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EXHIBIT 10.1
AMENDED AND RESTATED
STOCKHOLDER OPTION AND VOTING AGREEMENT
BETWEEN CARRIE B. DEWITT, STOCKHOLDER
PENSKE ACQUISITION AND PENSKE MOTORSPORTS, INC., PURCHASER
THIS AMENDED AND RESTATED STOCKHOLDER OPTION AND VOTING AGREEMENT (the
"Agreement") is made and entered as of April 1, 1997, by and between CARRIE B.
DEWITT (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").
A. Purchaser desires to purchase from Stockholder and Stockholder desires to
sell to Purchaser the 1,461,378 (65.3%) (collectively, the "Shares") of the
2,236,830 outstanding shares of common stock (the "NCMS Common Stock"),
$0.25 par value per share, of North Carolina Motor Speedway, Inc., a North
Carolina corporation (the "Company") owned by Stockholder. To that end,
Stockholder desires to grant Purchaser an option to purchase the Shares and
Purchaser desires to grant to Stockholder the ability to cause Purchaser to
purchase the Shares.
B. In addition, Purchaser proposes to enter into an Agreement and Plan of
Merger (the "Merger Agreement") with the Company pursuant to which
Purchaser, through PA, proposes to acquire the entire equity interest in
the Company by means of a merger (the "Merger") of the Company with
Purchaser or an affiliate of the Purchaser in which each share of NCMS
Common Stock of the Company (other than those owned by shareholders who
properly exercise dissenters' rights) would be converted into the right to
receive, at the option of the holder, either .620333 shares of Common Stock
of PMI, $0.01 par value per share ("PMI Common Stock"), or $18.61 per share
in cash, without interest.
C. The Stockholder has heretofore granted to PMI a right of first refusal with
respect to the Shares.
D. The Purchaser has requested that the Stockholder enter into this Agreement
in exchange for the consideration set forth herein, to set forth the terms
and conditions of the mutual options and to cause Stockholder to vote the
Shares in favor of the Merger and take other actions necessary to the
consummation of the Merger as more fully set forth herein.
THEREFORE the parties hereto agree as follows:
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1. OPTION AND CONDITIONS:
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(a) OPTIONS. In consideration of (i) a cash payment in the amount
of $1,400,000, deposited in escrow by Purchaser with Moore &
Van Allen, PLLC (the "Escrow Agent") for disposition in
accordance with the escrow agreement attached as Exhibit A
hereto, and (ii) the other consideration set forth in Section
2 below, the Stockholder hereby grants Purchaser all of the
following:
(i) An irrevocable option (the "Merger Option") to
require the Stockholder to exchange all (but not less
than all) of the Shares in the Merger for that number
of shares of PMI Common Stock determined in
accordance with the Merger Agreement which shall be
906,541.5 shares of PMI Common Stock.
(ii) An irrevocable option (the "Purchase Option") to
purchase from Stockholder all of the Shares in
exchange for 906,541.5 shares of PMI Common Stock.
In addition to the approximately 906,541.5 shares of
PMI Common Stock, PMI agrees to pay to Stockholder
all income taxes due or to become due, less
$1,400,000, and which result directly from the
issuance of the 906,541.5 shares to Stockholder as a
result of Purchaser's exercise of the Purchase
Option, and grossed up to reflect the income taxes
due as a result of the payment of such tax
liabilities by PMI (the 906,541.5 shares of PMI
common stock and the other consideration in this
Section are hereby collectively referred to as
"Purchase Consideration"). Such amounts due shall be
paid by Purchaser to Stockholder within 10 days prior
to the due date for each of such taxes. In
exercising the Purchase Option, Purchaser and
Stockholder agree to negotiate in good faith to
determine the Purchase Consideration payable upon
exercise of the Purchase Options in lieu of the
Purchase Consideration, which is acceptable to
Stockholder, in her discretion, to enable the
Purchaser to purchase the Shares upon exercise of the
Purchase Option in a transaction substantially
tax-free to Stockholder. On the terms and subject to
the condition of this Agreement, the Purchase Option
may be exercised by written notice to the Stockholder
specifying a place and date for the closing not later
than sixty days from the date of such notice. The
Merger Option and the Purchase Option are sometimes
collectively referred to herein as the "Option" and
the shares of PMI Common Stock issuable and received
by Stockholder upon PMI's exercise of either Option
are herein referred to as the "DeWitt PMI Shares".
