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Exhibit 11B
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE 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"), Xxxxxx X. Xxxxx, Xxxxxxx Xxxxx and
Xxxxxxx Xxxxx (collectively, the "Noteholders").
W I T N E S S E T H:
WHEREAS, the Noteholders are the holders of Subordinated Notes (the
"Notes"), each dated July 23, 1999 of GT Interactive Software Corp., a Delaware
corporation (the "Company"), in the face amounts set forth on Schedule 1 hereto;
and
WHEREAS, Parent intends Purchaser to buy from each Noteholder, and each
Noteholder intends to sell to Purchaser, the Note held by each Noteholder, the
face value of which is set forth next to such Noteholders's name on Schedule 1
("Face Value"); and
WHEREAS, 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;
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 Notes.
1.1 Purchase of Notes. On the terms and subject to the
conditions set forth in this Agreement, Purchaser shall purchase from each
Noteholder, and each Noteholder shall sell and transfer to Purchaser, on the
Closing Date (as defined in Section 1.3) the Note held by such Noteholder at a
price equal to its Face Value, together with interest accrued thereon in
accordance with the terms of such Note to the Closing Date, free and clear of
all security interests, liens, claims, pledges, options, rights of first
refusal, agreements, charges and other encumbrances of any nature whatsoever
(collectively, "Liens").
1.2 Conditions to Closing.
(a) The obligations of the parties to consummate the
transactions contemplated by Section 1.1 hereof are subject to the following
conditions: (i) 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 Notes and (ii) the closing under the Purchase
Agreement shall have occurred at or prior to the Closing (as defined in Section
1.3).
(b) The obligations of Parent and Purchaser to consummate the
transactions contemplated by Section 1.1 hereof are subject to each of the
Noteholders obtaining the written consent of the Administrative Agent (as
defined in the Notes) to such transactions.
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SCHEDULE OF EQUITY AGREEMENTS
AMOUNT OF
SHARES
SELLING TO
NAME PURCHASER CONSIDERATION
---- ---------- -------------
Xxx Xxxxx 5,540,000 $4,141,261
X.X. Foundation 1,759,388 $1,315,178
Xxxx X. Xxxxx 2,895,000 $2,164,070
Xxxx Xxxxx Foundation 475,085 $355,138
Xxxxxxx Xxxxx 1,435,000 $1,072,691
Xxxxx Xxxxx ITF Xxxxxx Xxxxx 1,555,000 $1,162,394
Xxxxx Xxxxx ITF Xxxxxx Xxxxx 1,555,000 $1,162,394
Xxxxx Xxxxx ITF Xxxxx Xxxxx 1,555,000 $1,162,394
AMOUNT OF
SHARES
SELLING TO
NAME PURCHASER CONSIDERATION
---- ---------- -------------
Xxxxxxx Xxxxx Foundation 633,000 $473,180
Xxxxxxx Xxxxx 3,490,253 $2,523,328
Xxxx Xxxxx 1,351,848 $1,010,533
Xxxxx Xxxxx 502,158 $375,373
Xxxxx Xxxxx 679,658 $508,058
Xxxx X. Xxxxx 1,359,848 $1,016,514
Xxxxxx Xxxxx 502,158 $375,373
AMOUNT OF
SHARES
SELLING TO
NAME PURCHASER CONSIDERATION
---- ---------- -------------
Xxx Xxxxx 1,306,447 $975,848
Xxxx X. Xxxxx 2,231,655 $1,668,207
Xxxxxx Xxxxx 2,231,655 $1,668,207
Xxxxxxxx Xxxxx 675,465 $504,924
Xxxxxx Xxxxx 675,465 $504,924
Xxxxx X. Xxxxx 675,447 $504,910
Xxx & Xxxxxxx Xxxxx Foundation 475,000 $355,072
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1.3 Closing. Subject to the conditions contained in Section 1.2,
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 (the date of the Closing being the "Closing
Date"). The Noteholders shall deliver to Purchaser at the Closing the Notes,
duly endorsed in blank and accompanied by such other documents as may reasonably
be necessary in Purchaser's judgment to transfer ownership of the Notes to
Purchaser.
2. Representations and Warranties of the Noteholders.
Each of the Noteholders 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 Notes. Such Noteholder (a) is the owner of the
Note in the Face Value set forth opposite his name on Schedule 1 and (b) owns
such Note free and clear of all Liens. Such Noteholder has sole power of
disposition with respect to the Note set forth opposite his name on Schedule 1.
Upon the purchase of the Notes pursuant to Section 1, Purchaser will receive
valid and marketable title to the Note held by such Noteholder, free and clear
of all Liens.
2.2 Authority Relative to This Agreement. Such Noteholder has
all necessary power and authority to execute and deliver this Agreement, to
perform his obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by such Noteholder and, assuming the due authorization, execution and
delivery by Parent and Purchaser, constitutes a legal, valid and binding
obligation of such Noteholder, enforceable against such Noteholder 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
such Noteholder does not, and the performance of this Agreement by such
Noteholder will not, (a) except for any filings required under the 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 or (b) 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 such Noteholder is a party or by which such Noteholder 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
the Noteholders.
3. Representations and Warranties of Parent and Purchaser. Parent
and Purchaser hereby represent and warrant to the Noteholders 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
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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 been duly
and validly executed and delivered by each of Parent and Purchaser and, assuming
the due authorization, execution and delivery by the Noteholders, 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 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 the Noteholders.
4.1 No Disposition or Encumbrance of Notes. Each Noteholder
hereby covenants and agrees that, except as contemplated by this Agreement, such
Noteholder 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 his Note.
4.2 Compliance of the Noteholders with this Agreement. Each
Noteholder shall take all actions and forbear from all actions, in each case,
necessary in order that (a) such Noteholder's representations and warranties
hereunder are true and correct and (b) such Noteholder fulfills its obligations
hereunder.
5. Termination. This Agreement shall terminate automatically on the
termination of the Purchase Agreement in accordance with the terms and
conditions thereof. Any termination of this Agreement, or any provision thereof,
shall not relieve any party hereunder of any liability for a breach of this
Agreement.
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6. Subordination. Each Noteholder agrees that the Short-Term Note
(as defined in the Purchase Agreement) shall be deemed for all purposes of his
respective Note to be Senior Debt, including without limitation with respect to
the rights and remedies of the holders of Senior Debt and the obligations of the
Noteholder as they relate to Senior Debt.
7. Miscellaneous.
7.1 Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
7.2 Further Assurances. The Noteholders 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
contemplated by this Agreement.
7.3 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.
7.4 Entire Agreement. This Agreement constitutes the entire
agreement between Parent, Purchaser and the Noteholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Parent, Purchaser and the Noteholders with
respect to the subject matter hereof.
7.5 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 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.
7.6 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.
7.7 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.
7.8 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
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economic or legal substance of this Agreement is not affected in any manner
materially adverse to any party.
7.9 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
7.9):
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
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, Esq.
if to the Noteholders:
Xxxxxx X. Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Confirm: 000-000-0000
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with a copy to:
Weil, Gotschal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
7.10 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.
7.11 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.
7.12 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.
7.13 Public Announcements. The Noteholders 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 contemplated by this Agreement 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).
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed and delivered as of the date first written above.
INFOGRAMES ENTERTAINMENT S.A.
By _________________________________
CALIFORNIA U.S. HOLDINGS, INC.
By _________________________________
____________________________________
XXXXXX X. XXXXX
____________________________________
XXXXXXX XXXXX
____________________________________
XXXXXXX XXXXX
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