Exhibit 10.7
EMPLOYMENT AGREEMENT
          THIS EMPLOYMENT AGREEMENT is entered into as of January 1, 2004, betweenAblest Inc., a Delaware corporation (the “Company”), and W. David Foster(“Executive”).
W I T N E S S E T H:
          WHEREAS, the Company and Executive desire to enter into this Agreement toinsure the Company of the services of Executive, to provide for compensationand other benefits to be paid and provided by the Company to Executive inconnection therewith, and to set forth the rights and duties of the parties inconnection therewith;
          NOW, THEREFORE, in consideration of the mutual promises herein contained,the parties hereby agree as follows:
     1.     Employment.
          (a) Title. The Company hereby employs Executive as Vice Chairman, andExecutive hereby accepts such employment, on the terms and conditions set forthherein.
          (b) Duties. During the term of this Agreement, Executive shall be andhave the title, duties and authority of Vice Chairman of the Company and shalldevote his entire business time and all reasonable efforts to his employmentand shall perform diligently such duties as may be reasonably required fromtime to time by the Board of Directors of the Company or the Chairman of theCompany. Without limiting the generality of any of the foregoing, except ashereafter expressly agreed in writing by Executive, Executive shall not berequired to report to any officer except the Chairman of the Company and shallreport to the Board of Directors.
          (c) Outside Interests. Executive shall not, without the prior writtenconsent of the Company, directly or indirectly, during the term of thisAgreement, other than in the performance of duties naturally inherent to thebusiness of the Company and in furtherance thereof, render services of abusiness, professional or commercial nature to any other person or firm,whether for compensation or otherwise; provided, however, that Executive mayattend to outside investments, and serve as a director,
 

 

trustee or officer of, or otherwise participate in, educational, welfare,social, religious and civic organizations so long as such activities do notmaterially interfere with his full-time employment hereunder.
     2.     Term. Subject to the provisions for termination hereinafter provided,the term of this Agreement shall begin on the date hereof and shall end at11:59 p.m., local time, on December 31, 2005 (the “Term”).
     3.     Directorship. Management of the Company will, at every election forthe Board of Directors while Executive is employed by the Company as ViceChairman, use its best efforts to have Executive nominated for a seat on theBoard as a member of the management slate. Executive’s nomination andcontinuation as a director shall be subject to the will of the Board ofDirectors and the Company’s stockholders, as provided in the Company’s charterand bylaws. Removal of Executive from, or non-election of Executive to, theBoard of Directors as provided in the Company’s charter and bylaws shall in noevent be deemed a breach of this Agreement by the Company.
     4.     Compensation.
          (a) Salary. For all services he may render to the Company during the termof this Agreement, the Company shall pay to Executive the following salary inthose installments customarily used in payment of salaries to the Company’ssenior executives (but in no event less frequently than monthly):
               (i) for calendar year 2004, a salary of Two Hundred Thousand Dollars($200,000); and
               (ii) for calendar year 2005, a salary to be determined by the CompensationCommittee.
          (b) Bonus. Executive shall be entitled to participate in any bonusprogram implemented by the Compensation Committee of the Board of Directors forthe Company’s senior
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executives generally, with pertinent terms and goals to be establishedannually or otherwise by the Compensation Committee in its sole discretion.
          (c) Benefits. Executive shall be entitled, subject to the terms andconditions of the appropriate plans, to all benefits provided by the Company tosenior executives generally from time to time during the term of thisAgreement.
     5.     Business Expenses; Perquisites. Upon delivery of proper documentationtherefor Executive shall be reimbursed for all travel, hotel and businessexpenses when incurred on Company business during the term of this Agreement.Executive shall be entitled to such perquisites, including use of anautomobile, as are provided by the Company to senior executives generally fromtime to time during the term hereof.
