[Confidential treatment is being sought for certain portions of this Exhibit, as
indicated by a "[*]" symbol and footnoted as "omitted pursuant to Rule 406."
Such omitted portions have been filed with the Securities and Exchange
Commission.]
EXHIBIT 10.30
This Agreement is entered into as of this 10 day of March 2000 by and
between Prolong Super Lubricants, Inc., a Nevada corporation, (hereinafter
referred to as "Prolong", with a principal office at 6 Thomas, Xxxxxx, XX,
00000, and Galles/ECR Racing, LLC, with a principal office at 0000 Xxxxx Xxxx.,
XX, Xxxxxxxxxxx, XX 00000 (hereinafter "Galles/ECR").
WHEREAS, Xxxxxx/ECR represents that it owns sufficient equipment and has
retained all necessary personnel to enter a Indy Racing League (IRL) race
vehicle in and compete in all such 2000 events.
WHEREAS, Sponsor is engaged in the business of formulating, producing and
selling lubricants and car care appearance products, which Xxxxxx/ECR intends to
use in its race vehicles.
WHEREAS, the parties desire to enter into an agreement under which Prolong
will agree to provide support for race vehicles owned by Xxxxxx/ECR and an
affiliated race Xxxxxx/ECR in 2000 racing events.
1. Sponsorship. Xxxxxx/ECR hereby grants Prolong an associate sponsorship and
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promotional rights for the Driver, subject to Prolong getting approval from
Driver's attorney, Xxxxxx/ECR, race cars and support vehicles, all as more
fully provided in this Agreement.
2. Racing Obligations. Xxxxxx/ECR represents and warrants that it owns
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sufficient equipment, has retained or will retain the services of personnel
to perform and hereby covenants to perform the following racing
responsibilities:
a) Xxxxxx/ECR shall own and make available one or more race vehicles to
compete in the Racing Events herein defined, and shall provide garage,
repair and storage facilities for the Race Car.
b) Xxxxxx/ECR shall provide all parts, accessories, equipment, trailers
and transporters necessary to enter all Racing Events, and shall service,
maintain and repair the Race Cars so that they are in good condition and
repair suitable for use in all Races.
c) Xxxxxx/ECR will retain the services, for all Racing Events throughout
the term of this Agreement, personnel necessary to enter all Races.
d) Xxxxxx/ECR will carry Prolong advertising prominently displayed on the
competitive vehicle mentioned in the first paragraph of this Agreement.
Three (3) decals shall be
Exhibit 10.30
displayed on the vehicle; one (1) on the nose of the vehicle and one (1) on
each side of the vehicle on the mirrors (Dimensions and location of race
car decals are a follows: Nose 4 1/4" by 1 1/2"; Mirrors, both sides 3 1/2"
by 1 1/2".) Prolong patches will be worn by the driver, the team members,
and the crew on the fire suits and crew shirts in lower center "back" in
Prolong graphics and colors (dimensions as provided by Prolong). Prolong
identification will be displayed on both sides of the vehicle transporter
(dimensions 30" by 8") and on the scoring stand (dimensions 12" x 3").
Prolong will supply patches and decals to Xxxxxx/ECR. All dimensions are
approximate. Should it elect to do so, Prolong reserves the right to
allocate a portion of its signage space to another entity, providing prior
approval by Xxxxxx/ECR.
e) Xxxxxx/ECR shall provide crew and driver uniforms which feature Prolong
identification and shall require the Driver and all crew members to wear
such uniforms during all races, and during qualifying and practice runs on
Saturdays and Sundays of race weekends. No identification or logos shall
appear on the Driver or crew uniforms that conflict with Prolong Super
Lubricants. For the year 2000, Prolong will be placed on the Driver and
crew uniforms.
f) Xxxxxx/ECR shall enter, use their best efforts to qualify in and race
the Race Car in each 2000 Racing Event.
3. Promotional Responsibilities of Xxxxxx/ECR. Xxxxxx/ECR and its employees
------------------------------------------
shall provide the following promotional services for Prolong.
a) All appearances by the Driver, Xx Xxxxx, Xx., on behalf of Prolong
shall be subject to the reasonable approval of Xxxxxx/ECR, and shall be
separately negotiated with Driver's attorney, and shall be consistent with
and designed to preserve and xxxxxx the good name, reputation, and public
image of same. All appearances shall be scheduled during normal business
hours unless otherwise approved by Xxxxxx/ECR, not to exceed one hour in
length and will not conflict or interfere with racing activities.
