As Filed Electronically with the Securities and Exchange Commission on
December 12, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 25049
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SPEEDWAY MOTORSPORTS, INC..
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 51-0363307
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
U.S. HIGHWAY 29 NORTH, P.O. BOX 600
CONCORD, NORTH CAROLINA 28026-0600
(Address of Principal Executive Offices) (Zip Code)
SPEEDWAY MOTORSPORTS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
MR. O. BRUTON SMITH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
SPEEDWAY MOTORSPORTS, INC.
U.S. HIGHWAY 29 NORTH
P.O. BOX 600
CONCORD, NORTH CAROLINA 28026-0600
(704) 455-3239
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
COPIES TO:
GARY C. IVEY, ESQ.
PARKER, POE, ADAMS & BERNSTEIN L.L.P.
2500 CHARLOTTE PLAZA
CHARLOTTE, NORTH CAROLINA 28244
TELEPHONE (704) 372-9000
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed
Securities Amount Offering Price Maximum Amount
to be to be Per Share Aggregate of
Registered Registered Offering Price Registration Fee
Common Stock,
par value $0.01 per 200,000 $20.0625(1) $4,012,500.00 $1,215.91
share
(1) Calculated on the basis of the average of the high and low prices
reported on the New York Stock Exchange on December 10, 1996, which
prices were $20.25 and $19.875, respectively.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 (plan information and registrant information) will be sent or given
to employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part
II hereof), taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act of 1933
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of Speedway Motorsports, Inc. (the
"Company") filed with the Securities and Exchange Commission are incorporated
herein by reference:
(i) the Company's Annual Report on Form 10-K for its fiscal year
ended December 31, 1995 (File No. 1-13582);
(ii) the Company's Quarterly Report on Form 10-Q for its fiscal
quarter ended March 8, 1996;
(iii) the Company's Quarterly Report on Form 10-Q for its fiscal
quarter ended June 30, 1996;
(Iv) the Company's Quarterly Report on Form 10-Q for its fiscal
quarter ended September 30, 1996;
(vi) the Company's Current Reports on Form 8-K, dated the following
dates: February 5, 1996, September 9, 1996, October 16, 1996
and December 3, 1996;
(vii) the Company's Amendment on Form 8-K/A, dated March 1, 1996, to
the Form 8-K filed on February 5, 1996; and
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(viii) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the SEC pursuant
to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or amended, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interests on Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Officers and Directors
The Registrant's Bylaws effectively provide that the
Registrant shall, to the full extent permitted by Section 145 of the General
Corporation Law of the State of Delaware, as amended from time to time ("Section
145"), indemnify all persons whom it may indemnify pursuant thereto. In
addition, the Registrant's Certificate of Incorporation eliminates personal
liability of its director to the full extent permitted by Section 102(b)(7) of
the General Corporation Law of the State of Delaware, as amended from time to
time ("Section 102(b)(7)").
Section 145 permits a corporation to indemnify its directors
and officers against expenses (including attorney's fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by them in
connection with any actions, suit or proceeding brought by a third party if such
directors or officers acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reason to believe
their conduct was unlawful. In a derivative action, indemnification may be made
only for expenses actually and reasonably incurred by directors and officers in
connection with the defense or settlement of an action or suit and only with
respect to a matter as to which they shall have acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interest of
the corporation, except that no indemnification shall be made if such person
shall have been adjudged liable to
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the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the defendant
officers or directors are reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Section 102(b) (7) provides that a corporation may eliminate
or limit the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for willful
or negligent conduct in paying dividends or repurchasing stock out of other than
lawfully available funds or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
The Company maintains insurance against liabilities under the
Securities Act of 1933 for the benefit of its officers and directors.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
Exhibit
Number Description
4.1 Speedway Motorsports, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. regarding the
legality of the securities registered.
23.1 Consent of Deloitte & Touche L.L.P.
23.2 Consent of Parker, Poe, Adams & Bernstein L.L.P.
(included in Exhibit 5.1 to this Registration Statement).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to the
Registration Statement:
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(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions above, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
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Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
[Signatures begin on next page]
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Concord, State of North Carolina, on December
11, 1996.
SPEEDWAY MOTORSPORTS, INC.
