Exhibit 10.3
TRANSITION AND CONSULTING AGREEMENT
This
Transition and
Consulting Agreement
(the "Agreement") is
made as of
November 2, 2005 by and between MediaMax Technology Corporation, a Nevada
corporation with a principal place of business
at 668 North 44th Street, Suite
233, Phoenix, Arizona 85008 (the "Company"), and Peter H. Jacobs (the
"Consultant").
WHEREAS,
the Consultant is the President and
Chief Executive
Officer of
SunnComm International, Inc., a Nevada corporation with a principal place of
business at 668 North 44th Street, Suite 248, Phoenix, Arizona 85008
("SunnComm");
WHEREAS,
the Company and
SunnComm are parties to an Agreement and Plan of
Merger, dated as of June 11, 2005 (the
"Merger Agreement"),
pursuant to which a
wholly-owned subsidiary of the Company is
anticipated
to merger with and
into
SunnComm with the effect that SunnComm
would become a wholly-owned subsidiary of
the Company (the "Merger");
WHEREAS,
the Consultant was the founder of SunnComm and the Merger
Agreement contemplated that Consultant would
become the Chief Executive Officer
of the Company following the Merger;
WHEREAS, the
Company is currently undertaking a financing (the "Financing")
to fund the operations of both the Company and
SunnComm through the
completion
of the Merger and, as a condition of the
Financing, the
investors participating
in the Financing have required the Company
to hire an industry specialist as its
Chief Executive Officer, thereby requiring Consultant to agree to resign
executive positions with SunnComm and the Company at
the effective time of the
Merger (the "Effective Time");
WHEREAS, the
Company desires to compensate Consultant for his agreement
to
relinquish executive positions with the
Company following the Merger so that the
Financing can be completed, to engage Consultant to provide assistance to the
Company and its Chief Executive
Officer on a
non-executive basis
following the
Effective Time and to serve as the non-executive Chairman of the Board of
Directors of the Company following the
Effective Time; and
WHEREAS,
Consultant is willing to agree not to serve as the Chief
Executive
Officer of the Company following the
Effective Time so that the Financing can be
completed, to assist the Company following the Merger pursuant to the terms
hereof and to service as the non-executive
Chairman of the Board of Directors of
the Company following the Effective
Time;
NOW,
THEREFORE,
in consideration of
the premises and the mutual covenants
hereinafter contained, the Company and
Consultant agree as follows:
SECTION 1.
Engagement.
The Company agrees to
engage Consultant to
assist
the Company's Board of Directors and Chief
Executive Officer in
integrating the
operations of the Company and SunnComm,
developing and
implementing a strategic
plan for the Company and otherwise
assisting the Chief
Executive Officer of the
Company from and after the Effective
Time, and Consultant hereby accepts such
engagement (the "Engagement"). Consultant agrees to commit such
necessary time
as shall be reasonably necessary to perform such
services to the
Company from
and after the Effective Time. During the Term (as defined
below) and for one
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<PAGE>
SECTION 1. Engagement - continued
year thereafter, Consultant shall not
engage in any activity that has a conflict
of interest with the Company, including any
competitive employment, business, or
other activity, and he shall not assist any other
person or organization
that
competes, or intends to compete, with the
Company.
SECTION 2. Term.
The term of the Engagement of Consultant by the Company as
provided in Section 1 shall begin at the
Effective Time and shall continue until
June 30, 2007 (the "Term"), unless earlier
terminated as hereinafter provided.
SECTION
3. Non-Executive Chairman Position. At the Effective Time,
Consultant shall be elected to serve as the
non-executive Chairman
of the Board
of Directors of the Company and shall
serve in such
capacity until the 2007
Annual Meeting of Stockholders of the
Company and thereafter until his successor
is duly elected and qualified.
SECTION 4.
Compensation and Expenses.
(a) Compensation. During the Term, the Company shall pay Consultant a
consulting fee at a monthly rate equal to
one-half the current
monthly salary
consultant receives from SunnComm at the time of execution
of this Agreement.
The consulting fee shall be payable at the
end of each calendar month during the
Term.
(b) Expenses.
The Company shall
reimburse Consultant for all reasonable
out-of-pocket expenses incurred by
Consultant in connection with the business of
the Company and in performance of Consultant's duties under this Agreement.
Notwithstanding the foregoing, the Consultant shall not incur
total expenses in
excess of $1,000 per month without the
prior written approval of the Company.
SECTION 5.
Equity Compensation.
