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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (together with all schedules hereto, the
"Agreement"), made in New York, New York as of the first day of July, 1998,
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 XXXXXXX X. XXXX, the undersigned individual ("Executive").
WHEREAS, the parties hereto have entered into that certain
Employment Agreement, dated as of June 22, 1995 (the "Original Employment
Agreement").
WHEREAS, the parties hereto desire to enter into a new employment
agreement pursuant to which Executive will serve the Company in a different
capacity and to modify certain terms of the Original Employment Agreement.
IN CONSIDERATION of the mutual covenants and agreements hereinafter
set forth, the Company and Executive agree as follows:
1. Agreement Term.
The term of this Agreement shall commence on the date hereof
and end on June 30, 2000 (the "Agreement Term").
2. Employment.
(a) Employment by the Company. Executive agrees to be employed
by the Company for the Agreement Term upon the terms and subject to the
conditions set forth in this Agreement.
(b) Performance of Duties. Throughout the Agreement Term,
Executive shall faithfully and diligently perform Executive's duties in
conformity with the directions of the Company and serve the Company to the best
of Executive's ability. Until otherwise determined by the Chief Operating
Officer or the Chief Executive Officer of the Company, Executive shall (i) have
the title of Senior Vice President of the Value Price and Distribution Division
(the "Division") of the Company, (ii) initially have the responsibilities set
forth in Schedule A hereto and, thereafter, as determined or assigned from time
to time by the person to whom he then reports, and (iii) report to the
President, Chief Executive Officer, Chief Operating Officer, Chairman of the
Board of Directors or Chairman Emeritus of the Board of Directors of the
Company, in each case as determined in the discretion of the Company. Executive
hereby acknowledges that all employees who heretofore reported directly to him
shall hereafter report directly to the Chief Operating Officer of the Company,
unless otherwise determined by the Chief Executive Officer of the Company.
Executive
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acknowledges that the Chief Operating Officer (or such other person as is
designated by the Chief Executive Officer), will be the senior officer of the
Company in charge of the Division. Through the Agreement Term, Executive shall
devote Executive's full working time, attention and energies to the business and
affairs of the Company, subject to vacations and sick leave in accordance with
Company policy.
(c) Place of Performance. During the Agreement Term, Executive
shall be based in Minneapolis, Minnesota, provided, however, that the
distribution functions and related staff maintained as of the date hereof by the
Division may be moved to such location as is desired by the Company. The Company
hereby acknowledges that Executive may maintain his personal residence in the
State of Minnesota and that Executive shall not be required to travel outside
the Minneapolis, Minnesota area at any time between noon on any Thursday and
7:00 p.m. on the following Sunday without his prior consent.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive for
employment hereunder a base salary ("Base Salary") at the annual rate of
$375,000 per year through the period ending June 30, 1999, and thereafter at the
annual rate of $400,000 per year, payable in installments consistent with the
Company's payroll practices.
(b) Benefits and Perquisites. Executive shall be entitled to
participate in, to the extent Executive is otherwise eligible under the terms
thereof, the benefit plans and programs, and receive the benefits and
perquisites, generally provided to executives of the same level and
responsibility as Executive. Nothing in this Agreement shall preclude the
Company from terminating or amending from time to time any employee benefit plan
or program.
(c) Annual Bonus. Executive shall receive an annual bonus of
$375,000 for the period ending June 30, 1999 and an annual bonus of $400,000 for
the period ending June 30, 2000, which bonuses shall be payable in equal
quarterly installments commencing on September 30, 1998 and on each December 31,
March 31, June 30 and September 30 through the balance of the Agreement Term.
(d) Sign-On Bonus. Executive shall receive a one-time sign-on
bonus of $100,000 no later than ten business days following the execution by
Executive of this Agreement.
(e) Automobile Allowance. The Company shall provide to
Executive, or pay for the costs of rental, insurance and maintenance and repairs
of, an automobile for Executive, as designated by Executive, provided that the
costs to the Company for such rental, insurance and maintenance and repairs
shall not exceed $2,000 per month.
