EXHIBIT 10.1
DISENGAGEMENT AGREEMENT
Agreement between Gaben Chancellor ("Chancellor") and MediaX Corporation
("MediaX") made this 20th day of February, 1997.
Chancellor, as a principal founder of MediaX in Santa Cruz, California,
has entered with Xxxxxxx XxxXxxxxx, the other principal founder of MediaX,
into an Agreement and Plan of Reorganization ("Merger Agreement") with
ZeitGeist Werks ("ZeitGeist"), which, after the merger, has been renamed
MediaX Corporation. The parties also had contemplated an employment agreement
between MediaX and Chancellor. The Merger Agreement has been concluded and
will remain valid and unchanged, except as modified by the provisions of this
Agreement. The employment agreement with Chancellor will not be executed.
In consideration of the promises and the mutual agreements and covenants
herein contained and the payment of $1.00 made by each party to the other (the
receipt and adequacy of such consideration is hereby mutually acknowledged by
each party), the parties hereby covenant and agree as follows:
1. INTERPRETATION.
For the purposes of this Agreement, except as otherwise expressly
provided herein:
(a) "this Agreement" means this Agreement as it may from time to
time be supplemented or amended in a signed writing and in effect;
(b) all references in this Agreement to a designated "Section",
"paragraph", "subparagraph", or other subdivision, is to the designated
Section, paragraph, subparagraph, or other subdivision of this Agreement
unless otherwise specifically stated;
(c) the words "herein", "hereof" and "hereunder", and other
words of similar import, refer to this Agreement as a whole and not to any
particular Section, paragraph, subparagraph, or other subdivision;
(d) the singular of any term includes the plural and vice versa
and the use of any term is equally applicable to any gender and where
applicable a body corporate;
(e) the word "or" is not exclusive and the word "including" is
not limiting (whether or not non-limiting language such as "without
limitation" or "but not limited to" or other words of similar import is used
with reference thereto); the headings to the paragraphs and subparagraphs of
this Agreement are inserted for convenience only and do not form a part of
this Agreement and are not intended to interpret, define or limit the scope,
extent or intent of this Agreement, or any provision hereof;
(f) any reference to a corporate entity includes and is also a
reference to any corporate entity that is a successor to such entity; and
(g) the language in all parts of this Agreement shall, in all
cases, be construed as a whole and neither strictly for nor against either of
the parties.
2. AGREEMENT.
(a) It is herewith agreed that there will be no employment
agreement between Chancellor and MediaX, and that MediaX has no continuing
salary obligation in regards to Chancellor as an employee.
(b) Chancellor hereby resigns as an officer of MediaX.
(c) Chancellor will release to Assisi (Xxxxx Xxxxxxxx) 656,250
shares of his 956,250 shares of MediaX common stock issued to him individually
based on the Merger Agreement between ZeitGeist and MediaX, made on the 4th
day of April. Assisi (Xxxxx Xxxxxxxx) will take legal possession of those
shares. In consideration of the promises and the mutual agreements and
covenants herein contained and the payment of $1.00 made by each party to the
other (the receipt and adequacy of such consideration is hereby mutually
acknowledged by each party), Chancellor will remain in possession of 300,000
shares as an appreciation of his value in co-founding MediaX. This share
transaction shall be executed in a way that no tax liability for either party
will be construed or result.
(d) Chancellor has entered into a Consulting Agreement with
MediaX as Project Manager on MediaX's "Apple Project", and will receive a
consulting fee of Six Thousand Dollars ($6,000.00) per month during the
execution of the Apple Project. Chancellor agrees to maintain the agreed upon
milestone time lines and no additional compensation will be owed, due to time
overruns that are the sole responsibility of Chancellor. In the event MediaX
or Apple requests any adjustments or changes to the Apple Project, including
but not limited to the time lines and/or milestones, then Chancellor shall be
compensated for such additional work based on the same fee structure as
provided in this subparagraph 2(d) and in the Consulting Agreement between
Chancellor and MediaX on the Apple Project. MediaX remains the sole
contractual partner with Apple and retains sole ownership of the Apple
Project, and Chancellor agrees to implement MediaX's instructions with respect
to the Apple Project to the best of his abilities and knowledge, provided
MediaX, in a timely manner, supplies Chancellor with written copies of such
instructions. Chancellor will receive a credit on the Apple Project to be
mutually agreed upon, such credit being, for example: "Produced and Directed
by Gaben Chancellor." Chancellor's credit shall appear prominently in the
packaging and advertising, if any, for the product that is the Apple Project,
and in the screen displays for the content of the Apple Project.
