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EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement") dated as of August 8, 1997, by
and between Penske Motorsports, Inc., a Delaware corporation (the "Purchaser")
and Grand Prix Association of Long Beach, Inc., a California corporation (the
"Corporation").
RECITALS
A. Subject to the terms and conditions, set forth herein, the Purchaser
desires to purchase from the Corporation, 315,000 shares of Common Stock, no
par value, of the Corporation (the "Shares"), representing 7.2% of the
Corporation's issued and outstanding Common Stock.
B. The Corporation desires to sell the Shares to Purchaser on the terms
and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Purchaser and the Corporation
agree as follows:
ARTICLE ONE
1.1 Sale and Purchase of the Shares. On the basis of the representations,
warranties, covenants and agreements, and subject to the terms set forth
herein, the Corporation hereby issues and sells to the Purchaser, free and
clear of any and all liens and encumbrances of whatever character created by
the Corporation ("Liens") and the Purchaser hereby purchases, acquires and
accepts delivery from the Corporation, the Shares, for an aggregate purchase
price of Three Million Eight Hundred Eighty Seven Thousand One Hundred Dollars
($3,887,100) (the "Purchase Price").
1.2 Deliveries. In order to give effect to the transaction contemplated
by Section 1.1 hereof, (i) the Purchaser hereby delivers to the Corporation a
bank cashier's check or wire transfer of immediately available funds in the
amount of the Purchase Price, and (ii) the Corporation hereby delivers to the
Purchaser certificates representing the Shares.
ARTICLE TWO
2.1 Representations and Warranties of the Corporation. In order to induce
the Purchaser to enter into this Agreement and to purchase the Shares, the
Corporation hereby represents and warrants to the Purchaser as follows:
(a) Organization; Qualification. The Corporation is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of California. The Corporation has full corporate power and authority to own
and operate its properties and assets and to conduct and carry on its business
as it is now being conducted and operated. The Corporation (i) is duly
qualified to do business and is in good standing in each jurisdiction in which
the ownership or lease of real property or the conduct of its business requires
it to be so qualified and (ii) has all governmental licenses, certifications,
permits, approvals and other authorizations necessary to own its properties and
assets and carry on its business as it is presently being conducted, except, in
each case, where the failure to so qualify or be in good standing, or to have
obtained any such governmental licenses, certifications, permits, approvals and
other authorizations, could not reasonably be expected to have a Material
Adverse Effect (as hereinafter defined).
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(b) Authorization. The Corporation has full corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
consummate the transactions contemplated hereby. This Agreement has been duly
authorized by all necessary corporate action on the part of the Corporation,
has been duly and validly executed and delivered by the Corporation, and
(assuming due execution and delivery by the Purchaser) constitutes the legal,
valid and binding obligation of the Corporation, enforceable in accordance with
its terms, except as such enforcement may be limited by general equitable
principles or by applicable bankruptcy, insolvency, moratorium, or similar laws
and judicial decisions from time to time in effect which affect creditors'
rights generally.
(c) Capitalization. The authorized capital stock of the Corporation
consists of (i) 20,000,000 shares of Common Stock, no par value (the "Common
Stock"), of which 3,768,286 shares of Common Stock are issued and outstanding
as of the date hereof; (ii) 10,000,000 shares of Preferred Stock, no par value
(the "Preferred Stock"), of which none of the shares of the Preferred Stock are
issued and outstanding as of the date hereof other than the "Series B Preferred
Stock" (as hereinafter defined); and (iii) 250,000 shares of Series B
Convertible Preferred Stock ("Series B Preferred Stock"), of which 250,000
shares of the Series B Preferred Stock are issued and outstanding as of the
date hereof. The Shares have been duly authorized and upon payment of the
Purchase Price in accordance with the terms hereof will be validly issued,
fully paid and non-assessable, and have not been subject to or issued in
violation of (i) any preemptive or other rights of any Person to acquire
securities of the Corporation, or (ii) subject to the accuracy of the
representations and warranties of Article Three, any applicable securities
laws. Except as set forth in Schedule 2(c) to this Agreement, there are no
outstanding (i) securities or instruments convertible into or exchangeable for
any of the capital stock of the Corporation; (ii) options, warrants,
subscriptions or other rights to acquire capital stock of the Corporation; or
(iii) commitments, agreements or understanding of any kind to which the
Corporation is a party, including employee benefit arrangements, relating to
the issuance or repurchase by the Corporation of any capital stock of the
Corporation, any such securities or instruments convertible into or
exchangeable for capital stock of the Corporation or any such options, warrants
or rights. As of the date hereof, the Corporation had reserved not more than
(x) 474,718 shares of Common Stock for issuance upon exercise of outstanding
stock options, and (y) 400,000 shares of Common Stock for option and other
"Section 423" stock purchase grants that may be made in the future pursuant to
the Corporation's 1996 stock option plan, in each case subject to adjustment
pursuant to the anti-dilution provisions thereof. Schedule 2(c) shall also set
forth the name of the holder and vesting schedule for each outstanding
convertible security, option, warrant or similar right, as well as the number
of shares of Common Stock subject thereto.
