Exhibit 99.1
SPEEDWAY MOTORSPORTS, INC.
$70,000,000 5 3/4% Convertible Subordinated
Debentures due 2003
PURCHASE AGREEMENT
WHEAT, FIRST SECURITIES, INC.
XXXXXXXXXX SECURITIES
X.X. XXXXXXXX & CO.
c/o Wheat, First Securities, Inc.
Riverfront Plaza
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000 September 26, 1996
Ladies and Gentlemen:
Speedway Motorsports, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Wheat, First Securities, Inc., Xxxxxxxxxx Securities and X.X. Xxxxxxxx & Co.
(collectively, the "Initial Purchasers," which term shall also include any
Initial Purchaser substituted as hereinafter provided in Section 9 hereof), the
respective principal amounts set forth in Schedule I hereto of $70,000,000 in
aggregate principal amount of the Company's 5 3/4% Convertible Subordinated
Debentures due 2003 (the "Debentures") with such terms as are set forth in
Schedule II. The Company also proposes to grant to the Initial Purchasers,
acting severally and not jointly, an option to purchase all or any part of an
additional $7,000,000 principal amount of Debentures to cover over- allotments,
if any. Such $70,000,000 aggregate principal amount of Debentures are herein
called the "Firm Securities," and the $7,000,000 aggregate principal amount of
Debentures are herein called the "Optional Securities." The Firm Securities and
the Optional Securities that the Initial Purchasers elect to purchase pursuant
to Section 2 hereof are collectively called the "Securities."
The Debentures are to be issued pursuant to an indenture, dated as of
September 1, 1996 (the "Indenture"), between the Company and First Union
National Bank of North Carolina, as trustee (the "Trustee"). The Debentures are
convertible into shares of common stock, par value $.01 per share, of the
Company (the "Common Stock") in accordance with the terms of the Securities and
the Indenture, at the conversion price specified in Schedule II hereto. The
shares of Common Stock issuable upon conversion of the Debentures are herein
referred to as the "Underlying Stock."
The Securities will be offered and sold to the Initial Purchasers
pursuant to an exemption from the registration requirements under the Securities
Act of 1933, as amended (the "Securities Act"), and the Initial Purchasers
propose to resell the Securities to qualified institutional buyers (as defined
in Rule 144A ("Rule 144A") under the Securities Act) ("Qualified Institutional
Buyers") in compliance with Rule 144A, to institutional "accredited investors"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
("Institutional Accredited Investors"), and to certain persons outside the
United States in reliance on Regulation S under the Securities Act ("Regulation
S") (collectively, "Subsequent Purchasers"). Upon original issuance of the
Securities and until such time as the Company deems that it is no longer
required under the Securities Act, the certificates representing the Debentures
and the Underlying Stock issuable upon conversion of the Debentures (and all
securities issued in exchange of any therefor or in substitution of any thereof)
shall bear the legend set forth on Exhibit A.
The Company has prepared and delivered to each Initial Purchaser copies
of a preliminary offering memorandum dated September 12, 1996 (the "Preliminary
Offering Memorandum") and has prepared and will deliver to each Initial
Purchaser, on the date hereof copies of a final offering memorandum dated
September 26, 1996 (the "Final Offering Memorandum"), each to be used by such
Initial Purchaser in connection with its solicitation of purchases of, or
offering of, the Securities. "Offering Memorandum" means, with respect to any
date or time referred to in this Agreement, the most recent offering memorandum
(whether the Preliminary Offering Memorandum or the Final Offering Memorandum,
or any amendment or supplement to either such document), including exhibits
thereto and any documents incorporated therein by reference, which has been
prepared and delivered by the Company to the Initial Purchasers in connection
with their solicitation of purchases of, or offering of, the Securities.
Holders (including subsequent transferees) of the Debentures will have
the registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement"), dated concurrently herewith. Pursuant to the
Registration Rights Agreement, the Company has agreed to file with the
Securities and Exchange Commission (the "Commission") a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement") to cover public resales of the Debentures and the Underlying Stock
by the Holders thereof.
All references in this Agreement to financial statements and other
information which is "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and other information which is
incorporated by reference in the Offering Memorandum; and all references in this
Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the "Exchange Act") which is
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incorporated by reference in the Offering Memorandum. Capitalized terms used
herein without definition have the respective meanings specified therefor in the
Offering Memorandum. For purposes hereof, "Rules and Regulations" means the
rules and regulations adopted by the Commission under the Securities Act, the
Exchange Act or the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), as applicable.
1. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Initial
Purchasers that:
(a) The Offering Memorandum, as of its date, together with each
amendment or supplement thereto, as of its date, contains all the information
that, if requested by a prospective purchaser, would be required to be provided
pursuant to Rule 144A(d)(4) under the Securities Act. The Offering Memorandum
does not, and at each Delivery Date will not, and any amendment or supplement
thereto, if any, as of its date, will not, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to information related to
the terms of the Securities omitted from the Preliminary Offering Memorandum due
to the preliminary nature thereof or information contained in or omitted from
the Offering Memorandum (or any supplement or amendment thereto) in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Initial Purchaser specifically for use therein (the "Initial
Purchasers' Information"). The parties acknowledge and agree that the Initial
Purchasers' Information consists solely of the last paragraph at the bottom of
the front cover page covering the terms of the offering by the Initial
Purchasers, the legend concerning over-allotment on page 3 and the third, fourth
and sixth paragraphs under the caption "Plan of Distribution" in the Offering
Memorandum. The Company is subject to Section 13 or 15(d) of the Exchange Act.
(b) The Offering Memorandum as delivered from time to time shall
incorporate by reference the most recent Annual Report of the Company on Form
10-K filed with Securities and Exchange Commission (the "Commission") and each
Quarterly Report of the Company on Form 10-Q and each Current Report of the
Company on Form 8-K filed with the Commission since the filing of the then most
recent Annual Report of the Company on Form 10-K. The documents incorporated or
deemed to be incorporated by reference in the Offering Memorandum at the time
they were or hereafter are filed with the Commission comply, and will comply, in
all material respects as to both form and substance with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, when
read together with the other information in the Offering Memorandum, at the date
of the Offering Memorandum and at each Delivery Date, and will not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
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(c) If the Offering Memorandum were a prospectus included in a
registration statement on Form S-3 under the Securities Act, the Offering
Memorandum and any amendments or supplements thereto would comply as to form in
all material respects to the requirements of the Securities Act and the Rules
and Regulations thereunder.
(d) Exhibit B hereto contains a complete and correct list of all active
subsidiaries of the Company (the "Subsidiaries"). The Company and the
Subsidiaries do not own more than 5% of the equity interests of any other
business entities other than shares of publicly-held companies held solely for
investment and other than 50% of the outstanding capital stock of North
Wilkesboro Speedway, Inc., a North Carolina corporation ("NWS"), owned by the
Company. For purposes hereof, "Material Subsidiaries" means Atlanta Motor
Speedway, Inc., Bristol Motor Speedway, Inc., Charlotte Motor Speedway, Inc.,
Texas Motor Speedway, Inc. d/b/a/ Texas International Raceway, Inc., and 600
Racing Inc.
