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-10.25 — Employment Agreement:Foley
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Exhibit 10.25
EMPLOYMENT AGREEMENT
Employment Agreement dated April 1, 1994, between ProSource Distribution
Services, a Delaware corporation (the "Company") and John E. Foley (the
"Employee").
RECITALS
The Company wishes to employ the Employee for the period, and upon the
terms and conditions, provided in this Agreement.
The Employee is willing to serve in the employ of the Company for such
period upon the terms and conditions hereinafter provided.
In consideration of the mutual promises and agreements set forth below,
the Company and the Employee agree as follows:
1. EFFECTIVENESS AND EMPLOYMENT. The Company shall employ the Employee and
the Employee shall be employed by the Company as of the date of this Agreement
(the "Commencement Date").
2. TERM. The term of this Agreement and the employment of the Employee
hereunder shall commence as of the Commencement Date, shall continue to the
third anniversary of such date, and automatically shall be extended for an
unlimited number of successive one-year periods unless terminated (a) by the
Company or the Employee on the third anniversary or on any subsequent
anniversary of the Commencement Date upon the giving of written notice of such
party's intention to terminate at least six months prior to the Date of
Termination, as defined in Section 5(e), or (b) as provided in Section 5.
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3. POSITIONS AND DUTIES; PLACE OF PERFORMANCE.
(a) POSITIONS AND DUTIES. The Employee shall be employed as Chief
Financial Officer, Senior Vice President of Finance and Systems of the Company
and shall have the duties, responsibilities and authority as may from time to
time be assigned to him by the Company's Board of Directors (the "Board") that
are consistent with and normally associated with such position and, without
additional compensation, shall hold such offices at Onex Distribution, Inc,
("ODI") as ODI's board of directors determines. The Employee shall devote
substantially all of his business time, effort, and energies exclusively to the
business of the Company and ODI, and shall not serve as an active principal or a
director or officer of any other company or entity without the prior written
consent of the Board, except that the Employee may serve, without such consent,
as a director or officer of any company on the board of which he is currently
serving and of any trade association, civic, educational or charitable
organization unless the Board determines that such service interferes with the
performance of Employee's duties hereunder.
(b) PLACE OF PERFORMANCE. The Employee shall be based at Miami,
Florida, except for required travel on the Company's business.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the employment term, the Company shall pay the
Employee a base salary at the annual rate of $165,000 per year (the "Base
Salary"), payable in accordance with the Company's normal payroll practices for
senior executives. The Board shall review the Base Salary annually; Employee
shall be entitled to such increases in his Base Salary as may be determined from
time to time by the Board or pursuant to its delegation. If the Base Salary is
increased, the new salary shall thereafter constitute the "Base Salary" for
purposes of this Agreement. All such increases will be based upon Company Plan
performance and
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personal objectives as dictated by the President and CEO and Board of Directors
of the Company. In addition, ProSource will conduct a senior executive
compensation analysis to evaluate all senior management compensation. If such
analysis supports a salary adjustment, the Company shall, by July, 1996, take
the necessary action to make an adjustment with a target of $200,000 annually,
if all supportive criteria is achieved.
(b) BONUSES. In addition to Base Salary, the Employee may receive a
cash bonus. The bonus shall be determined in accordance with any applicable
executive management bonus or incentive compensation plan in effect at the date
of determination or, if no such plan is in effect, by the Board or the
appropriate committee thereof, in its sole discretion.
(c) OTHER BENEFIT PLANS AND FRINGE BENEFITS. The Employee shall be
eligible to (i) participate in ODI's Management Option Plan (1992), (ii)
participate in all employee benefit plans maintained by the Company for its
senior management executives during the employment term, (iii) receive all
fringe benefits for which his status and level of employment qualify him in
accordance with the Company's usual plans, policies, and arrangements, and (iv)
be reimbursed for up to $3,000 for actual expenses incurred for, among other
things, financial consulting and tax planning and preparation services and legal
advice.
(d) VACATION. Employee shall be entitled to three weeks of paid
vacation annually. Employee shall determine, in his reasonable discretion, the
timing of such vacation.
