[ECA LOGO]
Exhibit 10.2
[Confidential Portions Omitted]
November 17, 2003
Mr. Ray Musci
CEO
Bam Entertainment Inc .
333 West Santa Clara St., Suite 930
San Jose, CA 95113
Dear Ray,
Europlay Capital Advisors, LLC ("ECA") is pleased to act as a non-exclusive
(except as otherwise provided herein) financial advisor to Bam Entertainment
Inc., (the "Company," and together with its affiliates, the "Company Group") in
connection with potential Transactions (as defined below), on the following
basis:
1. If appropriate and requested by the Company Group, in accordance with
the terms of this agreement (this "Letter Agreement"), ECA may:
- undertake an analysis of the business, operations, financial
condition and prospects of the Company;
- develop and review with the Company a list of parties which might
participate in Transactions;
- assist the Company in preparing descriptive materials to be
provided to potential parties to Transactions;
- contact potential parties to Transactions with the Company's
prior knowledge;
- assist in evaluating and/or preparing proposals regarding
Transactions;
- assist, if requested by the Company, in negotiations and related
strategy for one or more Transactions;
- be available to meet with the Company's Board of Directors to
discuss proposed Transactions; and
- perform such other consulting services as the Company and ECA
shall mutually agree.
The services that may be provided by ECA above are hereinafter referred
to as the "Services." All business and legal decisions regarding any
Transaction shall be made by the Company in its sole discretion, and
all binding transactional documents shall be executed by the Company,
and the Company shall not be bound by ECA or any of its agents, members
or employees or otherwise except by written advice signed by the
Company. The Company shall be free to reject any proposed Transaction
for any reason or no reason without liability (except for reimbursement
of actual out-of-pocket expenses pursuant to this Letter Agreement as
set forth below and for the indemnification provisions referenced
herein).
2. At the Company's election, it may appoint a third party financial
advisor to render a fairness opinion in connection with a transaction
for which ECA provides services under this Agreement. ECA will not be
responsible for compensating any third party advisors for Opinion fees
contemplated by Paragraph 4.e. below.
15821 Ventura Blvd., Suite 525, Encino, CA 91436
Phone (818) 444-4400 Fax (818) 444-4401
Mr. Ray Musci
Bam Entertainment, Inc.
Page 2
3. For the purposes of this Letter Agreement, "Transaction" includes any
of the following transactions whereby ECA performs any of the Services
described above:
- any proposals or arrangements for a third party to acquire all or
substantially all of the capital stock or assets of the Company,
in either a single transaction or a series of transactions,
whether by tender or exchange offer, merger, spin-off, dividend,
purchase, acquisition, business combination, or otherwise (a
"Sale Transaction") excluding however, any of the foregoing
transactions that constitute a Covered Business Development
Transaction (as defined below);
- any proposals or arrangements for the Company to make a minority,
joint venture or control investment in, or to acquire an economic
interest in the capital stock or assets of a third party in
either a single transaction or a series of transactions; whether
by tender or exchange offer, purchase, acquisition, business
combination, or otherwise (a "Purchase Transaction") excluding
however, any of the foregoing transactions that constitute a
Covered Business Development Transaction (as defined below).
