CONFORMED COPY
VOTING AND PROXY AGREEMENT, dated as of May 10, 1999 (this
"Agreement"), by and among Penske Motorsports, Inc., a corporation organized
under the laws of the State of Delaware (the "Company"), PSH Corp., a
corporation organized under the laws of the State of Delaware ("PSH"), and the
persons and entities listed on Schedule A hereto (collectively, the "Parent
Stockholders").
WHEREAS, International Speedway Corporation, a corporation organized
under the laws of the State of Florida ("Parent"), and 88 Corp., a corporation
organized under the laws of the State of Delaware ("Merger Sub"), entered into
an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"; capitalized terms used but not otherwise defined in this Agreement
shall have the meanings assigned to such terms in the Merger Agreement), with
the Company, that provides, upon the terms and subject to the conditions set
forth therein, for the merger of the Company with and into Merger Sub (the
"Merger");
WHEREAS, Parent, Penske Performance, Inc., a corporation organized
under the laws of the State of Delaware ("Performance"), PSH and Penske
Corporation, a corporation organized under the laws of the State of Delaware,
entered into an Agreement and Plan of Merger (the "PSH Merger Agreement") which
provides, upon the terms and subject to the conditions set forth therein, for
the merger of PSH with and into Parent (the "PSH Merger");
WHEREAS, as of the date hereof, each Parent Stockholder is the
beneficial owner of the number of shares of capital stock of Parent set forth
after the name of such Parent Stockholder on Schedule A hereto (the "Parent
Shares");
WHEREAS, as a condition to the willingness of the Company to enter into
the Merger Agreement, the Company has required that the Parent Stockholders
agree, and in order to induce the Company to enter into the Merger Agreement,
the Parent Stockholders have agreed, to enter into this Agreement; and
WHEREAS, as a condition to the willingness of PSH and Performance to
enter into the PSH Merger Agreement, each of PSH and Performance have required
that the Parent Stockholders agree, and in order to induce PSH and Performance
to enter into the PSH Merger Agreement, the Parent Stockholders have agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENT AND PROXY
SECTION 1.01. Voting Agreement. Each Parent Stockholder hereby agrees
that, from and after the date hereof and until this Agreement shall have been
terminated in accordance with Section 5.01 hereof, at any meeting of the
stockholders of Parent, however called, and in any action by consent of the
stockholders of Parent, each Parent Stockholder will vote (or cause to be voted)
the Parent Shares owned by it in favor of (i) the approval of the Parent Stock
Issuance as set forth in Section 6.01(a) of the Merger Agreement, (ii) the
approval of the issuance of Parent Common Stock contemplated by Section 1.06(a)
of the PSH Merger Agreement, and (iii) the amendment of Parent's Certificate of
Incorporation to increase the maximum size of the Board of Directors of Parent
to 18 members. Each Parent Stockholder shall not enter into any agreement or
understanding with any person or entity to vote the Parent Shares owned by it or
give instructions in any manner inconsistent with this Section 1.01. Each Parent
Stockholder acknowledges receipt and review of a copy of the Merger Agreement
and the PSH Merger Agreement.
SECTION 1.02. Irrevocable Proxy. If, and only if, a Parent Stockholder
fails to comply with the provisions of Section 1.01 (as determined by the
Company or PSH in their sole discretion), such Parent Stockholder hereby agrees
that such failure shall result, without any further action by it, in the
irrevocable appointment of the Company or PSH, and each of its officers, as such
Parent Stockholder's attorney and proxy with full power of substitution, to vote
and otherwise act (by written consent or otherwise) with respect to the Parent
Shares owned by such Parent Stockholder at any meeting of stockholders of Parent
(whether annual or special and whether or not an adjourned or postponed meeting)
or consent in lieu of any such meeting or otherwise, on the matters and in the
manner specified in Section 1.01. THIS PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A PARENT
STOCKHOLDER MAY TRANSFER ANY OF THE PARENT SHARES. Each Parent Stockholder
hereby revokes all other proxies and powers of attorney with respect to the
Parent Shares that may have heretofore been appointed or granted, and no
subsequent proxy or power of attorney shall be given or written consent executed
(and if given or executed, shall not be effective) by any Parent Stockholder
with respect thereto. All authority herein conferred or agreed to be conferred
shall survive the termination of the irrevocable proxy, and any obligation of a
Parent Stockholder under this Agreement shall be binding upon the heirs,
personal representatives, successors and assigns of such Parent Stockholder.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE PARENT STOCKHOLDERS
Each Parent Stockholder hereby severally represents and warrants to the
Company and PSH as follows:
SECTION 2.01. Authority Relative to This Agreement. Each Parent
Stockholder is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each Parent Stockholder
has all necessary power and authority to execute and deliver this Agreement and
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by each Parent
Stockholder and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary entity action. This Agreement
has been duly and validly executed and delivered by each Parent Stockholder and,
assuming the due authorization, execution and delivery by the Company and PSH,
constitutes a legal, valid and binding obligation of such Parent Stockholder,
enforceable against such Parent Stockholder in accordance with its terms.
