EXHIBIT 10.7
18th March 2004
(1) XXXXXXXXX XXXXX AND OTHERS
(2) BAM! ENTERTAINMENT, INC
SHARE PURCHASE AGREEMENT
RELATING TO THE SALE AND PURCHASE OF THE ENTIRE ISSUED SHARE CAPITAL OF
SOE DEVELOPMENT LIMITED
[XXXXXXXX XXXXXX LOGO]
CONTENTS
CLAUSE PAGE
1. Definitions and interpretation 1
2. Exchange 4
3. Conditions precedent 4
4. Sale and purchase of the shares and consideration 5
5. Position pending completion 6
6. Completion 7
7. Buyer Warranties 9
8. Entire agreement 9
9. Waiver 9
10. Variation 10
11. Confidentiality 10
12. Announcements 11
13. Assignment 11
14. Notices 12
15. Counterparts 13
16. Costs and expenses 13
17. Rights of third parties 13
18. General provisions 13
19. Governing law and jurisdiction 14
Schedule 1 - Particulars of the Sellers 15
Schedule 2 - Resolution Exit Shares 23
Part 2 - Particulars of the Loan Noteholders 23
Schedule 3 - Loan Notes 26
Schedule 4 - Buyer's Warranties 29
Schedule 5 - Investor Criteria 31
THIS AGREEMENT is made the 18th day of March 2004
BETWEEN:
(1) THE SEVERAL PERSONS whose names and addresses are set out in column (1) of
schedule 1 hereto (the "Sellers"); and
(2) BAM ENTERTAINMENT, INC a Delaware corporation (the "Buyer")
WHEREAS
(A) The Sellers wish to sell and the Buyer is willing to purchase the Shares
(as defined below) on the terms and subject to the conditions set out in
this agreement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement and the schedules the following expressions shall unless
the context otherwise requires have the meanings following:
"BoS" means Bank of Scotland;
"BoS Exit Shares" means the Consideration Shares to be issued to
BoS or its nominee as set out in clause 4.2 (d)
of this agreement;
"BoS Overdraft Facility" means the overdraft facility of the Company in
the sum of (pound)500,000 from BoS as
documented in the overdraft facility letter
from BoS to the Company dated 9 October 2003;
"BoS Side Letter" the letter from BoS consenting to the issue of
the New Shares to the New Shareholders and
confirming the continuance of the BoS Overdraft
Facility;
"Business Day" a day on which banks shall be open in London
for the conduct of general banking business
(excluding Saturdays);
"Buyer's Shareholder the shareholder approval of the Buyer as
Approval" described in clause 3.1.3
"Buyer's Solicitors" Xxxxxxxx Xxxxxx of 000 Xxxxxx, Xxxxxx XX0X 0XX;
"Company" means SOE Development Limited, a company
incorporated in England and Wales with
registered number 4856653;
"Company Loan Stock" the (pound)2,475,000 floating rate Unsecured
Loan Notes 2005 constituted by the Loan Note
Instrument issued by the Company and dated 10
October 2003;
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"Completion" completion of the obligations of the parties in
accordance with the provisions of clause 6 of
this agreement;
"Completion Consideration means the Consideration Shares to be issued to
Shares" the Sellers in accordance with clause 4.2 (a)
of this agreement;
"Conditions" the conditions set out in clause 3.1;
"Consideration" the consideration for the Shares;
"Consideration Shares" newly issued common stock of the Buyer of $0.01
par value per share;
"Deed of Warranty" the deed of warranty between the Warrantors and
the Buyer pursuant to which the Warrantors have
given the Warranties;
"Development Agreement" the development agreement made between the
Company and VIS dated 10 October 2003;
"Disclosure Letter" the letter dated the date of this Agreement
from the Warrantors to the Buyer relating to
the Warranties;
"Encumbrance" includes any interest or equity of any person
(including, without prejudice to the generality
of the foregoing, any right to acquire, option,
right of first refusal or right of
pre-emption), or any mortgage, charge, pledge,
lien, restriction, assignment, hypothecation,
security interest, title retention or any other
security agreement or arrangement (including,
without limitation, a title transfer and
retention arrangement) having similar effect;
"Escrow Letter" the escrow letter to be entered into, inter
alia, between the Buyer and the Sellers at
Completion and regulating the terms upon which
the Escrow Consideration Shares are to be held
in escrow to meet a shortfall in net assets of
VIS on completion of the Offer and claims made
by the Buyer against the VIS shareholders
and/or the Sellers;
"Escrow Consideration the Consideration Shares to be retained by the
Shares" Seller as set out in clause 4.2 (b) of this
agreement;
"Lock-Up Agreement" the lock-up agreement to be entered into, inter
alia, between the Buyer and the Sellers, BoS
and the Resolution Partners Limited Assignees
pursuant to which the Sellers undertake to be
subject to restrictions on selling the
Consideration Shares for a period of up to 12
months after the Offer is declared
unconditional in all respects;
"Long-Stop Date" 19 May 2004;
"New Shares" means the 5,000 Shares to be issued to the New
Shareholders in the numbers set against their
names
PAGE 3
in column (1) schedule 1 prior to Completion;
"New Shareholders" Xxxxxxxxx Xxxxxxx Xxxxx van der Kuyl, Xxxxxxx
Xxxxx and Xxxxx Xxxxxxx;
"Offer" the offer (including any extension thereof) to
be made to the shareholders of VIS on the terms
set out in the Offer Document;
"Offer Document" the document in the approved terms to be issued
by the Buyer to the holders of the entire
issued share capital of VIS and pursuant to
which the Offer will be made and the form of
acceptance thereto;
"Registration Rights the registration rights agreement to be entered
Agreement" into between the Buyer and the Sellers in the
agreed form;
"Resolution Partners the consent of the Resolution Partners Limited
Consent" Assignees to the issue of the Resolution
Consideration Shares in settlement of all sums
due to them under the Resolution Partners
Entitlement Agreement;
"Resolution Exit Shares" the Consideration Shares to be issued to the
Resolution Partners Limited Assignees as set
out in clause 4.2 (c) of this agreement;
"Resolution Partners the entitlement agreement between the Company
Entitlement Agreement" and Resolution Partners Limited dated 10
October 2003 the benefit of which has been
assigned to the Resolution Partners Limited
Assignees;
"Resolution Partners the assignees of the Resolution Partners
Limited Assignees" Entitlement Agreement whose names and addresses
are set out in schedule 2;
"SEC" the US Securities and Exchange Commission;
"Securities Act" the US Securities Act of 1933 as amended;
"Sellers' Cairnsea Investments Limited or such other
Representatives" entity notified by the Sellers to the Buyer
from time to time;
"Sellers' Solicitors" Xxxxxx Xxxxxxx, Carmelite, 00 Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx, Xxxxxx XX0X 0XX;
"Shares" the shares of the Company specified in columns
(1) and (2) of schedule 1;
"Updated Disclosure the Disclosure Letter as updated on Completion;
Letter"
"VIS Consent" the written consent of VIS to the change of
control of the Company as required by clause 12
of the Development Agreement;
"VIS" VIS Entertainment plc (a company registered in
Scotland with company number SC160499);
PAGE 4
"Warranties" the representations and warranties contained or
referred to in the Deed of Warranty;
"Warrantors" Xxxxxxxxx Xxxxx and Xxxxxx Xxxxxxx;
1.2 The expressions "Sellers" and "Warrantors" include their respective
personal representatives and successors.