(e) AUTOMOBILE. During the term of his employment, the Company shall
pay to Employee on a monthly basis an amount of $850.00 for automobile
allowance. This allowance will cover the costs of insurance on, maintenance of,
lease
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of, if you desire to lease, and fuel for the automobile. Such allowance amount
will be reviewed annually.
(f) INITIATION FEES/CLUB DUES. The Employee shall receive $3,500
each year for club memberships, including country clubs, luncheon clubs, health
clubs, and airline clubs.
5. TERMINATION.
(a) COMPENSATION AND BENEFITS. Except as otherwise provided in this
Section or Section 7, upon termination of the Employee's employment hereunder,
his right to compensation hereunder shall cease except that the Employee shall
be entitled to receive his Base Salary and benefits up to the Date of
Termination (as defined in Section 5(e) or for the period required by law,
except that any bonus payable pursuant to Section 4(b) shall be prorated to the
Date of Termination.
(b) DEATH AND DISABILITY. The Employee's employment hereunder shall
terminate upon his death and may be terminated by the Company due to Employee's
Disability. For purposes of this Agreement, "Disability" shall mean the
determination by the Board that the Employee is physically or mentally
incapacitated and has been unable for a period of six consecutive months, or for
shorter periods aggregating six months in any period of 12 consecutive months,
to perform the duties for which he was responsible immediately before the onset
of his incapacity. To assist the Board in making such a determination, the
Employee shall, as reasonably requested by the Board, (i) make himself available
for medical examinations, without cost to the Employee, by a physical chosen by
the Board and approved by the Employee, whose approval shall not unreasonably be
withheld, and (ii) grant the Board and any such physician access to all relevant
medical information concerning him, arrange to furnish copies of medical records
to such physician, and use his best efforts to cause his own physicians to be
available to discuss his health with such physician. The
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determination of the physician chosen in accordance with the preceding sentence
shall be final and binding on the Company and the Employee.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Employee's employment
hereunder may be terminated by the Company for Cause. For purposes of this
Agreement, the term "Cause" shall mean (i) the Employee's conviction of a crime
involving actual dishonesty against the Company or any of its affiliates, (ii)
gross negligence or gross misconduct by the Employee against the Company or
another employee, or in carrying out his duties and responsibilities, or (iii) a
breach of the provisions of Section 6(a) or (b) hereof that is harmful to the
Company or any of its affiliates. In any case described in this Section 5(c),
the Board shall give the Employee written notice, in accordance with Section
5(e), that the Company intends to terminate his employment for Cause (the
"Preliminary Cause Notice"). The Preliminary Cause Notice shall specify the
particular act or acts or failure to act that is or are the basis for the
decision to so terminate the Employee's employment for Cause. The Board shall
give the Employee an opportunity to meet with the Board to defend such act or
acts or failure to act within 30 calendar days of Employee's receipt of such
notice and to correct such act or failure to act within 30 business days
following such meeting. If the Employee fails to correct such act or failure to
act within the 30 business days following the meeting, the Employee's employment
by the Company shall be terminated under this Section 5(c) for Cause as of the
Date of Termination.
(d) COMPENSATION UPON TERMINATION WITHOUT CAUSE OR FOR DISABILITY.
(i) If the Company terminates the Employee's employment
hereunder for disability in accordance with Section 5(b) or without Cause:
(A) In addition to the amounts paid to the Employee pursuant
to Section 5(a), in lieu of any further salary payments to the Employee for any
period
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subsequent to the Date of Termination, the Company shall pay to the Employee,
during the one-year period commencing on the Date of Termination, an amount
equal to (1) the Employee's annual Base Salary in effect as of the Date of
Termination plus (2) a cash bonus in an amount equal to the pro rata portion of
the actual incentive payment that Employee would have received under the
management incentive plan for the year in which the Date of Termination occurs
but for Employee's termination. Except as provided in Section 7, the amount
described in clause (1) of this Paragraph (A) shall be paid in substantially
equal monthly payments during the 12-month period following the Date of
Termination, except that the Company may determine, in its sole discretion, to
pay such amount (or any portion remaining during such period if periodic
payments have commenced) in a single lump sum in cash or, if so requested by the
Employee, in two lump sums. The amount described in clause (2) of this Paragraph
(A) shall be paid at the same time as payments are or would have been made under
the incentive plan in effect on the Date of Termination.
