-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BGrmfGg8nVkmWTK8xGxjOv/mg6bN6UVohlfthTBQIfH9TnZqufgjH135H8MNaxyH 57epiKizcDfFkw8bnLdg3w== 0000929624-98-001584.txt : 19980929 0000929624-98-001584.hdr.sgml : 19980929 ACCESSION NUMBER: 0000929624-98-001584 CONFORMED SUBMISSION TYPE: SC 13E4/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980928 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GLOBAL MOTORSPORT GROUP INC CENTRAL INDEX KEY: 0000879360 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MOTOR VEHICLE SUPPLIES & NEW PARTS [5013] IRS NUMBER: 941716138 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13E4/A SEC ACT: SEC FILE NUMBER: 005-42821 FILM NUMBER: 98716548 BUSINESS ADDRESS: STREET 1: 16100 JACQUELINE COURT CITY: MORGAN HILL STATE: CA ZIP: 95037 BUSINESS PHONE: 4087780500 MAIL ADDRESS: STREET 1: 16100 JACQUELINE CT CITY: MORGAN HILL STATE: CA ZIP: 95037 FORMER COMPANY: FORMER CONFORMED NAME: CUSTOM CHROME INC /DE DATE OF NAME CHANGE: 19930328 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GLOBAL MOTORSPORT GROUP INC CENTRAL INDEX KEY: 0000879360 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MOTOR VEHICLE SUPPLIES & NEW PARTS [5013] IRS NUMBER: 941716138 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13E4/A BUSINESS ADDRESS: STREET 1: 16100 JACQUELINE COURT CITY: MORGAN HILL STATE: CA ZIP: 95037 BUSINESS PHONE: 4087780500 MAIL ADDRESS: STREET 1: 16100 JACQUELINE CT CITY: MORGAN HILL STATE: CA ZIP: 95037 FORMER COMPANY: FORMER CONFORMED NAME: CUSTOM CHROME INC /DE DATE OF NAME CHANGE: 19930328 SC 13E4/A 1 AMENDMENT #4 TO SCHEDULE 13E-4 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- SCHEDULE 13E-4/A AMENDMENT NO. 4 (FINAL AMENDMENT) ISSUER TENDER OFFER STATEMENT PURSUANT TO SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 ---------------- GLOBAL MOTORSPORT GROUP, INC. (NAME OF ISSUER) GLOBAL MOTORSPORT GROUP, INC. (NAME OF PERSON(S) FILING STATEMENT) ---------------- COMMON STOCK, PAR VALUE $0.001 PER SHARE (AND ASSOCIATED PURCHASE RIGHTS) (TITLE OF CLASS OF SECURITIES) ---------------- 378937106 (CUSIP NUMBER OF CLASS OF SECURITIES) ---------------- JAMES J. KELLY, JR. EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER GLOBAL MOTORSPORT GROUP, INC. 16100 JACQUELINE COURT MORGAN HILL, CALIFORNIA 95037 TELEPHONE: (408) 778-0500 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT) WITH COPIES TO: KENTON J. KING, ESQ. THOMAS D. MAGILL, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM GIBSON, DUNN & CRUTCHER LLP LLP 4 PARK PLAZA JAMBOREE CENTER FOUR EMBARCADERO CENTER, SUITE 3800 IRVINE, CALIFORNIA 92614 SAN FRANCISCO, CALIFORNIA 94111 (949) 451-3800 (415) 984-6400 ---------------- July 13, 1998 (Date Tender Offer First Published, Sent or Given to Security Holders) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SCHEDULE 13E-4 INTRODUCTION This Amendment No. 4 (Final Amendment) amends and supplements and constitutes the final amendment to, the Issuer Tender Offer Statement on Schedule 13E-4 (the "Statement") filed on July 13, 1998 relating to the offer by Global Motorsport Group, Inc., a Delaware corporation (the "Company"), to purchase up to 4,820,000 outstanding shares ("Shares") of its common stock, par value $0.001 per Share (the "Common Stock"), including the associated rights to purchase shares of Common Stock issued pursuant to that certain Rights Agreement, dated as of November 13, 1996, by and between the Company and American Stock Transfer and Trust Company (the "Rights"), at $21.75 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated July 13, 1998, as amended (the "Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1), and in the related Letter of Transmittal, a copy of which is attached hereto as Exhibit (a)(2) (which together constitute the "Offer"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Schedule 13E-4. ITEM 8. ADDITIONAL INFORMATION. Item 8(e) is hereby amended and supplemented by adding thereto the following: "The Offer expired at 5:00 p.m., New York City time, on Friday, September 25, 1998 (the "Expiration Time"), and will not be extended. No Shares were purchased and all Shares tendered and not properly withdrawn as of the Expiration Time will be returned by the Depositary. As of the Expiration Time, 4,067,747 Shares were validly tendered and not properly withdrawn. On September 28, 1998, the Company issued a press release announcing the termination of the Merger Agreement pursuant to that certain Termination and Release Agreement, dated as of September 25, 1998 (the "Termination Agreement"), by and among the Company, GMS Acquisition Corp. and Purchaser, and the expiration of the Offer. The full text of such press release and the Termination Agreement are filed herewith as Exhibits (a)(12) and (c)(5), respectively, and are incorporated herein by reference." ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. Item 9 is hereby amended and supplemented by adding thereto the following Exhibits: (a)(12) Press Release issued by the Company on September 28, 1998. (c)(5) Termination and Release Agreement, dated as of September 25, 1998, by and among the Company, Fremont Acquisition Company III, LLC and GMS Acquisition Corp. 2 ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.* (a)(1) Offer to Purchase, dated July 13, 1998, as amended. (a)(2) Letter of Transmittal, dated July 13, 1998. (a)(3) Letter to Clients, dated July 13, 1998, for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees, dated July 13, 1998. (a)(5) Notice of Guaranteed Delivery, dated July 13, 1998. (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(7) Press Release issued by the Company and Fremont Acquisition Company III, LLC on June 29, 1998. (a)(8) Form of Summary Advertisement, as published in the Wall Street Journal on July 13, 1998. (a)(9) Fairness Opinion of Cleary Gull Reiland & Devitt, Inc., dated June 28, 1998 (attached as Annex A to the Offer to Purchase filed as Exhibit (a)(1) above). (a)(10) Letter to Stockholders, dated July 13, 1998, from Joseph F. Keenan, Chairman of the Board of the Company. (a)(11)** Press Release issued by the Company on August 11, 1998. (a)(12) Press Release issued by the Company on September 28, 1998. (b)(1) Commitment letter, dated June 28, 1998, by Bank of America National Trust and Savings Association, Bankers Trust Company and BancAmerica Robertson Stephens to Fremont Acquisition Company III, LLC. (b)(2) Letter, dated June 27, 1998, by BT Alex. Brown Incorporated and BancAmerica Robertson Stephens to Fremont Acquisition Company III, LLC. (c)(1) Amended and Restated Agreement and Plan of Merger, dated as of June 28, 1998, by and among the Company, Fremont Acquisition Company III, LLC, and GMS Acquisition Corp. (c)(2) Stockholder Agreement, dated as of June 28, 1998, by and among Fremont Acquisition Company III, LLC and each individual whose name appears on the signature pages thereto. (c)(3) Mutual Confidentiality Agreement, dated April 8, 1998, by and between the Company and Fremont Partners. (c)(4) Rights Agreement, dated as of November 13, 1996, by and between the Company and American Stock Transfer and Trust Company. (c)(5) Termination and Release Agreement, dated as of September 25, 1998, by and among the Company, Fremont Acquisition Company III, LLC and GMS Acquisition Corp. (d) None. (e) Not applicable. (f) None.
- -------- * Except for Exhibits (a)(11), (a)(12) and (c)(5), each of the exhibits was filed previously with the Statement as originally filed with the Securities and Exchange Commission on July 13, 1998. ** Filed with the Securities and Exchange Commission on August 12, 1998. 3 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Date: September 28, 1998 GLOBAL MOTORSPORT GROUP, INC. /s/ Joseph F. Keenan By: _________________________________ Joseph F. Keenan Chairman of the Board of Directors 4 EXHIBIT INDEX
EXHIBIT NUMBER* DESCRIPTION PAGE -------- ----------- ---- (a)(1) Offer to Purchase, dated July 13, 1998, as amended............ (a)(2) Letter of Transmittal, dated July 13, 1998.................... (a)(3) Letter to Clients, dated July 13, 1998, for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees, dated July 13, 1998....................... (a)(5) Notice of Guaranteed Delivery, dated July 13, 1998............ (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9........................................ (a)(7) Press Release issued by the Company and Fremont Acquisition Company III, LLC on June 29, 1998............................. (a)(8) Form of Summary Advertisement, as published in the Wall Street Journal on July 13, 1998...................................... (a)(9) Fairness Opinion of Cleary Gull Reiland & Devitt, Inc., dated June 28, 1998 (attached as Annex A to the Offer to Purchase filed as Exhibit (a)(1) above)................................ (a)(10) Letter to Stockholders, dated July 13, 1998, from Joseph F. Keenan, Chairman of the Board of the Company.................. (a)(11)** Press Release issued by the Company on August 11, 1998........ (a)(12) Press Release issued by the Company on September 28, 1998..... (b)(1) Commitment letter, dated June 28, 1998, by Bank of America National Trust and Savings Association, Bankers Trust Company and BancAmerica Robertson Stephens to Fremont Acquisition Company III, LLC.............................................. (b)(2) Letter, dated June 27, 1998, by BT Alex. Brown Incorporated and BancAmerica Robertson Stephens to Fremont Acquisition Company III, LLC.............................................. (c)(1) Amended and Restated Agreement and Plan of Merger, dated as of June 28, 1998, by and among the Company, Fremont Acquisition Company III, LLC, and GMS Acquisition Corp.................... (c)(2) Stockholder Agreement, dated as of June 28, 1998, by and among Fremont Acquisition Company III, LLC and each individual whose name appears on the signature pages thereto................... (c)(3) Mutual Confidentiality Agreement, dated April 8, 1998, by and between the Company and Fremont Partners...................... (c)(4) Rights Agreement, dated as of November 13, 1996, by and between the Company and American Stock Transfer and Trust Company....................................................... (c)(5) Termination and Release Agreement, dated as of September 25, 1998, by and among the Company, Fremont Acquisition Company III, LLC and GMS Acquisition Corp. ...........................
- -------- * Except for Exhibits (a)(11), (a)(12) and (c)(5), each of the exhibits was filed previously with the Statement as originally filed with the Securities and Exchange Commission on July 13, 1998. ** Filed with the Securities and Exchange Commission on August 12, 1998. 5 EX-99.(A)(12) 2 PRESS RELEASE ISSUED BY THE CO. ON 09-28-98 CONTACTS: - --------- JAMES J. KELLY (408) 778-2271 OR DANIEL BURCH OR GRACE PROTOS MACKENZIE PARTNERS, INC. (212) 929-5748 / (212) 929-5802 FOR IMMEDIATE RELEASE: - ---------------------- GLOBAL MOTORSPORT GROUP ANNOUNCES TERMINATION OF ITS TENDER OFFER Morgan Hill, CA - September 28, 1998 - Global Motorsport Group, Inc. (formerly Custom Chrome, Inc.) (NASDAQ:CSTM) announced today that it has agreed with Fremont Acquisition Company III, LLC, an entity controlled by Fremont Partners L.P., to terminate the Merger Agreement between the Company and Fremont. In light of current market conditions, the parties terminated the Merger Agreement due to the failure to satisfy the financing condition to the tender offer. Consequently, the Company is terminating its tender offer for up to 4,820,000 shares of its Common Stock for $21.75 per share in cash. Global Chairman, Joseph F. Keenan, stated: "Although Fremont did offer to consummate the transaction without a financing condition at $18.25 per share, the Board of Directors unanimously determined that this substantial reduction in price was not justified. While I am disappointed that we could not consummate the Fremont acquisition as originally negotiated, the Board is dedicated to following through on its commitment to maximize stockholder value and will actively explore alternative transactions, including a sale to another party, a recapitalization or a significant share repurchase. The Company is achieving its goals of growth in sales and operating profitability, while reducing total debt from approximately $70 million to $50 million, and expects to meet current analyst forecasts of earnings per share of $1.60 for the fiscal year ending on January 31, 1999, excluding the after tax impact of costs related to the payment of approximately $700,000 to satisfy a tax judgment relating to prior years and the Company's defense of the unsolicited tender offer to purchase the Company by Golden Cycle L.L.C. and costs associated with the terminated Fremont transaction." Global Motorsport Group was founded in 1970 and it is the parent organization for an international group of motorcycle after market providers that focus their business on Harley-Davidson motorcycles sold worldwide. Global's organization includes Custom Chrome, the leading aftermarket supplier of Harley-Davidson motorcycle parts and