1.3 Any document expressed to be "in the approved terms" is a reference to a
document in a form approved and for the purpose of identification signed
by or on behalf of the parties hereto.
1.4 References to clauses sub-clauses and schedules unless the context
otherwise requires, are references to clauses and sub-clauses of this
agreement and schedules to this agreement.
1.5 In this agreement and the schedules unless the context otherwise requires
a reference to one gender shall include all genders, the singular shall
include the plural and vice versa, and references to persons shall include
bodies corporate, unincorporated associations and partnerships. References
to the word "include" or "including" are to be construed without
limitation and the "eiusdem generis" rule shall not apply.
1.6 The headings in this agreement and the schedules are inserted for
convenience only and shall not affect the construction hereof.
2. EXCHANGE
2.1 On the signing of this agreement the Warrantors shall procure:
2.1.1 the delivery to the Company of the BoS Side Letter;
2.1.2 the issue of the New Shares to the New Shareholders;
2.1.3 the delivery to the Company of the VIS Consent;
2.1.4 the delivery to the Company of the Resolution Partners Consent;
2.1.5 delivery to the Buyer of the Deed of Warranty duly executed by the
Warrantors; and
2.1.6 delivery to the Buyer of the Disclosure Letter.
3. CONDITIONS PRECEDENT
3.1 Completion of this agreement is conditional upon:
3.1.1 the Offer being made and becoming unconditional in all respects
(other than any condition relating to the completion of this
Agreement) and not being terminated;
3.1.2 the Buyer raising not less than US$12,350,000 net of expenses by way
of an equity fundraising in the United States of America;
3.1.3 all necessary resolutions being passed by the stockholders of the
Buyer approving (amongst other things) the use of 4,500,000 shares
in the Buyer pursuant to the Offer, the issue of the Consideration
PAGE 5
Shares and the issue of a further 750,000 shares in the Buyer for
the purposes of the Escrow Letter.
3.2 The Buyer shall use all reasonable endeavours to procure the satisfaction
of the conditions set out at sub-clause 3.1 as soon as reasonably
practicable and in any event not later than the Long-Stop Date.
3.3 The Buyer shall undertake that if it becomes aware of a fact or matter or
circumstances that might prevent a condition set out in clause 3.1 being
satisfied it shall immediately inform the other party or parties to this
agreement.
3.4 Neither the Buyer nor the Sellers shall be entitled to waive any of the
Conditions in clause 3.1 without obtaining the prior written consent of
the other and VIS and any alteration to this clause 3.4 shall require the
prior written consent of the other and VIS.
3.5 If any of the Conditions set out in clause 3.1 has not been satisfied by
midday Greenwich Mean Time on the Long-Stop Date each party's rights and
obligations under this agreement shall cease immediately on termination
without any liability under this agreement.
4. SALE AND PURCHASE OF THE SHARES AND CONSIDERATION
4.1 Each Seller hereby agrees to sell with full title guarantee and the Buyer
hereby agrees to purchase with effect from Completion the number of Shares
as set opposite that Seller's name at columns (1) and (2) of schedule 1
free from any Encumbrance and together with all accrued benefits and
rights.
4.2 The Consideration shall be the issue of 4,500,000 Consideration Shares
which the Sellers direct shall be allotted and issued as follows:
(a) 3,454,376 Consideration Shares (the "Completion Consideration
Shares") will be issued to the Sellers on Completion in the numbers
set out opposite their names in column (3) of schedule 1;
(b) 600,000 Consideration Shares (the "Escrow Consideration Shares")
will be retained by the Buyer from the Sellers in the numbers set
out opposite their names in column (4) of schedule 1 and held by the
escrow agent in accordance with the terms of the Escrow Letter and
the Offer Document;
(c) 135,000 Consideration Shares (the "Resolution Exit Shares") shall be
issued to the Resolution Partners Limited Assignees in the numbers
set out opposite their names in column (1) of schedule 2 or such
other proportions as the Resolution Partners Limited Assignees may
direct in settlement of the exit payment due to the Resolutions
Partners Limited Assignees under the Resolution Partners Entitlement
Agreement; and
(d) 310,624 Consideration Shares (the "BoS Exit Shares") shall be issued
to BoS or its nominee in settlement of the exit payment due to BoS
under the BoS Overdraft Facility Letter.
4.3 The Buyer agrees that if at any time it increases the value of the Offer
as outlined in the Offer Document it will procure that the Consideration
payable to the Sellers under this agreement is increased on identical
terms and paid to the Sellers on identical terms.
PAGE 6
4.4 Each of the Sellers hereby severally waives any rights which he may have
under the articles of association of the Company to have the Shares or any
of them offered to him for purchase or to participate in the Consideration
in any manner which is inconsistent with the terms of this Agreement.
4.5 In circumstances where this Agreement has lapsed for whatever reason then
the Deed of Warranty shall cease to be of any effect and the Directors
shall have no liability whatsoever in respect thereof.
