EXHIBIT 10.8
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TERMINATION & SETTLEMENT AGREEMENT
This AGREEMENT (this "Agreement") is made as of February __,
2007, by and between Deep Field Technologies, Inc., a New Jersey corporation
(the "Company"), having an office at 750 Rt. 34, Matawan, New Jersey 07747 and
Jerome Mahoney, an individual, having an office at 750 Rt. 34, Matawan, New
Jersey, 07747 ("Mahoney").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, Mahoney 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, Mahoney is required to resign
as Chairman of the Board, and the Employment Agreement, dated August 3, 2004, by
and between the Company and Mahoney (as amended, the "Employment Agreement"), is
required to be terminated; and
WHEREAS, the Company and Mahoney now desire to settle all
obligations owing by the Company to Mahoney, including, without limitation,
obligations under the Employment Agreement and that certain Promissory Note,
dated August 5, 2005, made by the Company in favor of Mahoney (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, __________________ Dollars ($____________) in accrued and unpaid
salary, bonuses and other amounts and One Hundred Ninety Thousand Dollars
($190,000) in principal amount of indebtedness (plus accrued and unpaid interest
in the amount of $____________) is due and owing to Mahoney pursuant to the
Promissory Note (the "Note Obligations"). In full satisfaction of the Note
Obligations, the Company and Mahoney 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 Mahoney 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 Mahoney 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"). Mahoney hereby agrees to forego
receipt of such compensation and to release the Company from such obligation.
(c) Mahoney 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. Mahoney 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 Mahoney. 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 Mahoney 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 Mahoney 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 Mahoney 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 Kirkpatrick &
Lockhart Nicholson Graham LLP, 201 South Biscayne Blvd., Suite 2000, Miami, FL
33131, Attention: Clayton E. Parker, 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:
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Name:
Title:
JEROME MAHONEY, an individual
By:
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Name: Jerome Mahoney
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