Exhibit 10.9
NON-COMPETITION
AGREEMENT
In consideration of Labor Ready,
Inc., or the Labor Ready, Inc. subsidiary, affiliate, related
business entity, successor, or assign employing Executive
(collectively “Labor Ready” or the
“Company”), employing me, compensating me, providing me
with benefits, providing me with administrative support; providing
me with the benefit of Labor Ready’s research, know how,
market strategies and business plans; and specifically in
consideration of the additional consideration provided in the
Executive Employment Agreement and Change In Control Agreement
executed concurrently herewith, the adequacy, sufficiency and
receipt of which is hereby acknowledged, and intending to be
legally bound, I,
(“Executive”), hereby acknowledge that I understand and
agree that the provisions hereof are part of and a condition of my
employment with Labor Ready, and are effective as of December 31,
2006.
I. NON-COMPETITION,
NON-INTERFERENCE, NON-SOLICITATION, AND CONFIDENTIALITY
A. Definitions.
1.
“
Business Area ” means any location in which Labor
Ready conducts or plans to conduct business. Executive
acknowledges that Labor Ready has operations in all 50 states, the
District of Columbia and at least three other countries, that Labor
Ready plans to continue to expand its operations and presence both
domestically and internationally and that as a member of Labor
Ready’s senior management, Executive’s services are
integral to these operations and expansion plans.
2.
“Candidate”
means, any
individual who has applied for and/or accepted placement in a job
by Labor Ready with a Client, and (i) about whom Executive obtained
information, or (ii) with whom Executive interacted on behalf of
Labor Ready.
3.
“Client”
means, any
individual, business or other entity to which Labor Ready provided
any services, at any time within twenty-four (24) months prior to
Executive’s last date of employment with Labor
Ready.
4.
“Colleague”
means any Labor
Ready employee who has been employed by Labor Ready during the six
months prior to the termination of Executive’s employment
with Labor Ready.
5.
“Confidential
Information” means, whether original,
duplicated, computerized, memorized, handwritten, or in any other
form, and all information contained therein, including, without
limitation: (a) the ideas, methods, techniques, formats,
specifications, procedures, designs, strategies, systems,
processes, data and software products which are unique to Labor
Ready; (b) all of Labor Ready’s business plans,
present, future or potential customers or clients (including the
names, addresses and any other information concerning any customer
or client),
marketing, marketing strategies,
pricing and financial information, research, training, know-how,
operations, processes, products, inventions, business practices,
databases and information contained therein, its wage rates,
margins, mark-ups, finances, banking, books, records, contracts,
agreements, principals, vendors, suppliers, contractors, employees,
applicants, Candidates, skill sets of applicants, skill sets of
Candidates, marketing methods, costs, prices, price structures,
methods for calculating and/or determining prices, contractual
relationships, business relationships, compensation paid to
employees and/or contractors, and/or other terms of employment,
employee evaluations, and/or employee skill sets; (c) the
content of all of Labor Ready’s operations, sales and
training manuals; (d) all other information now in existence
or later developed which is similar to the foregoing; (e) all
information which is marked as confidential or explained to be
confidential or which, by its nature, is confidential or otherwise
constitutes the intellectual property or proprietary information of
Labor Ready; and/or (f) any of Labor Ready’s “trade
secrets”. For the purposes of this Section, all
references to, and agreements regarding, Confidential Information
or Confidential Information of Labor Ready also apply to
Confidential Information belonging to any affiliate of Labor Ready,
and to any confidential or proprietary information of third party
clients that Labor Ready has an obligation to keep
confidential. Executive’s covenants in this Section
shall protect affiliates and clients of Labor Ready to the same
extent that they protect Labor Ready. Confidential Information
shall not include any portion of the foregoing which (i) is or
becomes generally available to the public in any manner or form
through no fault of Executive, or (ii) is approved for
Executive’s disclosure or use by the express written consent
of the Chief Executive Officer of Labor Ready, Inc.
6.
“
Conflicting
Organization” means, any person, entity or
organization engaged (or about to become engaged) in a business
similar to, or that competes with, the business of Labor Ready,
including without limitation any person or organization that
provides any product, process or service that is similar to or
competes with any product, process or service provided by Labor
Ready. The term “Conflicting Organization”
specifically includes without limitation any person, entity or
organization that provides temporary and/or permanent staffing
services in connection with manual or skilled laborers or
employees, including without limitation, for jobs in construction,
manufacturing, hospitality services, landscaping, warehousing,
agriculture, waste and recycling, transportation, event logistics,
and retail.
B. Confidentiality,
Non-Disclosure and Non-Use Obligations.
1.
