Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 112 656K
9: EX-10.10 Amendment No. 2 to Loan and Security Agreement 10 32K
10: EX-10.11 Pledge Agreement, Made as of March 31, 1995 17 46K
11: EX-10.12 Pledge Agreement, Made as of March 31, 1995 16 45K
12: EX-10.13 Subordination Agreement, Dated March 31, 1995 9 34K
13: EX-10.14 Unconditional Guaranty, Made March 31, 1995 12 35K
14: EX-10.15 Subordinated Note, Dated March 31, 1995 16 68K
15: EX-10.16 Subordinated Note, Dated March 31, 1995 11 45K
16: EX-10.17 Form of Distribution Agreement 19 54K
17: EX-10.18 Form of Amendment Agreement 15 24K
18: EX-10.19 Addendum to Form of Distribution Agreement 4 18K
19: EX-10.22 Employment Agreement:Adzia 9 40K
20: EX-10.23 Employment Agreement:Garcia De Quevedo 16 40K
21: EX-10.24 Employment Agreement: Andruskiewicz 9 39K
22: EX-10.25 Employment Agreement:Foley 13 38K
2: EX-10.3 Stock Subscription Warrant, Dated March 31, 1995 26 96K
3: EX-10.4 Agreement Dated November 10, 1994 88 268K
4: EX-10.5 Purchase Agreement Amendment Dated Feb. 24, 1995 25 72K
5: EX-10.6 Second Purchase Agreement Amendment 2 15K
6: EX-10.7 Third Purchase Agreement Amendment 2 14K
7: EX-10.8 Loan and Security Agreement Dated March 31, 1995 185 566K
8: EX-10.9 Amendment No. 1 to Loan and Security Agreement 8 26K
23: EX-21.1 Subsidiaries of the Company 1 8K
24: EX-23.1 Consent of Kpmg Peat Marwick LLP 1 9K
25: EX-23.2 Consent of Price Waterhouse LLP 1 8K
26: EX-27.1 Financial Data Schedule 1 11K
EX-10.3 — Stock Subscription Warrant, Dated March 31, 1995
Exhibit Table of Contents
Exhibit 10.3
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND THIS WARRANT CANNOT BE EXERCISED, SOLD OR TRANSFERRED, AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT CANNOT BE SOLD OR
TRANSFERRED, UNLESS AND UNTIL THEY ARE SO REGISTERED OR UNLESS AN EXEMPTION TO
SUCH REGISTRATION IS THEN AVAILABLE.
No. W-1 Warrant to Subscribe for 2,834.25 Shares
of Common Stock
STOCK SUBSCRIPTION WARRANT
To Subscribe for and Purchase Common Stock of
PROSOURCE, INC.
ProSource, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, The Martin-Brower Company
("Martin-Brower") or its registered assigns is entitled to subscribe for and
purchase from the Company at an exercise price equal to $1,234.89 per share
(subject to adjustment as provided in this Warrant, the "Exercise Price"),
2,834.25 duly authorized, validly issued, fully paid and nonassessable shares of
the Company's Common Stock (as hereinafter defined) and to exercise the other
rights, powers and privileges hereinafter provided, all on the terms and
conditions set forth below. The Exercise Price and number of shares of Common
Stock (and the amount and kind of other securities) for which this Warrant is
exercisable shall be subject to adjustment as provided in Section 3. The rights
of the holder of this Warrant to exercise this Warrant shall expire at the end
of the Normal Exercise Period provided in Section 1, or, if earlier, upon
exercise of this Warrant in full by the holder of this Warrant or upon the
consummation of an Exercise Event.
This Warrant is subject to the following provisions, terms and
conditions:
SECTION 1. Exercise of Warrant.
1A. Exercise Period.
This Warrant may be exercised (a) during the period commencing
on April 1, 1997 and ending on March 31, 2000 (the "Normal Exercise Period"),
(b) during an Accelerated Exercise Period (as defined in Section 7) and (c)
immediately prior to the consummation of an Exercise Event (as defined below),
whichever shall first occur. However, this Warrant shall terminate and cease to
be exercisable upon consummation of an Exercise Event. Any exercise of this
Warrant by the registered holder may be for the purchase of all or any portion
of the shares of Common Stock and Other Securities for which it is then
exercisable.
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised by the
registered holder when the following actions have been completed and all of the
following items have been delivered to the Company (the "Exercise Date"):
(a) give a notice of exercise, in substantially the
form of Exhibit A hereto (the "Notice of Exercise"), to the Company;
(b) surrender this Warrant at the principal office of
the Company (or such other office or agency as the Company may designate by
notice to the holder hereof);
(c) at the option of the registered holder hereof,
(i) pay the Exercise Price to the Company by bank wire transfer or by certified
or official bank check, in immediately available funds, to an account specified
by the Company by notice to the holder of this Warrant not less than three
business days prior to the proposed date of purchase; or (ii) if this Warrant
and the Subordinated Note due March 31, 2002 (the "Note") of the Company, are
both held by a member of the Dalgety Group, the registered holder hereof may, at
its option, by written notice accompanying the Notice of Exercise, apply the
Note at its then fair market value (as determined by an independent financial
advisor mutually selected by the Company and the registered holder whose
determination shall be final and binding on the parties and whose fees and
expenses shall be borne equally by the holder and the Company) to the payment of
the Exercise Price, in which case the holder shall deliver the Note to the
Company with the Notice of Exercise. In lieu of delivering the Exercise Price as
set forth in clauses (i) and (ii) of this Section 1B(i)(c), the holder of this
Warrant may instruct the Company in writing ("Notice of Conversion") to deliver
to the holder (without payment by the holder of any Exercise Price or of any
other cash or consideration) that number of shares of Common Stock equal to the
quotient obtained by dividing: (x) the value of this Warrant at the time the
conversion right is exercised (determined by subtracting the aggregate Exercise
Price of the shares of Common Stock issuable upon exercise of this Warrant in
effect immediately prior to the exercise of the conversion right from the
aggregate Current Market Price of the shares of Common Stock issuable upon
exercise of this Warrant immediately prior to the exercise of the conversion
right) by (y) the Current Market Price of one share of Common Stock immediately
prior to the exercise of the conversion right. The Notice of Conversion may be
given by completing the appropriate box in the Exercise Notice.