(e) Neither the Company nor any of the Material Subsidiaries nor, to
the Company's knowledge, NWS have sustained since the date of the latest audited
financial statements included in the Offering Memorandum any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum. Since the respective dates as of which
information is given in the Offering Memorandum, there has not been any change
in the outstanding capital stock or long-term debt of the Company or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Offering Memorandum.
(f) The Company, each of the Material Subsidiaries and, to the
Company's knowledge, NWS have good and marketable title in fee simple to all
real property and good and marketable title to all material items of personal
property owned by them, free and clear of all liens, encumbrances and defects
except such as are described in the Offering Memorandum or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and the Material
Subsidiaries. Any real property and buildings held under lease by the Company or
any of the Material Subsidiaries are held by it under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company or such Material Subsidiaries.
(g) The Company, each of the Subsidiaries and, to the Company's
knowledge, NWS have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective jurisdictions
of incorporation, with power and authority (corporate and other) to own or lease
their respective properties and conduct their respective businesses as described
in the Offering Memorandum, and each has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except where the
failure to so qualify would not result in a material adverse effect on the
consolidated financial position,
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shareholders' equity or results of operations of the Company and the
Subsidiaries and NWS taken as a whole.
(h) The Company has an authorized capitalization as set forth in the
Offering Memorandum and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
nonassessable and conform to the description of the capital stock of the Company
contained in the Offering Memorandum; except as described in the Offering
Memorandum, there are no preemptive or other similar rights to subscribe for or
to purchase any securities of the Company; except as described in the Offering
Memorandum, there are no warrants, options or other similar rights to purchase
any securities of the Company.
(i) Except as described in the Offering Memorandum, all outstanding
shares of capital stock of each of the Subsidiaries and all outstanding shares
of capital stock of NWS owned by the Company are owned by the Company, either
directly or through wholly-owned subsidiaries, free and clear of any perfected
security interest and any other security interest, claim, lien or encumbrance.
(j) The Debentures will be issued pursuant to the terms and conditions
of the Indenture, and the Indenture and the Registration Rights Agreement will
each conform to the description thereof contained in the Offering Memorandum. At
each Delivery Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act and the Rules and Regulations applicable
to an indenture which is qualified thereunder. The Debentures have been duly
authorized and, when validly authenticated, issued, delivered and paid for in
the manner contemplated by the Indenture, will be duly authorized, validly
issued and outstanding obligations of the Company entitled to the benefits of
the Indenture. The shares of Common Stock issuable upon conversion of the
Debentures will, upon such issuance, be duly authorized, validly issued, fully
paid and non-assessable, and the Company has duly authorized and reserved for
issuance upon conversion of the Debentures the shares of Common Stock issuable
upon such conversion. The Debentures and the Underlying Stock are not and will
not be subject to any preemptive or other similar rights of any securityholder
of the Company or any of the Subsidiaries; all corporate action required to be
taken for the authorization, issue and sale of the Debentures and the Underlying
Stock has been duly and validly taken; and the form of certificates evidencing
the Debentures and the Underlying Stock complies with all formal requirements of
Delaware law. Upon the issuance and delivery pursuant to the terms of this
Agreement and the Indenture of the Debentures to be sold by the Company
hereunder and thereunder, the Initial Purchasers will acquire good and
marketable title thereto free and clear of any lien, charge, claim, encumbrance,
pledge, security interest, defect or other restriction or equity of any kind
whatsoever.
(k) The Company has full legal right, power and authority to authorize,
issue, deliver and sell the Debentures and the Underlying Stock upon conversion
of the Debentures, to enter into this Agreement, the Indenture and the
Registration Rights Agreement and to consummate the transactions provided for in
such agreements. This Agreement has been duly and properly authorized, executed
and delivered by the Company and when the Company has duly executed and
delivered the Registration Rights Agreement and the Indenture (and assuming the
due execution and delivery thereof by the other parties thereto), each such
agreement will constitute a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms. None of
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the Company's issue and sale of the Debentures and the Underlying Stock upon the
conversion of the Debentures, the execution or delivery of this Agreement, the
Indenture and the Registration Rights Agreement, its performance hereunder and
thereunder, its consummation of the transactions contemplated herein and therein
or the conduct by it and the Material Subsidiaries of their businesses as
described in the Offering Memorandum or any amendments or supplements thereto
will conflict with or result in a breach or violation of any terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of the
Material Subsidiaries is a party or by which any of the property or assets of
the Company or any of the Material Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Material Subsidiaries is
subject, nor will such action result in any violation of the provisions of the
Certificate of Incorporation or bylaws of the Company (each as amended to date
the "Charter" and "Bylaws", respectively) or the articles of incorporation or
bylaws of any of the Material Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of the Material Subsidiaries or any of their properties.
(l) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body having
jurisdiction over the Company or any of the Material Subsidiaries or any of the
properties is required for the issue and sale of the Debentures, and the
Underlying Stock upon conversion of the Debentures, or the consummation by the
Company of the transactions contemplated by this Agreement, the Indenture, or
the Registration Rights Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Securities Act and under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Initial Purchasers.
(m) There are no legal or governmental proceedings pending to which the
Company or any of its Subsidiaries or, to the Company's knowledge, NWS is a
party or of which any property of the Company or any of its Subsidiaries or NWS
is the subject, other than as set forth or contemplated in the Offering
Memorandum, which (i) if determined adversely to the Company or any of its
Subsidiaries or NWS, would individually or in the aggregate, have a material
adverse effect on the financial position, shareholders' equity or results of
operations of the Company, the Subsidiaries and NWS taken as a whole or (ii)
questions the validity of the capital stock of the Company or any of the
Subsidiaries or NWS, this Agreement, the Indenture, the Registration Rights
Agreement or of any action taken or to be taken by the Company or any of the
Subsidiaries pursuant to or in connection with this Agreement, the Indenture or
the Registration Rights Agreement and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or by others.
(n) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and the Subsidiaries, are independent public
accountants as required by the Securities Act and the Rules and Regulations
thereunder.
(o) All employee benefit plans (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) established, maintained or contributed to by the Company
comply in all material respects with the requirements of ERISA and no employee
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pension benefit plan (as defined in Section 3(2) of ERISA) has incurred or
assumed an "accumulated funding deficiency" within the meaning of Section 302 of
ERISA or has incurred or assumed any material liability (other than for the
payment of premiums) to the Pension Benefit Guaranty Corporation.
(p) The combined financial statements of the Company and the
Subsidiaries, together with related notes, as set forth in the Offering
Memorandum present fairly the financial position and the results of operations
of the Company and the Subsidiaries at the indicated dates and for the indicated
periods; such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout the
periods presented except as noted in the notes thereon, and all adjustments
necessary for a fair presentation of results for such periods have been made;
and the selected financial information included in the Offering Memorandum
presents fairly the information shown therein and has been compiled on a basis
consistent with the financial statements presented therein.