(f) Travel and Business Expenses. Upon submission of itemized
expense statements in the manner specified by the Company, Executive shall be
entitled to
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reimbursement for reasonable travel and other reasonable business expenses duly
incurred by Executive in the performance of Executive's duties under this
Agreement in accordance with the policies and procedures established by the
Company from time to time for executives of the same level and responsibility as
Executive.
(g) No Other Compensation or Benefits; Payment. The
compensation, benefits and other payments specified in Sections 3 or 5 of this
Agreement shall be in lieu of any and all other compensation and benefits.
Payment of all compensation and benefits to Executive hereunder shall be made in
accordance with the relevant Company policies in effect from time to time,
including normal payroll practices, and shall be subject to all applicable
employment and withholding taxes.
(h) Cessation of Employment. In the event Executive shall
cease to be employed by the Company for any reason, then Executive's
compensation and benefits shall cease on the date of such event, except as
otherwise provided herein or in any applicable employee benefit plan or program.
(i) Options. The Board of Directors of the Company (or the
appropriate committee thereof) has approved, and the Company will grant to
Executive on the date this Agreement is executed, options to purchase 200,000
shares of the Company's Common Stock. Such options shall have an exercise price
equal to the fair market value of the Common Stock on the date of grant, and
shall vest and be exercisable in three equal annual installments commencing on
June 29, 1999 and on each successive June 29 thereafter. The terms (including
exercisability) of the Option shall be governed by the Company's 1997 Stock
Incentive Plan, as well as the applicable option agreement entered into pursuant
to the terms of such plan; provided that such options shall be exercisable only
to the extent that Employee is employed by the Company at the time of such
exercise and only to the extent that such options have vested at the time of
such exercise, except as otherwise specifically provided in the Plan.
4. Exclusive Employment; Noncompetition.
(a) No Conflict; No Other Employment. During the Agreement
Term, Executive shall not: (i) engage in any activity which materially
interferes with the performance of Executive's duties hereunder, except as
approved in advance in writing by the Chairman and Chief Executive Officer, the
President and Chief Operating Officer, or the Board of Directors of the Company;
or (ii) accept any other full-time or substantially full-time employment,
whether as an executive or consultant or in any other capacity, and whether or
not compensated therefor.
(b) No Competition. Without limiting the generality of the
provisions of Sections 2(b) or 4(a), during the Agreement Term, Executive 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, independent contractor, partner,
consultant, advisor, agent, proprietor, trustee or investor, any Competing
Business (as defined below) located in the United States; provided, however,
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that if Executive's employment hereunder is terminated by the Company under
Section 5(d), then the provisions of this Section 4(b), and all other
restrictions and limitations imposed on Executive by this Agreement shall remain
in effect so long as the Company shall continue to pay to Executive all amounts
described as severance pursuant to Section 5(d) and the benefits, perquisites
and bonus also described therein, subject to suspension as set forth herein; and
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 Executive does not in fact have the power to control,
or direct the management of, or is not otherwise associated with, such
corporation.
For purposes of this Section 4(b), the term "Competing Business"
shall mean any business or venture which develops, manufactures, publishes,
licenses, sells, distributes or supplies computer software or video games (or
any related books or other intellectual property or merchandise relating
thereto) to any retail outlet or by direct marketing.
(c) No Solicitation of Employment. During the Agreement Term,
Executive shall not solicit or encourage any employee to leave the Company for
any reason, nor employ such an employee in a Competing Business or any other
business.
(d) Company Customers. Executive shall not, during the
Agreement Term (or, if severance is then being paid to Executive as contemplated
by Sections 4(b) and 5(d) hereof, so long as the Company shall continue to pay
to Executive all amounts described as severance pursuant to Section 5(d) and the
benefits, perquisites and bonus also described therein, subject to suspension as
set forth herein), except as required by the Company in the performance of
Executives duties hereunder, directly or indirectly, contact, solicit, enter
into discussions with, regardless of who initiates such discussion, or do
business with (i) Wal-mart Stores, Inc., Target Stores, Caldor, Phar-mor, Best
Buy, CompUSA, Kmart or Office Depot (or any of their respective affiliated
operations) for the purpose of selling computer software or video games (or any
related books or other intellectual property or merchandise relating thereto) to
such customers; (ii) any "customers" (as defined below) of the Company for the
purpose of selling computer software or video games (or any related books or
other intellectual property or merchandise relating thereto).
