1
Exhibit 4
AMENDED AND RESTATED
DIRECTOR SHAREHOLDERS AGREEMENT
THIS DIRECTOR SHAREHOLDERS AGREEMENT dated as of November 15, 1996
amends and restates in its entirety the Director Shareholders Agreement dated
as of May 31, 1995 (the "Original Agreement"), among ProSource, Inc., a
Delaware corporation (the "Corporation"), Onex DHC LLC, a Wyoming limited
liability company ("Onex"), and the individuals named from time to time on
Schedule I to this Agreement (each a "Director Holder" and collectively the
"Director Holders").
RECITALS
A. The parties desire to amend and restate the Original Agreement
in contemplation of the proposed initial public offering (the "Offering") of
shares of the Corporation's Class A Common Stock (as hereinafter defined).
B. Prior to commencement of the Offering, (i) the Corporation
intends to file a restated certificate of incorporation (the "Restated
Certificate of Incorporation"), providing for, among other things, two classes
of authorized common stock, Class A Common Stock, par value $.01 per share
("Class A Common Stock"), and Class B Common Stock, par value $.01 per share
("Class B Common Stock"), and (ii) all of the Corporation's outstanding shares
of common stock, par value $.01 per share ("Common Stock"), will be converted
into shares of Class B Common Stock.
C. The powers, preferences, rights, limitations and restrictions
of the Class B Common Stock, including certain provisions with respect to
transfer thereof and conversion into shares of Class A Common Stock, are set
forth in the Restated Certificate of Incorporation.
D. Each of the Director Holders is a member of the Board of
Directors of the Corporation and purchased shares of Common Stock from the
Corporation prior to the date of this Agreement. As used herein, the term
"Shares" shall mean such shares of Common Stock, the shares of Class B Common
Stock issued or to be issued upon conversion of Common Stock, and any shares of
Class A Common Stock issued upon conversion of Class B Common Stock.
The parties hereby agree as follows:
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8. RESTRICTIONS ON TRANSFER OF SHARES
1.1 REPRESENTATION. Each of the Director Holders represents and agrees
that the Director Shares owned by him were acquired for his own account and
will not be transferred in violation of this Agreement, the securities laws of
the United States, or any other applicable law.
1.2 RESTRICTIONS. A Director Holder may transfer Director Shares as a
whole or in part only if such transfer is permitted by and made in accordance
with the terms of this Agreement. Any purported transfer in any manner
contrary to the terms of this Agreement shall be null and void. For purposes
of this Agreement, the term "transfer" shall mean any sale, exchange,
assignment, gift, bequest, pledge, creation of a lien or security interest or
other disposition or encumbrance of any kind, whether voluntary or involuntary
or by operation of law, affecting title to or possession of the Director
Shares. The Corporation may refuse to register any transfer of Shares that
would violate this Agreement, the securities laws of the United States, or any
other applicable law, and may, as a condition to registration of such transfer,
require the transferor to furnish to the Corporation an opinion of counsel
reasonably acceptable to the Corporation as to compliance with the foregoing.
1.3 PLEDGE OF SHARES AS SECURITY. Each of the Director Holders may
finance up to 66 2/3% of the purchase price of such Director Holder's Shares
and may pledge such Shares to the lender to secure the financing or to any
affiliate of the Corporation that guarantees repayment of any loan made to
finance the purchase of Shares if the lender or guarantor agrees in writing to
be bound by this Agreement.
