-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CLb3Q+OtDvQpIZhIXCSjHeVKSQycdVIYwip6yFNTruD/Tzf/jMnZEN7H7oBhZDD+ Yrosh7o5iq4gIU+Iwr4qsg== /in/edgar/work/0000950123-00-009112/0000950123-00-009112.txt : 20001005 0000950123-00-009112.hdr.sgml : 20001005 ACCESSION NUMBER: 0000950123-00-009112 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001004 GROUP MEMBERS: CALIFORNIA U.S. HOLDINGS, INC. GROUP MEMBERS: INFOGRAMES ENTERTAINMENT SA SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INFOGRAMES INC CENTRAL INDEX KEY: 0001002607 STANDARD INDUSTRIAL CLASSIFICATION: [7372 ] IRS NUMBER: 953825313 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-47017 FILM NUMBER: 734555 BUSINESS ADDRESS: STREET 1: 417 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10016 BUSINESS PHONE: 2127266500 MAIL ADDRESS: STREET 1: 417 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10016 FORMER COMPANY: FORMER CONFORMED NAME: GT INTERACTIVE SOFTWARE CORP DATE OF NAME CHANGE: 19951023 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INFOGRAMES ENTERTAINMENT SA CENTRAL INDEX KEY: 0001100953 STANDARD INDUSTRIAL CLASSIFICATION: [ ] IRS NUMBER: 000000000 STATE OF INCORPORATION: CA FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 82-84, RUE DU LER MARS 1943 STREET 2: FRANCE MAIL ADDRESS: STREET 1: 82-84, RUE DU LER MARS 1943 STREET 2: FRANCE SC 13D/A 1 y41051sc13da.txt INFOGRAMES, INC. 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D AMENDMENT NO. 3 Under the Securities Exchange Act of 1934 INFOGRAMES, INC. ----------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 362 36E 109 ----------------------- (CUSIP Number) Frederic Monnereau Infogrames Entertainment SA 82-84, rue du 1er mars 1943 69628 Villeurbanne cedex France +33 (0) 4 72 65 50 00 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 30, 2000 ------------------------------------------------------------ (Date of Event which Requires Filing of this Statement) - -------------------------------------------------------------------------------- If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ] The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes). 1 2 SCHEDULE 13D - -------------------------- --------------------- CUSIP NO. 362 36E 109 PAGE 2 - -------------------------- --------------------- - ------------------------------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON INFOGRAMES ENTERTAINMENT SA - ------------------------------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - ------------------------------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS* WC - ------------------------------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION FRANCE - ------------------------------------------------------------------------------------------------------------------------------------ NUMBER OF 7 SOLE VOTING POWER SHARES 68,483,012 --------------------------------------------------------------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 --------------------------------------------------------------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 68,223,012 --------------------------------------------------------------------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ------------------------------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 68,483,012 - ------------------------------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ------------------------------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 89.9% - ------------------------------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! 3 SCHEDULE 13D - --------------------------- ------------------- CUSIP NO. 362 36E 109 PAGE 3 - --------------------------- ------------------- - ------------------------------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON CALIFORNIA U.S. HOLDINGS, INC. - ------------------------------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - ------------------------------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS* AF - ------------------------------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - ------------------------------------------------------------------------------------------------------------------------------------ NUMBER OF 7 SOLE VOTING POWER SHARES 68,483,012 ------------------------------------------------------------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 ------------------------------------------------------------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 68,223,012 ------------------------------------------------------------------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ------------------------------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 68,483,012 - ------------------------------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ------------------------------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 89.9% - ------------------------------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! 4 This Amendment No. 3 ("Amendment No. 3") to the Schedule 13D filed on December 14, 1999, as amended by Amendment No. 1 filed on January 10, 2000 and as amended and restated in its entirety by Amendment No. 2 filed on May 26, 2000 (the "Schedule 13D"), is filed by the undersigned to further amend the Schedule 13D. Capitalized terms used and not defined in this Amendment No. 3 shall have the meanings ascribed to them in the Schedule 13D. Except as otherwise noted, references to the number of shares of Common Stock in this Amendment No. 3 reflect the Reverse Stock Split (as defined under Item 1) effected by the Company in June 2000. Item 1. Security and Issuer. This item is amended and supplemented as follows: On June 2, 2000, the Company's Board of Director approved a certificate of amendment (the "Amendment") to the Amended and Restated Certificate of Incorporation of the Company (the "Certificate of Incorporation") to effectuate a one-for-five reverse stock split (the "Reverse Stock Split") of the issued and outstanding shares of the Common Stock. The Amendment was approved by Purchaser as the holder of a majority of the outstanding Common Stock on June 2, 2000. On June 2, 2000, the Amendment was filed and accepted by the Secretary of State of the State of Delaware with a delaying provision in accordance with applicable federal securities laws. The Company filed an Information Statement on Schedule 14C pursuant to the requirements of Rule 14c-2 under Section 14 of the Exchange Act to inform the holders of Common Stock of the action authorized by written consent of Purchaser. The Reverse Stock Split was effected as of the close of business on June 26, 2000. As a result of the Reverse Stock Split, the total number of outstanding shares of Common Stock was 20,685,323 on June 27, 2000. Except as otherwise noted, references to the number of shares of Common Stock herein reflect the Reverse Stock Split. Item 2. Identity and Background. This Item is not amended. Item 3. Source and Amount of Funds or Other Consideration. This Item is not amended. Item 4. Purpose of Transaction. This item is amended and supplemented as follows: Edmondson Agreement On February 18, 2000, David Ward, UK Director of Infogrames SA ("Ward"), agreed to acquire from Martin Edmondson ("Edmondson") 1,000,000 shares (before the 4 5 Reverse Stock Split) of Common Stock (the "Edmondson Shares") for an aggregate purchase price of $4,190,000.00, pursuant to a letter agreement, dated February 18, 2000 (the "Edmondson Agreement"). At the time of entering into the Edmondson Agreement, the trading price for the Common Stock on the Nasdaq National Market was in the range of approximately $4.19. On May 19, 2000, Ward, Edmondson and Infogrames entered into a supplemental agreement which superceded the Edmondson Agreement in its entirety (the "Supplemental Agreement"), pursuant to which the parties agreed that Infogrames would purchase from Edmondson the Edmondson Shares. The closing of the Supplemental Agreement took place on August 30, 2000, pursuant to which 200,000 shares (after the Reverse Stock Split) of Common Stock were transferred to Purchaser, as directed by Infogrames. The Supplemental Agreement is attached hereto as Exhibit 13 and incorporated herein by reference. Accrual of Interest on the 5% Note The 5% Note held by Purchaser accrues interest that is added quarterly to the principal amount of the 5% Note. As of June 30, 2000, the 5% Note is convertible into 6,727,304 shares of Common Stock at a conversion price of $9.25 per share, subject to adjustment in certain circumstances. Execution of the Bank Warrant and the Bank Warrant Agreement On February 15, 2000, in connection with the assumption by Infogrames of the rights and interest of certain banks under the Credit Agreement, the Company agreed to issue to Infogrames the Bank Warrant. Pursuant to the Bank Warrant, Infogrames was entitled to purchase from the Company 45,000 shares of Common Stock at an exercise price of $0.05 per share of Common Stock. In June 2000, a Warrant Agreement dated as of February 15, 2000 (the "Bank Warrant Agreement") documenting the Bank Warrant was executed by the Company and Infogrames and a certificate for the Bank Warrant was issued to Purchaser. The Bank Warrant Agreement and the Bank Warrant certificate are attached hereto as Exhibit 14 and incorporated herein by reference. Merger Agreement between the Company and INA On October 2, 2000, the Company, INA Merger Sub, Inc. ("Merger Sub"), Infogrames, Purchaser and Infogrames North America, Inc. ("INA") consumated the transactions contemplated under the Agreement and Plan of Merger, dated as of September 6, 2000 (the "Merger Agreement"), pursuant to which Merger Sub was merged with and into INA, with INA as the surviving corporation (the "Merger"). Purchaser, as the sole stockholder of INA, received 28 million shares of Common Stock in exchange for all the shares of common stock of INA that Purchaser owned prior to the Merger. In connection with the Merger, Infogrames and the Company converted the Company's debt outstanding under the Credit Agreement and certain intercompany payables into an aggregate of 20,089,224 shares of Common Stock. In addition, all of 5 6 the warrants (including the Bank Warrant) held by Infogrames or Purchaser were exercised for 955,000 shares of Common Stock. The Merger Agreement is attended hereto as Exhibit 16 and incorporated herein by reference. The Filing Persons' beneficial ownership of 68,483,012 shares of Common Stock represents a majority equity position in the Company (89.9% of the total voting power). The Filing Persons acquired and continues to hold the shares of Common Stock reported herein for control purposes. Consistent with such purposes, the Filing Persons may have discussions with management of the Company concerning various operational and financial aspects of the Company' business. The Filing Persons also may have discussions with management and other shareholders of the Company concerning various ways of maximizing long-term shareholder value. Depending on market conditions and other factors that each of the Filing Persons may deem material, such Filing Person may purchase additional shares of Common Stock in the open market or in private transactions or may make an offer to acquire all or substantially all of the outstanding shares of Common Stock that it does not already own. Depending on these same factors, such Filing Person may sell all or a portion of the shares of Common Stock that it now owns or hereafter may acquire. Except as set forth in this Amendment No. 3, the Filing Persons have no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Exchange Act. Item 5. Interest in Securities of the Issuer. a) In accordance with Rule 13d-3 of the Exchange Act, as a result of Purchaser's acquisition of Common Stock, the 5% Note and certain voting provisions under the Cayre Purchase Agreements, Purchaser may be deemed to be the beneficial owner of 68,483,012 shares of Common Stock, which constitutes approximately 89.9% of the 76,211,457 shares of Common Stock that may be deemed outstanding pursuant to Rule 13d-3(d)(i)(D) under the Exchange Act. Of such 68,483,012 shares of Common Stock, (i) 12,425,992 shares have been acquired by Purchaser pursuant to the Securities Purchase Agreement and the Cayre Purchase Agreements, (ii) 6,727,304 shares may be acquired by Purchaser upon conversion of the 5% Note, (iii) 260,000 shares are subject to the Cayre Purchase Agreements, (iv) 200,000 shares have been acquired by Purchaser pursuant to the Supplemental Agreement and (v) 61,670,217 shares have been acquired by Purchaser pursuant to the Merger Agreement. By virtue of its ownership of 100% of the capital stock of Purchaser, Infogrames may be deemed to be the indirect beneficial owner of the 68,483,012 shares of Common Stock that are deemed beneficially owned by Purchaser, which constitutes approximately 89.9% of the 76,211,457 shares of Common Stock that may be deemed outstanding pursuant to Rule 13d-3(d)(i)(D) under the Exchange Act. 6 7 None of the executive officers or directors of the Filing Persons beneficially owns any shares of Common Stock, as such term is defined in Rule 13d-3 of the Exchange Act. b) Purchaser is deemed to have sole voting power with respect to 68,483,012 shares of Common Stock and is deemed to have sole dispositive power with respect to 68,223,012 shares of Common Stock. By virtue of its ownership of 100% of the capital stock of Purchaser, Infogrames is deemed to have sole voting power with respect to 68,483,012 shares of Common Stock and is deemed to have sole dispositive power with respect to 68,223,012 shares of Common Stock. c) Except as described in this Amendment No. 3, none of the Filing Persons or any executive officer or director of any of the Filing Persons has engaged in any transaction in the shares of Common Stock, during the past sixty days prior to the date hereof. d) No person other than the Filing Persons listed is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock owned by Purchaser and Infogrames. e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer As described in Item 4 above, Purchaser is authorized and empowered to vote 260,000 shares of Common Stock retained by the Cayre Group. Therefore, Purchaser may be deemed to be the beneficial owner of such 260,000 shares of Common Stock. Other than voting rights conferred by the Cayre Purchase Agreements, Purchaser is not entitled to any rights as a stockholder with respect to such 260,000 shares of Common Stock retained by the Cayre Group. The Form of Cayre Purchase Agreements is attached hereto as Exhibit 10 and incorporated herein by reference. Amended and Restated Registration Rights Agreement In June 2000, the Registration Rights Agreement was amended and restated as of February 15, 2000 (the "Amended and Restated Registration Rights Agreement") to include any shares of Common Stock issuable upon exercise of the Bank Warrants. In connection with the Merger, the Amended and Restated Registration Rights Agreement was further amended and restated as of October 2, 2000 (the "Second Amended and Restated Registration Rights Amendment") to include all of the Common Stock issued to Purchaser under the Merger Agreement. The Second Amended and Restated Registration Rights Agreement is attached hereto as Exhibit 15 and incorporated herein by reference. 