Separation Agreement - GT Interactive Software Corp. and Thomas Heymann
SEPARATION AGREEMENT
This separation agreement, dated as of February 15, 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 THOMAS HEYMANN (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 Infogrames Entertainment
("Infogrames") 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 Infogrames; 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 February 8, 1999 between the Company and
the Executive, and the Amendment thereto dated as of October 19, 1999, and any
exhibits and attachments thereto (collectively the "Employment Agreement") and,
except as otherwise provided in Paragraph 6, the Stock Option Agreement between
the Company and the Executive dated as of February 8, 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 Chairman of the Board of Directors of the Company
and Chief Executive Officer of the Company. Subject to the Executive's right to
resign and the Company's and stockholders' right of removal, the Executive shall
continue to serve on the Board of Directors 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.
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5. Separation Payments. The Company agrees to pay the Executive the
sum of $2,000,000, of which the first installment of $1,000,000 will be payable
within five (5) business days after the Effective Date and the second
installment of $1,000,000 will be 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
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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 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 and stock option
rights 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, 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) either before or during the
Agreement Term, then (i) 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), and (ii) either the Executive, his estate
or his legal guardian, as applicable, shall be permitted to exercise the
Severance Stock Options for the two-year period following the Effective Date.
6. Stock Options. On the Effective Date, the Executive will be fully
vested in the option to purchase 25% of the 2,250,000 shares of common stock of
the Company, $.01 par value per share, at a price of $5.00 per share, granted
pursuant to the Stock Option Agreement. Such option to purchase 562,500 shares
at $5.00 per share is referred to as the "Severance Stock Option". The Executive
may exercise the Severance Stock Option no later than the last day of the
two-year period immediately following the Effective Date. On the Effective Date,
the Executive will forfeit any and all other options to purchase shares of stock
of the Company, including any other option under the Stock Option Agreement. The
Stock Option Agreement will be deemed to have terminated,
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except with respect to the Executive's rights to exercise the Severance Stock
Option in accordance with the terms and conditions set forth under the Stock
Option Agreement.
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, Infograme 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.
8. Forfeiture. If the Board of Directors of the Company determines
that the Executive has engaged in a "Prohibited Action" (as defined in the next
paragraph), then: (a) the Company and the Executive agree to submit the issue of
whether the Executive has engaged in a Prohibited Action and the amount of
damages, if any, resulting to the Company from such Prohibited Action to
arbitration in accordance with Paragraph 12 hereof; and (b) no further
separation payments will be payable under Paragraph 5 while these issues are in
arbitration. If the arbitrator determines (or if the Company and the Executive
otherwise agree) that the Executive has engaged in a Prohibited Action and that
the Company should be awarded a specified amount to compensate it for damages
resulting from such Prohibited Action (the "Damage Amount"), then the Company
shall offset any unpaid amounts otherwise payable under this Separation
Agreement ("Unpaid Severance Amount") by the Damage Amount. If the Damage Amount
exceeds the Unpaid Severance Amount, then the Executive shall pay to the Company
in a lump sum the amount by which the Damage Amount exceeds the Unpaid Severance
Amount within thirty (30) days after the date on which the arbitrator renders
its decision (or the date on which the Company and the Executive otherwise
agree).
For purposes of this Separation Agreement, a "Prohibited Action"
means: (i) the Executive's breach of the provisions of this Separation
Agreement, including without limitation the non-disparagement provisions of
Paragraph 7; or (ii) the Executive's commission of fraud, embezzlement, any
other crime involving moral turpitude or any felony, and, in the case of either
(i) or (ii), which has caused or is reasonably likely to cause a material
adverse effect on the Company's business or its reputation.
9. 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,
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immediately subsequent to the execution of a general release by the Executive,
in the form attached hereto as Exhibit C.
10. 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.
11. Withholding. Any payments made under this Separation Agreement
shall be subject to any applicable federal, state, and local tax withholdings.
12. Arbitration. Any dispute or controversy between the Company and
the Executive, including, without limitation, any and all matters relating to
this Separation Agreement, the Executive's employment with 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, 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 New York State Human Rights Law, as amended, N.Y. Exec. Law Sections
290 et seq., the New York City Human Rights Law, as amended, N.Y.C. Admin. Code
Sections 8-101 et seq., and any other equivalent state or local statutes, will
be settled by arbitration administered by the American Arbitration Association
("AAA") in New York, New York pursuant to the AAA's National Rules for the
Resolution of Employment Disputes (or their equivalent). Notwithstanding the
foregoing, to the extent there is no adequate remedy at law and injunctive
relief only is sought, the parties select state court in New York County as the
exclusive forum to resolve their disputes. Each party will be responsible to pay
its own fees and costs incurred under this Paragraph 12.
13. 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.
14. Governing Law. This Separation Agreement will be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of laws.
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15. 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.
16. 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.