(b) ADDITIONAL COVENANTS AND CONDITIONS: Stockholder's obligation
to exchange the Shares in the Merger under the Merger Option
is subject to
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Stockholder's receipt of each of the considerations set forth
below, and the Stockholder's obligation to transfer the Shares
in the Purchase Option is subject to each of the
considerations set forth in clauses (ii) and (iii) below.
(i) Purchaser shall provide the favorable opinion of a
legal or accounting firm, in form and substance
satisfactory to the Stockholder, and, to the extent
possible under the ruling guidelines of the Internal
Revenue Service, obtain a private letter ruling from
the Internal Revenue Service which provides, in all
material respects, (i) that the Merger shall
constitute a tax-free reorganization pursuant to the
provisions of Section 368 of the Internal Revenue
Code of 1986, as amended; and (ii) identifying the
amount, if any, of taxable "boot" to be received by
the Stockholder in connection with the Merger, if
any.
(ii) The shares of PMI Common Stock issued to Stockholder
upon exercise by Purchaser of either Option or upon
exercise of the Put Option (as defined below) will be
the subject of a registration statement declared
effective by the Securities Exchange Commission
pursuant to the Securities Act of 1933, and shall be
registered or exempt from registration under all
applicable state securities laws;
(iii) PSH Corp., a Delaware corporation ("PSH"), will
execute and deliver to Stockholder a written
undertaking in form satisfactory to Stockholder
providing that in the event Stockholder acquires
DeWitt PMI Shares pursuant to the Merger, upon
Stockholder's death and upon written request of
Stockholder's estate at any time within seven (7)
months following the later to occur of (i) the date
of the Stockholder's death and (ii) the date of the
Merger, that PMI at PMI's sole cost and expense,
arrange for a secondary public offering of part or
all of the DeWitt 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
DeWitt PMI Shares being sold (which amount shall be
paid to Stockholder's estate not later than sixty
(60) days after the Request). In the written
undertaking, PSH shall also agree that, in the event
of Stockholder's death, and if the secondary offering
referred to in the preceding sentence 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
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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, up to $27,000,000 in value of the DeWitt
PMI Shares at a purchase price equal to the greater
of (i) the then fair market value of the DeWitt PMI
Shares tendered by Stockholder's estate, or (ii) the
Minimum Value per DeWitt 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). 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 (as
hereinafter defined).
In the event Stockholder or Stockholder's estate
desires to transfer the DeWitt PMI Shares, or upon
the Request by the Stockholder's estate for a
secondary public offering of the DeWitt PMI Shares as
provided above, PSH will have the right for 60 days
after the date of the Request, and prior to the
commencement of a secondary public offering, to
purchase the DeWitt PMI Shares proposed to be
transferred by Stockholder or tendered by
Stockholder's estate at a purchase price equal to the
greater of (i) the then fair market value of the
DeWitt PMI Shares tendered by Stockholder or
Stockholder's estate, or (ii) the Minimum Value. For
purposes of this Agreement, the "Minimum Value" for
the DeWitt PMI Shares shall be $30.00 per share. The
undertaking of PSH under this paragraph 1(b)(iii)
shall be secured by an irrevocable direct pay letter
of credit in a face amount equal to $27,000,000 from
a banking institution, substantially in the form
attached as Exhibit B hereto and otherwise
satisfactory to Stockholder (the "Letter of Credit"),
maintained at the expense of PSH for the term of
PSH's commitments under this Paragraph 1(b)(iii).
Provided, that in the event Stockholder or
Stockholder's estate sells or transfers part or all
of the DeWitt PMI Shares prior to or in connection
with the exercise of rights under this paragraph,
then the total obligation of Purchaser and PSH to
purchase up to $27,000,000 in value of the DeWitt PMI
Shares and the amount of the Letter of Credit
securing such obligation shall be reduced by the
amount equal to the number of DeWitt PMI Shares sold
or transferred multiplied by $30.00 per share.