Prolong agrees to attempt to give Xxxxxx/ECR at least 10 days prior notice
of the times and places the Driver is to appear. Xxxxxx/ECR agrees to
exercise its best efforts to comply with such requests and agrees not to
withhold its consent to any appearance unreasonably, consistent with the
Driver's travel and racing schedule.
b) Xxxxxx/ECR shall not, during the term of this Agreement, endorse,
participate in the advertising of or permit its or their names, trademarks,
likenesses, logos or other identifying marks to be used in the advertising
or promotion of any lubricant excluding motor oil, gearbox oil grease or
parts cleaner or car care appearance products, other than that of Prolong.
The Driver shall not drive any race car or wear any uniform bearing the
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identification of any manufacturer of lubricants or car care appearance
products other than Prolong without the written consent of Prolong.
c) The Driver and other crew members shall wear uniforms bearing Prolong
identification in the winner's circle or designated winner's area at all
race tracks, and Xxxxxx/ECR shall distribute hats bearing Prolong's
identification (furnished by Prolong) to be worn, when appropriate, by some
or all crew members and associated personnel in all such areas.
d) Xxxxxx/ECR shall have no right to use or license to third parties any
of Prolong's names, logos, trademarks or other identifying marks without
the prior consent of Prolong. Prolong also agrees that Xxxxxx/ECR may use
Prolong's name and trademark for the purpose of producing souvenir items
that display the Xxxxxx/ECR's race vehicle.
4. Other Sponsor Rights. In addition to the other rights granted to Prolong,
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Xxxxxx/ECR hereby grants Prolong the following rights and privileges:
a) Prolong shall have the right at no fee or compensation to Xxxxxx/ECR
or others, to use the names, trademarks, photographs of and likenesses of
Xxxxxx/ECR, other Xxxxxx/ECR members and the Race Car in Prolong's
advertising (including print, point of purchase, radio and television) and
promotional material during the term of this Agreement with the prior
written approval of Xxxxxx/ECR, which consent will not be unreasonably
withheld. Prolong will negotiate separately with Driver regarding his
approvals. Xxxxxx/ECR warrants that it has obtained all releases and/or
consents necessary for this purpose, and will make such available to
Prolong upon request. Prolong may promote its sponsorship in any manner it
deems proper, subject to the prior approval of Xxxxxx/ECR.
b) During the term of this Agreement, and without payment or
consideration other than the sponsorship consents to the non-exclusive use
(including but not limited to reproduction, display, broadcasting,
televising, publication and distribution) in any media of Xxxxxx/ECR's
biographical information, photograph and any other likeness including
caricatures, either in whole or in part and in any form, style, size and
color selected by Prolong and approved in writing by Xxxxxx/ECR (which
approval shall not be unreasonably withheld). Xxxxxx/ECR agree to
respective names, biographical information, and photographs or likenesses
and the name and photograph or likeness of its race vehicle may be used for
the aforesaid purposes alone or in conjunction with each other and/or with
sketches, cartoons, captions, films, artwork, textual matter or other
photographs.
c) During the term of this Agreement, Xxxxxx/ECR shall not endorse,
participate in the advertising or promotion of, or permit its name,
likeness, logo, trademark or other identifying marks to be used in the
advertising or promotion of any lubricant (excluding motor oil) other than
that of Prolong.
d) Prolong will provide technical and sales training to Xxxxxx/ECR
representatives, or their assigns, at a time/location of mutual
convenience.
3
5. Fee. In consideration for the obligations and services of Xxxxxx/ECR and
----
the sponsorship rights granted herein, Prolong agrees to provide a sponsorship
for the year 2000 racing season as follows:
Prolong will support Xxxxxx/ECR's racing activities with a one (1)
year agreement covering 2000. The amounts and payment schedules are
as follows:
A. 2000 - $[*] Product/Cash
1) $[*] in Prolong Product (Lubricant and Appearance) at
current Wholesaler Distributor price.
. $[*] in product at current Wholesaler Distributor price
to NAPA. XXXXXX/ECR Racing to be compensated from
proceeds of sales. Payment by Prolong to Xxxxxx/ECR to
be made on or before June 1, 2000.
. $[*] in additional product at current Prolong
Wholesaler Distributor price to be ordered on or before
October 1, 2000. This allotment may be diverted to sale
by NAPA, at the option of Xxxxxx/ECR (if diverted to
sale, cash to be received by Xxxxxx by October 1,
2000).
