Separation Agreement - GT Interactive Software Corp. and John T. Baker IV
SEPARATION AGREEMENT
This separation agreement, dated as of February 18, 2000 (the "Separation
Agreement"), is made by and between GT INTERACTIVE SOFTWARE CORP., a Delaware
corporation having its executive offices and principal place of business in New
York, New York (the "Company"), and JOHN T. BAKER IV (the "Executive").
In consideration of the mutual covenants and agreements hereinafter set
forth, the Company and the Executive agree as follows:
1. Effective Date. Upon the execution of this Separation Agreement
and the consulting services agreement attached hereto as Exhibit A (the
"Consulting Agreement"), the Company shall submit this Separation Agreement and
the Consulting Agreement to the Board of Directors of the Company for its
approval. This Separation Agreement will become effective upon the latest of the
following dates (the "Effective Date"): (1) the date on which the Separation
Agreement has been executed by both the Company and the Executive; (2) the date
on which the Separation Agreement is approved by the Board of Directors of the
Company; or (3) the date on which the Executive's general release attached
hereto as Exhibit B becomes effective.
2. Termination of Employment Agreement and Stock Option Agreements.
The Employment Agreement dated as of April 2, 1999 between the Company and the
Executive, and the Amended and Restated Employment Agreement between the Company
and the Executive dated as of October 18, 1999, and any exhibits and attachments
thereto (collectively the "Employment Agreement") and the Stock Option Agreement
between the Company and the Executive dated as of April 28, 1999 under the
Company's 1997 Stock Incentive Plan (the "Stock Option Agreement"), are hereby
terminated as of the Effective Date.
3. Titles. The Executive agrees that upon the Effective Date, he will
resign from his positions as President and Chief Operating Officer of the
Company.
4. Consulting Agreement. The Company and the Executive agree to enter
into the Consulting Agreement attached hereto as Exhibit A. The terms and
conditions of the Consulting Agreement shall not become effective until the
Effective Date of this Separation Agreement.
5. Separation Payments. The Company agrees to pay the Executive the
sum of $1,150,000, of which the first installment of $575,000 will be payable
within five (5) business days after the Effective Date and the second
installment of $575,000 will be
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payable within five (5) business days after January 1, 2001. Notwithstanding the
foregoing, in the event of a Change of Control (as defined in the next
paragraph), the Company (or its successor) shall pay to the Executive any unpaid
separation payment within thirty (30) days of the date of such Change of
Control.
For purposes of this Separation Agreement, "Change of Control" means
any of the following occurrences:
(a) any "person" as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934 ("Exchange Act") or "group"
as contemplated by, or required to comply with the provisions of Rule
13d-1(b)(1)(ii)(H) promulgated under the Exchange Act (other than the
Company or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company together or individually, a "Current
Owner"), or any entity more than 50% of whose voting and equity interests
are owned beneficially by a Current Owner), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities (other
than as a result of a merger or consolidation covered by clause (c)(i)
below in connection with a merger involving the Company which would
result in voting securities of the Company outstanding immediately prior
thereto continuing to represent more than 50% of the combined voting
power of the voting securities of the Company or the surviving entity (or
its parent) outstanding immediately after such merger or- consolidation);
(b) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the
Company, and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in clause (a), (b) or (d) of this definition) whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a majority
thereof;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other entity, other than (i) a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined voting
power of the voting securities of the
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Company or such surviving entity (or its parent) outstanding immediately
after such merger or consolidation or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no "person" or "group" (as hereinabove defined)
acquires more than 50% of the combined voting power of the Company's then
outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
The Executive agrees that the separation payments described in
this Separation Agreement and the consulting fees and continued benefits and
perquisites described in the Consulting Agreement are in exchange for any and
all rights or claims of the Executive under any and all prior agreements,
including without limitation, the Employment Agreement and the Stock Option
Agreement, to severance payments, bonus payments, or any other additional
benefits.
In the event that the Executive dies or becomes totally and
permanently disabled (as defined in the Company's long term disability insurance
policy under which the Executive is covered at the time his employment with the
Company is terminated) either before or during the Agreement Term, then the
Company shall pay any unpaid separation payments at the time or times specified
in Paragraph 5 to the Executive's estate (in the event of his death) or to the
Executive or his legal guardian (in the event he is totally and permanently
disabled).
