EXHIBIT 10.2
------------
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") shall be effective on the 1st
day of November 2004 ("Effective Date") between PalWeb Corporation (the
"Company") and Xxxxxx X. Xxxxxx ("Xxxxxx").
RECITALS
WHEREAS, the Company has determined that Xxxxxx'x services to the
Company will be of value to the Company, and accordingly, the Company desires to
enter into this Agreement with Xxxxxx as set forth herein in order to secure
such services;
WHEREAS, Xxxxxx hereby represents and warrants to the Company that he
is free to work for the Company without violation of any other agreements or
employment to which Xxxxxx is a party;
WHEREAS, Xxxxxx desires to serve as an employee of the Company on the
terms set forth herein;
NOW THEREFORE, for and in consideration of Xxxxxx'x employment by the
Company, the promises and the mutual agreements set forth herein, Xxxxxx and the
Company agrees as follows:
1. Employment Duties.
(a) The Company agrees to employ Xxxxxx as its Director of
Finance with the duties and responsibilities generally associated
with such position, and such other reasonable additional
responsibilities as may be added to Xxxxxx'x duties from
time-to-time by Xxxxxx X. Xxxxxx ("Xxxxxx"), the President and CEO
of the Company. Xxxxxx shall report directly to Kruger.
(b) Xxxxxx shall (i) diligently follow and implement all
policies and decisions communicated by Kruger; (ii) timely prepare
business plans, lease/finance plans and will be in charge of and
prepare all financial reports and accountings reports as may be
requested; and, (iii) devote all of his professional time, attention
and efforts to the business and affairs of the Company, subject to
vacations and to reasonable periods of illness and/or disability
consistent with the Company's policy and applicable law. (See
Attachment A)
(c) The work product to be produced hereunder by Xxxxxx
shall be considered a work made for hire as defined in the Copyright
Act of 1976, and is therefore owned exclusively by the Company which
vests copyright ownership of works for hire in the Company for whom
the work is prepared. If any works hereunder shall be found not to
be works made for hire, or ownership does not otherwise
automatically vest in the Company, Xxxxxx shall immediately disclose
and assign to Company any right, title and interest in any
inventions, models, processes, patents, copyrights and improvements
thereon relating to services or processes or products of Company
that Xxxxxx conceives or acquires during the
employment relationship with Company or that Xxxxxx may conceive or
acquire, during the period of (1) one year after termination of this
Agreement.
2. Term. The initial term of employment shall be thirty months (30)
("Initial Term"). The Initial Term shall begin November 1, 2004 and shall have
two (2) automatic thirty (30) month renewal periods; however, the terms shall
not renew in the event that either party gives the other party written notice of
non-renewal ("Notice") at least ninety (90) days prior to the end of the
then-current term. In the event either party provides Notice or terminates this
Agreement pursuant to Section 4, Xxxxxx shall diligently assist the Company in
transitioning all matters and work for which he was responsible as the Company
shall direct.
3. Compensation.
(a) Xxxxxx shall be paid a monthly compensation of
$15,245/month plus travel and entertainment expenses. Xxxxxx will be
obligated to work approximately four (4) days a week either at the
Company's headquarters in Tulsa, Oklahoma, or at the Company's plant
in Bettendorf, Iowa.
(b) Not later than the end of the first One Hundred Twenty
(120) days ("Move In Date") of this Agreement Xxxxxx will have moved
his residence to Tulsa, Oklahoma.
(c) The Company will reimburse Xxxxxx for moving expenses to
Tulsa and incurred by Xxxxxx based on the average cost of three (3)
written bids.
(d) Upon the Move In Date, Xxxxxx will receive an option to
purchase up to 500,000 shares of the Company Common Stock
immediately and 500,000 shares thirty (30) months thereafter for a
total of 1,000,000 shares. The option price shall be $0.50/share and
related terms and conditions shall be set in accordance with the
Company's stock option plan.
(e) At such time that either the gross sales as booked by
the Company exceed $1.2 million per month for at least six (6)
consecutive months or the Company secures $25,000,000 of additional
debt and/or equity financing, Xxxxxx will receive an annual bonus of
not less than $65,000 per year.
(f) Throughout the term of the Agreement, Xxxxxx will in
addition be entitled to related benefits as provided by the Company
to other management of the Company such as:
(i) The Company will provide health insurance benefits
for Xxxxxx and his dependents on the same basis of the
other Company employees.
(ii) Xxxxxx shall, upon submission of written
documentation of business related expenses incurred, be
reimbursed for any and all necessary, customary and
usual expenses, as approved by Kruger
-2-
and incurred by Xxxxxx on behalf of Company in the
normal course of business.
(iii) Xxxxxx shall receive four (4) weeks of paid
vacation. Accrued unused vacation time shall expire at
the end of each calendar year.
(iv) The Base Salary and any bonuses, allowance
payments, and all other payments shall be subject to
withholding for all applicable taxes as required under
applicable federal and state laws.
(v) Upon moving to Tulsa, Oklahoma, Xxxxxx shall be
reimbursed up to $600/month for lease car expense
related to his company car.
