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EXHIBIT 2.2
FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDER OPTION
AND VOTING AGREEMENT
BETWEEN XXXXXX X. XXXXXX, STOCKHOLDER
AND PENSKE ACQUISITION, INC.,
AND PENSKE MOTORSPORTS, INC., PURCHASER
This First Amendment ("First Amendment") to Amended and Restated Stockholder
Option and Voting Agreement (the "Agreement"), dated as of April 1, 1997, by
and among XXXXXX X. XXXXXX (the "Stockholder") and PENSKE ACQUISITION, INC.,
("PA"), a North Carolina corporation, and PENSKE MOTORSPORTS, INC., ("PMI"), a
Delaware corporation (sometimes together referred to as the "Purchaser").
RECITALS
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A. On April 1, 1997, the parties hereto entered into the Agreement;
B. The parties desire to make certain changes to the Agreement, all on the
terms and conditions contained herein.
THEREFORE, for $1.00 and other good and valuable consideration, the parties
hereto agree as follows:
1. On Page 2 of the Agreement, the reference in Section 1(a)(ii) to ", LESS
$1,400,000" is hereby replaced with the phrase ", LESS ANY AMOUNTS
DISBURSED TO STOCKHOLDER BY THE ESCROW AGENT PURSUANT TO THE ESCROW
AGREEMENT ATTACHED HERETO AS EXHIBIT A,."
2. On Page 3, in the preamble to Section 1(b) of the Agreement the phrase
"SET FORTH IN CLAUSES (ii) AND (iii) BELOW" is hereby amended to read "SET
FORTH IN CLAUSE (iv) BELOW."
3. On Page 3 of the Agreement, the first portion of clause 1(b)(iii) is
hereby amended by replacing the portion of clause 1(b)(iii) on Page 3 of
the Agreement, with the following:
"(iii) PSH CORP., A DELAWARE CORPORATION ("PSH"), HEREBY UNDERTAKES AND
AGREES THAT IN THE EVENT STOCKHOLDER ACQUIRES XXXXXX PMI SHARES
PURSUANT TO THE MERGER, AFTER STOCKHOLDER'S DEATH IF (i) HER ESTATE
REQUESTS AT ANY TIME WITHIN SEVEN (7) MONTHS FOLLOWING THE LATER TO
OCCUR OF (A) THE DATE OF THE STOCKHOLDER'S DEATH AND (B) THE DATE OF
THE MERGER, THAT PMI AT PMI'S SOLE COST AND EXPENSE WILL ARRANGE FOR
A SECONDARY PUBLIC OFFERING OF PART OR ALL OF THE XXXXXX PMI SHARES
(THE "REQUEST"), THE NET PROCEEDS OF WHICH SHALL NOT BE LESS THAN
THE MINIMUM VALUE (AS DEFINED BELOW) MULTIPLIED BY THE NUMBER OF
XXXXXX PMI SHARES BEING SOLD (WHICH AMOUNT SHALL BE PAID TO
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STOCKHOLDER'S ESTATE NOT LATER THAN SIXTY (60) DAYS AFTER THE
REQUEST) AND (ii) SUCH SECONDARY OFFERING CANNOT BE ACCOMPLISHED
AND THE PROCEEDS PAID TO THE STOCKHOLDER'S ESTATE WITHIN SIXTY
(60) DAYS AFTER THE REQUEST ON THE TERMS SET FORTH HEREIN (UNLESS
DUE TO THE FAULT OF STOCKHOLDER'S ESTATE), THEN THE STOCKHOLDER'S
ESTATE CAN REQUIRE PSH TO PURCHASE, BY THE EARLIER OF (x) THE DATE
EIGHT AND ONE-HALF (8.5) MONTHS FOLLOWING THE LATER TO OCCUR OF
(i) THE DATE OF STOCKHOLDER'S DEATH AND (ii) THE DATE OF THE
MERGER AND (y) THE DATE WHICH IS THIRTY (30) DAYS AFTER THE DATE
WHEN PSH NOTIFIES THE ESTATE..."
