<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 20, 2000
REGISTRATION NO. 333-94321
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VIASYSTEMS GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 3672 75-2668620
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
<TABLE>
<S> <C>
DAVID M. SINDELAR
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
VIASYSTEMS GROUP, INC. VIASYSTEMS GROUP, INC.
101 SOUTH HANLEY ROAD, SUITE 400 101 SOUTH HANLEY ROAD, SUITE 400
ST. LOUIS, MISSOURI 63105 ST. LOUIS, MISSOURI 63105
(314) 727-2087 (314) 727-2087
(Address, Including Zip Code, and Telephone (Name, Address, Including Zip Code, and
Number, Including Area Code, of Registrant's Telephone Number, Including Area Code, of
Principal Executive Offices) Agent for Service)
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Copies to:
BRIAN W. DUWE, ESQ.
R. SCOTT COHEN, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM
WEIL, GOTSHAL & MANGES LLP (ILLINOIS)
100 CRESCENT COURT, SUITE 1300 333 WEST WACKER DRIVE, SUITE 2100
DALLAS, TEXAS 75201 CHICAGO, ILLINOIS 60606
(214) 746-7700 (312) 407-0700
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8 OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8, MAY
DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth fees payable to the Securities and Exchange
Commission and the National Association of Securities Dealers, Inc., and other
estimated expenses expected to be incurred in connection with the issuance and
distribution of securities being registered. All fees and expenses shall be paid
by the Registrant.
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<S> <C>
Securities and Exchange Commission Registration Fee......... $ 230,736
NASD Fee.................................................... 30,500
NYSE Listing Fee............................................ 575,000
Printing and Engraving Expenses............................. 2,000,000
Accounting Fees and Expenses................................ 500,000
Legal Fees and Expenses..................................... 1,000,000
Transfer Agent Fees and Expenses............................ 25,000
Miscellaneous............................................... 138,764
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Total............................................. $4,500,000
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</TABLE>
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a corporation may indemnify any person, including officers
and directors, who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation) by reason of the fact that such person was an officer, director,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
officer, director, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, for criminal proceedings, had no reasonable cause to believe that his
conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses which such officer or director actually or reasonably
incurred.
Article Ninth of the Registrant's Amended and Restated Certificate of
Incorporation provides that the Registrant shall indemnify each person who is or
was an officer or director of the Registrant to the fullest extent permitted
under the DGCL (including the right to be paid expenses incurred in
investigating or defending any such proceeding in advance of its final
disposition).
Article Tenth of the Registrant's Amended and Restated Certificate of
Incorporation provides that the Registrant's directors shall not be personally
liable to the Registrant and its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit.
The Registrant has purchased a directors' and officers' liability insurance
policy.
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ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Note: All of the following share information gives effect to a 1 for 6
reverse stock split to be effected by the Registrant prior to the
offering.
(a) In March 1997, the Registrant issued 33,333 shares of its common stock,
$0.01 par value ("common stock"), to two of its directors for an aggregate
purchase price of $200,000. The securities were issued in private placements in
reliance on Section 4(2) of the Securities Act.
(b) In May 1997, the Registrant issued 16,666 shares of its common stock to
one of its directors upon exercise of a stock option for an exercise price of
$6.00 per share. The securities were issued in a transaction exempt from Section
5 of the Securities Act pursuant to Rule 701 under the Securities Act.
(c) In June 1997, the Registrant issued 14,166,666 shares of its common
stock to the holders of its series A preferred stock in exchange for all of its
outstanding shares of series A preferred stock. The securities were issued in
reliance on Section 3(a)(9) of the Securities Act.
(d) In June 1997, the Registrant issued 23,333,333 shares of its common
stock to the holders of the series C preferred stock in exchange for all of
their outstanding shares of series C preferred stock in connection with the
merger of Chips Holdings, Inc. with the Registrant. The securities were issued
in reliance on Section 3(a)(9) of the Securities Act.
(e) In June 1997, the Registrant issued 195,833 shares of its common stock
to seven directors, officers and consultants of the Registrant for an aggregate
purchase price of $1,175,000. The securities were issued in private placements
in reliance on Section 4(2) of the Securities Act.
(f) In June 1997, the Registrant issued 5,122,916 shares of its class A
common stock, $.01 par value ("class A common stock"), to 11 of its officers for
an aggregate purchase price of $307,374.99. The securities were issued in a
private placement in reliance on Section 4(2) of the Securities Act.
(g) In April 1998, the Registrant issued 7,663,976 shares of its common
stock to two of its existing stockholders, an individual and a limited
partnership for an aggregate purchase price of $52,500,250. The securities were
issued in private placements in reliance on Section 4(2) of the Securities Act.
(h) In May 1998, the Registrant issued 56,921 shares of its class A common
stock to three of its officers for an aggregate purchase price of $3,415.22. The
securities were issued in a private placement in reliance on Section 4(2) of the
Securities Act.
In May 1998, the Registrant issued 990,061 shares of its class A series II
common stock, par value $.01 per share ("class A series II common stock") to 11
of its officers for an aggregate purchase price of $59,403.70. The securities
were issued in a private placement in reliance on Section 4(2) of the Securities
Act.
(i) In October 1998, the Registrant issued 2,500 shares of its common stock
to an employee upon exercise of a stock option for an exercise price of $6.00
per share. The securities were issued in a transaction exempt from Section 5 of
the Securities Act pursuant to Rule 701 under the Securities Act.
(j) In November 1998, the Registrant issued 1,243,833 shares of its class A
series II common stock to one of its officers for a purchase price of
$74,630.00. The securities were issued in a private placement in reliance on
Section 4(2) of the Securities Act.
(k) In December 1998, the Registrant issued 2,500 shares of its common
stock to an employee upon exercise of a stock option for an exercise price of
$6.00 per share. The securities were issued in a transaction exempt from Section
5 of the Securities Act pursuant to Rule 701 under the Securities Act.
(l) In February 1999, the Registrant issued 2,500 shares of its common
stock to an employee upon exercise of a stock option for an exercise price of
$6.00 per share. The securities were issued in a transaction exempt from Section
5 of the Securities Act pursuant to Rule 701 under the Securities Act.
II-2
<PAGE> 4
(m) In April 1999, the Registrant issued 273,224 shares of its common stock
to the two former stockholders of PAGG Corporation, which the Registrant
acquired in a stock purchase transaction in April 1999, as partial consideration
for the purchase price of such acquisition for an aggregate amount of
$2,000,000. The securities were issued in a private placement in reliance on
Section 4(2) of the Securities Act.
(n) In July 1999, the Registrant issued 27,322,404 shares of its common
stock to HMTF/Viasystems Investments, LLC for $200,000,000 in cash. The
securities were issued in a private placement in reliance on Section 4(2) of the
Securities Act.
(o) In August 1999, the Registrant issued 3,957,751 shares of its class A
series II common stock to 20 employees and their family members, including
trusts for the benefit of those family members for a purchase price of
$237,465.07. The securities were issued in a private placement in reliance on
Section 4(2) of the Securities Act.
(p) In September 1999, the Registrant issued 1,666 shares of its common
stock to an employee upon exercise of a stock option for an exercise price of
$7.32 per share. The securities were issued in a transaction exempt from Section
5 of the Securities Act pursuant to Rule 701 under the Securities Act.
(q) In October 1999, the Registrant issued 3,333 shares of its common stock
to an employee upon exercise of a stock option for an exercise price of $7.32
per share. The securities were issued in a transaction exempt from Section 5 of
the Securities Act pursuant to Rule 701 under the Securities Act.
The issuances of the securities described in Sections (a), (b), (e), (f),
(g), (h), (j), (m), (n) and (o) above were deemed to be exempt from registration
under the Securities Act of 1933, as amended, in reliance on Section 4(2) of the
Securities Act as transactions by an issuer not involving any public offering.
The issuances of the securities described in (i), (k), (l), (p) and (q) above
were deemed to be exempt from registration under the Securities Act in reliance
on Rule 701 under the Securities Act as transactions by an issuer in
compensatory circumstances. The recipients of the above-described securities
represented their intention to acquire the securities for investment only and
not with a view for distribution thereof. Appropriate legends were affixed to
the stock certificates issued in such transactions. All recipients had adequate
access, through employment or other relationships, to information about
Viasystems.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this registration
statement:
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EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
1.1 -- Form of Underwriting Agreement(1)
2.1 -- Securities Purchase Agreement, dated as of October 1,
1996, among Viasystems Group, Inc. (formerly known as
Circo Craft Holding Company) and certain Purchasers (as
defined therein)(3)
2.2 -- Acquisition Agreement, dated as of November 26, 1996,
among Lucent Technologies Inc., Viasystems Group, Inc.
(formerly known as Circo Technologies Group, Inc.)and
Viasystems, Inc. (formerly known as Circo Craft
Technologies, Inc.)(3)
2.3 -- Agreement and Plan of Merger, dated as of April 11, 1997
by and among Viasystems Group, Inc., HMTF Acquisition,
L.P., HMTF U.K. Acquisition Company, Hicks, Muse, Tate &
Furst Equity Fund III and HM3 Coinvestors, L.P.(3)
2.4 -- Agreement and Plan of Merger, dated as of June 5, 1997,
by and between Viasystems Group, Inc. and Chips Holdings,
Inc.(3)
2.5 -- Agreement and Plan of Merger, dated as of June 6, 1997,
by and between Viasystems, Inc. and Chips Acquisition,
Inc.(3)
</TABLE>
II-3
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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2.6 -- Acquisition Agreement, dated as of January 29, 1998,
among Viasystems B.V. and Print Service Holding N.V.(6)
2.7 -- Sale and Purchase Agreement, dated as of February 11,
1998, between Viasystems, S.r.l., as purchaser, European
Circuits SA and individuals named therein, as sellers(6)
2.8 -- Share Purchase Agreement, dated August 1, 1999, among
Termbray Electronics (B.V.I.) Limited, Termbray
Industries International (Holdings) Limited, Viasystems,
Inc. and Viasystems Group, Inc.(8)
2.9 -- Form of Stock Purchase Agreement, dated March , 2000,
by and among International Wire Group, Inc., Wirekraft
Industries, Inc. and Viasystems Group, Inc.(1)
2.10 -- Form of Contract Manufacturing Agreement, dated March ,
2000, by and between Mommers Print Service BV and
Viasystems Sweden AB(1)
2.11 -- Form of Contract Manufacturing Agreement, dated March ,
2000, by and between Mommers Print Service BV and
Viasystems Tyneside Limited(1)
2.12 -- Form of Supply Agreement, dated as of March , 2000, by
and between International Wire Group, Inc. and Wirekraft
Industries, Inc.(1)
3.1 -- Form of Amended and Restated Certificate of Incorporation
of Viasystems Group, Inc.(1)
3.2 -- Form of Amended and Restated Bylaws of Viasystems Group,
Inc.(1)
4.1 -- Third Amended and Restated Credit Agreement, dated August
5, 1999, among Viasystems Group, Inc., Viasystems, Inc.,
the Foreign Subsidiary Borrowers parties thereto, the
lenders party thereto, The Chase Manhattan Bank of
Canada, Chase Manhattan International Limited, The Chase
Manhattan Bank and Chase Securities Inc.(8)
4.2 -- First Amendment, dated February 4, 2000, to the Third
Amended and Restated Credit Agreement, dated August 5,
1999, among Viasystems Group, Inc., Viasystems, Inc., the
Foreign Subsidiary Borrowers parties thereto, the lenders
party thereto, The Chase Manhattan Bank of Canada, Chase
Manhattan International Limited, The Chase Manhattan Bank
and Chase Securities Inc.(*)
4.3 -- Indenture, dated as of June 6, 1997, by and between
Viasystems, Inc. and The Bank of New York, as Trustee(3)
4.4 -- Form of New Note (included in Exhibit 4.3, Exhibit B)
4.5 -- Indenture, dated as of February 17, 1998, by and between
Viasystems, Inc. and The Bank of New York, as Trustee(6)
4.6 -- Form of Exchange Note (included in Exhibit 4.5, Exhibit
B)
5.1 -- Opinion of Legality of Weil, Gotshal & Manges LLP(2)
10.1 -- Supply Agreement dated as of November 26, 1996, by and
between Lucent Technologies Inc. and Circo Craft
Technologies, Inc. (confidential treatment was granted
with respect to certain portions of this exhibit)(5)
10.2 -- Amended and Restated Viasystems Group, Inc. 1997 Stock
Option Plan(3)
10.3 -- Form of Amended and Restated Stock Option Agreement dated
as of March , 2000 between Viasystems Group, Inc. and
James N. Mills(1)
10.4 -- Form of Amended and Restated Stock Option Agreement dated
as of March , 2000 between Viasystems Group, Inc. and
David M. Sindelar(1)
</TABLE>
II-4
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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10.5 -- Viasystems Group, Inc. Stock Option Agreement, dated as
of February 4, 1997, with Richard W. Vieser(4)
10.6 -- Viasystems Group, Inc. Stock Option Agreement, dated as
of February 4, 1997, with Kenneth F. Yontz(4)
10.7 -- Third Amended and Restated Monitoring and Oversight
Agreement, dated as of June 6, 1997, among Viasystems
Group, Inc., Viasystems, Inc., Viasystems Technologies
Corp., Circo Craft Co. Inc., Viasystems International,
Inc., PCB Acquisition Limited, PCB Investments PLC, Chips
Acquisition Limited and Hicks, Muse & Co. Partners,
L.P.(4)
10.8 -- Third Amended and Restated Financial Advisory Agreement
dated as of June 6, 1997, among Viasystems Group, Inc.,
Viasystems, Inc., Viasystems Technologies Corp., Circo
Craft Co. Inc., Viasystems International, Inc., PCB
Acquisition Limited, PCB Investments PLC, Chips
Acquisition Limited and Hicks, Muse & Co. Partners,
L.P.(4)
10.9 -- Amended and Restated Executive Employment Agreement,
dated as of February 16, 2000, by and among Viasystems
Group, Inc., Viasystems, Inc., Viasystems Technologies
Corp. LLC and James N. Mills(*)
10.10 -- Amended and Restated Executive Employment Agreement,
dated as of February 16, 2000, by and among Viasystems
Group, Inc., Viasystems, Inc., Viasystems Technologies
Corp. LLC and David M. Sindelar(*)
10.11 -- Agreement, dated as of December 30, 1996, between
Viasystems, Inc. (formerly known as Circo Craft
Technologies, Inc.) and the Communication Workers of
America(4)
10.12 -- Environmental, Health and Safety Agreement, dated as of
November 26, 1996, between Lucent Technologies and
Viasystems, Inc. (formerly known as Circo Craft
Technologies, Inc.)(3)
10.13 -- Amended and Restated Executive Employment Agreement,
dated as of February 16, 2000, by and among Viasystems
Group, Inc., Viasystems, Inc. and Viasystems Technologies
Corp. LLC and Timothy L. Conlon(*)
10.14 -- Amended and Restated Stockholders Agreement, dated as of
June 6, 1997, among Viasystems Group, Inc. and certain
stockholders of Viasystems Group, Inc.*
10.15 -- First Amendment to Amended and Restated Stockholders
Agreement, dated as of November 4, 1998, among Viasystems
Group, Inc. and certain stockholders of Viasystems Group,
Inc.*
10.16 -- Parts Sourcing Contract, dated as of December 2, 1994,
among Wirekraft Industries, Inc. and General Electric
Company (Confidential treatment has been granted with
respect to certain portions of this exhibit.)(9)
10.17 -- Agreement dated as of December 29, 1995 among Wirekraft
Industries, Inc. and General Electric Company
(Confidential treatment has been granted with respect to
certain portions of this exhibit.)(10)
10.18 -- Viasystems Group, Inc. 1999 Key Management Incentive
Compensation Plan*
21.1 -- Subsidiaries of Viasystems Group, Inc.*
23.1 -- Consent of Weil, Gotshal & Manges LLP (included in the
opinion filed as Exhibit 5.1)
23.2 -- Consent of PricewaterhouseCoopers LLP*
</TABLE>
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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23.3 -- Consent of PricewaterhouseCoopers*
24.1 -- Power of Attorney*
27.1 -- Financial Data Schedule*
99.1 -- Consent of Director Nominee (Thomas H. O'Brien)*
99.2 -- Consent of Director Nominee (Alex J. Mandl)*
</TABLE>
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* Previously filed.
(1) Filed herewith.
(2) To be filed by amendment.
(3) Incorporated by reference to the Registration Statement of Viasystems, Inc.
on Form S-1. (File No. 333-29727).
(4) Incorporated by reference to Amendment No. 1 to the Registration Statement
of Viasystems, Inc. on Form S-1.
(5) Incorporated by reference to Amendment No. 2 to the Registration Statement
of Viasystems, Inc. on Form S-1.
(6) Incorporated by reference to Viasystems, Inc.'s 1997 Annual Report on Form
10-K.
(7) Incorporated by reference to Viasystems, Inc.'s 1998 Annual Report on Form
10-K.
(8) Incorporated by reference to the Form 8-K/A of Viasystems, Inc. filed on
October 15, 1999.
(9) Incorporated by reference to the Registration Statement of International
Wire Group, Inc. on Form S-1 (File No. 333-93970).
(10) Incorporated by reference to International Wire Group, Inc.'s 1995 Annual
Report on Form 10-K. (b) FINANCIAL STATEMENT SCHEDULE
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PAGE NUMBER DESCRIPTION
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Report of Independent Public Accountants on Financial
S-1 Statement Schedule
S-2 Schedule II -- Valuation and Qualifying Accounts
</TABLE>
All other schedules are omitted because the required information is not
present or is not present in the amounts sufficient to require submission of the
schedules, or because the information required is included in the financial
statements and notes thereto.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE> 8
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in St. Louis, Missouri, on March 20,
2000.
VIASYSTEMS GROUP, INC.
By: /s/ DAVID M. SINDELAR
-----------------------------------
David M. Sindelar
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
* Chairman of the Board and March 20, 2000
- ----------------------------------------------------- Chief Executive Officer
James N. Mills (Principal Executive
Officer)
* President, Chief Operating March 20, 2000
- ----------------------------------------------------- Officer and a Director
Timothy L. Conlon
/s/ DAVID M. SINDELAR Senior Vice President and March 20, 2000
- ----------------------------------------------------- Chief Financial Officer
David M. Sindelar (Principal Financial and
Accounting Officer)
* Director March 20, 2000
- -----------------------------------------------------
Jack D. Furst
* Director March 20, 2000
- -----------------------------------------------------
Kenneth F. Yontz
* Director March 20, 2000
- -----------------------------------------------------
Thomas O. Hicks
* Director March 20, 2000
- -----------------------------------------------------
Richard W. Vieser
</TABLE>
*By: /s/ DAVID M. SINDELAR
-------------------------------
David M. Sindelar,
Attorney-in-fact
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<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
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<C> <S> <C>
1.1 -- Form of Underwriting Agreement(1)
2.1 -- Securities Purchase Agreement, dated as of October 1,
1996, among Viasystems Group, Inc. (formerly known as
Circo Craft Holding Company) and certain Purchasers (as
defined therein)(3)
2.2 -- Acquisition Agreement, dated as of November 26, 1996,
among Lucent Technologies Inc., Viasystems Group, Inc.
