SEPARATION AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release is made and entered into as of April
13, 2007 (this “Agreement”),
by
and between Xxxx Xxxxxxx (the “Executive”)
and
Take-Two Interactive Software, Inc., a Delaware corporation (together with
its
parents, subsidiaries, affiliates and related entities, the “Company”).
The
purpose of this Agreement is to acknowledge, and set forth the terms of, the
Executive’s termination of employment with the Company.
1. Termination
Date.
The
Executive hereby confirms that (a) effective as of April 10, 2007 (the
“Termination
Date”),
his
employment with the Company terminated, (b) effective as of April 9, 2007,
he
resigned from his position as Chief Financial Officer of the Company, and (c)
he
will not be eligible for any benefits or compensation after the Termination
Date, other than as specifically provided herein. In addition, effective as
of
the Termination Date, the Executive hereby confirms his resignation from all
other offices, directorships, trusteeships, committee memberships and fiduciary
capacities held with, or on behalf of, the Company or it subsidiaries or any
benefit plans of the Company. Except as expressly provided in Section 3(a),
the
Executive acknowledges and agrees that he will not represent himself as being
an
employee, officer, director, trustee, member, partner, agent or representative
of the Company or any of its subsidiaries for any purpose and will not make
any
public statements on behalf of the Company or any of its
subsidiaries.
2. Severance
Payments.
Subject
to the terms and conditions of this Agreement, including the Executive’s
executing (and not revoking) this Agreement, the Executive will be entitled
to
receive the following:
(a) Subject
to the provisions of Section
19,
for a
period of eighteen months following the Termination Date, the Executive’s
current annual base salary ($405,000/annum) and target bonus (50% of base salary
deemed earned), paid in the manner in which current compensation is paid:
annualized and paid twice monthly.
(b) Any
vesting or service requirements with respect to any stock options or shares
of
restricted stock granted to the Executive prior to the Termination Date will
be
deemed satisfied. Notwithstanding anything to the contrary in any agreement
with
the Company, any stock options granted to the Executive prior to the Termination
Date that remain outstanding as of the Termination Date will remain exercisable
until July 8, 2007. Executive and the Company acknowledge that as of the date
of
this Agreement, Executive’s Company stock option and restricted stock holdings
are as follows (all of which are fully vested as of the date of this Agreement):
(i) 23,333 shares of restricted stock issued under the Company’s Incentive Stock
Plan and (ii) options to purchase 50,000 shares of common stock of the Company
at an exercise price per share of $19.89. The Company shall (i) use its
commercially reasonable efforts to include the Executive’s 10,000 shares of
restricted stock granted under the Company’s Incentive Stock Plan on March 29,
2007 on a Form S-3 or Form S-8 or any successor form as soon as is practicable
following the date of this Agreement and (ii) provide reasonable assistance
to
the Executive with respect to the sale of Executive’s 3,931 shares of
unregistered common stock of the Company under an applicable exemption from
registration (if and to the extent available) under the Securities Act of
1933, as amended. The Executive agrees to remit to the Company in a timely
manner any required withholding tax payments arising out of the vesting
of shares of restricted stock granted to Executive under the Company's
Incentive Stock Plan.
(c) Executive’s
accrued, but unpaid base salary and accrued and unused vacation through the
Termination Date, and unreimbursed business expenses through the Termination
Date (which for purposes of this Agreement shall include reasonable attorney’s
fees incurred by Executive in connection with his review of this Agreement)
(subject to the satisfaction of the requirements of the Company’s business
expense reimbursement policy), in each case payable in accordance with Company
policy.
(d) Subject
to (A) the Executive’s timely election of continuation coverage under the
Consolidated Budget Omnibus Reconciliation Act of 1985, as amended
(“COBRA”)
and
(B) the Executive’s continued copayment of premiums at the same level and cost
to the Executive as if the Executive were an employee of the Company (excluding,
for purposes of calculating cost, an employee’s ability to pay premiums with
pre-tax dollars), to the extent permitted under applicable law and the terms
of
such plan, during the period from the Termination Date through October 10,
2008,
continued participation in the Company’s group health plan which covers the
Executive and his eligible dependents as of the Termination Date at the
Company’s expense (other than the aforementioned premiums), provided that the
Executive is eligible and remains eligible for COBRA coverage; provided,
however, that if the Executive accepts other employment (whether or not
comparable) that offers substantially similar or improved group health benefits,
the Executive will immediately notify the Company of his eligibility for such
benefits and such continuation of coverage by the Company under this
sub-paragraph (d) will immediately cease.
