Exhibit 10.2
DEVELOPMENT AND MARKETING AGREEMENT
THIS DEVELOPMENT AND MARKETING AGREEMENT ("Agreement") is made as of
this 15th day of December, 1995 (the "Effective Date") by and between March
Group PLC, a corporation formed under the laws of the United States Kingdom
("March Group") and March Motors Limited, a corporation formed under the laws of
the United Kingdom (the "Company").
WHEREAS, March Group is engaged in the business of designing,
developing, manufacturing and selling high performance chassis for performance
motor vehicles including motorcycles;
WHEREAS, the Company is interested in producing, marketing and
selling superbikes for sale to the general public; and
WHEREAS, March Group and the Company are desirous of working
toghether cooperatively to design and develop a superbike for sale by the
Company on a worldwide basis.
NOW, THEREFORE, in consideration of the mutual promises contained in
the Agreement, the parties hereto agree as follows:
1: Definitions
As used herein, the following terms shall have the following
meanings:
a. "Affiliates" means corporations or other business
organizations that, either directly or through one or more intermediaries,
control, are controlled by, or are under common control with, a party hereto.
b. "Control" means ownership of 50% or more of the voting
securities of an entity.
c. "Development Program" means March Group's efforts to design
and develop the Superbike and produce a prototype of the Superbike as more fully
described on Exhibit A attached hereto.
d. "Intellectual Property" means copyrights, patents,
trademarks and trade secrets, whether or not registered, filed, applied for or
the like, and all related rights.
e. "Licensed Name" shall mean the name and xxxx "March"
including all common law rights and registrations of March Group in the same.
f. "Licensed Products" shall mean any motorcycle or piston
engine developed, produced or manufactured by or for the Company and all
merchandise sold by the Company which utilized the Licensed Name.
g. "March Group Technology" means the proprietary technology
and related Intellectual Property of March Group, and improvements and
modifications to such technology, necessary to develop and produce the
Superbike.
h. "Service Components" as used in this Agreement shall mean
those components sold by the Company for use as service parts for Licensed
Products previously sold.
i. "Specifications" means the specifications for the design,
performance and manufacturability of the Superbike, which are to be developed by
the March Group hereunder.
j. "Superbike" means the certain high performance motorcycle
developed by March Group pursuant to the Development Program.
2. Development Program
March Group agrees to use all commercially reasonable efforts
to complete the Development Program within ten (10) months of the Effective
Date. The parties agree that the estimated cost of designing the Superbike is
approximately Three Hundred Thousand Pounds (300,000) and the estimated cost of
production of a working prototype of the Superbike is approximately Two Hundred
Thousand Pounds (200,000). The Company hereby agrees to pay March Group the sum
of Five Hundred Thousand Pounds (500,000) in consideration of March Group's
continuing compliance with the Development Program. Such amount will be payable
in ten (10) equal installments of Fifty Thousand Pounds(50,000) each, with the
first such installment being due and payable on December 15, 1995, and the
remaining installments being due and payable on the first day of each succeeding
month, such installment payments shall be contingent upon and subject to March
Group's continued compliance with the Development Program. Upon each installment
payment made by the Company pursuant to this Section 2, the Company shall obtain
and retain all right, title and interest in and to the Specifications, the
Superbike and all Intellectual Property therein. Except as otherwise provided
for in this Agreement, March Group shall be responsible for all costs and
expenses incurred in carrying out the Development Program. March Group agrees to
consult with the Company on a regular basis regarding the progress of the
Development Program, and will give the Company the opportunity to review and
approve the functional specifications prior to commencing the engineering design
phase of the Development Program. In connection with the Development Program,
March Group agrees to assist in creating an operating manual for the Superbike
which the Company will distribute to purchasers and end-users of the Superbike.
If March Group fails to develop the
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Superbike within ten (10) months of the Effective Date, the Company shall have
the right to terminate this Agreement pursuant to Section 12 hereunder.
3. Ownership of Technology.
a. March Group Technology. March Group owns and possesses all
right, title, and interest in the March Group Technology and the Licensed Name.