(d) No Violation. Except as set forth in Schedule 2(d), the execution,
delivery and performance of this Agreement by the Corporation does not and will
not (i) conflict with or violate any provision of the Corporation's Articles of
Incorporation or By-laws, (ii) violate or breach any provision of, or
constitute or result in a default (or an event which, with notice or lapse of
time or both, would constitute such a default) under, or result in the
imposition of any lien upon or the creation of a security interest in the
assets, business or properties of the Corporation pursuant to, any note, bond,
mortgage, indenture, deed, license, franchise, permit, lease, contract or other
agreement to which the Corporation is a party or by which the Corporation or
any of its assets is bound or subject, (iii) violate any order, writ,
injunction, decree, judgment or ruling of any court or governmental authority
applicable to the Corporation, (iv) violate any statute, law, rule or
regulation applicable to the Corporation, or (v) require the Corporation to
obtain any waiver, consent, approval or authorization of, or make any filing
with, any governmental authority, except such reports as may be required to be
filed by the Corporation with the Securities and Exchange Commission (the
"Commission") pursuant to Regulation D promulgated under the 1933 Act (as
hereinafter defined) or the Securities and Exchange Act of 1934 (the "1934
Act").
(e) SEC Reports. The Corporation has filed all forms, reports and
documents required to be filed with the Commission prior to the date hereof,
and has heretofore delivered or made available to the Purchaser, in the form
filed with the Commission, its (i) Annual Report on Form 10-KSB for the fiscal
year ended November 30, 1996, (ii) its Quarterly Reports on Form 10-QSB for the
quarters ended February 28, 1997 and May 31, 1997, and (iii) its Proxy
Statement with respect to the 1997 annual
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meeting of its shareholders (collectively, the "SEC Reports"). The SEC Reports
(i) were prepared in all material respects in compliance with the requirements
of the 1934 Act, and (ii) did not at the time they were filed contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The audited
financial statements and unaudited interim financial statements of the
Corporation included in such SEC Reports were prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved (except (A) as otherwise indicated in such financial
statements and the notes thereto or, in the case of audited statements, in the
related report of the Corporation's independent accountants or (B) in the case
of unaudited interim statements, to the extent they may not include footnotes
or may be condensed or summary statements), and fairly present the consolidated
financial position, results of operations and cash flows of the Corporation as
of the dates thereof and for the periods indicated therein (subject, in the
case of any unaudited interim financial statements, to normal year-end audit
adjustments).
(f) Absence of Certain Changes. Except as set forth in Schedule 2(f),
since November 30, 1996, there has not been (i) any event or change in
circumstances that has had or could reasonably be expected to have a material
adverse effect on the business, financial condition, results of operations,
properties or prospects of the Corporation and its subsidiaries taken as a
whole or on the ability of the Corporation to timely consummate the
transactions contemplated hereby (a "Material Adverse Effect"), or (ii) any
damage, destruction or loss that has had or could reasonably be expected to
have a Material Adverse Effect.
(g) Status, Title to Assets.
(i) General. Except as disclosed in Schedule 2(g) attached hereto
or in the SEC Reports, the Corporation has good and marketable title to
all the properties and assets reflected in the latest audited balance
sheet included in such SEC Reports (except properties sold or otherwise
disposed of since the date thereof in the ordinary course of business),
free and clear of all claims, liens, charges, security interests, or
encumbrances of any nature whatsoever except (i) statutory liens securing
payments not yet due and (ii) such imperfections or irregularities of
title, claims, liens, charges, security interests, or encumbrances as do
not materially affect the use of the properties or assets subject thereto
or affected thereby or otherwise materially impair business operations at
such properties, or as do not materially impair the marketability
thereof.
(ii) Leased Properties. Except as disclosed in the SEC Reports
filed prior to the date of this Agreement, the Corporation is the valid
lessee of all material leasehold estates reflected in the latest audited
financial statements included in such SEC Reports or acquired after the
date thereof (except for leases that have expired without default by
their terms since the date thereof) and is in valid possession of the
properties purported to be leased thereunder, and each such lease is in
full force and effect and without default thereunder in any material
respect by the lessee or, to the Corporation's knowledge, the lessor.
(h) Litigation and Proceedings. Except as set forth in the SEC Reports or
Schedule 2(h) attached hereto, no litigation, proceeding, whether civil or
criminal, or governmental investigation is pending or, to the Corporation's
knowledge, threatened against or relating to the Corporation or its properties
or businesses which could reasonably be expected to have a Material Adverse
Effect.