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/ Bruno Bonnell /s/ Thomas Heymann
-------------------------- --------------------
Name: Bruno Bonnell Thomas Heymann
Title: Chairman and CEO
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Exhibit A
CONSULTING AGREEMENT
This consulting services agreement, dated as of February 15, 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 THOMAS HEYMANN (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 15, 2000 and expiring
on February 14, 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
$1,200,000, of which $600,000 will be payable within five (5) days after the
effective date of this Consulting Agreement and $600,000 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. For a period of twenty-four (24)
months following the effective date of this Consulting Agreement, the Company
shall continue to pay (i) disability insurance for the Consultant at an annual
premium not to exceed $6,685.20, and (ii) life insurance for the Consultant at
an annual premium not to exceed $2,330. The Company shall reimburse the
Consultant for all taxes payable by him, if any, as a result of such life
insurance premium payments. 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
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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 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) 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.
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(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 "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
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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 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.
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(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 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. Forfeiture. If the Board of Directors of the Company determines
that the Consultant has engaged in a "Prohibited Action" (as defined in the next
paragraph), then: (a) the Company and the Consultant agree to submit the issue
of whether the Consultant has engaged in a Prohibited Action and the amount of
damages, if any, resulting to the Company from such Prohibited Action to
arbitration in accordance with Paragraph 12 of the Separation Agreement; and (b)
no further consulting payments will be payable under Section 3(a) while these
issues are in arbitration. If the arbitrator determines (or if the Company and
the Consultant otherwise agree) that the Consultant has engaged in a Prohibited
Action and that the Company should be awarded a specified amount to compensate
it for damages resulting from such Prohibited Action (the "Damage Amount"), then
the Company shall offset any unpaid amounts otherwise payable under this
Consulting Agreement ("Unpaid Consulting Amount") by the Damage Amount. If the
Damage Amount exceeds the Unpaid Consulting Amount, then the Consultant shall
pay to the Company in a lump sum the amount by which the Damage Amount exceeds
the Unpaid Consulting Amount within thirty (30) days after the date on which the
arbitrator renders its decision (or the date on which the Company and the
Consultant otherwise agree).
For purposes of this Consulting Agreement, a "Prohibited Action" means:
(i) the Consultant's breach of the provisions of this Consulting Agreement,
including without limitation the non-competition provisions of Section 4 or 5;
or (ii) the Executive's commission of fraud, embezzlement, any other crime
involving moral turpitude or any felony, and, in the case of either (i) or (ii),
which has caused or is reasonably likely to cause a material adverse effect on
the Company's business or its reputation.
7. 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
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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.
8. 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 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 New York 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
7
<PAGE> 14
indirectly to this Consulting Agreement shall be litigated in any state court or
federal court located in New York, New York. 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,
covenant or condition shall remain in full force and effect, and any such
invalid, unenforceable or void term, provision, covenant 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 Sections 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 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.
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<PAGE> 15
(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 Jeffrey D. Zukerman, Esq., Zukerman, Gore &
Brandeis, LLP, 900 Third Avenue, New York, New York, 10022, 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.
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<PAGE> 16
\
(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/ Bruno Bonnell /s/ Thomas Heymann
------------------------- ------------------
Name: Bruno Bonnell Thomas Heymann
Title: Chairman and CEO
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<PAGE> 17
EXHIBIT B
GENERAL RELEASE BY THOMAS HEYMANN
FOR AND IN CONSIDERATION OF the terms and conditions of the separation
agreement dated as of February 15, 2000 by and between THOMAS HEYMANN (the
"Executive") and GT INTERACTIVE SOFTWARE CORP. (the "Company") (the "Separation
Agreement") and the consulting agreement dated as of February 15, 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, Infogrames Entertainment, 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 New York State Human Rights Law, as amended, N.Y. Exec. Law
Sections 290 et seq., the New York City Human Rights Law, as amended, N.Y.C.
Admin. Code Sections 8-101 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 terms
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 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
<PAGE> 18
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 15, 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 New
York without giving effect to the principles of conflicts of law.
/s/ Thomas Heymann 2/10/00
------------------ ---------
THOMAS HEYMANN DATE
Sworn to before me this
11 day of February, 2000
--
/s/ James Joseph Conner
-----------------------
Notary Public
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<PAGE> 19
EXHIBIT C
GENERAL RELEASE BY GT INTERACTIVE SOFTWARE CORP.
FOR AND IN CONSIDERATION OF the terms and conditions of the separation
agreement dated as of February 15, 2000 by and between GT INTERACTIVE SOFTWARE
CORP. (the "Company") and THOMAS HEYMANN (the "Executive") (the "Separation
Agreement") and the consulting agreement dated as of February 15, 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 February 8, 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 this 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.
This General Release will become effective on the Release Effective Date
as defined in the General Release of Thomas Heymann made by the Executive in
favor of the Company.
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<PAGE> 20
This General Release shall be governed by the laws of the State of New
York without giving effect to the principles of conflicts of law.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ Bruno Bonnell 2/11/00
---------------------- -------
Name: Bruno Bonnell DATE
Title: Chairman & CEO
Sworn to before me this
11 day of February, 2000
--
/s/ James Joseph Conner
-----------------------
Notary Public
2