SHAREHOLDERS’ AGREEMENT
EXECUTION
COPY
SHAREHOLDERS’
AGREEMENT
THIS
SHAREHOLDERS’ AGREEMENT (“Agreement”),
is
entered into and is effective as of November 21, 2006, by and among Motorsports
& Entertainment of Tennessee, Inc., a Nevada corporation (the “Corporation”),
and
the individuals and entities who have signed the signature page(s) to this
Agreement (referred to individually as a “Shareholder”
and
collectively as the “Shareholders”).
WITNESSETH:
WHEREAS,
the Corporation is authorized to issue Fifty-Five Million (55,000,000) shares
of
Common Stock, par value $0.01 per share (collectively the “Common
Stock”).
WHEREAS,
the Corporation shall issue One Thousand (1,000) Shares to the Shareholders
upon
the execution of this Agreement, and the issued and outstanding shares of Common
Stock owned by Shareholders will be owned as set forth on the stock ledger
of
the Company and listed on Schedule A attached herein (the “Shares”).
WHEREAS,
upon execution of the Agreement, the only issued and outstanding securities
of
the Corporation are the shares of Common Stock owned by the Shareholders, as
set
forth on Schedule A.
WHEREAS,
the parties desire to enter into certain agreements to set forth certain rights
and obligations among themselves and with the Corporation pertaining to the
management, direction and operation of the Corporation.
WHEREAS,
the parties have agreed that, upon the occurrence of certain events, as
specified in this Agreement, that certain Shareholders or the Corporation shall
have the right or be obligated to purchase the Shares of certain other
Shareholders, and in connection therewith that certain limitations and
restrictions should be placed upon the sale, transfer and/or encumbrance of
the
Shares owned by Shareholders.
NOW
THEREFORE, in consideration of the aforesaid premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby covenant and agree as follows:
1. RESTRICTIONS
ON TRANSFER OF SHARES.
1.1. Restrictions.
Except
as hereinafter expressly permitted by this Agreement (in Section 2 or otherwise)
and subject to the terms hereof, no Shareholder shall, without the prior written
consent of the Board of Directors, directly
or indirectly, exchange, sell, bequeath, pledge, mortgage, hypothecate,
encumber, distribute, transfer (including any transfer pursuant to any
foreclosure, assignment or default by a Shareholder under any financing
agreement), give, assign or in any other manner whatsoever dispose or attempt
to
dispose of any Shares or any interest in Shares held by such Shareholder at
any
time; provided, however, that such prohibition shall be inapplicable with
respect to purchases of Shares by the Corporation under the terms of any
restricted stock purchase or similar agreements to which the Corporation and
a
Shareholder may be parties. Any transaction which violates the provisions of
this Section 1 and which does not fully comply with the terms of this Agreement,
shall be void and ineffective. A copy of this Agreement shall be kept at the
principal place of business of the Corporation.
No
Shareholder shall sell, transfer (including any transfer pursuant to any
foreclosure, assignment or the default by any Shareholder under any financing
agreement) or encumber any Shares, unless such Shareholder first provides notice
to the Corporation of the manner and circumstances of the proposed transfer
in
reasonable detail, and a written opinion of counsel to the Corporation or other
legal counsel who shall be reasonably satisfactory to the Corporation, addressed
to the Corporation and reasonably satisfactory in form and substance to the
Corporation’s counsel, to the effect that the proposed transfer of the Shares
may be effected without registration under the Securities Act of 1933, as
amended (the “Securities
Act”)
and
applicable state securities laws, or other evidence acceptable to the Board
of
Directors that registration is not necessary. No Shareholder shall transfer
any
Shares to any person or entity of such person or entity or any of its Affiliates
is reasonably believed by the Board of Directors to be a competitor of the
Corporation.
1.2. Stock
Certificates.
Upon
the execution of this Agreement, the Corporation shall imprint upon each stock
certificate representing Shares the following legend:
THIS
CERTIFICATE IS SUBJECT TO THE PROVISIONS OF THE SHAREHOLDERS’ AGREEMENT,
DATED
NOVEMBER 21, 2006,
BY AND
AMONG THE CORPORATION AND ITS SHAREHOLDERS NAMED THEREIN, THE ORIGINAL OF WHICH
IS ON FILE AT THE OFFICES OF THE CORPORATION.