BY: /s/ William R. Brooks
William R. Brooks, Vice President,
Treasurer, Chief Financial Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ O. Bruton Smith Chief Executive Officer December 11, 1996
O. Bruton Smith (principal executive officer)
and Chairman
/s/ H.A. Wheeler President, Chief Operating December 11, 1996
H.A. Wheeler Officer and Director
/s/ William R. Brooks Vice President, Treasurer, December 11, 1996
William R. Brooks Chief Financial Officer
(principal financial and
accounting officer) and
Director
/s/ Edwin R. Clark Director December 11, 1996
Edwin R. Clark
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 Speedway Motorsports, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. regarding
the legality of the securities registered.
23.1 Consent of Deloitte & Touche L.L.P.
23.2 Consent of Parker, Poe, Adams & Bernstein L.L.P.
(included in Exhibit 5.1 to this Registration Statement).
SPEEDWAY MOTORSPORTS, INC.
EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED
AS OF
JULY 1, 1996
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SPEEDWAY MOTORSPORTS, INC.
EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED
AS OF
JULY 1, 1996
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I PURPOSE; DEFINITIONS; CONSTRUCTION..............................................................1
1.1 Purpose of Plan.................................................................................1
1.2 Definitions.....................................................................................1
(a) "Account"..............................................................................1
(b) "Base Pay".............................................................................1
(c) "Board of Directors"...................................................................1
(d) "Business Day".........................................................................1
(e) "Cause"................................................................................1
(f) "Code".................................................................................2
(g) "Committee"............................................................................2
(h) "Company"..............................................................................2
(i) "Company Stock"........................................................................2
(j) "Contributions"........................................................................2
(k) "Effective Date".......................................................................2
(l) "Employee".............................................................................2
(m) "Employer".............................................................................2
(n) "Exercise Date"........................................................................2
(o) "Grant Date"...........................................................................2
(p) "Option"...............................................................................2
(q) "Participant"..........................................................................2
(r) "Plan".................................................................................2
1.3 Construction....................................................................................3
ARTICLE II ADMINISTRATION..................................................................................3
2.1 Appointment and Procedures of Committee.........................................................3
2.2 Authority of Committee..........................................................................3
ARTICLE III PARTICIPATION...................................................................................3
3.1 Eligibility to Participate......................................................................3
3.2 Restrictions on Participation...................................................................3
3.3 Leave of Absence................................................................................4
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ARTICLE IV CONTRIBUTIONS...................................................................................4
4.1 Payroll Deductions..............................................................................4
4.2 Direct Payment..................................................................................4
4.3 Leave of Absence................................................................................5
4.4 Contributions to Accounts.......................................................................5
4.5 Withdrawal of Contributions from Plan...........................................................5
4.6 Termination of Employment.......................................................................5
ARTICLE V OPTIONS.........................................................................................5
5.1 Company Stock Available for Options.............................................................5
5.2 Granting of Options.............................................................................5
5.3 Option Price....................................................................................6
5.4 Option Period...................................................................................6
5.5 Exercise of Options.............................................................................6
(a) Automatic Exercise.....................................................................6
(b) Nontransferability of Options..........................................................7
(c) Effect of Termination of Employment....................................................7
(i) Termination of Employment Related to Cause....................................7
(ii) Termination of Employment Due to Death........................................7
(iii) Other Termination of Employment...............................................7
(d) Leave of Absence.......................................................................8
(e) Delivery of Stock......................................................................8
(f) Acceleration of Exercisability of Options Upon Occurrence of
Certain Events.........................................................................8
(g) Registration, Listing and Qualification of Shares of Stock.............................8
ARTICLE VI MISCELLANEOUS...................................................................................9
6.1 Adjustments Upon Changes in Capitalization......................................................9
6.2 Approval of Shareholders........................................................................9
6.3 Amendment, Suspension and Termination...........................................................9
6.4 Intent to Comply With Code Section 423..........................................................9
6.5 Equal Rights and Privileges.....................................................................9
6.6 Use of Funds...................................................................................10
6.7 Withholding....................................................................................10
6.8 Effect of Plan.................................................................................10
6.9 No Employment Rights...........................................................................10
6.10 Governing Law..................................................................................10
6.11 Other Actions..................................................................................10
</TABLE>
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SPEEDWAY MOTORSPORTS, INC.
EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED
AS OF
JULY 1, 1996
ARTICLE I
PURPOSE; DEFINITIONS; CONSTRUCTION
1.1 Purpose of Plan. The purpose of the Plan, which shall be known as
the Speedway Motorsports, Inc. Employee Stock Purchase Plan (the "Plan"), is to
provide employees of Speedway Motorsports, Inc. (the "Company") and its
participating subsidiaries (which hereinafter shall be referred to collectively
with the Company as the "Employer") an opportunity to acquire a proprietary
interest in the Company through the purchase of the common stock, $.01 par
value, of the Company. This Plan is intended to qualify as an "employee stock
purchase plan" within the meaning of Section 423 of the Internal Revenue Code of
1986, as amended (the "Code").
1.2 Definitions. Throughout this Plan, the following terms shall
have the meanings indicated:
(a) "Account" shall mean a memorandum account maintained to
record each Participant's Contributions pending purchase of Company Stock.
(b) "Base Pay" shall mean the Participant's regular cash
compensation (excluding overtime pay, bonuses, shift premiums, commissions,
fringe benefits, other special payments and imputed income) determined without
reduction for Contributions made under this Plan or contributions to any Code
Section 401(k) or Section 125 Plan.
(c) "Board of Directors" shall mean the Board of
Directors of the Company.
(d) "Business Day" shall mean any day other than a
Saturday, Sunday or holiday.
(e) "Cause" shall mean any act, action or series of acts or
actions or any omission, omissions or series of omissions which, in the opinion
of the Committee, result in, or which have the effect of resulting in, (i) the
commission of a crime by the Participant involving moral turpitude, which crime
has a material adverse impact on the Employer, (ii) gross negligence or willful
misconduct which is continuous and results in material damage to the Employer,
or (iii) the continuous, willful failure of the person in question to follow the
reasonable directives of the Employer.
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(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended, any successor revenue laws of the United States, and the rules and
regulations promulgated thereunder.
(g) "Committee" shall mean the Compensation Committee of the
Board of Directors, or in the event that there is no Compensation Committee, the
Board of Directors.
(h) "Company" shall mean Speedway Motorsports, Inc., a company
organized and existing under the laws of the State of Delaware.
(i) "Company Stock" shall mean the common stock, $.01 par
value, of the Company.
(j) "Contributions" shall mean the after-tax payroll
deductions or other permissible contributions made by Participants to the Plan
pursuant to Article IV.
(k) "Effective Date" shall mean July 1, 1996 or as soon as
administratively practicable thereafter. The Plan's original effective date was
April 1, 1996.
(l) "Employee" shall mean any person who on or after the
Effective Date (i) is employed on a full-time or part-time basis by a
participating Employer, (ii) is regularly scheduled to work more than twenty
hours per week, and (iii) is customarily employed more than five months in any
calendar year. Independent contractors and outside directors shall not be
included in the definition of Employee for purposes of this Plan.
(m) "Employer" shall mean the Company and any of its present
or future subsidiaries (within the meaning of Section 424(f) of the Code) which
the Committee may designate from time to time as participating Employers under
this Plan.
(n) "Exercise Date" shall mean the last Business Day of March,
June, September and December on which the principal trading market for Company
Stock is open for trading, plus any other interim dates during the year which
the Committee designates as Exercise Dates.
(o) "Grant Date" shall mean January 1 of each year; provided
that, the Effective Date of the Plan also shall be a Grant Date.
(p) "Option" shall mean an option to purchase shares of
Company Stock granted by the Committee to a Participant pursuant to this Plan.
(q) "Participant" shall mean an Employee participating
in this Plan in accordance with Article III.
(r) "Plan" shall mean this Speedway Motorsports, Inc.
Employee Stock Purchase Plan, as amended from time to time.
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1.3 Construction. The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender, unless the context clearly
indicates to the contrary. The words "hereof," "herein," "hereunder" and other
similar compounds of the word "here" shall mean and refer to the entire Plan and
not to any particular provision or Section.
ARTICLE II
ADMINISTRATION
2.1 Appointment and Procedures of Committee. The Plan shall be
administered by the Compensation Committee of the Board of Directors. The
Committee shall be appointed from time to time by the Board of Directors and
shall consist of not fewer than two of its members. No member of the Board of
Directors who serves on the Committee shall be eligible to participate in the
Plan. The Committee shall hold its meetings at such times and places as it may
determine. A majority of its members shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its members. Any
decision or determination reduced to writing and signed by all members shall be
as effective as if it had been made by a majority vote at a meeting duly called
and held. The Committee may appoint a Secretary (who need not be a member of the
Committee).