     6.     Payment in the Event of Death or Disability.
          (a) In the event of Executive’s death or Disability during the term ofthis Agreement, for a period equal to the lesser of (i) twelve (12) monthsfollowing the date of such death or Disability or (ii) the balance of the termthat would have remained hereunder at such date had Executive’s death orDisability not occurred, the Company shall continue to pay to Executive (or hisestate) Executive’s then effective per annum rate of salary, as determinedunder Paragraph 4(a), and provide to Executive (or to his family memberscovered under his family medical coverage) the same family medical coverage asprovided to Executive on the date of such death or Disability.
          (b) Except as otherwise provided in Paragraph 6(a), in the event ofExecutive’s death or Disability Executive’s employment hereunder shallterminate and Executive shall be entitled to no further compensation or otherpayments or benefits under this Agreement, except for any unpaid salary, bonus,or benefits accrued and earned by him up to and including the date of suchdeath or Disability.
          (c) For purposes of this Agreement, Executive’s Disability shall be deemedto have occurred after one hundred fifty (150) days in the aggregate during anyconsecutive twelve (12) month period, or after ninety (90) consecutive days,during which one hundred fifty (150) or ninety (90) days,
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as the case may be, Executive, by reason of his physical or mentaldisability or illness, shall have been unable to discharge his dutieshereunder. The date of Disability shall be such one hundred fiftieth(150th)or ninetieth (90th) day, as the case may be. If the Company or Executive,after receipt of notice of Executive’s Disability from the other, dispute thatExecutive’s Disability shall have occurred, Executive shall promptly submit toa physical examination by the chief of medicine of any major accreditedhospital in the Tampa or Clearwater, Florida, metropolitan area selected by theCompany and, unless such physician shall issue his written statement to theeffect that in his or her opinion, based on his or her diagnosis, Executive iscapable of resuming his employment and devoting his full time and energy todischarging his duties within thirty (30) days after the date of suchstatement, such Disability shall be deemed to have occurred.
          (d) The payments to be made by the Company to Executive hereunder shall beoffset and reduced by the amount of any insurance proceeds (on a tax-effectedbasis) paid to Executive (or his estate) from insurance policies obtained bythe Company other than insurance policies provided under Company-wide employeebenefit and welfare plans.
     7.     Termination
          (a) The employment of Executive under this Agreement:
               (i) shall be terminated automatically upon the death or Disability ofExecutive;
               (ii) may be terminated for Cause at any time by the Company, with any suchtermination not being in limitation of any other right or remedy the Companymay have under this Agreement or otherwise;
               (iii) may be terminated at any time by the Company without Cause with 30days’ advance notice to Executive;
               (iv) may be terminated at any time by Executive with thirty (30) days’advance notice to the Company, and shall be terminated automatically ifExecutive does not accept assumption of
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this Agreement by, or an offer of employment from, a purchaser of all orsubstantially all of the assets of the Company, pursuant to terms furtherdescribed in Paragraph 25 hereof;
               (v) may be terminated at any time by Executive if the Company materiallybreaches this Agreement and fails to cure such breach within thirty (30) daysof written notice of such breach from Executive, provided that Executive hasgiven notice of such breach within ninety (90) days after he has knowledgethereof and the Company did not have Cause to terminate Executive at the timesuch breach occurred; or
               (vi) shall be terminated automatically at 11:59 p.m., local time, onDecember 31, 2005.
          (b) Upon any termination hereunder, Executive shall be deemedautomatically to have resigned from all offices and any directorship held byhim in the Company, unless the Company informs Executive otherwise.
          (c) Executive’s employment with the Company for all purposes shall bedeemed to have terminated as of the effective date of such terminationhereunder (the “Date of Termination”), irrespective of whether the Company hasa continuing obligation under this Agreement to make payments or providebenefits to Executive after such date.
