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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement is made as of April 30, 1999 by and between CAFE
ODYSSEY, INC., a Minnesota corporation (the "COMPANY"), and XXXXXX X. XXX (the
"EXECUTIVE").
WHEREAS, the Company desires to employ Executive in accordance with the
terms and conditions stated in this Agreement; and
WHEREAS, Executive desires to accept that employment pursuant to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
I. EMPLOYMENT
1.1 Employment as Chief Financial Officer and Executive Vice President.
The Company hereby employs Executive as Chief Financial Officer and Executive
Vice President and Executive accepts such employment pursuant to the terms of
this Agreement. Executive shall report to and take direction from the President.
The Executive will perform those duties which are usual and customary for a
Chief Financial Officer and Executive Vice President of a restaurant enterprise
and Internet company. He shall perform his duties in a manner reasonably
expected of a Chief Financial Officer and Executive Vice President of a
restaurant company.
1.2 Term. Employment shall be for an initial term of up to three years
commencing on June 1, 2000 and continuing until the earlier of (i) June 1, 200__
or (ii) the date Executive's employment terminates pursuant to Article III
hereof. Unless Executive's employment has been terminated pursuant to Article
III, the term of this Agreement shall be renewed for successive one-year terms
if mutually agreed upon by the Executive and the Board of Directors of the
Company (the "BOARD").
II. COMPENSATION, BENEFITS AND PERQUISITES
2.1 Base Salary. The Company shall pay Executive an annualized base
salary ("BASE SALARY") of $75,000 during the first year of this Agreement. The
Base Salary shall be payable in equal installments in the time and manner that
other employees of the Company are compensated. The President will review the
Base Salary at least annually and may, in his or her sole discretion, increase
it to reflect performance, appropriate industry guideline data or other factors.
2.2 Automobile Allowance. Executive shall receive an automobile
allowance of $680 per month.
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2.3 Vacations. Executive shall be entitled to three weeks' paid
vacation, or such greater amount of time as determined by the Board.
2.4 Employee Benefits. The Company agrees to pay 100% of the COBRA
continuation premiums for health and dental insurance currently maintained by
Executive and his family until the expiration of any waiting periods required
for full participation by Executive and his family under the Company's plans and
policies. Thereafter, Executive shall be entitled to the usual and customary
benefits and perquisites which the Company generally provides to its other
executives under its applicable plans and policies (including, without
limitation, group health, group dental and group life coverage). Executive shall
pay any contributions which are generally required of executives to receive any
such benefits.
2.5 Travel Expenses and Cost of Living Allowance. Executive shall be
reimbursed his reasonable travel expenses from his home to Minneapolis upon
submission of receipts to the Company. Executive shall also be reimbursed for
the cost of a temporary apartment, meals and other expenses for his stays in
Minneapolis up to a total of $1,200 per month upon submission of receipts to the
Company.
III. TERMINATION OF EXECUTIVE'S EMPLOYMENT
3.1 Termination of Employment. Executive's employment under this
Agreement may be terminated by the Company or Executive at any time for any
reason. The termination shall be effective as of the date specified by the party
initiating the termination in a written notice delivered to the other party,
which date shall not be earlier than the date such notice is delivered to the
other party. This Agreement shall terminate in its entirety immediately upon the
death of Executive. Except as expressly provided to the contrary in this section
or applicable law, Executive's rights to pay and benefits shall cease on the
date his employment under this Agreement terminates.
3.2 Notice. Each party must provide the other with at least 30 days'
written notice of termination of Executive's employment under this Agreement.
IV. CONFIDENTIALITY
4.1 Prohibitions Against Use. Executive acknowledges and agrees that
during the term of this Agreement he may have access to various trade secrets
and confidential business information ("CONFIDENTIAL INFORMATION") of the
Company. Executive agrees that he shall use such Confidential Information solely
in connection with his obligations under this Agreement and shall maintain in
strictest confidence and shall not disclose any such Confidential Information,
directly or indirectly, or use such information in any other way during the term
of this Agreement or for a period of two (2) years after the termination of this
Agreement. Executive further agrees to take all reasonable steps necessary to
preserve and protect the Confidential Information. The provisions of this
Section 4.1 shall not apply to information known by Executive which (i) was in
possession of Executive prior to receipt thereof from the Company, (ii) is or
becomes generally available to the public other than as a result of a disclosure
by Executive, or (iii) becomes available to Executive from a third party having
the right to make such disclosure.
