AGREEMENT FOR CHAIRMAN OF BOARD OF DIRECTORS
THIS AGREEMENT is made and entered into effective as of June 6, 2001
(the "Effective Date"), by and between BAM! Entertainment, Inc., a Delaware
corporation, ("Company") and Robert Holmes, an individual ("Director").
(a) This Agreement shall continue for a period of one (1) year
from the Effective Date and shall continue thereafter for as long as Director is
elected as Chairman of the Board of Directors ("Chairman") of Company.
(b) Notwithstanding the foregoing and provided that Director has
neither voluntarily resigned nor been terminated for "cause" as defined in
Section 3(b) of this Agreement, Company agrees to use its best efforts to
reelect Director to the Board for a period of three (3) years at the 2001 Annual
Meeting of the Shareholders.
2. Position and Responsibilities.
(a) Position. Company hereby retains Director to serve as
Chairman of the Board of Directors. Director shall perform such duties and
responsibilities as are normally related to such position in accordance with
Company's bylaws and applicable law, including those services described on
Exhibit A, (the "Services"), and Director hereby agrees to use his best efforts
to provide the Services. Director shall not allow any other person or entity to
perform any of the Services for or instead of Director. Director shall comply
with the statutes, rules, regulations and orders of any governmental or
quasi-governmental authority, which are applicable to the performance of the
Services, and Company's rules, regulations, and practices as they may from
time-to-time be adopted or modified.
(b) Other Activities. Director may be employed by another
company, may serve on other Boards of Directors or Advisory Boards, and may
engage in any other business activity (whether or not pursued for pecuniary
advantage), as long as such outside activities do not violate Director's
obligations under this Agreement or Director's fiduciary obligations to the
shareholders, except as set forth in Exhibit B. The ownership of less than a 5%
interest in an entity, by itself, shall not constitute a violation of this duty.
Except as set forth in Exhibit B, Director represents that, to the best of his
knowledge, Director has no outstanding agreement or obligation that is in
conflict with any of the provisions of this Agreement, and Director agrees to
use his best efforts to avoid or minimize any such conflict and agrees not to
enter into any agreement or obligation that could create such a conflict,
without the approval of the Chief Executive Officer or a majority of the Board
of Directors. If, at any time, Director is required to make any disclosure or
take any action that may conflict with any of the provisions of this Agreement,
Director will promptly notify the Chief Executive Officer or the Board of such
obligation, prior to making such disclosure or taking such action.
(c) No Conflict. Except as set forth in Section 2(b) and Exhibit
B, Director will not engage in any activity that creates an actual conflict of
interest with Company, regardless of whether such activity is prohibited by
Company's conflict of interest guidelines or this Agreement, and Director agrees
to notify the Board of Directors before engaging in any activity that creates a
potential conflict of interest with Company. Specifically and except as set
forth in Section 2(b) and Exhibit B of this Agreement, Director shall not engage
in any activity that is in direct competition with the Company or serve in any
capacity (including, but not limited to, as an employee, consultant, advisor or
director) in any company or entity that competes directly with the Company, as
reasonably determined by a majority of Company's disinterested board members,
without the approval of the Chief Executive Officer.
3. Compensation and Benefits.
(a) Director's Fee. In consideration of the services to be
rendered under this Agreement, Company shall pay Director a fee at the rate of
One Hundred Thousand Dollars ($100,000) per year, which shall be paid in
accordance with Company's regularly established practices regarding the payment
of Directors' fees, but in no event later than 12 months after the Effective
Date of this Agreement and each of its subsequent anniversaries, if any.
