EXHIBIT 10.28
EXECUTIVE EMPLOYMENT
AGREEMENT
This Agreement is
between Steven C. Cooper (“Executive”) and Labor Ready,
Inc. or the Labor Ready, Inc. subsidiary employing Executive
(“Labor Ready” or the “Company”), and is
effective as of March 23, 2005.
RECITALS
A.
Executive has served in a
management or executive capacity with Labor Ready since January
2001 and as of the date of this Agreement serves in the role of
Executive Vice President and Chief Financial Officer. In this
capacity, Executive has served a key role on the executive team and
has had company-wide management responsibility, including
responsibility for affiliates of Labor Ready. Additionally,
Executive has had and is expected to continue to have access to
confidential and propriety information of Labor Ready which is
vital to the ability of Labor Ready and its affiliates to compete
in all of its locations. Executive’s entering into this
Agreement is a condition of continued employment and continued
access to such materials.
B.
Executive and Labor Ready
have entered into a contract dated January 9, 2001 (“Previous
Employment Agreement”). The Previous Employment
Agreement expires on January 8, 2006, unless sooner terminated,
subject to the survival of certain provisions.
C.
Executive wishes to
continue employment with Labor Ready and Labor Ready wishes to
continue to employ Executive under the terms and conditions stated
in this Agreement.
I.
COMPENSATION AND POSITION .
A.
Employment . In consideration of payment to
Executive in the amount of $200 and the covenants and promises
contained herein and other good and valuable consideration, the
Company hereby agrees to continue to employ Executive and Executive
hereby agrees to be employed by the Company, upon the terms and
conditions hereinafter set forth.
B.
Effective Date.
1.
Except as noted in Section 1(B)(2), the terms and conditions of
this Agreement shall become effective upon the expiration of the
Previous Employment Agreement on January 8, 2006, provided
that Executive remains employed with Labor Ready as of that
date.
2.
Notwithstanding the foregoing, as of the date of this Agreement,
the Previous Employment Agreement is amended as follows:
(a)
The following new provision is added as new Paragraph 23 of the
Previous Employment Agreement:
In the event of
termination of Executive’s employment other than for cause
under Paragraph 11(a), the Company shall pay to Executive the
following amount, which, except as set forth in Exhibit A regarding
certain stock option grants, shall be Executive’s exclusive
remedy for such termination, subject to withholding:
(i) unpaid wages and unused vacation
earned through the termination date; and
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(ii) separation payments for twelve (12)
months from the termination date at the based monthly salary in
effect for Executive on the termination date.
To be entitled to the
benefits set forth in this Paragraph 23(b), Executive must sign and
deliver and not revoke a release in the form of Exhibit C to this
Agreement in accordance with its terms and be in full compliance
with Paragraphs 15 and 16 of this Agreement.
(b)
Exhibit A of this Agreement shall become Exhibit C to the Previous
Employment Agreement, as amended.
C.
Position and Compensation . Executive’s position and
compensation will be set by the Board of Directors based on
recommendations of the Compensation Committee. In addition to
the foregoing, the Company shall pay Executive the gross amount of
$200 as consideration for Executive’s entry into this
Agreement.
D.
Benefits.
1.
Executive shall be entitled to all benefits offered generally to
employees of the Company.
2.
Executive shall be entitled each year during the term of this
Agreement to a vacation of twenty-five (25) business days, no two
of which need be consecutive, during which time his compensation
shall be paid in full.
3.
To the fullest extent permitted by law, Company shall indemnify and
hold harmless Executive for any and all losses, cost, damage and
expense including attorneys’ fees and court costs incurred or
sustained by Executive, in accordance with the present provisions
Article 5G of the Company’s Articles of
Incorporation.
II.
TERMS AND CONDITIONS .
A.
Employment At Will .
1. The Company and Executive agree that Executive’s
employment is not for any specific or minimum term, and that
subject to Section II(A)(2) of this Agreement, the continuation of
Executive’s employment is subject to the mutual consent of
the Company and Executive, and that it is terminable at will,
meaning that either the Company or Executive may terminate the
employment at any time, for any reason or no reason, with or
without cause, notice, pre-termination warning or discipline, or
other pre- or post-termination procedures of any kind.
