Ex-10.7 W. David Foster Agreement



 



Exhibit 10.7



EMPLOYMENT AGREEMENT



          THIS EMPLOYMENT AGREEMENT is entered into as of January 1, 2004, between
Ablest 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 to
insure the Company of the services of Executive, to provide for compensation
and other benefits to be paid and provided by the Company to Executive in
connection therewith, and to set forth the rights and duties of the parties in
connection 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, and
Executive hereby accepts such employment, on the terms and conditions set forth
herein.



          (b) Duties. During the term of this Agreement, Executive shall be and
have the title, duties and authority of Vice Chairman of the Company and shall
devote his entire business time and all reasonable efforts to his employment
and shall perform diligently such duties as may be reasonably required from
time to time by the Board of Directors of the Company or the Chairman of the
Company. Without limiting the generality of any of the foregoing, except as
hereafter expressly agreed in writing by Executive, Executive shall not be
required to report to any officer except the Chairman of the Company and shall
report to the Board of Directors.



          (c) Outside Interests. Executive shall not, without the prior written
consent of the Company, directly or indirectly, during the term of this
Agreement, other than in the performance of duties naturally inherent to the
business of the Company and in furtherance thereof, render services of a
business, professional or commercial nature to any other person or firm,
whether for compensation or otherwise; provided, however, that Executive may
attend 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 not
materially 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 at
11:59 p.m., local time, on December 31, 2005 (the “Term”).


     3.     Directorship. Management of the Company will, at every election for
the Board of Directors while Executive is employed by the Company as Vice
Chairman, use its best efforts to have Executive nominated for a seat on the
Board as a member of the management slate. Executive’s nomination and
continuation as a director shall be subject to the will of the Board of
Directors and the Company’s stockholders, as provided in the Company’s charter
and bylaws. Removal of Executive from, or non-election of Executive to, the
Board of Directors as provided in the Company’s charter and bylaws shall in no
event 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 term
of this Agreement, the Company shall pay to Executive the following salary in
those installments customarily used in payment of salaries to the Company’s
senior 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 Compensation
Committee.



          (b) Bonus. Executive shall be entitled to participate in any bonus
program implemented by the Compensation Committee of the Board of Directors for
the Company’s senior



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executives generally, with pertinent terms and goals to be established
annually or otherwise by the Compensation Committee in its sole discretion.


          (c) Benefits. Executive shall be entitled, subject to the terms and
conditions of the appropriate plans, to all benefits provided by the Company to
senior executives generally from time to time during the term of this
Agreement.



     5.     Business Expenses; Perquisites. Upon delivery of proper documentation
therefor Executive shall be reimbursed for all travel, hotel and business
expenses when incurred on Company business during the term of this Agreement.
Executive shall be entitled to such perquisites, including use of an
automobile, as are provided by the Company to senior executives generally from
time 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 of
this Agreement, for a period equal to the lesser of (i) twelve (12) months
following the date of such death or Disability or (ii) the balance of the term
that would have remained hereunder at such date had Executive’s death or
Disability not occurred, the Company shall continue to pay to Executive (or his
estate) Executive’s then effective per annum rate of salary, as determined
under Paragraph 4(a), and provide to Executive (or to his family members
covered under his family medical coverage) the same family medical coverage as
provided to Executive on the date of such death or Disability.



          (b) Except as otherwise provided in Paragraph 6(a), in the event of
Executive’s death or Disability Executive’s employment hereunder shall
terminate and Executive shall be entitled to no further compensation or other
payments 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 such
death or Disability.



          (c) For purposes of this Agreement, Executive’s Disability shall be deemed
to have occurred after one hundred fifty (150) days in the aggregate during any
consecutive 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 mental
disability or illness, shall have been unable to discharge his duties
hereunder. 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 that
Executive’s Disability shall have occurred, Executive shall promptly submit to
a physical examination by the chief of medicine of any major accredited
hospital in the Tampa or Clearwater, Florida, metropolitan area selected by the
Company and, unless such physician shall issue his written statement to the
effect that in his or her opinion, based on his or her diagnosis, Executive is
capable of resuming his employment and devoting his full time and energy to
discharging his duties within thirty (30) days after the date of such
statement, such Disability shall be deemed to have occurred.