2
3. The
Executive’s Consultancy Obligations.
(a) The
Executive agrees to serve in good faith as a consultant for the Company on
an
as-needed basis as determined by the Board of Directors of the Company or the
Acting Chief Executive Officer of the Company, and the Executive agrees to
be
reasonably available to the Company for such purpose, during the period from
the
Termination Date through the earliest of (i) July 10, 2007, (ii) the Executive’s
death, (iii) incapacity to provide services for more than 20 consecutive days
or
(iv) upon notice in the event of the Executive’s willful misconduct, activities
detrimental to the interests of the Company or breach of this Agreement which
is
not cured within five (5) days of written notice thereof (the “Consulting
Period”).
The
Executive’s services will be of an advisory nature only, primarily focusing on
transition issues, and the Executive will have no power of decision with respect
to any matters which are the subject of consultation and will not have any
responsibility in connection with the active management of the
Company.
(b) During
the Consulting Period, subject to the provisions of Section
19, the
Executive will be entitled to the following payments and benefits:
(i) A
monthly
consulting fee of $25,000, payable in arrears on the first day of each month
for
three consecutive months commencing on May 1, 2007.
(c) The
Executive understands that he is responsible for the full reporting and payment
of local, state and federal taxes and statutory benefits, including Social
Security (FICA), workers compensation, disability, and unemployment insurance.
No deductions, withholding, or additional payments for such purposes will be
made by the Company. The Executive will indemnify and hold the Company harmless
with regard to any failure of him to fulfill his obligations with regard to
such
taxes or statutory benefits. The Executive further understands and agrees that
the services rendered by him pursuant to this Section
3
will be
those of an independent consultant and not of an agent or employee of the
Company and that he will not be eligible to participate in or entitled to
receive any employee benefits from the Company as a result of the services
rendered pursuant to this Section
3,
even if
subsequently determined by any court, the Internal Revenue Service or any other
governmental agency to be a common law employee of the Company.
(d) The
Executive agrees that upon the termination or expiration of the Consulting
Period, he will sign and deliver to the Company an executed General Release
for
the period of the consultancy substantially similar in form to the document
attached hereto as Exhibit
A.
3
4. Return
of Property.
The
Executive represents to the Company that he has returned any and all files
or
other property (both tangible and intellectual) of the Company (said property
includes, but is not limited to, files, monthly management financial booklets,
projections, forecasts, balance sheets, income statements, audited financial
statements, total cost development budgets, actual or prospective purchaser
or
customer lists, written proposals and studies, plans, drawings, specifications,
reports to creditors, books, accounts, reports to directors, minutes,
resolutions, certificates, bank account numbers, passwords, rolodexes, credit
cards, computers, fax machines, cellular or other telephones, Blackberries,
beepers, PDA’s, keys, card access keys to any Company building, deeds,
contracts, office equipment and supplies, records, computer disks, any other
documents or things received or acquired in connection with the Executive’s
employment with the Company, etc.) without retaining any copies or extracts
thereof; provided that the Executive shall return the Company’s leased vehicle
in Executive’s possession as soon as practicable after the date
hereof.
5. Full
Discharge.