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4.2 Remedies. Executive acknowledges that the Company's remedy at law
for any breach or threatened breach by Executive of Section 4.1 will be
inadequate. Therefore, the Company shall be entitled to injunctive and other
equitable relief restraining Executive from violating those provisions, in
addition to any other remedies that may be available to the Company under this
Agreement or applicable law.
V. NON-COMPETITION. Executive agrees that, on or before the date which is
one (1) year after the date Executive's employment under this Agreement
terminates, he will not, unless he receives the prior approval of the Board,
directly or indirectly engage in any of the following actions:
(a) Own an interest in (except as provided below), manage, operate,
join, control, lend money or render financial or other assistance to,
or participate in or be connected with, as an officer, employee,
partner, stockholder, consultant or otherwise, any entity whose primary
business is entertainment-themed restaurants or any entity whose
primary business is the provision of internet-based e-mail services to
radio stations, in each case, within the United States. However,
nothing in this subsection (a) shall preclude Executive from holding
less than 1% of the outstanding capital stock of any corporation
required to file periodic reports with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, the securities of which are listed on any securities
exchange, quoted on the National Association of Securities Dealers
Automated Quotation System or traded in the over-the-counter market.
(b) Intentionally solicit, endeavor to entice away from the
Company, or otherwise interfere with the Company's relationship with
any person who is employed by or otherwise engaged to perform services
for the Company (including, but not limited to, any independent sales
representatives or organizations), whether for Executive's own account
or for the account of any other individual, partnership, firm,
corporation or other business organization.
If the scope of the restrictions in this Article V are determined by a court of
competent jurisdiction to be too broad to permit enforcement of such
restrictions to their full extent, then such restrictions shall be construed or
rewritten so as to be enforceable to the maximum extent permitted by law, and
Executive hereby consents, to the extent he may lawfully do so, to the judicial
modification of the scope of such restrictions in any proceeding brought to
enforce them.
VI. MISCELLANEOUS
6.1 Amendment. This Agreement may be amended only in writing, signed by
both parties.
6.2 Entire Agreement. This Agreement contains the entire understanding
of the parties with regard to all matters contained herein. There are no other
agreements, conditions or representations, oral or written, expressed or
implied, with regard thereto. This Agreement supersedes all prior agreements
relating to the employment of Executive by the Company.
6.3 Assignment. This Agreement shall be binding upon, and shall inure
to the benefit of parties and their respective successors, assigns, heirs and
personal representatives and any entity with which the Company may merge or
consolidate or to which the Company may sell substantially all of its assets.
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6.4 Notices. Any notice required to be given under this Agreement shall
be in writing and shall be delivered either in person or by certified or
registered mail, return receipt requested. Any notice by mail shall be addressed
as follows:
If to the Company, to: Cafe Odyssey, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: President
If to Executive, to: Xxxxxx X. Xxx
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
or to such other addresses as either party may designate in writing to the other
party from time to time.
6.5 Waiver of Breach. Any waiver by either party of compliance with any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any other provision of this Agreement, or of any subsequent
breach by such party of a provision of this Agreement.
6.6 Severability. If any one or more of the provisions (or portions
thereof) of this Agreement shall for any reason be held by a final determination
of a court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions (or portions of the provisions) of this Agreement, and the
invalid, illegal or unenforceable provisions shall be deemed replaced by a
provision that is valid, legal and enforceable and that comes closest to
expressing the intention of the parties hereto.
6.7 Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Minnesota, without giving effect to
conflict of law principles.
6.8 Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach of this Agreement or the breach of any exhibits
attached to this Agreement shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and a
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction. The arbitrator(s) shall have the authority to award
the prevailing party its costs and reasonable attorney's fees which shall be
paid by the non-prevailing party. In the event the parties hereto agree that it
is necessary to litigate any dispute hereunder in a court, the non-prevailing
party shall pay the prevailing party its costs and reasonable attorney's fees.
Notwithstanding anything in this Section to the contrary, during the pendency of
any dispute or controversy arising under or in connection with this Agreement or
exhibits attached to this Agreement, the Company shall be entitled to seek an
injunction or restraining order in a court of competent jurisdiction to enforce
the provisions of Articles IV and V.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
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CAFE ODYSSEY, INC.
/s/ Xxxxxx X. Xxxxxx
By: Xxxxxx X. Xxxxxx
Its: President
/s/ Xxxxxx X. Xxx
XXXXXX X. XXX
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