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EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Agreement is made as of October 5, 1999 by and between CAFE ODYSSEY,
INC., a Minnesota corporation (the "COMPANY"), and THOMAS W. ORR (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, 1999 and continuing until the earlier of (i) June 1, 2002
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 $150,000 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 Bonus. Executive shall receive a bonus ("BONUS") of up to 30% of his
Base Salary. Executive's bonus shall be based upon meeting certain performance
criteria which shall be set by the Board from time to time.
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2.3 Automobile Allowance. Executive shall receive an automobile allowance
of $680 per month.
2.4 Vacations. Executive shall be entitled to three weeks' paid vacation,
or such greater amount of time as determined by the Board.
2.5 Cafeteria Plan Benefits. In lieu of participating in any
Company-sponsored welfare plans, Executive shall receive $20,000 per year in
cafeteria plan benefits which Executive will utilize in his sole discretion for
health, life, disability, and dental insurance or expenses, educational
expenses, other personal expenses, and other benefits which the Company may from
time to time make available.
2.6 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;
provided, however, that if Executive's employment is terminated by the Company
during the term of this Agreement for a reason other than for cause as defined
in Section 3.2 below, he shall continue to receive his Base Salary for a period
of one (1) year from the date of termination. 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 Cause. For purposes of this Article III, "CAUSE" shall mean only the
following: (i) commission of a felony; (ii) theft or embezzlement of Company
property or commission of similar acts involving moral turpitude; (iii) alcohol
or drug abuse which, in the judgment of the Board, has rendered Executive
incapable of carrying out his duties hereunder; or (iv) any other failure by
Executive to substantially perform his material duties under this Agreement
(excluding nonperformance resulting from disability), which failure is not cured
within 30 days after written notice from the Chairman of the Board specifying
the act of nonperformance.
3.3 Disability. If Executive has become disabled such that he cannot
perform the essential functions of his job 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 his employment under this
Agreement.
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3.4 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.
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.
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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.
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: PopMail.com, inc.
4801 West 81st Street, Suite 112
Bloomington, MN 55437
Attention: President
If to Executive, to: Thomas W. Orr
3440 W. Pepperwood Loop
Tucson, AZ 85742
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
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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.
POPMAIL.COM, INC.
s/ Ronald K. Fuller
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By: Ronald K. Fuller
Its: President
s/ Thomas W. Orr
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THOMAS W. ORR
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