The
Executive agrees and acknowledges that the payments and benefits provided in
Section
2
and
Section
3
and the
other entitlements hereunder: (a) are in full discharge of any and all
liabilities and obligations of the Company to the Executive, monetarily or
with
respect to employee benefits or otherwise, including any and all obligations
arising under any alleged written or oral employment agreement, policy, plan
or
procedure of the Company, including the Employment Agreement dated February
13,
2001 as amended to be properly dated February 13, 2002 and as amended dated
February 28, 2007 between the Executive and the Company (the “Employment
Agreement”)
and/or
any alleged understanding or arrangement between the Executive and the Company
or any of its officers or directors; and (b) exceed any payment, benefit, or
other thing of value to which the Executive might otherwise be entitled but
for
this Agreement under any policy, plan or procedure of the Company or any prior
agreement between the Executive and the Company, except for accrued, vested
amounts under any tax-qualified pension plan maintained by the Company, which
amounts, if any, will be paid in accordance with the terms of such plan or
plans, or benefits required to be provided under COBRA.
6. Future
Conduct and Obligations.
(a) The
Executive, on behalf of himself, his agents, attorneys, heirs, dependents,
executors, administrators, trustees, legal representatives and assigns, agrees
that he will not (and will cause his affiliates to not) at any time engage
in
any form of conduct, or make any statements or representations, that disparage
or otherwise impair the reputation, goodwill, or commercial interests of the
Company, its management, directors, stockholders, subsidiaries, parents, and/or
other direct or indirect affiliates.
(b) To
the
extent legally permissible and not inconsistent with Executive’s rights and
interests (as determined in good faith by Executive based upon the advice of
Executive’s counsel), the Executive will use reasonable best efforts to assist
and cooperate with the Company (and its outside counsel) in connection with
the
defense or prosecution of any claim that may be made or threatened against
or by
the Company, or in connection with any ongoing or future investigation or
dispute or claim of any kind involving the Company, including any proceeding
before any arbitral, administrative, judicial, legislative, or other body or
agency, including preparing for and testifying in any proceeding to the extent
such claims, investigations or proceedings relate to services performed or
required to be performed by the Executive, pertinent knowledge possessed by
the
Executive, or any act or omission by the Executive. The Executive will perform
all acts and execute and deliver any documents that may be reasonably necessary
to carry out the provisions of this Section
6(b).
Notwithstanding anything contained in this Section 6(b) to the contrary, in
the
event that Executive for any reason fails to assist or cooperate with the
Company as described above in this subsection (b) during the Consulting Period,
the Corporation shall not be obligated to make any further payments to Executive
pursuant to Section 3(b) hereof.
4
(c) The
Executive agrees to promptly inform the Company if the Executive becomes aware
of any claim that may be made or threatened against the Company.
(d) The
Executive hereby acknowledges the existence and applicability of the
restrictions set forth in Section 7 of the Employment Agreement. Such
restrictions will remain in full force and effect following the Termination
Date
as provided in the Employment Agreement.
7. General
Release.
(a) For
and
in consideration of the payments to be made and the promises set forth in this
Agreement, the Executive, with the intention of binding himself, his agents,
attorneys, heirs, dependents, executors, administrators, trustees, legal
representatives and assigns, does hereby (and will cause his affiliates to)
irrevocably and unconditionally release, acquit, remise and forever discharge
the Company, any and all of their employee benefit and/or pension plans or
funds, insurers, successors and assigns, each of the parties to the agreement
dated as of March 4, 2007 by and among OppenheimerFunds, Inc., X. X. Xxxx &
Co., L.P., S.A.C. Capital Management, LLC, Tudor Investment Corporation and
ZelnickMedia Corporation and all of its or their past, present and/or future
stockholders, partners, members, heirs, executors, administrators, agents,
employees, officers, directors, managers, successors, insurers, assigns,
attorneys, counsel, fiduciaries and trustees, whether acting as agents for
the
Company or in their individual capacities (the “Releasees”),
of
and from any and all manner of actions, cause or causes of action, suits, debts,
sums of money, costs, interests, attorneys’ fees, liabilities, contracts,
accounts, reckonings, bonds, bills, specialties, covenants, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions,
charges, claims, counterclaims and demands, whatsoever, in law or in equity
or
