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Exhibit 11A
EQUITY PURCHASE AND VOTING AGREEMENT
THIS EQUITY PURCHASE AND VOTING AGREEMENT (this "Agreement"), dated as
of November 15, 1999, between Infogrames Entertainment S.A., a societe anonyme
organized under the laws of France ("Parent"), California U.S. Holdings, Inc.,
a wholly owned subsidiary of Parent ("Purchaser"), and _________________________
("Stockholder").
W I T N E S S E T H:
WHEREAS, Stockholder owns (both beneficially and of record) the number
of shares of common stock, par value $.01 per share ("Common Stock"), of GT
Interactive Software Corp., a Delaware corporation (the "Company"), set forth on
Schedule 1 hereto; and
WHEREAS, Parent intends Purchaser to buy from Stockholder, and
Stockholder intends to sell to Purchaser, the shares of Common Stock owned by
Stockholder, as set forth next to Stockholder's name on Schedule 1, together
with any shares of Common Stock, other securities or other property hereafter
acquired beneficially or of record by Stockholder in respect of such shares of
Common Stock, as provided by Section 1.3 (the "Subject Common Shares"); and
WHEREAS, in connection herewith, and as a condition to the willingness
of the Company to approve the transactions described in this Agreement, Parent
and Purchaser are entering concurrently into a Securities Purchase Agreement
with the Company, dated as of November 15, 1999 (the "Purchase Agreement"),
pursuant to which Purchaser has agreed to make a major capital investment in the
Company; and
WHEREAS, as a condition to the willingness of Parent to enter into the
Purchase Agreement, Parent has required that Stockholder agree, and Stockholder
has agreed, among other things, (i) to appoint Purchaser as Stockholder's proxy
to vote the Subject Common Shares and the Schedule 2 Shares (as hereinafter
defined), (ii) with respect to certain questions put to stockholders of the
Company for a vote, to vote the Subject Common Shares and the Schedule 2 Shares
and (iii) to agree to certain restrictions on post-Closing business activities;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Purchase and Sale of Subject Common Shares.
1.1 Purchase of Common Shares. On the terms and subject to the
conditions set forth in this Agreement, Purchaser shall purchase from the
Stockholder, and Stockholder shall sell and transfer to Purchaser, on the
Closing Date all of the Subject Common Shares at an aggregate price of [$____],
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on voting rights, charges and
other encumbrances of any nature whatsoever (collectively, "Liens").
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1.2 Conditions to Closing. The obligations of the parties to
consummate the transactions contemplated by Section 1.1 hereof are subject to
the following conditions: (a) any waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), applicable to
the purchase of the Subject Common Shares shall have expired or been terminated
and any applicable foreign antitrust requirements shall have been satisfied, (b)
there shall be no preliminary or permanent injunction or other order by any
court of competent jurisdiction restricting, preventing or prohibiting the
delivery of the Subject Common Shares and (c) subject to the following sentence,
the closing under the Purchase Agreement shall have occurred at or prior to the
Closing. Parent and Purchaser shall be entitled to waive on behalf of all
parties hereto the conditions contained in (c) of the preceding sentence in the
event that the Company is in breach of its obligations under Article I of the
Purchase Agreement to consummate the Purchase (as defined in the Purchase
Agreement). Parent and Stockholder each shall promptly after the date hereof
make such filings and provide such information as may be required under the HSR
Act or any applicable foreign antitrust laws with respect to the sale of the
Subject Common Shares.
1.3 Closing. Subject to the conditions contained in Section
1.2 and the following sentence, the closing of the transactions contemplated by
Section 1.1 hereof (the "Closing") shall occur simultaneously with, and at the
same location as, the closing under the Purchase Agreement. In the event Parent
and Purchaser waive the conditions described in Section 1.2(c), the Closing
shall occur at 10:00 a.m. on the second business day after all other conditions
contained in Section 1.2 have been satisfied or waived, at the offices of
Pillsbury Madison & Sutro LLP, New York, New York, or such other time or place
as the parties may agree. The date of the Closing being the "Closing Date."
