exv10w2



 




Exhibit
10.2


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS
OR DIRT MOTOR SPORTS, INC. SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS
NOT REQUIRED.




DIRT MOTOR SPORTS, INC

PROMISSORY NOTE




			
	U.S. $___
	 	Issuance Date: ___, 2006






			
	No.: PN- ___
	 	Maturity Date: April 30, 2006






     FOR VALUE RECEIVED, the undersigned, Dirt Motor Sports, Inc. a Delaware corporation (the
“Company”), hereby promises to pay to the order of ___or any future
permitted holder of this promissory note (the “Payee”), at the principal office of the
Payee set forth herein, or at such other place as the Payee may designate in writing to the
Company, the principal sum of up to ___(U.S. $___), or such other amount as
may be outstanding hereunder, together with all accrued but unpaid interest, in such coin or
currency of the United States of America as at the time shall be legal tender for the payment of
public and private debts and in immediately available funds, as provided in this promissory note
(the “Note”).



     1. Principal and Interest Payments.



          (a) The Company shall repay in full the entire principal balance then outstanding under this
Note on the first to occur (the “Maturity Date”) of: (i) April 30, 2006, (ii) the
completion of an equity or equity linked financing raising gross proceeds of at least $9,000,000 or
(iii) the acceleration of the obligations as contemplated by this Note.




          (b) Interest on the outstanding principal balance of this Note shall accrue at a rate of eight
percent (8%) per annum. Interest on the outstanding principal balance of the Note shall be
computed on the basis of the actual number of days elapsed and a year of three hundred and sixty
(360) days and shall be payable on the last day of each calendar quarter following the date hereof
by the Company in cash. Furthermore, upon the occurrence of an Event of Default, then to the
extent permitted by law, the Company will pay interest to the Payee, payable on demand, on the
outstanding principal balance of the Note from the date of the Event of Default until payment in
full at the rate of fourteen percent (14%) per annum.




     2. Warrants. In consideration for the loan evidenced by this Note, the Payee shall be
issued Warrants in the form attached as Exhibit A for the issuance of [aggregate total
125,000] shares of common stock of the Company at an exercise price of [$4.50] per share.



 









 





     3. Exchange of Principal and Interest into Qualified Financing. The outstanding
principal amount of this Note, together with all accrued but unpaid interest hereunder (the
“Outstanding Balance”), may at the election of the Payee be exchanged into the securities sold by
the Company in a Qualified Financing as defined herein. A “Qualified Financing” is defined as an
equity or equity linked financing raising gross proceeds (excluding proceeds raised from the
issuance the Notes) of at least Nine Million Dollars (U.S. $9,000,000). For purposes of
determining the number of equity securities, including warrants issued in such Qualified Financing,
to be received by the Payee upon such exchange, the Payee shall be deemed to have tendered 110% of
the Outstanding Balance of the Note as payment of the purchase price in the Qualified Financing.
Upon such exchange pursuant to a Qualified Financing, the Payee shall be deemed to be a purchaser
in such Qualified Financing and shall be granted all rights afforded a purchaser in the Qualified
Financing.



4. Covenants of Company. 




          (a) The Company shall deliver to the Payee a management plan setting forth a proposal to
restructure senior management of the Company and to prepare the Company for future capital markets
activity (including preparation of the Company for listing on a national securities exchange)
within thirty (30) days of the Issuance Date.




          (b) From and after the Issuance Date, the Company shall not at any time at which any amount
remains outstanding under this Note issue any securities or other financial instruments in an
amount in aggregate greater than $100,000 that rank senior to or pari-passu to this Note without
the prior written consent of the Payee.




     5. Non-Business Days. Whenever any payment to be made shall be due on a Saturday,
Sunday or a public holiday under the laws of the State of New York, such payment may be due on the
next succeeding business day and such next succeeding day shall be included in the calculation of
the amount of accrued interest payable on such date.



     6. Representations and Warranties of the Company. The Company represents and warrants
to the Payee as follows:



          (a) The Company has been duly incorporated and is validly existing and in good standing under
the laws of the state of Delaware, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as currently conducted.




          (b) This Note has been duly authorized, validly executed and delivered on behalf of the
Company and is a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to limitations on enforcement by general principles of equity
and by bankruptcy or other laws affecting the enforcement of creditors’ rights generally, and the
Company has full power and authority to execute and deliver this Note and to perform its
obligations hereunder.




