EXHIBIT 10.5
AGREEMENT AND RELEASE
This Agreement and Release (this "Agreement") is entered into as of
November 30, 1999 by Interplay Entertainment Corp., a Delaware corporation
("Interplay") and Xxxxxxx X.X. Xxxxxxxx ("Lehrberg"), with reference to the
following facts:
A. Interplay has employed Lehrberg since 1991, and currently employs
Lehrberg.
X. Xxxxxxxx has agreed to defer his 1994 and 1995 bonuses from Interplay
in the aggregate amount of $139,000.
X. Xxxxxxxx has agreed to defer $40,000 of his 1999 salary from
Interplay.
D. Interplay and Lehrberg agree that 2001 will be the last year of the
Company's employment of Lehrberg.
E. In consideration for the payment of deferred amounts, and for the
further consideration set forth in Exhibit "A", Lehrberg has agreed to release
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Interplay from any claims that Lehrberg may have against Interplay.
Accordingly, the parties agree as follows:
1. Payments to Lehrberg.
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1.1. Payment Upon Execution. Upon execution of this Agreement,
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Interplay shall pay Lehrberg all of the following:
1.1.1. $50,000 in the form of a company check drawn upon
immediately available funds.
1.1.2. 56,208 shares of Interplay common stock. Stock issued
under this Section 1.1.2 shall be not have been registered with the Securities
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and Exchange Commission when issued. Interplay shall use its diligent efforts to
so register the stock at the earliest practicable time.
1.2. Future Payments.
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1.2.1. Time and Amount of Payments. Interplay shall pay to
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Lehrberg the following amounts at the following times:
a. $42,000 on April 30, 2000;
b. $42,000 on July 31, 2000; and
c. $39,000 on October 31, 2000.
1.2.2. Manner of Payment. The payments set forth in Section
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1.2.1 shall be in one of the following forms, or in any combination of the
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following forms (at Interplay's election):
a. A company check drawn upon immediately available
funds; and
b. A vested and immediately exercisable option under
Interplay's 1997 Stock Incentive Plan, as then amended, to purchase a number of
shares of Interplay's common stock such that the aggregate market price of such
shares minus the aggregate exercise price of such shares equals the amount of
the payment to be made.
1.3. Payments Subject to Tax Withholding. All payments hereunder are
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subject to Interplay's customary tax withholdings.
2. Employment.
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2.1. Employment for Remainder of 1999. Interplay shall employ
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Lehrberg for the remainder of 1999 on the currently-existing terms of employment
between Interplay and Lehrberg. At the end of 1999 Lehrberg shall cease
accruing vacation time and paid sick days. On or before January 15, 2000,
Interplay shall pay to Lehrberg the cash equivalent of any of Lehrberg's accrued
and unused vacation time and paid sick days.
2.2. Resignation. Concurrent with the execution of this
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Agreement, Lehrberg shall execute a resignation from the offices of Director of
Interplay and Director of Interplay Productions Limited, effective December 31,
1999, in the form attached as Exhibit "A".
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2.3. Employment for 2000 and 2001. Concurrent with the
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execution of this Agreement, Interplay and Lehrberg shall enter into an
employment agreement, in the form attached hereto as Exhibit "B", providing for
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Interplay's employment of Lehrberg during the years 2000 and 2001.
3. Lehrberg Release.
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3.1. Release. For consideration set forth herein and in Exhibit "A",
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Lehrberg releases Interplay from any and all obligations, liability, actions,
causes of action, damages, and claims of any kind whatsoever arising out of or
relating to any dealings involving Interplay and Lehrberg accruing prior to the
date of this Agreement, whether such claims are known or unknown (each a Claim
and collectively the "Claims"). Lehrberg acknowledges full and complete
settlement and satisfaction of all Claims.
3.2. Binding Effect. This release shall bind Lehrberg and his
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administrators, successors and assigns, and shall inure to the benefit of
Interplay and its predecessors, agents, employees, shareholders, officers,
directors, attorneys, representatives, successors, assigns, partners, and
affiliate entities (each a "Beneficiary" and collectively the "Beneficiaries").