If the Exercise Price is paid in accordance with clause (c)
(ii) above and the Exercise Price exceeds the fair market value of the Note (as
so determined), the Note shall be cancelled and the holder shall pay the excess
in immediately available funds as provided above. If the Exercise Price is less
than the fair market value of the Note (as so determined), the principal of and
accrued interest on the Note as of the Exercise Date shall be reduced to the
respective amounts obtained by multiplying such principal and accrued interest
as of the Exercise Date by
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(x) 1.0 minus (y) a fraction, the numerator of which is the Exercise Price and
the denominator of which is the fair market value of the Note (as so
determined); and
(d) exercise and deliver to the Company a
shareholders' agreement in the form of Exhibit B (the "Shareholders Agreement").
(ii) The shares of Common Stock and Other Securities issuable
upon exercise of this Warrant shall be deemed to be issued to the registered
holder hereof as the record owner of such shares and Other Securities as of the
close of business on the Exercise Date (in the case of an exercise during the
Normal Exercise Period), or upon the effectiveness of such exercise as provided
in Section 7B following compliance with this Section 1 (in the case of an
exercise during the Accelerated Exercise Period) or immediately prior to the
consummation of an Exercise Event, as applicable. The Company shall, within five
days after satisfaction of the conditions set forth in clauses (a)-(d) of
Section 1B(i) above, execute and deliver or cause to be executed and delivered,
in accordance with Exercise Notice, a certificate or certificates representing
the aggregate number of shares of Common Stock and Other Securities, not
exceeding the maximum number then issuable upon exercise of this Warrant
specified in said notice. The certificate or certificates so delivered shall be
in such denominations as may be specified in said notice and shall be issued in
the name of such holder or such other name as shall be designated in said
notice. Such certificate or certificates shall be deemed to have been issued,
and such holder or holders or any other person so designated to be named therein
shall be deemed for all purposes to have become a holder of record of such
shares and Other Securities, as of the date said notice is received by the
Company as aforesaid. If this Warrant shall have been exercised only, in part,
the Company shall, at the time of delivery of said certificate or certificates,
deliver to such holder a new Warrant evidencing the rights of such holder to
purchase the remaining shares of Common Stock and Other Securities called for by
this Warrant, which new Warrant shall in all other respects be identical to this
Warrant, or, at the request of such holder, appropriate notation may be made on
this Warrant and the same returned to such holder.
(iii) If an exercise of this Warrant is made in connection
with an Exercise Event, such exercise shall be conditioned upon the consummation
of such Exercise Event, so that such exercise shall not be deemed to be
effective until immediately prior to the consummation of such Exercise Event
and, if such Exercise Event is not consummated, such exercise shall be deemed
ineffective. The Company shall give the registered holder of this Warrant notice
of an Exercise Event not less than thirty (30) days prior to the consummation
thereof.
(iv) Upon any exercise of this Warrant, the Company may
require customary representation and warranties from the holder of this Warrant
to assure that the issuance of the shares of Common Stock and Other Securities
issuable upon exercise of this Warrant shall not require registration or
qualification under the Securities Act or any state securities laws.
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(v) The issuance of certificates for shares of Common Stock
and Other Securities upon exercise of this Warrant will be made without charge
to the holder for any stock transfer or issuance tax in respect thereof or any
other costs, expenses or charges incurred by the Company in connection with such
exercise and the related issuance of the shares of Common Stock or Other
Securities, unless such certificates are issued in the name of any Person other
than the holder of this Warrant, in which event the holder shall bear any
resulting tax, costs, expenses or charges.
SECTION 2. Shares to Be Fully Paid; Reservation of Sharers;
Continuous Obligation. All shares of Common Stock and Other Securities which may
be issued upon the exercise of this Warrant will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable. Until expiration or
cancellation of this Warrant, the Company will at all times have authorized and
reserved for the purpose of issuance upon exercise of the rights evidenced by
this Warrant a sufficient number of shares of its Common Stock and Other
Securities to provide for the exercise of this Warrant.
The Company will, at the time of any exercise of this Warrant,
in whole or in part, upon request of the holder hereof, acknowledge in writing,
in form reasonably satisfactory to such holder, its continuing obligation to
such holder in respect of all rights (including, without limitation, any right
to registration of the shares of Common Stock and Other Securities issued upon
such exercise) to which such holder shall continue to be entitled after such
exercise in accordance with this Warrant; provided, however, that the failure of
such holder to make any such request shall not affect the continuing obligations
of the Company to such holder in respect of such rights.
SECTION 3. Adjustment of Exercise Price and Number of Shares.
In order to prevent dilution of the rights granted under this Warrant, the
Exercise Price shall be subject to adjustment from time to time as provided in
this Section 3, and the number of shares obtainable upon exercise of this
Warrant shall be subject to adjustment from time to time as provided in this
Section 3.
3A. Dividends, Reclassifications, etc. If, at any time when
this Warrant is outstanding, the Company shall (i) pay a dividend or make any
other distribution, upon any shares of Common Stock or Other Securities then
issuable upon exercise of this Warrant, payable in Common Stock, Options,
Convertible Securities or other securities of which the Company is the issuer,
(ii) issue Common Stock, Options, Convertible Securities or other securities of
which the Company is the issuer for no consideration, (iii) reclassify, split,
combine or change outstanding shares of Common Stock or Other Securities then
issuable upon exercise of this Warrant, or (iv) consolidate or merge the Company
with or into another corporation, or sell all or substantially all of its
assets, on terms such that holders of shares of Common Stock or Other Securities
then issuable upon exercise of this Warrant receive Common Stock, Options,
Convertible Securities or other securities of which the Person surviving such
merger or consolidation, or purchasing such
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assets, is the issuer, the Company shall, in each case, give to the registered
holder of this Warrant twenty (20) days' prior written notice thereof, and the
registered holder of this Warrant shall be entitled to receive, upon exercise of
this Warrant, the kind and amount of securities and other consideration that a
holder of the securities issuable upon exercise of this Warrant immediately
prior to such event would have received upon such event if this Warrant had been
exercised immediately prior to such event plus any shares of Common Stock and
Other Securities issuable upon exercise of this Warrant that would have remained
outstanding after such event if this Warrant had been exercised immediately
prior to such event.
