NOBLE HOUSE OF BOSTON, INC.
ADVERTISING AND PROMOTIONAL SERVICES AGREEMENT
This Agreement (the "Agreement") is made on this 5th day of April 1999,
between NOBLE HOUSE OF BOSTON, INC., a Florida corporation ("NHOB") and
Ultimate Sports Entertainment, Inc. a Nevada corporation ("Client").
Whereas, NHOB is in the business of planning, developing and
implementing advertising, marketing and promotional campaigns for
corporations and other business entities ("Advertising and Promotional
Services"); and
Whereas, Client wants to engage NHOB to prepare and implement an
advertising and promotional campaign for Client.
Now, therefore, in consideration of the mutual promises contained herein
and other GOOD and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties, intending to be legally bound, agree as follows:
1) Advertising and Promotional Services; Term Subject to Client's compliance
with each of the representations, warranties and covenants and agreements
made by Client in the Agreement, NHOB agrees to provide to Client the
Advertising and Promotional Services identified on Exhibit A to this
Agreement and incorporated herein by reference., for the period commencing
on the later of the date that this Agreement is executed and delivered by
Client or the date that NHOB receives payment of its fees as provided
below (the "Effective Date") and expiring on the 180'h day following the
effective date of this Agreement (the "Term").
2) Obligations and Responsibilities of Client As of the date hereof and
during the Term of this Agreement, Client agrees as follows.
a) Representation and Warranties.
Client represents and warrants to NHOB that:
i) Organization. Client is a corporation duly organized, validly
existing and in good standing under the laws of the State of its
incorporation and is duly qualified to do business as a foreign
corporation in each jurisdiction in which it owns or leases
property or engages in business.
ii) Formal Action. Client has the corporate power and authority to
execute and deliver this Agreement and to perform each of its
obligations hereunder. The Client has taken all necessary action
to approve the execution and delivery of this Agreement and
performance of all obligations of Client in this Agreement.
iii) Valid and Binding Agreement. Client has duly executed and delivered
this Agreement, which is the valid and binding obligation of
Client, enforceable AGAINST it in accordance with its terms.
iv) No Violation. The execution, delivery and performance of this
Agreement by Client does not and will not violate any provisions
of the certificate of incorporation or bylaws of Client or any
agreement to which Client is a party or any applicable law or
regulation or order or decree of any court, arbitrator or
government. Client is not required to request action of, or filing
with, any governmental or public body or authority in connection
with the execution, delivery or performance of this Agreement.
v) Litigation. No action, suit or proceeding is pending against,
threatened or otherwise affecting the Client or any of its
properties before any court, arbitrator or governmental body or
administrative agency and none of the persons owning beneficially
or of record more than 10% of the outstanding capital stock of the
Client, or any of the directors or officers of Client, is a party
to any action, suit or proceeding before any federal or state
court, arbitrator or governmental body or administrative agency
(other than routine traffic violations) and no such person has been
a party to any such proceedings for more than the past five years.
vi) Accuracy of Information. The Client has furnished information to
NHOB regarding the business, operations, financial condition
(including financial statements), business plans and biographical
information regarding the Client's directors and officers
(collectively referred to as the "Information Package"). Client
represents and warrants that the Information Package is true,
complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state any
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.
3) Covenants and Agreements.
Client covenants and agrees to the following-
a) Client Certification. Client acknowledges that it is responsible
for the accuracy and completeness of the Information Package and
for all other information furnished to NHOB and for the accuracy
and completeness of the contents of all materials prepared by NTHOB
for and on behalf of Client. The Client hereby designates the
individuals listed on Exhibit B to this Agreement as the duly
authorized representatives of Client for purposes of certifying
to NEOB the accuracy of all documents, advertisements or other
materials prepared by NHOB for and on behalf of Client. The Client
agrees to promptly advise NEOB in WRITING of any condition, event,
circumstance or act that would constitute a material adverse change
in the business, properties, financial condition or business
prospects of the Client or which would make any of the information
contained in the Information Package or in any
document prepared by NHOB for and on behalf of Client misleading
in any material respect.
b) Client hereby agrees that NHOB and its directors, officers, agents
and employees may rely on the Information Package and on all other
information furnished by Client, and on each and every
certification provided by an authorized representative of Client,
until NHOB is advised in writing by an authorized representative of
Client that the information previously furnished to NHOB is
inaccurate or incomplete in any material respect. Client
acknowledges that NHOB shall have no obligation to provide services
hereunder until it has received a written certificate from an
authorized representative of Client as follows- NTHOB shall prepare
proofs and/or tapes of the agreed upon materials and information,
as set for dissemination, for the Client's review and approval and
Client shall sign and return such materials marking all corrections
and changes that the Client believes appropriate. Client
acknowledges that NHOB will make oral representations based on the
information furnished hereunder and the Client authorizes such
representations.
i) Books and Records. Client shall maintain true and complete
books, records and accounts in which true and correct entries
shall be made of its transactions in accordance with generally
accepted accounting principals consistently applied ("GAAP").
ii) Financial and Other Information. Client agrees to furnish to
NHOB the following information:
(1) Annual Financial Statements. As soon as practicable, and
in any event within 90 days after the close of the
Client's fiscal year, annual financial statements
including a balance sheet, an income statement, a
statement of cash flows, and a statement of stockholder's
equity, and all notes thereto prepared in accordance with
GAAP and audited by an independent certified public
accountant.
(2) Quarterly Financial Statements. As soon as practicable,
and in any event within 45 days after the end of each
fiscal quarter, quarterly financial statements, including
a balance sheet, a quarterly and year-to-date income
statement, a statement of cash flows, and a statement of
stockholder's equity, prepared by Client in accordance
with GAAP and certified by the chief financial officer
and chief executive officer of Client as fairly
presenting, subject to normal year-end audit adjustments,
the Client's financial position as of and for the periods
indicated.
(3) Noble House of Boston, Inc. Reliance on Client's Full
Disclosure. Client will provide, or cause to be provided,
to NHOB all financial and other information requested by
NHOB for rendering its services pursuant to this
Agreement. Client recognizes and confirms that NHOB will
use such information in performing the services
contemplated by this Agreement
without independently verifying such information and that
NHOB does not assume any responsibility for the accuracy
or completeness of such information. The persons executing
this Agreement on behalf of Client certify that there is
no fact known to them which materially adversely affects
or may (so far as the Client's senior management can now
reasonably foresee) materially adversely affect the
business, properties, condition (financial or other) or
operations (present or prospective) of the Client which
has not been set forth in written form delivered by Client
to NHOB.
(4) The persons executing this Agreement on behalf of Client
agree to keep NHOB promptly informed of any facts
hereafter know to Client which materially adversely
affects or may (so far as the Client's senior management
can now reasonably foresee) materially adversely affect
the business, properties, condition (financial or other)
or operations (present or prospective) of Client.
