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Exhibit 10.10
BAY AREA MULTIMEDIA, INC.
STOCK PURCHASE AGREEMENT
This Agreement is made and entered into this 21st day of
September, 2000, by and between Bay Area Multimedia, Inc., a Delaware
corporation (the "Corporation"), and Bay Area Multimedia, Inc., a California
Corporation ("Purchaser").
THE PARTIES AGREE AS FOLLOWS:
1. Sale of Stock. The Corporation hereby agrees to sell to Purchaser and
Purchaser hereby agrees to purchase an aggregate of 1,000 shares of the
Corporation's Common Stock (the "Shares"), at the price of $.001 per share (the
"Purchase Price"), for an aggregate purchase price of $1.00 payable by check.
2. Closing. Upon execution of this Agreement, Purchaser shall deliver a
check to the Corporation, and the Corporation shall deliver a duly issued stock
certificate for the Shares to Purchaser.
3. Investment Representations; Restrictions on Transfer.
3.1. Investment Representations. Purchaser represents and warrants
to the Corporation that:
(a) 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. Purchaser has received all information from the Corporation which
Purchaser has requested and deems relevant to an evaluation of the risks and
merits of this investment. Purchaser has such knowledge and experience in
financial and business matters that Purchaser is capable of evaluating the
merits and risks of investment in the Shares. Purchaser is purchasing the Shares
for investment for 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) Purchaser understands that an investment in the Corporation
is speculative, that any possible benefits from the investment are uncertain,
and that Purchaser must bear the economic risks of the investment in the
Corporation for an indefinite period of time. Purchaser is able to bear these
economic risks and to hold the Shares for an indefinite period of time.
(c) 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
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available. Purchaser further acknowledges and understands that the Corporation
is under no obligation to register the Shares. 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) Purchaser is familiar with the provisions of Rule 701 and
Rule 144, each promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted securities" acquired in a non-public
offering, subject to the satisfaction of certain conditions. Purchaser
understands that the Corporation may not be satisfying, and is not obligated to
satisfy, any requirement of Rule 144 at such time as Purchaser might wish to
sell any of the Shares, and, if so, Purchaser might be precluded from selling
any of the Shares under Rule 144. Notwithstanding this Section 3.1(d), Purchaser
acknowledges and agrees to the restrictions set forth in Section 3.2.
(e) Purchaser is an entity with its principal place of business
in the State of California.
3.2. Hold Back Agreement. Purchaser agrees, in connection with the
Corporation's initial underwritten public offering of the Corporation's
securities: (a) not to sell, make short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any shares of Common Stock of the
Corporation held by Purchaser (other than those shares included in the
registration) without the prior written consent of the Corporation or the
underwriters managing such initial underwritten public offering of the
Corporation's securities for 180 days from the effective date of such
registration, and (b) further agrees to execute any agreement reflecting (a)
above as may be requested by the underwriters at the time of the public
offering.
4. 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.
5. General Provisions.
5.1. 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 Purchaser and may only be modified or amended in a writing signed by
both parties.
5.2. Notices. Any notice, demand or request required or permitted to
be given by either the Corporation or Purchaser pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when delivered
personally or two (2) days after deposit in the U.S.
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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.
5.3. Arbitration. Any dispute between the parties arising out of
this Agreement shall be submitted to final and binding arbitration in the City
of San Jose, California, under the Commercial Arbitration Rules of the American
Arbitration Association then in effect (the "AAA Rules"), upon written
notification and demand of either party. The following provisions shall be
applicable to any such proceedings and shall control to the extent of any
inconsistency with the AAA Rules:
(a) In the demand for arbitration, the American Arbitration
Association shall be requested to submit a list of prospective arbitrators
consisting of persons experienced in matters involving business contracts. In
any arbitration pursuant to this Section, the award shall be rendered by a
single arbitrator appointed jointly by the parties, or if the parties cannot
agree to a single arbitrator within 30 days after the commencement of the
arbitration proceeding, by an arbitrator appointed in accordance with the AAA
Rules. For purposes of this Section, "commencement of the arbitration
proceeding" shall be deemed to be the date on which a written demand for
arbitration is received by the American Arbitration Association from one of the
parties.
(b) The provisions of California Code of Civil Procedure Section
1283.05 and the laws of the State of California are incorporated herein and
shall be applicable to the arbitration.
(c) In making the award, the arbitrator shall award recovery of
costs and expenses of the arbitration and reasonable attorney's fees to the
prevailing party.
(d) Any award may be entered as a judgement in any court of
competent jurisdiction. Should judicial proceedings be commenced to enforce or
carry out this provision or any arbitration award, the prevailing party in such
proceedings shall be entitled to reasonable attorney's fees and costs in
addition to other relief.
(e) Either party shall have the right, prior to receiving an
arbitration award, to obtain preliminary relief from a court of competent
jurisdiction to: (i) avoid injury or prejudice to that party; (ii) or to protect
the rights of any party; or (iii) to maintain the status quo as it existed
immediately prior to the dispute.
(f) Service of any notices in the course of any arbitration shall
be sufficient if given as provided in the Notice Section of this Agreement.
5.4. Attorneys' Fees. If 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, arbitrator or other applicable person in such
proceeding or in a separate action brought for that purpose.
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5.5. 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.
5.6. 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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of the date first set forth above.
Corporation:
Bay Area Multimedia, Inc., a Delaware
corporation
333 West Santa Clara Boulevard
San Jose, CA 95113
/s/ RAYMOND C. MUSCI
By: ____________________________________
Raymond C. Musci, President
Purchaser:
Bay Area Multimedia, Inc., a California
corporation
333 West Santa Clara Boulevard
San Jose, CA 95113
/s/ RAYMOND C. MUSCI
By: __________________________________
Raymond C. Musci, President