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EXHIBIT GG
AMENDED AND RESTATED
SEPARATION AGREEMENT
AND
GENERAL RELEASE
This Amended and Restated Separation Agreement and General Release is
made this 15th day of May, 1998 by and among Xxxxxx Xxxxxx ("Xxxxxx"), Skyline
Multimedia Entertainment, Inc. (the "Company"), Prospect Street NYC Discovery
Fund L.P. ("Prospect Street") and the Employees Retirement Plan of the Brooklyn
Union Gas Company ("BUG").
WHEREAS, the parties hereto desire to amend the Separation Agreement
and General Release dated April 15, 1998 among the parties hereto, as amended by
Amendment No. 1 dated May 7, 1998 (the "Separation Agreement") and restate such
Separation Agreement in its entirety.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Separation Agreement is hereby
amended and restated in its entirety to read as follows:
A. As consideration for entering into this Agreement and the
terms and conditions set forth herein, I have been offered:
(i) as payment in connection with the purchase by the Company
of the securities referenced in Section B(iii) hereof,
$206,250 payable as follows: (1) $154,687.50 upon execution of
this Agreement, and (2) $51,562.50, of which amount I
acknowledge receipt of $21,654, and the balance of which is to
be paid bi-weekly at the rate of $3,750 commencing on the date
hereof until fully paid. Additionally, the Company agrees to
forgive amounts previously agreed to be refunded by me to the
Company in the amount of $750,000;
(ii) as payment in connection with the purchase by Prospect
Street of the securities referenced in Section B(V) hereof,
the aggregate amount of $100, which amount represents fair
value for such securities in light of the pledge related
thereto, and in consideration of Prospect Street and BUG
providing certain financing for the Company; and
(iii) the opportunity to continue to receive the
Company-subsidized health benefits I was receiving on the last
active day of my employment through the period ending on
January 15, 1999 or, at the Company's option, to receive the
economic equivalent thereof.
After consultation with my own counsel, I understand that
these payments and benefits exceed any payment, benefit, or
other thing of value that I might otherwise be
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entitled to under any Company policy, plan or procedure.
B. In consideration of the compensation and benefits to be received by
me pursuant to paragraph A hereof, I hereby:
(i) resign from all positions and capacities held with
the Company and its subsidiaries, including, but not
limited to, as an officer, director and employee of
the Company and its subsidiaries effective as of
April 15, 1998;
(ii) agree that during the ten year period ending on April
15, 2008 (the "Non-Compete Period"), I will not,
directly or indirectly, without the consent of the
Board of Directors of the Company: own, manage,
operate, join, control, or participate in or be
connected with, as an officer, employee, partner,
stockholder, director, adviser, consultant, agent or
otherwise (whether paid or unpaid), any business,
which directly or indirectly competes with the
currently existing or contemplated businesses of the
Company or its subsidiaries at locations within New
York City, including, but not limited to (a) engaging
in the food or souvenir concession business at the
same locations or at locations in close proximity to
where the Company currently conducts business, or (b)
leasing space or entering into licensing arrangements
to provide simulated rides, virtual reality arcade
games or theater-based attractions;
(iii) agree that all options and warrants previously issued
to me by the Company are deemed canceled as of April
15, 1998 and to submit to the Company all such
options and warrants in my possession;
(iv) grant to Prospect Street an irrevocable proxy coupled
with interest to vote all of the shares of capital
stock of the Company held by me, the form of which is
attached hereto as Exhibit A and to renew, reexecute
or reaffirm such irrevocable proxy as may from time
to time be required until the shares which are the
subject of such irrevocable proxy can be transferred
as contemplated in subparagraph (v) below and agree
to vote all shares of capital stock of the Company or
execute consents with respect thereto as shall be
instructed by Prospect Street;
(v) agree to transfer to Prospect Street all shares of
Class A common stock of the Company held by me
simultaneously with the release of such shares from
current escrow arrangements or pledge agreements and
to promptly instruct any escrow agent to transfer
such shares upon release; and
(vi) agree to use reasonable efforts to cause all shares
of Class A common stock currently held in escrow in
connection with the escrow arrangements or pledge
agreements referred to in paragraph B(v) above to be
substituted with an equal number of shares of common
stock of the Company, which shares of common stock
the Company hereby agrees to issue in exchange for
such Class A common stock.
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C. The Company has advised me of, and I acknowledge that I do not have
to sign this Separation Agreement and General Release.
