-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R871eJXcvC+fP9aj340IY0fH/MXAHcj/QRuCsL9srrmIbKo603qLsSQRdG+Gqmc0 U0qFWSPTzWYCQkKWxP5LBQ== /in/edgar/work/0000950152-00-007486/0000950152-00-007486.txt : 20001031 0000950152-00-007486.hdr.sgml : 20001031 ACCESSION NUMBER: 0000950152-00-007486 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20001030 EFFECTIVENESS DATE: 20001030 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ABLEST INC CENTRAL INDEX KEY: 0000046653 STANDARD INDUSTRIAL CLASSIFICATION: [7363 ] IRS NUMBER: 160803301 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-48918 FILM NUMBER: 749068 BUSINESS ADDRESS: STREET 1: 1901 ULMERTON ROAD STREET 2: SUITE 300 CITY: CLEARWATER STATE: FL ZIP: 33762 BUSINESS PHONE: 7237461565 MAIL ADDRESS: STREET 1: 45 ANDERSON ROAD CITY: BUFFALO STATE: NY ZIP: 14225 FORMER COMPANY: FORMER CONFORMED NAME: HEIST C H CORP DATE OF NAME CHANGE: 19920703 S-8 1 l84753as-8.txt ABLEST INC. FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 2000 REGISTRATION NO. 33- ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- ABLEST INC. (Exact name of registrant as specified in its charter) DELAWARE 66-0978462 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1901 ULMERTON ROAD, SUITE 300 CLEARWATER, FLORIDA 33762 (Address of Principal Executive Offices) (Zip Code) ----------------- INDEPENDENT DIRECTORS' STOCK OPTION PLAN KEY EMPLOYEES' OPTION-TO-OWNERSHIP STOCK PLAN (Full title of the plan) ----------------- MARK KASHMANIAN SECRETARY ABLEST INC. 1901 ULMERTON ROAD, SUITE 300 CLEARWATER, FLORIDA 33762 (Name and address of agent for service) (727) 299-1200 (Telephone number, including area code, of agent for service) ----------------- CALCULATION OF REGISTRATION FEE
========================================================================================================================== Proposed Proposed Title of securities Amount to be maximum offering maximum aggregate Amount of to be registered registered (1) price per share offering price (2) registration fee - ------------------------------------------------------------------------------------------------------------------------- Common Stock, $.05 par value 155,314 (2) $ 733,424 $194 ==========================================================================================================================
(1) Also includes an indeterminate number of additional shares that may become issuable pursuant to anti-dilution provisions of the option plan. (2) Estimated in accordance with Rules 457(c) and 457(h)(1) solely for the purpose of determining the registration fee. The fee with respect to all but 24,000 of the shares registered herein is based on $4.66, the average of the high and low sale prices on October 26, 2000, of the registrant's shares of common stock as reported on the American Stock Exchange, and the fee with respect to the remaining 24,000 shares is based on $5.0625, the exercise price of options granted for such shares. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT The shares of common stock registered by Ablest Inc. (the "Company") pursuant to this Registration Statement will be issued under the Independent Directors' Stock Option Plan and the Key Employees' Option-to-Ownership Stock Plan. ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The documents listed in (a) through (c) below are incorporated by reference in this Registration Statement. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") subsequent to the date of the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities registered hereunder have been sold, or which de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents. (a) The Company's Annual Report on Form 10-K for the year ended December 26, 1999. (b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the Annual Report on Form 10-K referenced above. (c) The description of the Company's common stock as contained in a registration statement filed under the Exchange Act including any amendment or report filed for the purpose of updating such description. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Bylaws of the Company provide for indemnification of its directors and officers. The Company is permitted by its Bylaws and the Delaware General Corporation Law to maintain insurance on behalf of its directors and officers against any loss arising from any claim asserted against them in such capacities, subject to certain exclusions. ITEM 8. EXHIBITS.
Exhibit Description of Exhibit Number ---------------------- ------ 4(a) Certificate of Incorporation 4(b) Bylaws 5 Opinion of Baker & Hostetler LLP 10(a) Independent Directors' Stock Option Plan 10(b) Key Employees' Option-to-Ownership Stock Plan 23(a) Consent of KPMG LLP 23(b) Consent of Baker & Hostetler LLP (included in opinion filed as Exhibit 5 hereto) 24(a) Power of Attorney (Registrant) 24(b) Power of Attorney (Directors and Officers)
II-2 3 ITEM 9. UNDERTAKINGS. The Company hereby undertakes: (1) To file, during any period in which offers or sales of the registered securities are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Act"); (ii) to reflect in the Prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement, provided that, notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of the securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that the undertakings set forth in paragraphs (1)(i) and (1)(ii) above do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The Company hereby undertakes that, for purposes of determining any liability under the Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Act (and, where applicable, each filing of any employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers, and controlling persons of the Company pursuant to the provisions described under Item 6 above or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by any such director, officer or controlling person in connection with the securities registered hereunder, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Clearwater, State of Florida, on October 30, 2000. ABLEST INC. By: * ------------------------------ Charles H. Heist III, Chairman Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the date above by the following persons in the capacities indicated below.