(b) Stock and Stock Options. Company acknowledges that Director
is an owner of both Common and Preferred Stock and holds an option to purchase
stock in Company, and that the rights attributable to these securities (the
"Securities") shall not be affected by the execution of this Agreement. In
addition, in consideration of the services to be rendered under this Agreement,
Company agrees to grant Director the following two stock options subject to the
approval of the Board of Directors (the "Options"): (1) an option to purchase
10,000 shares of Company's Common Stock at an exercise price of $22.53 per share
(the fair market value of Company's Common Stock on the Effective Date), which
shall be fully vested on the Effective Date; and (2) an option to purchase
10,000 shares of Company's Common Stock, which shall have an exercise price
equal to 100% of the price charged pursuant to Company's Initial Public Offering
("IPO"), unless the IPO has not occurred by December 31, 2001, in which case,
the exercise price shall be 100% of the fair market value of Company's Common
Stock on such date, and which options shall be fully vested commencing upon the
earlier of the date of Company's IPO or December 31, 2001. In the event (i) of a
merger, change in control or sale of Company or (ii) Director either is
terminated as a board member or is not reelected, where the Director has not
engaged in conduct during his tenure on the board which would constitute "cause"
for such termination, as determined by a majority vote of the disinterested
board members, the Shares immediately shall become fully vested. "Cause" means a
determination by a majority of the disinterested board members that the Director
has been engaged in any of the following: (i) malfeasance in office; (ii) gross
misconduct or neglect; (iii) false or fraudulent misrepresentation inducing
Director's appointment; (iv) willful conversion of corporate funds; (v) material
breach of an obligation to make full disclosure; (vi) gross incompetence; (vii)
gross inefficiency; (viii) acts of moral turpitude; or (ix) repeated failure to
participate (either by telephone or in person) board meetings on a regular basis
despite having received proper notice of the meetings at least 48 hours in
advance thereof. The removal of Director as Chairman, by itself, shall not
affect the vesting schedule. The Options shall be subject to the terms and
conditions of Company's 2000 Stock Incentive Plan (the "Plan") and Company's
standard Stock Option
Agreement, as modified by this Agreement. During the term of this Agreement,
Director may be granted additional stock options or other equity rights, as
determined by Company's Compensation Committee, in its sole discretion.
(c) Benefits. Company will provide Director and his domestic
partner with medical, dental, eye-care, disability and life insurance benefits
in accordance with the benefit plans established by Company for its senior
executives (as may be amended from time to time in Company's sole discretion) to
the extent allowed under the terms of such plans and will pay all premiums for
coverage of Director and his family, including his domestic partner. Director
shall also be eligible to participate in any additional benefits made generally
available by Company to its senior executives, to the extent allowed by the
benefit plans established by Company, which may be amended or terminated at any
time in Company's sole discretion; except that Director shall not be entitled to
any paid vacation leave.
(d) Expenses. The Company shall reimburse Director for all
reasonable business expenses incurred in the performance of his duties hereunder
in accordance with Company's expense reimbursement guidelines.
(e) Indemnification. Company will indemnify and defend Director
against any liability incurred in the performance of the Services to the fullest
extent authorized in Company's Certificate of Incorporation, as amended, bylaws,
as amended, and applicable law. Company has purchased Director's and Officer's
liability insurance, and Director shall be entitled to the protection of any
insurance policies the Company maintains for the benefit of its Directors and
Officers against all costs, charges and expenses in connection with any action,
suit or proceeding to which he may be made a party by reason of his affiliation
with Company, its subsidiaries, or affiliates.
(f) Records. Director shall have reasonable access to books and
records of Company, as necessary to enable Director to fulfill his obligations
as a Director of Company.
(a) Right to Terminate. At any time, Director may be removed as
Chairman as provided in Company's Certificate of Incorporation, as amended,
bylaws, as amended, and applicable law. Director may resign as Chairman or
Director as provided in Company's Certificate of Incorporation, as amended,
bylaws, as amended, and applicable law. Notwithstanding anything to the contrary
contained in or arising from this Agreement or any statements, policies, or
practices of Company, neither Director nor Company shall be required to provide
any advance notice or any reason or cause for termination of Director's status
as Chairman, except as provided in Company's Certificate of Incorporation, as
amended, Company's bylaws, as amended, and applicable law.
