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Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") dated this 1st day of June, 1997,
between SPINCYCLE, INC., a Minnesota corporation (hereinafter referred to as the
"Company"), and XXXXXXXXXXX X. XXXXXXXX (hereinafter referred to as
"Executive"):
W I T N E S S E T H:
WHEREAS, the Company has hired Executive as an employee and as Chief
Development Officer of the Company; and
WHEREAS, the Company and Executive desire to set forth in this
Agreement the terms, conditions and obligations of the parties with respect to
such employment and this Agreement is intended by the parties to supersede all
previous agreements and understanding, whether written or oral, concerning such
employment.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive, and Executive
hereby accepts employment as Chief Development Officer of the Company upon the
terms and conditions hereinafter set forth. Executive shall perform such duties
and responsibilities for the Company which are commensurate with his capacity as
may be assigned him by the Chief Executive Officer of the Company and the
Company's Board of Directors. In connection with the duties to be performed
pursuant to this Agreement, Executive shall report directly to the Chief
Executive Officer of the Company. Incident to the performance of such duties,
Executive shall be provided by the Company with office space, facilities and
secretarial assistance commensurate with his position.
2. TERM. The initial term of Executive's employment hereunder shall be
for a period beginning on the date hereof and ending three years from the date
hereof. Unless either party shall give the other party at least ninety (90) days
written notice prior to the expiration of any Term of his or its intention to
terminate this Agreement, the term of this Agreement shall be extended for
additional one year terms thereafter, subject to the provisions of Section 5
hereof. For the purposes of this Agreement, "Term" shall mean the initial term
and any applicable extended term.
3. COMPENSATION.
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3.1 Base Salary. The Company agrees to pay Executive during
the initial term a minimum annual base salary of $120,000. The salary shall be
payable at intervals not less often than monthly and otherwise in accordance
with the Company's policies. Such salary shall be reviewed annually by the
Company's Board of Directors.
3.2 Incentive Bonus. Executive shall be entitled to
participate in an incentive bonus or compensation plans or programs which may be
established by the Board of Directors of the Company from time to time.
3.3 Participation in Benefit Plans. Executive shall also be
entitled to participate in all employee benefit plans or programs (including
vacation time) of the Company to the extent that his position, title, tenure,
salary, age, health and other qualifications make him eligible to participate.
The Company does not guarantee the adoption or continuance of any particular
employee benefit plan or program during the term of this Agreement, and
Executive's participation in any such plan or program shall be subject to the
provisions, rules and regulations applicable thereto.
3.4 Expenses. The Company will pay or reimburse Executive for
all reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the presentment of
appropriate vouchers in accordance with the Company's normal policies for
expense verification.
3.5 Options. Executive shall be eligible to participate in the
Company's Employee Stock Option Plan.
4. EXTENT OF SERVICE. Executive shall devote his entire time, attention
and energies to the business of the Company and shall not during the term of
this Agreement be engaged (whether or not during normal business hours) in any
other business or professional activity, whether or not such activity is pursued
for gain, profit or other pecuniary advantage; but this shall not be construed
as preventing Executive from (a) investing his personal assets in businesses
which do not compete with the Company in such form or manner as will not require
any services on the part of Executive in the operation or the affairs of the
companies in which such investments are made and in which his participation is
solely that of an investor; (b) purchasing securities in any corporation whose
securities are publicly traded; or (c) accepting appointments to the boards of
directors of other companies provided that the Chairman of the Company approves
of such appointments and Executive's performance of his duties on such boards
does not result in a violation of his covenants under Section 5 hereof.
5. CONFIDENTIAL INFORMATION AND COVENANT NOT TO COMPETE. All payments
and benefits to Executive under the Agreement shall be subject to Executive's
compliance with the provisions of this Section 5.
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5.1 Confidential Information.
