Exhibit 10.4
DEVELOPMENT AND MARKETING AGREEMENT
THIS DEVELOPMENT AND MARKETING AGREEMENT ("Agreement") is made as of
this 1st day of November, 1996 (the "Effective Date") by and between M.C.D.
Limited, a corporation formed under the laws of the United Kingdom ("MCD"),
March Motors Limited, a corporation formed under the laws of the United Kingdom
(the "Company"), and Xx Xxxxxxx ("Consultant").
WHEREAS, MCD is engaged in the business of designing, developing and
selling high performance engines for performance motor vehicles including
motorcycles;
WHEREAS, the Company is interested in producing, marketing and
selling superbikes for sale to the general public;
WHEREAS, the Company is also interested in producing, marketing and
selling engines for use in Indy race cars; and
WHEREAS, MCD and the Company are desirous of working together
cooperatively to design and develop piston engines for use in the Company's
superbike and for sale for use in Indy race cars.
NOW, THEREFORE, in consideration of the mutual promises contained in
this 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. "Design Program" means MCD's efforts to design the
following engines: (i) a 1500cc, eight cylinder, twin-cam engine, drivetrain and
gear box for use with the Company's superbike motorcycle, and (ii) a single
cylinder, twin-plug cylinder head, desmodratic valve gear, built-up bearings on
crankshaft and balancer shaft, 600cc engine, drivetrain and gearbox for use with
the 600cc Motorcycle Frame.
d. "Engine(s)" means, individually or collectively, that
certain 1500cc, 4 cylinder, twin-cam engine, drivetrain and gearbox for use with
the Company's superbike motorcycle and that certain single cylinder, twin-ply
cylinder head, desmodratic valve gear, built-up bearings on crankshaft and
balancer shaft, 600cc engine, drivetrain
and gearbox for use with the Company's superbike motorcycle, each as designed by
MCD pursuant to the Development Program set forth in this Agreement.
e. "Intellectual Property" means copyrights, patents,
trademarks and trade secrets, whether or not registered, filed, applied for or
the like, and all related rights.
f. "MCD Technology" means the proprietary technology and
related Intellectual Property of MCD, and improvements and modifications to such
technology, necessary to develop and produce the Engines for the Company.
g. "600cc Motorcycle Frame" means that certain 600cc
"one-off" motorcycle frame owned by MCD, which was raced by MCD using a Rotax
motor and which is to be used by the Company as the motorcycle frame with its
600cc motorcycle Engine.
h. "Specifications" means the drawings, specifications and
vendor lists for the design, performance and manufacturability of the Engines,
which are to be designed by MCD hereunder.
i. "600cc Prototype Motorcycle" means the prototype
motorcycle to be produced by MCD as part of the Design Program by combining the
600cc Motorcycle Frame and the 600cc motorcycle Engine.
2. Design Program
MCD agrees to use all commercially reasonable efforts to
complete the Design Program by the end of May 1997. The parties agree that the
target cost to produce each 1500cc motorcycle Engine shall be Four Thousand
Pounds (4,000), and the target costs to produce each 600cc motorcycle Engine
shall be One Thousand Eight Hundred Pounds (1,800). The parties agree that the
estimated cost of designing both Engines is approximately Seventy Thousand
Pounds (70,000). The Company hereby agrees to pay MCD the sum of Seventy
Thousand Pounds (70,000) in consideration of MCD's continuing compliance with
the Design Program. Such amount will be payable in seven (7) equal installments
of Ten Thousand Pounds (10,000) each, with the first such installment being due
and payable on November 15, 1996, 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 MCD's continued compliance with the
Design 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 Engines and all Intellectual Property
therein. MCD also agrees to sell the Company all of MCD's rights, title and
interest in the 600cc Motorcycle Frame, including the exclusive right to design,
produce, market and sell frames based on the 600cc Motorcycle Frame, and, in
consideration therefor, the Company agrees to pay MCD the sum of Twenty-Five
Thousand Pounds (25,000) on November 15, 1996. MCD further agrees to produce one
fully-operational 600cc Prototype Motorcycle as part of the Design Program.
Except for reasonable travel expenses incurred by MCD in its performance of this
Agreement which costs shall be paid for by the Company and except as otherwise
provided in this Agreement, MCD shall be responsible for all costs and expenses
incurred in carrying out the Design Program. MCD agrees to consult with the
Company on a regular basis regarding the progress of the Design Program, and
will give the Company the opportunity to review and approve the functional
specifications prior to commencing the engineering phase of the Design Program.