(5) Legal Representation. Client acknowledges and agrees that
it has been and will continue to be, represented by legal
counsel experienced in corporate and securities laws and
Client acknowledges that it has been advised as to the
obligations imposed on it pursuant to such laws and
understands that it will have the obligation and
responsibility to see that all such laws are complied with
at all times during the Term of this Agreement.
4) Compensation. In consideration of the Advertising and Promotional Services
to be performed by NHOB hereunder, Client hereby agrees to compensate NHOB
in the manner in the amount specified in Exhibit C which is attached
hereto and incorporated herein by reference thereto. In addition to the
compensation to be paid to NHOB as provided in Exhibit C, Client shall
reimburse NHOB promptly after a written request therefor accompanied by
appropriate documentation, for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of NHOB's counsel, if any)
incurred in connection with providing services hereunder or to the extent
provided in Exhibit C.
5) Indemnity. Client acknowledges that it is responsible for the accuracy
of the Information Package and all other information provided to NHOB and
for the contents of all materials, advertorials and other information
prepared by NHOB for an on behalf of Client as provided herein and Client
agrees to indemnity NHOB in accordance with the Indemnification Agreement
set forth in Exhibit D, which is attached hereto and incorporated herein
by reference.
6) Relationship of the Parties. This Agreement provides for the providing
of marketing, promotional and advertising services by NTHOB to Client and
the provisions herein for compliance with financial covenants, delivery
of financial statements, and similar provisions are intended solely for
the benefit of NHOB to provide it with information on which it may rely
in providing services hereunder and nothing contained in the Agreement
shall be construed as permitting or obligating NBOB to act as a financial
or
business advisor or consultant to Client, as permitting or obligating
NHOB to participate in the management of client's business, as creating
or imposing any fiduciary obligation on the part of NHOB with respect to
provisions of services hereunder and NHOB shall have no such duty or
obligation to client, as providing or counseling Client as to the
compliance by Client with any federal or state securities or other laws
effecting the services to be provided hereunder, or as creating any joint
venture, agency, or other relationship between the parties other than
explicitly and specifically stated in the Agreement. The Client
acknowledges that it has had the opportunity to obtain the advice of
experienced counsel of its own CHOOSING in connection with the negotiation
and execution of the Agreement, the provision of services hereunder and
with respect to all matters contained herein, including, without
limitation, the provisions of Section 4 hereof
7) Survival of Certain Provisions. The Client's obligations to pay the fees
and expenses of NHOB pursuant to Section 3 of this Agreement and to comply
with the indemnification provisions pursuant to Section 4 shall remain
operative and in full force and effect regardless of any termination of
this Agreement and shall be binding upon, and shall inure to the benefit
of, NHOB and in the case of the indemnity agreement, the persons, agents,
employees, officers, directors and controlling persons referred to in
the Indemnification Agreement, and their respective successors and
assigns and heirs, and no other person shall acquire or have any right
under or by virtue of this Agreement. All amounts paid or required to be
paid under Sections 3 and 4 of this Agreement shall be full earned on the
Effective Date of this Agreement notwithstanding prior termination of
this Agreement.
8) Terminatiom NHOB shall have the right in its sole and absolute discretion
to terminate its obligations hereunder and to immediately cease providing
Advertising and Promotional Services pursuant to this Agreement if NHOB,
in the exercise of its reasonable judgement, believes that the
representations and warranties made by Client hereunder are inaccurate in
any material respect or if Client breaches any of its covenants and
agreements continued herein or if any federal or state governmental
agency or instrumentally institutes an investigation or suite against
Client or pertaining to the services hereunder.
9) Non-Solicitation Covenant. Client agrees that it will not directly or
indirectly during the term of this Agreement or for three years following
the termination or expiration of this Agreement, either voluntarily or
involuntarily, for any reason whatsoever, recruit or hire or attempt to
recruit or hire any employee of NEOB or of any of its affiliates or
subsidiaries, or otherwise induce any such employees to leave the
employment of NHOB or of any of its affiliates or subsidiaries or to
become an employee of or otherwise be associated with Client or any
affiliate or subsidiary of Client. Client acknowledges that NHOB and
its affiliates and subsidiaries have invested a significant amount of
time, energy and expertise in the training of their employees to be
able to provide Advertising and Promotional Services and Client
therefore agrees that this covenant is reasonable and agrees that the
breach of such covenant is very likely to result in irreparable injury
to NHOB which is unlikely to be adequately compensated by damages.
Accordingly, in the
event of a breach or threatened breach by Client of this Section 8, NHOB
shall be entitled to an injunction restraining Client and any affiliate,
subsidiary or director or officer thereof from recruiting, or hiring or
attempting to recruit or hire any employee of NHOB or of any affiliate or
subsidiary of NHOB. Nothing herein shall be construed as prohibiting NHOB
from pursuing any other remedies available to NHOB for such breach or
threatened breach, including recovery of damages from Client. The
undertaking herein shall survive the termination or cancellation of the
Agreement for three years.
10) Miscellaneous.
a) Governing Xxx This Agreement shall be governed by the laws of the
State of Florida applicable to contracts executed and performed in
the Circuit Court, Seminole County, in the State of Florida (without
regard to the principles of conflicts of laws)
b) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
c) Cumulation of Rights and Remedies. No right or remedy of NHOB under
this Agreement is intended to preclude any other right or remedy and
every right and remedy shall coexist with every other fight and remedy
now or hereafter existing, whether by contract, at law, or in equity.
d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties and their successors and assigns.
Client shall not have any right to assign any of its rights or
delegate any of its obligations or responsibilities under this
Agreement except as expressly stated herein.
e) Payment of Fees and Expenses on Enforcing Agreement In the event of
any dispute between the parties arising out of or related to this
Agreement or the interpretation thereof, at the trial level or
appellate level, the prevailing party shall be entitled to recover
from the non-prevailing party all costs and expenses, including
reasonable fees and disbursements of counsel which may be incurred
in connection with such proceeding, without limitation, including
any costs and expenses of experts, witnesses, depositions and other
costs.
f) Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing, and shall be delivered to the
parties at the addresses set forth below (or to such other addresses
as the parties may specify by due notice to the others). Notices or
other communications shall be effective when received at the
recipient's location (or when delivered to that location if receipt is
refused). Notices or other communications given by facsimile
transmission shall be presumed received at the time indicated in the
recipient's automatic acknowledgement. Notices or other communications
given by Federal Express or other recognized overnight courier service
shall be presumed received on the following business day. Notices or
other
communications given by certified mail, return receipt requested,
postage prepaid, shall be presumed received three business days after
the date of mailing.
ULTMATE SPORTS ENTERTAINNIENT, INC.
Attn: Xxxxxxxxx X. Xxxxx
Fax: (310)
XXXXX XXXXX XX XXXXXX, X0X.