March Group has not licensed any of the March Group Technology or the Licensed
Name to any third party. March Group has taken all necessary action to protect
the March Group Technology and the Licensed Name. March Group has not received
any notice of, nor are there any facts known to March Group which indicate a
likelihood of, any infringement or misappropriation by, or conflict from, any
third party contesting the validity of the March Group Technology or the
Licensed Name has been made, is currently outstanding or, to the best knowledge
of March Group, is threatened; March Group has not received any notice of any
infringement, misappropriation or violation by it of any intellectual property
rights of any third parties and March Group has not infringed, misappropriated
or otherwise violated any such intellectual property rights; and no
infringement, illicit copying, misappropriation or violation has occurred or
will occur with respect to the products currently under development (in their
present state of development), including the Superbike, or with respect to the
conduct of the March Group's business as now conducted. The parties agree that
March Group shall retain all right, title, and interest in and to the March
Group Technology and all Intellectual Property therein, subject only to the
license granted hereunder.
b. Company Technology. The parties agree that the company
shall retain all right, title, and interest in an to the Specifications, the
Superbike and all Intellectual Property therein, subject only to the royalty
obligation.
4. License
a. License to the Company. Subject to the terms and conditions
of this agreement, March Group hereby grants to the Company, and the Company
hereby accepts for the term of this Agreement, an irrevocable, exclusive and
worldwide license to use the Licensed Name in connection with the manufacture,
marketing and sale of Licensed Products. In addition to the foregoing, March
Group hereby consents to the use of, and grants to the Company a royalty-free
license to use, the Licensed Name in the Company's legal name.
b. Sublicenses. The Company shall have the right to sublicense
the license granted under Section 4(a) to its Affiliates, and the Company shall
have the right to sublicense the license granted under Section 4(a) to third
parties solely to the extent necessary to allow subcontractors to modify the
Licensed Products or provide a component of the Superbike with the Licensed
Name, to allow distributors and similar
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parties to sell the Licensed Products, and to allow end-users to use (on a
perpetual basis) the Superbike. Except as set forth in this Section 4(b), the
license granted under Section 4(a) may not be sublicensed.
c. Royalties.
i. The Company, in consideration of the grant of the
license in Section 4(a), agrees to pay to March Group royalties at the rate of
two and one-half percent (2.5%) of the net selling price of Superbikes sold by
the Company plus one percent (1%) in the Superbike's spare parts sales. For this
purpose, "net selling price" shall mean the dealer invoice price for each
Superbike sold by the Company utilizing the Licensed Name, less returns,
allowances and shipping charges.
ii. The Company, in consideration of the grant of the
license in Section 4(a), agrees to pay to March Group royalties at the rate of
one percent (1.0%) of the net selling price of motorcycles piston engines sold
by the Company utilizing the Licensed Name. For this purpose, "net selling
price" shall mean the invoice price for each engine sold by the Company, except
for those engines sold as part of a Superbike for which no additional royalty
shall be payable, less returns, allowances and shipping charges.
iii. The Company, in consideration of the grant of the
license in Section 4(a), agrees to pay to March Group royalties at the rate of
one percent (1.0%) of the net selling price of all merchandise sold by the
Company which utilizes the Licensed Name. For this purpose, "net selling price"
shall mean the sales price of any such merchandise sold by the Company utilizing
the Licensed Name, less returns, allowances and shipping charges.
iv. All royalties calculated pursuant to Section 4(c)(i)
and 4(c)(iii) shall be paid to March Group net of any tax or charge imposed by
any United Kingdom government or political subdivision thereof except for income
tax or tax in lieu of income tax imposed thereon and required to be withheld by
the Company pursuant to valid governmental authority. With respect to any such
tax properly withheld, the Company shall furnish March Group with receipts
showing the withheld taxes to have been duly deposited with the taxing
authority. The Company shall be solely responsible for payment of any value
added tax on this Agreement or any payments made pursuant to this Agreement.
v. Royalties are to be paid in monthly installments (less
taxes provided in Section 4(c)(iv) within thirty (30) days after the Company's
receipt of final payments for any Licensed Product. Each installment will be
payable in British Pounds by wire transfer to a bank account designated by March
Group.