(e) Chancellor also will receive as compensation one (1) SGI
work station and one (1) Apple Macintosh computer to be selected by MediaX
("Equipment"). Chancellor acknowledges that this Equipment has been delivered
to Chancellor and that it will be used by Chancellor in providing his services
for the Apple Project. Immediate transfer of property rights in the Equipment
to Chancellor depends on the original lease conditions or third party
limitations on ownership transfer of the Equipment. MediaX will make every
effort to transfer ownership of this Equipment to Chancellor. Should transfer
of ownership not be possible, MediaX will loan this Equipment to Chancellor
indefinitely, with no right of, or obligation for, reversion.
(f) Chancellor will also receive a one-time cash compensation of
Thirty-Two Thousand Five Hundred Dollars ($32,500.00) in consideration of his
contributions to MediaX, this amount to be paid Twenty Thousand Dollars
($20,000.00) on signing this Agreement and the balance at any time in one (l)
lump sum or in equal monthly installments, but in any event in full by no
later than June 30, 1997.
(g) MediaX, on a timely basis, agrees to pay in full the
American Express charges incurred on the American Express account of
Chancellor on behalf of MediaX, as more specifically detailed in Exhibit "A"
to this Agreement (but not any private charges of Chancellor, if any, with
Chancellor hereby representing that none of the outstanding charges on the
American Express account were for any private expenses of Chancellor), or to
promptly transfer same to the account of MediaX, and to pay the legal and
accounting fees and expenses incurred by Chancellor and Xxxxxxx XxxXxxxxx in
connection with the Merger Agreement, and to hold Chancellor harmless from the
referenced charges and fees.
(h) Neither Chancellor nor any company or organization in which
Chancellor has a direct or indirect financial interest will directly or
indirectly own, manage, operate, join, control, or participate in the
ownership, management, operation, or control of or be connected in any manner
with, any business conducted under any corporate or trade name now utilized by
MediaX or any name confusingly similar to MediaX, Media Corporation, MediaX
Studio, or ZeitGeist.
(i) Each party to this Agreement shall hold in confidence all
knowledge and information of a confidential nature with respect to the
business of the other party and any affiliate ("Information"), and will not
disclose, publish, or make use of the same without the prior written consent
of the other party.
(j) Each party shall hold in confidence indefinitely any and all
technology, trade secrets, and know-how ("Information") of the other party or
any affiliate, identified to the other and marked as confidential, and shall
not disclose, publish, or make use of the Information, including the terms of
this Agreement, without the prior written consent of the other party. A
specific listing of the Information proprietary to each of Chancellor and
MediaX, respectively, is recited in Exhibits "B" and "C" to this Agreement.
The provisions of subparagraphs 2(i) and 2(j) shall not apply in the following
events:
(i) The Information is or subsequently becomes available to
the public other than through breach of this Agreement;
(ii) The Information was properly in the party's possession
prior to obtaining it from the other party;
(iii) The Information otherwise lawfully becomes available
to the party without restriction from a third party who did not acquire it
directly or indirectly from the other party;
(iv) The Information is independently developed by the
party; or
(v) The Information is required by law to be disclosed.
(k) After the sale to Assisi (Xxxxx Xxxxxxxx) of a portion of
Chancellor's shares of stock in MediaX and after the termination of his
officer status in MediaX, Chancellor may not, for the purpose of rendering the
services of Chancellor, solicit or seek to solicit on his behalf or on behalf
of any other person, firm, or corporation, any project proposed by MediaX to
any customer of MediaX, and not rejected by such customer, during the period
of Chancellor's employment with MediaX and Chancellor's consulting
arrangements with MediaX under the Consulting Agreement, which customer is
still a current customer of MediaX.
(1) If a judicial determination is made that any of the
provisions in this Agreement constitutes an unreasonable or otherwise
unenforceable restriction against Chancellor, the provision of this Section
shall be rendered void only to the extent such judicial determination finds
such provisions to be unreasonable or otherwise unenforceable. In this regard,
MediaX and Chancellor hereby agree that any judicial authority construing this
Agreement shall be empowered to sever or modify any portion of the territory,
any prohibited business activity, or any time period from the coverage of this
Agreement, and to apply the provisions of this Agreement to the remaining
portion of the territory, the remaining business activities, or the remaining
time period not so severed or modified by such judicial authority.
(m) Chancellor hereby agrees to indemnify and defend MediaX and
its affiliates and to hold MediaX and its affiliates wholly harmless from and
against any and all losses, liabilities, damages, deficiencies, costs
(including, without limitation, court costs), and expenses (including, without
limitation, attorneys' fees) incurred by MediaX or its affiliates and arising
out of or due to any breach of any covenant or agreement of Chancellor
contained in this Section 2.