6. Stock Options. On the Effective Date, the Executive will forfeit
any and all options to purchase shares of stock of the Company, including any
option under the Stock Option Agreement. The Stock Option Agreement will be
deemed to have terminated.
7. Non-Disparagement. The Executive agrees that, without the prior
written consent of the Company, neither he, nor anyone acting on his behalf,
will: (a) make derogatory, disparaging, or critical statements about the
Company, Infogrames or any of their related affiliates, or any of their past and
present employees, officers, directors, representatives, or agents; or (b) for a
two year period commencing with the Effective Date, communicate, directly or
indirectly, with the press or other media concerning the past or present
employees or businesses of the Company, Infogrames or any of their related
affiliates. The Company agrees that, without the prior written consent of the
Executive, it will not make derogatory, disparaging, or critical statements
about the Executive.
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8. General Releases. As a condition to the receipt of any separation
payments under Paragraph 5, the Executive agrees to execute a general release,
in the form attached hereto as Exhibit B. The Company agrees to execute a
general release, immediately subsequent to the execution of a general release by
the Executive, in the form attached hereto as Exhibit C.
9. Press Release. The Company and the Executive mutually agree upon
all press releases and such other statements that may be made regarding the
Executive's employment with the Company, the termination of such employment, and
the continued services provided to the Company under the Consulting Agreement.
10. Withholding. Any payments made under this Separation Agreement
shall be subject to any applicable federal, state, and local tax withholdings.
11. Severability. In the event that any of the provisions of this
Separation Agreement or the application of any such provisions to the Company or
the Executive with respect to obligations hereunder will be held to be unlawful
or unenforceable by any court or arbitrator, the remaining portions of this
Separation Agreement will remain in full force and effect and will not be
invalidated or impaired in any manner.
12. Governing Law. This Separation Agreement will be governed by and
construed in accordance with the laws of the State of California, without giving
effect to the principles of conflicts of laws. All actions or proceedings
relating directly or indirectly to this Separation Agreement shall be litigated
in any state court or federal court located in Los Angeles, California. The
Executive and the Company hereto expressly consent to the jurisdiction of any
such court and to venue therein.
13. Entire Agreement. This Separation Agreement contains the entire
agreement between the Company and the Executive with respect to the subject
matter of this Separation Agreement and supersedes all prior agreements and
understandings, including without limitation, the Employment Agreement and the
Stock Option Agreement, whether oral or written, between the Company and the
Executive with respect to the subject matter of this Separation Agreement. This
Separation Agreement may be amended only by an agreement in writing signed by
both the Company and the Executive.
14. Counterparts. This Separation Agreement may be executed in any
number of counterparts, each of which so executed will be deemed to be an
original, and such counterparts will together constitute but one agreement.
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IN WITNESS WHEREOF, the Company has caused this Separation Agreement to
be duly executed on its behalf by an officer duly authorized, and the Executive
has duly executed this Separation Agreement, all as of the date and year first
written above.
GT INTERACTIVE SOFTWARE CORP. EXECUTIVE
By: /s/ Harry L. Glantz /s/ John Baker
-------------------- --------------
Name: Harry L. Glantz John T. Baker IV
Title: Vice President, Human Resources
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EXHIBIT A
CONSULTING AGREEMENT
This consulting services agreement, dated as of February 18, 2000 (the
"Consulting Agreement") is made by and between GT INTERACTIVE SOFTWARE CORP., a
Delaware corporation having its executive offices and principal place of
business in New York, New York (the "Company") and JOHN T. BAKER IV (the
"Consultant").
In consideration of the mutual covenants and agreements hereinafter set
forth, the Company and the Consultant agree as follows:
1. Engagement; Agreement Term. The Company hereby engages the
Consultant, and the Consultant hereby accepts such engagement and agrees to
serve as a consultant to the Company, upon the terms and conditions hereinafter
set forth, for a term of two years commencing on February 21, 2000 and expiring
on February 20, 2002 (such term being hereinafter referred to as the "Agreement
Term"). This Consulting Agreement will be effective as of the effective date
of the separation agreement between the Company and the Consultant (the
"Separation Agreement").
2. Duties; Conduct.
(a) During the Agreement Term, the Consultant shall
render consulting services from time to time as hereinafter provided on such
project or projects relating to the business, affairs and management of the
Company as may be reasonably delegated to him by the Board of Directors of the
Company.