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vi. For as long as royalties are due under this Agreement,
the Company will keep true and accurate records adequate to permit royalties due
to March Group to be computed and verified. The records will be open at all
reasonable times during business hours for inspection by a duly authorized
representative of March Group to the extent necessary for the determination of
the accuracy of the reports made hereunder. March Group's representative will
have the right to make companies of the relevant records.
vii. The Company acknowledges that nothing contained in
this Agreement shall be interpreted so as to grant the Company the right to use
the Licensed Name in connection with the development, manufacturing, marketing
or sale of four wheeled vehicles.
d. Technical Assistance. March Group will provide
knowledgeable and competent personnel as reasonable necessary (at its own
expense) to complete the development of the Superbike and to ensure that the
Superbike operates in accordance with the Specifications.
5. Supply of Superbike to the Company. March Group agrees touse
all commercially reasonsable efforts to identify and introduce sources of
suppliers and employees required by the Company to produce and manufacture the
Superbike.
6. Marketing Obligations
a. Best Efforts to Promote Marketing. At all times during the
term of this Agreement, both parties will use best efforts to promote the
manufacture, sale, marketing, and distribution of the Superbike.
b. Marketing Practices. Both parties agree to (I) conduct
business in a manner that reflects favorably at all times on the good name,
goodwill and reputation of the other party, (ii) not engage in deceptive,
misleading or unethical practices that are or might be detrimental to the other
party, (iii) not make any false or misleading representation with regard to the
other party or its products, (iv) not publish or utilize or cooperate in the
publication or utilization of any misleading or deceptive advertising material
that relates in any way to the other party and its products, (v) not make any
representation or warranty to anyone with respect to the specifications,
features or capabilities of the other party's products that are inconsistent
with the literature distributed by distributed by the other party, including all
disclaimers contained in such literature, and (vi) not make any warranty or
representation to anyone that would give the recipient any claim of action
against the other party.
c. Establishing of March Racing, Ltd. The Company will form a
company to be named March Racing, Ltd., or some other name as similar to March
Racing, Ltd. as possible ("March Racing"). The parties agree to share equally
the costs of formation of March Racing. Upon the formation of March Racing, the
Company and
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March Group will each own 50% of the voting securities of March Racing. The
Company and March Group will each appoint two (2) individuals to serve on the
Board of Directors of March Racing. March Group will appoint Xxxxx Xxxx as the
Chairman of the Board of Directors of March Group if Xx. Xxxx shall consent to
the appointment to such position.
d. Sponsorship for the Superbike. March Group use all
commercially reasonable efforts to organize sponsors for the Superbike and for
the business and conduct of March Racing.
7. Additional Covenants of the Company.
a. Board of Directors. The Company will permit March Group to
designate one member of the Company's Board of Directors at all times during the
term of this Agreement. The Company will continue to use all commercially
reasonable efforts to keep such individuals on the Board of Directors of the
Company during the term of this Agreement.
b. Engine Development Agreement. The Company will use all
commercially reasonable efforts to enter into an agreement with M.C.D. Limited
to design and develop a working prototype of a 750 cc, four cylinder motorcycle
engine (the "engine") for the Superbikes to be designed and supplied under this
Agreement.
8. Additional Covenants of March Group.
a. Agreement not to Compete.
(i) Except as a contemplated by this Agreement, March Group
agrees that during the term of this Agreement and for a period of five (5) years
after the termination of this Agreement, it will not, directly or indirectly,
engage in competition with the Company in any manner or capacity (e.g., as an
advisor, principal, agent, partner, officer, director, stockholder, employee,
member of any association or otherwise) in any phase of the business which the
Company is conducting during the term of this Agreement.
(ii) The obligation of March Group under Section 8(a)(i)
shall apply to any geographic area in which the Company (y) has engaged in
business during the term of this agreement through production, promotional,
sales or marketing activity, or otherwise, or (z) has otherwise goodwill,
business reputation, or any customer relations.
(iii) Ownership by March Group, as a passive investment, of
less than 1% of the outstanding shares of capital stock of any corporation
listed on a securities exchange or publicly traded on any recognized market
shall not constitute a breach of this Section 8.
