TERMINATION & SETTLEMENT AGREEMENT
This AGREEMENT (this "Agreement") is made as of February 13, 2007,
by and between Deep Field Technologies, Inc., a New Jersey corporation (the
"Company"), having an office at 000 Xx. 00, Xxxxxxx, Xxx Xxxxxx 00000 and Xxxxxx
Xxxxxxx, an individual, having an office at 000 Xx. 00, Xxxxxxx, Xxx Xxxxxx,
00000 ("Xxxxxxx").
WITNESSETH:
WHEREAS, prior to the date hereof, Xxxxxxx was employed as the
Chairman of the Board of Directors of the Company (the "Board");
WHEREAS, the Company has entered into a Securities Exchange
Agreement (as defined below) whereby it has agreed to exchange certain of its
shares for joint venture interests in Beijing Sino-US Jinche Yingang Auto
Technological Service Limited, a cooperative joint venture organized under the
laws of The People's Republic of China ("Jinche"), pursuant to the Securities
Exchange Agreement;
WHEREAS, as a condition to the consummation of the transaction
contemplated by the Securities Exchange Agreement, Xxxxxxx is required to resign
as Chairman of the Board, and the Employment Agreement, dated August 3, 2004, by
and between the Company and Xxxxxxx (as amended, the "Employment Agreement"), is
required to be terminated; and
WHEREAS, the Company and Xxxxxxx now desire to settle all
obligations owing by the Company to Xxxxxxx, including, without limitation,
obligations under the Employment Agreement and that certain Promissory Note,
dated August 5, 2005, made by the Company in favor of Xxxxxxx (the "Promissory
Note").
NOW, THEREFORE, in consideration of the premises, the parties agree
as follows:
1. Outstanding Obligations and Settlement.
(a) The Company recognizes and acknowledges that, as of the Closing
Date, One Hundred Sixty-Two Thousand and Seven Hundred Dollars ($162,700) in
accrued and unpaid salary, bonuses and other amounts due and owing to Xxxxxxx
pursuant to the Promissory Note (collectively, the "Note Obligations") are due
and owing by the Company to Xxxxxxx. In full satisfaction of the Note
Obligations, the Company and Xxxxxxx shall execute and deliver a consulting
agreement, substantially in the form of Exhibit A hereto (the "Consultant
Agreement") pursuant to which the Company shall issue to Xxxxxxx One Million
(1,000,000) shares of the Company's Class A Common Stock, no par value per share
("DFT Common Stock").
(b) The Company recognizes and acknowledges that the Company had
certain outstanding obligations to compensate Xxxxxxx under Section 4(f) of the
Employment Agreement for arranging and structuring the transactions contemplated
by that certain Amended and Restated Securities Exchange Agreement, dated as of
January 25, 2007, by and among the Company, Jinche, and the joint venture
participants (the "JV Participants") named therein (as amended, the "Securities
Exchange Agreement"). Xxxxxxx hereby agrees to forego receipt of such
compensation and to release the Company from such obligation.
(c) Xxxxxxx agrees that any obligation of the Company to pay any
other amount (other than the consideration due under the Consultant Agreement
and the obligations of the Company under Section 1(a) hereof) in connection with
the Employment Agreement and, except as otherwise expressly provided herein, any
such obligation is terminated and of no further force and effect.
2. Termination. The Employment Agreement is hereby terminated, and, upon
the issuance of the shares referred to in Section 1(a), the Note Obligations
shall be deemed satisfied and discharged.
3. Resignation. Xxxxxxx hereby resigns as Chairman of the Board.
4. Assumption by Successor. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the Company or business and/or assets of the Company
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and all obligations of the Company to Xxxxxxx. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid that assumes and agrees to
perform this Agreement by operation of law, or otherwise.
5. Assignment. Neither this Agreement nor any right, obligation or
interest hereunder shall be assignable, transferable or otherwise alienable by
either party or by operation of law or otherwise except with the prior written
consent of the other party. Subject to the foregoing, this Agreement shall be
binding upon the Company and Xxxxxxx and their respective successors and
permitted assigns.
6. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Xxxxxxx and such officer as may be specifically designated
by the Board. No waiver by either party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party that are not set forth in this Agreement.
7. Severance and validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
8. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
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9. Entire Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter hereof, supersedes any
prior agreement between the parties, and may not be changed or terminated
orally. No change, termination or attempted waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party to be bound.
10. Negotiated Agreement. This Agreement has been negotiated and shall not
be construed against the party responsible for drafting all or parts of this
Agreement.
11. Notices. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally or received by united
states registered or certified mail, return receipt requested, postage prepaid,
or by nationally recognized overnight delivery service providing for a signed
return receipt, addressed to Xxxxxxx at his address set forth in the Company's
records and to the Company at the address set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to counsel to the Company, at Xxxxxxxxxxx &
Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP, 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx,
XX 00000, Attention: Xxxxxxx X. Xxxxxx, Esq., or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
12. Governing Law and Resolution of Disputes. All matters concerning the
validity, interpretation and performance of this Agreement shall be governed by
the laws of the State of New Jersey. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association ("AAA") then
in effect. Any judgment rendered by the arbitrator as above provided shall be
final and binding on the parties hereto for all purposes and may be entered in
any court having jurisdiction. The prevailing party in any such dispute or
controversy arising under or in connection with this Agreement shall be entitled
to have all costs, including filing fees, charges billed by the AAA, and legal
fees, paid by the other party hereto.
13. Defined Terms. Capitalized terms used herein and not otherwise defined
have the meanings provided in the Securities Exchange Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Termination and Settlement Agreement as of the date first above written.
THE COMPANY:
DEEP FIELD TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
XXXXXX XXXXXXX, an individual
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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