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...
DOMINIX, INC.
00 XXXXXXXXX XXXXX
XXXXXXXXX, XXX XXXX 00000
December 8, 2003
Xxxxxxx Xxxxxxx
00 X Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Dear Xxx:
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
President 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 Chief Executive
Officer and its Board of Directors
("Board"). Your responsibilities shall
include, but not limited to, using your best
efforts to (i) participate, 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) 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
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parent, affiliates and subsidiaries
operations; (v) manage 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 Chief Executive
Officer or a member of the Board.
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 $1,000 without the prior
written consent of the Chief Executive
Officer 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.
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:
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(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 Xxxxxxx
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