5. POSITION PENDING COMPLETION
5.1 For the period from the date of this agreement to Completion, the
Warrantors shall use all reasonable endeavours to procure that the
business of the Company is carried on in the ordinary and usual course as
regards the nature, scope and manner of conducting the same and that no
transaction outside the ordinary course of business is carried out without
the prior written consent of the Buyer. Without prejudice to the
generality of the foregoing, the Warrantors shall use all reasonable
endeavours to procure that the Company shall not without the prior written
consent of the Buyer and other than as expressly contemplated by this
agreement:
5.1.1 vary or agree to vary any class rights attached to any shares,
create or issue or agree to create or issue any shares, or grant or
agree to grant any option over any shares or uncalled capital or
issue any securities convertible into shares;
5.1.2 capitalise any amount standing to the credit of any reserve or
redeem or purchase any shares or otherwise reorganise share capital;
5.1.3 admit any person (other than a party to this agreement), whether by
subscription, transfer or transmission, as a member;
5.1.4 create, grant or agree to create, extend, or grant any mortgage,
charge, debenture, lease or other encumbrance over or affecting any
of its assets or undertaking;
5.1.5 dispose of or agree to dispose of any of its assets (except in the
ordinary course of trading) or the whole or any part of its
undertaking;
5.1.6 acquire or agree to acquire the shares of any other company or the
whole or any part of the undertaking of any other company or person;
5.1.7 enter into or amend or terminate any contract or commitment or any
transaction;
5.1.8 make any material change in the nature of its business or cease
carrying on its business in whole or in part;
5.1.9 dismiss or engage any employees or consultants or make any change in
the terms and conditions of employment or engagement or pension
benefits of any employees or consultants;
5.1.10 directly or indirectly induce or endeavour to induce any employees
or consultants to terminate their employment prior to Completion;
PAGE 7
5.1.11 declare or pay any dividend;
5.1.12 give any guarantee or indemnity;
5.1.13 make any payment to or enter into any agreement with any Sellers;
5.1.14 save in respect of interest accruing on the Company Loan Stock in
accordance with its terms, incur any liability to any Sellers and
no Sellers shall incur any liabilities to the Company or any
subsidiary other than trading liabilities incurred in the ordinary
course of business;
5.1.15 vary or agree to vary the terms and conditions of any loans owing
by the Company to any Sellers;
5.1.16 borrow or agree to borrow any monies from any person;
5.1.17 fail to repay creditors within their credit terms; or
5.1.18 seek a purchaser for the SOE2 IPR as defined in the Development
Agreement.
5.2 The parties to this agreement hereby agree for the avoidance of doubt that
nothing in clause 5.1 shall prohibit or prevent the Company from drawing
down further sums under the BoS Overdraft Facility and/or the Company Loan
Stock to pay sums to VIS in accordance with the terms of the Development
Agreement.
5.3 The Buyer shall be entitled to rescind this agreement by written notice to
the Sellers in the event of any material breach of the terms of this
clause 5 in which case this agreement shall terminate without any
liability on the parties hereto.
6. COMPLETION
6.1 Completion shall take place contemporaneously with completion of the
Offer.
6.2 At Completion, the Warrantors shall deliver or cause to be delivered to
the Buyer:
6.2.1 the Updated Disclosure Letter duly executed by the Warrantors;
6.2.2 the certificate of incorporation, all certificates on change of
name, the seal and statutory books of the Company made up to the
date of Completion;
6.2.3 statements of balances at a date not more than two days prior to
Completion with reconciliations to the date of Completion on all
bank accounts of the Company and all current cheque books and bank
mandates relating to such accounts;
6.2.4 resignation letters in the agreed form executed as deeds by
Xxxxxxxxx Xxxxx as director and Xxxxxx Xxxxxxx as director and
secretary of the Company; and
6.2.5 if required by the Buyer an unqualified resignation letter from the
auditors of the Company in the form prescribed by section 394 of the
Companies Xxx 0000.
PAGE 8
6.2.6 letters of release from BoS evidencing the release and discharge of
the charges given by the Company in favour of BoS.
6.3 At Completion, the Sellers severally shall deliver or cause to be
delivered to the Buyer:
6.3.1 stock transfer forms in respect of their Shares duly executed by the
registered holders in favour of the Buyer or its nominee together
with the relevant share certificates (or an express indemnity in the
agreed form in respect of any share certificates found to be
missing);
6.3.2 the Registration Rights Agreement duly executed by them;
6.3.3 the Escrow Letter duly executed by them;
6.3.4 the Lock-Up Agreement duly executed by them; and
6.3.5 written confirmation from each of the Sellers that that Seller
satisfies one of the criteria set out in Schedule 5.
6.4 At Completion the Warrantors severally agree to use all reasonable
endeavours to procure that a meeting of the Board of the Company is held
at which the directors of the Company shall pass resolutions that:
6.4.1 the Buyer or its nominees shall be registered as members of the
Company subject only to the production of duly stamped and completed
stock transfers forms;
6.4.2 the registered office of the Company shall be changed to a place
nominated by the Buyer;
6.4.3 the accounting reference date of the Company shall be changed to a
date nominated by the Buyer;
6.4.4 each existing mandate given by the Company for the operation of its
bank accounts shall be revoked;
6.4.5 such persons as the Buyer may nominate shall be appointed as
directors, secretary and auditors of the Company with effect from
the end of the meeting;
6.4.6 the resignations of the directors, secretary and auditors referred
to in sub-clauses 6.2.4 and 6.2.5 are approved.
6.5 Subject to the simultaneous performance by the Sellers of their
obligations in accordance with the foregoing provisions of this clause 6,
the Buyer shall, subject only to the satisfaction or of the Conditions set
out in sub-clause 3.1, at Completion:
6.5.1 pay or cause to be paid to the Company and procure that the Company
shall pay to the Sellers' Solicitors (whose receipt shall be a
sufficient discharge therefor) a sum equivalent to the nominal value
of the Company Loan Stock drawn down by the Company plus interest
accrued up to the date of Completion;
6.5.2 pay or cause to be paid to the Company and procure that the Company
shall repay to BoS all sums borrowed from BoS under the BoS
Overdraft Facility (together with accrued interest);
PAGE 9
6.5.3 issue the Completion Consideration Shares in accordance with clause
4.2 of this Agreement and deliver to the Sellers' Solicitors (whose
receipt shall be a sufficient discharge therefor) the relevant
documents of title; and
6.5.4 procure the registration of the Completion Consideration Shares in
the names of the persons referred to in clause 4.2.
6.6 If in any respect the provisions of clauses 6.2, 6.3 and 6.4 are not
complied with on the date for Completion set by clause 6.1 the Buyer may:
6.6.1 defer Completion to a date not more than 28 days after the date set
out above (and so that the provisions of this sub-clause shall apply
to Completion as so deferred); or
6.6.2 proceed to Completion so far as practicable (without prejudice to
its rights hereunder); or
6.6.3 rescind this agreement in which case this agreement shall terminate
without any liability on the parties hereto.