4. As compensation for the services rendered by ECA hereunder, the Company
shall pay ECA fees (each, a "Transaction Fee") as follows:
a. upon the consummation of each Sale Transaction any person or entity
which ECA has informed the Company that it wishes to approach and that
the Company has approved, or which the Company has requested that ECA
approach, concerning the possibility of effecting a Transaction and
which has entered into discussions with ECA concerning such possible
Transaction with the prior approval of the Company, and/or any person
or entity engaged in discussion with the Company Group during the term
of this Letter Agreement with respect to a possible Transaction, if, in
connection with such discussion, the Company has used the services or
work product of ECA with respect to such Transaction (an "Agreed
Entity"). The Company agrees to pay ECA a Transaction Fee equal to [*]%
of the Transaction Value (as hereafter defined), subject to a minimum
transaction fee of [*] (the "Minimum Sale Fee"); plus
b. upon the consummation of a Purchase Transaction involving [*]or any
of its affiliates or subsidiaries ("[*]"), the Company agrees to pay
ECA a Transaction Fee equal to [*], payable at the option of the
Company, in cash or Company common stock at a price per share equal to
the lesser of (i) [*], and (ii) the average closing price of the
Company's common stock over the 10 business days immediately preceding
issuance, in either case as may be adjusted from time to time for stock
splits, stock dividends, recapitalizations, and similar transactions;
provided, however, that as soon as practicable after the consummation
of such purchase termination the Company shall file with the SEC a
registration statement on Form S-3 to register the Shares for resale by
ECA, and to diligently pursue causing such registration statement on
Form S-3 to be declared effective by the SEC. The Company shall use its
best efforts to ensure that such registration statement on Form S-3
remains effective until the earlier of the date that ECA sells,
transfers, or otherwise disposes of all of the Shares, and the date
upon which the Shares may be sole by ECA pursuant to Rule 144(k); plus
c. upon the consummation of each Purchase Transaction with an Agreed
Entity other than a Purchase Transaction involving [*], the Company
agrees to pay ECA a Transaction Fee equal to [*]% of the Transaction
Value (as hereafter defined), subject to a minimum transaction fee
equal to [*] (the "Minimum Other Transaction Fee") in cash or stock as
further described in Paragraph 4.b.
d. If a fairness opinion (the "Opinion") is requested, the Company and
a third party financial advisor will enter into a separate agreement
containing customary terms and conditions for such an assignment and
such other terms and conditions as are mutually agreed upon by the
parties.
e. For the purpose of calculating the applicable Transaction Fee, the
Transaction Value shall be the total proceeds and other consideration
paid or received, or to be paid or received, in connection with a
Transaction (which consideration shall be deemed to include amounts in
escrow), including, without limitation, cash, notes, securities, and
other property; payments made in installments; amounts payable under
consulting agreements, above-market employment contracts, non-compete
agreements or similar arrangements; and Contingent Payments (as defined
below). In addition, if any of the Company's (or an
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* Confidential portion omitted and filed separately with the Commission.
Mr. Ray Musci
Bam Entertainment, Inc.
Page 3
acquisition target's) interest-bearing liabilities are assumed,
decreased or paid off in conjunction with a Sale Transaction, or any of
the Company's (or target's) assets are retained, sold or otherwise
transferred to another party prior to the consummation of the
Transaction, the Transaction Value will be increased to reflect the
fair market value of any such assets or interest-bearing liabilities.
Contingent Payments shall be defined as the fair market value of
consideration received or receivable (or paid or payable) by the
Company, its employees, former or current equity holders and/or any
other parties in the form of deferred performance-based payments,
"earn-outs", or other contingent payments based upon the future
performance of the Company (or the target) or any of its businesses or
assets.
f. For the purpose of calculating the consideration received in the
Transaction, any securities (other than a promissory note) will be
valued at the time of the closing of the Transaction (without regard to
any restrictions on transferability) as follows: (i) if such securities
are traded on a stock exchange, the securities will be valued at the
average last sale or closing price for the ten trading days immediately
prior to the closing of the Transaction; (ii) if such securities are
traded primarily in over-the-counter transactions, the securities will
be valued at the mean of the closing bid and asked quotations similarly
averaged over a ten trading day period immediately prior to the closing
of the Transaction; and (iii) if such securities have not been traded
prior to the closing of the Transaction, ECA will prepare a valuation
of the securities, and ECA and the Company will negotiate in good faith
to agree on a fair valuation thereof for the purposes of calculating
the Transaction Fee. The value of any purchase money or other
promissory notes shall be deemed to be the face amount thereof. In the
event the Transaction Value includes any Contingent Payments, the
Company and ECA will negotiate in good faith to agree on that portion
of the Transaction Fee to be paid to ECA as of the closing of the
Transaction in consideration thereof. If the parties cannot reach such
an agreement, an additional Transaction Fee(s) shall be paid to ECA in
the same proportions and at the same times as the Contingent Payments
are paid or received. Notwithstanding anything to the contrary set
forth above, in no event shall the cash Transaction Fee paid to ECA
upon the closing of the Transaction be less than the Minimum Fee.