(b) Effect of Termination as Chairman. Upon a termination of
Director's status as Chairman, in which Director remains a Director, this
Agreement will terminate, and the Company and Director will sign the Company's
standard Director's Agreement, in effect at the time of the termination, subject
to any modifications to which both parties mutually agree; provided, however,
following such termination and for as long as Director continues to serve as a
Director of the Company, the Company will continue to provide Director and his
domestic partner with medical, dental and eye-care benefits provided by Section
3(c) and will pay all
premiums for coverage of Director and his family, including his domestic partner
under such benefit plans as provided in Section 3(c) to the extent allowed under
applicable law. Except as provided herein, the Company shall pay to Director all
compensation and benefits to which Director is entitled up through the date of
termination, and thereafter, all of the Company's obligations under this
Agreement shall cease, except as provided in Sections 1(b), 3(b), 3(d), 3(e),
(c) Effect of Termination as Director. Upon a termination of
Director's status as a Director, this Agreement will terminate; Company shall
pay to Director all compensation and benefits to which Director is entitled up
through the date of termination; and Director shall be entitled to his rights
under COBRA, HIPPA, and any other applicable law. Thereafter, all of Company's
obligations under this Agreement shall cease, except as provided in Sections
1(b), 3(b), 3(d), 3(e) and 5.
5. Termination Obligations.
(a) Director agrees that all property, including, without
limitation, all equipment, tangible proprietary information, documents, records,
notes, contracts, and computer-generated materials provided to or prepared by
Director incident to his services belong to Company and shall be promptly
returned at the request of Company.
(b) Upon termination of this Agreement, Director shall be deemed
to have resigned from all offices then held with Company by virtue of his
position as Chairman, except that Director shall continue to serve as a director
if elected as a director by the shareholders of Company as provided in Company's
Certificate of Incorporation, as amended, Company's bylaws, as amended, and
applicable law. Director agrees that following any termination of this
Agreement, he shall cooperate with Company in the winding up or transferring to
other directors of any pending work and shall also cooperate with Company (to
the extent allowed by law, and at Company's expense) in the defense of any
action brought by any third party against Company that relates to the Services.
(c) The Company and Director agree that their obligations under
this Section, as well as Sections 1(b), 3(b), 3(d), 3(e), 4(b), 4(c) and 7,
shall survive the termination of this Agreement.
6. Nondisclosure Obligations. Director shall maintain in confidence and
shall not, directly or indirectly, disclose or use, either during or after the
term of this Agreement, any Proprietary Information (as defined below),
confidential information, or trade secrets belonging to Company, whether or not
it is in written or permanent form, except to the extent necessary to perform
the Services, as required by a lawful government order or subpoena, or as
authorized in writing by Company. These nondisclosure obligations also apply to
Proprietary Information belonging to customers and suppliers of Company, and
other third parties, learned by Director as a result of performing the Services.
"Proprietary Information" means all information pertaining in any manner to the
business of Company, unless (i) the information is or becomes publicly known
through lawful means; (ii) the information was part of Director's general
knowledge prior to his
relationship with Company; or (iii) the information is disclosed to Director
without restriction by a third party who rightfully possesses the information
and did not learn of it from Company.
7. Dispute Resolution.
(a) Jurisdiction and Venue. The parties agree that any suit,
action, or proceeding between Director (and his attorneys, successors, and
assigns) and Company (and its affiliates, shareholders, directors, officers,
employees, members, agents, successors, attorneys, and assigns) relating to the
Services or the termination of those Services shall be brought in either the
United States District Court for the Northern District of California or in a
California state court in the County of Santa Clara and that the parties shall
submit to the jurisdiction of such court. The parties irrevocably waive, to the
fullest extent permitted by law, any objection the party may have to the laying
of venue for any such suit, action or proceeding brought in such court. If any
one or more provisions of this Section shall for any reason be held invalid or
unenforceable, it is the specific intent of the parties that such provisions
shall be modified to the minimum extent necessary to make it or its application
valid and enforceable.
