EXHIBIT 10.6
EMPLOYMENT AGREEMENT WITH
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of January 21,
2002, between Ablest Inc., a Delaware corporation (the "Company"), and Xxxxxxx
X. Xxxxxxxx ("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. The Company hereby employs Executive as Vice
President, Chief Financial Officer, and Executive hereby accepts such
employment, on the terms and conditions set forth herein. During the term of
this Agreement, Executive shall be and have the title, duties and authority of
Vice President, Chief Financial Officer of the Company and shall devote his
entire business time and all reasonable efforts to his employment and shall
perform diligently such duties as are customarily performed by the Vice
President, Chief Financial Officer of companies the size and structure of the
Company, together with such other duties as may be reasonably required from time
to time by the Board of Directors of the Company or Chairman of the Company.
2. Term. This Agreement shall begin on the date hereof and shall
continue through and terminate upon the close of business on December 31, 2003
(the "Term").
3. 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.
4. Compensation and Other Matters.
(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 the period beginning on the date hereof
and ending December 31, 2002, salary equal to an annual salary of One Hundred
Forty Thousand Dollars ($140,000), multiplied by the ratio of the number of days
in the period beginning on the date hereof and ending on the last day of 2002 to
365; and
(ii) for the calendar year beginning on January
1, 2003, salary as determined by the Compensation Committee, which in no event
shall be less than One Hundred Forty Thousand Dollars ($140,000).
(b) Bonus. Executive shall be entitled to participate in
each year of the Term in an annual bonus program to be implemented by the
Compensation Committee of the Board of Directors with pertinent terms and goals
to be established by the Compensation Committee in its sole discretion and
pursuant to which Executive shall have the opportunity to earn a bonus of up to
30% of his annual salary.
(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.
(d) Business Expenses. 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.
(e) Restricted Stock Plan. During the term of this
Agreement, Executive shall participate in the Company's Restricted Stock Plan if
and when it is approved by the shareholders of the Company.
(f) Perquisites. During the Term, the Company shall
furnish Executive, at the Company's cost, with the use of an automobile with a
dealer invoice price not to exceed $35,000, and shall be entitled to such other
perquisites as are generally provided by the Company to senior executives.
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(g) COBRA Reimbursement. The Company will reimburse
Executive for the cost of his current medical COBRA premiums on a prorated basis
for January 2002 and in full for February and March 2002.
(h) Vacation. Executive shall be entitled to three weeks
of paid vacation annually.
(i) Employee Handbook. Except to the extent provided
otherwise in this Agreement, the standard policies outlined in the Company's
Employee Handbook, a copy of which has been provided to Executive, will be
applicable to Executive's employment under this Agreement.
5. Death or Disability.
(a) Except as otherwise provided in Paragraph 7(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 as to any unpaid salary
or benefits accrued and earned by him up to and including the date of such death
or Disability.
(b) 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, 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.
6. Termination
(c) 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;
(v) may be terminated by Executive for Good
Reason if the Company fails to cure the event constituting Good Reason within
thirty (30) days of written notice of such event from Executive, provided that
Executive has given notice of the event forming the basis of Good Reason within
ninety (90) days after he has knowledge thereof; or
(vi) shall be terminated automatically at the
close of business on December 31, 2003.
(d) Upon any termination hereunder, Executive shall be deemed
automatically to have resigned from all offices held by him in the Company.
(e) 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.
7. Certain Termination Payments.
(a) If Executive's employment with the Company is
terminated by the Company without Cause or by Executive for Good Reason, or in
the event of Executive's death or Disability, the Company shall pay Executive
(or his estate, as the case may be) on or before the thirtieth day after the
Date of Termination an amount equal to (i) $140,000, if this Agreement is so
terminated in 2002 or (ii) the greater of 50% of his salary for 2003 or salary
for the remainder of 2003, if this Agreement is so terminated in 2003.
(b) If Executive's employment is terminated by the
Company with Cause or by Executive without Good Reason, Executive shall be
entitled to no further compensation or other payments or benefits under this
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Agreement, except as to that portion of any unpaid salary and any benefits
accrued and earned by him under Paragraphs 4(a) and 4(c) hereof up to and
including the Date of Termination.
8. Definitions.
(a) "Beneficial Owner" shall have the meaning provided in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934.
(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. For
the avoidance of doubt, Company and Executive agree that "Cause" does not
include a Change in Control of Company and termination of Executive by Company
without Cause following a Change in Control thereof will entitle Executive to
the payment set forth in Paragraph 7(a) hereof.
(c) "Change in Control" means any of the following
events:
(i) any "Person", other than Xxxxxx X. Xxxxx 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 no longer holds a majority of the outstanding shares; or
(ii) the shareholders of the Company shall
approve any merger or other business combination of the Company, or any going
private transaction subject to Rule 13e-3 of the 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 immediately following which the
shareholders of the Company immediately prior to the Transaction own greater
than 50% 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
(iii) within any 24 month period, the persons who
were directors immediately before the beginning of such period (the
"Disinterested Directors") shall 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. For this purpose, any director who was not a director
at the beginning of such period shall be 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 or threatened to effect a Change of Control).
(d) "Good Reason" means the material breach of this
Agreement by the Company when the Company does not have Cause to terminate
Executive and if such breach has not been cured in all material respects within
twenty (20) days after Executive gives notice thereof to the Company.
(e) "Person" shall have the meaning provided in Section
3(a)(9) of the Securities Exchange Act of 1934 and as used in Sections 13(d) and
14(d) thereof, including a "group" (as defined in Section 13(d) of the Exchange
Act).
9. 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 one year after termination of Executive's employment and this
Agreement under Paragraph 6 hereof, other than termination by Executive for Good
Reason or by the Company without Cause, 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, independent contractor or otherwise
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with, any other 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 9 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 9, the Company shall be entitled to
immediate 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 9 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 9 that may be pursued by the Company.
(d) If Executive shall violate any legally enforceable
provision of this Paragraph 9 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.
(e) 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 9, 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.
10. Withholding Taxes. All payments to Executive hereunder shall
be subject to withholding on account of federal, state and local taxes as
required by law.
11. 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.
12. 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.
13. 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. 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
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designee of, if there be no such designee, to the Executive's estate.
14. 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 14.
15. 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.
16. 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 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 16.
17. 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.
18. Miscellaneous. This Agreement supersedes all prior agreements
and understandings in writing or otherwise between the parties and 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.
19. Governing Law. This Agreement shall be governed by and
construed according to the laws of the State of Florida.
20. 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.
21. 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.
22. No Obligation To Mitigate Damages. Executive shall not be
required to mitigate damages or the amount of any payment provided for under
this Agreement by seeking other employment or otherwise, nor shall the amount of
any payment provided for under this Agreement be reduced by any compensation
earned by Executive as the result of employment by another employer after the
termination of his employment, or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the day and year first set forth above.
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Address: 00000 Xxxxxx Xxxxx Xxxxx, Xxxx, XX 00000
ABLEST INC.
By: /s/ W. Xxxxx Xxxxxx
-----------------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Chief Executive Officer
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