(a) Except as permitted or directed by the Company's
Board of Directors, during the term of this Agreement or at any time
thereafter Executive shall not divulge, furnish or make accessible to
anyone or use in any way (other than in the ordinary course of the
business of the Company) any confidential or secret knowledge or
information of the Company which Executive has acquired or become
acquainted with prior to the termination of the period of his
employment by the Company (including employment by the Company or any
affiliated companies prior to the date of this Agreement), whether
developed by himself or by others, concerning any trade secrets,
confidential or secret designs, processes, formulae, plans, devices or
material (whether or not patented or patentable) directly or indirectly
useful in any aspect of the business of the Company, any customer or
supplier lists of the Company, any confidential or secret development
or research work of the Company, or any other confidential information
or secret aspect of the business of the Company. Executive acknowledges
that the above described knowledge or information constitutes a unique
and valuable asset of the Company and represents a substantial
investment of time and expense by the Company and its predecessors, and
that any disclosure or other use of such knowledge or information other
than for the sole benefit of the Company would be wrongful and would
cause irreparable harm to the Company. Both during and after the term
of the Agreement, Executive will refrain from any acts or omissions
that would reduce the value of such confidentiality, however, shall not
apply to any knowledge or information which is now published or which
subsequently becomes generally publicly known in the form in which it
was obtained from the Company, other than as a direct or indirect
result of the breach of this Agreement by Executive.
(b) Upon termination of his employment with the
Company, Executive shall deliver promptly to the Company all records,
manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof, which
are the property of the Company or which relate in any way to the
business, products, practices or techniques of the Company, and all
other property, trade secrets and confidential information of the
Company, including, but not limited to, all documents which in whole or
in part contain any trade secrets or confidential information of the
Company, which in any of these cases are in his possession or under his
control.
5.2 Litigation Support. Executive shall, upon reasonable
notice, furnish such information and proper assistance to the Company as may
reasonably be required by the Company in connection with any litigation in which
the Company or any of its subsidiaries or affiliates is, or may become a party.
Executive's reasonable expenses (including travel and reasonable attorneys fees)
incurred in complying with this covenant shall be promptly reimbursed.
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5.3 No Solicitation of Employees. Executive agrees that during
the Term of this Agreement and continuing for a period of one year after the
termination of this Agreement, neither Executive nor any person or enterprise
controlled by Executive will solicit for employment any person employed by the
Company.
5.4 Covenant Not to Compete. Executive agrees that during the
Term of this Agreement and for a period of one year after the termination of
this Agreement neither Executive nor any person or enterprise controlled by
Executive will become a stockholder, director, officer, principal, agent,
consultant, partner or employee of a business, whether or not incorporated, or
have any financial stake of any nature in any of the foregoing or otherwise
engage directly or indirectly in any enterprise which competes with the Company
in any geographic area in which the Company does business during the Term or in
any geographic area in which the Company has otherwise established its goodwill,
business reputation, or any customer or supplier relations.
5.5 Remedies for Breach of Covenants. In the event that a
covenant included in this Agreement shall be deemed by any court to be
unreasonably broad in any respect, it shall be modified in order to make it
reasonable and shall be enforced accordingly; provided, however, that in the
event that any court shall refuse to enforce any of the covenants contained in
Sections 5.1 through 5.4, then the unenforceable covenant shall be deemed
eliminated from the provisions of this Agreement for the purpose of those
proceedings to the extent necessary to permit the remaining covenants to be
enforced so that the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
If Executive violates any of the covenants contained in this Section 5,
then the Company's obligation to make any payments to Executive otherwise due
him under this Agreement shall immediately cease. In addition, Executive
acknowledges that any material breach of his covenants contained in Sections 5.1
through 5.4 will cause irreparable harm to the Company, which will be difficult
if not impossible to ascertain, and the Company shall be entitled to equitable
relief, including injunctive relief, against any actual or threatened breach
hereof, without bond and without liability should such relief be denied,
modified or vacated. Neither the right to obtain such relief or the obtaining of
such relief shall be exclusive of or preclude the Company from any other remedy.
