EXHIBIT 10.5
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CONSULTING AGREEMENT
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This AGREEMENT (this "Agreement") is made as of February __, 2007, is
made by and between Deep Field Technologies, Inc., a New Jersey corporation (the
"Company"), having an office at 000 Xxxxxxx 00, Xxxxxxx, Xxx Xxxxxx 00000 and
iVoice, Inc., a New Jersey corporation, having an office at 000 Xxxxxxx 00,
Xxxxxxx, Xxx Xxxxxx 00000 (the "Consultant").
W I T N E S S E T H :
WHEREAS, the Company has entered into an Amended and Restated
Securities Exchange Agreement (the "Securities Exchange Agreement"), dated as of
January 25, 2007, by and among the Company, the joint venture participants named
therein and 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 which the Company has agreed to exchange certain of
its shares for joint venture interests in Jinche; and
WHEREAS, the Company now desires to engage the services of the
Consultant, and the Consultant desires to render such services.
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. Consulting Services. During the term of this Agreement, the Consultant
shall provide general corporate finance advisory and other similar consulting
services to the Company, subject to the terms and conditions hereinafter set
forth (the "Services"). The Consultant agrees that it will perform the Services
faithfully and to the best of its ability, subject to the general supervision of
the Board of Directors of the Company.
2. Term. The term of the Consultant's engagement hereunder shall commence
on the date hereof (the "Commencement Date") and shall continue for a term of
six (6) months.
3. Compensation.
In consideration of the services to be rendered by the Consultant
hereunder, the Company agrees to pay the Consultant, and the Consultant agrees
to accept from the Company, Four Million (4,000,000) shares of the Company's
Class A Common Stock ("DFT Common Stock") which DFT Common Stock shall be issued
to the Consultant on the Commencement Date and which DFT Common Stock shall be
deemed fully earned and not redeemable by the Company, including upon any
termination of this Agreement, after such issuance.
4. Termination. This Agreement may be terminated by the Company or by the
Consultant upon thirty (30) days' prior written notice of termination to the
other party hereto, which notice shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Consultant's
services.
5. Conditions to Effectiveness of Consulting Agreement.
The closing (as defined in and contemplated by the Securities Exchange
Agreement) shall have occurred.
6. Non-Disclosure of Confidential Information and Non-Solicitation.
(a) The Consultant acknowledges that the Company maintains as secret
and confidential certain information (i) relating to the products, processes,
designs and/or systems used by the Company and (ii) relating to the customers
and employees of the Company (such information hereafter referred to as
"Confidential Information"). The Consultant further acknowledges that such
Confidential Information is of great value to the Company. The parties hereto
recognize that in the course of providing services to the Company, the
Consultant, by reason of its engagement by the Company, may be exposed to
certain Confidential Information. The parties confirm that it is reasonably
necessary to protect the Company's goodwill, and accordingly, the Consultant
agrees that in the event the Consultant is exposed to any Confidential
Information the Consultant will not directly or indirectly (except where
authorized by the Board of Directors of the Company for the benefit of the
Company):
(i) At any time during or after the term of this Agreement,
divulge to any persons, firms or corporations, other than the Company
(hereinafter referred to collectively as "third parties"), or use or allow or
cause or authorize any third parties to use, any such Confidential Information
other than with respect to the Company's unified messaging business (the
"Unified Messaging Business");
(ii) At any time during the term of this Agreement and for a
period of six (6) months after the termination of this Agreement, solicit or
cause or authorize directly or indirectly to be solicited, for or on behalf of
the Consultant or third parties, any business from persons, firms, corporations
or other entities who were at any time within six (6) months prior to the
termination of this Agreement, customers of the Company other than with respect
to the Unified Messaging Business;
(iii) At any time during the term of this Agreement and for a
period of six (6) months after the termination of this Agreement, accept or
cause or authorize directly or indirectly to be accepted, for or on behalf of
the Consultant or third parties, any business from any such customers of this
Company other than with respect to the Unified Messaging Business;
(iv) At any time during the term of this Agreement and for a
period of six (6) months the termination of this Agreement, solicit or cause or
authorize directly or indirectly to be solicited for employment, for or on
behalf of the Consultant or third parties, any persons (excluding any
individuals residing in the same immediate primary residence as the shareholders
of the Consultant, and/or the immediate family members of the Consultant's
shareholders) who were at any time within six (6) months prior to the cessation
of the Consultant's duties hereunder, employees of the Company other than
employees related to the Unified Messaging Business; and
(v) At any time during the term of this Agreement and for a period
of six (6) months after the termination of this Agreement, employ or cause or
authorize directly or
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indirectly to be employed, for or on behalf of the Consultant or third parties,
any such employees of the Company other than employees related to the Unified
Messaging Business.
(b) The Consultant agrees that, upon termination of this Agreement by
the Company for any reason, the Consultant shall forthwith deliver up to the
Company any and all records, drawings, notebooks, keys and other documents and
material, and copies thereof in its possession or under its control which is the
property of the Company other than in connection with the Unified Messaging
Business.