6.7 If in any respect the provisions of clause 6.5 are not complied with in
any respect the Sellers may defer Completion, proceed to Completion or
rescind this agreement as set out in clause 6.6.
6.8 The Sellers confirm that the payments set out in clauses 6.4.1 and 6.4.2
are as directed by VIS and that such payments are to be in full
satisfaction of the obligations of VIS to repay the loan plus interest and
relevant costs under the Development Agreement.
6.9 The Buyer shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed in accordance
with this agreement.
6.10 The Sellers shall not be obliged to sell their Shares unless the Buyer
completes the purchase of all the Shares in accordance with this
agreement.
7. BUYER WARRANTIES
7.1 The Buyer hereby warrants to the Sellers:
7.1.1 in the terms of the warranties given to the shareholders of VIS by the
Buyer in the VIS Offer Document; and
7.1.2 that the Warranties set out in schedule 3 of this agreement are true and
accurate at the date hereof and will be true and accurate on Completion.
8. ENTIRE AGREEMENT
8.1 This agreement constitutes the entire agreement between the parties with
respect to its subject matter. It supersedes all previous agreements and
understandings between the parties.
9. WAIVER
9.1 The Buyer may release or compromise the liability of any of the Sellers
hereunder or grant to any Sellers time or other indulgence without
affecting the liability of any other Sellers hereunder.
PAGE 10
9.2 No failure or delay by the Buyer or time or indulgence given by it in
or before exercising any remedy or right under or in relation to this
agreement shall operate as a waiver of the same nor shall any single or
partial exercise of any remedy or right preclude any further exercise
of the same or the exercise of any other remedy or right.
9.3 No waiver by any party of any requirement of this agreement or of any
remedy or right under this agreement shall have effect unless given by
notice in writing signed by such party. No waiver of any particular
breach of the provisions of this agreement shall operate as a waiver of
any repetition of such breach.
9.4 Any release, waiver or compromise or any other arrangement which the
Buyer gives or enters into with any party to this agreement in
connection with this agreement shall not affect any right or remedy of
the Buyer as regards any other party's liabilities under or in relation
to this agreement and such other party shall continue to be bound by
this agreement as if it had been the sole contracting party.
9.5 A waiver of a breach of or default under any of the terms of this
agreement will not prevent a party from subsequently requiring
compliance with the waived obligation in respect of that breach or
continued default.
10. VARIATION
This agreement may not be released, discharged, supplemented, amended,
varied or modified except by an instrument in writing signed by a duly
authorised representative of each of the parties hereto.
11. CONFIDENTIALITY
11.1 Each party undertakes to the other to keep secret and confidential all
information and in whatever form received during the continuance of
this agreement or obtained as a result of entering into or performing
this agreement.
11.2 Each party undertakes to the other not to use any information falling
within sub-clause 11.1 above relating to the Company or any other
party except for the purposes of this agreement and shall not (without
the prior written consent of the other party) disclose the same to any
person save to the extent necessary for the performance of this
agreement and except to the extent that such information:
11.2.1 is required to be disclosed by the law of any relevant
jurisdiction;
11.2.2 is required to be disclosed by any securities exchange or
regulatory or governmental body to which either party is
subject or submits wherever situated including (without
limitation) the SEC, the UK Listing Authority, the London
Stock Exchange, the Financial Services Authority and the Panel
on Takeovers and Mergers whether or not the requirement for
information has the force of law, in which case the party
concerned shall take all such steps as may be reasonable and
practicable in the circumstances to agree the contents of such
announcement with the other party before making such
announcement provided that, in any event, any such
announcement shall be made only after notice to the other
party;
11.2.3 is trivial or obvious;
PAGE 11
11.2.4 is already in the public domain at the time of disclosure or
thereafter shall fall into the public domain other than as a
result of breach of this clause;
11.2.5 is in the disclosing party's possession (as evidenced by
written records) otherwise than as a result of a breach of
this clause;
11.2.6 becomes known to the disclosing party from a source other than
another party to this agreement otherwise than as a result of
a breach of this clause; or
11.2.7 was disclosed after the express prior written approval of the
party to whom such information belongs.
11.3 Notwithstanding anything contained elsewhere in this agreement, the
provisions of this clause 11 shall survive the termination or expiry of
this agreement.
12. ANNOUNCEMENTS
12.1 Save as otherwise provided in this clause 12 no public statement or
announcement (or any statement or disclosure to any public or
regulatory body or any other body which has an obligation to or which
is likely to make public any such statement or disclosure) concerning
the fact or subject matter of this agreement or any ancillary matter
shall be made by any party without the prior written approval of the
other, such approval not to be unreasonably withheld or delayed.
12.2 Any party may make an announcement concerning the subject matter of
this agreement or any ancillary matter to the extent required by:
12.2.1 the law of any relevant jurisdiction;
12.2.2 any securities, exchange or regulatory or governmental body to
which that party is subject or submits, wherever situated,
including (without limitation) the SEC, the Financial Services
Authority, the London Stock Exchange and the Panel on
Takeovers and Mergers, whether or not the requirement has the
force of law, in which case the party concerned shall take all
such steps as may be reasonable and practicable in the
circumstances to agree the contents of such announcement with
the other party before making such announcement provided that,
in any event, any such announcement shall be made only after
notice to the other party.
12.3 The Buyer may at any time after Completion make an announcement or
statement to customers, clients or suppliers of the Company informing
them of the acquisition of the Shares by the Buyer.
13. ASSIGNMENT
13.1 Subject to clause 13.2, no party may assign or in any way dispose of to
any third party its rights under this agreement without the prior
written consent of the other parties to this agreement.
13.2 Notwithstanding the provisions of clause 13.1, Scottish Enterprise may
assign its rights under this Agreement to any statutory successor body.
PAGE 12
14. NOTICES
14.1 Any notice to be given hereunder shall be in writing (other than
writing on the screen of a visual display unit or other similar device
which shall not be treated as writing for the purposes of this clause
unless receipt of the relevant communication is acknowledged by the
relevant party either by electronic mail or by other written means) and
delivered by hand or by pre-paid first class post or by facsimile
letter or by electronic mail letter (notices sent by facsimile or by
electronic mail shall be confirmed immediately by pre-paid first class
post) addressed and sent to the party to be served at the addresses
provided in sub-clause 14.4.
