{"id":38480,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-for-chairman-of-board-of-directors-bam-entertainment.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-for-chairman-of-board-of-directors-bam-entertainment","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/agreement-for-chairman-of-board-of-directors-bam-entertainment.html","title":{"rendered":"Agreement for Chairman of Board of Directors &#8211; BAM! Entertainment Inc. and Robert Holmes"},"content":{"rendered":"<pre>\n                  AGREEMENT FOR CHAIRMAN OF BOARD OF DIRECTORS\n\n\n        THIS AGREEMENT is made and entered into effective as of June 6, 2001\n(the \"Effective Date\"), by and between BAM! Entertainment, Inc., a Delaware\ncorporation, (\"Company\") and Robert Holmes, an individual (\"Director\").\n\n        1. Term.\n\n               (a) This Agreement shall continue for a period of one (1) year\nfrom the Effective Date and shall continue thereafter for as long as Director is\nelected as Chairman of the Board of Directors (\"Chairman\") of Company.\n\n               (b) Notwithstanding the foregoing and provided that Director has\nneither voluntarily resigned nor been terminated for \"cause\" as defined in\nSection 3(b) of this Agreement, Company agrees to use its best efforts to\nreelect Director to the Board for a period of three (3) years at the 2001 Annual\nMeeting of the Shareholders.\n\n        2. Position and Responsibilities.\n\n               (a) Position. Company hereby retains Director to serve as\nChairman of the Board of Directors. Director shall perform such duties and\nresponsibilities as are normally related to such position in accordance with\nCompany's bylaws and applicable law, including those services described on\nExhibit A, (the \"Services\"), and Director hereby agrees to use his best efforts\nto provide the Services. Director shall not allow any other person or entity to\nperform any of the Services for or instead of Director. Director shall comply\nwith the statutes, rules, regulations and orders of any governmental or\nquasi-governmental authority, which are applicable to the performance of the\nServices, and Company's rules, regulations, and practices as they may from\ntime-to-time be adopted or modified.\n\n               (b) Other Activities. Director may be employed by another\ncompany, may serve on other Boards of Directors or Advisory Boards, and may\nengage in any other business activity (whether or not pursued for pecuniary\nadvantage), as long as such outside activities do not violate Director's\nobligations under this Agreement or Director's fiduciary obligations to the\nshareholders, except as set forth in Exhibit B. The ownership of less than a 5%\ninterest in an entity, by itself, shall not constitute a violation of this duty.\nExcept as set forth in Exhibit B, Director represents that, to the best of his\nknowledge, Director has no outstanding agreement or obligation that is in\nconflict with any of the provisions of this Agreement, and Director agrees to\nuse his best efforts to avoid or minimize any such conflict and agrees not to\nenter into any agreement or obligation that could create such a conflict,\nwithout the approval of the Chief Executive Officer or a majority of the Board\nof Directors. If, at any time, Director is required to make any disclosure or\ntake any action that may conflict with any of the provisions of this Agreement,\nDirector will promptly notify the Chief Executive Officer or the Board of such\nobligation, prior to making such disclosure or taking such action.\n\n\n                                       1\n   2\n               (c) No Conflict. Except as set forth in Section 2(b) and Exhibit\nB, Director will not engage in any activity that creates an actual conflict of\ninterest with Company, regardless of whether such activity is prohibited by\nCompany's conflict of interest guidelines or this Agreement, and Director agrees\nto notify the Board of Directors before engaging in any activity that creates a\npotential conflict of interest with Company. Specifically and except as set\nforth in Section 2(b) and Exhibit B of this Agreement, Director shall not engage\nin any activity that is in direct competition with the Company or serve in any\ncapacity (including, but not limited to, as an employee, consultant, advisor or\ndirector) in any company or entity that competes directly with the Company, as\nreasonably determined by a majority of Company's disinterested board members,\nwithout the approval of the Chief Executive Officer.\n\n        3. Compensation and Benefits.\n\n               (a) Director's Fee. In consideration of the services to be\nrendered under this Agreement, Company shall pay Director a fee at the rate of\nOne Hundred Thousand Dollars ($100,000) per year, which shall be paid in\naccordance with Company's regularly established practices regarding the payment\nof Directors' fees, but in no event later than 12 months after the Effective\nDate of this Agreement and each of its subsequent anniversaries, if any.