(q) The Company, each of the Material Subsidiaries and, to the
Company's knowledge, NWS has filed all federal, state and foreign income tax
returns which have been required to be filed (or has received an extension with
respect thereto), and has paid, or made adequate reserves for, all taxes
indicated by said returns and all assessments received by them to the extent
that such taxes have become due and are not being contested in good faith.
(r) Neither the Company nor any of the Material Subsidiaries nor, to
the Company's knowledge, NWS is in violation of any international, federal or
state law, regulation, or treaty relating to the storage, handling,
transportation, treatment or disposal of hazardous substances (as defined in 42
U.S.C. Section 9601) or hazardous materials (as defined by any international,
federal or state law or regulation) or other waste products, which violation is
reasonably likely to result in a material adverse effect on the financial
condition or business operations or properties of the Company, the Subsidiaries
and NWS taken as a whole. The Company, each of the Material Subsidiaries and, to
the Company's knowledge, NWS have received all material permits, licenses or
other approvals as may be required of them under applicable international,
federal and state environmental laws and regulations to conduct their business
as described in the Offering Memorandum. The Company, each of the Material
Subsidiaries and, to the Company's knowledge, NWS are in compliance in all
material respects with the terms and conditions of any such permit, license or
approval. Neither the Company nor any of the Material Subsidiaries nor, to the
Company's knowledge, NWS has received any notices or claims that it is a
responsible party or a potentially responsible party in connection with any
claim or notice asserted pursuant to 42 U.S.C. Section 9601 et seq. or any state
superfund law. The disposal by the Company or any Subsidiary or, to the
Company's knowledge, NWS of any of the Company's, each Material Subsidiary's
and, to the Company's knowledge, NWS's hazardous substances, hazardous materials
and other waste products has been lawful.
(s) No relationship, direct or indirect, exists between or among the
Company or any of the Material Subsidiaries, on the one hand, and the directors,
officers, shareholders, customers or suppliers of the Company or any of the
Material Subsidiaries on the other hand, that would be required by the
Securities Act or the Exchange Act, or by the Rules and Regulations thereunder
to be described in the Offering Memorandum, if the Offering Memorandum were a
prospectus included
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in a registration statement on Form S-3 under the Securities Act, or documents
incorporated by reference therein that is not so described.
(t) Neither the Company nor any of the Material Subsidiaries has taken
and none of such entities will take, directly or indirectly, any action that is
designed to or that has constituted or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Debentures or otherwise.
(u) Each of the Company and the Material Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate licenses, copyrights,
trademarks, service marks and trade names (collectively, "intellectual
property") necessary to carry on its business as presently operated by it,
except where the failure to own or possess or have the ability to acquire any
such intellectual property would not, individually or in the aggregate, have a
material adverse effect on the Company and the Subsidiaries taken as a whole,
and neither the Company nor any of the Material Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any intellectual property or of any facts which
would render any intellectual property invalid or inadequate to protect the
interest of the Company or any of the Material Subsidiaries therein and which
infringement or conflict could have a material adverse effect on the Company and
the Subsidiaries taken as a whole.
(v) Except as described in the Offering Memorandum, the Company and the
Material Subsidiaries maintain insurance of the types and in the amounts that
are reasonable or required for the business operated by them, all of which
insurance is in full force and effect.
(w) The Company and each of the Material Subsidiaries holds and are
operating in compliance, in all material respects, with all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates and orders
of any governmental or self-regulatory body (except with respect to
environmental matters which are governed by Section 1(r) hereof) required for
the conduct of their respective businesses as presently being conducted
("licenses") and all licenses are valid and in full force and effect, and the
Company, and each of the Material Subsidiaries are in compliance, in all
material respects, with all laws, regulations, orders and decrees applicable to
them.
(x) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) There is no document or contract of a character required to be
described in the Offering Memorandum, if the Offering Memorandum were a
prospectus included in a registration statement on Form S-3 under the Securities
Act, which is not described as required. All such
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documents and contracts to which the Company or a Material Subsidiary is a party
constitute valid and binding agreements of the Company.
(z) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act and will not be, at each Delivery Date, of
the same class as securities listed on a National Securities Exchange registered
under Section 6 of the Exchange Act or quoted in a U.S. automated interdealer
quotation system. The Debentures are eligible for trading in the Private
Offerings, Resale and Trading through Automated Linkages ("PORTAL") Market (and,
after the Shelf Registration Statement, will be eligible for trading on the New
York Stock Exchange) and the Underlying Stock has been approved for listing on
the New York Stock Exchange. The Common Stock is listed on the New York Stock
Exchange.
(aa) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Offering Memorandum will not be, an "investment
company," a company controlled by an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended.
(ab) None of the proceeds of the sale of the Debentures will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any other
purpose which might cause any of the Debentures to be considered a "purpose
credit" within the meanings of Regulation G, T, U or X of the Board of Governors
of the Federal Reserve Board.
(ac) Neither the Company nor any affiliate (as such term is defined in
Rule 501(b) under the Securities Act) of the Company has, directly or through
any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any "security" (as defined in the Securities Act),
which is or will be integrated with the sale of the Debentures in a manner that
would require the registration of the Debentures under the Securities Act.
(ad) With respect to those Securities sold in reliance on Regulation S,
(i) none of the Company, its affiliates or any person acting on its or their
behalf (other than the Initial Purchasers, as to whom the Company makes no
representations) has engaged or will engage in any directed selling efforts as
that term is defined in Regulation S, and (ii) each of the Company and its
affiliates and any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representations) has complied and
will comply with the offering restrictions requirements of Regulation S. There
is no "substantial U.S. Market interest" as defined in Regulation S for the
Securities or any security of the same class as the Securities.
(ae) None of the Company, any affiliate (as such term is defined in
Rule 501(b) under the Securities Act) of the Company and any other person acting
on its or their behalf (other than the Initial Purchasers, as to whom the
Company makes no representations) has engaged, in connection with the offering
of the Debentures, in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act.
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(af) Assuming the accuracy of the Initial Purchasers' representations
in Section 3 hereof and their compliance with the agreements set forth therein,
it is not necessary, in connection with the issuance and sale of the Debentures
to the Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum, to register the
Debentures under the Securities Act, or to qualify the Indenture under the Trust
Indenture Act.
2. Purchase and Sale.
On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Initial Purchasers, and each of the
Initial Purchasers agrees, severally and not jointly, to purchase from the
Company the Firm Securities in the respective principal amounts set forth on
Schedule I at the purchase price equal to 97.5% of the principal amount thereof.
In addition, on the basis of the representations, warranties and
agreements contained herein, and subject to the terms and conditions set forth
herein, the Company hereby grants to the Initial Purchasers the right to
purchase at their election any or all of the Optional Securities in the
respective principal amounts set forth on Schedule I at a purchase price equal
to 97.5% of the principal amount thereof plus accrued interest from the First
Delivery Date to the Second Delivery Date, for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any such election to
purchase Optional Securities may be exercised no more than once by written
notice from you to the Company, given within a period of 30 days after the date
of this Agreement, setting forth the aggregate amount of Optional Securities to
be purchased and the date on which such Optional Securities are to be delivered,
as determined by you but in no event earlier than the First Delivery Date (as
defined in Section 4 hereof) or, unless you otherwise agree in writing, earlier
than two or later than 10 business days after the date of such notice.
