Stock Purchase Agreement - Bay Area Multimedia Inc. and D&S Partners
BAY AREA MULTIMEDIA, INC.
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into effective as of October 25,
1999, by and between Bay Area Multimedia, Inc., a California corporation (the
"CORPORATION"), and D&S Partners, a California general partnership (the
"PURCHASER").
THE PARTIES AGREE AS FOLLOWS:
1. Sale of Stock. The CORPORATION hereby agrees to sell to the PURCHASER
and the PURCHASER hereby agrees to purchase 50,000 shares of the CORPORATION's
Common Stock (the "SHARES"), at the price of $0.10 per share (the "PURCHASE
PRICE"), for an aggregate purchase price of $5,000. PURCHASER has rendered
services equal to and/or provided funds by cash or check for the PURCHASE PRICE,
receipt of which is hereby acknowledged.
2. Closing. Upon execution of this AGREEMENT, the CORPORATION shall
deliver a duly issued stock certificate for the SHARES to PURCHASER.
3. RIGHT OF FIRST REFUSAL.
3.1. Right to Purchase. In the event PURCHASER or a subsequent holder
of the SHARES (collectively, "HOLDER") proposes to sell, pledge or otherwise
transfer any or all of the shares owned by him or her (the "TRANSFER SHARES"),
whether voluntarily or involuntarily, the CORPORATION, or its assignee shall
have the right to acquire all, but not less than all, of the TRANSFER SHARES
under the terms and subject to the conditions set forth in this Section 3 (the
"RIGHT OF FIRST REFUSAL").
3.2. Transfer Notice. Prior to any proposed transfer of the TRANSFER
SHARES, the HOLDER shall give a written notice (the "TRANSFER NOTICE") to the
CORPORATION describing fully the proposed transfer, including the number of
TRANSFER SHARES, the name and address of the proposed transferee (the "PROPOSED
TRANSFEREE"), and the proposed transfer price. The TRANSFER NOTICE shall be
signed by both the HOLDER and the PROPOSED TRANSFEREE and must constitute a
binding commitment of the HOLDER and the PROPOSED TRANSFEREE for the transfer of
the TRANSFER SHARES subject only to the RIGHT OF FIRST REFUSAL.
3.3. CORPORATION's Option. Within 30 days of receiving the TRANSFER
NOTICE, the CORPORATION shall notify the HOLDER as to whether it will exercise
its right to purchase the TRANSFER SHARES.
3.4. Consummation. If the CORPORATION wishes to exercise the RIGHT
<PAGE> 2
OF FIRST REFUSAL, the CORPORATION shall so notify the HOLDER within 30 days of
receiving the TRANSFER NOTICE and the CORPORATION shall thereupon consummate the
sale of the TRANSFER SHARES to the CORPORATION for the FIRST REFUSAL PRICE and
on the terms set forth in the TRANSFER NOTICE within 60 days of (i) receiving
the TRANSFER NOTICE or (ii) within thirty (30) days of the determination of the
FIRST REFUSAL PRICE pursuant to Section 4 below, whichever is later.
<PAGE> 3
3.5. FIRST REFUSAL PRICE.
a. Price Offered by PROPOSED TRANSFEREE. Subject to Sections 3.6.b
and 3.6.c, the "FIRST REFUSAL PRICE" shall be the price described in the
TRANSFER NOTICE.
b. Not Reflective of Fair Market Value. If the proposed transfer of
the TRANSFER SHARES is to be made without consideration, is not a bona fide
arm's length transaction (e.g., a transfer to a competitor of the CORPORATION),
or does not involve a price freely set by the HOLDER and the PROPOSED
TRANSFEREE, the FIRST REFUSAL PRICE shall be the fair market value of the
TRANSFER SHARES as determined pursuant to Section 4.
c. Cash Equivalent. If the TRANSFER NOTICE provides for the payment
for the TRANSFER SHARES other than in cash, the CORPORATION and/or the OTHER
SHAREHOLDERS shall have the option of paying for the TRANSFER SHARES by the
discounted cash equivalent of the consideration described in the TRANSFER
NOTICE, as reasonably determined by the Board.