Additionally,
unless and until the Corporation has registered its stock under applicable
securities law, or otherwise complied with applicable federal, state and/or
local laws as to the sale or transfer of securities, each stock certificate
issued or to be issued shall bear the following additional legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THESE
SHARES FILED UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION. TO
THE
EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SUCH SECURITIES
LAWS.
The
parties hereto agree that all Shares of the Corporation not presently owned
by
the Shareholders, but hereafter issued to or acquired by the Shareholders,
shall
be subject to this Agreement and shall have endorsed thereon the above
legends.
2. RIGHT
OF
FIRST REFUSAL.
A
Shareholder may sell or transfer all, or any portion, of such Shareholder’s
Shares to any person or entity (the “Transferee”)
pursuant to a bona fide, written, all cash offer (an “Offer”)
without obtaining the consents set forth in this Section 2 if such transfer
complies in all respects with this Section 2 and any other transfer requirement
set forth in this Agreement. Such Shareholder (the “Transferring
Shareholder”)
shall
deliver written notice (the “Transfer
Notice”)
to the
Corporation and the other Shareholders (the “Remaining
Shareholders”).
The
Transfer Notice shall set forth the exact terms of the Offer and the number
of
Shares which the Transferring Shareholder wishes to sell pursuant to the Offer
(the “Offered
Shares”),
together with a copy of the Offer, and a statement of the desire of the
Transferring Shareholder to sell the Offered Shares pursuant to the terms and
conditions of the Offer. Thereafter, the Corporation, and if the Corporation
fails to act as specified in this Section 2, the Remaining Shareholders, shall
have the right and option to purchase all, or any portion, of the Offered Shares
on the terms specified in the Offer and at the price equal the price specified
in the Offer. If the Corporation desires to exercise its option, it shall give
notice (the “Counter
Notice”)
to
that effect to the Transferring Shareholder with a copy to the Remaining
Shareholders within ten (10) days after receipt of the Transfer Notice. Any
Counter Notice which is delivered after the expiration of such period shall
be
ineffective. Such Counter Notice shall set forth a date, not later than ten
(10)
days from the service of the Counter Notice, on which the Closing (as
hereinafter defined) shall be held. By delivering a Counter Notice, the
Corporation shall be deemed to have irrevocably agreed to purchase all of the
Offered Shares. The Corporation’s rights under this Section 2 shall be
assignable.
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If
the
Corporation does not deliver a Counter Notice within such twenty (20) days,
it
shall give rise to an identical option in favor of the Remaining Shareholders
to
purchase, on the terms and at the price previously available to the Corporation,
all, or any portion, of the Offered Shares. If a Remaining Shareholder desires
to exercise such Remaining Shareholder’s option, such Remaining Shareholder
shall have a period of twenty (20) days from the expiration of the time in
which
the Shareholders’ Counter Notice could have been served, to give such Remaining
Shareholder’s Counter Notice (the “Shareholder
Counter Notice”)
to the
Shareholders and the Corporation. Any Shareholder Counter Notice which is
delivered after the expiration of such period shall be ineffective. The
Shareholder Counter Notice shall set forth a date, not later than thirty (30)
days from the service of such Shareholder Counter Notice, on which the Closing
shall be held. By delivering a Shareholder Counter Notice, a Remaining
Shareholder shall be deemed to have irrevocably agreed to purchase a pro rata
number of Offered Shares so that all Remaining Shareholders delivering a
Shareholder Counter Notice shall maintain their relative proportion of Share
ownership as among themselves. If more than one Remaining Shareholder delivers
a
timely Shareholder Counter Notice, then such Remaining Shareholders shall
purchase the Offered Shares at a Closing on the latest date specified in any
such Shareholder Counter Notice. The Remaining Shareholders may purchase all
of
the Offered Shares but may not individually or together purchase less than
all
of the Offered Shares.
