Agreement and Release - GT Interactive Software Corp. and Harry M. Rubin
4/7/00
AGREEMENT AND RELEASE
This Agreement and Release is made and entered into this 7th day of
April, 2000, by and between Harry M. Rubin and GT Interactive Software Corp.
DEFINITIONS
As used throughout this Agreement and Release.
"Rubin" refers to Harry M. Rubin, his heirs, executors, administrators,
agents, successors, assigns, and dependents.
"Company" refers to GT Interactive Software Corp., together with its
past, present, and future parents, subsidiaries, and affiliates, and its
respective past, present, and future officers, directors, agents, employees,
successors, and assigns.
RECITALS
WHEREAS, Rubin had been employed by the Company pursuant to an Employment
Agreement dated as of April 28, 1998 (the "Employment Agreement"); and
WHEREAS, the Company and Rubin each desires to be released from certain
obligations under the Employment Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and intending to be and being legally bound hereby, the
parties agree as follows:
AGREEMENT
1. The Employment Agreement is terminated effective as of June 30, 2000
(the "Termination Date"), except as to Sections 4, 6, 7(a), 7(b), 8(d), 8(m) and
8(o) of the Employment Agreement which shall survive and be deemed to be
incorporated herein. Rubin represents that he does not have any claim, action,
or proceeding pending against the Company.
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2. Except as necessary to enforce the terms of this Agreement and
Release, and in exchange for and in consideration of the promises, covenants,
and agreements set forth herein, Rubin hereby releases the Company to the
maximum extent permitted by law from any and all manner of claims, demands,
causes of action, obligations, damages, or liabilities whatsoever of every kind
and nature, at law or in equity, known or unknown, and whether or not
discoverable, which he has or may have for any period prior to the date of the
execution of this Agreement and Release, including but not limited to all claims
arising out of or related to the termination of his employment with the Company
or any rights he may have under the Employment Agreement, all claims for
additional compensation or remuneration, all claims for reimbursement of
relocation or business expenses, and all claims to any stock or stock options
that might otherwise be available under the Employment Agreement, as well as any
claims of discrimination arising under any federal, state, or local law,
including but not limited to claims arising under the Age Discrimination in
Employment Act of 1967, Title VII of the Civil Rights Act of 1964, as amended,
the Americans with Disabilities Act, the Fair Labor Standards Act of 1938, as
amended, and the New York Human Rights Law, or any equivalent law, and any claim
for attorneys' fees or costs incurred in pursuing any legal claim against the
Company.
3. In full and complete consideration for Rubin's promises, covenants,
and agreements set forth herein, the Company will tender to Rubin, and Rubin
will accept, the following payments:
(a) Within thirty days of the Termination Date, the Company will tender
to Rubin the Base Salary (as such term is defined in Section 3(a) of the
Employment Agreement) and car allowance (as provided in Section 3(b)(ii) of the
Employment Agreement) due and payable to Rubin through such Termination Date;
(b) Severance pay equal to the Base Salary (including a 5% increase in
such Base Salary on each of January 1, 2001 and January 1, 2002) that Rubin
would have otherwise received if the terms of the Employment Agreement were in
effect for the period from and after the Termination Date and ending on June 30,
2002 (the "Severance Period"), commencing on the Termination Date and payable at
the times and in the amounts such Base Salary would have been so paid and
pro-rated as applicable through the last date of the Severance Period;
(c) The automobile allowance of $2,000 per calendar month, as set forth
in Section 3(b)(ii) of the Employment Agreement, that Rubin would have received
if the terms of the Employment Agreement were in effect during the Severance
Period, commencing on the Termination Date and payable at the times and in the
amounts such automobile allowance would have been so paid;
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(d) In lieu of bonus, with respect to the Company's fiscal year ending
(i) on June 30, 2000, $101,250 on each of July 1, 2000 and January 1, 2001, (ii)
on June 30, 2001, $107,625 on each of July 1, 2001 and January 1, 2002, and
(iii) on June 30, 2002, $113,006 on each of July 1, 2002 and January 1, 2003,
which payments are in the aggregate equal to the aggregate amount that would
have otherwise been paid to Rubin as a bonus (50% of Base Salary) during the
Severance Period had Rubin's employment not been terminated; and
(e) Reimbursement for all taxes payable by Rubin (net of any taxes
payable by him as a result of such reimbursement), if any and to the extent not
previously reimbursed by the Company, as a result of life insurance premium
payments made by the Company, pursuant to Section 3(d) of the Employment
Agreement, prior to the Termination Date. The Company shall pay such
reimbursement as promptly as reasonably practicable following its receipt from
Rubin of documentation reasonably satisfactory to the Company to support such
reimbursement of taxes.