          (d) The payments to be made by the Company to Executive hereunder shall be
offset and reduced by the amount of any insurance proceeds (on a tax-effected
basis) paid to Executive (or his estate) from insurance policies obtained by
the Company other than insurance policies provided under Company-wide employee
benefit and welfare plans.



     7.     Termination


          (a) The employment of Executive under this Agreement:



               (i) shall be terminated automatically upon the death or Disability of
Executive;



               (ii) may be terminated for Cause at any time by the Company, with any such
termination not being in limitation of any other right or remedy the Company
may have under this Agreement or otherwise;



               (iii) may be terminated at any time by the Company without Cause with 30
days’ 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 if
Executive does not accept assumption of



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this Agreement by, or an offer of employment from, a purchaser of all or
substantially all of the assets of the Company, pursuant to terms further
described in Paragraph 25 hereof;


               (v) may be terminated at any time by Executive if the Company materially
breaches this Agreement and fails to cure such breach within thirty (30) days
of written notice of such breach from Executive, provided that Executive has
given notice of such breach within ninety (90) days after he has knowledge
thereof and the Company did not have Cause to terminate Executive at the time
such breach occurred; or



               (vi) shall be terminated automatically at 11:59 p.m., local time, on
December 31, 2005.



          (b) Upon any termination hereunder, Executive shall be deemed
automatically to have resigned from all offices and any directorship held by
him in the Company, unless the Company informs Executive otherwise.



          (c) Executive’s employment with the Company for all purposes shall be
deemed to have terminated as of the effective date of such termination
hereunder (the “Date of Termination”), irrespective of whether the Company has
a continuing obligation under this Agreement to make payments or provide
benefits to Executive after such date.



     8.     Certain Termination Payments.


          (a) If Executive’s employment with the Company is terminated by the
Company without Cause or by Executive pursuant to Paragraph 7(a)(v), in either
case 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 Paragraph
4(a) and provide him and his family with the benefits described in Paragraph
4(c) then in effect (unless the terms of the applicable plans expressly
prohibit the continuation of such benefits after such termination and cannot be
amended, with applicability of such amendment limited to Executive, to provide
for such continuation, in which case the Company shall procure and pay for
substantially similar substitute benefits except for any pension or 401(k) Plan
benefit) for the balance of



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the term that would have remained hereunder had such termination not
occurred, and (ii) pay Executive on or before the thirtieth day after the Date
of Termination an amount equal to the product of (i) the target bonus
opportunity for the year in which such termination occurs times (ii) the number
of years for which a bonus opportunity would have been provided to him under
Paragraph 4(b) hereof had he remained employed hereunder for the remainder of
the term of this Agreement.


          (b) If Executive’s employment is terminated by the Company with Cause or
is terminated pursuant to Paragraph 7(a)(iv), Executive shall be entitled to no
further compensation or other payments or benefits under this Agreement, except
as to that portion of any unpaid salary and benefits accrued and earned by him
under Paragraphs 4(a) and 4(c) hereof up to and including the Date of
Termination.



     9.     Change in Control Termination Payments.


          (a) Executive will be entitled to the compensation set forth in Paragraph
9(b) hereof (the “CIC Compensation”) if his employment is terminated within two
years after a Change in Control (i) by the Company without Cause or (ii) by
Executive pursuant to Paragraph 7(a)(v) (either (i) or (ii), the “CIC
Trigger”). Notwithstanding the foregoing, Executive will not be entitled to
CIC Compensation in the event of a termination of his employment following a
Change in Control on account of his Death, Disability, or Retirement, or
termination by him pursuant to Paragraph 7(a)(iv).



