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EXHIBIT 10.9
Three year employment agreements with
The Chairman of the Board, The CEO and The President
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of September 1, 2000,
between Ablest Inc., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxx III ("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
Chairman, and Executive hereby accepts such employment, on the terms and
conditions set forth herein.
(b) Duties. During the term of this Agreement and any
renewal hereof (all references herein to the term of this Agreement shall
include references to the period of renewal hereof, if any), Executive shall be
and have the title, duties and authority of 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 are customarily performed by the
Chairman 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.
(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 renewal and termination
hereinafter provided, the term of this Agreement shall begin on the date hereof
and shall continue for the current calendar year and for the succeeding three
calendar years (the "Initial Term"). As of January 1, 2004, and as of January 1
of each succeeding calendar year
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thereafter, the term hereof automatically shall be renewed for one year (each
such year, a "One-Year Renewal Term"), unless: (i) this Agreement is terminated
as provided in Paragraph 7 hereof, or (ii) either the Company or Executive shall
have given notice of non-renewal of this Agreement to the other at least six (6)
months before January 1, 2004, or six (6) months before the beginning of any
such succeeding one (1) year period, as the case may be (for example, unless
such written notice of non-renewal is given on or prior to July 1, 2003, the
term of this Agreement automatically will be renewed for one year, effective
January 1, 2004, through December 31, 2004) (a "Non-renewal Notice").
3. Directorship. Management of the Company will, at every
election for the Board of Directors while Executive is employed by the Company
as 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 the period beginning on the date hereof
and ending December 31, 2000, salary equal to an annual salary of Two Hundred
Forty Thousand Dollars ($240,000), multiplied by the ratio of the number of days
in the period beginning on the date hereof and ending on the last day of 2000 to
366; and
(ii) for the calendar year beginning on January
1, 2001, and for each calendar year thereafter during the term of this
Agreement, salary as determined by the Compensation Committee, which in no event
shall be less than the annual salary that was payable by the Company to
Executive under this Paragraph 4(a) for the immediately preceding calendar year.
(b) Bonus. Executive shall be entitled to participate in
any bonus program implemented by the Compensation Committee of the Board of
Directors for senior executives generally of the Company, with pertinent terms
and goals to be established annually or otherwise by the Compensation Committee
in its sole discretion.
5. Benefits; Business Expenses; and Perquisites. 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
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time during the term of this Agreement. 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.
During the term of this Agreement, Company shall furnish Executive, at the
Company's cost, with the use of a late model automobile of a make and quality
comparable to the automobile that the Company has furnished to Executive to date
in 2000. Executive shall be entitled to such other perquisites 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 remaining hereunder at such date, 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 as to any unpaid salary,
bonus, or other 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, 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.
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(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.
6. 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;
(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 end
of the term of this Agreement then in effect if either party gives to the other
party a Non-renewal Notice.
(b) Upon any termination hereunder, Executive shall be
deemed automatically to have resigned from all offices and directorships held by
him in the Company.
(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.
7. Certain Termination Payments.
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(a) If Executive's employment with the Company is
terminated by the Company without Cause or by Executive for Good Reason, in each
case other than following a Change in Control, the Company shall (i) continue to
pay to Executive the per annum rate of salary then in effect 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 a
period equal to the remainder of the Initial Term or any One-Year Renewal Term,
as the case may be, 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 Term.
(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
Agreement, except as to that portion of any unpaid salary and other benefits
accrued and earned by him under Paragraphs 4(a) and 4(c) hereof up to and
including the Date of Termination.
8. 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 him with Good Reason (in either case, the "CIC Trigger").
Notwithstanding the foregoing, Executive will not be entitled to CIC
Compensation in the event of a termination of his employment on account of: (i)
Death or Disability; (ii) Retirement; or (iii) a Qualified Sale of Business.
(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: (x) an amount equal to
three times Executive's annual base salary in effect on the date of Termination
(the "Base Salary"); (y) an amount equal to three times the sum of (A) the
target bonus opportunity in the year of such termination and (B) the
contribution, if any, paid by the Company for the
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benefit of Executive to any 401(k) Plan in the last complete fiscal year of the
Company; and (z) the present value, determined as of the Date of Termination, of
the sum of all benefits which have accrued to Executive but have not vested
under any retirement plan of the Company (the "Retirement Plan") as of the Date
of Termination and all additional benefits which would have accrued to Executive
under the Retirement Plan had he continued to be employed by the Company on the
same terms he was employed on the Date of Termination from the Date of
Termination to the date thirty-six (36) months after the Date of Termination.