4. On Page 5 of the Agreement, the first portion of clause 1(b)(iv) is
hereby amended by replacing the first paragraph of clause 1(b)(iv) on page
5 of the Agreement with the following:
"(iv) PSH ALSO HEREBY UNDERTAKES AND AGREES THAT IN THE EVENT THE
PURCHASE OPTION IS EXERCISED, AND THE PURCHASER PURCHASES THE SHARES
OF STOCKHOLDER PURSUANT TO THE PURCHASE OPTION, THEN UPON THE
EARLIER OF THE STOCKHOLDER'S DEATH, OR AFTER THE EXPIRATION OF ONE
YEAR FROM THE DATE OF SUCH PURCHASE, IF (i) THE STOCKHOLDER OR THE
STOCKHOLDER'S ESTATE HAS REQUESTED AT ANY TIME BEFORE THE DATE SEVEN
(7) MONTHS FOLLOWING THE LATER TO OCCUR OF (A) THE DATE OF
STOCKHOLDER'S DEATH AND (B) THE DATE STOCKHOLDER OR STOCKHOLDER'S
ESTATE ACQUIRES THE XXXXXX PMI SHARES PURSUANT TO AN EXERCISE OF THE
PURCHASE OPTION, PMI AT PMI'S SOLE COST AND EXPENSE WILL ARRANGE FOR
A SECONDARY PUBLIC OFFERING OF PART OR ALL OF THE XXXXXX PMI SHARES
(THE "ALTERNATIVE REQUEST"), THE NET PROCEEDS OF WHICH SHALL NOT BE
LESS THAN THE MINIMUM VALUE MULTIPLIED BY THE NUMBER OF XXXXXX PMI
SHARES BEING SOLD (WHICH AMOUNT SHALL BE PAID TO STOCKHOLDER OR
STOCKHOLDER'S ESTATE NOT LATER THAN SIXTY (60) DAYS AFTER THE
ALTERNATIVE REQUEST) AND (ii) SUCH SECONDARY OFFERING CANNOT BE
ACCOMPLISHED AND THE PROCEEDS PAID TO THE STOCKHOLDER OR THE
STOCKHOLDER'S ESTATE WITHIN SIXTY (60) DAYS AFTER THE ALTERNATIVE
REQUEST ON THE TERMS SET FORTH HEREIN (UNLESS DUE TO THE FAULT OF
STOCKHOLDER), THEN THE STOCKHOLDER OR THE STOCKHOLDER'S ESTATE CAN
REQUIRE PSH TO PURCHASE, BY THE DATE WHICH IS THIRTY (30) DAYS AFTER
THE DATE WHEN PSH NOTIFIES THE STOCKHOLDER OR THE STOCKHOLDER'S
ESTATE (OR IT OTHERWISE BECOMES APPARENT) THAT PSH CANNOT ACCOMPLISH
SUCH SECONDARY OFFERING, UP TO $27,000,000 IN VALUE OF THE XXXXXX
PMI SHARES AT A PURCHASE PRICE EQUAL TO THE GREATEST OF: (A) THE
THEN FAIR MARKET VALUE OF THE XXXXXX PMI SHARES TENDERED BY THE
STOCKHOLDER OR THE STOCKHOLDER'S ESTATE; OR (B) THE MINIMUM VALUE
PER XXXXXX PMI SHARE (SUBJECT TO ADJUSTMENT FOR ANY INCREASE OR
DECREASE OR OTHER ADJUSTMENT IN THE PMI COMMON STOCK BY REASON OF
STOCK DIVIDENDS, SPLIT-UP, RECAPITALIZATIONS, COMBINATIONS,
EXCHANGES OF SHARES OR THE LIKE) MULTIPLIED BY THE NUMBER OF SHARES
BEING TENDERED; OR (C) $27,000,000, LESS THE GROSS PROCEEDS RECEIVED
BY THE STOCKHOLDER OR THE STOCKHOLDER'S ESTATE FOR SHARES
PREVIOUSLY SOLD, FOR ALL REMAINING
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XXXXXX PMI SHARES; OR (D) THE THEN FAIR MARKET VALUE OF
THE XXXXXX PMI SHARES TENDERED PLUS THE EXCESS OF $30.00 PER SHARE