(b) Notwithstanding any other provision of this
Consulting Agreement to the contrary, to the extent practicable, the services
to be provided by the Consultant shall be performed at such times and in a
manner and from a location as is reasonably convenient to him. The Company
acknowledges that the Consultant may have other activities, obligations and
engagements which may command his time and attention and the Company will
exercise its best efforts, in calling upon the Consultant's services hereunder,
to respect such other commitments.
(c) During the Agreement Term, subject to Section 2(b),
the Consultant agrees to make himself available during regular business hours
to perform the consulting services referred above in accordance with the
provisions hereof, and to apply such efforts as are reasonably appropriate to
perform such services faithfully and diligently, and to the best of his ability;
and not take any action or conduct himself in any manner which would tend to
harm the reputation or goodwill of the Company. Notwithstanding anything to the
contrary contained herein, the Company agrees and understands that none of the
Consultant's duties hereunder will limit or interfere with any other personal or
professional pursuits (including full-time employment subject to the
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limitations set forth in Section 4(a) hereof), except as set forth in Section 4
hereof. Moreover, no conflict between the Consultant's duties hereunder and
his other personal or professional pursuits shall operate to prevent the
payment by the Company to the Consultant of amounts due under this Consulting
Agreement, except as set forth in Section 4 hereof.
3. Compensation, Benefits and Expenses.
(a) As full compensation for all services to be provided
by the Consultant during the Agreement Term, the Company will pay the Consultant
and the Consultant shall accept a consulting fee (the "Consulting Fee") of
$1,150,000, of which $575,000 will be payable within five (5) days after the
effective date of this Consulting Agreement and $575,000 will be payable within
five (5) days after January 1, 2001.
(b) In the event of a Change of Control, as defined in
the Separation Agreement, the Company (or its successor) shall pay to the
Consultant any unpaid portion of the Consulting Fee within thirty (30) days
following such Change of Control.
(c) The Company shall continue to pay the full cost of
coverage for the Consultant and his covered family members under the Company's
medical, dental and vision plans for a period of eighteen (18) months following
the effective date of this Consulting Agreement. Such continued health
insurance coverage will run concurrently with and be credited toward the period
in which the Consultant and his covered family members may elect coverage under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or
applicable state law. For the period beginning on the first day of the
nineteenth (19th) month of the Agreement Term through the end of the Agreement
Term, the Company shall provide health insurance coverage for the Consultant and
his covered family members, on terms and conditions that are similar to those
provided to active employees of the Company. Notwithstanding the foregoing, in
the event that the Consultant shall breach Sections 4 or 5 hereof, in addition
to any other remedies the Company may have in the event the Consultant breaches
Sections 4 or 5 hereof, the Company's obligation pursuant to this Consulting
Agreement to pay the Consulting Fee and to continue such benefits and
perquisites shall cease and the Consultant's rights thereto shall terminate and
shall be forfeited, it being understood by the parties that such Consulting Fee,
benefits and perquisites would not be agreed to by the Company in the absence of
the Consultant's compliance, for whatever reason, with the provisions of
Sections 4 and 5 hereof. During the Agreement Term, the Consultant shall be
entitled to reimbursement of any unpaid business related expenses, subject to
and in accordance with the Company's policies.
(d) The Company acknowledges that the Consultant is an
independent contractor; however, the Company reserves the right to withhold
applicable taxes and
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other amounts from payments made to the Consultant under this Consulting
Agreement, if required by applicable law.
In the event that the Consultant dies or becomes totally and
permanently disabled (as defined in the Company's long term disability insurance
policy under which the Consultant is covered at the time his employment with
the Company is terminated) before or during the Agreement Term, the Company
shall pay the Consulting Fee at the time or times specified in Section 3(a)
hereof (or 3(b) if applicable) (i) to the Consultant's estate in the event of
his death and (ii) to the Consultant or his legal guardian in the event the
Consultant is totally and permanently disabled.