4. Rubin shall also continue, during the Severance Period, to participate
in the Company's medical plans, to the same extent as if Rubin's employment had
not been terminated, on the same basis and at the same cost to Executive as was
in effect as of December 31, 1997 in accordance with Section 3(b)(iii) of the
Employment Agreement.
5. The Company hereby acknowledges and agrees that all options previously
granted by the Company to Rubin to purchase, in the aggregate, 577,728 shares of
the Company's Common Stock vested and became exercisable by Rubin in full (to
the extent such options had not previously fully vested) on December 16, 1999,
as a result of the consummation of the transaction with Infogrames Entertainment
S.A. Such options shall be exercisable as set forth on Exhibit A attached
hereto.
6. Payment of all compensation and benefits to Rubin hereunder shall be
subject to all applicable withholding taxes.
7. It is a material condition of this Agreement and Release that
(a) Rubin shall not make or publish any statement (orally or in writing),
or instigate, assist or participate in the making or publication of any
statement, which would or could adversely affect, libel, slander or disparage
(whether or not such disparagement legally constitutes libel or slander) or
expose to hatred, contempt or ridicule (i) the Company, (ii) any of its
products, services, affairs, or operations; or (iii) the reputations of any of
its past or present directors, officers, employees or agents; and
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(b) the Company shall not make or publish any statement (orally or in
writing), or instigate, assist or participate in the making or publication of
any statement, which would or could adversely affect, libel, slander or
disparage Rubin (whether or not such disparagement legally constitutes libel or
slander) or expose Rubin to hatred, contempt or ridicule.
8. If Rubin breaches his promises and participates in a legal proceeding
based on claims he has released or breaches Paragraph 7 of this Agreement and
Release, or if Mr. Rubin personally breaches Sections 4 or 6 of the Employment
Agreement, then he agrees (a) to pay for all costs incurred by the Company,
including reasonable attorneys' fees, in defending against his claim; (b) that
the Company may bring an action for any damages suffered as a result of Rubin's
breach of the provisions contained in Paragraph 7 of this Agreement and Release
or Sections 4 or 6 of the Employment Agreement; and (c) to pay all other damages
awarded by a court of competent jurisdiction.
9. Rubin has been afforded an opportunity to take at least twenty-one
(21) days to consider this Agreement and Release and has been advised to consult
with the attorneys of his choice prior to executing this Agreement and Release.
The parties understand and acknowledge that Rubin will have a period of seven
(7) calendar days following his execution of this Agreement and Release in which
to revoke his consent, and that this Agreement and Release will not become
effective or enforceable until the revocation period has expired. A revocation
will become effective only if Rubin furnishes the Company with a written notice
to the Senior Vice President of Human Resources at GT Interactive Software
Corp., 417 Fifth Avenue, New York, New York 10016 within such seven (7) day
period. The Company will have no obligation to make the payments set forth
herein unless and until this Agreement and Release becomes effective.
10. In executing this Agreement and Release, the Company does not admit
any liability or wrongdoing, and the considerations exchanged herein do not
constitute an admission of any liability, error, contract violation, or
violation of any federal, state, or local law or regulation.
11. This Agreement and Release shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
12. The unenforceability or invalidity of any provision or provisions of
this Agreement and Release shall not render any other provision or provisions
hereof unenforceable or invalid.
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13. This Agreement and Release constitutes the entire agreement between
the parties and cannot be altered except in a writing signed by the parties. The
parties acknowledge that they entered into this Agreement and Release
voluntarily, that they fully understand all of its provisions, and that no
representations were made to induce execution of this Agreement and Release
which are not expressly contained herein.
14. The parties agree that any disputes concerning the interpretation or
application of this Agreement and Release shall be governed by New York law and
submitted to a court in New York, without regard to principles of conflict of
law or where the parties are located at the time a dispute arises.
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IN WITNESS WHEREOF, the parties have executed this Agreement and Release
on the dates indicated below.
GT INTERACTIVE SOFTWARE CORP.
/s/ Harry M. Rubin By: /s/ Harry Glantz
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Harry M. Rubin
Sworn to before me this Sworn to before me this
_7th__ day of __April, 2000 _7th__ day of __April, 2000
/s/ James Joseph Conner /s/ James Joseph Conner
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Notary Public Notary Public
Notary Public, State of New York Notary Public, State of New York
No. 01CO6030225 No. 01CO6030225
Qualified in Westchester County Qualified in Westchester County
Commission Expires September 7, 2001 Commission Expires September 7, 2001