1.4 SALES FREE OF ENCUMBRANCES. Upon the transfer of Director Shares
pursuant to this Agreement, the Director Holder shall discharge any
indebtedness permitted by Section 1.3 and deliver to the purchaser the share
certificates representing such Director Shares free and clear of any pledge,
lien, security interest or other encumbrance of any kind. If the Director
Holder fails to comply with the preceding sentence, the purchaser may withhold
from the purchase price an amount equal to the indebtedness secured by any such
pledge, lien, security interest or other encumbrance or, if the amount of such
indebtedness is not known by the purchaser, an amount equal to the purchaser's
good faith estimate thereof (no limitation of any other remedy available to the
purchaser being intended) and apply such withheld amount to extinguish such
debt. Any such payment of such withheld amount shall discharge the purchaser's
obligation to make payment for the purchased shares to the extent of such
withheld amount. If a selling Director Holder fails to deliver certificates
representing Director Shares being sold as required at the closing of such
sale, the purchaser may deposit the purchase price therefor with the
Corporation and, upon such deposit, those certificates shall be deemed canceled
and of no effect (no limitation of any other remedy available to the purchaser
being intended).
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9. SALE OR TRANSFER OF DIRECTOR SHARES
2.1 TRANSFER TO DIRECTOR HOLDER'S FAMILY. A Director Holder may transfer
Director Shares to his parents, siblings, spouse, or issue or to a trust or
custodianship for the exclusive benefit of himself or any of them (each a
"Family Group Member"); provided that any such transferee agrees in writing to
be bound by the provisions of this Agreement that bind the transferor Director
Holder.
2.2 SALE: CORPORATION IS A PUBLIC COMPANY. If the Corporation is a
Public Company, a Director Holder may sell any or all of his Shares through the
facilities of any securities exchange on which the Director Shares may then be
listed in a manner that complies with applicable securities law and
regulations, except that no such sales shall be made within 180 days after any
offering of securities registered under the 1933 Act that involves shares of
the same class as Director Shares.
2.3 SALE UPON CEASING TO BE A DIRECTOR; CORPORATION IS NOT A PUBLIC
COMPANY. (a) If a Director Holder ceases to be a member of the Board of
Directors of the Corporation at any time when the Corporation is not a Public
Company and elects, by notice to the Corporation within 10 days after ceasing
to be a member of the Board of Directors, to sell his Director Shares to the
Corporation, the Corporation shall purchase, and the Director Holder shall
sell, all of the Director Shares owned by such Director Holder for a purchase
price equal to Book Value Per Share multiplied by the number of Director Shares
owned by such Director Holder (the "Initial Section 2.3(a) Payment"). If the
Corporation purchased a Director Holder's Director Shares pursuant to the
preceding sentence and effects any offering of securities registered under the
1933 Act that involves an offering of shares of the same class as Director
Shares within four months after that Director Holder ceases to be a member of
the Board of Directors of the Corporation, the purchase price per Share shall
be increased by an amount equal to the excess, if any, of the public offering
price per Share (after deduction of any applicable underwriter's commissions or
discounts) over the Book Value Per Share used in calculating the original
purchase price, less interest at the Prime Rate on the portion of the purchase
price previously paid in cash (the "Additional Section 2.3(a) Payment").
Subject to the limitations set forth in Section 2.3(b), the Initial Section
2.3(a) Payments shall be paid in cash at the closing of the purchase and sale
and Additional Section 2.3(a) Payments shall be paid in cash within 60 days of
the closing of the registered offering.
(b) The amount of the purchase price payable by the Corporation to
any Director Holder pursuant to Section 2.3(a) shall be reduced by any amount
paid by the Corporation or any affiliate of the Corporation to NCNB National
Bank (or any successor bank) to discharge the principal portion of any
indebtedness incurred by such Director Shareholder to purchase the Director
Shares. If, as a result of restrictions in its loan agreement with NationsBank
of Georgia, N.A., ProSource Services Corporation ("PSC"), is unable to pay
sufficient dividends to the Corporation to enable the Corporation to pay the
amount of the purchase price required to be paid by it in cash either at the
closing of the sale or at any time thereafter in accordance with the terms set
forth in Sections 2.3(a), the Corporation shall be entitled to pay any unpaid
portion of
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the payments required to be made under Sections 2.3(a), together with interest
thereon at the Prime Rate, at such time as it has received from PSC sufficient
dividends to enable it to do so.