4. Exclusive Services; Noncompetition.
(a) No Competition. During the Agreement Term, the Consultant shall
not, directly or indirectly, own, manage, operate, join, control, participate
in, invest in or otherwise be connected or associated with, in any manner,
including as an officer, director, employee, partner, consultant, advisor,
agent, proprietor, trustee or investor, any Competing Business. For purposes of
this Section 4(a), the term "Competing Business" shall mean (A) any business or
venture which develops, manufactures, publishes, licenses, sells, distributes or
supplies entertainment, educational or "edutainment" computer software or video
games for commercial use, whether for retail distribution, by direct marketing,
electronically, by license to others or otherwise; or (B) any other business
which is substantially similar to the whole or any significant part of the
business conducted by the Company (any such activities described in the
foregoing clauses (A) or (B) shall for purposes of this section be hereinafter
referred to as "Prohibited Activities"); provided that ownership of 2% or less
of the stock or other securities of a corporation, the stock of which is listed
on a national securities exchange or is quoted on The NASDAQ Stock Market, shall
not constitute a breach of this Section 4, so long as the Consultant does not in
fact have the power to control, or direct the management of, or is not otherwise
associated with, such corporation. Notwithstanding anything to the contrary
contained herein, the Consultant may be employed by a business or venture which
engages in Prohibited Activities only so long as (x) the Consultant does not
engage directly or indirectly in any Prohibited Activities, (y) such business or
venture derives only immaterial revenues and profits from Prohibited Activities
in relation to its overall business and (z) the Consultant's ownership of such
business or venture is less than 2% of the stock or other securities thereof and
the Consultant does not have the power to control or direct the management
thereof.
(b) Company Customers. The Consultant shall not, during the Agreement
Term, directly or indirectly, contact, solicit or do business with (i) Wal-Mart
Corporation, Target Stores, Comp U.S.A., Best Buy, Office Depot, Kmart or any of
their respective affiliated operations, for the purpose of selling
entertainment, educational or
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"edutainment" computer software, video games or any other product (which is an
integral product in a material product line of the Company) then sold by the
Company to such customers at the time of termination of the Consultant's
Employment Agreement hereunder; (ii) any "customers" (as defined below) of the
Company for the purpose of selling computer software, video games or any other
product then sold by the Company to such customers at the time of termination of
the Consultant's Employment Agreement hereunder; or (iii) any supplier,
licensor or licensee of the Company with respect to licensing computer
software, video games or other intellectual property (which is related to
computer software, video games or any other material product line of the
Company), from such person.
For the purposes of the provisions of this Section 4(b), "customer"
shall include any entity that purchased computer software, video games or any
other product from the Company within eight (8) months of the termination of the
Consultant's Employment Agreement hereunder, without regard to the reason for
such termination. The term "customer" also includes any former customer or
potential customer of the Company which the Company has solicited within eight
(8) months of such termination, for the purpose of selling computer software or
any other product then sold by the Company.
(c) Election to Terminate Consulting Relationship. The Consultant may,
at any time during the Agreement Term, elect by written notice to the Company to
terminate his consulting relationship with the Company. In the event of such an
election, then the Company shall pay to the Consultant, within fifteen (15) days
of such termination, Consulting Fees through such date of termination.
Thereafter, (i) the Consultant's obligations to the Company arising under
Sections 4(a) and 4(b) hereof shall terminate and (ii) the Company's obligation
pursuant to this Consulting Agreement to pay the Consulting Fee and to provide
benefits and perquisites described in Section 3(c) shall cease and the
Consultant's rights thereto shall terminate and shall be forfeited. Nothing
contained herein shall be deemed, during the Agreement Term, to discharge the
Consultant of his obligations arising under Section 5 hereof, whether or not an
election is made pursuant to this Section 4(c).
5. Confidential Information.
(a) Existence of Confidential Information. The Company owns and has
developed and compiled, and will develop and compile, certain proprietary
techniques and confidential information which have great value to its
business (referred to in this Consulting Agreement, collectively, as
"Confidential Information"). Confidential Information includes not only
information disclosed by the Company to the Consultant, but also information
developed or learned by the Consultant during the course of or as a result of
consulting services or prior employment services provided to
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the Company, which information shall be the property of the Company.
Confidential information includes all information that has or could have
commercial value or other utility in the business in which the Company is
engaged or contemplates engaging, and all information of which the unauthorized
disclosure could be detrimental to the interests of the Company, whether or not
such information is specifically labeled as Confidential Information by the
Company. By way of example and without limitation, Confidential Information
includes any and all information developed, obtained, licensed by or to or owned
by the Company concerning trade secrets, techniques, know-how (including
designs; plans, procedures, merchandising, marketing, distribution and
warehousing know-how, processes, and research records), software, computer
programs, and any other intellectual property created, used or sold (through a
license or otherwise) by the Company, Electronic Data Information know-how and
processes, innovations, discoveries, improvements, research, development, test
results, reports, specifications, data, formats, marketing data and plans,
business plans, strategies, forecasts, unpublished financial information,
orders, agreements and other forms of documents, price and cost information,
merchandising opportunities, expansion plans, store plans, budgets, projections,
customer, supplier, licensee, licensor and subcontractor identities,
characteristics, agreements and operating procedures, and salary, staffing and
employment information.
