EXHIBIT (c)(3)
April 8, 1998
PRIVATE AND CONFIDENTIAL
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Mr. Xxxx Xxxxxxxxxx
Fremont Partners
Fifty Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxx
THIS MUTUAL CONFIDENTIALITY AGREEMENT is by and between Global Motorsport
Group, Inc., a Delaware corporation ("Global") and Fremont Partners (the
"Company"). References herein to Global or the Company shall refer to Global
and the Company and their respective subsidiaries or affiliates controlled by
Global or the Company.
WHEREAS, Global and the Company desire to disclose to each other certain
confidential and proprietary information relating to their respective businesses
for the purpose of facilitating discussion of a potential business transaction;
and
WHEREAS, both parties acknowledge the need to protect the confidentiality
of such information.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree
as follows:
1. As used herein the term "Confidential Information" shall mean any
and all data and information relating to the business of the disclosing
party that is disclosed to the other party pursuant to this Agreement.
Confidential Information shall not include information that: (a) is now,
or hereafter becomes, through no act or failure to act on the part of
the receiving party, generally known or available to the public; (b) is
rightfully known by the receiving party at the time of receiving such
information; (c) is furnished to others by the disclosing party without
restriction on disclosure; (d) is hereafter rightfully furnished to the
receiving party by a third party without any breach of any
confidentiality obligation to the other party; (e) is independently
developed by the receiving party without any breach of this Agreement;
or (f) is required to be disclosed by the receiving party by judicial
action after all reasonably available legal remedies (pursued at the
expense of the disclosing party) to maintain the confidentiality of such
information have been exhausted. Subject to the second sentence of this
paragraph, Confidential Information may include information disclosed to
Global or the Company by a third party, including Global's financial
advisor, and information disclosed to the receiving party that is
confidential information of an affiliate of the disclosing party.
Subject to the second sentence of this paragraph, Confidential
Information also includes the fact that discussions are or negotiations
are taking place concerning a potential transaction and any of the
terms, conditions or other facts with respect to any such potential
transaction.
Both Global and the Company further acknowledge that certain of the Confidential
Information may be "Insider Information" with respect to one or more of the
involved parties. Both Global and the Company are therefore subject to Rule
10b-5 under the Securities Exchange Act of 1934 with respect to such
information. Disclosing certain non-public information to any other person or
trading in the stock of any company described
Fremont Partners
April 8, 1998
Page 2
in the Confidential Information while this information remains non-public may be
a violation of the Rule and could subject Global or the Company to the penalties
provided under the Act.
2. Each party hereto may use the other party's Confidential Information
only for purposes of analyzing and discussing the proposed transaction.
Each party further agrees that the Confidential Information will not be
used to enhance, better, develop, perfect or improve any products now
produced by the receiving party or to be produced by the receiving
party in the future, whether or not such products are competitive with
those products produced by the disclosing party as of the date hereof.
Each party further agrees not to engage in any reverse engineering of
the Confidential Information. Each party shall use the same care and
discretion, but in no event less than reasonable care and discretion,
to prevent disclosure, publication, or dissemination of the other
party's Confidential Information as it employs with similar information
of its own. Disclosure by each party hereto of the Confidential
Information of the other party may be made only to employees, agents or
independent contractors of the receiving party who are directly
involved in consideration of the proposed transaction that is the
subject of this Agreement, and who have a specific need to know such
information, and have obligated themselves to hold such Confidential
Information in trust and confidence or otherwise to comply with the
terms of this Agreement. Global and the Company agree upon request by
the other party hereto, to promptly furnish to the requesting party a
certified list of the receiving party's employees, agents and
independent contractors having had access to such Confidential
Information.
3. Within ten (10) days following the receipt of a written request
referencing this Agreement from either party hereto, the other party will
deliver to the requesting party all materials relating to the Confidential
Information received from the requesting party. At the same time, the other
party also agrees to destroy its work product which relates to the Confidential
Information; provided, however, such party may retain one copy of any derivative
materials to the extent necessary for corporate record keeping purposes, but
such derivative materials shall remain subject to the terms of this Agreement.