14.2 Notices addressed as provided in sub-clause 14.4. shall be deemed to
have been duly served:
14.2.1 if sent by personal delivery, upon delivery at the address of
the relevant party;
14.2.2 if sent by first class post, two business days after the date
of posting if posted in the country of destination otherwise
after seven days; and
14.2.3 if sent by facsimile, when despatched provided that if any
such notice would otherwise be deemed to be served outside
working hours, such notice shall be deemed to be served at the
start of working hours on the next business day; and
14.2.4 if sent by electronic mail, when receipt of the notice is
acknowledged in accordance with clause 14.1.
14.3 Save in respect of Scottish Enterprise, the address for service of the
Sellers shall be the address (or principal address if more than one) of
the Sellers' Solicitors or such other firm:-
14.3.1 with which it may merge or which a majority of its partners
may join; or
14.3.2 as the Sellers who own the majority in number of Shares may
notify in writing to the Buyer.
If at any time it shall not be evident which firm of solicitors are
appointed for the purposes of this sub-clause the Buyer may by notice
to the Sellers and/or the Warrantors at their address in this Agreement
nominate one of their number for the purposes of receiving and giving
notices.
14.4 The relevant addressee, address, electronic mail address and facsimile
number of each party for the purpose of this agreement are:
NAME OF PARTY ADDRESS AND E-MAIL ADDRESS FACSIMILE NUMBER
BAM! Entertainment, Inc Upper Borough Court 01225 329298
Xxxxx Xxxxxxx Xxxxx
Xxxx XX0 0XX
xxxxxxxxx@xxx0xxx.xxx
PAGE 13
The Sellers c/o Xxxxxxxxx Xxxxx
Cairnsea Investments Limited
Xxxxxxxxx Xxxxx
0 Xxxx Xxxxxx Xxxxxx X00 0XX
xxxx@xxxxxxxx.xxx
Scottish Enterprise The Company Secretary
Scottish Enterprise
000 Xxxxxxxxxx
Xxxxxxxx Xxxx
Xxxxxxx X0 0XX
or such other address as any party may have previously notified to the
other.
14.5 Save in respect of Scottish Enterprise, notice given to the Sellers
pursuant to clause 14.4 above shall be deemed to be notice to all the
Sellers and any notice by the Sellers (other than a notice changing
their Solicitors pursuant to clause 14.4) shall only be given by the
Sellers' Solicitors or the Sellers nominated by the Buyer pursuant to
clause 14.4.
14.6 The provisions of clauses 14.3 and 14.5 shall not apply in respect of
any notice to Scottish Enterprise which must be served in accordance
with clauses 14.1 and 14.2 at the address set out in clause 14.4 or
such other address as they may notify to the other parties.
15. COUNTERPARTS
This agreement may be entered into in any number of counterparts and by
the parties to it on separate counterparts, each of which when executed
and delivered shall be an original, but all the counterparts together
shall constitute one and the same document. This agreement may be
validly exchanged by fax.
16. COSTS AND EXPENSES
Each party to this agreement shall pay its own costs of and incidental
to this agreement and the sale and purchase hereby agreed to be made.
17. RIGHTS OF THIRD PARTIES
17.1 Save for the rights of VIS set out in clause 3, no other person who is
not a party to this agreement shall have any right under the Contracts
(Rights of Third Parties) Xxx 0000 to enforce any term of this
agreement.
17.2 Nothing contained in clause 17.1 shall affect any right or remedy of
any third party which exists or is available other than under the
Contracts (Rights of Third Parties) Xxx 0000 or the rights of VIS
thereunder.
18. GENERAL PROVISIONS
18.1 This agreement shall be binding upon and enure for the benefit of the
personal representatives and successors of the parties as the case may
be.
18.2 The provisions of this agreement in so far as the same shall not have
been performed at Completion shall remain in full force and effect.
PAGE 14
19. GOVERNING LAW AND JURISDICTION
This agreement is governed by and shall be construed in accordance with
English law and the parties hereto submit to the exclusive jurisdiction
of the English Courts in respect of any dispute arising from this
agreement.
AS WITNESS whereof this agreement has been executed the day and year first
before written.
PAGE 15
SCHEDULE 1
THE SELLERS AND THE SHARE CONSIDERATION
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx Xxxxxxx Balmyle Road 320 1,680 125,611 8,182
Xxxxx van der Kuyl Broughty Ferry 13,636 147,429
Xxxxxx XX0 0XX
FLAT 2 320 1,680 125,611 8,182 147,429
Xxxxxxx Xxxxx 0 Xxxxxx Xxxx Xxxxxxx 13,636
Xxxxxxxxx XX0 0XX
---------------------
(1) In respect of the Escrow Consideration Shares, the first figure quoted
relates to those shares to be placed into the Net Asset Escrow Account
(225,000 Escrow Consideration Shares in total) and the second figure quoted
relates to those shares to be placed into the Warranty Escrow Account
(375,000 Escrow Consideration Shares in total).