otherwise, that the Executive now has or may have, whether mature, direct,
derivative, subrogated, personal, assigned, both known and unknown, foreseen
or
unforeseen, contingent or actual, liquidated or unliquidated, arising from
the
beginning of the world until the date that the Executive signs this Agreement,
including, but not limited to, any claims arising in any way out of his serving
as a director of the Company, his hiring by the Company, his employment with
the
Company, or his separation from the Company. The Executive hereby expressly
waives the benefits of any statute or rule of law which, if applied to this
General Release, would otherwise exclude from its binding effect any claims
not
now known by the Executive to exist. The foregoing release of claims by the
Executive includes, but is not limited to, any and all claims for damages,
attorneys’ fees, or costs under the Age Discrimination in Employment Act
(“ADEA”),
29
U.S.C. § 621 et seq., the Americans with Disabilities Act (“ADA”),
42
U.S.C. § 12101 et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981a et seq.,
the Employee Retirement Income Security Act of 1974 (“ERISA”),
29
U.S.C. § 1001 et seq., the Fair Labor Standards Act (“FLSA”),
29
U.S.C. § 201 et seq., the Family and Medical Leave Act (“FMLA”),
Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the
Xxxxxxxx-Xxxxx Act of 2002, the United States Constitution, the Constitution
of
the State of New York, or of any other state or country, the New York State
Human Rights Law, the New York Executive Law, the New York Labor Law, the New
York City Administrative Code and all other similar federal, state, or municipal
statutes or ordinances prohibiting discrimination or pertaining to employment,
and any contract, tort, or common law theories with respect to the Executive’s
serving as a director of the Company, his hiring by the Company, his employment
with the Company, or his separation from the Company.
5
(b) The
Company and the Executive acknowledge and agree that the General Release set
forth in Section
7(a)
does not
in any way affect: (i) the Executive’s rights including but not limited to those
of indemnification or contribution to which the Executive was entitled
immediately prior to the Termination Date under the Company’s By-laws, the
Company’s Certificate of Incorporation, that certain indemnification agreement
dated June 21, 2006 between the Executive and the Company or otherwise with
regard to the Executive’s service as an officer and director of the Company;
(ii) the Executive’s rights as a stockholder (other than the right to xxx, which
is released); (iii) the Executive’s accrued, vested rights under any
tax-qualified pension plan maintained by the Company; and (iv) the rights of
either party to take whatever steps may be necessary to enforce the terms of
this Agreement or to obtain appropriate relief in the event of any breach of
the
terms of this Agreement.
8. No
Existing Suit.
The
Executive represents and warrants that, as of the Effective Date of this
Agreement, he has not filed or commenced any suit, claim, charge, complaint,
action, arbitration, or legal proceeding of any kind against the Company. The
Executive agrees that if he hereafter commences, joins in, or in any manner
seeks relief through any suit arising out of, based upon, or relating to any
of
the claims released hereunder, or in any manner asserts against the Releasees
any of the claims released hereunder, including through any motion to
reconsider, reopen or appeal the dismissal of the action, then he will pay
to
the Releasees against whom such claim(s) is asserted, in addition to any other
damages caused thereby, all attorneys’ fees incurred by such Releasees in
defending or otherwise responding to said suit or claim. Provided however,
that
the requirement that the Executive pay the Releasees attorneys’ fees will not be
applicable to a claim or portion of a claim that the release is not valid under
the Older Workers Benefit Protection Act, or any claim asserted under the
ADEA.
9. No
Participation in Third Party Civil Litigation.
The
Executive agrees and promises not to voluntarily participate, without receiving
the prior written approval of the Company, in any pending or future civil case,
arbitration, agency proceeding, or other legal proceeding brought against the
Company by a non-Governmental third party (“Third
Party Civil Litigation”)
with
respect to any issues whatsoever. The Executive also agrees that he will not
intentionally cause, encourage, or participate in any Third Party Civil
Litigation maintained or instituted against the Company. Specifically, among
other things, this Section
9
is
intended to preclude the Executive from (a) voluntarily providing any party
involved in a Third Party Civil Litigation, as defined above, against the
Company with any statement, oral or written, sworn or unsworn, to be used in
connection with that Third Party Civil Litigation, and/or (b) voluntarily
appearing for the purpose of providing deposition or trial testimony at such
party’s request without the prior written approval of the Company.