Signature Title - --------- ----- * Chairman of the Board and Chief Financial Officer - ------------------------------------ Charles H. Heist III * President and Chief Executive Officer; Director - ------------------------------------ W. David Foster * Chief Accounting Officer, Secretary and Treasurer - ------------------------------------ Mark Kashmanian * Director - ------------------------------------ Ronald K. Leirvik * Director - ------------------------------------ Donna R. Moore * Director - ------------------------------------ Richard W. Roberson * Director - ------------------------------------ Charles E. Scharlau
* William Appleton, by signing his name hereto, does sign this Registration Statement on behalf of the persons indicated above pursuant to powers of attorney duly executed by such persons and filed as exhibits to this Registration Statement. By: /s/ William Appleton ---------------------------------------------- William Appleton, Attorney-in-Fact II-4 5 EXHIBIT INDEX
Exhibit Number Exhibit Description ------ ------------------- 4(a) Certificate of Incorporation 4(b) Bylaws 5 Opinion of Baker & Hostetler LLP 10(a) Independent Directors' Stock Option Plan 10(b) Key Employees' Option-to-Ownership Stock Plan 23(a) Consent of KPMG LLP 23(b) Consent of Baker & Hostetler LLP (included in opinion filed as Exhibit 5 hereto) 24(a) Power of Attorney (Registrant) 24(b) Power of Attorney (Directors and Officers)
II-5 EX-4.A 2 l84753aex4-a.txt EXHIBIT 4(A) 1 EXHIBIT 4(a) CERTIFICATE OF INCORPORATION OF ABLEST INC. ARTICLE FIRST ------------- The name of the corporation is Ablest Inc. ARTICLE SECOND -------------- The name and address of the corporation's registered office in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, New Castle County, Wilmington, Delaware. ARTICLE THIRD ------------- The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE FOURTH -------------- The total number of shares which the corporation shall have authority to issue shall be 8,000,000, divided into two classes, namely: 500,000 shares of Preferred Stock, par value $.05 per share ("Preferred Stock"), and 7,500,000 shares of Common Stock, par value $.05 per share ("Common Stock"). The designation, relative rights, preferences and limitations of the shares of each class and the authority of the Board of Directors of the corporation to establish and to designate series of the Preferred Stock and to fix the variations in the relative rights, preferences and limitations as between such series, and the relative rights, preferences and limitations of each such series, shall be as follows: 1. Preferred Stock. ---------------- (a) The Board of Directors of the corporation is authorized, subject to the limitations prescribed by law and the provisions of this Section 1 of this Article FOURTH, to provide for the issuance of the Preferred Stock in series, to establish or change the number of shares to be included in each such series and to fix the designation, powers, rights, and preferences, and the qualifications, restrictions or limitations, of the shares of each such series. The authority of the Board of Directors of the corporation with respect to each series shall include, but not be limited to, determination of the following: (i) the number of shares constituting that series and the distinctive designation of that series; (ii) the dividend rate or rates on the shares of that series and/or the method of determining such rate or rates, and whether dividends shall be cumulative and, if so, from which date or dates; 2 (iii) whether and to what extent the shares of that series shall have voting rights in addition to the voting rights provided by law, which might include the right to elect a specified number of directors in any case or if dividends on such series are not paid for a specified period of time; (iv) whether the shares of that series shall be convertible into shares of stock of any other series or class, and, if so, the terms and conditions of such conversion, including the price or prices or the rate or rates of conversion and the terms of adjustment thereof; (v) whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; (vi) the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation; (vii) the obligation, if any, of the corporation to retire shares of that series pursuant to a sinking fund; and (viii) any other relative rights, preferences and limitations of the Series. (b) Subject to the designations, powers, rights, and preferences and the limitations, qualifications and restrictions provided pursuant to Subsection 1(a) of this Article FOURTH, each share of Preferred Stock of a series shall be of equal rank with each other share of Preferred Stock of such series. (c) The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the Common Stock, without a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of the Preferred Stock or any series thereof. 2. Common Stock. ------------- (a) DIVIDENDS. Subject to the express terms of the Preferred Stock outstanding from time to time, such dividend or distribution as may be determined by the Board of Directors of the corporation may from time to time be declared and paid or made upon the Common Stock out of any source at the time lawfully available for the payment of dividends. (b) VOTING. Except as otherwise provided by law, each share of Common Stock shall entitle the holder thereof to one vote in any matter which is submitted to a vote of the holders of shares of Common Stock of the corporation. (c) LIQUIDATION. The holders of Common Stock shall be entitled to share ratably upon any liquidation, dissolution or winding up of the affairs of the corporation (voluntary or involuntary) in all assets of the corporation, if any, remaining after payment in full to the holders of Preferred Stock of the preferential amounts, if any, to which they are entitled. Neither the consolidation nor the merger of -2- 3 the corporation with or into any other corporation or corporations, nor a reorganization of the corporation alone, nor the sale or transfer by the corporation of all or any part of its assets, shall be deemed to be a liquidation, dissolution or winding up of the corporation for the purposes of this subparagraph (2)(c). 3. ISSUANCE OF CAPITAL STOCK. Shares of capital stock of the corporation may be issued by the corporation from time to time in such amounts and proportions and for such consideration (not less than the par value thereof in the case of capital stock having par value) as may be fixed and determined from time to time by the Board of Directors and as shall be permitted by law. ARTICLE FIFTH ------------- The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by the certificate of incorporation or the by-laws of the Corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, the number of directors shall be fixed from time to time exclusively by the board of directors pursuant to a resolution adopted by a majority of the Whole Board. For purposes of the certificate of incorporation of the corporation, the term "Whole Board" shall mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships. The directors, other than those who may be elected by the holders of any series of Preferred Stock, or any other series or class of stock as set forth in the certificate of incorporation of the corporation, shall be elected annually by the holders of common stock, and each director shall hold office until his or her successor shall have been duly elected and qualified. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the by-laws of the corporation. The name and mailing address of the incorporator is as follows: Name Mailing Address ---- --------------- William Appleton, Esq. Baker & Hostetler LLP 312 Walnut Street, Suite 2650 Cincinnati, Ohio 45202 ARTICLE SIXTH ------------- The corporation is to have perpetual existence. -3- 4 ARTICLE SEVENTH --------------- In furtherance and not in limitation of the power conferred by statute, the Board of Directors of the corporation is expressly authorized to adopt, amend or repeal the by-laws of the corporation. Any adoption, amendment or repeal of the by-laws of the corporation by the board of directors shall require the approval of a majority of the directors. The stockholders may adopt, amend or repeal by-laws of the corporation only upon the affirmative vote of the holders of not less than 66-2/3% of the total number of votes entitled to be cast generally in the election of directors. ARTICLE EIGHTH -------------- Any action required or permitted to be taken by the holders of any class or series of stock of the corporation entitled to vote generally in the election of directors may be taken only by vote at an annual or special meeting at which such action may be taken and may not be taken by written consent. ARTICLE NINTH ------------- 1. DIRECTORS' LIABILITY. To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any repeal or modification of this Article NINTH by the stockholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification. 2. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee, member or agent of another corporation (including a subsidiary of the corporation) or of a partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to employee benefit plans (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as such a director, officer, employee, trustee, member or agent or in any other capacity while serving as such, shall be indemnified and held harmless by the corporation to the fullest extent authorized by the General Corporation of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than such law permitted the corporation to provide prior to such amendment), against all expense, liability and loss (including, without limitation, attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith, and such indemnification shall continue as to an indemnitee who has ceased to be such a director, officer, employee, trustee, member or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators; provided, however, that, except as provided in section 3 of this Article NINTH with respect to proceedings to enforce rights to indemnification, the corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the corporation. The right to indemnification conferred in this section 2 shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final -4- 5 disposition (hereinafter an "advancement of expenses'); provided, however, that if the General Corporation Law of the State of Delaware requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses under this section or otherwise (hereinafter an "undertaking"). 3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim for indemnification pursuant to this Article NINTH is not paid in full by the corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses), it shall be a defense that the indemnitee has not met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware. Similarly, in any suit by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the corporation shall be entitled to recover such expenses upon a final adjudication that the indemnitee has not met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right hereunder, or by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified or entitled to such advancement of expenses under this Article NINTH or otherwise shall be on the corporation. 4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and advancement of expenses conferred in this Article NINTH shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors, or otherwise. 5. INSURANCE. The corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee, trustee, member or agent of the corporation or another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. -5- 6 6. INDEMNITY CONTRACTS. The corporation may enter into contracts from time to time with such of its directors, officers, agents or employees and providing for such indemnification, insurance, and advancement of expenses as the Board of Directors determines to be appropriate. ARTICLE TENTH ------------- The Board of Directors of the corporation, when evaluating any offer of another party to make a tender or exchange offer for any equity security of the corporation, to merge or consolidate the corporation with another corporation or to purchase or otherwise acquire all or substantially all of the assets of the corporation, shall, in connection with the exercise of its judgment in determining what is in the best interests of the corporation and its stockholders, give due consideration to the effect that such a transaction would have on the integrity, character and quality of the corporation's operations, all other relevant factors, including, without limitation, long-term as well as short-term interests of the corporation and stockholders (including the possibility that these interests may be best served by the continued independence of the corporation), and the social, legal, and economic effects on the employees, customers, suppliers, and creditors of the corporation and its subsidiaries, on the communities and geographical areas in which the corporation and its subsidiaries operate or are located, and on any of the businesses and properties of the corporation or any of its subsidiaries, as well as such other factors as the directors deem relevant. ARTICLE ELEVENTH ---------------- Subject to the rights of the holders of any series of Preferred Stock then outstanding, any directors, or the entire board of directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least two-thirds of the voting power of all of the then-outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class. ARTICLE TWELFTH --------------- The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding any other provision herein or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of the Corporation required by law or by the Certificate of Incorporation, the affirmative vote of the holders of at least two-thirds of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal Articles FIFTH, SEVENTH, EIGHTH, NINTH, TENTH, ELEVENTH AND TWELFTH. -6- 7 The undersigned, being the incorporator above named for the purposes of forming a corporation pursuant to the General Corporation Law of the State of Delaware, has signed this instrument the 3rd day of February, 2000, and does thereby acknowledge that it is his act and deed and that the facts stated therein are true. ------------------------------------- William Appleton, Incorporator -7- 8 The undersigned, being the incorporator above named for the purposes of forming a corporation pursuant to the General Corporation Law of the State of Delaware, has signed this instrument the 3rd day of February, 2000, and does thereby acknowledge that it is his act and deed and that the facts stated therein are true. ------------------------------------- William Appleton, Incorporator -7- EX-4.B 3 l84753aex4-b.txt EXHIBIT 4(B) 1 EXHIBIT 4(b) BYLAWS OF ABLEST INC. A Delaware corporation ARTICLE I OFFICES Section 1. REGISTERED OFFICE; REGISTERED AGENT. The registered office in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, 19801. The name of the corporation's registered agent at such address shall be The Corporation Trust Company. Section 2. OTHER OFFICES. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors of the corporation (the "Board of Directors") may from time to time determine or the business of the corporation may require. ARTICLE II STOCKHOLDERS Section 1. MEETINGS OF STOCKHOLDERS. All meetings of the stockholders for the election of directors shall be held at the registered office of the corporation in Delaware, or at such other location within or without the State of Delaware as may be set forth in the notice of call. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of call. Section 2. ANNUAL MEETING. The annual meeting of stockholders shall be held each year at a time and place determined by the Board of Directors. At the annual meeting, the stockholders shall elect directors by a plurality vote in accordance with the corporation's Certificate of Incorporation and transact such other business as may properly be brought before the meeting. Section 3. NOTICE OF ANNUAL MEETINGS. Written notice of the annual meeting shall be given to each stockholder entitled to vote thereat at least ten and not more than sixty days before the date of the meeting. Section 4. STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall make, at least ten days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held and which place shall be specified in the notice of the meeting, or, if not specified, at the place where said meeting is to be held. The list shall be produced subject to the inspection of any stockholder who may be present. Section 5. SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by the certificate of incorporation, may only be called by the Chairman of the Board or the President or by the Board of Directors acting pursuant to a resolution adopted by a majority of the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships. Such request shall state the purpose or purposes of the proposed meeting. Section 6. NOTICE OF SPECIAL MEETINGS. Written notice of a special meeting of stockholders, stating the date, time, place and purpose or purposes thereof, shall be given to each stockholder entitled to vote thereat, at least ten and not more than sixty days before the date fixed for the meeting. 2 Section 7. BUSINESS TRANSACTED AT SPECIAL MEETINGS. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. APPOINTMENT OF INSPECTORS OF ELECTION. The Board of Directors shall, in advance of sending to the stockholders any notice of a meeting of the holders of any class of shares, appoint one or more inspectors of election ("inspectors") to act at such meeting or any adjournment or postponement thereof and make a written report thereof. The Board of Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is so appointed or if no inspector or alternate is able to act, the Chairman of the Board shall appoint one or more inspectors to act at such meeting. The inspectors may be directors, officers or employees of the corporation. Section 9. QUORUM; ADJOURNMENT. Except as otherwise required by law or the certificate of incorporation, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If a quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting to a later date without notice other than announcement at the meeting, until a quorum shall be present or represented. If at such later date, a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 10. VOTING POWER. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question. Section 11. VOTING; PROXIES. Except as otherwise provided by law or by the certificate of incorporation and subject to these bylaws, each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period and, except where the transfer books of the corporation have been closed or a date has been fixed as a record date for the determination of its stockholders entitled to vote, no share of stock shall be voted on at any election for directors which has been transferred on the books of the corporation within twenty days next preceding such election of directors. Section 12. BALLOTS. The vote on any matter, including the election of directors, shall be by written ballot. Each ballot shall be signed by the stockholder voting, or by such stockholder's proxy, and shall state the number of shares voted. Section 13. STOCK LEDGER. The stock ledger of the corporation shall be the only evidence as to who are the stockholders entitled (i) to examine the stock ledger, any stockholder list required by these bylaws or the books of the corporation, or (ii) to vote in person or by proxy at any meeting of stockholders. Section 14. ADVANCE NOTICE OF STOCKHOLDER-PROPOSED BUSINESS AT ANNUAL MEETING. To be properly brought before an annual meeting, business must be either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the -2- 3 corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation, not less than ninety (90) nor more than one hundred and twenty (120) days prior to the one year anniversary of the date of the annual meeting of the previous year. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the corporation's books, of the stockholder proposing such business, (iii) the class and number of shares of the corporation that are "beneficially owned" (as defined under Rule 13d-3 of the rules promulgated under the Securities Exchange Act of 1934, as amended) by the stockholder, and (iv) any material interest of the stockholder in such business. Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 14, PROVIDED, HOWEVER, that nothing in this Section 14 shall be deemed to preclude discussion by any stockholder of any business properly brought before the annual meeting. The chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section 14 and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 15. NOMINATION OF DIRECTORS; ADVANCE NOTICE OF STOCKHOLDER NOMINATIONS. Only persons who are nominated in accordance with the procedures set forth in this Section 15 shall be eligible for election as directors. Nominations of persons for election to the Board of Directors of the corporation at the annual meeting may be made by or at the direction of the Board of Directors, by any nominating committee or person appointed for such purpose by the Board of Directors, or by any stockholder of the corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures set forth in this Section 15. Such nominations, other than those made by, or at the direction of, or under the authority of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than ninety (90) nor more than one hundred and twenty (120) days prior to the one year anniversary of the date of the annual meeting of the previous year. Such stockholder's notice to the Secretary shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation, if any, which are beneficially owned by the person and (iv) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14A under the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder giving the notice (i) the name and record address of the stockholder and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the stockholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the qualifications of such proposed nominee to serve as director of the corporation. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure and, if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded. ARTICLE III DIRECTORS Section 1. POWERS. The business of the corporation shall be managed by or under the direction of its Board of Directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by law, by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders. -3- 4 Section 2. NUMBER. Subject to the rights of the holders of any series of Preferred Stock or any other series or class of stock as set forth in the certificate of incorporation of the corporation to elect directors under specified circumstances, the number of directors shall be fixed from time to time as set forth in the corporation's Certificate of Incorporation. Section 3. FILLING OF VACANCIES. Vacancies and newly created directorships may be filled by a majority of the directors then in office, though less than a quorum, and each director so chosen shall hold office until a successor is duly elected and qualified or his or her earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by the General Corporation Law of the State of Delaware. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Section 4. RESIGNATION. Any director may resign at any time upon written notice to the corporation. Such written resignation shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chairman of the Board or Secretary. The acceptance of a resignation shall not be necessary to make it effective. Section 5. MEETINGS OF THE DIRECTORS. The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware. Section 6. REGULAR MEETINGS. Regular meetings, including the annual meeting, of the Board of Directors may be held within or without the State of Delaware at such time and at such place as shall from time to time be determined by resolution of the Board of Directors. Section 7. SPECIAL MEETINGS. Special meetings of the Board of Directors shall be called by the Secretary or an Assistant Secretary on the request of the Chairman of the Board, or on the request in writing of one-third of the whole Board of Directors, stating the purpose or purposes of such meeting. Section 8. NOTICE OF MEETINGS. Notices of meetings shall be mailed to each director, addressed to each director at such director's residence or usual place of business, or the address where the director is known to be, not later than three days before the day on which the meeting is to be held, or shall be sent to either of such places by telegraph, by telecopy, by facsimile transmission or be communicated to each director personally or by electronic mail or telephone, not later than three hours before such meeting. Notice of any meeting of the Board of Directors need not be given to any director who shall sign a written waiver thereof either before or after the time stated therein for such meeting, or who shall be present at the meeting and participate in the business transacted thereat; and any and all business transacted at any meeting of the Board of Directors shall be fully effective without any notice thereof having been given, if all the members shall be present thereat. Unless limited by law, the certificate of incorporation, the bylaws, or by the terms of the notice thereof, any and all business may be transacted at any meeting without the notice thereof having so specially enumerated the matters to be acted upon. Section 9. ORGANIZATION. The Chairman of the Board shall preside at all meetings of the Board of Directors at which the Chairman of the Board is present. If the Chairman of the Board shall be absent from any meeting of the Board of Directors, the duties otherwise provided in this Section 9 to be performed by the Chairman of the Board at such meeting shall be performed at such meeting by one of the directors chosen by the members of the Board of Directors present at such meeting. The Secretary of the corporation shall act as the secretary at all meetings of the Board of Directors and in the Secretary's absence a temporary secretary shall be appointed by the chairman of the meeting. Section 10. QUORUM; VOTING; ADJOURNMENT. Except as otherwise required by law or by the certificate of incorporation, at all meetings of the Board of Directors, a majority of the whole Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors -4- 5 present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors who are present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 11. ACTION BY UNANIMOUS WRITTEN CONSENT. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or such committee. Section 12. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee thereof, through the use of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 13. COMMITTEES OF DIRECTORS. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of two or more of the directors of the corporation, which, to the extent provided in the resolution, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. The Board of Directors may discontinue any such committee at its pleasure. Section 14. COMMITTEE MEMBERS. Each member of any such committee shall hold office until such member's successor is elected and has qualified, unless such member sooner dies, resigns, or is removed. The number of directors which shall constitute any committee shall be determined by the whole Board of Directors from time to time. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Section 15. COMMITTEE SECRETARY. The Board of Directors may elect a secretary of any such committee. If the Board of Directors does not elect such a secretary, the committee shall do so. The secretary of each committee shall keep regular minutes of the meetings of the committee, and shall provide copies of the minutes to the Board of Directors. Section 16. COMMITTEE MEETINGS. Meetings of committees of the Board of Directors may be held at any place, within or without the State of Delaware, as shall from time to time be designated by the Board of Directors or the committee in question. Regular meetings of any committee shall be held at such times as may be determined by resolution of the Board of Directors or the committee in question and no notice shall be required for any regular meeting. A special meeting of any committee shall be called by resolution of the Board of Directors. Notices of special meetings shall be mailed to each member of the committee in question no later than two days before the day on which the meeting is to be held, or shall be sent by telegraph, by facsimile transmission or telecopy, or be delivered to such member personally or by electronic mail or telephone, no later than three hours before such meeting. Notices of any such meeting need not be given to any such member, however, who shall sign a written waiver thereof, whether before or after the meeting, or who shall be present at the meeting and participate in the business transacted thereat; and any and all business transacted at any meeting of any committee shall be fully effective without any notice -5- 6 thereof having been given, if all the members of the committee shall be present thereat. Unless limited by law, the certificate of incorporation, these bylaws, or by the terms of the notice thereof, any and all business may be transacted at any such special meeting without the notice thereof having so specifically enumerated the matters to be acted upon. Section 17. ACTION WITHOUT A COMMITTEE MEETING. Any action required or permitted to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting, if all members of such committee consent thereto in writing and such writing or writings are filed with the minutes of proceedings of the committee. Section 18. EXECUTIVE COMMITTEE. The Board of Directors may, from time to time, by resolution passed by a majority of the directors in office, create an Executive Committee of three or more directors, the members of which shall be elected by the Board of Directors to serve during the pleasure of the Board. If the Board of Directors does not designate a chairman of the Executive Committee, the Executive Committee shall elect a chairman from its own number. Except as otherwise provided herein and in the resolution creating an Executive Committee, such committee shall, during the intervals between the meetings of the Board of Directors, possess and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the corporation, other than that of filling vacancies among the directors or in any committee of the directors. The Executive Committee shall keep full records and accounts of its proceedings and transactions. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action and shall be subject to control, revision and alteration by the Board of Directors, provided that no rights of third persons shall be prejudicially affected thereby. Vacancies in the Executive Committee shall be filled by the Board of Directors, and the Board of Directors may appoint one or more Directors as alternate members of the Executive Committee who may take the place of any absent or disqualified member or members at any meeting. Section 19. EXECUTIVE COMMITTEE MEETINGS. Subject to the provisions of these bylaws, the Executive Committee shall fix its own rules of procedure and shall meet as provided by such rules or by resolutions of the Board of Directors, and it shall also meet at the call of the Chairman of the Board, the chairman of the Executive Committee or any two members of the Executive Committee. A majority of the Executive Committee shall be necessary to constitute a quorum. The Executive Committee may act in a writing without a meeting, but no such action of the Executive Committee shall be effective unless concurred in by all members of the committee. Section 20. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the certificate of incorporation, the Board of Directors shall have the authority to fix the compensation of directors by written resolution. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors or committee thereof. No such compensation or payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. ARTICLE IV NOTICES Section 1. NOTICES. Except as otherwise specifically provided for in these bylaws, notices to directors and stockholders shall be in writing and delivered personally or mailed, or given by telephone, by telecopy, by telegram, by facsimile transmission or by other similar means of communication, to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same is mailed. Section 2. WAIVER. Whenever any notice is required to be given by law or by the certificate of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Any person who -6- 7 is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. In the case of directors, such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the Secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the Secretary immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action. ARTICLE V OFFICERS Section 1. GENERAL. The officers of the corporation shall be elected by the Board of Directors and shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, one or more Vice Presidents, a Secretary, and a Treasurer. The Board of Directors may also choose one or more Assistant Secretaries and Assistant Treasurers. Two or more offices may be held by the same person, with the exception of the offices of Chairman of the Board and Secretary. The officers of the corporation need not be stockholders or directors of the corporation. Section 2. ELECTION. The Board of Directors at its first meeting held after each annual meeting of stockholders shall elect the officers of the corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier resignation or removal as hereinafter provided. Section 3. OTHER OFFICERS AND AGENTS. The Board of Directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. Section 4. COMPENSATION. The compensation of all officers of the corporation shall be fixed by the Board of Directors, acting directly or through the Compensation Committee. Section 5. REMOVAL. Any officer elected or appointed by the Board of Directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the members of the Board of Directors. Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors. Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a member of the Board of Directors and shall be an officer of the corporation. The Chairman of the Board shall direct, coordinate and control the corporation's business and activities and shall have general authority to exercise all powers necessary thereto and shall perform such other duties and have such other powers as shall be prescribed from time to time by the Board of Directors. The Chairman of the Board shall preside at all meetings of the Board of Directors, and of the stockholders, at which he or she is present. In the absence or disability of the Chairman of the Board, the duties of the Chairman of the Board shall be performed and his or her authority shall be exercised by the Chief Executive Officer or in his or her absence or inability, by the President or one of the Vice Presidents, as designated for this purpose by the Board of Directors. Section 7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall perform such duties and have such powers as shall be prescribed from time to time by the Board of Directors. The Chairman of the Board may be the Chief Executive Officer of the Corporation. -7- 8 Section 8. PRESIDENT. The President shall perform such duties as shall be prescribed from time to time by the Chairman of the Board, the Chief Executive Officer, or the Board of Directors. If the Board of Directors so decides, the President may also be designated as the Chief Operating Officer. Section 9. CHIEF FINANCIAL OFFICER. The Chief Financial Officer of the corporation shall be responsible for all financial and accounting matters and shall have such other powers and perform such other duties as the Board of Directors from time to time may prescribe. Section 10. VICE PRESIDENTS. Each Vice President shall have such powers and shall perform such duties as may be assigned to him or her by the President or by the Board of Directors. Section 11. SECRETARY. The Secretary shall maintain a record of all meetings of the corporation and of the Board of Directors and shall have such other powers and perform such other duties as the Board of Directors, the Chief Executive Officer, or these bylaws may prescribe from time to time. Under the supervision of the Chief Executive Officer, the Secretary shall give, or cause to be given, all notices required to be given by these bylaws or by law. Section 12. ASSISTANT SECRETARIES. The Assistant Secretary, or if there be more than one, the Assistant Secretaries, shall in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors or the President may prescribe from time to time. Section 13. TREASURER. The Treasurer shall, under the direction of the Chief Financial Officer, have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the Board of Directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the Chief Financial Officer and the Board of Directors, at its regular meeting or when the Board of Directors so requires, an account of the Treasurer's actions; shall have such other powers and perform such other duties as the Board of Directors, the President or these bylaws may prescribe from time to time. Section 14. ASSISTANT TREASURERS. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors or the President may prescribe from time to time. Section 15. APPOINTED OFFICERS. The President may establish positions and offices identified as a function, department or other organizational component of the corporation, and may appoint individuals, who need not be employees of the corporation, to occupy those positions, subject to approval of the Executive Committee of the corporation. The individuals so appointed shall have such duties and powers as the President may determine or as may be assigned by the President, the Board of Directors or Executive Committee of the Board of Directors. The titles of such individuals (herein referred to as "appointed officers") may be either conventional corporate officer titles or titles designating a functional activity, but in all cases shall contain, as an integral part of the title, a reference to the function, organizational component or department within which the position is established. Section 16. APPOINTMENT, REMOVAL AND TERM OF APPOINTED OFFICERS. Appointed officers may be appointed by the Chairman of the Board. The Chairman of the Board may, at any time, remove any appointed officer, without notice, or accept such appointed officer's resignation. No term of office shall be established for any appointed officer. -8- 9 Section 17. DUTIES OF APPOINTED OFFICERS. An appointed officer shall perform such duties (not including duties normally performed by an officer of the corporation) as may, from time to time, be assigned to such appointed officer by the officer of the corporation having management responsibility for the organizational component or function to which such appointed officer is assigned. ARTICLE VI CERTIFICATE OF STOCK Section 1. CERTIFICATES OF STOCK. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the Chairman of the Board, the Chief Executive Officer, or a Vice President of the corporation and the Secretary or an Assistant Secretary of the corporation, certifying the number of shares owned by such holder in the corporation. All certificates of stock issued shall be numbered consecutively. Section 2. COUNTERSIGNED CERTIFICATES; SIGNATURE OF FORMER OFFICERS, TRANSFER AGENTS OR REGISTRARS. Where a certificate is countersigned by (i) a transfer agent other than the corporation or its employee, or (ii) a registrar other than the corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue. Section 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his or her legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 4. TRANSFER OF STOCK. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 5. CLOSING OF TRANSFER BOOKS. The Board of Directors may close the stock transfer books of the corporation for a period not exceeding sixty days preceding the date of any meeting of stockholders or the date for payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect. In lieu of closing the stock transfer books as aforesaid, the Board of Directors may fix in advance a date, not exceeding sixty days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, and in such case such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting and any adjournment thereof or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be notwithstanding any transfer of any stock on the books of the corporation after any such record date fixed as aforesaid. -9- 10 Section 6. REGISTERED STOCKHOLDERS. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, except as otherwise provided by the General Corporation Law of the State of Delaware. Section 7. STOCK SUBSCRIPTIONS. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the Board of Directors. Any call made by the Board of Directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation. ARTICLE VII GENERAL PROVISIONS Section 1. DIVIDENDS. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. RESERVES. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it is created. Section 3. CHECKS. All checks or demands for money and notes of the corporation shall be signed by such person or persons as shall be designated from time to time by the Board of Directors or by such officer or officers of the corporation as shall be appointed for that purpose by the Board of Directors. Section 4. FISCAL YEAR. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors. Section 5. SEAL. The corporate seal shall have inscribed thereon the name of the corporation and shall be in such form as may be approved from time to time by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 6. INSPECTION OF BOOKS AND RECORDS. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation's stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person's interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspect, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business. Section 7. INCONSISTENT PROVISIONS; TITLES. In the event that any provision of these bylaws is or becomes inconsistent with any provision of the certificate of incorporation, the General Corporation Law of -10- 11 the State of Delaware or any other applicable law, the provision of these bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect. The section titles contained in these bylaws are for convenience only and shall be without substantive meaning or content of any kind whatsoever. ARTICLE VIII AMENDMENTS Section 1. AMENDMENTS. These bylaws may be altered or repealed, and any bylaws may be made, only (i) at any annual meeting of the stockholders, or at any special meeting thereof if notice of the proposed alteration or repeal of the bylaws to be made is contained in the notice of such meeting, by the affirmative vote of the holders of at least 66-2/3% of the total number of votes entitled to be cast generally in the election of directors, or (ii) by the affirmative vote of a majority of the directors. -11- EX-5 4 l84753aex5.txt EXHIBIT 5 1 EXHIBIT 5 October 30, 2000 Ablest Inc. 1901 Ulmerton Road Clearwater, Florida 33762 Gentlemen: As counsel for Ablest Inc., a Delaware corporation (the "Company"), we are familiar with the Company's Independent Directors' Stock Option Plan and its Key Employees' Option-to-Ownership Stock Plan (the "Plans") and the registration under the Securities Act of 1933 on Form S-8 of 155,314 shares of common stock, $.05 par value, of the Company (the "Shares") reserved for issuance under the Plans. Based upon our examination of the Plans and such other documents as we have deemed relevant hereto, we are of the opinion that the Shares, when issued and paid for pursuant to the Plans, will be validly issued and outstanding, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit No. 5 to the Registration Statement on Form S-8 relating to the Shares. Very truly yours, Baker & Hostetler LLP EX-10.A 5 l84753aex10-a.txt EXHIBIT 10(A) 1 EXHIBIT 10(a) ABLEST INC. INDEPENDENT DIRECTORS' STOCK OPTION PLAN 1. TITLE AND PURPOSE. ------------------ The Plan shall be known as the Ablest Inc. Independent Directors' Stock Option Plan (the "Plan"). The purpose of the Plan is to strengthen the alignment of interests between the independent directors (the "Independent Directors" or individually an "Independent Director") and the shareholders of Ablest Inc. (the "Company") through the increased ownership by the Independent Directors of the Company's common stock. 2. ADMINISTRATION AND CONSTRUCTION OF PLAN. ---------------------------------------- The Plan shall be administered by the Board of Directors of the Company. The validity, construction and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with applicable law by the Board of Directors. 3. NUMBER OF SHARES AVAILABLE. --------------------------- The total number of shares of common stock of the Company that may be made subject to options awarded under the Plan shall be 100,000. 4. LIMITATION ON AMENDMENTS TO THE PLAN. ------------------------------------- The Plan may not be amended more than once every six months, other than to comport with changes in the Internal Revenue Code of 1986, as amended (the "Code"), the Employee Retirement Income Security Act, as amended, or the rules under either of the foregoing acts. 5. PARTICIPATION. -------------- For purposes of this Plan, an Independent Director shall be defined as any director of the Company who is not an officer or employee of the Company at the time of his or her election as a director. 