2.4 SALE UPON DEFAULT ON INDEBTEDNESS. If a Director Holder defaults on
any indebtedness referred to in Section 1.3, the Corporation shall have the
option, exercisable upon notice to the Director Holder at any time following a
default, to purchase all or any portion of the Director Shares with respect to
which such debt was incurred at a purchase price equal to (i) 85% of Book Value
Per Share, if the Corporation is not a Public Company at the time of the
closing of the purchase or (ii) 85% of Market Price Per Share, if the
Corporation is a Public Company at the time of the closing of the purchase.
2.5 CLOSING OF SALE. The closing of any purchase and sale of Director
Shares pursuant to the exercise of a right under this Section 2 (other than
transfers made pursuant to Section 2.1 or sales made through the facilities of
any securities exchange pursuant to Sections 2.2 and 5) shall be held at the
principal offices of the Corporation on a date designated by the purchaser but
in any event not later than the last day upon which a purchase is permitted or
required to be made. At the closing, the Director Holder selling Shares shall
deliver to the purchaser the stock certificates and other instruments
representing such Shares, together with stock powers and other instruments
transferring such Shares, duly endorsed for transfer and free and clear of all
claims, liens, encumbrances and security interests, and the purchaser shall
deliver to the Director Holder the consideration payable upon closing.
10. OPTIONS TO PURCHASE SHARES
3.1 Shares received by a Director Holder upon the exercise or conversion
of any options, warrants, rights to purchase shares or securities convertible
into Shares, shall be subject to the terms and conditions of this Agreement and
may not be transferred except as permitted by this Agreement.
11. SALE OF SHARES BY ONEX AND THE CORPORATION
4.1 TAG ALONG. (a) If at any time any member of the Onex Group proposes
to sell any Shares except for (i) sales to another member of the Onex Group
that becomes bound by the terms of this Agreement (an "Onex Group Member"),
(ii) sales to a Director Holder or other management employee or director of the
Corporation or a subsidiary of the Corporation, (iii) sales of the 500 Shares
purchased by Onex on June 30, 1992 for later disposition to persons providing
services to the Corporation or any of the Corporation's subsidiaries (the "500
Shares"), (iv) sales effected on a national securities exchange in the regular
way or in the over-the-counter market, or (v) sales made pursuant to an
offering of securities registered under the 1933 Act (a "Tag Along
Disposition"), each of the Director Holders shall have the right to sell to the
proposed purchaser a number of his Director Shares equal to the total number of
his Director Shares multiplied by a ratio, the numerator of which is the number
of Shares to be sold by the Onex Group Member to the proposed purchaser and the
denominator of which is the total number of Shares then owned by the Onex
Group. Such ratio is referred to herein as the "Share
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Ratio." A sale of Director Shares pursuant to this Section shall be made at
the same price, upon the same terms, and at the same time as the sale by the
Onex Group Member of its Shares.
(b) The Onex Group Member shall give notice (the "Tag Along
Notice") to each Director Holder of the proposed Tag Along Disposition at least
20 days prior to the same. The Tag Along Notice shall be in writing and shall
describe the terms of the Tag Along Disposition in reasonable detail, the
identity of the proposed purchaser, the proposed date of sale, the purchase
price per Share, and the Share Ratio and shall state that (i) the Director
Holder has the option to sell to the proposed purchaser a number of Director
Shares equal to the total number of Director Shares then owned by such Holder
multiplied by the Share Ratio, (ii) the sale, if made, shall be made at the
same price per share, upon the same terms, and at the same time as the sale by
the Onex Group Member of its Shares to the proposed purchaser, and (iii) the
sale by Director Holders will be conditioned upon a sale of Shares by the Onex
Group Member pursuant to this Section.
