EXHIBIT 10(d)
December 21, 1999
Internet Sports Network, Inc.
000 Xxxxxxxx Xxxxxx X.
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0XX
Attention: Xxxxxx XxXxxxxxxxx
President and CEO
Gentlemen:
Reference is made to the Promotion Agreement (the "Promotion Agreement"),
dated December 21, 1999 by and between XxxxxxXxxx.xxx, Inc. ("SPLN") and
Internet Sports Network, Inc. ("ISN"). All capitalized terms herein are as
defined in the Promotion Agreement. In order to induce ISN to enter into the
Purchase Agreement the parties hereto agree to supplement the Promotion
Agreement as follows:
1) Reference is made to Section 7(a) of the Promotion Agreement, which
provides that ISN will make annual Promotional Fee Cash Payments
during the Term of the Promotion Agreement and transfer 4,098,742
Company Shares to SPLN as consideration for SPLN's promotion of ISN.
2) Notwithstanding anything to the contrary contained in the Promotion
Agreement, in the event that the Promotion Agreement is terminated by
SPLN pursuant to Section 19(c) of the Promotion Agreement, (i) SPLN
shall within ninety (90) days after such termination refund a portion
of the Promotional Fee Cash Payment in respect of the year of Term in
which such termination occurs determined by multiplying such cash
payment by a fraction, the numerator of which is the actual number of
days remaining in such year of Term after the date of such
termination, and the denominator of which is 365 and (ii) ISN shall
have the right, during the three (3) months immediately following such
termination, to repurchase a portion of the shares of Common Stock
issued pursuant to Section 7(a)(ii) of the Promotion Agreement
determined by multiplying the total number of such shares so issued by
a fraction, the numerator of which is the number of months (or a
fraction of a month) in the period commencing on the date that the
notice referred to below is given and ending on the sixth anniversary
of the Effective Date, and the denominator of which is 72, at a cash
purchase price per share equal to the greater of (x) $2.90 and (y) the
Fair Market Value of such shares on the third trading day prior to the
date ISN gives written notice to SPLN of its election to purchase such
shares which written notice shall, in any event, be given not less
than thirty (30) days prior to the date such repurchase is to be
consummated.
3) For purposes of this Letter Agreement, "FAIR MARKET VALUE" of the
shares of Common Stock means the average of the closing prices of such
share's sales on all securities exchanges on which such shares may at
the time be listed or as reported on the NASDAQ National Market, or,
if there have been no sales on any such exchange or reported on the
NASDAQ National Market on any day, the average of the highest bid and
lowest asked prices on all such exchanges or reported at the end of
such day, or, if on any day such shares are not so listed or included
in the NASDAQ National Market, the average of the representative bid
and asked prices quoted in the NASDAQ Stock Market as of 4:00 P.M.,
New York time, or, if on any day such shares are not quoted in the
NASDAQ Stock Market, the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as reported
by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of
twenty one (21) days consisting of the day as of which "Fair Market
Value" is being determined and the twenty (20) consecutive business
days prior to such day. If at
any time such shares are not listed on any securities exchange or
quoted in the NASDAQ National Market, the NASDAQ Stock Market or the
over-the-counter market, the "Fair Market Value" shall be determined
in good faith by the Board of Directors of ISN and such determination
shall be delivered in writing to SPLN. In the event that SPLN
disputes such determination of Fair Market Value, SPLN shall so
inform ISN in writing within ten (10) days after receipt of the
ISN's determination and ISN and SPLN shall negotiate in good
faith to determine a mutually acceptable Fair Market Value. If such
parties are unable to reach agreement within thirty (30) days after
SPLN has given ISN written notice of its dispute, the Fair Market
Value of such shares shall be determined by an independent appraiser
experienced in valuing securities jointly selected by ISN and SPLN.
The determination of such appraiser shall be final and binding upon
the parties, and the fees and expenses of such appraiser shall be
borne by ISN.
This letter agreement shall be governed by the laws of the State of Florida
without regard to the principles of conflict of laws thereof.
If the foregoing appropriately sets forth our mutual understanding with
regard to this matter, please execute this letter in the place provided below,
whereupon this letter shall constitute a binding agreement between the parties
hereto.
Very truly yours,
XxxxxxXxxx.xxx, Inc.
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
President
Accepted and agreed to as of the date first above written:
Internet Sports Network, Inc.
By: /s/ Xxxxxx XxXxxxxxxxx
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Xxxxxx XxXxxxxxxxx
Chairman & CEO
