AGREEMENT AND GENERAL
RELEASE
This Agreement and
General Release (this “ Agreement ”) is made as
of November 10, 2008, by and between International Fight
League, Inc., a Delaware corporation, with its principal executive
offices located at 38 Park Avenue, 2 nd Floor, Rutherford, New Jersey 07070 (the “
Company ”), and Jay Larkin, an individual, who is
domiciled at
(“ Executive ”; and each of the Company and
Executive, a “ Party ”, and together, the
“ Parties ”).
WHEREAS, pursuant
to the terms of a letter agreement dated September 21, 2007
(the “ Letter Agreement ”), Executive was
employed by the Company as President and Chief Operating Officer of
the Company; and
WHEREAS, Executive
and the Company mutually have determined that Executive’s
employment by the Company should conclude upon the terms and
conditions set forth herein; and
WHEREAS, the
Parties desire to enter into this Agreement to set forth the terms
of their respective rights and obligations in connection with the
termination of Executive’s employment with the
Company.
NOW, THEREFORE,
THE PARTIES AGREE THAT:
(a) Effective as
of the close of business on November 1, 2008 (the “
Separation Date ”), the Letter Agreement and
Executive’s employment with the Company was terminated by the
Executive and the Company by mutual agreement. Accordingly,
Executive acknowledges and agrees that his last day of employment
with the Company was the Separation Date and that, following the
Separation Date, the Letter Agreement was of no further force and
effect. Executive understands that, except as otherwise
specifically provided in this Agreement, Executive is entitled to
nothing further from the Releasees (as defined below) under the
Letter Agreement or otherwise, and all rights and obligations of
the Parties under the Letter Agreement have terminated.
(b) Executive
agrees, upon request reasonably made by the Board of Directors or
an authorized officer of the Company, to execute all such documents
and take all such actions and steps as the Company reasonably deems
necessary, advisable, or required in order to further the intent
and purposes of this Agreement.
(c) Executive
acknowledges and agrees that Executive will not be reemployed by
the Company, and Executive will not knowingly accept, apply for, or
otherwise seek employment with the Company or its subsidiaries,
affiliates, successors, assigns, or related companies at any
time.
2. Final
and Exclusive Standard Compensation Payments . Executive
acknowledges and agrees that the Company has paid in full to
Executive all of Executive’s wages, commissions, bonuses, and
accrued vacation pay that were (and will ever be) owed to
Executive, and that the Company and its subsidiaries owe Executive
no other wages, commissions, bonuses, vacation
pay, employee
benefits, equity-based compensation, or other compensation or
payments of any kind or nature, other than as specifically provided
in this Agreement.
3.
Certain Representations, Warranties and Covenants
.
(a) Executive
represents and warrants that, on or before the Separation Date, he
returned to the Company any and all documents, software, equipment
(including, but not limited to, computers and computer-related
items), Company credit cards (or any credit cards sponsored,
insured, or in any way guaranteed by the Company), and all other
materials or other things in Executive’s possession, custody,
or control which are the property of the Company, including, but
not limited to, any Company identification materials, keys, and the
like, wherever such items may have been located, as well as all
copies (in whatever form thereof) of all materials relating to
Executive’s employment, or obtained or created in the course
of his employment, with the Company. The Company agrees that it
will return to Executive (and permit Executive to retain for his
personal use) the Mac Book computer, Mac Book Pro computer with
monitor, Cannon SLR camera, and “Walkie Talkies”
two-way radios (collectively, the “ Excluded Property
”) after the Company has had reasonable opportunity to remove
from the Excluded Property all data in any way relating to the
Company, its subsidiaries, or the business of the Company or any of
its subsidiaries (which determination shall be made by the Company
in its sole and exclusive discretion). Executive acknowledges and
agrees that he shall be responsible for paying for any service or
other recurring costs or expenses relating to the Excluded
Property.
(b) Executive
hereby represents that, other than those materials Executive has
returned to the Company pursuant to Section 3(a) above, Executive
has not copied or caused to be copied, and has not printed-out or
caused to be printed-out, any software, computer disks, documents,
information, or data (other than information and documentation
lawfully available to the general public), or retained any other
materials originating with or belonging to the Company. Executive
further represents that Executive has not retained in his
possession any software, documents, or other materials in machine
or other readable form which are the property of the Company,
originated with the Company, were obtained or created in the course
of Executive’s employment with the Company, or relate to
Executive’s employment with the Company.
4.
