Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Infogrames, Inc. 75 480K
2: EX-3.1 Amended and Restated Certificate of Incorporation 6 29K
3: EX-4.1 Specimen Form of Stock Certificate 2 13K
4: EX-4.5 Amended & Restated Registration Rights Agreement 17 72K
5: EX-10.10A Agreement and Release - Harry M. Rubin 6 27K
6: EX-10.10B Letter Agreement 2 15K
7: EX-10.12A Agreement and Release - Jack J. Cayre 5 26K
8: EX-10.13A Separation Agreement - Thomas A. Heymann 20 84K
9: EX-10.14A Separation Agreement - John T. Baker Iv 19 80K
10: EX-10.15 Letter Agreement 2 12K
11: EX-10.25 Trademark Agreement 9 33K
12: EX-10.26G Master Assignment and Acceptance 7 27K
13: EX-10.26H Warrant Agreement 22 86K
14: EX-10.26I Warrant Certificate 5 22K
15: EX-10.26J Fourth Amendment 3 14K
16: EX-10.26K Reimbursement and Cash Collateral Agreement 17 56K
17: EX-10.26L Collateral Assignment Agreement 7 26K
18: EX-10.26M Fifth Amendment 8 28K
19: EX-10.26N Sixth Amendment 5 21K
20: EX-23.1 Consent of Arthur Andersen LLP 1 8K
21: EX-24.1 Power of Attorney 1 11K
22: EX-27.1 Financial Data Schedule 1 9K
EX-3.1 — Amended and Restated Certificate of Incorporation
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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INFOGRAMES,INC.
Pursuant to Section 245 of the
General Corporation Law
of the State of Delaware
Infogrames, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. That the name of the Corporation is Infogrames, Inc. and the
name under which the Corporation originally was incorporated is GT Interactive
Software Corp.
2. That the Certificate of Incorporation of the Corporation was
filed in the office of the Secretary of State of the State of Delaware on the
1st day of September, 1992 under the name of GT Software Corporation; that
Certificates of Amendment to the Certificate of Incorporation were filed in the
Office of the Secretary of State of the State of Delaware on the 1st day of
April, 1993, on the 29th day of November, 1993, on the 19th day of December,
1994, a restated certificate of incorporation was filed on the 22nd day of
February, 1995, and an amended and restated certificate of incorporation was
filed on the 31st day of July, 1995. Certificates of Amendment of the Amended
and Restated Certificate of Incorporation were filed on July 23, 1998, February
14, 2000, May 10, 2000, May 12, 2000 and June 2, 2000.
3. That this Amended and Restated Certificate of Incorporation
restates and amends the restated Certificate of Incorporation of this
Corporation.
4. That the text of the Certificate of Incorporation is hereby
restated and amended to read in its entirety as follows:
FIRST: The name of the Corporation is Infogrames, Inc.
SECOND: The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of
New Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation, is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware ("GCL").
FOURTH: The total number of shares of all classes of stock which
the Corporation shall have the authority to issue is 305,000,000 shares, of
which 300,000,000 shares, par value $0.01 per share, shall be designated Common
Stock, and 5,000,000 shares, par value $0.01 per share, shall be designated
Preferred Stock. Effective as of the close of business on June 26, 2000, each
share of Common Stock, par value $0.01 per share ("Old Common Stock"), issued
and outstanding at such time shall be and hereby is automatically reclassified
and changed into one-fifth of one share of Common Stock, par value $0.01 per
share, without any action by the holder thereof, provided that fractional shares
shall be rounded to the nearest whole share. Effective as of the close of
business on June 26, 2000, each certificate outstanding and previously
representing shares of Old Common Stock shall, until surrendered and exchanged,
be deemed, for all corporate purposes, to constitute and represent the number of
whole shares of Common Stock of the Corporation into which the outstanding
shares of Old Common Stock previously represented by such certificate were
converted by virtue of the reverse stock split.
FIFTH: The Board of Directors is expressly authorized to adopt,
amend or repeal the bylaws of the Corporation in the manner now or hereafter
prescribed by statute.
SIXTH: (a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors except as otherwise
provided herein or required by law.
(b) Election of Directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
(c) The number of Directors of the Corporation shall not be less
than four nor more than fifteen (plus such number of Directors, if any, who may
be elected by the holders of any series of preferred stock), and subject to such
limits shall be fixed by resolution duly adopted from time to time by the Board
of Directors. The Directors, other than those who may be elected by the holders
of any series of preferred stock, shall be classified, with respect to the term
for which they severally hold office, into three classes, as nearly equal in
number as possible. One class of Directors shall be initially elected for a term
expiring at the annual meeting of stockholders to be held in 1996, another class
shall be initially elected for a term expiring at the annual meeting of
stockholders to be
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held in 1997, and another class shall be initially elected for a term expiring
at the annual meeting of stockholders to be held in 1998. Members of each class
shall hold office until their successors are duly elected and qualified or until
their earlier resignation or removal. At each succeeding annual meeting of the
stockholders of the Corporation, the successors of the class of Directors whose
term expires at that meeting shall be elected by a plurality vote of all votes
cast at such meeting to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election. The
persons serving as Directors in classes whose terms expire in 1996, 1997 and
1998 shall be determined by resolution of the Board of Directors.
Notwithstanding the foregoing, whenever pursuant to the provisions
of Article Fourth of this Amended and Restated Certificate of Incorporation, the
holders of any one or more series of preferred stock shall have the right,
voting separately as a series or together with holders of other such series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Amended and Restated Certificate of
Incorporation and any certificate of designations applicable thereto, and such
directors so elected shall not be divided into classes pursuant to this Article
Sixth unless so provided by such terms.