\n\n               (b) Stock and Stock Options. Company acknowledges that Director\nis an owner of both Common and Preferred Stock and holds an option to purchase\nstock in Company, and that the rights attributable to these securities (the\n\"Securities\") shall not be affected by the execution of this Agreement. In\naddition, in consideration of the services to be rendered under this Agreement,\nCompany agrees to grant Director the following two stock options subject to the\napproval of the Board of Directors (the \"Options\"): (1) an option to purchase\n10,000 shares of Company's Common Stock at an exercise price of $22.53 per share\n(the fair market value of Company's Common Stock on the Effective Date), which\nshall be fully vested on the Effective Date; and (2) an option to purchase\n10,000 shares of Company's Common Stock, which shall have an exercise price\nequal to 100% of the price charged pursuant to Company's Initial Public Offering\n(\"IPO\"), unless the IPO has not occurred by December 31, 2001, in which case,\nthe exercise price shall be 100% of the fair market value of Company's Common\nStock on such date, and which options shall be fully vested commencing upon the\nearlier of the date of Company's IPO or December 31, 2001. In the event (i) of a\nmerger, change in control or sale of Company or (ii) Director either is\nterminated as a board member or is not reelected, where the Director has not\nengaged in conduct during his tenure on the board which would constitute \"cause\"\nfor such termination, as determined by a majority vote of the disinterested\nboard members, the Shares immediately shall become fully vested. \"Cause\" means a\ndetermination by a majority of the disinterested board members that the Director\nhas been engaged in any of the following: (i) malfeasance in office; (ii) gross\nmisconduct or neglect; (iii) false or fraudulent misrepresentation inducing\nDirector's appointment; (iv) willful conversion of corporate funds; (v) material\nbreach of an obligation to make full disclosure; (vi) gross incompetence; (vii)\ngross inefficiency; (viii) acts of moral turpitude; or (ix) repeated failure to\nparticipate (either by telephone or in person) board meetings on a regular basis\ndespite having received proper notice of the meetings at least 48 hours in\nadvance thereof. The removal of Director as Chairman, by itself, shall not\naffect the vesting schedule. The Options shall be subject to the terms and\nconditions of Company's 2000 Stock Incentive Plan (the \"Plan\") and Company's\nstandard Stock Option\n\n\n                                       2\n   3\n\nAgreement, as modified by this Agreement. During the term of this Agreement,\nDirector may be granted additional stock options or other equity rights, as\ndetermined by Company's Compensation Committee, in its sole discretion.\n\n               (c) Benefits. Company will provide Director and his domestic\npartner with medical, dental, eye-care, disability and life insurance benefits\nin accordance with the benefit plans established by Company for its senior\nexecutives (as may be amended from time to time in Company's sole discretion) to\nthe extent allowed under the terms of such plans and will pay all premiums for\ncoverage of Director and his family, including his domestic partner. Director\nshall also be eligible to participate in any additional benefits made generally\navailable by Company to its senior executives, to the extent allowed by the\nbenefit plans established by Company, which may be amended or terminated at any\ntime in Company's sole discretion; except that Director shall not be entitled to\nany paid vacation leave.\n\n               (d) Expenses. The Company shall reimburse Director for all\nreasonable business expenses incurred in the performance of his duties hereunder\nin accordance with Company's expense reimbursement guidelines.\n\n               (e) Indemnification. Company will indemnify and defend Director\nagainst any liability incurred in the performance of the Services to the fullest\nextent authorized in Company's Certificate of Incorporation, as amended, bylaws,\nas amended, and applicable law. Company has purchased Director's and Officer's\nliability insurance, and Director shall be entitled to the protection of any\ninsurance policies the Company maintains for the benefit of its Directors and\nOfficers against all costs, charges and expenses in connection with any action,\nsuit or proceeding to which he may be made a party by reason of his affiliation\nwith Company, its subsidiaries, or affiliates.\n\n               (f) Records. Director shall have reasonable access to books and \nrecords of Company, as necessary to enable Director to fulfill his obligations \nas a Director of Company.\n\n        4. Termination.\n\n               (a) Right to Terminate. At any time, Director may be removed as\nChairman as provided in Company's Certificate of Incorporation, as amended,\nbylaws, as amended, and applicable law. Director may resign as Chairman or\nDirector as provided in Company's Certificate of Incorporation, as amended,\nbylaws, as amended, and applicable law. Notwithstanding anything to the contrary\ncontained in or arising from this Agreement or any statements, policies, or\npractices of Company, neither Director nor Company shall be required to provide\nany advance notice or any reason or cause for termination of Director's status\nas Chairman, except as provided in Company's Certificate of Incorporation, as\namended, Company's bylaws, as amended, and applicable law.\n\n               (b) Effect of Termination as Chairman. Upon a termination of\nDirector's status as Chairman, in which Director remains a Director, this\nAgreement will terminate, and the Company and Director will sign the Company's\nstandard Director's Agreement, in effect at the time of the termination, subject\nto any modifications to which both parties mutually agree; provided, however,\nfollowing such termination and for as long as Director continues to serve as a\nDirector of the Company, the Company will continue to provide Director and his\ndomestic partner with medical, dental and eye-care benefits provided by Section\n3(c) and will pay all\n\n\n                                       3\n   4\n\npremiums for coverage of Director and his family, including his domestic partner\nunder such benefit plans as provided in Section 3(c) to the extent allowed under\napplicable law. Except as provided herein, the Company shall pay to Director all\ncompensation and benefits to which Director is entitled up through the date of\ntermination, and thereafter, all of the Company's obligations under this\nAgreement shall cease, except as provided in Sections 1(b), 3(b), 3(d), 3(e),\nand 5.