Stockholder shall deliver to Purchaser at the Closing a certificate or
certificates evidencing the Subject Common Shares, each such certificate being
duly endorsed in blank and accompanied by such stock powers and such other
documents as may reasonably be necessary in Purchaser's judgment to transfer
record ownership of the Subject Common Shares into Purchaser's name on the stock
transfer books of the Company.
1.4 Adjustments Upon Changes in Capitalization. In the event
of any change prior to the Closing Date in the outstanding shares of Common
Stock by reason of any stock dividend, subdivision, merger, recapitalization,
combination, conversion or exchange of shares, or any other change in the
corporate or capital structure of the Company (including, without limitation,
the declaration or payment of a dividend of cash or securities or the issuance
of any securities not contemplated by the Purchase Agreement) which would have
the effect of diluting or otherwise adversely affecting Parent's or Purchaser's
rights and privileges or prospective rights and privileges under this Agreement,
the number and kind of shares of Common Stock and the other securities or other
property which Purchaser shall be entitled to purchase hereunder shall be
appropriately and equitably adjusted to restore to Parent and Purchaser such
respective rights and privileges.
2. Representations and Warranties of Stockholder.
Stockholder hereby represents and warrants to Parent and Purchaser the
following as of the date hereof and as of the Closing:
2.1 Title to the Subject Common Shares. Stockholder is the
owner (both beneficially and of record) of the Subject Common Shares. Except for
the Subject Common Shares and the shares of Common Stock owned by Stockholder,
as set forth next to Stockholder's name on
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Schedule 2 ("Schedule 2 Shares"), Stockholder is not the record or beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of, and does not have any other rights of any nature to acquire any
additional shares of, any capital stock of the Company (except for any such
beneficial ownership which Stockholder may have of the shares of Common Stock
owned by any other person or entity identified on Schedule 2). Stockholder owns
all of the Subject Common Shares free and clear of all Liens, and, except
pursuant to the provisions of this Agreement, Stockholder has not appointed or
granted any proxy, which appointment or grant is still effective, with respect
to any of the Subject Common Shares or the Schedule 2 Shares. Stockholder has
sole power of disposition with respect to all of the Subject Common Shares and
(as to disposition of voting rights) of all the Schedule 2 Shares and has sole
voting power of the Subject Common Shares and the Schedule 2 Shares with respect
to the matters set forth in Section 5 hereof. Upon the purchase of the Subject
Common Shares pursuant to Section 1, Purchaser will receive valid and marketable
title to the Subject Common Shares, free and clear of all Liens.
2.2 Authority Relative to This Agreement. Stockholder has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
Stockholder and, assuming the due authorization, execution and delivery by
Parent and Purchaser, constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
except that such enforceability (a) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (b) is subject to general principles of equity.
2.3 Conflict. The execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder will
not, (a) except for any filings required under the HSR Act and for requirements
of any applicable foreign antitrust laws or of U.S. federal and state securities
laws, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority of the United
States or any political subdivision thereof, (b) conflict with or violate the
organizational documents, if any, of the Stockholder, or (c) conflict with,
violate or result in any breach of or constitute a default under (or an event
which with notice or lapse of time or both would become a default under) any
agreement, judgment, injunction, order, law, rule, regulation, decree or
arrangement to which Stockholder is a party or by which Stockholder is bound.
2.4 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated hereby based upon arrangements made by or on
behalf of Stockholder.
3. Representations and Warranties of Parent and Purchaser. Parent and
Purchaser hereby represent and warrant to Stockholder as follows:
3.1 Authority Relative to This Agreement. Each of Parent and
Purchaser has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by each of Parent and Purchaser and the consummation by each of Parent and
Purchaser of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Parent and
Purchaser, respectively. This Agreement has
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been duly and validly executed and delivered by each of Parent and Purchaser
and, assuming the due authorization, execution and delivery by Stockholder,
constitutes a legal, valid and binding obligation of each of Parent and
Purchaser, enforceable against each of Parent and Purchaser in accordance with
its terms, except that such enforceability (a) may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and (b) is subject to general
principles of equity.