For the purposes of the provisions of this Section 4(d), "customer"
shall include any entity that purchased computer software or video games (or any
related books or other intellectual property or merchandise relating thereto)
within eight months of the termination of Executive's employment 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 months of such termination, for the purpose
of selling computer software or video games (or any related books or other
intellectual property or merchandise relating thereto).
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5. Termination of Employment.
(a) Termination. The Company may terminate Executive's
employment for Cause (as defined below) in which case the provisions of Section
5(b) shall apply. If Executive's employment is terminated by reason of
Executive's death, retirement or voluntary resignation, the provisions of
Section 5(b) shall apply. The Company may also terminate Executive's employment
in the event of Executive's Disability (as defined below), in which case the
provisions of Section 5(c) shall apply. The Company may also terminate the
Executive's employment for any other reason by written notice to Executive, in
which case the provisions of Section 5(d) shall apply.
(b) Termination for Cause; Termination by Reason of Death or
Retirement or Voluntary Resignation. In the event that Executive's employment
hereunder is terminated during the Agreement Term (x) by the Company for Cause
(as defined below), (y) by reason of Executive's death or retirement or (z) by
reason of Executive's voluntary resignation, then the Company shall pay to
Executive, within thirty (30) days of the date of such termination, only the
Base Salary through such date of termination. Notwithstanding anything to the
contrary contained herein, in the event that Executive's employment hereunder is
terminated during the Agreement Term by reason of Executive's death, then any
bonus accrued and owing to Executive pursuant to this Agreement for any period
prior to his death, on a pro rated basis, shall be paid to Executive's estate in
accordance with the further terms of this Agreement. For purposes of this
Agreement, "Cause" shall mean (i) conviction of any crime (whether or not
involving the Company) constituting a felony in the jurisdiction in which the
conviction is entered; (ii) Gross Neglect (as hereinafter defined) by the
Executive in the performance of his duties hereunder; or (iii) material breach
of any obligation under Section 4(a)(ii), (b), (c) or (d) of this Agreement
(which, in the case of a breach that is capable of being cured, continues
following ten (10) days' notice from the Company setting forth in reasonable
detail the nature of such breach). For the purposes hereof, "Gross Neglect"
shall mean Executive's persistent and repeated failure to perform his duties
hereunder, which failure continues after twenty (20) days' notice from the
Company setting forth in reasonable detail the nature of the persistent and
repeated failure.
(c) Disability. If, as a result of Executive's incapacity due
to physical or mental illness, Executive shall have been absent from Executive's
duties hereunder on a full time basis for either (i) one hundred twenty (120)
days within any three hundred sixty-five (365) day period, or (ii) ninety (90)
consecutive days, and within thirty (30) days after written notice of
termination is given shall not have returned to the performance of Executive's
duties hereunder on a full time basis, the Company may terminate Executive's
employment hereunder for "Disability". In that event, the Company shall pay to
Executive, within thirty (30) days of the date of such termination, only the
Base Salary through such date of termination. During any period that Executive
fails to perform Executive's duties hereunder as a result of incapacity due to
physical or mental illness (a "Disability Period"), Executive shall continue to
receive the compensation and benefits provided by Section 3 hereof until
Executive's employment hereunder is terminated; provided, however, that the
amount of compensation and benefits received by Executive during the Disability
Period shall be reduced by the aggregate amounts, if any, payable to
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Executive under disability benefit plans and programs of the Company or under
the Social Security disability insurance program.