     8.     Certain Termination Payments.
          (a) If Executive’s employment with the Company is terminated by theCompany without Cause or by Executive pursuant to Paragraph 7(a)(v), in eithercase other than within two years after a Change in Control, the Company shall(i) continue to pay to Executive the per annum rate of salary under Paragraph4(a) and provide him and his family with the benefits described in Paragraph4(c) then in effect (unless the terms of the applicable plans expresslyprohibit the continuation of such benefits after such termination and cannot beamended, with applicability of such amendment limited to Executive, to providefor such continuation, in which case the Company shall procure and pay forsubstantially similar substitute benefits except for any pension or 401(k) Planbenefit) for the balance of
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the term that would have remained hereunder had such termination notoccurred, and (ii) pay Executive on or before the thirtieth day after the Dateof Termination an amount equal to the product of (i) the target bonusopportunity for the year in which such termination occurs times (ii) the numberof years for which a bonus opportunity would have been provided to him underParagraph 4(b) hereof had he remained employed hereunder for the remainder ofthe term of this Agreement.
          (b) If Executive’s employment is terminated by the Company with Cause oris terminated pursuant to Paragraph 7(a)(iv), Executive shall be entitled to nofurther compensation or other payments or benefits under this Agreement, exceptas to that portion of any unpaid salary and benefits accrued and earned by himunder Paragraphs 4(a) and 4(c) hereof up to and including the Date ofTermination.
     9.     Change in Control Termination Payments.
          (a) Executive will be entitled to the compensation set forth in Paragraph9(b) hereof (the “CIC Compensation”) if his employment is terminated within twoyears after a Change in Control (i) by the Company without Cause or (ii) byExecutive pursuant to Paragraph 7(a)(v) (either (i) or (ii), the “CICTrigger”). Notwithstanding the foregoing, Executive will not be entitled toCIC Compensation in the event of a termination of his employment following aChange in Control on account of his Death, Disability, or Retirement, ortermination by him pursuant to Paragraph 7(a)(iv).
          (b) In the event of a CIC Trigger, Executive shall be entitled to the CICCompensation provided below:
               (i) In lieu of any further salary, bonus or other payments to Executivefor periods subsequent to the Date of Termination, the Company shall pay toExecutive not later than the tenth day following the Date of Termination a cashamount equal to the sum of: (y) an amount equal to two times Executive’sannual base salary in effect on the date of Termination (the “Base Salary”);and (z) an amount equal to two times the sum of (A) the target bonusopportunity in the year of such
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termination and (B) the contribution, if any, paid by the Company for thebenefit of Executive to any 401(k) Plan in the last complete fiscal year of theCompany.
               (ii) Until the earlier of Executive’s death or the end of the twelve (12)month period following the Date of Termination, the Company shall arrange toprovide Executive life, health, disability and accident insurance benefits andthe package of “Executive benefits” substantially similar to those whichExecutive was receiving immediately prior to the Date of Termination, orimmediately prior to a Change in Control, if greater, provided that Executiveshall be obliged to continue to pay that proportion of premiums paid by himimmediately prior to the Change in Control.
               (iii) The Company shall vest and accelerate the exercise date of all stockoptions, if any, granted to Executive (the “Options”) that are unvested or notexercisable on the Date of Termination, to the end that the Options shall beimmediately exercisable for the duration of their respective original terms.
               (iv) Executive shall have the right within one year following the later ofthe Change in Control or the exercise of an Option to sell to the Companyshares of common stock acquired at any time upon exercise of such Option at aprice equal to the average of the closing sale prices of the common stock forthe 30 trading days ending on the date prior to the date of the Change inControl.
          (c) If the CIC Compensation hereunder, either alone or together with otherpayments to Executive from the Company, would constitute an “excess parachutepayment” (as defined in Section 280G of the Internal Revenue Code of 1986, asamended from time to time (the “Code”)), such CIC Compensation shall be reducedto the largest amount that will result in no portion of the payments hereunderbeing subject to the excise tax imposed by Section 4999 of the Code or beingdisallowed as deductions to the Company under Section 280G of the Code.
