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Exhibit No. 10(vii)(a)
AMENDED AND RESTATED
FANZ ENTERPRISES, INC. PROMOTIONAL SHARES
LOCK-IN AGREEMENT
I. This Amended and Restated Promotional Shares Lock-In Agreement ("Agreement"),
which was entered into on the 19th day of July, 2001, by and among FANZ
ENTERPRISES, INC. ("Issuer"), whose principal place of business is located at
0000-X Xxxxxxxxxx Xxxxxx Xx., Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, and XXXXXXX
XXXXXX MOTORSPORTS, LLC, X. XXX XXXXXXXXX, XXXXXXXXX X. XXXXXXXX, XX and XXXXXXX
X. XXXXXXXXXX (each individually a "Security Holder" and collectively the
"Security Holders") witnesses that:
A. Issuer has filed an application with the Securities
Administrator of the States of Alabama, Arizona, Arkansas,
California, Colorado, Connecticut, Delaware, Florida,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Nevada, New Hampshire, New Jersey,
New York, North Carolina, Ohio, Oklahoma, Oregon,
Pennsylvania, South Carolina, Tennessee, Texas, Virginia,
West Virginia, and Wyoming ("Administrators") to register
certain of its Equity Securities for sale to public
investors who are residents of those states
("Registration");
B. The Security Holders are the owners of the shares of common
stock or similar securities and/or possess convertible
securities, warrants, options or rights which may be
converted into, or exercised to purchase shares of common
stock or similar securities of Issuer.
C. The Security Holders entered into a Promotional Shares
Lock-In Agreement dated June 13, 2001 (the "Original
Promotional Shares Lock-In Agreement"). Issuer has been
requested by Administrators to amend the Original
Promotional Shares Lock-In Agreement as a pre-condition to
approval of the Company's application for securities
registration under the Coordinated Equity Review Program.
D. As a condition to Registration, the Issuer and the Security
Holders ("Signatories") agree to be bound by the terms of
this Agreement.
II. THEREFORE, the Security Holders agree that this Amended and Restated FanZ
Enterprises, Inc. Promotional Shares Lock-In Agreement shall replace the
Original Promotional Shares Lock-In Agreement. As of the date of this Agreement,
the Original Promotional Shares Lock-In Agreement shall be deemed terminated and
of no effect.
III. THEREFORE, the Security Holders agree not to sell, pledge, hypothecate,
assign, grant any option for the sale of, or otherwise transfer or dispose of,
whether or not for consideration, directly or indirectly, PROMOTIONAL SHARES as
defined in the North American Securities Administrators Association ("NASAA")
Statement of Policy on Corporate Securities Definitions, and as set forth on
EXHIBIT 1 to this Agreement, and all certificates representing
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stock dividends, stock splits, recapitalizations, and the like, that are granted
to, or received by, the Security Holder while the PROMOTIONAL SHARES are subject
to this Agreement ("Restricted Securities").
Beginning two years from the completion date of the public offering,
two and one-half percent (2 1/2 %) of the Restricted Securities may be released
each quarter pro rata among the Security Holders. All remaining Restricted
Securities shall be released from escrow on the anniversary of the fourth year
from the completion date of the public offering.
IV. THEREFORE, the Signatories agree and will cause the following:
A. In the event of a dissolution, liquidation, merger,
consolidation, reorganization, sale or exchange of the
Issuer's assets or securities (including by way of tender
offer), or any other transaction or proceeding with a person
who is not a Promoter, which results in the distribution of
Issuer's assets or securities ("Distribution"), while this
Agreement remains in effect that:
1. All holders of Issuer's EQUITY SECURITIES will
initially share on a pro rata, per share basis in
the Distribution, in proportion to the amount of
cash or other consideration that they paid per
share for their EQUITY SECURITIES (provided that
the Administrator has accepted the value of the
other consideration), until the shareholders who
purchased Issuer's EQUITY SECURITIES pursuant to
the public offering ("Public Shareholders") have
received, or have had irrevocably set aside for
them, an amount that is equal to one hundred
percent (100%) of the public offering's price per
share times the number of shares of EQUITY
SECURITIES that they purchased pursuant to the
public offering and which they still hold at the
time of the Distribution, adjusted for stock
splits, stock dividends recapitalizations and the
like; and
2. All holders of Issuer's EQUITY SECURITIES shall
thereafter participate on an equal per share basis
times the number of shares of EQUITY SECURITIES
they hold at the time of the Distribution,
adjusted for stock splits, stock dividends,
recapitalizations and the like.
3. The Distribution may proceed on lesser terms and
conditions than the terms and conditions stated in
paragraphs 1 and 2 above if a majority of the
EQUITY SECURITIES that are not held by Security
Holders, officers, directors, or Promoters of the
Issuer, or their associates or affiliates vote, or
consent by consent procedure, to approve the
lesser terms and conditions.