accessories; Chrome Specialties, an aftermarket supplier of Harley-Davidson motorcycle parts and accessories located in Fort Worth, Texas; Custom Chrome Far East, a product development, engineering, tooling management and warehouse of proprietary products for Global, located in Taiwan; Custom Chrome Europe, a distribution company located in Germany that specializes in aftermarket accessories for Harley-Davidson motorcycles and other "cruiser" motorcycles, and Santee Industries, a manufacturer of frames and exhaust systems and other aftermarket components for Harley-Davidson motorcycles, located in California. This news release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities and Exchange Act of 1934, as amended. Actual results could differ materially from those indicated in the forward-looking statements. ### 2 EX-99.(C)(5) 3 TERMINATION AND RELEASE AGREEMENT TERMINATION AND RELEASE AGREEMENT This TERMINATION AND RELEASE AGREEMENT (this "AGREEMENT"), dated as of September 25, 1998, by and among Global Motorsport Group, Inc., a Delaware corporation (the "COMPANY"), GMS Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Company ("ACQUISITION SUB") and Fremont Acquisition Company III, LLC, a Delaware limited liability company ("PURCHASER"); collectively the "PARTIES." Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement. RECITALS A. The parties hereto have entered into that certain Amended and Restated Agreement and Plan of Merger, dated as of June 28, 1998 (the "MERGER AGREEMENT"), pursuant to which, among other things, the Company agreed to make a cash tender offer (the "OFFER") to acquire up to 4,820,000 shares of its common stock. B. The Company commenced the Offer on July 13, 1998. C. At the initial scheduled expiration date of the Offer on August 12, 1998, one or more conditions to the Offer were not satisfied. D. Pursuant to Section 1.1(b) of the Merger Agreement, Purchaser requested that the Company extend the scheduled expiration date of the Offer. E. The Company extended the expiration date of the Offer to September 25, 1998. F. At the scheduled expiration date of the Offer, the Parties anticipate that one or more of the conditions to the Offer shall not be satisfied. G. The Parties wish to terminate the Merger Agreement and clarify the rights and obligations among them. Therefore, in consideration of the foregoing recitals and promises and payment specified below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: TERMINATION AND RELEASE 1. TERMINATION OF THE MERGER AGREEMENT. Subject to the terms of this ------------------------------------ Agreement and except for Section 8.3(b) of the Merger Agreement, the Parties hereby agree to terminate the Merger Agreement and abandon the Transactions pursuant to Section 10.1(a) of the Merger Agreement. 2. EFFECTIVENESS OF TERMINATION. The termination of the Merger Agreement ----------------------------- as set forth above shall be effective upon execution of this Agreement by the Parties. 3. EXPENSE REIMBURSEMENT PAYMENT IN SATISFACTION OF ALL CLAIMS. Pursuant ------------------------------------------------------------ to Section 10.3(b) of the Merger Agreement, the Company shall pay to Purchaser One Million dollars ($1,000,000) (the "EXPENSE REIMBURSEMENT PAYMENT") by wire transfer of immediately available funds to the bank account set forth in Exhibit A attached hereto. The Expense Reimbursement Payment shall be made promptly following execution of this Agreement, but in no event later than one (1) business day following the date hereof. The Expense Reimbursement Payment shall constitute full satisfaction of any and all obligations of the Company and Acquisition Sub to reimburse Purchaser and its Affiliates pursuant to the Merger Agreement for fees and expenses actually and reasonably incurred by any of them or on their behalf in connection with the Merger Agreement and the Transactions (the "EXPENSES"). For purposes hereof, the Expenses shall mean any fees, costs, expenses and disbursements incurred or payable to Purchaser and its Affiliates, Bank of America, NT & SA, BancAmerica Robertson Stephens, BT Alex Brown, Fletcher Spaght, Inc., Environ, Skadden, Arps, Slate, Meagher & Flom LLP, O'Melveny & Meyers LLP, Katten, Muchin & Zavis, Arthur Anderson LLP, American Stock Transfer & Trust Company (but only with respect to its role as Depositary in the Offer), MacKenzie Partners, Inc. (but only with respect to its role as Information Agent in the Offer), R.R. Donnelly Financial Printers, Inc. and any other credit or financing source, investment bankers, or counsel retained by Purchaser or any of the foregoing in connection with the Merger Agreement and the Transactions. In consideration of the Expense Reimbursement Payment, Purchaser agrees to pay the Expenses. 