PAGE 16
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx 5 Xxxxxxx Crescent 160 840 62,806 4,091 73,715
Xxxxxx XX0 0XX 6,818
Xxxx Xxxxx 44 Westbourne 3,581 1 393,641 25,640 462,014
Gardens, Kelvinside, 42,733
Xxxxxxx X00 0XX
Xxxxxxxxx Xxxxxx Xxxxx 00 Xxxxx Xxxxxx, 1,791 0 196,849 12,822 231,040
Xxxxxx X0X 0XX 21,369
Xxxxxxx Xxxxxxxx 0 Xxxxxx Xxxxxxx, 201 2,500 156,676 10,205 183,890
Xxxxxx XX0X 0XX 17,009
PAGE 17
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx, 000 0 57,264 3,730 67,210
Limited XX00 0XX 6,216
Lord Xxxxx'x Xxxxxxxxx House, 6 1,791 0 196,849 12,822 231,040
Settlement of Xxxx Xxxxxx, Xxxxxx X00 0XX 21,369
November 1976
Xxxxx Xxxxxxxx 00 Xxxxx Xxxxxx, 115 0 12,640 823 14,835
Investments Limited Xxxxxxxxx XX0 0XX 1,372
AB Services 00 Xxxxx Xxxxxx, 0 4,000 215,334 14,026 252,737
Xxxxxxxxxx X0 0XX 23,377
PAGE 18
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx Windyridge, 44 0 400 21,534 1,402 25,274
Beechwood Avenue, 2,338
Little Chalfont,
Buckinghamshire
MP6 6PN
Xxxx Xxxxxxxxx Xxxxxxxx Xxxxx, Xx 0 2,000 107,667 7,013 126,368
Leonards Hill, 11,688
Xxxxxxx XX0 0XX
Xxxx Xxxxxxxx Hudworth Tower, 0 2,000 107,667 7,013 126,368
Castle Eden, County 11,688
Xxxxxx XX00 0XX
Five Oceans West Xxxxxxx 0 2,000 107,667 7,013 126,368
Foundation House, West 11,688
Xxxxxxx, Xx
Xxxxxxxxxx, Xxxxxx
XX0 0XX
PAGE 19
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx 00 Xxxx Xxxxx Xxxxxx, 0 600 32,300 2,104 37,910
Xxxxxx XX0X 0XX 3,506
Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx, 0 2,500 134,585 8,766 157,961
Kempshott, 14,610
Xxxxxxxxxxx, Xxxxxxxxx
XX00 0XX
Xxxxxxx Xxxxxx 00 Xxxx Xxxxxxxx. 0 2,020 108,744 7,083 127,632
Newcastle-upon-Tyne 11,805
XX0 0XX
Xxxxxxxx Xxxx 00 Xxxxxxxx Xxxxxx, 0 200 10,767 701 12,637
Xxxxxxx Xxxxxxx X0 0XX 1,169
PAGE 20
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxx 2 Calverly Park, 0 400 21,534 1,402 25,274
Tunbridge Xxxxx, Xxxx 2,338
XX0 0XX
Xxxxx Xxxx 1 Fingalton Road, 0 3,000 161,500 10,520 189,552
Xxxxxx Xxxxxx, 17,532
Xxxxxxx X00 0XX
Xxx Xxxxxxx Xxxxxxx Coppertop, Green
Lane, Lasswade, 11,712
XX00 0XX 0 3,340 179,804 19,519 211,035
Xxxxxxx Xxxxxx 4 Buckstane Park, 0 400 21,534 1,402 25,274
Xxxxxxx Xxxxxxxxx XX00 0XX 2,338
PAGE 21
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx West Farm House, 0 2,500 134,585 8,766 157,961
Xxxxxx Xxxx, 14,610
Xxxxxxxxx, XX0 0XX
Scottish Enterprise 150 Broomielaw 0 820 44,144 2,875 51,811
Atlantic Quay 4,792
Xxxxxxx X0 0XX
Julian Summer South Farm, Water 0 2,000 107,667 7,013 126,368
Xxxxx, Swindon, 11,688
Xxxxxxxxx XX0 0XX
TBI Financial 1st Floor, The Xxxxxx 0 400 21,534 1,402 25,274
Services Limited Xxxx Xxxxxxxx, Xxxxx 0,000
Xxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx XX0 0XX
PAGE 22
(2) (3) (4) (5)
(1) NUMBER OF COMPLETION ESCROW TOTAL
NUMBER OF A SALE ORDINARY SALE CONSIDERATION CONSIDERATION CONSIDERATION
NAME ADDRESS SHARES SHARES SHARES SHARES(1) SHARES
-------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxxx 00 Xxxxxxxx Xxxxxx, 0 5,420 291,777 19,005 342,457
Xxxxxxxxx Xxxxxxx, X0 0XX 31,675
Investments
Limited
Xxxxxxxxxx xxx xxx Xxxxxxx, Xxxxxxx 0 5,500 296,085 19,285 347,513
Kuyl Road, Broughty Ferry, 32,143
Xxxxxx XX0 0XX
----- ------ --------- ------- ---------
TOTAL SHARES 8,800 46,201 3,454,376 600,000 4,054,376
===== ====== ========= ======= =========
PAGE 23
SCHEDULE 2
RESOLUTION EXIT SHARES
NUMBER OF
PERCENTAGE OF BENEFIT CONSIDERATION
NAME ADDRESS RECEIVABLE SHARES
--------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx 00 Xxx Xxxxx, Xxxxxx, Xxxxxx X0 0XX 0.40% 18,000
Xxxxxxxx Xxxxxxx 00 Xxxxxxxxxx Xxxx, Xxxxxx XX0 SDH 0.30% 13,500
Xxxxxx Xxxxxxxx 00 Xxxxxxxxx Xxxx, Xxxxxx XX00 0XX 0.30% 13,500
PAGE 24
NUMBER OF
PERCENTAGE OF BENEFIT CONSIDERATION
NAME ADDRESS RECEIVABLE SHARES
--------------------------------------------------------------------------------------------------------------------------
Cairnsea Investments Xxxxxxxxx Xxxxx, 0 Xxxx Xxxxxx, Xxxxxx X00 0.50% 22,500
Limited 3NX
Xxxxxxxxx Xxxxx 00 Xxxxx Xxxxxx, Xxxxxx X0X 0XX 0.25% 11,250
Xxxxxxxx Xxxxx X/x Xxxxxxxx Xxxxxxxxxxx Xxxxxxx, Xxxxxxxxx 0.25% 11,250
House, 0 xxxx xxxxxx, Xxxxxx X00 0XX
Xxxx Xxxxx X/x Xxxxxxxx Xxxxxxxxx Xxxxxxx, 00 Xxxxxxxx
Xxxxxx, Xxxxxxx X0 0XX 0.80% 36,000
Xxxxxx Xxxxxxx X/x Xxxxxxxx Xxxxxxxxx Xxxxxxx, 00 Xxxxxxxx 0.15% 6,750
Xxxxxx, Xxxxxxx X0 0XX
Xxxxxxx Xxxxxxxx X/x Xxxxxxxx Xxxxxxxxx Xxxxxxx, 00 Xxxxxxxx 0.03% 1,350
Xxxxxx, Xxxxxxx X0 0XX
24
PAGE 25
NUMBER OF
PERCENTAGE OF BENEFIT CONSIDERATION
NAME ADDRESS RECEIVABLE SHARES
--------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxx X/x Xxxxxxxx Xxxxxxxxx Xxxxxxx, 00 Xxxxxxxx 0.02% 000
Xxxxxx, Xxxxxxx X0 0XX
----- -------
TOTAL 3.00% 135,000
===== =======
25
PAGE 26
SCHEDULE 3
LOAN NOTES
NUMBER OF LOAN
NAME ADDRESS NOTES
--------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 00 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxx X00 0XX 177,289
Xxxxxxxxx Xxxxxx Xxxxx 00 Xxxxx Xxxxxx, Xxxxxx X0X 0XX 88,645
Xxxxxxx Xxxxxxxx 0 Xxxxxx Xxxxxxx, Xxxxxx XX0X 0XX 102,440