(formerly known as Circo Technologies Group, Inc.)and
Viasystems, Inc. (formerly known as Circo Craft
Technologies, Inc.)(3)
2.3 -- Agreement and Plan of Merger, dated as of April 11, 1997
by and among Viasystems Group, Inc., HMTF Acquisition,
L.P., HMTF U.K. Acquisition Company, Hicks, Muse, Tate &
Furst Equity Fund III and HM3 Coinvestors, L.P.(3)
2.4 -- Agreement and Plan of Merger, dated as of June 5, 1997,
by and between Viasystems Group, Inc. and Chips Holdings,
Inc.(3)
2.5 -- Agreement and Plan of Merger, dated as of June 6, 1997,
by and between Viasystems, Inc. and Chips Acquisition,
Inc.(3)
2.6 -- Acquisition Agreement, dated as of January 29, 1998,
among Viasystems B.V. and Print Service Holding N.V.(6)
2.7 -- Sale and Purchase Agreement, dated as of February 11,
1998, between Viasystems, S.r.l., as purchaser, European
Circuits SA and individuals named therein, as sellers(6)
2.8 -- Share Purchase Agreement, dated August 1, 1999, among
Termbray Electronics (B.V.I.) Limited, Termbray
Industries International (Holdings) Limited, Viasystems,
Inc. and Viasystems Group, Inc.(8)
2.9 -- Form of Stock Purchase Agreement, dated March , 2000,
by and among International Wire Group, Inc., Wirekraft
Industries, Inc. and Viasystems Group, Inc.(1)
2.10 -- Form of Contract Manufacturing Agreement, dated March ,
2000, by and between Mommers Print Service BV and
Viasystems Sweden AB(1)
2.11 -- Form of Contract Manufacturing Agreement, dated March ,
2000, by and between Mommers Print Service BV and
Viasystems Tyneside Limited(1)
2.12 -- Form of Supply Agreement, dated as of March , 2000, by
and between International Wire Group, Inc. and Wirekraft
Industries, Inc.(1)
3.1 -- Form of Amended and Restated Certificate of Incorporation
of Viasystems Group, Inc.(1)
3.2 -- Form of Amended and Restated Bylaws of Viasystems Group,
Inc.(1)
4.1 -- Third Amended and Restated Credit Agreement, dated August
5, 1999, among Viasystems Group, Inc., Viasystems, Inc.,
the Foreign Subsidiary Borrowers parties thereto, the
lenders party thereto, The Chase Manhattan Bank of
Canada, Chase Manhattan International Limited, The Chase
Manhattan Bank and Chase Securities Inc.(8)
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
4.2 -- First Amendment, dated February 4, 2000, to the Third
Amended and Restated Credit Agreement, dated August 5,
1999, among Viasystems Group, Inc., Viasystems, Inc., the
Foreign Subsidiary Borrowers parties thereto, the lenders
party thereto, The Chase Manhattan Bank of Canada, Chase
Manhattan International Limited, The Chase Manhattan Bank
and Chase Securities Inc.(*)
4.3 -- Indenture, dated as of June 6, 1997, by and between
Viasystems, Inc. and The Bank of New York, as Trustee(3)
4.4 -- Form of New Note (included in Exhibit 4.3, Exhibit B)
4.5 -- Indenture, dated as of February 17, 1998, by and between
Viasystems, Inc. and The Bank of New York, as Trustee(6)
4.6 -- Form of Exchange Note (included in Exhibit 4.5, Exhibit
B)
5.1 -- Opinion of Legality of Weil, Gotshal & Manges LLP(2)
10.1 -- Supply Agreement dated as of November 26, 1996, by and
between Lucent Technologies Inc. and Circo Craft
Technologies, Inc. (confidential treatment was granted
with respect to certain portions of this exhibit)(5)
10.2 -- Amended and Restated Viasystems Group, Inc. 1997 Stock
Option Plan(3)
10.3 -- Form of Amended and Restated Stock Option Agreement dated
as of March , 2000 between Viasystems Group, Inc. and
James N. Mills(1)
10.4 -- Form of Amended and Restated Stock Option Agreement dated
as of March , 2000 between Viasystems Group, Inc. and
David M. Sindelar(1)
10.5 -- Viasystems Group, Inc. Stock Option Agreement, dated as
of February 4, 1997, with Richard W. Vieser(4)
10.6 -- Viasystems Group, Inc. Stock Option Agreement, dated as
of February 4, 1997, with Kenneth F. Yontz(4)
10.7 -- Third Amended and Restated Monitoring and Oversight
Agreement, dated as of June 6, 1997, among Viasystems
Group, Inc., Viasystems, Inc., Viasystems Technologies
Corp., Circo Craft Co. Inc., Viasystems International,
Inc., PCB Acquisition Limited, PCB Investments PLC, Chips
Acquisition Limited and Hicks, Muse & Co. Partners,
L.P.(4)
10.8 -- Third Amended and Restated Financial Advisory Agreement
dated as of June 6, 1997, among Viasystems Group, Inc.,
Viasystems, Inc., Viasystems Technologies Corp., Circo
Craft Co. Inc., Viasystems International, Inc., PCB
Acquisition Limited, PCB Investments PLC, Chips
Acquisition Limited and Hicks, Muse & Co. Partners,
L.P.(4)
10.9 -- Amended and Restated Executive Employment Agreement,
dated as of February 16, 2000, by and among Viasystems
Group, Inc., Viasystems, Inc., Viasystems Technologies
Corp. LLC and James N. Mills(*)
10.10 -- Amended and Restated Executive Employment Agreement,
dated as of February 16, 2000, by and among Viasystems
Group, Inc., Viasystems, Inc., Viasystems Technologies
Corp. LLC and David M. Sindelar(*)
10.11 -- Agreement, dated as of December 30, 1996, between
Viasystems, Inc. (formerly known as Circo Craft
Technologies, Inc.) and the Communication Workers of
America(4)
10.12 -- Environmental, Health and Safety Agreement, dated as of
November 26, 1996, between Lucent Technologies and
Viasystems, Inc. (formerly known as Circo Craft
Technologies, Inc.)(3)
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
10.13 -- Amended and Restated Executive Employment Agreement,
dated as of February 16, 2000, by and among Viasystems
Group, Inc., Viasystems, Inc. and Viasystems Technologies
Corp. LLC and Timothy L. Conlon(*)
10.14 -- Amended and Restated Stockholders Agreement, dated as of
June 6, 1997, among Viasystems Group, Inc. and certain
stockholders of Viasystems Group, Inc.*
10.15 -- First Amendment to Amended and Restated Stockholders
Agreement, dated as of November 4, 1998, among Viasystems
Group, Inc. and certain stockholders of Viasystems Group,
Inc.*
10.16 -- Parts Sourcing Contract, dated as of December 2, 1994,
among Wirekraft Industries, Inc. and General Electric
Company (Confidential treatment has been granted with
respect to certain portions of this exhibit.)(9)
10.17 -- Agreement dated as of December 29, 1995 among Wirekraft
Industries, Inc. and General Electric Company
(Confidential treatment has been granted with respect to
certain portions of this exhibit.)(10)
10.18 -- Viasystems Group, Inc. 1999 Key Management Incentive
Compensation Plan*
21.1 -- Subsidiaries of Viasystems Group, Inc.*
23.1 -- Consent of Weil, Gotshal & Manges LLP (included in the
opinion filed as Exhibit 5.1)
23.2 -- Consent of PricewaterhouseCoopers LLP*
23.3 -- Consent of PricewaterhouseCoopers*
24.1 -- Power of Attorney*
27.1 -- Financial Data Schedule*
99.1 -- Consent of Director Nominee (Thomas H. O'Brien)*
99.2 -- Consent of Director Nominee (Alex J. Mandl)*
</TABLE>
- ---------------
* Previously filed.
(1) Filed herewith.
(2) To be filed by amendment.
(3) Incorporated by reference to the Registration Statement of Viasystems, Inc.
on Form S-1. (File No. 333-29727).
(4) Incorporated by reference to Amendment No. 1 to the Registration Statement
of Viasystems, Inc. on Form S-1.
(5) Incorporated by reference to Amendment No. 2 to the Registration Statement
of Viasystems, Inc. on Form S-1.
(6) Incorporated by reference to Viasystems, Inc.'s 1997 Annual Report on Form
10-K.
(7) Incorporated by reference to Viasystems, Inc.'s 1998 Annual Report on Form
10-K.
(8) Incorporated by reference to the Form 8-K/A of Viasystems, Inc. filed on
October 15, 1999.
(9) Incorporated by reference to the Registration Statement of International
Wire Group, Inc. on Form S-1 (File No. 333-93970).
(10) Incorporated by reference to International Wire Group, Inc.'s 1995 Annual
Report on Form 10-K.
<PAGE> 1
EXHIBIT 1.1
40,000,000 SHARES
VIASYSTEMS GROUP, INC.
COMMON STOCK, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
, 2000
<PAGE> 2
, 2000
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Chase Securities Inc.
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
SoundView Technology Group, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. International Limited
Credit Suisse First Boston (Europe) Limited
Chase Securities Inc.
Bank of America International Limited
Bear, Stearns International Limited
Deutsche Bank Securities Inc.
Goldman Sachs International
Salomon Brothers International Limited
SoundView Technology Group, Inc.
c/o Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England
Dear Sirs and Mesdames:
Viasystems Group, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters (as defined
below) 40,000,000 shares of its common stock, $.01 par value per share (the
"FIRM SHARES").
It is understood that, subject to the conditions hereinafter
stated, 32,000,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the
several U.S. Underwriters named in Schedule I hereto (the "U.S. UNDERWRITERS")
in connection with the offering and sale of such U.S. Firm Shares in the United
States and Canada to United States and Canadian Persons (as such terms are
defined
1
<PAGE> 3
in the Agreement Between U.S. and International Underwriters of even date
herewith), and 8,000,000 Firm Shares (the "INTERNATIONAL SHARES") will be sold
to the several International Underwriters named in Schedule II hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Morgan Stanley & Co. Incorporated, Credit
Suisse First Boston Corporation, Chase Securities Inc., Banc of America
Securities LLC, Bear, Stearns & Co. Inc., Deutsche Bank Securities Inc.,
Goldman, Sachs & Co., Salomon Smith Barney Inc. and SoundView Technology Group,
Inc. shall act as representatives (the "U.S. REPRESENTATIVES") of the several
U.S. Underwriters, and Morgan Stanley & Co. International Limited, Credit Suisse
First Boston (Europe) Limited, Chase Securities Inc., Bank of America
International Limited, Bear, Stearns International Limited, Deutsche Bank
Securities Inc., Goldman Sachs International, Salomon Brothers International
Limited and SoundView Technology Group, Inc. shall act as representatives (the
"INTERNATIONAL REPRESENTATIVES") of the several International Underwriters. The
U.S. Underwriters and the International Underwriters are hereinafter
collectively referred to as the Underwriters.
The Company also proposes to issue and sell to the several
U.S. Underwriters not more than an additional 6,000,000 shares of its common
stock, $.01 par value per share (the "ADDITIONAL SHARES"), if and to the extent
that the U.S. Representatives shall have determined to exercise, on behalf of
the U.S. Underwriters, the right to purchase such shares of common stock granted
to the U.S. Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES". The shares of
common stock, $.01 par value per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the " COMMON STOCK".
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement relating to the Shares.
The registration statement contains two prospectuses to be used in connection
with the offering and sale of the Shares: the U.S. prospectus, to be used in
connection with the offering and sale of Shares in the United States and Canada
to United States and Canadian Persons, and the international prospectus, to be
used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front cover page. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES Act"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "PROSPECTUS". If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. As used herein, "SIGNIFICANT SUBSIDIARIES" shall mean those
subsidiaries of the Company named in Schedule III hereto, and references to
subsidiaries of the Company shall include the Significant Subsidiaries.
2
<PAGE> 4
Morgan Stanley & Co. Incorporated ("MORGAN STANLEY") has
agreed to reserve a portion of the Shares to be purchased by it under this
Agreement for sale to the Company's directors, officers, employees and business
associates and other parties related to the Company (collectively,
"PARTICIPANTS"), as set forth in the Prospectus under the heading "Underwriters"
(the "DIRECTED SHARE PROGRAM"). The Shares to be sold by Morgan Stanley pursuant
to the Directed Share Program are referred to hereinafter as the "DIRECTED
SHARES". Any Directed Shares not orally confirmed for purchase by any
Participants by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(1) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(2) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for use
therein.
(3) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(4) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares
3
<PAGE> 5
of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly
by the Company or another wholly-owned subsidiary of the Company, free and clear
of all liens, encumbrances, equities or claims, except for those arising under
the [Senior Credit Facility] (as defined and described in the Prospectus).
(5) This Agreement has been duly authorized, executed and
delivered by the Company.
(6) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(7) The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly issued, fully
paid and non-assessable; except as set forth in the Prospectus, neither the
Company nor any subsidiary has any outstanding options or warrants to purchase,
or any preemptive rights or other rights to subscribe for or purchase, any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any such options, warrants,
rights, convertible securities or obligations; and all outstanding shares of
capital stock and options, warrants and other rights to acquire capital stock
have been issued in compliance with the registration and qualification
provisions of all applicable securities laws and were not issued in violation of
any preemptive rights, rights of first refusal or other similar rights that have
not been waived.
(8) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights.
(9) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except such
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(10) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
4
<PAGE> 6
(11) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(12) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Securities Act, complied when so filed
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(13) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(14) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(15) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(16) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect
to any securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration Statement.
(17) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of Cuba
or with any person or affiliate located in Cuba.
5
<PAGE> 7
(18) The statements set forth in the Prospectus under the
caption "Description of Capital Stock," insofar as they purport to constitute a
summary of the terms of the Common Stock and the Company's series B preferred
stock, $.01 par value per share, and under the captions "The Transactions,"
"Business--Sales and Marketing," "Certain Transactions," "Description of Certain
Indebtedness," "Shares Eligible for Future Sale," "Important United States
Federal Tax Considerations for Non-United States Holders" and "Underwriters,"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate and complete in all material respects.
(19) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, (1) the
Company and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction not
in the ordinary course of business; (2) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary and customary
dividends; and (3) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries, except in
each case as described in the Prospectus.
(20) PricewaterhouseCoopers LLP, who have expressed their
opinion with respect to the consolidated financial statements and schedules of
the Company and PricewaterhouseCoopers, who have expressed their opinion with
respect to the consolidated financial statements of Termbray Industries
International (Holdings) Limited, in each case as filed with the Commission as a
part of the Registration Statement and included in the Prospectus and in the
Registration Statement, are independent accountants as required by the
Securities Act, the Exchange Act (as defined herein) and the rules and
regulations of the Commission under the Securities Act and the Exchange Act.
(21) The consolidated financial statements and schedules of
the Company and its subsidiaries, and the related notes thereto, included in the
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as of the respective
dates of such financial statements and schedules, and the results of operations
and changes in financial position of the Company and its subsidiaries for the
respective periods covered thereby. Such statements, schedules and related notes
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis as certified by the independent accountants named
in subsection 1(t). No other financial statements or schedules are required to
be included in the Registration Statement. The pro forma financial information
and statistical data included in the Prospectus have been prepared on a basis
consistent with the audited historical financial statements of the Company and
Wirekraft Industries, Inc. and the unaudited historical financial statements of
the [Transferred Operations], Termbray Industries International (Holdings)
Limited and PAGG Corporation and include all adjustments to the historical
financial statements required by Rule 11-02 of Regulation S-X to reflect the
historical and proposed transactions and events described in the Registration
Statement and the Prospectus and utilize assumptions made on a reasonable basis
to give effect to the historical and proposed transactions and events described
in the Registration Statement and the Prospectus.
6
<PAGE> 8
(22) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to the
Registration Statement by the Securities Act or by the rules and regulations of
the Commission thereunder which have not been described or filed as required.
The descriptions of the contracts so described in the Prospectus are accurate;
all such contracts are in full force and effect on the date hereof; and neither
the Company nor any of its subsidiaries, nor to the best of the Company's
knowledge, any other party is in breach of or default under any of such
contracts.
(23) The Company and its subsidiaries have filed all necessary
federal, national, state, provincial, foreign and other income and franchise tax
returns and have paid all taxes shown as due thereon and there is no tax
deficiency that has been or, to the Company's knowledge, might be asserted or
threatened against the Company or its subsidiaries which could materially and
adversely affect the business, operations or properties of the Company and its
subsidiaries; and all tax liabilities are adequately provided for on the books
of the Company.
(24) Neither the Company nor any of its subsidiaries has at
any time during the last five years (i) made any unlawful contribution to any
candidate for public office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
(25) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Shares to
facilitate the sale or resale of the Common Stock.
(26) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the Company
and its subsidiaries, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as described in the
Prospectus.
(27) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently employed by
them in connection with the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
7
<PAGE> 9
decision, ruling or finding, would have a material adverse affect on the Company
and its subsidiaries, taken as a whole.
(28) No material labor dispute with the employees of the
Company or any of its subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent; and the Company is
not aware of any existing, threatened or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors that
could have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(29) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any of its subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(30) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(31) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(32) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of the
Company or any of its subsidiaries will be, or have been, affected by the Year
2000 Problem (that is, any significant risk that computer hardware or software
applications used by the Company and its subsidiaries will not, in the case of
dates or time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to January
1, 2000); as a result of such review, (i) the Company has no reason to believe,
and does not believe, that (A) there are any issues related to the Company's
preparedness to address, or experience with, the Year 2000 Problem that are of a
character required to be described or referred to in the Registration Statement
or Prospectus which have not been accurately described in the Registration
Statement or Prospectus and (B) the Year
8
<PAGE> 10
2000 Problem will have, or has had, a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, or will result, or has resulted,
in any material loss or interference with the business or operations of the
Company and its subsidiaries, taken as a whole; and (ii) the Company reasonably
believes, after due inquiry, that the suppliers, vendors, customers or other
material third parties used or served by the Company and such subsidiaries have
addressed the Year 2000 Problem, except to the extent that a failure to address
the Year 2000 Problem by any supplier, vendor, customer or material third party
would not have, and has not had, a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or operations of the
Company and its subsidiaries, taken as a whole.
(33) Each of the Share Sale and Purchase Agreement, dated
January 25, 2000, between the Company and Marconi Communications, Inc., the
Stock Purchase Agreement, dated March [o], 1999, between the Company,
International Wire Group, Inc., and Wirekraft Industries, Inc., the [Disposition
Agreement, dated March [o], 2000, between the Company and [o]], the Supply
Agreement, dated [o], 2000, between International Wire Group, Inc. and Wirekraft
Industries, Inc., the Contract Manufacturing Agreement, dated [o], 2000, between
Mommers Print Service BV and Viasystems Sweden AB and the Contract Manufacturing
Agreement, dated [o], 2000, between Mommers Print Service BV and Viasystems
Tyneside Limited (collectively, the "TRANSACTIONS DOCUMENTS") has been duly
authorized, executed and delivered by the Company, is in full force and effect,
and constitutes a valid and binding obligation of the Company and the other
party or parties thereto, enforceable against each of them in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
in general and subject to general principles of equity (regardless of whether
such enforceability is considered in equity or law).
(34) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, each of the Transactions
Documents will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental agency or body is required for the
execution and delivery by the Company of, and performance by the Company with
the provisions of, each of the Transactions Documents, except such as shall have
been obtained or waived or that, if not obtained or waived, would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(35) The Registration Statement, the Prospectus and any
preliminary prospectus comply, and any amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share Program.
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<PAGE> 11
(36) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those obtained,
is required in connection with the offering of the Directed Shares in any
jurisdiction where the Directed Shares are being offered.
(37) The Company has not offered, or caused Morgan Stanley to
offer, Shares to any person pursuant to the Directed Share Program with the
intent to unlawfully influence (i) a customer or supplier of the Company to
alter the customer's or supplier's level or type of business with the Company,
or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
2. Agreements to Sell and Purchase. The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective number of Firm Shares set forth in Schedules I and II
hereto opposite its name at U.S.$[o] a share ("PURCHASE PRICE").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the U.S. Underwriters the Additional Shares, and the U.S.
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 6,000,000 Additional Shares at the Purchase Price. If the U.S.
Representatives, on behalf of the U.S. Underwriters, elect to exercise such
option, the U.S. Representatives shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the U.S. Underwriters and the
date on which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined below) but not earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
The Company hereby agrees that, without the prior written
consent of Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it
will not, during the period ending 180 days after the date of the Prospectus,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder or (B) the
issuance by the Company of shares of Common Stock upon the exercise of an option
or warrant or
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the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing.
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Company is
further advised by you that the Shares are to be offered to the public initially
at U.S.$[o] a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of
U.S.$[o] a share under the Public Offering Price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of U.S.$[o] a
share, to any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 a.m., New York City time, on [o], 2000 or at such
other time on the same or such other date, not later than [o], 2000 as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the " CLOSING DATE".
Payment for any Additional Shares shall be made to the Company
in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than [o], 2000 as shall be designated in writing by
the U.S. Representatives. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The
obligations of the Company to sell the Shares to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Shares on
the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than 1:30 p.m. (New York City time) on the
date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(1) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
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<PAGE> 13
(1) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(2) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(2) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(3) The Underwriters shall have received on the Closing Date
an opinion of Weil, Gotshal & Manges LLP, outside counsel for the Company, dated
the Closing Date, to the effect that:
(1) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(2) each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
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<PAGE> 14
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(3) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(4) the shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable;
(5) all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly by the
Company or another wholly-owned Significant Subsidiary, free and clear
of all liens, encumbrances, equities or claims, except for those
arising under the Senior Credit Facility;
(6) the Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights;
(7) this Agreement has been duly authorized, executed and
delivered by the Company;
(8) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares by the U.S.