3B. Notice of Adjustment. Not later than 30 days after any
event described in Section 3A, the Company shall deliver to the registered
holder of this Warrant written notice setting forth the number of shares of
Common Stock and Other Securities issuable upon exercise of this Warrant,
immediately after such event, setting forth in reasonable detail and certifying
the calculation of such adjustment; provided that if the registered holder of
this Warrant objects to such determination by the Company within ten days of its
receipt of such notice and the Company and such holder fail to agree on such
determination within five days after good faith negotiations, the Company and
such holder shall mutually select an independent financial adviser to make such
determination. The determination of such advisor shall be final and binding on
the parties, and the fees and expenses of such financial advisor shall be borne
equally by the Company and the holder of this Warrant.
SECTION 4. Registration. If any shares of Common Stock or
Other Securities issuable upon exercise of this Warrant require registration
with or approval of any governmental authority under any United States federal
or state law, or listing on any domestic securities exchange, before such shares
or securities may be issued to the holder of this Warrant upon exercise, the
Company will, at its expense, use its best efforts to cause such shares or
securities to be duly registered or approved or listed on the relevant domestic
securities exchange, as the case may be, and, if shares or securities of the
same class as the Common Stock and Other Securities issuable upon exercise of
this Warrant are listed on a domestic securities exchange, the Company will use
its best efforts to cause the shares or securities of such class to be listed on
such exchange. Shares of Common Stock and Other Securities issued upon exercise
of this Warrant shall be registered by the Company under the Securities Act or
similar statute then in force (and registered or qualified under any applicable
state blue sky or securities laws) only if required by Section 7C and subject to
the conditions stated in Section 7C.
SECTION 5. No Voting Rights. This Warrant shall not entitle
the holder hereof to any voting rights or other rights as a stockholder of the
Company.
SECTION 6. Transfer; Registration of Transfer.
6A. Restrictions on Transfer. The registered holder hereof, by
accepting this Warrant, represents, warrants and agrees that this Warrant is
being acquired for its own account
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and this Warrant and the shares or securities issued upon exercise of this
Warrant will not be transferred in violation of the securities laws of the
United States, any state of the United States or any other applicable
jurisdiction. The Company may refuse to register any transfer by the registered
holder of this Warrant or of the shares of Common Stock or Other Securities
issued upon exercise of this Warrant on its transfer books if such transfer
would, in the written opinion of counsel for the Company, violate the securities
laws of the United States or any state of the United States or any other
applicable jurisdiction, this Section 6 or the Shareholder's Agreement unless
such holder provides an opinion of McDermott, Will & Emery or other counsel
reasonably acceptable to the Company as to compliance with the foregoing. This
Warrant may be transferred in whole or in part and may only be transferred to a
member of the Dalgety Group or in a sale to a Qualified Purchaser, following
compliance with Section 6B. Any purported transfer in any manner contrary to the
terms of this Warrant shall be void. For purposes of this Warrant, the term
"transfer" shall mean any sale, exchange, assignment, gift, bequest, pledge,
creation of a lien or security interest, encumbrance on the voting rights, or
other disposition, whether voluntary or involuntary or by operation of law,
affecting title to or possession of this Warrant.
6B. Right of First Refusal. If the registered holder of this
Warrant desires to transfer this Warrant in whole or in part to a Qualified
Purchaser pursuant to a bona fide written offer (an "Offer") to purchase this
Warrant for cash, the registered holder shall give Onex and the Company written
notice thereof ("Notice"), attaching a copy of such Offer. If a Notice is given,
Onex or any member of the Onex Group designated by it or, at Onex's option, the
Company, shall then have the option exercisable by notice to the registered
holder within 30 days after the date of receipt of the Notice, to purchase this
Warrant at the same price and on the same terms as the Offer. If the option is
not exercised within such 30-day period, the registered holder shall have the
right at any time within 60 days after the expiration of the 30-day option
period provided for in this Section 6B, to sell this Warrant to the proposed
transferee at the price and on the other terms set forth in the Offer; any
transferee shall be bound by the provisions of this Warrant, including, but not
limited to, this Section 6B. If this Warrant is not sold to the proposed
transferee during such 60-day period, this Warrant may not thereafter be
transferred unless the registered holder again complies with this Section 6B.
The closing of any purchase and sale of this Warrant pursuant to exercise by the
Company, Onex or a member of the Onex Group of a right under this Section 6B
shall be held at the principal offices of the Company on a date designated by
the purchaser, but in any event not later than 30 days after the date of the
Notice. At the closing, the holder shall deliver to the purchaser this Warrant
duly endorsed for transfer and free and clear of all claims, liens, encumbrances
and security interests and the purchaser shall deliver to the holder the
consideration payable upon closing.
6C. Warrant Register. The Company shall keep at its principal
office a register for registration, transfer and exchange of this Warrant. The
Company shall not at any time, except upon dissolution, liquidation or
winding-up of the Company, close such register so as to result in preventing or
delaying the exercise, exchange or transfer of this Warrant. Upon surrender of
this Warrant, the transfer of this Warrant, if permitted by this Section 6, is
registrable by the registered
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holder hereof, in person or by his attorney duly authorized in writing on the
registry books of the Company, at the principal office of the Company, without
payment of any charge, other than a sum sufficient to reimburse the Company for
any tax, or other governmental charge incident thereto. Upon any such
registration of transfer, a new Warrant for the aggregate number of shares
transferred by the holder hereof, will be issued to the transferee in exchange
herefor. Prior to due presentment for registration of transfer, the Company may
deem and treat the person in whose name this Warrant shall be registered upon
the registry books of the Company as the absolute owner of this Warrant for all
purposes (notwithstanding any notation of ownership or other writing hereon),
and the Company shall not be affected by any notice to the contrary.
SECTION 7. Accelerated Exercise; Registration.
7A. Proposal to Register. So long as this Warrant is
outstanding, on each occasion on which the Company proposes to register shares
of Common Stock or Other Securities of the same class as the shares and
securities then issuable upon exercise of this Warrant under the Securities Act
(including a registration in accordance with Section 7C(i)), the Company will
give notice (the "Offering Notice") to the registered holder of this Warrant of
its intention to do so. The registered holder of this Warrant shall then have
the right to exercise this Warrant during the 10-day period commencing with the
delivery of the Offering Notice (the "Accelerated Exercise Period").