In
the
event that none of the Remaining Shareholders or the Corporation exercises
his,
her or its respective option to purchase all of the Offered Shares as set forth
above or timely deliver notice of their intention to do so, then, within sixty
(60) days from the expiration of the Shareholder Counter Notice option period,
the Offered Shares may be sold, assigned or transferred by the Transferring
Shareholder in accordance with the terms of the Offer; provided that (i) the
Shares of the Transferring Shareholder shall in the hands of the Transferee
remain subject to the terms and conditions of this Agreement and (ii) the
Offered Shares may not be transferred to any person or entity that the Board
of
Directors in good xxxxx xxxxx to be a competitor of the Corporation. If for
any
reason no such transfer shall take place within such sixty (60) day period,
the
Offered Shares shall remain subject to this Agreement and any further offer
or
sale must be made in accordance with the provisions of this
Agreement.
Notwithstanding
the terms of this Section 2, except with the consent of the Board of Directors,
no Shareholder shall be permitted to be a Transferring Shareholder if any Common
Stock held by him, her of it is subject to a right of repurchase under a
restricted stock purchase or similar agreement between such Shareholder and
the
Corporation. Notwithstanding the terms of this Section 2, the
provisions of this Section 2 shall be inapplicable with respect to any sale
or
transfer by any Shareholder under Section 3 who is “tagging along” or being
“dragged along.”
3. TAG
ALONG; DRAG ALONG.
3.1. Tag
Along.
If any
Transferring Shareholder elects to sell such Shareholder’s Shares under Section
3 to an unaffiliated third party and neither the Corporation nor any Remaining
Shareholder is the purchaser and such shares represent more than fifty percent
(50%) of
the
Corporation’s outstanding shares, then all of the Shareholders shall have the
right and option to sell all of their Shares which are not then subject to
a
right of repurchase under a restricted stock purchase or similar agreement
at
the same price per share and on the same terms on which the Transferring
Shareholder sells such Transferring Shareholder’s Shares under this Section 3;
and in such case, no Transferring Shareholder may sell any of such Transferring
Shareholder’s Shares under this Section 3, unless all Shareholders have the
right and option to sell all of their Shares which are not then subject to
a
right of repurchase under a restricted stock purchase or similar agreement
at
the same price per Share and on the same terms and conditions. Notwithstanding
the foregoing, the terms of this Section 3.1 shall be inapplicable to any
transfer under Section 2 to a Shareholder or the Corporation. The Transferring
Shareholder shall provide to the other Shareholders complete definitive
documentation of such a proposed sale at least twenty (20) business days prior
to any such sale; and the other Shareholders may only exercise such right and
option by delivering irrevocable and unconditional notice of their intent to
do
so within ten (10) business days prior to such sale. In any such event, all
Shareholders shall vote in favor of such transaction and enter into all
agreements necessary to effectuate the same and act in all other respects in
order to effectuate the same, and not assert any dissenters’ or similar rights.
Notwithstanding anything herein to the contrary, in the event of a sale under
this Section, no Shareholder shall be required to provide indemnification which
(i) is not several in nature, or (ii) allows liability in excess of the amount
of net proceeds actually received by such Shareholder.
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4. INVOLUNTARY
TRANSFERS.
Upon
any
Involuntary Transfer (as hereinafter defined) of any Shares by any Shareholder,
(i) such Shareholder shall be deemed to have assigned such Shareholder’s Shares
to a voting trust (in form and substance reasonably acceptable to such
Shareholder to the other Shareholder and the Corporation); and (ii) the other
Shareholder first and the Corporation only if the other Shareholder does not
exercise its right, shall have an irrevocable right (which shall be assignable)
to acquire the legal and beneficial interest in such Shareholder’s Shares (and
all other rights of such Shareholder with respect to such Shares) for an amount
equal to the fair market value of those Shares as reasonably determined by
the
Board of Directors. Such voting trust shall have a perpetual term and the
trustee shall be a designee of the other Shareholder or the Corporation as
the
case may be. For the purposes of this Agreement, “Involuntary
Transfer”
means
any involuntary transfer of any interest in any Shares (other than a merger),
whether by operation of law foreclosure, assignment or the default by any
Shareholder under any financing agreement, or otherwise, including, but not
limited to, any transfer incident to any bankruptcy or insolvency proceeding,
divorce proceeding or escheat proceeding or any levy of attachment or
execution.