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In the event of sale or transfer of all or any part
of the PMI Shares to Purchaser or any other
transferee under this paragraph 1(b)(iii), such
DeWitt PMI Shares shall be transferred free and clear
of any and all liens, pledges, claims, security
interests or encumbrances of any nature.
(iv) PSH shall also execute and deliver to Stockholder a
written undertaking in form and substance
satisfactory to Stockholder that provides 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, upon written request of the Stockholder or
the Stockholder's estate at any time before the date
seven (7) months following the later to occur of
(i) the date of Stockholder's death and (ii) the date
Stockholder or Stockholder's estate acquires the
DeWitt PMI Shares pursuant to an exercise of the
Purchase Option, PMI at PMI's sole cost and expense,
arrange for a secondary public offering of part or
all of the DeWitt PMI Shares (the "Alternative
Request"), the net proceeds of which shall not be
less than the Minimum Value multiplied by the number
of DeWitt 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). In the written undertaking, PSH shall also
agree that if the secondary offering referred to in
the preceding sentence cannot be accomplished and the
proceeds paid to 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'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 DeWitt PMI Shares at a purchase price
equal to the greater of (i) the then fair market
value of the DeWitt PMI Shares tendered by the
Stockholder or the Stockholder's estate, or (ii) the
Minimum Value per DeWitt 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
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
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estate taxes and a satisfactory extension of the
Letter of Credit (as hereinafter defined).
In the event Stockholder or Stockholder's estate
desires to transfer the DeWitt PMI Shares, or upon
the Alternate Request by the Stockholder or the
Stockholder's estate for a secondary public offering
of the DeWitt 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 DeWitt PMI
Shares proposed to be transferred by Stockholder or
tendered by Stockholder's estate at a purchase price
equal to the greater of (i) the then fair market
value of the DeWitt PMI Shares tendered by
Stockholder or Stockholder's estate, or (ii) the
Minimum Value. The undertaking of PSH under this
paragraph 1(b)(iv) shall be secured by the Letter of
Credit, but without the requirement for 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).
Provided, that in the event Stockholder or
Stockholder's estate sells or transfers part or all
of the DeWitt PMI Shares prior to or in connection
with the exercise of rights under this paragraph,
then the total obligation of Purchaser and PSH to
purchase up to $27,000,000 in value of the DeWitt PMI
Shares and the amount of the Letter of Credit
securing such obligation shall be reduced by the
amount equal to the number of DeWitt PMI Shares sold
or transferred multiplied by $30.00 per share.
In the event of sale or transfer of all or any part
of the PMI Shares to Purchaser or any other
transferee under this paragraph 1(b)(iv), such DeWitt
PMI Shares shall be transferred free and clear of
any and all liens, pledges, claims, security
interests or encumbrances of any nature.
(v) PSH will execute and deliver to Stockholder a written
undertaking in form satisfactory to Stockholder
providing that in the event that Stockholder acquires
shares of PMI Common Stock pursuant to the Put Option
(as defined below), within seven (7) months following
the later to occur of (i) the date of the
Stockholder's death and (ii) the date of
Stockholder's delivery of notice of exercise of the
Put Option, PMI at PMI's sole cost and expense,
arrange for a secondary public offering of part or
all of the DeWitt 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 DeWitt PMI Shares
being sold (which
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amount shall be paid to Stockholder's estate not
later than sixty (60) days after the Put Request).
In the written undertaking, PSH shall also agree
that, in the event of Stockholder's death, and if the
secondary offering referred to in the preceding
sentence cannot be accomplished and the proceeds paid
to the Stockholder or the 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 the
Stockholder or the Stockholder's estate, as the case
may be, 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 DeWitt PMI
Shares at a purchase price equal to the greater of
(i) the then fair market value of the DeWitt PMI
Shares tendered by Stockholder's estate, or (ii) the
Minimum Value per DeWitt 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 sold. 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
DeWitt PMI Shares sold by the Stockholder or the
Stockholder's estate prior to such date; provided
that the Stockholder's estate provides to PSH
reasonable documentation establishing the gross sale
price of DeWitt 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.
