Exhibit 99.2
DOMINIX, INC.
00 XXXXXXXXX XXXXX
XXXXXXXXX, XXX XXXX 00000
December 8, 2003
Xxxxxxx Xxxxxx
0 Xxxxxx Xxxx
Xx. Xxxxx, Xxx Xxxx 00000
Dear Ray:
This letter sets forth the agreement regarding your employment (the "Agreement")
with Dominix, Inc. (the "Company"), a Delaware corporation that comprises the
businesses of its two recently acquired wholly- owned subsidiaries Jade
Entertainment Group, Inc., a New York corporation ("Jade") and MarketShare
Recovery, Inc., a New York corporation ("MSR")(the "Business"), upon the terms
and conditions set forth herein.
Start Date: December 8, 2003
Employment Term: The term will be for a period of three (3)
years through December 8, 2006 ("Initial
Term") provided that the Initial Term may be
automatically extended for up to two (2)
additional twelve month periods unless
either party gives written notice to the
other to not proceed with such renewal at
least sixty (60) days prior to the
expiration of the then existing term (the
"Renewal Term").
Either the Company or you may terminate your
employment during the Initial Term or any
Renewal Term for any reason, with or without
Cause, provided however, you agree to
deliver to the Company written notice of
such termination at least one hundred twenty
(120) days prior to your last date of
employment.
Title and Duties: You will be employed in the position of
Chief Executive Officer of the Company
working from the headquarters of Jade
presently located at 00 Xxxxxxxxxxx Xxxx -
Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000, or at
such other New York City or Long Island
address as the Company shall designate. Your
duties and responsibilities shall be on a
full-time basis and shall be subject, at all
times, to the direction and supervision of
the Company's Board of Directors ("Board").
Your responsibilities shall include, but not
limited to, using your best efforts to (i)
oversee, together with executives and
consultants of the Company, its parent, or
its affiliates and subsidiaries in the
structuring and negotiation of licensing,
sales or related commercial transactions for
Jade and MSR Products; (ii) develop,
supervise and execute the overall business
strategy to develop the Jade and MSR
Businesses; (iv) participate in the
preparation of financial budgets and
operating plans for the Company, its parent,
and its affiliates and subsidiaries along
with the Company's SEC filings; (v)
participate in the analysis of potential
acquisition, joint venture, merger and
similar type of transactions for the
Company, its parent, and affiliates and
subsidiaries; (vi) participate in the
raising of capital for the Company, its
parent, affiliates and subsidiaries
operations; (v) supervise the Company, its
parent, and affiliates and subsidiaries'
personnel in the performance of their
duties, and (vi) to carry out such other
matters of a similar nature as directed by a
member of the Company's Board.
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Base Salary: During each twelve (12) month period of the
Initial Term and any Renewal Term, you will
be paid a base salary of $100,000 ("Base
Salary"), payable in accordance with the
Company's normal payroll practice, which is
presently bi-weekly.
Quarterly Bonus: In addition to your Base Salary, during the
initial twelve (12) month period of the
Initial Term, you will be entitled to
receive a performance based bonus
("Quarterly Bonus") calculated and payable
on a quarterly basis in arrears, which will
be equal to 2% of the Company's consolidated
gross revenue derived from the operations of
Jade and MSR for the prior calendar quarter,
up to a maximum of $20,000 per quarter.
Quarterly Bonus's earned shall be payable
thirty (30) days following the end of the
last calendar month of the prior quarter.
Compensation Reviews: Base Salary reviews shall be performed
annually on each anniversary of your Start
Date. Any increases in Base Salary or cash
bonuses, or any continuation of the
Quarterly Bonus beyond the initial twelve
(12) month period, shall be made in the
Company's discretion on the appropriate
anniversary date by the independent members
of the Company's Board of Directors (or
Compensation Committee if so formed), or by
the non-interested members of the Company's
Board of Directors if no independent members
are elected, pursuant to both the Company's
guidelines as they exist from time to time,
and the Company's overall financial, as well
as your individual, performance.
Severance: In the event that your employment is
terminated without Cause by the Company, or
you terminate your employment for Cause, you
shall be entitled to severance at the rate
provided by your Base Salary on the
following basis:
Months employed months of severance payment
0-12 4
12-24 9
after 24 12
Benefits: You will be eligible to participate in any
management bonus plan and entitled to such
benefits, health insurance and vacation
which are, or will be, provided to other
senior executives of the Company.
Expenses: You will be reimbursed upon submission of
appropriate documentation for all reasonable
expenses including travel (local and out of
town) incurred by you in the performance of
your employment hereunder, provided however,
that you shall not incur any such expenses
in excess of $3,000 without the prior
written consent of an independent member of
the Board or an authorized financial officer
of the Company.
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Termination: (a) Your employment shall terminate upon the
first to occur of the following:
(1) The expiration of the Initial Term or
any Renewal Term specified above.
(2) Upon your (i) death or (ii) permanent
disability or incapacity.