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(iv) March Group further agrees that during the term of
this Agreement it will not, directly or indirectly, assist or encourage any
other person in carrying out, directly or indirectly , any activity that would
be prohibited by the foregoing provisions of this Section 8 if such activity
were carried out by March Group, either directly or indirectly. In particular,
March Group agrees that it will not, directly or indirectly, induce any employee
of March Group to carry out, directly or indirectly, any such activity.
b. Engine Development Assistance. In connection with the
Company's covenant set forth above in Section 7(b), March Group hereby agrees to
attend bi-weekly progress meetings with Xx Xxxxxxx of M.C.D. Limited, or any
other engineer of M.C.D. Limited as the Company shall indicate to March Group in
writing, to discuss the integration of the engine into the Specifications for
the Superbike.
9. Confidentiality.
a. Obligation. Each party shall keep confidential and not
disclose to any third party or use for its own benefit, except as expressly
permitted herein, or for the other party to it (collectively "Confidential
Information"); (i) any information provided to it by the other party marked with
a proprietary, confidential or other similar notice, or orally disclosed to it
by the other party and followed by a writing with thirty (30 ) days of such oral
disclosure indicating said information was confidential, and (ii) even if not so
marked, information that is reasonably understood by it to be confidential,
including the March Group Technology, on the one hand, and the Specifications
and the Company Technology, on the other hand.
b. Exclusions. The term "Confidential Information" shall not
include information which (i) is or becomes generally known or available through
no act or failure to act by the receiving party, (ii) is already known by the
receiving party at the time of receipt as evidenced by its records, (iii) is
hereafter furnished to the receiving party by a third party, as a matter of
right and without restriction on disclosure, (iv) is disclosed by written
permission of the party disclosing the Confidential Information, or (v) is
required to disclosed by court order or law, but in such event notice shall be
provided at least ten (10) days in advance of such disclosure.
c. Access to Information. Each party shall limit access to
Confidential Information to those of its employees or agents ( including
subcontractors) who have a need for such Confidential Information, or to its
sublicensees to the extent necessary to allow such sublicensee to fully use
their sublicenses, and who are under a written obligation shall be at least as
restrictive as those obligations specified in Section 9(a) above.
d. Injunction Relief. The parties acknowledge that a breach or
threatened breach of this Section 9 by any of the parties may cause the
nonbreaching party to suffer irreparable harm and injure such that no remedy at
law will adequately compensate the other party. Thus, the nonbreaching party
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shall have the right to obtain injunctive relief with respect to such breach or
threatened breach, in addition to any other available remedy or relief.
10. Warranties.
a. Warranties by March Group. March Group warrants that, for a
period of five (5) years from the date of delivery of the prototype Superbike,
such prototype shall conform to the Specifications and shall be free from
defects in materials and workmanship.
b. Warranty Pass-Through. The Company is permitted to provide
to its end-users the warranty granted to it hereunder. The Company hereby agrees
to indemnify and hold harmless March Group for any warranty or representation
made by the Company that exceeds or that is otherwise inconsistent with such
warranty.
c. Survival. The provisions of this Section 10 shall survive
the expiration of termination of this Agreement for any reason.
11. Intellectual Property Indemnification.
March Group shall indemnify the Company for any damages
finally awarded or settlement amount paid in respect of any loss, liability or
expense suffered or incurred by the Company or any of its customers for any
patent, copyright, trade secret or similar infringement claim brought against
the Company or any of its customers in respect of the Company's use or such
customer's use of the Superbike or any of the Licensed Products or the March
Group Technology (but only to the extent that such infringement claim is related
to the Superbike or such Licensed Products), or any material supplied by March
Group to the Company pursuant to this Agreement. The Company shall notify March
Group as soon as practicable of any such infringement claim brought against
either the Company or any of its customers. If the Company defends such a claim,
then, if requested by the Company, March Group shall provide the Company with
full documentation and cooperation to assist the Company in defending such
claim. If any item furnished hereunder, including without limitation the
Specification or the Superbike supplied hereunder, is in March Group's opinion
likely to or does become the subject of a claim for infringement of any patent,
copyright or other proprietary right, March Group may, at its option and
expense, procure ore the Company or any affected customer, the right to continue
using the same, or modify it so that it becomes noninfringing, but without
diminishing March Group's obligation hereunder.