Underwriters;
(9) the statements (A) in the Prospectus under the captions
"The Transactions," "Business--Sales and Marketing," "Certain
Transactions," "Description of Capital Stock," "Description of Certain
Indebtedness," "Shares Eligible for Future Sale," "Important United
States Federal Income Tax Considerations for Non-United States
Holders," and "Underwriters" and (B) in the Registration Statement in
Items 14 and 15, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
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<PAGE> 15
(10) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as required;
(11) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(12) each of the Transactions Documents has been duly
authorized, executed and delivered by the Company, and constitutes a
valid and binding obligation of the Company and the other party or
parties thereto, enforceable against each of them in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is
considered in equity or law).
(13) the execution, delivery and performance by the Company of
each of the Transactions Documents will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is bound or to which the Company or any of its
subsidiaries is subject, nor will such actions result in any violation
of any order, rule or regulation of any court of governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets (except in each case for such
conflicts, breaches, violations and defaults as would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole); nor will such actions result in any violation of any provision
of applicable law or of the certificate of incorporation or bylaws of
the Company; and no consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or body
is required for the execution and delivery by the Company of, and
compliance by the Company with, the provisions of each of the
Transactions Documents, except such as shall have been obtained or
waived or that, if not obtained or waived, would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(14) the Company and its subsidiaries (A) are in compliance
with any and all applicable Environmental Laws, (B) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit, license
or
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<PAGE> 16
approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and
(15) such counsel (A) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and schedules
and other financial and statistical data included therein as to which
such counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (B) has no reason to believe
that (except for financial statements and schedules and other financial
and statistical data as to which such counsel need not express any
belief) the Registration Statement and the prospectus included therein
at the time the Registration Statement became effective contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief)
the Prospectus contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(4) The Underwriters shall have received on the Closing Date
an opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel for the
Underwriters, dated the Closing Date, in form and substance satisfactory to you.
With respect to Section 5(c)(xv) above, Weil, Gotshal & Manges
LLP may state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as specified.
The opinion of Weil, Gotshal & Manges LLP described in Section
above shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(5) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters, from
PricewaterhouseCoopers LLP, independent public accountants, and
PricewaterhouseCoopers, certified public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus; provided
that the letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
(6) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and the shareholders, officers and directors of
the Company relating to sales and other
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<PAGE> 17
dispositions of shares of Common Stock or certain other securities, delivered to
you on or before the date hereof, shall be in full force and effect on the
Closing Date.
(7) The transactions contemplated by the Transactions
Documents shall have been consummated on the terms set forth in such
Transactions Documents as delivered to you prior to the date hereof.
(8) The Company shall have entered into the New Senior Credit
Facility in the form and on the terms set forth in the draft of the New Senior
Credit Facility delivered to you prior to the date hereof; after giving effect
to the transactions contemplated by the Transactions Documents, there shall be
no default or event of default under the New Senior Credit Facility.
(9) The Common Stock shall have been approved for listing on
the New York Stock Exchange subject only to official notice of issuance.
(10) You shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters related to
the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(1) To furnish to you, without charge, 6 signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section 6(c) below, as many
copies of the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(2) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(3) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a
16
<PAGE> 18
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
(4) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(5) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering the
twelve-month period ending [o], 2001, that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(6) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 6(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
Common Stock and all costs and expenses incident to listing the Shares on the
New York Stock Exchange, (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show
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<PAGE> 19
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, (ix) all fees and disbursements of counsel incurred by the Underwriters in
connection with the Directed Share Program and stamp duties, similar taxes or
duties or other taxes, if any, incurred by the Underwriters in connection with
the Directed Share Program and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 7 entitled "Indemnity and Contribution", and
the last paragraph of Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
(7) To place stop transfer orders on any Directed Shares that
have been sold to Participants subject to the three month restriction on sale,
transfer, assignment, pledge or hypothecation imposed by NASD Regulation, Inc.
under its Interpretative Material 2110-1 on free-riding and withholding to the
extent necessary to ensure compliance with the three month restrictions.
(8) To comply with all applicable securities and other
applicable laws, rules and regulations in each jurisdiction in which the
Directed Shares are offered in connection with the Directed Share Program.
7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(1) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
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(2) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(3) To the extent the indemnification provided for in Section
7(a) or 7(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the
19
<PAGE> 21
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the Company
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
(4) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(5) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
8. Directed Share Program Indemnification. (a) The Company
agrees to indemnify and hold harmless Morgan Stanley and each person, if any,
who controls Morgan Stanley within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act
20
<PAGE> 22
("MORGAN STANLEY ENTITIES"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the
consent of the Company for distribution to Participants in connection with the
Directed Share Program, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) caused by the failure of any Participant
to pay for and accept delivery of Directed Shares that the Participant has
agreed to purchase; or (iii) related to, arising out of, or in connection with
the Directed Share Program other than losses, claims, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of Morgan Stanley Entities.
(1) In case any proceeding (including any governmental
investigation) shall be instituted involving any Morgan Stanley Entity in
respect of which indemnity may be sought pursuant to Section 8(a), the Morgan
Stanley Entity seeking indemnity shall promptly notify the Company in writing
and the Company, upon request of the Morgan Stanley Entity, shall retain counsel
reasonably satisfactory to the Morgan Stanley Entity to represent the Morgan
Stanley Entity and any others the Company may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Morgan Stanley Entity shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Morgan Stanley Entity unless (i) the Company shall have agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Company and the
Morgan Stanley Entity and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The Company shall not, in respect of the legal expenses of the Morgan
Stanley Entities in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Morgan Stanley Entities. Any
such firm for the Morgan Stanley Entities shall be designated in writing by
Morgan Stanley. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Company agrees to
indemnify the Morgan Stanley Entities from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time a Morgan Stanley Entity shall have requested the Company to
reimburse it for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the Company agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by the Company
of the aforesaid request and (ii) the Company shall not have reimbursed the
Morgan Stanley Entity in accordance with such request prior to the date of such
settlement. The Company shall not, without the prior written consent of Morgan
Stanley, effect any settlement of any pending or threatened proceeding in
respect of which any Morgan Stanley Entity is or could have been a party and
indemnity could have been sought hereunder by such Morgan Stanley Entity, unless
such settlement includes an unconditional release of the Morgan Stanley Entities
from all liability on claims that are the subject matter of such proceeding.
21
<PAGE> 23
(2) To the extent the indemnification provided for in Section
8(a) is unavailable to a Morgan Stanley Entity or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then the Company, in
lieu of indemnifying the Morgan Stanley Entity thereunder, shall contribute to
the amount paid or payable by the Morgan Stanley Entity as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Morgan Stanley Entities on the other hand from the offering of the Directed
Shares or (ii) if the allocation provided by clause 8(c)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(c)(i) above but also the
relative fault of the Company on the one hand and of the Morgan Stanley Entities
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and of the Morgan Stanley Entities on the other hand in connection with
the offering of the Directed Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Directed Shares (before
deducting expenses) and the total underwriting discounts and commissions
received by the Morgan Stanley Entities for the Directed Shares, bear to the
aggregate Public Offering Price of the Shares. If the loss, claim, damage or
liability is caused by an untrue or alleged untrue statement of a material fact,
the relative fault of the Company on the one hand and the Morgan Stanley
Entities on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement or the omission or
alleged omission relates to information supplied by the Company or by the Morgan
Stanley Entities and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(3) The Company and the Morgan Stanley Entities agree that it
would not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Morgan Stanley Entities were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
Section 8(c). The amount paid or payable by the Morgan Stanley Entities as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
the Morgan Stanley Entities in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no
Morgan Stanley Entity shall be required to contribute any amount in excess of
the amount by which the total price at which the Directed Shares distributed to
the public were offered to the public exceeds the amount of any damages that
such Morgan Stanley Entity has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. The remedies
provided for in this Section 8 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any Morgan Stanley Entity at law
or in equity.
(4) The indemnity and contribution provisions contained in
this Section 8 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Morgan Stanley Entity or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Directed Shares.
22
<PAGE> 24
9. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto. 1.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on the
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated
23
<PAGE> 25
to purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Very truly yours,
VIASYSTEMS GROUP, INC.
By:
------------------------------------------
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS, & CO. INC.
DEUTSCHE BANK SECURITIES INC.
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY INC.
SOUNDVIEW TECHNOLOGY GROUP, INC.
24
<PAGE> 26
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By:
-----------------------------------
25
<PAGE> 27
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
CHASE SECURITIES INC.
BANK OF AMERICA INTERNATIONAL LIMITED
BEAR, STEARNS INTERNATIONAL LIMITED
DEUTSCHE BANK SECURITIES INC.
GOLDMAN SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL
SOUNDVIEW TECHNOLOGY GROUP INC.
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: Morgan Stanley & Co. International Limited
By:
-----------------------------------
26
<PAGE> 28
SCHEDULE I
U.S. UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
<S> <C>
Morgan Stanley & Co. Incorporated....................................................
Credit Suisse First Boston Corporation...............................................
Chase Securities Inc.................................................................
Banc of America Securities LLC.......................................................
Bear, Stearns & Co. Inc..............................................................
Deutsche Bank Securities Inc.........................................................
Goldman, Sachs & Co..................................................................
Salomon Smith Barney Inc.............................................................
SoundView Technology Group, Inc......................................................
-----------
Total U.S. Firm Shares...................................................... 32,000,000
===========
</TABLE>
I-1
<PAGE> 29
SCHEDULE II
INTERNATIONAL UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
<S> <C>
Morgan Stanley & Co. International Limited...........................................
Credit Suisse First Boston (Europe) Limited..........................................
Chase Securities Inc.................................................................
Bank of America International Limited................................................
Bear, Stearns International Limited..................................................
Deutsche Bank Securities Inc.........................................................
Goldman, Sachs International.........................................................
Salomon Brothers International Limited...............................................
SoundView Technology Group, Inc......................................................
------------
Total International Firm Shares............................................. 8,000.000
============
</TABLE>
II-1
<PAGE> 30
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
III-1
<PAGE> 1
EXHIBIT 2.9
STOCK PURCHASE AGREEMENT
AMONG
VIASYSTEMS INTERNATIONAL, INC.,
INTERNATIONAL WIRE GROUP, INC.
AND
WIREKRAFT INDUSTRIES, INC.
WITH RESPECT TO THE SALE OF ALL OF THE OUTSTANDING
CAPITAL STOCK OF WIREKRAFT INDUSTRIES, INC.
Dated: March ___, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Article I DEFINITIONS......................................................................................1
SECTION 1.1. Definitions...................................................................................1
Article II THE ACQUISITION..................................................................................3
SECTION 2.1. Purchase and Sale of Shares...................................................................3
SECTION 2.2. Consideration for the Shares..................................................................3
Article III REPRESENTATIONS AND WARRANTIES OF HOLDINGS.......................................................4
SECTION 3.1. Organization and Qualification................................................................4
SECTION 3.2. Authorization.................................................................................4
SECTION 3.3. No Violation..................................................................................4
SECTION 3.4. Capitalization of the Company.................................................................5
SECTION 3.5. Subsidiaries and Equity Investments...........................................................5
SECTION 3.6. Consents and Approvals........................................................................6
SECTION 3.7. Financial Statements..........................................................................6
SECTION 3.8. Absence of Undisclosed Liabilities............................................................6
SECTION 3.9. Absence of Certain Changes....................................................................6
SECTION 3.10. Litigation....................................................................................6
SECTION 3.11. Real Property; Liens and Encumbrances.........................................................7
SECTION 3.12. Certain Agreements............................................................................7
SECTION 3.13. Employee Benefit Plans........................................................................8
SECTION 3.14. Taxes.........................................................................................8
SECTION 3.15. Compliance with Applicable Law...............................................................11
SECTION 3.16. Brokers' Fees and Commissions................................................................11
SECTION 3.17. Proprietary Rights...........................................................................11
SECTION 3.18. Labor Relations..............................................................................12
SECTION 3.19. Insurance....................................................................................12
SECTION 3.20. Environmental Matters........................................................................12
Article IV REPRESENTATIONS AND WARRANTIES OF BUYER.........................................................13
SECTION 4.1 Organization and Qualification...............................................................13
SECTION 4.2. Authorization................................................................................13
SECTION 4.3. No Violation.................................................................................13
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 4.4. Consents and Approvals.......................................................................14
SECTION 4.5. Purchase for Investment......................................................................14
SECTION 4.6. Financing....................................................................................14
Article V COVENANTS.......................................................................................14
SECTION 5.1 Conduct of Business of the Company Prior to the Closing......................................14
SECTION 5.2 Access to Information........................................................................15
SECTION 5.3 All Reasonable Efforts.......................................................................16
SECTION 5.4 Consents and Approvals.......................................................................16
SECTION 5.5 Public Announcements.........................................................................16
SECTION 5.6 Notification by Holdings.....................................................................16
SECTION 5.7 No Implied Representations or Warranties.....................................................16
SECTION 5.8 Intercompany Obligations.....................................................................17
SECTION 5.9 Release of Guarantees........................................................................17
SECTION 5.10 Further Assurances...........................................................................17
Article VI CLOSING CONDITIONS..............................................................................17
SECTION 6.1 Conditions to Each Party's Obligations under this Agreement..................................17
SECTION 6.2 Conditions to the Obligations of Buyer under this Agreement..................................18
SECTION 6.3 Conditions to the Obligations of Holdings under this Agreement...............................18
Article VII CLOSING.........................................................................................19
SECTION 7.1 Closing......................................................................................19
Article VIII SURVIVAL AND INDEMNIFICATION....................................................................20
SECTION 8.1 Survival of Representations and Warranties...................................................20
SECTION 8.2 Indemnification..............................................................................20
SECTION 8.3 Defense of Claims............................................................................21
SECTION 8.4 Adjustment to Purchase Price.................................................................23
SECTION 8.5 Exclusive Remedy.............................................................................23
Article IX TERMINATION AND ABANDONMENT.....................................................................23
SECTION 9.1 Termination..................................................................................23
SECTION 9.2 Procedure and Effect of Termination..........................................................23
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
Article X MISCELLANEOUS PROVISIONS...........................................................................24
SECTION 10.1 Amendment and Modification......................................................................24
SECTION 10.2 Waiver of Compliance; Consents..................................................................24
SECTION 10.3 Validity........................................................................................24
SECTION 10.4 Expenses and Obligations........................................................................24
SECTION 10.5 Parties in Interest.............................................................................24
SECTION 10.6 Notices.........................................................................................24
SECTION 10.7 Governing Law...................................................................................25
SECTION 10.8 Counterparts....................................................................................25
SECTION 10.9 Headings........................................................................................25
SECTION 10.10 Entire Agreement................................................................................25
SECTION 10.11 Assignment......................................................................................25
SECTION 10.12 Jurisdiction and Venue..........................................................................26
SECTION 10.13 Tax Matters.....................................................................................26
</TABLE>
iii
<PAGE> 5
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated March
___, 2000, is by and among Viasystems International, Inc., a Delaware
corporation ("Buyer"), International Wire Group, Inc., a Delaware corporation
("Holdings"), and Wirekraft Industries, Inc., a Delaware corporation (the
"Company").
RECITALS
WHEREAS, Holdings is the record and beneficial owner of all of
the issued and outstanding shares of common stock, par value $0.01 per share, of
the Company (the "Common Stock");
WHEREAS, Holdings desires to sell to Buyer, and Buyer desires
to purchase from Holdings, all of the issued and outstanding shares of Common
Stock, all in accordance with the provisions of this Agreement;
WHEREAS, the Company previously declared and paid a dividend
on the Common Stock in the form of all of the shares of the Company's
wholly-owned subsidiary, Wire Technologies, Inc.;
WHEREAS, the Board of Directors of Holdings and the Board of
Directors of Buyer have approved the acquisition of the Company by Buyer
pursuant to this Agreement; and
WHEREAS, each of Buyer and Holdings desires to make certain
representations, warranties and agreements in connection with the sale and
acquisition of the Common Stock and also desires to set forth various conditions
precedent thereto.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. For purposes of this Agreement, the term:
(a) "affiliate" means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, another person.
(b) "Code" means the Internal Revenue Code of 1986, as
amended (including any successor code), and the rules and regulations
promulgated thereunder.
(c) "contract" means any contract, agreement, indenture,
note, bond, loan, instrument, lease, conditional sales contract, mortgage,
license, franchise, insurance policy, commitment or other arrangement or
agreement.
<PAGE> 6
(d) "Credit Agreement" means that certain Amended and Restated
Credit Agreement, dated as of February 12, 1997, among Holdings, International
Wire Holding Company, the several lenders from time to time parties thereto, the
Chase Manhattan Bank, as Administrative Agent, and Bankers Trust Company, as
Documentation Agent, as amended by that certain First Amendment to Amended and
Restated Credit Agreement, dated as of June 17, 1997, among Holdings,
International Wire Holding Company, the several lenders from time to time
parties thereto, the Chase Manhattan Bank, as Administrative Agent, and Bankers
Trust Company, as Documentation Agent, and as further amended by that certain
Second Amendment and Waiver to Amended and Restated Credit Agreement, dated as
of September 29, 1997, among Holdings, International Wire Holding Company, the
several lenders from time to time parties thereto, the Chase Manhattan Bank, as
Administrative Agent, and Bankers Trust Company, as Documentation Agent.
(e) "Environmental Laws" means all applicable federal, state
or local statutes, codes, rules or regulations relating to the environment,
natural resources, pollution or contamination.
(f) "Governmental Authority" means any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
(g) "Hazardous Material" means any substance, material or
waste which is regulated, defined or classified by any Governmental Authority as
a "hazardous waste," "hazardous material," "hazardous substance," "extremely
hazardous substance," "restricted hazardous waste," "contaminant," "toxic waste"
or "toxic substance" or words of similar import and includes, but is not limited
to, petroleum, petroleum products (including crude oil and any fraction
thereof), asbestos, asbestos-containing materials, urea formaldehyde and
polychlorinated biphenyls.
(h) "knowledge" of Holdings means the actual knowledge, after
due inquiry, of the individuals listed on Section 1.1(h) of the Disclosure
Schedule.
(i) "Material Adverse Effect" means a material adverse effect
on the business, operations, liabilities, properties, assets or financial
condition of, in the case of Holdings or the Company, the Company and its
Subsidiaries taken as a whole, and in the case of Buyer, Buyer and its
Subsidiaries taken as a whole.
(j) "person" means an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or, as
applicable, any other entity.
(k) "SEC" means the Securities and Exchange Commission.
(l) "Securities Act" means the Securities Act of 1933, as
amended.
(m) "Seller Consolidated Returns" shall mean all consolidated,
combined, affiliated or unitary Tax Returns which include the taxable income or
loss of any of the Company or its Subsidiaries and any of Holdings or its
Subsidiaries (other than the Company or its Subsidiaries).
2
<PAGE> 7
(n) "Senior Debt" means all indebtedness of Holdings and its
Subsidiaries under the Credit Agreement.
(o) "Shares" means the 1,000 shares of Common Stock being sold
by Holdings to Buyer pursuant to this Agreement.
(p) "Subsidiary" means any person of which at least a majority
of the outstanding shares or other equity interests having ordinary voting power
for the election of directors or comparable managers of such person is owned,
directly or indirectly, by another person.
(q) "Taxes" shall mean all taxes, charges, fees, levies, or
other similar assessments or liabilities imposed by the United States of
America, or by any state, local or foreign government, or any subdivision,
agency or other similar person of the United States or any such government,
whether payable by reason of contract, assumption, transferee liability,
operation of law or otherwise, including without limitation (a) income, gross
receipts, excise, property, sales, use, transfer, withholding, payroll, windfall
profit, severance, production, license, employment, alternative or add-on
minimum, ad valorem, stamp, estimated, transaction, title, capital, gains,
paid-up capital, profits, occupation, premium, federal highway use, commercial
rent, social security, workers' compensation, employer health, goods and
services, value added, environmental and franchise taxes; and (b) any interest,
fines, penalties or additions to taxes, or additional amount imposed on any
Taxes, resulting from, attributable to, or incurred in connection with any
Taxes.