(B) For the one-year period following the Date of Termination,
the Company shall continue to provide the Employee (and his eligible dependents,
if any) with (1) group health and life insurance benefits and long-term
disability insurance coverage (or the economic equivalent thereof) at the level
in effect on the Date of Termination, (2) the perquisite allowance referred to
in Section 4(c)(iv), and (3) the benefits referred to in Sections 4(e) and 4(f);
provided that if the Employee is employed by another employer within such
one-year period such benefits and insurance coverage shall cease except for
insurance coverage for conditions existing on the date of employment by an
employer other than the Company, and further provided that, at the expiration of
the extended period of insurance coverage provided under this clause (i)(B), the
Employee (and his eligible dependents, if any) shall be entitled to the full
period of coverage provided him under Section 4980B of the
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Internal Revenue Code of 1986, as amended unless other employment has been
obtained.
(C) The Company shall reimburse Employee for actual costs
incurred in seeking reemployment, including costs of outplacement services up to
a maximum of $12,500.
(e) NOTICE OF TERMINATION; DATE OF TERMINATION. Any termination of
the Employee's employment, other than by reason of his death, shall be
communicated by the terminating party by a written notice of termination (the
"Notice of Termination"). The Notice of Termination shall (i) indicate the
specific termination provision in this Agreement upon which the termination is
based, (ii) set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated, and (iii) specify the Date of Termination. For purposes
of this Agreement, "Date of Termination" shall mean (i) if the Employee's
employment is terminated by his death, the date of his death, and (ii) in all
other cases, the later of the date of actual receipt of the Notice of
Termination and the date specified in such notice. The Date of Termination shall
not occur prior to the completion of the cure period described in Section 5(c)
if termination is for Cause.
6. COVENANTS.
(a) CONFIDENTIALITY. The Employee acknowledges that he has acquired
and will acquire confidential information respecting the business of the
Company. Accordingly, the Employee agrees that he will not willfully disclose,
at any time (during the Employment Term or thereafter), any such confidential
information to any unauthorized third party without the consent of the Company
as authorized by the Board. For this purpose, information shall be considered
confidential only if such information is proprietary to the Company and has not
been made publicly available
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prior to its disclosure by the Employee. There shall be no breach of this
Section 6(a) if the disclosure does not have an adverse effect on the Company's
business or operations, or otherwise harm or damage the Company.
(b) COMPETITIVE ACTIVITY. (i) If Employee's employment hereunder is
terminated, Employee shall not, without the written consent of the Board, during
the twelve-month period following the Date of Termination, directly,
individually or as an employee, agent, partner, shareholder, consultant or in
any other capacity, participate in, engage in or have a financial interest or
management position or other interest in any business operation or any
enterprise that is in direct competition with the Company. The ownership of an
interest constituting not more than 1% of the outstanding debt or equity in a
corporation the shares of which are traded on a recognized stock exchange or
trade in the over-the-counter market, even though that corporation maybe a
competitor of the Company or any of its subsidiaries, shall not be deemed
financial participation in a competitor.
(ii) The Employee shall not, without the written consent of
the Board, during the employment term and through the first anniversary of his
Date of Termination, directly or indirectly, either for his own benefit or for
the benefit of any other person, solicit to take away, or take away any
customers doing business with the Company on the Date of Termination or who were
being solicited to become customers as of the Date of Termination or recruit,
induce, or encourage any employee of the Company or any affiliate of the Company
to terminate such employee's employment with the Company or such affiliate,
except that nothing herein shall prohibit the Employee from giving a reference
or a recommendation to any third party with respect to any such employee.
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(c) REMEDY FOR BREACH AND MODIFICATION. The Employee acknowledges
that the provisions of this Section 6 are reasonable and necessary for the
protection of the Company and that the Company will be irrevocably damaged if
such provisions are not specifically enforced. Accordingly, the Employee agrees
that, in addition to any other relief or remedies available to the Company, the
Company shall be entitled to seek and obtain an appropriate injunction or other
equitable remedy from a court with proper jurisdiction for the purposes of
restraining the Employee from any actual or threatened breach of such
provisions, and no bond or security will be required in connection therewith. If
any provision of this Section 6 is deemed invalid or unenforceable, such
provision shall be deemed modified and limited to the extent necessary to make
it valid and enforceable.