12. Term, Termination, and Effect of Termination
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a. Term. This Agreement shall commence on the Effective Date
and, subject to earlier termination as provided herein, shall continue until the
date which is eighteen (18) months after the Effective Date.
b. Termination on Bankruptcy. Either party may terminate this
Agreement upon written notice if a petition for relief under any bankruptcy law
or legislation is filed by or against the other party, the other party makes an
assignment for the benefit of creditors, or a receiver, is appointed for an or a
substantial portion of any of the other party's assets, and such petition,
assignment or appointment is not dismissed or vacated within thirty (30) days.
c. Termination for Failure to Develop Specifications. If the
Company terminates this Agreement for failure by March Group to develop the
Specifications or the Superbike as provided herein, this Agreement shall be
terminated and all licenses granted hereunder to March Group and the Company
shall be terminated.
d. Effect of Material Breach by March Group. If March Group
materially breaches this Agreement, the Company shall have the right to
terminate this Agreement, including the license rights and obligations set forth
in Section 4, shall survive any such termination.
e. Effect of Material Breach by the Company. If the Company
materially breaches this Agreement and fails to correct such default within
sixty (60) days after written notice of such default is provided to the Company
by March Group, March Group shall have the right, at its sole option, to
terminate the Company's license under Section 4(a) or to terminate this
Agreement. If March Group terminates the Company's license, all other rights and
obligations of the parties under this Agreement shall survive and upon such
termination, the Company shall immediately refrain from distributing the
Superbike anywhere in the world using the Licensed Name.
f. Surviving Rights. Termination or expiration of this
Agreement shall not affect any other rights of the parties which may have
accrued up to the date of such termination or expiration and, in addition, (i)
no party shall be relieved of any obligation for any sums due to the other
party, (ii) the Company shall have the right to continued use of the Licensed
Name to sell any and all Licensed Products in its inventory on the date this
Agreement terminates or expires, (iii) the Company shall be entitled to take
physical possession of and ownership of all Specifications and the prototype
Superbike developed to date if this Agreement terminates for any reason prior to
the completion of the Development Program, and (iv) no party shall be relieved
of its obligations under Section 9 (Confidentiality), 10 (Warranties), 11
(Intellectual Property Indemnification), 13 (Limitation of Liability), and 14(k)
(Choice of Governing Law).
13. Compliance With Laws.
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In connection with and furtherance of its marketing and
manufacturing activities hereunder, each party shall be responsible for
obtaining, and shall use all reasonable commercial efforts to obtain, any and
all required governmental authorizations, including without limitations any
import licenses and foreign exchange permits, and, it applicable, shall be
responsible for filing or registering this Agreement with the appropriate
authorities.
14. Miscellaneous.
a. Relationship of Parties. The parties are not employees of
legal representatives of the other party for any purpose. Neither party shall
have the authority to enter into any contracts in the name of or on behalf of
the other party.
b. Further Assurances. The parties agree that each party has
the exclusive right to enjoin any infringement by a third party of any
Intellectual Property of the party related to such party's technology. In the
event that any unlawful copying of the Specifications or the Superbike,
infringement of a party's rights in the Specifications or the Superbike,
infringement or registration by a third party of the rights of March Group or
the Company comes to the attention of either party , such party shall
immediately inform the other in writing, stating the full facts of the
infringement or registration, known to it, including the identity or
registration and evidence thereof. Each of the parties agree to cooperate fully
with the other party at the expense of such other party if such other party if
other party sues to enjoin such infringements or to oppose or invalidate any
such registration.
c. Trademarks. Except as otherwise permitted by this
Agreement, the Company shall not(nor shall attempt to) adopt, use, or register
any acronym, trademark, trade names or other marketing name of Mach Group or any
confusingly similar work or symbol as part of the Company's own name or the name
of any of its Affiliates or the names of the products it markets. The Company
acknowledges the validity of the trademarks and March Group's ownership thereof.
