Agreement and Release - Chris Byrd, Cedric Kushner Promotions Ltd., Fight Night at the Palace Inc. and Don King Productions Inc.
AGREEMENT AND RELEASE
This Agreement and General Release ("Agreement") is made and entered into
as of August 14, 2002 by and among Chris Byrd ("Byrd"), an individual residing
at 2584 Aviv Court, Las Vegas, Nevada 89121, Cedric Kushner Promotions, Ltd.
("CKP"), a Delaware corporation, with offices located at 1 Montauk Highway,
Southampton New York 11968, Fight Night at the Palace, Inc. (d/b/a Fight Night,
Inc., "Fight Night"), a Michigan corporation, with offices located at 6125 Old
Orchard Drive, Bloomfield, Michigan 48301, and Don King Productions, Inc.
("DKP"), a Delaware corporation with offices at 501 Fairway Drive, Deerfield
Beach, Florida 33441 (collectively the "Parties").
WHEREAS, CKP, Fight Night and Byrd are parties to an Exclusive Promotional
Agreement dated January 28, 1999, as amended by that certain Modification
Agreement dated May 31, 1999 (collectively, the "EPA");
WHEREAS, CKP has entered into an agreement with DKP (the "DKP Agreement")
relating to an assignment of its interest in the EPA, subject to the consent of
Byrd and Fight Night;
WHEREAS, simultaneously with the execution of this Agreement, Byrd, Fight
Night and DKP will enter into an agreement dated as of August 14, 2002 (the "DK
Byrd Agreement) relating to the promotion of Byrd's boxing career; and
WHEREAS, the Parties enter into this Agreement to resolve any and all
matters relating to the promotion of Byrd's boxing career.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Assignment. Effective on the date hereof, notwithstanding anything in
the EPA to the contrary, the Parties hereby agree that CKP sells, transfers,
conveys and assigns all of CKP's rights, title, obligations and interest in and
to the EPA to DKP (the "Assignment") and the Parties hereby agree that paragraph
18 of the EPA is hereby amended to permit the Assignment. Notwithstanding
anything in this Agreement to the contrary, (i) the rights and obligations of
Fight Night, DKP and Byrd under the DK Byrd Agreement shall not be affected in
any way whatsoever by this Agreement and (ii) the DKP Agreement (and any and all
obligations thereunder) shall terminate effective immediately upon the execution
of this Agreement, provided that in consideration for the Assignment, CKP shall
be entitled to retain the payment made by DKP pursuant to the DKP Agreement and
DKP hereby releases and discharges any claims to such amounts.
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2. Releases.
a. Byrd, for himself, his heirs, executors, administrators,
representatives, agents, successors, and assigns (the "Byrd Group"), hereby
releases and discharges CKP and Fight Night, and each of their parent companies
at any level, their respective subsidiaries, affiliates, partners, related
entities, officers, directors, representatives, shareholders, agents, employees,
successors and/or assigns from any claim, demand, action, cause of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, obligations, controversies, agreements,
promises, variances, trespasses, damages, and judgments whatsoever
(collectively, the "Byrd Claims"), known or unknown, in law, admiralty or
equity, Byrd Group ever had, now has or hereafter can, shall or may have from
the beginning of time to the date of this Agreement, including, without
limitation, any Byrd Claims relating to the EPA, DKP Agreement, the lawsuit
involving Adolpho Washington ("Washington") pending in the US District Court,
Northern District of Indiana, Hammond Division, designated as Case Number 2:01
CV 351 (the "Washington Litigation"), the lawsuit involving Byrd and the IBF
(the "IBF Litigation"), CKP's relationship with America Presents Boxing, LLC
("APB"), CKP's payment to a designee of APB, The Regent, in connection with
Byrd's release from a bout with Washington (the "AP Matter") or the upcoming
purse bid (the "Purse Bid") for the bout relating to the IBF heavyweight title,
as applicable. In addition, the Byrd Group hereby releases and discharges the
DKP Group (as defined below) from any Byrd Claims relating to the DKP Agreement.
b. CKP, for itself, its parent companies at any level, subsidiaries,
affiliates, partners, related entities, officers, directors, shareholders,
agents and/or employees (collectively, the "CKP Group"), hereby releases and
discharges Fight Night and Byrd, and each of their parent companies at any
level, their respective subsidiaries, affiliates, partners, related entities,
officers, directors, representatives, shareholders, agents, employees,
successors and/or assigns from any claim, demand, action, cause of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, obligations, controversies, agreements,
promises, variances, trespasses, damages, and judgments whatsoever
(collectively, the "CKP Claims"), known or unknown, in law, admiralty or equity,
CKP Group ever had, now has or hereafter can, shall or may have known or
unknown, which arose at any time from the beginning of time to the date of this
Agreement, including, without limitation, any CKP Claims relating to the EPA, DK
Byrd Agreement, IBF Litigation and Purse Bid, as applicable. In addition, the
CKP Group hereby releases and discharges the DKP Group (as defined below) from
any CKP Claims relating to the DKP Agreement and DK Byrd Agreement or otherwise
relating to Byrd.