6
10. Certain
Forfeitures in Event of Breach or Other Liability to the
Company.
The
Executive acknowledges and agrees that, notwithstanding any other provision
of
this Agreement, if the Executive breaches any obligation under this Agreement,
which breach has a material impact on the Company, or there is a final
determination by a court of competent jurisdiction, or an agreement by the
Executive as part of a settlement, that the Executive is otherwise liable to
the
Company, the Company retains the right to recoup any and all benefits provided
for in Section
2
or
Section
3,
any
damages suffered by the Company, plus reasonable attorneys’ fees incurred in
connection with such recovery and, to the extent that such benefits have not
been fully disbursed to the Executive, the Company reserves its rights to stop
all future disbursements of such benefits.
11. Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding of the parties
with
respect to the subject matter hereof and supersedes all prior promises or
agreements made by, to, or between the parties, whether oral or written with
respect to the subject matter hereof, including the Employment Agreement (other
than as specifically provided herein). This Agreement may not be amended except
by a writing signed by all the parties. There are no other promises, agreements,
or commitments made by, to, or between the parties, other than those set forth
in the written text of this Agreement.
12. No
Transfer by Executive.
The
Executive represents and warrants that he has not sold, assigned, transferred,
conveyed or otherwise disposed of to any third party, by operation of law or
otherwise, any action, cause of action, suit, debt, obligations, account,
contract, agreement, covenant, guarantee, controversy, judgment, damage, claim,
counterclaim, liability or demand of any nature whatsoever relating to any
matter covered by this Agreement. This Agreement is personal to the Executive
and he may not assign, pledge, delegate or otherwise transfer any of his rights,
obligations or duties under this Agreement.
13. Choice
of Law; Jurisdiction; Venue.
This
Agreement will be governed by, construed in accordance with, and enforced
pursuant to the laws of the State of New York without regard to principles
of
conflict of laws. The parties hereto waive any defense of lack of jurisdiction
or venue as not being a resident of New York County, New York, and hereby
specifically authorize any action brought by either party to this Agreement
to
be instituted and prosecuted in either the Supreme Court of the State of New
York, County of New York, or in the United States District Court for the
Southern District of New York, at the election of the party bringing such
action.
7
14. Counterparts.
This
Agreement may be executed (including by facsimile transmission) with counterpart
signature pages or in counterparts, each of which together constitute one and
the same instrument.
15. Notices.
Any
notice, waiver or other communication given hereunder will be delivered (except
as set forth in Section
17
in
respect of a written notice of revocation) as follows: (a) in the case of the
Company, by personal delivery, certified or registered mail (return receipt
requested), or delivery by a recognized overnight commercial courier, addressed
to Xxxx Xxxxxx, Esq., Executive Vice President and General Counsel, Take-Two
Interactive Software, Inc., 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, with a
courtesy copy to Xxxxxx X. Xxxxxx, Esq., Proskauer Rose LLP, 0000 Xxxxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000; and (b) in the case of Xxxx Xxxxxxx, by personal delivery,
certified or registered mail (return receipt requested), or delivery by a
recognized overnight commercial courier, addressed to the last address on the
records of the Company, with a copy to Xxxxxx Xxxxx, Esq., Xxxxx &
Xxxxxxxxxx LLP, 000 0xx
Xxxxxx,
Xxx Xxxx, XX 00000. Notices served will be deemed given and effective upon
actual receipt (or refusal of receipt).
16. Nonadmissibility;
No Company Release.
Nothing
contained in this Agreement, or the fact of its submission to the Executive,
will be admissible evidence against the Company in any judicial, administrative,
or other legal proceeding (other than an action for breach of this Agreement),
or be construed as an admission of any liability or wrongdoing on the part
of
the Company of any violation of federal, state, or local statutory law, common
law or regulation. Furthermore, nothing contained in this Agreement, is intended
to be, or will be construed as, a release by the Company of any claims against
the Executive.
17. Knowing
and Voluntary Waiver.