7. SECTION 280G PAYMENTS. If the aggregate present value of the Employee's
payments under this Agreement, and any plan, program, or arrangement maintained
by the Company constitutes an "excess parachute payment" (within the meaning of
Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended (the
"Code")) and the excise tax on such payment would cause the net parachute
payments (after taking into account federal, state and local income and excise
taxes) to which the Employee otherwise would be entitled to be less than what
the Employee would have netted (after taking into account federal, state and
local income taxes) had the present value of his total parachute payments
equaled $1.00 less than three times his "base amount" (within the meaning of
Code Section 280(G)(b)(3)(A)), the Employee's total "parachute payments" (within
the meaning of Code Section 280G(b)(2)(A)) shall be reduced (by the minimum
possible amount) so that their aggregate present value equals $1.00 less than
three times such base amount. For purposes of this calculation, it shall be
assumed that the Employee's tax rate will be the maximum marginal federal, state
and local income tax rate on earned income, with
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such maximum federal rate to be computed with regard to Code Section 1(g), if
applicable. If the Employee and the Company are unable to agree as to the amount
of the reduction described above, if any, the Employee shall select a law firm
or accounting firm from among those regularly consulted (during the twelve-month
period immediately prior to the change in control that resulted in the
characterization of the payments as parachute payments) by the Company regarding
federal income tax or employee benefit matters and such law firm or accounting
firm shall determine the amount of such reduction and such determination shall
be final and binding upon the Employee and the Company.
8. INDEMNIFICATION. The Company shall indemnify, defend, and hold the
Employee harmless, to the maximum extent permitted by law, from any and all
claims, litigation, or suits arising out of the activities of the Employee
reasonably taken in the performance of his duties hereunder, including all
reasonable expenses and professional fees that may relate thereto. The Company
shall obtain a directors and officers liability insurance policy covering the
Employee in a sufficient amount to provide such indemnification if such coverage
is available on commercially reasonable terms and shall maintain such policy
during the Employment Term (and for so long thereafter as in practicable in the
circumstances taking into account the availability of such insurance).
9. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida applicable to agreements
made and to be performed in that State.
(b) NOTICE. Any notice, consent, request or other communication made
or given in connection with this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by registered or
certified
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mail, return receipt requested, to those listed below at their following
respective addressees or at such other address as each may specify by notices to
the others:
ProSource Distribution Services
550 Biltmore Way, 10th Floor
Coral Gables, FL 33134
(c) ENTIRE AGREEMENT; AMENDMENT. This Agreement shall supersede any
and all existing agreements between the Employee and the Company or any of its
affiliates relating to the terms of the Employee's employment during the
Employment Term. It may not be amended except by a written agreement signed by
both parties.
(d) 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
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(e) ASSIGNMENT. Except as otherwise provided in this Section 9(e),
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, representatives, successors and assigns. This
Agreement shall not be assignable by the Employee and shall be assignable by the
Company only to any corporation or other entity resulting from the
reorganization, merger, or consolidation of the Company with any other
corporation or entity or any corporation or entity to or with which the
Company's business or substantially all of its business or assets may be sold,
exchanged, or transferred, and it must be so assigned by the Company to, and
accepted as binding upon it by, such other corporation or entity in connection
with any such reorganization, merger, consolidation, sale, exchange, or transfer
(the provisions of this sentence also being applicable to any successive such
transaction).
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(f) HEADINGS. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
(g) RULES OF CONSTRUCTION. Whenever the context so requires, the use
of the masculine gender shall be deemed to include the feminine and vice versa,
and the use of the singular shall be deemed to include the plural and vice
versa.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
By and on behalf of
ProSource Distribution Services
By: David R. Parker, Chairman
By /s/David R. Parker
---------------------------------
By: Thomas C. Highland, President &
Chief Executive Officer
By /s/Thomas C. Highland
--------------------------------
By: John E. Foley
By /s/John E. Foley
--------------------------------
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Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 9/6/96 | | | | | | | None on these Dates |
| | 4/1/94 | | 1 |
| List all Filings |
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