4. Termination. This Agreement and Xxxxxx'x employment can be
terminated by the President of the Company on behalf of the Company as follows:
(a) Upon the death of Xxxxxx; or
(b) Upon Xxxxxx'x permanent disability (which shall mean his
inability to perform his duties and responsibilities under this
Agreement for a period of at least six (6) consecutive months); or
(c) For Cause immediately and without notice. Cause means
either the joint or several conduct of Xxxxxx which amounts to (i)
fraud, dishonesty or breach of fiduciary duty against the Company;
(ii) willful misconduct, insubordination, repeated refusal to follow
the reasonable directions of the President or violation of law in
the course of performance of duties with the Company; (iii) repeated
absences from work without a reasonable excuse; (iv) intoxication
with alcohol or drugs while on the Company's premises during regular
business hours; (v) a conviction or plea of guilty or nolo
contendere to a felony or a crime involving dishonesty: (vi) a
material breach or violation of the terms of his Agreement, the
Company's general employment policies or any other agreement to
which Xxxxxx and the Company are party; or (vii) any malfeasance or
misfeasance by Xxxxxx of his duties to the Company that is not
corrected within ten (10) calendar days after notice thereof to
Xxxxxx; or
(a) (d) At anytime during the Pre-Move Period.
5. Effects of Termination.
Upon termination:
(a) Pursuant to Section 4 (a)(b), the Company shall pay
Xxxxxx the Base Salary through the effective date of termination and
thereafter at a rate of 25% of the Base Salary through the
conclusion of the then current term of the Agreement. All other
benefits, bonuses and obligations of the Company to Xxxxxx shall
terminate upon the effective date of termination.
-3-
(b) Pursuant to Section 4 (c), Xxxxxx shall be entitled to
no further payments of the Base Salary or any other amounts or any
benefits under his Agreement and all then accrued but unpaid amounts
and benefits shall be immediately paid, and no further amounts or
benefits shall accrue.
(c) Pursuant to Section 4(d) the Company shall pay Xxxxxx
within ten (10) days of termination a $30,000 lump sum payment
(three (3) months salary at $10,000/month).
(d) Notwithstanding the above or the cause of termination
Xxxxxx'x 1,000,000 option shares shall vest as scheduled.
Accordingly, as further consideration for the compensation to be
paid Xxxxxx pursuant to the Xxxxxx covenants and agrees that he will not
directly or indirectly run, advise or otherwise participate in the plastic
pallet business in the U.S. during the term of the Agreement and for a period of
one (1) year thereafter.
6. Severability. The parties agree that each of the provisions included
in this Agreement is separate, distinct, and severable from the other provisions
of these Agreement, and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of these Agreement. Further, if any provision of this Agreement is ruled invalid
or unenforceable by a court of competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be modified to make the provision consistent with and valid and
enforceable under the law or public policy.
7. Assignment. This Agreement and the rights and obligations of the
hereunder may not be assigned by either party hereto without the prior written
consent of the other party hereto. Notwithstanding the foregoing, this Agreement
shall be binding on and inure to the benefit of the Company's successors.
8. Notices. Except as otherwise specifically provided herein, any
notice required or permitted to be given by, or to, either party pursuant to
this Agreement shall be given in writing, and shall be personally delivered, or
mailed by certified mail, return receipt requested, or provided by electronic
transmission with a copy sent contemporaneously by certified mail, return
receipt requested, at the address set forth below or at such other address as
either party shall designate by written notice to the other given in accordance
with this Section. Any notice complying with their Section shall be effective
immediately upon personal delivery or electronic transmission, and if mailed
only, on the third business day after mailing.
9. Waiver. The waiver by either party hereto of any breach of this
Agreement by the other party hereto shall not be effective unless in writing,
and no such waiver shall operate or be construed as the waiver of the same or
another breach on a subsequent occasion.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma. The parties agree that
jurisdiction and venue for any matter arising out of or pertaining to this
Agreement shall be proper only in the state
-4-
courts located in Tulsa County, Oklahoma, and the federal courts having
jurisdiction over the Northern District of Oklahoma, and the parties hereby
consent to such venue and jurisdiction.
11. Beneficiary. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and his respective successors, heirs, executors, administrators
and permitted assigns.
12. Entire Agreement. This Agreement executed contemporaneously
herewith embody the entire agreement of the parties on the subject matter stated
in the Agreement. No amendment or modification of this Agreement shall be valid
or binding upon the Company or Employee unless made in writing and signed by
both parties. All prior understandings and agreements relating to the subject
matter of this Agreement are hereby expressly terminated.
13. Confidentiality. The terms, conditions and existence of this
Agreement shall be confidential.
IN WITNESS WHEREOF, Xxxxxx and the Company have executed and delivered
this Agreement as of the date first shown above.
THE COMPANY: EMPLOYEE:
PALWEB CORPORATION
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------------- -------------------------
Xxxxxx X. Xxxxxx, President Xxxxxx X. Xxxxxx
-5-