4. PURCHASER RELEASE. Except for the obligations arising under this ------------------ Agreement, Purchaser, with full understanding of the contents and legal effect of this Agreement, on behalf of itself and on behalf of its subsidiaries, shareholders, directors, officers, members, employees, agents, attorneys, insurers, and any of its predecessors, successors-in-interest, and assigns ("AFFILIATES") hereby irrevocably and unconditionally releases and discharges the Company and Acquisition Sub and their Affiliates from any and all actions, causes of action, claims, obligations, fees, expenses, costs, attorneys' fees, damages, losses, liabilities and demands, of whatever character, including, without limiting the generality of the foregoing, actions arising from contract, tort, and bankruptcy, and any other claims of any nature or kind which are or could have been asserted with respect to, or in any way arise out of or are related to, the Merger Agreement and the Transactions. 5. COMPANY AND ACQUISITION SUB RELEASE. Except for the obligations ------------------------------------ arising under this Agreement, the Company and Acquisition Sub, with full understanding of the contents and legal effect of this Agreement, on behalf of themselves and their Affiliates hereby irrevocably and unconditionally release and discharge Purchaser and its Affiliates from any and all actions, causes of action, claims, obligations, fees, expenses, costs, attorneys' fees, damages, losses, liabilities and demands, of whatever character, including, without limiting the generality of the foregoing, actions arising from contract, tort, and bankruptcy, and any other claims of any nature or kind which are or could have been asserted with respect to, or in any way arise out of or are related to, the Merger Agreement and the Transactions. 2 6. SECTION 1542 WAIVER. It is further understood and agreed by the -------------------- Parties that, except for the obligations arising under this Agreement, the foregoing Releases extend to all claims, of every nature and kind whatsoever, known, suspected, or unsuspected, past, present or future, and all rights under Section 1542 of the California Civil Code, in so far as applicable to this Agreement, are hereby expressly waived by the Parties and their respective Affiliates. Said section reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. The Parties hereby acknowledge that they may hereafter discover facts different from, or in addition to, those which they now believe to be true with respect to the released claims, and agree that this Agreement and releases contained herein shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof. 7. PRESS RELEASE; NONDISPARAGEMENT. With respect to the termination of -------------------------------- the Merger Agreement, the Parties agree that the press release attached hereto as Exhibit B shall be issued. Each of the Parties further agrees that it will not disparage any of the other Parties, or their respective directors, officers, stockholders, members, or employees, in any manner intended to be harmful to Purchaser or the Company or any of their respective Affiliates, or their respective reputations, or the personal or business reputation of such directors, officers, stockholders, members or employees; provided, however, that -------- ------- each Party may respond accurately and fully to any question, inquiry or request for information as may be required by applicable law. 8. ENTIRE AGREEMENT. It is further understood and agreed that this ----------------- Agreement constitutes the entire understanding between the Parties. All prior negotiations and understandings between the Parties, whether oral or written, have been merged herein. 