TIMES THE NUMBER OF SHARES PREVIOUSLY SOLD OVER THE GROSS PROCEEDS
RECEIVED BY THE STOCKHOLDER OR THE STOCKHOLDER'S ESTATE UPON SUCH
SALE; PROVIDED, HOWEVER, THAT THE STOCKHOLDER OR THE STOCKHOLDER'S
ESTATE PROVIDES TO PSH REASONABLE DOCUMENTATION ESTABLISHING THE
GROSS SALE PRICE OF XXXXXX PMI SHARES SOLD. THE STOCKHOLDER OR
THE STOCKHOLDER'S ESTATE AT THE REQUEST OF PSH MAY (BUT SHALL NOT
BE REQUIRED TO) EXTEND ANY TIME PERIODS PROVIDED HEREIN UPON
ARRANGEMENTS SATISFACTORY TO THE STOCKHOLDER OR THE STOCKHOLDER'S
ESTATE THAT PROVIDE FOR ANY NECESSARY INTERIM FINANCING,
INCLUDING, WITHOUT LIMITATION, REQUIRING THAT PSH PAY INTEREST
THEREON, OF ESTATE TAXES AND A SATISFACTORY EXTENSION OF THE
LETTER OF CREDIT (AS HEREINAFTER DEFINED)."
5. On Page 6 of the Agreement, the first paragraph on such page is hereby
replaced with the following:
"IN THE EVENT STOCKHOLDER OR STOCKHOLDER'S ESTATE DESIRES TO TRANSFER THE
XXXXXX PMI SHARES, OR UPON THE ALTERNATE REQUEST BY THE STOCKHOLDER OR
THE STOCKHOLDER'S ESTATE FOR A SECONDARY PUBLIC OFFERING OF THE XXXXXX
PMI SHARES AS PROVIDED ABOVE, PSH WILL HAVE THE RIGHT FOR 60 DAYS AFTER
THE DATE OF THE ALTERNATE REQUEST, AND PRIOR TO THE COMMENCEMENT OF A
SECONDARY PUBLIC OFFERING, TO PURCHASE THE XXXXXX PMI SHARES PROPOSED TO
BE TRANSFERRED BY STOCKHOLDER OR TENDERED BY STOCKHOLDER'S ESTATE AT A
PURCHASE PRICE EQUAL TO THE GREATEST OF (i) THE THEN FAIR MARKET VALUE OF
THE XXXXXX PMI SHARES TENDERED BY STOCKHOLDER OR STOCKHOLDER'S ESTATE, OR
(ii) THE MINIMUM VALUE PER XXXXXX PMI SHARE (SUBJECT TO ADJUSTMENT FOR
ANY INCREASE OR DECREASE OR OTHER ADJUSTMENT IN THE PMI COMMON STOCK BY
REASON OF STOCK DIVIDENDS, SPLIT-UP, RECAPITALIZATIONS, COMBINATIONS,
EXCHANGE OF SHARES OR THE LIKE) MULTIPLIED BY THE NUMBER OF SHARES BEING
TENDERED, OR (iii) $27,000,000 LESS THE GROSS PROCEEDS RECEIVED BY THE
STOCKHOLDER OR THE STOCKHOLDER'S ESTATE FOR SHARES PREVIOUSLY SOLD, FOR
ALL REMAINING XXXXXX PMI SHARES, OR (iv) THE THEN FAIR MARKET VALUE OF
THE XXXXXX PMI SHARES TENDERED PLUS THE EXCESS OF $30.00 PER SHARE TIMES
THE NUMBER OF SHARES PREVIOUSLY SOLD OVER THE GROSS PROCEEDS RECEIVED BY
THE STOCKHOLDER OR HER ESTATE UPON SUCH SALE. THE UNDERTAKING OF PSH
UNDER THIS PARAGRAPH 1(b)(iv) SHALL BE SECURED BY THE LETTER OF CREDIT,
BUT WITHOUT THE REQUIREMENT FOR THE DELIVERY OF A DEATH CERTIFICATE OF
STOCKHOLDER AS A CONDITION TO DRAW THEREUNDER. SUCH LETTER OF CREDIT
SHALL BE MAINTAINED AT THE EXPENSE OF PSH FOR THE TERM OF PSH'S
COMMITMENTS UNDER THIS PARAGRAPH 1(b)(iv)."