     10.     Definitions.
          (a) “Beneficial Owner” shall have the meaning provided in Rule 13d-3promulgated under the Exchange Act.
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          (b) “Cause” means:
               (i) Executive’s conviction of, or plea of “no contest” to, a felony;
               (ii) Executive’s willfully engaging in an act or series of acts of grossmisconduct that result in demonstrable and material injury to the Company; or
               (iii) Executive’s material breach of any provision of this Agreement,which breach has not been cured in all material respects within twenty (20)days after the Company gives notice thereof to Executive.
          (c) “Change in Control” occurs when:
               (i) any “Person”, other than Clydis D. Heist and her lineal descendantsand any trusts for the benefit of her lineal descendants (collectively, the“Heist Family”), and other than any trustee or fiduciary on behalf of anyCompany benefit plan, becomes the “Beneficial Owner” of securities of theCompany having at least 25% of the voting power of the Company’s thenoutstanding securities (unless the event causing the 25% threshold to becrossed is an acquisition of securities directly from the Company) but only ifat the time of such person’s becoming the beneficial owner of the requisitevoting power, the Heist Family (or any trust of Person included therein) nolonger holds a majority of the outstanding shares; or
               (ii) the stockholders of the Company approve any merger or other businesscombination of the Company, or any going private transaction subject to Rule13e-3 of rules and regulations promulgated under the Securities Exchange Act of1934, or any sale of all or substantially all of the Company’s assets in one ora series of related transactions, or any combination of the foregoingtransactions (the “Transactions”), other than a Transaction in which the HeistFamily or any trust or Person included within the Heist Family is theBeneficial Owner of 50% or more of the voting securities of the survivingcompany (or its parent) (and, in a sale of assets, of the purchaser of theassets) immediately following the Transaction; or
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               (iii) within any 24 month period, the persons who were directorsimmediately before the beginning of such period (the “Disinterested Directors”)cease (for any reason other than death) to constitute at least a majority ofthe Board or the board of directors of a successor to the Company, with, forthis purpose, any director who was not a director at the beginning of suchperiod being deemed to be a Disinterested Director if such director was electedto the Board by, or on the recommendation of or with the approval of, at leasttwo-thirds of the directors who then qualified as Disinterested Directors, solong as such director was not nominated by a person who has entered into anagreement to effect, or threatened to effect, a Change of Control.
          (d) “Person” shall have the meaning provided in Section 3(a)(9) of theSecurities Exchange Act of 1934, as amended (the “Exchange Act”) and as used inSections 13(d) and 14(d) thereof, and shall include a “group” (as defined inSection 13(d) of the Exchange Act).
          (e) “Retirement” shall mean voluntary, late, normal or early retirementunder a pension plan sponsored by the Company, as defined in such plan, or asotherwise defined or determined by the Compensation Committee of the Board ofDirectors of the Company with respect to senior executives of the Companygenerally.
     11.     Certain Covenants
          (a) Noncompete and Nonsolicitation. Executive acknowledges the Company’sreliance on and expectation of Executive’s continued commitment to performanceof his duties and responsibilities during the term of this Agreement. In lightof such reliance and expectation, during the term hereof and for two yearsafter termination of Executive’s employment and this Agreement under Paragraph7 hereof, other than termination by the Company without Cause or termination byExecutive pursuant to Paragraph 7(a)(v), Executive shall not, directly orindirectly, do or suffer any of the following:
               (i) Own, manage, control or participate in the ownership, management, orcontrol of, or be employed or engaged by or otherwise affiliated or associatedas a consultant,
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independent contractor or otherwise with, any corporation, partnership,proprietorship, firm, association or other business entity, or otherwise engagein any business, which is in competition with the business of the Company asand where conducted by it at the time of such termination; provided, however,that the ownership of not more than five percent (5%) of any class of publiclytraded securities of any entity shall not be deemed a violation of thiscovenant;
               (ii) Solicit the employment of, assist in the soliciting the employmentof, or otherwise solicit the association in business with any person or entityof, any employee, consultant or agent of the Company; or
               (iii) Induce any person who is a customer of the Company to terminate saidrelationship.