3.2 No Conflict. The execution and delivery of this Agreement
by Parent and Purchaser do not, and the performance of this Agreement by Parent
and Purchaser will not, (a) except for any filings required under the HSR Act
and for requirements of any applicable foreign antitrust laws or of federal and
state securities laws, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or regulatory authority,
domestic or foreign, (b) conflict with or violate the organizational documents
of Parent or Purchaser, (c) conflict with, violate or result in any breach of or
constitute a default under (or an event which with notice or lapse of time or
both would become a default under) any agreement, judgment, injunction, order,
law, rule, regulation, decree or arrangement applicable to Parent or Purchaser
or by which any property or asset of Parent or Purchaser is bound or affected,
other than, in the case of clause (c), any such conflicts, violations, breaches
or defaults that, individually or in the aggregate, would not materially impair
the ability of Parent or Purchaser to perform its obligations hereunder.
3.3 Brokers. Except for Lazard Freres & Co. LLC, whose fees
will be paid by Parent, no broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
Parent or Purchaser.
4. Covenants of Stockholder.
4.1 No Disposition or Encumbrance of Subject Common Shares.
Stockholder hereby covenants and agrees that, except as contemplated by this
Agreement, Stockholder shall not, and shall not offer or agree to, sell,
transfer, tender, assign, hypothecate or otherwise dispose of, or create or
permit to exist any Lien with respect to the Subject Common Shares.
4.2 No Solicitation of Transactions. Until the occurrence of
the Closing under the Purchase Agreement or the termination thereof, Stockholder
shall not, nor shall it permit any of its subsidiaries or affiliates to, nor
shall it authorize or permit any or its officers, directors or employees or any
investment banker, financial advisor, attorney, accountant, agent or other
representative retained by it or any of its subsidiaries or affiliates to,
directly or indirectly, (a) solicit, initiate or knowingly encourage (including
by way of furnishing information) any inquiries or the making of any proposal
which constitutes, or may reasonably be expected to lead to, any Company
Takeover Proposal (as defined below); (b) participate in any discussions or
negotiations regarding any Company Takeover Proposal or (c) or enter into any
agreement, understanding or arrangement with respect to the foregoing. For
purposes of this Agreement, the term "Company Takeover Proposal" means any bona
fide proposal or offer, whether in writing or otherwise, from any Person other
than Parent, Purchaser or any affiliates thereof (a "Third Party") to acquire
beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or
a material portion of the assets of the Company and the Company Subsidiaries
taken as a whole or
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more than fifty percent (50%) of any class of equity securities of the Company
pursuant to a merger, consolidation or other business combination, sale of
shares of capital stock, sale of assets, tender offer, exchange offer or similar
transaction with respect to either the Company or any of the Company
Subsidiaries, including any single or multi-step transaction or series of
related transactions, which is structured to permit such Third Party to acquire
beneficial ownership of any material portion of the assets of the Company and
its Subsidiaries taken as a whole or more than fifty percent (50%) of such
equity interest in the Company.
4.3 Compliance of Stockholder with this Agreement. Stockholder
shall take all actions and forbear from all actions, in each case, necessary in
order that (a) all of Stockholder's representations and warranties hereunder are
true and correct and (b) Stockholder fulfills all of its obligations hereunder.
4.4 Additional Shares. In the event that, as of the date
hereof, Stockholder owns, of record and beneficially, shares of Common Stock in
excess of the aggregate number of shares set forth on Schedule 1 and under the
heading "Shares Held of Record and Beneficially" on Schedule 2, then Stockholder
shall transfer to Purchaser at no additional cost the number of shares by which
Stockholder's record and beneficial ownership exceeds such aggregate number,
together with any shares of Common Stock, other securities or other property
hereafter acquired beneficially or of record by Stockholder in respect of such
shares of Common Stock.