All such trademarks and any additional marks of which March Group may in the
future be the proprietor will bear the designation TM or the designation (R) as
specified by March Group.
d. Nonassignability; Binding on Successors. Either party may
assign or otherwise transfer this Agreement to an Affiliate or in Connection
with a sale of all or substantially all of its assets, or of its business,
whether via merger or otherwise. Except as permitted in the preceding sentence,
neither party shall assign any of its right or obligations under this Agreement
without the express written consent of the other party, which consent shall not
unreasonably be withheld. Any attempted assignment under this Agreement without
such consent shall be void. In the case of any permitted assignment or transfer
of or under this Agreement without such consent shall be void. In the case of
any permitted assignment or transfer of or under this Agreement, this Agreement
or the
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relevant provisions shall be binding upon the executors, heirs, representatives,
administrators and assigns of the parties hereto.
e. Severability. In the event any provision of the this
Agreement is held to be invalid or unenforceable, the valid or enforceable
portion thereof and the remaining provisions of this Agreement will remain in
full force and effect.
f. Force Majeure. Neither party shall be liable to the other
for its failure to perform any of its obligations under this Agreement, except
for payment obligations, during any period in which such performance is delayed
because rendered impracticable or impossible due to circumstances beyond its
reasonable control, including without limitation earthquakes, governmental
regulation, fire, flood, labor difficulties, civil disorder, and acts of God,
provided that the party experiencing the delay promptly notifies the other party
of the delay.
g. Waiver. Any waiver (express or implied) by either party of
any breach of this Agreement shall be in writing and shall not constitute a
waiver of any other subsequent breach.
h. Entire Agreement; Amendment. This Agreement and the
exhibits attached hereto constitute the entire, final, complete, and exclusive
agreement between the parties and supersede an previous agreements or
representations, written or oral, with respect to the subject matter of this
Agreement. This Agreement may not be modified or amended except in a writing
signed by a duly representative of each party.
i. Counterparts. This Agreement may be executed in
counterparts with the same force and effects as if the signatories had executed
the same instrument.
j. Notice. All notices, communications, requests, demands,
consents and the like required or permitted under this Agreement will be in
writing and will be deemed given and received (i) when delivered personally,
(ii) when sent by confirmed telecopy, (iii) ten(10) days after having been duly
mailed by first class, registered or certified mail, postage prepaid, or (iv)
three (3) business days after deposit with a commercial overnight carrier, with
written verification of receipt. All notices will be addressed as follows:
If to March Group:
Attention: Xxxxxx XxXxxxxxx
Telephone: 00000-000000
Telecopy: 01280-700699
With a copy to:
Attention: Xxxxxxx Xxxx
Telephone: 0000-000-0000
Telecopy: 0000-000-0000
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If to the Company:
Attention:
Telephone:
Telecopy:
With a copy to:
Xxxxxx & Whitney P.L.L.P.
Pillsbury Center South
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
XXX
Attention: Xxxxxx X. Xxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is to be given may have
furnished to the other in writing in accordance herewith, except that notices of
change of address will be effective only upon receipt. A notice given by any
means other than as specified herein will be deemed duly given when actually
received by the addressee.
k. Choice of Governing Law, Arbitration. This Agreement is
made in accordance with and shall be governed and construed under the laws of
the United Kingdom, as applied to agreements executed and performed entirely in
the United Kingdom. The official text of this Agreement and any Exhibit or any
notice given or accounts or statements required by this Agreement shall be in
English. In the event of any dispute concerning the construction or meaning of
this Agreement, reference shall be made only to this Agreement as written in
English and not to any other translation into any other language. Any dispute or
difference arising between the parties hereto will be referred binding
arbitration to be conducted in London, England in accordance with the
International Chamber of Commerce. The award of the arbitrator(s) shall be
enforceable in any court having jurisdiction over the party (or over the
property of the party) against whom enforcement is sought.
l. Rights and Remedies Cumulative. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of any other
rights and remedies provided by law or otherwise.
m. Captions and Section References. The section headings
appearing in this Agreement are inserted only as a matter of convenience and in
no way define, limit, construe or describe the scope or extent of such section
or in any way affect such section.