6. On Page 6 of the Agreement, the second paragraph on such page is hereby
replaced with the following:
"PROVIDED, THAT IN THE EVENT STOCKHOLDER OR STOCKHOLDER'S ESTATE SELLS OR
TRANSFERS PART OR ALL OF THE XXXXXX PMI SHARES PRIOR TO OR IN CONNECTION
WITH THE EXERCISE OF RIGHTS UNDER THIS PARAGRAPH, THEN THE AMOUNT OF THE
LETTER OF
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CREDIT SECURING SUCH OBLIGATION SHALL BE REDUCED BY THE AMOUNT
EQUAL TO THE NUMBER OF XXXXXX PMI SHARES SOLD OR TRANSFERRED MULTIPLIED
BY $30.00 PER SHARE."
7. On Pages 6 and 7 of the Agreement, the first paragraph of clause 1(b)(v)
of the Agreement is hereby replaced with the following:
"PSH FURTHER UNDERTAKES AND AGREES THAT IN THE EVENT THAT STOCKHOLDER
ACQUIRES SHARES OF PMI COMMON STOCK PURSUANT TO THE PUT OPTION (AS
DEFINED BELOW), IF (i) STOCKHOLDER OR STOCKHOLDER'S ESTATE HAS REQUESTED
AT ANY TIME WITHIN SEVEN (7) MONTHS FOLLOWING THE LATER TO OCCUR OF (A)
THE DATE OF THE STOCKHOLDER'S DEATH AND (B) THE DATE OF STOCKHOLDER'S
DELIVERY OF NOTICE OF EXERCISE OF THE PUT OPTION, THAT PMI AT PMI'S SOLE
COST AND EXPENSE, ARRANGE FOR A SECONDARY PUBLIC OFFERING OF PART OR ALL
OF THE XXXXXX PMI SHARES THEN HELD BY THE STOCKHOLDER'S ESTATE (THE "PUT
REQUEST"), THE NET PROCEEDS OF WHICH SHALL NOT BE LESS THAN THE MINIMUM
VALUE MULTIPLIED BY THE NUMBER OF XXXXXX PMI SHARES BEING SOLD (WHICH
AMOUNT SHALL BE PAID TO STOCKHOLDER'S ESTATE NOT LATER THAN SIXTY (60)
DAYS AFTER THE PUT REQUEST) AND (ii) SUCH SECONDARY OFFERING CANNOT BE
ACCOMPLISHED AND THE PROCEEDS PAID TO STOCKHOLDER'S ESTATE WITHIN SIXTY
(60) DAYS AFTER THE PUT REQUEST ON THE TERMS SET FORTH HEREIN (UNLESS DUE
TO THE FAULT OF STOCKHOLDER OR THE STOCKHOLDER'S ESTATE), THEN
STOCKHOLDER'S ESTATE CAN REQUIRE PSH, BY THE EARLIER OF (x) THE DATE
EIGHT AND ONE-HALF (8.5) MONTHS FOLLOWING THE LATER TO OCCUR OF (i) THE
DATE OF STOCKHOLDER'S DEATH AND (ii) THE DATE OF STOCKHOLDER'S DELIVERY
OF NOTICE OF EXERCISE OF THE PUT OPTION, AND (y) THE DATE WHICH IS THIRTY
(30) DAYS AFTER THE DATE WHEN PSH NOTIFIES THE ESTATE (OR IT OTHERWISE
BECOMES APPARENT) THAT PSH CANNOT ACCOMPLISH SUCH SECONDARY OFFERING, TO
PURCHASE UP TO $27,000,000 IN VALUE OF THE XXXXXX PMI SHARES AT A
PURCHASE PRICE EQUAL TO THE GREATER OF (i) THE THEN FAIR MARKET VALUE OF
THE XXXXXX PMI SHARES TENDERED BY STOCKHOLDER'S ESTATE, OR (ii) THE