5. Voting Agreement; Proxy.
5.1 Pre-Closing Voting Agreement. Subject to and without
limiting the effect of Section 5.2, Stockholder hereby agrees that, from the
date hereof until the Closing, at any meeting of the stockholders of the
Company, however called, and in any action by written consent of the
stockholders of the Company, Stockholder shall, to the extent applicable, (a)
vote (or execute a consent in respect of) all of the Subject Common Shares and
the Schedule 2 Shares in favor of any of the transactions or other matters
contemplated by the Transaction Documents (as defined in the Purchase
Agreement") (the "Transactions"), and (b) vote (or execute a consent in respect
of) the Subject Common Shares and the Schedule 2 Shares against any action or
agreement that would reasonably be expected to impede, interfere with, delay or
attempt to discourage any of the Transactions, including, but not limited to:
(i) any extraordinary corporate transaction (other than the Transactions), such
as a merger, reorganization, recapitalization or liquidation involving the
Company or any of the Company Subsidiaries (as defined in the Purchase
Agreement) or any proposal made in opposition to or in competition with the
Transactions; (ii) a sale or transfer of a material amount of assets of the
Company or any of the Company Subsidiaries; (iii) any change (other than the
Transactions) in the management or board of directors of the Company, except as
otherwise agreed to in writing by Parent; (iv) any material change (other than
the Transactions) in the present capitalization or dividend policy of the
Company; or (v) any other material change (other than the Transactions) in the
corporate structure or business of the Company or any of the Company
Subsidiaries.
5.2 Pre-Closing Irrevocable Proxy. Stockholder hereby appoints
Purchaser as the attorney-in-fact and proxy of Stockholder, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to all of the Subject Common Shares and the Schedule 2 Shares that
Stockholder is entitled to vote at any meeting of stockholders of the
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Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise, for the period, on
the matters and in the manner specified in Section 5.1. THIS PROXY AND POWER OF
ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST AND IS EXECUTED AND
INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 212 OF
THE DELAWARE GENERAL CORPORATION LAW ("DGCL"). Stockholder hereby revokes,
effective upon the execution and delivery of this Agreement, all other proxies
and powers of attorney with respect to the Subject Common Shares and the
Schedule 2 Shares to which this proxy and power of attorney relates that
Stockholder may have heretofore appointed or granted, and no subsequent proxy or
power of attorney (except in furtherance of Stockholder's obligations under
Section 5.1 hereof) shall be given, or written consent executed (and, if given
or executed, shall not be effective), by Stockholder with respect thereto so
long as this Agreement remains in effect.
5.3 Post-Closing Irrevocable Proxy. Stockholder hereby
appoints Purchaser as the attorney-in-fact and proxy of Stockholder, with full
power of substitution, effective subject to the Closing and commencing on the
Closing Date and for so long as Parent beneficially owns (as determined for
purposes of Regulation 13D-G under the Exchange Act) at least a majority of
shares of stock of the Company generally entitled to vote in the election of
directors, to vote and otherwise act (by written consent or otherwise) with
respect to any Schedule 2 Shares at the time owned by Stockholder, and any other
shares of the Company at the time owned by Stockholder and received in respect
of Schedule 2 Shares by reason of any stock dividend, subdivision, merger,
recapitalization, confirmation, conversion or exchange of shares, or any other
change in the corporate or capital structure of the Company, for the election or
removal of directors of the Company as Purchaser in its absolute discretion
shall determine to be appropriate. THIS PROXY AND POWER OF ATTORNEY IS
IRREVOCABLE AND COUPLED WITH AN INTEREST AND IS EXECUTED AND INTENDED TO BE
IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 212 OF THE DGCL.
Stockholder hereby revokes, effective upon the execution and delivery of this
Agreement, all other proxies and powers of attorney with respect to the Schedule
2 Shares that Stockholder may have heretofore appointed or granted, and no
subsequent conflicting proxy or power of attorney shall be given, or written
consent executed (and, if given or executed, shall not be effective), by
Stockholder with respect thereto during such period. Nothing contained in this
Section 5.3 shall restrict Stockholder's right to transfer the Schedule 2
Shares, and, except in the case of a transfer of the Schedule 2 Shares to an
affiliate of Stockholder, upon transfer the Schedule 2 Shares will be free of
the proxy and power of attorney provided under this Section 5.3.