For purposes hereof, the present value of a future payment shall be calculated
by reference to the actuarial assumptions (including assumptions with respect to
interest rates) in use immediately prior to the Change in Control for purpose of
calculating actuarial equivalents under the Retirement Plan.
(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 each Option
to sell to the Company shares of common stock acquired at any time upon exercise
of an Option at a price equal to the average market price 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.
9. Definitions.
(a) "Beneficial Owner" shall have the meaning provided in
Rule 13d-3 promulgated under the
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Exchange Act.
(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" 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 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 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; provided,
however, that a Transaction which would otherwise not result in a Change in
Control because of the resulting ownership of more than 50% of the voting
securities of the surviving company, its parent, or a purchaser of the assets
will, nonetheless, be deemed to be a Change in Control but only in connection
with a termination for Good Reason; 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
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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 any of the following:
(i) The reduction of Executive's annual salary
or bonus opportunity below the higher of (A) the amount of annual salary or
bonus opportunity in effect immediately prior to a Change in Control or (B) the
highest amount of annual salary or bonus opportunity in effect at any time
thereafter;
(ii) (A) any failure by the Company to continue
in effect or provide plans or arrangements pursuant to which Executive will be
entitled to receive grants relating to the securities of the Company (including,
without limitation, stock options, stock appreciation rights, restricted stock
or other equity based awards) of the same type as Executive was participating in
immediately prior to a Change in Control (hereinafter referred to as "Securities
Plans") or providing substitutes for such Securities Plans which in the
aggregate provide substantially similar economic benefits; or (B) the taking of
any action by the Company which would adversely affect Executive's participation
in, or benefits under, any such Securities Plan or its substitute if in the
aggregate Executive is not provided substantially similar economic benefits;
provided, however, that for these purposes, any determination of whether Good
Reason exists under (A) or (B) of this subsection (ii) because Executive is or
is not provided substantially similar economic benefits in the aggregate will be
made with due consideration given to Executive's base salary, other cash
compensation and any other equity based incentive programs pursuant to which
Executive is also entitled to receive equity based incentive compensation, and
not solely on the basis of whether Executive is or is not entitled or eligible
to receive equity based incentive compensation;
(iii) the assignment to Executive of any duties
inconsistent with, or a diminution of, Executive's duties, title, offices,
responsibilities or status from those of Executive with the Company, or any
removal of Executive from or any failure to reelect or reappoint Executive to
any of such positions, including as a Director, except in connection with the
termination of Executive's employment for Disability, Retirement or Cause or as
a result of Executive's death;
(iv) in the event of a Transaction that is deemed
to be a Change in Control solely as a result of Paragraph 10(c)(ii) of this
Agreement, removal of Executive from the position he held with the Company prior
to such Transaction (or Executive's not holding the comparable position in the
parent company following such Transaction) or the diminishing of his duties or
responsibilities in a manner that would be Good Reason under Paragraph
10(d)(iii) above;
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(v) the Company's requiring Executive to be
based at a location more than 50 miles from the location where Executive was
based on the Effective Date or to substantially increase on a regularly
recurring basis his business travel obligations; or
(vi) the material breach of this Agreement by the
Company when the Company does not have Cause to terminate Executive.
(e) "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, including a "group" (as defined
in Section 13(d) of the Exchange Act).
(f) "Qualified Sale of Business" shall mean the sale of a
business unit in which Executive was employed before such sale so long as
Executive has been offered employment with the purchaser of such business unit
upon substantially the same terms under which he worked for the Company,
including change-in-control compensation.
(g) "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.
10. 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 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
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
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(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 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.
(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 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.
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11. Withholding Taxes. All payments to Executive hereunder shall
be subject to withholding on account of federal, state and local taxes as
required by law.
12. 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.
13. 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.
14. 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 will require any successors or assign (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all the
business or assets of the Company by agreement in form and substance
satisfactory to the Executive, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession or
assignment had taken place. Any failure of the Company to obtain such agreement
prior to the effectiveness of any such succession or assignment shall be a
material breach of this Agreement and shall entitle the Executive to terminate
his employment for Good Reason. As used in this Agreement, the "Company" shall
mean the Company as hereinbefore defined and any successor or assign to its
business or assets as aforesaid which executes and delivers the agreement
provided for herein or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law. 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 of, if there be no such
designee, to the Executive's estate.
15. 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
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most recently to the other party hereto with specific reference to this
Paragraph 16.
16. 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.
17. 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 18.
18. 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.