5. The Company shall grant ECA a retainer, deliverable upon signing of
this Letter Agreement, of warrants (the "Warrants") to purchase 200,000
shares of the Company's common stock (the "Shares"), with an exercise
price equal to $1.44 per Share (the "Exercise Price"). The Warrants may
be exercised in whole or in part from time-to-time at any time during
the period commencing upon the execution of this Letter Agreement and
ending three years after the date hereof (the "Warrant Term"), by
delivering written notice of exercise to the Company. All of the
warrants shall be vested immediately. The Company will take or cause to
be taken any and all acts and execute and deliver or cause to be
executed and delivered, as appropriate, such further agreements and
documents, as may be necessary or advisable to provide ECA with the
Warrants and to otherwise carry out the terms of this paragraph. The
Exercise Price and the number and type of Shares underlying the
Warrants will be equitably adjusted in the event of any stock splits,
reverse stock splits, recapitalizations and similar reorganizations.
The Exercise Price, may be payable on a cashless exercise basis. The
Warrants shall survive termination of the Agreement. As soon as
practicable following execution of this Letter Agreement, the Company
shall file with the SEC a registration statement on Form S-3 to
register the Shares for resale by ECA, and to diligently pursue causing
such registration statement on Form S-3 to be declared effective by the
SEC. The Company shall use its best efforts to ensure that such
registration statement on Form S-3 remains effective until the earlier
of the date that ECA sells, transfers, or otherwise disposes of all of
the Shares, and the date upon which the Shares may be sole by ECA
pursuant to Rule 144(k).
6. The Company shall reimburse ECA for its out-of-pocket and incidental
expenses incurred in connection with its engagement hereunder promptly
as requested up to a maximum of [*], including the fees and expenses of
its legal counsel up to [*] and those of any advisor retained by ECA
with the prior written approval of the Company. Expenses may include
legal expenses, tax advisory, first class travel and hotel expenses,
all fees and disbursements of counsel and of other consultants and
advisors retained by it, messenger and duplicating services (including
color printing), telephone and facsimile expenses, document and
database charges and other customary expenditures) whether or not a
Transaction is completed or this Letter Agreement is terminated. For
purposes of clarification, all legal, accounting, and UK advisory costs
of the Company shall be at the Company's expense.
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* Confidential portion omitted and filed separately with the Commission.
Mr. Ray Musci
Bam Entertainment, Inc.
Page 4
7. ECA will also assist the Company with any proposals or arrangements for
any transaction (a "Business Development Transaction") with a "Covered
Person," (a "Covered Business Development Transaction") pursuant to
which the Company delivers or receives or will deliver or receive
consideration or other value in exchange for the license, grant or
receipt of distribution rights, or purchase or sale of one or more
video games or rights (including distribution, merchandising and/or
development rights) in or to, or for the creation of, video games or
products developed with characters or other intellectual property from
video games. Notwithstanding the foregoing, the transfer of video games
or rights with respect to videogames from an affiliate of the Company
Group to the Company shall not constitute a Covered Business
Development Transaction. A "Covered Person" is (i) any person or entity
which ECA has informed the Company that it wishes to approach or which
the Company has requested that ECA approach, concerning the possibility
of effecting a Covered Business Development Transaction and which has
entered into discussions with ECA concerning such transaction with the
prior approval of the Company, and/or any person or entity engaged in
discussion with the Company Group during the term of this Letter
Agreement with respect to such transaction, if, in connection with such
discussion, the Company has used the services or work product of ECA.
