SETTLEMENT AGREEMENT AND GENERAL RELEASE
SETTLEMENT
AGREEMENT AND GENERAL RELEASE
This
Settlement Agreement and Release (the “Agreement”) is made as of this
15th
day of
August 2007 (the “Effective Date”) by and between BERRY-SHINO SECURITIES, INC.
(“BSSI”), an Arizona corporation having its principal place of business at 00000
X. 00xx
Xxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and its affiliates, subsidiaries and
parents, on the one hand, and NEW DRAGON ASIA CORPORATION (“NDAC”), a
corporation organized and existing under the laws of Florida having a principal
place of business at 2808 International Chamber of Xxxxxxxx Xxxxx, Xxxxx
Xxxxx
Xxxx, Xxxxxxxx, Xxxxx, and its affiliates, subsidiaries and parents, on the
other hand (each of the foregoing, along with their successors and assigns,
a
“Party” and collectively, the “Parties”).
WHEREAS,
on or about July 16, 2003 and March 18, 2004, BSSI alleges it entered into
private placement agreements with NDAC (the “Private Placement Agreements”),
pursuant to which BSSI was to render services as NDAC’s private placement
agent;
WHEREAS,
BSSI alleges it is entitled to certain warrants (“Warrants”) to purchase Class A
Common Stock, $.0001 par value (“Common Stock”), as a portion of its placement
agency fee pursuant to the terms of the Private Placement
Agreements;
WHEREAS,
NDAC disputes BSSI’s claims concerning entitlement to the Warrants and the
Parties hereto desire to resolve this dispute (the “Dispute”) without litigation
and its attendant costs and without admission of liability by NDAC;
NOW,
THEREFORE, in consideration of the mutual covenants and promises hereinafter
made, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby mutually acknowledged, the Parties agree as follows:
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1. Within
thirty (30) days of the execution and delivery of this Agreement by all Parties,
NDAC shall issue to BSSI an aggregate of 275,000 restricted shares of Class
A
Common Stock of NDAC (the “Restricted Shares”). When issued, the Restricted
Shares will be fully paid and non-assessable and have been issued pursuant
to an
exemption from registration under the Securities Act of 1933, as amended
(the
“Securities Act”). The certificate evidencing the Restricted Shares shall bear a
restrictive legend, prohibiting transfer except in accordance with applicable
security laws, and stock transfer instructions should be maintained with
respect
thereto. The certificates shall bear a legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED EXEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAW OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE
THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION OF
COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY,
THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION
FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURTIES LAWS.
BSSI
shall be permitted to transfer and/or sell the Restricted Stock as permitted
under Rule 144 or another exemption from registration under the Securities
Act.
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2. BSSI,
on
behalf of itself and its affiliates, agents, employees, officers, directors,
members, subsidiaries and parents, and their respective successors and assigns
(the “Releasors”), hereby irrevocably and completely release and discharge NDAC,
its present or former affiliates, subsidiaries, parents, directors, officers,
shareholders, employees and representatives, and their respective successors
and
assigns (the “Releasees”) from, and hereby waive, any and all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, complaints,
covenants, contracts, controversies, agreements, promises, damages, judgments,
claims, counterclaims, demands, losses and other liabilities whatsoever,
in law
or equity, which any Releasor, its directors, officers, employees, agents
and
representatives, and their respective successors and assigns, ever had, now
has,
or hereafter can, shall or may have for, upon or by reason of any matter,
cause
or thing whatsoever from the beginning of the world to the Effective Date,
whether presently known or unknown, asserted or unasserted, against any
Releasee, including, without limitation, any and all claims arising out of,
related to, or connected with the Dispute, the Warrants, the Common Stock,
the
Private Placement Agreements, the Restricted Shares or any other agreement
between the Parties.
3. Neither
Party hereto shall issue any press release or statement with regard to the
terms
and provisions of this Agreement without the consent of the other, nor shall
any
Party disclose to any third party (other than its respective employees,
directors and officers, in their capacity as such, on a need-to-know basis)
any
information with respect to the financial terms and/or provisions of this
Agreement except: (a) to the extent necessary to comply with local, state
and
federal law (including, but not limited to, federal securities laws) or a
valid
court order of a court with competent jurisdiction, in which event the Party
making such disclosure
shall so
notify the other Party as promptly as is practicable (if possible, prior
to
making such disclosure) and shall seek confidential treatment of such
information; (b) to its parent, subsidiary or other affiliated companies,
their
banks, auditors and attorneys and similar professionals (collectively, its
“Permitted Recipients”), provided that the disclosing Party shall be liable to
the other Party in the event that any of its Permitted Recipients disclose
any
information that the disclosing Party would be prohibited from disclosing
pursuant to this paragraph; (c) in order to enforce its rights pursuant to
this
Agreement; and (d) to a bona fide prospective or an actual buyer or financier
as
well as the Permitted Recipients thereof.
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4. Each
Party to this Agreement shall have the express right to assign all duties,
obligations, privileges and rights granted hereunder to a third party with
prior
written consent of the other Party hereto. The provisions of this Agreement
shall bind and inure to the benefit of each of the Parties hereto, their
affiliates, subsidiaries, parents, successors, and assigns.
5. Each
Party to this Agreement represents that it has read and understands the
foregoing Agreement; that it has had the advice of counsel in entering into
this
Agreement; that it has the capacity and right to enter into this Agreement;
and
that it accepts the duties, obligations, privileges, and rights granted
hereunder.
6. If
any
provision of this Agreement is held to be invalid, illegal or unenforceable,
in
whole or in part, such provision shall be modified to the minimum extent
necessary to make it legal, valid and enforceable, and the remaining provisions
shall not in any way be affected or impaired. Neither this Agreement nor
any
provision hereof may be waived, amended or modified, except by an agreement
in
writing signed by the Party sought to be bound thereby. This Agreement sets
forth the entire and exclusive agreement between the Parties and fully
supersedes any and all prior or contemporaneous written, oral or other
agreements or understandings between them pertaining to the subject matter
hereof. Each Party represents that it has not relied on any representation,
warranty or promise that is not specifically set forth in this
Agreement.
7. This
Agreement may be executed in multiple original counterparts, each of which
is
equally admissible in evidence and shall be deemed to be one and the same
instrument. This Agreement shall not take effect until each Party has signed
a
counterpart of this Agreement. Telecopy signatures or signatures delivered
by
any other electronic device will be relied upon and have the same force and
effect as original signatures in all respects, regardless as to whether or
not
the parties subsequently circulate duplicate originals for
signature.
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8. This
Agreement, including the performance and enforceability hereof, and its subject
matter is governed by and will be construed in accordance with the laws of
the
State of New York, without reference to the principles of conflicts of law.
9. Any
individual signing this Agreement on behalf of a Party represents and warrants
that he or she has the full authority to do so.
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
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BERRY-SHINO
SECURITIES, INC.
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NEW
DRAGON ASIA CORPORATION
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By:
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/s/ Xxxxxx X. Xxxxx |
By:
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/s/ Xxxxx Xxx | |
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Name: Xxxxxx X. Xxxxx |
Name: Xxxxx Xxx |
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Title:
President
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Title:
Chief Financial Officer
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