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n. Authority to Enter and Execute Agreement; Prior Grants.
Each party represents and warrants to the other that it has the right, full
power and lawful authority to enter into this Agreement for the purpose herein
(including the granting of licenses under this Agreement) and to carry out its
obligations hereunder. Each party further warrants to the other that it has no
other outstanding agreements or obligations inconsistent with the terms and
provisions hereof and that it has not made any prior grants of rights in or to
the March Group Technology, the Specifications and the Superbike, on the other
hand, to any third party which are inconsistent or would interfere in the
performance of this agreement.
o. Publicity. All notices to third parties and an other
publicity concerning this Agreement or its subject matter shall be jointly
planned and coordinated between the parties. Neither party shall act
unilaterally in this regard without the prior written approval of the other
party, which approval shall not be unreasonably withheld, and which shall be
deemed to be given when disclosure is specifically required by law. All related
communications within each party's organization shall be of a confidential
nature.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MARCH GROUP PLC
By /s/ Xxxxxxx Xxxx
_________________________
Its Chairman
______________________
MARCH MOTORS LIMITED
By /s/ Xxxxxx Xxxxxxxxx
__________________________
Its Managing Director
_______________________
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Exhibit A
DEVELOPMENT PROGRAM
Time Period Work Objectives
December 1995 Begin on conceptual design; conduct stress analysis of
-January 1996 frame and swinging arm assemblies; produce overall
design schemes; discussions with engine manufacturer
regarding power deliver, torque application and
delivery; conduct analysis of braking and cornering
forces, damper performance, lift and drag.
February 1996 Produce detail design of complete motorcycle including
theoretical weight calculations; discussions with
suppliers of brakes, wheels, instrumentation lights,
hydraulics with engine manufacturer on design program
of engine for motorcycle.
March 1996 Production of patterns and tooling for carbon fibre,
composite component parts; continuation of detail
design of complete motorcycle.
April -May 1996 Manufacture of set of carbon fibre components;
procurement of "bought-out" component parts for
prototype assembly; compilation of weight register for
all parts.
June-July 1996 Assembly of motorcycle; installation of engine;
initial shake down tests; construction of second
prototype if required; construction of essential spare
parts.
August -September 1996 Prototype completion; testing, correction,
pre-production complete.
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Amendment Agreement
This amendment Agreement (the "Amendment Agreement"), dated as of
__________, 1996 is entered into by and between March Group PLC, a corporation
formed under the laws of the United Kingdom("March Group"), and March Motors
Limited, a corporation formed under the laws of the United Kingdom (the
"Company").
WHEREAS, the Company and March Group entered into that certain
Development Agreement dated as of January 1, 1996 (the "Agreement");
WHEREAS, the Agreement originally contemplated that the Company
would pay March Group the sum of Five Hundred Thousand Pounds (500,000) in
consideration of March Group's continuing compliance with the Development
Program (as defined in the Agreement) and that such amount would be payable in
ten (10) equal installments of Fifty Thousand Pounds (50,000) each, with the
first such installments being due and payable on the first day of each
succeeding months and
WHEREAS, the Company and March Group now desire to amend the
Agreement so that the installments due and owing to March Group under the terms
of the Agreement will be as set forth below.
NOW, THEREFORE, in consideration of the continued performance by the
Company and March Group of their respective promises and obligations under the
Agreement and all documents of agreements executed and delivered pursuant to
hereto and thereto, and for other good and valuable considerations, the receipt
and adequacy of which is hereby acknowledged, the Company and March Group hereby
agrees as follows:
1. Amendment to the Agreement. The Agreement is hereby amended as
follows:
Section 2 shall be amended to read in its entirety as follows:
2. Development Agreement:
March Group agrees to use all commercial reasonable efforts to
complete the Development Program within ten (10) months of the Effective Date.