MINIMUM VALUE PER XXXXXX PMI SHARE (SUBJECT TO ADJUSTMENT FOR ANY
INCREASE OR DECREASE OR OTHER ADJUSTMENT IN THE PMI COMMON STOCK BY
REASON OF STOCK DIVIDENDS, SPLIT-UP, RECAPITALIZATIONS, COMBINATIONS,
EXCHANGES OF SHARES OR THE LIKE) BEING TENDERED, OR (iii) $27,000,000
LESS THE GROSS PROCEEDS RECEIVED BY THE STOCKHOLDER OR THE STOCKHOLDER'S
ESTATE FOR SHARES PREVIOUSLY SOLD; OR (iv) THE THEN FAIR MARKET VALUE OF
THE XXXXXX PMI SHARES TENDERED PLUS THE EXCESS OF $30.00 PER SHARE TIMES
THE NUMBER OF SHARES PREVIOUSLY SOLD OVER THE GROSS PROCEEDS RECEIVED BY
THE STOCKHOLDER OR HER ESTATE UPON SUCH SALE. IN THE WRITTEN
UNDERTAKING, PSH SHALL ALSO AGREE TO PAY TO STOCKHOLDER'S ESTATE, BY THE
DATE NINE (9) MONTHS AFTER THE DATE OF STOCKHOLDER'S DEATH, AN AMOUNT
EQUAL TO THE AGGREGATE OF THE DIFFERENCE BETWEEN THE MINIMUM VALUE AND
THE GROSS SALE PRICE PER SHARE OF XXXXXX PMI SHARES SOLD BY THE
STOCKHOLDER OR THE STOCKHOLDER'S ESTATE PRIOR TO SUCH DATE; PROVIDED THAT
THE STOCKHOLDER'S ESTATE PROVIDES TO PSH REASONABLE DOCUMENTATION
ESTABLISHING THE GROSS SALE PRICE OF XXXXXX PMI SHARES SOLD. THE
STOCKHOLDER'S ESTATE AT THE REQUEST OF PSH MAY (BUT SHALL NOT BE REQUIRED
TO) EXTEND ANY TIME PERIODS PROVIDED HEREIN UPON ARRANGEMENTS SATISFACTORY
TO THE STOCKHOLDER'S ESTATE THAT
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PROVIDE FOR ANY NECESSARY INTERIM FINANCING, INCLUDING,
WITHOUT LIMITATION, REQUIRING THAT PSH PAY INTEREST THEREON, OF ESTATE
TAXES AND A SATISFACTORY EXTENSION OF THE LETTER OF CREDIT."
8. On Page 7 the following is hereby inserted at the end of the second line
from the bottom of Page 7 following the phrase "or (ii) Minimum Value":
"...PER XXXXXX PMI SHARE (SUBJECT TO ADJUSTMENT FOR ANY INCREASE OR
DECREASE OR OTHER ADJUSTMENT IN THE PMI COMMON STOCK BY REASON OF STOCK
DIVIDENDS, SPLIT-UP, RECAPITALIZATIONS, COMBINATIONS, EXCHANGES OF SHARES
OR THE LIKE) BEING TENDERED; OR (iii) $27,000,000 LESS THE GROSS PROCEEDS
RECEIVED BY THE STOCKHOLDER OR THE STOCKHOLDER'S ESTATE FOR SHARES
PREVIOUSLY SOLD, FOR ALL REMAINING XXXXXX PMI SHARES; OR (iv) THE THEN
FAIR MARKET VALUE OF THE XXXXXX PMI SHARES TENDERED PLUS THE EXCESS OF
$30.00 PER SHARE TIMES THE NUMBER OF SHARES PREVIOUSLY SOLD OVER THE
GROSS PROCEEDS RECEIVED BY THE STOCKHOLDER OR HER ESTATE UPON SUCH SALE."
