EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement” ) is entered into between Tony
Bartel (“ Executive ”) and GameStop Corp. (the
“Company” ), collectively referred to as the
“Parties,” with an “Effective
Date” of October 24, 2008.
1.
Executive’s
Position/Duties .
During the term of this Agreement, Executive will be employed as
the Executive Vice President – Merchandising and Marketing of
the Company, and shall have all of the duties and responsibilities
of that position. Executive shall be considered a key employee of
the Company and shall be entitled to all the Company benefits
afforded to key employees. Executive agrees to dedicate all of his
working time (during normal working hours other than during excused
absences such as for illness or vacation), skill and attention to
the business of the Company, agrees to remain loyal to the Company,
and not to engage in any conduct that creates a conflict of
interest to, or damages the reputation of, the Company. Executive
shall abide by the Company’s Code of Ethics and Code of
Ethics for Senior Financial Officers.
2.
Term of Employment . The term of this Agreement shall
be for a period of three years. Executive’s employment under
this Agreement will commence on the Effective Date, and will
continue for a period of three years, unless terminated earlier in
accordance with the provisions of this Agreement. At the expiration
(but not earlier termination) of the term (including any renewal
term), the term of this Agreement shall automatically renew for an
additional period of one year, unless either party has given the
other party written notice of non-renewal at least six months prior
to such expiration.
a.
Base Salary . During the term of this Agreement, the
Company shall provide Executive with a base salary of no less than
four hundred thousand dollars ($400,000.00) per year, paid in
accordance with the Company’s normal payroll policies
(“ Base Salary ”).
b.
Bonuses/Distributions . Each year during the term of
this Agreement, the Company shall provide Executive with a bonus
based on the formula and targets established under and in
accordance with the Company’s Supplemental Compensation Plan.
Executive may receive additional bonuses at the discretion of the
Board of Directors of the Company (the “Board”
).
c.
Benefits . Executive shall be entitled to all
benefits, including, but not limited to, stock and stock option
benefits, insurance programs, pension plans, vacation, sick leave,
expense accounts, and retirement benefits, as afforded other
management personnel or as determined by the Board.
d.
Expenses . The Company shall reimburse Executive for
reasonable expenses incurred in the performance of his duties and
services hereunder and in furtherance of the business of the
Company, in accordance with the policies and procedures established
by the Company.
EXECUTIVE EMPLOYMENT
AGREEMENT -Page
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4.
Termination of Employment . Executive’s
employment with the Company may be terminated as
follows:
a.
Death . In the event of Executive’s death,
Executive’s employment will be terminated
immediately.
b.
Disability . In the event of Executive’s
Disability, as defined below, Executive’s employment will be
terminated immediately. “Disability” shall mean a
written determination by a physician mutually agreeable to the
Company and Executive (or, in the event of Executive’s total
physical or mental disability, Executive’s legal
representative) that Executive is physically or mentally unable to
perform his duties of Executive Vice President –
Merchandising and Marketing under this Agreement and that such
disability can reasonably be expected to continue for a period of
six consecutive months or for shorter periods aggregating 180 days
in any 12-month period.
c.
Termination by the Company for Cause . The Company
shall be entitled to terminate Executive’s employment at any
time if it has “Cause,” which shall mean any of
the following: (i) conviction of, or plea of nolo contendere
to, a felony or any crime involving fraud or dishonesty; (ii)
willful misconduct that results in a material and demonstrable
damage to the business or reputation of the Company; (iii) breach
by Executive of any of the covenants contained in Sections 7, 9(c),
9(d) or 9(e) below; or (iv) willful refusal by Executive to perform
his obligations under this Agreement or the lawful direction of the
Board that is not the result of Executive’s death,
Disability, physical incapacity or Executive’s termination of
the Agreement, and that is not corrected within thirty (30) days
following written notice thereof to Executive by the Company, such
notice to state with specificity the nature of the willful
refusal.
d.
Without Cause . Either the Company or Executive may
terminate Executive’s employment at any time without cause
upon written notice.
e.
Termination by Executive with Good Reason . Executive
shall be entitled to terminate his employment within 12 months
after any of the following events (each of which shall constitute
“Good Reason” ):
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(i)
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a “Change in Control” of
the Company, as defined below;
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(ii)
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a reduction in Executive’s
compensation or a material reduction in Executive’s
benefits;
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(iii)
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a material reduction in his
responsibilities for the Company; or
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(iv)
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the Company requires Executive to
move to another location of the Company or any affiliate of the
Company and the distance between Executive’s former residence
and new job site is at least 50 miles greater than the distance
between Executive’s former residence and former job
site.