(b) Protection of Confidential Information. The Consultant
acknowledges and agrees that in the performance of duties hereunder the Company
discloses to and entrusts the Consultant with Confidential Information which is
the exclusive property of the Company and which the Consultant may possess or
use only in the performance of duties for the Company. The Consultant also
acknowledges that the Consultant is aware that the unauthorized disclosure of
Confidential Information, among other things, may be prejudicial to the
Company's interests, an invasion of privacy and an improper disclosure of trade
secrets. The Consultant shall not, directly or indirectly, use, make available,
sell, disclose or otherwise communicate to any corporation, partnership,
individual or other third party, other than in the course of the Consultant's
assigned duties and for the benefit of the Company, any Confidential
Information, either during the Agreement Term or thereafter. Notwithstanding the
foregoing, Confidential Information shall not include that information which (i)
is or comes into the public domain, unless such information comes into the
public domain as a result of a breach of this Consulting Agreement or violation
of a confidentiality obligation to the Company, or (ii) is required to be
disclosed pursuant to law or under a court order.
(c) Delivery of Records, Etc. In the event the Consultant's
consulting relationship with the Company ceases for any reason, the Consultant
will not remove from the Company's premises without its prior written consent
any records, files, drawings, documents, equipment, materials and writings
received from, created for or belonging to the Company, including those which
relate to or contain Confidential
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Information, or any copies thereof, except that the Consultant shall be
permitted to remove his personal files, records and belongings (including copies
of his correspondence, which may include Confidential Information). Upon request
or when the consulting relationship with the Company terminates, the Consultant
will immediately deliver the same to the Company.
6. Assignment and Transfer.
(a) Company. This Consulting Agreement shall inure to the benefit of
and be enforceable by, and may be assigned by the Company to, any purchaser of
all or substantially all of the Company's business or assets, any successor to
the Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise). The Company will require any such
purchaser, successor or assignee to expressly assume and agree to perform this
Consulting Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such purchase, succession or assignment
had taken place.
(b) Consultant. The Consultant's rights and obligations under this
Consulting Agreement shall not be transferable by the Consultant by assignment
or otherwise, and any purported assignment, transfer or delegation thereof shall
be void; provided, however, that if the Consultant shall die, all amounts then
payable to the Consultant hereunder shall be paid in accordance with the terms
of this Consulting Agreement to the Consultant's devisee, legatee or other
designee or, if there be no such designee, to the Consultant's estate.
7. Miscellaneous.
(a) Insurance and Indemnification. The Consultant shall continue to
be indemnified for acts occurring prior to his termination of employment, to the
extent the Company's policy or benefits cover former employees. During any
period of the Agreement Term in which the Consultant serves as a director of the
Company, the Consultant shall be covered under any director and officer
insurance policy obtained by the Company, if any, and shall be entitled to
benefit from any officer or director indemnification arrangements to the fullest
extent permitted under applicable law and in accordance with the Company's
existing Certificate of Incorporation (including the right to such coverage or
benefit following the Consultant's employment to the extent such policy or
benefit covers former employees).
(b) Nondisclosure; Prior Employers. The Consultant will not disclose
to the Company, or use, or induce the Company to use, any proprietary
information, trade secrets or confidential business information of others. The
Consultant represents and
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warrants that the Consultant has returned all property, proprietary information,
trade secrets and confidential business information belonging to prior
employers.
(c) Protection of Reputation. During the Agreement Term and
thereafter, the Consultant agrees that he will take no action which is intended,
or would reasonably be expected, to harm the Company or its reputation or which
would reasonably be expected to lead to unwanted or unfavorable publicity to the
Company.
(d) Governing Law. This Consulting Agreement, including the validity,
interpretation, construction and performance of this Consulting Agreement, shall
be governed by and construed in accordance with the laws of the State of
California applicable to agreements made and to be performed in such state
without regard to such state's conflicts of law principles. All actions and
proceedings relating directly or indirectly to this Consulting Agreement shall
be litigated in any state court or federal court located in Los Angeles,
California. The parties hereto expressly consent to the jurisdiction of any such
court and to venue therein.