By
signing this Agreement, the Executive expressly acknowledges and agrees that:
(a) he has carefully read it and fully understands what it means; (b) he is
hereby advised in writing to discuss this Agreement with an attorney before
signing it; (c) he has been given at least 21 calendar days to consider this
Agreement; (d) he has agreed to this Agreement knowingly and voluntarily and
was
not subjected to any undue influence or duress; (e) he may revoke his acceptance
of this Agreement within seven days after he signs it by sending written notice
of revocation as set forth below; and (f) on the eighth day after he executes
this Agreement, this Agreement becomes effective and enforceable. The parties
agree that the Executive may revoke this Agreement within seven days after
the
Executive executes the Agreement. Any revocation within this period must be
submitted, in writing, to Xxxx Xxxxxx, Esq., Executive Vice President and
General Counsel, Take-Two Interactive Software, Inc., 000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, stating “I hereby revoke my acceptance of the Agreement.” The
revocation must be personally delivered to Xx. Xxxxxx or mailed to him and
postmarked within seven days of the Executive’s execution of the Agreement. If
the last day of the revocation period is a Saturday, Sunday or legal holiday,
then the revocation period will be extended to the following day which is not
a
Saturday, Sunday or legal holiday. The Executive agrees that if he does not
execute this Agreement or, in the event of revocation, he will not be entitled
to receive any of the amounts or benefits under Section
2
(other
than pursuant to Section
2(c)).
8
18. Waiver
of Jury Trial.
EACH OF
THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT
OF
ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN
STATEMENT OR ACTION OF ANY PARTY HERETO.
19. Tax
Matters.
(a) The
Company may withhold from any amounts payable under this Agreement or otherwise
such federal, state and local taxes as are required to be withheld (with respect
to amounts payable hereunder or under any benefit plan or arrangement available
to the Company’s employees) pursuant to any applicable law or
regulation.
(b) The
intent of the parties is that payments and benefits under this Agreement comply
with Section 409A of the Internal Revenue Code of 1986, as amended, and the
regulations and guidance promulgated thereunder (collectively “Section
409A”)
and,
accordingly, to the maximum extent permitted, this Agreement will be interpreted
to be in compliance therewith. Notwithstanding
any provision to the contrary in this Agreement, since the Executive is a
“specified employee” within the meaning of that term under Section 409A(a)(2)(B)
of the Code, then with regard to any payment or the provision of any benefit
that is required to be delayed in compliance with Section 409A(a)(2)(B) of
the
Code, such payment or benefit will not be made or provided prior to the earlier
of (A) the expiration of the six-month period measured from the date of the
Executive’s “separation from service” (as such term is defined under Section
409A) or (B) the date of the Executive’s death (the “Delay
Period”).
Upon
the expiration of the Delay Period, all payments and benefits delayed pursuant
to this Section
19
(whether
they would have otherwise been payable in a single sum or in installments in
the
absence of such delay) will be paid or reimbursed to the Executive in a lump
sum, and any remaining payments and benefits due under this Agreement will
be
paid or provided in accordance with the normal payment dates specified for
them
herein.
Notwithstanding the foregoing, to the extent that the foregoing applies to
the
provision of any ongoing welfare benefits to the Executive that would not be
required to be delayed if the premiums therefore were paid by the Executive,
the
Executive will pay the full cost of premiums for such welfare benefits during
the Delay Period and the Company will pay the Executive an amount equal to
the
amount of such premiums paid by the Executive during the Delay Period promptly
after its conclusion.
In no
event whatsoever will the Company be liable for any additional tax, interest
or
penalties that may be imposed on the Executive by Section 409A or any damages
for failing to comply with Section 409A or this Section
19.
9
20. Third
Party Beneficiaries.
Each
Releasee will be a third party beneficiary to this Agreement, with full rights
to enforce this Agreement and the matters documented herein.
21. Interpretation.
The
parties hereto acknowledge and agree that: (a) each party hereto and its counsel
reviewed and negotiated the terms and provisions of the Agreement and have
contributed to their revision; and (b) the rule of construction to the effect
that any ambiguities are resolved against the drafting party will not be
employed in the interpretation of the Agreement. The words “include”,
“includes”, “included”, “including” and “such as” do not limit the preceding
words or terms and will be deemed to be followed by the words “without
limitation”.