          (b) In the event of a CIC Trigger, Executive shall be entitled to the CIC
Compensation provided below:



               (i) In lieu of any further salary, bonus or other payments to Executive
for periods subsequent to the Date of Termination, the Company shall pay to
Executive not later than the tenth day following the Date of Termination a cash
amount equal to the sum of: (y) an amount equal to two times Executive’s
annual 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 bonus
opportunity in the year of such



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termination and (B) the contribution, if any, paid by the Company for the
benefit of Executive to any 401(k) Plan in the last complete fiscal year of the
Company.


               (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 to
provide Executive life, health, disability and accident insurance benefits and
the package of “Executive benefits” substantially similar to those which
Executive was receiving immediately prior to the Date of Termination, or
immediately prior to a Change in Control, if greater, provided that Executive
shall be obliged to continue to pay that proportion of premiums paid by him
immediately prior to the Change in Control.



               (iii) The Company shall vest and accelerate the exercise date of all stock
options, if any, granted to Executive (the “Options”) that are unvested or not
exercisable on the Date of Termination, to the end that the Options shall be
immediately exercisable for the duration of their respective original terms.



               (iv) Executive shall have the right within one year following the later of
the Change in Control or the exercise of an Option to sell to the Company
shares of common stock acquired at any time upon exercise of such Option at a
price equal to the average of the closing sale prices of the common stock for
the 30 trading days ending on the date prior to the date of the Change in
Control.



          (c) If the CIC Compensation hereunder, either alone or together with other
payments to Executive from the Company, would constitute an “excess parachute
payment” (as defined in Section 280G of the Internal Revenue Code of 1986, as
amended from time to time (the “Code”)), such CIC Compensation shall be reduced
to the largest amount that will result in no portion of the payments hereunder
being subject to the excise tax imposed by Section 4999 of the Code or being
disallowed as deductions to the Company under Section 280G of the Code.



     10.     Definitions.


          (a) “Beneficial Owner” shall have the meaning provided in Rule 13d-3
promulgated 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 gross
misconduct 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 descendants
and any trusts for the benefit of her lineal descendants (collectively, the
“Heist Family”), and other than any trustee or fiduciary on behalf of any
Company benefit plan, becomes the “Beneficial Owner” of securities of the
Company having at least 25% of the voting power of the Company’s then
outstanding securities (unless the event causing the 25% threshold to be
crossed is an acquisition of securities directly from the Company) but only if
at the time of such person’s becoming the beneficial owner of the requisite
voting power, the Heist Family (or any trust of Person included therein) no
longer holds a majority of the outstanding shares; or



               (ii) the stockholders of the Company approve any merger or other business
combination of the Company, or any going private transaction subject to Rule
13e-3 of rules and regulations promulgated under the Securities Exchange Act of
1934, or any sale of all or substantially all of the Company’s assets in one or
a series of related transactions, or any combination of the foregoing
transactions (the “Transactions”), other than a Transaction in which the Heist
Family or any trust or Person included within the Heist Family is the
Beneficial Owner of 50% or more of the voting securities of the surviving
company (or its parent) (and, in a sale of assets, of the purchaser of the
assets) immediately following the Transaction; or



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               (iii) within any 24 month period, the persons who were directors
immediately before the beginning of such period (the “Disinterested Directors”)
cease (for any reason other than death) to constitute at least a majority of
the Board or the board of directors of a successor to the Company, with, for
this purpose, any director who was not a director at the beginning of such
period being deemed to be a Disinterested Director if such director was elected
to the Board by, or on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Disinterested Directors, so
long as such director was not nominated by a person who has entered into an
agreement to effect, or threatened to effect, a Change of Control.



          (d) “Person” shall have the meaning provided in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and as used in
Sections 13(d) and 14(d) thereof, and shall include a “group” (as defined in
Section 13(d) of the Exchange Act).



          (e) “Retirement” shall mean voluntary, late, normal or early retirement
under a pension plan sponsored by the Company, as defined in such plan, or as
otherwise defined or determined by the Compensation Committee of the Board of
Directors of the Company with respect to senior executives of the Company
generally.