Attn: Xxxxxxx Xxxxxx, President
Fax: (000) 000-0000
g) Headings. The headings in this Agreement are intended solely for
convenience of reference. They shall be given no effect in the
construction or interpretation of this Agreement.
h) Severability. The invalidity or unenforceability of any provision of
this Agreement shall not impair the validity or enforceability of any
other provision.
In Witness "Whereof, the parties have executed this Agreement as of the
date first above written.
Attest:
By: By: /s/ Xxxxxxxxx X. Xxxxx
Secretary Xxxxxxxxx X. Xxxxx, President
[Corporate Seal)
Attest: NOBLE HOUSE OF BOSTON, INC.
By: /s/ Xxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxx
Secretary Xxxxxxx Xxxxxx, President
[Corporate Seal]
EXHIBIT A
Advertising and Promotional Services
The services to provided are as follows:
1. NHOB will contact market makers, money managers, fund managers, hedge
fund managers and/or a minimum of eighteen hundred (1,800) retail
brokers who will review Client's company. This process will begin
immediately upon NHOB receiving the compensation and expense
advancement as set forth Exhibit "C", and the Client's current
shareholder list and printed materials. Follow-up with shareholders,
brokers, funds and institutions will be done as well.
2. NHOB will distribute the Information Package to all inquiring brokers.
The Client shall supply the necessary materials for the Information
Package and update it on a continual basis at Client's cost. If
Client requests assistance from NHOB in assembling and/or creating
a typical Information Package, then NHOB will charge Client for its
assistance. NHOB's charges for assisting Client in assembling
and/or creating the Information Package shall be an expense item
and invoiced under term net 30 days. The cost of mailing the
Information Package to all inquiring brokers shall be an expense
item and shall be invoiced under term net 30 days.
3. Preparation of a customized Client "Bullet Sheet," a one-page investor
fact sheet, is to be sent to every broker who shows interest in the
Client's stock.
4. NHOB shall research prepare and publish the "The Buy-Line Report" an
(8) to (10) page special report, providing an in-depth overview of
Client. This marketing piece is specifically targeted to investors
and brokers interested in the emerging growth sector of the
financial market.
5. NHOB will provide assistance in review of documentation to be sent to
brokers. If travel is required, the Client will pay transportation and
hotel expenses for NHOB's employees. The transportation and hotel
expenses shall be an expense item and invoiced under term net 30 days
or paid in advance by Client.
6. NHOB will arrange a Due Diligence Dinner meeting. This meeting will
include a corporate overview presentation by the Client's top
management. The Client shall pay all of the costs of the Due
Diligence Dinner meeting, including, but not limited to, the
invitations, the meeting room, meals, beverages, and the
facilitator employed to coordinate the dinner and the meeting. The
cost of the Due Diligence Dinner meeting is an expense advancement
item.
7. Wall Street Watchdog, NHOB's media arm, will provide Client with a
number of channels to market:
A) An interview or advertorial on "The Wall Street Watchdog Radio
Show," a weekly one hour investment program reaching two million
people.
B) Sixty-second commercials on the Watchdog radio show promoting
your company. Leads generated off the show would go through
NHOB broker network for follow-up.
C) "The Wall Street Watchdog Alert," a condensed corporate profile
transmitted by fax to over 3,000 brokers. This newsletter will be
sent out a second time with an update.
D) We will market Client through The Watchdog Wire Service, a
comprehensive database of financial media along with buy and sell
side institutions. It contains over 300,000 contacts such as
analysts, portfolio managers, brokers, institutional investors
and many more.
E) Consultation with Client on their web site in order to make it
more investor-friendly or if a web site doesn't exist,
consultation on developing and maintaining a company web site.
F) "The Wall Street Watchdog Report," a two page snapshot of your
company that includes interviews with top management personnel,
updated news on Client and reasons why to invest in Client.
H) WSW will provide public relations exposure on Client press
releases to newsletter writers, trade publications and financial
GURUS. WSW will also provide story ideas on Client for feature
articles to generate investor awareness of Client.
8. Performance by Client.
A) Client is required to do a Standard & Poor's listing at the
Client's expense.
B) Client is required to provide NHOB with all S& P listings on
their attorney's letterhead.
C) Client will provide its shareholders with audited financials on a
yearly basis and unaudited financials on quarterly basis.
D) Client will use its reasonable best efforts to register or
qualify any shares of common stock of Client under the securities
or blue sky laws
of such jurisdictions as any broker or market maker may
reasonably request and do any and all other acts and things
which may be reasonably necessary or advisable to enable such
broker or market maker to consummate the disposition in such
jurisdictions of shares of common stock of Client, provided that
the Client will not be required to (1) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this Section (2) subject itself to
taxation in any such jurisdiction or (3) consent to general
service of process in any such jurisdiction.
The parties hereto by signing this Exhibit in the space provide below
signify their agreement regarding the service to be provided by NHOB under
the Agreement.
ULTIMATE SPORTS ENTERTAINMENT, INC.
By: /s/ Xxxxxxxxx X. Xxxxx,President
Xxxxxxxxx X. Xxxxx, President
NOBLE HOUSE OF BOSTON, INC.
By: /s/ Xxxxxxx Xxxxxx,President
Xxxxxxx Xxxxxx, President
EXHIBIT B
Client hereby designates the following person or persons to act on its
behalf for the purpose set forth in Section 2.B. (1) of the Agreement.
/S/ Xxxxxxxxx X. Xxxxx /s/ FR LICHT
DIRECTOR (PLEASE SIGN) DIRECTOR (PLEASE PRINT)
PRESIDENT (PLEASE SIGN) PRESIDENT (PLEASE PRINT)
/s/Xxxx Xxxxxxxxx
VICE PRESIDENT (PLEASE SIGN) VICE PRESIDENT (PLEASE PRINT)
EXHIBIT C
COMPENSATION
1. Upon the execution and delivery of the Agreement, Client agrees to
remit to NEOB in cash or, at the option of Client, to issue NHOB two hundred
thousand (200,000) shares of unrestricted Common Stock of the Client (the
"Shares"), which Shares shall be duly and validly issued, fully paid and
nonassessable and shall not be issued in violation of any preemptive right of
any stockholders of Client. The Shares will be issued in compliance with the
requirements of the Securities Act of 1933 (the "Act) and the General Rules
and Regulation promulgated under the Act and shall be unrestricted,
unencumbered and freely tradable on the stock exchange or other electronic
trading system on which the Shares are listed for trade.
2. Client shall pay to NHOB one hundred fifty thousand restricted
Shares, concurrently with the issuance of the Shares, Client will execute and
deliver the Registration Rights Agreement attached hereto as Exhibit E under
which the Client agrees to register the Shares for sale in compliance with
the Act and to comply with all conditions necessary or required to enable the
Shares to be sold pursuant to the General Rules and Regulation under the Act.