19. Miscellaneous. This Agreement supersedes all prior agreements
and understandings 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.
20. Governing Law. This Agreement shall be governed by and
construed according to the laws of the State of Florida.
21. 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.
22. Legal Fees. If any legal action is required to enforce
Executive's rights under this Agreement,
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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.
23. 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. Xxxxx III
--------------------------------------------
Name: Xxxxxxx X. Xxxxx III
Address: 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000
ABLEST INC.
By: /s/ W. Xxxxx Xxxxxx
-----------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Chief Executive Officer
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of September 1,
2000, between Ablest Inc., a Delaware corporation (the "Company"), and W. Xxxxx
Xxxxxx ("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:
5. Employment.
(d) Title. The Company hereby employs Executive as Chief
Executive Officer, and Executive hereby accepts such employment, on the terms
and conditions set forth herein.
(e) Duties. During the term of this Agreement and any
renewal hereof (all references herein to the term of this Agreement shall
include references to the period of renewal hereof, if any), Executive shall be
and have the title, duties and authority of Chief Executive 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 Chief Executive 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. 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.
(f) 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
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hereunder.
6. Term. Subject to the provisions for renewal and termination
hereinafter provided, the term of this Agreement shall begin on the date hereof
and shall continue for the current calendar year and for the succeeding three
calendar years (the "Initial Term"). As of January 1, 2004, and as of January 1
of each succeeding calendar year thereafter, the term hereof automatically shall
be renewed for one year (each such year, a "One-Year Renewal Term"), unless: (i)
this Agreement is terminated as provided in Paragraph 7 hereof, or (ii) either
the Company or Executive shall have given notice of non-renewal of this
Agreement to the other at least six (6) months before January 1, 2004, or six
(6) months before the beginning of any such succeeding one (1) year period, as
the case may be (for example, unless such written notice of non-renewal is given
on or prior to July 1, 2003, the term of this Agreement automatically will be
renewed for one year, effective January 1, 2004, through December 31, 2004) (a
"Non-renewal Notice").
7. Directorship. Management of the Company will, at every
election for the Board of Directors while Executive is employed by the Company
as Chief Executive Officer, 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.
8. Compensation.
(c) 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):
(iii) for the period beginning on the date hereof
and ending December 31, 2000, salary equal to an annual salary of Two Hundred
Forty Thousand Dollars ($240,000), multiplied by the ratio of the number of days
in the period beginning on the date hereof and ending on the last day of 2000 to
366; and
(iv) for the calendar year beginning on January
1, 2001, and for each calendar year thereafter during the term of this
Agreement, salary as determined by the Compensation Committee, which in no event
shall be less than the annual salary that was payable by the Company to
Executive under this Paragraph 4(a) for the immediately preceding calendar year.
(d) Bonus. Executive shall be entitled to participate in
any bonus program implemented by the
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Compensation Committee of the Board of Directors for senior executives generally
of the Company, with pertinent terms and goals to be established annually or
otherwise by the Compensation Committee in its sole discretion.
(e) 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.
(f) 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.
(g) Perquisites. During the term of this Agreement,
Company shall furnish Executive, at the Company's cost, with the use of a late
model automobile of a make and quality comparable to the automobile that the
Company has furnished to Executive to date in 2000. Executive shall be entitled
to such other perquisites as are provided by the Company to senior executives
generally from time to time during the term hereof.
9. Restricted Stock.
(a) In recognition of the value Executive has created in
the Company and in order to encourage Executive to use his talents to enhance
the operations and profitability of the Company in the future, the Company
hereby grants and issues to Executive 30,000 restricted shares of common stock,
$.05 par value, of the Company (the "Restricted Shares"). On January 1 of each
of calendar years 2001 through 2003 (each such date, a "Maturity Date"),
one-third of the Restricted Shares shall vest and a stock certificate for such
vested shares shall be delivered to Executive. Prior to an applicable Maturity
Date, the Company shall hold all stock certificates for Restricted Shares that
have not vested. So long as this agreement is in effect and Executive is not in
breach hereof, Executive will be entitled to vote all Restricted Shares at
meetings of the shareholders of the Company. No cash dividends or equivalent
amounts shall be paid on the Restricted Shares prior to vesting. On each
Maturity Date, the Company shall pay to Executive an amount in cash or in kind,
as appropriate, that shall be equal to the cash or other dividends, if any, that
would have been paid between the date hereof and the particular Maturity Date
with respect to issued and outstanding common shares equal in number to the
number of Restricted Shares maturing on such Maturity Date. No interest shall be
paid on any dividend equivalent or any part thereof.