(c) A Director Holder may exercise his sale option pursuant to
Section 4.1 by delivering to the Onex Group Member, within ten days after such
Director Holder receives the Tag Along Notice, written notice of his offer to
sell Director Shares pursuant to this Section and indicating the number of
Director Shares offered for sale. If a Director Holder gives notice of his
election to sell, he shall be obligated to do so, but the sale and his
obligation to sell shall be conditioned upon the closing of the Tag Along
Disposition. If the purchaser specifies a limited number of Shares that it is
willing to purchase in the aggregate, each Director Holder and the Onex Group
Member shall have the right to sell its or his proportion of the number of
Shares that the purchaser is purchasing, i.e., the proportion that the number
of Shares owned by such Person bears to the aggregate number of Shares owned by
the shareholders who are selling Shares. For purposes of this Section 4.1, the
number of Shares owned by any Onex Group Member shall not be deemed to include
any portion of the 500 Shares then owned by any Onex Group Member.
(d) If a transferee of Onex Shares pursuant to this Section 4.1
acquires such Shares free of this Agreement, then such transferee shall also
take the Director Shares being sold by a Director Holder free of this
Agreement. If, however, any Onex Group Member is required to transfer any Onex
Shares subject to this Agreement, then the Director Holder shall also transfer
his Director Shares subject to this Agreement.
4.2 DRAG ALONG. Notwithstanding anything herein to the contrary, if any
Onex Group Member proposes to sell any Shares to any Person, except for (i)
sales of the 500 Shares, (ii) sales effected on a national securities exchange
in the regular way or in the over-the-counter market, and (iii) sales to any
other Onex Group Member (a "Drag Along Disposition"), it may, upon giving
notice to each Director Holder at least 20 days prior to the Drag Along
Disposition (the "Drag Along Notice") require the Director Holders to sell a
number of Director Shares equal to the total number of Director Shares then
owned by such Holder multiplied by the Share Ratio. The Drag Along Notice
shall be in writing and shall contain the same information as is required to be
set forth in the Tag Along Notice. A sale of Director Shares pursuant to this
Section shall be made at the same price, upon the same terms, and at the same
time as the sale by the Onex
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Group Member of its Shares pursuant to this Section. Any transferee of Shares
owned by any Onex Group Member or of the Director Holders pursuant to this
Section 4.2 shall acquire such Shares free of this Agreement, unless the
agreement between the Onex Group Member and such transferee provides otherwise.
4.3 REPRESENTATIONS AND WARRANTIES ON A DISPOSITION. In connection with
any transfer described in this Section 4 in which Director Shares are to be
sold by a Director Holder, Onex and the selling Onex Group Member may require
the Director Holder to enter into agreements with the purchaser representing
and warranting that, except as specifically disclosed to the purchaser in
writing, such Director Holder at the time of the closing of such transfer, does
not have actual knowledge that any representation or warranty made by the
Corporation or any other shareholder in connection with the disposition was
untrue in any material respect when made or is untrue in any material respect
as of the closing; the liability of the selling Director Holder under such
representation and warranty shall be limited to the amount which he receives
from the sale of his Director Shares in connection with such transfer and shall
be pro rata in accordance with the number of Shares sold by the Director Holder
in relation to the Shares being sold by all holders.
4.4 PRE-EMPTIVE RIGHTS. If, prior to the time when the Corporation
becomes a Public Company, the Corporation intends to sell shares of its capital
stock or options, warrants, rights to purchase, or securities convertible into,
or exchangeable for, shares of its capital stock to any member of the Onex
Group for cash, the Corporation shall give notice thereof (the "Sale Notice")
to each of the Director Holders. The Sale Notice shall be in writing, shall
describe the securities to be offered, the price of such securities, and other
terms of the offer in reasonable detail. Each Director Holder shall have the
right, subject to applicable law and exercisable by notice to the Corporation
within 45 days after his receipt of the Sale Notice, to purchase his Pro Rata
Share (as defined in this Section 4.4) of the securities offered for the same
price per unit and on the same terms as the securities are offered to Onex and
as are described in the Sale Notice. As used in this Section 4.4, the term
"Pro Rata Share" shall mean the product of (x) the total number of securities
referred to in the Sale Notice as proposed to be sold to members of the Onex
Group and (y) a fraction, the numerator of which is the number of Director
Shares of all classes held by the Director Holder on the date the Sale Notice
is given and the denominator of which is the sum of the number of Shares of all
classes of the Corporation's stock of the same class or classes as Director
Shares outstanding on such date (including the Director Shares). Any
securities acquired by a Director Holder pursuant to this Section 4.4 shall be
subject to the terms of this Agreement. The provisions of this Section 4.4
shall not apply to the issuance of securities, with or without consideration,
to officers and employees of the Corporation and its subsidiaries or plans for
the benefit of such employees, by the Corporation from time to time and shall
not require the Corporation to offer securities under circumstances that could
require registration under the 1933 Act.
