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-10.23 — Employment Agreement:Garcia De Quevedo
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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated July 1, 1992, between BKDA
Corporation, a Delaware corporation (the "Company") and Paul Garcia de Quevedo
(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.
3. POSITIONS AND DUTIES; PLACE OF PERFORMANCE.
(a) POSITIONS AND DUTIES. The Employee shall be
employed as Chief Financial Officer 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 $130,000 per
year (the "Base Salary"), payable in accordance with the Company's normal
payroll practices for senior
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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.
(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 four
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 equal to the
monthly
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lease payment, including sales taxes, for an automobile of his choice, the
"acquisition cost" of which does not exceed $30,000, exclusive of taxes, and for
a comparable replacement automobile on the third anniversary of the Commencement
Date and at the end of each three-year interval thereafter. The Company shall
pay the costs of insurance on, maintenance of, and fuel for, the automobile.
(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 travel 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
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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 physician 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 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
5
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 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
6
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 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.
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(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 termina-
tion (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 prior to its disclosure by the
Employee. There shall be no breach of this Section 6(a) if
8
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 may be 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
9
giving a reference or a recommendation to any third party with respect to any
such employee.
(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
10
"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 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
11
as is practicable in the circumstances taking into account the availability of
such insurance).
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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 mail, return receipt requested, to those listed below at
their following respective addresses or at such other address as each may
specify by notice to the others:
To the Employee, to his attention at:
17777 Old Cutler Road
Miami, Florida 33157
Telephone: (305) 378-7871
Telecopy: (305) 378-7866
To the Company:
BKDA Corporation
17777 Old Cutler Road
Miami, Florida 33157
Attention: President
Telephone: (305) 378-7181
Telecopy: (305) 378-7866
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With copies to:
Anthony R. Melman
Vice President
Onex Corporation
Canada Trust Tower
161 Bay Street - Suite 4900
Toronto, Ontario
M5J 2S1
Canada
Telephone: (416) 362-7911
(416) 362-7711
Telecopy: (416) 362-5765
(416) 362-0237
Joel I. Greenberg, Esq.
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Telephone: (212) 836-8201
Telecopy: (212) 836-8959
(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.
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(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).
(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
BKDA CORPORATION
By: Thomas C. Highland, President
By /s/ Thomas C. Highland
__________________________
PAUL GARCIA de QUEVEDO
/s/ Paul Garcia de Quevedo
______________________________
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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 |
| | 7/1/92 | | 1 |
| List all Filings |
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