7 8 Item 7. Material to be Filed as Exhibits. Exhibit 1 Chart Regarding Executive Officers and Directors of Filing Persons. (Filed on 5/26/2000 as Exhibit 1 to Amendment No. 2 to Schedule 13D and incorporated herein by reference.) Exhibit 2 Joint Filing Agreement between the Filing Persons. (Filed on 12/14/1999 as Exhibit 2 to Schedule 13D and incorporated herein by reference.) Exhibit 3 Securities Purchase Agreement, dated as of November 15, 1999, among the Company and the Filing Persons. (Filed on 12/14/1999 as Exhibit 3 to Schedule 13D and incorporated herein by reference.) Exhibit 4 Short Term Note of the Company in the Principal Amount of $25.0 million. (Filed on 12/14/1999 as Exhibit 4 to Schedule 13D and incorporated herein by reference.) Exhibit 5 Warrant to Purchase 50,000 shares of Common Stock, issued to Purchaser. (Filed on 12/14/1999 as Exhibit 5 to Schedule 13D and incorporated herein by reference.) Exhibit 6 5% Subordinated Convertible Note of the Company, issued to Purchaser. (Filed on 1/10/2000 as Exhibit 6 to Amendment No. 1 to Schedule 13D and incorporated herein by reference.) Exhibit 7 Equity Purchase and Voting Agreement, dated as of November 15, 1999, among the Filing Persons and the GAP Entities. (Filed on 12/14/1999 as Exhibit 8 to Schedule 13D and incorporated herein by reference.) Exhibit 8 Form of GAP Warrant. (Filed on 12/14/1999 as Exhibit 9 to Schedule 13D and incorporated herein by reference.) Exhibit 9 Exchange Agreement, dated as of November 15, 1999, among the Company and the GAP Entities. (Filed on 12/14/1999 as Exhibit 10 to Schedule 13D and incorporated herein by reference.) Exhibit 10 Form of Equity Purchase and Voting Agreements, dated as of November 15, 1999, among the Filing Persons and the members of the Cayre Group. (Filed on 12/14/1999 as Exhibit 11A to Schedule 13D and incorporated herein by reference.) 8 9 Exhibit 11 Note Purchase Agreement, dated as of November 15, 1999, between certain members of the Cayre Group and Purchaser. (Filed on 12/14/1999 as Exhibit 11B to Schedule 13D and incorporated herein by reference.) Exhibit 12 Right of First Offer Agreement, dated as of November 15, 1999, among Purchaser and the Lenders. (Filed on 12/14/1999 as Exhibit 13 to Schedule 13D and incorporated herein by reference.) Exhibit 13 Supplemental Agreement, dated May 19, 2000, between Edmondson, Ward and Infogrames. Exhibit 14 Warrant Agreement, dated as of February 15, 2000, among the Company and Purchaser, and Warrant to Purchase 45,000 shares of Common Stock (225,000 shares before Reverse Stock Split), issued to Purchaser. Exhibit 15 Second Amended and Restated Registration Rights Agreement, dated as of October 2, 2000, between Purchaser and the Company. Exhibit 16 Agreement and Plan of Merger, dated as of September 6, 2000, by and among the Company, Merger Sub, Infogrames, Purchaser and INA. (Filed as Exhibit A to Schedule 14C filed by the Company on September 12, 2000 and incorporated herein by reference.) 9 10 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: October 3, 2000 By: INFOGRAMES ENTERTAINMENT SA /s/ Bruno Bonnell ----------------------------------- Bruno Bonnell President Dated: October 3, 2000 By: CALIFORNIA U.S. HOLDINGS, INC. By: /s/ Bruno Bonnell ----------------------------------- Bruno Bonnell President 10 EX-99.13 2 y41051ex99-13.txt SUPPLEMENTAL AGREEMENT, DATED MAY 19, 2000 1 EXHIBIT 13 THIS SUPPLEMENTAL AGREEMENT is made the 19th day of May 2000 BETWEEN: (1) MARTIN LEE EDMONDSON of 32 Love Lane, Pandon Quay, Newcastle upon Tyne NE1 3DW, England ("ME"); and (2) DAVID CHRISTOPHER WARD of The Old Farm, Hilltop Drive, Hale, Cheshire WA16 0JN, England (the "Original Purchaser"); and (3) INFOGRAMES ENTERTAINMENT SA a company under the laws of France with registration number RCS Lyon B 341 699 106 having its principal office at 82-84 rue du lor Mars 1943, Villeurbanne 69628, France (the "New Purchaser") RECITALS: A) ME is the legal and beneficial owner of 1,000,000 (one million) shares of common stock of GT Interactive Software Corp ("GT"), par value $0.01 each (the "Shares"), and by an Agreement dated 18th February 2000 agreed to sell the Shares to the Original Purchaser on the terms of that Agreement B) In entering that Agreement, the Original Purchaser was acting as undisclosed agent for the New Purchaser, which each of ME and the New Purchaser acknowledges C) The terms of that Agreement having not been fulfilled by either party, ME has agreed with the Original Purchaser and with the New Purchaser to enter this agreement to acknowledge the New Purchaser as principal and to clarify the terms of the original Agreement and the provisions surrounding completion: IT IS AGREED: 1. ME (being the absolute legal and beneficial owner of the Shares) shall sell, free from all liens, charges and encumbrances of any nature whatsoever, and the New Purchaser shall buy the Shares for a price of $4.19 (four US Dollars and nineteen cents) per share, giving an aggregate purchase price for all the Shares of $4,190,000 (four million, one hundred and ninety thousand US Dollars). 2. ME and the Original Purchaser hereby acknowledge and confirm that shortly after the signature of the original Agreement referred to above (and for the avoidance of doubt prior to the expiry of 21 (twenty-one) days after the date of that Agreement) that it was agreed between the parties that the requirement for completion of the sale to take place within such 21 (twenty-one) days after the date of that Agreement be accordingly amended so that completion of the sale shall take place as soon as may reasonably be possible (and in any event not later than 31st May 2000) when: 2 2.1 ME shall deliver to the New Purchaser a duly executed transfer in respect of the Shares and lodge with GT share certificate(s) representing a number of shares in GT at least equal to the number of the Shares 2.2 the New Purchaser shall pay the purchase price by transferring by telegraphic transfer to such bank account as may be nominated by ME the sum of $4,190,000 (four million, one hundred and ninety thousand US Dollars) by way of payment of the purchase price. 3. ME and the Original Purchaser hereby agree that the Original Purchaser entered the Agreement dated 18th February 2000 noted in Recital (A) as agent of the New Purchaser and that accordingly the rights and obligations which arose under that Agreement are deemed discharged on this Supplemental Agreement being signed, and that neither shall be liable to the other for any cause or matter pertaining to or connected with that Agreement. 4. This Supplemental Agreement shall be governed by English law. Each of ME and the Original Purchaser and the New Purchaser hereby submits to the exclusive jurisdiction of the courts of England in respect of all matters arising out of this Agreement. SIGNED by MARTIN LEE EDMONDSON: SIGNED by DAVID CHRISTOPHER WARD for himself and for and on behalf of INFOGRAMES ENTERTAINMENT SA: 2 EX-99.14 3 y41051ex99-14.txt WARRANT AGREEMENT DATED AS OF FEBRUARY 15, 2000 1 EXHIBIT 14 WARRANT AGREEMENT Dated as of February 15, 2000 among INFOGRAMES, INC. (formerly GT Interactive Software Corp.), INFOGRAMES ENTERTAINMENT SA and CALIFORNIA U.S. HOLDINGS, INC. 2 WARRANT AGREEMENT, dated as of February 15, 2000 (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement"), by and among INFOGRAMES, INC. (formerly GT Interactive Software Corp.), a Delaware corporation (the "Company"), INFOGRAMES ENTERTAINMENT SA a French societe anonyme ("Infogrames") and CALIFORNIA U.S. HOLDINGS, INC. ("CUSH"), a California corporation and wholly-owned subsidiary of Infogrames. W I T N E S S E T H : WHEREAS, pursuant to the terms of the Master Assignment and Acceptance dated as of February 15, 2000 (the "Assignment and Acceptance"), by and among (i) the Company, as borrower, (ii) First Union National Bank, Bank of America, N.A., European American Bank, Fleet Bank, N.A., National Bank of Canada, The Bank of Nova Scotia (collectively the "Previous Lenders"), and (iii) Infogrames, as assignee, the Previous Lenders assigned to Infogrames all the rights and obligations of the Previous Lenders under the Credit Agreement dated as of September 11, 1998 (as amended, restated, supplemented or otherwise modified, the "Credit Agreement"), by and among the Company and the Previous Lenders; WHEREAS, pursuant to the terms of the Collateral Assignment Agreement dated as of February 15, 2000 (the "Collateral Assignment Agreement"), by and among (i) the Company, (ii) First Union National Bank, (as administrative agent under the Credit Agreement, the "Agent"), and (iii) Infogrames (as successor agent, the "Successor Agent"), the Agent assigned to the Successor Agent all of its rights, titles and interests in, to and under (a) a certain Second Amended and Restated Pledge Agreement, (b) a certain Second Amended and Restated Security Agreement and (c) a certain Guaranty Agreement, all entered into in connection with the Credit Agreement; WHEREAS, in consideration of, among other things, the Previous Lenders' agreement to execute the Second Amendment, Waiver and Agreement dated June 29, 1999 (the "Second Amendment") under the Credit Agreement to, among other things, amend certain provision of the Credit Agreement, the Company entered into a Warrant Agreement dated as of June 29, 1999 (the "Bank Warrant Agreement") with the Previous Lenders; WHEREAS, pursuant to the Bank Warrant Agreement, the Company issued and delivered to the Previous Lenders, (i) warrants to purchase 375,000 shares of Common Stock, exercisable on and after June 29, 1999, (the "First Set of Warrants"), (ii) warrants to purchase 250,000 shares of Common Stock, exercisable on and after October 31, 1999 (the "Second Set of Warrants") and (iii) warrants to purchase 225,000 shares of Common Stock, that would have been exercisable on or after February 28, 2000 if certain conditions had been met (the "Third Set of Warrants"); WHEREAS, in connection with the Assignment and Acceptance, the Previous Lenders agreed to return to the Company for cancellation the 1 3 Third Set of Warrants, and the Company agreed to enter into this Agreement with Infogrames and CUSH and to issue and deliver new warrants to CUSH to purchase 225,000 shares of Common Stock upon the terms and conditions set forth herein (collectively, the "Credit Warrants"); and WHEREAS, in connection with the issuance of the Credit Warrants pursuant to this Agreement, the Company has agreed to provide certain registration rights to CUSH in respect of the shares of Common Stock issuable upon exercise of the Credit Warrants pursuant to an Amended and Restated Registration Rights Agreement (as amended, restated, supplemented or otherwise modified, the "Amended and Restated Registration Rights Agreement"), by and among the Company and CUSH. NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto hereby agree as follows: ARTICLE 1. Defined Terms SECTION 1.1 Definitions. As used in this Agreement, the following terms shall have the following meanings: "Affiliate" means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person or any of its Subsidiaries. The term "control" means (a) the power to vote ten percent (10%) or more of the securities or other equity interests of a Person having ordinary voting power, or (b) the possession, directly or indirectly, of any other power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. "Agent" has the meaning set forth in the Recitals. "Agreement" has the meaning set forth in the Preamble. "Amended and Restated Registration Rights Agreement" has the meaning set forth in the Recitals. "Assignment and Acceptance" has the meaning set forth in the Recitals. "Bank Warrant Agreement" has the meaning set forth in the Recitals. "Board" means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such Board of Directors. 2 4 "Business Day" shall mean any Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York City are authorized by law, regulation or executive order to close. "Cashless Exercise" has the meaning set forth in Section 3.4. "Cashless Exercise Ratio" means a fraction, the numerator of which is the excess of the Current Market Value per share of Common Stock on the date of exercise over the Exercise Price per share and the denominator of which is the Current Market Value per share of the Common Stock on the date of exercise. "Certificate Register" has the meaning set forth in Section 2.3. "Collateral Assignment Agreement" has the meaning set forth in the Recitals. "Combination" means an event or series of events in which the Company consolidates with, merges with or into, or sells all or substantially all its property and assets to, another Person or Persons. "Common Stock" means the common stock, $0.01 par value, of the Company together with any other equity securities that may be issued by the Company in substitution therefor. "Company" has the meaning set forth in the Preamble. "Credit Agreement" has the meaning set forth in the Recitals. "Credit Warrants" has the meaning set forth in the Recitals. "Current Market Value" has the meaning set forth in Section 4.8. "CUSH" has the meaning set forth in the Preamble. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exercise Price" has the meaning set forth in Section 3.1. "Expiration Date" means February 15, 2005. "Fair Value" has the meaning set forth in Section 4.2. "First Set of Warrants" has the meaning set forth in the Recitals. "Governmental Authority" means any nation, province, state or political subdivision thereof, and any government or any Person exercising executive, legislative, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing. 3 5 "Holder" means CUSH or any person to whom CUSH transfers a Credit Warrant pursuant to the terms and conditions hereof. "Officer" means any of the following: the chief executive officer, chief operating officer, chief financial officer or vice president of the Company. "Person" means an individual, corporation, limited liability company, partnership, association, trust, business trust, joint venture, joint stock company, pool, syndicate, sole proprietorship, unincorporated organization, Governmental Authority or any other form of entity or group thereof. "Previous Lenders" has the meaning set forth in the Recitals. "Required Holders" has the meaning set forth in Section 5.5. "Rule 144" means Rule 144 promulgated under the Securities Act, as such Rule may be amended from time to time, or any successor rule or regulation hereinafter adopted by the SEC. "SEC" means the Securities and Exchange Commission (or any successor thereto). "Second Amendment" has the meaning set forth in the Recitals. "Second Set of Warrants" has the meaning set forth in the Recitals. "Securities Act" means the Securities Act of 1933, as amended. "Subsidiary" means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the outstanding capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity is at the time, directly or indirectly, owned by or the management is otherwise controlled by such Person (irrespective of whether, at the time, capital stock or other ownership interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency). "Successor Agent" has the meaning set forth in the Recitals. "Third Set of Warrants" has the meaning set forth in the Recitals. "Transfer Agent" has the meaning set forth in Section 3.5. "Transfer Restricted Securities" means the Credit Warrants and the Warrant Shares issued to Holder upon exercise of the Credit Warrants, whether or not such exercise has been effected. Each such security shall cease to be a Transfer 4 6 Restricted Security when the legend set forth in Section 2.5 is, or may be, removed pursuant to Section 2.4(b)(v). "Voting Stock" of a corporation means all classes of capital stock of such corporation then outstanding and normally entitled to vote in the election of directors. "Warrant Certificate" means the certificate evidencing the Credit Warrants to be delivered pursuant to this Agreement, substantially in the form of Exhibit A hereto. "Warrant Shares" means the shares of Common Stock to be issued and received, or issued and received, as the case may be, upon exercise of the Credit Warrants. SECTION 1.2 Rules of Construction. Unless the text otherwise requires. (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. generally accepted accounting principles as in effect from time to time; (c) "or" is not exclusive; (d) "including" means including, without limitation; and (e) words in the singular include the plural and words in the plural include the singular. ARTICLE 2. Warrant Certificates SECTION 2.1 Issuance and Dating. The Credit Warrants initially shall be issued as of the date of this Agreement. The Company, Infogrames and CUSH hereby agree that the Credit Warrants initially shall be issued in the name of CUSH and that the provisions of Section 2.4 shall not apply to such issuance. The Credit Warrants shall be evidenced by a Warrant Certificate substantially in the form of Exhibit A, which is hereby incorporated in and expressly made a part of this Agreement. The Warrant Certificate may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Company is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company) and shall bear the legend required by Section 2.5. Each Credit Warrant shall be dated the date of its execution by the Company. The terms of the Credit Warrants set forth in Exhibit A are part of the terms of this Agreement. 