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Exhibit No. 10(vii)(b)
AMENDED AND RESTATED
FANZ ENTERPRISES, INC. PROMOTIONAL SHARES
LOCK-IN AGREEMENT
I. This Amended and Restated Promotional Shares Lock-In Agreement ("Agreement"),
which was entered into on the 2nd day of August, 2001, by and among FANZ
ENTERPRISES, INC. ("Issuer"), whose principal place of business is located at
3020-I Prosperity Church Rd., Charlotte, North Carolina 28269-7197, and JACKSON
ROSCOE MOTORSPORTS, LLC, J. ROE HITCHCOCK, FREDERICK L. MCDONALD, II and MICHAEL
J. WURTSBAUGH (each individually a "Security Holder" and collectively the
"Security Holders") witnesses that:
A. Issuer has filed an application with the Securities
Administrator of the States of Alabama, Arizona, Arkansas,
California, Colorado, Connecticut, Delaware, Florida, Georgia,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Nevada, New Hampshire, New Jersey, New York, North Carolina,
Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina,
Tennessee, Texas, Virginia, West Virginia, and Wyoming
("Administrators") to register certain of its Equity
Securities for sale to public investors who are residents of
those states ("Registration");
B. The Security Holders are the owners of the shares of common
stock or similar securities and/or possess convertible
securities, warrants, options or rights which may be converted
into, or exercised to purchase shares of common stock or
similar securities of Issuer.
C. The Security Holders entered into a Promotional Shares Lock-In
Agreement dated June 19, 2001 (the "Original Promotional
Shares Lock-In Agreement"). Issuer has been requested by
Administrators to amend the Original Promotional Shares
Lock-In Agreement as a pre-condition to approval of the
Company's application for securities registration under the
Coordinated Equity Review Program.
D. As a condition to Registration, the Issuer and the Security
Holders ("Signatories") agree to be bound by the terms of this
Agreement.
II. THEREFORE, the Security Holders agree that this Amended and Restated FanZ
Enterprises, Inc. Promotional Shares Lock-In Agreement shall replace the
Original Promotional Shares Lock-In Agreement. As of the date of this Agreement,
the Original Promotional Shares Lock-In Agreement shall be deemed terminated and
of no effect.
III. THEREFORE, the Security Holders agree not to sell, pledge, hypothecate,
assign, grant any option for the sale of, or otherwise transfer or dispose of,
whether or not for consideration, directly or indirectly, (i) all 10,000 shares
of the Preferred Stock (the "Preferred Stock") currently issued and outstanding
and held of record by the Security Holders, and (ii) all PROMOTIONAL SHARES , as
defined in the North American Securities Administrators
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Association ("NASAA") Statement of Policy on Corporate Securities Definitions,
as set forth on EXHIBIT 1 to this Agreement, and (iii) all certificates
representing stock dividends, stock splits, recapitalizations, and the like,
that are granted to, or received by, the Security Holder while the Preferred
Stock and the PROMOTIONAL SHARES listed on EXHIBIT 1 to this Agreement are
subject to this Agreement. For purposes of this Agreement the term "Restricted
Securities" shall include all of the shares identified in subsections (i), (ii)
and (iii) in the preceding sentence.
Beginning two years from the completion date of the public offering,
two and one-half percent (2 1/2 %) of the Restricted Securities may be released
each quarter pro rata among the Security Holders. All remaining Restricted
Securities shall be released from escrow on the anniversary of the fourth year
from the completion date of the public offering.
IV. THEREFORE, the Signatories agree and will cause the following:
A. In the event of a dissolution, liquidation, merger,
consolidation, reorganization, sale or exchange of the
Issuer's assets or securities (including by way of tender
offer), or any other transaction or proceeding with a person
who is not a Promoter, which results in the distribution of
Issuer's assets or securities ("Distribution"), while this
Agreement remains in effect that:
1. All holders of Issuer's EQUITY SECURITIES will
initially share on a pro rata, per share basis in the
Distribution, in proportion to the amount of cash or
other consideration that they paid per share for
their EQUITY SECURITIES (provided that the
Administrator has accepted the value of the other
consideration), until the shareholders who purchased
Issuer's EQUITY SECURITIES pursuant to the public
offering ("Public Shareholders") have received, or
have had irrevocably set aside for them, an amount
that is equal to one hundred percent (100%) of the
public offering's price per share times the number of
shares of EQUITY SECURITIES that they purchased
pursuant to the public offering and which they still
hold at the time of the Distribution, adjusted for
stock splits, stock dividends recapitalizations and
the like; and
2. All holders of Issuer's EQUITY SECURITIES shall
thereafter participate on an equal per share basis
times the number of shares of EQUITY SECURITIES they
hold at the time of the Distribution, adjusted for
stock splits, stock dividends, recapitalizations and
the like.
