NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 08-CVS-_) POG MECKELENBURG COUNTY 2 GILLETT EVERNHAM MOTORSPORTS. L Plaintiff, TEAM GORDON, INC., ROBBY GORDON ENTERPRISES, INC., SPEED RACER, INC, ENTREPRENEUR INVESTMENTS, INC., RWG I INVESTMENTS, INC., GORDON AIR, LLC, AND ROBERT W, GORDON II, ) ) ) 7 ) d ) 7 ) ) COMPLAINT AND REQUEST FOR DECLARATORY JUDGM: ND OTHER RELIEF Introduction Defendants, 1 In this action, Gillett Evemham Motorsports, LLC (“GEM”) secks a declaratory judgment as to the parties’ rights and obligations under the Memorandum Agreement dated January 29, 2008, signed by the Plaintiff and the above-captioned Defendants (collectively “Robby Gordon Motorsports” or “RGM"). Declaratory relief is appropriate because an actual Controversy exists between the parties with respect to the issues presented, GEM further seeks a judgment that the Defendants materially breached the exclusivity provision of the Memorandkim Agreement, damaging GEM and entitling GEM to relief, In the altemative, GEM seeks a judgment that Defendants have been unjustly enriched by GEM’s services and expenditures, thereby causing damages to GEM and entitling it to relief,Parties 3, GEM is a Delaware corporation with ts principal place of business in siatesvtle, North Carofina where it is engaged in the business of operating @ NASCAR racing team, 4, Team Gordon, Ine. is a California corporation with its principal place of business in Charlotte, North Carolina. Robby Gordon Enterprises, Ine. is @ California corporation with its principal place of business in Chariote, North Carolina 6. Speed Racer, Ine. is a California corporation with its principal place of business in Charlotte, North Caroline, 7. Entrepreneur Investments, ne. is @ Wyoming corporation with its principal place of business in Charlotte, North Carolina: fg. RWG I Investments, ne. is a Wyoming corporation with its principal place of business in Charlotte, North Carolina. 6. Gordon Air, LLC is a Wyoming fimited liability company with its principal place of business in Charlotte, North Carolina 10. Robert W. Gordon IT is a resident of California Jurisdiction and Venue 11, This Court has subject matter jurisdiction in this matter pursuant to the Noth Carolina Declaratory Judgment Aet. See N.C. Gen Stat, § 1-254 (2008); see also N.C. Gen. ‘Stat. § 1-253 (2008). 12, Venue in this District is proper pursuant 19 N.C. Gen. Stat. § 1-80 beeause Plaintiff and Defendants maintain facilities in Mecklenburg County, North Carolina and/or aFe oecegularly engaged in carrying on business there. Further, pursuant 10 Paragraph 15 of the Memorandum Agreement, the parties expressly consented to venue in any North Carolina state court. Facts ‘A. GEMand RGM Enter into a Binding Memorandum Agreement 13, On or about January 29, 2008, GEM and RGM entered into a binding Memorandum Agreement (the “Agreement”) whereby GEM agreed, in principle, to acquire substantially all of the NASCAR operating assets of RGM, including the NASCAR operating real property owned or eased by RGM. Agreement at § 1 (attached hereto at Exhibit 1). 14, The Agreement contemplates the execution of “Definitive Agreements” which were to set forth, in greater detail, the terms and conditions ofthe acquisition, including, but not limited to, an acquisition agreement, a drivers agreement, and a services and management agreement. Agreement at § 7. 15, The Agreement expressly required the parties to work in good faith toward completing the acquisition, Peragraph 7 of the Agreement provides thet “[iJhe parties hereto eres to work in good faith and to utilize their commercially reasonable efforts to enter into the Definitive Agreements as expeditiously as possible and in any event, by February 5, 2008." ‘Agreement at §7. 16. Up to and during January 2008, the original equipment manufacturer (OEM) of Gordon's #7 ear was Ford Motor Company. During January 2008, GEM was engaged in discussions with Dodge Motor Company in an effort to secure Dodge as the OFM of Gordon's #7 race car.