Coppertop Concepts Limited Xxxxx Xxxx, Xxxxxxxx, XX00 0XX 25,780
Lord Catto's Settlement of Xxxxxxxxx Xxxxx, 0 Xxxx Xxxxxx, Xxxxxx
November 1976 X00 0XX 88,645
Xxxxx Xxxxxxxx Investments Limited 00 Xxxxx Xxxxxx, Xxxxxxxxx XX0 0XX 5,702
AB Services 00 Xxxxx Xxxxxx, Xxxxxxxxxx X0 0XX 148,000
Xxxxx Xxxxx Windyridge, 00 Xxxxxxxxx Xxxxxx,
Xxxxxx Xxxxxxxx, Xxxxxxxxxxxxxxx MP6 19,800
6PN
Xxxx Xxxxxxxxx Xxxxxxxx Xxxxx, Xx Xxxxxxxx Xxxx, 00,000
Xxxxxxx XX0 0XX
Xxxx Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxx
Xxxxxx XX00 0XX 74,000
PAGE 27
NUMBER OF LOAN
NAME ADDRESS NOTES
--------------------------------------------------------------------------------------------------------
Five Oceans Foundation West Xxxxxxx House, West Xxxxxxx, 74,000
Xx Xxxxxxxxxx, Xxxxxx XX0 0XX
Xxxxxx Xxxxxx 00 Xxxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX 29,700
Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxxx, 00,000
Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX
Xxxxxxx Xxxxxx 00 Xxxx Xxxxxxxx. Xxxxxxxxx-xxxx- 00,000
Xxxx XX0 0XX
Northern Edge Limited 00 Xxxxxxxx Xxxxxx, Xxxxxxx X0 0XX 9,900
Xxxx Xxxxxxxx 0 Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxx 19,800
XX0 0XX
Xxxxx Xxxx 0 Xxxxxxxxx Xxxx, Xxxxxx Xxxxxx, 111,000
Xxxxxxx X00 0XX
Xxx Xxxxxxx Xxxxxxx Coppertop, Green Lane, Lasswade, 123,580
XX00 0XX
Xxxxxxx Xxxxxx Xxxxxxx 0 Xxxxxxxxx Xxxx, Xxxxxxxxx XX00 0XX 19,800
Xxxxx Xxxxxx Xxxx Xxxx Xxxxx, Xxxxxx Xxxx, 00,000
Xxxxxxxxx, XX0 0XX
27
PAGE 28
NUMBER OF LOAN
NAME ADDRESS NOTES
--------------------------------------------------------------------------------------------------------
Scottish Enterprise 150 Broomielaw, Atlantic Quay, 40,590
Xxxxxxx X0 0XX
Julian Summer South Farm, Water Xxxxx, Swindon, 74,000
Xxxxxxxxx XX0 0XX
TBI Financial Services 1st Floor, The Xxxxxx Xxxx Building, 19,800
Limited Xxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxx
XX0 DDL
The Xxxxxxxx Portfolio 00 Xxxxxxxx Xxxxxx, Xxxxxxx, X0 0XX 200,540
Investments Limited
Christiaan van der Kuyl Balmyle, Balmyle Road, Broughty Ferry, 203,500
Xxxxxx XX0 0XX
---------
TOTAL 1,990,251
=========
28
PAGE 29
SCHEDULE 4
BUYER'S WARRANTIES
1. ORGANISATION
Buyer is a corporation duly organised and validly existing and in good
standing under the laws of the State of Delaware.
2. CAPITALISATION
The authorised capital stock of Buyer consists of 100,000,000 shares of
Buyer Common Stock, $0.001 par value, of which 20,340,822 shares of
Buyer Common Stock are issued and outstanding and 9,484,173 shares of
Buyer Common Stock are issuable upon the exercise of outstanding
warrants, convertible notes and options pursuant to Stock Option Plans
(the "Buyer Stock Plans") and otherwise. Also authorised are 10,000,000
shares of preferred stock, $0.001 par value, of which no shares are
issued and outstanding. Except as set forth above, no shares of capital
stock or other equity securities of Buyer are issued, reserved for
issuance or outstanding. All outstanding shares of capital stock of
Buyer are, and all shares which may be issued pursuant to this
Agreement will be, when issued, duly authorised, validly issued, fully
paid and nonassessable and, not subject to preemptive rights, and
issued in compliance with all applicable state and federal laws
concerning the issuance of securities.
3. CORPORATE AUTHORITY
Buyer has full corporate power and authority to enter into the
Agreements and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by Buyer of the
Agreements have been duly authorised by all requisite corporate action.
This Agreement has been, and each of the other Agreements will be as at
Completion, duly executed and delivered by Buyer, and (assuming due
execution and delivery by the Sellers) this Agreement constitutes, and
each of the other agreements when executed and delivered will
constitute, a valid and binding obligation of Buyer, enforceable in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganisation or similar laws affecting
creditors' rights generally or by general equitable principles.
4. NO VIOLATION
Buyer is not subject to or bound by any provision of:
4.1 any law, statute, rule, regulation or judicial or administrative
decision;
4.2 any articles or certificate of incorporation or bylaws;
4.3 any mortgage, deed of trust, lease, note, shareholders' agreement,
bond, indenture, other instrument or agreement, license, permit, trust,
custodianship, other restriction; or
4.4 any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator, that would
prevent or be violated by, or under which there would be a default as a
result of, the execution, delivery and performance by Buyer of this
Agreement and the consummation of the transactions contemplated hereby.
Except as set forth in clause 3.1 of this agreement, no consent,
approval or authorisation of or declaration or filing with any Person
is required for the valid execution, delivery and performance by
PAGE 30
Buyer or this Agreement and the consummation of the transactions
contemplated hereby.