In connection with the Design Program, MCD agrees to assist the Company in
creating an owners' manual for the 1500cc Motorcycle Engine and the 600cc
Prototype Motorcycle which the Company will distribute to the purchasers and
end-users of such products. MCD also agrees to supply the Company with a parts
list for the 600cc Prototype Motorcycle, which list shall identify each part
comprising such Motorcycle, the name of the distributor for each such part and
the price for each such part. If MCD fails to develop the Engines and the 600cc
Prototype Motorcycle by May 31, 1997, the Company shall have the right to
terminate this Agreement pursuant to Section 12 hereunder; provided, however,
that the Company will not be able to terminate this Agreement if such delay is
directly caused by the delay or nonperformance of MCD's subcontractors.
3. Ownership of Technology.
a. MCD Technology. MCD owns and possesses all right, title
and interest in the MCD Technology. MCD has not licensed any of the MCD
Technology to any third party. MCD has taken all necessary action to protect the
MCD Technology. MCD has not received any notice of, nor are there any facts
known to MCD which indicate a likelihood of, any infringement or
misappropriation by, or conflict from, any third party with respect to the MCD
Technology; no claim by any third party contesting the validity of the MCD
Technology has been made, is currently outstanding or, to the best knowledge of
MCD, is threatened; MCD has not received any notice of any infringement,
misappropriation or violation by it of any intellectual property rights of any
third parties and MCD 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 Engines, or with respect to the conduct of the MCD's business as
now conducted. The parties agree that MCD shall retain all right, title and
interest in and to the MCD 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 and to the Specifications, the
Engines, all Intellectual Property therein.
c. Technical Assistance. MCD will provide knowledgeable and
competent personnel as reasonably necessary to work with the Company's
personnel, at the Company's expense, to complete the development of the Engines
and to ensure that the Engines operate in accordance with the Specifications.
MCD hereby agrees to attend
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bi-weekly progress meetings with March Group PLC to discuss the integration of
the motorcycle Engine into the specifications for the motorcycle which shall
utilize such Engine. MCD also agrees to provide knowledgeable and competent
personnel as reasonably necessary, to assist the Company in all phases of
assemble and manufacture of the Engines.
4. License and Royalty.
a. License to the Company. Subject to the terms and
conditions of this Agreement, MCD hereby grants to the Company, and the Company
hereby accepts from MCD, a royalty-free, perpetual, irrevocable, exclusive and
worldwide license to use the MCD Technology in connection with the manufacture,
marketing and sale of the Engines.
b. The Company agrees to pay to MCD royalties at the rate of
two and one-half percent (2.5%) of the net selling price of motorcycles
utilizing the motorcycle Engines sold by the Company. For this purpose, "net
selling price" shall mean the dealer invoice price for each motorcycle sold by
the Company utilizing the Engines, less returns, allowances and shipping
charges.
c. All royalties calculated pursuant to Section 4(b) shall
be paid to MCD 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 MCD 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 to this Agreement or any payments
made pursuant to this Agreement.
d. Royalties are to be paid in monthly installments (less
taxes as provided in Section 4(c) within thirty (30) days after the Company's
receipt of final payment for any motorcycle utilizing the motorcycle Engines
developed pursuant to this Agreement. Each installment will be payable in
British Pounds by wire transfer to a bank account designated by MCD.
e. For as long as royalties are due under this Agreement,
the Company will keep true and accurate records adequate to permit royalties due
to MCD 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 MCD to the extent necessary for the determination of the accuracy of the
reports made hereunder. MCD's representative will have the right to make copies
of the relevant records.
5. Production Equipment. MCD shall provide the Company with a list
of vendors who will develop the molds, tooling, dies and casts to produce
component parts for the manufacture of the Engines. All such molds, tooling,
dies and casts shall be
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referred to in this Agreement as the "Production Equipment." From the Effective
Time until the third anniversary of this Agreement, the Production Equipment
shall be used by the Company, MCD, any affiliate of the Company or MCD and their
respective subcontractors for the sole and exclusive benefit of the Company.
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 motorcycles utilizing the
Engines.
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 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 or right of action against the
other party.
7. Additional Covenants of MCD.
a. Agreement not to Compete.