2.2 Authority of Committee. The Committee, subject to the terms of the
Plan, shall have plenary authority in its discretion to interpret and construe
the Plan (including, without limitation, any of its terms which are uncertain,
doubtful or disputed); to decide all questions of Employee eligibility
hereunder; to determine the amount, manner and timing of all Options and
purchases of Company Stock hereunder; to establish, amend and rescind rules and
regulations pertaining to the administration of the Plan; and to make
determinations and interpretations and take such other administrative actions as
it deems necessary or advisable for the administration of this Plan. The express
grant in the Plan of any specific power to the Committee shall not be construed
as limiting any power or authority of the Committee. No member of the Committee
shall be liable for any act, determination or omission with respect to his
service on the Committee, if he acts in good faith and in a manner he reasonably
believes to be in or not opposed to the best interest of the Employer. All
expenses of administering this Plan shall be borne by the Employer.
ARTICLE III
PARTICIPATION
3.1 Eligibility to Participate. Subject to the restrictions of Section
3.2 below, an Employee shall be eligible to participate in this Plan as of the
first Grant Date coincident with or next following the first anniversary of his
date of employment with the Employer (provided that the Employee is still
employed on such Grant Date). For this purpose, years of employment prior to the
Effective Date will be considered.
3.2 Restrictions on Participation. Notwithstanding the foregoing
Section 3.1, no Employee shall be eligible to participate in the Plan if such
Employee owns or holds options to purchase (or upon participation in this Plan
would own or hold options to purchase) stock
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possessing an aggregate of 5% or more of the total combined voting power or
value of all classes of stock of the Company or any other Employer (as
determined in accordance with the rules of Code Section 424(d) relating to
attribution of stock ownership).
3.3 Leave of Absence. For purposes of becoming a participant in the
Plan, a person on a leave of absence shall be deemed to be an Employee for the
first ninety days of such leave of absence and such Employee's employment shall
be deemed to have terminated at the close of business on the ninetieth day of
such leave of absence unless such Employee shall have returned to regular
full-time or part-time employment prior to the close of business on such
ninetieth day. Termination by the Company of any Employee's leave of absence,
other than termination of such leave of absence on return to regular full-time
or part-time employment, shall terminate an Employee's employment for all
purposes of the Plan.
ARTICLE IV
CONTRIBUTIONS
4.1 Payroll Deductions. By written election, made and filed with the
Committee pursuant to the Committee's rules and procedures, a Participant may
elect to designate a whole percentage between one percent and ten percent (or
such higher or lower percentage as may be allowed by the Committee's rules and
procedures) of his Base Pay to be deferred by payroll deduction as a
Contribution to the Plan. Payroll deductions shall commence as soon as
administratively practicable following the filing of such written election with
the Committee. The Committee may develop in its discretion additional rules and
procedures regarding payroll deduction elections.
A Participant may change or revoke his payroll deduction amount by
filing, on such forms and in accordance with such rules and procedures as the
Committee may prescribe in its discretion, a revised written election with the
Committee. Such modification or revocation shall take effect as soon as
administratively practicable after the Committee's receipt of such revised
election. Notwithstanding the foregoing, a Participant may change his payroll
deduction election only once each calendar quarter, or as otherwise specifically
allowed by the Committee's rules and procedures. If payroll deductions are
discontinued, payroll deductions may not be resumed by the Participant until the
payroll period which begins on or after the following Exercise Date, or as
otherwise specifically allowed by the Committee's rules and procedures. Under no
circumstances may a Participant's payroll deduction election be made, modified
or revoked retroactively.
4.2 Direct Payment. In accordance with such rules and procedures as the
Committee may prescribe in its discretion, in lieu of payroll deductions
pursuant to Section 4.1, a Participant may elect to make Contributions by direct
cash payment (including by check, subject to the Committee's rules and
procedures) to the Plan rather than by payroll deduction. Such direct payments
must be received by the Plan at least ten Business Days prior to an Exercise
Date in order for such payments to be applied in the exercise of an Option
toward the purchase of Company Stock on such Exercise Date.
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4.3 Leave of Absence. If a Participant goes on a leave of absence, such
Participant shall have the right to elect to (a) withdraw from the Plan and
receive a distribution of the balance in his Account pursuant to Section 4.5,
(b) discontinue Contributions to the Plan but remain a Participant in the Plan,
or (c) remain a Participant in the Plan during such leave of absence,
authorizing deductions to be made from payments by the Company to the
Participant during such leave of absence or making direct cash payments to the
Plan pursuant to Section 4.2.