Executive acknowledges and agrees that any prior representations to
the contrary are void and superseded by this Agreement.
Executive may not rely on any future representations to the
contrary, whether written or verbal, express or implied, by any
statement, conduct, policy, handbook, guideline or practice of
Labor Ready or its employees or agents. Nothing in this
Agreement should be construed as creating any right, contract or
guarantee of employment.
2.
(a) In
the event of termination of Executive’s employment for any
reason, Executive shall be paid unpaid wages and unused vacation
earned through the termination date.
(b) If
Labor Ready terminates Executive’s employment without Cause
or Executive terminates employment with Good Reason as defined in
this Agreement, in addition to the amounts described in Section
II(A)(2)(a) Executive shall be provided with the following as the
sole remedy for such termination, subject to
withholding:
(i)
separation payments for twelve (12) months from the termination
date at the base monthly salary in effect for Executive on the
termination date, with the actual period of receipt of such
payments being referred to as the “Severance Period”;
and
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(ii)
continued vesting for a period of twelve (12) months past the
Executive’s employment termination date of any previously
awarded stock options, restricted stock and other equity awards in
compliance with the terms of the relevant plan or plans, and any
applicable sub-plan or option agreement, provided that all vested
awards shall be exercised prior to the end of such twelve-month
period.
(c) To
be entitled to the benefits set forth in Section II(A)(2)(b),
Executive must (i) sign and deliver and not revoke a release in the
form of Exhibit A to this Agreement in accordance with its terms;
and (ii) be in full compliance with all provisions of Section III
and IV of this Agreement.
3.
(a) For
the purpose of this Agreement, “Cause,” as used herein,
means any of the following: (i) any material breach of this
Agreement by Executive which, if curable, has not been cured within
twenty (20) days after Executive has been given written notice of
the need to cure such breach, or which breach, if previously cured,
recurs; (ii) unauthorized use or disclosure of Confidential
Information, as defined in this Agreement; (iii) Executive’s
continued failure to satisfactorily perform Executive’s
essential responsibilities, in the good faith discretion of the
Board, provided that Executive has been given at least 30
days’ written notice of the need to cure the failure and cure
has not been effected within that time period, or which failure, if
previously cured, recurs; (iv) material failure of Executive to
comply with rules, policies or procedures of the Company as they
may be amended from time to time, provided that Executive has been
given at least 30 days’ written notice of the need to cure
the failure, if such failure is curable, and cure has not been
effected within that time period, or which failure, if previously
cured, recurs; (v) dishonesty, fraud or gross negligence related to
the business; (vi) personal conduct that is materially detrimental
to the business; or (vii) conviction of or plea of nolo contendere to a
felony.
(b)
“Good Reason,” as used herein, means (i) any material
breach of this Agreement by the Company which, if curable, has not
been cured within 20 days after the Company has been given written
notice of the need to cure the breach, or which breach, if
previously cured, recurs; or (ii) assignment of Executive, without
Executive’s consent, to a position that is not a management
position.
B.
Arbitration . The Company and Executive agree that
any claim arising out of or relating to this Agreement, or the
breach of this Agreement, or Executive’s application,
employment, or termination of employment, shall be submitted to and
resolved by binding arbitration under the Federal Arbitration
Act. The Company and Executive agree that all claims shall be
submitted to arbitration including, but not limited to, claims
based on any alleged violation of Title VII or any other federal or
state laws; claims of discrimination, harassment, retaliation,
wrongful termination, compensation due or violation of civil
rights; or any claim based in tort, contract, or equity. Any
arbitration between the Company and Executive will be administered
by the American Arbitration Association under its Employment
Arbitration Rules then in effect. The award entered by the
arbitrator will be based solely upon the law governing the claims
and defenses pleaded, and will be final and binding in all
respects. Judgment on the award may be entered in any court
having jurisdiction. In any such arbitration, neither
Executive nor Company shall be entitled to join or consolidate
claims in arbitration or arbitrate any claim as a representative or
member of a class. The Company agrees to pay for the
arbiter’s fees where required by law. In any claim or
jurisdiction where this agreement to arbitrate is not enforced, the
Company and Executive waive any right either may have to bring or
join a class action or representative action, and further waive any
right either may have under statute or common law to a jury
trial.