(e) Amendment. This Consulting Agreement may be amended only by a
writing which makes express reference to this Consulting Agreement as the
subject of such amendment and which is signed by the Consultant and, on behalf
of the Company, by its duly authorized officer.
(f) Severability. If any term, provision, covenant or condition of
this Consulting Agreement or part thereof, or the application thereof to any
person, place or circumstance, shall be held to be invalid, unenforceable or
void, the remainder of this Consulting Agreement and such term, provision
convenant or condition shall remain in full force and effect, and any such
invalid, unenforceable or void term, provision, convenant or condition shall be
deemed, without further action on the part of the parties hereto, modified,
amended and limited to the extent necessary to render the same and the remainder
of this Consulting Agreement valid, enforceable and lawful. In this regard, the
Consultant acknowledges that the provisions of Section 4 and 5 are reasonable
and necessary for the protection of the Company.
(g) Construction. The headings and captions of this Consulting
Agreement are provided for convenience only and are intended to have no effect
in construing or interpreting this Consulting Agreement. The language in all
parts of this Consulting Agreement shall be in all cases construed according to
its fair meaning and not strictly for or against the Company or the Consultant.
The use herein of the word "including," when following any general provision,
sentence, clause, statement, term or matter, shall be deemed to mean "including,
without limitation". As used herein, "Company" shall mean the Company and its
subsidiaries and any purchaser of, successor to or assignee (whether direct or
indirect, by purchase, merger, consolidation or
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otherwise) of all or substantially all of the Company's business or assets which
is obligated to perform this Consulting Agreement by operation of law, agreement
pursuant to Section 6 hereof or otherwise. As used herein, the words "day" or
"days" shall mean a calendar day or days.
(h) Nonwaiver. Neither any course of dealing nor any failure or
neglect of either party hereto in any instance to exercise any right, power or
privilege hereunder or under law shall constitute a waiver of any other right,
power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(i) Remedies for Breach. The parties hereto agree that the Consultant
is obligated under this Consulting Agreement to render personal services during
the Agreement Term of a special, unique, unusual, extraordinary and intellectual
character, thereby giving this Consulting Agreement peculiar value, and, in the
event of a breach or threatened breach of any covenant of the Consultant herein,
the injury or imminent injury to the value and the goodwill of the Company's
business could not be reasonably or adequately compensated in damages in an
action at law. Accordingly, the Consultant expressly acknowledges that the
Company shall be entitled to specific performance, injunctive relief or any
other equitable remedy against the Consultant, without the posting of a bond, in
the event of any breach or threatened breach of Sections 4 and 5 hereof. Without
limiting the generality of the foregoing, if the Consultant breaches Sections 4
or 5 hereof, such breach will entitle the Company to enjoin the Consultant from
disclosing any Confidential Information to any Competing Business, to enjoin
such Competing Business from receiving from the Consultant or using any such
Confidential Information and/or to enjoin the Consultant from rendering personal
services to or in connection with such Competing Business. The rights and
remedies of the parties hereto are cumulative and shall not be exclusive, and
each such party shall be entitled to pursue all legal and equitable rights and
remedies and to secure performance of the obligations and duties of the other
under this Consulting Agreement, and the enforcement of one or more of such
rights and remedies by a party shall in no way preclude such party from
pursuing, at the same time or subsequently, any and all other rights and
remedies available to it.
(j) Notices. Any notice, request, consent or approval required or
permitted to be given under this Consulting Agreement or pursuant to law shall
be sufficient if in writing, and if and when sent by certified or registered
mail, return receipt requested, with postage prepaid, or by hand delivery or by
reputable overnight delivery service (such as Federal Express) to the
Consultant's residence (as reflected in the Company's records or as otherwise
designated by the Consultant on thirty (30) days' prior written notice to the
Company) with a copy to Michael K. Lindsey, Esq., Paul, Hastings, Janofsky &
Walker LLP, 555 South Flower Street, 23rd Floor, Los Angeles, California
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90071, or to the Company's principal executive office, attention: General
Counsel with a copy to Dennis J. Friedman, Esq., Chadbourne & Parke LLP, 30
Rockefeller Plaza, New York, New York 10112, as the case may be. All such
notices, requests, consents and approvals shall be effective upon receipt.
However, the time period in which a response thereto must be given shall
commence to run from the date of receipt on the return receipt of the notice,
request, consent or approval by the addressee thereof. Rejection or other
refusal to accept, or the inability to deliver because of changed address of
which no notice was given as provided herein, shall be deemed to be receipt of
the notice, request, consent or approval sent.