(d) Termination By Company For Any Other Reason. In the event
that Executive's employment hereunder is terminated by the Company during the
Agreement Term for any reason other than as provided in Section 5(b) or 5(c)
hereof, then the Company shall pay to Executive, within thirty (30) days of the
date of such termination, the Base Salary, the bonus provided for in Section
3(c) hereof and the automobile allowance provided for in Section 3(e) hereof,
through such date of termination, and, in lieu of any further compensation and
benefits for the balance of the Agreement Term, severance pay equal to the Base
Salary that Executive would have otherwise received during the remainder of the
Agreement Term, commencing with such date of termination, at the times and in
the amounts such Base Salary would have been paid. Under such circumstances,
except as set forth below, for the balance of such period, Executive shall also
continue to participate in and receive the benefits and perquisites provided for
in Section 3(b) hereof, the bonus provided for in Section 3(c) hereof and the
automobile allowance provided for in Section 3(e) hereof, to the same extent as
if Executive's employment hereunder had not been terminated; provided, however,
that in the event that Executive shall breach Sections 4 or 6 hereof, in
addition to any other remedies the Company may have in the event Executive
breaches this Agreement, the Company's obligation pursuant to this Section 5(d)
to pay Base Salary, bonus, benefits and perquisites shall be suspended and the
Company shall have the right to withhold payments of any amounts due hereunder
pending final judgment of a court of competent jurisdiction with respect to
damages attributable to such breach, provided, however, that any such amounts
withheld by the Company which are in excess of the amount determined (by
settlement or judicial proceedings) to be due to or properly withheld by the
Company shall be promptly paid to Executive together with interest at the rate
of 10% per annum from the date such amounts were originally due.
(e) No Further Liability; Release. Payment made and
performance by the Company in accordance with this Section 5 shall operate to
fully discharge and release the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives from any further obligation or liability with respect to
Executive's employment and termination of employment. Other than paying
Executive's Base Salary through the date of termination of Executive's
employment and making any severance payment and continuing benefits, and
perquisites, bonus and other payments pursuant to and in accordance with this
Section 5, as applicable, the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives shall have no further obligation or liability to Executive or
any other person under this Agreement. The Company shall have the right to
condition the payment of the full severance and other amounts pursuant to
Sections 5(c) or 5(d) hereof upon the delivery by Executive (prior to the
commencement of such payments) to the Company of a release in form and substance
satisfactory to the Company of any and all claims Executive may have against the
Company and its directors, officers, employees, subsidiaries, affiliates,
stockholders, successors, assigns, agents and representatives arising out of or
related to Executive's employment by the Company and termination of such
employment.
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6. Confidential Information.
(a) Existence of Confidential Information. The Company owns
and has developed and compiled, and will develop and compile, certain
proprietary techniques and confidential information which have great value to
its business (referred to in this Agreement, collectively, as "Confidential
Information"). Confidential Information includes not only information disclosed
by the Company to Executive, but also information developed or learned by
Executive during the course or as a result of employment with 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 labelled 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, purchased 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. Executive
acknowledges and agrees that in the performance of duties under the Original
Employment Agreement and hereunder, the Company has disclosed to and entrusted,
and will continue to disclose to and entrust, Executive with Confidential
Information which is the exclusive property of the Company. Executive also
acknowledges that Executive 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. Accordingly, during the Agreement Term, Executive 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 Executive's assigned duties and for the benefit of the Company, any
Confidential Information. Furthermore, the Executive agrees that the foregoing
covenant regarding non-disclosure by the Executive shall continue after the
Agreement Term solely with respect to trade secrets of the Company except for
those trade secrets that were acquired from Slash pursuant to the Acquisition
Agreement. In the event Executive desires to publish the results of Executive's
work for or experiences with the Company through literature, interviews or
speeches, Executive will submit requests for such interviews or such literature
or speeches to the Chief Executive Officer of the Company at least fourteen (14)
days before any anticipated dissemination of such information for a
determination of whether such disclosure is in the best interests of the
Company, including
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whether such disclosure may impair trade secret status or constitute an invasion
of privacy. Executive agrees not to publish, disclose or otherwise disseminate
such information without the prior written approval of the Chief Executive
Officer of the Company.