9. On Page 8 the first full paragraph on such page is hereby replaced with
the following:
"PROVIDED THAT IN THE EVENT STOCKHOLDER OR STOCKHOLDER'S ESTATE SELLS OR
TRANSFERS PART OR ALL OF THE XXXXXX PMI SHARES PRIOR TO OR IN CONNECTION
WITH THE EXERCISE OF RIGHTS UNDER THIS PARAGRAPH, THE AMOUNT OF THE
LETTER OF CREDIT SECURING SUCH OBLIGATION SHALL BE REDUCED BY THE AMOUNT
EQUAL TO THE NUMBER OF XXXXXX PMI SHARES SOLD OR TRANSFERRED MULTIPLIED
BY $30.00 PER SHARE."
10. The following representations and warranties are inserted at the end of
section 4 of the Agreement on Page 11 of the Agreement.
"(i) STOCKHOLDER HEREBY CONFIRMS THAT THE XXXXXX PMI SHARES TO BE
RECEIVED BY STOCKHOLDER UPON EXERCISE OF THE PURCHASE OPTION WILL BE
ACQUIRED FOR INVESTMENT FOR HER OWN ACCOUNT, NOT AS A NOMINEE OR
AGENT, AND NOT WITH A VIEW TO THE SALE OR DISTRIBUTION OF ANY PART
THEREOF, AND THAT SHE HAS, EXCEPT AS SET FORTH, OR OTHERWISE
CONTEMPLATED, IN THIS AGREEMENT, NO PRESENT INTENTION OF SELLING,
GRANTING PARTICIPATION IN, OR OTHERWISE DISTRIBUTING THE SAME, BUT
SUBJECT, NEVERTHELESS, TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF HER PROPERTY SHALL AT ALL TIMES BE WITHIN HER
CONTROL. STOCKHOLDER DOES NOT HAVE ANY CONTRACT, UNDERTAKING,
AGREEMENT, OR ARRANGEMENT WITH ANY PERSON TO SELL, TRANSFER, OR
GRANT PARTICIPATIONS IN SUCH PERSON, OR TO ANY THIRD PERSON, WITH
RESPECT TO THE XXXXXX PMI SHARES RECEIVED BY HER UPON PMI'S EXERCISE
OF THE PURCHASE OPTION.
(j) STOCKHOLDER UNDERSTANDS THAT THE XXXXXX PMI SHARES ISSUED TO
STOCKHOLDER UPON EXERCISE OF THE PURCHASER OPTION ARE NOT REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "1933 ACT")
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BECAUSE SUCH ISSUANCE IS EXEMPT FROM REGISTRATION UNDER THE 1933 ACT
AND THAT THE COMPANY'S RELIANCE ON SUCH EXEMPTION IS, AMONG OTHER
THINGS, PREDICATED ON STOCKHOLDER'S REPRESENTATIONS AS SET FORTH
HEREIN.
(k) STOCKHOLDER REPRESENTS AND WARRANTS THAT SHE IS AN
"ACCREDITED" INVESTOR AS THAT TERM IS DEFINED IN REGULATION D
PROMULGATED PURSUANT TO THE 1933 ACT.