D. By signing this Separation Agreement and General Release, and in
consideration for the payments and benefits described in paragraph A hereof, I,
for myself and my heirs, executors, administrators, trustees, legal
representatives and assigns (collectively referred to as the "Releasors") hereby
forever release and discharge the Company, and any and all of its parent
corporations, shareholders, creditors subsidiaries, divisions, and each of their
affiliated or related entities, officers, directors, employees, agents,
representatives, successors and assigns, and any and all of its or their past,
present or future officers, directors, agents, stockholders, trustees,
fiduciaries, administrators, employees or assigns (whether acting as agents for
the Company or in their individual capacities) (collectively referred to as
"Releasees"), from any and all claims, demands, causes of action, and
liabilities of any kind whatsoever (based upon any legal or equitable theory,
whether contractual, common-law, statutory, federal, state, local or otherwise),
whether known or unknown, by reason of any act, omission, transaction, conduct
or occurrence up to and including the date of execution of this Agreement, which
the Releasors ever had, now have or hereafter can, shall or may have against the
Releasees for, upon or by reason of any act, omission, transaction or occurrence
up to and including the effective date of this Agreement.
E. The Company, and any and all of its parent corporations,
shareholders, subsidiaries, divisions, and each of their affiliated or related
entities, officers, directors, employees, agents, representatives, successors
and assigns, and any and all of its or their past, present or future officers,
directors, agents, stockholders, trustees, fiduciaries, administrators,
employees or assigns (whether acting as agents for the Company or in their
individual capacities) (collectively referred to as "Releasors") hereby forever
release and discharge Xxxxxx Xxxxxx, his heirs, executors, administrators,
trustees, legal representatives, advisors, family members and assigns
(collectively referred to as "Releasees") from any and all claims, demands,
causes of action, and liabilities of any kind whatsoever (based upon any legal
or equitable theory, whether contractual, common-law, statutory, federal, state,
local or otherwise), whether known or unknown, by reason of any act, omission,
transaction, conduct or occurrence up to and including the date of execution of
this Agreement, which the Releasors ever had, now have or hereafter can, shall
or may have against the Releasees for, upon or by reason of any act, omission,
transaction or occurrence up to and including the effective date of this
Agreement.
F. The parties hereto agree that from the date of this Agreement and
continuing indefinitely thereafter, none of the parties hereto shall say or do
anything which could disparage, undermine or be reasonable interpreted to
denigrate the capabilities, performance, integrity or reputation of any other
party or any of such other party's directors, officers, stockholders, agents,
employees, consultants, representatives or affiliates.
G. This Agreement constitutes the complete understanding between the
parties and supersedes all prior agreements with respect to the subject matter
hereof. No other promises or agreements shall be binding unless in writing and
signed by the parties.
H. This Agreement shall be governed by the laws of the State of New
York.
I. This Agreement may be executed in any number of counterparts, each
of which will be deemed an original, but all of which together will constitute
one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by each of the parties hereto as of the date first written above.
XXXXXX XXXXXX
SIGNATURE: /s/ Xxxxxx Xxxxxx
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SKYLINE MULTIMEDIA ENTERTAINMENT, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Executive Director of
Operations and Finance
PROSPECT STREET NYC DISCOVERY FUND, L.P.
By: Prospect Street Discovery Fund, Inc., General Partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx, III
Title: President
EMPLOYEES RETIREMENT PLAN OF
THE BROOKLYN UNION GAS COMPANY
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title:
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IRREVOCABLE PROXY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned (the "Grantor"), a shareholder of Skyline
Multimedia Entertainment, Inc., a New York corporation (the "Company"), does
hereby irrevocably constitute and appoint Prospect Street NYC Discovery Fund,
L.P. ("Prospect Street"), with full powers of delegation and substitution, as
attorney and agent for the Grantor and in its name, place and stead with respect
to any and all shares of capital stock of the Company of whatever class or
series from time to time held by the Grantor to vote as the Grantor's proxy or
proxies at any meeting of the shareholders of the Company (and any adjournment
thereof) or to take any consensual or other action permitted to be taken by the
Grantor as a shareholder of the Company, in each case with respect to such
matters, including without limitation, the election of directors, as may be
voted on, consented to or taken by, and according to the number of votes that
would be entitled to be cast by, the Grantor. This Proxy and all authority
conferred hereunder is irrevocable and coupled with an interest, and shall not
be terminated or terminable by any act of the Grantor or by operation of law,
including, without limitation, the death, dissolution, liquidation or cessation
of existence of the Grantor, or by the occurrence of any other event or events.
This Proxy is granted in consideration of the agreement by Prospect Street to
provide financing for the Company.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT
AND BE ENFORCEABLE AGAINST ANY DONEE, ASSIGNEE
OR OTHER TRANSFEREE OF THE CAPITAL STOCK WHICH
IS THE SUBJECT HEREOF.
IN WITNESS WHEREOF, the Grantor has duly executed this Proxy as of the
15th day of April, 1998.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On April 15, 1998, Xxxxxx Xxxxxx appeared before me and acknowledged to
me that he executed the foregoing instrument.
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Notary Public
