Exhibit 10.6
THIS AGREEMENT is made as of this 4th day of September, 1997 (the "Effective
Date") by and between MCD, an unincorporated private company owned by Xx
Xxxxxxx, aka M.C.D. Limited ("MCD"), and March Motors International, Inc., a
Minnesota corporation with English operations being carried on by its
wholly-owned subsidiary March Motors Limited, a U.K. corporation (March).
WHEREAS, March has been involved over the past couple years in the
design, development and marketing of three distinct motorcycle models (March
Superbike, March Sportbike and March Cruiser) as well as an engine for use in
Indy race cars;
FURTHER WHEREAS, on behalf of March, MCD has been conducting certain
and development work for March on such motorsport products pursuant to a
Development and Marketing Agreement of December 15th, 1995 covering the March
750cc Superbike engine and Indy car engine ("MCD Superbike Agreement") and a
Development and Marketing Agreement of November 1, 1996 covering the 1500cc
cruiser engine and the entire 600cc sportbike engine and bodywork ("MCD
Cruiser/Sportbike Agreement"), (which two agreements are collectively the ("MCD
Agreements"); and
FURTHER WHEREAS, the parties hereto have entered into this Agreement
(i) to make certain material amendments to the prior MCD Agreements, (ii) to
include additional extensive development by MCD covering additional products as
set forth herein, and (iii) to provide for additional consulting by MCD after
January 1, 200
NOW, THEREFORE in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Definitions- Definitions of terms contained in the MCD Agreements
shall retain the meanings set forth in such prior MCD Agreements. The
Development Program for additional motorcycle products covered by this Agreement
shall include the following:
a. Nemesis 200 - MCD shall design and develop a powerful, highspeed,
high performance premium March motorcycle for a top-of-the-line March product
based on integrating the March V-8 engine with a new chassis design with general
specifications including approximately 1500 cc engine capacity, B.H.P. of 261 at
13,000 max RPM, maximum torque of approximately 140 ft.lbs. at 11,000 RPM, four
valves and three spark plugs per cylinder, coil-over-plug ignition, two
camshafts per cylinder bank and a 6-speed gearbox, with engine design features
intended to provide a March motorcycle capable of top roadgoing speeds exceeding
200 mph.
b. March Cruiser - MCD shall design and develop an American-style
"cruiser" powered by the March V-8 engine designed to particularly create an
engine sound typical of American cruisers and a low-slung chassis design,
cylinder banks offset approximately 90 degrees from each other, and a powerful
macho image. Engine capacity shall be approximately 1800 cc with max B.H.P. of
approximately 216 and max RPM of approximately 9000, an electric fuel-injected
management system, two valves per cylinder and a 6-speed gearbox.
c. Three 600cc Motorcycles - In addition to the 600cc March
Sportbike nearing completion pursuant to the prior MCD Cruiser/Sportbike
Agreement, MCD shall design and develop the following three additional products,
all of which shall employ the one-cylinder 600cc engine which now exists and was
developed by MCD:
i. Race Replica. MCD shall design and develop a new chassis and
related components for a March Race Replica to be intended for use in the March
Marque Racing Series.
ii. Super Motard. MCD shall design and develop a March motard-style
bike in order to provide March with this particular product segment in its full
line of motorcycles.
iii. Trail Bike. MCD will design and develop a distinctive March
Trail Bike for off-road motorcycle sporting use.
d. Re-Engineering of Superbike - MCD shall conduct a comprehensive
re-engineering of the March Superbike which is being powered by the 750cc
in-line 4-cylinder engine developed by MCD pursuant to the MCD Superbike
Agreement. Re-engineering of the Superbike shall particularly be cognizant of
its future into the World Superbike racing competition.
2. Development Program.
MCD agrees to use all commercial reasonable efforts to complete
the design and development of the foregoing products within the following
schedules, which include a running production prototype of each product:
Nemesis 200 - June 30, 1998 (full running production prototype)
March Cruiser - June 30, 1998 (full running production prototype)
600cc Race Replica - A model prototype shall be ready for show
purposes by December 31, 1997, with the running production prototype
completed by May 31, 1998.