5 7 SECTION 2.2 Execution. (a) With respect to the Credit Warrants to be issued pursuant to this Agreement, one or more Warrant Certificates representing the Credit Warrants shall be executed on behalf of the Company by manual or facsimile signature by one Officer and attested by its Secretary or an Assistant Secretary under its corporate seal which may be impressed, affixed, imprinted or reproduced on such Warrant Certificate or may be in facsimile form. (b) Upon written order from any Holder, the Company shall execute and deliver to such Holder Warrant Certificates registered in the name or names and for such number of Credit Warrants as shall be specified by such Holder in such order in exchange for Warrant Certificate(s) then held by such Holder for a like number of Credit Warrants. SECTION 2.3 Certificate Register. The Company shall keep a register ("Certificate Register") of the Warrant Certificates and of their transfer and exchange. The Certificate Register shall show the names and addresses of the respective Holders and the date and number of Credit Warrants evidenced on the face of each of the Warrant Certificates. SECTION 2.4 Transfer and Exchange. (a) When Credit Warrants are presented to the Company with a request to register the transfer of such Credit Warrants or to exchange such Credit Warrants for an equal number of Credit Warrants of other authorized denominations, the Company shall register the transfer or make the exchange as requested; provided, however, that the Warrant Certificates representing such Credit Warrants surrendered for transfer or exchange: (i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company, duly executed by the Holder thereof or the attorney of such Holder duly authorized in writing; and (ii) in the case of Credit Warrants that are Transfer Restricted Securities, shall be accompanied by the following additional information and documents: (A) a certificate from such Holder in substantially the form of Exhibit C hereto certifying that: (1) such securities are being delivered for registration in the name of such Holder without transfer; (2) such securities are being transferred to the Company; (3) such securities are being transferred pursuant to an effective registration statement under the Securities Act; or 6 8 (4) such securities are being transferred (w) to a "qualified institutional buyer" ("QIB") as defined in Rule 144A under the Securities Act pursuant to such Rule 144A, if available, (x) in an offshore transaction in accordance with Rule 904 under the Securities Act, (y) in a transaction meeting the requirements of Rule 144 under the Securities Act or (z) pursuant to another available exemption from the registration requirements of the Securities Act; and (B) in the case of any transfer described under clause (a)(ii)(A)(4)(x), (y) or (z) of this Section 2.4, evidence reasonably satisfactory to the Company (which may include an opinion of counsel) as to compliance with the restrictions set forth in the legend in Section 2.5. (b) (i) To permit registrations of transfers and exchanges, the Company shall execute Warrant Certificates as required pursuant to the provisions of this Section 2.4. (ii) All Warrant Certificates issued upon any registration of transfer or exchange of Credit Warrants shall be the valid obligations of the Company, entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered upon such registration of transfer or exchange. (iii) Prior to due presentment for registration of transfer of any Credit Warrant, the Company may deem and treat the Person in whose name any Credit Warrant is registered as the absolute owner of such Credit Warrant and the Company shall not be affected by notice to the contrary. (iv) No service charge shall be made to a Holder for any registration of transfer or exchange upon surrender of any Warrant Certificate. However, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates. (v) Upon any sale or transfer of Credit Warrants pursuant to an effective registration statement under the Securities Act, pursuant to Rule 144(k) under the Securities Act or pursuant to an opinion of counsel reasonably satisfactory to the Company that no legend is required, the Company shall permit the Holder thereof to exchange such Credit Warrants for Credit Warrants represented by Warrant Certificates that do not bear the legend set forth in Section 2.5 and rescind any restriction on the transfer of such Credit Warrants. SECTION 2.5 Legends. Except for Warrant Certificates delivered pursuant to Section 2.4(b)(v) of this Agreement, each Warrant Certificate evidencing the Credit Warrants (and all Warrant Certificates issued in exchange therefor or substitution thereof) and each certificate representing the Warrant Shares (unless such Warrant Shares are not Transfer Restricted Securities) shall bear a legend in substantially the following form (with any appropriate modification for the Warrant Shares): 7 9 "THE WARRANTS AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE OF THE WARRANTS (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, UNLESS PREVIOUSLY REGISTERED UNDER THE SECURITIES ACT, ONLY (A) TO THE COMPANY; (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE); (C) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A; (D) PURSUANT TO AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT; OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT." SECTION 2.6 Replacement Certificates. If a mutilated Warrant Certificate is surrendered to the Company or if the Holder of a Warrant Certificate claims that the Warrant Certificate has been lost, destroyed or wrongfully taken, the Company shall issue a replacement Warrant Certificate if the requirements of Section 8-405 of the Uniform Commercial Code as in effect in the State of New York are met. If required by the Company, such Holder shall furnish an indemnity sufficient in the reasonable judgment of the Company to protect the Company from any loss which it may suffer if a Warrant Certificate is replaced. The Company may charge the Holder for its reasonable expenses in replacing a Warrant Certificate. Every replacement Warrant Certificate is an additional obligation of the Company. SECTION 2.7 Cancellation. (a) In the event the Company shall purchase or otherwise acquire Credit Warrants, the Warrant Certificates in respect thereof shall thereupon be delivered to the Company for cancellation. (b) The Company shall cancel and destroy all Warrant Certificates surrendered for transfer, exchange, replacement, exercise or cancellation. The Company may not issue new Warrant Certificates to replace Warrant Certificates to the extent they evidence Credit Warrants which have been exercised or Credit Warrants which the Company has purchased or otherwise acquired. 8 10 ARTICLE 3. Exercise Terms SECTION 3.1 Exercise Price. Each Credit Warrant shall entitle the Holder thereof to purchase one share of Common Stock for a per share exercise price of $0.01 (the "Exercise Price"). SECTION 3.2 Limitations on Exercise. Each Credit Warrant may be exercised at any time in the discretion of the Holder thereof, provided, that no Credit Warrant shall be exercisable prior to February 28, 2000 and after the Expiration Date. SECTION 3.3 Expiration. A Credit Warrant shall terminate and become void as of the earlier of (a) the close of business on the Expiration Date and (b) the time and date such Credit Warrant is exercised. The Credit Warrants shall terminate and become void after the Expiration Date. SECTION 3.4 Manner of Exercise. Credit Warrants may be exercised upon (a) surrender to the Company of the Warrant Certificates, together with the form of election to purchase Common Stock attached as Exhibit B hereto duly filled in and signed by the Holder thereof and (b) payment to the Company of the Exercise Price for the number of Warrant Shares in respect of which such Credit Warrant is then exercised. Such payment shall be made (i) in cash or by certified or official bank check payable to the order of the Company or by wire transfer of funds to an account designated by the Company for such purpose or (ii) by the surrender (which surrender shall be evidenced by cancellation of the number of Credit Warrants represented by any Warrant Certificate presented in connection with a Cashless Exercise) of a Credit Warrant or Credit Warrants (represented by one or more relevant Warrant Certificates), and without the payment of the Exercise Price in cash, in exchange for the issuance of such number of shares of Common Stock equal to the product of (1) the number of shares of Common Stock for which such Credit Warrant would otherwise then be nominally exercised if payment of the Exercise Price as of the date of exercise were being made in cash and (2) the Cashless Exercise Ratio. An exercise of a Credit Warrant in accordance with clause (ii) of the immediately preceding sentence is herein called a "Cashless Exercise". All provisions of this Agreement shall be applicable with respect to an exercise of Warrant Certificates pursuant to a Cashless Exercise for less than the full number of Credit Warrants represented thereby. Subject to Section 3.2, the rights represented by the Credit Warrants shall be exercisable at the election of the Holder thereof either in full at any time or from time to time in part and in the event that a Warrant Certificate is surrendered for exercise in respect of less than all the Warrant Shares purchasable on such exercise at any time prior to the Expiration Date a new Warrant Certificate exercisable for the remaining Warrant Shares will be issued. The Company shall execute and deliver to the Holder the required new Warrant Certificate. 9 11 SECTION 3.5 Issuance of Warrant Shares. Subject to Section 2.6, upon the surrender of Warrant Certificates and payment of the per share Exercise Price, as set forth in Section 3.4, the Company shall issue (and, if applicable, cause any transfer agent for the Common Stock (the "Transfer Agent") to countersign) and deliver to or upon the written order of the Holder and in such name or names as the Holder may designate, a certificate or certificates for the number of full Warrant Shares so purchased upon the exercise of such Credit Warrants or other securities or property to which it is entitled, registered or otherwise to the Person or Persons entitled to receive the same, together with cash as provided in Section 3.6 in respect of any fractional Warrant Shares otherwise issuable upon such exercise. Such certificate or certificates shall be deemed to have been issued and any Person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares as of the date of the surrender of such Warrant Certificates and payment of the per share Exercise Price as set forth in Section 3.4. SECTION 3.6 Fractional Warrant Shares. The Company shall not be required to issue fractional Warrant Shares on the exercise of Credit Warrants. If more than one Credit Warrant shall be exercised in full at the same time by the same Holder, the number of full Warrant Shares which shall be issuable upon such exercise shall be computed on the basis of the aggregate number of Warrant Shares purchasable pursuant thereto. If any fraction of a Warrant Share would, except for the provisions of this Section 3.6, be issuable on the exercise of any Credit Warrant (or specified portion thereof), the Company shall pay an amount in cash equal to the Current Market Value for one Warrant Share on the Business Day immediately preceding the date the Credit Warrant is exercised, multiplied by such fraction, computed to the nearest whole cent. SECTION 3.7 Reservation of Warrant Shares. The Company shall at all times keep reserved out of its authorized shares of Common Stock a number of shares of Common Stock sufficient to provide for the exercise of all outstanding Credit Warrants. Any registrar for the Common Stock shall at all times until the Expiration Date, or the time at which all Credit Warrants have been exercised or cancelled, reserve such number of authorized shares as shall be required for such purpose. The Company will keep a copy of this Agreement on file with any Transfer Agent. All Warrant Shares which may be issued upon exercise of Credit Warrants shall, upon issue, be fully paid, nonassessable, free of preemptive rights and free from all taxes, liens, charges and security interests with respect to the issue thereof. The Company will supply any Transfer Agent with duly executed stock certificates for such purpose and will itself provide or otherwise make available any cash which may be payable as provided in Section 3.6. The Company will furnish to any Transfer Agent a copy of all notices of adjustments and certificates related thereto transmitted to each Holder. SECTION 3.8 Compliance with Law. If any shares of Common Stock required to be reserved for purposes of exercise of Credit Warrants require, under any other Federal or state law or applicable governing rule or regulation of any national securities exchange, registration with or approval of any Governmental 10 12 Authority, or listing on any such national securities exchange before such shares may be issued upon exercise, the Company will cause such shares to be duly registered or approved by such Governmental Authority or listed on the relevant national securities exchange; provided that the Company shall not have any obligation to register the Warrant Shares under the Securities Act except pursuant to the Amended and Restated Registration Rights Agreement. SECTION 3.9 Registration Rights. Each Holder of the Credit Warrants and the Warrant Shares shall be entitled to the registration rights in respect of the Warrant Shares set forth in the Amended and