3. The Shares, if any, to be issued to NHOB shall be approved for
issuance in accordance with the rules and regulations of any stock exchange
or other electronic trading system on which the Shares are listed for trading
and shall be issued in compliance with all appropriate federal or state
governmental rules and regulations.
4. Client acknowledges that the consideration to be paid to NHOB shall
be fully earned on the date that NHOB commences providing services under the
Agreement.
5. Client agrees to pay or reimburse NHOB for all expenses arising out
of or related to the provision of services by NHOB under the Agreement to the
extent provided in the Agreement and/or in Exhibit A thereto.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the compensation provisions contained herein.
Ultimate Sports Entertainment, Inc.
By: /s/Xxxxxxxxx X. Xxxxx, Pres.
Xxxxxxxxx X. Xxxxx, President
NOBLE HOUSE OF BOSTON, INC.
By: /s/Xxxxxxx Xxxxxx Pres.
Xxxxxxx Xxxxxx, President
EXHIBIT D
INDEMNIFICATION
Client acknowledges and agrees that if, in connection with the services
or matters that are the subject of or arise out of such Agreement, NHOB
becomes involved (whether or not as a named party) in any action, claim or
LEGAL proceeding (including any governmental inquiry or investigation),
Client agrees to reimburse NHOB for its reasonable legal fees, disbursements
of counsel and other expenses (including the cost of investigation and
preparation) as they are incurred by NHOB. Client also agrees to indemnify
and hold NHOB harmless against any losses, claims, damages or liabilities,
joint or several, as incurred, to which NHOB may become subject in connection
with the services or matters which are the subject of or arise out of the
Agreement; provided, however, that Client shall not be liable under the
foregoing indemnity in respect of any loss, claim, damage or liability to the
extent that a court having jurisdiction shall have determined by a final
judgment that such loss, claim, damage or liability is a consequence of
intentional fraudulent acts committed by NHOB without the knowledge and/or
consent of Client. In the event that the foregoing indemnity is unavailable
by operation of law, the Client shall contribute to amounts paid or payable
by NHOB in respect of such losses, claims, damages and liabilities in the
proportion that Client's interest bears to NHOB 's interest in ihe matters
contemplated by the Agreement. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, or
otherwise, the Client shall contribute to such amount paid or payable by NHOB
in such proportion as is appropriate to reflect not only such relative
interests but also the relative fault of Client on the one hand and NHOB on
the other hand in connection with the matters as to which such losses,
claims, damages or liabilities relate and other equitable considerations.
Promptly after NHOB 's receipt of notice of the commencement of any
action or of any claim, NHOB will, if a claim in respect thereof is to be
made against Client under this Indemnity Agreement, notify Client of the
commencement thereof In case any such action or claim is brought against
NHOB, Client will be entitled to participate therein and, to the extent that
Client may wish, to assume the defense thereof, with counsel satisfactory to
NHOB. After notice form Client to NHOB of Client's election to so assume the
defense thereof, Client will not be liable to NHOB for indemnification as
provided in the preceding paragraph for any legal fees, disbursements of
counsel or other expenses subsequently incurred by NHOB, in connection with
the defense thereof other than reasonable costs of investigation; provided
that NHOB shall have the right to employ separate counsel if, in the
reasonable judgment of NHOB 's counsel, it is advisable for NHOB to be
represented by separate counsel or if in the reasonable judgement of NHOB 's
counsel, Client is not vigorously and actively defending against any such
claim of claims, and in either such event the reasonable legal fees and
disbursements of such separate counsel shall be paid by Client.
The foregoing agreements shall apply to any modification of the
Agreement, shall remain in full force and effect following the completion or
termination of NHOB 's
engagement under the Agreement and shall be in addition to any rights that
NHOB may have at common law or otherwise. The agreements in this
Indemnification Agreement shall extend to and inure to the benefit of each
person, if any, who may be deemed to control NHOB, be controlled by NHOB or
be under common control with NHOB and to NHOB 's, and to each such other
person's respective affiliates, directors, officers, employees and agents.
This Indemnification Agreement shall be binding on any successor Client.
Client represents that the Indemnification Agreement contained herein
is the legal, valid, binding and enforceable obligation of Client,
enforceable against Client according to its terms.
This Indemnification Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without regard to
principles of conflicts of law, and the forum for resolution of legal and
interpretative issues shall be the Federal District courts in the State of
Florida.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the indemnification provisions contained herein.
Ultimate Sports Entertainment, Inc.
By: /s/Xxxxxxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxx, President
NOBLE HOUSE OF BOSTON, INC.
By: /s/Xxxxxxx Xxxxxx -
Xxxxxxx Xxxxxx, President
EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement") is made and entered into as of April 5, 1999 by and between Noble
House of Boston, Inc., a Florida corporation (NHOB), and Ultimate Sports
Entertainment, Inc., a Nevada corporation (the Client).
WHEREAS, NHOB concurrently with the execution of this Registration
Rights Agreement is acquiring shares of the Client's common stock, par value
$001 per share ("Common Stock") and/or options to purchase shares of Common
Stock; and
WHEREAS, as a condition to such acquisition, the parties are willing to
enter into the agreements contained herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. DEFINITIONS
"Affiliate" means, with respect to any Person, any other Person
which, directly or indirectly, controls, is controlled by or is under common
control with such Person.
"Agreement" means the Public Relations and Advertising Agreement
dated as of the date of this Registration Rights Agreement between NHOB and
Client.
"Client" is defined in the Preamble to this Registration Rights
Agreement.
"Common Stock" is defined in the Recitals to this Registration
Rights Agreement.
"NHOB" is defined in the Preamble to this Registration Rights
Agreement.
"Holder" is defined in Section 2.1 hereof
"Lock-Up Period" is defined in Section 2.1 hereof
"Options" mean the Options issuable, in certain circumstances,
pursuant to the Agreement, which are exercisable for Common Stock.
"Other Holders" is defined in Section 4.3 hereof
"Permitted Transfer" is defined in Section 2.2 hereof
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and government or any
department or agency thereof
"Piggyback Notice" is defined in section 4.1 hereof
"Piggyback Registration" is defined in Section 4.1 hereof
"Registerable Securities" means (i) the Common Stock issued to
NHOB pursuant to the Agreement, (ii) any Common Stock issued to NHOB pursuant
to the exercise of Options, and (iii) any securities issued or issuable with
respect to the Common Stock referred to in clauses (i) or (ii) by way of
replacement, share dividend, share split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization.
"Registration Rights Agreement" is defined in the Preamble to the
Registration Rights Agreement.