Upon the consummation of each Covered Business Development Transaction
with a Covered Person, the Company agrees to pay ECA a commission (the
"Commission") equal (a) in the case of the sale or outbound license or
grant of distribution rights with respect to any games or intellectual
property owned or controlled by the Company Group, to [*] received by
the Company Group, and (b) in the case of the purchase or inbound
license of any games or intellectual property by the Company Group, to
[*] payable to the seller or licensor(s) of such games or intellectual
property. For purposes of this Agreement, "Net Receipts" of a person
shall mean the total amount actually received by such person, and not
refundable (with refundable amounts becoming "Net Receipts" at such
time as the amounts are no longer refundable) pursuant to any written
agreement relating to the Covered Business Development Transaction at
any time from and after the date hereof (including after expiration of
the Term) from a Covered Business Development Transaction entered into
during the Term, less, in the case of receipts from the sale or
outbound license or grant of distribution rights with respect to any
games or intellectual property owned or controlled by the Company
Group, all royalties payable by the Company Group to unaffiliated third
parties as a result of such Covered Business Development Transaction.
ECA may elect to receive its fee in connection with each Covered
Business Development Transaction as a direct payment from the payor
party simultaneously with payment to or by the Company, and if ECA so
elects, the Company will cooperate to incorporate conforming payment
provisions into the applicable transaction agreements. The Company will
also ensure that ECA is promptly provided with copies of all relevant
accountings and royalty statements, and that ECA is permitted to
participate in any audits available under the applicable Transaction
documents.
8. Because ECA will be acting for the benefit of the Company in connection
with this engagement, the Company agrees to indemnify ECA and certain
other persons as set forth in the separate indemnification agreement
attached hereto. In no event, regardless of the legal theory advanced
shall the aggregate liability of ECA to all parties in connection with
services contemplated hereby or arising from this Letter Agreement
exceed the cash fees actually received by ECA hereunder.
9. Upon completion of a Transaction, ECA may place advertisements in
financial and other media at its own expense describing its services to
the Company hereunder.
10. In connection with ECA's engagement, the Company will furnish ECA with
all information, which ECA reasonably requests and will provide ECA
with access to the Company's officers, directors, accountants, counsel
and other advisors. The Company represents and warrants to ECA that:
(a) all such information is and will be true and accurate in all
material respects and does not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in the light of the circumstances
under which they were made, not misleading; and (b) any projected
financial information or other forward looking information which the
Company provides to ECA will be made by the Company in good faith,
based upon management's best estimates then available and based upon
facts
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* Confidential portion omitted and filed separately with the Commission.
Mr. Ray Musci
Bam Entertainment, Inc.
Page 5
and assumptions which the Company believes to be reasonable. The
Company acknowledges and agrees that ECA will be using and relying upon
such information supplied by the Company and its officers, agents and
others and any other publicly available information concerning the
Company and any prospective Transaction party without any independent
investigation or verification thereof or independent appraisal by ECA
of the Company or its business or assets or any other Transaction party
or its business or assets nor will ECA be providing a solvency opinion
with respect to the Company.
11. Upon ECA's request, the Company will provide ECA with drafts of the
minutes of any meetings of the Company's Board of Directors (or
committees thereof) at which representatives of ECA made a presentation
in order to permit ECA to insure that any description of such
presentation is correctly set forth therein.
12. The Company further represents and warrants to ECA that:
a. The Company has taken no action that would give any brokers,
representatives, finders or other persons an interest in the
compensation due to ECA in connection with any Transaction or Covered
Business Development Transaction contemplated herein; and,
b. this Letter Agreement does not violate or constitute a breach or
default under any contract, agreement, arrangement or understanding,
whether written or oral, to which the Company or any of its
subsidiaries is a party or by which its or their assets are bound.
c. the Board of Directors of the Company has been advised of and
approved the terms of this Agreement after full disclosure that Mark
Dyne, a member of the Board of Directors of the Company, is the manager
and a member of ECA, and has implemented procedures sufficient to avoid
this Agreement, the performance of the parties contemplated hereunder,
and the approval of any Transaction giving rise to the right of any
person to seek to, or to, void, under Section 144 of the Delaware
General Corporation Law, this Agreement or any of the business
relationships between the Company and ECA hereunder.