4. The Company agrees that for a period of two years from the date of this
letter agreement, neither the Company nor any of its affiliates will, unless
invited (on an unsolicited basis) by the Board of Directors of Global in
writing: (i) acquire, offer or propose to acquire, or agree or seek to acquire,
directly or indirectly, by purchase or otherwise, any securities or direct or
indirect rights or options to acquire any securities of Global or any subsidiary
thereof, or of any successor to or person in control of Global, or any assets of
Global or any subsidiary or division thereof or of any such successor or
controlling person; (ii) enter into or agree, offer, propose or seek to enter
into, or otherwise be involved in or part of, directly or indirectly, any
acquisition transaction or other business combination relating to all or part of
Global or its subsidiaries or any acquisition transaction for all or part of the
assets of Global or any subsidiary of Global or any of its respective
businesses; (iii) make, or in any way participate in, directly or indirectly,
any "solicitation" of "proxies" (as such terms are used in the rules of the
Securities and Exchange Commission) to vote, or seek to advise or influence any
person or entity with respect to the voting of, any voting securities of Global;
(iv) form, join or in any way participate in a "group" (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any
voting securities of Global or any of its subsidiaries; (v) seek or propose,
alone or in concert with others, to influence or control Global's management or
policies; (vi) directly or indirectly enter into any discussions, negotiations,
arrangements or understandings with any other person with respect to any of the
foregoing
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April 8, 1998
Page 3
activities or propose any of such activities to any other person; (vii) advise,
assist, encourage, act as a financing source for or otherwise invest in any
other person in connection with any of the foregoing activities; or (viii)
disclose any intention, plan or arrangement inconsistent with any of the
foregoing. The Company also agrees that, during the two-year period referred to
in the preceding sentence, neither the Company nor any of its affiliates will:
(i) request Global or its advisors, directly or indirectly, to (1) amend or
waive any provision of this paragraph (including this sentence) or (2) otherwise
consent to any action inconsistent with any provision of this paragraph
(including this sentence); or (ii) without the consent of Global take any
initiative with respect to Global or any of its subsidiaries which could require
Global to make a public announcement regarding (1) such initiative, (2) any of
the activities referred to in the preceding sentence, (3) the possibility of a
transaction or (4) the possibility of the Company or any other person acquiring
control of Global, whether by means of a business combination or otherwise.
Notwithstanding anything to the contrary contained in this Agreement, the above
restrictions shall not apply to (i) the securities of Global held or purchased
by Fremont Investment Advisors, Inc. or Fremont Mutual Funds, Inc.; provided,
however, that the Company has not disclosed any Confidential Information to such
parties; and/or (ii) ordinary brokerage or trading transactions by a securities
dealer or a transaction entered into on the Company's behalf by a third person
or entity without the Company's specific consent (e.g., by investment advisors
with investment discretion).
5. Each party hereby acknowledges and agrees that in the event of any
breach of this Agreement by the other party, including, without
limitation, the actual or threatened disclosure of a disclosing party's
Confidential Information in violation of this Agreement without the
express prior written consent of the disclosing party, the disclosing
party will suffer irreparable harm and injury and no remedy at law will
afford it adequate protection against, or appropriate compensation for,
such injury. Accordingly, each party hereby agrees that in any such
event the other party shall be entitled to specific performance of a
receiving party's obligations under this Agreement, as well as such
further injunctive relief or other remedies available at law or in
equity as may be granted by a court competent jurisdiction. A receiving
party agrees to reimburse a disclosing party for all reasonable costs
and expenses (including attorneys' fees) incurred by the disclosing
party in successfully enforcing the receiving party's obligations under
this Agreement.
6. This Agreement will continue in full force and effect for so long as
the parties continue to exchange Confidential Information and for a period of
two years thereafter and obligations with respect to legally protectable trade
secrets and other similar confidential information which shall survive
indefinitely. Both Global and the Company agree that as long as the parties
continue to exchange Confidential Information and for a period of two years
thereafter neither party will, without the prior written consent of the other
party, directly or indirectly, solicit to hire (or seek to cause to leave the
employ of the other party): (i) any officer employed by the other party; or
(ii) any other employee employed by the other party with whom the "hiring" party
has contact with or who (or whose performance) became known to that party in
connection with the process contemplated by this Agreement.
7. Both parties understand and acknowledge that neither party to this
Agreement nor any officers, directors, employees, representatives or agents of
either party is making any representation or warranty, express or implied, as to
the accuracy or completeness of the Confidential Information and neither party
to this Agreement nor any officers, directors, employees, representatives or
agents of either party will have any liability to the other party or any other
person resulting from either party use of the Confidential Information. Only
those representations or warranties that are made in a definitive agreement
regarding a transaction (a
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April 8, 1998
Page 4
"Definitive Agreement") when, as, and if executed, and subject to such
limitations and restrictions as may be specified in such Definitive Agreement,
will have any legal effect. The term "Definitive Agreement" does not include an
executed letter of intent or any other preliminary written agreement, nor does
it include any written or oral acceptance of any offer or bid on either parties
part.
8. Each party hereby acknowledges that the other party may now market or
have under development products or services that are competitive with
products or services now offered or that may in the future be offered
by the other party, and the parties' communications hereunder will not
serve to impair the right of either party to independently develop,
make, use, procure, or market products or services now or in the future
that may be competitive with those offered by the other, nor require
either party to disclose any planning or other information to the
other, so long as such actions are not in breach of this Agreement.
9. This Agreement and the rights and obligations of the parties under this
Agreement may be assigned only upon the prior written approval of the
parties hereto. The rights and obligations of the parties hereto will
inure to the benefit of, will be binding upon, and will be enforceable
by the parties hereto and their respective stockholders and permitted
successors and assigns.
10. No modifications of this Agreement or waiver of any of its terms will
be effective unless set forth in writing signed by the party against
whom it is sought to be enforced. This Agreement shall terminate two
years after the date hereof.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
Very truly yours,
GLOBAL MOTORSPORT GROUP, INC.
BY: XXXXXX GULL XXXXXXX & XXXXXXXX INC., ITS AGENT
By: ______________________________
Xxxxx X. Xxxxxxxx
Chief Executive Officer
Accepted and agreed as of the
date first above written.
By:
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Name:
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Fremont Partners
April 8, 1998
Page 5
Title:
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