A Notice of Exercise pursuant to this Section 7A may be
accompanied by a request to have shares included in the registration statement
contemplated by the Offering Notice under the circumstances contemplated by, and
in accordance with, Section 7C(i). A Public Offering Notice (as hereinafter
defined) given pursuant to Section 7C(i) while this Warrant is outstanding shall
also constitute an Offering Notice for purposes of this Section 7A.
7B. Exercise. The registered holder of this Warrant, upon
delivery to the Company of a notice of exercise pursuant to Section 7A and
compliance with Section 1, shall be deemed to have exercised this Warrant
concurrently with the consummation of the Public Offering and only to the extent
Holder's Shares are included therein; such exercise shall be effective as of,
and shall be conditioned upon the occurrence of, the closing of the Public
Offering. If for any reason the closing of the Public Offering does not occur,
the holder's exercise of this Warrant shall be void.
7C. Registration Rights. (i) If the Company proposes to effect
an offering of securities registered under the Securities Act (a "Public
Offering") which involves an offering of securities of the same class as any of
the shares of Common Stock or Other Securities ("Holder's Shares") then issuable
upon exercise of this Warrant or which have been issued upon exercise of this
Warrant (and which have not been transferred except to a member of the Dalgety
Group following receipt upon exercise), it shall give written notice of its
intention to do so (the "Public Offering Notice") to the registered holder of
this Warrant or, if this Warrant shall have been exercised, to the registered
holder of Holder's Shares who effected such exercise (the
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"Warrantholder"); provided that the Company shall not be required to give a
Public Offering Notice if the registration of securities of the Company being
proposed cannot, under then existing law and regulations, be combined (on the
registration form proposed to be used) with a registration of sales of Holder's
Shares under the Securities Act. If a Public Offering Notice is given, then, on
the written request (a "Holder's Request") of the Warrantholder given no later
than 30 days after receipt of the Public Offering Notice if the Company is not
then a public company subject to the reporting requirements of the Exchange Act
(a "Public Company") or 10 days after receipt of the Public Offering Notice if
the Company is then a Public Company (which request shall specify the number of
Holder's Shares intended to be sold or disposed of by the Warrantholder (such
notice may specify that the Warrantholder intends to sell as many Holder's
Shares as it has the right to register), and describe the nature of any proposed
sale or other disposition thereof (if the offering described in the Public
Offering Notice is to be underwritten, the Warrantholder shall be required to
make its offering through the same underwriters and to sign a customary
underwriting agreement for transactions of this type)), the Company will, at its
expense (excluding commissions and expenses payable to underwriters in respect
of Holder's Shares and the fees of any counsel or other advisors engaged by the
Warrantholder), use its best efforts to cause the registration under the
Securities Act of the Holder's Shares stated in the Holder's Request, or, if
less, the Pro Rata Number of such Holder's Shares, for disposition in accordance
with the intended method of disposition as stated in the Holder's Request.
However, the Company may at any time delay, abandon or withdraw any such
registration statement without any liability or obligation to the Warrantholder.
The Company shall not be required to register Holder's Shares pursuant to this
Section 7C(i) in connection with any proposed registration to be sold through
underwriters, if, in the opinion of the managing underwriter, assuming the
inclusion of all securities proposed to be sold by the Company, the inclusion of
securities to be offered by a holder of the same class and number as such
Holder's Shares would materially and adversely affect the distribution of the
shares, but only to the extent such inclusion would materially and adversely
affect the distribution of the shares. In the case of any registration pursuant
to this Section 7C(i) in which securities to be sold by any Person other than
the Company are to be sold, the holders of shares of the class being registered
shall be entitled to register such number of shares as, in the opinion of the
managing underwriter, may reasonably be sold by holders thereof (as
distinguished from the Company) without materially and adversely affecting the
offering in accordance with their respective Pro Rata Number of such shares. As
used in this Section 7C, the term "Pro Rata Number" shall mean the product of
(x) the total number of securities of the class being offered held (or to be
held upon an exercise of this Warrant with respect to which the Warrantholder
has complied with Section 1) by the Warrantholder or other holder, as the case
may be, and requested to be registered and (y) a fraction, the numerator of
which is the number of securities of the class being offered by selling security
holders which are to be registered and the denominator of which is the number of
securities of the same class which are requested to be registered by all holders
thereof, including the Warrantholder (as distinguished from the Company).
7D Company's Obligations in Registration. (i) If and whenever
the Company is obligated by the provisions of this Section 7 to effect the
registration of Holder's Shares under
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the Securities Act, the Company, as expeditiously as possible (but subject to
any delay resulting from the failure of any Warrantholder participating in the
registration to comply with Section 7F below),
(a) prepare and file with the Commission a
registration statement with respect to such Holder's Shares and use its
best efforts to cause such registration statement to become and remain
effective during the period required for the distribution of the
securities covered by the registration statement; provided, however,
that in the event that the Holder's Shares covered by such registration
statement are not to be sold to or through underwriters acting for the
Company, the Company shall not be required to keep such registration
statement effective, or to prepare and file any amendment or supplement
thereto, after the expiration of 180 days following the date on which
such registration statement becomes effective under the Securities Act
or such longer period during which the Commission requires that such
registration statement be kept effective with respect to any of the
Holder's Shares so registered;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the provisions
of the Securities Act with respect to the disposition of all Holder's
Shares covered by such registration statement;
(c) furnish to the Warrantholder for whom such
Holder's Shares are registered or are to be registered such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as
such Warrantholder may reasonably request in order to facilitate the
disposition of such Holder's Shares;
(d) use its best efforts to register or qualify the
Holder's Shares covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the other shares
covered by the registration statement;
(e) if at any time a prospectus relating to the
Holder's Shares covered by such registration statement is required to
be delivered under the Securities Act and any event occurs as a result
of which the prospectus included in such registration statement as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
prospectus to comply with the Securities Act, the Company promptly will
prepare and file with
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the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance
and shall use its best efforts to cause any amendment of such
registration statement containing an amended prospectus to be made
effective as soon as possible.