Cooperation . Executive covenants and agrees that, as
may be reasonably requested by the Company from time to time, he
will promptly and fully respond to all inquiries from the Company
and its representatives concerning any accounting, legal,
administrative, or other matters concerning the Company or its
subsidiaries. Executive further agrees that he will promptly and
fully comply with any reasonable request by the Company or its
representatives asking for Executive’s testimony or other
evidence in any legal or administrative proceeding, or in
connection with any claims or demands, concerning the Company. The
Company shall reimburse Executive for any reasonable, out-of-pocket
expenses incurred in connection with any cooperation provided under
this Section 4, provided , however , that, in
each case, such expenses have been pre-approved by the Company and
the Executive submits appropriate backup documentation for such
expenses.
-2-
5.
Special Payments . The Company, in full and final
settlement of any and all claims and potential claims as set forth
in this Agreement, and as consideration for this Agreement, will
provide Executive with the payments and benefits set forth in this
Section 5 ( provided that Executive does not
elect to revoke this Agreement under Section 12 hereof), which
payments and benefits Executive acknowledges and agrees exceed any
payments or benefits to which Executive might otherwise be entitled
in the absence of this Agreement:
|
|
(a)
|
|
The
Company shall pay Executive a special cash payment in the aggregate
amount of Twenty Thousand and 00/100 Dollars ($20,000) (less
applicable withholdings and other customary payroll deductions,
excluding 401(k) contributions) (the “ Special Payment
”). The Special Payment shall be paid to Executive on the
Effective Date (as defined in Section 12(b) of this Agreement), or
on the following business day if the Effective Date does not fall
on a business day.
|
|
|
|
|
|
|
|
(b)
|
|
Executive shall be entitled to any
rights guaranteed by the Consolidated Omnibus Budget Reconciliation
Act of 1985 (“ COBRA ”). In the event Executive
timely elects to receive health insurance coverage in accordance
with COBRA, the Company shall pay, on behalf of Executive, any
required premiums for such coverage, for any period in which
Executive remains eligible for such COBRA benefits through the
earlier of (i) April 30, 2009, and (ii) the date
upon which Executive becomes eligible for group health insurance
though any employer or professional affiliation other than the
Company. Premium and other payments required for any further
continued health insurance coverage, in accordance with COBRA,
shall be the sole responsibility of Executive.
|
6. Stock
Options . Notwithstanding anything to the contrary in the
Company’s 2006 Equity Incentive Plan or any applicable grant
agreement, Executive understands and agrees that all of the options
to purchase the common stock of the Company heretofore granted to
Executive from time to time, whether or not vested as of the
Separation Date, automatically terminated as of the Separation Date
and Executive shall have no further rights with respect to such
stock options.
(a) Executive,
in consideration of the monies and other consideration paid to him
pursuant to this Agreement, releases and
forever discharges the Company and the
Company’s current, former, and future shareholders,
subsidiaries, affiliates, related companies, divisions, directors,
trustees, officers, employees, agents, attorneys, successors, and
assigns (and the current, former and future controlling
shareholders, directors, trustees, officers, employees, agents, and
attorneys of such controlling shareholders, subsidiaries,
affiliates, related companies and divisions), and all persons
acting by, through, under, or in concert with any of them (the
Company, and the foregoing other persons and entities are
hereinafter defined separately and collectively as the “
Releasees ”), from all actions, causes of action,
claims, liabilities, and demands whatsoever, whether
known or unknown , in law or equity, whether
statutory or common law, whether federal, state, local, or
otherwise, including, but not limited to, any claims related to, or
arising out of, any aspect of Executive’s employment with the
Company, any agreement concerning such employment (including,
without limitation, the Letter Agreement), or
-3-
the termination
of such employment, including, but not limited to, any and all
claims of wrongful discharge or breach of contract, any and all
claims for equitable estoppel, any and all claims for employee
benefits, including, but not limited to, any and all claims under
the Employee Retirement Income Security Act of 1974, as amended,
the Family and Medical Leave Act of 1993, and any and all claims of
employment discrimination on any basis or of unlawful retaliation,
including, but not limited to, any and all claims under Title VII
of the Civil Rights Act of 1964, as amended, under the Age
Discrimination in Employment Act of 1967, as amended (“
ADEA ”), under the Civil Rights Act of 1866, 42 U.S.C.
§ 1981, as amended, under the Americans With Disabilities Act
of 1990, under the Civil Rights Act of 1991, under the
Sarbanes-Oxley Act of 2002, under the Immigration Reform and
Control Act of 1986, as amended, under the New York State Labor
Law, as amended, under the New York State Human Rights Law, as
amended, and under the New York City Human Rights Law, as amended,
and any claim for attorneys’ fees, experts’ fees,
disbursements or costs, which Executive, Execut
|