"Registration Expenses" is defined in Section 6.1 hereof
"Restricted Securities" is defined in Section 2.1 hereof
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
"Transfer" is defined in Section 2.1 hereof
Section 2. RESTRICTIONS ON TRANSFER
2.1 LOCK-UP PERIOD. Without the express prior written consent of
the Client, NHOB agrees that, except as set forth in Section 2.2 below, it
will not, directly or indirectly, offer, sell, contract to sell or otherwise
dispose of (or announce any offer, sale, contract of sale or other
disposition of) ("Transfer") any Registerable Securities of Options
(collectively, "Restricted Securities") prior to the first anniversary
following the date of this Registration Rights Agreement.
2.2 PERMITTED TRANSFERS. The restrictions contained in this
Section 2 will not apply with respect to any of the following transactions
(each, a "Permitted Transfer"):
2.2.1 a natural person may Transfer Restricted Securities to
his or her spouse, siblings, parents or any natural or adopted children or
other descendants or to any personal trust in which such family members or
such transferee retains the entire beneficial interest;
2.2.2 NHOB may (A) Transfer Restricted Securities to one or
more other entities that are wholly owned and controlled, legally and
beneficially, by NHOB or an Affiliate, or (B) Transfer Restricted Secunities
by distributing such Restricted Securities in a liquidation, winding up or
otherwise without consideration to the equity owners of such corporation,
partnership or business entity or to any other corporation, partnership or
business entity that is wholly owned by such equity owners; or (C) Transfer
Restricted Securities to a director, officer or key employee of NHOB or
Affiliate;
2.2.3 a transferee acquiring Restricted securities in a
Permitted Transfer may Transfer Restricted Securities on his or her death or
mental incapacity to such Person's estate, executor, administrator or
personal representative or to such Person's beneficiaries pursuant to a
devise or bequest or by the laws of descent and distribution; or
2.2.4 NHOB or any transferee acquiring Restricted Securities
in a Permitted Transfer may Transfer Restricted Securities pursuant to an
effective Registration Statement as provided herein or pursuant to an
exemption from the registration requirements of the Securities Act.
If any Person Transfers Restricted Securities as described in this Section
2.2, such Restricted Securities shall remain subject to the Registration
Rights Agreement and, as condition of the validity of such Transfer, the
transferee shall be required to execute and deliver a counterpart of this
Registration Rights Agreement. Thereafter, such transferee shall be deemed a
Holder for purposes of this Registration Rights Agreement.
2.3 RIGHTS OF SUBSEQUENT HOLDER. Subject to the forgoing
restrictions, the Client and NHOB hereby agree that any subsequent holder of
Registerable Securities shall be entitled to all benefits hereunder as a
holder of such securities.
Section 3. DEMANDS FOR REGISTRATION.
1.1 DEMAND PERIOD From the date hereof, until the date which is
four years from the date hereof (the "Demand Period"), subject to the terms
and conditions of this Registration Rights Agreement, NHOB and the Permitted
Transferees will have in the aggregate three opportunities, in addition to
other rights enumerated in this Registration Pights Agreement, to request
registration under the Securities Act of all or part of itsRegisterable
Securities (a "Demand Registration"). The Holders of 50% or more of the
Registerable Securities shall have the right to exercise the registration
rights under this Section 3.
3.2 DEMAND PROCEDURE.
3.2.1. Subject to Sections 3.2.2 and 3.2.4 below, during the
Demand Period any Holder or combination of Holders (the "Demanding
Shareholders") owning 50%
or more of the Registerable Securities may deliver to the Client a written
request (a "Demand Registration Request") that the Client register any or all
such Demanding Shareholders' Registerable Shares.
3.2.2 Holders, taken together, may only make one Demand
Registration Request in each six-month period during the Demand Period (the
"Interim Demand Periods"). The Client shall only be required to file one
registration statement (as distinguished from supplements or pre-effective or
post-effective amendments thereto) in response to each Demand Registration
Request.
3.2.3 A Demand Registration Request from Demanding
Shareholders shall (i) set forth the number of Registerable Securities
intended to be sold pursuant to the Demand Registration Request (ii) disclose
whether all or any portion of a distribution pursuant to such registration
will be sought by means of an underwriting, and (iii) identify any managing
underwriter or managing underwriters proposed for the underwritten portion,
if any, of such registration.
3.2.4 If during any Interim Demand Period, the Client
receives a Demand Registration Request from Demanding Shareholders for the
registration of 9 Registerable Securities having an aggregate market value of
$100,000 or greater, as determined according to the closing price of the
Common Stock on the NASDAQ National Market, on the Bulletin Board or in the
Pink Sheets on the date of such Demand Registration Request, then the Client
shall, subject to the limitations in Sections 3.2.5 and 3.2.6 hereof, (i) use
its reasonable best efforts to prepare and file within 330 days of receipt of
the Demand registration request with the SEC a registration statement under
the Securities Act with respect to all Registerable Securities that the
Demanding Shareholders requested to be registered in the Demand Registration
Request, (ii) use its reasonable best efforts to cause such registration
statement to become effective within 75 days of receipt of the Demand
Registration Request, and (iii) if such registration can be accomplished by
means of a registration statement on Form S-3, keep such registration
statement effective until such time as the Demanding Shareholders shall have
sold or otherwise disposed of all of their Reaisterable Securities included
in the registration. If such registration cannot be accomplished by means of
a registration statement on Form S-3, the Client shall use its reasonable
best efforts to keep such registration statement effective for at least 180
days.
3.2.5 The parties anticipate that the registration
contemplated under this Section 3) will be accomplished by means of the
filing of a Form S-3, and that registration on such form will allow for
different means of distribution, including sales by means of an underwriting
as well as sales into the open market. If the Demanding Shareholders desire
to distribute all or part of the Registerable Securities covered by their
request by means of an underwriting, they shall so advise the Client in
writing in their initial Demand Registration Request as described in Section
3.2.3 above. A determination of whether all or part of the distribution will
be by means of an underwriting shall be made by Demanding Shareholders
holding a majority of the Registerable Securities to be included in the
registration. If all or part of the distribution is to be by means of an
underwriting, all subsequent decisions concerning the underwriting which are
to be made by the Demanding
Shareholders pursuant to the terms of this Registration Rights Agreement,
which shall include the selection of the underwriter or underwriters to be
engaged and the representative, if any, of the underwriters so engaged, shall
be made by the Demanding Shareholders who hold a majority of the Registerable
Securities to be included in the underwriting, subject to approval by the
Board of Directors of the Client.
3.2.6 Upon the receipt by the Client of a Demand Registration
Request in accordance with Section 3.2.4 hereof, the Client shall, within ten
days following receipt of such Demand Registration Request, give written
notice of such request to Holders. The Client shall include in such notice
information concerning whether all, part or none of the distribution is
expected to be made by means of an underwriting, and, if more than one means
of distribution is contemplated, may require Holders to notify the Client of
the means of distribution of their Registerable Securities to be included in
the registration. If any Holder who is not a Demanding Shareholder desires to
sell any Registerable Securities owned by such Holder, such Holder may elect
to have all or any portion of its Registerable Securities included in the
registration statement by notifying the Client in writing (a "Supplemental
Demand Registration Request") within 20 days of receiving notice of the
Demand Registration Request from the Client. The right of any Holder to
include all or any portion of its Registerable Securities in an underwriting
shall be conditioned upon the Client's having received a timely written
request for such inclusion by way of a Demand Registration Request or
Supplemental Demand Registration Request (which right shall be further
conditioned to the extent provided in this Registration Rights Agreement). AN
Holders proposing to distribute their Registerable Securities through an
underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting.