(i) Tax Returns and Audits. The Corporation has duly filed all federal,
state, local and foreign tax returns required to be filed by it and has duly
paid or made adequate provision for the payment of all Federal income and other
material taxes that are due and payable pursuant to such returns or pursuant to
any assessment with respect to taxes in such jurisdictions, whether or not in
connection with such returns. Except as set forth in Schedule 2(i), there are
no pending, or to the Corporation's knowledge, threatened, claims asserted for
taxes or assessments of the Corporation or relating to the Corporation's
present practices in computing or reporting taxes which could reasonably be
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expected to have a Material Adverse Effect. Adequate provision has been made
in the Corporation's most recent balance sheet, included in the SEC Reports
for all then accrued and unpaid taxes, whether or not yet due and payable and
whether or not disputed by the Corporation.
(j) Environmental and Safety Laws. Except as disclosed in Schedule 2(j)
attached hereto, the Corporation is not the subject of any environmental
enforcement proceeding, and complies in all material respects with all laws and
regulations relating to pollution control and environmental protection in all
jurisdictions in which the Corporation is presently doing business. In
addition, the Corporation has no material liability for past violations of such
laws and regulations in jurisdictions in which the Corporation presently does
business or in the past has done business.
(k) Brokers, Finders, etc. The Corporation has not employed any broker,
finder or other intermediary in connection with the transactions contemplated
by this Agreement who might be entitled to a fee or commission from the
Corporation or the Purchaser in connection with the transactions contemplated
by this Agreement other than L.H. Friend, Weinress, Xxxxxxxx & Xxxxxxx, Inc.
("L.H. Friend"). A true, correct and complete description of the Corporation's
fee and other arrangements in connection with this Agreement and the
transactions contemplated hereby with L.H. Friend is included in Schedule 2(k)
hereto.
ARTICLE THREE
3.1 Representations and Warranties of the Purchaser. To induce the
Corporation to enter into this Agreement and to issue and sell the Shares, the
Purchaser hereby represents and warrants to the Corporation as follows:
(a) Organization; Qualification. The Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. The Purchaser has full corporate power and authority to own and
operate its properties and assets and to conduct and carry on its business as
it is now being conducted and operated. The Purchaser (i) is duly qualified to
do business and is in good standing in each jurisdiction in which the ownership
or lease of real property or the conduct of its business requires it to be so
qualified and (ii) has all governmental licenses, certifications, permits,
approvals and other authorizations necessary to own its properties and assets
and carry on its business as it is presently being conducted, except, in each
case, where the failure to so qualify or be in good standing, or to have
obtained any such governmental licenses, certifications, permits, approvals and
other authorizations, could not reasonably be expected to have a material
adverse effect on the Purchaser.
(b) Authorization. The Purchaser has full corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
consummate the transactions contemplated hereby. This Agreement has been duly
authorized by all necessary corporate action on the part of the Purchaser, has
been duly and validly executed and delivered by the Purchaser, and (assuming
due execution and delivery by the Corporation) constitutes the legal, valid and
binding obligation of the Purchaser, enforceable in accordance with its terms,
except as such enforcement may be limited by general equitable principles or by
applicable bankruptcy, insolvency, moratorium, or similar laws and judicial
decisions from time to time in effect which affect creditors' rights generally.
(c) No Violation. The execution, delivery and performance of this
Agreement by the Purchaser does not and will not (i) conflict with or violate
any provision of the Purchaser's Articles of Incorporation or By-laws, (ii)
violate or breach any provision of, or constitute or result in a default (or an
event which, with notice or lapse of time or both, would constitute such a
default) under, or result in the imposition of any lien upon or the creation of
a security interest in the assets, business or properties of the Purchaser
pursuant to, any material note, bond, mortgage, indenture, deed, license,
franchise, permit, lease, contract or other agreement to which the Purchaser is
a party or by which the Purchaser or any of its assets is bound or subject,
(iii) violate any order, writ, injunction, decree, judgment or ruling of any
court or governmental authority applicable to the Purchaser, (iv) violate any
statute, law, rule or
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regulation applicable to the Purchaser, or (v) require the Purchaser to obtain
any waiver, consent, approval or authorization of, or make any filing with,
any governmental authority, except such reports as may be required to be filed
by the Purchaser with the Commission pursuant to the 1934 Act.
