EXHIBIT 10.35
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT shall be effective on 13th day of August, 2003
between PalWeb Corporation (the "Company") and Xxxxxx X. Xxxxxx ("Xxxxxx").
RECITALS
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WHEREAS, the Company has determined that Kruger's services to the Company
will be of great value to the Company, and accordingly, the Company desires to
enter into this Agreement with Kruger as set forth herein in order to secure
such services;
WHEREAS, Kruger hereby represents and warrants to the Company that he is
free to work for the Company without violation of any other agreements to which
Kruger is a party;
WHEREAS, Kruger desires to serve as an employee of the Company on the terms
set forth herein;
NOW THEREFORE, for and in consideration of Kruger's employment by the
Company, the promises and the mutual agreements set forth herein, Kruger and the
Company agree as follows:
1. Employment Duties.
(a) The Company agrees to employ Kruger as the President and CEO and
person in charge of the Company's beverage pallet operations in Dallas,
Texas, and Bettendorf, Iowa, operating as Plastic Pallet Production, Inc.
("PPP") a wholly owned subsidiary of the Company with the duties and
responsibilities generally associated with such position, and such other
reasonable additional responsibilities as may be added to Kruger's duties
from time-to-time by the Company's Board of Directors (the "Board"). Kruger
shall report directly to the Board of the Company.
(b) Kruger shall (i) diligently follow and implement all policies and
decisions communicated by the Minutes; (ii) timely prepare and forward to
the Board all reports and accountings 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.
(c) The work product to be produced hereunder by Kruger 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, Kruger
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 Kruger conceives or acquires during the employment
relationship with Company or that Kruger 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 five (5) years ("Initial
Term") with three (3) automatic one (1) year renewal periods ("New Terms");
however, the New Terms shall not renew in the event that either party gives the
other party at least ninety (90) days prior written notice of non-renewal prior
to the end of the then-current term. In the event either party provides notice
of non-renewal or terminates their Agreement pursuant to Section 4, Kruger shall
jointly and severally diligently assist the Company in transitioning all matters
and work for which he was responsible as the Company shall direct.
3. Compensation.
(a) Upon Closing the purchase of the Greystoneone assets of the
Company, Kruger shall be paid a total annual cash compensation as salary
totaling $240,000 per year (the "Base Salary"). Payments shall accrue and
be due and payable in equal, or as nearly equal as practicable,
semi-monthly installments.
(b) Kruger will also be entitled to related benefits provided by the
Company to other Managers and Operations officers such as:
(i) The Company will provide health insurance benefits for Kruger
and dependents.
(ii) Kruger 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 the Board
and incurred by Kruger on behalf of Company in the normal course
of business.
(iii) Kruger shall receive three (3) 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.
4. Termination. This Agreement and Kruger's employment can be terminated
by the Board of the Company as follows:
(a) Upon the death of Kruger; or
(b) Upon Kruger's 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) By the Company for Cause immediately and without notice. Cause
means either the joint or several conduct of Kruger 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 Board 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
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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 Kruger and the Company are party; or (vii) any
malfeasance or misfeasance by Kruger of his duties to the Company that is
not corrected within ten (10) calendar days after notice thereof to Kruger.
5. Effects of Termination.
Upon termination:
(a) Pursuant to Section 4 (a)(b), the Company shall pay Kruger 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 Kruger shall terminate upon the effective date of termination.
(b) Pursuant to Section 4 (c), Kruger 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.
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 redrawn 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
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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, Kruger and the Company have executed and delivered this
Agreement as of the date first shown above.
THE COMPANY: EMPLOYEE:
PALWEB CORPORATION
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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XXXXXXX XXXXXX XXXXXX X. XXXXXX
CHIEF FINANCIAL OFFICER CHIEF EXECUTIVE OFFICER
AND PRESIDENT
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