          (b) Nondisclosure; Return of Materials. During the term of his employmentby the Company and following termination of such employment, Executive will notdisclose (except as required by his duties to the Company), any concept,design, process, technology, trade secret, customer list, plan, embodiment orinvention, any other intellectual property (“Intellectual Property”) or anyother confidential information, whether patentable or not, of Company of whichExecutive becomes informed or aware during his employment, whether or notdeveloped by Executive. In the event of the termination of his employment withthe Company or the expiration of this Agreement, Executive will return to theCompany all documents, data and other materials of whatever nature, including,without limitation, drawings, specifications, research, reports, embodiments,software and manuals that pertain to his employment with the Company or to anyIntellectual Property and shall not retain or cause or allow any third party toretain photocopies or other reproductions of the foregoing.
          (c) Executive expressly agrees and understands that the remedy at law forany breach by him of this Paragraph 11 may be inadequate and that the damagesflowing from such breach are not easily measured in monetary terms.Accordingly, it is acknowledged that, upon adequate proof of Executive’sviolation of any provision of this Paragraph 11, the Company shall be entitledto immediate
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injunctive relief and may obtain a temporary order restraining anythreatened or further breach and may withhold any amounts owed to Executivepursuant to this Agreement. Nothing in this Paragraph 11 shall be deemed tolimit the Company’s remedies at law or in equity for any breach by Executive ofany of the provisions of this Paragraph 11 that may be pursued by the Company.
          (d) If Executive shall violate any legally enforceable provision of thisParagraph 11 as to which there is a specific time period during which he isprohibited from taking certain actions or from engaging in certain activities,as set forth in such provision, then, in such event, such violation shall tollthe running of such time period from the date of such violation until suchviolation shall cease.
          (d) Executive has carefully considered the nature and extent of therestrictions upon him and the rights and remedies conferred upon the Companyunder this Paragraph 11, and hereby acknowledges and agrees that the same arereasonable in time and territory, are designed to eliminate competition thatotherwise would be unfair to the Company, do not stifle the inherent skill andexperience of Executive, would not operate as a bar to Executive’s sole meansof support, are fully required to protect the legitimate interests of theCompany and do not confer a benefit upon the Company disproportionate to thedetriment to Executive.
     12.     Withholding Taxes. All payments to Executive hereunder shall besubject to withholding on account of federal, state and local taxes as requiredby law.
     13.     No Conflicting Agreements. Executive represents and warrants that heis not a party to any agreement, contract or understanding, whether anemployment contract or otherwise, that would restrict or prohibit him fromundertaking or performing employment in accordance with the terms andconditions of this Agreement.
     14.     Severable Provisions. The provisions of this Agreement are severableand if any one or more of its provisions is determined to be illegal orotherwise unenforceable, in whole or in part, the remaining provisions and anypartially unenforceable provision to the extent enforceable in any jurisdictionnevertheless shall be binding and enforceable.
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     15.     Binding Agreement. The rights and obligations of the Company underthis Agreement shall inure to the benefit of, and shall be binding on, theCompany and its successors and assigns, and the rights and obligations (otherthan obligations to perform services) of Executive under this Agreement shallinure to the benefit of, and shall be binding upon, Executive and his heirs,personal and legal representatives, executors, successors and administrators.The Company may assign this Agreement to a purchaser (or an affiliate of apurchaser) of all or substantially all the assets of the Company. As used inthis Agreement, the “Company” shall mean the Company as hereinbefore definedand any successor or assign to its assets as aforesaid that becomes bound byall the terms and provisions of this Agreement. If the Executive should diewhile any amounts are still payable to him, all such amounts, unless otherwiseprovided herein, shall be paid in accordance with the terms of this Agreementto the Executive’s devisee, legatee, or other designee or, if there be no suchdesignee, to the Executive’s estate.