13. Without the prior written consent of ECA the Company will not publicly
refer to ECA or publicly disclose or otherwise make available to third
parties (except the Company's counsel or other advisers, provided the
Company informs them of this provision) any advice, either oral or
written, which ECA provides to the Company in connection with this
engagement.
14. The benefits of this Agreement, together with the separate indemnity
agreement, shall inure to the respective successors and permitted
assigns of the parties hereto and of the indemnified parties under such
indemnity agreement and their respective successors, permitted assigns
and representatives, and the obligations and liabilities assumed in
this Agreement by the parties hereto shall be binding upon their
respective successors and assigns. This Agreement and the related
indemnity agreement may not be assigned without the prior written
consent of the nonassigning party (or parties).
15. This Agreement may not be amended or modified except in a writing
signed by the party against whom enforcement is sought and shall be
governed by and construed in accordance with the laws of the State of
California, without regard to its principles of conflicts of laws.
Mr. Ray Musci
Bam Entertainment, Inc.
Page 6
16. EACH OF ECA AND THE COMPANY (ON ITS OWN BEHALF AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS AFFILIATES AND
STOCKHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM,
SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) RELATING TO OR ARISING OUT OF THE ENGAGEMENT OF ECA PURSUANT
TO, OR THE PERFORMANCE BY ECA THE SERVICES CONTEMPLATED BY, THIS
AGREEMENT.
17. The purpose of this Agreement is to set forth the services that ECA
will provide to the Company, as an independent contractor, either as
specifically provided herein or as subsequently requested in writing by
the Company and agreed to by ECA. The parties hereto do not intend to
create any special or fiduciary relationship between them. In addition,
the exclusivity of the advisory relationship between ECA and the
Company refers to the fact that the services to be provided by ECA
hereunder are to be provided solely by ECA(and that the Company will
not engage any other third party to provide similar advisory services)
and that the fees to be paid by the Company hereunder are solely for
the benefit of ECA. There may be other services which are required to
be provided to the Company in connection with the Transaction
contemplated by this Agreement of a nature not customarily provided by
ECA and which will be provided by others (e.g., independent auditors,
brokers, attorneys or appraisers). This Agreement is solely for the
benefit of ECA and the Company and is not intended to create rights or
obligations of either party for the benefit of third parties, including
without limitation the creditors of the Company.
18. The Company acknowledges that ECA is a full service advisory firm and
in the ordinary course of its business provides advisory services to a
range of companies including independent motion picture production
companies, video game developers and video game publishers, technology
companies and other entities which may be involved in the engagement
contemplated hereby, which may be potential candidates for a
Transaction or Covered Business Development Transaction with the
Company or which may have retained ECA for services similar to the
services to be provided hereunder. Nothing in this Agreement shall be
deemed to prohibit ECA from providing any services permitted by
applicable law to any third party or from engaging in any lawfully
activity on its own behalf.
19. a. ECA's engagement hereunder shall terminate 30 days following
delivery by the Company to ECA of written notice of termination.
b. The fees and consideration payable by the Company shall also be
payable in the amount and at the time set forth in paragraph 4 if the
Company announces or enters into an agreement with respect to a Sale
Transaction to an Agreed Entity or a Purchase Transaction with an
Agreed Entity or [*], at any time during a period of 12 months
following the effective date of termination of ECA's engagement
hereunder, and such Transaction is thereafter consummated.
c. The Commission payable by the Company shall also be payable in the
amount and at the time set forth in paragraph 7 if the Company
announces or enters into an agreement with respect to a Covered
Business Development Transaction, at any time during a period of 12
months following the effective date of termination of ECA's engagement
hereunder, provided that such transaction is entered into with a
Covered Person and is thereafter consummated.
d. The provisions of this Letter Agreement (including subparagraphs
19(b) and 19(c)), other than paragraph 1, shall survive and remain in
full force and effect notwithstanding any expiration or termination of
ECA's engagement under paragraph 18(a) of this Letter Agreement or
otherwise.