5. MANAGEMENT
OF THE CORPORATION
The
management, control and operation of the Corporation shall be governed by the
Bylaws and Articles of Incorporation of the Corporation as presently in effect
and as amended from time to time, subject to and except as otherwise modified
by
the following provisions (with respect to the Shareholders):
5.1. Board
of Directors.
(A) The
Board
of Directors (the “Board”)
of the
Corporation shall consist of three (3) members, of which one member shall be
A.
Xxxxxx Xxxxxxxxx and the second member shall be Xxxxxx X. Xxxxxxxx. The
remaining member of the Board shall be nominated and approved by the current
members of the Board (currently, A. Xxxxxx Xxxxxxxxx and Xxxxxx X. Mattiolli,
III).
(B) A
Director may at any time summon a meeting of the Board. If a Director shall
be
absent, such Director shall have the power to appoint any person (including
any
other Director) to act as his alternate Director during his absence and at
his
discretion to remove such alternate Director. Every such appointment and removal
shall be effected only by an instrument in writing signed by the appointor
and
presented to the Board prior to the Director’s absence.
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5.2. Meetings
of the Board.
Unless
the Directors shall otherwise resolve, at least two (2) Board Meetings shall
be
held, either in person or via telephone, in each period of twelve (12) months
from the date hereof. Meetings of the Board shall be properly constituted (and
where not properly constituted shall be void) on not less than three (3)
Business Days’ notice (i.e. disregarding the date on which the notice is served
and the date on which the meeting is to be held) given to each Director. The
period of notice for Board Meetings shall be waived if all of the Directors
(or
where relevant their alternates) so agree in writing. All
meetings of the Board of Directors may be conducted at any location either
in
person or via telephone.
5.3. Quorum.
The
quorum necessary for meetings of the Board shall be three (3) Directors,
consisting of at least two (2) directors nominated by American Racing Capital,
Inc. If a quorum is not present within sixty (60) minutes of the time fixed
for
the relevant meeting, the meeting shall stand adjourned for five (5) Business
Days at the same time and place, and if a quorum is not present within sixty
(60) minutes of the time fixed for that meeting, the meeting shall be dissolved.
5.4. Voting.
Each
Director shall be entitled to one vote. All questions arising at any meeting
of
the Board shall be determined by a majority of votes of the Directors present
in
person or by alternate and entitled to vote.
5.5. Authority.
A
resolution in writing signed by all Directors (or in lieu of any Director,
by
his/her duly appointed alternate Director) shall be as valid and effective
as if
it had been passed at a meeting of the Board duly convened and held. Any such
resolution may consist of several documents communicated to each Director (or
alternate Director) by courier in like form, each subsequently signed by and
correctly bearing the name of each and every Director (including any alternate
Director where appropriate). The Board shall ensure that full and proper minutes
of their meetings in a legible format are kept at the head office of the
Corporation.
5.6. Vacancies.
The
position of a Director shall be automatically vacated if any of the following
shall take place: (i) if such Director is insolvent or bankrupt; (ii) if such
Director does not attend personally or through an alternate, for three
consecutive Board Meetings in any twelve (12) months’ period; (iii) if such
Director is found guilty of a criminal offence (but not a misdemeanour); (iv)
if
such Director resigns from the Board in writing; or (v) if such Director is
removed by the Shareholder appointing him/her. Nothing shall prevent a
Shareholder from holding the office of a Director and/or the Chairman of the
Board.
5.7. Officers.
The
Corporation shall have a Chief Executive Officer/President (the “CEO”),
which
shall be nominated by LJ&J. The Corporation’s CEO shall be Xxxxxx X.
Mattiolli, III. Mr. Mattiolli shall also be Senior Managing Partner. The CEO
shall be responsible for all tasks necessary and related to the management
of
the Corporation in his capacity as CEO, except for such matters as are
specifically reserved by law for the Board of Directors. The Corporation shall
have a Secretary (the “Secretary”),
which
shall be nominated by American Racing Capital, Inc., a Nevada corporation.
