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Exhibit 13
RIGHT OF FIRST OFFER AGREEMENT
THIS RIGHT OF FIRST OFFER AGREEMENT (this "Agreement") is made
and entered into as of this 15th day of November, 1999, by and among the
financial institutions identified on the signature pages hereto (the "Holders")
party to the Warrant Agreement (as defined below) and California U.S. Holdings,
Inc. ("Infogrames"). Capitalized terms used herein and not otherwise defined
shall have their respective meanings set forth in the Warrant Agreement.
WHEREAS, the Holders are party to the Credit Agreement dated
as of September 11, 1998 (as amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), by and among GT Interactive Software Corp.
(the "Company"), the Holders and the Administrative Agent, pursuant to which the
Holders (in their separate capacity as lenders to the Company) agreed to make
certain Extensions of Credit (as defined in the Credit Agreement) to the
Company;
WHEREAS, in connection with the Second Amendment, Waiver and
Agreement dated as of June 29, 1999 under the Credit Agreement, the Company
executed and delivered the Warrant Agreement, dated as of June 29, 1999 (as
amended, restated, supplemented or otherwise modified, the "Warrant Agreement"),
pursuant to which the Company issued to the Holders certain warrants (the
"Warrants") to purchase from the Company shares of common stock of the Company
(the "Warrant Shares") upon the exercise of such Warrants in accordance with the
terms of the Warrant Agreement; and
WHEREAS, the parties hereto have agreed to enter into this
Agreement in order to afford Infogrames certain rights with respect to the
potential sale by a Holder of any Warrants issued to such Holder pursuant to the
Warrant Agreement or any Warrant Shares delivered to such Holder upon the
exercise of any such Warrants in accordance with the terms of the Warrant
Agreement.
NOW THEREFORE, for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
SECTION 1. RIGHT OF FIRST OFFER.
1.1 Right of First Offer. In the event that a Holder proposes
to initiate a sale of any Warrants issued to such Holder or any Warrant Shares
delivered to such Holder upon the exercise of any Warrants in accordance with
the terms of the Warrant Agreement (in such capacity, a "Selling Holder"), such
Selling Holder shall provide written notice (a "Notice") to Infogrames which
shall offer (an "Offer") to sell such Warrants or Warrant Shares, as the case
may be, to Infogrames at a cash price specified by such Selling Holder (the
"Offering Price") in the Notice. Infogrames shall have the exclusive right to
accept the Offer for a period of five (5) Business Days from the date of such
Notice. Acceptance must be in writing (an "Acceptance") and be received by such
Selling Holder prior to the expiration of such five (5) Business Day period.
Upon receipt by the Selling Holder of an Acceptance, the obligation of
Infogrames to purchase, and the
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obligation of such Selling Holder to sell, the Warrants or Warrant Shares, as
the case may be, shall be absolute and irrevocable. The cash purchase of the
Warrants or Warrant Shares, as the case may be, subject to any such Notice and
Acceptance, shall be consummated within three (3) Business Days of receipt by
the Selling Holder of an Acceptance pursuant to such documentation as is
customary for such a transaction. If the Selling Holder does not receive an
Acceptance within the five (5) Business Day period after the date of a Notice,
such Selling Holder shall have a period of 180 days from the date of such Notice
to consummate a sale of the Warrants or Warrant Shares, as the case may be, that
were the subject of such Notice, to any third party at a price not less than 75%
of the Offering Price. If the Selling Holder does not consummate a sale in
accordance with the immediately preceding sentence, or if the Selling Holder
determines to sell such Warrants or Warrant Shares, as the case may be, at a
price less than 75% of the Offering Price, such Selling Holder shall first offer
to sell such Warrants or Warrant Shares, as the case may be, to Infogrames as
prescribed above and proceed in accordance with the terms of this Section 1.1.
1.2 Nature of Purchase. Each Holder and Infogrames acknowledge
and agree that all purchases of Warrants or Warrant Shares pursuant to this
Agreement shall be without recourse to the Selling Holder and without
representation or warranty by such Selling Holder, except that such Selling
Holder owns such Warrants or Warrant Shares, as the case may be, free of any
adverse claim or interest.
SECTION 2. MISCELLANEOUS.
2.1 Effectiveness; Termination. This Agreement shall be
effective between Infogrames and each Holder that executes a signature page
hereto. This Agreement shall automatically terminate and be of no further force
or effect if any material Transaction Documentation (as defined in the Credit
Agreement) is terminated.
2.2 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
2.3 Entire Agreement. This Agreement is the entire agreement
among the parties and supercedes any prior or contemporaneous agreements, oral
or written, of the parties hereto concerning its subject matter.
2.4 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing and sent by
telecopy, and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when received by telecopy, addressed as set forth
beneath such parties' signature on the signature pages of this Agreement.
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2.5 Counterparts. This Agreement may be executed by the
parties hereto on one or more counterparts, and all of such counterparts shall
be deemed to constitute one and the same instrument. This Agreement may be
delivered by facsimile transmission of the relevant signature pages hereof.
2.6 Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
2.7 Exhibit. Copies of the Warrants issued to the Holders
pursuant to the Warrant Agreement and that are the subject of this Agreement are
attached hereto as Exhibit A.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective duly authorized
officers as of the date first above written.
CALIFORNIA U.S. HOLDINGS, INC.
By:
-------------------------------------------
Name:
Title:
Address for Notices:
0000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Chief Operating Officer
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a Copy to:
INFOGRAMES ENTERTAINMENT SA
00, xxx xx xxx Xxxx 0000
Xxxxxxxxxxxx, 00000
Xxxxxx
Attention: Xxxxxx Xxxxxxxx
Telephone: (000 00) 000 000000
Telecopy: (000 00) 000 000000
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BANK OF AMERICA, N.A.
By:_______________________________________________
Name:
Title:
Address for Notices:
TX1-492-66-01
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
EUROPEAN AMERICAN BANK
By:_______________________________________________
Name:
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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FIRST UNION NATIONAL BANK
By:_____________________________
Name:
Title:
Address for Notices:
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx XxXxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
FLEET BANK, N.A.
By:_______________________________
Name
Title:
Address for Notices:
000 Xxxx Xxxxxx
Mail Code: XXX0X00X
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
0
XXXXXXXX XXXX XX XXXXXX
By:_______________________________________________
Name:
Title:
By:_______________________________________________
Name:
Title:
Address for Notices:
Xxxx Xxxxxx Xxxxx
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
THE BANK OF NOVA SCOTIA
By:_______________________________________________
Name:
Title:
Address for Notices:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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EXHIBIT A
Warrants
