Exhibit 10.5
PROMOTIONAL AGREEMENT
MARCH MARQUE RACING SERIES
THIS PROMOTIONAL AGREEMENT Agreement") is made as this 26th day of
February, 1997 (the "Effective Date") by and between M.C.D. Limited, a
corporation formed under the laws of the United Kingdom ("MCD"), March Motors
Manufacturing Company, a Minnesota corporation (the "Company"), and Xx Xxxxxxx
("Consultant").
WHEREAS, MCD and Consultant have expressed an interest in promoting
the sale of the Company's 600cc single cylinder motorcycle in a racing series;
WHEREAS, the Company wishes to hire MCD and Consultant to establish,
oversee and promote such a racing series to promote the commercial sale of such
motorcycle:
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Race Promotion.
MCD and Consultant shall use best efforts to establish,
oversee and promote a European racing series which features the Company's 600cc
single cylinder motorcycle (the "Racing Series"). The Racing Series shall
consist of at least five (5) races, each featuring at least one race between
selected drivers riding only the Company's 600cc single cylinder motorcycle
(similar in nature to the International Race of Champions (IROC) automobile
racing series in the United States of America). MCD and Consultant shall be
responsible for planning, organizing sponsorship, race track scheduling, safety
concerns, insurance, maintenance of the Company's motorcycles that are used in
the Racing Series and promotion of such Racing Series.
2. Payment for Services
The Company shall pay MCD and Consultant a total of $5,000
per month beginning on May 1, 1997 and ending on April 1, 1999, with such
payments to be divided among MCD and Consultant as MCD and Consultant shall
determine; provided, however, that if this Agreement is terminated prior to its
natural expiration under Section 3(a) hereof the Company shall have no further
obligations to MCD or Consultant other then to pay any payments then in arrears.
All payments shall be made payable to the order of Xx Xxxxxxx.
In the event that Consultant becomes disabled and is unable
to perform under this Agreement, the Company shall not be obligated for the
payment of any further payments 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.
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.
3. 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
April 1, 1999. Thereafter, this Agreement automatically shall renew for one (1)
year periods unless and until any party delivers written notice of its intent to
terminate this Agreement; provided that such notice is delivered to the other
parties at least ninety (90) days prior to the expiration of the then-current
term.
b. Termination on Bankruptcy. Any party may terminate this
Agreement upon written notice of a petition for relief under any bankruptcy law
or legislation is filed by or against another party, any party makes an
assignment for the benefit of creditors, or a receiver is appointed for any or a
substantial portion of any other party's assets, and such petition assignment or
appointment is not dismissed or vacated with thirty (30) days.
c. Termination for Failure to Promote. The Company may
terminate this Agreement upon written notice if either MCD or Consultant, or
both of them, shall fail to use best efforts to promote, oversee and establish
at least five (5) races pursuant to Section 1 hereof and such failure is not
cured within (60) days of receipt of such notice.
d. 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 or Consultant, MCD and Consultant each shall have the right to terminate
this Agreement and no party to this Agreement shall have any further obligation
hereunder except that the Company must pay any payments due as of the date of
such termination.
4. Miscellaneous.
a. Relationship of Parties. The parties are not employees or
legal representatives of the other parties for any purpose. No party shall have
the authority to enter into any contracts in the name of or on behalf of the
other parties.
b. Nonassignability; Binding on Successors. Any 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, no party shall assign
any of its rights or obligations under this Agreement without the express
written consent of the other parties, 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.
c. 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.
d. Force Majeure. No party shall be liable to the others for
its failure to perform any of its obligations under this Agreement 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 parties of the delay.
e. Waiver. Any waiver (express or implied) by any partyof
any breach of this Agreement shall be in writing and shall not constitute a
waiver of any other or subsequent breach.
f. Entire Agreement; Amendment. This Agreement constitutes
the entire, final, complete and exclusive agreement between the parties and
supersedes 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.
g. 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.
h. 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 receive (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 or Consultant:
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Attention: Xx Xxxxxxx
Telephone:
Telecopy:
If to the Company:
March Motors Manufacturing Company
c/o IDI Distributors, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
XXX
Attention: Xxxxx Xxxxxx
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: Xxxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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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/ M.R. Brensky
______________________________
Its Secretary
MARCH MOTORS
MANUFACTURING COMPANY
By Xxxxx X. Xxxxxx
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Its President/CEO
/s/ Xx Xxxxxxx
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Xx Xxxxxxx ("Consultant")
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