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EXHIBIT 10.6
SECOND 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 Second Amendment ("Second 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
WHEREAS the parties entered into the Agreement as of April 1, 1997, as
amended by a First Amendment executed on May 15, 1997, and
WHEREAS on May 15, 1997, the Purchaser exercised the Purchase Option
described in the Agreement, whereby the Stockholder tendered to PMI her
certificates for shares of stock in North Carolina Motor Speedway, Inc. in
exchange for shares of common stock of PMI (the "XxXxxx PMI Shares"), and
WHEREAS the Stockholder has no current plan or intention of selling or
otherwise disposing of the XxXxxx PMI Shares in a taxable transaction for the
foreseeable future.
THEREFORE, for $1.00 and other good and valuable consideration, the
parties hereto agree that the first portion of clause 1(b)(iv) on Page 5 of the
Agreement 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
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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, (i)
prior to the earlier of the Stockholder's death or May 15, 2000,
up to $5,000,000 in value of the XxXxxx PMI Shares and (ii)
thereafter 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 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)."
In all other respects, the Agreement shall remain in full force and effect
and shall be enforceable between the parties in accordance with its original
terms. This Second Amendment shall be effective as of the date of the exercise
of the Purchase Option by the Purchaser on May 15, 1997.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of May
15, 1997.
PENSKE ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxx
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Vice President
PENSKE MOTORSPORTS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Senior Vice President
STOCKHOLDER:
By: /s/ Xxxxxx X. XxXxxx
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Xxxxxx X. XxXxxx
The undersigned is executing this Agreement only to represent its
agreement to the undertaking of PSH Corp., as set forth in this Second
Amendment and the Agreement.
PSH CORP.
By: /s/ Xxxxx X. Xxxxxx
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Assistant Secretary
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