     11.     Certain Covenants


          (a) Noncompete and Nonsolicitation. Executive acknowledges the Company’s
reliance on and expectation of Executive’s continued commitment to performance
of his duties and responsibilities during the term of this Agreement. In light
of such reliance and expectation, during the term hereof and for two years
after termination of Executive’s employment and this Agreement under Paragraph
7 hereof, other than termination by the Company without Cause or termination by
Executive pursuant to Paragraph 7(a)(v), Executive shall not, directly or
indirectly, do or suffer any of the following:



               (i) Own, manage, control or participate in the ownership, management, or
control of, or be employed or engaged by or otherwise affiliated or associated
as a consultant,



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independent contractor or otherwise with, any corporation, partnership,
proprietorship, firm, association or other business entity, or otherwise engage
in any business, which is in competition with the business of the Company as
and 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 publicly
traded securities of any entity shall not be deemed a violation of this
covenant;


               (ii) Solicit the employment of, assist in the soliciting the employment
of, or otherwise solicit the association in business with any person or entity
of, any employee, consultant or agent of the Company; or



               (iii) Induce any person who is a customer of the Company to terminate said
relationship.



          (b) Nondisclosure; Return of Materials. During the term of his employment
by the Company and following termination of such employment, Executive will not
disclose (except as required by his duties to the Company), any concept,
design, process, technology, trade secret, customer list, plan, embodiment or
invention, any other intellectual property (“Intellectual Property”) or any
other confidential information, whether patentable or not, of Company of which
Executive becomes informed or aware during his employment, whether or not
developed by Executive. In the event of the termination of his employment with
the Company or the expiration of this Agreement, Executive will return to the
Company 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 any
Intellectual Property and shall not retain or cause or allow any third party to
retain photocopies or other reproductions of the foregoing.



          (c) Executive expressly agrees and understands that the remedy at law for
any breach by him of this Paragraph 11 may be inadequate and that the damages
flowing from such breach are not easily measured in monetary terms.
Accordingly, it is acknowledged that, upon adequate proof of Executive’s
violation of any provision of this Paragraph 11, the Company shall be entitled
to immediate



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injunctive relief and may obtain a temporary order restraining any
threatened or further breach and may withhold any amounts owed to Executive
pursuant to this Agreement. Nothing in this Paragraph 11 shall be deemed to
limit the Company’s remedies at law or in equity for any breach by Executive of
any of the provisions of this Paragraph 11 that may be pursued by the Company.


          (d) If Executive shall violate any legally enforceable provision of this
Paragraph 11 as to which there is a specific time period during which he is
prohibited from taking certain actions or from engaging in certain activities,
as set forth in such provision, then, in such event, such violation shall toll
the running of such time period from the date of such violation until such
violation shall cease.



          (d) Executive has carefully considered the nature and extent of the
restrictions upon him and the rights and remedies conferred upon the Company
under this Paragraph 11, and hereby acknowledges and agrees that the same are
reasonable in time and territory, are designed to eliminate competition that
otherwise would be unfair to the Company, do not stifle the inherent skill and
experience of Executive, would not operate as a bar to Executive’s sole means
of support, are fully required to protect the legitimate interests of the
Company and do not confer a benefit upon the Company disproportionate to the
detriment to Executive.



     12.     Withholding Taxes. All payments to Executive hereunder shall be
subject to withholding on account of federal, state and local taxes as required
by law.


     13.     No Conflicting Agreements. Executive represents and warrants that he
is not a party to any agreement, contract or understanding, whether an
employment contract or otherwise, that would restrict or prohibit him from
undertaking or performing employment in accordance with the terms and
conditions of this Agreement.


     14.     Severable Provisions. The provisions of this Agreement are severable
and if any one or more of its provisions is determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions and any
partially unenforceable provision to the extent enforceable in any jurisdiction
nevertheless shall be binding and enforceable.