(r) "Tax Returns" means any report, return or statement
relating to or required to be filed in connection with Taxes (including any
attachments thereto, and any amendment thereof), including, but not limited to,
any information return, claim for refund, declaration of estimated Tax and
Seller Consolidated Returns.
(s) "Tax Sharing Agreement" shall mean any allocation,
indemnity, sharing or similar contract or arrangement (whether or not written)
providing for or otherwise dealing with the allocation of responsibilities
and/or rights relating to Taxes.
ARTICLE II
THE ACQUISITION
SECTION 2.1. Purchase and Sale of Shares. On the terms and subject to
the conditions hereof, at the Closing (as hereinafter defined), Holdings will
sell, assign, transfer and convey to Buyer, and Buyer will purchase and acquire
from Holdings, all right, title and interest of Holdings in and to the Shares,
free and clear of all Liens (as hereinafter defined).
SECTION 2.2. Consideration for the Shares. The aggregate purchase price
payable by Buyer for the Shares shall be $210,000,000 in cash, plus the
consolidated amount (the "Cash Amount") of cash and cash equivalents held by the
Company and its Subsidiaries calculated as of the Closing, less any outstanding
indebtedness or other liabilities for borrowed money of the Company and its
Subsidiaries ("Indebtedness") not repaid prior to or in connection with the
Closing (the "Purchase Price"). The "Cash Amount" and "Indebtedness" shall be
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determined on the same basis as would be determined for presentation on a
balance sheet prepared in accordance with GAAP (as hereinafter defined) as of
the Closing. On the Closing Date (as hereinafter defined), Buyer will pay the
Purchase Price by wire transfer of immediately available funds to an account
designated in writing by Holdings at least two (2) days prior to the Closing
Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
Holdings represents and warrants to Buyer as set forth below:
SECTION 3.1. Organization and Qualification. Except as set forth in
Section 3.1 of the Disclosure Schedule, each of the Company and its Subsidiaries
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, with all requisite corporate power
and authority to own, operate and lease its properties and to carry on its
business as it is now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power or authority
would not have a Material Adverse Effect. Each of the Company and its
Subsidiaries is qualified or licensed to do business and is in good standing in
every jurisdiction where the nature of the business conducted by it or the
properties owned or leased by it requires qualification, except where the
failure to be so qualified or licensed would not, in the aggregate, have a
Material Adverse Effect. Holdings has delivered or made available to Buyer
complete and correct copies of the Certificates or Articles of Incorporation and
Bylaws (or similar organizational documents) of the Company and each of its
Subsidiaries.
SECTION 3.2. Authorization. Each of Holdings and the Company has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Holdings and the Company, the performance by Holdings and the
Company of their respective obligations hereunder, and the consummation by them
of the transactions contemplated hereby, have been duly authorized by their
respective Boards of Directors. No other corporate action on the part of
Holdings or the Company is necessary to authorize the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by each of Holdings
and the Company and constitutes a valid and binding obligation of Holdings and
the Company, enforceable against each of them in accordance with its terms,
except to the extent that such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
SECTION 3.3. No Violation. Except as set forth in Section 3.3 of the
Disclosure Schedule, neither the execution and delivery of this Agreement by
Holdings and the Company and the performance by Holdings and the Company of
their respective obligations hereunder nor the consummation by Holdings and the
Company of the transactions contemplated hereby will (a) violate, conflict with
or result in any breach of any provision of the Certificates of
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Incorporation or Bylaws of Holdings or the Company, (b) violate, conflict with
or result in a violation or breach of, or constitute a default (with or without
due notice or lapse of time or both) under the terms, conditions or provisions
of any note, bond, mortgage, indenture or deed of trust, or any material
license, lease or agreement to which Holdings or the Company is a party or (c)
violate any order, writ, judgment, injunction, decree, statute, rule or
regulation of any court or Governmental Authority applicable to Holdings or the
Company, except such defaults and violations which, in the aggregate, would not
have a Material Adverse Effect.
SECTION 3.4. Capitalization of the Company. The authorized capital
stock of the Company consists of 1,000 shares, all of which are designated
Common Stock. As of the date hereof, the Company has 1,000 shares of Common
Stock issued and outstanding (constituting the Shares), all of which have been
validly issued, are fully paid and non-assessable and were not issued in
violation of any preemptive rights. There are (i) no options, warrants, calls,
subscriptions, conversion or other rights, agreements or commitments obligating
the Company to issue any additional shares of capital stock or any other
securities convertible into, exchangeable for or evidencing the right to
subscribe for any shares of capital stock of the Company, (ii) agreements or
commitments obligating the Company to repurchase, redeem or otherwise acquire
any shares of capital stock of the Company, (iii) restrictions to the transfer
of any shares of capital stock of the Company (other than those restrictions
resulting from federal and state securities or "blue sky" laws) or (iv)
requirements of the Company or Holdings to vote any shares of capital stock of
the Company. The Shares are held of record and beneficially by Holdings free and
clear of all Liens other than the pledge thereof to secure the Senior Debt. At
Closing good title to the Shares shall be conveyed to Buyer free and clear of
all Liens.
SECTION 3.5. Subsidiaries and Equity Investments.
(a) Section 3.5 of the Disclosure Schedule sets forth the
name, jurisdiction of incorporation, capitalization and percentage ownership of
each Subsidiary of the Company. The Company has no direct or indirect equity
ownership in any person other than the Subsidiaries.
(b) All of the outstanding shares of capital stock of each
Subsidiary of the Company have been duly authorized and validly issued, are
fully paid and non-assessable, have not been issued in violation of any
preemptive rights, and, except as specified in Section 3.5 of the Disclosure
Schedule, are owned of record and beneficially, directly or indirectly, by the
Company, free and clear of any Liens.
(c) There are (i) no options, warrants, calls, subscriptions,
conversion or other rights, agreements or commitments obligating any of the
Company's Subsidiaries to issue any additional shares of capital stock of such
Subsidiary or any other securities convertible into, exchangeable for or
evidencing the right to subscribe for any shares of such capital stock, (ii)
agreements or commitments obligating any Subsidiary of the Company to
repurchase, redeem or otherwise acquire any shares of capital stock of such
Subsidiary, (iii) restrictions to the transfer of any shares of capital stock of
any Subsidiary of the Company (other than those restrictions resulting from
federal and state securities or "blue sky" laws) or (iv) requirements of the
Company or Holdings to vote any shares of capital stock of any Subsidiary of the
Company.
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SECTION 3.6. Consents and Approvals. Except as set forth in Section 3.6
of the Disclosure Schedule, no filing or registration with, no notice to and no
permit, authorization, consent or approval of any Governmental Authority is
necessary for the consummation by Holdings and the Company of the transactions
contemplated by this Agreement other than (a) consents and approvals of or
filings or registrations with the Antitrust Division of the United States
Department of Justice (the "DOJ") pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), (b) requirements of
federal and state securities laws, (c) those already obtained, and (d) consents,
registrations, approvals, authorizations, permits, filings or notifications
which the failure to obtain, in the aggregate, would not have a Material Adverse
Effect.
SECTION 3.7. Financial Statements. Holdings has delivered to Buyer
copies of the consolidated balance sheets of the Company as of December 31, 1998
and December 31, 1999, together with the related consolidated statement of
income for the years ended December 31, 1997, 1998 and 1999 (such financial
statements being hereinafter referred to as the "Financial Statements"). The
Financial Statements (i) were prepared in accordance with generally accepted
accounting principles applied on a consistent basis ("GAAP") throughout the
periods covered thereby, except as otherwise noted thereon or disclosed in
Section 3.7 of the Disclosure Schedule and except for the absence of notes
thereto, and (ii) present fairly in all material respects the consolidated
financial position, results of operations and cash flows of the Company as of
such dates and for the periods then ended.
SECTION 3.8. Absence of Undisclosed Liabilities. To the knowledge of
Holdings, except for matters relating to the transactions contemplated by this
Agreement, there are no liabilities or financial obligations of the Company or
any of its Subsidiaries that are required to be reflected on a balance sheet
prepared in accordance with GAAP, other than liabilities and obligations (a)
provided for or reserved against in the Financial Statements, (b) arising after
December 31, 1999 in the ordinary course of business, (c) which would not have a
Material Adverse Effect, or (d) disclosed in Section 3.8 of the Disclosure
Schedule.
SECTION 3.9. Absence of Certain Changes. Except as disclosed in Section
3.9 of the Disclosure Schedule, since December 31, 1999, neither the Company nor
any of its Subsidiaries has (a) suffered any change in its business, operations
or financial position, except such changes which, in the aggregate would not
have a Material Adverse Effect or changes which relate to the wire harness
industry or the economy in general, (b) conducted its business in any material
respect not in the ordinary and usual course, (c) except in the ordinary course
of business, incurred any long-term indebtedness for borrowed money or issued
any debt securities or assumed, guaranteed or endorsed the obligations of any
other person except for obligations of its Subsidiaries, or (d) except in the
ordinary course of business, (i) sold, transferred or otherwise disposed of any
of its material property or assets or (ii) mortgaged or encumbered any of its
material property or assets.
SECTION 3.10. Litigation. Except (a) as set forth in Section 3.10 of
the Disclosure Schedule, (b) for claims under workers' compensation or similar
laws, (c) for routine claims for employee benefits and (d) for claims for money
damages alone of less than $100,000, there is no action, suit or proceeding
("Litigation") pending or, to the knowledge of Holdings, threatened against the
Company or any of its Subsidiaries before any court, arbitrator or
administrative or
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governmental body which, if determined adversely, would have a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in
default under any judgment, decree, injunction or order of any court,
governmental department, commission, agency, instrumentality or arbitrator
outstanding against the Company or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.11. Real Property; Liens and Encumbrances.
(a) Section 3.11 of the Disclosure Schedule contains a
complete and accurate list of all real property owned or leased by the Company
or its Subsidiaries as of the date hereof.
(b) Except as set forth in Section 3.11 of the Disclosure
Schedule, all properties and assets owned by the Company and its Subsidiaries
are free and clear of all liens, pledges, security interests, mortgages, rights
of first refusal and other burdens (collectively, "Liens") except (i) statutory
Liens not yet delinquent or the validity of which are being contested in good
faith by appropriate actions, (ii) purchase money Liens arising in the ordinary
course, (iii) Liens arising as a matter of law relating to current Taxes not yet
due, (iv) Liens reflected in the financial statements of the Company (which have
not been discharged) and (v) Liens which in the aggregate do not materially
detract from the value or, in the case of personal property, materially impair
the use by the Company or any of its Subsidiaries of properties or assets
subject thereto or, in the case of real property, materially impair the present
and continued use in the usual and normal conduct of the business of the Company
and its Subsidiaries.
SECTION 3.12. Certain Agreements. Except as described in Section 3.12
of the Disclosure Schedule, neither the Company nor any of its Subsidiaries is a
party to any written agreement with any officer, director or employee of the
Company or any of its Subsidiaries (a) the benefits of which are contingent, or
the terms of which are materially altered, upon the occurrence of a transaction
involving the Company of the nature of any of the transactions contemplated by
this Agreement, (b) providing severance benefits or other benefits after the
termination of employment regardless of the reason for such termination of
employment, or (c) any of the benefits of which will be increased, or the
vesting of benefits of which will be accelerated, by the occurrence of any of
the transactions contemplated by this Agreement or the value of any of the
benefits of which will be calculated on the basis of any of the transactions
contemplated by this Agreement. Except as disclosed in Section 3.12 of the
Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party
to any written (i) agreement, contract, indenture or other instrument relating
to the borrowing of money or the guarantee of any obligation for the borrowing
of money or (ii) other contract, agreement or commitment of the Company or any
of its Subsidiaries material to the operations of the Company or any of its
Subsidiaries. Neither the Company nor any of its Subsidiaries is in default
under any of the agreements, contracts or obligations described in Section 3.12
of the Disclosure Schedule, except such defaults which, in the aggregate, would
not have a Material Adverse Effect. Except as set forth in Section 3.12 of the
Disclosure Schedule, no consent is required under any contract or agreement
listed on Section 3.12 of the Disclosure Schedule in connection with the
consummation of the transactions contemplated by this Agreement except for
consents which the failure to obtain would not have a Material Adverse Effect.
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SECTION 3.13. Employee Benefit Plans.
(a) Section 3.13(a) of the Disclosure Schedule sets forth a
true and complete list of each "employee benefit plan" (within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is maintained or contributed to by the Company or any of its
Subsidiaries ("Employee Benefit Plans") as of the date of this Agreement.
(b) Section 3.13(b) of the Disclosure Schedule sets forth a
true and complete list of all collective bargaining agreements, all material
employment or individual compensation agreements, and all bonus or other
incentive compensation, change in control, deferred compensation, salary
continuation, severance or employer stock agreements, policies or arrangements,
for which the Company or any of its Subsidiaries maintains or has any obligation
(other than Employee Benefit Plans) with respect to the employment or
termination of employment of any employee of the Company or its Subsidiaries
("Employee Arrangements").
(c) Except as disclosed in Section 3.13(c) of the Disclosure
Schedule, neither the Company nor any of its Subsidiaries maintains or
contributes to, or on or after the date which is six years prior to the date of
this Agreement has maintained or contributed to, any defined benefit plans
covered by Title IV of ERISA.
SECTION 3.14. Taxes. Except as set forth in Section 3.14 of the
Disclosure Schedule:
(a) The Company and each of its Subsidiaries, and each
affiliated group (within the meaning of Section 1504 of the Code) of which the
Company or any of its Subsidiaries is or has been a member, (A) have timely
filed (or there has been timely filed on their behalf, or timely extensions have
been filed or filed on their behalf as permitted by and in accordance with the
Code) with the appropriate Governmental Authority all Tax Returns required to be
filed, and all such Tax Returns are true, complete and correct, and (B) have
paid all Taxes due and payable or claimed or asserted by any taxing authority to
be due, from or with respect to them, or have provided for all such Taxes on
their books and records and in accordance with GAAP, including without
limitation in the Financial Statements. With respect to any period for which Tax
Returns have not yet been filed, or for which Taxes are not yet due or owing,
the Company and its Subsidiaries, as the case may be, have made due and
sufficient current accruals for such Taxes in their books and records in
accordance with GAAP, including without limitation the Financial Statements.
Each of the Company and its Subsidiaries has made (or there has been made on its
behalf) all required current estimated Tax payments sufficient to avoid any
understatement penalties;
(b) There are no outstanding agreements extending the
statutory period of limitation applicable to any claim for, or the period for
the collection or assessment of, Taxes due from the Company or its Subsidiaries
for any taxable period; and
(c) No audit report has been issued in the five years prior to
the date of this Agreement (or otherwise with respect to any audit or
investigation in progress) relating to Taxes due from or with respect to the
Company or any of its Subsidiaries, their respective
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incomes, assets or operations. All Tax Returns filed in respect of Taxes for
which the Company or any of its Subsidiaries is liable have been examined by the
relevant taxing authority, or the applicable statute of limitations on
assessment with respect to such Tax Returns has expired. Holdings or the Company
has previously delivered to Buyer true and complete copies of (A) any audit
reports issued in the five years prior to the date of this Agreement relating to
the United States federal, state, local or foreign Taxes due from or with
respect to the Company or any of its Subsidiaries; (B) the United States federal
Tax Returns, and those state, local, and foreign Tax Returns showing Taxes due
in excess of $5,000, for all taxable periods ending in 1996, 1997, 1998 and 1999
filed by the Company and each of its Subsidiaries; and (C) the portions of all
federal, state, local or foreign consolidated, combined or unitary Tax Returns
which relate to the Company or any of its Subsidiaries showing Taxes due in
excess of $5,000, for all taxable periods ending in 1996, 1997, 1998 and 1999
filed by any affiliated, consolidated, combined, or unitary group of which the
Company or such Subsidiary was then a member;
(d) No claim has been made to the effect that Company or any
of its Subsidiaries is or may be subject to taxation by a jurisdiction in which
it does not file Tax Returns;
(e) All deficiencies asserted or assessments made as a result
of any examinations by the Internal Revenue Service or any other taxing
authority of the Tax Returns of, or covering or including the Company or any of
its Subsidiaries, have been fully paid, and except for the audit being conducted
by the District Director of Internal Revenue at Indianapolis, Indiana (E:QMB) in
respect of Kirland Indiana, Limited Partnership and the partners thereof, there
are no other actions, suits, investigations, audits or claims by any taxing
authority in progress relating to the Company or any or its Subsidiaries or the
business of the Company or any of its Subsidiaries, nor has the Company or any
of its Subsidiaries, or any of their respective shareholders, directors or
officers received any written notice from any taxing authority that it intends
to conduct such an audit or investigation. No issue has been raised by written
inquiry of a domestic or foreign federal, state or local taxing authority in any
current or prior examination which, by application of the same principles, would
reasonably be expected to result in a proposed deficiency for any subsequent
taxable period. Neither the Company nor any of its Subsidiaries is subject to
any private letter ruling of the Internal Revenue Service or comparable rulings
of other taxing authorities;
(f) There are no liens for Taxes upon the assets of the
Company or any of its Subsidiaries, except for liens arising as a matter of law
relating to current Taxes not yet due;
(g) All Taxes that the Company or any of its Subsidiaries has
been or is required by law to withhold or to collect for payment have been duly
withheld and collected, and have been paid over to the appropriate Governmental
Authority or accrued, reserved against and entered on the books and records of
the Company or the Subsidiary, as the case may be, in accordance with GAAP,
including without limitation the Financial Statements;
(h) None of Holdings or its Affiliates, the Company or any of
its Subsidiaries, or any other person on behalf of the Company or any of its
Subsidiaries has (A) agreed to or is required to make any adjustments pursuant
to Section 481(a) of the Code (or any predecessor provision) or any similar
provision of domestic or foreign state or local law by
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reason of a change in accounting methods initiated by the Company or any of its
Subsidiaries, or has any knowledge that the Internal Revenue Service or any
other taxing authority has proposed any such adjustment or change in accounting
methods; or has any application pending with any taxing authority requesting
permission for any changes in accounting methods that relate to the business or
operations of the Company or any of its Subsidiaries, (B) executed or entered
into a closing agreement pursuant to Section 7121 of the Code or any predecessor
provision thereof or any similar provision of domestic or foreign state or local
law with respect to the Company or any of its Subsidiaries, (C) filed a consent
pursuant to Section 341(f) of the Code or agreed to have Section 341(f)(2) of
the Code apply to any disposition of a subsection (f) asset (as such term is
defined in Section 341(f)(4) of the Code) owned by the Company or any of its
Subsidiaries, (D) extended the time (1) within which to file any Tax Return,
which Tax Return has since not been filed or (2) for the assessment or
collection of Taxes, which Taxes have not since been paid or (E) granted to any
person any power of attorney that is currently in force with respect to any Tax
matter relating to the Company or any of its Subsidiaries;
(i) No property owned by the Company or any of its
Subsidiaries (A) is property required to be treated as being owned by another
person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue
Code of 1954, as amended and in effect immediately prior to the enactment of the
Tax Reform Act of 1986, (B) is "tax-exempt use property" within the meaning of
Section 168(h)(1) of the Code, (C) is "tax-exempt bond financed property" within
the meaning of Section 168(g) of the Code; (D) is subject to Section
168(g)(1)(A) of the Code; or (E) is subject to any provision of state, local or
foreign law comparable to any of the provisions listed above;
(j) There is no contract, plan or arrangement involving the
Company or any of its Subsidiaries and covering any person that, individually or
collectively, could give rise to the payment of any amount that would not be
deductible by Buyer, the Company or any of its Subsidiaries by reason of Section
280G or Section 162(m) of the Code;
(k) Neither the Company nor any of its Subsidiaries has any
elections in effect for federal income tax purposes under Section 108, 168, 338,
441, 472, 1017, 1033 or 4977 of the Code or under any similar provisions of
domestic or foreign state or local law;
(l) No assets of the Company or any of its Subsidiaries are
debt instruments, the interest on which is, or purports to be, excludable, in
whole or in part, from gross income for federal income tax purposes;
(m) Neither the Company nor any of its Subsidiaries is a party
to, bound by, or obligated under, any Tax Sharing Agreement;
(n) Neither the Company nor any of its Subsidiaries has
constituted either a "distributing corporation" or a "controlled corporation"
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of
stock qualifying for tax-free treatment under Section 355 of the Code (A) in the
two years prior to the date of this Agreement or (B) in a distribution which
could otherwise constitute part of a "plan" or "series of related transactions"
(within the meaning of Section 355(e) of the Code) in conjunction with the
transactions contemplated by this Agreement;
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(o) Neither the Company nor any of its Subsidiaries
constitutes or owns, directly or indirectly, an interest in a taxable mortgage
pool within the meaning of Section 7701(i) of the Code;
(p) Neither the Company nor any of its Subsidiaries is an
obligor on any indebtedness in respect of which the interest is intended to be
exempt from federal income tax to the holder of the debt obligation;
(q) The Company and each of its Subsidiaries are "United
States persons" within the meaning of Section 7701(a)(30) of the Code;
(r) Neither the Company nor any of its Subsidiaries is a
"United States real property holding corporation" within the meaning of Section
897 of the Code;
(s) No foreign subsidiary has any "investment in United States
property" within the meaning of Section 956 of the Code in the Company or any
domestic subsidiary; and
(t) No indebtedness of the Company nor of any of its
Subsidiaries is "corporate acquisition indebtedness" within the meaning of
Section 279(b) of the Code.