3.2.7 Notwithstanding any other provision of this Section 3,
if an under-writer advises the Client in writing that marketing factors
require a limitation on the number of shares to be underwritten, then the
number of shares of Registerable Securities that may be included in the
underwriting shall be allocated among the Holders in proportion (as nearly as
practicable) to the respective amounts of Registerable Securities each Holder
owns (or in such other proportion as they shall mutually agree). Registerable
Securities excluded or withdrawn from the underwriting in accordance with
this Section 3.2.7 shall be withdrawn from the registration.
3.3 PRIORITY ON REQUEST REGISTRATION. The Client will not include
in any Demand Registration any securities which are not Registerable
Securities without the prior written consent of the Holders of a majority of
the shares of Registerable Securities included in such registration. If a
Demand Registration is an underwritten offering and the managing underwriters
advise the Client in writing that in their opinion the number or Registerable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of securities that can be sold
in an orderly manner in such offering within a price range acceptable to the
Holders of a majority of the shares of Registerable Securities initially
requesting registration, the Client will include in such registration prior
to the inclusion of any securities which are not Registerable Securities the
number of shares of Registerable Securities requested to be included that in
the opinion of
such underwriters can be sold in an orderly manner within such acceptable
price range, pro rata among the respective Holders thereof on the basis of
the number of shares of Registerable Securities owned by each such Holder.
Section 4. PIGGYBACK REGISTRATIONS
4.1 RIGHT TO PIGGYBACK. If the Client proposes to undertake an
offering of shares of Common Stock for its account or for the account of
other stockholders and the registration form to be used for such offering may
be used for the registration of Registerable Securities (a "Piggyback
Registration"), each such time the Client will give prompt written notice to
all Holders of Registerable Securities of its intention to effect such a
registration (each, a "Piggyback Notice") and, subject to Sections 4.3 and
4.4 hereof, the Client will use its best efforts to cause to be included in
such registration all Registerable Securities with respect to which the
Client has received written requests for inclusion therein within 20 days
after the date of sending the Piggyback Notice.
4.2 PRIORITV ON PRIMARV REGISTRATIONS. If a Piggyback Registration
is an under-written primary registration on behalf of the Client, and the
managing underwriters advise the Client in writing that in their opinion the
number of securities requested to be included in such registration exceeds
the number that can be sold in an orderly manner within a price range
acceptable to the Client, the Client will include in such registration (a)
first, the securities the Client proposes to sell and (b) second, the
Registerable Securities requested to be included in such registration and any
other securities requested to be included in such registration that are held
by Persons other than the Holders of Registerable Securities pursuant to
registration rights, pro rata among the holders of Registerable Securities
and the holders of such other securities requesting such registration on the
basis of the number of shares of such securities owned by each such holder.
4.3 PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders
of the Client's securities other than the Holders of Registerable Securities
(the "Other Holders"), and the managing underwriters advise the Client in
writing that in their opinion the number of securities requested to be
included in such registration exceeds the number that can be sold in a
orderly manner in such offering within a price range acceptable to the Other
Holders requesting such registration, the Client will include in such
registration (a) first, the securities requested to be included therein by
the Other Holders requesting such registration and (b) second, the
Registerable Securities requested be include in such resignation hereunder,
pro rata amount the Holders of Registerable Securities requesting such
registration on the basis of the number of shares of such securities
owned by each such Holder.
4.4 SELECTION OF UNDERWRITERS. In the case of an underwritten
Piggyback Re2istration, the Client will have the right to select the
investment banker(s) and managers(s) to administer the offering.
Section 5. REGISTRATION PROCEDURES.
5.1 REGISTRATION. Whenever the Holders of Registerable Securities
have requested that any Registerable Securities be sold pursuant to this
Registration Rights Agreement, the Client will use its reasonable best
efforts to effect the registration and the sale of such Registerable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Client will as expeditiously as possible:
5.1.1 REGISTRATION STATEMENT. Prepare and file with the SEC a
registration statement with respect to such Registerable Securities and use
its reasonable best efforts to cause such registration statement to become
effective.
5.1.2 AMENDMENTS AND SUPPLEMENTS. -Promptly prepare and file
with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for the period required by the intended
method of disposition and the terms of this Registration Rights Agreement and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement.
5.1.3 PROVISIONS OF COPIES. Promptly furnished to each seller
of Registerable Securities the number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such seller may reasonably request in order to facilitate
the disposition of the Registerable Securities owned by such seller.
5.1.4 BLUE SKY LAWS. Use its reasonable best efforts to
register or qualify such Registerable Securities under the securities or blue
sky laws of such jurisdictions as any seller reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable
to enable such seller to consummate the disposition in such jurisdictions of
the Registerable Securities owned by such seller, PROVIDED, that the Client
will not be required to (a) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 5.1.4, (b) subject itself to taxation in any such jurisdiction or (c)
consent to general service of process in any such jurisdiction.
5.1.5 ANTI-FRAUD RULES. Promptly notify each seller of such
Registerable Securities when a prospectus relating thereto is required to be
delivered under Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains an
untrue statement of a material fact or omits any material fact necessary to
make the statements therein not misleading, and in such event, at the request
of any such seller, the Client will promptly prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registerable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading, PROVIDED,
that the Client will not take any action which causes the prospectus included
in such registration statement to contain an untrue statement of material
fact or omit any material fact necessary to make the statements therein not
misleading, except as permitted by Section 5.5.
5.1.6 SECURITIES EXCHANGE LISTING. Use its reasonable best
efforts to cause all such Registerable Securities to be listed on each
securities exchange on which securities of the same class issued by the
Client are then listed and use its reasonable best efforts to qualify such
Registerable Securities for trading on each system on which securities of the
same class issued by the Client are then qualified.
5.1.7 UNDERWRITING AGREEMENT. Enter into such customary
agreements (including underwriting agreements in customary form) and take all
such other actions as the holders of a majority of the shares of
Registerable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities.
5.1.8 DUE DILIGENCE. Make available for inspection by any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent corporate documents
and properties of the Client, and cause the Client's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such underwriter, attorney, accountant or agent in
connection with such registration statement.
5.1.9 EARNING STATEMENT. Otherwise use its best efforts to
comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning
with the first day of the Client's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section I I (a) of the Securities Act and Rule 158
thereunder.