6. NONQUALIFIED OPTIONS. --------------------- Effective with his or her election on May 16, 2000, each Independent Director shall receive an option to purchase 6,000 shares of common stock. Any person who is elected by the directors or the shareholders to the Board after May 16, 2000, who was not an Independent Director on May 16, 2000, and who qualifies as an Independent Director, shall receive an option to purchase 6000 shares of common stock on the date of his or her election. Each Independent Director shall receive an option to purchase an additional 1,500 shares of common stock each time he or she is re-elected to the Board of Directors. All options granted under the Plan shall be subject to the following terms and conditions. A. Price. ------ The price per share deliverable upon the exercise of each option ("exercise price") shall be equal to 100% of the Fair Market Value of the shares on the date the option is granted. The Fair Market Value of a share of common stock of the Company shall mean, with respect to the date in question, the average of the highest and lowest officially-quoted selling prices on the Nasdaq/American Stock Exchange. 2 B Cash Exercise. -------------- Options may be exercised in whole or in part upon payment in cash of the exercise price of the shares to be acquired. C. Cashless Exercise. ------------------ Options may be exercised in whole or in part upon delivery to the Secretary of the Company of an irrevocable written notice of exercise. The date on which such notice is received by the Secretary shall be the date of exercise of the option, provided that within five business days of the delivery of such notice the funds to pay for exercise of the option are delivered to the Company by a broker acting on behalf of the optionee either in connection with the sale of the shares underlying the option or in connection with the making of a margin loan to the optionee to enable payment of the exercise price of the option. In connection with the foregoing, the Company will provide a copy of the notice of exercise of the option to the aforesaid broker upon receipt by the Secretary of such notice and will deliver to such broker, within five business days of the delivery of such notice to the Company, a certificate or certificates (as requested by the broker) representing the number of shares underlying the option that have been sold by such broker for the optionee. D. Vesting; Term; Minimum Exercise. -------------------------------- Each initial stock option for 6000 shares shall become exercisable in three equal annual installments on the first, second, and third anniversaries of the grant thereof. All other stock options granted hereunder will become exercisable on the first anniversary of the grant thereof. The term of each option granted hereunder shall be ten years from the date it is granted. Shares may be purchased in whole or in part at any time after an option becomes exercisable, subject to a minimum exercise of 100 shares. Prior to the exercise of an option and issuance of the stock purchased upon such exercise, the optionee shall have no rights to any dividends or be entitled to any voting rights on any stock represented by such option. 7. DEATH; DISABILITY; CESSATION OF SERVICE; CHANGE IN CONTROL. ----------------------------------------------------------- A. Death or Disability. -------------------- If an Independent Director dies or becomes permanently and totally disabled (as defined in Section 72(m)(7) of the Code), each of his or her options will become fully vested and will be exercisable until its expiration date. B. Retirement. ----------- If an Independent Director retires from the Board of Directors of the Company in accordance with the policies and practices thereof, each of his or her options will become fully vested and will be exercisable until its expiration date. 2 3 C. Cessation of Service. --------------------- If an Independent Director ceases to be a director of the Company as a result of his or her voluntary resignation or as a result of his or her removal as a director the shareholders of the Company for cause as permitted under the Delaware General Corporation Law, all of his or her options that are not vested prior to such cessation or removal shall be forfeited. If an Independent Director ceases to be a director of the Company as the result of his or her removal by the shareholders of the Company without cause, each of his or her options will become fully vested and will be exercisable until its expiration date. D. Change in Control. ------------------ If there is Change in Control of the Company, each option granted hereunder to an Independent Director shall become fully vested and exercisable as of the date of the Change In Control. "Change in Control" shall mean any of the following events: (i) any "person" (as defined in section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Act") and as used in Sections 13(d) and 14(d) thereof, including a "group" as defined in Section 13(d) of the Act), except (A) Clydis D. Heist and her lineal descendants and any trust for the benefit of her lineal descendants (collectively, the "Heist Family") and (B) any trustee or fiduciary of any Company benefit plan, becomes the "beneficial owner" (as defined in Rule 13d-3 under the Act) of securities of the Company having at least [25%] of the voting power of the Company's then outstanding securities (unless the event causing the 25% threshold to be crossed is an acquisition of securities directly from the Company) but only if at the time of such person's becoming the beneficial owner of such voting power, the Heist Family no longer holds a majority of the outstanding shares of the Company's common stock; or (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, 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) (or, in a sale of assets, of the purchaser of the assets) immediately following the Transaction; or (iii) within any 24 month period, the persons who were directors immediately before the beginning of such period (the "DISINTERESTED DIRECTORS") shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of a successor to the Company. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be a Disinterested Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Disinterested Directors (so long as such director was not nominated by a person who has entered into an agreement, or threatened, to effect a Change of Control). 8. WITHHOLDING OF TAXES. --------------------- The Company may require, as a condition to any grant under the Plan or to the delivery of certificates for shares issued hereunder, that the grantee pay to the Company, in cash, any federal, state or local taxes of any kind required by law to be withheld with respect to any grant or any delivery of shares. The Company, in its sole discretion, may permit participants to pay such taxes through the withholding of shares otherwise deliverable to such participant in connection with such grant or the delivery to the Company of shares otherwise acquired by the 3 4 Independent Director. The Fair Market Value of shares withheld by the Company or tendered to the Company for the satisfaction of tax withholding obligations under this section shall be determined on the date such shares are withheld or tendered. The Company, to the extent permitted or required by law, shall have the right to deduct from any payment of any kind otherwise due to a grantee any federal, state or local taxes of any kind required by law to be withheld with respect to any grant or delivery of shares under the Plan, or to retain or sell without notice a sufficient number of the shares to be issued to such grantee to cover any such taxes, provided that the Company shall not sell any such shares if such sale would be considered a sale by such grantee for purposed of Section 16 of the Securities Exchange Act of 1934 (the "Exchange Act"). An Independent Director may elect to (i) have shares withheld from a grant or an award made under the Plan or tender shares to the Company in order to satisfy the tax withholding consequences of a grant or an award made under the Plan, only during the period beginning on the third business day following the date on which the Company releases the financial information specified in 17 C.F.R. Section 240.16b-3 (e) (1) (ii) and ending on the twelfth business day following such date. Notwithstanding the foregoing, an Independent Director may elect to have shares withheld on exercise of an option granted under the Plan in order to satisfy tax withholding consequences thereof by providing the Company with a written election to so withhold at least six months in advance of the withholding of shares otherwise issuable upon exercise of such option. 9. WRITTEN AGREEMENT. ------------------ Each Independent Director to whom a grant is made under the Plan shall enter into a written agreement with the Company that shall contain such provisions, consistent with the provisions of the Plan, as may be established by the Company. 10. TRANSFERABILITY. ---------------- No option granted under the Plan shall be transferable by an Independent Director otherwise than as follows: (i) by will or the laws of descent, (ii) by gift or contribution to a Permitted Transferee, or (iii) by distribution pursuant to a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act, or the rules thereunder. A "Permitted Transferee" means any one or more members of the Independent Director's family, any one or more trusts for the benefit of one or more members of his or her family, or any partnership of members of his or her family. Permitted Transferees and other transferees of options shall be subject to all restrictions, terms and conditions applicable to such option prior to its transfer, except that the option shall not be further transferable during the lifetime of the Permitted Transferee. An option may be exercised only by the optionee or the optionee's guardian, legal representative or Permitted Transferee. 