
this Agreement and to grant the exclusive license and other rights granted
hereunder and to manufacture products made from or using Eliotex or the Eliotex
Technologies. The execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated hereby will not violate any other
agreement, any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, binding upon or effecting
Eliotex, the Eliotex Technologies or any rights granted to RMF Global hereunder.
ARTICLE VI - COVENANTS, REPRESENTATIONS, AND OBLIGATIONS OF RMF GLOBAL
6.01. RMF Global agrees to use its good faith best efforts to market and
distribute new and existing markets and applications for Eliotex and the Eliotex
Technologies.
6.02. Authority to Execute and Perform Agreements. RMF Global Inc. has the full
legal right and power and all authority and approval required to enter into,
execute, and deliver this Agreement, and the transactions contemplated hereby,
and to perform fully the obligations thereunder.
ARTICLE VII -TERMINATION
7.01. This Agreement may be terminated by either party upon an event of default,
as specified herein, which default remains uncured not less than thirty (30)
days after Notice thereof by the non-breaching party to the breaching party.
This Agreement may be terminated by either party upon the dissolution,
bankruptcy or liquidation of the other party, at the discretion of the party
whose operations are not being impaired.
ARTICLE VIII - ARBITRATION TO RESOLVE DISPUTES
8.01. The parties acknowledge that the logistics of their locations in various
continents makes the litigation of any dispute a potentially lengthy, time
consuming and expensive process. In order to minimize the expense and difficulty
of resolving disputes, the parties agree to utilize their best efforts to
resolve said disputes amicably. In the event a dispute does not prove amenable
to amicable resolution, the parties agree to submit the dispute to binding
arbitration. The arbitrators shall operate under the auspices of and in
accordance with the rules of the American Arbitration Association, which shall
to the maximum extent possible permit the parties to participate in said
proceedings without requiring their actual physical presence. Each side shall
select an arbitrator, with the two arbitrators to select a third from among a
list of arbitrators acceptable to the parties. The party which prevails in said
arbitration shall recover its costs from the non-prevailing party in a
percentage to be determined by the arbitrators. No appeal of a decision of the
arbitrators shall be allowed absent an allegation of fraud or collusion on the
part of the arbitrators. The laws of the United States shall govern in any
dispute, and venue for any said dispute shall be Allegheny County, Pennsylvania,
USA.
ARTICLE IX - INDEMNIFICATION
9.01. The parties agree that in the event one of the parties hereto is subjected
to liability or exposure as a result of an allegation of fault, negligence,
breach of contract, breach of duty, error, act of commission or act of omission
of the other, the party whose action or lack thereof gave rise to the potential
liability shall indemnify and hold harmless the other for all costs associated
with the defense of any such claim or suit, and shall be exclusively liable for
the payment of any award entered attendant thereto.
ARTICLE X - INTEGRATED AGREEMENT
10.01. The parties agree that this Agreement represents the entire agreement of
the parties as to its terms, and that no modification hereof shall be given
legal force or effect without the prior written consent of the parties hereto.
ARTICLE XI - FACSIMILE AND COUNTERPART ORIGINALS
11.01. The parties agree that a facsimile copy of this Agreement shall be given
the same legal force and effect as a hard copy original. The parties further
agree that they shall execute this Agreement in counterpart originals, which
shall each contain the signature of one of the parties hereto and shall in the
aggregate constitute the signature page of the instant Agreement.
ARTICLE XII - PROVISIONS SURVIVING
12.01. In the event that a court of competent jurisdiction shall invalidate any
term or provision of this Agreement, the remaining terms shall survive
unaffected and in full force and effect.
ARTICLE XIII - NOTICES
13.01. Any Notice required or referenced herein shall be deemed given when
affixed with a postage cancellation reflecting its deposit in the general mails
of the country of origin or the date of its deposit with a licensed common
carrier. All such Notices shall be directed to the parties at the addresses set
forth above.
ARTICLE XIV - EFFECT OF WAIVER
14.01. No waiver whether express or implied, of any breach of any term,
condition or obligation of this Agreement shall be construed as a waiver of any
subsequent breach of that term, condition or obligation, or any other term,
condition or obligation of this Agreement of the same or different nature.
ARTICLE XV - SUCCESSORS AND ASSIGNS
15.01. This Agreement shall inure to the benefit of the successors or assigns of
the Parties.
ARTICLE XVI - COMPLETE AGREEMENT
16.01. This document comprises the entire Agreement with respect to the subject
matter hereof and supersedes all negotiations, representations and warranties,
commitments, offers, contracts and writings prior to the date of this Agreement.
Otherwise, the Parties to this Agreement are not to be bound by any
representations, warranties or agreements other than those set forth herein or
in a written amendment to this Agreement hereinafter entered into by the Parties
and duly executed by each party. Nothing stated in this Agreement shall be
construed against the drafting party solely because of the submission of this
Agreement to the other party.
ARTICLE XVII - ASSIGNMENT
17.01. This Agreement may be assigned by RMF Global. This Agreement may not be
assigned by Ko-Xxxxx Xxx without the express written consent of RMF Global.
In witness whereof, the Parties have executed this Agreement on March 2, 2003
intending to be legally bound.
RMF Global, Inc.
/s/Xxxxxx Xxxxxxxx
-------------------------------------
by: Xxxxxx Xxxxxxxx, President
/s/Ko-Xxxxx Xxx
--------------------------------------
by: Ko-Xxxxx Xxx