5.1.10 DEEMED UNDERWRITERS OR CONTROLLING PERSONS. Permit any
Holder of Registerable Securities which Holder, in such Holder's reasonable
judgment, might be deemed to be an underwriter or a controlling person of the
Client, to participate in the preparation of such registration or comparable
statement and to require the insertion therein of material in form and
substance satisfactory to such Holder and to the Client and furnished to the
Client in writing, which in the reasonable judgment of such Holder and its
counsel should be included.
5.1.11 MANAGEMENT AVAILABILITY. In connection with
under-written offerings, make available appropriate management personnel for
participation in the preparation and drafting of such registration comparable
statement, for due diligence meetings and for "road show" meetings.
5.1.12 STOP ORDERS. Promptly notify Holders of the
Registerable Securities of the threat of issuance by the SEC of any stop
order suspending the effectiveness
of the registration statement or the initiation of any proceeding for that
purpose, and make every reasonable effort to prevent the entry of any order
suspending the effectiveness of the registration statement. In the event of
the issuance of any stop order suspending the effectiveness of a registration
statement, or of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any Registerable Securities
included in such registration statement for sale in any jurisdiction, the
Client will use its reasonable best efforts promptly to obtain the withdrawal
of such order.
5.1.13 OPINIONS. At each closing of an under-written
offering, request opinions of counsel to the Client and updates thereof
(which opinions and updates shall be reasonably satisfactory to the
underwriters of the Registerable Securities being sold) addressed to the
underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders or their counsel.
5.1.14 COMFORT LETTER. Obtain a cold comfort letter and
related bring down letters from the Client's independent public accountants
addressed to the selling Holders of Registerable Securities in customary form
and covering such matters of the type customarily covered by cold comfort
letters as the Holders of a majority of the Registerable Securities being
sold reasonably request.
5.2 FURTHER INFORMATION. The Client may require each Holder of
Registerable Securities to furnish to the Client in writing such information
regarding the proposed distribution by such Holder of such Registerable
Securities as the Client may from time to time reasonably request.
5.3 NOTICE TO SUSPEND OFFERS AND SALES. Each Investor severally agrees
that, upon receipt of any notice from the Client of the happening of any
event of the kind described in Sections 5.1.5 or 5.1.12 hereof, such Investor
will forthwith discontinue disposition of shares of Common Stock pursuant to
a registration hereunder until receipt of the copies of an appropriate
supplement or amendment to the prospectus under Section 5.1.5 or until the
withdrawal of such order under Section 5.1.12.
5.4 REFERENCE TO HOLDERS. If any such registration or comparable
statement refers to any Holder by name or otherwise as the holder of any
securities of the Client and if, in the Holder's reasonable judgement, such
Holder is or might be deemed to be a controlling person of the Client, such
Holder shall have the right to require (a) the insertion therein of language
in form and substance satisfactory to such Holder and the Client and
presented to the Client in writing, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation by such
Holder of the investment quality of the Client's securities covered thereby
and that such holdings does not imply that such Holder will assist in meeting
any future financial requirements of the Client, or (b) in the event that
such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of
the reference to such Holder, PROVIDE that with respect to this clause (b)
such Holder shall furnish to the Client an opinion of
counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Client.
5.5 CLIENT'S ABILITY TO POSTPONE. Notwithstanding anything to the
contrary contained herein, the Client shall have the right twice in any
twelve month period to postpone the filing of any registration statement
under Sections 3 or 4 hereof or any amendment or supplement thereto for a
reasonable period of time (all such postponements not exceeding 90 days in
the aggregate in any twelve month period) if the Client furnishes the Holders
of Registerable Securities a certificate signed by the Chairman of the Board
of Directors or the President of the Client stating that, in its good faith
judgment, the Client's Board of Directors (or the executive committee thereoO
has determined that effecting the registration at such time would materially
and adversely affect a material financing, acquisition, disposition of assets
or stock, merger or other comparable transaction, or would require the Client
to make public disclosure of information the public disclosure of which would
have a material adverse effect upon the Client.
Section 6. REGISTRATION EXPENSES.
6.1 EXPENSE BORNE BY CLIENT. Except as specifically otherwise
provided in Section 6.2 hereof, the Client will be responsible for payment of
all expenses incident to any registration hereunder, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, road show expenses, advertising expenses and fees and disbursements
of counsel for the Client and all independent certified public accountants
and other Persons retained by the Client in connection with such registration
(all such expenses borne by the Client being herein called the "Registration
Expenses").
6.2 EXPENSE BORNE BY SELLING SECURITYHOLDERS. The selling
securityholders will be responsible for payment of their own legal fees (if
they retain legal counsel separate from that of the Client), underwriting
fees and brokerage discounts, commissions and other sales expenses incident
to any registration hereunder, with any such expenses which are common to the
selling securityholders divided among such securityholders (including the
Client and holders of the Client's securities other than Registerable
Securities, to the extent that securities are being registered on behalf of
such Persons) pro rata on the basis of the number of shares being registered
on behalf of each such securityholder, or as such securityholders may
otherwise agree.
Section 7. INDEMNIFICATION SECTION.
7.1 INDEMNIFICATION BY CLIENT. The Client agrees to indemnify, to
the fullest extent permitted by law, each Holder of Registerable Securities
and each Person who controls (within the meaning of the Securities Act) such
Holder against all loses, claims, damages, liabilities and expenses in
connection with defending against any such losses, claims, damages and
liabilities or in connection with any investigation or inquiry, in each case
caused by or based on any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus
or any amendment thereof
counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Client.
5.5 CLIENT'S ABILITY TO POSTPONE. Notwithstanding anything to the
contrary contained herein, the Client shall have the right twice in any
twelve month period to postpone the filing of any registration statement
under Sections 3 or 4 hereof or any amendment or supplement thereto for a
reasonable period of time (all such postponements not exceeding 90 days in
the aggregate in any twelve month period) if the Client furnishes the Holders
of Registerable Securities a certificate signed by the Chairman of the Board
of Directors or the President of the Client stating that, in its good faith
Judgment, the Client's Board of Directors (or the executive committee
thereof) has determined that effecting the registration at such time would
materially and adversely affect a material financing, acquisition,
disposition of assets or stock, merger or other comparable transaction, or
would require the Client to make public disclosure of information the public
disclosure of which would have a material adverse effect upon the Client.
Section 6. REGISTRATION EXPENSES.
6.1 EXPENSE BORNE BY CLIENT. Except as specifically otherwise
provided in Section 6.2 hereof, the Client will be responsible for payment of
all expenses incident to any registration hereunder, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, road show expenses, advertising expenses and fees and disbursements
of counsel for the Client and all independent certified public accountants
and other Persons retained by the Client in connection with such registration
(all such expenses borne by the Client being herein called the "Registration
Expenses").