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          (c) The execution, delivery and performance of this Note will not (i) conflict with or result
in a breach of or a default under any of the terms or provisions of, (A) the Company’s certificate
of incorporation or by-laws, or (B) any material provision of any indenture, mortgage, deed of
trust or other material agreement or instrument to which the Company is a party or by which it or
any of its material properties or assets (including, without limitation, the Collateral) is bound,
(ii) result in a violation of any material provision of any law, statute, rule, regulation, or any
existing applicable decree, judgment or order by any court, Federal or state regulatory body,
administrative agency, or other governmental body having jurisdiction over the Company, or any of
its material properties or assets or (iii) result in the creation or imposition of any material
lien, charge or encumbrance upon any material property or assets of the Company or any of its
subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party
or by which any of them may be bound or to which any of their property or any of them is subject.




          (d) No consent, approval or authorization of or designation, declaration or filing with any
governmental authority on the part of the Company is required in connection with the valid
execution and delivery of this Note.




          (e) The Company has filed all reports required to be filed by it under the Securities Act and
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to Section
13(a) or 15(d) of the Exchange Act, for the 12 months preceding the date hereof (the foregoing
materials, including any exhibits thereto, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed
any such SEC Reports prior to the expiration of any such extension. As of their respective filing
dates, the SEC Reports complied in all material respects with the requirements of the Securities
Act and the Exchange Act, as the case may be, and the rules and regulations of the Securities and
Exchange Commission (the “SEC”) promulgated thereunder, as applicable, and none of the SEC Reports,
as of their respective filing dates, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.




          (f) The financial statements of the Company and any acquired entities included in the SEC
Reports comply with applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with generally accepted accounting principles in the United States,
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise
specified in such financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, subject to normal year-end audit
adjustments. Such financial statements fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries, if any, as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal year-end audit adjustments.




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          (g) Except as set forth in the SEC Reports, and except for liabilities and obligations
incurred since October 1, 2005 in the ordinary course of business, consistent with past practice,
as of the date hereof: (i) the Company and its Subsidiaries do not have any material liabilities or
obligations (absolute, accrued, contingent or otherwise) and (ii) there has not been any aspect of
the prior or current conduct of the business of the Company or its Subsidiaries which may form the
basis for any material claim by any third party which if asserted could result in a Material
Adverse Effect.




     7. Events of Default. The occurrence of any of the following events shall be an
“Event of Default” under this Note:



          (a) the Company shall fail to make the payment of any amount of any principal outstanding for
a period of three (3) business days after the date such payment shall become due and payable
hereunder; or




          (b) the Company shall fail to make any payment of interest for a period of three (3) business
days after the date such interest shall become due and payable hereunder; or




          (c) any representation, warranty or certification made by the Company herein or in any
certificate or financial statement shall prove to have been false or incorrect or breached in a
material respect on the date as of which made; or




          (d) the holder of any indebtedness of the Company or any of its subsidiaries shall accelerate
any payment of any amount or amounts of principal or interest on any indebtedness (the
“Indebtedness”) (other than the Indebtedness hereunder) prior to its stated maturity or
payment date, whether such Indebtedness now exists or shall hereinafter be created, and such
accelerated payment entitles the holder thereof to immediate payment of such Indebtedness which is
due and owing and such indebtedness has not been discharged in full or such acceleration has not
been stayed, rescinded or annulled within ten (10) business days of such acceleration; or




          (e) A judgment or order for the payment of money shall be rendered against the Company or any
of its subsidiaries in excess of $500,000 in the aggregate (net of any applicable insurance
coverage) for all such judgments or orders against all such persons (treating any deductibles, self
insurance or retention as not so covered) that shall not be discharged, and all such judgments and
orders remain outstanding, and there shall be any period of sixty (60) consecutive days following
entry of the judgment or order in excess of $500,000 or the judgment or order which causes the
aggregate amount described above to exceed $500,000 during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or




          (f) the Company shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property or assets, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code or under the comparable


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laws of any jurisdiction (foreign or domestic), (iv) file a petition seeking to take advantage
of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the
enforcement of creditors’ rights generally, (v) acquiesce in writing to any petition filed against
it in an involuntary case under the Bankruptcy Code or under the comparable laws of any
jurisdiction (foreign or domestic), or (vi) take any action under the laws of any jurisdiction
(foreign or domestic) analogous to any of the foregoing; or