3. Subsequent Offers and Resales of the Securities.
(a) The Initial Purchasers have advised the Company that they propose
to offer the Securities for resale upon the terms and conditions set forth in
this Agreement. Each Initial Purchaser hereby severally represents and warrants
to, and agrees with, the Company that (i) such Initial Purchaser is a Qualified
Institutional Buyer and (ii) will solicit offers for such Securities only from,
and will offer such Securities only (x) to persons who it reasonably believes
are Qualified Institutional Buyers in transactions meeting the requirements of
Rule 144A, (y) to a limited number of persons reasonably believed by such
Initial Purchaser to be Institutional Accredited Investors, or (z) outside the
United States to certain persons in reliance on Regulation S under the
Securities Act, as more fully set forth in the case of clauses (x) and (y) in
Section 3(b)(i) below.
(b) Each Initial Purchaser further severally represents
and warrants to, and agrees with, the Company that:
(i) Such Initial Purchaser acknowledges that the Securities
have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S
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or pursuant to an exemption from the registration requirements of the
Securities Act; that it has offered and sold the Securities, and will
offer and sell the Securities, (x) as part of their distribution at any
time and (y) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the First Delivery
Date, only, in the case of either (x) or (y) above, in accordance with
Rule 903 under the Securities Act or Rule 144A or to a limited number
of Institutional Accredited Investors in accordance with subsection
(ii) and accordingly, (A) neither the Initial Purchasers nor their
affiliates, nor any persons acting on their behalf, have engaged or
will engage in any directed selling efforts within the meaning of Rule
901(b) of Regulation S with respect to the Securities, (B) the Initial
Purchasers, their affiliates and all persons acting on their behalf
have complied and will comply with the offering restrictions
requirements of Regulation S at or prior to confirmation of sale of the
Securities, other than a sale pursuant to Rule 144A or a sale to an
Institutional Accredited Investor in accordance with subsection (ii),
and (C) the Initial Purchasers will have sent to each distributor,
dealer or other person receiving a selling concession, fee or other
remuneration that purchases the Securities from the Initial Purchasers
during the restricted period a confirmation or notice substantially to
the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the date of the commencement of the offering and
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this paragraph have the meanings given to them by
Regulation S.
(ii) Such Initial Purchaser has offered, or may offer and
sell, Securities to institutions, each of which is reasonably believed
by such Initial Purchaser to be an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act or
an entity in which all of the equity owners are accredited investors
within the meaning of Rule 501(a)(1), (2), (3), or (7) under the
Securities Act; provided that each such Institutional Accredited
Investor executes and delivers to the Initial Purchasers and the
Company, prior to the consummation of any sale of Securities to such
Institutional Accredited Investor, an Initial Purchaser's Letter in
substantially the form attached as Exhibit A to the Offering Memorandum
(an "Initial Purchaser's Letter").
(iii) Such Initial Purchaser will not offer or sell the
Securities purchased from the Company hereunder in the United States by
means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act, including, but not
limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or
general advertising; provided, however, that such limitation shall not
preclude the Initial Purchasers
-11-
from placing any tombstone announcement with respect to the resale by
the Initial Purchasers of the Securities, provided that such
announcement is not prohibited by Regulation S.
(iv) With respect to resales made in reliance on Rule 144A,
other than through PORTAL, of any of the Securities purchased from the
Company hereunder, the Initial Purchasers will deliver either with the
confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Securities has
been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
(v) The Initial Purchasers (A) have not offered or sold, and
will not offer or sell in the United Kingdom, by means of any document,
any Securities other than (1) to persons whose ordinary business it is
to buy or sell shares or debentures, whether as a principal or agent,
or (2) in circumstances which do not constitute an offer to the public
in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, (B) have complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect
to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom, and (C) have only issued or
passed on and will only issue or pass on to any person in the United
Kingdom any document received by it in connection with the issue of the
Securities if the person is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1995 or is a person to whom the document may otherwise lawfully
be issued or passed on.
(c) Each Initial Purchaser severally warrants and agrees that it has
not entered, and will not enter, into any contractual arrangement with respect
to the distribution of the Securities other than the Agreement Among Initial
Purchasers between the Initial Purchasers dated the date hereof, except with its
affiliates or with the prior written consent of the Company.
4. Delivery and Payment.
Certificates in definitive form for the Securities to be purchased by
each Initial Purchaser hereunder, and in such denominations and registered in
such names as Wheat, First Securities, Inc. may request upon at least two
business days' prior notice to the Company shall be delivered by or on behalf of
the Company to Wheat, First Securities, Inc., for the account of each Initial
Purchaser, against payment by such Initial Purchaser or on its behalf of the
purchase price therefor. Payment of the purchase price for the Securities shall
be made by wire transfer of immediately available funds all at the offices of
Wheat, First Securities, Inc., Riverfront Plaza, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx. The time and date of such delivery and payment shall be, with respect
to the Firm Securities, 10:00 a.m., Richmond, Virginia time, on October 1, 1996
or at such other time and date as you and the Company may agree upon in writing,
and, with respect to the Optional Securities, 10:00 a.m., Richmond, Virginia
time, on the date specified by you in the written notice given by you
(consistent with Section 2 hereof) of the Initial Purchasers' election to
purchase such Optional Securities, or at such other time and date as you and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Securities is herein called the "First Delivery Date," such time and date for
delivery of the Optional Securities, if not the First Delivery Date, is herein
called the
-12-
"Second Delivery Date," and each such time and date for delivery is herein
called a "Delivery Date." At least twenty- four hours prior to each Delivery
Date, the Company shall deliver to The Depository Trust Company ("DTC") a global
certificate or certificates registered in the name of Cede & Co., the nominee of
DTC, and representing all Securities the beneficial interests in which are to be
sold to Qualified Institutional Buyers (collectively, the "Global Security").
The interests of such beneficial owners will be represented by book entries on
the records of DTC and participating members thereof. Any Securities sold to
Institutional Accredited Investors that are not Qualified Institutional Buyers
or outside the United States to a non-U.S. person within the meaning of
Regulation S under the Securities Act in a transaction meeting the requirements
of Rule 904 under the Securities Act shall be issued in definitive fully
registered form (collectively, the "Certificated Security"), and in such
denominations ($1,000 or integral multiples thereof) and registered in such
names as the Initial Purchasers may request upon at least forty-eight hours'
prior written notice to the Company, and shall bear the legend relating thereto
set forth on Exhibit A. The Global Security and the Certificated Securities
shall be made available for examination by the Initial Purchasers in The City of
New York at 10:00 A.M. on the business day immediately preceding the First
Delivery Date or the Second Delivery Date, as the case may be.