(l) STOCKHOLDER UNDERSTANDS THAT THE XXXXXX PMI SHARES ISSUED TO
STOCKHOLDER UPON EXERCISE OF THE PURCHASE OPTION MAY NOT BE SOLD,
TRANSFERRED, OR OTHERWISE DISPOSED OF WITHOUT REGISTRATION UNDER THE
1933 ACT OR AN EXEMPTION THEREFROM.
(m) STOCKHOLDER UNDERSTANDS THAT ALL CERTIFICATES FOR XXXXXX PMI
SHARES ISSUED TO STOCKHOLDER UPON EXERCISE OF THE PURCHASE OPTION
SHALL BEAR A LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
(n) IN ADDITION TO THE LEGEND REQUIREMENT TO BE PLACED ON THE
STOCK CERTIFICATES, STOCKHOLDER UNDERSTANDS THAT PMI WILL MAKE A
NOTATION REGARDING THE RESTRICTIONS ON TRANSFER OF THE XXXXXX PMI
SHARES ISSUED UPON EXERCISE OF THE PURCHASE OPTION IN ITS BOOKS, AND
SUCH SHARES OF COMMON STOCK SHALL BE TRANSFERRED ON THE BOOKS OF PMI
ONLY IF TRANSFERRED OR SOLD PURSUANT TO AND IN COMPLIANCE WITH THE
PROVISIONS OF THIS AGREEMENT."
11. SECTION 18 of the Agreement is hereby amended by adding the following as
PARAGRAPH (b) OF SECTION 18 and the existing PARAGRAPHS 18(b), (c), AND
(d) shall be re-lettered as PARAGRAPH 18(c), (d), AND (e), respectively.
In addition, the reference to "SUBSECTION 18(a)" in the third line of the
existing SECTION 18(b) shall hereby be amended to read as "SUBSECTIONS
18(a) AND (b)."
"(b) IN THE EVENT THAT STOCKHOLDER ACQUIRES SHARES OF PMI COMMON
STOCK PURSUANT TO THE EXERCISE BY PMI OF THE PURCHASE OPTION DURING
1997, STOCKHOLDER AGREES TO REPORT, IN HER STATE AND FEDERAL INCOME
TAX RETURNS FOR THE YEAR ENDED DECEMBER 31, 1997, THE EXCHANGE OF
SHARES IN SUCH TRANSACTION AS A TAX-FREE EXCHANGE IF (i) THE
MERGER IS COMPLETED PRIOR TO JANUARY 1, 1998 OR (ii) PMI DELIVERS
TO STOCKHOLDER WRITTEN NOTICE AS OF DECEMBER 31, 1997 CONFIRMING
THAT PMI'S EXERCISE OF THE PURCHASE OPTION WAS PURSUANT TO A PLAN
TO EFFECT AN ACQUISITION OF THE COMPANY IN A SERIES OF
TRANSACTIONS CONSTITUTING A TAX-FREE
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EXCHANGE AND THAT THE ACQUISITION OF THE COMPANY IN THE MERGER IS
THEN CONTEMPLATED TO BE COMPLETED AS SOON AS POSSIBLE. PMI
AGREES TO INDEMNIFY AND HOLD STOCKHOLDER AND HER HEIRS,
BENEFICIARIES, EXECUTORS, SUCCESSORS, AND ASSIGNS HARMLESS FROM
ANY CLAIMS (INCLUDING ANY PENALTIES AND INTEREST) ARISING OUT OF
OR RELATIVE TO ANY CLAIM, ACTION, SUIT, OR PROCEEDING (INCLUDING
ANY INVESTIGATION OR AUDIT BY A GOVERNMENTAL AUTHORITY) WITH
RESPECT TO SUCH TREATMENT BY STOCKHOLDER IN HER FEDERAL AND STATE
INCOME TAX RETURNS OF HER EXCHANGE OF SHARES PURSUANT TO THE
PURCHASE OPTION. THE LETTER OF CREDIT SHALL PERMIT STOCKHOLDER
AND HER EXECUTORS AND SUCCESSORS AND ASSIGNS TO MAKE DRAWINGS
UNDER THE LETTER OF CREDIT IN THE EVENT THAT PURCHASER FAILS TO
INDEMNIFY STOCKHOLDER, HER HEIRS, BENEFICIARIES, SUCCESSORS AND
ASSIGNS AS SET FORTH IN THE PRECEDING SENTENCE OR FAILS TO MAKE
TAX PAYMENTS UNDER SECTION 1(a)(ii), DEMAND FOR THE PAYMENT OF
WHICH MAY BE MADE NO EARLIER THAN 65 DAYS PRIOR TO THE FINAL DATE