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     15.     Binding Agreement. The rights and obligations of the Company under
this Agreement shall inure to the benefit of, and shall be binding on, the
Company and its successors and assigns, and the rights and obligations (other
than obligations to perform services) of Executive under this Agreement shall
inure 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 a
purchaser) of all or substantially all the assets of the Company. As used in
this Agreement, the “Company” shall mean the Company as hereinbefore defined
and any successor or assign to its assets as aforesaid that becomes bound by
all the terms and provisions of this Agreement. If the Executive should die
while any amounts are still payable to him, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to the Executive’s devisee, legatee, or other designee or, if there be no such
designee, to the Executive’s estate.


     16.     Notices. Notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when sent by certified
mail, postage prepaid, addressed to the intended recipient at the address set
forth at the end of this Agreement, or at such other address as such intended
recipient hereafter may have designated most recently to the other party hereto
with 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 United
States district court(s) in Florida for the purpose of any proceedings arising
out of this Agreement or any transaction contemplated by this Agreement; (ii)
agrees not to commence such proceeding except in these courts; (iii) agrees
that service of any process, summons, notice or document by U.S. registered
mail to a party’s address as provided herein shall be effective service of
process for any such proceeding; and (iv) waives any objection to the laying of
venue of any such proceeding in these courts.


     18.     Waiver of Jury Trial. Each party waives, to the fullest extent
permitted by law, any right he or it may have to a trial by jury in respect of
any suit, action or proceeding arising out of this


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Agreement or any transaction contemplated by this Agreement. Each party
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce this waiver; and acknowledges that he or
it and the other party have been induced to enter into this Agreement by, among
other things, the mutual waivers and certifications in this Paragraph 18.


     19.     Waiver. The failure of either party to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision
as to any future violation thereof, or prevent that party thereafter from
enforcing each and every other provision of this Agreement. The rights granted
the parties herein are cumulative and the waiver of any single remedy shall not
constitute a waiver of such party’s right to assert all other legal remedies
available to it under the circumstances.


     20.     Miscellaneous. This Agreement supersedes all prior agreements and
understandings between the parties including, without limitation, that certain
employment agreement, dated as of September 1, 2000, between the Company and
Executive, which agreement is hereby terminated. This Agreement may not be
modified or terminated orally. All obligations and liabilities of each party
hereto in favor of the other party hereto relating to matters arising prior to
the date hereof have been fully satisfied, paid and discharge. No
modification, termination or attempted waiver shall be valid unless in writing
and signed by the party against whom the same is sought to be enforced.


     21.     Governing Law. This Agreement shall be governed by and construed
according to the laws of the State of Florida.


     22.     Captions and Paragraph Headings. Captions and paragraph headings used
herein are for convenience and are not a part of this Agreement and shall not
be used in construing it.


     23.     Legal Fees. If any legal action is required to enforce Executive’s
rights under this Agreement, Executive shall be entitled to recover from the
Company any expenses for attorneys’ fees and disbursements reasonably incurred
by him if he is the prevailing party.


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     24.     No Obligation To Mitigate Damages. Executive shall not be required to
mitigate damages or the amount of any payment provided for under this Agreement
upon termination of his employment by the Company without Cause by seeking
other employment or otherwise after such termination, nor shall the amount of
any such payment provided for under this Agreement be reduced by any
compensation earned by Executive after such termination as the result of his
employment by another employer.


     25.     Sale of Assets. For the avoidance of doubt, if the Company sells all
or substantially all of its assets and the purchaser or an affiliate of the
purchaser of such assets assumes this Agreement or offers Executive employment
on substantially the same terms as contained herein on or before the closing
date of such sale of assets and Executive does not accept such assumption or
offer in writing on or before the closing date, his employment hereunder shall
automatically terminate pursuant to Section 7(a)(iv) on the date of such
closing and he shall not be entitled to any payments under any provision of
this Agreement other than Paragraph 8(b).


     IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first set forth above.



	 	EXECUTIVE:




	 	/s/ W. David Foster



Name: W. David Foster

Address: 3045 Braeloch Circle, Clearwater, Florida 33761




	 	ABLEST INC.




	 	By: /s/ Charles H. Heist




Name: Charles H. Heist

Title: Chairman of the Board

Address: 1901 Ulmerton Road, Suite 300 Clearwater, Florida 33762



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