3.6. Failure of Exercise. If the CORPORATION fails to purchase all
of the TRANSFER SHARES in the time period contemplated above, the CORPORATION
shall have no right to purchase any of the TRANSFER SHARES and the HOLDER may,
not later than 120 days following delivery to the CORPORATION of the TRANSFER
NOTICE, conclude a transfer to the PROPOSED TRANSFEREE of the TRANSFER SHARES on
the terms and conditions described in the TRANSFER NOTICE. Any proposed transfer
on terms and conditions different from those described in the TRANSFER NOTICE,
as well as any subsequent proposed transfer by the HOLDER or the PROPOSED
TRANSFEREE, shall again be subject to the RIGHT OF FIRST REFUSAL.
3.7. Assignment of Right of First Refusal. The CORPORATION may
assign the RIGHT OF FIRST REFUSAL to one or more persons approved by the Board
of Directors, who shall have the right to exercise the RIGHT OF FIRST REFUSAL in
his own name for his own account.
3.8. Excluded Transfers. The RIGHT OF FIRST REFUSAL shall not apply
to a transfer to a trustee for the benefit of the HOLDER's brothers, sisters,
ancestors, descendants or spouse, provided that the transferring HOLDER retains
full control with respect to the voting rights of such shares and that such
transferee shall agree in writing (in a form satisfactory to the Board) to take
the stock subject to all the terms of this Section 3 providing for a RIGHT OF
FIRST REFUSAL with respect to any subsequent transfer.
3.9. Termination of RIGHT OF FIRST REFUSAL. Notwithstanding anything
in this Section 3, this RIGHT OF FIRST REFUSAL shall terminate upon the earlier
of:
(i) public sale or registration of the SHARES; or
(ii) corporate reorganization of the CORPORATION as defined in
Internal Revenue Code Section 368(a)(1)(A), (B), or (D).
<PAGE> 4
4. FAIR MARKET VALUE. The fair market value of the SHARES shall be
determined as of the date of the TRANSFER NOTICE. The parties shall have fifteen
(15) days after the date of the TRANSFER NOTICE to agree on the fair market
value. If the parties are unable to agree on the fair market value during such
period, then the fair market value shall be appraised as follows:
Within 5 days of the expiration of the 15 day period, each party shall,
at their own cost and by giving notice to the other party, appoint an appraiser
with at least 5 years' full-time business appraisal experience (an "APPRAISER")
to appraise and set the fair market value of the SHARES. If the higher appraisal
is not more than one hundred five percent (105%) of the lower, then the average
of their appraised values shall be the fair market value of the SHARES. If the
higher appraisal is greater than one hundred five percent (105%) of the lower,
then the two APPRAISERS shall appoint a third APPRAISER and the two closest in
dollar terms of the three offered values shall be averaged and shall constitute
the fair market value of the SHARES. The cost of the third APPRAISER shall be
paid equally by the parties. Each APPRAISER shall submit its appraisal within 15
days of its appointment.
5. Investment Representations; Restrictions on Transfer. The PURCHASER
represents and warrants to the CORPORATION that:
a. The PURCHASER is aware of the CORPORATION's business affairs and
financial condition and has acquired sufficient information about the
CORPORATION to reach an informed and knowledgeable decision to acquire the
SHARES. The PURCHASER has received all information from the CORPORATION which
the PURCHASER has requested and deems relevant to an evaluation of the risks and
merits of this investment. The PURCHASER has such knowledge and experience in
financial and business matters that the PURCHASER is capable of evaluating the
merits and risks of investment in the SHARES. The PURCHASER is purchasing the
SHARES for investment for the PURCHASER's own account only and not with a view
to, or for resale in connection with, any "distribution" within the meaning of
the Securities Act of 1933, as amended (the "SECURITIES ACT").
b. The PURCHASER understands that an investment in the CORPORATION
is speculative, that any possible benefits from the investment are uncertain,
and that the PURCHASER must bear the economic risks of the investment in the
CORPORATION for an indefinite period of time. The PURCHASER is able to bear
these economic risks and to hold the SHARES for an indefinite period of time.