Restated Registration Rights Agreement. ARTICLE 4. Antidilution Provisions SECTION 4.1 Changes in Common Stock. In the event that at any time or from time to time after the date hereof the Company shall (a) pay a dividend or make a distribution on its Common Stock in shares of its Common Stock or other shares of capital stock, (b) subdivide its outstanding shares of Common Stock into a larger number of shares of Common Stock, (c) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (d) increase or decrease the number of shares of Common Stock outstanding by reclassification of its Common Stock, then the number of shares of Common Stock purchasable upon exercise of each Credit Warrant immediately after the happening of such event shall be adjusted so that, after giving affect to such adjustment, the Holder of each Credit Warrant shall be entitled to receive the number of shares of Common Stock upon exercise that such holder would have owned or have been entitled to receive had such Credit Warrants been exercised immediately prior to the happening of the events described above (or, in the case of a dividend or distribution of Common Stock, immediately prior to the record date therefor). An adjustment made pursuant to this Section 4.1 shall become effective immediately after the effective date, retroactive to the record date therefor in the case of a dividend or distribution in shares of Common Stock, and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. SECTION 4.2 Cash Dividends and Other Distributions. In the event that at any time or from time to time after the date hereof the Company shall distribute to holders of Common Stock (a) any dividend or other distribution of cash, evidences of its indebtedness, shares of its capital stock or any other properties or securities or (b) any options, warrants or other rights to subscribe for or purchase any of the foregoing (other than, in each case set forth in (a) and (b), (i) any dividend or distribution described in Section 4.1 or (ii) any rights, options, warrants or securities described in Section 4.3) then the number of shares of Common Stock thereafter purchasable upon the exercise of each Credit Warrant shall be increased to a number 11 13 determined by multiplying the number of shares of Common Stock purchasable upon the exercise of such Credit Warrant immediately prior to the record date for any such dividend or distribution by a fraction, the numerator of which shall be the Current Market Value per share of Common Stock on the record date for such distribution, and the denominator of which shall be such Current Market Value per share of Common Stock less the sum of (x) any cash distributed per share of Common Stock and (y) the fair value (the "Fair Value") (as determined in good faith by the Board, whose determination shall be evidenced by a Board resolution delivered to each Holder) of the portion, if any, of the distribution applicable to one share of Common Stock consisting of evidences of indebtedness, shares of stock, securities, other property, warrants, options or subscription of purchase rights (notwithstanding the foregoing, if the Fair Value per share of Common Stock in the above formula equals or exceeds the Current Market Value per share of Common Stock in the above formula, then the Current Market Value per share of Common Stock shall be equal to the Fair Value per share of the Common Stock on the record date as determined in good faith by the Board and described in a Board resolution delivered to each Holder). Such adjustments shall be made whenever any distribution is made and shall become effective as of the date of distribution, retroactive to the record date for any such distribution; provided, however, that the Company is not required to make an adjustment pursuant to this Section 4.2 if at the time of such distribution the Company makes the same distribution to Holders of Credit Warrants as it makes to holders of Common Stock pro rata based on the number of shares of Common Stock for which such Credit Warrants are exercisable (whether or not currently exercisable). SECTION 4.3 Rights Issue. In the event that at any time or from time to time after the date hereof the Company shall issue, sell, distribute or otherwise grant any rights to subscribe for or to purchase, or any options or warrants for the purchase of, or any securities convertible or exchangeable into, Common Stock, entitling such holders to subscribe for or purchase shares of Common Stock or stock or securities convertible into Common Stock, whether or not immediately exercisable, convertible or exchangeable, as the case may be, and the price per share of Common Stock issuable upon exercise, conversion or exchange thereof is lower at the record date for such issuance than the then Current Market Value per share of Common Stock, then the number of shares of Common Stock thereafter purchasable upon the exercise of each Credit Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock purchasable upon the exercise of such Credit Warrant immediately prior to the date of issuance of such rights, options, warrants or securities by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, options, warrants or securities plus the number of additional shares of Common Stock offered for subscription or purchase or into or for which such securities are convertible or exchangeable, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such rights, options, warrants or securities plus the total number of shares of Common Stock which could be purchased at the Current Market Value with the aggregate consideration received through issuance of such rights, warrants, options, or convertible securities. Such adjustment shall be made whenever such rights, options or warrants are issued and shall become effective 12 14 retroactively immediately after the record date for the determination of stockholders entitled to receive such rights, options, warrants or securities. Notwithstanding any other provision of this Section 4.3, the number of shares of Common Stock purchasable upon exercise of any Credit Warrant shall not be adjusted pursuant to this Section 4.3 in connection with the issuance or grant of Common Stock upon the exercise of rights or options to the Company's employees under bona fide employee benefit plans adopted prior to the date of this Agreement by the Board and approved by the holders of Common Stock when required by law, if the number of shares of Common Stock underlying such rights and options do not exceed 5% of the Common Stock outstanding on the date of this Agreement. If the Company at any time shall issue two or more securities as a unit and one or more of such securities shall be rights, options or warrants for or securities convertible or exchangeable into, Common Stock subject to this Section 4.3, the consideration allocated to each such security shall be determined in good faith by the Board. SECTION 4.4 Issuance of Additional Shares of Common Stock. In the event that at any time or from time to time after the date hereof the Company shall issue or sell any additional shares of Common Stock for consideration in an amount per additional share of Common Stock less than the Current Market Value, then the number of shares of Common Stock thereafter purchasable upon the exercise of each Credit Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock purchasable upon the exercise of each Credit Warrant immediately prior to such issue or sale by a fraction the numerator of which shall be the number of shares of Common Stock outstanding immediately after such issue or sale, and the denominator of which shall be the sum of (i) the number of shares of Common Stock outstanding immediately prior to such issue or sale, and (ii) the number of shares of Common Stock which could be purchased at the Current Market Value with the aggregate consideration received from the issuance or sale of the additional shares of Common Stock. For the purposes of this Section 4.4, the date as of which the Current Market Value per share of Common Stock shall be computed shall be the earlier of (x) the date on which the Company shall enter into a firm contract for the issuance of such additional shares of Common Stock or (y) the date of actual issuance of such additional shares of Common Stock. Notwithstanding any other provision of this Section 4.4, the number of shares of Common Stock purchasable upon exercise of any Credit Warrant shall not be adjusted pursuant to this Section 4.4 as a result of the issuance or sale of Common Stock in connection with: (a) a bona fide firm commitment underwritten public offering of Common Stock of the Company, (b) a transaction to which Section 4.1, 4.2 or 4.3 is applicable, (c) the exercise of the Credit Warrants, the exercise of any other warrants issued by the Company prior to the date of this Agreement or the exercise of any warrants issued in connection with the Shareholder Subordinated Debt (as defined in the Credit Agreement), (d) a private placement of Common Stock of the Company sold for a cash purchase price not more than 10% below the Current Market Value of the Common Stock so sold in such private placement and (e) the exercise of rights or options issued to the Company's employees under bona fide employee benefit plans adopted by the Board and approved by the 13 15 holders of Common Stock when required by law, if such Common Stock would otherwise be covered by this Section 4.4. SECTION 4.5 Combination; Liquidation. (a) Except as provided in Section 4.5(b), in the event of any Combination, each Holder shall have the right to receive upon exercise of its Credit Warrants such number of shares of capital stock or other securities or property which such Holder would have been entitled to receive upon or as a result of such Combination had such Credit Warrants been exercised immediately prior to such event. (b) In the event of (i) a Combination where consideration to holders of Common Stock in exchange for their shares is payable solely in cash, or (ii) the dissolution, liquidation or winding-up of the Company, then each Holder of the Credit Warrants will be entitled to receive distributions on an equal basis with the holders of Common Stock or other securities issuable upon exercise of its Credit Warrants, as if such Credit Warrants had been exercised immediately prior to such event, less the Exercise Price. In case of any Combination described in this Section 4.5(b), the surviving or acquiring Person and, in the event of any dissolution, liquidation or winding-up of the Company, the Company, shall make payment to each Holder by delivering a check in such amount as is appropriate (or, in the case of consideration other than cash, such other consideration as is appropriate) to such Person or Persons as it may be directed in writing by such Holder surrendering such Credit Warrants. SECTION 4.6 Tender Offers: Exchange Offers. In the event that the Company or any subsidiary of the Company shall purchase shares of Common Stock pursuant to a tender offer or an exchange offer for a price per share of Common Stock that is greater than the then Current Market Value per share of Common Stock in effect at the end of the trading day immediately following the day on which such tender offer or exchange offer expires, then the number of shares of Common Stock thereafter purchasable upon the exercise of each Credit Warrant shall be increased to a number determined by multiplying the number of shares of Common Stock purchasable upon the exercise of such Credit Warrant immediately prior to such purchase by a fraction the numerator of which shall be the sum of (x) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of all shares of Common Stock validly tendered or exchanged and not withdrawn as of the expiration time of such tender offer or exchange offer (the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less the Purchased Shares) at the expiration time of such offer or exchange offer and the first reported sales price of the Common Stock on the trading day immediately following the day on which such tender offer or exchange offer expires and the denominator of which shall be the number of shares of Common Stock outstanding (including any Purchased Shares) at the expiration time of such tender offer or exchange offer multiplied by the first reported sales price of the Common Stock on the trading day immediately following the day on which such tender offer or exchange offer expires, such increase to become effective immediately prior to the opening of business on the day immediately following the day on which such tender offer or exchange offer expires. 14 16 SECTION 4.7 Other Events. If any event occurs as to which the foregoing provisions of this Article 4 are not strictly applicable or, if strictly applicable, would not, in the good faith judgment of the Board, fairly and adequately protect the purchase rights of the Credit Warrants in accordance with the essential intent and principles of such provisions, then such Board shall make such adjustments in the application of such provisions, in accordance with such essential intent and principles, as shall be reasonably necessary, in the good faith opinion of such Board, to protect such purchase rights as aforesaid, but in no event shall any such adjustment have the effect of decreasing the number of shares of Common Stock subject to purchase upon exercise of this Credit Warrant. SECTION 4.8 Current Market Value. For the purpose of any computation of Current Market Value under this Article 4 and Section 3.6, the "Current Market Value" per share of Common Stock at any date shall be (a) for purposes of Section 3.6, the closing price on the Business Day immediately prior to the date of the exercise of the applicable Credit Warrant pursuant to Article 3 and (b) in all other cases, the average of the daily closing prices for the 20 consecutive trading days ending on the last full trading day on the exchange or market specified in the second succeeding sentence prior to such date. The closing price for any day shall be the last reported sale price regular way or, in case no such reported sale takes place on such day, the average of the closing bid and asked prices regular way for such day, in each case (1) on the principal national securities exchange on which the shares of Common Stock are listed or to which such shares are admitted to trading or (2) if the Common Stock is not listed or admitted to trading on a national securities exchange, in the over-the-counter market as reported by the Nasdaq National Market or any comparable system or (3) if the Common Stock is not listed on the Nasdaq National Market or a comparable system, as furnished by two members of the NASD selected from time to time in good faith by the Board for that purpose. In the absence of all of the foregoing, or if for any other reason the Current Market Value per share cannot be determined pursuant to the foregoing provisions of this Section 4.8, the Current Market Value per share shall be the (x) the fair market value thereof determined in good faith in the most recently completed arm's-length transaction between the Company and a person other than an Affiliate of the Company and the closing of which occurs on such date or shall have occurred within the three months preceding such date or (y) if no transaction shall have occurred on such date or within such three-month period, the fair market value thereof as determined by an investment bank of nationally recognized standing