7E Payment of Registration Expenses. The costs and expenses of
all registrations and qualifications under the Securities Act and the Exchange
Act pursuant to Section 7C hereof, and of all other actions which the Company is
required to take or effect pursuant to this Section 7 shall be paid by the
Company (including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company and
expenses of any special audit incident to or required in connection with any
such registration) (collectively, "Registration Expenses"); provided, however,
that the Company shall not be obligated to pay the fees and disbursements of
counsel representing the Warrantholder or the underwriters' discount or
commission in respect of such Holder's Shares.
7F Information from Warrantholders. Notices and requests
delivered by the Warrantholder to the Company pursuant to this Section 7 shall
contain such information regarding the Holder's Shares and the intended method
of disposition thereof as shall reasonably be required in connection with the
action to be taken; provided, that notwithstanding any other provision contained
herein.
7G Company's Indemnification. In the event of any registration
under the Securities Act of Holder's Shares pursuant to this Section 7, the
Company hereby agrees to indemnify and hold harmless the Warrantholder disposing
of such Holder's Shares and each other person, if any, who controls such
Warrantholder within the meaning of Section 15 of the Securities Act and each
other person (including any underwriter) who participates in the offering of
such Holder's Shares, against any loss, claim, damage or liability, joint or
several, to which such Warrantholder or controlling person or participating
person may become subject under the Securities Act, the Exchange Act or other
Federal or state law or regulation, at common law or otherwise, to the extent
that such loss, claim, damage or liability (or proceeding in respect thereof)
arises out of or is based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
Holder's Shares were registered under the Securities Act, in any preliminary
prospectus or final prospectus contained therein, or in any amendment or
supplement thereto, or arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse such
Warrantholder and each such controlling person or participating person for any
legal or other expense reasonably incurred by such Warrantholder or such
controlling person or participating person in connection with investigating or
defending any such loss, claim, damage, liability or proceeding; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage, liability or expense arises out of or is based
upon (i) an untrue statement or alleged untrue statement made in or an omission
or alleged omission in, such registration statement, said
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preliminary or final prospectus or said amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by an
instrument duly executed by such Warrantholder or such controlling or
participating person, as the case may be, specifically for use in the
preparation thereof or (ii) unless the Warrantholder is selling through
underwriters selected by the Company, any claim by a purchaser of such
Warrantholder's Holder's Shares who did not receive a final prospectus in a
timely basis based on any untrue statement, alleged untrue statement, omission
or alleged omission in a preliminary prospectus that was corrected in the final
prospectus. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
7H Warrantholder's Indemnification. It shall be a condition of
the Company's obligation under this Section 7 to effect any registration under
the Securities Act that there shall have been delivered to the Company an
agreement duly executed by the Warrantholder whereby such Warrantholder agrees
to indemnify and hold harmless the Company in respect of such registration
statement against any loss, claim, damage or liability, joint or several, to
which the Company may become subject under the Securities Act, the Exchange Act
or other Federal or state law or regulation, at common law or otherwise, but
only to the extent that such loss, claim, damage or liability (or proceeding in
respect thereof) arises out of or is based upon (i) any untrue statement of a
material fact contained in any registration statement under which such Holder's
Shares were registered under the Securities Act, in any final prospectus
contained therein or in any amendment or supplement thereto, or arises out of or
is based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which, in each such case, has been made in or omitted from such
registration statement, said final prospectus or said amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by the Warrantholder specifically for use
in the preparation thereof, provided, that such indemnification by the
Warrantholder shall be limited to the net proceeds received by the Warrantholder
from the sale of his Warrant Shares in such offering or (ii) unless the
Warrantholder is selling through underwriters selected by the Company, any claim
by a purchaser of such Warrantholder's Holder's Shares who did not receive a
final prospectus in a timely basis based on any untrue statement, alleged untrue
statement, omission or alleged omission in a preliminary prospectus that was
corrected in the final prospectus. This indemnity agreement will be in addition
to any liability which any Warrantholder may otherwise have.
7I Notification of and Participation in Actions. Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 7. In
case any such action is brought against any indemnified party and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in and, to the extent that it may wish,
11
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
as to assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. With respect to any loss
or liability as to which a party is entitled to indemnification hereunder, the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if such a proceeding is settled with
such consent or if in such a proceeding a final judgment is entered for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any such loss or liability arising out of such settlement or
judgment.
7J Public Information. At any time when the Warrantholder so
entitled desires to make sales of any Holders Shares in reliance on Rule 144 or
Rule 144A promulgated under the Securities Act, the Company covenants and agrees
that either there will be available adequate current public information with
respect to the Company as required by paragraph (c) of said Rule 144 or the
Company will use its best efforts to make such information available without
delay if such information is not available. Without limiting the foregoing, the
Company will timely file with the Commission all reports required to be filed
under Sections 13 and 15(d) of the Exchange Act and will promptly furnish to the
Warrantholder, upon request a written statement that the Company has complied
with all such reporting requirements.
SECTION 8. Legend on Stock. It is understood that the Company
will cause to be placed upon certificates for shares of Common Stock and Other
Securities issued upon the exercise hereof, a legend in substantially the form
called for by the Shareholders Agreement.
SECTION 9 Preemptive Right. If the Company intends to sell for
cash shares of its capital stock, or options, warrants, rights to purchase, or
securities convertible into its capital stock (other than (i) to (or pursuant to
plans or arrangements for the benefit of) directors, officers or employees of
the Company, (ii) pursuant to options or arrangements existing on the date of
this Warrant listed on Schedule 1, (iii) in a public offering or (iv) shares of
its capital stock issued pursuant to options, warrants, rights to purchase, or
securities convertible into its capital stock issued after the date of this
Warrant), it shall give notice thereof ("Sale Notice") to the registered holder
of this Warrant describing the price and other terms of the sale in reasonable
detail. The registered holder of this Warrant shall then have the right,
exercisable by notice to the Company within 15 days after the Sale Notice is
given, to purchase its Pro Rata Share of the securities referred to in the Sale
Notice for the same price per share and on the same terms as are contained in
the Sale Notice, simultaneously with and conditioned upon the closing of the
sale referred to in the Sale Notice. As used in this Section 9, the term "Pro
Rata Share" shall mean the product of (x) the total number of securities
referred to in the Sale Notice and (y) a fraction, the numerator of which is the
number of shares of Common Stock then issuable upon exercise of this Warrant
12
and the denominator of which is the number of shares of Common Stock then
outstanding on a fully-diluted basis (including as outstanding the shares
issuable upon exercise of this Warrant).