In the event Stockholder or Stockholder's estate
desires to transfer the DeWitt PMI Shares, or upon
the Put Request by the Stockholder's estate for a
secondary public offering of the DeWitt PMI Shares as
provided above, PSH will have the right for 60 days
after the date of the Put Request, and prior to the
commencement of a secondary public offering, to
purchase the DeWitt PMI Shares proposed to be
transferred by Stockholder or tendered by
Stockholder's estate at a purchase price equal to the
greater of (i)
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the then fair market value of the DeWitt PMI Shares
tendered by Stockholder or Stockholder's estate, or
(ii) the Minimum Value. The undertaking of PSH under
this Paragraph 1(b)(v) shall be secured by the Letter
of Credit, maintained at the expense of PSH for the
term of PSH's commitments under this Paragraph 1(b)
(v).
Provided, that in the event Stockholder or
Stockholder's estate sells or transfers part or all
of the DeWitt PMI Shares prior to or in connection
with the exercise of rights under this paragraph,
then the total obligation of Purchaser and PSH to
purchase up to $27,000,000 in value of the DeWitt PMI
Shares and the amount of the Letter of Credit
securing such obligation shall be reduced by the
amount equal to the number of DeWitt PMI Shares sold
or transferred multiplied by the gross sale price per
share of DeWitt PMI Shares sold.
In the event of sale or transfer of all or any part
of the PMI Shares to Purchaser or any other
transferee under this paragraph 1(b)(v), such DeWitt
PMI Shares shall be transferred free and clear of
any and all liens, pledges, claims, security
interests or encumbrances of any nature.
(c) COVENANT OF STOCKHOLDER: Stockholder expressly covenants and
agrees that in the event of Purchaser's exercise of either
Option and/or the exchange of Shares in the Merger for the
DeWitt PMI Shares, Stockholder will not dispose of, transfer,
sell, hypothecate, mortgage, pledge, or otherwise encumber the
DeWitt PMI Shares, provided, however, that Stockholder may
transfer the DeWitt PMI Shares to members of her immediate
family (including children, grandchildren, and great
grandchildren) or trusts for the benefit of the Stockholder
and her immediate family, so long as the transferees provide a
written undertaking reasonably acceptable to PMI that the
transferred DeWitt PMI Shares shall remain subject to this
Agreement. The limitations on transfer in the immediately
preceding sentence, will expire on the first to occur of (i)
the death of Stockholder, or (ii) two years following the date
of issuance of the DeWitt PMI Shares to Stockholder or, in the
event that Stockholder acquires the DeWitt PMI Shares pursuant
to the Put Option or the Purchase Option, one year following
the date of issuance of the DeWitt PMI Shares to Stockholder.
(d) PROCEDURE: If the Merger is consummated, the Stockholder
shall exchange all of the Shares in connection with such
Merger in accordance with the terms and conditions thereof
and upon the effectiveness of the Merger, the PMI Shares
received in the Merger in exchange for the Shares shall be
deemed to be DeWitt PMI Shares for purposes of the provisions
of this Agreement including without limitation Section 1(b)
(iii).
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(e) PUT: At any time from and after the earlier of January 2,
1998 or September 2, 1997 if prior thereto neither party has
extended the term of this Agreement pursuant to Paragraph 13,
but prior to January 31, 1999, the Stockholder may cause
Purchaser to purchase the Shares at a price equal to the
Purchase Consideration (the "Put Option"). In the event of
Stockholder's exercise of the Put Option, Stockholder and
Purchaser agree to negotiate in good faith to determine the
purchase price consideration payable upon exercise of the Put
Option, in lieu of the Purchase Consideration, which is
acceptable to Stockholder, in her discretion, to enable the
Purchaser to purchase the Shares upon exercise of the Put
Option in a transaction substantially tax-free to Stockholder.
As a condition to the Purchaser's obligation to close upon
exercise of the Put Option, no dividends or other
distributions of any kind shall be made by the Company to its
stockholders between the date of this Agreement and the date
of closing of the Put Option, except such cash dividends which
are consistent with the Company's historical practices. On
the terms and subject to the conditions of this Agreement, the
Put Option may be exercised by written notice to the Purchaser
specifying a place and date for the closing not later than
sixty days from the date of such notice. Purchaser hereby
covenants and agrees that upon closing of the Put Option, in
which the Purchase consideration is paid, Purchaser shall
satisfy the covenants and conditions contained in Section
1(b)(ii) and (iii) above. Stockholder may terminate the Put
Option at any time upon delivery of written notice to
Purchaser.