SECTION 2.02. No Conflict. The execution and delivery of this Agreement
by each Parent Stockholder does not, and the performance of this Agreement by
each Parent Stockholder will not, (a) conflict with or violate the
organizational documents, if any, of such Parent Stockholder, (b) conflict with
or violate any Law applicable to such Parent Stockholder or by which the assets
or properties owned by such Parent Stockholder are bound or affected, or (c)
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
right of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien, charge or other encumbrance on any asset or property
owned by such Parent Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Parent Stockholder is a party or by which
any of its assets or properties is bound or affected.
SECTION 2.03. The Parent Shares. Each Parent Stockholder is the
beneficial owner of the number of Parent Shares set forth after the name of such
Parent Stockholder on Schedule A hereto free and clear of all Liens. The Parent
Shares are the only shares of common stock owned by each of the Parent
Stockholders. There are no voting trusts, stockholder agreements, proxies or
other agreements or understandings in effect with respect to the voting or
transfer of any of the shares of capital stock of Parent owned by each Parent
Stockholder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND PSH
The Company and PSH hereby represent and warrant to each Parent
Stockholder as follows:
SECTION 3.01. Authority Relative to This Agreement. Each of the Company
and PSH is a corporation duly incorporated, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation. Each of
the Company and PSH has all necessary corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by each of the Company and PSH and the consummation by each of
the Company and PSH of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action. This Agreement has been
duly and validly executed and delivered by each of the Company and PSH and,
assuming the due authorization, execution and delivery by each Parent
Stockholder, constitutes a legal, valid and binding obligation of the Company
and PSH, enforceable against each of them in accordance with its terms.
SECTION 3.02. No Conflict. The execution and delivery of this Agreement
by the Company or PSH does not, and the performance of this Agreement by the
Company or PSH will not, (a) conflict with or violate the respective Certificate
of Incorporation or By-laws of the Company or PSH, (b) conflict with or violate
any Law applicable to the Company or PSH or by which the assets or properties
owned by the Company or PSH are bound or affected, or (c) result in any breach
of or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien,
charge or other encumbrance on any asset or property owned by the Company or PSH
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which either the
Company or PSH is a party or by which any of its assets or properties is bound
or affected, except for any such conflicts, violations, breaches, defaults or
other occurrences that would not prejudice or impair the performance of the
obligations of either party under this Agreement.
ARTICLE IV
COVENANTS OF THE PARENT STOCKHOLDERS
SECTION 4.01. Encumbrance of Shares. Each Parent Stockholder agrees
that from the date of this Agreement until the termination of this Agreement
pursuant to Section 5.01, it shall not (i) grant a proxy or power of attorney or
otherwise limit any of such Parent
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Stockholder's voting rights with respect to the Parent Shares (or agree or
consent to, or offer to do, any of the foregoing), (ii) take any action that
would make any representation or warranty of any Parent Stockholder herein
untrue or incorrect in any material respect or have the effect of preventing or
disabling any Parent Stockholder from performing its obligations or (iii)
directly or indirectly, initiate, solicit or encourage any person or entity to
take actions that could reasonably be expected to lead to the occurrence of any
of the foregoing.
SECTION 4.02. Regulatory and Other Authorizations. Each Parent
Stockholder shall cooperate with Parent, the Company and PSH in the making of
all necessary filings, and thereafter any other required submissions, with
respect to the Merger Agreement, the Merger, the PSH Merger Agreement and the
PSH Merger and the other transactions contemplated thereby required under (A)
the HSR Act and (B) any other applicable Law.
SECTION 4.03. Parent Board of Directors Representation. Each Parent
Stockholder agrees that at any meeting of the stockholders of Parent, however
called, and in any action by consent of the stockholders of Parent, each Parent
Stockholder will vote (or cause to be voted) the Parent Shares owned by it in
favor of the nominee or nominees for the Board of Directors of Parent,
designated by Performance pursuant to Section 4.05 of the PSH Merger Agreement,
subject to the limitations set forth therein.
SECTION 4.04. Assignment. If any Parent Stockholder sells or otherwise
transfers the Parent Shares held by any of them to any of their affiliates, then
it shall be a condition precedent to such sale or transfer that the transferee
expressly assumes the obligations of such Parent Stockholder hereunder. For
purposes of this Section 4.04, "affiliates" includes members of the "France
Family Group" as defined in the proxy statement for the annual meeting of the
stockholders of the Company to be held on May 11, 1999, and any partnership,
trust, corporation, limited liability company or other entity which is
controlled by any member or members of the France Family Group.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Termination. With respect to those obligations of the
Parent Stockholders relating to the Merger and the consummation of the
transactions contemplated thereby, this Agreement shall terminate with respect
to such obligations upon the effective time of the Merger. With respect to those
obligations of the Parent Stockholders relating to the PSH Merger (as defined in
the PSH Merger Agreement) and the consummation of the transactions contemplated
thereby, this Agreement shall terminate with respect to such obligations upon
the effective time of the PSH Merger. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement shall automatically terminate at the
time when Parent has no further obligations under Section 4.05 of the PSH Merger
Agreement.