4.4 Contributions to Accounts. A memorandum Account shall be
established by the Committee for each Participant for the purpose of accounting
for Contributions. Contributions shall be credited to Accounts as soon as
administratively practicable following payroll withholding or receipt of other
permissible direct cash payment. Amounts credited to Accounts will not accrue
interest.
4.5 Withdrawal of Contributions from Plan. Prior to the end of a
calendar quarter, a Participant may elect to withdraw the Contributions credited
to his Account for that quarter by filing written notice thereof with the
Committee on such forms and in accordance with such procedures as the Committee
may prescribe. The Participant's Contributions shall be distributed to him as
soon as administratively practicable after the Committee's receipt of his notice
of withdrawal and, if applicable, no further payroll deductions shall be made
from his Base Pay.
4.6 Termination of Employment. Upon termination of a Participant's
employment for any reason, such Participant may no longer make Contributions to
the Plan or be granted Options under the Plan. A Participant's right to exercise
any unexpired Option he holds as of his termination of employment for any reason
unrelated to Cause may continue, if he so elects, until the next Exercise Date
following such termination of employment pursuant to Section 5.5(c)(ii) or
(iii), or he may permanently withdraw from the Plan in accordance with Section
4.5.
ARTICLE V
OPTIONS
5.1 Company Stock Available for Options. There shall be available for
Options under the Plan an aggregate maximum of 200,000 shares of Company Stock,
subject to any adjustments which may be made pursuant to Section 6.1 of the Plan
in connection with changes in capitalization of the Company. Shares of Company
Stock used for purposes of the Plan may be either authorized and unissued
shares, or previously issued shares held in the treasury of the Company, or
both. Shares of Company Stock covered by Options which have expired prior to
exercise shall be available for further Options granted hereunder.
5.2 Granting of Options. The Plan shall be implemented by annual
offerings of approximately twelve months duration (except for the initial
offering and except as otherwise provided in Section 5.4). On each Grant Date,
all eligible Employees shall be granted an Option to purchase shares of Company
Stock. Prior to each Grant Date, the Committee shall determine the number of
shares of Company Stock available for purchase under each Option to be granted
on such Grant Date; provided that, the same number of shares must be available
under each Option granted on such Grant Date. No Participant may be granted an
Option which permits his rights to purchase stock under this Plan and all other
employee stock purchase plans of the
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Company or Employer to accrue at a rate which exceeds $25,000 of the fair market
value of such stock (determined at the time such Option is granted) for each
calendar year in which such Option is outstanding at any time. Furthermore, no
Participant may be granted an Option in any calendar year which permits the
Participant to purchase more than 500 shares of Company Stock, subject to any
adjustments which are made pursuant to Section 6.1 (or such higher or lower
number as the Committee may establish with respect to all subsequently granted
Options for all Participants in the Plan, subject to the limitations of Code
Section 423).
5.3 Option Price. The purchase price at which shares of Company Stock
may be acquired pursuant to the exercise of all or any portion of an Option
granted under this Plan shall be ninety percent of the lesser of (i) the fair
market value of the Company Stock on the applicable Grant Date, and (ii) the
fair market value of the Company Stock on the applicable Exercise Date. For
purposes of this Section 5.3, the fair market value per share of Company Stock
shall be the closing price on the last Business Day prior to the date of
reference, or in the event that no sales take place on such date, the average of
the closing high bid and low asked prices, in either case on the principal
national securities exchange on which the Company Stock is listed or admitted to
trading, or if the Company Stock is not listed or admitted to trading on any
national securities exchange, the last sale price reported on the National
Market System of the National Association of Securities Dealers Automated
Quotation system ("NASDAQ") on such date, or the average of the closing high bid
and low asked prices of the Company Stock in the over-the-counter market
reported on NASDAQ on such date, as furnished to the Committee by any New York
Stock Exchange member selected from time to time by the Committee for such
purposes. If there is no bid or asked price reported on any such date, the
market value shall be determined by the Committee in accordance with the
regulations promulgated under Code Section 2031, or by any other appropriate
method selected by the Committee.