During any period when the holders of any series of preferred
stock have the right to elect additional directors as provided for or fixed
pursuant to the provisions of Article Fourth hereof, then upon commencement and
for the duration of the period during which such right continues: (i) the then
otherwise total authorized number of Directors of the Corporation shall
automatically be increased by such specified number of Directors, and the
holders of such preferred stock shall be entitled to elect the additional
Directors so provided for or fixed pursuant to said provisions, and (ii) each
such additional Director shall serve until such Director's successor shall have
been duly elected and qualified, or until such Director's right to hold such
office terminates pursuant to said provisions, whichever occurs earlier, subject
to such Director's earlier death, disqualification, resignation or removal.
Except as otherwise provided by the Board in the resolution or resolutions
establishing such series, whenever the holders of any series of preferred stock
having such right to elect additional Directors are divested of such right
pursuant to the provisions of such stock, the terms of office of all such
additional Directors elected by the holders of such stock, or elected to fill
any vacancies resulting from the death, resignation, disqualification or removal
of such additional Directors, shall forthwith terminate and the total and
authorized number of Directors of the Corporation shall be reduced accordingly.
(d) Subject to the rights, if any, of the holders of any
series of preferred stock to elect Directors and to remove any Director whom
such holders have the
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right to elect, and notwithstanding the provisions of this Article Sixth
providing for the classification of the Board of Directors, any Director or the
entire Board of Directors (including persons elected by Directors to fill
vacancies in the Board of Directors) may be removed, with or without cause, by
the holders of a majority of the shares then entitled to vote at an election of
Directors.
SEVENTH: (a) The corporation shall to the fullest extent permitted
by Delaware law, as in effect from time to time (but, in the case of any
amendment of the GCL, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), indemnify each person who
is or was a director or officer of the Corporation or of any of its wholly-owned
subsidiaries who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, or was or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation or of any of its subsidiaries, or is or was at any time serving, at
the request of the Corporation, any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against all expense, liability and loss (including, but not limited to,
attorneys' fees, judgments, fines, excise taxes or penalties with respect to any
employee benefit plan or otherwise, and amounts paid or to be paid in
settlement) incurred or suffered by such director or officer in connection with
such proceeding; provided, however, that, except as provided in Paragraph (e) of
this Article Seventh, the Corporation shall not be obligated to indemnify any
person under this Article Seventh in connection with a proceeding (or part
thereof) if such proceeding (or part thereof) was not authorized by the Board of
Directors of the Corporation and was initiated by such person against (i) the
Corporation or any of its subsidiaries, (ii) any person who is or was a
director, officer, employee or agent of the Corporation or any of its
subsidiaries and/or (iii) any person or entity which is or was controlled,
controlled by, or under common control with the Corporation or has or had
business relations with the Corporation or any of its subsidiaries.
(b) The right to indemnification conferred in this Article
Seventh shall be a contract right, shall continue as to a person who has ceased
to be a director or officer of the Corporation or of any of its wholly-owned
subsidiaries and shall inure to the benefit of his or her heirs, executors and
administrators, and shall include the right to be paid by the Corporation the
expenses incurred in connection with the defense or investigation of any such
proceeding in advance of its final disposition; provided, however, that if and
to the extent that Delaware law so requires, the payment of such expense in
advance of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer
4
or former director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer or former director or
officer is not entitled to be indemnified by the Corporation.
(c) The Corporation's obligation to indemnify and to pay
expenses in advance of the final disposition of a proceeding under this Article
Seventh shall arise, and all rights and protections granted to directors and
officers under this Article Seventh shall vest, at the time of the occurrence of
the transaction or event to which any proceeding relates, or at the time that
the action or conduct to which any proceeding relates was first taken or engaged
in (or omitted to be taken or engaged in), regardless of when any proceeding is
first threatened, commenced or completed.
(d) Notwithstanding any other provision of this Amended and
Restated Certificate of Incorporation or the by-laws of the Corporation, no
action by the Corporation, either by amendment to or repeal of this Article
Seventh or the by-laws of the Corporation or otherwise shall diminish or
adversely affect any right or protection granted under this Article Seventh to
any director or officer or former director or officer of the Corporation or of
any of its wholly-owned subsidiaries which shall have become vested as aforesaid
prior to the date that any such amendment, repeal or other corporate action is
taken.
(e) If a claim for indemnification and/or for payment of
expenses in advance of the final disposition of a proceeding arising under this
Article Seventh is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim.
(f) The right to indemnification and the payment of expenses
incurred in connection with the defense or investigation of a proceeding in
advance of its final disposition conferred in this Article Seventh shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of this Amended and Restated Certificate of
Incorporation, by-laws of the Corporation, insurance policy, agreement, vote of
stockholders or disinterested directors or otherwise.
(g) In addition to the persons specified in subsection (a) of
this Article Seventh, the Corporation may also indemnify all other persons to
the fullest extent permitted by Delaware law.
EIGHTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a
5
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which
the director derived any improper personal benefit. If the GCL is amended after
the date hereof to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware GCL, as so amended. No amendment to or repeal of this Article
Eighth shall apply to or have any effect on the liability or alleged liability
of any Director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment.
5. This Amended and Restated Certificate of Incorporation was
declared advisable by the Board of Directors of the Corporation and was duly
adopted by the Board of Directors in accordance with the provisions of Section
245 of the GCL and it was duly adopted by a majority of the stockholders
entitled to vote thereon in accordance with the provisions of Section 228 of the
GCL and written notice was given to the stockholders in accordance with the
provisions of subsection (d) of such section of the GCL.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its President on this 19th
day of December, 1995.
GT INTERACTIVE SOFTWARE CORP.
By: /s/ Ronald Chaimowitz
-------------------------------
Name: Ronald Chaimowitz
Title: President and Chief Executive
Officer
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Dates Referenced Herein and Documents Incorporated by Reference
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