selected by the Company and acceptable to the Required Holders. The Company shall pay the fees and expenses of any investment bank involved in the determination of Current Market Value. SECTION 4.9 Superseding Adjustment. Upon the expiration of any rights, options, warrants or conversion or exchange privileges which resulted in the adjustments pursuant to this Article 4, if any thereof shall not have been exercised, the number of Warrant Shares purchasable upon the exercise of each Credit Warrant shall be readjusted as if (a) the only shares of Common Stock issuable upon exercise of such rights, options, warrants, conversion or exchange privileges were the shares of Common Stock, if any, actually issued upon the exercise of such rights, 15 17 options, warrants or conversion or exchange privileges and (b) shares of Common Stock actually issued, if any, were issuable for the consideration actually received by the Company upon such exercise plus the aggregate consideration, if any, actually received by the Company for the issuance, sale or grant of all such rights, options, warrants or conversion or exchange privileges whether or not exercised; provided, however, that no such readjustment shall (except by reason of an intervening adjustment under Section 4.1) have the effect of decreasing the number of Warrant Shares purchasable upon the exercise of each Credit Warrant by an amount in excess of the amount of the adjustment initially made in respect of the issuance, sale or grant of such rights, options, warrants or conversion or exchange privileges. SECTION 4.10 Minimum Adjustment. The adjustments required by the preceding Sections of this Article 4 shall be made whenever and as often as any specified event requiring an adjustment shall occur, except that no adjustment of the number of shares of Common Stock purchasable upon exercise of Credit Warrants that would otherwise be required shall be made (except in the case of a subdivision or combination of shares of Common Stock, as provided for in Section 4.1) unless and until such adjustment either by itself or with other adjustments not previously made increases or decreases by at least 1% the number of shares of Common Stock purchasable upon exercise of Credit Warrants immediately prior to the making of such adjustment. Any adjustment representing a change of less than such minimum amount shall be carried forward and made as soon as such adjustment, together with other adjustments required by this Article 4 and not previously made, would result in a minimum adjustment. For the purpose of any adjustment, any specified event shall be deemed to have occurred at the close of business on the date of its occurrence. In computing adjustments under this Article 4, fractional interests in Common Stock shall be taken into account to the nearest one-hundredth of a share. SECTION 4.11 Notice of Adjustment. Whenever the number of shares of Common Stock and other property, if any, purchasable upon exercise of Credit Warrants is adjusted, as herein provided, the Company shall deliver to each Holder a certificate of a firm of independent accountants (who may be the regular accountants employed by the Company) setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated (including a description of the basis on which the Board determined the fair market value of any evidences of indebtedness, other securities or property or warrants or other subscription or purchase rights), and specifying the number of shares of Common Stock purchasable upon exercise of Credit Warrants after giving effect to such adjustment. SECTION 4.12 Notice of Certain Transactions. In the event that the Company shall propose (a) to pay any dividend payable in securities of any class to the holders of its Common Stock or to make any other distribution to the holders of its Common Stock, (b) to offer the holders of its Common Stock rights to subscribe for or to purchase any securities convertible into shares of Common Stock or shares of Common Stock or shares of stock of any class or any other securities, rights or options, (c) to effect any reclassification of its Common Stock, capital reorganization 16 18 or Combination or (d) to effect the voluntary or involuntary dissolution, liquidation or winding-up of the Company, or in the event of a tender offer or exchange offer described in Section 4.6, the Company shall within five Business Days send to each Holder a notice, which shall specify the record date for the purposes of such dividend, distribution or rights, or the date such issuance or event is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall briefly indicate the effect of such action on the Common Stock and on the number and kind of any other shares of stock and on other property, if any, and the number of shares of Common Stock and other property, if any, purchasable upon exercise of each Credit Warrant after giving effect to any adjustment which will be required as a result of such action. Such notice shall be given by the Company as promptly as possible and, in the case of any action covered by clause (a) or (b) above, at least ten days prior to the record date for determining holders of the Common Stock for purposes of such action and, in the case of any other such action, at least 15 Business Days prior to the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock, whichever shall be the earlier. SECTION 4.13 Adjustment to Warrant Certificate. The form of Warrant Certificate need not be changed because of any adjustment made pursuant to this Article 4, and Warrant Certificates issued after such adjustment may state the same number of shares of Common Stock as are stated in any Warrant Certificates issued prior to the adjustment. The Company, however, may at any time in its sole discretion make any change in the form of Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect the substance of the Warrant Certificate, and any Warrant Certificate thereafter issued, whether in exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the form as so changed. ARTICLE 5. Miscellaneous SECTION 5.1 Representations and Warranties. The Company hereby represents and warrants to each Holder that (a) the Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, (b) the Company has the corporate power and authority to execute and deliver this Warrant Agreement and the Warrant Certificates, to issue Credit Warrants and Warrant Shares and to perform its obligations under this Warrant Agreement and the Warrant Certificates, (c) the execution, delivery and performance by the Company of this Warrant Agreement and the Warrant Certificates, the issuance of the Credit Warrants and the issuance of the Warrant Shares upon exercise of the Credit Warrants have been duly authorized by all necessary corporate action and do not and will not violate, or result in a breach of, or constitute a default under, or require any consent under, or result in the creation of any lien upon the Company's assets pursuant to, any law, rule, regulation or contractual obligation binding upon the Company, (d) this 17 19 Warrant Agreement has been duly executed and delivered by the Company and constitutes a legal, valid, binding and enforceable obligation of the Company, (e) when the Credit Warrants and Warrant Certificates have been issued by the Company as contemplated hereby, such Credit Warrants and Warrant Certificates will constitute legal, valid, binding and enforceable obligations of the Company and (f) the Warrant Shares, when issued by the Company upon exercise of the related Credit Warrants in accordance with the terms hereof, will be duly authorized, validly issued, fully paid and nonassessable shares of the Common Stock of the Company with no personal liability attaching to the ownership thereof. SECTION 5.2 Reports; Rule 144A. (a) The Company shall provide the Holder with such financial statements and reports as are distributed to holders of Common Stock generally. (b) The Company hereby agrees to make available upon request, for so long as any Credit Warrants or Warrant Shares remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to any Holder or beneficial owner of Credit Warrants or Warrant Shares in connection with any sale thereof and any prospective purchaser thereof from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales pursuant to Rule 144A. SECTION 5.3 Persons Benefitting. Nothing in this Agreement is intended or shall be construed to confer upon any Person other than the Company and any Holder any right, remedy or claim under or by reason of this agreement or any part hereof. SECTION 5 4 Rights of Holders. Except as otherwise specifically required herein, holders of unexercised Credit Warrants are not entitled (a) to receive dividends or other distributions, (b) to receive notice of or vote at any meeting of the stockholders, (c) to consent to any action of the stockholders, (d) to receive notice of any other proceedings of the Company or (e) to exercise any other rights as stockholders of the Company. SECTION 5.5 Amendment. Any amendment or supplement to this Agreement (including any Exhibit hereto) shall require the written consent of the Holders of a majority of the outstanding Credit Warrants (the "Required Holders"). The consent of each Holder directly affected shall be required for any amendment pursuant to which the exercisability of any Credit Warrant would be delayed, the Exercise Price would be increased or the number of Warrant Shares purchasable upon exercise of Credit Warrants would be decreased (other than pursuant to adjustments provided herein). 18 20 SECTION 5.6 Notices. (a) All notices and communications hereunder shall be in writing. Any notice shall be effective if delivered by hand delivery or sent via telecopy, recognized overnight courier service or certified mail, return receipt requested, and shall be presumed to be received by a party hereto (i) on the date of delivery if delivered by hand or sent by telecopy, (ii) on the next Business Day if sent by recognized overnight courier service and (iii) on the third Business Day following the date sent by certified mail, return receipt requested. (b) Notices to any party shall be sent to it at the following addresses, or any other address as to which the Company or the Holder, as the case may be, are notified in writing. If to the Company: Infogrames, Inc. 417 Fifth Avenue, 8th Floor New York, New York 10016 Attention: Director of Legal Services Telephone No.: (212) 679-3424 Telecopy No.: (212) 726-6500 With a copy to: Chadbourne & Parke LLP 30 Rockefeller Plaza New York, New York 10112 Attention: Dennis J. Friedman, Esq. Telephone No.: (212) 408-5100 Telecopy No.: (212) 541-5369 If to any Holder: To the Address set forth in the Certificate Register
SECTION 5.7 GOVERNING LAW. THIS AGREEMENT AND THE WARRANT CERTIFICATES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE WARRANT CERTIFICATES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES REGARDING CONFLICTS OF LAW. SECTION 5.8 Successors. All agreements of the Company in this Agreement and the Warrant Certificates shall bind its successors. 19 21 SECTION 5.9 Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. SECTION 5.10 Headings. The headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof. SECTION 5.11 Severability. The provisions of this Agreement are severable, and if any clause or provision shall be held invalid, illegal or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect in that jurisdiction only such clause or provision, or part thereof, and shall not in any manner affect such clause or provision in any other jurisdiction or any other clause or provision of this Agreement in any jurisdiction. SECTION 5.12 Prior Agreements. This Agreement supercedes any and all agreements, whether oral or written, among the parties hereto related to the issuance by the Company to Infogrames or CUSH of warrants to acquire Common Stock in connection with the execution and performance of the Assignment and Acceptance. All such agreements are hereby terminated and shall be of no further force and effect. Any warrant certificates issued in connection with such prior agreement are hereby cancelled without further action on the part of Infogrames, CUSH or the Company. 20 22 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above. INFOGRAMES, INC. By: /s/ David J. Fremed -------------------- Name: David J. Fremed Title: CFO INFOGRAMES ENTERTAINMENT SA By: /s/ Bruno Bonnell ------------------ Name: Bruno Bonnell Title: CEO CALIFORNIA U.S. HOLDINGS, INC. By: /s/ Thomas Schmider ------------------- Name: Thomas Schmider Title: CFO 21 23 THE WARRANTS AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE OF THE WARRANTS (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, UNLESS PREVIOUSLY REGISTERED UNDER THE SECURITIES ACT, ONLY (A) TO THE COMPANY; (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE); (C) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A; (D) PURSUANT TO AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT; OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. Certificate for 225,000 Warrants WARRANTS TO PURCHASE COMMON STOCK OF INFOGRAMES, INC. (formerly GT Interactive Software Corp.) THIS CERTIFIES THAT CALIFORNIA U.S. HOLDINGS, INC., or its registered assigns, is the registered holder of the number of Warrants set forth above (the "Warrants"). Each Warrant entitles the holder thereof (the "Holder"), at its option and subject to the provisions contained herein and in the Warrant Agreement referred to below, to purchase from Infogrames, Inc. (formerly GT Interactive Software Corp.), a Delaware corporation (the "Company"), one share of common stock, $0.01 par value, of the Company (the "Common Stock") at the per share exercise price of $0.01 (the "Exercise Price"), or by Cashless Exercise referred to below. This Warrant Certificate shall terminate and become void as of the close of business on February 15, 2005 (the "Expiration Date") or upon the exercise hereof as to all the shares of Common Stock subject hereto. The number of shares purchasable upon exercise of the Warrants shall be subject to adjustment from time to time as set forth in the Warrant Agreement. 1 24 This Warrant Certificate is issued under and in accordance with a Warrant Agreement dated as of February 15, 2000 (as amended, restated, supplemented or otherwise modified from time to time, the "Warrant Agreement"), among the Company and the parties referred to therein, and is subject to the terms and provisions contained in the Warrant Agreement. The Warrant Agreement is hereby incorporated herein by reference and made a part hereof. Reference is hereby made to the Warrant Agreement for a full statement of the respective rights, limitations of rights, duties and obligations of the Company and the Holder of the Warrants. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Warrant Agreement. Subject to the terms of the Warrant Agreement, the Warrants may be exercised in whole or in part (i) by surrender of this Warrant Certificate with the form of election to purchase Warrant Shares attached hereto duly executed and with the simultaneous payment of the Exercise Price in cash (subject to adjustment) to the Company or (ii) by Cashless Exercise. Payment of the Exercise Price in cash shall be made in cash or by certified or official bank check payable to the order of the Company or by wire transfer of funds to an account designated by the Company for such purpose. Payment by Cashless Exercise shall be made by the surrender of a Warrant or Warrants represented by one or more Warrant Certificates and without payment of the Exercise Price in cash, in exchange for the issuance of such number of shares of Common Stock equal to the product of (1) the number of shares of Common Stock for which such Warrant would otherwise then be nominally exercised if payment of the Exercise Price were being made in cash and (2) the Cashless Exercise Ratio. The Warrants shall be exercisable from time to time in the discretion of the Holder on or after February 28, 2000, provided, that in no event shall the Warrants be exercisable after the Expiration Date. In the event the Company enters into a Combination, the Holder hereof shall exercise the Warrants evidenced by this Warrant Certificate and will be entitled to receive upon exercise of the Warrants the shares of capital stock or other securities or other property of such surviving entity as such Holder would have been entitled to receive upon or as the result of such Combination had the Holder exercised its Warrants immediately prior to such Combination; provided, that in the event that, in connection with such Combination, consideration to holders of Common Stock in exchange for their shares is payable solely in cash or in the event of the dissolution, liquidation or winding-up of the Company, the Holder hereof will be entitled to receive distributions on an equal basis with the holders of Common Stock or other securities issuable upon exercise of the Warrants, as if the Warrants had been exercised immediately prior to such events, less the Exercise Price. The Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges in connection with the transfer or exchange of the Warrant Certificates pursuant to Section 2.4 of the Warrant Agreement but not for any exchange or original issuance (not involving a transfer) with 2 25 respect to temporary Warrant Certificates, the exercise of the Warrants or the Warrant Shares. Upon any partial exercise of the Warrants, there shall be issued to the Holder hereof a new Warrant Certificate in respect of the shares of Common Stock as to which the Warrants shall not have been exercised. This Warrant Certificate may be exchanged by presenting this Warrant Certificate to the Company properly endorsed with a request to exchange this Warrant Certificate for other Warrant Certificates evidencing an equal number of Warrants. No fractional Warrant Shares will be issued upon the exercise of the Warrants, but the Company shall pay an amount in cash equal to the Current Market Value for one Warrant Share on the date the Warrant is exercised, multiplied by such fraction, computed to the nearest whole cent. The Warrants do not entitle any holder hereof to any of the rights of a stockholder of the Company. All shares of Common Stock issuable by the Company upon the exercise of the Warrants shall, upon such issuance, be duly and validly issued and fully paid and non-assessable. INFOGRAMES, INC. By: /s/ David F. Fremed -------------------- Name: David F. Fremed Title: CFO [SEAL] Attest: /s/ ------------ Secretary 3 26 FORM OF ELECTION TO PURCHASE WARRANT SHARES (to be executed only upon exercise of Warrants) The undersigned hereby irrevocably elects to exercise [ ] Warrants at an exercise price per Warrant (subject to adjustment) of $0.01 to acquire an equal number of shares of Common Stock of Infogrames, Inc. on the terms and conditions specified in the within Warrant Certificate and the Warrant Agreement therein referred to, surrenders this Warrant Certificate and all right, title and interest therein to Infogrames Inc. and directs that the shares of Common Stock deliverable upon the exercise of such Warrants be registered or placed in the name and at the address specified below and delivered thereto. Date: , 20 ------------ -- ---------------------------------- (Signature of Owner) ---------------------------------- (Street Address) ---------------------------------- (City) (State) (Zip Code) Securities and/or check to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: Any unexercised Warrants evidenced by the within Warrant Certificate to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: 27 CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF WARRANTS Re: Warrants to Purchase Common Stock (the "Warrants") of Infogrames, Inc. (the "Company") This Certificate relates to __________ Warrants held in definitive form by _______________ (the "Transferor"). The Transferor has requested the Company by written order to exchange or register the transfer of a Warrant or Warrants. In connection with such request and in respect of each such Warrant, the Transferor does hereby certify that the Transferor is familiar with the Warrant Agreement relating to the above captioned Warrants and that the transfer of this Warrant does not require registration under the Securities Act of 1933 (the "Securities Act"), because(1): - ----------------------------------- (1) Please check applicable box 28 [ ] Such Warrant is being acquired for the Transferor's own account without transfer. [ ] Such Warrant is being transferred to the Company. [ ] Such Warrant is being transferred in a transaction meeting the requirements of Rule 144 under the Securities Act. [ ] Such Warrant is being transferred to a qualified institutional buyer (as defined in Rule 144A under the Securities Act), in reliance on Rule 144A. [ ] Such Warrant is being transferred pursuant to an offshore transaction in accordance with Rule 904 under the Securities Act. [ ] Such Warrant is being transferred pursuant to another available exemption from the registration requirements under the Securities Act. The Company is entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. [INSERT NAME OF TRANSFEROR] By ----------------------- Title: Date EX-99.15 4 y41051ex99-15.txt SECOND AMENDED RESTATED REGISTRATION RIGHTS 1 EXHIBIT 15 SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into as of October 2, 2000, by and among INFOGRAMES, INC. (formerly GT Interactive Software Corp.), a Delaware corporation (the "Company"), and CALIFORNIA U.S. HOLDINGS, INC., a Delaware corporation (the "Securityholder"). WHEREAS, pursuant to the terms and conditions of a Securities Purchase Agreement, dated as of November 15, 1999 (the "Company Purchase Agreement"), by and among the Company, Infogrames Entertainment SA., a French societe anonyme ("Parent") and the Securityholder, the Company, among other things, issued to the Securityholder an aggregate of 5,714,286 shares of common stock of the Company, par value $0.01 per share ("Common Stock"), and a 5% Subordinated Convertible Note in the aggregate principal amount of approximately $60,600,000 (the "Note"), with a conversion price of $9.25 per share; WHEREAS, concurrent with the execution and delivery of the Company Purchase Agreement, the Company issued to the Securityholder warrants to purchase 10,000 shares of Common Stock, having an exercise price of $0.05 per share (the "Short-Term Note Warrants"); WHEREAS, concurrently therewith, the Securityholder acquired from certain principal stockholders of the Company an aggregate of 6,711,701 shares of Common Stock (the "Cayre Shares") and warrants to acquire an aggregate of 900,000 shares of Common Stock at an exercise price of $0.05 per share (the "GAP Warrants"); WHEREAS, concurrently therewith, the Company and the Securityholder entered into a Registration Right Agreement dated as of November 15, 1999 (the "Registration Right Agreement"), pursuant to which the Securityholder received certain registration rights in respect of the shares of Common Stock acquired by the Securityholder pursuant to the Company Purchase Agreement, the Cayre Shares, and any shares of Common Stock issuable upon conversion of the Original Note or upon exercise of the Short-Term Note Warrants and the GAP Warrants. WHEREAS, pursuant to the terms of the Master Assignment and Acceptance dated as of February 15, 2000 (the "Assignment and Acceptance"), by and among (i) the Company, as borrower, (ii) First Union National Bank, Bank of America, N.A., European American Bank, Fleet Bank, N.A., National Bank of Canada, The Bank of Nova Scotia (collectively the "Previous Lenders"), and (iii) Parent, as assignee, the Previous Lenders assigned to Parent all the rights and obligations of the Previous Lenders under the Credit Agreement dated as of September 11, 1998 (as amended, restated, supplemented or otherwise modified, the "Credit Agreement"), by and among the Company and the Previous Lenders; 2 WHEREAS, in connection with the Assignment and Acceptance, the Company entered into a warrant agreement dated as of February 15, 2000 with Parent and the Securityholder and issued to the Securityholder warrants to purchase 45,000 shares of Common Stock (the "Credit Warrants"); WHEREAS, in connection with the issuance of the Credit Warrants to the Securityholder, the Company and the Securityholder amended the Registration Right Agreement, as of Febuary 15, 2000 (the "Amended and Restated Registration Rights Agreement") to include the shares of Common Stock issuable upon exercise of the Credit Warrants; WHEREAS, in connection with the issuance of shares of Common Stock to the Securityholder pursuant to the Agreement and Plan of Merger, dated as of September 6, 2000, by and among the Company, INA Merger Sub, Inc., Parent, the Securityholder and Infogrames North America, Inc. (the "Merger Agreement"), the Company has agreed to further amend the Amended and Restated Registration Rights Agreement to include the shares of Common Stock issuable pursuant to the Merger Agreement and the transactions contemplated thereby; WHEREAS, the Company and the Securityholder deem it to be in their respective best interests to amend and restate in its entirety the Amended and Restated Registration Rights Agreement to set forth the rights of the Securityholder in connection with public offerings and sales of the Registrable Securities (as defined below). NOW, THEREFORE, in consideration of the premises and mutual covenants and obligations hereinafter set forth, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree to amend and restate in its entirety the Amended and Restated Registration Rights Agreement as set forth herein and to agree as follows: SECTION 1. DEFINITIONS. (a) As used in this Agreement, the following terms shall have the following meanings: "Business Day" shall mean any Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York City are authorized by law, regulation or executive order to close. "Common Stock" shall mean the common stock, par value $0.01 per share, of the Company. "Delay Notice" shall have the meaning set forth in Section 6(b) hereof. "Demand Participation Notice" shall have the meaning set forth in Section 3(a) hereof. "Demand Registration" shall have the meaning set forth in Section 3(a) hereof. 3 "Demand Registration Notice" shall have the meaning set forth in Section 3(a) hereof. "Holder" shall mean the Securityholder and any of its transferees that owns Registrable Securities. For purposes of this Agreement, the Company may deem the registered holder of a Registrable Security as the Holder thereof. "Material Development Condition" shall have the meaning set forth in Section 6(b) hereof. "Person" shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or other agency or political subdivision thereof. "Prospectus" shall mean the prospectus included in any Registration Statement, as amended or supplemented by a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all materials incorporated by reference in such prospectus. "Registrable Securities" shall mean (i) the shares of Common Stock acquired by the Securityholder pursuant to the Company Purchase Agreement and the Cayre Shares, (ii) any shares of Common Stock issuable upon conversion of the Note, (iii) any shares of Common Stock issuable upon exercise of the Short-Term Note Warrants and the GAP Warrants, (iv) any shares of Common Stock issuable upon exercise of the Credit Warrants, (v) any shares of Common Stock issuable pursuant to the Merger Agreement, including the 20,089,224 shares of Common Stock issued in connection with the conversion of the then outstanding debt under the Credit Agreement and certain intercompany payables, and (vi) any other securities issued or issuable as a result of or in connection with any stock dividend, stock split or reverse stock split, combination, recapitalization, reclassification, merger or consolidation, exchange or distribution in respect of such Common Stock. "Registration Expenses" shall have the definition set forth in Section 7 hereof. "Registration Period" shall have the definition set forth in Section 3(b) hereof. "Registration Statement" shall mean any registration statement which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included therein, all amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such registration statement. "Requesting Securityholder" shall have the meaning set forth in Section 4 hereof. "Restricted Securities" shall have the meaning set forth in Section 2 hereof. 4 "Rule 144" shall mean Rule 144 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the SEC. "Rule 415" shall mean Rule 415 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the SEC. "Rule 903" shall mean Rule 903 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the SEC. "Rule 904" shall mean Rule 904 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the SEC. "SEC" shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act. "Securities Act" shall mean the Securities Act of 1933, as amended (or any similar successor federal statute), and the rules and regulations thereunder, as the same are in effect from time to time. "Underwritten Offering" shall mean a registered offering in which securities of the Company are sold to an underwriter for reoffering to the public. (b) All references to the number of shares of Common Stock shall reflect the one-for-five reverse stock split of the issued and outstanding shares of Common Stock, effected by the Company as of the close of business on June 26, 2000. SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT. The securities entitled to the benefits of this Agreement are the Registrable Securities but, with respect to any particular Registrable Security, only so long as such security continues to be a Restricted Security. A Registrable Security that has ceased to be a Registrable Security cannot thereafter become a Registrable Security. As used herein, a "Restricted Security" is a Registrable Security which has not been effectively registered under the Securities Act and distributed in accordance with an effective Registration Statement and which has not been sold by a Holder pursuant to Rule 144 (except pursuant to a transfer to any affiliate of such Holder), Rule 903 or Rule 904, unless, in the case of a Registrable Security distributed pursuant to Rule 903 or 904, any applicable restricted period has not expired or the SEC or its staff has taken the position in a published release, ruling or no-action letter that securities distributed under Rule 903 or 904 are ineligible for resale in the United States under Section 4(1) of the Securities Act notwithstanding expiration of the applicable restricted period. 