The
Corporation’s Secretary shall be A. Xxxxxx Xxxxxxxxx.
5.8. Access
to Information; Financial Information.
The
Corporation shall comply with the applicable provisions of Nevada law with
respect to the Shareholders’ access to information of the
Corporation.
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6. SHAREHOLDER
CONSENT REQUIRED.
The
Corporation shall not, without the prior written consent of 100% percent of
the
Shareholders, undertake any of the following:
(a) modify,
amend, or in any way alter the Articles of Incorporation and the By-laws of
the
Corporation;
(b) effect
a
liquidation, dissolution or winding up of the Corporation;
(c) contemplate
or enter into any plans of merger or winding up of the Corporation;
and
(d) institute
any litigation, arbitration or other similar proceedings (other than proceedings
against a Shareholder, which do not require the consent of that
Shareholder).
7. TERMINATION.
This
Agreement and the rights and obligations of, and restrictions placed on, and
the
undertakings agreed to by the Shareholders hereunder shall terminate and become
null and void immediately upon the occurrence of any of the following: (i)
a
dissolution or liquidation of the Corporation; (ii) a Shareholder becoming
the
owner of all of the issued and outstanding Shares; (iii) the execution of an
instrument by parties to this Agreement holding 75% of the Common Stock pursuant
to which such parties agree to terminate this Agreement; or (iv) the
Corporation’s Common Stock are issued in an initial public offering or otherwise
become publicly traded. This Agreement and the rights and obligations of, and
restrictions placed on, and the undertakings agreed to by a Shareholder
hereunder shall terminate and become null and void with respect to such
Shareholder (but not the party acquiring such Shareholder’s Shares) immediately
upon such Shareholder’s disposition of all shares owned by him, her or
it.
8. CONFIDENTIALITY.
Each
Shareholder agrees that he, she or it will utilize Confidential Information
(as
defined below) solely for the purpose of the business of the Corporation and
will make no other use of any Confidential Information. For the purposes of
this
Agreement, “Confidential Information” means that information which is
confidential and proprietary to Corporation and which derives (or may derive)
economic value to Corporation by not being generally known to others, or which
Corporation is otherwise under an agreement of confidentiality with an
unaffiliated third party. Confidential Information shall not include any
information which was: (i) in the public domain prior to disclosure, or
thereafter comes into the public domain without breach by such Shareholder
of
any confidentiality obligation hereunder; (ii) known by such Shareholder prior
to disclosure to such Shareholder, provided that such information is not known
by such Shareholder to be subject to another confidentiality agreement or other
obligation of secrecy to another party; (iii) disclosed to such Shareholder
by a
third party not known to such Shareholder to be in violation of any
confidentiality obligation owed to Corporation; or (iv) information required
to
be disclosed by law. Each Shareholder agrees that he, she or it will maintain
and preserve the confidentiality and secrecy of such Confidential Information,
including, without limitation, taking such steps to preserve the confidentiality
of the Confidential Information as such Shareholder takes to preserve the
confidentiality of his own confidential information. In the event that any
Shareholder becomes legally compelled to disclose any of the Confidential
Information, he shall provide Corporation with prompt written notice of such
requirement so that Corporation may seek a protective order or other appropriate
remedy. Each Shareholder acknowledges and agrees that the Confidential
Information is and shall remain the property of Corporation and that upon the
request of Corporation, such Shareholder shall promptly redeliver to Corporation
all tangible expressions of the Confidential Information and will not retain
any
copies, extracts, compilations, work product or other reproductions in whole
or
in part of such Confidential Information.
-6-
9. NOTICES.
All
approvals, consents, notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
upon delivery, if delivered in person, or on the third business day after
mailing, if mailed, by registered or certified mail, postage prepaid, return
receipt requested:
If
to the
Corporation: Motorsports
& Entertainment of Tennessee, Inc.
Route
000
Xxxxxx
Xxxx Xxxxxx Xxxxxxx
Xxxxxx
Xxxx, XX 00000
Attn:
A.
Xxxxxx Xxxxxxxxx at (000) 000-0000
Xxxxxx
X.