5.4 Option Period. Each Option granted to a Participant under the Plan
shall expire on the earliest of (a) the last Exercise Date of the calendar year
in which the Option was granted, (b) the Participant's voluntary withdrawal from
the Plan following termination of employment, and (c) the date of the
Participant's termination of employment related to Cause, or the Exercise Date
immediately following the Participant's termination of employment for any reason
unrelated to Cause. In no event will the duration of an Option period exceed
twenty-seven months (or such other applicable period permitted under Code
Section 423(b)(7)) from the date on which such Option is granted.
5.5 Exercise of Options.
(a) Automatic Exercise. Any Option granted to a Participant
shall be exercised automatically on each Exercise Date during the calendar year
of the Option's Grant Date in whole or in part such that the Participant's
accumulated Contributions as of such Exercise Date shall be applied to the
purchase of the maximum number of whole shares of Company Stock that his
Contributions will allow at the applicable Option price (determined in
accordance with Section 5.3), limited to the number of shares subject to such
Option. In the event that the number of shares of Company Stock that may be
purchased by all Participants in the Plan exceeds the number of shares then
available for issuance under the Plan, the Committee shall make a pro rata
allocation of the available shares in as uniform a manner as it determines to be
practicable and equitable. Any remaining Contributions in the Participant's
Account amounting to less than the
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Option price of a whole share of Company Stock shall be carried forward and
applied on the next Exercise Date; provided that, Contributions remaining after
the last Exercise Date of the calendar year may be distributed to the
Participant at his election.
(b) Nontransferability of Options. During a Participant's
lifetime, Options held by such Participant shall be exercisable only by that
Participant. No Option shall be transferable other than by will or the laws of
descent and distribution.
(c) Effect of Termination of Employment.
(i) Termination of Employment Related to Cause. Upon
termination of a Participant's employment related to Cause, the Participant's
participation in the Plan also shall terminate. Any unexpired Option he holds
will expire as of the date of his termination of employment. Remaining
contributions credited to his Account shall be distributed to the Participant as
soon as administratively practicable following termination of employment.
(ii) Termination of Employment Due to Death. In the
event of the death of the Participant while employed, or during the period
following his termination of employment for any reason unrelated to Cause but
prior to the next Exercise Date, the Participant's estate shall have the right
to elect by written notice to the Committee prior to the earlier of the
expiration of sixty days commencing with the date of the Participant's death and
the Exercise Date next following the date of the Participant's death:
(A) To withdraw all of the Contributions
credited to the Participant's Account under the Plan, or
(B) To exercise any unexercised Options held
by the Participant as of the date of his death for the purchase of Company Stock
on the Exercise Date next following the date of the Participant's death in
accordance with Section 5.5(a) but only to the extent such Options were
exercisable on the date of the Participant's death, with any remaining
Contributions credited to the Participant's Account being distributed to the
Participant's estate as soon as administratively practicable after such Exercise
Date.
In the event that no such written election is timely and properly received by
the Committee, all Contributions credited to the Participant's Account shall be
distributed to the Participant's estate. In no event shall any Option be
exercisable beyond the applicable exercise period specified in Section 5.4 of
the Plan.
(iii) Other Termination of Employment. Upon
termination of a Participant's employment for any reason unrelated to Cause or
death, the Participant may at his election:
(A) Withdraw from the Plan pursuant to
Section 4.5 and request the return of the remaining Contributions then credited
to his Account, or
(B) Continue participation in the Plan,
subject to the provisions of Section 4.6, until the Exercise Date next following
his date of termination of employment for
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the limited purpose of allowing any unexpired Options he holds as of his
termination of employment to be exercised automatically in accordance with
Section 5.5(a) on the Exercise Date next following his termination of employment
but only to the extent such Options were exercisable on the date of the
Participant's termination of employment, with any remaining Contributions
credited to the Participant's Account being distributed to the Participant as
soon as administratively practicable after such Exercise Date.
(d) Leave of Absence. A Participant on a leave of absence
shall, subject to the election made by such Participant pursuant to Section 4.3,
continue to be a Participant in the Plan so long as such Participant is on
continuous leave of absence. A Participant who has been on leave of absence for
more than ninety days and who therefore is not an Employee for the purpose of
the Plan shall not be entitled to participate in any offering commencing on any
Grant Date following the ninetieth day of such leave of absence. Notwithstanding
any other provisions of the Plan, unless a Participant on a leave of absence
returns to regular full-time or part-time employment with the Employer at the
earlier of (i) the termination of such leave of absence, or (ii) three months
from the ninetieth day of such leave of absence, such Participant's
participation in the Plan shall terminate on whichever of such dates first
occurs.