12. PIGGY-BACK REGISTRATION RIGHTS
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5.1 If the Corporation proposes to effect a registration under the 1933
Act involving an offering of securities of the same class as the Director
Shares, it shall give written notice of its intention to do so (the "Public
Offering Notice") to each Director Holder.
5.2 Upon the written request of a Director Holder (the "Director Holder's
Request") delivered to the Corporation within ten days after such Holder's
receipt of the Public Offering Notice, the Corporation shall use its best
efforts to cause the registration under the 1933 Act of the number of Director
Shares stated in the Director Holder's Request for disposition in accordance
with the intended method of disposition as stated in the Director Holder's
Request; provided, that:
(a) if, the number of Director Shares stated in the Director
Holder's request represents a greater proportion of the total number of
Director Shares owned by such Director Holder than the number of Shares
proposed to be sold and distributed by the Onex Group pursuant to the public
offering bears to the total number of Shares owned by the Onex Group, the
Corporation shall not be obligated to effect the registration of such excess
number of Director Shares of such Director Holder;
(b) if, at any time after giving such written notice of its
intention to register any of its securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Corporation determines for any reason not to effect such registration or to
delay such registration, it may, at its election, give written notice of such
determination to each Director Holder and thereupon the Corporation (i) in the
case of a determination not to effect registration, shall be relieved of its
obligation to register any Director Shares in connection with such registration
or (ii) in the case of a determination to delay registration, shall be entitled
to delay the registration of the Director Shares for the same period as the
delay in the registration of its securities;
(c) if (i) the registration involves an underwritten offering of
the securities being registered (in which case the Director Holder shall be
required to make its offering through the underwriters selected by the
Corporation and to sign the same underwriting agreement), whether or not for
sale for the account of the Corporation and (ii) the managing underwriter of
such underwritten offering advises the Corporation that the number of Shares
that members of the Onex Group, the Director Holders and other selling
stockholders wish to sell exceeds the number thereof that, in the sole
discretion of the underwriter, is the maximum number thereof that may be
included in the offering without adversely affecting the offering, then the
Corporation shall not be required to include in the offering the excess number
of Shares requested to be sold by the members of the Onex Group and each
Director Holder above such maximum number (the Shares so included to be
apportioned pro rata among the members of the Onex Group, each Director Holder
and other selling stockholders so that each member of the Onex Group, each
Director Holder and each other selling stockholder shall be entitled to have
included in the offering a number of Shares that is proportionate to his or its
respective ownership of Shares); and
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(d) the Corporation shall not be obligated to effect any
registration of Director Holder's Shares under this Section 5 incidental to the
registration of any of its securities in connection with mergers, acquisitions,
exchange offers, dividend reinvestment plans or stock options or other employee
benefit plans or incidental to the registration of any nonequity securities not
convertible into equity securities.
5.3 Except as otherwise prohibited by applicable law or regulations, the
Corporation shall pay all expenses incurred in connection with the registration
of Director Holder's Shares pursuant to this Section 5, including all
registration and filing fees, printing expenses, blue sky fees and expenses and
accountant expenses to the extent permitted by law, but not including
commissions and expenses payable to underwriters in respect of Director Shares
and the fees of any counsel or other advisers retained by Director Holders.