600cc Super Motard - June 30, 1998 (full running production
prototype)
600cc Trail Bike - August 31, 1998 ( full running production
prototype)
Superbike Re-engineering - June 30, 1998 (full running production
prototype)
All chassis and related components developed by MCD under this
Development Program shall be accompanied by a complete production documentation
package, including specifications and drawings organized and indexed in a
production manual, a complete suppliers' list and xxxx of particulars including
component pricing, and a complete description of the various motorcycle models
including necessary schematics, line drawings and other documentation relating
to all features and components of such products. MCD also shall assist as
necessary in the preparation of professional owners' and distributors' manuals
for the use and repair of March motorcycles and components thereto. Cost
breakdowns for components shall be based on annual sales of 500 units of each
model.
In addition to the above schedule for the Nemesis 200 and March
Cruiser running production prototypes, MCD hereby also agrees to use all
commercially reasonable efforts to complete and deliver a model prototype for
each of these two motorcycles by December 31, 1997.
In addition to the foregoing development, MCD also shall use all
commercially reasonable efforts to design a V-4 750cc high performance
motorcycle engine, with complete working drawings of the V-4 by December 31,
1999. The parties hereto also acknowledge the design of the Indy-car design has
been about 80% completed, and that although the ownership of
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such Indy-car design belongs to March, the completion of design and development
of such engine shall be the subject of a future agreement to be entered into by
the parties hereto. March further acknowledges that in regard to engine
development for motor car engines, MCD is not working exclusively for March, but
rather is free to conduct design and development work for third parties whether
or not they compete with March.
Future Consulting By MCD - The parties hereto further agree hereby
that MCD will provide consulting for March over a three-year period commencing
January 1, 2000 regarding future design, development and marketing of engine and
motorcycle chassis products.
Compensation to MCD - For all development and consulting to be
conducted by MCD under the development covered by this Agreement, March shall
pay MCD:
i. A monthly development payment of Twenty-one Thousand (21,000)
English Pounds with the first payment on September 1, 1997 and each monthly
payment thereafter on the 1st day of each succeeding month, provided that each
such monthly payment is contingent upon MCD's continued compliance with the
foregoing development program. Upon each such payment being made to MCD, March
shall retain all right, title and interest in and to all product and components
and their Specifications and related Intellectual Property. MCD also agrees to
consult with March on a regular basis regarding the progress of the various
segments of this Development Program, and to give March the opportunity to
review and approve the material design features of products covered by this
Agreement prior to commencing prototype models. In the event MCD fails to
develop motorcycle products and engines as required by the foregoing schedules,
March shall have the right to terminate this Agreement pursuant to Section 18
hereunder.
ii. For the consulting services to be provided by MCD over the
aforementioned 3-year period, March shall pay MCD a monthly consulting payment
of Twenty-five Thousand (25,000) English Pounds with the first payment on
January 1, 2000 and each succeeding monthly payment being due on the 1st day of
each month thereafter.
3. MCD Technology.
Regarding any prior MCD technology used for this Development
Program, MCD hereby represents the following: MCD has not licensed any of such
MCD Technology to any third party; MCD has taken all necessary action to protect
such 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 such MCD
Technology; no claim contesting the validity of such MCD Technology has been
made, or is currently outstanding or 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 and to be
developed under this Agreement, or with respect to MCD's business as now
conducted.
March shall retain all right, title and interest in and to the
products being developed hereby and all related intellectual property, and any
related molds, tooling, casts and other equipment used to manufacture working
prototyped or commercial models of such products.
4. Technical Assistance.
MCD shall provide personnel and assistance as necessary to complete
the development of
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all products required by the Agreement and to insure that they perform in
accordance with their respective design specifications, and further MCD shall
provide competent personnel and technical assistance as necessary to assist
March in all phases of assembly and manufacture of such products.
5. Marketing Obligations.
At all times during the term of the Agreement, the parties hereto
will use their best efforts to promote the manufacture, sale, marketing and
distribution of March motorcycles utilizing engines and bodywork developed by
MCD. MCD and March mutually agree to at all times (i) conduct business in a
manner that reflects favorably 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, and (vi) not make any warranty or representation to anyone that
would give the recipient thereof any claim or right of action against the other
party.