(d) No Registration, Etc. The Purchaser acknowledges that the
Corporation's offering and sale of the Shares to the Purchaser pursuant to this
Agreement (i) has not been registered under the Securities Act of 1933, as
amended (the "1933 Act"), or under the securities or "blue sky" laws, rules or
regulations of any State (collectively, the "Securities Laws") and (ii) is
intended to be exempt from registration under the 1933 Act by virtue of Section
4(2) of the 1933 Act and the provisions of Rule 506 of Regulation D promulgated
thereunder by the Commission. In furtherance thereof, the Purchaser represents
and warrants to the Corporation that it is an "accredited investor", as defined
in Rule 501 of Regulation D promulgated under the 1933 Act. The Purchaser
acknowledges that it has been afforded, prior to the execution of this
Agreement, the opportunity to ask questions of, and to receive answers from,
the Corporation and its management. The Shares are being purchased by
Purchaser for its own account for investment and not for resale or distribution
to others within the meaning of the federal Securities Laws. The Purchaser
agrees that it will not transfer the Shares unless such Shares are registered
under any applicable Securities Laws, or unless an exemption is available under
such Securities Laws.
(e) Brokers, Finders, etc. The Purchaser has not employed any broker,
finder or other intermediary in connection with the transactions contemplated
by this Agreement who might be entitled to a fee or commission from the
Purchaser or the Corporation upon execution of this Agreement or consummation
of such transactions.
ARTICLE FOUR
COVENANTS OF THE CORPORATION
AND THE PURCHASER
4.1 Further Assurances. Subject to the terms and conditions hereof, each
of the Purchaser and the Corporation agree to use all reasonable efforts to
take, or cause to be taken, all further actions and to do, or cause to be done,
all things necessary, proper or reasonably requested by the other to give
effect to the transactions contemplated by this Agreement.
4.2 Preemptive Rights. If, subsequent to the date hereof and during the
"Covered Period" (as hereinafter defined), the Corporation desires to issue and
sell any shares of capital stock of the Corporation (other than "Excluded
Stock," as hereinafter defined), the Corporation shall afford the Purchaser
"preemptive rights" (exercisable within 10 days following reasonably detailed
written notice from the Corporation of the proposed sale of stock) in order to
permit the Purchaser to maintain its proportionate percentage ownership in the
Corporation (it being agreed that the Purchaser's "proportionate" ownership
shall be computed by comparing the Corporation's aggregate number of
outstanding shares of common stock to the aggregate number of shares of common
stock then held by Purchaser and acquired pursuant to this Agreement on the
date hereof and the "Right of First Refusal Agreement" being executed by
Purchaser on or about the date hereof). As used herein, the term (x) "Covered
Period" shall mean the period commencing on the date hereof and ending on the
earliest to occur of (i) the date four years after the date hereof, and (ii)
the date Purchaser no longer owns at least 80% of the Shares acquired pursuant
to this Agreement on the date hereof; and (y) "Excluded Stock" shall mean (i)
securities issued upon exercise of options or warrants or conversion of
convertible securities outstanding as of the date hereof as disclosed in
Schedule 2(c) to this Agreement, (ii) shares of Common Stock issuable pursuant
to stock options or "Section 423" stock purchase rights (with per share
exercise or purchase prices no less than 85% of the fair market value of the
Common Stock on the date of grant) that may be granted in the future pursuant
to the Company's 1996 and 1993 stock option plans (as such plans are currently
in effect), (iii) securities issued to Purchaser or Penske Motorsports, Inc.
("Penske") or any of their respective affiliates, (iv) shares of Common Stock
issued in "private placement" transactions that constitute bona fide financings
or acquisitions, if and only if , with respect to
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this item (iv), (A) at least 50%-in-interest of the acquirors of such stock
(the "New Shareholders") enter into agreements (in form reasonably acceptable
to Purchaser) substantially the same as the Right of First Refusal Agreement
(with the term of such agreement not to exceed the then remaining term of the
Right of First Refusal Agreement), and (B) the identity of all of such New
Shareholders is approved by the Purchaser, which approval shall not be
unreasonably withheld or delayed it being agreed that approval shall not be
required with respect to (x) institutional investors, or (y) any other New
Shareholder that would not be required to file or amend a Schedule 13D
statement with respect to the Corporation by reason of its acquisition or
ownership of Common Stock (a "Non-13D Filer"); provided, however, that upon
consummation of such a financing or acquisition where the Purchaser does not
approve the Non-13D Filer (whether or not required), the Corporation shall be
obligated to file a "shelf" resale registration statement with the Commission
within 15 business days of the consummation of such financing or acquisition
with respect to the potential public offering and sale of up to all of the
shares of Common Stock owned by Purchaser unless a "shelf" resale registration
statement is then in effect or on file with the Commission with respect to such
shares of Common Stock owned by Purchaser, and (v) securities issued pursuant
to stock dividends, stock splits, and similar "no sale" events that apply
generally to all shares of outstanding Common Stock.