SECTION 10. Rights and Obligations Survive Exercise of
Warrant. The rights and obligations of the Company, of the registered holder of
this Warrant, and of the holder of shares of Common Stock or Other Securities
issued upon exercise of this Warrant, contained in Sections 6 and 7 shall
survive the exercise of this Warrant.
SECTION 11. Definitions.
"Affiliate" shall mean, with respect to a person, any person
(other than a subsidiary) that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such given person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person, whether through ownership of voting securities or
partnership or other voting interest, by contract or otherwise.
"Commission" shall mean the Securities and Exchange Commission
or any other Federal Agency then administering the Securities Act.
"Common Stock" shall mean and include the Company's authorized
Common Stock, $0.01 par value, as constituted on the date hereof, and shall also
include any capital stock of any class of the Company thereafter authorized
which shall not have priority and shall not be limited to a fixed sum or
percentage of par value in respect of the rights of the holders thereof to
participate in dividends or in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the Company; provided
that, except as provided in Section 4, the shares issuable upon exercise of this
Warrant shall include only shares designated as Common Stock of the Company on
the date hereof or, in case of an event described in Section 4, the stock or
securities provided for in Section 4.
"Convertible Securities" shall mean any stock or securities
issued by the Company and convertible into or exchangeable for shares of Common
Stock or Other Securities.
"Current Market Price" per share of Common Stock at any date;
the average of the daily market prices over a period of 20 consecutive business
days before such date. The market price for each such business day shall be (i)
the last reported sale price on such day on the New York Stock Exchange or
American Stock Exchange if the Common Stock is then listed or admitted to
trading thereon, or, if no sale takes place on such day on any such exchange,
the average of the closing bid and asked prices on such day as officially quoted
on any such exchange, or (ii) if the Common Stock is not then listed or admitted
to trading on any such stock exchange, the market price for each such business
day shall be the last reported sales price on the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ"), or any similar
system of
13
automated dissemination of quotations of securities prices then in use, if so
quoted, or (iii) if not quoted in clause (ii), the average of the closing bid
and asked prices on such day in the over-the-counter market, as reported through
NASDAQ, or, if such prices are not at the time so reported, as furnished by any
member of the National Association of Securities Dealers, Inc. selected by the
Company. If and so long as there shall be no exchange or over-the-counter market
for the Common Stock during the 20-day period prior to the date on which Current
Market Price is to be determined, the Current Market Price shall be determined
by an independent financial advisor mutually selected by the Company and the
registered holder whose determination shall be final and binding on the parties
and whose fees and expenses shall be borne equally by the holder and the
Company.
"Dalgety Group" shall mean Dalgety plc and its subsidiaries.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and any similar or successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Exercise Event" shall mean the occurrence of any one of the
following events: (a) the acquisition by any Person other than a member of the
Onex Group of capital stock of the Company possessing the voting power under
normal circumstances to elect a majority of the Company's Board of Directors
(whether by merger, consolidation or sale or transfer of the Company's capital
stock) or (b) the sale of all or substantially all of assets of the Company and
its subsidiaries.
"Onex" shall mean Onex Corporation, a corporation organized
under the laws of Ontario, Canada.
"Onex Group" shall mean Onex and its subsidiaries.
"Options" shall mean any options, warrants or other rights
issued by the Company to purchase shares of Common Stock, Convertible Securities
or Other Securities.
"Other Securities" shall mean any securities or assets other
than Common Stock issuable upon exercise of this Warrant.
"Person" shall mean an individual, corporation, partnership,
association, trust or unincorporated organization, or a government or any agency
or political subdivision thereof.
"Qualified Purchaser" shall mean any Person not engaged in the
food distribution business or the fast food or casual dining restaurant
business.
14
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
thereunder of the Commission or any other federal agency then administering the
Securities Act, all as the same shall be in effect at the time.
SECTION 12. Notices. All notices, requests and other
communications under this Warrant shall be in writing and shall be considered to
have been given when (a) delivered by hand, (b) sent by telecopier (with receipt
confirmed), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by Express Mail,
Federal Express or other express delivery service (receipt requested), in each
case to the appropriate addresses and telecopier numbers set forth below (or to
such other addresses, telex numbers and telecopier numbers as a party may
designate as to itself by notice to the other parties):
a. If to Holder, to:
The Martin-Brower Corporation
1020 West 31st Street
Downers Grove, Illinois 60515-5508
Attention: President
Phone: (708) 663-4355
Facsimile: (708) 663-4237
with copies to:
Dalgety plc
100 George Street
London W1H 5RH
United Kingdom
Attention: Commercial Director
Facsimile: 44/71/493-0892
and
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60603-4067
Attention: C.E. Hussey II
Facsimile: (312) 984-2097
15
(b) If to the Company, to:
ProSource, Inc.
550 Biltmore Way, 10th Floor
Coral Gables, Florida 33134
Attention: President
Facsimile: (305) 529-2573
with copies to:
Onex Corporation
161 Bay Street - 49th Floor
Toronto, Ontario, Canada M5J 2S1
Attention: Gerald W. Schwartz
Facsimile: (416) 362-5765
and
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg, Esq.
Phone: (212) 836-8201
Facsimile: (212) 836-7149
(c) If to Onex Corporation, to:
Onex Corporation
161 Bay Street - 49th Floor
P.O. Box 700
Toronto, Ontario, Canada M5J 2S1
Attention: Gerald W. Schwartz
Facsimile: (416) 362-5765
16
with copies to:
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg, Esq.
Phone: (212) 836-8201
Facsimile: (212) 836-7149
SECTION 13. Captions and Governing Law. The captions in this
Warrant are for convenience of reference only and shall not be given any effect
in the construction of this Warrant. This Warrant shall be governed by the
internal law of the State of New York, without regard to the conflicts of law
principles thereof.