6. Amendments to Prior MCD Agreements - The parties hereto agree
that the prior two MCD Agreements between the parties hereto shall be amended
hereby only as follows:
a. Engine Schedule - The 750cc in-line 4-cylinder engine shall be
completely designed by September 30, 1997 to enable MCD to furnish March with
initial detailed working drawings by that date. All development work for the
working prototype of this engine shall be completed by February 28, 1998.
Provided all components and parts are available from suppliers and
subcontractors as needed, MCD shall conduct and deliver to March comprehensive
performance dynamometer test results by February 28, 1998.
The 1500cc V-8 engine shall be completely designed by November 30,
1997 to enable MCD to furnish March with initial detailed working drawings by
that date. All development work for the working prototype of this V-8 engine
shall be completed by June 30, 1998. Provided all components and parts are
available from suppliers and subcontractors as needed, MCD shall conduct and
deliver to March comprehensive performance dynamometer test results by June 30,
1998.
The 600cc single-cylinder engine shall be completely designed by
November 30, 1997 to enable MCD to furnish March with initial detailed working
drawings by that date. All development work for the working prototype of this
engine shall be completed by April 30, 1998. Provided all components and parts
are available from suppliers and subcontractors as needed, MCD shall conduct and
deliver to March comprehensive performance dynamometer tests results by April
30, 1998.
b. Engine Logo Markings - All engines developed by MCD shall carry
the MCD logo on the Cam cover, and the March logo shall be on the outer engine
casing.
c. Royalty Rights - MCD obtained certain royalty rights under the
prior MCD Agreements, and all of such royalty rights are amended as follows:
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In lieu of receiving cash royalty payments as originally provided
for between the parties hereto, MCD shall receive common stock of March equal to
$1,000,000 in U.S. currency, subject to resale pursuant to Rule 144 of the
Securities Act of 1933, with the number of shares and value thereof being based
on the IPO )Initial Public Offering) price of common stock of March. MCD hereby
acknowledges that the delivery of such common stock to MCD shall constitute full
and complete payment of any and all royalties specified in such two prior MCD
Agreements.
d. MCD has submitted certain invoices to March for work and expenses
incurred by MCD incident to development work performed on behalf of March and
which are outstanding as of the date of this Agreement. March shall make full
payment on such invoices to MCD to satisfy such outstanding invoices totaling
approximately 140,000 English pounds as follows:
i) Transfer to MCD of a Chevrolet Corvette already obtained by March
for this purpose;
ii) The value of delivery costs incurred by March to deliver said
car; and
iii) The remaining balance (beyond the value of such Corvette and
related delivery costs) shall be paid to MCD through issuance and
delivery to MCD of March common stock, subject to resale pursuant to
Rule 144, equal to such remaining balance of invoices based on a
value of $3.00 per share of common stock.
MCD shall submit to March proper invoices to verify the amount of
such outstanding balances owed to MCD incident to these expenses yet unpaid.
7. Policy Regarding Future Invoices. Incident to future development
work and expenses incurred by MCD to perform design and development for March
under this Agreement and under the Prior MCD Agreements, MCD shall notify March
of any upcoming expenses and fees prior to becoming obligated thereon, for the
purpose of obtained March approval of such expenses prior to being undertaken.
8. Time Devoted By Xx Xxxxxxx.
Regarding MCD's development and consulting services to be performed
under this Agreement and prior MCD Agreements, MCD and Xx Xxxxxxx hereby agree
that Xx Xxxxxxx will devote a substantial portion of his personal time and
efforts toward the development and marketing of March motor sports products
including the time he devotes incident to the March Marque Racing Series.
9. Melling Becomes Director of March.
Upon execution of this Agreement by the parties hereto, Melling also
agrees to serve on the Board of Directors of March contingent upon his being
covered by a standard "errors and omissions" insurance policy during the time he
serves in such directorship.
10. Acknowledge By Melling.
When Melling receives satisfaction of his outstanding verified
invoices pursuant to Section 6d of this Agreement, MCD and Melling hereby
acknowledge that they have received all payments due them under any and all
contracts between the parties hereto prior to the date hereof.