c. Fight Night, for itself, its parent companies at any level,
subsidiaries, affiliates, partners, related entities, officers, directors,
shareholders, agents and/or employees (collectively, the "Fight Night Group"),
hereby releases and discharges CKP and Byrd, and, as applicable, each of their
parent companies at any level, their respective subsidiaries, affiliates,
partners, related entities, officers, directors, representatives, shareholders,
agents, employees, successors and/or assigns from any claim, demand, action,
cause of action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, obligations, controversies,
agreements, promises, variances, trespasses, damages, and judgments whatsoever
(collectively, the "Fight Night Claims") known or unknown, in law, admiralty or
equity, Fight Night Group ever had, now has or hereafter can, shall or may have
known or unknown, which arose at any time from the beginning of time to the date
of this Agreement including, without limitation, any Fight Night Claims relating
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to the EPA, DKP Agreement, the Washington Litigation, the IBF Litigation, CKP's
relationship with APB, the AP Matter or the Purse Bid, as applicable. In
addition, the Fight Night Group hereby releases and discharges the DKP Group (as
defined below) from any Fight Night Claims relating to the DKP Agreement.
d. DKP, for itself, its parent companies at any level, subsidiaries,
affiliates, partners, related entities, officers, directors, shareholders,
agents and/or employees (collectively, the "DKP Group"), hereby releases and
discharges the CKP Group from any claim, demand, action, cause of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, obligations, controversies, agreements, promises,
variances, trespasses, damages, and judgments whatsoever (collectively, the "DKP
Claims"), known or unknown, in law, admiralty or equity, DKP ever had, now has
or hereafter can, shall or may have known or unknown, which arose at any time
from the beginning of time to the date of this Agreement relating to the EPA,
DKP Agreement and DK Byrd Agreement or otherwise relating to Byrd.
e. The Parties hereby settle, release, and agree to indemnify, defend
and hold one another harmless from any claim, demand, action, cause of action,
or suits brought by or in the name of their respective heirs, executors,
administrators, agents, representatives, successors, assigns, parent companies
at any level, subsidiaries, affiliates, partners, related entities, officers,
directors, shareholders, agents and/or employees, (the "Related Entities") of
any kind, type or nature, including the payment of reasonable attorneys' fees
and court costs, hereafter brought or threatened against the Parties by the
respective Related Entities relating to or in connection with any of the matters
referred to herein.
f. This Agreement shall not apply to rights or claims that may arise
after the Parties execute this Agreement.
3. Payments. CKP shall make a payment on the date hereof to Byrd and Fight
Night in an aggregate amount equal to $112,500, such payment to be in the form
of a bank certified check made payable to DKP which will deliver a check to
Fight Night in the same amount. The Parties agree that the payments made
pursuant to this Agreement shall constitute full, final, and complete settlement
of any monies, liabilities, or other obligations claimed to be owed to each
respective party. In addition, CKP agrees that any outstanding amounts owed to
Greenberg Traurig as of this date relating to the IBF Litigation shall be for
the account of CKP. CKP shall also be responsible for the $50,000 payment to
Washington in order to settle the Washington Litigation on behalf of Byrd and
HBO. Byrd agrees to take all necessary action to execute the Voluntary
Settlement Agreement and General Release in connection with the Washington
Litigation (the "Washington Release"), such Washington Release to be
substantially in the form provided to Byrd's attorney, John Hornewer, on the
date hereof. In the event that the Washington Litigation continues against Byrd,
CKP shall indemnify and hold harmless Byrd from any liabilities resulting
therefrom, provided that if the Washington Litigation continues as a result of
Byrd's unwillingness to execute the Washington Release, CKP's shall have no
obligation to indemnify and hold harmless Byrd, and Byrd shall indemnify and
hold harmless CKP from any liabilities, costs or losses resulting therefrom. At
the request of CKP, each of Byrd and Fight Night agrees to cooperate in any
potential lawsuit commenced by CKP involving the AP Matter provided that the
reasonable expenses of each party shall be paid by CKP. Fight Night and Byrd
hereby acknowledge and agree that any amounts recovered by CKP in the AP Matter
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will be solely for the account of CKP. CKP shall have no claims against any
amounts received by Byrd or Fight Night in connection with the IBF Litigation.