(c) The Consultant agrees that any breach or threatened breach by the
Consultant of any provision of this Section 6 shall entitle the Company, in
addition to any other legal remedies available to it, to enjoin such breach or
threatened breach through any court of competent jurisdiction. The parties
hereto understand and intend that each restriction agreed to by the Consultant
herein above shall be construed as separable and divisible from every other
restriction, and that the unenforceability, in whole or in part, of any
restriction will not affect the enforceability of the remaining restrictions,
and that one (1) or more or all of such restrictions may be enforced in whole or
in part as the circumstances warrant.
(d) For the purposes of this Section 6, the term "Company" shall mean
and include any and all subsidiaries, parents and affiliated corporations of the
Company in existence from time to time but shall exclude the Unified Messaging
Business.
7. Independent Contractor. It is the express intention of the parties
hereto that the Consultant render its services hereunder in the capacity of an
independent contractor. As such, the parties hereto agree that the nature of
their relationship shall be as follows:
(a) In rendering the services to be rendered by the Consultant
hereunder, the Consultant shall be an independent contractor, and not an
employee, agent or representative of the Company. In particular, neither the
Consultant nor any person employed by it shall be considered as having an
employee status or being entitled to participate in any employee plans, employee
arrangements or employee distributions of or by the Company.
(b) As an independent contractor, the Consultant shall be solely
responsible for determining the means and methods for performing the services
described herein and shall have complete charge and responsibility for persons
employed by the Consultant and engaged in the performance of the specified work,
if any. All of the Consultant's activities will be at its own risk and it shall
have sole responsibility for arrangements to guard against physical, financial
and other risks, as appropriate.
(c) The Consultant shall not act as an agent for the Company and shall
not be authorized or entitled to enter into any agreements on behalf of the
Company, incur any obligations on behalf of the Company, or bind the Company in
any matter whatsoever.
(d) Except as otherwise required by law, the Company shall not be
required to withhold any sums, from the payments to be made to the Consultant,
for Social Security or other federal, state or local tax liabilities or
contributions, and all withholding, liabilities, and contributions shall be
solely the Consultant's responsibility.
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(e) Notwithstanding the intention of the parties hereto and agreement
that the Consultant be an independent contractor and that neither the Consultant
nor any employee thereof shall be an employee of the Company, the parties hereto
recognize that the applicable law and proper application thereof is not always
clear. The Consultant (i) acknowledges and agrees that if the Consultant or any
person employed by him should be classified as an employee of the Company under
any such law, the Consultant and any such employee of the Consultant shall
remain ineligible to participate in any Company pension, profit-sharing
(including 401(k)), health, life, or other employee benefit plans; (ii)
expressly waives any right to any such benefits; (iii) acknowledges and agrees
that the fees to be paid to the Consultant under this Agreement take into
account the fact that the Consultant and any employees of the Consultant are
ineligible in all events to participate in such plans, and constitute part of
the consideration for this waiver; and (iv) acknowledges and agrees that
policies and practices of the Company with respect to its employees do not apply
to the Consultant and any employees of the Consultant, and the terms of the
Consultant's engagement by the Company are governed solely by the express
provisions of this Agreement.
8. Indemnification. The Company shall defend, indemnify the Consultant
against and hold the Consultant harmless from any losses it may incur for which
it has not otherwise been reimbursed in respect of any arbitration, proceeding
or suit, whether civil, criminal, administrative or investigative, by reason of
any acts arising out of its activities pursuant to this Agreement, if such
activities were performed in good faith pursuant to this Agreement, and so long
as it was not in breach of this Agreement. The Consultant shall not be entitled
to any indemnification hereunder resulting from its gross negligence or willful
misconduct or for any breach of fiduciary duty or with respect to any criminal
action or proceeding, except in the event it had reason to believe its conduct
was unlawful. In connection with this indemnification, the Company shall advance
expenses for which indemnification may be claimed as such expenses are incurred,
subject to the requirement that the Consultant provide an undertaking to repay
such advances if it is ultimately determined that the Consultant is not entitled
to indemnification. The provisions of this Section 8 shall survive the
termination or expiration of this Agreement.
9. 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 the Consultant, including
but not limited to any past and future compensation due under the term of this
Agreement, any bonus, loans and other amounts owing from the Company to the
Consultant, shall accelerate and become due and payable. 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.
10. 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
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foregoing, this Agreement shall be binding upon the Company and Consultant and
their respective successors and permitted assigns.
11. 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 the Consultant 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. The obligations of the Company under Section 3 shall survive the
expiration of the term of this Agreement.
12. 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.
13. 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.
14. 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;
provided, however, that the Consultant's compensation may be increased at any
time by the Company without in any way affecting any of the other terms and
conditions of this Agreement, which in all other respects shall remain in full
force and effect.
15. Negotiated Agreement. This Agreement has been negotiated and shall not
be construed against the party responsible for drafting all or parts of this
Agreement.
16. 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 the Consultant at the Consultant's address set
forth on the first page of this Agreement 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 Xxxxxxxxx Xxxxxx LLP, 000 Xxxxx
Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx,
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.
17. 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
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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.
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IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first above written.
COMPANY:
DEEP FIELD TECHNOLOGIES, INC.
By:
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Name:
Title:
CONSULTANT:
IVOICE, INC.
By:
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Name: Xxxxx Xxxxxxx, its President
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