4.3 Right to Nominate Directors. The Corporation shall (i) take all
corporate action necessary to immediately cause the size of the Corporation's
Board to be increased by one and appoint one (1) individual designated by the
Purchaser and reasonably acceptable to the Corporation's Board (it being agreed
that any of Purchaser's officers who also serves as an executive officer or
director of Purchaser shall be deemed reasonably acceptable to the
Corporation's Board), as a member of the Board of Directors of the Corporation
to fill such vacancy, and (ii) thereafter during the Covered Period use
reasonable efforts, consistent with and no less than are taken with respect to
all other nominees to the Board of Directors, to have such designee (or other
reasonably acceptable designee of Purchaser) to be nominated and elected to its
Board of Directors at each election of the Corporation's directors (it being
agreed that Purchaser shall be entitled to two (2) designees for election as
director if at any time during the Covered Period Purchaser acquires the
Corporation's Common Stock hereafter transferred by Penske, and, as a result of
such acquisition, Penske or any of its affiliates loses its rights to nominate
a director designee). Each Purchaser designee elected to the Board of
Directors shall be indemnified by the Corporation to the fullest extent
permitted by law and, without limiting the generality of the foregoing, shall
be given indemnification agreement protection, if any, by the Corporation in
the same form as currently in effect for the Corporation's current directors.
The Corporation agrees to provide each such Purchaser designee with the same
compensation paid by the Corporation to its other outside directors and to
reimburse the Purchaser's designee for out-of-pocket expenses reasonably
incurred in connection with his or her attendance of Board meetings. In the
event the Purchaser's designee(s) is (are) not elected as a member of the Board
of Directors during the Covered Period, the Corporation shall take all
corporate action necessary to entitle such designee(s) to attend and
participate in all of the Corporation's Board of Directors meetings.
4.4 Publicity. Except as required by law or by the rules of the Nasdaq
Stock Market or the Commission, neither of the parties hereto shall issue or
make any public release or announcement concerning this Agreement or the
transactions contemplated hereby. In addition, each party shall use its
reasonable best efforts to first consult in advance with the other party
concerning the content of any required public release or arrangement relating
to this Agreement.
4.5 Indemnity. Each of the Purchaser and the Corporation hereby agrees to
indemnify and hold harmless the other and the other's officers, directors and
agents, and their respective successors and assigns, from, against and in
respect of any and all demands, claims, actions or causes of action,
assessments, liabilities, losses, costs, damages, penalties, charges, fines or
expenses, including without limitation attorney's fees and expenses, arising
out of or relating to any breach by such indemnifying party of any
representation, warranty, covenant or agreement made in this Agreement. Such
right to indemnification shall be in addition to any and all other rights of
the parties under this Agreement or otherwise, at law or in equity.
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4.6 Access. The Corporation shall during the Covered Period: (i) afford
to the Purchaser and its agents and representatives reasonable access to the
properties, books, records and other information of the Corporation, provided
that such access shall be granted upon reasonable notice and at reasonable
times during normal business hours in such a manner as to not unreasonably
interfere with normal business operations; (ii) use its reasonable efforts to
cause the Corporation's personnel, without unreasonable disruption of normal
business operations, to assist the Purchaser in its investigation of the
Corporation pursuant to this Section 4.6; and (iii) furnish promptly to the
Purchaser all information and documents concerning the business, assets,
liabilities, properties and personnel of the Corporation as the Purchaser may
from time to time reasonably request. In addition, from the date of this
Agreement, the Corporation shall cause one or more of its officers to confer on
a regular basis with officers of the Purchaser and to report on the general
status of its ongoing operations.
4.7 Shares. The Corporation shall use its reasonable best efforts to take
any and all action necessary after the date hereof so that the Shares sold by
the Corporation to the Purchaser are listed on the Nasdaq National Market.
4.8 Use of Proceeds. Without the prior written consent of the Purchaser,
the Corporation shall use the Purchase Price proceeds solely to fund capital
expenditures for Board approved improvement projects that are intended to
enhance the Corporation's ability to promote additional sanctioned motorsports
events at the Corporation's Millington, Tennessee and/or Madison, Illinois
facility(ies).
4.9 Future Stock Issuance. Without the prior written consent of
Purchaser, and notwithstanding Section 4.2 hereof, during the Covered Period,
the Corporation shall not issue (or agree to issue) any shares of capital stock
other than Excluded Stock.