(e) Delivery of Stock. As soon as administratively practicable
after each Exercise Date, the Company or the Committee will deliver to each
Participant, as applicable, certificates evidencing shares of Company Stock
purchased under this Plan.
(f) Acceleration of Exercisability of Options Upon Occurrence
of Certain Events. In connection with any merger or consolidation in which the
Company is not the surviving corporation and which results in the holders of the
outstanding voting securities of the Company (determined immediately prior to
such merger or consolidation) owning less than a majority of the outstanding
voting securities of the surviving corporation (determined immediately following
such merger or consolidation), or any sale or transfer by the Company of all or
substantially all its assets or any tender offer or exchange offer for or the
acquisition, directly or indirectly, by any person or group of all or a majority
of the then-outstanding voting securities of the Company, all outstanding
Options under the Plan shall become exercisable in full, notwithstanding any
other provision of the Plan or of any outstanding Options granted thereunder, on
and after (i) the fifteenth day prior to the effective date of such merger,
consolidation, sale, transfer or acquisition or (ii) the date of commencement of
such tender offer or exchange offer, as the case may be. Notwithstanding the
foregoing, in no event shall any Option be exercisable after the date of
termination of the exercise period of such Option specified in Section 5.4.
(g) Registration, Listing and Qualification of Shares of
Stock. Each Option shall be subject to the requirement that if at any time the
Board of Directors shall determine that the registration, listing or
qualification of shares of Company Stock covered thereby upon any securities
exchange or under any federal or state law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such option or the purchase of shares of
Company Stock thereunder, no such Option may be exercised unless and until such
registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors. The Employer may require that any person exercising an Option shall
make such
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representations and agreements and furnish such information as it deems
appropriate to assure compliance with the foregoing or any other applicable
legal requirement.
ARTICLE VI
MISCELLANEOUS
6.1 Adjustments Upon Changes in Capitalization. In the event of a
reorganization, stock split, stock dividend, combination of shares, merger,
consolidation, rights offering or any other change in the corporate structure of
shares of the Company, the Committee may make such adjustments to the extent and
in the manner it deems appropriate in the number and/or kind of shares of
Company Stock subject to outstanding Options and in the Option exercise price.
In such event, the Committee also may proportionately adjust the number and/or
kind of shares subject to purchase under Options which may be granted pursuant
to Article IV of this Plan. Any adjustments made pursuant to this Section 6.1
remain subject to the limitations of Code Section 423 (including its $25,000
annual limitations).
6.2 Approval of Shareholders. Within twelve months before or after the
Plan is originally adopted, this Plan must be approved by a majority of the
votes cast thereon by the stockholders of the Company at a meeting of
stockholders duly called and held for such purpose or by unanimous written
consent of such stockholders, and no Option granted hereunder shall be
exercisable prior to such approval.
6.3 Amendment, Suspension and Termination. The Board of Directors may
at any time amend, suspend or terminate this Plan; provided, however, that the
Board of Directors shall not (i) increase the maximum number of shares of
Company Stock for which Options may be granted under the Plan except as provided
in Section 6.1, (ii) materially modify the requirements as to the class of
employees eligible to receive Options and purchase Company Stock under the Plan,
or (iii) materially increase the benefits accruing to Participants under the
Plan without obtaining approval of the stockholders in the manner described in
Section 6.2. The Plan will continue until terminated by the Board of Directors
or until all of the shares of Company Stock reserved for issuance under the Plan
have been issued, whichever first occurs. No amendment, suspension or
termination of the Plan may, without the consent of the Participants then
holding Options to purchase Company Stock, adversely affect the rights of such
Participants under such Options.
6.4 Intent to Comply With Code Section 423. It is intended that this
Plan qualify as an "employee stock purchase plan" under Code Section 423. The
provisions of this Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that Section of
the Code. In the event of an inconsistency between the Plan and Code Section
423, the Plan shall be interpreted in a manner which complies with the
requirements of Code Section 423 and the regulations thereunder, without further
act or amendment by the Company or the Board of Directors unless otherwise
required pursuant to Section 6.3 of this Plan.