(f) PRICE FOR MINORITY SHARES: In the event that Purchaser
purchases the Shares pursuant to the Purchase Option and the
Merger is not consummated, Purchaser, although not being
obligated to purchase any additional shares of NCMS Common
Stock, agrees that if it purchases or otherwise acquires any
such additional shares of NCMS Common Stock it shall pay to
all holders of such additional shares the highest
consideration paid to any such holders.
2. PROXY: In furtherance of the transactions contemplated by this
Agreement, the Stockholder hereby grants to Purchaser an irrevocable
proxy, duly executed by the lawful agents, attorneys, and proxies with
full power of substitution, to vote in such manner as each such agent,
attorney, and proxy or its substitute shall in its sole discretion
deem proper, and otherwise act with respect to the Shares which the
Stockholder is entitled to vote at any meeting (whether annual or
special and whether or not an adjourned meeting) of the Company's
stockholders or otherwise, and revoking any prior proxies granted by
the Stockholder with respect to the Shares. Such appointment of proxy
shall be effective until the later of the termination of this
Agreement or the termination of the Put Option. Purchaser agrees that
it will vote the Shares in favor of the Merger.
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3. COVENANTS OF THE STOCKHOLDER: Except as permitted by or in accordance
with the provisions of this Agreement, the Stockholder agrees, until
this Agreement has terminated, as follows:
(a) Not to sell, transfer, pledge, assign, or otherwise dispose
of, or enter into any contract, option, or other arrangement
or understanding with respect to the sale, transfer, pledge,
assignment, or other disposition of any Shares, other than to
the Purchaser or any affiliate thereof, without the prior
written approval of the Purchaser.
(b) Not to acquire any additional shares of NCMS Common Stock
without prior written approval of the Purchaser.
(c) Not to deposit any Shares into a voting trust or enter into a
voting agreement or deliver any proxy with respect to any
Shares except as contemplated in Paragraph 2 hereof;
(d) Not to solicit or encourage any party, other than Purchaser,
to acquire the Company or any of Stockholder's NCMS Common
Stock;
(e) To use her best efforts to call any special or annual meeting
of the Board of Directors of the Company or of the
stockholders of the Company in accordance with applicable law
and the Company's Charter and Bylaws, to consider such matters
as Purchaser may reasonably request in furtherance of the
transactions contemplated by this Agreement and in furtherance
of the Merger; and
(f) At the request of Purchaser, and if Stockholder is entitled to
vote the Shares, to vote the Shares in favor of the Merger at
any meeting of the stockholders of the Company called for
that purpose.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER: Stockholder
represents and warrants to Purchaser as follows:
(a) The Shares are the only shares of NCMS Common Stock owned of
record or beneficially by the Stockholder or controlled by the
Stockholder, or in which the Stockholder, or anyone controlled
by the Stockholder, has any interest, and the Stockholder has
no right to acquire any other shares of NCMS Common Stock.