2) $[*] in cash to be paid on or before July 1, 2000.
B. Prolong will pursue additional funding for Xxxxxx/ECR through a
phone card program and a collector Xxxxxx/ECR race car program to
sponsors and their normal customer base.
1) Bonus -- When Prolong funds raised from the sale of the
Prolong/Xxxxxx/ECR/AUJ collectable phone card exceed
$[*] Prolong will further compensate Xxxxxx/ECR Racing an
additional $[*] Prolong to provide accounting records of
these sales quarterly. Prolong shall grant to Xxxxxx/ECR the
right to audit these sales. This section shall survive the
termination of this Agreement.
C. Prolong agrees to the sale of additional product to Xxxxxx/ECR or
its affiliates at current Wholesaler Distributor (WD) pricing.
D. Any re-sale of Prolong products by Xxxxxx/ECR must adhere to
applicable Prolong Manufacturers Advertised Pricing (MAP).
4
In the event Xxxxxx/ECR should fail to enter a scheduled sanctioned event
during the contract period, other than due to circumstances beyond the
Control of Xxxxxx/ECR, Prolong shall be entitled to a refund of a pro rata
portion of the applicable year's sponsorship fee for each race missed,
based upon the number of scheduled sanctioned events for the applicable
year.
6. Products. Upon request of Xxxxxx/ECR and at no charge, Prolong shall
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provide Xxxxxx/ECR with Prolong products as necessary for use in the Racing
Events. Xxxxxx/ECR agrees that no lubricant, excluding motor oil, gearbox
oil, grease or parts cleaner, other than Prolong shall be used in
Xxxxxx/ECR's race cars during the term of this Agreement as long as the
Prolong product is technically capable for the application. Products shall
be inclusive of the full line of Prolong products, as requested, in
quantities as mutually agreed by Prolong and Xxxxxx/ECR.
7. Term and Option to Renew. The term of this Agreement shall commence upon
------------------------
the date hereof and shall continue in effect through December 31, 2000,
unless earlier terminated as hereafter provided.
Prolong shall be given the first right of refusal to sponsor Xxxxxx/ECR,
the Race Car for the year 2001 season, on similar terms and conditions, the
fee to be reasonably negotiated.
8. Sole Risk. Xxxxxx/ECR acknowledges and agrees that race cars entered in
---------
any Race by Xxxxxx/ECR shall be entered for Xxxxxx/ECR's sole account and
risk. Neither Xxxxxx/ECR nor its Driver, mechanics, crew, other employees
or shareholders shall make any claim against Prolong for salary or other
payment except as specifically provided herein.
Xxxxxx/ECR shall obtain from its Driver and other employees appropriate
releases in form acceptable to Prolong absolving Xxxxxx/ECR and Prolong and
their subsidiaries, affiliates, officers, employees and shareholders of all
liability for damages, injury or death suffered by the Driver or other
employees as a result of or arising out of racing related activities.
9. Liabilities and Indemnity. Xxxxxx/ECR shall be solely responsible for all
-------------------------
claims and liabilities, of whatever kind, arising out of or incidental to
its racing activities, including but not limited to, claims for personal
injury and property damage of Xxxxxx/ECR, its Driver, Xxxxxx/ECR's
employees, spectators, other racing teams and other third parties.
Xxxxxx/ECR further agrees to defend, indemnify, and save Prolong, its
officers, directors, agents and employees harmless from and against any and
all claims, actions, suits, judgments, cost and fees, including reasonable
attorney's fees, which arise from the acts and/or omissions of Xxxxxx/ECR,
its Driver, mechanics, employees, agents, contractors or third parties
under its control or which arise out of or are related to Xxxxxx/ECR's
racing activities, transportation to and from Races, and all other acts or
omissions of Xxxxxx/ECR and Xxxxxx/ECR's employees and agents. The
indemnified claims include, but are not limited to, claims of Xxxxxx/ECR,
the Driver, Xxxxxx/ECR's employees, race spectators, other
5
racing Xxxxxx/ECRs and other third parties for personal injury, death
and/or property damage.
10. Insurance. Xxxxxx/ECR shall obtain and keep in force a policy or policies
---------
of insurance of the following types and limits to cover the Race Cars,
Xxxxxx/ECR transport vehicles, and all activities of Xxxxxx/ECR, the
Xxxxxx/ECR and all of the Xxxxxx/ECR's employees and agents during this
Agreement:
a) Collision (excluding on track) or casualty insurance covering the Race
Cars and Xxxxxx/ECR transport vehicles, for their full replacement cost.
b) Commercial general and automobile liability in combined single limits
of at least $2 million.