6.5 Equal Rights and Privileges. All Participants granted Options under
this Plan shall have equal rights and privileges within the meaning of Code
Section 423(b)(5) and the regulations
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thereunder. The provisions applying to one Option granted on a Grant Date must
apply in the same manner to all other Options granted on such Grant Date.
6.6 Use of Funds. All Contributions received and held by the Employer
under this Plan may be used by the Employer for any corporate purpose and the
Employer shall not be obligated to segregate such Contributions.
6.7 Withholding. It shall be a condition to the obligation of the
Company to issue shares of Company Stock upon exercise of an Option that the
Participant (or his estate pursuant to Section 5.5(c)(ii)) pay to the Company,
upon its demand, such amount as may be requested by the Company for the purpose
of satisfying taxes, including taxes owed by the Participant due to the
disposition of Company Stock by the Participant prior to the expiration of the
holding periods described in Code Section 423(a).
6.8 Effect of Plan. This Plan shall be binding upon each Participant
and his successors, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
6.9 No Employment Rights. Nothing in this Plan or in any Option granted
pursuant to the Plan shall be construed as a contract of employment between the
Employer and any employee, or as a right of any employee to continue in the
employ of the Employer, or as a limitation of the right of the Employer to
discharge any of its employees, with or without cause.
6.10 Governing Law. This Plan and all rights and obligations hereunder
shall be construed in accordance with and governed by the laws of the State of
North Carolina, except to the extent such laws are preempted by the laws of the
United States.
6.11 Other Actions. Nothing contained in the Plan shall be construed to
limit the authority of the Company to exercise its corporate rights and powers,
including, but not by way of limitation, the right of the Company to grant or
assume options for proper corporate purposes other than under the Plan with
respect to any employee or other person, firm, corporation or association.
10
EXHIBIT 5.1
December 11, 1996
Board of Directors
Speedway Motorsports, Inc.
U.S. Highway 29 North
Concord, North Carolina
Dear Sirs:
We are acting as counsel to Speedway Motorsports, Inc., a Delaware
corporation (the "COMPANY"), in connection with the preparation, execution,
filing and processing with the Securities and Exchange Commission (the
"COMMISSION"), pursuant to the Securities Act of 1933, as amended (the "ACT"),
of a Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") relating
to the issuance and sale of up to 200,000 shares (the "SHARES") of Common Stock,
par value $.01 per share (the "COMMON STOCK"), reserved for issuance under the
Company's Employee Stock Purchase Plan (the "PLAN"). This opinion is furnished
to you for filing with the Commission pursuant to Item 601(b)(5) of Regulation
S-K promulgated under the Act.
In our representation of the Company, we have examined the Registration
Statement, the Plan, the Company's Certificate of Incorporation and Bylaws, as
amended to date, all actions of the Company's Board of Directors recorded in the
Company's minute book, the form of certificate evidencing the Shares and such
other documents as we have considered necessary for purposes of rendering the
opinions expressed below.
Based upon the foregoing, we are of the following opinion:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware.
2. The Shares proposed to be offered and sold by the Company
under the Plan have been duly authorized for issuance and,
subject to the Registration Statement becoming effective under
the Act and to compliance with any applicable Blue Sky laws
and to the issuance of such Shares in accordance with the
provisions of the Plan, the Shares will be legally issued,
fully paid and non-assessable shares of Common Stock of the
Company.
The opinions expressed herein are limited to the laws of the State of
North Carolina, the General Corporation Law of the State of Delaware and the
Act.
We hereby consent to the use of this opinion letter as Exhibit 5.1 to
the Registration Statement. In giving this consent, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
PARKER, POE, ADAMS & BERNSTEIN L.L.P.
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Speedway Motorsports, Inc. on Form S-8 of our report dated March 1, 1996 on
Speedway Motorsports, Inc. and Subsidiaries (which includes an explanatory
paragraph relating to significant tax adjustments proposed by the Internal
Revenue Service for additional income taxes and penalties, plus interest, at
Atlanta Motor Speedway, Inc.) appearing in the Annual Report on Form 10-K of
Speedway Motorsports, Inc., for the year ended December 31, 1995, and our report
dated March 1, 1996 on Bristol Motor Speedway, Inc., for the year ended December
31, 1995, appearing in Form 8-K/A of Speedway Motorsports, Inc. dated March 1,
1996.
DELOITTE & TOUCHE L.L.P.
December 11, 1996