Mattiolli at (000) 000-0000
If
to the
Corporation’s Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxxxx Xxxxxx, LLP
Counsel:
000
Xxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx
X. Xxxxxx, Esq.
Telephone: (000)
000-0000
Facsimile:
(000)
000-0000
If
to the
Shareholders to the addresses set forth opposite their names on the signature
pages hereto; or to such other address or to such other person as such parties
shall have last designated by notice to the other parties.
10. MISCELLANEOUS.
10.1. Competition.
The
Corporation, its officers, directors and shareholders understand that Xxxxxx
X.
Xxxxxxxx, III, is currently involved in other motor racing /NASCAR projects
and
venues which may be deemed to be in competition with the Corporation in the
motor racing business and in the participation of current and future businesses,
projects or venues and it is hereby agreed that Xx. Xxxxxxxx shall be free
to
continue to operate, own, participate in the management of and consult with
any
and all motor racing and other projects that Xx. Xxxxxxxx wishes to participate
in now and in the future
10.2. Corporate
Acts.
The
Shareholders hereby agree that, in any case in which the Corporation is
obligated or has an option to purchase the Shares of a Shareholder pursuant
to
the terms of this Agreement, the Shareholder selling Shares shall take such
action as is necessary and lawful to authorize such purchase.
10.3. Entire
Agreement; Modification.
This
Agreement constitutes the entire final agreement among the parties with respect
to the subject matter hereof and supersedes any and all prior agreements among
the parties both oral and written concerning the subject matter of this
Agreement. Each Shareholder and the Corporation ratify and approve all transfers
and issuance of Shares through the date hereof. Neither this Agreement nor
any
term hereof may be amended, waived, discharged, or terminated, except by written
instrument signed by the Corporation, and holders of 100% of the Shares.
Notwithstanding the foregoing, the execution of a joinder or similar agreement
by which a transferee of a Shareholder or a new Shareholder agrees to be bound
by and become a party to this Agreement in the manner contemplated by this
Agreement shall not be deemed an amendment, and shall be effective upon
execution by such Shareholder and approval by the Board of
Directors.
10.4. Binding
Effect; Successors and Assigns.
This
Agreement shall be binding upon, inure to the benefit of, and be enforceable
by,
the parties to this Agreement and their respective administrators, legal
representatives, nominees, heirs, successors and permitted assigns and
transferees. If any person or entity shall acquire any Shares in any manner,
whether by operation of law or otherwise, such Shares shall be held subject
to
all of the terms of this Agreement and, by taking and holding such Shares,
such
person or entity shall be deemed conclusively to have agreed to be bound by
and
to perform all of the terms of this Agreement. No such acquiring person shall
sell, transfer, assign or encumber such Shares, except in accordance with the
terms of this Agreement.
-7-
10.5. Severability.
If any
provision of this Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall
not
in any way affect or render invalid or unenforceable any other provision of
this
Agreement, and this Agreement shall be carried out as if such invalid or
unenforceable provision were not contained in this Agreement.
10.6. Counterparts.
This
Agreement may be executed in any number of counterparts, all of which together
shall constitute one and the same instrument.
10.7. Waivers
and Remedies.
The
waiver by any of the parties of any other party’s prompt and complete
performance, or breach or violation, of any provision of this Agreement shall
not operate nor be construed as a waiver of any prior or subsequent breach
or
violation, and the waiver by any of the parties to exercise any right or remedy
which he or it may possess under this Agreement shall not operate nor be
construed as a bar to the exercise of such right or remedy by such party upon
the occurrence of any subsequent breach or violation.
10.8. Attorneys’
Fees.
In the
event that any of the parties to this Agreement institutes suit against any
other party to this Agreement to enforce any of their rights under this
Agreement, the prevailing party in such action shall be entitled to recover
from
the other party all reasonable costs thereof, including reasonable attorneys’
fees.
10.9. Additional
Assurances.
Each
party to this Agreement covenants and agrees with the others that each of them
shall, upon the reasonable request of any other of them, do, execute or cause
to
be made, done or executed, all such further lawful acts, deeds, things, devices,
agreements, instruments and assurances whatsoever for the better or more perfect
and absolute performance of the terms, conditions and provisions of this
Agreement.