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Upon the termination of this Agreement, no party shall have any rights or
obligations hereunder and this Agreement shall become null and void and have no
further effect. Nothing in this Section 5.01 shall relieve any party of
liability for any breach of this Agreement.
SECTION 5.02. Notices. All notices or other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by telecopy, facsimile, by registered
or certified mail (postage prepaid, return receipt requested) or by reputable
overnight courier to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 5.02):
if to the Parent Stockholders:
The name of such Parent Stockholders set forth on Schedule A hereto.
c/o International Speedway Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
if to the Company:
Penske Motorsports, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Penske
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with a copy to:
Morris, Nichols, Arsht & ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇▇ Sparks, III, Esq. and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
2290 First National Bldg.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
if to PSH:
c/o Penske Motorsports, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ -4001
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Penske
with a copy to:
c/o Penske Motorsports, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
SECTION 5.03. Amendment; Severability. This Agreement may not be
amended except by an instrument in writing signed by all the parties hereto. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of Law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated by
this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually
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acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
SECTION 5.04. Assignment; Benefit. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person or entity other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement; provided, however, that
Performance is specifically intended to benefit from and shall be entitled to
enforce the obligations of the Parent Stockholders that are set forth in Section
4.03.
SECTION 5.05. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 5.06. Governing Law; Forum; Waiver of Jury Trial. This
Agreement shall be governed by, and construed in accordance with, the Laws of
the State of New York applicable to contracts executed in and to be performed in
that state and without regard to any applicable conflicts of law. All actions
and proceedings arising out of or relating to this Agreement may be heard and
determined in any state or federal court of competent jurisdiction located in
the County of New York, State of New York. In connection therewith, each of the
parties to this Agreement irrevocably (i) consents to submit itself to the
personal jurisdiction of the state and federal courts of competent jurisdiction
located in the County of New York, State of New York in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement, (ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and (iii)
hereby consents to service of process pursuant to the notice provisions set
forth in Section 5.02.
(b) Each of the parties hereto irrevocably and unconditionally waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based in contract, tort or otherwise) arising out of or relating to this
Agreement or the actions of the parties hereto in the negotiation,
administration, performance and enforcement thereof.
SECTION 5.07. Counterparts; Entire Agreement; Further Assurances. This
Agreement may be executed and delivered (including by facsimile transmission) in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement. This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements
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and understandings among the parties with respect thereto. Each of the parties
will execute and deliver all such further documents and instruments and take all
such further action as may be necessary in order to consummate the transactions
contemplated hereby.
SECTION 5.08. Public Announcements. Except as may be required by
applicable Law or the rules of any securities exchange on which the shares of
any party are listed, no party to this Agreement shall make, or cause to be
made, any press release or public announcement in respect of this Agreement or
the transactions contemplated hereby or otherwise communicate with any news
media without the prior written consent of the other party, and the parties
shall cooperate as to the timing and contents of any such press release or
public announcement.
[The Remainder of This Page Is Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
PENSKE MOTORSPORTS, INC.
By /s/ ▇▇▇▇▇ ▇. Penske
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Name: ▇▇▇▇▇ ▇. Penske
Title: Chairman
PSH CORP.
By /s/ ▇▇▇▇▇ ▇. Penske
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Name: ▇▇▇▇▇ ▇. Penske
Title: Chairman
WESTERN OPPORTUNITY
LIMITED PARTNERSHIP
By its General Partner
SIERRA CENTRAL CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. France
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Name: ▇▇▇▇▇▇▇ ▇. France
Title: President
WHITE RIVER INVESTMENT
LIMITED PARTNERSHIP
By its General Partner
CEN ROCK CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. France
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Name: ▇▇▇▇▇▇▇ ▇. France
Title: President
POLK CITY LIMITED PARTNERSHIP
By its General Partner
▇▇▇▇▇ COUNTY CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. France
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Name: ▇▇▇▇▇▇▇ ▇. France
Title: President
▇▇▇▇ INVESTMENT LIMITED
PARTNERSHIP
By its General Partner
QUATERNARY INVESTMENT COMPANY
By /s/ ▇▇▇▇▇ ▇. France
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Name: ▇▇▇▇▇ ▇. France
Title: President
SCHEDULE A
PARENT STOCKHOLDER NUMBER OF PARENT SHARES
WESTERN OPPORTUNITY
LIMITED PARTNERSHIP 9,115,125
WHITE RIVER INVESTMENT
LIMITED PARTNERSHIP 1,880,502
POLK CITY LIMITED PARTNERSHIP 4,344,874
▇▇▇▇ INVESTMENT LIMITED PARTNERSHIP 4,052,369