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EXHIBIT 10.53
SEPARATION AGREEMENT AND MUTUAL RELEASE
THIS SEPARATION AGREEMENT AND MUTUAL RELEASE (this "Agreement") is entered
into as of the 11th day of July, 1997, by and between DMX INC., a Delaware
corporation ("Company"), and XXXXXX XXXXXXXXXX, an individual ("Xxxxxxxxxx").
WHEREAS, Xxxxxxxxxx desires to terminate his employment relationship with
Company;
WHEREAS, Company desires to terminate Xxxxxxxxxx'x employment with Company
pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and other valuable
consideration contained herein, the parties hereto agree as follows:
1. Termination. The parties agree that Xxxxxxxxxx'x employment relationship
with Company is terminated as of the date hereof ("Separation Date").
2. Consideration. Company acknowledges that in full and final satisfaction
of all services rendered by Xxxxxxxxxx to Company through the Separation Date,
Company is obligated to Xxxxxxxxxx for payment of the sum of One Hundred Fifty
Thousand Dollars ($150,000) ("Company Liability"). Without limiting the
generality of the foregoing, this sum shall be in full and final satisfaction of
all obligations of Company to Xxxxxxxxxx including without limitation all paid
vacation owed, all unreimbursed business expenses, and all compensation owed or
accruing to Xxxxxxxxxx. Xxxxxxxxxx acknowledges that he is obligated to Company
in the amount of Eighteen Thousand Five Hundred Twenty-three Dollars ($18,523)
in connection with the purchase by Xxxxxxxxxx of certain equipment ("Equipment")
of Company as set forth on Schedule A, attached hereto ("Xxxxxxxxxx Liability").
Company shall provide Xxxxxxxxxx with a Xxxx of Sale for the Equipment in the
form set forth on Exhibit 1, attached hereto. The parties hereto agree that the
Xxxxxxxxxx Liability shall be deducted from the Company Liability. Accordingly,
in consideration of the offsetting liabilities, Company shall be obligated to
pay to Xxxxxxxxxx the sum of One Hundred Thirty-one Thousand, Four Hundred
Seventy-seven Dollars ($131,477). Such payment shall be made promptly after full
execution hereof and the "Receiver Payment" referred to in paragraph 3, below.
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3. Receiver Payment. Xxxxxxxxxx acknowledges that Xtra Music is obligated
to Company in the amount of Fifty Eight Thousand Three Hundred Fifty-four and
42/100 Dollars ($58,354.42) in connection with the purchase by Xtra Music of
certain Comstream DBS Receivers, as set forth on the invoice attached hereto as
Schedule X. Xxxxxxxxxx agrees that Xtra Music shall make payment to Company
("Receiver Payment") in the aforesaid amount promptly after the full execution
hereof.
4. Confidentiality; Results of Services.
(a) Xxxxxxxxxx agrees that any confidential information of the Company
related to technologies which are trade secrets ("Proprietary Technology") is
proprietary to the Company and Xxxxxxxxxx shall not for a period of one (1) year
from the date hereof use for the benefit of others than the Company, or disclose
to others, any such Proprietary Technology.
(b) Xxxxxxxxxx acknowledges and agrees that any violation of the provisions
of this Paragraph 4 will create irreparable harm to Company for which it has no
adequate remedy at law, in that the total extent of the damages to Company can
never be fully measured, and that Company shall be entitled to seek injunctive
relief with respect to such violation.
(c) Notwithstanding anything contained in this Paragraph 4: (i) Xxxxxxxxxx
shall not be restricted in any manner with respect to rights in or to
Proprietary Technology granted by Company in a separate written agreement to
Xxxxxxxxxx, Xtra Music, or any other entity with which Xxxxxxxxxx is or may
become affiliated, and (ii) Xxxxxxxxxx shall be deemed to have the same rights
as any member of the public would have with respect to the Proprietary
Technology. For example, Xxxxxxxxxx would not be restricted from using
Proprietary Technology which is distributed by a third party, or otherwise
becomes known or available to members of the public.