9. NO PROMISES, REPRESENTATIONS, WARRANTIES. It is further understood and ----------------------------------------- acknowledged that none of the Parties have made any promise, representation, or warranty whatsoever, express or implied, except as expressly set forth herein, to induce the other to execute this Agreement, and the Parties acknowledge that they have not executed this Agreement in reliance upon any such promise, representation, or warranty; except that (i) the Company hereby represents that it has complied in all respects with the provisions of Section 8.2 of the Merger Agreement, and (ii) Purchaser hereby acknowledges and agrees that discussions or negotiations by the Company, its Affiliates or advisors with financial institutions concerning a repurchase of its shares by the Company, or similar transactions not involving the sale of control of the Company to a third party, shall not be deemed to breach the provisions of Section 8.2 of the Merger Agreement. 10. NO ADMISSIONS. It is further understood and agreed that this -------------- Agreement represents the release of all claims, except as set forth in this Agreement, by the Parties and their 3 respective Affiliates. Neither the payment of any sums of money, nor the execution of this Agreement, shall constitute or shall be construed as an admission of any liability whatsoever by any of the Parties or their respective Affiliates. 11. SUCCESSORS. The Parties further expressly agree that this Agreement ----------- shall be binding upon and inure to the benefit of their respective directors, officers, members, servants, agents, employees, divisions, subsidiaries, affiliated companies, heirs, administrators, successors and assigns, as applicable. 12. ASSIGNMENT OF CLAIMS. The Parties represent and warrant that they --------------------- have not made any assignment of any claim or cause of action related in any way to this Agreement. 13. ATTORNEYS' FEES. In the event of any dispute, litigation or other ---------------- adversary proceeding that may arise with respect to the subject matter of this Agreement, the prevailing party will be entitled to receive from the other reasonable attorneys' fees, costs and expenses incurred in said proceeding. The "prevailing party" means the party determined by the court or arbitrator to have most nearly prevailed, even if such party did not prevail in all matters, and not necessarily the party in whose favor a judgment is rendered. 14. MODIFICATION. The Parties understand and agree that this Agreement ------------- may not be altered, amended, modified, or otherwise changed in any respect or particular whatsoever except in writing duly executed by each of the Parties or their authorized representatives. 15. SEVERABILITY. The provisions of this Agreement shall be considered ------------- severable, such that if any provision or part thereof shall at any time be held under any law or ruling to be invalid, such provision or part shall remain in force to the extent allowed by law, and all other provisions shall remain in force and effect and enforceable. 16. CHOICE OF LAW. This Agreement shall be governed by, and construed in -------------- accordance with, the laws of the State of California, without giving effect to the principles of conflicts of laws thereof. 17. CAPTIONS. The section captions used in this Agreement are used for -------- convenience only and are not to be considered in construing or interpreting this Agreement. 18. FACSIMILE SIGNATURES. Any signature page delivered by a fax machine -------------------- or telecopy machine shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto. Any Party who delivers such a signature page agrees to later deliver an original counterpart to any Party which requests it. 4 19. COUNTERPARTS. This Agreement may be executed in any number of ------------ counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same agreement. IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be duly executed on its behalf as of the day and year first above written. GLOBAL MOTORSPORT GROUP, INC., A DELAWARE FREMONT ACQUISITION COMPANY III, LLC, A CORPORATION DELAWARE LIMITED LIABILITY COMPANY BY: /s/ Joseph F. Keenan BY: /s/ Kevin Baker ------------------------------------------- ---------------------------------------- Name: Joseph F. Keenan Name: Kevin Baker Title: Chairman of the Board Title: Vice President and Secretary GMS ACQUISITION CORP., A DELAWARE CORPORATION BY: /s/ Joseph F. Keenan ------------------------------------------ Name: Joseph F. Keenan Title: Sole Director
5 -----END PRIVACY-ENHANCED MESSAGE-----