5 SECTION 3. DEMAND REGISTRATION. (a) Demand. At any time during the term of this Agreement, a Holder or Holders may request the Company, in writing (a "Demand Registration Notice"), to effect the registration of all or such portion of the Registrable Securities as such Holder or Holders shall specify; provided, that only one demand may be made pursuant to this Section 3(a) during any six month period; provided, further, that an aggregate of only three demands may be made pursuant to this Section 3(a), unless the Company is eligible to use Form S-3 (or any successor form) in which case the foregoing limitation shall not apply. Upon receipt of any such Demand Registration Notice, the Company shall promptly give written notice of such proposed registration to all other Holders. Such Holders shall have the right, by giving written notice (the "Demand Participation Notice") to the Company within fifteen (15) days after the Company provides its notice, to elect to have included in such registration such number of their Registrable Securities as such Holders may request in such Demand Participation Notice. A Holder or Holders may, at any time up to five (5) Business Days before the filing date of the applicable Registration Statement relating to the Demand Registration, request that his or its Registrable Securities not be included therein by providing a written notice to that effect to the Company. Upon receipt of a Demand Registration Notice, the Company shall use its commercially reasonable efforts to file, as expeditiously as possible, but in any event no later than forty-five (45) days after such Demand Registration Notice, a Registration Statement on Form S-3 (or any successor form), or any other form available to the Company under the Securities Act, covering all Registrable Securities which the Company has been so requested to register (the "Demand Registration"). (b) Effectiveness of Registration Statement. Subject to the provisions of Sections 6(b) and (c) hereof, the Company agrees to use its commercially reasonable efforts to (i) cause the Registration Statement(s) relating to the Demand Registration described in Section 3(a) to become effective as promptly as practicable (such date of effectiveness, the "Effective Time"), and (ii) thereafter keep each such Registration Statement effective continuously for the period (the "Registration Period") ending, subject to the second sentence of Section 5(b) hereof and clause (3) of the last sentence of Section 6(b) hereof, on the earlier of (A) one year following the Effective Time, and (B) the date on which all Registrable Securities covered by each such Registration Statement have been sold and the distribution contemplated thereby has been completed. (c) Inclusion of Other Securities. Any other holder of the Company's securities who has registration rights may include its securities in the Demand Registration effected pursuant to this Section 3. SECTION 4. PIGGYBACK REGISTRATION. If, during the term of this Agreement, the Company at any time proposes to file a registration statement with respect to any class of equity securities, whether (i) for its own account (other than in connection with the Registration Statement contemplated by Section 3 or a registration statement on Form S-4 or S-8 (or any successor or substantially similar form), and other than in connection with (A) an employee stock option, stock purchase or compensation 6 plan or of securities issued or issuable pursuant to any such plan, or (B) a dividend reinvestment plan) or (ii) for the account of a holder of securities of the Company pursuant to demand registration rights granted by the Company (a "Requesting Securityholder"), then the Company shall in each case give written notice of such proposed filing to all Holders of Registrable Securities at least fifteen (15) days before the anticipated filing date of any such registration statement by the Company, and such notice shall offer to all Holders the opportunity to have any or all of the Registrable Securities held by such Holders included in such registration statement. Each Holder of Registrable Securities desiring to have its Registrable Securities registered under this Section 4 shall so advise the Company in writing within ten (10) days after the date of receipt of such notice (which request shall set forth the amount of Registrable Securities for which registration is requested), and the Company shall use its commercially reasonable efforts to include in such registration statement all such Registrable Securities so requested to be included therein. Notwithstanding the foregoing, if the managing underwriter or underwriters of any such proposed public offering advises the Company that the total amount of securities which the Holders of Registrable Securities, the Company and any other Persons intended to be included in such proposed public offering is sufficiently large to adversely affect the success of such proposed public offering, then the amount of securities to be offered for the accounts of Holders of Registrable Securities shall be reduced pro rata, based upon the aggregate number of securities to be offered for the accounts of all of the Holders of Registrable Securities and all other holders (except the Company and the Requesting Securityholder) of securities intended to be included in such offering and the number of securities to be offered for the account of each such Holder, to the extent necessary to reduce the total amount of securities to be included in such proposed public offering to the amount recommended by such managing underwriter or underwriters before the securities offered by the Company or any Requesting Securityholder are so reduced. Anything to the contrary in this Agreement notwithstanding, the Company may withdraw or postpone a registration statement referred to in this Section 4 at any time before it becomes effective or withdraw, postpone or terminate the offering after it becomes effective without obligation to the Holder or Holders of the Registrable Securities; provided that the Company's obligations pursuant to Section 5(a)(ii), 7 and 8 shall remain effective. SECTION 5. REGISTRATION PROCEDURES. (a) General. In connection with the Company's registration obligations pursuant to Section 3 and, to the extent applicable, Section 4 hereof, the Company will: (i) prepare and file with the SEC a new Registration Statement or such amendments and post-effective amendments to an existing Registration Statement as may be necessary to keep such Registration Statement effective for the time periods set forth in Section 3(b), provided that no Registration Statement shall be required to remain in effect after all Registrable Securities covered by such Registration Statement have been sold and distributed as contemplated by such Registration Statement, and, provided, further, that as soon as practicable, but in no event later than five (5) Business Days before filing such Registration Statement, any related Prospectus or any amendment or supplement thereto, other than any amendment or supplement made solely as a result of incorporation by reference of documents filed with the SEC subsequent to the filing of such Registration Statement, the Company shall furnish to the Holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of 7 all such documents proposed to be filed, which documents shall be subject to the review of such Holders and underwriters; (ii) notify the selling Holders of Registrable Securities and the managing underwriters, if any, promptly (1) when a new Registration Statement, Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any new Registration Statement or post-effective amendment, when it has become effective, (2) of any request by the SEC for amendments or supplements to any Registration Statement or Prospectus or for additional information, (3) of the issuance by the SEC of any comments with respect to any filing, (4) of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, (5) of any suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) if there is a misstatement or omission of a material fact in any Registration Statement, Prospectus or any document incorporated therein by reference or if any event occurs which requires the making of any changes in any Registration Statement, Prospectus or any document incorporated therein by reference in order to make the statements therein (in the case of any Prospectus, in the light of the circumstances under which they were made) not misleading; (iii) if reasonably requested by the managing underwriter or underwriters or a Holder of Registrable Securities being sold in connection with an Underwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the Holders of a majority of the Registrable Securities being sold in such Underwritten Offering agree should be included therein relating to the sale of the Registrable Securities, including, without limitation, information with respect to the aggregate number of shares of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the Underwritten Offering of the Registrable Securities to be sold in such offering; and promptly make all required filings of such Prospectus supplement or post-effective amendment; (iv) furnish to each selling Holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as may reasonably be requested of the then effective Registration Statement and any post-effective amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference); (v) deliver to each selling Holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the then effective Prospectus (including each prospectus subject to completion) and any amendments or supplements thereto as such Persons may reasonably request; (vi) use commercially reasonable efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or "blue sky" laws of such jurisdictions as any 8 selling Holder of Registrable Securities or underwriter reasonably requests in writing; provided, however, that the Company will not be required to (1) qualify to do business in any jurisdiction where it would not otherwise be required to qualify, but for this paragraph (vi), (2) subject itself to general taxation in any such jurisdiction or (3) file a general consent to service of process in any such jurisdiction; (vii) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities to the underwriters; (viii) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange (or quotation system operated by a national securities association) on which identical securities issued by the Company are then listed if requested by the Holders of a majority of the Registrable Securities covered by such Registration Statement or the managing underwriters, if any, and enter into customary agreements including, if necessary, a listing application and indemnification agreement in customary form, and provide a transfer agent for such Registrable Securities no later than the effective date of such Registration Statement; (ix) otherwise use its commercially reasonable efforts to comply in all material respects with all applicable rules and regulations of the SEC relating to such registration and the distribution of the securities being offered and make generally available to its securities holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act; (x) cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc.; and (xi) subject to the proviso in paragraph (vi) above, cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities (other than as may be required by the governmental agencies or authorities of any foreign jurisdiction and other than as may be required by a law applicable to a selling Holder by reason of its own activities or business other than the sale of Registrable Securities). As a condition precedent to the participation in any registration hereunder, the Company may require each seller of Registrable Securities as to which any such registration is being effected to furnish to the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request to comply with the applicable provisions of the Securities Act. 9 (b) Each Holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(a)(ii)(4), (5) or (6) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to the then current Prospectus until (1) such Holder is advised in writing by the Company that a new Registration Statement covering the offer of Registrable Securities has become effective under the Securities Act or (2) such Holder receives copies of any required supplemented or amended Prospectus, or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed. If the Company shall have given any such notice during a period when a Demand Registration is in effect, the Company shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during which any such disposition of Registrable Securities is discontinued pursuant to this Section 5(b). If so directed by the Company, on the happening of such event, the Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. SECTION 6. HOLDBACK AGREEMENTS. (a) Hold-Back Election. In the case of the registration of any underwritten primary offering initiated by the Company (other than any registration by the Company on Form S-4 or Form S-8 (or any successor or substantially similar form), and other than in connection with (A) an employee stock option, stock purchase or compensation plan or of securities issued or issuable pursuant to any such plan, or (B) a dividend reinvestment plan) or any underwritten secondary offering initiated at the request of a holder of securities of the Company pursuant to registration rights granted by the Company, each Holder agrees that if he or it is (x) then a 5% or greater stockholder, a director or an officer of the Company and (y) reasonably requested to do so by the managing underwriter or the underwriters, then such Holder shall not effect any public sale or distribution of securities of the Company, except as part of such underwritten registration, during the period beginning twenty-five (25) days prior to the closing date of such underwritten offering and ending ninety (90) days after such closing date (or such longer period as may be reasonably requested by the managing underwriter or underwriters). (b) Material Development Condition. With respect to any Registration Statement filed or to be filed pursuant to Section 3, if the Company determines that, in its good faith judgment, (i) it would (because of the existence of, or in reasonable anticipation of, any acquisition or corporate reorganization or other transaction, financing activity, stock repurchase or other development involving the Company or any subsidiary, or the unavailability for reasons substantially beyond the Company's control of any required financial statements, or any other event or condition of similar significance to the Company or any subsidiary for purposes of disclosure to the stockholders or potential investors of the Company) be materially disadvantageous (a "Material Development Condition") to the Company or any subsidiary or its stockholders for such a Material Development Condition to be publicly disclosed, and (ii) the Company reasonably believes it would be required under the Securities Act to disclose such Material Development Condition in such Registration Statement, then the Company shall, notwithstanding any other provisions of this Agreement, be entitled, upon the giving of a written notice that a Material Development Condition has occurred (a "Delay Notice") from an officer of 10 the Company to any Holder of Registrable Securities included or to be included in such Registration Statement, (i) to cause sales of Registrable Securities by such Holder pursuant to such Registration Statement to cease, (ii) to cause such Registration Statement to be withdrawn and the