\n\n               (c) Effect of Termination as Director. Upon a termination of\nDirector's status as a Director, this Agreement will terminate; Company shall\npay to Director all compensation and benefits to which Director is entitled up\nthrough the date of termination; and Director shall be entitled to his rights\nunder COBRA, HIPPA, and any other applicable law. Thereafter, all of Company's\nobligations under this Agreement shall cease, except as provided in Sections\n1(b), 3(b), 3(d), 3(e) and 5.\n\n        5. Termination Obligations.\n\n               (a) Director agrees that all property, including, without\nlimitation, all equipment, tangible proprietary information, documents, records,\nnotes, contracts, and computer-generated materials provided to or prepared by\nDirector incident to his services belong to Company and shall be promptly\nreturned at the request of Company.\n\n               (b) Upon termination of this Agreement, Director shall be deemed\nto have resigned from all offices then held with Company by virtue of his\nposition as Chairman, except that Director shall continue to serve as a director\nif elected as a director by the shareholders of Company as provided in Company's\nCertificate of Incorporation, as amended, Company's bylaws, as amended, and\napplicable law. Director agrees that following any termination of this\nAgreement, he shall cooperate with Company in the winding up or transferring to\nother directors of any pending work and shall also cooperate with Company (to\nthe extent allowed by law, and at Company's expense) in the defense of any\naction brought by any third party against Company that relates to the Services.\n\n               (c) The Company and Director agree that their obligations under\nthis Section, as well as Sections 1(b), 3(b), 3(d), 3(e), 4(b), 4(c) and 7,\nshall survive the termination of this Agreement.\n\n        6. Nondisclosure Obligations. Director shall maintain in confidence and\nshall not, directly or indirectly, disclose or use, either during or after the\nterm of this Agreement, any Proprietary Information (as defined below),\nconfidential information, or trade secrets belonging to Company, whether or not\nit is in written or permanent form, except to the extent necessary to perform\nthe Services, as required by a lawful government order or subpoena, or as\nauthorized in writing by Company. These nondisclosure obligations also apply to\nProprietary Information belonging to customers and suppliers of Company, and\nother third parties, learned by Director as a result of performing the Services.\n\"Proprietary Information\" means all information pertaining in any manner to the\nbusiness of Company, unless (i) the information is or becomes publicly known\nthrough lawful means; (ii) the information was part of Director's general\nknowledge prior to his\n\n\n                                       4\n   5\n\nrelationship with Company; or (iii) the information is disclosed to Director\nwithout restriction by a third party who rightfully possesses the information\nand did not learn of it from Company.\n\n        7. Dispute Resolution.\n\n               (a) Jurisdiction and Venue. The parties agree that any suit,\naction, or proceeding between Director (and his attorneys, successors, and\nassigns) and Company (and its affiliates, shareholders, directors, officers,\nemployees, members, agents, successors, attorneys, and assigns) relating to the\nServices or the termination of those Services shall be brought in either the\nUnited States District Court for the Northern District of California or in a\nCalifornia state court in the County of Santa Clara and that the parties shall\nsubmit to the jurisdiction of such court. The parties irrevocably waive, to the\nfullest extent permitted by law, any objection the party may have to the laying\nof venue for any such suit, action or proceeding brought in such court. If any\none or more provisions of this Section shall for any reason be held invalid or\nunenforceable, it is the specific intent of the parties that such provisions\nshall be modified to the minimum extent necessary to make it or its application\nvalid and enforceable.\n\n               (b) Attorneys' Fees. Should any litigation, arbitration or other\nproceeding be commenced between the parties concerning the rights or obligations\nof the parties under this Agreement, the party prevailing in such proceeding\nshall be entitled, in addition to such other relief as may be granted, to a\nreasonable sum as and for its attorneys' fees in such proceeding. This amount\nshall be determined by the court in such proceeding or in a separate action\nbrought for that purpose. In addition to any amount received as attorneys' fees,\nthe prevailing party also shall be entitled to receive from the party held to be\nliable, an amount equal to the attorneys' fees and costs incurred in enforcing\nany judgment against such party. This Section is severable from the other\nprovisions of this Agreement and survives any judgment and is not deemed merged\ninto any judgment.