          (g) a proceeding or case shall be commenced in respect of the Company or any of its
subsidiaries without its application or consent, in any court of competent jurisdiction, seeking
(i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like of it or of all or any substantial part of its assets or (iii) similar relief in respect
of it under any law providing for the relief of debtors, and such proceeding or case described in
clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of
thirty (30) consecutive days or any order for relief shall be entered in an involuntary case under
the Bankruptcy Code or under the comparable laws of any jurisdiction (foreign or domestic) against
the Company or any of its subsidiaries or action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of
its subsidiaries and shall continue undismissed, or unstayed and in effect for a period of thirty
(30) consecutive days; or




          (h) the suspension from listing or the failure of the Common Stock to be listed on the OTC
Bulletin Board for a period of five (5) consecutive trading days; or




          (i) the failure of the Company to deliver the management plan as described in Section 4(a)
above.




     8. Remedies Upon An Event of Default. If an Event of Default shall have occurred and
shall be continuing, the Payee of this Note may at any time at its option, (a) declare the entire
unpaid principal balance of this Note, together with all interest accrued hereon, due and payable,
and thereupon, the same shall be accelerated and so due and payable; provided,
however, that upon the occurrence of an Event of Default described in (i) Sections 7(f) and
(g), without presentment, demand, protest, or notice, all of which are hereby expressly
unconditionally and irrevocably waived by the Company, the outstanding principal balance and
accrued interest hereunder shall be automatically due and payable, and (ii) Sections 7(a) through
(e) and Section 7(h) through (i), the Payee may exercise or otherwise enforce any one or more of
the Payee’s rights, powers, privileges, remedies and interests under this Note or applicable law.
No course of delay on the part of the Payee shall operate as a waiver thereof or otherwise
prejudice the right of the Payee. No remedy conferred hereby shall be exclusive of any other
remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise.
Notwithstanding the foregoing, Payee agrees that its rights and remedies hereunder are limited to
receipt of cash or shares of the Company’s equity securities in the amounts described herein.



     9. Replacement. Upon receipt of a duly executed, notarized and unsecured written
statement from the Payee with respect to the loss, theft or destruction of this Note (or



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any replacement hereof), and without requiring an indemnity bond or other security, or, in the
case of a mutilation of this Note, upon surrender and cancellation of such Note, the Company shall
issue a new Note, of like tenor and amount, in lieu of such lost, stolen, destroyed or mutilated
Note.



     10. Parties in Interest, Transferability. This Note shall be binding upon the Company
and its successors and assigns and the terms hereof shall inure to the benefit of the Payee and its
successors and permitted assigns. This Note may be transferred or sold, subject to the provisions
of Section 19 of this Note, or pledged, hypothecated or otherwise granted as security by the Payee.



     11. Amendments. This Note may not be modified or amended in any manner except in
writing executed by the Company and the Payee.



     12. Notices. Any notice, demand, request, waiver or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery
by telecopy or facsimile at the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the second business day following the date of
mailing by express courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The Company will give written notice to the
Payee at least thirty (30) days prior to the date on which the Company closes its books or takes a
record (x) with respect to any dividend or distribution upon the common stock of the Company, (y)
with respect to any pro rata subscription offer to holders of common stock of the Company or (z)
for determining rights to vote with respect to a major transaction, dissolution, liquidation or
winding-up and in no event shall such notice be provided to such holder prior to such information
being made known to the public. The Company will also give written notice to the Payee at least
twenty (20) days prior to the date on which dissolution, liquidation or winding-up will take place
and in no event shall such notice be provided to the Payee prior to such information being made
known to the public.



	 	 	 
	          Address of the Payee:

	 	[ to be provided ]
	 
	 	 
	          Address of the Company:

	 	Dirt Motor Sports, Inc.

2500 McGee Drive, Suite 147

Norman, Oklahoma 73072

Attention: Paul Kruger and Brian Carter

Tel. No.: (405) 360-5047

Fax No.: (405) 360-5354
	 
	 	 
	          with a copy to:

	 	Jackson Walker L.L.P.






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	 	2435 N. Central Expressway, Suite 600

Richardson, Texas, 75080

Attention: Richard F. Dahlson

Telephone No.: (972) 744-2996

Facsimile No.: (972) 744-2990






     13. Governing Law. This Note shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to the choice of law provisions.
This Note shall not be interpreted or construed with any presumption against the party causing this
Note to be drafted.