11. March Marque Racing Series.
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In February 1997 the parties hereto entered into a "March Marque
Racing Series" Agreement for the purpose of promoting the commercial sale of
March motorcycles, and such agreement requires MCD and Melling to establish and
oversee a European racing series featuring the March 600cc Sportbike, with
certain races limited to drivers riding March Sportbikes. The parties hereto
agree that the payment to MCD and Melling under this racing series agreement
shall be increased to 5,000 English Pounds per month instead of $5,000 U.S.
Dollars per month, with such increased payments to commence for the month of
September, 1997 and extend through August, 1999. The parties hereto acknowledge
that this racing series will now be planned for 1999 instead of the initially
planned 1998. Other than the foregoing changes, all other terms and conditions
of the original racing series agreement shall remain in full force and effect.
12. Agreement Not to Compete.
Other than MCD's existing relationship with Motorrad-Und Zweiradwerk GmbH, MCD
agrees that during the term of the Agreement and for a period of five (5) years
after any termination of this Agreement, MCD and Melling will not, directly or
indirectly, engage in any competition with March 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 March is conducting during the term of this Agreement.
The obligations of MCD and Melling under this section 12 of this
Agreement shall apply to any geographic area in which March has engaged in
business during the term of this Agreement through production, promotional,
sales or marketing activity, or otherwise, or has otherwise established its
goodwill, business reputation, or any customer relations. Ownership as a passive
investment of less than 1% of the capital stock of any corporation which is
publicly traded shall not constitute a breach of this Section 12.
MCD and Melling further agree that during the term of this Agreement
they will not, directly or indirectly, assist or encourage any other person in
carrying out any activity that would be prohibited by the foregoing provisions
of this Section 12 if such activity were carried out by MCD xx Xxxxxxx, either
directly or indirectly. In particular, MCD and Melling agree they will not,
directly or indirectly, induce any employee of MCD to carry out, directly or
indirectly, any such activity.
13. Confidentiality.
Each party hereto 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 which is 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, any information that is reasonably understood by it to be confidential,
including the MCD Technology, on the one hand, and the Specifications and
Company (March) Technology, on the other hand.
The term "Confidential Information" should not include information
which (i) is or becomes generally known or available through no act or failure
to act by the receiving party, (ii)
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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 of disclosure, (iv) is
required to be disclosed by court order or otherwise by law, but in such event
notice shall be provided at least ten (10) days in advance of such disclosure.
Each party shall limit access to Confidential information to those
of its employees or agents (including subcontractors) who have a definite "need
to know", or to its sublicensees to the extent necessary to allow any such
sublicensee to fully use their sublicenses, and who also are under a written
obligation to keep such information confidential, with such written obligation
to be at least as restrictive as those obligations specified in this Section 13
of the Agreement.
The parties hereto particularly acknowledge to each other that a breach or
threatened breach of this Section 13 by any of the parties hereto may cause the
nonbreaching party to suffer irreparable hard and injury or such nature that no
remedy at law will adequately cure or compensate the nonbreaching party. In such
event, the nonbreaching party 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.
14. Warranties.
Warranties By MCD - MCD warrants that, for a period of five (5)
years from the date of delivery of the working prototypes of engines, bodywork
or any other components developed under this Agreement, such prototypes shall
conform to their specifications. Moreover, March is permitted to provide its
end-users the warranty granted to it hereunder. March also hereby agrees to
indemnify and hold harmless MCD for any warranty or representation made by March
that exceeds such warranty pass-through rights hereunder. The provisions of this
Section 14 regarding warranties of MCD shall survive the expiration or
termination of this Agreement for any reason.
15. Intellectual Property Indemnification.
MCD shall indemnify and hold harmless March for any damages finally
awarded or settlement amounts paid in respect of any loss, liability or expense
suffered or incurred by March or any of its customers for any patent, copyright,
trade secret or similar infringement claim brought against March or any of its
customers in respect to the use by March or any such customer of the engines,
bodywork or any other components developed hereunder or of any of the MCD
Technology (but only to the extent that such infringement claim involves the
engines, bodywork or other components developed hereunder), or any material
supplied by MCD to March pursuant to this Agreement. March shall notify MCD as
soon as practicable of any such infringement claim brought against either March
or any of its customers. If March defends such a claim, then, if requested by
March, MCD shall provide March with full documentation and cooperation to assist
March in defending any such claim. If any item furnished hereunder, including
without limitation the Specifications or products supplied or developed under
this Agreement, is in MCD's opinion likely to or does become subject of a claim
for infringement of any patent, copyright or other proprietary right, MCD may,
at its option and expense, procure for March 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.