5. Agreements of the Company.
The Company agrees with the Initial Purchasers as follows:
(a) During the period ending 90 days after the date hereof to advise
the Initial Purchasers promptly and, if requested, confirm such advice in
writing, of the happening of any event which makes any statement of a material
fact made in the Offering Memorandum untrue or that requires the making of any
additions to or changes in the Offering Memorandum (as amended or supplemented
from time to time) in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; to advise the Initial
Purchasers promptly of any order preventing or suspending the use of the
Preliminary Offering Memorandum or the Offering Memorandum, of the suspension of
the qualification of the Debentures for offering or sale in any jurisdiction and
of the initiation or threatening of any proceeding for any such purpose; and to
use its reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Offering Memorandum or of
the Offering Memorandum or suspending any such qualification and, if any such
suspension is issued, to use its reasonable best effort to obtain the lifting
thereof at the earliest possible time.
(b) To furnish promptly to the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and of any
amendments or supplements thereto) as may be reasonably requested; to furnish to
the Initial Purchasers on the date hereof a copy of the independent accountants'
report included in the Offering Memorandum signed by the accountants rendering
such report; and the Company hereby consents to the use of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments and
supplements thereto, in connection with resales of the Debentures to the
Subsequent Purchasers.
-13-
(c) If the delivery of the Offering Memorandum is required at any time
in connection with the sale of the Debentures and if at such time any events
shall have occurred as a result of which the Offering Memorandum as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when the Offering
Memorandum is delivered, not misleading, or if for any other reason it shall be
necessary at such time to amend or supplement the Offering Memorandum in order
to comply with any law, to notify the Initial Purchasers immediately thereof,
and to promptly prepare and furnish to the Initial Purchasers an amended
Offering Memorandum or a supplement to the Offering Memorandum so that
statements in the Offering Memorandum, as so amended or supplemented, will not,
in light of the circumstances under which they were made when it is so
delivered, be misleading, or so that the Offering Memorandum will comply with
applicable law. The Initial Purchasers' delivery of any such amendment or
supplement shall not constitute a waiver of any of the conditions set forth in
Section 7 hereof.
(d) During the three-year period following the First Delivery Date, for
so long as and at any time that it is not subject to Section 13 or 15(d) of the
Exchange Act, upon request of any holder of the Debentures, to furnish to such
holder, and to any prospective purchaser or purchasers of the Debentures
designated by such holder, information satisfying the requirements of Rule
144A(d)(4) under the Securities Act. This covenant is intended to be for the
benefit of the holders from time to time of the Debentures, and prospective
purchasers of the Debentures designated by such holders.
(e) In connection with the offering of the Debentures, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers.
(f) To use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by it that are within its
control prior to or after the First Delivery Date and to use reasonable efforts
to satisfy all conditions precedent on its part to the delivery of the
Debentures.
(g) Except following the effectiveness of the Shelf Registration
Statement, to not authorize or knowingly permit any person acting on its or
their behalf to, solicit any offer to buy or offer to sell the Debentures by
means of any form of general solicitation or general advertising (as such terms
are used in Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act.
(h) To not, and to use its reasonable best efforts to ensure that no
affiliate (as such term is defined in Rule 501(b) under the Securities Act) of
the Company will, offer, sell or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Securities Act) which could be
integrated with the sale of the Debentures in a manner that would require the
registration of the Debentures under the Securities Act.
(i) To not, so long as the Debentures are outstanding, be or become, or
be or become owned by, an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act, or be or become, or
-14-
be or become owned by, a closed-end investment company required to be registered
under Section 8 of the Investment Company Act, but not registered thereunder.
(j) To cooperate with the Initial Purchasers and counsel for the
Initial Purchasers to qualify the Debentures for offering and sale under the
securities laws of such jurisdictions as the Initial Purchasers may reasonably
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Debentures; provided, however, that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process or to subject it
to taxation in any jurisdiction where it is not so qualified or so subject.
(k) To use its reasonable best efforts to comply with the Registration
Rights Agreement and all agreements set forth in the representation letters of
the Company to The Depository Trust Company relating to the approval of the
Debentures for "book-entry" transfers.
(l) In connection with the offering, until the Initial Purchasers shall
have notified the Company of the completion of the resale of the Debentures, to
not and to use its reasonable best efforts to not permit any affiliated
purchasers (as defined in Rule 10b-6 under the Exchange Act), either alone or
with one or more other persons, to bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any
Debentures, or attempt to induce any person to purchase any Debentures; and to
not and to use its reasonable best efforts to not permit any of its affiliated
purchasers to make bids or purchases for the purpose of creating actual, or
apparent, active trading in or of raising the price of the Debentures.
(m) Prior to the First Delivery Date, to not issue any press release or
other communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings, or
business prospects, without the prior consent of the Initial Purchasers, unless
in the judgment of the Company and its counsel, and after notification to the
Initial Purchasers, such press release or communication is required by law.
(n) To not take any action prior to the execution and delivery of the
Indenture which, if taken after such execution and delivery, would have violated
any of the covenants contained in the Indenture.
(o) To not take any action prior to the First Delivery Date which in
the Company's reasonable judgment would require the Offering Memorandum to be
amended or supplemented pursuant to Section 5(c) hereof.
(p) To maintain a transfer agent and, if necessary under the laws of
the jurisdiction of incorporation of the Company, a registrar (which may be the
same entity as the transfer agent) for the Common Stock.
(q) For a period of five (5) years from the date hereof, to use its
best efforts to maintain the PORTAL (or after the Shelf Registration Statement,
New York Stock Exchange listing) listing
-15-
of the Debentures, to the extent outstanding, and the New York Stock Exchange
listing of the Common Stock.
(r) For a period of 120 days from the date of the Offering Memorandum,
not to offer, sell, contract to sell or otherwise dispose of any securities of
the Company (other than the Securities or pursuant to employee stock option
plans or pursuant to options, warrants or rights outstanding on the date of this
Agreement), without your prior written consent.
(s) During a period of five years from the date hereof, to furnish to
you copies of all reports or other communications (financial or other) furnished
to shareholders, and deliver to you (i) as soon as they are available, copies of
any reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the business
and financial condition of the Company as you may from time to time reasonably
request.
(t) To apply the net proceeds from the sale of the
Securities for the purposes set forth in the Offering Memorandum.