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(b) If Executive's employment hereunder terminates prior
to any vesting date by reason of his Disability or death, a Change in Control of
the Company, termination without Cause by the Company, or termination by
Executive for Good Reason, all Restricted Shares will vest automatically at the
time of such termination.
(c) On each Maturity Date, or at any time that the
Restricted Shares automatically vest as provided in Section 5(b) hereof, the
Company shall pay to Executive (or his estate, as the case may be) an amount in
cash equal to 66% of the fair market value of the Restricted Shares vested on
such date or at such time, such cash amount to be paid not later than December
15 of the year in which such shares vested.
(d) If Executive's employment hereunder terminates prior
to any vesting date for reasons other than death, Disability, Change in Control
of the Company, termination without Cause by the Company, or termination by
Executive for Good Reason, all unvested Restricted Shares will be forfeited.
10. Payment in the Event of Death or Disability.
(e) 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 remaining hereunder at such date, 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.
(f) Except as otherwise provided in Paragraph 6(a), in
he 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 the Restricted
Shares as set forth in Paragraph 5 hereof and any unpaid salary, bonus, or other
benefits accrued and earned by him up to and including the date of such death or
Disability.
(g) 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
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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.
(h) 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.
11. Termination
(i) The employment of Executive under this Agreement:
(vii) shall be terminated automatically upon the
death or Disability of Executive;
(viii) 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;
(ix) may be terminated at any time by the Company
without Cause with 30 days advance notice to Executive;
(x) may be terminated at any time by Executive
with thirty (30) days' advance notice to the Company;
(xi) 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
(xii) shall be terminated automatically at the end
of the term of this Agreement then in effect if either party gives to the other
party a Non-renewal Notice.
(j) Upon any termination hereunder, Executive shall be
deemed automatically to have resigned from all offices and directorships held by
him in the Company.
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(k) 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.
(l) Certain Termination Payments.
(m) If Executive's employment with the Company is
terminated by the Company without Cause or by Executive for Good Reason, in each
case other than following a Change in Control, the Company shall (i) continue to
pay to Executive the per annum rate of salary then in effect 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 a
period equal to the remainder of the Initial Term or any One-Year Renewal Term,
as the case may be, 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 Term.
(n) 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
Agreement, except as to that portion of any unpaid salary and other benefits
accrued and earned by him under Paragraphs 4(a) and 4(c) hereof up to and
including the Date of Termination.
12. Change in Control Termination Payments.
(o) 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 him with Good Reason (in either case, the "CIC Trigger").
Notwithstanding the foregoing, Executive will not be entitled to CIC
Compensation in the event of a termination of his employment on account of: (i)
Death or Disability; (ii) Retirement; or (iii) a Qualified Sale of Business.
(p) In the event of a CIC Trigger, Executive shall be
entitled to the CIC Compensation provided below:
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(v) 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: (x) an amount equal to three times
Executive's annual base salary in effect on the date of Termination (the "Base
Salary"); (y) an amount equal to three times the sum of (A) the target bonus
opportunity in the year of such 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; and (z) the present value, determined as of
the Date of Termination, of the sum of all benefits which have accrued to
Executive but have not vested under any retirement plan of the Company (the
"Retirement Plan") as of the Date of Termination and all additional benefits
which would have accrued to Executive under the Retirement Plan had he continued
to be employed by the Company on the same terms he was employed on the Date of
Termination from the Date of Termination to the date thirty-six (36) months
after the Date of Termination. For purposes hereof, the present value of a
future payment shall be calculated by reference to the actuarial assumptions
(including assumptions with respect to interest rates) in use immediately prior
to the Change in Control for purpose of calculating actuarial equivalents under
the Retirement Plan.
(vi) 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.
(vii) 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.
(viii) Executive shall have the right within one year
following the later of the Change in Control or the exercise of each Option to
sell to the Company shares of common stock acquired at any time upon exercise of
an Option at a price equal to the average market price of the common stock for
the 30 trading days ending on the date prior to the date of the Change in
Control.
(ix) As set forth in Paragraph 5(b) hereof, all Restricted
Shares will vest and be delivered to Executive.
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(q) 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.
13. Definitions.
(b) "Beneficial Owner" shall have the meaning provided in
Rule 13d-3 promulgated under the Exchange Act.
(r) "Cause" means:
(iv) Executive's conviction of, or plea of "no
contest" to, a felony;
(v) 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
(vi) 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.