ECA is delighted to accept this engagement and looks forward to working
with the Company on this assignment. Please confirm ECA' engagement as
set forth herein by signing the enclosed duplicate of this Letter
Agreement and the separate indemnification agreement and returning
them, whereupon, following
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* Confidential portion omitted and filed separately with the Commission.
Mr. Ray Musci
Bam Entertainment, Inc.
Page 7
approval by the requisite committees of ECA, this Letter Agreement and
the separate indemnification agreement shall constitute binding
agreements as of the date first above written.
Very truly yours,
EUROPLAY CAPITAL ADVISORS, LLC.
By: /s/ Pamela Colburn
------------------------
Title: Managing Director
Accepted and agreed as of the
date first above written:
BAM ENTERTAINMENT INC.
By: /s/ Raymond Musci
---------------------------
Title: Chief Executive Officer
Mr. Ray Musci
Bam Entertainment, Inc.
Page 8
EUROPLAY CAPITAL ADVISORS, LLC
15821 VENTURA BLVD., SUITE 525
ENCINO, CALIFORNIA 91436
In connection with the engagement agreement, dated the date hereof,
between Europlay Capital Advisors, LLC. ("ECA" or "Advisor") and Bam
Entertainment, Inc., (the "Company" and together with its affiliates, the
"Company Group"), the Company agrees to indemnify and hold harmless Advisor and
its affiliates, its respective directors, officers, controlling persons (within
the meaning of Section 15 of the Securities Act of 1933 or Section 20(a) of the
Securities Exchange Act of 1934), if any, agents and employees of Advisor or any
of the Advisor's affiliates (collectively, "Indemnified Persons" and
individually, an "Indemnified Person") from and against any and all actions,
claims, suits, proceedings, liabilities, losses, damages and expenses incurred,
joint or several (collectively, "Claims"), by any Indemnified Person (including
fees and disbursements of ECA's and an Indemnified Person's counsel) which are
related to or arise from the Advisor's engagement by the Company, including
Claims that relate to or arise from any actions taken or omitted to be taken
(including any untrue or alleged untrue statements made or any statements
omitted or alleged to be omitted) by the Company or which relate to or arise
from securities laws or any other law or legal theory, and will advance to and
reimburse the Advisor and any other Indemnified Person for all costs and
expenses (including fees and disbursements of the Advisor's or an Indemnified
Person's counsel), as they are incurred, in connection with investigating,
preparing for, providing depositions for, testifying in or defending any such
action or claim, formal or informal, investigation, inquiry or other proceeding,
whether or not in connection with pending or threatened litigation, whether or
not the Advisor or any Indemnified Person is named as a party thereto and
whether or not any liability results therefrom related to or arising from the
foregoing (collectively, "Costs").
The Company agrees that neither Advisor nor any other Indemnified
Person shall have any liability to the Company for or in connection with such
engagement except liability for Claims which are found in a final judgment by a
court of competent jurisdiction (not subject to further appeal) to have resulted
directly and primarily from an Indemnified Person's gross negligence or willful
misconduct. The Company also agrees that the Company will not, without the prior
written consent of the Advisor, settle or compromise or consent to the entry of
any judgment in any pending or threatened Claim in respect of which
indemnification may be sought hereunder (whether or not the Advisor or any
Indemnified Person is an actual or potential party to such Claim). Such prior
written consent of the Advisor shall be required only with respect to them
determining that such settlement, compromise or consent complies with the terms
of the following sentence and does not impose any material obligation on the
Advisor or any other Indemnified Person or contain any admission of culpability
on the part of the Advisor or any Indemnified Person. Such settlement,
compromise or consent shall include an unconditional release of the Advisor and
each other Indemnified Person from all liability arising out of such Claim, and
the Company shall furnish the Advisor with a copy of such settlement reasonably
in advance of entering into such settlement.
