EXHIBIT 2.7
AMENDMENT TO AGREEMENTS
This Amendment to Agreements (this "Agreement"), dated as of July 30,
2004, is entered into by and among DIRT Motorsports, Inc., a New York
corporation ("DIRT"), Xxxxx Xxxxxxxx ("Xxxxxxxx"), Boundless Motor Sports
Racing, Inc., a Colorado corporation ("Boundless"), and Boundless Racing, Inc.,
a Texas corporation ("BRI").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend certain agreements among the
parties to the extent provided below;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
A. REFERENCE. Reference is hereby made to the following agreements
(collectively, the "Agreements"):
1. Stock Purchase Agreement, dated as of August 13, 2003, as
amended and extended (the "Stock Purchase Agreement"), by and among DIRT,
Xxxxxxxx, Boundless and BRI (assignee of Boundless Track Operations, Inc., a
Nevada corporation (f/k/a Boundless Motor Sports Racing, Inc. ("BTOI")).
2. Contract of Sale, dated as of August 13, 2003, as amended and
extended, by and among Xxxxxxxx, Boundless and BRI (assignee of BTOI) (the
"Contract of Sale").
B. CHANGE TO AGREEMENTS. Boundless is in the process of closing a
financing which will enable the Company to consummate the transactions
contemplated by the Agreements (the "Financing"). The Financing is expected to
be consummated on or prior to August 4, 2004. As a condition of the Financing,
the parties hereto have agreed to amend the Stock Purchase Agreement and
Contract of Sale (collectively, the "Agreements") as follows:
1. The aggregate purchase price due under the Agreements is
$2,925,000 (the "Aggregate Purchase Price"). The parties agree to close the
transactions under the Stock Purchase Agreement on or prior to August 6, 2004
(the "DIRT Closing"), and agree to close the transactions under the Contract of
Sale (the Contract Closing") as soon as reasonably possible after the Dirt
Closing. Notwithstanding anything to the contrary contained in the Agreements,
the Aggregate Purchase Price will be payable as follows:
(a) At the DIRT Closing BRI shall pay to Xxxxxxxx $2,000,000
in cash, by wire transfer of immediately available funds, of which $775,000
represents the balance payable by Boundless to Xxxxxxxx under the Stock Purchase
Agreement and $1,225,000 shall represent a refundable deposit toward the amounts
payable by Boundless under the Contract of Sale (the "Deposit").
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(b) At the Contract Closing (i) the Deposit shall become
non-refundable and shall be applied toward the purchase price due by Boundless
under the Contract of Sale, and (ii) the balance of the purchase price of
$925,000 shall be deferred (the "Deferred Payment") until such time as Boundless
has received from Xxxxxxxx audited financial statements through the date of the
Contract Closing (the "Audited Financial Statements") from DIRT's independent
accountants.
(c) The Deferred Payment shall be due and payable to Xxxxxxxx
within five (5) business days after Boundless' receipt of the Audited Financial
Statements; provided that, in the event the Audited Financial Statements
disclose any liabilities, the Deferred Payment due shall be offset by such
liabilities and only the balance of the Deferred Payment after such offsets, if
any, shall be due and payable to Xxxxxxxx (it being acknowledged and agreed that
the parties have agreed that DIRT will have no liabilities as of the date of
closing of the Stock Purchase Agreement, other than appropriate accruals, made
in accordance with U.S. Generally Accepted Accounting Principles, of revenues
collected or expenses paid in advance).
(d) If the Contract Closing does not occur on or prior to
August 19, 2004, unless otherwise mutually agreed, then Xxxxxxxx shall
immediately return the Deposit to Boundless by wire transfer of immediately
available funds.
2. The date references in Section 3.9 of the Stock Purchase
Agreement to December 31, 2001, 2002, and 2003 are hereby amended to September
30, 2001, 2002, and 2003.
3. The date references in Sections 3.13 and 3.14 of the Stock
Purchase Agreement are hereby changed from June 30, 2003 to September 30, 2003.
4. The date reference in Section 3.28 if the Stock Purchase
Agreement is hereby changed from August 31, 2003 to September 30, 2003.
5. Section 9.1(f) of the Stock Purchase is hereby amended and
restated in its entirety to read as follows:
"(f) an executed two-year Consulting Agreement between Parent and
Shareholder, substantially in the form attached hereto as Exhibit B (the
"Consulting Agreement");"
6. Section 9.2(e) of the Stock Purchase is hereby amended and
restated in its entirety to read as follows:
"(e) an executed Consulting Agreement;"
7. At the closing of the Financing, Xxxxxxxx shall execute and
deliver to Boundless a Lock-Up Agreement, in the form attached hereto as
Exhibit A.
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C. LOAN TO BOUNDLESS.
1. Prior to the date hereof, Boundless borrowed from Xxxxx
Xxxxxxxx $36,000.00 and, as of the date hereof, has repaid $20,000.00 (the
"Loan"). At the DIRT Closing, Boundless shall repay to Xxxxxxxx the remaining
$16,000.00 under the Loan.
D. FINGER LAKE NONCOMPETITION AGREEMENT.
1. Prior to the date hereof, Boundless and Xxxxxxxx, among
others, consummated the transactions contemplated under that certain Asset
Purchase Agreement, dated as of May 24, 2004, by and among Finger Lake
International, Inc., a New York corporation ("Seller"), Xxxxx Xxxxxxxx, Xxxxx X.
XxXxxxxx and Xxxx Xxxxxx, being all of the shareholders of Seller, Boundless and
BRI (the "FLI Purchase Agreement"). In connection with the FLI Purchase
Agreement, Boundless, Seller, and Messrs. Xxxxxxxx, DiMateo and Xxxxxx entered
into that certain Noncompetition Agreement dated as of May 24, 2004 (the
"Noncompetition Agreement"). At the DIRT Closing, Boundless shall pay all
accrued but unpaid amounts due to Messrs. DiMateo and Xxxxxx under the
Noncompetition Agreement.
E. MISCELLANEOUS.
1. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DIRT MOTORSPORTS, INC.
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, President
/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
BOUNDLESS MOTOR SPORTS RACING, INC.
By:/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Chief
Executive Officer
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BOUNDLESS RACING, INC.
By:/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Chief
Executive Officer
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EXHIBIT A
FORM OF LOCK-UP AGREEMENT
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