16. Compliance With Laws.
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In Connection with and in furtherance of its marketing and
manufacturing activities contemplated hereunder, each party hereto shall be
responsible for obtaining, and shall use all reasonable commercial efforts to
obtain, any and all required governmental authorizations, including without
limitation any import licenses and foreign exchange permits, and if applicable,
shall be responsible for filing and registering this Agreement with the
appropriate authorities.
17. Improvements and Inventions.
MCD and Melling shall promptly notify and fully disclose to March any and all
ideas, designs, practices, processes, improvements and inventions (all
hereinafter referred to as "inventions"), whether or not they are believed to be
patentable, which MCD xx Xxxxxxx have conceived or reduced to practice during
the period of this Agreement, or which are conceived or reduced to practice
within six (6) months after termination of this Agreement, if such inventions
are related to a product or process which was worked upon by MCD xx Xxxxxxx
incident to this Agreement xx Xxxxxxx'x consulting arrangement with March.
All such inventions shall be the sole and exclusive property of
March or its nominee, and during the term of this Agreement and thereafter,
whenever requested to do so by March, Melling and/or MCD shall execute and
assign all applications, assignments or other instruments necessary to enable
March to apply for and obtain patents, copyrights or any other proprietary
rights in and to such inventions. MCD and Melling will also render whatever aid
and assistance to March is needed regarding any interference or litigation
pertaining to such inventions, and all expenses reasonably borne by MCD xx
Xxxxxxx at the request of March shall be borne by March.
18. Term, Termination and Effect of Termination.
a. Term - This Agreement shall commence upon its execution by the
parties hereto and, subject to earlier termination as provided herein, shall
continue until the date which is two (2) years after such effective date.
b. Termination on Bankruptcy - Either party hereto 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 the
other party or a substantial portion of the assets of the other party, and such
petition, assignment or appointment is not dismissed or vacated within thirty
(30) days.
c. Termination for Failure to Develop Specifications. - If March
terminates this Agreement for failure by MCD to develop the Specifications or
the products, engines and other components as required herein, this Agreement
shall be terminated and March shall be entitled to all rights in and to the
Specifications, the engines and other products or components, all molds, tooling
dies casts and all Intellectual Property therein, developed to data pursuant to
this Agreement.
d. Effect of Material Breach by MCD - If MCD materially breaches
this Agreement, March shall have the right to terminate this Agreement and March
shall be entitled to all rights in and to the Specifications, the engines and
other products or components, and all molds, tooling, dies, casts and all
Intellectual Property therein, developed to date pursuant to this Agreement, as
well as the continuing right to the license granted to March in Section 3
hereunder regarding MCD Technology.
e. Effect of Material Breach by March - If March materially breaches
this Agreement and fails to correct such default within sixty(60) days after
written notice of default is provided to
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March by MCD, MCD shall have the right at its sole option to terminate this
Agreement and be entitled to damages caused by such termination, including
damages that may result from the term of this Agreement.
f. Surviving Rights - Termination or expiration of this Agreement
shall not affect the 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, the engines and other products and components developed
hereunder, and all molds, tooling, casts, dies and all Intellectual Property
therein, as well as the continuing right to the license granted to March in
Section 3 hereunder regarding MCD Technology, and (iii) no party shall be
relieved of its obligations under Sections 13 (Confidentiality),
14((Warranties), 15 (Intellectual Property Indemnification), 16 ( Compliance
With Laws), and 19 (Choice of Governing Law).