(3) For Cause. The Company shall have the
right to terminate your employment upon
twenty-four (24) hours' written notice to
you For Cause. The grounds for such
termination For Cause shall be:
(i) a material, uncured breach of your
agreement of employment hereunder,
including, but not limited to a
violation of any non-competition,
non-solicitation or confidentiality
provisions hereinafter set forth,
(ii) Your arrest for fraud,
embezzlement, bribery, act of moral
turpitude or any felonious offense
(other than strictly a motor vehicle
matter, provided that a conviction for
a motor vehicle matter other than a
minor traffic violation, constitutes
grounds for termination For Cause); or
(iii) Your commission of any act of
fraud, dishonesty or negligence in
connection with the performance of
your duties as an employee of the
Company; or
(iv) Your willful and repeated failure
or refusal (unremedied after five (5)
business days written notice from the
Company of such failure or refusal) to
perform your duties and
responsibilities as are established by
the Company's Board of Directors (or
Audit Committee), from time to time.
(4) Upon written notice from either the
Company, or you, which notice if delivered
by you shall be received by the Company no
less than one hundred twenty (120) days
prior to the date of termination and if
delivered by the Company, shall be received
by you no less than thirty (30) days prior
to the date of termination.
(b) Except as otherwise stated in
"Severance" above, if you are terminated for
Cause, the Company shall have no further
financial or other obligations to you
following the last date of employment.
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Agreement Not To Compete: In consideration of the above, you agree
that during the Initial Term or any Renewal
Term, and for twelve (12) months following
the expiration of such term or earlier
termination of your employment, you shall
not either for yourself or on behalf of any
other person, partnership, corporation or
entity, directly or indirectly or by action
in concert with others:
(a) interfere with any of the Company's or
its parent, affiliates' or its subsidiaries'
relationships with, or endeavor to employ or
entice away from the Company or its parent,
affiliates or its subsidiaries, any person
who, at any time on or after the date
hereof, is or shall be an employee of the
Company or its parent, affiliates or its
subsidiaries or under some other contractual
relationship with the Company, interfere
with or seek to adversely alter the
Company's or its parent, affiliates or its
subsidiaries' relationship with, solicit or
divert any supplier, licensee or distributor
of the Company or its parent, affiliates or
its subsidiaries; or
(b) seek or obtain employment with, or
provide services to, any party that has in
the past twelve (12) months had an
agreement, or engaged in any business
transaction of a material nature with the
Company.
Property Rights: With respect to information, inventions and
discoveries or any interest in any copyright
and/or property right developed, made or
conceived of by you, either alone or with
others, at any time during your employment
by the Company and whether or not within
working hours (and written six months
thereafter) arising out of such employment
or pertinent to any field of business or
research in which, during such employment,
the Company is engaged or (if such is known
to or ascertainable by you) is considering
engaging, you agree:
(a) that all such information, inventions
and discoveries or any interest in any
copyright and/or other property right,
whether or not patented or patentable, shall
be and remain the exclusive property of the
Company, whether or not it is protected or
protectible under applicable patent,
trademark, service xxxx, copyright or trade
secret laws which shall be deemed work made
for hire as defined in Section 101 of the
Copyright Act, 15 U.S.C. Section 101. If it
is determined that any such works are not
works made for hire, you hereby assign to
the Company all of your right, title and
interest, including all rights of copyright,
patent, and other intellectual property
rights, to or in such work product;
(b) to disclose promptly to an authorized
representative of the Company all such
information, inventions and discoveries or
any copyright and/or other property right
and all information in your possession as to
possible applications and uses thereof;
(c) not to file any patent application
relating to any such invention or discovery
except with the prior written consent of an
authorized officer of the Company (other
than yourself);
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(d) that you hereby waive and release any
and all rights you may have in and to such
information, inventions and discoveries and
hereby assign to the Company and/or its
nominees all of your right, title and
interest in them and all your right, title
and interest in any patent, patent
application, copyright or other property
right based thereon. You hereby irrevocably
designate and appoint the Company and each
of its duly authorized officers and agents
as your agent and attorney-in-fact to act
for you and in your behalf and stead to
execute and file any document and to do all
other lawfully permitted acts to further the
prosecution, issuance and enforcement of any
such patent, patent application, copyright
or other property right with the same force
and effects as if executed and delivered by
you; and
(e) at the request of the Company, and
without expense to you, to execute such
documents and perform such other acts as the
Company deems necessary or appropriate, for
the Company to obtain patents on such
inventions in a jurisdictions designated by
the Company, and to assign to the Company or
its designees such inventions and any and
all patent applications and patents relating
thereto.