Executive agrees that all records
and Confidential Information obtained by Executive as a result of
Executive’s employment with Labor Ready, whether original,
duplicated, computerized, memorized, handwritten, or in any other
form, and all information contained therein, are confidential and
the sole and exclusive property of Labor Ready. Executive
understands and agrees that the business of Labor Ready and the
nature of Executive’s employment will require Executive to
have access to Confidential Information of and about Labor Ready,
its business, its Candidates, and its Clients. During
Executive’s employment and thereafter, Executive will not use
Confidential Information or remove any such records from the
offices of Labor Ready except for the sole purpose of conducting
business on behalf of Labor Ready. Executive further agrees
that during Executive’s employment and thereafter, Executive
will not divulge or disclose this Confidential Information to any
third party and under no
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circumstances will Executive reveal
or permit this information to become known by any competitor of
Labor Ready.
2.
Executive agrees and acknowledges
that all Confidential Information is to be held in confidence and
is the sole and exclusive property of Labor Ready and/or its
affiliates or clients. Executive recognizes the importance of
protecting the confidentiality and secrecy of Confidential
Information. Executive agrees to use Executive’s 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 use or disclosure of Confidential
Information would greatly damage Labor Ready. Executive
recognizes and agrees that taking and using Confidential
Information, including trade secrets, by memory is no different
from taking it on paper or in some other tangible form, and that
all of such conduct is prohibited. Executive agrees that,
prior to use or disclosure, 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.”
3.
During Executive’s employment
and in perpetuity after the termination of Executive’s
employment for any or no cause or reason, Executive agrees:
(a) not to use (or allow others to wrongfully use) any Confidential
Information for the benefit of any person (including, without
limitation, Executive’s benefit) or entity other than Labor
Ready; and (b) not to, except as necessary or appropriate for
Executive to perform Executive’s job responsibilities,
disclose (or allow others to wrongfully disclose) any Confidential
Information to others or download or make copies of any
Confidential Information without Company’s written consent,
or remove any such records from the offices of Labor Ready except
for the sole purpose of conducting business on behalf of Labor
Ready. If at any time Executive ever believes that any
person has received or disclosed or intends to receive or disclose
Confidential Information without Company’s consent, Executive
agrees to immediately notify Company.
4.
At any time during Executive’s
employment upon Company’s request, and at the end of
Executive’s employment with Company, even without
Company’s request, Executive covenants, agrees to, and shall
immediately return to Labor Ready, at its headquarters in Tacoma,
Washington, all Confidential Information as defined herein, and all
other material and records of any kind concerning Labor
Ready’s business, and all other property of Company that
Executive may possess or control.
5.
At all times, Executive agrees not
to directly or indirectly take, possess, download, allow others to
take or possess or download, provide to others, delete or destroy
or allow others to delete or destroy, any of Labor Ready’s
Confidential Information or other property, other than in the
normal course of business.
6.
Executive agrees that these
covenants are necessary to protect Company’s Confidential
Information, and Company’s legitimate business interests
(including, without limitation, the confidentiality of Labor
Ready’s business information and other legitimate interests),
in view of Executive’s key role with each branch of Company
and its affiliates and the
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extent of confidential and
proprietary information about the entire Company and its affiliates
and clients to which Executive has information. Company and Executive agree that the provisions
of this Section do not impose an undue hardship on Executive and are not injurious to
the public; that they are necessary to protect the business of
Company and its affiliates and
clients ; that the nature of Executive ’s responsibilities
with Company under this
Agreement and Executive
’s former responsibilities with Company provide and/or have
provided Executive with
access to Confidential Information that is valuable and
confidential to Company
; that Company would not
employ or continue to employ Executive if Executive did not agree to the
provisions of this Section; that this Section is reasonable in its
terms and that consideration supports this Section, including new
consideration as set forth in the Executive Employment
Agreement.
C. Duty of
Loyalty.
1.
Executive agrees that at all times
during Executive’s employment with Labor Ready, Executive
owes Labor Ready a duty of loyalty and a duty to act in good
faith. Executive agrees that during Executive’s
employment, Executive will not individually, or in combination with
any other Executive, individual, or competitor of Labor Ready,
violate or breach the terms of this Agreement.
2.
Executive agrees to devote all time
that is reasonably necessary to execute and complete
Executive’s duties to Company. During the time
necessary to execute Executive’s duties, Executive agrees to
devote Executive’s full and undivided time, energy,
knowledge, skill and ability to Company’s business, to the
exclusion of all other business and sideline interests.
Because of the agreement in the preceding sentence, during
Executive’s employment with Company, Executive also agrees
not to be employed or provide any type of services, whether as an
advisor, consultant, independent contractor or otherwise in
any capacity elsewhere unless first authorized, in writing,
by a proper representative of Company. In no event will
Executive allow other activities to conflict or interfere with
Executive’s duties to 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 Company.
Upon request, Executive agrees to provide Company with any
information which Executive possesses and which will be of benefit
to Company. Executive agrees to perform Executive’s
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, and to
otherwise fulfill all fiduciary and other duties Executive has to
Company.
D. Return of Information,
Records, and Materials. Executive agrees that upon the
terminatio