(b) The Stockholder has the right, power and authority to execute,
delivery, and perform this Agreement; such execution, deliver,
and performance will not to her knowledge violate or breach
any law, rule, or regulation, or any outstanding agreement or
instrument to which the Stockholder is a
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party; including the Stock Escrow Agreement attached hereto as
Exhibit C, and this Agreement constitutes a legal, valid, and
binding agreement on the part of the Stockholder;
(c) The Shares have been duly issued and are fully paid and
non-assessable;
(d) The Shares are now and will be at all times during the term of
the Agreement held by the Stockholder, free and clear of all
liens, claims, encumbrances and security interests of any
nature whatsoever; provided, however, that the Shares shall be
permitted to be held in escrow pursuant to the Stock Escrow
Agreement, a copy of which is attached hereto as Exhibit C;
(e) The Stockholder is knowledgeable about the Company's business
operations, and financial condition; is sophisticated in
business and financial matters; and understands the nature of
this Agreement and the transactions to which it relates;
(f) Upon purchase of the Shares, Purchaser shall receive good and
marketable title to the shares, free of all liens, claims,
pledges, charges, encumbrances, and security interests,
(except for the Stock Escrow Agreement attached as Exhibit C,
which Stock Escrow Agreement shall not adversely affect
Stockholder's transactions contemplated hereby) and all of
such liens, claims, pledges, charges, encumbrances and
security interests would be terminated and of no further
effect upon transfer of the Shares by Stockholder to
Purchaser;
(g) The Shares constitute more than fifty-one percent (51%) of all
issued and outstanding shares of NCMS Common Stock; and
(h) The Company has no other class of capital stock or other
equity securities issuable under any option or other right to
acquire such capital stock or equity securities other than the
NCMS Common Stock.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER: Purchaser hereby
represents and warrants to the Stockholder as follows:
(a) Purchaser has all requisite corporate power and authority to
enter into and perform all of its obligations under this
Agreement; that the execution, delivery, and performance of
this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of Purchaser; that such
execution, delivery and performance will not violate or breach
any law, rule or regulation or any outstanding agreement or
instrument to which Purchaser is a party; and that this
Agreement has been duly executed and delivered
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by Purchaser and constitutes a legal, valid, and binding
agreement on the part of the Purchaser;
(b) The Purchaser has exercised due diligence in investigating the
Company's business operations and financial condition, is
sophisticated in business and financial matters, and
understands the nature of this Agreement and the transaction
to which it relates;
(c) Upon closing of the transaction, Stockholder shall receive
good and marketable title to the DeWitt PMI Shares, free of
all liens, claims, pledges, charges, encumbrances, and
security interests of any nature whatsoever;
(d) Purchaser has no present plan or intentions to move any
NASCAR-sanctioned race currently being held at the North
Carolina Motor Speedway to any other venue; and
(e) Purchaser intends to continue the Company's current capital
expenditure plan as presented by the Stockholder to Purchaser.
6. VOTING OF SHARES: The Stockholder hereby agrees that, during the time
this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, and in any action by written consent of the
stockholders of the Company, shall not vote her Shares in favor of any
action or agreement which would impede, interfere with, or attempt to
discourage the Merger, the purchase by Purchaser of the Shares upon
exercise of either Option, or Purchaser's attempts to satisfy the
conditions to the exercise of either Option including but not limited
to:
(a) Any extraordinary corporate transaction, such as a merger,
reorganization, or liquidation involving the Company or any of
its subsidiaries;
(b) A sale or transfer of a material amount of assets of the
Company or any of its subsidiaries;
(c) Any change in the management or board of directors of the
Company, except as otherwise agreed to in writing by
Purchaser;
(d) Any material change in the present capitalization or dividend
policy of the Company, except in furtherance of the
transactions contemplated by this Agreement; or
(e) Any other material change in the Company's corporate structure
or business, except as directed by Purchaser in furtherance of
the transactions contemplated by this Agreement.
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7. ADJUSTMENTS: In the event of any increase or decrease or other change
in the NCMS Common Stock or the PMI Common Stock by reason of stock
dividends, split-up, recapitalizations, combinations, exchanges of
shares, or the like, the number of shares of NCMS Common Stock subject
to both Options and the price for the Shares and the number of shares
of PMI Common Stock delivered at the Closing shall be adjusted
appropriately.
8. GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
9. FURTHER ASSURANCES: Each party hereto shall perform such further acts
and execute such further documents as may reasonably be required to
carry out the provisions of this Agreement.
10. ESCROW OF SHARES: The parties acknowledge that the Shares have been
deposited with C. Wells Hall, III, as escrow agent, pursuant to the
Stock Escrow Agreement attached as Exhibit C hereto. It shall be a
condition to the closing of the transactions described herein that all
necessary consents to the release of the Shares under the Stock Escrow
Agreement have been obtained and the Stockholder will direct the
Escrow Agent to deliver the certificates for the Shares to Purchaser
in accordance with this Agreement.
11. ASSIGNMENT: This Agreement may not be assigned by any party hereto
without the prior written consent of the other party.