In order to provide for just and equitable contribution, if a demand
for indemnification or reimbursement for Claims or Costs is made pursuant to
these provisions but is not available for any reason, then the Company, on the
one hand, and the Advisor, on the other hand, shall contribute to such Claims or
Costs for which such indemnification or reimbursement is held unavailable in
such proportion as is appropriate to reflect the relative benefits to the
Company, on the one hand, and the Advisor on the other hand, in connection with
the transaction or transactions from which the Claims or Costs in question
arose. The relative benefits received by the Company, on the one hand, and by
the Advisor, on the other hand, shall be deemed to be in the same proportion as
the value (before deducting expenses) of the consideration paid by or received
by the Company or its stockholders or comparable equity owners, as the case may
be, in connection with the transaction or transactions from which the Claims or
Costs in question arose bears to the total fees actually received by ECA in
connection therewith. If the allocation provided by the foregoing sentence is
not permitted by applicable law, then such allocation shall be based not only on
such relative benefits determined as aforesaid but also on the relative fault of
the Company, on the one hand, and the Advisor, on the other, as well as any
other relevant equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, the parties' relative
intents, knowledge, access to information and, if applicable, whether any untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Advisor, and any other equitable considerations appropriate in the
circumstances. Any such contribution shall be subject to the
Mr. Ray Musci
Bam Entertainment, Inc.
Page 9
limitation that in any event the Advisor's aggregate contribution to all Claims
or Costs for which contribution is available hereunder shall not exceed the
amount of fees actually received by ECA pursuant to the particular engagement
relating to the transaction or transactions from which the Claims or Costs in
question arose.
The foregoing rights to indemnity, reimbursement and contribution shall
be in addition to any rights that ECA and/or any other Indemnified Person may
have at common law or otherwise. The Company hereby consents to personal
jurisdiction, service of process and venue in any court in which any Claim which
is subject to this Indemnification Agreement is brought against the Advisor or
any other Indemnified Person.
EACH OF THE ADVISOR AND THE COMPANY (ON ITS OWN BEHALF AND, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF
THIS INDEMNIFICATION AGREEMENT.
In connection with the Advisor's engagement of even date herewith, the
Advisor may also be engaged to act for the Company in one or more additional
capacities. The terms of any such engagement may be embodied in one or more
separate written agreements. This Indemnification Agreement shall apply to all
such engagements (whether written or oral) and any modification thereof and
shall remain in full force and effect following the completion or termination of
any such engagement.
The benefits of this Indemnification Agreement shall inure to the
respective successors and permitted assigns of the parties hereto and of the
Indemnified Persons hereunder and their successors, permitted assigns and
representatives, and the obligations and liabilities assumed in this
Indemnification Agreement by the parties hereto shall be binding upon their
respective successors and permitted assigns. This Indemnification Agreement may
not be assigned without the prior written consent of the nonassigning party (or
parties).
This Indemnification Agreement may not be amended or modified except in
a writing signed by the party hereto against which enforcement of this
Indemnification Agreement is sought and shall be governed by and construed in
accordance with the laws of the State of California, without regard to
principles of conflicts of laws.
Very truly yours,
EUROPLAY CAPITAL ADVISORS, LLC.
By: /s/ Pamela Colburn
------------------------
Title: Managing Director
Accepted and agreed as of the
date first above written:
BAM ENTERTAINMENT, INC.
By: /s/ Raymond Musci
----------------------------
Title: Chief Executive Officer