4.10 Standstill. Until the "Standstill Termination Date" (as hereinafter
defined), Purchaser and its affiliates (which for purposes hereof shall not
include Penske or any of its subsidiaries) will not, directly or indirectly,
without the express permission of the Corporation's Board of Directors, (A)
purchase or offer to purchase any of the Corporation's equity securities (or
securities convertible into the Corporation's equity securities), (B) conduct a
"proxy contest" to obtain control of the Corporation's Board, or (C) enter into
any non-market transaction to sell Common Stock to any person or entity which
does not agree in writing (in form reasonably acceptable to the Corporation) to
be subject to and bound by the provisions of this Section 4.10; provided,
however, that nothing herein shall limit the right of the Purchaser and its
affiliates to (i) purchase securities pursuant to, and exercise all other rights
contemplated by, this Agreement and the "Right of First Refusal Agreement"
being executed in connection herewith, (ii) purchase additional Common Stock
that does not represent more than 5% of the Corporation's aggregate outstanding
shares of Common Stock, (iii) except to the extent limited by the Right of
First Refusal Agreement, vote shares and exercise rights as directors and/or
(iv) if and only if Purchaser owns at least 10% of the outstanding shares of
the Corporation's Common Stock by reason of (A) purchases pursuant to this
Agreement on or about the date hereof, and (B) purchases pursuant to the Right
of First Refusal Agreement, purchase additional Common Stock that, together
with such purchases and purchases made pursuant to the preceding clause (ii),
represents in the aggregate not more than 20.5% of the Corporation's aggregate
outstanding shares of Common Stock (it being agreed that any purchases pursuant
to this item (iv) shall reduce on a one-for-one basis the number of shares that
Purchaser is entitled to purchase under the Right of First Refusal Agreement);
provided, further, that the provisions of this Section 4.10 shall automatically
terminate in full if (x) the Corporation enters into a merger, asset purchase,
business combination or similar agreement pursuant to which the Corporation's
shareholders would own less than fifty percent (50%) of the surviving
corporation's capital stock, or (y) a tender offer or exchange offer commences
for the Corporation's equity securities. For purposes hereof, "Standstill
Termination Date" means the earlier of (A) the sixth anniversary of the date of
this Agreement, and (B) the date that Xxxxxxxxxxx X. Xxxx no longer serves
as Chief Executive Officer of the Corporation (unless within 120 days of the
termination of Xx. Xxxx'x service a successor is appointed who is approved by
Purchaser, which approval shall not be unreasonably withheld or delayed).
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4.11 Breach of Representation Regarding Outstanding Securities. The
parties specifically agree that if the Corporation's representation regarding
outstanding securities set forth in Section 2.3 hereof and the related Schedule
2(c) is incorrect, then (x) the Corporation shall promptly file and use its
reasonable best efforts to have declared effective as soon as practicable
thereafter the shelf resale registration statement contemplated by Section 2 of
the "Registration Rights Agreement" being executed in connection herewith,
notwithstanding the time periods set forth therein, (y) the Purchaser shall
have the option to purchase (at a per share exercise price equal to the per
share Purchase Price paid pursuant to this Agreement) the number of shares
equal to 50% of the excess (the "Total Shortfall Number"), if any, of (A) the
"Actual Fully Diluted Shares" over (B) the "Disclosed Fully Diluted Shares,"
and (iii) if and only if the fair market value of the Total Shortfall Number of
shares of Common Stock (based on the "Then Fair Market Value") exceeds
$250,000, the Purchaser shall have the right, exercisable by written notice
within 60 days of the "Shortfall Discovery Date," to require the Corporation to
purchase all or any specified number of the shares of Common Stock then held by
Purchaser, at a price equal to the greater of (i) the Then Fair Market Value,
and (ii) the per share Purchase Price paid pursuant to this Agreement. For
purposes of this Section 4.11:
(a) "Actual Fully Diluted Shares" means the sum of (i) all shares of
Common Stock to be issued Purchaser pursuant to this Agreement and all shares
to be issued to Penske on or about the date hereof, plus (ii) the aggregate
number of shares of Common Stock that are currently outstanding, to be issued
upon conversion of outstanding convertible securities, to be issued pursuant to
outstanding options, warrants or other rights, and/or to be issued pursuant to
awards that can be made in the future under the Corporation's current employee
benefit plans.
(b) "Disclosed Fully Diluted Shares" means that number of Actual Fully
Diluted Shares described in paragraph (a)(ii) above that are accurately set
forth on Schedule 2(c).
(c) "Then Fair Market Value" means the average closing sales price for the
Common Stock during the ten trading days preceding the Shortfall Discovery
Date.
(d) "Shortfall Discovery Date" means the first date that the Corporation
or the Purchaser notifies the other of any misrepresentation in Section 2(c)
hereof and provides a reasonable description thereof.
Notwithstanding the above, the Total Shortfall Number shall be reduced by
the number of shares of Common Stock which become subject to and bound by the
terms of the Right of First Refusal Agreement within twenty (20) business days
subsequent to the earlier of (x) the Shortfall Discovery Date, and (y) the date
that the Chief Executive Officer or Chief Financial Officer of the Corporation
had actual knowledge of the likelihood of a Total Shortfall Number.