6. TERMINATION.
6.1 Death or Disability. If Executive should die or become
physically or mentally disabled and unable to perform duties hereunder for a
continuous period in excess of ninety (90) days in any one hundred eighty (180)
day period (in the reasonable opinion of the Company), which event shall result
in the termination of Executive's employment with the Company, the Company shall
continue to pay Executive's current base salary (less the amount of any
disability benefit payments paid or payable to Executive during such period from
disability benefits maintained and paid for by the Company) for the balance of
the calendar year in which
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such death or disability occurs, but in no event for not less than one hundred
eighty (180) days, plus any bonus payments which have fully accrued at the date
of termination pursuant to this Section 6.1. In addition, in the event of
disability, Executive's participation in any medical, health, accident,
disability, death, life insurance or similar plan in which Executive was
participating immediately prior to termination shall continue for the period in
which payments are being made under this Section at the Company's expense
(subject to any normal employee contributions, if any), although any
continuation of health coverage shall count toward the "COBRA" continuation of
coverage period. The payments to be made under this Section shall be made to
Executive, or in the event of Executive's death, to such beneficiary as
Executive may designate in writing to the Company for that purpose, or if
Executive has not so designated, then to the spouse of the Executive, or if none
is surviving, then to the personal representative of the estate of Executive.
This Section shall not be effective after any Termination pursuant to Section
6.2.
6.2 Termination for Cause. The Company shall have the right to
terminate this Agreement for "Cause" upon thirty (30) days prior written notice
if, in the reasonable determination of the Company, Executive has engaged in
misconduct so as to constitute "Cause." For purposes of this Agreement, such
misconduct shall be defined as:
(a) Executive's failure or refusal, after written
notice thereof, to perform specific directives approved by a majority
of the Board of Directors which are consistent with the scope and
nature of Executive's duties and responsibilities as Chief Development
Officer of the Company;
(b) Dishonesty of Executive which directly or
indirectly has a materially adverse affect on the Company;
(c) Habitual drunkenness or use of drugs which
interferes with the performance of Executive's duties and obligations
under this Agreement;
(d) Executive's commission of a felony or of any
crime involving moral turpitude, fraud, defalcation, or
misrepresentation;
(e) Any gross or willful misconduct of Executive
resulting in substantial loss to the Company or substantial damages to
the Company's reputation;
(f) Any breach of Executive's covenants contained in
Sections 5.1 through 5.4 hereof.
If this Agreement is terminated for Cause pursuant to this Section 6.2,
the Company shall have no further obligations to Executive under this Agreement.
However, Executive's covenants under Sections 5.1 through 5.4 hereof shall
remain in full force and effect.
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6.3 Termination by Company. If the Company terminates the
employment of Executive during the initial Term or during any succeeding Term
for any reason other than as specified in Sections 6.1 or 6.2, Executive shall
be entitled to the following liquidated damages: (i) an amount equal to twelve
month's base salary and (ii) any bonus payable hereunder which has been fully
accrued at the time of termination. Such amounts shall be paid in twelve month
installments beginning on the 1st day of the calendar month coincident with or
immediately following termination of service. In the event of the death of
Executive, all remaining payments hereunder shall be payable to Executive's
beneficiary described in Section 6.1. The Company shall not be deemed to have
waived its right to terminate this Agreement under this Section 6.3 merely
because Executive's ability to accrue certain benefits under this Agreement
ceases due to the exercise by the Company of its right to terminate this
Agreement.
6.4 Termination by Executive. If Executive voluntarily
terminates his employment prior to the expiration of the Term of this Agreement,
this Agreement shall terminate forthwith and all obligations of each party to
the other shall terminate immediately, other than the Company's obligation to
pay base salary accrued to the date of termination.