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EXECUTIVE EMPLOYMENT
AGREEMENT -Page
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“Change in
Control” of the
Company shall be deemed to have occurred if:
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(i)
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any Person becomes the
“beneficial owner” (as defined in Rule 13d-3 or
otherwise under the Securities Exchange Act of 1934, as amended
(the “Act” )), directly or indirectly (including
as provided in Rule 13d-3(d)(1) of the Act), of greater than fifty
percent (50%) by vote of the voting stock of the Company following
any disposition, transaction, transfer or otherwise, including by
judgment or decree or otherwise, without the prior written consent
of Executive. “ Person ” means an individual, a
partnership, a corporation, an association, a limited liability
company, a joint stock company, a trust, a joint venture, an
unincorporated organization, a governmental entity (or any
department, agency, or political subdivision thereof) or any other
entity or any successor or assign to any of the foregoing, and in
the case of this clause (i), a “Person” shall not be
deemed to include a Person (i) a majority of whose board of
directors immediately following such disposition, transaction,
transfer or otherwise is comprised of individuals constituting the
Board immediately prior to such disposition, transaction, transfer
or otherwise or (ii) for which a majority of the outstanding shares
of such Person immediately following such disposition, transaction,
transfer or otherwise are held by the stockholders of the Company
immediately prior to such disposition, transaction, transfer or
otherwise;
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(ii)
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individuals who constitute the Board
on the date hereof (the “Incumbent Board ”)
cease for any reason to constitute at least a majority thereof. Any
Person becoming a member of the Board subsequent to such date whose
election, or nomination for election, is, at any time, approved by
a vote of at least a majority of the members comprising the
Incumbent Board shall be considered as though he were a member of
the Incumbent Board;
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(iii)
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the Company consummates a
transaction, whether through a merger, asset sale, reorganization
or otherwise, which results in (i) any Person, or Persons acting as
group for purposes of Section 13(d)(3) of the Act, holding at any
time after such combination, greater than fifty percent (50%) by
vote of the voting stock of the surviving entity, determined by
reference to the voting stock of the surviving entity, (ii) the
sale, lease or other transfer or disposition of all or
substantially all of the assets of the Company, in any such case,
where the buyer or surviving entity in such transaction is not
controlled by the Company, or (iii) the Board as of the date
immediately before such combination, constituting less than a
majority of the Board of Directors of the combined entity;
or
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(iv)
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the Incumbent Board determines that,
following the date of this Agreement, a Person who is neither a
stockholder of the Company nor a member of the Incumbent Board has
obtained the possession, directly or
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EXECUTIVE EMPLOYMENT
AGREEMENT -Page
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indirectly, of the power to direct
or cause the direction of the management and policies of the
Company, whether through the ownership of voting securities, by
contract or otherwise.
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5.
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Compensation and Benefits Upon
Termination .
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a. If
Executive’s employment is terminated by reason of death or
Disability, the Company shall pay Executive’s Base Salary, in
accordance with the payroll policies of the Company, through the
date of Executive’s death or Disability (in the event of
Executive’s death, the payments will be made to
Executive’s beneficiaries or legal
representatives).
b. If
Executive’s employment is terminated by Executive without
Good Reason or by the Company for Cause, the Company will pay to
Executive all Base Salary, at the rate then in effect, through the
date of Executive’s termination of active
employment.
c. If,
during the term of this Agreement, Executive terminates his
employment for Good Reason, or the Company terminates
Executive’s employment without Cause, the Company will pay to
Executive all compensation under this Agreement, at the rate then
in effect, through the date of Executive’s termination, and
the following paragraphs (i) through (vi) shall apply:
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(i)
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Base Salary and Payment
Schedule . The Company
shall pay Executive an amount equal to the greater of: (A)
Executive’s Base Salary otherwise payable through the term of
this Agreement; or (B) Executive’s Base Salary for one year.
Such payment shall be made to Executive in a lump sum within 30
days following the date of Executive’s termination of
employment.
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(ii)
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Bonus . The Company shall pay Executive an amount
equal to the average of the Executive’s last three (3) gross
annual bonuses multiplied by the greater of (A) one or (B) the
number of years (including any fraction thereof) otherwise
remaining through the term of this Agreement. Such payment shall be
made to Executive in a lump sum within 30 days following the date
of Executive’s termination of employment.
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(iii)
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Medical Benefits
. Upon Executive’s
termination, Executive will be eligible to elect individual and
dependent continuation group health and (if applicable) dental
coverage, as provided under Section 4980B(f) of the Internal
Revenue Code ( “COBRA” ), for the maximum COBRA
coverage period available, subject to all conditions and
limitations (including payment of premiums and cancellation of
coverage upon obtaining duplicate coverage or Medicare
entitlement). If Executive or one or more of Executive’s
covered dependents elects COBRA coverage, then the Company shall
pay the cost of the COBRA coverage for the eighteen (18) month
period following Executive’s termination date. Executive (or
dependents, as applicable) shall be responsible for paying the full
cost of the COBRA coverage (including the two percentage
administrative charge) after the earlier of (A) the expiration of
eighteen months following
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EXECUTIVE EMPLOYMENT
AGREEMENT -Page
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Executive’s termination date,
or (B) eligibility for coverage under another employer’s
medical plan.
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(iv)
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Vacation . Executive shall be entitled to a payment
attributable to Base Salary for unused vacation accrued. Such
payment shall be made to Executive in a lump sum within 30 days
following the date of Executive’s termination of
employment.
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(v)
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Section 280G
Limitation .
Notwithstanding anything to the contrary contained herein, the
maximum amount payable pursuant to this Section 5(c) shall be the
maxim
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