\n\n        8. Entire Agreement. This Agreement is intended to be the final,\ncomplete, and exclusive statement of the terms of Director's relationship solely\nwith respect to his position as Chairman with Company. This Agreement entirely\nsupercedes and may not be contradicted by evidence of any prior or\ncontemporaneous statements or agreements pertaining to Director's relationship\nas Chairman or Director. Agreements related to Director's ownership of the\nSecurities are not affected by this Agreement.\n\n        9. Amendments; Waivers. This Agreement may not be amended except by a\nwriting signed by Director and by a duly authorized representative of the\nCompany other than Director. Failure to exercise any right under this Agreement\nshall not constitute a waiver of such right.\n\n        10. Assignment. Director agrees that Director will not assign any rights\nor obligations under this Agreement, with the exception of Director's ability to\nassign rights with respect to the Securities. Nothing in this Agreement shall\nprevent the consolidation, merger or sale of Company or a sale of all or\nsubstantially all of its assets.\n\n        11. Severability. If any provision of this Agreement shall be held by a\ncourt or arbitrator to be invalid, unenforceable, or void, such provision shall\nbe enforced to fullest extent\n\n\n                                       5\n   6\n\npermitted by law, and the remainder of this Agreement shall remain in full force\nand effect. In the event that the time period or scope of any provision is\ndeclared by a court or arbitrator of competent jurisdiction to exceed the\nmaximum time period or scope that such court or arbitrator deems enforceable,\nthen such court or arbitrator shall reduce the time period or scope to the\nmaximum time period or scope permitted by law.\n\n        12. Governing Law. This Agreement shall be governed by and construed in\naccordance with the laws of the State of California.\n\n        13. Interpretation. This Agreement shall be construed as a whole,\naccording to its fair meaning, and not in favor of or against any party.\nCaptions are used for reference purposes only and should be ignored in the\ninterpretation of the Agreement.\n\n        14. Binding Agreement. Each party represents and warrants to the other\nthat the person(s) signing this Agreement below has authority to bind the party\nto this Agreement and that this Agreement will legally bind both Company and\nDirector. This Agreement will be binding upon and benefit the parties and their\nheirs, administrators, executors, successors and permitted assigns. To the\nextent that the practices, policies, or procedures of Company, now or in the\nfuture, are inconsistent with the terms of this Agreement, the provisions of\nthis Agreement shall control. Any subsequent change in Director's duties or\ncompensation as Chairman will not affect the validity or scope of the remainder\nof this Agreement.\n\n        15. Director Acknowledgment. Director acknowledges Director has had the\nopportunity to consult legal counsel concerning this Agreement, that Director\nhas read and understands the Agreement, that Director is fully aware of its\nlegal effect, and that Director has entered into it freely based on his own\njudgment and not on any representations or promises other than those contained\nin this Agreement.\n\n        16. Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument.\n\n        17. Date of Agreement. The parties have duly executed this Agreement as\nof the date first written above.\n\n\n    BAM! Entertainment, Inc.,            Director:\n    a Delaware corporation:\n\n\n    By: \/s\/ RAYMOND C. MUSCI             \/s\/ ROBERT HOLMES\n        ----------------------------     --------------------------------\n        Name:  Raymond C. Musci          Robert Holmes\n        Title:  CEO and President\n\n\n                                       6\n   7\n\n                                    EXHIBIT A\n\n                             DESCRIPTION OF SERVICES\n\n\n        Responsibilities as Director. Director shall have all responsibilities\nof a Director of the Company imposed by Delaware or applicable law, the\nCertificate of Incorporation, as amended, and Bylaws, as amended, of Company.\nThese responsibilities shall include, but shall not be limited to, the\nfollowing:\n\n1.      Attendance. Use best efforts to attend scheduled meetings of Company's\n        Board of Directors;\n\n2.      Act as a Fiduciary. Represent the shareholders and the interests of\n        Company as a fiduciary; and\n\n3.      Participation. Participate as a full voting member of Company's Board of\n        Directors in setting overall objectives, approving plans and programs of\n        operation, formulating general policies, offering advice and counsel,\n        serving on Board Committees, and reviewing management performance.\n\n\n\n   8\n\n                                    EXHIBIT B\n\n                              AUTHORIZED ACTIVITIES\n\n\nZeke Capital Partners LP\nRipcord Games LLC\nPCH Holdings LLC\nGBA Ventures LLC\nNorthport Ventures LLC\nEntertainment Brands, Inc.\nAcclaim Entertainment, Inc.\nNTN Communications, Inc.\niBuyline, Inc.\nTakeTwo Interactive, Inc.\nRG Capital LP\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6843],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-38480","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bam-entertainment-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38480","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38480"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38480"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38480"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38480"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}