(d) "Change in Control" means any of the following
events:
(iv) 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 becoming the beneficial owner of the requisite voting power,
the Heist Family no longer holds a majority of the outstanding shares; or
(v) 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 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; provided,
however, that a Transaction which would
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otherwise not result in a Change in Control because of the resulting ownership
of more than 50% of the voting securities of the surviving company, its parent,
or a purchaser of the assets will, nonetheless, be deemed to be a Change in
Control but only in connection with a termination for Good Reason; or
(vi) 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).
(s) "Good Reason" means any of the following:
(vii) The reduction of Executive's annual salary or bonus
opportunity below the higher of (A) the amount of annual salary or bonus
opportunity in effect immediately prior to a Change in Control or (B) the
highest amount of annual salary or bonus opportunity in effect at any time
thereafter;
(viii) (A) any failure by the Company to continue in effect
or provide plans or arrangements pursuant to which Executive will be entitled to
receive grants relating to the securities of the Company (including, without
limitation, stock options, stock appreciation rights, restricted stock or other
equity based awards) of the same type as Executive was participating in
immediately prior to a Change in Control (hereinafter referred to as "Securities
Plans") or providing substitutes for such Securities Plans which in the
aggregate provide substantially similar economic benefits; or (B) the taking of
any action by the Company which would adversely affect Executive's participation
in, or benefits under, any such Securities Plan or its substitute if in the
aggregate Executive is not provided substantially similar economic benefits;
provided, however, that for these purposes, any determination of whether Good
Reason exists under (A) or (B) of this subsection (ii) because Executive is or
is not provided substantially similar economic benefits in the aggregate will be
made with due consideration given to Executive's base salary, other cash
compensation and any other equity based incentive programs pursuant to which
Executive is also entitled to receive equity based incentive compensation, and
not solely on the basis of whether Executive is or is not entitled or eligible
to receive equity based incentive compensation;
(ix) the assignment to Executive of any duties
inconsistent with, or a diminution of, Executive's duties, title, offices,
responsibilities or status from those of Executive with the Company, or any
removal of
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Executive from or any failure to reelect or reappoint Executive to
any of such positions, including as a Director, except in connection with the
termination of Executive's employment for Disability, Retirement or Cause or as
a result of Executive's death;
(x) in the event of a Transaction that is deemed
to be a Change in Control solely as a result of Paragraph 10(c)(ii) of this
Agreement, removal of Executive from the position he held with the Company prior
to such Transaction (or Executive's not holding the comparable position in the
parent company following such Transaction) or the diminishing of his duties or
responsibilities in a manner that would be Good Reason under Paragraph
10(d)(iii) above;
(xi) the Company's requiring Executive to be
based at a location more than 50 miles from the location where Executive was
based on the Effective Date or to substantially increase on a regularly
recurring basis his business travel obligations; or
(xii) the material breach of this Agreement by the
Company when the Company does not have Cause to terminate Executive.
(h) "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, including a "group" (as defined
in Section 13(d) of the Exchange Act).
(i) "Qualified Sale of Business" shall mean the sale of a
business unit in which Executive was employed before such sale so long as
Executive has been offered employment with the purchaser of such business unit
upon substantially the same terms under which he worked for the Company,
including change-in-control compensation.
(j) "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.
14. Certain Covenants
(c) 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 Executive for Good
Reason or by the Company without Cause, Executive shall not, directly or
indirectly, do or suffer any of the following:
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(iv) 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
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;
(v) 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
(vi) Induce any person who is a customer of the
Company to terminate said relationship.
(d) 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.
(t) 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 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.
(u) 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
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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.
(v) 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.
15. Withholding Taxes. All payments to Executive hereunder shall
be subject to withholding on account of federal, state and local taxes as
required by law.
16. 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.
17. 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.
18. 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 will require any successors or assign (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all the
business or assets of the Company by agreement in form and substance
satisfactory to the Executive, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession or
assignment had taken place. Any failure of the Company to obtain such agreement
prior to the effectiveness of any such succession or assignment shall be a
material breach of this Agreement and shall entitle the Executive to terminate
his employment for Good Reason. As used in this Agreement, the "Company" shall
mean the Company as hereinbefore
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defined and any successor or assign to its business or assets as aforesaid which
executes and delivers the agreement provided for herein or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law. 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 of, if there be no such designee, to the Executive's estate.
19. 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.
20. 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.
21. 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 18.
22. 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.
23. Miscellaneous. This Agreement supersedes all prior agreements
and understandings between the parties and may not be modified or terminated
orally. All obligations and liabilities of each party hereto in favor of the
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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.