4. Confidentiality. The Parties will keep all terms and conditions of this
Agreement and the DKP Agreement confidential and will not disclose any
information concerning the Agreement and the DKP Agreement to any third party
(other than to its employees and agents, in their capacity as such, on a
need-to-know basis) except (i) to the extent necessary to comply with any
applicable law, rule or regulation or the valid order of a court of competent
jurisdiction, (ii) as part of normal reporting or review procedure to its banks,
auditors, attorneys and similar professionals, provided that such banks,
auditors, attorneys and similar professionals agree to be bound by the
provisions of this paragraph, and (iii) in order to enforce its rights pursuant
to this Agreement. CKP and DKP agree to furnish a copy of the DKP Agreement to
Byrd and Fight Night simultaneously with the execution of this Agreement.
Subject to the first sentence of this paragraph 4, the parties shall mutually
agree in writing to any press release or announcement ("Press Release") relating
to this Agreement, the EPA, or the DK Byrd Agreement prior to the release of
such Press Release.. Any violation of this confidentiality provision shall be
deemed a breach of this Agreement and the breaching party(ies) shall be liable
to the non-breaching party(ies) for all actual and consequential damages
resulting from the breach.
5. Application. This Agreement also shall apply to, and inure to the
benefit of, the predecessors, successors, agents, representatives and assigns of
Byrd, CKP, DKP and Fight Night and past, present, or future employees, agents,
representatives, officers, or directors of Byrd, CKP, DKP and Fight Night.
6. Severability. The Parties explicitly acknowledge and agree that the
provisions of this Agreement are both reasonable and enforceable. The provisions
of this Agreement are severable, and the invalidity of a provision (or any part
thereof) shall not affect or limit the enforceability of the remaining
provisions. Should any provision (or any part thereof) be held unenforceable for
any reason, then such provision (and any part thereof) shall be enforced to the
maximum extent permitted by law.
7. Applicable Law/Venue. The terms, enforceability, and effect of this
Agreement shall be interpreted, enforced, and governed under the law of the
State of New York, without regard to New York choice of law principles or
conflicts of law principles. Venue for any cause of action arising out of this
Agreement or any right, obligations, or matters addressed by this Agreement
shall be in New York.
8. Knowledge and Understanding. The Parties, and each of them, represent
that in executing this Agreement, they have each received independent legal
advice from the legal counsel of their own independent selection, and have
relied solely upon the advice and recommendation of such legal counsel and upon
their own independent judgment, belief and knowledge. The Parties acknowledge
that they are fully aware of their respective rights, and have carefully read
and fully understand all provisions of this Agreement before signing.
9. Complete Agreement. Each party hereto represents and warrants that in
making this Agreement it has relied solely on its own investigation and judgment
and is not relying on any representation made by the other party, its
representatives or attorneys, except for those representations specifically
contained herein. This Agreement sets forth the entire agreement between the
Parties hereto, and fully supersedes any and all prior or contemporaneous
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agreements or understandings between the parties hereto pertaining to the
subject matter hereof. Any alteration, amendment, change or addition to this
Agreement shall not be binding upon any party unless set forth in writing and
signed by the party against whom such amendment, changes or additions are sought
to be enforced.
10. Attorneys' Fees. In the event of litigation between any of the Parties
hereto in respect to this Agreement or any provision hereof, the prevailing
party shall be entitled to recover from such other party or parties its
reasonable attorneys' fees and costs incurred in connection therewith.
11. Integration. This Agreement is intended to and does constitute the
complete and final expression of the agreement of the Parties with respect to
the subject matter hereof. Any and all prior and contemporaneous statements,
negotiations, discussions, promises, agreements, conditions, and covenants are
superseded and replaced by this Agreement. Further this Agreement was drafted
mutually by the Parties and shall not be interpreted favoring any party over the
other.
12. Capacity. The Parties state that they have carefully read the
foregoing Agreement and know the contents thereof, they sign the same as
their own free act, and that they are empowered and authorized to bind
themselves and/or their principles to the terms of this Agreement.
13. Counterparts/Facsimile. This Agreement may be signed in counterparts,
each of which shall be deemed an original and all of which shall together
constitute one and the same instrument. Facsimile signatures shall be as
effective as originals.
14. Notices. Any notice required or desired to be given hereunder shall be
in writing and sent (i) postage prepaid by certified mail, return receipt
requested, (ii) by prepaid telegram or (iii) by confirmed facsimile, addressed
to the respective addresses first above written.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CEDRIC KUSHNER PROMOTIONS, LTD.
By:_____________________ ___________________________
Cedric Kushner, President Witness
FIGHT NIGHT AT THE PALACE, INC.
By:___________________________ ___________________________
Bill Kozerki, President Witness
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By:___________________________ ___________________________
CHRIS BYRD Witness
DON KING PRODUCTIONS, INC.
By:__________________________ __________________________
Don King, President Witness
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