Such policies shall provide coverage on an occurrence basis and shall
include Prolong as a named insured. No such liability insurance shall be
deemed in any way to limit Xxxxxx/ECR's obligations under Paragraph 9 of
this Agreement. Upon request of Prolong from time to time, Xxxxxx/ECR shall
deliver satisfactory proof that such insurance is in full force and effect.
c) Worker's Compensation - as required by law.
11. Compliance with Law. Xxxxxx/ECR shall, at its sole expense, comply with
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all federal, state and local laws and regulations applicable to its
business and racing activities contemplated hereby.
12. Termination. In the event of the occurrence of any of the following,
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Prolong shall have the right to terminate this Agreement by written notice
to Xxxxxx/ECR:
a) Xxxxxx/ECR should breach this Agreement in any respect, which breach
shall remain uncured for a period of 10 days following written notice
thereof by Prolong.
b) Proceedings seeking to have Xxxxxx/ECR declared bankrupt or insolvent
should be brought by or against Xxxxxx/ECR, or Xxxxxx/ECR should cease
doing business for any reason;
c) Xxxxxx/ECR should fail to enter two consecutively scheduled sanctioned
events, unless such failure is caused by matters beyond the reasonable
control of Xxxxxx/ECR;
Upon any such termination of the Agreement, Prolong shall be entitled upon
demand to an immediate refund of any unearned portion of the sponsorship
fee determined in accordance with paragraph 5
6
13. Remedies of Xxxxxx/ECR. In the event of the occurrence of any of the
----------------------
following, Xxxxxx/ECR shall have the rights set forth below:
a) If Prolong should breach this Agreement in any respect, which breach
shall remain uncured for a period of ten (10) days following written notice
thereof by Xxxxxx/ECR, Xxxxxx/ECR shall have the right to terminate this
Agreement at any time thereafter. In addition, after any such breach but
prior to termination by Xxxxxx/ECR, Prolong shall remain obligated to
perform under this Agreement, but Xxxxxx/ECR shall have the right to remove
Prolong's name from the car and to terminate any exhibition of Prolong's
name by the Xxxxxx/ECR, until such breach is cured.
14. Independent Contractor. Xxxxxx/ECR's relationship to Prolong is that of an
----------------------
independent contractor, and this Agreement is not intended to and shall not
be deemed to create any agency, employment, partnership or joint venture
relationship between the parties hereto. Xxxxxx/ECR's Driver, mechanics,
and other employees are not intended to be and shall not be deemed to be
employees or agents of Prolong.
15. Notices. Any notice required by this Agreement shall be deemed duly given
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if deposited by certified mail, postage prepaid, addressed as follows:
If to Galles/ECR:
Galles/ECR Racing, LLC
0000 Xxxxx Xxxx., XX
Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
Manager
If to Prolong:
Prolong Super Lubricants, Inc.
6 Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Executive Vice President
16. Entire Agreement. This Agreement incorporates the complete and final
----------------
agreement of the parties relative to the subject matter hereof, and no
covenant not set forth herein shall be binding. This Agreement may not be
amended or supplemented other than in writing signed by both parties
hereto.
17. Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of the parties hereto and their respective successors and assigns;
provided, however, that Xxxxxx/ECR shall have no right to assign this
Agreement or delegate the performance of any duty hereunder, by operation
of law or otherwise.
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18. Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New Mexico.
19. Captions. The captions herein are inserted for convenience of reference
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only, and shall not be used in interpreting any of the terms of the
Agreement.
20. No Waiver. Any failure or delay in exercising any right or remedy
---------
hereunder shall not be deemed to be a waiver of such right or remedy or of
any other right or remedy.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
this 10 day of March, 2000.
WITNESS:
/s/ Xxxxxx Xxxx 3-13-00
__________________________ ------------------------ ------------
Date
ATTEST: XXXXXX/ECR RACING, LLC
/s/ Xxxxxx Xxxx 3-13-00
__________________________ ------------------------ ------------
Xxxxxx Xxxx Date
Vice President
ATTEST: PROLONG SUPER LUBRICANTS
/s/ Xxxxxx X. Xxxxxxxxx 3-10-00
__________________________ ------------------------ ------------
Xxxxxx X. Xxxxxxxxx Date
Executive Vice President
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