ARTICLE FIVE
MISCELLANEOUS
5.1 Governing Law. This Agreement and its validity, construction and
performance shall be governed in all respects by the internal laws of the State
of Florida (without reference to the conflict of laws provisions or principles
thereof).
5.2 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; but neither this Agreement nor any of the rights, benefits or
obligations hereunder shall be assigned, by operation of law or otherwise, by
either party hereto without the prior written consent of the other party.
Nothing in this Agreement, express or implied, is intended to confer upon any
person other than the parties hereto and their respective permitted successors
and assigns, any rights, benefits or obligations hereunder.
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9
5.3 Amendment; Waiver. This Agreement shall not be changed, modified or
amended in any respect except by the mutual written agreement of the parties
hereto. Any provision of this Agreement may be waived in writing by the party
which is entitled to the benefits thereof. No waiver of any provision of this
Agreement shall be deemed to or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall any such waiver constitute
a continuing waiver.
5.4 Notices. Any notices, requests, demands and other communications
required or permitted to be given hereunder must be in writing and, except as
otherwise specified in writing, will be deemed to have been duly given when
personally delivered, telexed or facsimile transmitted, or three days after
deposit in the United States mail, by certified mail, postage prepaid, return
receipt requested, as follows:
IF TO THE CORPORATION: Grand Prix Association of Long Beach, Inc.
0000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxx
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO PURCHASER: Penske Motorsports, Inc.
0000 X. Xxx Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxxx Traurig Xxxxxxx Xxxxxx
Xxxxx & Quentel, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address for the purposes of this Agreement by
giving notice of such change of address to the other parties in the manner
herein provided for giving notice.
5.5 Survival. The representations and warranties of the parties set forth
in this Agreement shall survive the Closing; provided, that all such
representations and warranties shall expire, terminate and be of no force and
effect (or provide the basis for any claim) and no party hereto shall have any
obligation to indemnify any other party with respect thereto unless written
notice of any claim with respect thereto is received prior to the third
anniversary of this Agreement.
5.6 Severability. Any term or provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction
only, be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
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10
5.7 Headings. The captions, headings and titles herein are for
convenience of reference only and shall not effect the construction, meaning or
interpretation of this Agreement or any term or provision hereof.
5.8 Counterparts. This Agreement may be executed through the use of one
or more counterparts, each of which shall be deemed an original and all of
which shall be considered one and the same agreement, notwithstanding that all
parties are not signatories to the same counterpart.
5.9 Expenses. Each party to this Agreement shall bear their own fees,
costs and expenses incurred in connection with the negotiation, execution and
consummation of this Agreement and the transactions contemplated hereby.
5.10 Entire Agreement. Except for written agreements executed on or about
the date hereof in connection with the transactions contemplated hereby, this
Agreement merges and supersedes any and all prior agreements, understandings,
discussions, assurances, promises, representations or warranties among the
parties with respect to the subject matter hereof, and contains the entire
agreement among the parties with respect to the subject matter hereof.
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11
IN WITNESS WHEREOF, the Corporation and the Purchaser have each duly
executed this Agreement as of the date first above written.
PENSKE MOTORSPORTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
GRAND PRIX ASSOCIATION OF
LONG BEACH, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
-----------------------------
Title: President
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Schedule 2(c)
CONVERTIBLE
NAME WARRANTS SHARES 1993 OPTIONS(1)
---- -------- ----------- ---------------
Xxxxxxxxxxx X. Xxxx 174,435
Xxxxx X. Xxxxxxxxxx 108,702
Xxxxxx Xxxxxx 20,830(6)
Xxxxxxx X. Xxxxx 12,691(6)
Xxxx Xxxxx 31,728
Xxxxx Xxxxxx 9,064(6)
Xxxxx Xxxxxxxx 14,939
Xxxxx Xxxx 11,952(7)
Xxxxxx X. Xxxxxx 11,952(7)
Xxxxxx Xxxxxx 14,939
Xxxxxxx Xxxxx 14,939
Xxx Xxxxxxxx 11,952(2)(3)
Xxxx Xxxxx 11,952(3)
Xxxx X. Xxxxx, Xx. 11,952(3)
EDMARJON-RONBREWDAVE, LLC
A Tennessee limited liability company
(successor in interest to Memphis
International Motorsports Corporation) 45,000(4)
L. H. Friend, Weinress,
Xxxxxxxx & Xxxxxxx, Inc. 31,250(5)
(1) Options granted 12/93 under the Corporation's 1993 Stock Option Plan vest
one-fifth on 12/1/94, 12/1/95, 12/1/96, 12/1/97 and 12/1/98 respectively,
except as otherwise noted.
(2) Subject to right of first refusal agreement dated 8/8/97 between he and
Xxxxxxxxxxx X. Xxxx.
(3) All fully vested.