Dated: March 31, 1995 PROSOURCE, INC
By /s/ D.R. Parker
-------------------------------------
Chairman
17
Schedule 1
Shares outstanding, and options or arrangements
existing on the date of this Warrant referred to in
clause (ii) of Section 9.
[Download Table]
SECURITY SHARES ISSUABLE ON THE
DATE OF THIS WARRANT
Shares outstanding 23,271 shares
Convertible debt held by an affiliate of Onex Corporation 3,164 shares
Convertible debt held by Malone's Products, Inc. 250 shares
Shares and convertible debt to be issued at closing 30,000 shares
Total shares and convertible debt to be outstanding 56,685 shares
18
EXHIBIT A
FORM OF SUBSCRIPTION
[To be executed only upon exercise of Warrant]
To PROSOURCE, INC.
Subject to and upon the terms and conditions of the Warrant to
purchase shares of Common Stock of ProSource, Inc. originally dated March 31,
1995, the undersigned registered holder thereof hereby exercises such Warrant
for shares and agrees to make payment therefor in the amount of $________.
[The undersigned is also the registered holder of the
Subordinated Note due March 31, 2002 (the "Note") of ProSource, Inc. and hereby
elects to apply the Note to the Exercise Price (as defined in the Warrant) as
provided in Section 1B(i)(c) of the Warrant.(1)
[Subject to and upon the terms and conditions of the Warrant
to purchase shares of Common Stock of ProSource, Inc. originally dated March 31,
1995, the undersigned registered holder thereof hereby exercises such warrant
for _____ shares and agrees to make payment therefor by delivery of____ shares
to the Company.]
Dated; ________, 19
_______________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
________________
(1) This paragraph may be used only if the registered holder of the Warrant
is a member of the Dalgety Group and is also the holder of the Note.
EXHIBIT A
SHAREHOLDERS AGREEMENT
Shareholders Agreement dated as of , 19 among
ProSource, Inc., a Delaware corporation (the "Corporation"), ____________
[majority stockholder of the Corporation] ("Onex"), and ___________________
("Holder").
Holder has acquired ___ shares of Common Stock [and ]*
(collectively, and together with any shares of capital stock or securities
convertible into shares of capital stock of the Corporation that may from time
to time be issued to the Holder with respect to those securities, "Holder's
Shares"), in accordance with the Stock Subscription Warrant, originally dated
March 31, 1995, to purchase shares of common stock of the Corporation (the
"Warrant").
The parties, intending to be legally bound hereby, subject to
the terms and conditions hereof, agree as follows:
1. Restrictions on Transfer of Shares
1.1 Holder's Shares shall not be transferred to any Person other
than a Qualified Purchaser or in violation of this Agreement, the securities
laws of the United States, the laws of any state of the United States or any
other jurisdiction. Holder's Shares may be transferred only to a member of the
Dalgety Group, pursuant to Section 1.2 or Section 2, or pursuant to Section 7C
of the Warrant. The Corporation may refuse to register any transfer of Holder's
Shares on its transfer books if such transfer would, in the written opinion of
counsel for the Corporation, violate the securities laws of the United States or
any state of the United States or any other jurisdiction or this Agreement or
any then existing agreement entered into between the registered holder of such
Holder's Shares or Holder and the Corporation or a member of the Onex Group
(unless such holder provides an opinion of McDermott, Will & Emory or other
counsel reasonably acceptable to the Corporation as to compliance with the
foregoing), or if such holder fails to furnish to the Corporation, if so
requested by the Corporation, an opinion of counsel reasonably acceptable to the
Corporation as to compliance with the foregoing. Any purported transfer in any
manner contrary to the terms of this Agreement shall be void. For purposes of
this Section 1.1 and Section 1.2, the term "transfer" shall mean any sale,
exchange, assignment, gift, bequest, pledge, creation of a lien or security
interest, or other disposition, whether voluntary or involuntary, affecting
title to or possession of, or the grant to any Person of the right to vote or
direct the voting of, Holder's Shares.
1.2 If Holder desires to transfer all of its Holder's Shares to a
Qualified Purchaser pursuant to a bona fide written offer (an "Offer") to
purchase Holder's Shares for cash, Holder shall give Onex and the Corporation
written notice thereof ("Notice"), attaching a copy of such Offer. If a Notice
is given, Onex or any member of the Onex Group designated by it or, at Onex's
________________
* Describe other securities, if any, so acquired.
option, the Corporation, shall then have the option exercisable by notice to
Holder within 30 days after the date of receipt of the Notice, to purchase
Holder's Shares at the same price and on the same terms as the Offer. If the
exercise is not exercised within such 30-day period, Holder shall have the right
at any time within 60 days after the expiration of the 30-day option period
provided for in this Section 1.2, to sell Holder's Shares to the proposed
transferee or any other Qualified Purchaser at the price and on the other terms
set forth in the Offer; any transferee shall be bound by the provisions of this
Warrant, including, but not limited to, this Section 1.2. If Holder's Shares
shall remain unsold at the end of such 60-day period, Holder's Shares may not
thereafter be transferred unless the registered holder again complies with this
Section 1.2. The closing of any purchase and sale of Holder's Shares pursuant to
exercise by the Corporation, Onex or a member of the Onex Group of a right under
this Section 1.2 shall be held at the principal offices of the Corporation on a
date designated by the purchaser, but in any event not later than 30 days after
the date of the Notice. At the closing, the holder shall deliver to the
purchaser the certificates representing Holder's Shares duly endorsed for
transfer and free and clear of all claims, liens, encumbrances and security
interests and the purchaser shall deliver to Holder the consideration payable
upon closing.
2. Sale of Shares by Onex and the Corporation
2.1 If at any time any member of the Onex Group proposes to sell
any or all of the ProSource Shares of the same class as any of Holder's Shares
to any person or entity (excluding (i) any sale to another member of the Onex
Group, (ii) sales effected on a national securities exchange or in the
over-the-counter market, and (iii) sales made pursuant to a registration
statement under the Securities Act) (a "Disposition"), Onex shall, at least 20
days prior to the Disposition, give notice to Holder describing the terms of the
Disposition in reasonable detail (including the price, closing date (if known)
and identity of the purchaser) and stating that Holder has the option to sell to
the proposed purchaser the same percentage of its holdings of a class of
Holder's Shares on the same terms as the members of the Onex Group are selling
of ProSource Shares of the same class, simultaneously with and conditioned upon
the closing of the Disposition, at the price per unit and on the other terms of
the Disposition.