For purposes of this Section 3.14 and for Section 10.13, any reference to the
Company or any of its Subsidiaries shall be deemed to include any person which
merged with or was liquidated into the Company or such Subsidiary.
SECTION 3.15. Compliance with Applicable Law. Except as set forth in
Section 3.15 of the Disclosure Schedule, the businesses of the Company and its
Subsidiaries are not being conducted in violation of any provision of any
Federal, state, local or foreign statute, law, ordinance, rule, regulation,
judgment, decree, order, concession, grant, franchise, permit or license or
other governmental authorization or approval applicable to the Company or any of
its Subsidiaries, except such violations which, in the aggregate, would not have
a Material Adverse Effect.
SECTION 3.16. Brokers' Fees and Commissions. None of Holdings, the
Company and their respective directors, officers, employees or agents has
employed any investment banker, broker or finder in connection with the
transactions contemplated hereby.
SECTION 3.17. Proprietary Rights.
(a) Section 3.17 of the Disclosure Schedule contains a
complete and accurate list of (i) all material registered patents, trademarks,
copyrights, service marks and tradenames of the Company and its Subsidiaries and
(ii) all material patent and trademark applications of the Company or its
Subsidiaries which have been filed and are currently pending.
(b) Except as set forth in Section 3.17 of the Disclosure
Schedule, (i) the Company and its Subsidiaries own or possess adequate licenses
or other valid rights to use all United States and foreign patents, trademarks,
trade names, service marks, copyrights and applications therefor which are
material to the conduct of the business of the Company and its Subsidiaries
taken as a whole (the "Patent and Trademark Rights"), (ii) as of the date of
this
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Agreement, the validity of the Patent and Trademark Rights and the title thereto
of the Company or any Subsidiary are not being questioned in any litigation to
which the Company or any Subsidiary is a party, nor to the knowledge of
Holdings, is any such litigation threatened and (iii) as of the date of this
Agreement, to the knowledge of Holdings, the conduct of the business of the
Company and its Subsidiaries as now conducted does not conflict with any valid
patents, trademarks, trade name, service marks or copyrights of others in any
way which would have a Material Adverse Effect.
SECTION 3.18. Labor Relations. Except as listed or described in Section
3.18 of the Disclosure Schedule, the Company and its Subsidiaries have no unfair
labor practice charges or complaints pending or, to the knowledge of Holdings,
threatened against any of them before the National Labor Relations Board. There
is no labor strike pending or, to the knowledge of Holdings, threatened against
the Company or any of its Subsidiaries.
SECTION 3.19. Insurance. All material insurance policies (the
"Insurance Policies") with respect to the property, assets, operations and
business of the Company and its Subsidiaries are listed in Section 3.19 of the
Disclosure Schedule and are in full force and effect. Except as set forth in
Section 3.19 of the Disclosure Schedule, as of the date of this Agreement, there
are no pending material claims against the Insurance Policies by the Company or
any of its Subsidiaries as to which the insurers have denied liability. Holdings
makes no representation or warranty that such insurance will be continued or is
continuable after the Closing.
SECTION 3.20. Environmental Matters. Except as disclosed on Section
3.20 of the Disclosure Schedule or in the Environmental Reports delivered to
Buyer:
(a) the operations of the Company and its Subsidiaries are in
compliance with all applicable Environmental Laws, except for non-compliance
which, individually or in the aggregate, would not have a Material Adverse
Effect;
(b) each of the Company and its Subsidiaries has obtained all
permits, licenses and other authorizations that are required under applicable
Environmental Laws ("Environmental Permits") to conduct their businesses except
where the failure to possess such Environmental Permits, in the aggregate, would
not have a Material Adverse Effect;
(c) no judicial or administrative proceedings or
investigations are pending or, to the knowledge of Holdings, threatened against
the Company or its Subsidiaries and no written notice, citation, summons or
order has been delivered to the Company or its Subsidiaries by any Governmental
Authority pursuant to any applicable Environmental Laws (collectively,
"Environmental Claims"), except for such Environmental Claims which, in the
aggregate, would not have a Material Adverse Effect;
(d) all real property owned, operated or leased by the Company
or its Subsidiaries is free from contamination that would have a Material
Adverse Effect;
(e) no real property currently (or to the knowledge of
Holdings, formerly) owned, operated or leased by the Company or its Subsidiaries
is listed or has been proposed for listing on the National Priorities List, the
Comprehensive Environmental Response Compensation and Liability and Information
System ("CERCLIS") or any analogous state lists;
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(f) there are not now on, in or under any real property owned,
leased or operated by the Company or its Subsidiaries (i) any underground
storage tanks ("USTs"), (ii) any asbestos-containing materials ("ACMs"), or
(iii) any polychlorinated biphenyls ("PCBs"), except for such USTs, ACMs or
PCBs, the presence of which would have a Material Adverse Effect; and
(g) there have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by Holdings or the Company in
relation to any real property owned or leased by the Company or its Subsidiaries
that have not been made available to Buyer.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF BUYER
Buyer hereby represents and warrants to Holdings as set forth
below:
SECTION 4.1. Organization and Qualification. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
businesses as now being conducted, except where the failure to be so organized,
existing and in good standing or to have such power or authority would not, in
the aggregate, have a Material Adverse Effect. Buyer is qualified or licensed to
do business and is in good standing in each jurisdiction in which the ownership
or leasing of property by it or the conduct of its business requires such
licensing or qualification, except where the failure to be so qualified or
licensed would not, in the aggregate, have a Material Adverse Effect.
SECTION 4.2. Authorization. Buyer has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. No other corporate proceeding on the part of
Buyer is necessary to authorize the execution and delivery of this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Buyer and constitutes a valid and binding
obligation of Buyer, enforceable against it in accordance with its terms, except
to the extent that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
SECTION 4.3. No Violation. Neither the execution and delivery of this
Agreement by Buyer and the performance by Buyer of its obligations hereunder nor
the consummation by Buyer of the transactions contemplated hereby will (a)
violate, conflict with or result in any breach of any provision of the
Certificate or Articles of Incorporation or Bylaws of Buyer, (b) violate,
conflict with or result in a violation or breach of, or constitute a default
(with or without due notice or lapse of time or both) under the terms,
conditions or provisions of any note, bond, mortgage, indenture or deed of
trust, or any material license, lease or agreement to which Buyer or any of
Buyer's Subsidiaries is a party or (c) violate any order, writ, judgment,
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injunction, decree, statute, rule or regulation of any court or domestic or
foreign Governmental Authority applicable to Buyer or any of Buyer's
Subsidiaries, except such defaults and violations which, in the aggregate, would
not have a Material Adverse Effect.
SECTION 4.4. Consents and Approvals. No filing or registration with, no
notice to and no permit, authorization, consent or approval of any third party
or any Governmental Authority is necessary for the consummation by Buyer of the
transactions contemplated by this Agreement other than (a) consents and
approvals of or filings or registrations with the DOJ pursuant to the HSR Act,
(b) requirements of federal and state securities laws and (c) consents,
registrations, approvals, authorizations, permits, filings or notifications
which, in the aggregate, would not have a Material Adverse Effect.
SECTION 4.5. Purchase for Investment. Buyer is acquiring the Shares for
its own account for investment purposes and not with a view to the distribution
of the Shares. Buyer has such knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its investment
in the Shares. Buyer is an "accredited investor" as defined in Rule 501 of the
Securities Act. Buyer will not, directly or indirectly, dispose of the Shares
except in compliance with applicable federal and state securities laws.
SECTION 4.6. Financing. Buyer has sufficient funds available to
satisfy, among other things, the obligation to pay (a) the Purchase Price and
(b) all expenses incurred by Buyer in connection with the transactions
contemplated hereby.
ARTICLE V
COVENANTS
SECTION 5.1. Conduct of Business of the Company Prior to the Closing.
Except as contemplated by this Agreement, as set forth in Section 5.1 of the
Disclosure Schedule or with the prior written consent of Buyer (which consent
shall not be unreasonably withheld), during the period from the date of this
Agreement to the Closing, the Company will conduct its business and operations
according to the Company's ordinary and usual course of business and will use
all reasonable efforts consistent therewith to preserve intact the Company's
properties, assets and business organizations, to keep available the services of
the Company's officers and employees and to maintain satisfactory relationships
with customers, suppliers, distributors and others having commercially
beneficial business relationships with the Company, in each case in the ordinary
course of business. Without limiting the generality of the foregoing, and except
as otherwise provided in this Agreement, neither the Company nor any of its
Subsidiaries nor, with respect to clause (j) below, Holdings or any of its
affiliates, will, prior to the Closing, without the prior written consent of
Buyer (which consent shall not be unreasonably withheld):
(a) issue, sell or pledge, or authorize or propose the
issuance, sale or pledge of additional shares of capital stock of any class, or
securities convertible into any such shares, or any rights, warrants or options
to acquire any such shares or other convertible securities;
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(b) redeem, purchase or otherwise acquire any outstanding
shares of the capital stock of the Company or its Subsidiaries;
(c) propose or adopt any amendment to the Certificate or
Articles of Incorporation or Bylaws (or similar organizational documents) of the
Company or any of its Subsidiaries;
(d) except in the ordinary course of business, incur any
long-term indebtedness for borrowed money or issue any debt securities or
assume, guarantee or endorse the obligations of any other person except for
obligations of the Company's Subsidiaries;
(e) increase in any manner the rate or terms of compensation
of any of its directors, officers or other employees, except such increases as
are granted in the ordinary course of business;
(f) except in the ordinary course of business, (i) sell,
transfer or otherwise dispose of any of its material property or assets or (ii)
mortgage or encumber any of its material property or assets;
(g) enter into other material agreements, commitments or
contracts, except agreements, commitments or contracts made in the ordinary
course of business;
(h) declare, set aside or pay any dividend or other
distribution in respect of its capital stock, other than in cash in the ordinary
course of business in connection with Holdings and the Company's cash management
practices;
(i) except in the ordinary course of business or with respect
to capital projects approved prior to the date hereof, enter into any agreement
or commitment involving an aggregate capital expenditure or commitment exceeding
$100,000;
(j) change the accounting methods or principles of the Company
or any of its Subsidiaries (either for Tax or financial accounting purposes),
make or change any election concerning Taxes or Tax Returns of the Company or
any of its Subsidiaries, change an annual accounting period of the Company or
any of its Subsidiaries, file any amended Tax Return with respect to Taxes of
the Company or any of its Subsidiaries, enter into any closing agreement with
respect to Taxes of the Company or any of its Subsidiaries, settle any Tax claim
or assessment or surrender any right to claim a refund of Taxes with respect to
the Company or any of its Subsidiaries or obtain or enter into any Tax ruling,
agreement, contract, understanding, arrangement or plan relating to Taxes of the
Company or any of its Subsidiaries; or
(k) agree in writing to take any of the foregoing actions.
SECTION 5.2. Access to Information. Between the date of this Agreement
and the Closing Date, upon reasonable notice and at reasonable times without
significant disruption to the business of the Company, the Company will give
Buyer and its authorized representatives reasonable access to all offices and
other facilities, and to all books and records of the Company and will permit
Buyer to make and will fully cooperate with regard to such inspections as it may
reasonably require and will cause its officers to furnish Buyer such financial
and operating data
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and other information with respect to the business and properties of the Company
as Buyer may from time to time reasonably request.
SECTION 5.3. All Reasonable Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done as promptly as practicable, all things necessary, proper and
advisable under applicable laws and regulations to consummate and make effective
as promptly as practicable the transactions contemplated by this Agreement. If
at any time after the Closing any further action is necessary or desirable to
carry out the purposes of this Agreement, including, without limitation, the
execution of additional instruments, the proper officers and directors of each
party to this Agreement shall take all such necessary action.
SECTION 5.4. Consents and Approvals. The parties hereto each will
cooperate with one another and use all reasonable efforts to prepare all
necessary documentation (including, without limitation, furnishing all
information required under the HSR Act), to effect promptly all necessary
filings and to obtain all necessary permits, consents, approvals, orders and
authorizations of, or any exemptions by, all third parties and Governmental
Authorities necessary to consummate the transactions contemplated by this
Agreement. Each party will keep the other parties apprised of the status of any
inquiries made of such party by the DOJ or any other Governmental Authority or
members of their respective staffs with respect to this Agreement or the
transactions contemplated hereby. Buyer and Holdings shall each pay one-half of
the required filing fees under the HSR Act.
SECTION 5.5. Public Announcements. Buyer and Holdings will consult with
each other and will mutually agree (the agreement of each party not to be
unreasonably withheld) upon the content and timing of any press release or other
public statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any such public
statement prior to such consultation and agreement, except as may be required by
applicable law or by obligations pursuant to any listing agreement with any
securities exchange or any stock exchange regulations; provided, however, that
Buyer and Holdings will give prior notice to the other party of the content and
timing of any such press release or other public statement required by
applicable law or by obligations pursuant to any listing agreement with any
securities exchange or any stock exchange regulations.
SECTION 5.6. Notification by Holdings. From time to time prior to the
Closing, Holdings shall deliver to Buyer written notice of any event or
development that would (i) render any representation or warranty of Holdings in
this Agreement (including the Disclosure Schedule) inaccurate in any material
respect or (ii) constitute or result in a breach by Holdings of, or a failure by
Holdings to comply with, any agreement or covenant in this Agreement applicable
to it. Any disclosure made by Holdings pursuant to clause (i) of the prior
sentence shall not be deemed to amend or supplement the Disclosure Schedule and
shall not be given any effect for purposes of Article VI.
SECTION 5.7. No Implied Representations or Warranties. Buyer hereby
acknowledges and agrees that neither Holdings nor the Company is making any
representation or warranty whatsoever, express or implied, except those
representations and warranties of Holdings explicitly set forth in this
Agreement or in the Disclosure Schedule or in any certificate
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contemplated hereby and delivered by Holdings in connection herewith. Except as
explicitly set forth herein, none of Holdings, the Company, its Subsidiaries, or
any of the respective officers, directors, partners, employees, affiliates or
representatives, as the case may be, of Holdings, the Company, or the Company's
Subsidiaries has made or is making any representation, express or implied, as to
the value of any asset or business being so acquired, or any warranty of
merchantability, suitability or fitness for a particular purpose or quality,
with respect to any of the tangible assets being so acquired, or as to the
condition or workmanship thereof, or as to the absence of any defects therein,
whether latent or patent.
SECTION 5.8. Intercompany Obligations. Effective upon the Closing, all
intercompany obligations and accounts among Holdings and its Subsidiaries (other
than the Company and its Subsidiaries), on the one hand, and the Company and its
Subsidiaries, on the other hand, except for ordinary trade payables of the
Company and its Subsidiaries to Holdings or any of its Subsidiaries (which shall
continue to be paid by the Company and its Subsidiaries in the ordinary course
of business), will be voided, cancelled and terminated. Any holder of a note or
other evidence of indebtedness, obligation or account, if any, that is deemed
voided, cancelled and terminated in accordance with this Section 5.8 shall
surrender such note or other evidence, if any, to the obligor thereon.
SECTION 5.9. Release of Guarantees. Prior to the Closing, the Company
and its Subsidiaries shall be removed as guarantors under (i) the Credit
Agreement, (ii) the Indenture, dated as of June 12, 1995, among International
Wire Group, Inc., as Issuer, the Subsidiary Guarantors and The Bank of New York
(as successor to IBJ Schroder Bank and Trust Company), as Trustee, (iii) the
Indenture, dated as of February 12, 1997, among International Wire Group, Inc.,
as Issuer, the Subsidiary Guarantors and The Bank of New York (as successor to
IBJ Schroder Bank and Trust Company), as Trustee, and (iv) the Indenture, dated
as of June 17, 1997, among International Wire Group, Inc., as Issuer, the
Subsidiary Guarantors and The Bank of New York (as successor to IBJ Schroder
Bank and Trust Company), as Trustee (items (ii) through (iv) are collectively
referred to as the "Indentures").
SECTION 5.10. Further Assurances Holdings hereby covenants and agrees
that, to the extent that there are any assets used or useful in the business
conducted by the Company on the date of this Agreement that are not held by the
Company or any of its Subsidiaries as of the Closing, Holdings shall take all
action as is necessary or desirable to transfer those assets to Buyer following
Closing.
ARTICLE VI
CLOSING CONDITIONS
SECTION 6.1. Conditions to Each Party's Obligations under this
Agreement. The respective obligations of each party under this Agreement shall
be subject to the fulfillment at or prior to the Closing of the following
conditions:
(a) Any waiting period applicable to the consummation of the
transactions contemplated hereby under the HSR Act shall have expired or been
terminated;
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(b) No injunction, restraining order or other ruling or order
issued by any court of competent jurisdiction or Governmental Authority or other
legal restraint or prohibition preventing the consummation of the transactions
contemplated hereby shall be in effect;
(c) The Company will have received the opinion of Morgan
Stanley & Co. Incorporated, to the effect that the transactions contemplated by
this Agreement are fair, from a financial point of view, to Holdings;
(d) Buyer will have received the opinion of Credit Suisse
First Boston Corporation, to the effect that the transactions contemplated by
this Agreement are fair, from a financial point of view, to Buyer's sole
stockholder; and
(e) The Company's registration statement on Form S-1, relating
to the initial public offering of the Company's common stock, par value $.01 per
share, shall be effective.
SECTION 6.2. Conditions to the Obligations of Buyer under this
Agreement. The obligations of Buyer under this Agreement shall be further
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) Each of the obligations of Holdings and the Company
required to be performed by them at or prior to the Closing pursuant to this
Agreement shall have been duly performed and complied with in all material
respects, and the representations and warranties of Holdings contained in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing as though made at and as of the Closing
(except as to any representation or warranty which specifically relates to an
earlier date), and Buyer shall have received a certificate to that effect signed
by an officer of Holdings;
(b) Any and all permits, consents, waivers, clearances,
approvals and authorizations of all third parties and Governmental Authorities
that are necessary or advisable in connection with the consummation of the
transactions contemplated hereby shall have been obtained, other than items
which, if not obtained, would not have a Material Adverse Effect;
(c) Holdings shall provide the Buyer with a copy of statements
issued by the Company and each of its Subsidiaries pursuant to Treasury
Regulation Section 1.897-2(h), certifying that the Common Stock is not a U.S.
real property interest; and
(d) The Company and each of its Subsidiaries shall have
terminated all Tax Sharing Agreements.
SECTION 6.3. Conditions to the Obligations of Holdings under this
Agreement. The obligations of Holdings under this Agreement shall be further
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) Each of the obligations of Buyer required to be performed
by it at or prior to the Closing pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects, and the
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects as of the date of this
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Agreement and as of the Closing Date as though made at and as of the Closing
Date (except as to any representation or warranty which specifically relates to
an earlier date), and Holdings shall have received a certificate to that effect
signed by an officer of Buyer; and
(b) Any and all permits, consents, waivers, clearances,
approvals and authorizations of all Governmental Authorities which are necessary
in connection with the consummation of the transactions contemplated hereby
shall have been obtained, other than items which, if not obtained, would not
have a Material Adverse Effect.