B. In the event of a dissolution, liquidation, merger,
consolidation, reorganization, sale or exchange of the
Issuer's assets or securities (including by way of tender
offer), or any other transaction or proceeding with a person
who is a Promoter,
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which results in a Distribution while this Agreement remains
in effect, the Restricted Securities shall remain subject to
the terms of this Agreement.
C. Restricted Securities may be transferred by will, the laws
of descent and distribution, the operation of law, or by
order of any court of competent jurisdiction and proper
venue.
D. Restricted Securities of a deceased Security Holder may be
hypothecated to pay the expenses of the deceased Security
Holder's estate. The hypothecated Restricted Securities
shall remain subject to the terms of this Agreement.
Restricted Securities may not be pledged to secure any other
debt.
E. Restricted Securities may be transferred by gift to the
Security Holder's family members, provided that the
Restricted Securities shall remain subject to the terms of
this Agreement.
F. With the exception of paragraph A.3 above, the Restricted
Securities shall have the same voting rights as similar
EQUITY SECURITIES not subject to the Agreement.
G. A notice shall be placed on the face of each stock
certificate of the Restricted Securities covered by the
terms of the Agreement stating that the transfer of the
stock evidenced by the certificate is restricted in
accordance with the conditions set forth on the reverse side
of the certificate; and
H. A typed legend shall be placed on the reverse side of each
stock certificate of the Restricted Securities representing
stock covered by the Agreement which states that the sale or
transfer of the shares evidenced by the certificate is
subject to certain restrictions until the anniversary of the
fourth year from the completion date of the public offering
pursuant to an agreement between the Security Holder
(whether beneficial or of record) and Issuer, which
agreement is on file with Issuer and the stock transfer
agent from which a copy is available upon request and
without charge.
I. The term of this Agreement shall begin on the date that the
Registration is declared effective by the Administrators
("Effective Date") and shall terminate:
1. On the anniversary of the fourth year from the
completion date of the public offering; or
2. On the date the Registration has been terminated
if no securities were sold pursuant thereto; or
3. If the Registration has been terminated, the date
that checks representing all of the gross proceeds
that were derived therefrom and addressed to the
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public investors have been placed in the U.S.
Postal Service with first class postage affixed;
or
4. On the date the securities subject to this
Agreement become "Covered Securities," as defined
under the National Securities Markets Improvement
Act of 1996.
J. This Agreement to be modified only with the written approval
of the Administrators.
V. THEREFORE, Issuer will cause the following:
A. A manually signed copy of the Agreement signed by the
Signatories to be filed with the Administrators prior to the
Effective Date;
B. Copies of the Agreement and a statement of the per share
initial public offering price to be provided to the Issuer's
stock transfer agent;
C. Appropriate stock transfer orders to be placed with Issuer's
stock transfer agent against the sale or transfer of the
shares covered by the Agreement prior to its expiration,
except as may otherwise be provided in this Agreement;
D. The above stock restriction legends to be placed on the
periodic statement sent to the registered owner if the
securities subject to this Agreement are uncertificated
securities.
Pursuant to the requirements of this Agreement, the Signatories have entered
into this Agreement, which may be written in multiple counterparts and each of
which shall be considered an original. The Signatories have signed the Agreement
in the capacities, and on the dates, indicated.
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IN WITNESS WHEREOF, the Signatories have executed this AMENDED AND
RESTATED FANZ ENTERPRISRES, INC. PROMOTIONAL SHARES LOCK-IN AGREEMENT as of the
date first written above.
Issuer: Security Holders:
FANZ ENTERPRISES, INC. XXXXXXX XXXXXX MOTORSPORTS, LLC
By: /s/ Xxxxxxxxx X. XxXxxxxx, XX By: /s/ X. Xxx Xxxxxxxxx
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Xxxxxxxxx X. XxXxxxxx, XX X. Xxx Xxxxxxxxx
President Member
X /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
X /s/ Xxxxxxxxx X. XxXxxxxx, XX
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Xxxxxxxxx X. XxXxxxxx, XX
X /s/ X. Xxx Xxxxxxxxx
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X. Xxx Xxxxxxxxx
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EXHIBIT 1
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- 10,000,000 shares of Issuer's common stock held by Xxxxxxx Xxxxxx
Motorsports, LLC.
- 10,000 shares of Issuer's preferred stock held by Xxxxxxx Xxxxxx
Motorsports, LLC.
- The options to purchase up to 500,000 shares of Issuer's common stock
granted to Xx. Xxxxxxxxxx and any shares of common stock actually purchased
by Xx. Xxxxxxxxxx pursuant to the options granted.
- Any shares purchased by the parties hereto in this offering.