7. WITHHOLDING OF TAXES. The Company may withhold from any benefits
payable under the Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
8. FACILITY OF PAYMENT. If the Company shall find that any person to
whom any amount is or was payable hereunder is unable to care for his affairs
because of illness or accident, or is a minor, or has died, then the Company, if
it so elects, may direct that any payment due him or his estate (unless a prior
claim therefore has been made by a duly appointed legal representative) or any
part thereof, be paid or applied for the benefit of such person or to or for the
benefit of his spouse, children or other dependents, an institution maintaining
or having custody of such person, any other person deemed by said Board to be a
proper recipient on behalf of such person otherwise entitled to payment, or any
of them, in such manner and proportion as the Board may deem proper. Any such
payment shall be in complete discharge of the liability of the Company therefor.
9. UNSECURED CREDITOR STATUS. Executive shall have no right, title, or
interest whatsoever in or to any investments which the Company may make to aid
it in meeting its obligations under the Agreement. Nothing contained in the
Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship between the
Company and Executive, his beneficiary, legal representative or any other
person. To the extent that any person acquires a right to receive payments from
the Company under the Agreement, such right shall be no greater than the right
of an unsecured general creditor of the Company. All payments to be made
hereunder shall be paid from the general funds of the Company and no special or
separate fund shall be established and no segregation of assets shall be made to
assure payment of such amounts.
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10. NON-ALIENATION OF BENEFITS. Except insofar as applicable law may
otherwise require, no amount payable to or in respect of Executive at any time
under the Agreement shall be subject in any manner to alienation by
anticipation, sale, transfer, assignment, bankruptcy, pledge, attachment, charge
or encumbrance of any kind, and any attempt to so alienate, sell, transfer,
assign, pledge, attach, charge or otherwise encumber any such amount, whether
presently or thereafter payable, shall be void; provided, however, that nothing
in this Section 10 shall preclude Executive from designating a beneficiary or
beneficiaries to receive any benefit on his death.
11. SEVERABILITY. If any provision of this Agreement, as applied to any
party or to any circumstance, shall be found by a court to be void, invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement the application of any such provision in any other circumstance, or
the validity or enforceability of this Agreement.
12. ENTIRE UNDERSTANDING. This Agreement contains the entire
understanding of the parties hereto relating to the subject matter contained
herein and supersedes all prior and collateral agreements, understandings,
statements and negotiations of the parties. Each party acknowledges that no
representations, inducements, promises, or agreements, oral or written, with
reference to the subject matter hereof have been made other than as expressly
set forth herein. This Agreement cannot be changed, rescinded or terminated
orally.
13. NOTICES. Any notice required or permitted to be given under this
Agreement shall he in writing and shall be deemed to have been given when
deposited in the U.S. mail in a registered, postage prepaid envelope addressed:
If Executive, at his address set forth below, and if to the Company, c/o Chief
Executive Officer, SpinCyle, Inc., 00000 Xxxxxx Xxxx Xxxx Xxxxx 000, Xxxx
Xxxxxxx, Xxxxxxxxx 00000.
14. ASSIGNMENT. This Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of Executive, assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity with or into which the Company may merge or consolidate, or to which the
Company may sell or transfer all or substantially all of its assets, or of which
50% or more of the equity investment and the voting control is owned, directly
or indirectly, by, or is under common ownership with, the Company. After any
such assignment by the Company, the Company shall be discharged from all further
liability hereunder and such assignee shall thereafter be deemed to be the
Company for the purposes of all provisions of this Agreement including this
Section 14.
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15. MISCELLANEOUS.
15.1 This Agreement shall be subject to and governed by the
laws of the State of Arizona.
15.2 Failure to insist upon strict compliance with any
provisions hereof shall not be deemed a waiver of such provisions or any other
provision hereof.
15.3 The invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of any other provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SPINCYCLE, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Chief Executive Officer
/S/ Xxxxxxxxxxx X. Xxxxxxxx
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Xxxxxxxxxxx X. Xxxxxxxx
Address:
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