The parties agree that the estimated cost of designing the Superbike is
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approximately Three Hundred Thousand Pounds (300,000) and the estimated cost of
production of a working prototype of the Superbike is approximately Two Hundred
Thousand Pounds(200,000). The Company hereby agrees to pay March Group the sum
of Five Hundred Thousand Pounds (500,000) in consideration of March Group's
continuing compliance with the Development Program. Such amount will be payable
in ten(10) installments as set forth below:
January 1996 25,000
February 1996 25,000
March 1996 30,000
April 1996 40,000
May 1996 40,000
June 1996 60,000
July 1996 60,000
August 1996 70,000
September 1996 80,000
October 1996 70,000
Each installment shall be due and payable on the first day of each
month, such installment payments shall be contingent upon and subject to March
Group's continued compliance with the Development Program. Upon each installment
payment made by the Company pursuant to this Section 2, the Company shall obtain
and retain all right, title and interest in and to the Specifications, the
Superbike and all Intellectual Property therein. Except as otherwise provided
for in this Agreement, March Group shall be responsible for all costs and
expenses incurred in carrying out the Development Program. March Group agrees to
consult with the Company on a regular basis regarding the progress of the
Development Program, and will give the Company the opportunity to review and
approve the functional specifications prior to commencing the engineering design
phase of the Development Program. In connection with the development Program,
march Group agrees to assist in creating an operating manual for the Superbike
which the Company will distribute to purchasers and end-users of the Superbike.
If March Group fails to develop the Superbike within ten (10) months of the
Effective Date, the Company shall have the right to terminate this Agreement
pursuant to Section 12 hereunder."
2. No Other Amendments: No Waivers. Except as specifically
amended herein, all of the terms, covenants and conditions of the Agreement, as
amended hereby, remain in full force and effect.
3. Recitals. The above recitals are true and correct as of the
date hereof and constitute a part of this Amendment Agreement.
4. Choice of Governing Law. This Amendment Agreement is mad in
accordance with and shall be governed and construed under the laws of the United
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Kingdom, as applied to agreements executed and performed entirely in the United
Kingdom. The official text of this Amendment Agreement and any Exhibit or any
notice given or accounts or statements by this Amendment Agreement shall be in
English.
5. Counterparts. This Amendment Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed to an original, and all of which counterparts of this Amendment Agreement
when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment Agreement as of the day and year first above written.
MARCH GROUP PLC
By _________________________
Its ____________________
MARCH MOTORS LIMITED
By __________________________
Its ____________________
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ADDENDUM
TO DEVELOPMENT AND MARKETING AGREEMENT
THIS ADDENDUM TO DEVELOPMENT AND MARKETING AGREEMENT ("Addendum")
is made as of this 27th day of January, 1997 by and between March Group PLC, a
corporation formed under the laws of the United Kingdom ("March Group"), and
March Motors Limited, a corporation formed under the laws of the United Kingdom
(the "Company").
WHEREAS, March Group and the Company entered into that certain
Development and Marketing agreement dated as of December 15, 1996, as amended on
February 27, 1996 (the "Agreement").
WHEREAS, pursuant to the Agreement, the parties thereto agreed to
work together to design and develop a high performance chassis (and related
components) for use in the Company's Superbike.
WHEREAS, the parties to the Agreement have decided to amend the
Agreement to extend the term thereof.
NOW, THEREFORE, in consideration of the premises, the mutual
promises contained in the Agreement, and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
Section 12(a) of the Agreement shall be amended in its entirety
to read as follows:
"a. Term. This Agreement shall commence on the Effective Date
and, subject to earlier termination as provided herein, shall
continue thereafter in perpetuity; provided, however, that, after
the third anniversary of the Effective Date, if the Company
(including any affiliates thereof) ceases to manufacture or
market motorcycles, spare motorcycle parts and related
merchandise, this Agreement may be terminated by either party
upon the expiration of 90-day written notice to the other party
of the first party's intention to terminate this Agreement."
This Addendum may be executed in counterparts with the same force
and effect as if each of the signatories had executed the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Addendum as of the day and year first above written.
MARCH GROUP PLC
By /s/ Xxxxxxx Xxxx
_____________________
Its Chairman
MARCH MOTORS LIMITED
By /s/ Xxxxxx Xxxxxxxxx
______________________
Its President
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