5. Consultations. Xxxxxxxxxx agrees that for a period of one (1) year from
the date hereof he will, as reasonably requested by Company, consult with senior
executives of Company for the purpose of discussing the historical business and
transactions of the Company. It is understood and agreed that such consultations
shall (i) be subject to Xxxxxxxxxx'x availability; (ii) be conducted by
telephone unless otherwise agreed by Xxxxxxxxxx; and (iii) not require extensive
time commitments by Xxxxxxxxxx.
6. Release. In consideration of the promises set forth herein, and other
good and valuable consideration, each of the parties and their officers,
directors, employees, agents, attorneys, heirs, successors and assigns, shall
and hereby do forever release, relieve and discharge the other party and all of
their respective officers, directors, employees, agents, attorneys, heirs,
successors and assigns from any and all claims, actions,
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suits, debts, sums of money, controversies, damages, obligations and liabilities
of every kind and nature, whether known or unknown, suspected or unsuspected,
which either party shall have or may have against the other party (and/or their
respective officers, directors, employees, agents, attorneys, heirs, successors
and assigns) by reason of or arising out of the employment relationship of
Xxxxxxxxxx with Company prior to and through the Separation Date.
The release set forth in this Agreement is a general release of all claims,
demands, causes of action, obligations, damages and liabilities of any nature
whatsoever that are described in the release and is intended to encompass all
known and unknown, foreseen and unforeseen claims which either party may have
against the other party (and/or their respective officers, directors, employees,
agents, attorneys, heirs, successors and assigns) as of the Separation Date.
Further, each party agrees to waive and relinquish all rights and benefits
its which he or it may have under Section 1542 of the California Civil Code or
any similar law or statute. That section reads as follows:
Section 1542. [Certain claims not affected by general release.] A general
release does not extend to claims which the 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.
7. Heirs and Assigns. This Agreement and all the terms and provisions
hereof shall be binding upon and shall inure to the benefit of the parties and
their respective heirs, legal representatives, successors and assigns.
8. Rights Not Affected. Notwithstanding anything to the contrary contained
herein, this Agreement shall not affect Company or Xxxxxxxxxx'x rights or
obligations in connection with Xxxxxxxxxx'x ownership of stock and/or stock
options in the Company, or Xxxxxxxxxx, or any entity in which Xxxxxxxxxx owns
any interest, acting as a licensee of Company.
9. Severability. Should any portion, word, clause, phrase, sentence or
paragraph of this Agreement be declared void or unenforceable, such portion
shall be considered independent of and severable from the remainder, the
validity of which shall remain unaffected.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties who have executed it relating to the subject matter hereof
and supersedes any and all other agreements, understandings, negotiations or
discussions, whether oral or in writing, express or implied, between the parties
to this Agreement
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relating to the subject matter hereof. The parties to this Agreement each
acknowledge that no representations, inducements, promises, agreements or
warranties, oral or otherwise, have been made to them or by them, or by anyone
acting on their behalf which are not embodied in this Agreement, that they have
not executed this Agreement in reliance on any such representation, inducement,
promise, agreement or warranty, and that no representation, inducement, promise,
agreement or warranty now not contained in this Agreement including, but not
limited to, any purported supplements, modifications, waivers, or terminations
of this Agreement shall be valid or binding unless executed in writing by both
parties to this Agreement.
11. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
12. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be considered an original, but all of which shall constitute
one agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth hereinabove.
DMX INC.
By: /s/ X.X. Xxxxxx
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Its: President
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/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX
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EXHIBIT 1
XXXX OF SALE
DMX, Inc. ("Seller") and Xxxxxx Xxxxxxxxxx ("Buyer") have executed and
delivered a Separation Agreement and Mutual Release dated as of July 11, 1997
(the "Agreement"), providing, inter alia, on the terms and conditions set forth
therein, for the transfer of certain assets and properties from Seller to Buyer.