3. The Distribution may proceed on lesser terms and
conditions than the terms and conditions stated in
paragraphs 1 and 2 above if a majority of the EQUITY
SECURITIES that are not held by Security Holders,
officers, directors, or Promoters of the Issuer, or
their associates or affiliates vote, or consent by
consent procedure, to approve the lesser terms and
conditions.
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B. In the event of a dissolution, liquidation, merger,
consolidation, reorganization, sale or exchange of the
Issuer's assets or securities (including by way of tender
offer), or any other transaction or proceeding with a person
who is a Promoter, which results in a Distribution while this
Agreement remains in effect, the Restricted Securities shall
remain subject to the terms of this Agreement.
C. Restricted Securities may be transferred by will, the laws of
descent and distribution, the operation of law, or by order of
any court of competent jurisdiction and proper venue.
D. Restricted Securities of a deceased Security Holder may be
hypothecated to pay the expenses of the deceased Security
Holder's estate. The hypothecated Restricted Securities shall
remain subject to the terms of this Agreement. Restricted
Securities may not be pledged to secure any other debt.
E. Restricted Securities may be transferred by gift to the
Security Holder's family members, provided that the Restricted
Securities shall remain subject to the terms of this
Agreement.
F. With the exception of paragraph A.3 above, the Restricted
Securities shall have the same voting rights as similar EQUITY
SECURITIES not subject to the Agreement.
G. A notice shall be placed on the face of each stock certificate
of the Restricted Securities covered by the terms of the
Agreement stating that the transfer of the stock evidenced by
the certificate is restricted in accordance with the
conditions set forth on the reverse side of the certificate;
and
H. A typed legend shall be placed on the reverse side of each
stock certificate of the Restricted Securities representing
stock covered by the Agreement which states that the sale or
transfer of the shares evidenced by the certificate is subject
to certain restrictions until the anniversary of the fourth
year from the completion date of the public offering pursuant
to an agreement between the Security Holder (whether
beneficial or of record) and Issuer, which agreement is on
file with Issuer and the stock transfer agent from which a
copy is available upon request and without charge.
I. The term of this Agreement shall begin on the date that the
Registration is declared effective by the Administrators
("Effective Date") and shall terminate:
1. On the anniversary of the fourth year from the
completion date of the public offering; or
2. On the date the Registration has been terminated if
no securities were sold pursuant thereto; or
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3. If the Registration has been terminated, the date
that checks representing all of the gross proceeds
that were derived therefrom and addressed to the
public investors have been placed in the U.S. Postal
Service with first class postage affixed; or
4. On the date the securities subject to this Agreement
become "Covered Securities," as defined under the
National Securities Markets Improvement Act of 1996.
J. This Agreement to be modified only with the written approval
of the Administrators.
V. THEREFORE, Issuer will cause the following:
A. A manually signed copy of the Agreement signed by the
Signatories to be filed with the Administrators prior to the
Effective Date;
B. Copies of the Agreement and a statement of the per share
initial public offering price to be provided to the Issuer's
stock transfer agent;
C. Appropriate stock transfer orders to be placed with Issuer's
stock transfer agent against the sale or transfer of the
shares covered by the Agreement prior to its expiration,
except as may otherwise be provided in this Agreement;
D. The above stock restriction legends to be placed on the
periodic statement sent to the registered owner if the
securities subject to this Agreement are uncertificated
securities.
Pursuant to the requirements of this Agreement, the Signatories have entered
into this Agreement, which may be written in multiple counterparts and each of
which shall be considered an original. The Signatories have signed the Agreement
in the capacities, and on the dates, indicated.
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IN WITNESS WHEREOF, the Signatories have executed this AMENDED AND
RESTATED FANZ ENTERPRISRES, INC. PROMOTIONAL SHARES LOCK-IN AGREEMENT as of the
date first written above.
Issuer: Security Holders:
FANZ ENTERPRISES, INC. JACKSON ROSCOE MOTORSPORTS, LLC
By: /s/ Frederick L. McDonald, II By: /s/ J. Roe Hitchcock
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Frederick L. McDonald, II J. Roe Hitchcock
President Member
X /s/ Michael J. Wurtsbaugh
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Michael J. Wurtsbaugh
X /s/ Frederick L. McDonald, II
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Frederick L. McDonald, II
X /s/ J. Roe Hitchcock
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J. Roe Hitchcock
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EXHIBIT 1
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- - 10,000,000 shares of Issuer's common stock held by Jackson Roscoe
Motorsports, LLC.
- - 10,000 shares of Issuer's preferred stock held by Jackson Roscoe
Motorsports, LLC.
- - The options to purchase up to 500,000 shares of Issuer's common stock
granted to Mr. Wurtsbaugh and any shares of common stock actually purchased
by Mr. Wurtsbaugh pursuant to the options granted.
- - Any shares purchased by the parties hereto in this offering.