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EXHIBIT 10.2
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
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
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XXXXXX PMI SHARES BEING SOLD (WHICH AMOUNT SHALL BE
PAID TO 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)
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$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)."
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:
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"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 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
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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 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
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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") 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,
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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 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.
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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 REASAONBLY ACCEPTABLE TO THE STOCKHOLDER, TO THE
EFFECT THAT THE TRANSFER OF THE 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: /s/ X.X. Xxxxxx
--------------------------
X.X. XXXXXX, PRESIDENT
PENSKE MOTORSPORTS, INC.
BY: /s/ X.X. Xxxxxx
--------------------------
X.X. XXXXXX, PRESIDENT
STOCKHOLDER:
/s/ Xxxxxx X. XxXxxx
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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: /s/ X. X. Xxxxxx
--------------------------
X.X. Xxxxxx, President
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