(b) Attorneys' Fees. Should any litigation, arbitration or other
proceeding be commenced between the parties concerning the rights or obligations
of the parties under this Agreement, the party prevailing in such proceeding
shall be entitled, in addition to such other relief as may be granted, to a
reasonable sum as and for its attorneys' fees in such proceeding. This amount
shall be determined by the court in such proceeding or in a separate action
brought for that purpose. In addition to any amount received as attorneys' fees,
the prevailing party also shall be entitled to receive from the party held to be
liable, an amount equal to the attorneys' fees and costs incurred in enforcing
any judgment against such party. This Section is severable from the other
provisions of this Agreement and survives any judgment and is not deemed merged
into any judgment.
8. Entire Agreement. This Agreement is intended to be the final,
complete, and exclusive statement of the terms of Director's relationship solely
with respect to his position as Chairman with Company. This Agreement entirely
supercedes and may not be contradicted by evidence of any prior or
contemporaneous statements or agreements pertaining to Director's relationship
as Chairman or Director. Agreements related to Director's ownership of the
Securities are not affected by this Agreement.
9. Amendments; Waivers. This Agreement may not be amended except by a
writing signed by Director and by a duly authorized representative of the
Company other than Director. Failure to exercise any right under this Agreement
shall not constitute a waiver of such right.
10. Assignment. Director agrees that Director will not assign any rights
or obligations under this Agreement, with the exception of Director's ability to
assign rights with respect to the Securities. Nothing in this Agreement shall
prevent the consolidation, merger or sale of Company or a sale of all or
substantially all of its assets.
11. Severability. If any provision of this Agreement shall be held by a
court or arbitrator to be invalid, unenforceable, or void, such provision shall
be enforced to fullest extent
permitted by law, and the remainder of this Agreement shall remain in full force
and effect. In the event that the time period or scope of any provision is
declared by a court or arbitrator of competent jurisdiction to exceed the
maximum time period or scope that such court or arbitrator deems enforceable,
then such court or arbitrator shall reduce the time period or scope to the
maximum time period or scope permitted by law.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
13. Interpretation. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any party.
Captions are used for reference purposes only and should be ignored in the
interpretation of the Agreement.
14. Binding Agreement. Each party represents and warrants to the other
that the person(s) signing this Agreement below has authority to bind the party
to this Agreement and that this Agreement will legally bind both Company and
Director. This Agreement will be binding upon and benefit the parties and their
heirs, administrators, executors, successors and permitted assigns. To the
extent that the practices, policies, or procedures of Company, now or in the
future, are inconsistent with the terms of this Agreement, the provisions of
this Agreement shall control. Any subsequent change in Director's duties or
compensation as Chairman will not affect the validity or scope of the remainder
of this Agreement.
15. Director Acknowledgment. Director acknowledges Director has had the
opportunity to consult legal counsel concerning this Agreement, that Director
has read and understands the Agreement, that Director is fully aware of its
legal effect, and that Director has entered into it freely based on his own
judgment and not on any representations or promises other than those contained
in this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Date of Agreement. The parties have duly executed this Agreement as
of the date first written above.
BAM! Entertainment, Inc., Director:
a Delaware corporation:
By: /s/ RAYMOND C. MUSCI /s/ ROBERT HOLMES
Name: Raymond C. Musci Robert Holmes
Title: CEO and President
DESCRIPTION OF SERVICES
Responsibilities as Director. Director shall have all responsibilities
of a Director of the Company imposed by Delaware or applicable law, the
Certificate of Incorporation, as amended, and Bylaws, as amended, of Company.
These responsibilities shall include, but shall not be limited to, the
1. Attendance. Use best efforts to attend scheduled meetings of Company's
Board of Directors;
2. Act as a Fiduciary. Represent the shareholders and the interests of
Company as a fiduciary; and
3. Participation. Participate as a full voting member of Company's Board of
Directors in setting overall objectives, approving plans and programs of
operation, formulating general policies, offering advice and counsel,
serving on Board Committees, and reviewing management performance.
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