(k) Payment without Regard to Other Sums. Payments under this
Consulting Agreement shall be made to the Consultant without regard to sums
earned by the Consultant from any other source, except as provided in Section
3(b) hereof.
(l) Affect on Separation Agreement. Nothing in this Consulting
Agreement shall in any event limit the enforceability of any of the terms of any
separation agreement by and between the Company and the Consultant.
IN WITNESS WHEREOF, the Company has caused this Consulting Agreement to be
duly executed on its behalf by an officer duly authorized, and the Consultant
has duly executed this Consulting Agreement, all as of the date and year first
written above.
GT INTERACTIVE SOFTWARE CORP. CONSULTANT
By: /s/ HARRY L. GLANTZ /s/ JOHN BAKER
----------------------- --------------------
Name: Harry L. Glantz John T. Baker IV
Title: Vice President, Human Resources
9
<PAGE> 15
EXHIBIT B
GENERAL RELEASE BY JOHN T. BAKER IV
FOR AND IN CONSIDERATION OF the terms and conditions of the separation
agreement dated as of February 18, 2000 by and between JOHN T. BAKER IV (the
"Executive") and GT INTERACTIVE SOFTWARE CORP. (the "Company") (the "Separation
Agreement") and the consulting agreement dated as of February 18, 2000 by and
between the Executive and the Company (the "Consulting Agreement"), the
Executive agrees, on behalf of himself, his heirs, executors, administrators and
assigns, to release and discharge the Company, and their respective current and
former officers, directors, employees, agents, owners, subsidiaries, divisions,
affiliates, parents, successors and assigns ("Released Parties") from any and
all manner of actions and causes of action, suits, debts, dues, accounts, bonds,
covenants, contracts, agreements, judgments, charges, claims, and demands
whatsoever ("Losses") which the Executive, his heirs, executors, administrators
and assigns have, or may hereafter have against the Released Parties or any of
them arising out of or by reason of any cause, matter or thing whatsoever from
the beginning of the world to the date hereof, including without limitation any
and all matters relating to his Employment Agreement with the Company, his
employment by the Company and the cessation thereof, and all matters arising
under any federal, state or local statute, rule or regulation or principle of
contract law or common law, including but not limited to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e et seq., the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sections 621 et
seq., the Americans with Disabilities Act of 1990, as amended, 42 U.S.C.
Sections 12101 et seq., the Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. Sections 1001 et seq., the California Fair Employment and
Housing Act, as amended, Cal. Gov't Code Sections 12900 et seq., and any other
equivalent state or local statute; provided, however, that the Executive does
not release and discharge the Released Parties from any Losses arising out of or
in connection with his Separation Agreement and Consulting Agreement. It is
understood that nothing in this General Release is to be construed as an
admission on behalf of the Released Parties of any wrongdoing with respect to
the Executive, any such wrongdoing being expressly denied.
The Executive represents and warrants that he fully understands the term
of this General Release, that he has had the benefit of advice of counsel, and
that he knowingly and voluntarily, of his own free will without any duress,
being fully informed and after due deliberation, accepts its terms and signs the
same as his own free act. The Executive understands that as a result of
executing this General Release, he will not have the right to assert that the
Company unlawfully terminated his employment or violated any of his rights in
connection with his employment.
The Executive acknowledges that he is familiar with Section 1542 of the
Civil Code of the State of California, which provides as follows:
<PAGE> 16
A general release does not extend to claims which the creditor does
not know of or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
The Executive hereby waives and relinquishes any rights and benefits which he
has or may have under Section 1542 of the Civil Code of the State of California,
to the full extent permitted by law.
The Executive affirms that he has not filed, and agrees not to initiate or
cause to be initiated on his behalf, any complaint, charge, claim, or proceeding
against the Released Parties before any federal, state, or local agency, court
or other body relating to his employment and the cessation thereof, and agrees
not to voluntarily participate in such a proceeding. The Executive waives any
right he may have to benefit in any manner from any relief (whether monetary or
otherwise) arising out of any such proceeding.
The Executive, having had the advice of counsel, knowingly waives the
remainder of the 21-day period he had from February [ ] 2000, to consider
whether to execute this General Release. Upon the Executive's execution of this
General Release, he will have seven (7) days after execution to revoke it. In
the event of revocation, the Executive must present written notice of revocation
to Mr. Harry Glantz of the Company. If seven (7) days pass without such notice
of revocation, this General Release shall become binding and effective on the
eighth (8th) day (the "Release Effective Date").