effectiveness of such Registration Statement terminated, or (iii) in the event no such Registration Statement has yet been filed or declared effective, to delay filing or effectiveness of any such Registration Statement until, in the good faith judgment of the Company, such Material Development Condition shall be disclosed or no longer exists (notice of which the Company shall promptly deliver to any Holder of Registrable Securities with respect to which any such Registration Statement has been filed). Notwithstanding the foregoing provisions of this Section 6(b): (1) in no event may such cessation or delay (i) be, for each such Registration Statement, for a period of more than ninety (90) consecutive days from the giving of its Delay Notice to a Holder or Holders with respect to such Material Development Condition, as above provided, or (ii) for each such Registration Statement, exceed in the aggregate one hundred twenty (120) days in any consecutive three hundred sixty-five (365) day period; (2) in the event a Registration Statement is filed and subsequently withdrawn by reason of any existing or anticipated Material Development Condition as hereinbefore provided, the Company shall cause a new Registration Statement covering the Registrable Securities to be filed with the SEC as soon as practicable after such Material Development Condition expires or, if sooner, as soon as practicable after the expiration of the earlier of such ninety (90) day or one hundred twenty (120) day period, and the Registration Period for such new Registration Statement shall be the greater of thirty (30) days or the number of days that remained in such Registration Period with respect to the withdrawn Registration Statement at the time it was withdrawn; and (3) in the event the Company elects not to withdraw or terminate the effectiveness of any such Registration Statement but to cause a Holder or Holders to refrain from selling Registrable Securities for any period during the Registration Period, the Registration Period with respect to such Holders shall be extended by the number of days during the Registration Period that such Holders are required to refrain from selling Registrable Securities. (c) Limitation on Demand and Piggyback Registration Rights. Anything to the contrary contained in this Agreement notwithstanding, when (i) in the opinion of counsel for the Company (which counsel shall be experienced in securities law matters), registration of the Registrable Securities is not required by the Securities Act and other applicable securities laws in connection with a proposed sale of such Registrable Securities and (ii) the amount of Registrable Securities held by such Holders does not exceed five percent of the outstanding shares of Common Stock, on a fully diluted basis, the Holders shall have no rights pursuant to Sections 3 and 4 hereof to request a Demand Registration or a piggyback registration in connection with such proposed sale and the Company shall promptly provide to the transfer agent and the Holders' broker in connection with any sale transaction an opinion to the effect set forth above, reasonably sufficient in form and substance to permit the transfer agent to issue stock certificates for such Registrable Securities without any legend restricting transfer thereof. SECTION 7. REGISTRATION EXPENSES. All expenses incident to the Company's performance of or compliance with this Agreement, including without limitation all registration and filing fees (including, without limitation, any fees payable to the NASD or the relevant securities exchange if the Company's shares are listed on such exchange), fees and expenses of compliance with securities or "blue 11 sky" laws (including reasonable fees and disbursements of counsel in connection with "blue sky" qualifications or registrations (or the obtaining of exemptions therefrom) of the Registrable Securities), printing expenses (including expenses of printing Prospectuses), messenger and delivery expenses, internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), fees and disbursements of its counsel and its independent certified public accountants, securities acts liability insurance (if the Company elects to obtain such insurance), fees and expenses of any special experts retained by the Company in connection with any registration hereunder and fees and expenses of other Persons retained by the Company (all such expenses being referred to as "Registration Expenses"), shall be borne by the Company; provided, that Registration Expenses shall not include any fees and expenses of counsel for the Holders, out-of-pocket expenses incurred by the Holders and underwriting discounts, commissions or fees attributable to the sale of the Registrable Securities. SECTION 8. INDEMNIFICATION. (a) Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the full extent permitted by law, but without duplication, each Holder of Registrable Securities, and each Person who controls such Holder (within the meaning of the Securities Act), against all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and reasonable legal fees and expenses) resulting from any untrue statement of a material fact in, or any omission of a material fact required to be stated in, any Registration Statement or Prospectus or necessary to make the statements therein (in the case of a Prospectus in light of the circumstances under which they were made) not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by any Holder or any underwriters expressly for use therein. The Company will also indemnify underwriters participating in the distribution, their officers, directors, employees, partners and agents, and each Person who controls such underwriters (within the meaning of the Securities Act), to the same extent as provided above with respect to the indemnification of the Holders of Registrable Securities, if so requested. (b) Indemnification by Holders of Registrable Securities. In connection with any Registration Statement in which a Holder of Registrable Securities is participating, each such Holder will furnish to the Company in writing such information and affidavits relating to such Holder as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and agrees to indemnify and hold harmless, to the full extent permitted by law, but without duplication, the Company, its officers, directors, stockholders, employees, advisors and agents, and each Person who controls the Company (within the meaning of the Securities Act), against all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and reasonable legal fees and expenses) resulting from any untrue statement of material fact in, or any omission of a material fact required to be stated in, the Registration Statement or Prospectus or necessary to make the statements therein (in the case of a Prospectus in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in any information or affidavit relating to such Holder so furnished in writing by such Holder to the Company specifically for inclusion therein. The Company and the other Persons described above shall be entitled to receive indemnities from underwriters participating in the distribution, 12 to the same extent as provided above with respect to information so furnished in writing by such Persons specifically for inclusion in any Prospectus or Registration Statement. In no event shall any participating Holder have an obligation to indemnify any Person pursuant to this Section 8(b) for any amount in excess of the net proceeds received by such Holder from the Registrable Securities offered and sold by such Holder pursuant to such Registration Statement. (c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder will (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel of such indemnifying party's choice and reasonably satisfactory to the indemnified party; provided, however, that the failure to notify the indemnifying party shall not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder, except to the extent that the indemnifying party forfeits substantive rights or defenses by reason of such failure; provided, further, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in (but not control) the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such indemnified Person unless (A) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party in a timely manner or (B) in the reasonable judgment of any such Person, based upon a written opinion of its counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in either of which case, if the Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such Person). The indemnifying party will not be subject to any liability for any settlement made without its consent. No indemnified party will be required to consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. An indemnifying party who is not entitled to, or elects not to, assume the defense of the claim will not be obligated to pay the fees and expenses of more than one counsel (except one (1) local counsel if required in a specific instance) for all parties indemnified by such indemnifying party with respect to such claim. (d) Contribution. If for any reason the indemnification provided for in Section 8(a) or Section 8(b) is unavailable to an indemnified party or insufficient to hold it harmless as contemplated by Section 8(a) and Section 8(b), then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party and the indemnified party, but also the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement or the omission or alleged omission relates to information supplied by the indemnifying party or parties on the one hand, or the indemnified party or parties on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentations. In no event shall any 13 participating Holder be required to contribute any amount in excess of the net proceeds received by such Holder from the Registrable Securities offered and sold by such Holder pursuant to such Registration Statement. SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate in any Underwritten Offering hereunder unless such Person (i) agrees to sell such Person's Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. Nothing in this Section 9 shall be construed to create any additional rights regarding the registration of Registrable Securities in any Person otherwise than as set forth herein. SECTION 10. AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the provisions of this Section 10, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of Holders of a majority of the Registrable Securities then outstanding. Whenever the consent or approval of Holders of a specified number of Registrable Securities is required hereunder, Registrable Securities held by the Company or any of its controlled affiliates (other than Holders of Registrable Securities if such Holders are deemed to be affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required number. SECTION 11. TERM OF AGREEMENT. This Agreement may be terminated at any time by a written instrument signed by Holders of all of the Registrable Securities then outstanding. Unless sooner terminated in accordance with the preceding sentence, this Agreement shall terminate in its entirety on such date as there shall be no Registrable Securities outstanding; provided that any shares of Common Stock previously subject to this Agreement shall not be Registrable Securities following the sale of such shares in an offering registered pursuant to this Agreement. 14 SECTION 12. NOTICES. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telecopier, or air-courier guaranteeing overnight delivery: (a) If to a Holder of Registrable Securities, at the most current address given by such Holder to the Company, in accordance with the provisions of this Section 12, which address initially is, with respect to each Holder, listed on Schedule 1 attached hereto. (b) If to the Company, initially at 417 Fifth Avenue New York, New York 10016 Attention: Director of Legal Services Telecopier no. (212) 679-3424 Confirm no. (212) 726-6500 with a copy to Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 Attention: Dennis J. Friedman, Esq. Telecopier no. (212) 351-4035 Confirm no. (212) 351-4000 and thereafter at such other address as may be designated from time to time by notice given in accordance with the provisions of this Section 12. (c) All such notices and other communications shall be deemed to have been delivered and received (i) in the case of personal delivery, telecopier or telegram, on the date of such delivery, (ii) in the case of air courier, on the Business Day after the date when sent and (iii) in the case of mailing, on the third Business Day following such mailing. SECTION 13. COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. SECTION 14. HEADINGS. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 15 SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF THE CONFLICT OF LAWS THEREOF. SECTION 16. JURISDICTION; FORUM; SERVICE OF PROCESS. Any action or proceeding arising under or relating to this letter or any of the transactions contemplated hereby may only be brought in the United States District Court for the Southern District of New York or the courts of the State of New York located in the County of New York. Each party hereto submits to personal jurisdiction of each such court with respect to any action or proceeding arising under or relating to this Agreement or any of the transactions contemplated hereby and waives any objection to the laying of venue in such courts and any claim that any such action or proceeding has been brought in an inconvenient forum. To the extent permitted by law, any judgment in respect of a dispute arising under or relating to this Agreement may be enforced in any other jurisdiction within or outside the United States by suit on the judgment, a certified copy of such judgment being conclusive evidence of the fact and amount of such judgment. The Securityholder hereby irrevocably appoints the person listed on the signature page hereof as its agent for service of process in connection with any action or proceeding arising under or relating to this Agreement and any of the transactions contemplated hereby. Each party hereto agrees that personal service of process may be effected by any of the means specified in Section 12 hereof, addressed to such party. The foregoing shall not limit the rights of any party to serve process in any other manner permitted by law. SECTION 17. SEVERABILITY. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. SECTION 18. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto, including without limitation and without the need for an express assignment to, any subsequent Holder of the Registrable Securities. SECTION 19. ENTIRE AGREEMENT. This Agreement is intended by the parties as a final expression of their agreement and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 16 IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Registration Rights Agreement as of the date first written above. INFOGRAMES, INC. By: --------------------------------- Name: Title: CALIFORNIA U.S. HOLDINGS, INC. By: --------------------------------- Name: Title: 17 SCHEDULE 1 California U.S. Holdings, Inc. c/o Infogrames Entertainment S.A. 84, rue du 1er Mars 1943 Villeurbanne, 69100 France Attention: Thomas Schmider Telecopy: (011 33) 472 655116 Confirm: (011 33) 472 655000 and Attention: Frederic Monnereau Telecopy: (011 33) 472 655062 Confirm: (011 33) 472 655000 -----END PRIVACY-ENHANCED MESSAGE-----