(4) Holders of Series B Convertible Preferred shares have the right to convert
to Common stock of the Corporation on a share for share basis, as more
fully described in the Certificate of Rights, Preferences and Privileges
of Series B Convertible Preferred Shares, as amended, filed with the
California Secretary of State.
(5) Warrant to purchase 31,250 shares of common stock of the Corporation for
$10.00 per share must be exercised prior to June 24, 2001.
(6) Remaining 2/5 of original grant. 1/2 will vest on 12/1/97 and the balance
on 12/1/98.
(7) Remaining 4/5 of original grant. 1/2 is vested, 1/4 will vest on 12/1/97
and the balance on 12/1/98.
Note: 1993 Stock options, Series B Convertible Preferred shares and
L. H. Friend, etc. Warrant are all subject to certain anti-dilution
provisions.
13
Schedule 2(d)
None.
14
Schedule 2(f)
Change of Races Dates from Memphis Motorsports Park to Gateway Raceway. The
Corporation's recent decision to move the ARCA and USAC Silver Crown series
events scheduled for September 13, and 14, 1997, from Memphis Motorsports Park
to Gateway Raceway due to construction delays.
Weather and Construction Delays. Adverse weather conditions have caused delays
and could cause future delays in construction at Gateway Raceway and/or Memphis
Motorsports Park. Construction delays resulting from various other factors have
or could have an Material Adverse Effect on the Corporation's ability to meet
the deadlines necessary to host the major events scheduled in 1997 at Gateway
Raceway and/or Memphis Motorsports Park. The Corporation's motorsports events
could be adversely affected by weather patterns and seasonal weather changes.
Manpower Overload and Growth Management. The operation of the 1997 major events
at Gateway Raceway and/or Memphis Motorsports Park placed substantial burdens
on the Corporation's management resources and financial controls since the
Corporation has never before promoted and/or operated more than three major
events in one year.
Effect of Seasonality. The Corporation had very limited racing during the
winter season and, accordingly, reported an operating loss during its first
fiscal quarter.
Government Regulation of Sponsors. The Corporation derives a significant
portion of its revenue each year from sponsorship and advertising by various
companies, including tobacco and liquor companies. The impact of the recently
settled litigation between various states' attorneys general and several large
tobacco companies, as well as other tobacco litigation, could have a Material
Adverse Effect. In addition, actions by certain liquor companies with respect
to advertising could lead to additional regulation or otherwise may have a
Material Adverse Effect.
Environmental Matters. There may be undetected environmental contamination at
the Corporation's Long Beach, Gateway Raceway or Memphis Motorsports Park
properties. Present but undetected environmental contamination, as well as the
conduct of the Corporation's business could have resulted in damage to persons
or property or contamination of the environment by pollutants, substances,
contaminants or wastes. The Corporation could have liability under California,
Illinois or Tennessee statutes, or Federal law, including but not limited to
the Federal Water Pollution Control Act, Comprehensive Environmental Response,
Compensation and Liability Act, and the Resource Conservation and Recovery Act
for violations of environmental laws by the Company or by prior owners of its
properties.
Liability for Personal Injuries. Motorsports activities, construction and
weather conditions have resulted in injuries to third parties including
participants and spectators at the Corporation's facilities. If the Corporation
is held liable for personal injuries beyond the scope of its insurance
coverage, such liability could result in a Material Adverse Effect.
15
Schedule 2(h)
Claim by former Chief Financial Officer for wrongful termination, as of the
date hereof no lawsuit filed but counsel has been retained by such former chief
financial officer and threatens to seek damages including punitive and
attorneys fees.
16
Schedule 2(i)
None.
17
Schedule 2(j)
The Corporation obtained Phase I environmental reports on all properties it
owns prior to the purchase thereof and knows of no presence of undetectable
environmental hazards at any of those properties. Because Phase I reports do
not include testing of soil, water or air or other types of samples, it is
possible that there may be undetected environmental contamination at one or
more of the Corporation's properties. In addition, the conduct of the
Corporation's business may result in damage to persons or property or
contamination of the environment by pollutants, substances, contaminants or
wastes used, generated or disposed of by the Corporation (for example, gasoline
used at the motorsports facilities). The Corporation could have liability under
California, Illinois or Tennessee statutes, or Federal law, including but not
limited to the Federal Water Pollution Control Act, Comprehensive Environmental
Response, Compensation and Liability Act, and the Resource Conservation and
Recovery Act for past violations of environmental laws by prior owners of those
properties.
18
Schedule 2(k)
L. H. Friend, Weinress, Xxxxxxxx & Xxxxxxx, Inc. compensation agreement
pursuant to which the Corporation has agreed to compensate L. H. Friend etc.
$50,000.00 for its services in connection with this Agreement and the
transactions contemplated hereby.