6.2 EXPENSE BORNE BY SELLING SECURITYHOLDERS. The selling
securityholders will be responsible for payment of their own legal fees (if
they retain legal counsel separate from that of the Client), underwriting
fees and brokerage discounts, commissions and other sales expenses incident
to any registration hereunder, with any such expenses which are common to the
selling securityholders divided among such securityholders (including the
Client and holders of the Client's securities other than Registerable
Securities, to the extent that securities are being registered on behalf of
such Persons) pro rata on the basis of the number of shares being registered
on behalf of each such securityholder, or as such securityholders may
otherwise agree.
Section 7. INDEMNIFICATION -SECTION.
7.1 INDEMNIFICATION BY CLIENT. The Client agrees to indemnify, to
the fullest extent permitted by law, each Holder of Registerable Securities
and each Person who controls (within the meaning of the Securities Act) such
Holder against all loses, claims, damages, liabilities and expenses in
connection with defending against any such losses, claims, DAMAGES and
liabilities or in connection with any investigation or inquiry, in each case
caused by or based on any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus
or any amendment thereof
or supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arise out of any violation by the Client of any rules or
regulation promulgated under the Securities Act applicable to the Client and
relating to action or inaction required of the Client in connection with such
registration, except insofar as the same are (1) contained in any information
furnished in writing to the Client by such Holder expressly for use therein,
(ii) caused by such Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto, or (iii)
caused by such Holder's failure to discontinue disposition of shares after
receiving notice from the Client pursuant to Section 5.3 hereof In connection
with an underwritten offering, the Client will indemnify such underwriters,
their officers and directors and each Person who controls (within the meaning
of the Securities Act) such underwriters at least to the same extent as
provided above with respect to the indemnification of the Holders of
Registerable Securities.
7.2 INDEMNIFICATION BY HOLDER. In connection with any registration
statement in which a Holder of Registerable Securities is participating, each
such Holder will furnish to the Client in writing such information as the
Client reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify
the Client, its directors and officers and each Person who controls (within
the meaning of the Securities Act) the Client against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement or omission is contained in
any information so furnished in writing by such Holder expressly for use in
connection with such registration; provided that the obligation to indemnify
will be individual to each Holder and will be limited to the net amount of
proceeds received by such Holder from the sale of Registerable Securities
pursuant to such registration statement. In connection with an underwritten
offering, each such Holder will indemnify such underwriters, their officers
and directors and each Person who controls (within the meaning of the
Securities Act) such underwriters at least to the same extent as provided
above with respect to the indemnification of the Client.
7.3 ASSUMPTION OF DEFENSE BY INDEMNIFYING PARTY. Any Person
entitled to indemnification hereunder will (a) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks
indemnification and (b) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably satisfactory to
the indemnified party. If such defense is assumed, the indemnifying party
will not be subject to any liability for anv settlement made by the
indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim. unless in the reasonable
judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified
parties with respect to such claim.
7.4 BINDING EFFECT. The indemnification provided for under this
Registration Rights Agreement will remain in full force and effect regardless
of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and will
survive the transfer of securities. The Client also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Client's indemnification is
unavailable for any reason. Each Holder or Registerable Securities also
agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event such Holder's
indemnification is unavailable for any reason.
Section 8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person-s securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Section 9. MISCELLANEOUS.
9.1 NO INCONSISTENT AGREEMENTS. The Client will not hereafter enter
into any agreement with respect to its securities, which violates the rights
granted to the Holders of Registerable Securities in this Registration Rights
Agreement.
9.2 REMEDIES. Any Person having rights under any provision of this
Registration Rights Agreement will be entitled to enforce such rights
specifically to recover damages caused by reason of any breach of any
provision of this Registration Rights Agreement and to exercise all other
rights granted by law. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provision of this
Registration Rights Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without
posting any bond or other security) for specific performance and for other
injunctive relief in order to enforce or prevent violation of the provisions
of this Registration Rights Agreement.
9.3 TERM. Except for the provisions of Section 7 or as specifically
otherwise provided herein, the provisions of this Registration Rights
Agreement shall apply until such time as all Registerable Securities have
ceased to be Registerable Securities hereunder but in
no event later than three years from the date of this Registration Rights
Agreement.
9.4 AMENDMENTS AND WAIVERS. Except as otherwise specifically
provided herein, this Registration Rights Agreement may be amended or waived
only upon the prior written consent of the Client and of the Holders of a
majority of the then outstanding shares of Registerable Securities
9.5 SUCCESSORS AND ASSIGNS. Subject to Section 2 hereof, all
covenants and agreements in this Registration Rights Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of (i)
the respective successors and assigns of the parties hereto whether so
expressed or not and (ii) the persons referred to in clause (iv) of the
definition of Registerable Securities. In addition, whether or not any
express assignment has been made but subject in any case to Section 2 hereof,
the provisions of this Registration Rights Agreement which are for the
benefit of NHOB or Holders of Registerable Securities are also for the
benefit of, and enforceable by, any subsequent holder of such securities so
long as such securities continue to be restricted securities, as that term is
defined in Securities Act Rule 144.
9.6 SEVERABILITY. Whenever possible, each provision of this
Registration Rights Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Registration Rights Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Registration Rights Agreement.
9.7 COUNTERPARTS. This Registration Rights Agreement may be
executed simultaneously in multiple counterparts, any one of which need not
contain the signatures of more than one party, but all such counterparts
taken together will constitute one and the same Registration Rights Agreement.
9.8 DESCRIPTIVE HEADINGS. The descriptive headings of this
Registration Rights Agreement are inserted for convenience only and do not
constitute a part of this Registration Rights Agreement.
9.9 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Registration Rights Agreement will be
governed by and construed in accordance with the domestic laws of the State
of Florida, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Florida or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
the State of Florida.
9.10 ENTIRE AGREEMENT. This Registration Rights Agreement is
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding
of the parties hereto with respect of the subject matter contained herein.
This Registration Rights Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
9.11 NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Registration
Rights Agreement shall be in writing and shall be deemed to have been given
when delivered personally to the recipient, sent to the recipient by
facsimile transmission, sent to the recipient by reputable express courier
service (charges prepaid) or three business days after being mailed to the
recipient by certified or registered mail, return receipt requested and
postage prepaid. Such notices, demands and other communications will be sent
to each Holder at the address indicated on the records of the Client and to
the Client at the address set forth in the Agreement or to such other address
or to the attention of such other person as the recipient party has specified
by prior written notice to the sending party.
9.12 CONFIDENTIALITY. The Client shall hold in strict confidence
and shall not disclose information with respect to sales of Common Stock by
any Holder, including the fact of such sales, the amount of such sales and
the timing of such sales, except as such information shall become public
without violation of this Section 9.12, as may be required by applicable law,
rules or regulations or with the express written consent of such Investor.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written,
Ultimate Sports Entertainment Inc.
By: /s/ Xxxxxxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxx, President
NOBLE HOUSE OF BOSTON, INC.
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, President
