Exhibit 10.1
TRANSITION AND CONSULTING AGREEMENT
This
Transition and
Consulting Agreement
(the "Agreement") is
made as of
December 19th, 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 William H. Whitmore (the
"Consultant").
WHEREAS,
the Consultant formerly served as the President and Chief
Executive Officer of the Company and also
served the Company as a member of the
Board of Directors;
WHEREAS,
the Consultant desires to resign from the Company and cease
serving as an employee of the Company in
any manner, in each case as of December
29, 2005 (the "Effective Date"), and resigns from serving on the Board of
Directors of the Company concurrently with
his execution of this Agreement;
WHEREAS, the
Company desires to accept these resignations of Consultant and
engage Consultant to provide assistance to the Company and its
Chief Executive
Officer on a non-executive basis for a
period of eight (8) months, commencing as
of December 30, 2005, and continuing though August 31, 2006, on the
terms and
subject to the conditions set forth
herein;
WHEREAS,
Consultant is willing
to accept such engagement on such terms and
subject to such conditions;
NOW,
THEREFORE,
in consideration of
the premises and the mutual covenants
hereinafter contained, the Company and
Consultant agree as follows:
SECTION 1.
Resignation. The
Consultant hereby resigns from all offices and
positions he holds with the Company,
and resigns from his
employment
with the
Company, effective as of the Effective
Date. The Consultant further resigns from
serving on the Board of Directors
of the Company, effective as of the date of
his execution of this Agreement.
Effective as of the
Effective Date, Consultant
shall no longer have access to use office
space of the Company
(other than in
his capacity as a Consultant to the Company), shall no longer receive any
Company benefits (other than health care benefits to which Consultant is
entitled to receive at his own expense
pursuant to applicable Federal law and as
described in a separate letter to
Consultant),
and shall no longer
have access
to Company e-mail services. On or prior to the Effective Date,
Consultant shall
return to the Company all of the records, correspondence, electronic and
magnetic storage media, documents, proprietary or confidential information,
reports, files and all other property, including keys, and other electronic
devices of the Company or any of its affiliates, held by the Consultant or
otherwise in his possession. Consultant will not retain any
copies, duplicates
or excerpts of any of the aforementioned
documents or items. Notwithstanding the
foregoing, Consultant may retain the lap-top
computer, provided
that all files
containing proprietary or confidential information of the Company are
deleted
therefrom and confirmation of such deletion has been given to
the Company by a
person or entity acceptable to the Company.
From and after the
Effective Date,
Consultant shall have no authority to incur any liability on behalf of the
Company or any of its affiliates or otherwise to commit the Company or
any of
its affiliates to any contract, liability or obligation of any
kind or nature
whatsoever.
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SECTION 2.
Engagement.
The Company agrees to
engage Consultant to
assist
the Company's Chief Executive Officer and other officers and
executives of the
Company from time to time, as requested,
in facilitating a
smooth transition in
the management of the Company and otherwise in operating the business and
affairs of the Company during the Term (as defined below), and Consultant
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
Date. During the Term (as defined
below)
and for one 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 3. Term.
The term of the Engagement of Consultant by the Company as
provided in Section 2 shall begin on
December 30, 2005 and shall continue until
August 30, 2006 (the "Term"), unless
earlier terminated as hereinafter provided.
SECTION 4.
Compensation and Expenses.
(a) Prior to the
Effective Date. On and
prior to the Effective
Date, the
Company shall pay Consultant in accordance
with its normal payroll practices and
shall reimburse Consultant for all reasonable unpaid expenses incurred by
Consultant on behalf of the Company or its
affiliates. The
Company acknowledges
that, as of the date hereof, such
unreimbursed expenses aggregate $6,823.07, all
of which shall be reimbursed to Consultant
with his last pay
check, subject to
reduction by the Company to the extent Consultant has not fully paid for the
purchase price of the shares of Common
Stock to be sold to Consultant pursuant
to Section 5 below.
(b) Compensation. During the Term, the Company shall pay Consultant a
consulting fee at a rate equal to $10,000 per
month; provided,
however, that
such monthly consulting fee shall be reduced to $5,000 upon acceptance by
Consultant of an employment contract with
another person or entity in a position
commensurate with Executive management duties as performed by
Consultant during
employment as President and Chief Executive Officer of the Company . The
consulting fee shall be payable
bi-weekly at the end
of each calendar
two-week
period along with normal payroll processing during the Term in the amount
of
$4,650.16 per period for 35 weeks. The
first payment is scheduled for January 6,
2006 and the last payment (which will be adjusted to an amount of $930.28
to
accommodate the intention of this agreement
to be for 8 months at $10,000.00 per
month or a total of $80,000.00) is
scheduled for September 1, 2006.
(c) 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 any
such expenses
without the prior written approval of the
Company.
SECTION 5.
Equity Compensation.
(a) Issuance of Restricted Stock. On or before December 30, 2005, the
Company shall issue to Consultant
3,000,000 shares of the Common Stock,
$.001
par value per share ("Common Stock"), of the Company for a purchase
price of
$.001 per share (or $3,000.00 in the
aggregate). Consultant
acknowledges
that
the fair market value of such shares of
Common Stock (the
"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.
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<PAGE>
(b) Restrictions
on Transfer. The
Consultant agrees
that, for a period of
one year from and after the Effective Date
(the "Restricted
Period"), he will
not Transfer (as defined below) any of 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, or (3) a
transfer of the Shares to
the Consultant's heirs at law upon
Consultant's death,
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. Following the Restricted Period, the
Consultant may Transfer shares only in accordance
with applicable Federal or
state securities laws and the terms of this
Agreement.
(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
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 OPIN