6. Payment of Expenses.
The Company covenants and agrees with the Initial Purchasers that the
Company will pay or cause to be paid all of the following expenses and fees
incident to the performance of the obligations of the Company under this
Agreement, the Indenture and the Registration Rights Agreement including: (i)
the fees, disbursements and expenses of the Company's counsel and accountants
and all other expenses in connection with the preparation and printing of any
Preliminary Offering Memorandum and the Offering Memorandum and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Initial Purchasers; (ii) the cost of reproducing this Agreement, the Indenture,
the Registration Rights Agreement, the Blue Sky Survey and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(j)
hereof, including the fees and disbursements of counsel for the Initial
Purchasers in connection with such qualification and in connection with the Blue
Sky Survey; (iv) the cost of printing, engraving, issuance and delivery of the
Debentures; (v) the costs or expenses of any transfer agent or registrar; (vi)
fees and expenses of the Trustee, including the Trustee's counsel, in connection
with the Indenture and the Debentures; (vii) the fees payable to the New York
Stock Exchange incurred in connection with the listing of the Debentures and the
Underlying Stock for trading in the PORTAL Market and the New York Stock
Exchange, respectively; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that except as provided
in Section 8 and Section 11 hereof, the Initial Purchasers will pay all their
own costs and expenses, including the fees of their counsel and any advertising
expenses connected with any offers they may make.
-16-
7. Conditions to Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers hereunder, as to the
Securities to be delivered at each Delivery Date, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of such Delivery Date, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Initial Purchasers shall not have advised the Company that the
Offering Memorandum, or any supplement or amendment thereto, contains an untrue
statement of fact which is material, or omits to state a fact which is material
and is required to be stated therein or is necessary to make the statements, in
light of the circumstances under which they were made, not misleading. No order
suspending the sale of the Securities in any jurisdiction shall have been issued
on the Delivery Date and no proceeding for that purpose shall have been
initiated or threatened by the Commission.
(b) Hunton & Xxxxxxxx, counsel for the Initial Purchasers, shall have
furnished to you such opinion or opinions, dated such Delivery Date, with
respect to the incorporation of the Company, the validity of the Debentures
being issued at such Delivery Date and the Underlying Stock, the Offering
Memorandum, and other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(c) Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P., counsel for the Company,
shall have furnished to you their written opinion, dated such Delivery Date, in
form reasonably satisfactory to you, to the effect that:
(i) The Company and the Material Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with
corporate power and authority to own or lease their respective
properties and conduct their respective businesses as described in the
Offering Memorandum.
(ii) The Company and each of the Material Subsidiaries have
been duly qualified as foreign corporations for the transaction of
business and are in good standing under the laws of every other
jurisdiction in which they own or lease properties, or conduct any
business, so as to require such qualification, except where the failure
to so qualify will not result in a material adverse effect on the
Company or the Company and the Subsidiaries taken as a whole.
(iii) The Company has an authorized capitalization as set
forth in the Offering Memorandum, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and conform to the description
of the capital stock contained in the Offering Memorandum. Except as
described in the Offering Memorandum there are no preemptive or other
similar rights to subscribe for
-17-
or to purchase any securities of the Company. To such counsel's
knowledge, except as described in the Offering Memorandum, there are no
warrants or options to purchase any securities of the Company.
(iv) All of the issued shares of capital stock of the Material
Subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable. Except as otherwise set forth in the
Offering Memorandum, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly-owned subsidiaries free and clear, to such counsel's knowledge,
of any security interests, claims, liens or encumbrances.
(v) The Indenture and the Registration Rights Agreement each
conform to the description thereof contained in the Offering
Memorandum. At the Delivery Date, the Indenture conforms in all
material respects to the requirements of the Trust Indenture Act and
the Rules and Regulations applicable to an indenture which is qualified
thereunder. The Debentures have been duly authorized and, when validly
authenticated, issued, delivered and paid for in the manner
contemplated by the Indenture, will be duly authorized, validly issued
and outstanding obligations of the Company entitled to the benefits of
the Indenture. The shares of Common Stock issuable upon conversion of
the Debentures will, upon such issuance in accordance with the terms
thereof, be duly authorized, validly issued, fully paid and
non-assessable, and the Company has duly authorized and reserved for
issuance upon conversion of the Debentures the shares of Common Stock
issuable upon such conversion. The Debentures and the Underlying Stock
are not and will not be subject to any preemptive or other similar
rights of any securityholder of the Company or any of the Subsidiaries.
All corporate action required to be taken for the authorization, issue
and sale of the Debentures and the Underlying Stock has been duly and
validly taken; and the form of certificates evidencing the Debentures
and the Underlying Stock complies with all formal requirements of
Delaware law.
(vi) To such counsel's knowledge, there is no legal or
governmental proceeding pending or threatened to which the Company or
any of the Subsidiaries is a party or of which any property of the
Company or any of the Subsidiaries is the subject, other than as set
forth or contemplated in the Offering Memorandum that would be required
to be described in the Offering Memorandum, if the Offering Memorandum
were a prospectus included in a registration statement on Form S-3
under the Securities Act, and is not so described.
(vii) The Company has full corporate right, power and
authority to authorize, issue, deliver and sell the Debentures and the
Underlying Stock upon conversion of the Debentures, to enter into this
Agreement, the Indenture and the Registration Rights Agreement and to
consummate the transactions provided for in such agreements. This
Agreement has been duly and properly authorized, executed and delivered
by the Company. When the Company has duly executed and delivered the
Registration Rights Agreement and the Indenture (assuming the due
authorization, execution and delivery thereof by the other parties
thereto), each such agreement will constitute a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to
-18-
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws affecting the rights and remedies of
creditors generally and to the general principles of equity, regardless
of whether the application of such principles is considered in a
proceeding in equity or at law. In addition, rights to indemnification
and contribution contained in the Registration Rights Agreement may be
limited by federal and state securities laws or public policy relating
thereto. None of the Company's: (i) issue and sale of the Debentures
and the Underlying Stock upon the conversion of the Debentures; (ii)
the execution or delivery of this Agreement, the Indenture and the
Registration Rights Agreement; (iii) its performance hereunder and
thereunder, or consummation of the transactions contemplated herein and
therein will result in a breach or violation of any terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries is bound or to which any of the property or
assets of the Company or any of the Subsidiaries is subject and which
is, in any case, identified on the Certificate of the Chief Financial
Officer of the Company attached thereto, nor will such action result in
any violation of the provisions of the Charter or Bylaws of the Company
or the articles of incorporation or the bylaws of any of the
Subsidiaries or of any statute, order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their properties.
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties is required for the issue and
sale of the Debentures and the Underlying Stock by the Company or the
consummation by the Company of the other transactions contemplated by
this Agreement, the Indenture, or the Registration Rights Agreement
except such as have been obtained under the Securities Act and such as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Initial
Purchasers.
(ix) If the Offering Memorandum were a prospectus included in
a registration statement on Form S-3 under the Securities Act, the
Offering Memorandum and any further amendments and supplements thereto
made by the Company prior to such Delivery Date (other than the
financial statements and related schedules and data, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations thereunder; such counsel has no reason to believe that, as
of such Delivery Date, the Offering Memorandum (other than the
financial statements and related schedules and data as to which such
counsel need express no opinion) (or, as of its date, any further
amendment or supplement thereto made by the Company prior to such
Delivery Date) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and such counsel does not
know of any contracts or other documents of a character required to be
described in the Offering Memorandum, if the Offering Memorandum were a
prospectus included in a registration statement on Form S-3 under the
Securities Act, which are not described as required.