SUCH PAYMENTS MAY BE MADE WITHOUT PENALTY (UPON ANY SUCH DRAWING,
PURCHASER SHALL CAUSE THE LETTER OF CREDIT TO BE REINSTATED AT AN
AMOUNT EQUAL TO THE AMOUNT THEREOF PRIOR TO SUCH DRAWING, AND IF
PURCHASER FAILS TO DO SO WITHIN FIVE (5) BUSINESS DAYS OF SUCH
DRAWING, IT SHALL PAY LIQUIDATED DAMAGES OF $25,000 PER MONTH
(PRO RATA FOR ANY PARTIAL MONTH) UNTIL THE LETTER OF CREDIT IS
REINSTATED). SUCH OBLIGATION BY PMI SHALL IN NO WAY DIMINISH
STOCKHOLDER'S RIGHTS TO RECEIVE PAYMENTS UNDER SECTION 1(a)(ii)
HEREOF WITH RESPECT TO INCOME TAX LIABILITIES, AND IN THE EVENT
THAT SUCH PAYMENTS ARE MADE BY PMI TO STOCKHOLDER OR DRAWINGS ARE
MADE UNDER THE LETTER OF CREDIT WITH RESPECT THERETO OR WITH
RESPECT TO TAX INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE AND
STOCKHOLDER MAKES PAYMENTS TO APPROPRIATE TAXING AUTHORITIES, PMI
SHALL BE SUBROGATED TO THE RIGHTS OF STOCKHOLDER WITH RESPECT TO
SUCH TAX PAYMENTS."
12. On PAGE 16 of the Agreement, SECTION 21 is hereby added, which SECTION 21
shall read as follows:
21. SALE OF SHARES: PURCHASER AGREES THAT IT, AND ITS
AFFILIATES, SHALL NOT, AT ANY TIME PRIOR TO MAY 15, 2002, SELL,
ASSIGN OR TRANSFER (INCLUDING BY MERGER) ANY OF THE SHARES, OR
PERMIT THE COMPANY TO SELL ALL OR SUBSTANTIALLY ALL OF ITS ASSETS,
TO XXXXXX XXXXX, SPEEDWAY MOTORSPORTS, INC., OR ANY AFFILIATE
THEREOF.
13. On PAGE 16 of the Agreement, SECTION 22 is hereby added, which SECTION 22
shall read as follows:
TAX OPINION: IN THE EVENT THAT PURCHASER ACQUIRES THE SHARES PURSUANT TO
THE PURCHASE OPTION, PURCHASER SHALL DELIVER TO THE STOCKHOLDER PROMPTLY
FOLLOWING THE APPROVAL OF THE MERGER BY THE SHAREHOLDERS OF THE COMPANY
THE FAVORABLE OPINION OF A LEGAL OR ACCOUNTING FIRM, IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE STOCKHOLDER, TO THE EFFECT THAT
THE TRANSFER OF THE
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SHARES PURSUANT TO THE PURCHASE OPTION AND THE MERGER
TAKEN TOGETHER CONSTITUTE A TAX-FREE REORGANIZATION PURSUANT TO THE
PROVISIONS OF SECTION 368 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
14. Except as expressly amended hereby, the Agreement remains in full force
and effect in accordance with its original terms.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first written above.
PENSKE ACQUISITION, INC.
BY:
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X.X. XXXXXX, PRESIDENT
PENSKE MOTORSPORTS, INC.
BY:
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X.X. XXXXXX, PRESIDENT
STOCKHOLDER:
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XXXXXX X. XXXXXX
SIGNATURES ON FOLLOWING PAGE
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The undersigned is executing this Agreement only to represent its agreement to
the undertaking of PSH Corp., set forth in this Amendment and the Agreement.
PSH Corp.
By:
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X.X. Xxxxxx, President
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