c. The PURCHASER acknowledges and understands that the SHARES
constitute "restricted securities" under the SECURITIES ACT and must be held
indefinitely unless they are subsequently registered under the SECURITIES ACT or
an exemption from such registration is available. The PURCHASER further
acknowledges and understands that the CORPORATION is under no obligation to
register the SHARES. The PURCHASER understands that the certificate evidencing
the SHARES will be imprinted with a legend which prohibits the transfer of the
SHARES unless they are registered or such registration is not required in the
opinion of counsel satisfactory to the CORPORATION.
d. The PURCHASER is familiar with the provisions of Rule 701 and
Rule 144, each promulgated under the SECURITIES ACT, which, in substance, permit
limited public
<PAGE> 5
resale of "restricted securities" acquired in a non-public offering, subject to
the satisfaction of certain conditions. The PURCHASER understands that the
CORPORATION may not be satisfying, and is not obligated to satisfy, any
requirement of Rule 144 at such time as the PURCHASER might wish to sell any of
the SHARES, and, if so, the PURCHASER might be precluded from selling any of the
SHARES under Rule 144.
e. The PURCHASER is a resident of the state of California.
<PAGE> 6
6. Legend. The share certificate evidencing the SHARES issued hereunder
shall be endorsed with the following legend (in addition to any legends required
under applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES OR AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION
IS NOT REQUIRED.
THESE SECURITIES ARE SUBJECT TO RIGHTS OF FIRST REFUSAL AND
OTHER RESTRICTIONS UPON TRANSFER, AS SET FORTH IN ONE OR MORE
AGREEMENTS BETWEEN THE REGISTERED HOLDER, THE CORPORATION,
AND/OR CERTAIN OF THE OTHER SHAREHOLDERS, COPIES OF WHICH ARE ON
FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION.
7. General Provisions.
7.1. Governing Law/Entire Agreement. This AGREEMENT shall be
governed by the laws of the State of California. This AGREEMENT represents the
entire agreement between the parties with respect to the purchase of Common
Stock by the PURCHASER and may only be modified or amended in a writing signed
by both parties.
7.2. Notices. Any notice, demand or request required or permitted to
be given by either the CORPORATION or the PURCHASER pursuant to the terms of
this AGREEMENT shall be in writing and shall be deemed given when delivered
personally or deposited in the U.S. mail, First Class with postage prepaid, and
addressed to the parties at the addresses of the parties set forth at the end of
this AGREEMENT or such other address as a party may request by notifying the
other in writing.
7.3. Attorneys' Fees. Should any litigation be commenced between the
parties concerning the rights or obligations of the parties under this
AGREEMENT, the party prevailing in such litigation 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 litigation, This amount shall be determined by the
court in such litigation or in a separate action brought for that purpose.
7.4. Post Judgment. In addition to any amount received as attorneys'
fees, the prevailing party or parties also shall be entitled to receive from the
party or parties held to be liable, an amount equal to the attorneys' fees and
costs incurred in enforcing any judgement against such party or parties. This
Section is severable from the other provisions of this AGREEMENT and survives
any judgment and is not deemed merged into any judgment.
7.5. Severability. In case any provision of this AGREEMENT shall be
invalid, illegal or unenforceable, such provision shall be modified to the
minimum extent necessary to make such provision enforceable, and the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
<PAGE> 7
[SIGNATURE PAGE FOLLOWS]
<PAGE> 8
IN WITNESS WHEREOF, the parties have duly executed this AGREEMENT
effective as of the date first set forth above.
CORPORATION:
Bay Area Multimedia, Inc.
20760 Monte Sunset Drive
San Jose, CA 95120
By: /s/ RAYMOND C. MUSCI
----------------------------------
Raymond C. Musci, President
PURCHASER:
D&S Partners
260 Sheridan Avenue, Suite 200
Palo Alto, CA 94306
By: /s/ GEORGE M. SUNDHEIM, III
----------------------------------
George M. Sundheim, III, General Partner