-19-
(x) The documents incorporated by reference in the Offering
Memorandum (other than the financial statements and the related
schedules therein, as to which such counsel need express no opinion),
when they were filed with the Commission, complied on their face as to
form in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
(xi) The portions of the Offering Memorandum (other than the
financial statements and related schedules and data as to which such
counsel need express no opinion) that purport to provide summaries of
material statutes, legal and governmental proceedings and contracts are
fair summaries of such statutes, proceedings and contracts.
Such opinion may be furnished subject to such stated assumptions,
limitations and qualifications as shall be acceptable to Hunton & Xxxxxxxx,
counsel for the Initial Purchasers.
(d) At 10:00 a.m., Richmond, Virginia, time, on the date of this
Agreement and also at each Delivery Date, Deloitte & Touche LLP shall have
furnished to you a letter or letters, dated the respective date of delivery
thereof, in form and substance reasonably satisfactory to you, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information relating to the Company and its Subsidiaries
contained in the Offering Memorandum.
(e) (i) Neither the Company nor any of the Material Subsidiaries, nor,
to the Company's knowledge, NWS shall have sustained, since the date of the
latest audited financial statements included in the Offering Memorandum, any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum, and (ii) since the respective dates as
of which information is given in the Offering Memorandum there shall not have
been any change in the outstanding capital stock or long-term debt of the
Company or any of the Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company or any of
the Subsidiaries otherwise than as set forth or contemplated in the Offering
Memorandum, the effect of which, in any such case described in clause (i) or
(ii) is in your reasonable judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
Securities being delivered at such Delivery Date on the terms and in the manner
contemplated by the Offering Memorandum.
(f) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading of any of the
securities of the Company on the New York Stock Exchange; (ii) any United States
federal or state statute, regulation, rule or order of any court, legislative
body, agency or other governmental authority shall have been enacted, published,
decreed or promulgated or any proceeding or investigation shall have been
commenced which, in your reasonable judgment, materially and adversely affects
the business or operations of the Company; (iii) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange;
(iv) a general moratorium on commercial banking activities in New York or North
Carolina declared by either federal or New York or North Carolina authorities;
(v) the outbreak or
-20-
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if any such event specified in
this clause (v) would have such a materially adverse effect, in your reasonable
judgment, as to make it impracticable or inadvisable to proceed with the
offering or the delivery of the Securities being delivered at such Delivery Date
on the terms and in the manner contemplated in the Offering Memorandum; or (vi)
such a material adverse change in general economic, political, financial or
international conditions affecting financial markets in the United States having
a material adverse impact on trading prices of securities in general, as, in
your reasonable judgment, makes it inadvisable to proceed with the payment for
and delivery of the Securities.
(g) The Company shall have furnished to you copies of agreements
between the Company and the directors and executive officers and certain
stockholders of the Company, in form and content reasonably satisfactory to you,
pursuant to which such persons agree not to offer, sell, or contract to sell, or
otherwise dispose of, any shares of Common Stock beneficially owned by them or
any securities convertible into, or exchangeable for, Common Stock, on or before
the 120th day after the date of this Agreement without your prior written
consent.
(h) The Company shall have furnished or caused to be furnished to you
at such Delivery Date certificates of officers of the Company reasonably
satisfactory to you as to the accuracy of the respective representations and
warranties of the Company herein at and as of such Delivery Date, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Delivery Date, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as you may reasonably
request.
(i) On each Delivery Date there shall have been duly tendered to the
Initial Purchasers the appropriate principal amount of Debentures.
(j) The Securities shall have been approved by the
National Association of Securities Dealers, Inc. for trading in
the PORTAL market.
(k) The Company and the Initial Purchasers shall have
executed and delivered the Registration Rights Agreement on the
date of this Agreement.
(l) The Indenture shall have been duly executed and delivered by the
Company and the Trustee, and the Debentures shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
(m) If any event shall have occurred that requires the Company under
Section 5(c) hereof to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the Initial
Purchasers shall have been given a reasonable opportunity to comment thereon,
and copies thereof delivered to the Initial Purchasers.
(n) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of any
rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by
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the Commission which in the judgment of the Initial Purchasers would materially
impair the ability of the Initial Purchasers to purchase, hold or effect resales
of the Debentures as contemplated hereby.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Initial Purchaser
against any losses, claims, damages or liabilities, joint or several, to which
such Initial Purchaser may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum, the Offering Memorandum, any document incorporated by reference
therein, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will promptly reimburse each Initial Purchaser for any legal or other
expenses reasonably incurred by such Initial Purchaser in connection with
investigating, preparing to defend or defending, or appearing as a third-party
witness in connection with, any such action or claim; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Offering Memorandum, Offering Memorandum, any document
incorporated by reference therein, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Initial Purchasers through you expressly for use therein;
provided, further, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Initial Purchaser
from whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Initial Purchaser, if a
copy of the Offering Memorandum (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Initial Purchaser to such person, at or prior to
the written confirmation of the sale of the Securities to such person, and if
the Offering Memorandum (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities.
(b) Each Initial Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
Preliminary Offering Memorandum or the Offering Memorandum or any such amendment
or supplement in reliance upon and in conformity with the Initial Purchaser's
Information; and each such Initial Purchaser will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating, preparing to defend or defending, or appearing as a third-party
witness in connection with, any such action or claim. The Company acknowledges
that the Initial Purchasers' Information
-22-
constitutes the only information furnished in writing by or on behalf of the
Initial Purchasers for inclusion in the Preliminary Offering Memorandum or the
Offering Memorandum, and you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have been advised by counsel
that representation of such indemnified party and the indemnifying party may be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to defend such action on behalf
of such indemnified party or parties. It is understood that the indemnifying
party shall, in connection with any such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys together with appropriate local
counsel at any time for all indemnified parties unless such firm of attorneys
shall have reasonably concluded that one or more indemnified parties has actual
differing interests with other indemnified parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable for any settlement entered
into without its written consent and will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). Notwithstanding the immediately preceding sentence and the first
sentence of this paragraph, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims,
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damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Initial Purchasers on the other from the offering of the
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Initial
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (after deducting the
total discount and commissions, but before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Initial
Purchasers, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Initial Purchasers on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities purchased by it and distributed by it were offered to the
Subsequent Purchasers exceeds the amount of damages which such Initial Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations under this
subsection (e) are several in proportion to their respective obligations and not
joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Initial Purchasers within the meaning of the Securities Act; and the obligations
of the Initial Purchaser under this Section 8 shall be in addition to any
liability which the Initial Purchasers may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the meaning of the
Securities Act.
-24-
(f) The Initial Purchasers acknowledge that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 7 hereof, counsel to the Company and counsel to the Initial Purchasers,
will rely upon the accuracy and truth of the foregoing representations and the
Initial Purchasers hereby consent to such reliance.