24. Governing Law. This Agreement shall be governed by and
construed according to the laws of the State of Florida.
25. 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.
26. 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.
27. 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/ W. Xxxxx Xxxxxx
-------------------------------------------------------
Name: W. Xxxxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000
ABLEST INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of September 1, 2000,
between Ablest Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxx
("Executive").
WITNESSETH:
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:
28. Employment. The Company hereby employs Executive as President,
and Executive hereby accepts such employment, on the terms and conditions set
forth herein. During the term of this Agreement and any renewal hereof (all
references herein to the term of this Agreement shall include references to the
period of renewal hereof, if any), Executive shall be and have the title, duties
and authority of President 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 President 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. 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 or
the Chief Executive Officer and shall report to the Board of Directors.
29. Term. Subject to the provisions for renewal and termination
hereinafter provided, the term of this Agreement shall begin on the date hereof
and shall continue for the current calendar year and for the succeeding three
calendar years (the "Initial Term"). As of January 1, 2004, and as of January 1
of each succeeding calendar year thereafter, the term hereof automatically shall
be renewed for one year (each such year, a "One-Year Renewal Term"), unless: (i)
this Agreement is terminated as provided in Paragraph 7 hereof, or (ii) either
the Company or Executive shall have given notice of non-renewal of this
Agreement to the other at least six (6) months before January 1, 2004, or six
(6) months before the beginning of any such succeeding one (1) year period, as
the case may be (for example, unless such written notice of non-renewal is given
on or prior to July 1, 2003, the term of this Agreement automatically will be
renewed for one year, effective January 1, 2004, through December 31, 2004) (a
"Non-renewal Notice").
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30. 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.
31. Compensation.
(h) 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):
(v) for the period beginning on the date hereof
and ending December 31, 2000, salary equal to an annual salary of Two Hundred
Thousand Dollars ($200,000), multiplied by the ratio of the number of days in
the period beginning on the date hereof and ending on the last day of 2000 to
366; and
(vi) for the calendar year beginning on January
1, 2001, and for each calendar year thereafter during the term of this
Agreement, salary as determined by the Compensation Committee, which in no event
shall be less than the annual salary that was payable by the Company to
Executive under this Paragraph 4(a) for the immediately preceding calendar year.
(i) Bonus. Executive shall be entitled to participate in
any bonus program implemented by the Compensation Committee of the Board of
Directors for senior executives generally of the Company, with pertinent terms
and goals to be established annually or otherwise by the Compensation Committee
in its sole discretion.
(j) 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.
(k) 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.
(l) Perquisites. During the term of this Agreement,
Company shall furnish Executive, at the
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Company's cost, with the use of a late model automobile of a make and quality
comparable to the automobile that the Company has furnished to Executive to date
in 2000. Executive shall be entitled to such other perquisites as are provided
by the Company to senior executives generally from time to time during the term
hereof.
32. Restricted Stock.
(w) In recognition of the value Executive has created in
the Company and in order to encourage Executive to use his talents to enhance
the operations and profitability of the Company in the future, the Company
hereby grants and issues to Executive 30,000 restricted shares of common stock,
$.05 par value, of the Company (the "Restricted Shares"). On January 1 of each
of calendar years 2001 through 2003 (each such date, a "Maturity Date"),
one-third of the Restricted Shares shall vest and a stock certificate for such
vested shares shall be delivered to Executive. Prior to an applicable Maturity
Date, the Company shall hold all stock certificates for Restricted Shares that
have not vested. So long as this agreement is in effect and Executive is not in
breach hereof, Executive will be entitled to vote all Restricted Shares at
meetings of the shareholders of the Company. No cash dividends or equivalent
amounts shall be paid on the Restricted Shares prior to vesting. On each
Maturity Date, the Company shall pay to Executive an amount in cash or in kind,
as appropriate, that shall be equal to the cash or other dividends, if any, that
would have been paid between the date hereof and the particular Maturity Date
with respect to issued and outstanding common shares equal in number to the
number of Restricted Shares maturing on such Maturity Date. No interest shall be
paid on any dividend equivalent or any part thereof.
(x) If Executive's employment hereunder terminates prior
to any vesting date by reason of his Disability or death, a Change in Control of
the Company, termination without Cause by the Company, or termination by
Executive for Good Reason, all Restricted Shares will vest automatically at the
time of such termination.