This General Release shall be governed by the laws of the State of
California without giving effect to the principles of conflicts of law.
/s/ John Baker 2/19/00
------------------ ----------
JOHN T. BAKER IV DATE
Sworn to before me this
19 day of February, 2000
/s/ Wendy G. Jacobo
-----------------------------
Notary Public
<PAGE> 17
EXHIBIT C
GENERAL RELEASE BY GT INTERACTIVE SOFTWARE CORP.
FOR AND IN CONSIDERATION OF the terms and conditions of separation
agreement as of February 18, 2000 by and between GT INTERACTIVE SOFTWARE CORP.
(the "Company") and JOHN T. BAKER IV (the "EXECUTIVE") (the "Separation
Agreement") and the consulting agreement dated as of February 18, 2000 by and
between the Company and the Executive (the "Consulting Agreement"), the Company
agrees, on behalf of itself and its current and former officers, directors,
managers, agents, divisions, parents, subsidiaries, affiliates, successors and
assigns, to release and discharge the Executive and his heirs, executors,
administrators and assigns ("Released Parties") from any and all manner of
actions and causes of action, suits, debts, dues, accounts, bonds, covenants,
contracts, agreements, judgments, charges, claims, and demands whatsoever
("Losses") which the Company, its current and former officers, directors,
managers, agents, divisions, parents, subsidiaries, affiliates, successors and
assigns have, or may hereafter have against the Released Parties or any of them
arising out of any act or omission undertaken by the Executive in the ordinary
course and scope of his duties with the Company from April 2, 1999 to the date
hereof; provided, however, that the Company does not release and discharge the
Released Parties from: (a) any Losses arising out of or in connection with the
Executive's Separation Agreement and Consulting Agreement, and (b) any acts of
the Executive involving fraud, dishonesty, intentional acts, or willful
malfeasance in connection with his employment for the Company. It is understood
that nothing in this General Release is to be construed as an admission on
behalf of the Released Parties of any wrongdoing with respect to the Company,
any such wrongdoing being expressly denied.
The Company acknowledges that it is familiar with Section 1542 of the Civil
Code of the State of California, which provides as follows:
A general release does not extend to claims which the creditor does
not know of or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
The Company hereby waives and relinquishes any rights and benefits which it has
or may have under Section 1542 of the Civil Code of the State of California, to
full extent permitted by law.
This General Release will become effective on the Release Effective Date as
defined in the General Release of John T. Baker IV made by the Executive in
favor of the Company.
<PAGE> 18
This General Release shall be governed by the laws of the State of
California without giving effect to the principles of conflicts of law.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ Harry L. Glantz 2/22/00
------------------- -----------
Name: Harry L. Glantz DATE
Title: Vice President, Human Resources
Sworn to before me this
22 day of February, 2000
/s/ James Joseph Conner
-----------------------
Notary Public
<PAGE> 19
STOCK PERFORMANCE GRAPH
[LINE GRAPH]
December 14, December 31, March 31, June 30, September 30, December 31,
1995 1995 1996 1996 1996 1996
------------------------------------------------------------------------------------
Interactive Software Corp. 100.00 100.00 76.79 119.64 162.50 50.89
Group 100.00 105.28 91.51 93.28 92.82 75.58
Nasdaq National Market Index 100.00 102.10 106.88 115.00 119.06 125.28
March 31, June 30,
1997 1997
-----------------------
Interactive Software Corp. 50.89 84.82
Group 65.26 77.91
Nasdaq National Market Index 116.56 139.94
September 30, December 31, March 31, June 30, September 30, December 31, March 31,
1997 1997 1998 1998 1998 1998 1999
-----------------------------------------------------------------------------------------------
Interactive Software Corp. 83.93 45.54 50.89 53.79 32.14 35.71 33.04
Group 90.25 92.66 102.36 115.53 98.23 133.58 133.06
Nasdaq National Market Index 163.58 152.39 178.14 183.87 164.37 212.78 238.86
June 30, September 30, December 30, March 31,
1999 1999 1999 2000
-------------------------------------------------------
Interactive Software Corp. 25.00 20.76 11.83 22.32
Group 135.27 168.55 213.61 185.46
Nasdaq National Market Index 260.67 266.49 394.89 449.76