10.10. Specific
Performance.
Each of
the parties acknowledges and agrees that the Shares are unique and are not
freely transferable or marketable and for those reasons, among others, the
parties would be irreparably damaged in the event that the provisions of this
Agreement are not performed in accordance with their specific terms or are
otherwise breached and that monetary damages would not provide an adequate
remedy in such event. Accordingly, it is agreed that in addition to any other
remedy to which the parties may be entitled at law or in equity, each of the
parties shall be entitled to injunctive relief to prevent breaches of the
provisions of this Agreement and, specifically, to enforce the terms and
provisions of this Agreement in any action instituted in any court of competent
jurisdiction thereof.
10.11. No
Third Party Beneficiary.
Nothing
expressed or implied in this Agreement is intended, or shall be construed,
to
confer upon any person or entity other than the parties hereto and their
respective legal representatives, heirs, successors and permitted assigns and
transferees, any rights or remedies under or by reason of this
Agreement.
10.12. Governing
Law; Jury Trial Waiver.
The
parties acknowledge that this Agreement shall be governed by and construed
and
enforced in accordance with the laws of the state in which the Corporation
is
then incorporated. THE PARTIES EXPRESSLY WAIVE ANY RIGHTS WHICH THEY MAY HAVE
TO
A TRIAL BY JURY.
-8-
10.13. Construction.
This
Agreement shall be interpreted and construed without regard to any rule or
presumption requiring that this Agreement be interpreted or construed against
the party causing this Agreement to be drafted.
10.14. Indemnification.
The
Corporation shall indemnify and hold harmless any director, officer, Shareholder
or employee who is a party to this Agreement against any actual losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and the costs, fees and expenses of legal counsel) incurred by such person
in
connection with the defense of any action, suit or proceeding to which such
person is made a party by reason of being or having been such director, officer,
Shareholder or employee, except for gross negligence or intentional wrongdoing
on the part of such person; provided, however, that in all events such person
shall indemnify and hold harmless the Corporation against any actual losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and the costs, fees and expenses of legal counsel) in respect
of
any action, suit, cause, claim, demand, payment or liability arising by reason
of any and all gross negligence and/or intentional wrongdoing on the part of
such person.
10.15. Independent
Legal Representation.
Each of
the Shareholders acknowledges and represents that he or it has been advised
by
the Corporation, the Corporation’s counsel and the other Shareholders to seek
independent legal counsel with respect to the negotiation, preparation and
execution of this Agreement. None of the Shareholders has been represented
by
counsel to the Corporation or by the Corporation’s business of tax
advisors.
[Signatures
begin on the following pages]
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IN
WITNESS WHEREOF, the parties to this Agreement have set their hands and seals
as
of the day and year first above written.
| MOTORSPORTS & ENTERTAINMENT OF TENNESSEE, INC., a Nevada corporation | ||
| |
|
|
| By: | /s/ Xxxxxx X. Mattiolli, III | |
|
Name: Xxxxxx X. Mattiolli, III |
||
| Title: President | ||
|
THE
SHAREHOLDERS:
AMERICAN RACING CAPITAL,
INC.,
a
Nevada corporation
|
||
| |
|
|
| By: | /s/ A. Xxxxxx Xxxxxxxxx | |
|
Name: A. Xxxxxx Xxxxxxxxx |
||
| Title: President and CEO | ||
| LJ & J ENTERPRISES, INC., a Pennsylvania corporation | ||
| |
|
|
| By: | /s/ Xxxxxx X. Mattiolli, III | |
|
Name: Xxxxxx X. Mattiolli, III |
||
| Title: President | ||
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Schedule
A
SHAREHOLDERS
OF
MOTORSPORTS
& ENTERTAINMENT OF TENNESSEE, INC.
|
Name
|
Address
|
Total
Number
of
Company
Common
Shares
Owned
|
Ownership
Percentage
|
|||
|
0000
Xxxxxxx Xxxxx Xxx
Xxxxx,
XX 00000
|
510
|
51%
|
||||
|
LJ&J
Enterprises, Inc.
|
X.X.
Xxx 000
Xxxx
Xxxx, XX 00000
|
490
|
49%
|
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