19. General.
a. Relationship of Parties - The respective parties hereto are not
employees or legal representatives of the other party for any purpose, and
neither party hereto shall have the right or authority to enter into any
contracts or understandings in the name of or on behalf of the other party.
b. Nonassignability; Binding on Successors - Either party hereto may
assign or otherwise transfer this Agreement or rights herein 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 other business combination or otherwise. Except
as permitted in the preceding sentence, neither party shall assign any of its
rights or obligations hereunder without the express written consent of the other
party, which consent shall not be unreasonably withheld, and any attempted
assignment without such consent shall be void. In the event of any permitted
assignment or transfer under this Agreement, this Agreement and its provisions
shall be binding upon the executors, heirs, representatives, administrators and
assigns of the parties hereto.
c. Waiver and Severability -Any waiver (express or implied) by
either party or any xxxxxx of this Agreement or its terms shall be in writing
and shall not constitute a waiver of any other subsequent breach.
In the event any provision of this Agreement is held to be invalid
or unenforceable for any reason whatsoever, the valid or enforceable portion
thereof and any remaining provisions of this Agreement will remain in full force
and effect.
d. Force Majeure -Neither party shall be liable to the other party
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 reasonable control, including without
limitation, earthquakes, governmental regulation, fire, flood, labor
difficulties, civil disorder or war, acts of God, or otherwise, provided the
party experiencing the delay promptly notifies the other party of the delay.
e. Entire Agreement: Amendment -This Agreement constitutes the
entire, final, complete and exclusive agreement between the parties hereto along
with the prior MCD Agreements, and
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supercedes any previous understandings or representations of the parties hereto,
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 hereto.
f. Counterparts -This Agreement may be executed by the parties
hereto in counterparts with the same force and effect as if each of the
signatures to this Agreement had executed the same instrument.
g. Cumulative Rights and Remedies -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.
h. Captions and Section References -The section headings appearing
this Agreement are inserted only for the convenience and in no way to define,
limit, construe, or describe the scope or extent of such section or in any way
affect the meaning of such section.
i. Publicity -All notices to third parties and other publicity or
releases concerning this Agreement or its subject matter shall be jointly
planned and agreed to by the parties hereto. 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 such disclosure is required by securities or other laws.
All related communications within each party's organization shall be of a
strictly confidential nature.
j. 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 other documents, notices,
or statements of account required by this Agreement shall be in English and not
construed by any other language. Any dispute or difference arising between the
parties hereto regarding this Agreement will be referred to binding arbitration
to be conducted in London, England, in accordance with the International Chamber
of Commerce, and the award of any arbitrator in such arbitration shall be
enforceable in any court having jurisdiction over the party (or the party's
property) against whom enforcement is sought.
k. Notices -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 mailed by first
class mail which is registered or certified, postage prepaid, or (iv) three
business days after deposit with a commercial overnight carrier, with written
verification of receipt. All notices shall be addressed as follows:
If to MCD: If to March:
---------- ------------
M.C.D. Limited March Motors International, Inc.
C/O Al Meiling 0000 Xxxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx Xxxx Xxxxxxx, XX 00000
Rochdale Telephone: (000) 000-0000
Lanc, England OL126XD Telecopy: (000) 000-0000
Telephone: 00000 000000
Telecopy: 01705 868125
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or to such other address as the person to whom notice is to be given may have
furnished to the other party in writing in accordance herewith, except that such
changes of address will be effective only upon receipt. A notice given in some
means other than specified herein shall be deemed duly given when and if
actually received by the addressee.
l. Authority to Enter Into Agreement; No Prior Grants -Each party
hereto represents and warrants to the other party that it has the right, full
power and lawful authority to enter into this Agreement for all purposes stated
herein, and to carryout its obligations hereunder. Each party hereto further
warrants inconsistent in any manner whatsoever with the terms and provisions of
this Agreement and that it has not make any prior grants of rights in or to the
MCD Technology, the Specifications and engines and other components covered by
this Agreement, on the one hand, or the March Technology, on the other hand, to
any third party which are inconsistent with or would interfere with the
performance of any part of this Agreement by any party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
M.C.D. Limited
By Xx Xxxxxxx
---------------
Xx Xxxxxxx, Its Principle
MARCH MOTORS INTERNATIONAL, INC. and March
Motors Limited, its wholly-owned subsidiary
By Xxxxxx Xxxxxxxxx
----------------------
Xxxxxx Xxxxxxxxx,
Chairman and Managing
Director
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