6. Post-Closing Business Activities. In order to induce Purchaser to
purchase the Subject Common Shares, and to protect the value thereof,
Stockholder agrees as follows:
(a) Stockholder will not, for the period commencing with the
Closing and ending on the first anniversary thereof, own, manage, operate, join,
control, or participate in the ownership, management, operations, or control of
any business that is engaged, directly or indirectly, in (i) the development or
publishing of (A) computer, console or video game software, (B) leisure,
recreational or productivity software, (C) educational or entertainment software
or (D) "hint books" with respect to the foregoing (A), (B) and (C)
(collectively, the "Specified Products") or (ii) the distribution of any
Specified Products (other than Specified Products purchased pursuant to
close-outs or similar sales of excess inventory) developed or published by third
parties, in either case
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within North America, whether as principal, agent, stockholder (other than as a
passive stockholder of a corporation listed on a national securities exchange or
the stock of which is regularly traded in the over-the-counter market, provided
that in the aggregate Stockholder owns less than 5% of the outstanding stock of
such corporation).
(b) Stockholder recognizes and acknowledges that the foregoing
territorial and time period restrictions are reasonable and properly required
for the adequate protection of the Company's business, and that in the event
that any such territorial or time limitation is deemed to be unreasonable or
unenforceable by any court of competent jurisdiction, then Stockholder agrees to
submit to the reduction of either or both of such limitations to such an area or
period as shall be deemed reasonable and enforceable by such court.
(c) In the event Stockholder shall breach the covenants set
forth in this Section 6, the time limitations thereof shall be extended for a
period of time equal to the period of time during which such breach or breaches
shall occur; and, in the event Parent or Purchaser seek relief from such breach
in any court, the covenant shall be extended for a period of time equal to the
pendency of such proceedings, including all appeals.
7. Termination. This Agreement (other than Sections 5.3 and 6, which
shall survive until they expire by their respective terms, but including any
power of attorney and proxy granted pursuant to Section 5.2 hereof) shall
terminate automatically on the termination of the Purchase Agreement in
accordance with the terms and conditions thereof; provided, however, that if
Stockholder fails to comply with Sections 1 or 5.1, the obligations of
Stockholder under Sections 4, 5.1 and 5.2 shall not terminate until the third
anniversary of the date of this Agreement. Any termination of this Agreement, or
any provision thereof, shall not relieve any party hereunder of any liability
for a breach of this Agreement.
8. Miscellaneous.
8.1 Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
8.2 Further Assurances. Stockholder and Parent shall execute
and deliver all such further documents and instruments and take all such further
action as may be reasonably necessary in order to consummate the Transactions.
8.3 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
8.4 Entire Agreement. This Agreement constitutes the entire
agreement between Parent, Purchaser and Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Parent, Purchaser and Stockholder with respect to the
subject matter hereof.
8.5 Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that Parent or Purchaser may assign all or
any of its rights and obligations
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hereunder to any affiliate of Parent, provided that no such assignment shall
relieve Parent or Purchaser of its obligations hereunder if such assignee does
not perform such obligations.
8.6 Parties in Interest. This Agreement shall be binding upon,
inure solely to the benefit of, and be enforceable by, the parties hereto and
their successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
8.7 Amendment; Waiver. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto. Any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any condition of its obligations
hereunder or inaccuracy in the representations and warranties of any other party
hereto contained herein or in any document delivered by any other party hereto
pursuant hereto and (c) waive compliance with any agreement by any other party
hereto contained herein. Any such extension or waiver shall be valid if set
forth in an instrument in writing signed by the party or parties to be bound
thereby.
8.8 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party.
8.9 Notices. Except as otherwise provided herein, all notices,
requests, claims, demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in person, by cable, facsimile transmission, telegram or telex or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
8.8):
If to Parent or Purchaser:
Infogrames Entertainment S.A.