11. ADJUSTMENTS. ------------ In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, distribution of assets, or any other change in the corporate structure or shares of the Company, the Company shall make such adjustments as it deems appropriate in the number and kind of shares reserved for issuance under the Plan, in the number and kind of shares covered by outstanding options granted under the Plan, and in the exercise price of outstanding options. In the event of any merger, consolidation or other reorganization in which the Company is not the surviving or continuing corporation, all stock option awards that were granted hereunder and that are outstanding on the date of such event shall be assumed by the surviving or continuing corporation. 12. LISTING AND REGISTRATION. ------------------------- If the Company determines that the listing, registration, or qualification upon any securities exchange or under any law of shares subject to any option granted under the Plan is necessary or desirable as a condition of, or in connection with, the granting of same or the issue or purchase of shares thereunder, no such option may be 4 5 exercised in whole or in part, or no shares issued unless such listing, registration or qualification is effected free of any conditions not acceptable to the Company. 13. DURATION OF PLAN. ----------------- This Plan shall become effective as of May 16, 2000 and will terminate at 5:00 p.m., Eastern Time, on May 15, 2010, but no such termination shall affect the prior rights under this Plan of the Company or of any Independent Director who has received an option hereunder. EX-10.B 6 l84753aex10-b.txt EXHIBIT 10(B) 1 EXHIBIT 10(b) ABLEST INC. OPTION-TO-OWNERSHIP PLAN 1. This Option-to-Ownership Plan (the "Plan") has been adopted by the Board of Directors of Ablest Inc., a Delaware corporation (the "Company"), effective October 9, 2000. 2. The persons eligible to participate in the Plan are those employees of the Company listed on the attached Exhibit A (the "Employees") who hold options for common stock of the Company ("Options"). 3. Pursuant to the Plan, each Employee may surrender all (but not less than all) of his or her Options by no later than December 31, 2000, in return for the opportunity to purchase common stock of the Company on the terms and conditions set forth in the Plan. 4. The number of shares of common stock that each Employee may purchase pursuant to the Plan shall be determined as follows: the value of the options surrendered by such Employee as determined by the Black-Scholes method and as indicated on the attached Exhibit A, divided by the fair market value of a share of common stock of the Company as of the date of adoption of the Plan (I.E., $4.25 per share). 5. Each Employee participating in the Plan will execute a promissory note in substantially the form attached hereto as Exhibit B (the "Note") in connection with the sale of the shares to such Employee. 6. The shares may not be sold or transferred by the Employee until the Note is satisfied in accordance with the Plan. Each Employee will execute a pledge agreement substantially in the form attached hereto as Exhibit C (the "Pledge Agreement") to secure satisfaction of the Note. The Company will hold the certificate for the shares of each Employee until such Employee satisfies his or her Note. Each certificate for shares shall bear a legend referring to the foregoing restrictions. 7. The Company intends to forgive an Employee's Note if and when such Employee completes one year of service as an employee of the Company, in which he or she performs his or her job consistent with past performance. Upon the forgiveness of a Note, the Pledge Agreement will be terminated and the certificate for the shares such Employee has purchased will be delivered to him or her. 8. If an Employee becomes disabled or dies before the end of the first year after issuance of the shares to him or her, the Note will automatically be forgiven and the shares and certificate therefor delivered to such Employee's estate or him or her, as the case may be. 9. The total number of shares that may be issued pursuant to the Plan is 55,314. EX-23.A 7 l84753aex23-a.txt EXHIBIT 23(A) 1 Exhibit 23(a) INDEPENDENT AUDITORS' CONSENT The Board of Directors Ablest Inc. (formerly C.H. Heist Corp.): We consent to incorporation by reference in this registration statement on Form S-8 of Ablest Inc. (formerly C.H. Heist Corp.) of our reports dated February 18, 2000, except as to notes 2 and 14 which are as of March 13, 2000, relating to the consolidated balance sheets of Ablest Inc. (formerly C.H. Heist Corp.) and subsidiaries as of December 26, 1999 and December 27, 1998 and the related consolidated statements of operations, stockholders' equity and cash flows for the years ended December 26, 1999, December 27, 1998 and December 29, 1996, and related schedule, which reports appear in the December 26, 1999 annual report on Form 10-K of Ablest Inc. (formerly C.H. Heist Corp.). KPMG LLP St. Petersburg, Florida October 30, 2000 EX-24.A 8 l84753aex24-a.txt EXHIBIT 24(A) 1 EXHIBIT 24(a) POWER OF ATTORNEY ----------------- Ablest Inc., a Delaware corporation (the "Company"), which proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, a registration statement on Form S-8 or other form registering under the Securities Act of 1933 (and Rule 415 of such Act, if appropriate) shares of the Company's common stock in connection with the grant and exercise of options under the Company's Independent Directors' Stock Option Plan and the grant of restricted stock under the Company's Key Employees' Option-to-Ownership Stock Plan hereby constitutes and appoints William Appleton as the attorney of the Company, with full power of substitution and resubstitution, for and in the name, place and stead of the Company, to sign and file the proposed registration statement and any and all amendments and exhibits thereto, and any and all applications and other documents to be filed with the Securities and Exchange Commission pertaining to such interests and securities or such registration, with full power and authority to do and perform any and all acts and things whatsoever requisite to be done in the premises, hereby ratifying and approving the acts of such attorney or any such substitute. IN WITNESS WHEREOF, Ablest Inc. has caused this power of attorney to be signed on its behalf by the undersigned in Clearwater, Florida on October 30, 2000. ABLEST INC. By: /s/ Charles H. Heist III ------------------------------------- Charles H. Heist III EX-24.B 9 l84753aex24-b.txt EXHIBIT 24(B) 1 EXHIBIT 24(b) POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, THAT: Each of the undersigned officers and directors of Ablest Inc., a Delaware corporation (the "Company") has made, constituted and appointed, and by this instrument does make, constitute and appoint, William Appleton, Charles H. Heist III, and Mark Kashmanian, any of whom may act, with full power of substitution and re-substitution, to affix for such person and in such person's name, place and stead, in any and all capacities as attorney-in-fact, such person's signature to any Registration Statement on Form S-8 or other form registering under the Securities Act of 1933 (and Rule 415 of such Act, if appropriate) shares of the Company's common stock in connection with the grant and exercise of options under the Company's Independent Directors' Stock Option Plan and the grant of restricted stock under the Company's Key Employees' Option-to-Ownership Stock Plan, and to any and all amendments, post-effective amendments, supplements and exhibits to such Registration Statement, and to any and all applications and other documents pertaining thereto, giving and granting to each such attorney-in-fact full power and authority to do and perform every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully as such person might or could do if personally present, and hereby ratifying and confirming all that each of such attorneys-in-fact or any such substitute shall lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, this Power of Attorney has been signed in the capacities indicated below on October 30, 2000.
/s/ Charles H. Heist III /s/ W. David Foster - ------------------------------------------------- ------------------------------------------------- Charles H. Heist III W. David Foster Chairman of the Board of Directors and Chief President and Chief Executive Officer and Financial Officer a Director /s/ Mark Kashmanian /s/ Ronald K. Leirvik - ------------------------------------------------- ------------------------------------------------- Mark Kashmanian Ronald K. Leirvik Chief Accounting Officer, Secretary and Treasurer Director /s/ Charles E. Scharlau /s/ Richard W. Roberson - ------------------------------------------------- ------------------------------------------------- Charles E. Scharlau Richard W. Roberson Director Director /s/ Donna R. Moore - ------------------------------------------------- Donna R. Moore Director
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