(i) Except for MCD's existing relationship with
Motorrad-Und Zweiradwerk GmbH, and as otherwise contemplated by this Agreement,
MCD 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. Specifically,
MCD shall not design for any other developer of competition motorcycles V-8
engines, single cylinder 500cc to 700cc engines, 750cc engines, or any engine
which would be used as a world superbike engine.
(ii) The obligations of MCD under Section 7 (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 established its goodwill,
business reputation, or any customer relations.
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(iii) Ownership by MCD, 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 7.
(iv) MCD 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 7 if such activity were
carried out by MCD, either directly or indirectly. In particular, MCD agrees
that it will not, directly or indirectly, induce any employee of MCD to carry
out, directly or indirectly, any such activity.
8. 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 benefit of any third party, any of the following
information disclosed by 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 within 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 MCD 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 become 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 be 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 sublicensees, and who are under a written obligation to keep such
information confidential. Such written obligation shall be at least as
restrictive as those obligations specified in Section 8(a) above.
d. Injunctive Relief. The parties acknowledge that a breach
or threatened breach of this Section 8 by any of the parties may cause the
nonbreaching party to suffer irreparable harm and injury such that no remedy at
law will adequately compensate the other party. Thus, the nonbreaching party
shall have the right to obtain
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injunctive relief with respect to such breach or threatened breach, in addition
to any other available remedy or relief.
9. Warranties.
a. Warranties by MCD. MCD warrants that, for a period of
five (5) years from the date of delivery of the prototype Engines, such
prototypes shall conform to the Specifications.
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 MCD 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 9 shall survive
the expiration or termination of this Agreement for any reason.
10. Intellectual Property Indemnification.
MCD shall indemnify the Company for any damages finally
awarded or settlement amounts 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 Engines, the 600cc Motorcycle Frame or any of the MCD
Technology, or any material supplied by MCD to the Company pursuant to this
Agreement. The Company shall notify MCD 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, MCD
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 Specifications, the 600cc Motorcycle Frame or the Engines
supplied hereunder, is in MCD's opinion likely to or does become the subject of
a claim for infringement of any patent, copyright or other proprietary right,
MCD may, at its option and expense, procure for the Company or any affected
customer, the right to continue using the same, or modify it so that it becomes
non-infringing, but without diminishing MCD's obligations hereunder.
11. Consulting Relationship.
a. Retention of Consultant; Services to be Performed. The
Company hereby retains Consultant to render such training, consulting and
advisory services relating to the Engines, and the motorcycle engine produced
pursuant to that certain Development and Marketing agreement dated as of
December 15, 1995 by and between the Company and MCD, as the Company may
request. Consultant hereby accepts such engagement and agrees to perform such
services for the Company upon the terms and
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conditions set forth in this Agreement. During the term of this Agreement,
Consultant shall devote such portion of his business time, attention, skill and
energy to the business of the Company as may be reasonably required to perform
the services required by this Agreement and shall assume and perform to the best
of his ability such reasonable responsibilities and duties as shall be assigned
to Consultant from time to time by the Company. During the term of this
Agreement, Consultant shall report to the Managing Director of the Company.
b. Compensation. As compensation in full for Consultant's
services hereunder, the Company shall pay to Consultant a consulting fee at the
rate of Ten Thousand Pounds (10,000) per month. The consulting fee shall be
payable to Consultant in arrears at the end of each calendar month beginning on
June 30, 1997 and continuing until December 31, 1999, provided, however, that if
this Agreement is terminated prior to its natural expiration, the Company shall
have no further obligations to Consultant.
In the event that Consultant becomes disabled and is unable
to perform normal consulting and/or advisory services pursuant to this
Agreement, the Company shall not be obligated for the payment of any further
compensation hereunder until such disability has ceased and Consultant is able
to resume his normal responsibilities hereunder, even though this Agreement has
not been terminated by the Company in accordance with its terms.
c. Expenses. Consultant shall be reimbursed by the Company
in accordance with the policies and procedures that are established from time to
time by the Company for all reasonable and necessary out-of-pocket expenses that
are incurred by Consultant in performing his duties under this Agreement,
including, without limitation, reasonable travel expenses incurred by
Consultant.
d. Improvements and Inventions.
(i) Notification and Disclosure. Consultant shall
promptly notify the Company in writing of the existence and nature of, and shall
promptly and fully disclose to the Company, any and all ideas, designs,
practices, processes, apparatus, improvements and inventions, whether or not
they are believed to be patentable (all of which are hereinafter sometimes
referred to as "inventions"), which Consultant has conceived or first actually
reduced to practice and/or may conceive or first actually reduce to practice
during the period of Consultant's consulting arrangement with the Company or
which Consultant may conceive or reduce to practice within six (6) months after
termination of this Agreement, if such inventions relate to a product or process
upon which Consultant worked during the term of his consulting arrangement with
the Company.