2.2 The option shall be exercised by notice to Onex, given within
the time specified in Onex's notice, which shall not be less than 10 days after
such notice. If Holder gives notice of its election to sell, it shall be
obligated to sell, conditioned upon the closing of the Disposition.
2.3 If at any time the members of the Onex Group propose to sell
all, or substantially all, of their ProSource Shares in a Disposition, they may
also in the notice pursuant to Section 2.1 require Holder to sell all of its
holdings of Holder's Shares, simultaneously with and conditioned upon the
closing of the Disposition, at the price per unit and on the other terms of the
Disposition, and Holder shall thereupon be obligated to make such disposition.
2
2.4 In connection with any Disposition, in which Holder's Shares
are to be sold by Holder, Onex may require Holder to enter into agreements with
the purchaser determined by Onex to be on terms substantially the same (except
as may refer to the number of securities being sold) as the selling members of
the Onex Group.
3. Legend
All certificates representing Holder's Shares held by Holder and
Affiliates of Holder shall bear the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
the transfer of such securities is subject to conditions
specified in the Shareholders Agreement dated ______, ______,
19__ between the Corporation, Onex Corporation and the holder
hereof and no transfer of such securities shall be valid or
effective until such conditions have been fulfilled with
respect to such transfer. A copy of such Agreement will be
furnished by the Corporation to the holder of this Certificate
upon written request and without charge."
4. Definitions
4.1 The term "Dalgety Group" shall mean Dalgety plc and its
subsidiaries.
4.2 The term "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and any similar or successor federal statute, and the rules
and regulations of the Commission thereunder, all as the same shall be in effect
at the time.
4.3 The term "Onex Group" shall mean Onex Corporation and its
subsidiaries.
4.4 The term "ProSource Shares" shall mean the shares of capital
stock of the Corporation, and, if any, securities convertible into shares of
capital stock of the Corporation, and other securities of the Corporation of the
same class as Holder's Shares, if any, held by the Onex Group.
4.5 The term "Person" shall mean an individual, corporation,
partnership, association, trust or unincorporated organization, or a government
or any agency or political subdivision thereof.
4.6 The Corporation is a "Public Company" if shares of its capital
stock are registered under section 12 of, or the Corporation is subject to
reporting requirements under Section 15(d) of, the Exchange Act or similar
federal statute in force.
3
4.7 The term "Public Offering" shall mean an offering of shares of
capital stock of the Corporation registered under the Securities Act.
4.8 The term "Qualified Purchaser" shall mean any Person not
engaged in the food distribution business or the fast food or casual dining
restaurant business.
4.9 The term "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute, and the rules and regulations
thereunder of the Commission or any other federal agency then administering the
Securities Act, all as the same shall be in effect at the time.
5. Termination
This Agreement shall terminate (i) if, at any time, the
members of the Onex Group cease to hold in the aggregate at least a majority of
the outstanding capital stock of the Corporation or (ii) on March 31, 2002,
whichever is earlier.
6. Miscellaneous
6.1 Notices
All notices, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) delivered by hand, (b) sent by telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by Express Mail, federal Express or other
express delivery service (receipt requested), in each case to the appropriate
addresses and telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may designate as to itself by notice to the other
parties):
(a) If to the Corporation, to:
ProSource, Inc.
550 Biltmore Way, 10th Floor
Coral Gables, Florida 33134
Attention: President
Facsimile: (305) 378-7866
4
with copies to:
Onex Corporation
161 Bay Street - 49th Floor
P.O. Box 700
Toronto, Ontario, Canada M5J 2S1
Attention: Gerald W. Schwartz
Facsimile: (416) 362-5765
and
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg, Esq.
Phone: (212) 836-8201
Facsimile: (212) 836-7149
(b) If to Onex Corporation, to:
Onex Corporation
161 Bay Street - 49th Floor
P.O. Box 700
Toronto, Ontario, Canada M5J 2S1
Attention: Gerald W. Schwartz
Facsimile: (416) 362-5765
with copies to:
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg, Esq.
Phone: (212) 836-8201
Facsimile: (212) 836-7149
(c) if to Holder, to:
[to be designated by Holder when this agreement is
executed]
6.2 Assignment
5
No party may assign any rights or delegate any of its duties
under this Agreement, but this Agreement shall be binding upon and inure to the
benefit of the successors to the business and assets of the Corporation, Onex
and Holder.
6.3 No Waiver
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
6.4 Exclusive Agreement and Amendment
This Agreement supersedes all prior agreements among the
parties with respect to its subject matter, is intended as a complete and
exclusive statement of the terms of the Agreement among the parties with respect
thereto and cannot be changed or terminated orally.
6.5 Governing Law
This Agreement and all amendments hereof and waivers and
consents hereunder shall be governed by the internal law of the State of New
York, without regard to the conflicts of law principles thereof.
6.6 Captions
The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of this
Agreement.
6.7 Jurisdiction
Any action or proceeding seeking to enforce any provision of,
or based on any right arising out of, this Agreement may be brought against any
of the parties in the courts of the State of New York, or, if it has or can
acquire jurisdiction, in the United States District Court for the Southern
District of New York, and each of the parties hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding, and waives any objection to venue laid therein.
Process in any such action or proceeding may be served anywhere in the world,
whether within or without the State of New York.
6
6.8 Counterparts
This Agreement may be executed in counterparts, each of which
shall be considered an original, but all of which together shall constitute one
and the same instrument.
6.9 Severability
The provisions of this Agreement are intended to be and shall
be deemed severable. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
[HOLDER]
By:___________________
[ ]
By:___________________
PROSOURCE, INC.
By:___________________
7
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 3/31/02 | | 2 | | 23 | | | None on these Dates |
| | 3/31/00 | | 1 |
| | 4/1/97 | | 1 |
| Filed on: | | 9/6/96 |
| | 3/31/95 | | 17 | | 20 |
| List all Filings |
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