Confidentiality: With respect to the information, inventions
and discoveries referred to above and also
with respect to all other information,
whatever its nature and form and whether
obtained orally, by observation, from
Materials (as defined below) or otherwise
(except such as is generally available
through publication), obtained by you and
relating to any invention, improvement,
enhancement, product, know-how, formula,
software, process, apparatus, design,
drawings, codes, data printouts, magnetic
tapes and disks, recordings, marketing and
sales programs, financial projections,
concept or other creation, or to any use of
any of them, or to materials, tolerances,
specifications, costs (including, without
limitation, manufacturing costs), pricing
formulae, or to any plans of the Company, or
to any other trade secret or proprietary
information of the Company, related to the
Business and operations of the Company or
the Company's customers, strategic
alliances, licensors, parent, subsidiaries
and affiliates, you agree:
(a) to hold all such information, inventions
and discoveries which have not otherwise
become public knowledge in strict confidence
and not to publish or otherwise disclose any
thereof to any person or entity other than
the Company except with the prior written
consent of an authorized officer of the
Company or as may be required by law;
(b) to take all reasonable precautions to
assure that all such information, inventions
and discoveries are properly protected from
access by unauthorized persons;
(c) to make no use of nor exploit in any way
any such information, invention or discovery
except as required in the performance of
your employment duties of the Company; and
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(d) upon termination of your employment by
the Company, or at any time upon request of
the Company, to deliver to it all Materials
(as defined below) and all substances,
models, software, prototypes and the like
containing or relating to any such
information, invention or discovery, all of
which Materials (as defined below) and other
things shall be and remain the exclusive
property of the Company.
For purposes of this Agreement, the term
"Materials" includes, without limitation,
letters, memoranda, reports, notes,
notebooks, books of accounts, drawings,
prints, marketing materials, product
designs, specifications, formulae, software,
data printouts, microfilms, e-mails,
magnetic tapes and disks and other documents
and recordings, together with all copies,
excerpts and summaries, thereof.
Indemnity: You shall be indemnified for all claims,
liabilities, damages, losses, costs and
expenses of any nature, including but not
limited to, reasonable attorneys' fees,
judgments, settlement, fines and penalties
that are incurred by you in connection with
the performance of your duties under this
Agreement unless the claim or alleged claim
is based in whole or in part upon acts or
omissions by you constituting willful
misconduct, gross negligence or fraud.
Miscellaneous: We agree that it is our intention and
covenant that your employment and
performance thereunder be governed by and
construed under the laws of the State of New
York concerning contracts to be made and
performed wholly within such state, without
regard to any conflict of law principles and
that any dispute between the parties of any
kind shall be adjudicated exclusively in the
courts of the State of New York.
(a) This letter sets forth the entire
agreement regarding your employment and may
not be modified or changed except by mutual
written agreement. Your obligations
hereunder may not be assigned by you. Your
employment agreement is assignable by the
Company to a wholly-owned subsidiary or in
the event of any sale, merger, or similar
transaction by the Company with a third
party or a related party.
(b) You represent and warrant that the
execution, delivery and performance by you
of this Agreement and the matters
contemplated thereunder does not, and will
not, violate, result in a breach of, or
constitute a default under any agreement or
arrangement to which you are a party. You
also represent and warrant that you have had
the opportunity to consult with the counsel
of your choice in the negotiation and
execution of this Agreement and that you are
satisfied that you have been adequately and
independently represented.
(c) The invalidity of all or any part of any
paragraph or subparagraph of this Agreement
shall not render invalid the remainder of
the Agreement and obligations contemplated
hereunder.
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(d) This Agreement may be executed in two or
more counterparts, each of which shall be
deemed an original, but all of which when
together, shall constitute one and the same
agreement.
(e) Any notice given hereunder shall be in
writing and either delivered in person, by
nationally recognized overnight courier, or
be registered or certified first class mail,
(postage prepaid, addressed) if to the
Company at Dominix, Inc., 00 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, attn:
Chairman of the Board and (b) if to the
Employee at the address noted above. Notices
delivered personally shall be deemed given
as of actual receipt; notices sent via
facsimile transmission shall be deemed given
as of one business day following sender's
receipt from sender's facsimile machine of
written confirmation of transmission
thereof; notices sent by overnight courier
shall be deemed as given as of one business
day following sending; and notices mailed
shall be deemed given as of five business
days after proper mailing. Any party may
change its address in notice given to the
other party in accordance with this Section
(e).
(f) Each party shall fully indemnify the
other for all claims, liabilities, damages,
losses, costs and expenses of any nature,
including but not limited to, reasonable
attorneys' fees, judgments, settlement,
fines and penalties that are incurred by the
counter-party arising out of or in
connection with the performance of each
party's obligations under this Agreement
unless the claim or alleged claim resulted
from the willful misconduct, gross
negligence or fraud of the party claiming
indemnification
If the above meets with your understanding, please countersign this Agreement at
the lower left to acknowledge your agreement and acceptance with the terms and
conditions outlined above and return a signed copy to me at your earliest
convenience. We look forward to a long and mutually rewarding relationship.
Sincerely,
Dominix, Inc.
By:
---------------------------------------------
Xxxxxx X. Xxxxxxxx, Sole Officer and Director
ACCEPTED AND AGREED TO
THIS 8 day of December 2003:
----------------------------
Xxxxxxx Xxxxxx
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