ARTICLE VII
CLOSING
SECTION 7.1. Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Weil, Gotshal
& Manges LLP, 100 Crescent Court, Suite 1300, Dallas, Texas 75201, subject to
the satisfaction or waiver of the conditions set forth in Article VI, on the
later of March 29, 2000 or two business days after the receipt of all requisite
governmental approvals, or at such other time and place and on such other date
as Buyer and Holdings shall agree (the "Closing Date"). At the Closing:
(a) Holdings shall deliver or cause to be delivered to Buyer
the following:
(i) the certificate described in Section 6.2(a);
(ii) a certificate or certificates representing all
of the Shares in appropriate form for transfer to Buyer duly endorsed in blank
or accompanied by stock powers duly executed in blank;
(iii) all documents, including without limitation,
executed UCC-3 termination statements, as are necessary to release all liens on
the Company's assets, the Shares and the capital stock and assets of the
Company's Subsidiaries which secure the Senior Debt;
(iv) resignations of directors of the Company and
each Subsidiary listed in Section 7.1(a)(iv) of the Disclosure Schedule;
(v) Termination and Release Agreements releasing the
Company and its Subsidiaries from the Credit Agreement and the Indentures;
(vi) UCC-3 Financing Statements evidencing the
release of the rights, liens and security interests of the Company and its
Subsidiaries under the Credit Agreement and the Indentures; and
(vii) all other previously undelivered documents
required to be delivered by Holdings to Buyer at or prior to the Closing
pursuant to the terms of this Agreement.
(b) Buyer shall deliver or cause to be delivered to Holdings
the following:
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(i) the certificate described in Section 6.3(a); and
(ii) all other previously undelivered documents
required to be delivered by Buyer to Holdings at or prior to the Closing
pursuant to the terms of this Agreement.
(c) Buyer shall pay to Holdings, by wire transfer of
immediately available funds to an account or accounts designated by Holdings in
writing at least two business days prior to the Closing Date, the Purchase
Price.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
SECTION 8.1. Survival of Representations and Warranties. The
representations and warranties of Holdings contained in this Agreement other
than those contained in Section 3.14 shall not survive the Closing.
SECTION 8.2. Indemnification.
(a) For purposes of this Agreement, (i) "Indemnity Payment"
means any amount of Indemnifiable Losses required to be paid pursuant to this
Agreement, (ii) "Indemnitee" means any person or entity entitled to
indemnification under this Agreement, (iii) "Indemnifying Party" means any
person or entity required to provide indemnification under this Agreement, (iv)
"Indemnifiable Losses" means any and all damages, losses, liabilities,
obligations, Taxes, costs and expenses, and any and all claims, demands or suits
(by any person or entity, including without limitation any Governmental
Authority), including without limitation the costs and expenses of any and all
actions, suits, proceedings, demands, assessments, judgments, settlements and
compromises relating thereto and including reasonable attorneys' fees and
expenses in connection therewith, and (v) "Third Party Claim" means any claim,
action or proceeding made or brought by any person or entity who or which is not
a party to this Agreement or an affiliate of a party to this Agreement.
(b) Holdings agrees to indemnify, defend and hold harmless
Buyer and its affiliates and their respective directors, officers, partners,
employees, agents and representatives from and against any and all Indemnifiable
Losses to the extent relating to, resulting from or arising out of:
(i) any breach or nonfulfillment of any agreement or
covenant of Holdings under the terms of this Agreement;
(ii) current and future product liability claims
filed against the Company by Whirlpool Corporation ("Whirlpool") with respect to
the facts and circumstances set forth in Case No. 97-2039-CK-T, relating to
certain wire harness products supplied to Whirlpool by the Company;
(iii) the Company's obligation to provide replacement
defrost heaters to General Electric Company ("GE") pursuant to Section 3 of that
certain Agreement,
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dated December 31, 1995, between GE and the Company; provided, however, that
Holdings shall only be required to indemnify Buyer for one-half of the first
$500,000 of Indemnifiable Losses under such provision of such agreement; and
(iv) all product liability claims related to the hose
assemblies manufactured by the Company.
(c) Buyer agrees to indemnify, defend and hold harmless
Holdings and its affiliates and their respective directors, officers, partners,
employees, agents or representatives from and against any and all Indemnifiable
Losses to the extent relating to, resulting from or arising out of any breach or
nonfulfillment of any agreement or covenant of Buyer under the terms of this
Agreement.
SECTION 8.3. Defense of Claims. Except as otherwise provided in Section
10.13:
(a) If any Indemnitee receives notice of assertion or
commencement of any Third Party Claim against such Indemnitee with respect to
which an Indemnifying Party is obligated to provide indemnification under this
Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt
written notice thereof, but in any event not later than 30 calendar days after
receipt of such notice of such Third Party Claim. Such notice will describe the
Third Party Claim in reasonable detail, will include copies of all material
written evidence thereof and will indicate the estimated amount, if reasonably
practicable, of the Indemnifiable Loss that has been or may be sustained by the
Indemnitee. The Indemnifying Party will have the right to participate in, or, by
giving written notice to the Indemnitee, to assume, the defense of any Third
Party Claim at such Indemnifying Party's own expenses and by such Indemnifying
Party's own counsel (reasonably satisfactory to the Indemnitee), and the
Indemnitee will cooperate in good faith in such defense.
(b) If, within thirty calendar days after giving notice of a
Third Party Claim to an Indemnifying Party pursuant to Section 8.3(a), an
Indemnitee receives written notice from the Indemnifying Party that the
Indemnifying Party has elected to assume the defense of such Third Party Claim
as provided in the last sentence of Section 8.3(a), the Indemnifying Party will
not be liable for any legal expenses subsequently incurred by the Indemnitee in
connection with the defense thereof; provided, however, that if the Indemnifying
Party fails to take reasonable steps necessary to defend diligently such Third
Party Claim within thirty calendar days after receiving written notice from the
Indemnitee or if the Indemnifying Party has not undertaken fully to indemnify
the Indemnitee in respect of all Indemnifiable Losses relating to the matter,
the Indemnitee may assume its own defense, and the Indemnifying Party will be
liable for all reasonable costs or expenses paid or incurred in connection
therewith. Subject to Section 10.13(g) hereof, the Indemnifying Party will not
enter into any settlement of any Third Party Claim without the prior written
consent of the Indemnitee, which consent shall not be unreasonably withheld. If
a firm offer is made to settle a Third Party Claim without leading to liability
or the creation of a financial or other obligation on the part of the Indemnitee
for which the Indemnitee is not entitled to indemnification hereunder or any
other Material Adverse Effect on the Company and the Indemnifying Party desires
to accept and agree to such offer, the Indemnifying Party will give written
notice to the Indemnitee to that effect. If the Indemnitee
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fails to consent to such firm offer within ten calendar days after its receipt
of such notice, the Indemnitee may continue to contest or defend such Third
Party Claim and, in such event, the maximum liability of the Indemnifying Party
as to such Third Party Claim will not exceed the amount of such settlement
offer, plus costs and expenses paid or incurred by the Indemnitee through the
end of such ten calendar day period.
(c) A failure to give timely notice or to include any
specified information in any notice as provided in Sections 8.3(a) or 8.3(b)
will not affect the rights or obligations of any party hereunder except and only
to the extent that, as a result of such failure, any party which was entitled to
receive such notice was deprived of its right to recover any payment under its
applicable insurance coverage or was otherwise damaged as a result of such
failure.
(d) The Indemnifying Party will have a period of 30 calendar
days within which to respond in writing to any claim by an Indemnitee on account
of an Indemnifiable Loss which does not result from a Third Party Claim (a
"Direct Claim"). If the Indemnifying Party does not so respond within such 30
calendar day period, the Indemnifying Party will be deemed to have rejected such
claim, in which event the Indemnitee will be free to pursue such remedies as may
be available to the Indemnitee on the terms and subject to the provisions of
this Article VIII.
(e) If the amount of any Indemnifiable Loss, at any time
subsequent to the making of an Indemnity Payment, is reduced by recovery,
settlement or otherwise under or pursuant to any insurance coverage, or pursuant
to any claim, recovery, settlement or payment by or against any other entity,
the amount of such reduction, less any costs, expenses, premiums or taxes
incurred in connection therewith will promptly be repaid by the Indemnitee to
the Indemnifying Party. Upon making any Indemnity Payment the Indemnifying Party
will, to the extent of such Indemnity Payment, be subrogated to all rights of
the Indemnitee against any third party that is not an affiliate of the
Indemnitee in respect of the Indemnifiable Loss to which the Indemnity Payment
related; provided, however, that (i) the Indemnifying Party shall then be in
compliance with its obligations under this Agreement in respect of such
Indemnifiable Loss and (ii) until the Indemnitee recovers fully payment of its
Indemnifiable Loss, any and all claims of the Indemnifying Party against any
such third party on account of said Indemnity Payment will be subrogated and
subordinated in right of payment to the Indemnitee's rights against such third
party. Without limiting the generality or effect of any other provision hereof,
each such Indemnitee and Indemnifying Party will duly execute upon request all
instruments reasonably necessary to evidence and perfect the above-described
subrogation and subordination rights.
(f) With respect to a Third Party Claim for which Holdings is
the Indemnifying Party, Buyer shall, and shall cause each Indemnitee to, make
available to Holdings and its representatives all books and records of Buyer and
the Indemnitees relating to such Third Party Claim and shall render to Holdings
such assistance and access to records and the representatives of Buyer and the
Indemnitees as Holdings and its representatives may reasonably request, except
that Buyer shall not be required to make available to Holdings and its
representatives any books, records, documents or other information that Buyer
reasonably determines to be confidential or subject to attorney-client privilege
unless and until Holdings shall have entered into such agreements as Buyer
reasonably deem to be necessary in light of all surrounding circumstances
(including, without limitation, Holdings' need for information in
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connection with the investigation or defense of a Third Party Claim) to protect
such confidentiality or privilege.
SECTION 8.4. Adjustment to Purchase Price. Buyer and Holdings agree
that any Indemnity Payment hereunder shall be treated as an adjustment to the
Purchase Price.
SECTION 8.5. Exclusive Remedy. Buyer and Holdings agree that, to the
fullest extent permitted by law, the sole and exclusive remedy of Buyer and
Holdings after the Closing with respect to any claim or cause of action asserted
by Buyer or Holdings relating to or arising from breaches of the
representations, warranties or covenants of the other party contained in this
Agreement or any document, list, schedule, exhibit, certificate or other
instrument furnished or to be furnished by or on behalf of such other party or
any of its representatives in connection with the transactions contemplated by
this Agreement shall be limited to the rights of Buyer and Holdings under, and
shall be subject to the terms and conditions of, this Article VIII and Section
10.13 hereof.
ARTICLE IX
TERMINATION AND ABANDONMENT
SECTION 9.1. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) by mutual consent of Holdings and Buyer; or
(b) by either Holdings or Buyer:
(i) if a court of competent jurisdiction or
Governmental Authority shall have issued an order, decree or ruling or taken any
other action (which order, decree or ruling the parties hereto shall use their
best efforts to lift), in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement, and such
order, decree, ruling or other action shall have become final and nonappealable;
or
(ii) if the Closing shall not have occurred on or
before June 30, 2000; provided, however, that (A) Buyer shall have the right, in
its sole discretion, to extend the time period in this Section 9.1(b)(ii) an
additional sixty days and (B) the right to terminate this Agreement shall not be
available to any party whose breach of this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such date.
SECTION 9.2. Procedure and Effect of Termination. In the event of
termination and abandonment of the transactions contemplated hereby pursuant to
Section 9.1, written notice thereof shall forthwith be given to the other
parties to this Agreement and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further action by
any of the parties hereto. If this Agreement is terminated as provided herein:
(a) upon request therefor, each party will redeliver all
documents, work papers and other material of any other party relating to the
transactions contemplated hereby, whether obtained before or after the execution
hereof, to the party furnishing the same; and
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(b) no party hereto shall have any liability or further
obligation to any other party to this Agreement resulting from such termination
except (i) that the provisions of this Section 9.2 and the proviso of Section
9.1(b)(ii) shall remain in full force and effect and (ii) no party waives any
claim or right against a breaching party to the extent that such termination
results from the breach by a party hereto of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Amendment and Modification. This Agreement may be
amended, modified or supplemented by a written instrument signed by the parties
hereto.
SECTION 10.2. Waiver of Compliance; Consents. Any failure of Buyer, on
the one hand, or of Holdings or the Company, on the other hand, to comply with
any obligation, covenant, agreement or condition contained herein may be waived
in writing by Holdings or Buyer, respectively, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
other failure.
SECTION 10.3. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
SECTION 10.4. Expenses and Obligations. All costs and expenses incurred
in connection with the consummation of the transactions contemplated by this
Agreement by Buyer shall be paid by Buyer, and all costs and expenses incurred
in connection with the consummation of the transactions contemplated by this
Agreement by Holdings or the Company shall be paid by Holdings.
SECTION 10.5. Parties in Interest. This Agreement shall be binding upon
and, except as provided below, inure solely to the benefit of each party hereto,
and nothing in this Agreement, except as set forth below, express or implied, is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
SECTION 10.6. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon the earlier of delivery
thereof if by hand or upon receipt if sent by mail (registered or certified,
postage prepaid, return receipt requested) or on the second next business day
after deposit if sent by a recognized overnight delivery service or upon
transmission if sent by telecopy or facsimile transmission (with request of
assurance of receipt in a manner customary for communication of such type) as
follows:
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<PAGE> 29
(a) If to Buyer, to:
Viasystems International, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attention: David J. Webster
Facsimile No.: (314) 746-2299
with a copy to:
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201
Attention: R. Scott Cohen
Facsimile No.: (214) 746-7777
(b) If to Holdings or the Company, to:
International Wire Group, Inc.
101 South Hanley Road, Suite 1075
St. Louis, Missouri 63015
Attention: David M. Sindelar
Facsimile No.: (314) 746-2299
and
Lewis, Rice & Fingersh
500 N. Broadway, Suite 2000
St. Louis, Missouri 63102-2147
Attention: John K. Pruellage
Facsimile No.: (314) 241-6056
SECTION 10.7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without regard to
the conflicts-of-laws rules thereof.
SECTION 10.8. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
SECTION 10.9. Headings. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 10.10. Entire Agreement. This Agreement and the Disclosure
Schedule embody the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein or therein. There are no
agreements, representations, warranties or covenants other than those expressly
set forth herein or therein. This Agreement and the Disclosure Schedule
supersede all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 10.11. Assignment. This Agreement shall not be assigned by
operation of law or otherwise.
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SECTION 10.12. Jurisdiction and Venue. The parties hereto agree that
any suit, action or proceeding arising out of or relating to this Agreement
shall be instituted only in the United States District Court for the Eastern
District of Missouri, United States of America. Each party waives any objection
it may have now or hereafter to the laying of the venue of any such suit, action
or proceeding, and irrevocably submits to the jurisdiction of any such court in
any such suit, action or proceeding.
SECTION 10.13. Tax Matters.
(a) Holdings agrees to indemnify, defend and hold harmless
Buyer and its affiliates and their respective directors, officers, partners,
employees, agents and representatives from and against any and all Indemnifiable
Losses to the extent relating to, resulting from or arising out of:
(i) any Taxes with respect to any taxable period of
the Company or any of its Subsidiaries ending on or before the Closing Date;
(ii) any Taxes with respect to any taxable period of
the Company or any of its Subsidiaries beginning before and ending after the
Closing Date (a "Straddle Period") that are allocable pursuant to Section
10.13(b) to the portion of such Straddle Period ending on the Closing Date, but
only to the extent that the amount of such allocable Straddle Period Taxes
exceeds amounts accrued or reserved for current Taxes (but not deferred Taxes)
in the books and records of the Company and its Subsidiaries and in accordance
with GAAP;
(iii) any Taxes imposed on the Company or any of its
Subsidiaries attributable to any member of a consolidated or combined group
(other than the Company or any of its Subsidiaries) of which the Company or any
of its Subsidiaries is or was a member on or prior to the Closing Date and so
imposed pursuant to Treasury Regulation Section 1.1502-6(a) or any predecessor
or successor thereof or any analogous or similar state, local or foreign Law,
including without limitation, any liability for Taxes resulting from an
"intercompany transaction" in respect of which gain was deferred pursuant to
Treasury Regulations Section 1.1502-13(a)(2) (or any predecessor or successor
thereof or any analogous or similar provision under state, local or foreign
law), that occurred on or before the Closing Date, and those certain claims
asserted by the Internal Revenue Service arising out of or related to a Revenue
Agent's Report issued by the District Director of Internal Revenue at
Indianapolis, Indiana (E:QMB) under letter dated October 4, 1999 in respect of
Kirtland Indiana, Limited Partnership and the partners thereof; and
(iv) any Tax Sharing Agreement in effect on or prior
to the Closing Date.
Notwithstanding the foregoing, Holdings shall have no indemnification
obligations hereunder in respect of any Taxes attributable to any operations,
actions or transactions of or with respect to the Company or any of its
Subsidiaries which occur or are deemed to occur after the Closing Date.
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<PAGE> 31
(b) Taxes shall be allocated to the portion of a Straddle
Period ending on the Closing Date for purposes of Section 10.13(a)(ii) by
closing the books of the Company as of the Closing Date, or where not
susceptible to such method of allocation, on the basis of the ratio of the
number of elapsed days in the period through the Closing Date to the total
number of days in the period; provided, however, that property Taxes whose lien
date occurs on or prior to the Closing Date shall be allocated to the portion of
the Straddle Period ending on the Closing Date.
(c) Buyer will promptly notify Holdings of the commencement of
any claim, audit, examination, or other proposed change or adjustment by any
taxing authority concerning any Taxes or other Indemnified Losses covered by
Section 10.13(a) ("Tax Claim"). Holdings shall control the strategy, defense and
settlement of any Tax audit or administrative or court proceeding relating to
Taxes of the Company or any of its Subsidiaries subject to indemnification under
Section 10.13(a), including but not limited to extension of the applicable
statute of limitations, at its own expense; provided, however, that Buyer shall
be permitted to participate, at its own expense, in such Tax Claim, audit or
administrative or court proceeding to the extent any aspect thereof affects
Buyer, the Company or its Subsidiaries, and provided, further, that, no
settlement shall be made by Holdings which may reasonably be expected to
materially increase the liability of Buyer, the Company or any of its
Subsidiaries in a taxable period ending after the Closing Date without the prior
written consent of Buyer, which consent will not be unreasonably withheld.
Holdings shall promptly notify Buyer in writing if Holdings decides not to
participate in the defense of any such Tax Claim, Tax audit or administrative or
court proceeding and Buyer thereupon shall be permitted to defend such Tax
Claim, Tax audit or proceeding, provided, however, that no settlement shall be
made by Buyer without the prior written consent of Holdings, which consent shall
not be unreasonably withheld, and Buyer shall keep Holdings duly informed of the
progress thereof. Holdings will promptly notify Buyer in writing of the
commencement of any claim, audit, examination, or other proposed change or
adjustment by any taxing authority which may affect the liability of Buyer, the
Company or any of its Subsidiaries for Taxes, Holdings shall keep Buyer duly
informed of the progress thereof, and no settlement shall be made thereto
without the prior written consent of Buyer, which consent shall not be
unreasonably withheld.
(d) Any claim for indemnification under Section 10.13(a) may
be made at any time prior to the expiration of the applicable Tax statute of
limitations with respect to the relevant taxable period (including all periods
of extension, whether automatic or permissive).
(e) Holdings and its affiliates and the Company and its
Subsidiaries shall make appropriate arrangements to settle all amounts due to or
due from the Company or any of the Company's Subsidiaries pursuant to any Tax
Sharing Agreement on or prior to the Closing Date. After the Closing Date, none
of the Company or its Subsidiaries shall be a party to or have any further
obligations or rights under any Tax Sharing Agreement, which shall be terminated
as between such parties on the Closing Date.