00, xxx xxx 0xx Xxxx 0000
Xxxxxxxxxxxx, 00000
Xxxxxx
Attention: Xxxxxx Xxxxxxxx
Telecopy: (000 00) 000 000000
Confirm: (000 00) 000000000
And
Attention: Xxxxxxxx Xxxxxxx
Telecopy: (000 00) 000 000000
Confirm: (000 00) 000000000
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With a copy to:
Pillsbury Madison & Sutro LLP
X.X. Xxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Facsimile: 415-983-1200
Attention: Xxxxxxxxx X. Xxxxxxxx III
If to Stockholder:
c/o Xxxxxx X. Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Confirm: 000-000-0000
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
8.10 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in Delaware without regard to any
principles of choice of law or conflicts of law of such State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any state or Federal court sitting in Delaware. Each of the
parties hereto (a) consents to submit such party to the personal jurisdiction of
any Federal court located in the State of Delaware or any Delaware state court
in the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (b) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that such party will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than a
Federal court sitting in the state of Delaware or a Delaware state court and (d)
waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any of the transactions
contemplated hereby.
8.11 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
8.12 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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8.13 Public Announcements. Stockholder will consult with
Parent and use reasonable efforts to agree upon the text of any press release,
before issuing any press release or otherwise making public statements with
respect to the Transactions and shall not issue any such press release or make
any such public statement without Parent's prior consent, which consent shall
not be unreasonably withheld, except as may be required by applicable law
(including requirements of stock exchanges and other similar regulatory bodies).
8.14 Stockholder Representatives. Stockholder signs solely in
its capacity as the owner of, or an officer of a not-for-profit corporation or
the trustee of a trust which is the owner of, the Subject Common Shares and the
Schedule 2 Shares and nothing contained herein shall limit or affect any actions
taken by any such individual who is or becomes an officer or a director of the
Company in his or her capacity as an officer or director of the Company and none
of such actions in such capacity shall be deemed to constitute a breach of this
Agreement.
8.15 Legend Subject Common Shares. Stockholder shall promptly
after the date hereof cause to be affixed to all certificates representing the
Subject Common Shares the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
EQUITY PURCHASE AND VOTING AGREEMENT DATED NOVEMBER 15, 1999, AMONG
INFOGRAMES ENTERTAINMENT S.A., CALIFORNIA U.S. HOLDINGS, INC. AND THE
STOCKHOLDER NAMED THEREIN, WHICH, AMONG OTHER THINGS, RESTRICTS THE
TRANSFER AND VOTING THEREOF."
8.16 Legend Schedule 2 Shares. Stockholder shall promptly
after the date hereof cause to be affixed to all certificates representing the
Schedule 2 Shares the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
EQUITY PURCHASE AND VOTING AGREEMENT DATED NOVEMBER 15, 1999, AMONG
INFOGRAMES ENTERTAINMENT S.A., CALIFORNIA U.S. HOLDINGS, INC. AND THE
STOCKHOLDER NAMED THEREIN, WHICH, AMONG OTHER THINGS, RESTRICTS THE
VOTING THEREOF."
8.17 REPS. Upon the occurrence of the Closing under the
Purchase Agreement, Purchaser shall cause the Company to, and Stockholder shall
cause REPS to, agree with each other that the agreement between the two parties
dated as of May 1, 1999 (the "REPS Contract") will remain in full force and
effect until at least March 31, 2000; provided, however, that Stockholder shall
have no such obligation to cause REPS to extend the term of such agreement
unless (a) the Company at the time when the extension is sought is current in
all payments owed under the agreement is in compliance with all of its other
obligations under the agreement and (b) if at such time Stockholder and its
affiliates control REPS.
8.18 Stockholder Consent. The Stockholder hereby consents to
the amendment to the Company's Amended and Restated Certificate of Incorporation
to increase the total number of
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shares of all classes of stock which the Company shall have the authority to
issue to 305,000,000 and to increase the number of shares designated Common
Stock to 300,000,000 in the form attached as Exhibit J to the Purchase
Agreement.
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