13. LEGEND
All certificates representing Director Shares held by any Director Holder
(and held by a transferee of Director Shares, except (i) as set forth in
Section 4, (ii) with respect to Shares transferred to Onex, and (iii) with
respect to a transferee pursuant to Section 2.2 or pursuant to a registration
statement in accordance with Section 5) shall bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and the transfer and
voting of such shares is subject to conditions specified in the
Amended and Restated Director Shareholders Agreement, dated as of
November 15, 1996, between the Corporation, Onex DHC LLC and the
holder hereof, among others, and no transfer of such shares 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."
14. INTENTIONALLY OMITTED
15. CERTAIN PROHIBITED TRANSACTIONS AND REQUIRED ACTIONS
The Corporation shall not merge, consolidate, or amalgamate with another
corporation, or sell all or substantially all of its assets to another Person,
if pursuant thereto any member of the Onex Group is to receive equity
securities as full or partial consideration for its Shares unless all Director
Holders have the right to receive the same securities in proportion to their
respective holdings of Shares.
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16. INTENTIONALLY OMITTED
17. CERTAIN DEFINITIONS
10.1 The term "BOOK VALUE PER SHARE" as of any date shall mean
the quotient obtained by dividing (X) consolidated stockholders' equity of the
Corporation and its subsidiaries as at the end of the fiscal quarter
immediately preceding the date of the event that entitled the Director Holder
to require the purchase and sale pursuant to Section 2.3 determined in
accordance with generally accepted accounting principles in effect in the
United States on June 30, 1992 by (Y) the number of shares of common stock of
the Corporation outstanding on such date; in making calculations for purposes
of clauses (X) and (Y), (i) the number of Shares into which the Subordinated
Note are convertible shall be excluded and (ii) it shall be assumed that all
Options (as defined in this Section 10.1) outstanding on the date as of which
the calculation is being made had been exercised to the extent that the
exercise price does not exceed Book Value Per Share (determined without regard
to this clause) and any purchase price for Shares payable upon such exercise
had been paid. The determination of Book Value Per Share shall be based upon
the audited (in the case of the end of the last quarter of a fiscal year) or
unaudited (in the case of the end of any of the first three quarters of a
fiscal year) balance sheet of the Corporation as at the end of the fiscal
quarter in question. Notwithstanding the foregoing, Book Value Per Share shall
be equitably adjusted by the Board of Directors of the Corporation if a stock
dividend, recapitalization or other material event occurs outside of the
ordinary course of business after the end of such fiscal quarter and before the
closing of the sale in respect of which the determination is being made. As
used in this Section 10.1, the term "Options" shall mean those options that, in
accordance with the terms of the Corporation's Option Plans, have become
exercisable as of the date of the closing of the sale.
10.2 The term "1933 ACT" shall mean the Securities Act of 1933,
as in force on the date in question, or any similar federal statute then in
force.
10.3 The term "DIRECTOR SHARES" shall mean the Shares owned at
any time by any Director Holder.
10.4 The term "MARKET PRICE PER SHARE" shall mean the average
closing price per Share on the principal securities exchange on which the
Shares are listed (or, if the Shares are not then listed on a securities
exchange, the mean between the closing bid and asked prices in the
over-the-counter market) for the ten trading days thereon immediately preceding
the closing of the sale pursuant to Section 2.4.
10.5 The term "ONEX GROUP" shall mean Onex Corporation, an
Ontario Corporation, and any Person controlled by, controlling or under common
control with, or a shareholder of, Onex Corporation. A Person ("Parent")
controls another Person if Persons controlled by it (within the meaning of this
sentence) own or have the right (by contract or otherwise) to vote or direct
the vote of securities or other interests having the power to elect a majority
of that Person's board of directors or similar governing body (other than
securities or interests having that power
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only upon the happening of a contingency that has not occurred) or to otherwise
direct the management of such Person.
10.6 The term "ONEX SHARES" shall mean the Shares owned at any
time by the Onex Group.
