TERMINATION AND ASSIGNMENT
AND ASSUMPTION AGREEMENT
THIS TERMINATION AND ASSIGNMENT AND ASSUMPTION
AGREEMENT (this "Agreement") is made and entered into October 20,
2006, by and among ZONE MINING LIMITED, a Nevada corporation
(“Parent”), ZM ACQUISITION CORP., a Delaware
corporation and wholly-owned subsidiary of Parent (“Merger
Sub”), and DRIVEITAWAY, INC., a Delaware corporation
(“DIA”), TRIDENT GROWTH FUND, L.P., a Delaware limited
partnership (“Trident”).
Recitals
WHEREAS , Parent, Merger Sub, DIA and Stonewell Partners
LLP, the principal shareholder of DIA (the “Principal
Shareholder”) are parties to that certain Agreement and Plan
of Merger dated as of September 21, 2006 (the “Merger
Agreement”); and
WHEREAS , on September 21, 2006, Parent and Merger Sub
issued a 12% Senior Secured Convertible Debenture in the principal
amount of up to $1,000,000 (the “Parent Debenture”) and
a Common Stock Purchase Warrant (the “Parent Warrant”)
to acquire up to 500,000 shares of Parent’s common stock to
Trident for an aggregate purchase price of $1,000,000 (of which
$800,000 has been advanced by Trident) pursuant to that certain
Securities Purchase Agreement (the “ZM Securities Purchase
Agreement”), dated as of September 21, 2006, by and among
Parent, Merger Sub and Trident (the “Trident
Financing”); and
WHEREAS , in connection with the Trident Financing, (i)
each of Parent and Merger Sub granted a first priority lien on all
of their respective assets in favor of Trident pursuant to that
certain Security Agreement, dated as of September 21, 2006, by and
among Parent, Merger Sub and Trident (the “ZM Security
Agreement”), and (ii) DIA granted a first priority lien on
all of its assets in favor of Trident pursuant to that certain
Security Agreement, dated as of September 21, 2006, by and between
DIA and Trident (the “DIA Security Agreement”);
and
WHEREAS , Parent agreed to loan up to $1,000,000 (of
which $800,000 has been advanced by Parent) to DIA pursuant to that
certain Promissory Note dated September 21, 2006 issued by DIA in
favor of Parent (the “DIA Note); and
WHEREAS , Parent has agreed to subordinate the
obligations arising under the DIA Note to those obligations arising
out of the Trident Financing pursuant to that certain Subordination
Agreement, dated as of September 21, 2006, by and between Parent
and Trident (the “Subordination Agreement”);
and
WHEREAS , Parent, Merger Sub, DIA and the Principal
Shareholder have mutually agreed to terminate the Merger Agreement;
and
WHEREAS , Parent and DIA wish to amend the terms of the
DIA Note; and
WHEREAS , Parent and Merger Sub wish to satisfy all of
their obligations to Trident under the Trident Financing (the
“Trident Debt”), including cancellation of the Parent
Debenture and Parent Warrant, by (i) assigning all of its right,
title and interest in and to the DIA Note to Trident, (ii) the
issuance by Parent to Trident of a Common Stock Purchase Warrant
(the “New Warrant”) to acquire 100,000 shares of Parent
Common Stock, and (iii) the issuance by DIA to Trident of 200,000
shares of the common stock of DIA (the “DIA Shares”);
and
WHEREAS , Trident has agreed to accept the items
described in clauses (i) - (iii) above in satisfaction of such
obligations; and
WHEREAS , the Boards of Directors of Parent, Merger Sub
and DIA have approved, and deem it advisable and in the best
interests of their respective companies and stockholders to
consummate, the transactions contemplated hereby upon the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE , in consideration of the foregoing premises and
the representations, warranties, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE
I
ASSIGNMENT AND ASSUMPTION;
DISCHARGE; TERMINATION
1.1 Assignment
and Assumption; Discharge; Termination.
Upon the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined below),
the following transactions (the “Transactions”) shall
be deemed to be consummated:
(a) Parent and
DIA shall amend the DIA Note by execution and delivery of the
Amended and Restated Note in the form attached hereto as Exhibit
A (the “Amended and Restated DIA Note”);
(b) Parent
hereby assigns all of it right, title and interest in and to the
Amended and Restated DIA Note to Trident and Trident hereby accepts
such assignment and the New Warrant and the DIA Shares in full and
complete satisfaction of any and all obligations of Parent or
Merger Sub to Trident related to the Trident Debt and shall release
Parent and Merger Sub from their respective obligations related to
the Trident Debt;
(c) In
consideration of the forgoing assignment, Parent, Merger Sub and
Trident shall terminate the ZM Securities Purchase Agreement, the
ZM Security Agreement and the Subordination Agreement and Trident
shall deliver the Parent Debenture and Parent Warrant to Parent for
cancellation; and
(d) DIA and
Trident shall amend the DIA Security Agreement by execution and
delivery of the Amended and Restated DIA Security Agreement in the
form attached hereto as Exhibit B (the “Amended and
Restated DIA Security Agreement”); and
(e) DIA shall
issue the DIA Shares to Trident.
1.2 Closing
Date; Deliveries.
The closing of the Transactions (the
“Closing”) shall take place concurrent with the
execution hereof. At the