5. S.E.C. DOCUMENTS; UNDISCLOSED LIABILITIES
Buyer has filed all reports, schedules, forms, statements and other
documents as required by the Securities and Exchange Commission
statements and other documents as required by the Securities and
Exchange Commission (the "S.E.C.") and documents incorporated by
reference therein, the "Buyer S.E.C. Documents"). As of their
respective dates, the Buyer S.E.C. Documents complied in all material
respects with the requirements of the Securities Act or the Securities
Exchange Act of 1934, as the case may be, and the rules and regulations
of the S.E.C. promulgated thereunder applicable to such Buyer S.E.C.
documents, and none of the Buyer S.E.C. Documents (including any and
all consolidated financial statements included therein) as of such date
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. Except to the extent revised or
superseded by a subsequent filing with the S.E.C., none of the Buyer
S.E.C. Documents contains any untrue statement of a material fact or
omits to state any material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The consolidated financial statements of Buyer
included in such Buyer S.E.C. Documents comply as to form in all
material respects with applicable accounting requirements and the
published rules and regulations of the S.E.C. with respect thereto,
have been prepared in accordance with generally accepted accounting
principles (except, in the case of unaudited consolidated quarterly
statements, as permitted by Form 10-Q of the S.E.C.) applied on a
consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated
financial position of Buyer and its consolidated subsidiaries as of the
dates thereof and the consolidated results of operations and changes in
cash flows for the periods then ended (subject, in the case of
unaudited quarterly statements, to normal year-end audit adjustments as
determined by Buyer's independent accountants). Except as set forth in
the Buyer S.E.C. Documents, at the date of the most recent audited
financial statements of Buyer included in the Buyer S.E.C. Documents,
neither Buyer nor any of its subsidiaries had, and since such date
neither Buyer nor any of such subsidiaries has incurred, any
liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) which, individually or in the aggregate, could
reasonably be expected to have a material adverse effect with respect
to Buyer.
6. ABSENCE OF CERTAIN CHANGES
Save as disclosed in the Offer Document, since the date of the most
recent financial statements included in the Buyer S.E.C. Documents,
Buyer has conducted its business only in the ordinary course consistent
with past practice in light of its current business circumstances, and
save as disclosed in the Offer Document, there is not and has not been
any material adverse change with respect to Buyer.
30
PAGE 31
SCHEDULE 5
INVESTOR CRITERIA
Each Seller must confirm that he or it satisfies one of the three criteria set
out below.
1. The Seller is a natural person that satisfies one or more of the
following qualifications as an "accredited investor" as defined in
Regulation D of the Securities Act:
(a) such Seller's own net worth, taken together with the net worth
of such Seller's spouse, exceeds $1,000,000 U.S. Dollars;
(b) such Seller has an individual gross income in excess of
$200,000 (or joint income with such Seller's spouse in excess
of $300,000) in each of the two previous years and reasonably
expects a gross individual income in excess of $200,000 (or
joint income with such Seller's spouse in excess of $300,000)
this year; or
(c) such Seller has sufficient knowledge and experience in
financial and business matters that such Seller is capable of
evaluating the merits and risk of investing in BAM!
Entertainment, Inc.
2. The Seller is a business entity that satisfies one or more of the
following qualifications as an "accredited investor" as defined in
Regulation D of the Securities Act:
(a) such Seller is a bank, savings and loan association or other
institution acting in its individual or fiduciary capacity;
(b) such Seller is a broker or dealer;
(c) such Seller is an insurance company;
(d) such Seller is an investment company or a business development
company under the Investment Company Act of 0000 (Xxxxxx
Xxxxxx);
(e) such Seller is a trust, not formed for the specific purpose of
acquiring the securities offered, with total assets in excess
of $5,000,000 and whose purchase is directed by a person who
has such knowledge and experience in financial and business
matters that such person is capable of evaluating the merits
and risks of the owning the BAM! Entertainment, Inc
Consideration Shares; or
(f) such Seller is a corporation, partnership or business trust
and (i) was not formed for the specific purpose of receiving
the BAM! Entertainment, Inc Consideration Shares and (ii) has
assets in excess of $5,000,000.
(g) such Seller is an entity as to which all other equity owners
are "accredited investors" as defined herein.
3. The Seller represents and warrants that it is not a citizen or resident
of the United States.
31
PAGE 32
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized,
as of this 18th date of February, 2004
Signed by
BAM! ENTERTAINMENT, INC
acting by:
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Director
PAGE 33
Signed by
XXXXXXXXX XXXXXXX XXXXX VAN DER /s/ [illegible] as attorney
KUYL ----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXXXX XXXXX /s/ [illegible] as attorney
In the presence of: ----------------------------------------
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXX XXXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXXXX XXXXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
33
PAGE 34
Signed by
XXXX XXXXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXX XXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXX XXXXXXX XXXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXXXX XXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
34
PAGE 35
Signed by
XXXX XXXXXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXX XXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXXXXX XXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXXXX XXXXXX XXXXXXX /s/ Xxxxxxx Xxxxxx Richie
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx
----------------------------------------
Address 4 Inch Xxxxxx
East Kilbride
G74 25X
----------------------------------------
35
PAGE 36
Signed by
XXXX XXXXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXXX XXXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
JULIAN SUMMER /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXX XXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
36
PAGE 37
Signed by
CHRISTIAAN VAN DER KUYL /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXXXXXXX XXXXXX XXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
Signed by
XXXX XXXXX /s/ [illegible] as attorney
----------------------------------------
In the presence of:
Witness signature /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Witness name Xxxxxxxx Xxxxxx Xxxxx
----------------------------------------
Address 00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0 00X
----------------------------------------
37
PAGE 38
Signed by
NORTHERN EDGE LIMITED
acting by: /s/ [ILLEGIBLE]
Signed by
TBI FINANCIAL SERVICES LIMITED
acting by: /s/ [ILLEGIBLE]
Signed by
FIVE OCEANS FOUNDATION
acting by: /s/ [ILLEGIBLE]
Signed by
AB SERVICES
acting by: /s/ [ILLEGIBLE]
Signed by
THE XXXXXXXX PORTFOLIO
INVESTMENTS LIMITED
acting by: /s/ [ILLEGIBLE]
SEALED with the COMMON SEAL
And SUBSCRIBED for and on behalf of
SCOTTISH ENTERPRISE
acting by:
/s/ XXXX X XXXXXX
_________________________________
Authorised Signatory
Signed by
LORD CATTO'S SETTLEMENT OF
NOVEMBER 1996
acting by: /s/ [ILLEGIBLE]
38
PAGE 39
Signed by
COPPERTOPS CONCEPTS LIMITED
acting by: /s/ [ILLEGIBLE]
Signed by
XXXXX XXXXXXXX INVESTMENTS
LIMITED
acting by: /s/ [ILLEGIBLE]
39