(n) MediaX hereby agrees to indemnify and defend Chancellor and
its affiliates and to hold Chancellor and its affiliates wholly harmless from
and against any and all losses, liabilities, damages, deficiencies, costs
(including, without limitation, court costs), and expenses (including, without
limitation, attorneys' fees) incurred by Chancellor or its affiliates and
arising out of or due to any breach of any covenant of this Agreement by
MediaX.
3. MUTUAL RELEASE.
(a) Chancellor, for himself and his heirs, successors, and
assigns, absolutely and forever unconditionally releases and discharges
MediaX, and its predecessors and successors, and all of its employees,
officers, directors, shareholders, attorneys, and other representatives of and
from any claim, debt, suit, action, or cause of action which he ever had, now
has, or may hereafter acquire, whether known or not suspected to exist, and
arising from or connected in any way to all issues between Chancellor and
MediaX, whether oral or written, and any other act, omission, cause, or thing
whatsoever having occurred prior to the execution of this Agreement
(collectively the "Released Matters"), provided, however, that this release
shall not apply to the respective rights and obligations of the parties under
this Agreement and the Consulting Agreement.
(b) MediaX, for itself and for its successors and assigns,
absolutely and forever unconditionally releases and discharges Chancellor, and
his attorneys and other representatives, employees, officers, directors, and
shareholders of and from any claim, debt, suit, action, or cause of action
which it ever had, now has, or may hereafter acquire, whether known or not
suspected to exist, and arising from or connected in any way to all issues
between Chancellor and MediaX, whether oral or written, and any other act,
omission, cause, or thing whatsoever having occurred prior to the execution of
this Agreement, i.e. the Released Matters, provided, however, that this
release shall not apply to the respective rights and obligations of the
parties under this Agreement and the Consulting Agreement.
(c) It is the intention of the parties in executing this
Agreement and receiving the consideration called for by this Agreement that
this Agreement shall be effective as a full and final mutual release with
respect to all of the Released Matters. Each of the parties acknowledges that
it/he is familiar with Section 1542 of the Civil Code of the State of
California which provides as follows:
"A general release does not extend to claims which a creditor does not
know or suspect to exist in his favor at the time of executing the release,
which, if known by him must have materially affected his settlement with the
debtor."
Each of the settling parties waives and relinquishes any rights or benefits
which it/he has or may have under Section 1542 of the Civil Code of the State
of California, any other similar law, federal or state, to the full extent
that each may lawfully waive all such rights and benefits pertaining to the
Released Matters.
(d) The provisions of this Agreement and the releases contained
herein shall extend to, and inure to the benefit of, and be binding on, in
addition to the named parties, their respective present or future affiliates,
servants, agents, employees, partners, principals, officers, attorneys,
indemnitors, heirs, and legal successors and assigns of each of the parties
hereto.
(e) Each party warrants and represents to the others that it/he
is the sole and lawful owner of all right, title, and interest in and to all
of the Released Matters released herein by such party, and that it/he has not
heretofore voluntarily, by operation of law or otherwise, assigned,
encumbered, or transferred or purported to assign, encumber, or transfer to
any person any interest or right of action as against any other party. Without
limitation of the foregoing, each party further represents and warrants to the
other that it/he has full right, power, and authority to enter into this
Agreement and to perform all of its obligations hereunder. The parties'
respective representations, warranties, covenants, and affirmations set forth
in this subparagraph 3(e) are expressly intended to survive and remain
unaffected by the granting of the general releases set forth in this
Agreement.
(f) No party shall make any press or other public announcement
of or concerning this Agreement or the Released Matters, which gave rise to
this Agreement. Without limiting the generality of the foregoing, no party
shall reveal to any third party, other than an attorney, accountant, or other
financial advisor to a party to this Agreement, any of the terms or conditions
of this Agreement, except that a party may disclose such information as shall
be required in a proceeding to enforce this Agreement, or as otherwise
compelled by a court or tribunal with competent jurisdiction, or as required
by the rules of the Securities and Exchange Commission.
(g) Each party acknowledges to the other that it/he has been
represented by independent legal counsel or a representative of such party's
own choice throughout the negotiations which preceded the execution of this
Agreement, and that such party has executed this Agreement with the consent
and on the advice of such independent legal counsel or representative. Each
party further acknowledges that such party and such party's counsel of
representative has had an adequate opportunity to make whatever investigation
or inquiry they may deem necessary or desirable in connection with the subject
matter of this Agreement prior to the execution hereof and the delivery and
acceptance of the consideration specified herein. In making this Agreement, it
is understood and agreed that the parties have not been influenced to any
extent whatsoever by any alleged representations or statements of any other
party hereto or by the persons representing them which are not expressly set
forth as warranties and representations in this Agreement.