22. Effective
Date.
This
Agreement will not become effective or enforceable until seven days after the
date of execution of this Agreement by the Executive (the “Effective
Date”).
[remainder
of page intentionally left blank]
10
IN
WITNESS WHEREOF,
the
parties hereto have executed and delivered this Agreement as of the day and
year
set forth at the head of this Agreement.
| TAKE-TWO INTERACTIVE SOFTWARE, INC. | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxx | |
|
Name:
|
Xxxx X. Xxxxxx |
|
| Title: | Executive Vice President and General Counsel | |
| EXECUTIVE | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxx | |
|
Name:
|
Name: Xxxx Xxxxxxx |
|
11
Exhibit
A
Form
of General Release
For
an in consideration of the good and valuable consideration provided for in the
Separation Agreement and General Release dated as of April 13, 2007 (the “Separation
Agreement”),
by and between Xxxx Xxxxxxx (“Xx.
Xxxxxxx”)
and Take-Two Interactive Software, Inc., a Delaware corporation (together with
its parents, subsidiaries, affiliates and related entities, the “Company”),
the receipt and sufficiency of which hereby are acknowledged, and to supplement
the General Release in the Separation Agreement, Xx. Xxxxxxx, with the intention
of binding himself, his agents, attorneys, heirs, dependents, executors, administrators,
trustees, legal representatives and assigns does hereby (and will cause his
affiliates to) irrevocably and unconditionally release, acquit, remise and forever
discharge the Company, any and all of their employee benefit and/or pension
plans or funds, insurers, successors and assigns, each of the parties to the
agreement dated as of March 4, 2007 by and among OppenheimerFunds, Inc., X.
X. Xxxx & Co., L.P., S.A.C. Capital Management, LLC, Tudor Investment Corporation
and ZelnickMedia Corporation and all of its or their past, present and/or future
stockholders, partners, members, heirs, executors, administrators, agents, employees,
officers, directors, managers, successors, insurers, assigns, attorneys, counsel,
fiduciaries and trustees, whether acting as agents for the Company or in their
individual capacities (the “Releasees”),
of and from any and all manner of actions, cause or causes of action, suits,
debts, sums of money, costs, interests, attorneys’ fees, liabilities,
contracts, accounts, reckonings, bonds, bills, specialties, covenants, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions,
charges, claims, counterclaims and demands, whatsoever, in law or in equity
or otherwise, that Xx. Xxxxxxx now has or may have, whether mature, direct,
derivative, subrogated, personal, assigned, both known and unknown, foreseen
or unforeseen, contingent or actual, liquidated or unliquidated, arising from
April 10, 2007 until the date that Xx. Xxxxxxx signs this Agreement, covering
any claims arising from this period with respect to Xx. Xxxxxxx’ relationship
with the Releasees. Xx. Xxxxxxx hereby expressly waives the benefits of any
statute or rule of law which, if applied to this General Release, would otherwise
exclude from its binding effect any claims not now known by Xx. Xxxxxxx to exist.
The foregoing release of claims by Xx. Xxxxxxx includes, but is not limited
to, any and all claims for damages, attorneys’ fees, or costs under the
Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621 et seq., the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq., the Civil Rights Act of 1991, 42 U.S.C. §
1981a et seq., the Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1001 et seq., the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201 et seq., the Family and Medical Leave Act (“FMLA”),
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the
Xxxxxxxx-Xxxxx Act of 2002, the United States Constitution, the Constitution
of the State of New York, or of any other state or country, the New York State
Human Rights Law, the New York Executive Law, the New York Labor Law, the New
York City Administrative Code, and all other similar federal, state, or municipal
statutes or ordinances prohibiting discrimination or pertaining to contract,
tort, or common law theories with respect to Xx. Xxxxxxx’ relationship
with the Releasees from April 10, 2007 through the signing of this General Release.
EXECUTIVE
________________________
Xxxx
Xxxxxxx
Dated:
________________, 2007