12. REMEDIES: The Stockholder acknowledges that the Shares are unique and
that the Purchaser will not have an adequate remedy at law if the
Stockholder fails to perform any of its obligations hereunder. Each
party agrees that the other party shall have all remedies available to
it at law or in equity in the event of a breach of this Agreement or
failure by the breaching party to perform any of its obligations
hereunder, including the right, in addition to any other rights the
non-breaching party may have, to specific performance or equitable
relief by way of injunction.
13. TERMINATION: Except as otherwise set forth herein with respect to
specific provisions hereof (including Paragraphs 1(e) and 2), this
Agreement shall terminate at 11:59 p.m., North Carolina time,
September 2, 1997, provided that either party may extend this
Agreement for an additional one hundred twenty (120) day period by
written notice to the other party prior to September 2, 1997;
provided, further, that in the event that Purchaser has exercised
either Option on a timely basis hereunder but any party shall have
been prevented from consummating the transactions contemplated by such
Option by virtue of any court order, injunction or other judicial
action to which such party has not consented, this Agreement shall
continue for such reasonable time after such
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order, injunction or judicial action is set aside as to permit the
consummation of such transactions, but in no event later than
January 31, 1999.
14. NOTICES: All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein)
and shall be deemed duly given if delivered in person, by cable, or
telegram, or by certified mail, postage prepaid, addressed as follows:
TO PURCHASER: PENSKE MOTORSPORTS, INC.
13400 WEST OUTER DRIVE
DETROIT, MI 48239
ATTENTION: CHIEF EXECUTIVE OFFICER
WITH COPIES TO: PENSKE MOTORSPORTS, INC.
13400 WEST OUTER DRIVE
DETROIT, MI 48239
ATTENTION: GENERAL COUNSEL
TO STOCKHOLDER: MRS. CARRIE B. DEWITT
PO BOX 70
ELLERBE, NC 28338
WITH COPIES TO: RICHARD C. RAYBURN, JR.
RAYBURN, MOON & SMITH, PA
227 WEST TRADE STREET
SUITE 1200
CHARLOTTE, NC 28202
15. EFFECT OF INVALIDITY: Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provisions shall be
interpreted to be only so broad as is enforceable; provided, however,
that the parties acknowledge that the rights described in Section
1(b)(iii) hereof are integral to this Agreement, and that if any of
such rights shall be unenforceable, then this entire Agreement shall
be voidable by Stockholder, and in the event this Agreement is voided
by Stockholder on such grounds, the parties shall use their best
efforts to return the parties to the status quo prior to execution of
this Agreement.
16. COUNTERPARTS: This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute
one and the same agreement.
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17. BINDING EFFECT; BENEFITS: This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective
heirs, legal representatives, successors, and assigns. Nothing in
this Agreement, expressed or implied, is intended to or shall confer
on any person other than the parties hereto and their respective
heirs, legal representatives, and successors and permitted assigns any
rights, remedies, obligations, or liabilities under or by reason of
this Agreement.
18. INDEMNIFICATION:
(a) The Purchaser agrees to indemnify and hold Stockholder and her
heirs, beneficiaries, executors, successors, and assigns
(individually, an "Indemnified Party" and collectively, the
"Indemnified Parties") harmless from any cost, expense,
damage, liability, claim or obligation, including without
limitation the reasonable costs and reasonable fees and
expenses of attorneys and other professionals (collectively,
"Claims"), arising out of or relative to any claim, action,
suit, or proceeding arising out of the execution of this
Agreement or her due performance of this Agreement or the
transactions contemplated by this Agreement, including without
limitation any such claims made by other holders of NCMS
Common Stock under federal or state securities or other laws
with respect to her voting of the Shares in favor of the
Merger or the delivery of any proxy related thereof, or with
respect to any claims that her performance of this Agreement
is in violation of any fiduciary, disclosure, or other duties
owed or allegedly owed to such other holders of NCMS Common
Stock.