9. Substitution of Initial Purchasers.
(a) If any Initial Purchaser shall default in its obligation to
purchase the Securities that it has agreed to purchase hereunder at a Delivery
Date, you may in your discretion arrange for you or another party or other
parties to purchase such Securities on the terms contained herein. If within 36
hours after such default by any Initial Purchaser you do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further
period of 36 hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Securities, or the Company notifies
you that they have so arranged for the purchase of such Securities, you or the
Company shall have the right to postpone such Delivery Date for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Preliminary Offering Memorandum or the Offering Memorandum, or
in any other documents or arrangements. The term "Initial Purchaser" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by you and
the Company as provided in subsection (a) above, the aggregate number of such
Securities that remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Securities to be purchased at such Delivery Date,
then the Company shall have the right to require each non-defaulting Initial
Purchaser to purchase the number of Securities that such Initial Purchaser
agreed to purchase hereunder at such Delivery Date and, in addition, to require
each non-defaulting Initial Purchaser to purchase its pro rata share (based on
the number of Securities that such Initial Purchaser agreed to purchase
hereunder at such Delivery Date) of the share of such defaulting Initial
Purchaser or Initial Purchasers for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Initial Purchaser from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by you and
the Company as provided in subsection (a) above, the aggregate number of such
Securities that remains unpurchased exceeds one-eleventh of the aggregate number
of all the Securities to be purchased at such Delivery Date, or if the Company
shall not exercise the right described in subsection (b) above to require non-
defaulting Initial Purchaser to purchase Securities of a defaulting Initial
Purchaser or Initial Purchasers, then this Agreement (or, with respect to the
Second Delivery Date, the obligation of the Initial Purchasers to purchase and
of the Company to sell the Optional Securities) shall thereupon terminate,
without liability on the part of any non-defaulting Initial Purchasers or the
Company, except for the expenses to be borne by the Company and the Initial
Purchasers as provided in Section 6 hereof and the
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indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Initial Purchaser from liability for its default.
10. Representations and Indemnities to Survive.
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Initial Purchasers, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation (or any
statement as to the results thereof) made by or on behalf of the Initial
Purchasers or any controlling person of any Initial Purchaser, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. Termination and Payment of Expenses.
If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not be under any liability to any Initial Purchaser except as
provided in Section 6 and Section 8 hereof; but if for any other reason any
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Initial Purchasers through you for all
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Initial Purchasers in making preparations for the purchase, sale
and delivery of the Securities not so delivered, but the Company shall not then
be under further liability to any Initial Purchaser except as provided in
Section 6 and Section 8 hereof.
12. Notices.
In all dealings hereunder, you shall act on behalf of each of the
Initial Purchasers, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Initial
Purchaser made or given by you.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the Initial
Purchasers shall be sufficient in all respects if delivered or sent by reliable
courier, first-class mail, telex or facsimile transmission to Wheat, First
Securities, Inc., at Riverfront Plaza, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Finance Department; if to the Company shall be
sufficient in all respects if delivered or sent by reliable courier, first-class
mail, telex, or facsimile transmission to the address of the Company set forth
in the Offering Memorandum, Attention: O. Xxxxxx Xxxxx, with a copy (which shall
not constitute notice) to Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.; provided,
however, that any notice to any Initial Purchaser pursuant to Section 8 hereof
shall be delivered or sent by reliable courier, first-class mail, telex or
facsimile transmission to such Initial Purchaser at its address set forth in
Exhibit C, which address will be supplied to the Company by you upon request.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
13. Action by Initial Purchasers.
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Any action required or permitted to be taken by the Initial Purchasers
under this Agreement may be taken by them jointly or by Wheat, First Securities,
Inc. individually.
14. Successors.
This Agreement shall be binding upon, and inure solely to the benefit
of, the Initial Purchasers and the Company and, to the extent provided in
Sections 3 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Initial Purchasers, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Initial Purchaser shall be deemed a
successor or assign by reason merely of such purchase.
15. Time of the Essence.
Time shall be of the essence in this Agreement.
16. Business Day.
As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
17. Applicable Law.
This Agreement shall be construed in accordance with the laws of the
State of New York without regard to the conflicts of law provisions thereof.
18. Captions.
The captions included in this Agreement are included solely for
convenience of reference and shall not be deemed to be a part of this Agreement.
19. Counterparts.
This Agreement may be executed by any one or more of the parties in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
-27-
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
among each of the Initial Purchasers and the Company.
Very truly yours,
SPEEDWAY MOTORSPORTS, INC.
By: _________________________________
Name:
Title:
Accepted as of the date hereof at Richmond, Virginia:
WHEAT, FIRST SECURITIES, INC.
XXXXXXXXXX SECURITIES
X.X. XXXXXXXX & CO.
The Initial Purchasers
WHEAT, FIRST SECURITIES, INC.
By: ________________________
Name:
Title:
XXXXXXXXXX SECURITIES
By: ________________________
Name:
Title:
X.X. XXXXXXXX & CO.
By: ________________________
Name:
Title:
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SCHEDULE I
Principal Amount of
Optional Securities
Principal Amount of to be Purchased
Name of Firm Securities if Maximum
Initial Purchaser to be Purchased Option Exercised
Wheat, First Securities, Inc.................................. 31,500,000 3,150,000
Xxxxxxxxxx Securities......................................... 21,000,000 2,100,000
X.X. Xxxxxxxx & Co............................................ 17,500,000 1,750,000
----------- ----------
Total...................................................... $70,000,000 $7,000,000
========== =========
SCHEDULE II
SPEEDWAY MOTORSPORTS, INC.
(a Delaware corporation)
Convertible Subordinated Notes due 2003
1. The price of the Securities to be resold to Subsequent Purchasers
shall be 100% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 97.5% of the principal amount thereof.
3. The interest rate on the Securities shall be 5 3/4% per annum.
4. The Securities shall be convertible into shares of voting common
stock, par value $.01 per share, of the Company at an initial conversion price
of $31.11 per share.
5. The redemption price for Securities redeemed at the option of the
Company (expressed as percentages of principal amount), if redeemed during the
12-month period beginning on September 30 of the years indicated, shall be:
Year Percentage
2000........................................ 102.46%
2001........................................ 101.64%
2002........................................ 100.82%
The amount payable upon redemption of Securities shall include the
redemption price shown above, together with accrued and unpaid interest to the
date fixed for redemption.
EXHIBIT A
LEGEND
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON THE HOLDER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (C), (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION.
EXHIBIT B
SUBSIDIARIES
Atlanta Motor Speedway, Inc., a Georgia corporation
Bristol Motor Speedway, Inc., a Tennessee corporation
Charlotte Motor Speedway, Inc., a North Carolina corporation
Oil-Chem Research Corp., an Illinois corporation
Tecni Flyte Corporation, an Illinois corporation
Texas Motor Speedway, Inc., a Texas corporation
Texas International Raceway, Inc., a Texas corporation
600 Racing Inc., a North Carolina corporation
Speedway Funding Corp., a Delaware corporation
The Speedway Club, Inc., a North Carolina corporation
EXHIBIT C
Wheat, First Securities, Inc.
Riverfront Plaza-West Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxxxxx Securities
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
X.X. Xxxxxxxx & Co.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
