EX-10.2 7 v93938a1exv10w2.txt EXHIBIT 10.2 Exhibit 10.2 FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT THIS FIRST AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT (this "FIRST AMENDMENT"), is made as of October 20, 2003, by and among BAM! ENTERTAINMENT, INC., a corporation organized under the laws of the State of Delaware (the "COMPANY"), and the purchasers (the "PURCHASERS") set forth on the execution pages hereof (the "EXECUTION PAGES"). All capitalized terms that are not otherwise defined herein have the meaning given to such terms in the Agreement. WHEREAS: A. The Company and each Purchaser executed and delivered the Agreement in reliance upon the exemption from securities registration afforded by the provisions of Regulation D, as promulgated by the SEC under the Securities Act. B. Each Purchaser purchased, severally and not jointly, subject to the terms and conditions stated in the Agreement, (i) Shares of the Company's Common Stock, (ii) Warrants to purchase Warrant Shares and (iii) Additional Investment Rights to purchase Additional Investment Right Shares and Additional Investment Right Warrants, as set forth in greater detail on Exhibit F to the Agreement. C. Nasdaq rules would require the Company to obtain approval of the Company's stockholders under the original terms of the Agreement, and, as a result, the Company and each Purchaser mutually agree to amend Exhibit F to the Agreement so that approval by the Company's stockholders is not required. NOW, THEREFORE, in consideration of the above recitals and the mutual agreements herein contained and for other good and valuable consideration, the Company and the Purchasers hereby agree that Exhibit F of the Agreement is hereby amended to read in its entirety as Exhibit F attached hereto. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the undersigned Purchasers and the Company have caused this First Amendment to the Securities Purchase Agreement to be duly executed as of the date first above written. COMPANY: BAM! ENTERTAINMENT, INC. By: /s/ Stephen Ambler ---------------------------------- Name: Stephen Ambler ---------------------------------- Title: CFO/VP Finance ---------------------------------- 2 THE PURCHASERS: VERTICAL VENTURES LLC By: /s/ Joshua Silverman -------------------------------- Name: Joshua Silverman ------------------------------ Title: Partner ----------------------------- 3 THE PURCHASERS: CRESCENT INTERNATIONAL LTD By: /s/ Maxi Brezzi -------------------------------- Name: Maxi Brezzi ------------------------------ Title: Authorized Signatory ----------------------------- 4 THE PURCHASERS: SMITHFIELD FIDUCIARY LLC By: /s/ Adam J. Chill ------------------------------------ Name: Adam J. Chill ---------------------------------- Title: Authorized Signatory --------------------------------- Residence: Cayman Islands ----------------------------- Address: c/o Highbridge Capital ------------------------------- Management, LLC ---------------------------------------- 9 West 57th Street, 27th Floor ---------------------------------------- New York, New York 10019 ---------------------------------------- Telephone No.: (212) 287-4720 --------------- Telecopy No.: (212) 751-0755 --------------- Attention: Ari J. Storch / Adam J. Chill ---------------------------------------- Email Address: ari.storch@hcmny.com ------------------------- adam.chill@hcmny.com ------------------------- 5 THE PURCHASERS: TRUK OPPORTUNITY FUND, LLC By: /s/ Stephen E. Saltzstein --------------------------------- Name: Stephen E. Saltzstein ------------------------------- Title: Principal ------------------------------ 6 THE PURCHASERS: JAS SECURITIES, LLC By: /s/ Mike Coughlan -------------------------- Name: Mike Coughlan ------------------------ Title: CFO ----------------------- 7 THE PURCHASERS: AIG DKR SOUNDSHORE PRIVATE INVESTORS HOLDING FUND LTD. By: /s/ Barbara Burger -------------------------- Name: Barbara Burger ------------------------ Title: Alternative Director ----------------------- 8 THE PURCHASERS: OTAPE INVESTMENTS LLC By: /s/ James W. Santor -------------------------- Name: James W. Santor ------------------------ Title: CFO ----------------------- 9 EXHIBIT F TO FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT VERTICAL VENTURES LLC: $ 758,000 42.68018% 789,584 Shares (purchased at $0.96 per share) 710,625 Warrants (exercisable at $1.87 per share) Additional Investment Rights to purchase: 474,443 Additional Investment Right Shares at $0.96 per share Additional Investment Right Warrants to purchase 426,999 Additional Investment Right Warrant Shares at an exercise price per share equal to the greater of (i) the lesser of (x) the closing bid price of the Company's Common Stock on the Nasdaq Stock Market on the Business Day immediately preceding the exercise date of the Additional Investment Right, and (y) the average of the closing bid price of the Company's Common Stock on the Nasdaq Stock Market for the five (5) Business Days immediately preceding the exercise date of the Additional Investment Right (the "Market Price") and (ii) $1.87 CRESCENT INTERNATIONAL LTD: $ 315,000 17.73648% 328,125 Shares (purchased at $0.96 per share) 295,313 Warrants (exercisable at $1.87 per share) Additional Investment Rights to purchase: 197,163 Additional Investment Right Shares at $0.96 per share Additional Investment Right Warrants to purchase 177,447 Additional Investment Right Warrant Shares at an exercise price per share equal to the greater of $1.87 and the Market Price SMITHFIELD FIDUCIARY LLC: $ 225,000 12.668919% 234,375 Shares (purchased at $0.96 per share) 210,938 Warrants (exercisable at $1.87 per share) Additional Investment Rights to purchase: 140,831 Additional Investment Right Shares at $0.96 per share Additional Investment Right Warrants to purchase 126,747 Additional Investment Right Warrant Shares at an exercise price per share equal to the greater of $1.87 and the Market Price
TRUK OPPORTUNITY FUND, LLC: $ 20,961 1.18023% 21,834 Shares (purchased at $0.96 per share) 19,651 Warrants (exercisable at $1.87 per share) Additional Investment Rights to purchase: 13,120 Additional Investment Right Shares at $0.96 per share Additional Investment Right Warrants to purchase 11,808 Additional Investment Right Warrant Shares at an exercise price per share equal to the greater of $1.87 and the Market Price JAS SECURITIES, LLC: $ 81,109 4.56694% 84,489 Shares (purchased at $0.96 per share) 76,040 Warrants (exercisable at $1.87 per share) Additional Investment Rights to purchase: 50,767 Additional Investment Right Shares at $0.96 per share Additional Investment Right Warrants to purchase 45,690 Additional Investment Right Warrant Shares at an exercise price per share equal to the greater of $1.87 and the Market Price AIG DKR SOUNDSHORE PRIVATE $ 91,135 5.13141% INVESTORS HOLDING FUND, LTD: 94,931 Shares (purchased at $0.96 per share) 85,438 Warrants (exercisable at $1.87 per share) Additional Investment Rights to purchase: 57,042 Additional Investment Right Shares at $0.96 per share Additional Investment Right Warrants to purchase 51,338 Additional Investment Right Warrant Shares at an exercise price per share equal to the greater of $1.87 and the Market Price OTAPE INVESTMENTS LLC: $ 284,796 16.03581% 296,662 Shares (purchased at $0.96 per share) 266,995 Warrants (exercisable at $1.87 per share) Additional Investment Rights to purchase: 178,259 Additional Investment Right Shares at $0.96 per share Additional Investment Right Warrants to purchase 160,433 Additional Investment Right Warrant Shares at an exercise price per share equal to the greater of $1.87 and the Market Price