     14. Headings. Article and section headings in this Note are included herein for
purposes of convenience of reference only and shall not constitute a part of this Note for any
other purpose.



     15. Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief.
The remedies provided in this Note shall be cumulative and in addition to all other remedies
available under this Note, at law or in equity (including, without limitation, a decree of specific
performance and/or other injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein shall limit a Payee’s
right to pursue actual damages for any failure by the Company to comply with the terms of this
Note. Amounts set forth or provided for herein with respect to payments and the like (and the
computation thereof) shall be the amounts to be received by the Payee and shall not, except as
expressly provided herein, be subject to any other obligation of the Company (or the performance
thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause
irreparable and material harm to the Payee and that the remedy at law for any such breach may be
inadequate. Therefore the Company agrees that, in the event of any such breach or threatened
breach, the Payee shall be entitled, in addition to all other available rights and remedies, at law
or in equity, to seek and obtain such equitable relief, including but not limited to an injunction
restraining any such breach or threatened breach, without the necessity of showing economic loss
and without any bond or other security being required.



     16. Failure or Indulgence Not Waiver. No failure or delay on the part of the Payee in
the exercise of any power, right or privilege hereunder (including without limitation to perfect
any security interest granted to Payee by this Note) shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.



     17. Enforcement Expenses. The Company agrees to pay all costs and expenses of
enforcement of this Note, including, without limitation, reasonable attorneys’ fees and expenses.



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     18. Binding Effect. The obligations of the Company and the Payee set forth herein
shall be binding upon the successors and assigns of each such party, whether or not such successors
or assigns are permitted by the terms hereof.



     19. Compliance with Securities Laws. The Payee of this Note acknowledges that this
Note is being acquired solely for the Payee’s own account and not as a nominee for any other party,
and for investment, and that the Payee shall not offer, sell or otherwise dispose of this Note
other than in compliance with the laws of the United States of America and as guided by the rules
of the Securities and Exchange Commission. This Note and any Note issued in substitution or
replacement therefore shall be stamped or imprinted with a legend in substantially the following
form:




“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS OR BOUNDLESS MOTOR SPORTS RACING INC. SHALL HAVE
RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.”



     20. Severability. The provisions of this Note are severable, and if any
provision shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Note in any jurisdiction.



     21. Consent to Jurisdiction. Each of the Company and the Payee hereby irrevocably
submits to the jurisdiction of the United States District Court sitting in the Southern District of
New York and the courts of the State of New York located in New York county for the purposes of any
suit, action or proceeding arising out of or relating to this Note; and the Company hereby
irrevocably submits to the jurisdiction of any federal and/or state courts in any locality in which
any Collateral may be located. Each of the Company and the Payee hereby waives, and agrees not to
assert in any such suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum
or that the venue of the suit, action or proceeding is improper. Each of the Company and the Payee
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address set forth in Section 11 hereof and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing in this Section 21
shall affect or limit any right to serve process in any other manner permitted by law.



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     22. Company Waivers. Except as otherwise specifically provided herein, the Company
and all others that may become liable for all or any part of the obligations evidenced by this
Note, hereby waive presentment, demand, notice of nonpayment, protest and all other demands and
notices in connection with the delivery, acceptance, performance and enforcement of this Note, and
do hereby consent to any number of renewals of extensions of the time or payment hereof and agree
that any such renewals or extensions may be made without notice to any such persons and without
affecting their liability herein and do further consent to the release of any person liable hereon,
all without affecting the liability of the other persons, firms or Company liable for the payment
of this Note, AND DO HEREBY WAIVE TRIAL BY JURY.



     (a) No delay or omission on the part of the Payee in exercising its rights under this Note, or
course of conduct relating hereto, shall operate as a waiver of such rights or any other right of
the Payee, nor shall any waiver by the Payee of any such right or rights on any one occasion be
deemed a waiver of the same right or rights on any future occasion.



     (b) THE COMPANY ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL
TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HEREBY WAIVES ITS RIGHT TO NOTICE AND
HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE PAYEE OR ITS SUCCESSORS OR ASSIGNS MAY
DESIRE TO USE.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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     IN WITNESS WHEREOF, the Company has executed and delivered this Note as of the date first
written above.



	 	 	 	 	 
	 	DIRT MOTOR SPORTS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Brian Carter 	 
	 	 	Title:  	Vice President 	 
	 



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Exhibit A

Form of Warrant





11