(f) Holdings shall prepare or cause to be prepared, in a
manner consistent with prior practice and in accordance with applicable law, all
Tax Returns of the Company and its Subsidiaries with respect to all taxable
periods ending on or before the Closing Date and all Seller Consolidated Returns
(the "Seller Returns"), and Holdings shall remit (or cause to be remitted) any
Taxes due with respect to such Seller Returns. Buyer shall be responsible for
27
<PAGE> 32
causing the Company and its Subsidiaries to prepare and file all Tax Returns,
other than Seller Consolidated Returns, required to be filed by any of the
Company or its Subsidiaries with respect to Straddle Periods ("Straddle
Returns"). After the Closing, Buyer shall cause the Company and its Subsidiaries
to timely file any of the Seller Returns which are not Seller Consolidated
Returns. Buyer shall provide Holdings with the opportunity to review and comment
upon the Straddle Returns at least ten business days prior to the filing
thereof.
(g) None of Buyer, the Company or its Subsidiaries shall file
any amended Tax Return which may give rise to a claim for indemnification
hereunder without the prior written consent of Holdings, which consent shall not
be unreasonably withheld. Holdings shall have authority to make all decisions
with respect to matters relating to any Seller Consolidated Return, including,
but not limited to, decisions to amend a Seller Consolidated Return, to extend
the statutes of limitations with respect to any periods covered by a Seller
Consolidated Return, make any election with respect to Seller Consolidated
Returns and to concede, settle, compromise or contest any adjustment asserting
by a taxing authority with respect to a Seller Consolidated Return; provided,
however, that Holdings shall act in a manner consistent with prior practice and
in accordance with applicable law; and provided, further, that Holding shall
take no action under this clause (g) which may reasonably be expected to
materially increase the liability of Buyer, the Company or any of its
Subsidiaries in a taxable period ending after the Closing Date without the prior
written consent of Buyer, which consent shall not be unreasonably withheld.
(h) Holding and Buyer will cooperate with one another in
connection with the preparation and filing of Seller Returns other than Seller
Consolidated Returns and Straddle Returns and for the defense or settlement of
any audit or administrative proceeding relating to Taxes and will provide each
other with access, at any reasonable time and from time to time, at the business
location at which the books and records are maintained, after the Closing Date,
to such Tax data relating to the Company or its Subsidiaries as Holdings or
Buyer, as the case may be, may from time to time reasonably request (including
the relevant portions of Seller Consolidated Returns).
(i) Holdings shall be entitled to receive and to retain any
and all refunds of Taxes in respect of taxable periods of the Company and its
Subsidiaries ending on or before the Closing Date (including any refunds of
Taxes arising from a carryback of losses by the Company or its Subsidiaries
unless such carryback is attributable to the carryback of any loss incurred by
the Company or any of its Subsidiaries after the Closing; provided, however,
that there shall be no requirement to carryback any losses imposed under this
Agreement) or in respect of Straddle Periods to the extent allocable pursuant to
Section 10.13(b) to the portion of such period ending on the Closing Date, net
of any loss or Tax imposed in respect of such refund or as a result of
circumstances giving rise to or underlying such refund. In the event that Buyer
receives any refund (whether through payment, credit or reduction in Taxes) to
which Holdings is entitled hereunder, Buyer shall promptly pay, or cause the
payment of, such refund of Taxes to Holdings, net of any loss or Tax imposed in
respect of such refund or as a result of circumstances giving rise to or
underlying such refund.
(j) No election shall be made under Section 338(g) or Section
338(h)(10) of the Code with respect to the purchase of the Shares of the Company
hereunder.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed on its behalf by its duly authorized officers, all as of
the day and year first above written.
VIASYSTEMS INTERNATIONAL, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
INTERNATIONAL WIRE GROUP, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
WIREKRAFT INDUSTRIES, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
29
<PAGE> 1
EXHIBIT 2.10
CONTRACT MANUFACTURING AGREEMENT
This Contract Manufacturing Agreement (this "Agreement") is
made as of March ____, 2000 by and between Mommers Print Service BV, a company
duly incorporated and existing under the laws of the Netherlands ("Mommers"),
and Viasystems Sweden AB, a company organized under the laws of Sweden
("Norrkoping").
RECITALS:
WHEREAS, Mommers is engaged in the business of designing,
developing, manufacturing, selling and providing product support for complex
multi-layered printed circuit boards and backpanels (the "Products") and selling
to various customers such Products;
WHEREAS, Norrkoping is engaged in the business of
manufacturing printed circuit boards and backpanels, including innerlayers and
has adequate production capacity and is technically capable of manufacturing the
Products;
WHEREAS, Mommers and Norrkoping desire to enter into an
arrangement pursuant to which Norrkoping would provide Manufacturing Services
(as defined) to Mommers on the terms and subject to the conditions set forth
herein; and
WHEREAS, Norrkoping desires to grant Mommers an option to
purchase certain assets used by it in the manufacturing of the Products.
NOW THEREFORE, the parties hereto agree as follows:
I. MANUFACTURING OBLIGATIONS
1.1. Manufacturing Services. Subject to the terms and
conditions set forth in this Agreement, Norrkoping agrees to provide all
services related to the manufacturing of the Products (the "Manufacturing
Services") and Mommers agrees to accept the Manufacturing Services for Products
meeting Mommers' Specifications (as defined), in such quantities as determined
under Section 1.2 hereof. For purpose of this Agreement the term "Mommers'
Specifications" means and includes any and all designs, drawings, blueprints,
formulations, models, specifications, manufacturing data, techniques, processes,
procedures, performance data, know-how and other technical information relating
to the design, manufacture and/or operation of the Products, which are provided
by Mommers to Norrkoping for the purpose of manufacturing Products pursuant to
this Agreement.
1.2. Required Services Forecast. Ten days prior to the first
date of each calendar month, or as otherwise agree by the parties hereto,
Mommers shall prepare and submit to Norrkoping a forecast of the Manufacturing
Services which
<PAGE> 2
Mommers reasonably expects will be required during each month (the "Services
Forecast").
1.3. Independent Contractors. The relationship of Mommers and
Norrkoping established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed to (i) give either party
the power to direct and control the day-to-day activities of the other, (ii)
constitute the parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking; (iii) constitute Norrkoping to be
an agent or retailer within the meaning of the applicable law; (iv) prevent
Norrkoping from entering into any other business; or (v) allow Norrkoping to
create or assume obligations on behalf of Mommers except as provided herein. All
financial and other obligations associated with Norrkoping's business are the
sole responsibility of Norrkoping except as provided herein.
II. PROCESSING AND MANUFACTURE OF PRODUCTS
2.1. Products Specifications. Mommers will provide to
Norrkoping copies of all data and documents embodying Specifications required to
permit Norrkoping to manufacture the Products. Mommers' Specifications will
include any data, know-how and other technical information concerning
manufacturing procedures that have been used by Mommers or its representatives
to manufacture the Products. If Mommers' Specifications are improved, enhanced
or otherwise revised by Mommers during the term of this Agreement, Mommers shall
promptly provide Norrkoping a data package which will include all such revised
Mommers' Specifications. Thereafter, Norrkoping will utilize all such revised
Mommers' Specifications in the manufacture of Products.
2.2. Sourcing of Materials. Mommers shall approve all
materials to be used by Norrkoping to manufacture the Products.
2.3. Production. Norrkoping will utilize manufacturing
processes or production methods approved by Mommers. Norrkoping will employ
proper equipment, machinery and production methods to ensure that the Products
will at all times meet Mommers' Specifications. All rights related to any
production method developed by Norrkoping in furtherance of this Agreement shall
be the sole and exclusive property of Mommers.
2.4. Monitoring of Production. Mommers (or its
representatives) shall have the right to (a) examine Norrkoping's purchasing
records to determine whether materials acquired for use in the Products have
been purchased from approved vendors; (b) inspect work in progress to determine
the adequacy of production methods and equipment employed by Norrkoping; and (c)
conduct spot inspections of finished Products to verify that the Products have
been manufactured in accordance with the Product Specifications. All
representatives of Mommers
2
<PAGE> 3
conducting such inspections shall comply with all applicable safety and security
rules of Norrkoping.
2.5. Testing. The finished Products will be tested by or on
behalf of Mommers in accordance with procedures established by the parties from
time to time.
III. ORDER PROCEDURE AND SHIPMENT
3.1. Manufacturing Service Orders. All orders for
Manufacturing Services placed by Mommers for the manufacture of Products
hereunder will identify and specify the quantity of Products being ordered and
will contain other detailed instructions including appropriate labeling
instructions and the desired date of delivery. Norrkoping will acknowledge the
receipt of and accept Mommers' Manufacturing Services orders within ten calendar
days of receipt, or as otherwise agreed by the parties hereto. Mommers
acknowledges that Norrkoping is producing Products solely at the order and
direction of Mommers, and that therefore all purchase orders shall be
noncancellable after either acceptance or if not disapproved within 10 calendar
days of receipt, or as otherwise agreed by the parties hereto.
3.2. Delivery Schedule and Inventory. Norrkoping shall use its
best efforts to fill all Manufacturing Services orders of Mommers in accordance
with the delivery schedule contained therein.
3.3. Shipment. Norrkoping will ship the Products in accordance
with Mommers' instructions. All freight and insurance charges and other costs,
expenses, fees, duties, imports, value added taxes and charges of whatever kind
or nature arising from shipment of the Products to the destination specified by
Mommers will be for Mommers' sole account.
IV. PAYMENT OBLIGATION OF MOMMERS
4.1. Manufacturing Services. During the term of this
Agreement, the price for the Manufacturing Services shall be based upon Mommers'
direct cost to manufacture such Product for which such Manufacturing Services
are contracted for at Mommers' Echt facility. During the term of this Agreement,
Mommers shall submit to Norrkoping a complete breakdown of its direct cost
associated with the manufacture of any Product for which Mommers is contracting
for Manufacturing Services. The price of such Manufacturing Services shall be
increased or decreased, as the case may be and from time to time, to reflect
changes in the cost of raw materials, labor rates, utility rates and any other
component of direct manufacturing cost at Mommers' Echt facility.
4.2. Payment Terms. All amounts invoiced and payable under
this Agreement shall be paid in U.S. dollars and all amounts shall be due and
payable by wire transfer of immediately available funds in sixty 60 days from
the date of shipment
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<PAGE> 4
of the Product for which Manufacturing Services have been provided. Interests
shall incur on all past due amounts at the rate of twelve percent (12%) per
annum.
4.3. Reporting. At all times during the term of this
Agreement, Norrkoping will maintain at its principal place of business full,
complete and accurate books of account and records with regard to its activities
under this Agreement. Upon reasonable notice, Norrkoping will grant Mommers
access during regular business hours to Norrkoping's books and records in order
for Mommers to verify, at its own expense, Norrkoping's compliance with its
obligations under this Agreement.
V. WARRANTIES AND LIABILITIES
5.1. Warranties. Norrkoping expressly warrants to Mommers and
to purchasers of Mommers' Products that the Manufacturing Services and the
Products will conform to the applicable Mommers' Specifications. Norrkoping
shall indemnify and hold Mommers harmless from any and all liability,
consequential or otherwise, incurred by Mommers due to any defective Product
supplied by Norrkoping.
5.2. Insurance of Norrkoping. Norrkoping will obtain and
maintain during the term of this Agreement, in addition to insurance in such
amounts as is customary for companies in the same or similar business located in
the same or similar area, a policy of general liability insurance for companies
and entrepreneurs in an amount of at least U.S. $2,500,000. Norrkoping shall use
its best efforts to procure a waiver of subrogation in each policy of insurance
obtained by Norrkoping in favor of Mommers, its affiliates, joint venture
participants, and their respective officers and directors, and shall provide
Mommers with ten days prior written notice of material changes, cancellations or
renewals. Subject to the other provisions of this Agreement, Norrkoping
covenants that during the term of this Agreement, it will at all times by
properly insured in accordance with applicable law.
VI. INTELLECTUAL PROPERTY
6.1. Intellectual Property. (a) All trademarks, know-how and
other property (whether tangible or intangible) made available to Norrkoping by
or on behalf of Mommers during the term of this Agreement, is and will at all
times remain the property of Mommers and will be returned to Mommers immediately
upon termination of this Agreement or upon the earlier request of Mommers. All
intellectual property which has arisen in the exercise of Norrkoping's duties
will be the property of Mommers. Norrkoping is bound by subscription to render
to the official conveyance of any intellectual property to Mommers if
indispensable, also after termination of this Agreement. The essential costs are
for the account of Mommers.
(b) Norrkoping will not incorporate anything in the
Manufacturing Services which involves the use of a trade secret, patent,
copyright or other intellectual
4
<PAGE> 5
property right of a third party under which Mommers has no license rights or any
other right of use.
6.2. Intellectual Property Indemnification. (a) Except as
provided in this Section 6.2, Mommers shall defend, indemnify and hold harmless
Norrkoping from and against any and all claims, demands, suits or proceedings
made or brought against Norrkoping, and shall reimburse Norrkoping for any and
all liabilities, judgments, damages, costs or expenses payable by Norrkoping to
the party bringing such action together with reasonable attorneys' fees relating
thereto, as a result of any infringement of any third party patent by the
Products, unless these claims, demands, suits or proceedings are caused by gross
negligence or willful misconduct.
(b) Mommers will be relieved of its obligations under Section
6.2.(a) unless Norrkoping notifies Mommers promptly in writing of and gives
Mommers the exclusive authority to defend or settle such claim, demand, suit or
proceeding, and gives Mommers proper and full information and assistance to
settle or defend any such claim, demand, suit or proceeding. If the Products, or
any part thereof, are, or in the opinion of Norrkoping become, the subject of
any claim, demand, suit or proceeding for infringement of any third party patent
or copyright, or if it is adjudicatively determined that the Products, or any
part thereof, infringes any third party patent or copyright then Norrkoping may,
at its option and expense either (i) procure for Norrkoping the right under such
third party patent or copyright to sell or use, as appropriate, the products; or
(ii) replace or modify the Products or parts thereof, with other suitable and
reasonable equivalent technology or parts so that the Products become
non-infringing.
(c) Notwithstanding the provisions of Sections 6.2.(a) and
6.2.(b) hereof, Mommers assumes no liability for any claim arising from the use
of the Products in combination with other equipment or technology not provided
by Mommers, or any claim arising from the use of any Norrkoping process or other
technology if the claim would not have occurred but for such combination of
process or other technology.
(d) Norrkoping will require any subcontractor who provides
personnel or services to agree to the same rights and protection for Mommers
that Norrkoping is required to provide herein.
VII. CONFIDENTIAL INFORMATION
7.1. Confidential Information. Each party and its affiliates,
employees, officers and directors will treat as confidential all Confidential
Information (as defined) of the other party, will not use such Confidential
Information except as expressly set forth herein or otherwise authorized in
writing, will implement reasonable procedures to prohibit the disclosure,
unauthorized duplication, misuse or removal of the other party's Confidential
Information and will not disclose such Confidential Information to any third
party except as may be necessary and required in connection
5
<PAGE> 6
with the rights and obligations of such party under this Agreement, and subject
to confidentiality obligations at least as protective as those set forth herein.
Without limiting the foregoing, each of the parties will use at least the same
procedures and degree of care which it uses to prevent the disclosure of its own
confidential information of like importance to prevent the disclosure of
Confidential Information disclosed to it by the other party under this
Agreement, but in no event less than reasonable care. Furthermore, Norrkoping
shall use its best efforts to prohibit its employees, officers and directors
from using any Confidential Information or other know-how developed during their
employment with Norrkoping for a period of two years after termination of
employment with Norrkoping. As used in this Agreement, the term "Confidential
Information" shall mean any information disclosed by one party to the other
pursuant to this Agreement, which is in written, graphic, machine readable or
other tangible form and is marked "Confidential", "Proprietary" or in some other
manner to indicate its confidential nature. Confidential Information may also
include oral information disclosed by one party to the other pursuant to this
Agreement, provided that such information is designated as confidential at the
time of disclosure and reduced to a written summary by the disclosing party,
within thirty days after its oral disclosure, which is marked in a manner to
indicate its confidential nature and delivered to the receiving party.
VII. GRANT OF OPTION
8.1 Option Grant. Norrkoping hereby grants to Mommers the
right and option (the "Option") to purchase all of the right, title and interest
of Norrkoping, its successors and assigns, in and to the assets utilized by
Norrkoping in the manufacture of the Products (the "Norrkoping Assets") at a
purchase price equal to the book value of Norrkoping Assets on the date of
exercise as they would appear on the balance sheet of Norrkoping prepared in
accordance with generally accepted accounting principles.
8.2 Time and Manner of Exercise of Option. The Option may be
exercised by Mommers at any time following the date of this Agreement and on or
prior to the second anniversary of the date of this Agreement. The Option shall
be exercised by Mommers by delivering to Norrkoping written notice of exercise
of such Option. Upon the exercise of such Option, Norrkoping and Mommers shall,
as soon as practicable but in no event no later than 10 business days following
written notice of such exercise, enter into an asset purchase agreement or other
transfer documents relating to the Norrkoping Assets in form and substance
mutually agreeable to the parties and consummate the purchase and sale of the
Norrkoping Assets as soon as practicable thereafter.
IX. TERM AND TERMINATION
9.1. Term. This Agreement is a three year contract and
commences on the date hereof.
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<PAGE> 7
9.2. Termination. During the term of this Agreement, either
party may terminate this Agreement at any time, without cause, upon two (2)
week's written notice. Either party may terminate this Agreement at any time
without notice and with immediate effect in the event (a) of bankruptcy of the
other party hereto, in case of official moratorium or liquidation of the other
party, and in case of attachment maintained for at least one month in respect of
substantial debts of the other party; (b) the other party hereto becomes
insolvent or unable to pay its debts as they mature or case to pay its debts as
they mature in the ordinary course of business or makes an assignment for the
benefit of its creditors; (c) a receiver is appointed for the other party hereto
or its property; and (d) the other party hereto fails to perform any material
obligations.
9.3. Obligations on Termination. If this Agreement is
terminated as provided in Section 9.2, Norrkoping shall (a) deliver all Products
in its storage or possession, to any location designated by Mommers; (b) deliver
to Mommers all records, reports and materials pertaining to Norrkoping's
performance of its obligations under this Agreement; (c) execute all documents
necessary to enable Mommers to carry out its obligations to customers and shall
cooperate fully in making the necessary transitions; (d) cooperate with Mommers
in the preparation of a final accounting, and the balance thereof will be paid
within 60 days by the appropriate party; and (e) cease using Mommers' trademark
or trade names and shall change the registration thereof in any other trademarks
or trade names not confusing similar those of Mommers.
9.4. Survival Provisions. Notwithstanding anything in this
Agreement to the contrary, the provisions of Articles 6, 7 and 8 shall survive
the termination of this Agreement for any reason.
X. CONSEQUENCES OF TERMINATION
10.1. Termination of Product Manufacturing. Upon termination
of this Agreement for any reason, Norrkoping shall immediately terminate
production of the Products and all use of Mommers' Specifications and the
Intellectual Property Rights.
10.2. Confidential Information. Upon the termination of this
Agreement for any reason, Norrkoping shall, at the request of Mommers, promptly
return to Mommers or its designated representatives or otherwise dispose of as
Mommers may instruct all materials that contain Confidential Information in
written, recorded or other tangible form (other than correspondence between
Mommers and Norrkoping) which Norrkoping may have in its possession, custody or
under its direct or indirect control.
10.3. Outstanding Payments. The termination of this Agreement
shall not release Mommers from its obligation to pay any sums then owing to
Norrkoping or
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from the obligation to perform any other duty or to discharge any other
liability that has been incurred prior thereto. Subject to the foregoing,
however neither party shall by reason of the expiration or termination of this
Agreement be liable to the other for compensation or damages on account of the
loss of present or prospective profits on sales or anticipated sales, or
expenditures, investments or commitments made in connection therewith.
Norrkoping hereby waives all right to compensation which Norrkoping might
otherwise be entitled to receive under applicable law upon expiration or
termination of this Agreement.
10.4. Employment Contracts. In the event that compensation,
damages, or other award is granted under applicable law to the employees or
other personnel of Norrkoping upon expiration or termination of this Agreement,
Norrkoping shall be fully liable for all such compensation required to be paid.
Norrkoping shall give immediate notice to Mommers of any proceedings in
connection with such claims and shall comply with all reasonable instructions
issued by Mommers in connection therewith. Notwithstanding the foregoing,
Mommers shall not be liable to make contribution to the payment of any
compensation required to be paid as a result of any termination of this
Agreement which is attributable to Norrkoping.
10.5. General Effects. Notwithstanding the termination of this
Agreement, Norrkoping shall continue to abide by the terms of its obligations
under Articles 6, 7, 8, 9 and 10 herein.
