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EXHIBIT 7.4
AGREEMENT
This Agreement is made as of September 1, 1999 by and between Cafe
Odyssey, Inc., a Minnesota corporation (the "Company"), and Xxxxx X. Xxxxxxxx
(the "Executive").
WHEREAS, the Company desires to engage Executive in accordance with
the terms and conditions stated in this Agreement; and Executive desires to
accept that engagement 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. ENGAGEMENT
1.1 Election as Chairman.
(a) The Company hereby agrees to us its best efforts to
nominate and recommend to its shareholders that Executive be elected
to the Company's Board of Directors throughout the Term of this
Agreement (as defined below). In connection therewith, the Company
shall include Executive in the management slate for election as a
director at every shareholders' meeting at which his term as a
director would otherwise expire. In every case under this Agreement
where action of the Board is required, such vote shall not include
Executive's vote at any time that Executive is a member of the Board.
(b) For so long as Executive is a member of the Board of
Directors of the Company, the Company hereby agrees to elect Executive
as Chairman of the Board of Directors of the Company. Executive
accepts such election and his engagement on behalf of the Company
pursuant to the terms of this Agreement. Executive shall report to and
take direction from the Board of Directors of the Company (the
"BOARD"). The Executive will perform those duties which are usual and
customary for a Chairman, in a manner reasonably expected of a
Chairman.
1.2 Term. Employment shall be for an initial term of five (5) years
commencing on the date hereof and continuing until the fifth anniversary of the
date hereof; provided, that this Agreement shall automatically continue
thereafter for successive one-year renewal terms unless the Board gives written
notice of termination to Consultant not less than six (6) months prior to
expiration of the initial term or the renewal term then in progress, as
applicable; and provided further, that Consultant's employment under this
Agreement shall not terminate at any time during which Consultant and any
trusts for which Consultant serves as trustee shall collectively control shares
of Company common stock, and any shares of Company common stock represented by
Consultant's holdings of securities convertible into or exchangeable (whether
or not vested or presently convertible or exchangeable) for shares of Company
common stock representing not less that five percent of the Company's
outstanding common stock (assuming no dilution from unexercised or unconverted
derivative securities other those held by Consultant). Notwithstanding any of
the foregoing, this Agreement may terminate at any time during the initial term
of this Agreement or any extension thereof upon the occurrence of a terminating
event
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as described in Section III. The term for which this Agreement shall remain in
effect is referred to herein as the "Term".
II. HOURLY COMPENSATION
During the Term, the Company shall compensate Executive for each hour
devoted by Executive to the business of the Company at the rate of $200 per
hour. Executive shall prepare and deliver to the Company an invoice by the 10th
day of each month providing a general description of the time devoted by
Executive during the preceding month to the business of the Company. The
Company shall pay to Executive the amount indicated on such invoice as being
due to Executive within 15 days after receipt thereof. The Board will review
the hourly rate at least annually and may, in its sole discretion, increase it
to reflect performance, but at no time shall the Company reduce Executive's
hourly rate below $200.
III. TERMINATION OF ENGAGEMENT
3.1 Termination of Engagement. This Agreement may be terminated by the
Executive at any time upon 10 days' written notice to the Company, or by the
Company at any time for Cause. Termination of this Agreement by the Company
shall be effective as of the date specified in a written notice by the Company
delivered to the Executive, which date shall not be earlier than the date such
notice is delivered. 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 shall cease on the
date this Agreement terminates.
3.2 Definitions. For purposes of this Agreement, "cause" shall only
mean (i) a final, nonappealable conviction of Executive of a felony; (ii) theft
or embezzlement of Company property; or (iii) any other willful and continued
failure by Executive to substantially perform his material duties under this
Agreement (excluding nonperformance resulting from disability), which willful
failure is not cured within 30 days after written notice from the Board of
Directors specifying the act of willful nonperformance and the requisite
remedial action required of Executive or within such longer period (but no
longer than 90 days in any event) as is reasonably required to cure such
willful nonperformance. Notwithstanding the foregoing, Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to Executive a copy of a resolution duly adopted by the affirmative
vote of the Board at a meeting of the Board called and held for this specific
purpose.
3.3 Disability. If Executive has become disabled such that he cannot
perform the essential functions required of him under this Agreement with or
without reasonable accommodation, and the disability has continued for a period
of more than 90 days, the Board may, in its discretion, terminate 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 and its subsidiaries. Executive agrees that he shall use such
Confidential Information solely in connection with his obligations under this
Agreement and shall
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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.
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
5.1 Agreement Not to Compete. Executive agrees that, on or before the
date which is one (1) year after the date 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 email
services to radio stations, in each case, within the United States.
However, nothing in this subsection (a) shall preclude Executive from
holding less than 5% 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 or endeavor to entice away from the
Company 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 Section 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 (blue-lined) 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.
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VI. MISCELLANEOUS
6.1 Amendment. This Agreement may be amended only in writing, signed
by both parties.
6.2 Assignment. This Agreement shall be binding upon, and shall inure
to the benefit of, the 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.
6.3 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 or to such other addresses as either party may designate
in writing to the other party from time to time:
If to the Company: Cafe Odyssey, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: President
If to Executive, to: Xxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
6.4 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.
6.5 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.
6.6 Independent Contractor. The parties to this Agreement intend that
Consultant shall be an independent contractor and not an employee of the
Company. Except as otherwise provided herein, Consultant shall have sole
control over the details of, and the manner and means of performing, his
duties. Consultant shall be responsible for the payment of his own income,
F.I.C.A., and other applicable taxes.
6.7 Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Texas, 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
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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 Article
IV and Article V.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date set forth above.
CAFE ODYSSEY, INC.
/s/ Xxxxxx X. Xxxxxx
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By:
Its: President
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
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