(c) Delivery of Records, Etc. In the event Executive's
employment with the Company ceases for any reason, Executive 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. Upon request or when
employment with the Company terminates, Executive will immediately deliver the
same to the Company.
7. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and
be enforceable by the Company and any successor or permitted assignee and may be
assigned by the Company to any purchaser of all or substantially all of the
Company's business or assets (by merger, sale of assets, consolidation,
acquisition of stock or otherwise) without the consent of Executive, and may
otherwise be assigned by the Company only with Executive's consent, which
consent shall not be unreasonably withheld. The Company will require any
permitted assignee to expressly assume and agree to perform under this Agreement
in the same manner and to the same extent that the Company would be required to
so perform if no such purchase, succession or assignment had taken place.
(b) Executive. Executive's rights and obligations under this
Agreement shall not be transferable by Executive by assignment or otherwise, and
any purported assignment, transfer or delegation thereof shall be void;
provided, however, that if Executive shall die, all amounts then payable to
Executive hereunder shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee or other designee or, if there be no such
designee, to Executive's estate.
8. Miscellaneous.
(a) Noncompetition Agreement. Nothing in this Agreement shall
in any event limit the scope, duration and enforceability of the Noncompetition
Agreement, dated as of June 22, 1995, between the Executive and the Company (the
"Noncompetition Agreement"), which was entered into separately from the Original
Employment Agreement and as a condition to the Company's entry into the
Agreement and Plan of Reorganization, dated June 22, 1995.
(b) Other Obligations. Executive represents and warrants that
neither Executive's employment with the Company nor Executive's performance of
Executive's obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other obligations, legal or otherwise, which Executive may
have.
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(c) Nondisclosure; Other Employers. Executive 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.
Executive represents and warrants that Executive has returned all property,
proprietary information, trade secrets and confidential business information
belonging to all prior employers.
(d) Cooperation. Following termination of employment with the
Company, Executive shall cooperate with the Company, as reasonably requested by
the Company, to effect a transition of Executive's responsibilities and to
ensure that the Company is aware of all matters being handled by Executive.
(e) No Duty to Mitigate. Executive shall be under no duty to
mitigate with respect to any severance or other amounts payable pursuant to
Sections 5(c) or 5(d) hereof, except as expressly contemplated therein.
(f) Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of New York,
without regard to principles of conflict of laws. The parties hereby consent to
the jurisdiction of any federal or state court sitting in the State of New York
having jurisdiction over disputes involving this Agreement. Any action to
enforce or interpret this Agreement must be brought in any federal or state
court sitting in the State of New York. The parties hereby consent to the
exclusive jurisdiction of the courts sitting in the State of New York,
notwithstanding the place of residence of Executive or where a dispute
concerning this Agreement arose. The parties hereby further consent to the
service of process in any such action by certified or registered mailing of the
summons and complaint therein directed to Executive at the address as provided
in Section 8(m) hereof and to the Company's designated agent for service of
process (which initially shall be GT Interactive Software Corp., 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President, which agent may be
changed by the Company upon thirty (30) days' prior written notice to
Executive).
(g) Entire Agreement. This Agreement and the Noncompetition
Agreement contain the entire agreement between the parties hereto relating to
the subject matter hereof and thereof and supersede all prior agreements and
understandings between them relating thereto, including, but not limited, to the
Original Employment Agreement.
(h) Amendment. This Agreement may be amended only by a writing
which makes express reference to this Agreement as the subject of such amendment
and which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
(i) Severability. If any term or provision of this Agreement
or the application thereof shall be held to be invalid, unenforceable or
excessive in scope, the remainder of this Agreement and such term or provision
shall remain in full force and effect, and any such invalid or unenforceable
term or provision 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 Agreement valid and enforceable. In
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this regard, Executive acknowledges that the provisions of Sections 4 and 6
hereof are reasonable and necessary for the protection of the Company.