This Xxxx of Sale is being executed and delivered in order to effect the
transfer of Assets (as defined below) from Seller to Buyer, all as provided for
in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the sufficiency and
receipt of which is hereby acknowledged:
Seller hereby sells, conveys, transfers, assigns and delivers unto Buyer,
its successors and assigns, all right, title and interest of Seller in and to
the assets and properties (the "Assets") of Seller, as the same exist on the
date hereof, listed on Schedule A attached hereto and incorporated herein by
this reference.
TO HAVE AND TO HOLD all and singular, the assets and properties hereby
sold, conveyed, transferred, assigned and delivered, or intended so to be, unto
Buyer, and its successors and assigns, to and for its and their own use forever.
This Xxxx of Sale is executed pursuant to the Agreement and may be
simultaneously executed in two 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.
IN WITNESS WHEREOF, Buyer and Seller have caused this Xxxx of Sale to be
executed in their respective names by their respective, duly authorized
representatives on and as of the day and year first above written.
DMX INC.
By: /s/ X.X. Xxxxxx
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Its: President
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/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX
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SCHEDULE A
DMX Inc.
General Ledger Listing
List of Equipment-Montecito
GL Acct Apply Date Balance
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(Row 100):
F&E-Montecito 00-00-000-0000
-Fiscal 1993-
Adjusting Entries 06/30/93 $ 14,384.81
REE01 INTELLFAX 08/22/93 789.03
Adj to Form 10-K 09/30/93 (530.43)
-Fiscal 1994-
DEM01 JHR'S CELLULAR PHONE FOR 01/20/94 $ 405.94
DES01 OFF-SITE PHONE SYSTEM 03/30/94 405.93
M/C BOSE SPEAKERS 03/31/94 429.72
SIG01 SATELLITE SYSTEM 06/01/94 2,360.45
SIG01 SOUND SYSTEM 06/01/94 6,726.34
COM03 JHR/MONTECITO,CA 08/01/94 536.95
SIG01 DBS/JHR 08/01/94 1,614.35
LAN03 MODEM/JHR 08/29/94 573.73
LAN03 CMPTR/JHR 08/30/94 2,652.13
SC101 MODULATOR/JHR 09/07/94 883.07
LAN01 JHR CMPTR INSTALL 09/08/94 819.15
LAN03 CMPTR/J&J 09/12/94 1,497.10
-Fiscal 1995-
LAN01 CMPTR/XXXXXX R 10/17/94 $ 677.63
SIG01 LEXICON RMTE/JHR 11/29/94 2,706.11
DIV01 DIRECT TV DISH 12/08/94 1,043.84
SIG01 JHR/DSS INSTALL 02/07/95 588.01
REE 21 COMPUTER/JHR 03/01/95 3,537.61
DBS ADJ THRU 03/31/95 06/30/95 240.00
-Fiscal 1996-
PC&M SUPERSCAN 11/10/95 $ 345.95
JEF01 UPGRADE/JHR 11/10/95 454.65
JEF01 BLK LEATHER CASE 11/27/95 107.27
BRZ01 CDW-TV SUPERSCAN/JHR 11/30/95 326.28
BRZ01 PALMTOP FOR JHR 12/29/95 653.00
PC&M NEC MONITOR/JHR 01/30/96 834.95
PC&M NEC MONITOR/JHR 02/12/96 (779.95)
AMER4 MOTOROLA PHONE/JHR 06/20/96 2,164.61
X. XXXXXXXXXX/MOTOROLA PHONE 07/11/96 (717.51)
-Fiscal 1997-
Dell Computer Feb-97 3,056.07
Dell Computer Feb-97 170.45
USA Flex Computre Sales Apr-97 5,448.15
Sound Equipment-Montecito Jun-97 5,055.38
Sound Equipment Installation-Montecito Jun-97 4,966.54
USA Flex Computre Sales Jun-97 652.15
USA Flex Computre Sales Jun-97 629.00
Motorola Cell Sales & Service Jun-97 553.75
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Total F&E-Montecito 66,262.21
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Less: Accumulated Depreciation: (32,096.44)
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Net book value: 34,165.77
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