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EXHIBIT 10.28
[XXXXXXX HILLS LTD. LETTERHEAD]
September 8, 1999
Xxxxxxx Xxxxx, VP Sales and Marketing
Sports Byline USA, Inc.
000 Xxxxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx
RE: Airtime and Internet Advertising Agreement
Dear Xx. Xxxxx:
Xxxx Xxxxxxxxxxx has forwarded to me for review and for my signature, on behalf
of Xxxxxxx Hills, Ltd., of the proposed "Attachment A" airtime and internet
advertising agreement which accompanied your letter to him dated July 30, 1999,
along with a copy of that letter.
Whenever agreeing to issue any shares of stock, we are obliged to take measures
to ensure that the prospective recipient is an "accredited investor", as that
term is known under applicable SEC Rules and Regulations.
In connection with our effort to ensure that Sports Byline USA, Inc. is an
accredited investor, we are enclosing an Investment Letter, which sets forth
certain standard representations and understandings relating to the prospective
issuance of stock. If all of these representations and acknowledgments are
correct, we ask that the Investment Letter be signed by an authorized officer
of Sports Byline USA, Inc. and returned to us.
We are also obliged to ensure that, in relation to the proposed issuance of
stock, there is no possibility of our having made any incorrect representations,
or any agreements which, for whatever reason, however unanticipated, we may
later prove unable to perform. As a measure of our caution in these regards,
there are certain aspects of our understanding which were referred to in your
letter of July 30, 1999 and which need to be clarified:
(1) The shares to be issued to Sports Byline USA, Inc. have not been
registered, will be restricted and may not be sold or otherwise transferred
except in accordance with Rule 144 of the Securities and Exchange Act of 1933.
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Xxxxxxx Xxxxx, VP Sales and Marketing
Sports Byline USA, Inc.
September 8, 1999
Page 2
(2) We intend that Xxxxxxx Hills, Ltd. will become a reporting company, and
that appropriate registrations will be filed so as to enable successive blocks
of 25,000 shares to become non-restricted at the end of each of successive
calendar quarter beginning with the quarter ending 12/31/99 (until such time as
any shares remaining restricted may become unrestricted through the passage of
time and compliance with Rule 144), and that, as stated in your letter, the
company's stock will be trading and viable after June 3, 2000 on the NASDAQ
bulletin board or higher. The company will make its best efforts, but can make
no guarantee in these regards. Therefore, while the issuance of stock is the
preferred method of payment, cash has been agreed to as an acceptable
alternative method of payment for all or any portion of the airtime and related
services not paid for in stock, and there is no assurance that all or any of the
subject shares will be issued.
(3) We will utilize our best efforts to issue all 250,000 shares within
sixty (60) days from the date on which we receive a countersigned copy of this
letter and the signed Investment Letter. If, after the Issuance of the shares,
the conditions stated in (2) above cannot be met with respect to all or any
portion of the shares, those shares shall be surrendered back to Xxxxxxx Hills,
Ltd. in exchange for the equivalent cash payment (determined per Attachment A on
a media consumed basis).
(4) Xxxxxxx Hills, Ltd. retains the right to terminate the agreement by
written notice if, for any reason, it is unable to make payment in conforming
stock, or to cause the stock to become non-restricted in accordance with the
quarter-annual schedule. In such event, Xxxxxxx Hills, Ltd. will be responsible
to make payment in cash for all airtime consumed and other services received
(per Attachment A) up to that point in time, but will have no other or further
liability or responsibility to Sports Byline USA, Inc.
(5) Xxxxxxx Hills, Limited has the option of using the airtime and Internet
advertising immediately upon signature of this agreement.
In addition to returning the duly executed Investment Letter, kindly return a
copy of this letter, countersigned by an authorized officer of Sports Byline
USA, Inc. to signify its agreement to (1), (2) and (3) above. Upon receipt of
both items, I will countersign and fax to you the Attachment A.
We look forward to an excellent and mutually beneficial relationship.
Very truly yours,
/s/ XXXXXXX XXXXXXXX V.P.
Xxxxxxx Xxxxxxxx,
Vice President
Agreed: Sports Byline USA, (A California limited Partnership)
By: /s/ [ILLEGIBLE]
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[XXXXXXX HILLS LTD. LETTERHEAD]
INVESTMENT LETTER
Fidelity Transfer Company
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
RE: Proposed acquisition of shares
of Xxxxxxx Hills, Ltd. (BLTD, OR THE COMPANY)
by Sports Byline USA. (WE)
Gentlemen:
Pursuant to the written agreement(s) between the undersigned and BLTD
(collectively, the SUBSCRIPTION DOCUMENTS), We acknowledge that We have
approved this acquisition of shares (which are to be issued in exchange for
commercial advertising airtime and related services, and without any cash
payment by us) and that We have received and personally reviewed copies of any
and all material documents which we may have requested regarding the Company.
We represent that no director or office of the Company or any associate of
either has solicited this acquisition of shares and that We are an ACCREDITED
INVESTOR, as that term is known under the Rules and Regulations of the
Securities and Exchange Commission, or that We have sufficient knowledge and
experience to understand the nature of the acquisition and are fully capable of
bearing the economic risk of the loss of our entire cost basis.
We understand that you will make available to us for our inspection, in
connection with our acquisition of the shares, such books and records of the
Company as we may request, and that We have been encouraged to review the
information and ask any questions We may have concerning the information of
any director or officer of the Company or of the legal and accounting firms for
the Company.
We intend that you rely on all of our representations made herein and
those in the Subscription Documents We provided to the Company for use by the
Company as they are made to induce you to issue us the shares of the Company
pursuant to the Subscription Documents, and We further represent (of our
personal knowledge or by virtue of our reliance on one or more personal
representatives), and agree as follows, to wit:
1. That the shares being acquired by us are being received for investment
purposes and not
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with a view toward further distribution;
2. That We have a full and complete understanding of the phrase FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TOWARD FURTHER DISTRIBUTION.
3. That We shall not sell, offer to sell, transfer, hypothecate or make
any other disposition of any interest in the shares being acquired except as
may be pursuant to any applicable laws, rules and regulations; and
4. We fully understand that our cost basis in the shares which are being
acquired is risk capital and We are fully capable of bearing the economic risks
associated with this investment, without qualification.
5. You are requested and instructed to issue the certificate(s) for the
shares as follows, to wit.
SPORTS BYLINE U.S.A.
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DATED this 8th day of September, 1999.
Very truly yours,
SPORTS BYLINE USA, (A California Limited Partnership)
By: [ILLEGIBLE]
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Title: President
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