(y) On each Maturity Date, or at any time that the
Restricted Shares automatically vest as provided in Section 5(b) hereof, the
Company shall pay to Executive (or his estate, as the case may be) an amount in
cash equal to 66% of the fair market value of the Restricted Shares vested on
such date or at such time, such cash amount to be paid not later than December
15 of the year in which such shares vested.
(z) If Executive's employment hereunder terminates prior
to any vesting date for reasons other than death, Disability, Change in Control
of the Company, termination without Cause by the Company, or termination by
Executive for Good Reason, all unvested Restricted Shares will be forfeited.
33. Payment in the Event of Death or Disability.
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(aa) 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 remaining hereunder at such date, 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.
(bb) 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 as to the Restricted
Shares as set forth in Paragraph 5 hereof and any unpaid salary, bonus, or other
benefits accrued and earned by him up to and including the date of such death or
Disability.
(cc) 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.
(dd) 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.
34. Termination
(ee) The employment of Executive under this Agreement:
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(xiii) shall be terminated automatically upon the
death or Disability of Executive;
(xiv) 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;
(xv) may be terminated at any time by the
Company without Cause with 30 days advance notice to Executive;
(xvi) may be terminated at any time by Executive
with thirty (30) days' advance notice to the Company;
(xvii) 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
(xviii) shall be terminated automatically at the end
of the term of this Agreement then in effect if either party gives to the other
party a Non-renewal Notice.
(ff) Upon any termination hereunder, Executive shall be
deemed automatically to have resigned from all offices and directorships held by
him in the Company.
(gg) 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.
(hh) Certain Termination Payments.
(ii) If Executive's employment with the Company is
terminated by the Company without Cause or by Executive for Good Reason, in each
case other than following a Change in Control, the Company shall (i) continue to
pay to Executive the per annum rate of salary then in effect 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 a
period equal to the remainder of the Initial Term or any One-Year Renewal Term,
as the case may be, and (ii) pay Executive on or before the thirtieth day after
the
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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 Term.
(jj) 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
Agreement, except as to that portion of any unpaid salary and other benefits
accrued and earned by him under Paragraphs 4(a) and 4(c) hereof up to and
including the Date of Termination.
35. Change in Control Termination Payments.
(kk) 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 him with Good Reason (in either case, the "CIC Trigger").
Notwithstanding the foregoing, Executive will not be entitled to CIC
Compensation in the event of a termination of his employment on account of: (i)
Death or Disability; (ii) Retirement; or (iii) a Qualified Sale of Business.
(ll) In the event of a CIC Trigger, Executive shall be
entitled to the CIC Compensation provided below:
(x) 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: (x) an amount equal to
three times Executive's annual base salary in effect on the date of Termination
(the "Base Salary"); (y) an amount equal to three times the sum of (A) the
target bonus opportunity in the year of such 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; and (z) the present
value, determined as of the Date of Termination, of the sum of all benefits
which have accrued to Executive but have not vested under any retirement plan of
the Company (the "Retirement Plan") as of the Date of Termination and all
additional benefits which would have accrued to Executive under the Retirement
Plan had he continued to be employed by the Company on the same terms he was
employed on the Date of Termination from the Date of Termination to the date
thirty-six (36) months after the Date of Termination. For purposes hereof, the
present value of a future payment shall be calculated by reference to the
actuarial assumptions (including assumptions with respect to interest rates) in
use immediately prior to the Change in Control for purpose of calculating
actuarial equivalents under the Retirement Plan.
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(xi) 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.
(xii) 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.
(xiii) Executive shall have the right within one
year following the later of the Change in Control or the exercise of each Option
to sell to the Company shares of common stock acquired at any time upon exercise
of an Option at a price equal to the average market price of the common stock
for the 30 trading days ending on the date prior to the date of the Change in
Control.
(xiv) As set forth in Paragraph 5(b) hereof, all
Restricted Shares will vest and be delivered to Executive.
(mm) 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.
36. Definitions.
(c) "Beneficial Owner" shall have the meaning provided in
Rule 13d-3 promulgated under the Exchange Act.
(nn) "Cause" means:
(vii) Executive's conviction of, or plea of "no
contest" to, a felony;
(viii) 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
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(ix) 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.
(e) "Change in Control" means any of the following
events:
(vii) 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 becoming the beneficial owner of the requisite voting power,
the Heist Family no longer holds a majority of the outstanding shares; or
(viii) 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 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; provided,
however, that a Transaction which would otherwise not result in a Change in
Control because of the resulting ownership of more than 50% of the voting
securities of the surviving company, its parent, or a purchaser of the assets
will, nonetheless, be deemed to be a Change in Control but only in connection
with a termination for Good Reason; or
(ix) 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).
