EXECUTIVE'S CONSULTING SERVICES HEREUNDER AND WITHOUT REGARD TO THE NUMBER OF
HOURS ACTUALLY DEVOTED BY EXECUTIVE TO SUCH CONSULTING SERVICES.
FURTHERMORE,
THE ABOVE PAYMENTS AND REIMBURSEMENTS SHALL CONTINUE TO BE MADE NOTWITHSTANDING
ANY CHARGE OR ALLEGATION THAT EXECUTIVE HAS NOT OR MAY NOT HAVE FULFILLED HIS
OBLIGATIONS UNDER THIS AGREEMENT UNTIL AND UNLESS THE ARBITRATOR UNDER SECTION 8
HEREOF SHALL HAVE DETERMINED THAT EXECUTIVE HAS GIVEN THE COMPANY "CAUSE" TO
TERMINATE EXECUTIVE'S CONSULTING SERVICES UNDER THIS AGREEMENT.
"CAUSE" SHALL
BE THE SAME AS DEFINED AS DEFINED IN SECTION 7.3 OF THE EMPLOYMENT AGREEMENT
(SUBSTITUTING REFERENCES TO THIS AGREEMENT FOR REFERENCES THEREIN TO THE
EMPLOYMENT AGREEMENT), AND NO "CAUSE" SHALL BE DETERMINED UNLESS AND UNTIL THE
COMPANY HAS FOLLOWED THE PROCEDURES SET FORTH IN THE SECOND PARAGRAPH OF SECTION
7.3 OF THE EMPLOYMENT AGREEMENT (AGAIN SUBSTITUTING REFERENCES TO THIS AGREEMENT
FOR REFERENCES THEREIN TO THE EMPLOYMENT AGREEMENT).
(F)
THE EXECUTIVE SHALL PERFORM THE
CONSULTING SERVICES DESCRIBED IN SECTION 5 HEREOF AS AN INDEPENDENT CONTRACTOR
WITHOUT THE POWER TO BIND OR REPRESENT THE COMPANY FOR ANY PURPOSE WHATSOEVER.
EXCEPT AS AND TO THE EXTENT OTHERWISE PROVIDED HEREIN, THE EXECUTIVE SHALL NOT,
BY VIRTUE OF BEING A CONSULTANT HEREUNDER, BE ELIGIBLE TO RECEIVE ANY EMPLOYEE
BENEFITS FOR WHICH OFFICERS OR OTHER EMPLOYEES OF THE COMPANY ARE ELIGIBLE AT
ANY TIME DURING THE CONSULTING TERM.
3
(G)
NOTWITHSTANDING THE ABOVE PROVISIONS OF THIS
SECTION 5, THE CONSULTING TERM SHALL BE TERMINATED EARLIER THAN DECEMBER 31,
2005 IN THE EVENT AND AT SUCH TIME AS EXECUTIVE AGREES TO COMMENCE EMPLOYMENT OR
ACT AS AN OFFICER, DIRECTOR, AGENT OF OR CONSULTANT FOR ANY PERSON, FIRM OR
CORPORATION (OR DIVISION OR OPERATING UNIT THEREOF) PRIMARILY IN THE BUSINESS OF
DEVELOPING AND PUBLISHING INTERACTIVE GAMES ("COMPETING BUSINESS").
IN THAT
EVENT, THE CONSULTING TERM SHALL TERMINATE AND ALL CONSULTING SERVICES WHICH
WOULD OTHERWISE BE REQUIRED OF EXECUTIVE AS WELL AS ALL PAYMENTS HEREUNDER THAT
WOULD OTHERWISE BE REQUIRED OF THE COMPANY, SHALL THEREAFTER CEASE.
6.
STANDSTILL, ETC.
(A)
EXECUTIVE AGREES THAT FOR A PERIOD OF 3
YEARS FOLLOWING THE EMPLOYMENT TERMINATION DATE (THE STANDSTILL "PERIOD"),
NEITHER EXECUTIVE NOR ANY PERSON OR ENTITY CONTROLLED BY EXECUTIVE SHALL
DIRECTLY OR INDIRECTLY, WITHOUT THE CONSENT OF THE COMPANY, (I) COMMENCE OR BE
INVOLVED WITH OTHERS WHO COMMENCE ANY TENDER OR EXCHANGE OFFER, PROXY CONTEST OR
SOLICITATION OR ANY SIMILAR TRANSACTION INVOLVING THE COMPANY, OR (II) PURCHASE
OR BE PART OF A GROUP WHICH PURCHASES ANY SHARES OF COMMON STOCK OF THE COMPANY
IN EXCESS OF 4.9% OF THE THEN OUTSTANDING COMMON STOCK OR ANY OTHER CLASS OF
SECURITIES OF THE COMPANY IN EXCESS OF 4.9% OF THE OUTSTANDING SECURITIES OF
SUCH CLASS.
(B)
NEITHER EXECUTIVE OR THE COMPANY OR ANY
CURRENT OR FUTURE EXECUTIVE OFFICERS OR DIRECTORS OF THE COMPANY (COLLECTIVELY,
THE "COMPANY PARTIES") SHALL MAKE ANY DISPARAGING COMMENTS OR REMARKS RESPECTING
THE OTHER PARTY.
FOR THIS PURPOSE, "DISPARAGING" SHALL BE LIMITED TO COMMENTS
OR REMARKS WHICH IMPUGN OR CAST DOUBT UPON PAST, PRESENT OR FUTURE EMPLOYMENT
PERFORMANCE OR BUSINESS ACCOMPLISHMENTS