(j) Construction. The headings and captions of this Agreement
are provided for convenience only and are intended to have no effect in
construing or interpreting this Agreement. The language in all parts of this
Agreement shall be in all cases construed according to its fair meaning and not
strictly for or against the Company or Executive. 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 Agreement by operation of
law, agreement pursuant to Section 7 hereof or otherwise. As used herein, the
words "day" or "days" shall mean a calendar day or days.
(k) 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.
(l) Remedies for Breach. (i) The parties hereto agree that
Executive is obligated under this Agreement to render personal services during
the Agreement Term of a special, unique, unusual, extraordinary and intellectual
character, thereby giving this Agreement peculiar value, and, in the event of a
breach or threatened breach of any covenant of Executive 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, Executive expressly acknowledges that (A) the provisions of this
Agreement are reasonable and necessary for the protection of the Company and
that each provision, and the period or periods of time and types and scope of
restrictions on the activities specified herein are, and are intended to be,
divisible, and (B) the Company shall be entitled to specific performance,
injunctive relief or any other equitable remedy against Executive, without the
posting of a bond, in the event of any breach or threatened breach of any
provision of this Agreement by Executive (including, without limitation,
Sections 4 and 6 hereof). Without limiting the generality of the foregoing, if
Executive breaches Sections 4 or 6 hereof, such breach will entitle the Company
to enjoin Executive from disclosing any Confidential Information to any
Competing Business, to enjoin such Competing Business from receiving Executive
or using any such Confidential Information and/or to enjoin Executive 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 Agreement, and the enforcement of one or more of
such rights and remedies by a party shall
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in no way preclude such party from pursuing, at the same time or subsequently,
any and all other rights and remedies available to it.
(ii) The Company agrees that if Executive voluntarily
resigns or retires or is terminated for Cause prior to the end of the Agreement
Term, it shall not seek damages from the Executive for such resignation,
retirement or termination. In no event shall this clause (ii) or any other
provision of this Agreement limit in any way whatsoever the remedies of specific
performance, injunctive relief and other equitable remedies available to the
Company pursuant to this or any other agreement between Executive and the
Company, in respect of a breach of Sections 4 or 6 of this Agreement.
(m) Notices. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to
Executive's residence (as reflected in the Company's records or as otherwise
designated by Executive on thirty (30) days' prior written notice to the
Company) with a copy to Xxxxxxx X. Xxxxxxx, Esq., Winthrop & Weinstine, 3000
Xxxx Xxxxxxxx Plaza, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000,
or to the Company's principal executive office, attention: President (with
copies to the Director, Legal Affairs), as the case may be. All such notices and
other communications shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of a telecopy,
when the party receiving such copy shall have confirmed receipt of the
communication, (c) in the case of delivery by nationally-recognized overnight
courier, on the business day following dispatch, and (d) in the case of mailing,
on the third business day following such mailing.
(n) Assistance in Proceedings, Etc. Executive shall, without
additional compensation, during and after expiration of the Agreement Term, upon
reasonable notice, furnish such information and proper assistance to the Company
as may reasonably be required by the Company in connection with any legal or
quasi-legal proceeding, including any external or internal investigation,
involving the Company or any of its affiliates or in which any of them is, or
may become, a party.
(o) Survival. Cessation or termination of Executive's
employment with the Company shall not result in termination of this Agreement.
The respective obligations of Executive and rights and benefits afforded to the
Company as provided in this Agreement shall survive cessation or termination of
Executive's employment hereunder. This Agreement shall not terminate upon, and
shall remain in full force and effect following, expiration of the Agreement
Term and all rights and obligations of the parties hereto as and to the extent
provided herein shall survive such expiration.
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IN WITNESS WHEREOF, the Company has caused this Employment Agreement
to be duly executed on its behalf by an officer thereunto duly authorized and
Executive has duly executed this Agreement, all as of the date and year first
written above.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: President and Chief Operating
Officer
EXECUTIVE:
/s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
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13
SCHEDULE A
Preliminary Job Description: Subject to change as set forth in Section 2(b),
Executive shall be responsible for mass merchant operations and, with respect to
the value-priced operations, distribution, non-published budget products and
close-outs.
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