C.
Duty of Loyalty . Executive agrees during working hours
to devote his full and undivided time, energy, knowledge, skill and
ability to the Company’s business, to the exclusions of all
other business and sideline interests. Executive also agrees
not to be employed elsewhere unless first authorized by the Company
in writing. In no event will Executive allow other activities
to interfere with Executive’s duties to the Company.
Executive agrees to faithfully and diligently perform all duties to
the best of Executive’s ability. Executive recognizes
that the services to be rendered under this Agreement require
certain training, skills and experience, and that this Agreement is
entered into for the purpose of obtaining such service for the
Company. Upon request, Executive agrees to provide
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the Company with any
information which Executive possesses and which will be of benefit
to the Company. Executive agrees to perform his duties in a
careful, safe, loyal and prudent manner. Executive agrees to
conduct him/herself in a way which will be a credit to Labor
Ready’s reputation and interests.
D.
Reimbursement . If Executive ever possesses any Labor
Ready funds (including without limitation cash and travel advances,
overpayments made to Executive by Labor Ready, amounts received by
Executive due to Labor Ready’s error, unpaid credit or phone
charges, excess sick or vacation pay, or any debt owed Labor Ready
for any reason, including misuse or misappropriation of company
assets), Executive will remit them to Labor Ready corporate
headquarters in Tacoma, Washington daily unless directed otherwise
in writing. If Executive’s employment ends, Executive
will fully and accurately account to Labor Ready for any Labor
Ready funds and other property in Executive’s
possession. If Executive fails to do so, Executive hereby
authorizes the Company (subject to any limitations under applicable
law) to make appropriate deductions from any payment otherwise due
Executive (including without limitation, Executive’s
paycheck, salary, bonus, commissions, expense reimbursements and
benefits), in addition to all other remedies available to the
Company.
E.
Background Investigation . Executive agrees that at any time
during employment the Company may, subject to any applicable legal
requirements, investigate Executive’s background for any
relevant information on any subject which might have a bearing on
job performance including, but not limited to, employment history,
education, financial integrity and credit worthiness, and confirm
that Executive has no criminal record during the last ten
years. Executive shall sign any and all documents necessary
for the Company to conduct such investigation. For this
purpose, Executive specifically authorizes the Company to obtain
any credit reports, background checks and other information which
may be useful. Executive acknowledges and, except as may be
limited by applicable law, agrees to abide at all times by the
terms of Labor Ready’s drug and alcohol policy.
Executive understands that failure to comply with Labor
Ready’s policies, including its drug and alcohol policies may
result in termination of employment.
III.
NON-COMPETITION AND NON-SOLICITATION .
A.
Non-Disclosure of Confidential Information .
1.
In connection with Executive’s duties, Executive may have
access to some or all of Labor Ready’s “Confidential
Information,” which includes the following, whether recorded
or mentally memorized: (i) the ideas, methods, techniques,
formats, specifications, procedures, designs, strategies, systems,
processes, data and software products which are unique to Labor
Ready; (ii) all of Labor Ready’s customers, marketing,
pricing and financial information, including the names, addresses
and any other information concerning any customer; (iii) the
content of all of Labor Ready’s operations, sales and
training manuals; (iv) all other information now in existence
or later developed which is similar to the foregoing; and
(v) all information which is marked as confidential or
explained to be confidential or which, by its nature, is
confidential.
2.
Executive recognizes the importance of protecting the
confidentiality and secrecy of Confidential Information.
Executive agrees to use his best efforts to protect Confidential
Information from unauthorized disclosure to others. Executive
understands that protecting Confidential Information from
unauthorized disclosure is critically important to Labor
Ready’s success and competitive advantage, and that the
unauthorized disclosure of Confidential Information would greatly
damage Labor Ready. Executive recognizes and agrees that
taking and using a trade secret or Confidential Information by
memory is no different from taking it on paper or in some other
tangible form. Executive agrees that Executive will request
clarification from Labor Ready’s legal department if
Executive is at all uncertain as to whether any information or
materials are “Confidential Information.”
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