(b) If any claim or demand is asserted against an Indemnified
Party by a third party with respect to any matter under the
indemnities set forth in subsection 18(a) (a "Third Party
Claim"), the Indemnified Party shall promptly give written
notice to the Purchaser. Within twenty (20) days of receipt
of such notice, the Purchaser shall (i) pay the Third Party
Claim either in full or upon compromise agreed to by the
Purchaser and consented to by the Indemnified Party or (ii)
notify the Indemnified Party that the Purchaser disputes the
Third Party Claim and intends to defend against it, and
thereafter so defend and pay any adverse final judgment or
award or settlement amount in regard thereto. Such defense
shall be controlled by the Purchaser, and the cost of such
defense shall be borne by it, except that the Indemnified
Party shall have the right to approve the selection of legal
counsel for the Indemnified Party and to participate in such
defense. The Indemnified Party agrees that she will cooperate
in all reasonable respects in the defense of any such claim or
demand, including making personnel, books and records relevant
to the claim available to the Purchaser, without charge,
except for reimbursement of reasonable out of pocket expenses.
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If the Purchaser fails to take action within twenty (20) days
as set forth above, then the Indemnified Party shall have the
right to pay, compromise or defend any Third Party Claim and
to assert the amount of any payment on the Third Party Claim
plus the expense of defense or settlement as a Claim. The
Indemnified Party shall also have the right, exercisable in
good faith, to take such action as may be necessary to avoid a
default prior to the assumption of the defense of the Third
Party Claim by the Purchaser and any expenses incurred by so
acting shall be paid by Purchaser.
(c) Notwithstanding anything contained herein, the Purchaser's
obligation to indemnify under this Section 18 shall be
mitigated to the extent that such Claim directly or indirectly
benefits the Stockholder, Stockholder's estate or any
affiliate of Stockholder or member of her immediate
family.
(d) In addition to the foregoing, Purchaser agrees to pay on
behalf of Stockholder, reasonable attorneys fees and fees of
tax advisors (in each case based on standard hourly rates)
associated with the execution, delivery of this Agreement and
any further amendments to this Agreement from and after
April 1, 1997 and the corporate proceedings related thereto,
which fees shall not exceed $50,000 in the aggregate.
19. RIGHT OF FIRST REFUSAL: Nothing in this Agreement shall be
interpreted as voiding or otherwise modifying any term or provision of
the rights of first refusal granted in favor of Purchaser (or its
affiliates), Mrs. DeWitt and NCMS, which terms and conditions are set
forth in a letter to Mrs. DeWitt from Penske Speedway, Inc., dated May
10, 1995, and a letter to Penske Speedway, Inc., from Mrs. DeWitt
also dated May 10, 1995, each as amended or as may be amended from
time to time (such rights of first refusal are collectively referred
to herein as "Reciprocal Rights"). Notwithstanding the foregoing, the
Reciprocal Rights shall automatically terminate and be of no further
force nor effect in the event (i) Stockholder exercises the Put Option
and Purchaser fails to purchase the Shares in breach of the terms of
the Purchase Option, or (ii) a definitive merger agreement with
respect by the Merger is executed by NCMS and Purchaser and is
properly authorized by the shareholders of NCMS, and Purchaser fails
to effect the Merger in breach of with the terms of such merger
agreement.
20. HSR ACT: Subject to the terms and conditions herein provided,
Purchaser and the Stockholder shall: (i) upon the request of the other
party, make their respective filings and thereafter make any other
required submissions under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act") with respect to the
transactions contemplated by this Agreement; (ii) use all reasonable
efforts to cooperate with one another in (A) determining which filings
are required to be made and which consents, approvals, permits, or
authorizations are required to be obtained from, governmental or
regulatory authorities of the United States, the several states, and
other jurisdictions in connection with the execution and
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delivery of this Agreement and the consummation of the transactions
contemplated hereby and (B) timely making all such filings and timely
seeking all such consents, approvals, permits, or authorizations; and
(iii) use best efforts to take, or cause to be taken, all other action
and do, or cause to be done, all other things necessary, proper, or
appropriate to consummate and make effective the transactions
contemplated by this Agreement. If, at any time, any further action
is necessary or desirable to carry out the purpose of this Agreement,
the proper officers and directors of Purchaser and the Stockholder
shall use best efforts to take all such necessary action.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
PENSKE ACQUISITION, INC.
BY:_______________________________
R.J. PETERS, PRESIDENT
PENSKE MOTORSPORTS, INC.
BY:_______________________________
R.J. PETERS, PRESIDENT
STOCKHOLDER:
__________________________________
CARRIE B. DEWITT
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