4. GENERAL.
(a) All notices, requests, demands, or directions relating to
this Agreement shall be in writing and delivered via courier addressed to the
appropriate party at the address of such party set out on the signature page
of this Agreement, or to such other addresses as may be specified by one (1)
party to the other by notice in writing. Any notice, request, demand,
direction, authorization, or other communication given shall be deemed to have
been received by the party to whom it was given on the third business day
following the sending thereof by courier.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(c) Any controversy or claim arising out of or relating to this
Agreement or the alleged breach hereof shall be resolved by arbitration in
accordance with the rules and regulations of the Judicial Arbitration and
Mediation Services, and judgment upon the award rendered by the arbitrators in
any such arbitration, including, without limitation, specific performance of
this Agreement, may be entered in any federal or state court having
jurisdiction thereof. The prevailing party in any such arbitration shall be
entitled to recover from the nonprevailing party, in addition to all other
relief, all reasonable costs and expenses actually incurred by such party in
connection with such arbitration.
(d) If any one (1) or more of the provisions contained in this
Agreement should be invalid, illegal, or unenforceable in any respect in any
jurisdiction, the validity, legality, and enforceability of such provision or
provisions shall not in any way be affected or impaired thereby in any other
jurisdiction, and the validity, legality, and enforceability of the remainLng
provisions contained herein shall not in any way be affected or impaired
thereby.
(e) The parties hereto shall, with reasonable diligence, do all
such things and provide all such reasonable assurances as may be required to
consummate the transactions contemplated hereby, and each party hereto shall
provide such further documents or instruments required by the other party as
may be reasonably necessary or desirable to effect the purpose of this
Agreement.
(f) This Agreement constitutes the entire initial agreement
between the parties hereto concerning the disengagement of Chancellor from
MediaX and supersedes all prior agreements, whether written or oral, made
between the parties hereto, and there do not exist any representations,
warranties, terms, or conditions, expressed or implied, statutory or
otherwise, and no agreements collateral hereto, other than as expressly set
forth or referred to in this Agreement. A more formal Agreement, especially in
regards to the actual reversion of the shares released by Chancellor to Assisi
(Xxxxx Xxxxxxxx) will need to be drawn and executed. The parties agree that
neither party can unreasonably withhold the approval to such an agreement.
(g) This Agreement and each of the terms and provisions hereof
shall inure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors, and permitted assigns; provided, however, that neither party shall
be entitled to assign or delegate any of its/his rights or obligations
hereunder without the prior written consent of the other.
(h) This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(i) Time is of the essence with this Agreement. Each party will
assume its own legal cost incurred in connection with this Agreement.
IN WITNESS WHEREOF, the parties have hereunto duly executed this
Agreement as of the day and year first above written.
GABEN CHANCELLOR
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
/s/ Gaben Chancellor
Gaben Chancellor
MEDIAX CORPORATION
0000 Xxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
Title: President Title: Chairman
Date: 2/26/97 Date: 2/26/97
By: /s/ Xxxxxxx XxxXxxxxx
Xxxxxxx XxxXxxxxx
Title: Director
Date: 2/25/97
EXHIBIT A
DISENGAGEMENT AGREEMENT
Gaben Chancellor's American Express Account Bills
Incurred by Gaben Chancellor for MediaX
See Attached
Attached are copies of American Express
reports and backup dated September 14,
1996 and October 15, 1996.
EXHIBIT B
DISENGAGEMENT AGREEMENT
Gaben Chancellor's Proprietary Information
1. The Buzz.
(a) Role: concept and writing.
(b) Percentage of involvement: fifteen percent (15%).
(c) Other owners:
(i) Xxxx Xxxxxx: sixty percent (60%).
(ii) Xxx Xxxxxxxx: twenty-five percent (25%).
2. WildFire.
(a) Role: concept and writing.
(b) Percentage of involvement: fifty percent(50%).
(c) Other owners: Xxxxx Xxxx: fifly percent (50%).
3. Adventure Valley.
(a) Role: concept and writing.
(b) Percentage of involvement: twenty-five percent (25%).
(c) Other owners:
(i) Xxxx Xxxxxxxx: forty-five percent (45%).
(ii) Xxxxx Xxxxx: fifteen percent (15%).
(iii) Xxxxx Xxxxxxxxx: fifteen percent (15%).
4. Dramatis.
(a) Role: concept and writing.
(b) Percentage of involvement: one hundred percent (100%).
(c) Other owners: none.
5. Pythagrean and the Polygoblin:.
(a) Role: concept and writing.
(b) Percentage of involvement: one hundred percent (100%).
(c) Other owners: none.
6. Tower of Babel.
(a) Role: concept and writing.
(b) Percentage of involvement: one hundred percent (100%).
(c) Other owners: none.
7. Conflict.
(a) Role: concept and writing.
(b) Percentage of involvement: fifty percent (50%).
(c) Other owners: Xxxxx Rarney: fifty percent (50%).