10.7 The term "OPTION PLANS" shall mean the Corporation's Amended
and Restated Management Option Plan (1995) and the Corporation's 1996 Stock
Option Plan, as each may be amended, restated or modified from time to time.
10.8 The term "PERSON" shall mean an individual, a partnership, a
joint venture, a corporation, a limited liability company, a trust, an
unincorporated organization, and a government or any department or agency
thereof.
10.9 The term "PRIME RATE" shall mean the prime rate announced
from time to time by NationsBank of Georgia, N.A.
10.10 The Corporation is a "PUBLIC COMPANY" if shares of its
capital stock are registered under Section 12 or if the Corporation is subject
to reporting requirements under Section 15(d) of the Securities Exchange Act of
1934 or any similar federal statute in force.
10.11 The term "SUBORDINATED NOTE" shall mean the convertible
subordinated note, dated March 31, 1995, evidencing the Corporation's
indebtedness to Onex Ohio Holdings, Inc. in the principal amount of $3,500,000.
18. TERMINATION
This Agreement shall terminate when the Onex Group ceases to hold in
the aggregate 20% of the outstanding voting capital stock of the Corporation or
when another Person (as defined in Rule 144 of the 0000 Xxx) holds in the
aggregate a greater percentage of the outstanding voting capital stock of the
Corporation than the Onex Group (excluding the Corporation) owns, whichever is
earlier. This Agreement shall terminate as to any Director Holder when that
Director Holder no longer owns any Shares.
19. EFFECTIVE DATE
This Agreement shall become effective upon the consummation of the
Offering.
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20. MISCELLANEOUS
13.1 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 telex or 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, telex numbers 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):
1. if to the Corporation:
ProSource, Inc.
000 Xxxxxxxx Xxx, 00xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
2. if to Onex or any member of the Onex Group:
Onex Corporation
000 Xxx Xxxxxx, 00xx Xxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Xxxxxx
Attention: President and
Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
3. if to any Director Holder, to him at his address as
it appears on Schedule I attached hereto or as shown on the records of the
Corporation.
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13.2 ASSIGNMENT
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 the Director Holders.
13.3 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.
13.4 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. This Agreement may only be amended
or altered by the mutual agreement of the parties hereto, such amendments or
alterations to become effective when reduced to writing and signed by Onex, the
Corporation and the holders of at least 75% of the Director Shares.
13.5 GOVERNING LAW
This Agreement and all amendments hereof and waivers and consents
hereunder shall be governed by the internal law of the State of Delaware
without regard to the conflicts of law principles thereof.
13.6 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.
13.7 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 Delaware, or, if it has or can acquire
jurisdiction, in the United States District Court for Delaware, 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
Delaware.
Page 35 of 37 pages.
13
13.8 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.
13.9 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.
ONEX DHC LLC
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Representative
PROSOURCE, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board
DIRECTOR HOLDERS
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ C. Xxx Xxxxxxx
-------------------------------------------
C. Xxx Xxxxxxx
/s/ R. Xxxxxxxx X. Styles
-------------------------------------------
R. Xxxxxxxx X. Styles
/s/ Xxxxxxx Xxxxxx
-------------------------------------------
Xxxxxxx Xxxxxx
Page 36 of 37 pages.
14
Schedule I
List of Director Holders
Name Addresses Shares
---- --------- ------
Xxxxxxx Xxxxxxxxx 000 Xxxxx Xxxx Xxxxx 18,200
Xxxxxxxxx, XX 00000
Advest, Inc., Custodian f/b/o 0000 Xxxxxxxxxx Xxxx 4,500
C. Xxx Xxxxxxx Xxxxxx, Xxxx 00000
R. Xxxxxxxx X. Styles 0 Xxxx Xxxxx Xxxx 0,000
Xxxxxxxxxx, Xxxxxx X0X XX0
Xxxxxxx Xxxxxx 0 Xxxx Xxxxx Xxxxxx 00,000
Xxxxxx, XX 00000
Page 37 of 37 pages.