(ii) Ownership and Patenting of Inventions. All such
inventions shall be the sole and exclusive property of the Company or its
nominee, and
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during the term of this Agreement and thereafter, whenever requested to do so by
the Company, Consultant shall execute and assign any and all applications,
assignments and other instruments that the Company shall deem necessary or
convenient in order to apply for and obtain Letters Patent of the United States
and/or of any foreign countries for such inventions and in order to assign and
convey to the Company or its nominee the sole and exclusive right, title and
interest in and to such inventions. Consultant will render aid and assistance to
the Company in any interference or litigation pertaining to such inventions, and
all expenses reasonably incurred by Consultant at the request of the Company
shall be borne by the Company. In this connection, if such aid or assistance
requires any expenditure of Consultant's time after termination of this
Agreement, Consultant shall be entitled to compensation for the time requested
by the Company at an hourly rate equal to the pro rata hourly rate at which
Consultant was being paid for a normal pay period immediately prior to the end
of the term of this Agreement.
12. Term, Termination and Effect of Termination.
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 five (5) years after the Effective Date. The Agreement shall be
renewable for additional one (1) year periods upon mutual written agreement by
the parties at least ninety (90) days prior to the expiration of the
then-current term.
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 MCD to develop the
Specifications or the Engines as provided herein, this Agreement shall be
terminated and the Company shall be entitled to all rights in and to the
Specifications and all Intellectual Property therein, designed to date. MCD will
not be held responsible for late delivery from suppliers or subcontractors.
d. Effect of Material Breach by MCD. If MCD materially
breaches this Agreement, the Company shall have the right to terminate this
Agreement and the Company shall be entitled to all rights in and to the
Specifications and all Intellectual Property therein, developed to date, and the
continuing right to the license granted to the Company in Section 4(a) relating
to the MCD Technology.
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 MCD, MCD shall have
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the right, at its sole option, to terminate this Agreement and the Company shall
be entitled to all rights in and to the Specifications and all Intellectual
Property therein, designed and paid for to date, and the continuing right to the
license granted to the Company in Section 4 (a) relating to the MCD Technology.
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 be entitled to take physical possession of and
ownership of all Specifications and all Intellectual Property therein, designed
to date, and the continuing right to the license granted to the Company in
Section 4(a) relating to the MCD Technology, and (iv) no party shall be relieved
of its obligations under Sections 8 (Confidentiality), 9 (Warranties), 10
(Intellectual Property Indemnification) and 14 (k) (Choice of Governing Law).
13. Compliance With Laws.
In connection with and in furtherance of its marketing and
manufacturing activities hereunder, each party shall be responsible for
obtaining, and shall use all reasonable commercial efforts to obtain, and all
required governmental authorizations, including without limitation any import
licenses and foreign exchange permits, and, if 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 or
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, the 600cc, Motorcycle
Frame or the Engines, infringement of a party's rights in the Specifications,
the 600cc Motorcycle Frame or the Engines, or infringement or registration by a
third party of the rights of MCD 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 of the suspected infringer or registrant, the place of the asserted
infringement 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 sues to enjoin such infringements or to oppose or invalidate any
such registration.
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
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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 rights 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, this Agreement or the 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 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 or 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 any 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 authorized representative of each party.
i. Counterparts. This Agreement may be executed in
counterparts with the same force and effect as if each of 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:
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If to MCD:
Attention:
Telephone:
Telecopy:
With a copy to:
Attention:
Telephone:
Telecopy:
If to the Company:
March Motors Limited
c/o IDI Distributors
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
U.S.A.
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx & Whitney LLP
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
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referred to 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.
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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.
n. AUTHORITY TO ENTER INTO 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 purposes 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 or rights in or to
the MCD Technology, the Specifications and the Engines, on the one hand, or the
Company Technology, 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 any 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.
M.C.D. LIMITED
By /s/ Xx Xxxxxxx
-----------------------
Its Principle
-------------------
MARCH MOTORS LIMITED
By /s/ Xxxxxx Xxxxxxxxx
-----------------------
Its President/Chairman
-------------------
/s/ Xx Xxxxxxx
-----------------------
Consultant