(oo) "Good Reason" means any of the following:
(xiii) The reduction of Executive's annual salary
or bonus opportunity below the higher of (A) the amount of annual salary or
bonus opportunity in effect immediately prior to a Change in Control or (B) the
highest amount of annual salary or bonus opportunity in effect at any time
thereafter;
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(xiv) (A) any failure by the Company to continue
in effect or provide plans or arrangements pursuant to which Executive will be
entitled to receive grants relating to the securities of the Company (including,
without limitation, stock options, stock appreciation rights, restricted stock
or other equity based awards) of the same type as Executive was participating in
immediately prior to a Change in Control (hereinafter referred to as "Securities
Plans") or providing substitutes for such Securities Plans which in the
aggregate provide substantially similar economic benefits; or (B) the taking of
any action by the Company which would adversely affect Executive's participation
in, or benefits under, any such Securities Plan or its substitute if in the
aggregate Executive is not provided substantially similar economic benefits;
provided, however, that for these purposes, any determination of whether Good
Reason exists under (A) or (B) of this subsection (ii) because Executive is or
is not provided substantially similar economic benefits in the aggregate will be
made with due consideration given to Executive's base salary, other cash
compensation and any other equity based incentive programs pursuant to which
Executive is also entitled to receive equity based incentive compensation, and
not solely on the basis of whether Executive is or is not entitled or eligible
to receive equity based incentive compensation;
(xv) the assignment to Executive of any duties
inconsistent with, or a diminution of, Executive's duties, title, offices,
responsibilities or status from those of Executive with the Company, or any
removal of Executive from or any failure to reelect or reappoint Executive to
any of such positions, including as a Director, except in connection with the
termination of Executive's employment for Disability, Retirement or Cause or as
a result of Executive's death;
(xvi) in the event of a Transaction that is deemed
to be a Change in Control solely as a result of Paragraph 10(c)(ii) of this
Agreement, removal of Executive from the position he held with the Company prior
to such Transaction (or Executive's not holding the comparable position in the
parent company following such Transaction) or the diminishing of his duties or
responsibilities in a manner that would be Good Reason under Paragraph
10(d)(iii) above;
(xvii) the Company's requiring Executive to be
based at a location more than 50 miles from the location where Executive was
based on the Effective Date or to substantially increase on a regularly
recurring basis his business travel obligations; or
(xviii) the material breach of this Agreement by
the Company when the Company does not have Cause to terminate Executive.
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(k) "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, including a "group" (as defined
in Section 13(d) of the Exchange Act).
(l) "Qualified Sale of Business" shall mean the sale of a
business unit in which Executive was employed before such sale so long as
Executive has been offered employment with the purchaser of such business unit
upon substantially the same terms under which he worked for the Company,
including change-in-control compensation.
(m) "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.
37. Certain Covenants
(e) 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 Executive for Good
Reason or by the Company without Cause, Executive shall not, directly or
indirectly, do or suffer any of the following:
(vii) 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
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;
(viii) 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
(ix) Induce any person who is a customer of the
Company to terminate said relationship.
(f) 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
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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.
(pp) 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 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.
(qq) 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.
(rr) 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.
38. Withholding Taxes. All payments to Executive hereunder shall
be subject to withholding on account of federal, state and local taxes as
required by law.
39. 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.
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40. 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.
41. 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 will require any successors or assign (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all the
business or assets of the Company by agreement in form and substance
satisfactory to the Executive, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession or
assignment had taken place. Any failure of the Company to obtain such agreement
prior to the effectiveness of any such succession or assignment shall be a
material breach of this Agreement and shall entitle the Executive to terminate
his employment for Good Reason. As used in this Agreement, the "Company" shall
mean the Company as hereinbefore defined and any successor or assign to its
business or assets as aforesaid which executes and delivers the agreement
provided for herein or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law. 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 of, if there be no such
designee, to the Executive's estate.
42. 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.
43. 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.
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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.
44. 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 18.
45. 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.
46. Miscellaneous. This Agreement supersedes all prior agreements
and understandings 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.
47. Governing Law. This Agreement shall be governed by and
construed according to the laws of the State of Florida.
48. 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.
49. 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.
50. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first set forth above.
EXECUTIVE:
/s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx
Address: 0000 Xxxxxx Xxxx., Xxxx, Xxxxxxx 00000
ABLEST INC.
By: /s/ W. Xxxxx Xxxxxx
--------------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Chief Executive Officer
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