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-10.22 — Employment Agreement:Adzia
EX-10.22 | 1st Page of 9 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 1, 1995, between ProSource
Services Corporation, a Delaware corporation (the "Company) and Daniel Adzia
(the "Employee").
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 (a) the Company or the
Employee gives notice to the other of its or his election not to extend the
employment of the Employee at least six months prior to the end of the initial
three-year term or the then current one-year extension period, as applicable, or
(b) the employment of the Executive is terminated as provided in Section 5.
3. POSITIONS AND DUTIES; PLACE OF PERFORMANCE.
(a) POSITIONS AND DUTIES. The Employee shall be employed as
President of the National Accounts Division 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 serve as a member of the Board and a member of the board of directors of
ProSource, Inc. ("PSI") and shall hold such offices at PSI as PSI'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 PSI, 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
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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 in the
Chicago, Illinois or Miami, Florida metropolitan areas, or at such other
location as the Board and the Employee may agree, 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 $300,000 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.
(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 PSI's Management Option Plan (1995),
(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 $6,000 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 an automobile allowance of $1,100 per month. Employee
shall be responsible for all costs of acquiring, maintaining and operating the
automobile used by him, including, but not limited to, the costs of insurance
on, maintenance of, and fuel for, the automobile, without any reimbursement by
the Company.
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(f) INITIATION FEES/CLUB DUES. The Employee shall receive
$7,000 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 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 failure to act within 30 calendar days of Employee's receipt of such
notice and to correct such act or
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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. 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, subject to Section 7, pay to the Employee, during the
Severance Period (as defined in Paragraph (E) below), an amount equal
to the product of
(x) the Severance Fraction (as defined in Paragraph (E)
below) and
(y) the sum of (1) of Employee's annual Base Salary in
effect as of the Date of Termination plus (2) an
amount equal to the pro rata portion (based upon the
portion of the year prior to the Date of Termination)
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.
The amount described in clause (1) of this Paragraph (A) shall be paid
in substantially equal monthly payments during the Severance Period,
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) During the Severance Period, 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 the Severance 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
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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 $25,000.
(D) Unless Employee has in fact vested under any retirement
plan then in effect, Employee shall be deemed to have been employed by
the Company for the minimum number of years required to vest under such
plans.
(E) The Severance Period shall be the period commencing on the
Date of Termination and ending on the later of (i) the date on which
this Agreement and the employment of the Employee would have expired
pursuant to Section 2 but for its termination pursuant to this Section
5 or (ii) the date that is 18 months after the Date of Termination. The
Severance Fraction is the quotient obtained by dividing the number of
whole months in the Severance Period by 12.
(e) NOTICE OF TERMINATION; DATE OF TERMINATION. Any
termination of the Employee's employment pursuant to this Section 5, 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) unless such termination is
without cause pursuant to Section 5(d), 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 term of his employment 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.
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(b) COMPETITIVE ACTIVITY. (i) The Employee shall not, without
the written consent of the Board, during the employment term and for eighteen
months following the date on which his employment hereunder terminates (or until
the end of the Severance Period, whichever is longer), 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 or any of its subsidiaries. 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 for eighteen months following the date
on which his employment hereunder terminates (or until the end of the Severance
Period, whichever is longer), 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 on which his employment
hereunder terminates, or who were being solicited to become customers as of the
date on which his employment hereunder terminates, 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.
(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
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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
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 is 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 Delaware 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:
1020 West 31st Street
Downers Grove, Illinois 60515-5508
Telecopier: (708)
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To the Company:
ProSource Services Corporation
550 Biltmore Way, 10th Floor
Coral Gables, Florida 33134
Attention: Chairman of the Board
Telecopier: (305) 529-2573
With copies to:
Onex Corporation
Canada Trust Tower
161 Bay Street - Suite 4900
Toronto, Ontario M5J 2S1 Canada
Attention: Mr. Anthony R. Melman
Telecopier: (416) 362-5765
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg, Esq.
Telecopier: (212) 836-7149
(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 term of this Agreement. 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 reor-
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ganization, 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
PROSOURCE SERVICES CORPORATION
By /s/ David R. Parker
--------------------------
David R. Parker,
Chairman of the Board
DANIEL ADZIA
/s/ Daniel Adzia
--------------------------
Dates Referenced Herein
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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 |
| | 4/1/95 | | 1 |
| List all Filings |
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