(a) The Put
Right Shares. On or promptly after January 1, 2006, the Company
shall issue to Consultant 10,000,000 shares
of the Common Stock, $.001 par value
per share ("Common Stock"), of the Company (such shares, as the same may be
adjusted by stock split, stock dividend or combination of shares
and including
any dividends or distributions of securities or property paid thereon being
hereinafter referred to collectively as the "Put Right
Shares") for a purchase
price of $.001 per share (or $10,000.00 in the aggregate). Consultant
acknowledges that the fair market value of the Put Right Shares may
exceed the
purchase price therefore and has consulted his
tax advisors with respect to the
Federal and state income tax consequences
of such stock issuance.
(b) Put Right.
Consultant shall have
the right but not the obligation (the
"Put Right") for a period of 30 days
following the second anniversary of the
Effective Time (the "Thirty-Day Window") to require the Company to
repurchase
the Put Right Shares, free and clear of all
liens, proxies, voting
restrictions
and other encumbrances for $.10 per share or $1,000,000
in the aggregate.
The
Consultant may exercise the Put Right by
giving written
notice to the
Company
pursuant to Section 16 of this Agreement at any time during the Thirty-Day
Window. Upon Consultant's exercise of his Put Rights, the Company shall
repurchase the Put Right Shares by lump-sum
payment payable to Consultant within
30 days of the Company's receipt of such
notice of exercise.
(c) Stock
Options. On or prior to November
21, 2005, the Company shall
grant Consultant non-statutory stock options to purchase
10,000,000 shares
of
Common Stock of the Company at $.05 per
share and non-statutory stock options to
purchase 5,000,000 shares of Common Stock
of the Company at $.075 per share. The
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<PAGE>
SECTION 5. Equity Compensation -
continued
foregoing options (collectively, the "Options") shall vest in full as of the
Effective Time.
(d) Restrictions on Transfer. The Consultant agrees that he will not
Transfer (as defined below) any of the Put Right Shares
and any shares held by
Consultant as a result of any exercise of the Options (collectively, the
"Shares"), except in accordance with the terms of this Agreement. The
immediately preceding sentence of this Section shall not
apply to or otherwise
prevent (1) the inter vivos transfer or
assignment by Consultant, voluntarily or
by operation of law, of all of his Shares to
his legal
representative in
the
case of his incompetency, (2) a lifetime or
testamentary transfer of all or part
of the Shares of Consultant to his spouse,
children, grandchildren or a trust or
other entity for the benefit of Consultant
and/or any such other Persons, (3) a
transfer of the Shares to the Consultant's
heirs at law upon Consultant's death,
or (4) a transfer of the Shares to Sunrise Communications, LLC, provided,
however, that in any of the foregoing
permitted cases, each transferee agrees in
writing to be bound by all of the
provisions
of this Agreement, and the term
"Consultant" hereunder shall include such
transferees. Any
attempt to Transfer
or any purported Transfer of any Shares not
in accordance with the terms of this
Agreement shall be null and void and
neither the Company, as the issuer of such,
nor any transfer agent of such Shares shall give any effect to such
attempted
Transfer in its stock records. For the purposes of this Agreement, the term
"Transfer" shall mean any direct or
indirect sale, transfer, assignment, grant
of participation in, gift, hypothecation, alienation, pledge or other
disposition of any securities or any interests therein excluding, for the
avoidance of doubt, any exercise of
purchase or conversion rights under options,
warrants or convertible securities.
(e) Legends.
Each certificate representing the Shares held by
Consultant
shall be endorsed with the following legends and such other legends as
may be
required by applicable state securities
laws:
THE SALE,
TRANSFER, ASSIGNMENT OR ANY OTHER
ALIENATION OF THE
SECURITIES
REPRESENTED
BY THIS CERTIFICATE AND THE RIGHTS OF THE HOLDERS OF SUCH
SECURITIES
ARE SUBJECT TO THE
TERMS AND CONDITIONS
OF A TRANSITION AND
CONSULTING
AGREEMENT,
DATED AS OF NOVEMBER
2, 2005, AS SUCH AGREEMENT MAY
BE AMENDED,
MODIFIED OR RESTATED
FROM TIME TO TIME (A
COPY OF WHICH IS ON
FILE WITH THE
SECRETARY OF THE ISSUER HEREOF).
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND
HAVE NOT BEEN
REGISTERED UNDER THE
SECURITIES ACT OF 1933.
SUCH
SECURITIES
MAY NOT BE SOLD,
TRANSFERRED,
PLEDGED OR HYPOTHECATED
UNLESS THE
REGISTRATION
PROVISIONS OF SAID ACT
HAVE BEEN COMPLIED WITH OR
UNLESS THE
CORPORATION HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO
THE CORPORATION, IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION,
THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND
HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES
OR "BLUE
SKY" LAWS OF ANY
JURISDICTION.
THEY MAY NOT BE
OFFERED OR SOLD
WITHOUT AN
OPINION OF COUNSEL SATI