3.3. Representations and Warranties. Lehrberg represents and
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warrants, for the benefit of Beneficiaries, as follows:
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3.3.1. That he has had the opportunity to seek legal counsel and
is familiar with California Civil Code Section 1542, which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing this
release, which if known by him must have materially affected his settlement
with the debtor."
Lehrberg waives all rights and benefits he may have under this code section, as
well as under any other statute or common law principle of similar effect.
3.3.2. That he has not assigned or transferred, or purported
to assign or transfer, to any other person any of the Claims, and that he is
fully entitled to release the Claims.
3.3.3. That no representations, inducements, promises,
agreements or warranties, oral or otherwise, have been made to Lehrberg that
have not been embodied in this Agreement, and that he has entered into this
Agreement without any reliance upon any such representations, inducements,
promises, agreements or warranties.
3.4. Covenant Against Future Actions. Lehrberg will forever
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refrain from commencing, prosecuting, joining as plaintiff or claimant, or
otherwise aiding any lawsuit, action or other proceeding against any Beneficiary
in connection with any Claim.
4. Miscellaneous.
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4.1. Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.2. Entire Agreement. This Agreement constitutes the entire
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agreement between the parties on the subject matter hereof. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by all the parties. No waiver shall be binding unless executed in
writing by the party making the waiver. No provision of this Agreement shall be
interpreted for or against the drafting party.
4.3. Further Assurances. Each party agrees to execute and
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acknowledge such other instruments as may be reasonably necessary to effect the
transactions contemplated herein.
4.4. Governing Law. This Agreement shall be construed in accordance
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with and governed by the laws of the State of California, without regard to
conflicts of laws principles.
4.5. Headings. Titles or captions contained herein are inserted as a
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convenience and for reference, and in no way define, limit, extend or describe
the scope of this Agreement or any provision thereof.
4.6. Notices. All notices, statements and other documents that
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any party is required or desires to give to the other party hereunder shall be
given in writing and shall be served in person, by express mail, by certified
mail, by overnight delivery, or by facsimile to the
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applicable address set forth below, or at such other addresses as may be
designated in writing by such party in accordance with the terms of this Section
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4.6.
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If to Interplay:
Interplay Entertainment Corp.
Attention: Chief Executive Officer
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Lehrberg:
Xxxxxxx X.X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
4.7. Severability. If a court of competent jurisdiction finds
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any provision of this Agreement to be void, invalid or unenforceable, such
provision shall be curtailed only to the extent necessary to bring such
provision within the requirements of the law, and such curtailment shall not
affect the validity and enforceability of any other provision of this Agreement.
4.8. Successors and Assigns. This Agreement shall be binding
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on, and shall inure to the benefit of the parties and their respective heirs,
legal representatives, successors and assigns.
4.9. Venue. The parties hereto agree that all actions or
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proceedings arising directly or indirectly from this Agreement shall be
arbitrated or litigated by arbitrators or in courts having a situs within Orange
County, California, and hereby consent to the jurisdiction of any local, state
or federal court in which such an action is commenced that is located in Orange
County, California. The parties agree (a) not to disturb such choice of forum,
and (b) to waive the personal service of any and all process upon them, and
consent that all such service of process may be made by certified or registered
mail, return receipt requested, addressed to the respective parties.
Wherefore, the parties have caused this Agreement to be executed as of the
date first set forth above.
"LEHRBERG" "INTERPLAY"
Interplay Entertainment Corp.
________________________________ By: ________________________________
Xxxxxxx X.X. Xxxxxxxx Xxxxx Xxxxx
Chief Executive Officer
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EXHIBIT "A"
Resignation
To Whom It May Concern:
Effective December 31, 1999, I, Xxxxxxx X.X. Xxxxxxxx, resign from the following
offices:
Director of Interplay Entertainment Corp.
Director of Interplay Productions Limited
_______________________________
Xxxxxxx X.X. Xxxxxxxx
EXHIBIT "B"
Employment Agreement
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