     16.     Notices. Notices and other communications hereunder shall be inwriting and shall be deemed to have been duly given when sent by certifiedmail, postage prepaid, addressed to the intended recipient at the address setforth at the end of this Agreement, or at such other address as such intendedrecipient hereafter may have designated most recently to the other party heretowith specific reference to this Paragraph 16.
     17.     Consent to Jurisdiction. Executive and the Company each irrevocably:(i) submits to the exclusive jurisdiction of the Florida courts and the UnitedStates district court(s) in Florida for the purpose of any proceedings arisingout of this Agreement or any transaction contemplated by this Agreement; (ii)agrees not to commence such proceeding except in these courts; (iii) agreesthat service of any process, summons, notice or document by U.S. registeredmail to a party’s address as provided herein shall be effective service ofprocess for any such proceeding; and (iv) waives any objection to the laying ofvenue of any such proceeding in these courts.
     18.     Waiver of Jury Trial. Each party waives, to the fullest extentpermitted by law, any right he or it may have to a trial by jury in respect ofany suit, action or proceeding arising out of this
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Agreement or any transaction contemplated by this Agreement. Each partycertifies that no representative, agent or attorney of any other party hasrepresented, expressly or otherwise, that such other party would not, in theevent of litigation, seek to enforce this waiver; and acknowledges that he orit and the other party have been induced to enter into this Agreement by, amongother things, the mutual waivers and certifications in this Paragraph 18.
     19.     Waiver. The failure of either party to enforce any provision of thisAgreement shall not in any way be construed as a waiver of any such provisionas to any future violation thereof, or prevent that party thereafter fromenforcing each and every other provision of this Agreement. The rights grantedthe parties herein are cumulative and the waiver of any single remedy shall notconstitute a waiver of such party’s right to assert all other legal remediesavailable to it under the circumstances.
     20.     Miscellaneous. This Agreement supersedes all prior agreements andunderstandings between the parties including, without limitation, that certainemployment agreement, dated as of September 1, 2000, between the Company andExecutive, which agreement is hereby terminated. This Agreement may not bemodified or terminated orally. All obligations and liabilities of each partyhereto in favor of the other party hereto relating to matters arising prior tothe date hereof have been fully satisfied, paid and discharge. Nomodification, termination or attempted waiver shall be valid unless in writingand signed by the party against whom the same is sought to be enforced.
     21.     Governing Law. This Agreement shall be governed by and construedaccording to the laws of the State of Florida.
     22.     Captions and Paragraph Headings. Captions and paragraph headings usedherein are for convenience and are not a part of this Agreement and shall notbe used in construing it.
     23.     Legal Fees. If any legal action is required to enforce Executive’srights under this Agreement, Executive shall be entitled to recover from theCompany any expenses for attorneys’ fees and disbursements reasonably incurredby him if he is the prevailing party.
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     24.     No Obligation To Mitigate Damages. Executive shall not be required tomitigate damages or the amount of any payment provided for under this Agreementupon termination of his employment by the Company without Cause by seekingother employment or otherwise after such termination, nor shall the amount ofany such payment provided for under this Agreement be reduced by anycompensation earned by Executive after such termination as the result of hisemployment by another employer.
     25.     Sale of Assets. For the avoidance of doubt, if the Company sells allor substantially all of its assets and the purchaser or an affiliate of thepurchaser of such assets assumes this Agreement or offers Executive employmenton substantially the same terms as contained herein on or before the closingdate of such sale of assets and Executive does not accept such assumption oroffer in writing on or before the closing date, his employment hereunder shallautomatically terminate pursuant to Section 7(a)(iv) on the date of suchclosing and he shall not be entitled to any payments under any provision ofthis Agreement other than Paragraph 8(b).
     IN WITNESS WHEREOF, the parties have executed this Agreement on the dayand year first set forth above.
 EXECUTIVE:
 */s/ W. David Foster*