XI. GENERAL PROVISIONS
11.1. General Compliance. Each party will at all times and at
its own expense (a) strictly comply with all applicable laws, rules, regulations
and governmental orders, now or hereafter in effect, relating to its performance
of this Agreement; (b) pay all fees and other charges required by such laws,
rules, regulations and orders; and (c) maintain in full force and effect all
licenses, permits, authorizations, registrations and qualifications from all
applicable governmental departments and agencies to the extent necessary to
perform its obligations hereunder.
11.2. Publicity Release. Norrkoping will not use the name of
Mommers or any subsidiary or division thereof, in advertising or promotion
material or publicity releases relating to the Manufacturing Services to be
performed by Norrkoping or the results thereof without the prior written consent
of Mommers.
11.3. Title. All documents, drawings, specifications and other
such pertinent papers prepared by Norrkoping in pursuance of this Agreement
shall become the sole property of Mommers and may be used by Mommers without
accounting therefore to Norrkoping. If requested, Norrkoping will provide one
copy of design calculations for the Manufacturing Services.
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11.4. Governing Law. This Agreement and the legal relations
among the parties hereto will be governed by and construed in accordance with
the laws of the Netherlands.
11.5. Force Majeure. Neither party shall be liable to the
other for its failure to perform any of its obligations hereunder during any
period in which such performance is delayed by circumstances beyond its
reasonable control including, but not limited to, fire, flood, war, embargo,
strike, riot, inability to secure materials and transportation facilities, or
the intervention of any governmental authority. If such delaying cause shall
continue for more than 60 calendar days, the party injured by the inability of
the other to perform shall have the right upon written notice to terminate this
Agreement pursuant to Section 9.2.
11.6. Assignment. Neither party may assign or delegate this
Agreement or any of its licenses, rights or duties under this Agreement without
the prior written consent of the other except either party may assign this
Agreement to a person or entity into which it has merged or which has otherwise
succeeded to all or substantially all of its business and assets, and which has
assumed in writing or by operation of law its obligations under this Agreement.
Norrkoping shall be entitled to subcontract Manufacturing Services to parties
approved by Mommers.
11.7. Approvals and Authority. Each party represents that all
corporate action necessary for the authorization, execution and delivery of this
Agreement by such party and their performance of its obligations hereunder has
been taken. Norrkoping represents and warrants that no consent or approval of
any governmental authority in the Netherlands is required in connection with the
valid execution and performance of this Agreement. Norrkoping will be
responsible for timely filing of this Agreement with any Netherlands government
commissions or agencies.
11.8. Notices. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand, messenger or by
telecommunication to the address specified below:
(a) if to Mommers to:
c/o Viasystems Group, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attn: Joseph S. Catanzaro
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(b) if to Norrkoping to:
c/o European PCB Group (Cayman Islands) Ltd.
101 South Hanley Road
St. Louis, Missouri 63105
Attn: David J. Webster
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
11.9. Partial Invalidity. If any paragraph, provision, or
clause thereof in this Agreement shall be found or be held to be invalid or
unenforceable in any jurisdiction in which this Agreement is being performed,
the remainder of this Agreement shall be valid and enforceable and the parties
shall negotiate, in good faith, a substitute, valid and enforceable provision
which most nearly effects the parties' intent in entering into this Agreement.
11.10. Counterparts. The Agreement may be executed in two or
more counterparts, all of which, taken together, shall be regarded as one and
the same instrument.
11.11. Modification. No alteration, amendment, waiver,
cancellation or any other change in any term or condition of this Agreement
shall be valid or binding on either party unless the same shall have been agreed
to in writing by both parties.
11.12. Waiver. The failure of either party to enforce at any
time the provisions of this Agreement, or the failure to require at any time
performance by the other party of any of the provisions of this Agreement, shall
in no way be constituted to be a present or future waiver of such provisions,
nor in any way affect the validity of either party to enforce each and every
such provision.
11.13. Severability of Covenants. Any covenant, term,
agreement, provision or condition of this Agreement, which in any way contravene
the applicable laws, rules or regulations of any jurisdiction in which the
parties to this Agreement are located, shall be deemed severable and of no force
or effect and shall not affect the validity of any other covenant, term,
agreement, proviso or condition of this Agreement.
11.14. Headings. Titles and headings to Sections herein are
inserted for convenience of reference only, and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
11.15. Entirety of Agreement. The preceding Articles contain
the entire understanding of the parties hereto. All previous proposals and
communications relative to the Manufacturing Services, whether oral or written,
are hereby superseded,
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except to the extent they have been expressly incorporated into this Agreement.
No contrary or additional terms or conditions shall apply notwithstanding any
oral or written statement by Norrkoping, including any invoice, statement, sales
order or other document describing the delivery of Manufacturing Services,
unless agreed to by Mommers in writing.
11.16. Further Assurances. From time to time, as and when
requested by either party hereto, the other party will execute and deliver, or
cause to be executed and delivered all such documents and instruments as may be
reasonably necessary to consummate the transactions contemplated by this
Agreement.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement on the date first hereinbefore written.
MOMMERS PRINT SERVICE BV
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VIASYSTEMS SWEDEN AB
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT 2.11
CONTRACT MANUFACTURING AGREEMENT
This Contract Manufacturing Agreement (this "Agreement") is
made as of March ____, 2000 by and between Mommers Print Service BV, a company
duly incorporated and existing under the laws of the Netherlands ("Mommers"),
and Viasystems Tyneside Limited, a company organized under the laws of England
and Wales ("North Tyneside").
RECITALS:
WHEREAS, Mommers is engaged in the business of designing,
developing, manufacturing, selling and providing product support for complex
multi-layered printed circuit boards and backpanels (the "Products") and selling
to various customers such Products;
WHEREAS, North Tyneside is engaged in the business of
manufacturing printed circuit boards and backpanels, including innerlayers and
has adequate production capacity and is technically capable of manufacturing the
Products;
WHEREAS, Mommers and North Tyneside desire to enter into an
arrangement pursuant to which North Tyneside would provide Manufacturing
Services (as defined) to Mommers on the terms and subject to the conditions set
forth herein; and
WHEREAS, Norrkoping desires to grant Mommers an option to
purchase certain assets used by it in the manufacturing of the Products.
NOW THEREFORE, the parties hereto agree as follows:
I. MANUFACTURING OBLIGATIONS
1.1. Manufacturing Services. Subject to the terms and
conditions set forth in this Agreement, North Tyneside agrees to provide all
services related to the manufacturing of the Products (the "Manufacturing
Services") and Mommers agrees to accept the Manufacturing Services for Products
meeting Mommers' Specifications (as defined), in such quantities as determined
under Section 1.2 hereof. For purpose of this Agreement the term "Mommers'
Specifications" means and includes any and all designs, drawings, blueprints,
formulations, models, specifications, manufacturing data, techniques, processes,
procedures, performance data, know-how and other technical information relating
to the design, manufacture and/or operation of the Products, which are provided
by Mommers to Norrkoping for the purpose of manufacturing Products pursuant to
this Agreement.
1.2. Required Services Forecast. Ten days prior to the first
date of each calendar month, or as otherwise agree by the parties hereto,
Mommers shall prepare and submit to North Tyneside a forecast of the
Manufacturing Services which
<PAGE> 2
Mommers reasonably expects will be required during each month (the "Services
Forecast").
1.3. Independent Contractors. The relationship of Mommers and
North Tyneside established by this Agreement is that of independent contractors,
and nothing contained in this Agreement shall be construed to (i) give either
party the power to direct and control the day-to-day activities of the other,
(ii) constitute the parties as partners, joint venturers, co-owners or otherwise
as participants in a joint or common undertaking; (iii) constitute North
Tyneside to be an agent or retailer within the meaning of the applicable law;
(iv) prevent North Tyneside from entering into any other business; or (v) allow
North Tyneside to create or assume obligations on behalf of Mommers except as
provided herein. All financial and other obligations associated with North
Tyneside's business are the sole responsibility of North Tyneside except as
provided herein.
II. PROCESSING AND MANUFACTURE OF PRODUCTS
2.1. Products Specifications. Mommers will provide to North
Tyneside copies of all data and documents embodying Specifications required to
permit North Tyneside to manufacture the Products. Mommers' Specifications will
include any data, know-how and other technical information concerning
manufacturing procedures that have been used by Mommers or its representatives
to manufacture the Products. If Mommers' Specifications are improved, enhanced
or otherwise revised by Mommers during the term of this Agreement, Mommers shall
promptly provide North Tyneside a data package which will include all such
revised Mommers' Specifications. Thereafter, North Tyneside will utilize all
such revised Mommers' Specifications in the manufacture of Products.
2.2. Sourcing of Materials. Mommers shall approve all
materials to be used by North Tyneside to manufacture the Products.
2.3. Production. North Tyneside will utilize manufacturing
processes or production methods approved by Mommers. North Tyneside will employ
proper equipment, machinery and production methods to ensure that the Products
will at all times meet Mommers' Specifications. All rights related to any
production method developed by North Tyneside in furtherance of this Agreement
shall be the sole and exclusive property of Mommers.
2.4. Monitoring of Production. Mommers (or its
representatives) shall have the right to (a) examine North Tyneside's purchasing
records to determine whether materials acquired for use in the Products have
been purchased from approved vendors; (b) inspect work in progress to determine
the adequacy of production methods and equipment employed by North Tyneside; and
(c) conduct spot inspections of finished Products to verify that the Products
have been manufactured in accordance with the Product Specifications. All
representatives of Mommers
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conducting such inspections shall comply with all applicable safety and security
rules of North Tyneside.
2.5. Testing. The finished Products will be tested by or on
behalf of Mommers in accordance with procedures established by the parties from
time to time.
III. ORDER PROCEDURE AND SHIPMENT
3.1. Manufacturing Service Orders. All orders for
Manufacturing Services placed by Mommers for the manufacture of Products
hereunder will identify and specify the quantity of Products being ordered and
will contain other detailed instructions including appropriate labeling
instructions and the desired date of delivery. North Tyneside will acknowledge
the receipt of and accept Mommers' Manufacturing Services orders within ten
calendar days of receipt, or as otherwise agreed by the parties hereto. Mommers
acknowledges that North Tyneside is producing Products solely at the order and
direction of Mommers, and that therefore all purchase orders shall be
noncancellable after either acceptance or if not disapproved within 10 calendar
days of receipt, or as otherwise agreed by the parties hereto.
3.2. Delivery Schedule and Inventory. North Tyneside shall
use its best efforts to fill all Manufacturing Services orders of Mommers in
accordance with the delivery schedule contained therein.
3.3. Shipment. North Tyneside will ship the Products in
accordance with Mommers' instructions. All freight and insurance charges and
other costs, expenses, fees, duties, imports, value added taxes and charges of
whatever kind or nature arising from shipment of the Products to the destination
specified by Mommers will be for Mommers' sole account.
IV. PAYMENT OBLIGATION OF MOMMERS
4.1. Manufacturing Services. During the term of this
Agreement, the price for the Manufacturing Services shall be based upon Mommers'
direct cost to manufacture such Product for which such Manufacturing Services
are contracted for at Mommers' Echt facility. During the term of this Agreement,
Mommers shall submit to North Tyneside a complete breakdown of its direct cost
associated with the manufacture of any Product for which Mommers is contracting
for Manufacturing Services. The price of such Manufacturing Services shall be
increased or decreased, as the case may be and from time to time, to reflect
changes in the cost of raw materials, labor rates, utility rates and any other
component of direct manufacturing cost at Mommers' Echt facility.
4.2. Payment Terms. All amounts invoiced and payable under
this Agreement shall be paid in U.S. dollars and all amounts shall be due and
payable by
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wire transfer of immediately available funds in sixty 60 days from the date of
shipment of the Product for which Manufacturing Services have been provided.
Interests shall incur on all past due amounts at the rate of twelve percent
(12%) per annum.
4.3. Reporting. At all times during the term of this
Agreement, North Tyneside will maintain at its principal place of business full,
complete and accurate books of account and records with regard to its activities
under this Agreement. Upon reasonable notice, North Tyneside will grant Mommers
access during regular business hours to North Tyneside's books and records in
order for Mommers to verify, at its own expense, North Tyneside's compliance
with its obligations under this Agreement.
V. WARRANTIES AND LIABILITIES
5.1. Warranties. North Tyneside expressly warrants to Mommers
and to purchasers of Mommers' Products that the Manufacturing Services and the
Products will conform to the applicable Mommers' Specifications. Norrkoping
shall indemnify and hold Mommers harmless from any and all liability,
consequential or otherwise, incurred by Mommers due to any defective Product
supplied by Norrkoping.
5.2. Insurance of North Tyneside. North Tyneside will obtain
and maintain during the term of this Agreement, in addition to insurance in such
amounts as is customary for companies in the same or similar business located in
the same or similar area, a policy of general liability insurance for companies
and entrepreneurs in an amount of at least U.S. $2,500,000. North Tyneside shall
use its best efforts to procure a waiver of subrogation in each policy of
insurance obtained by North Tyneside in favor of Mommers, its affiliates, joint
venture participants, and their respective officers and directors, and shall
provide Mommers with ten days prior written notice of material changes,
cancellations or renewals. Subject to the other provisions of this Agreement,
North Tyneside covenants that during the term of this Agreement, it will at all
times by properly insured in accordance with applicable law.
VI. INTELLECTUAL PROPERTY
6.1. Intellectual Property. (a) All trademarks, know-how and
other property (whether tangible or intangible) made available to North Tyneside
by or on behalf of Mommers during the term of this Agreement, is and will at all
times remain the property of Mommers and will be returned to Mommers immediately
upon termination of this Agreement or upon the earlier request of Mommers. All
intellectual property which has arisen in the exercise of North Tyneside's
duties will be the property of Mommers. North Tyneside is bound by subscription
to render to the official conveyance of any intellectual property to Mommers if
indispensable, also after termination of this Agreement. The essential costs are
for the account of Mommers.
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(b) North Tyneside will not incorporate anything in the
Manufacturing Services which involves the use of a trade secret, patent,
copyright or other intellectual property right of a third party under which
Mommers has no license rights or any other right of use.
6.2. Intellectual Property Indemnification. (a) Except as
provided in this Section 6.2, Mommers shall defend, indemnify and hold harmless
North Tyneside from and against any and all claims, demands, suits or
proceedings made or brought against North Tyneside, and shall reimburse North
Tyneside for any and all liabilities, judgments, damages, costs or expenses
payable by North Tyneside to the party bringing such action together with
reasonable attorneys' fees relating thereto, as a result of any infringement of
any third party patent by the Products, unless these claims, demands, suits or
proceedings are caused by gross negligence or willful misconduct.
(b) Mommers will be relieved of its obligations under Section
6.2.(a) unless North Tyneside notifies Mommers promptly in writing of and gives
Mommers the exclusive authority to defend or settle such claim, demand, suit or
proceeding, and gives Mommers proper and full information and assistance to
settle or defend any such claim, demand, suit or proceeding. If the Products, or
any part thereof, are, or in the opinion of North Tyneside become, the subject
of any claim, demand, suit or proceeding for infringement of any third party
patent or copyright, or if it is adjudicatively determined that the Products, or
any part thereof, infringes any third party patent or copyright then North
Tyneside may, at its option and expense either (i) procure for North Tyneside
the right under such third party patent or copyright to sell or use, as
appropriate, the products; or (ii) replace or modify the Products or parts
thereof, with other suitable and reasonable equivalent technology or parts so
that the Products become non-infringing.
(c) Notwithstanding the provisions of Sections 6.2.(a) and
6.2.(b) hereof, Mommers assumes no liability for any claim arising from the use
of the Products in combination with other equipment or technology not provided
by Mommers, or any claim arising from the use of any North Tyneside process or
other technology if the claim would not have occurred but for such combination
of process or other technology.
(d) North Tyneside will require any subcontractor who provides
personnel or services to agree to the same rights and protection for Mommers
that North Tyneside is required to provide herein.
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<PAGE> 6
VII. CONFIDENTIAL INFORMATION
7.1. Confidential Information. Each party and its affiliates,
employees, officers and directors will treat as confidential all Confidential
Information (as defined) of the other party, will not use such Confidential
Information except as expressly set forth herein or otherwise authorized in
writing, will implement reasonable procedures to prohibit the disclosure,
unauthorized duplication, misuse or removal of the other party's Confidential
Information and will not disclose such Confidential Information to any third
party except as may be necessary and required in connection with the rights and
obligations of such party under this Agreement, and subject to confidentiality
obligations at least as protective as those set forth herein. Without limiting
the foregoing, each of the parties will use at least the same procedures and
degree of care which it uses to prevent the disclosure of its own confidential
information of like importance to prevent the disclosure of Confidential
Information disclosed to it by the other party under this Agreement, but in no
event less than reasonable care. Furthermore, North Tyneside shall use its best
efforts to prohibit its employees, officers and directors from using any
Confidential Information or other know-how developed during their employment
with North Tyneside for a period of two years after termination of employment
with North Tyneside. As used in this Agreement, the term "Confidential
Information" shall mean any information disclosed by one party to the other
pursuant to this Agreement, which is in written, graphic, machine readable or
other tangible form and is marked "Confidential", "Proprietary" or in some other
manner to indicate its confidential nature. Confidential Information may also
include oral information disclosed by one party to the other pursuant to this
Agreement, provided that such information is designated as confidential at the
time of disclosure and reduced to a written summary by the disclosing party,
within thirty days after its oral disclosure, which is marked in a manner to
indicate its confidential nature and delivered to the receiving party.
VII. GRANT OF OPTION
8.1 Option Grant. North Tyneside hereby grants to Mommers the
right and option (the "Option") to purchase all of the right, title and interest
of North Tyneside, its successors and assigns, in and to the assets utilized by
North Tyneside in the manufacture of the Products (the "North Tyneside Assets")
at a purchase price equal to the book value of North Tyneside Assets on the date
of exercise as they would appear on the balance sheet of Norrkoping prepared in
accordance with generally accepted accounting principles.
8.2 Time and Manner of Exercise of Option. The Option may be
exercised by Mommers at any time following the date of this Agreement and on or
prior to the second anniversary of the date of this Agreement. The Option shall
be exercised by Mommers by delivering to North Tyneside written notice of
exercise of such Option. Upon the exercise of such Option, North Tyneside and
Mommers shall, as soon as practicable but in no event no later than 10 business
days following written notice of such exercise, enter into an asset purchase
agreement or other transfer documents
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relating to the North Tyneside Assets in form and substance mutually agreeable
to the parties and consummate the purchase and sale of the North Tyneside Assets
as soon as practicable thereafter.
IX. TERM AND TERMINATION
9.1. Term. This Agreement is a three year contract and
commences on the date hereof.
9.2. Termination. During the term of this Agreement, either
party may terminate this Agreement at any time, without cause, upon two (2)
week's written notice. Either party may terminate this Agreement at any time
without notice and with immediate effect in the event (a) of bankruptcy of the
other party hereto, in case of official moratorium or liquidation of the other
party, and in case of attachment maintained for at least one month in respect of
substantial debts of the other party; (b) the other party hereto becomes
insolvent or unable to pay its debts as they mature or case to pay its debts as
they mature in the ordinary course of business or makes an assignment for the
benefit of its creditors; (c) a receiver is appointed for the other party hereto
or its property; and (d) the other party hereto fails to perform any material
obligations.
9.3. Obligations on Termination. If this Agreement is
terminated as provided in Section 9.2, North Tyneside shall (a) deliver all
Products in its storage or possession, to any location designated by Mommers;
(b) deliver to Mommers all records, reports and materials pertaining to North
Tyneside's performance of its obligations under this Agreement; (c) execute all
documents necessary to enable Mommers to carry out its obligations to customers
and shall cooperate fully in making the necessary transitions; (d) cooperate
with Mommers in the preparation of a final accounting, and the balance thereof
will be paid within 60 days by the appropriate party; and (e) cease using
Mommers' trademark or trade names and shall change the registration thereof in
any other trademarks or trade names not confusing similar those of Mommers.
9.4. Survival Provisions. Notwithstanding anything in this
Agreement to the contrary, the provisions of Articles 6, 7 and 8 shall survive
the termination of this Agreement for any reason.
X. CONSEQUENCES OF TERMINATION
10.1. Termination of Product Manufacturing. Upon termination
of this Agreement for any reason, North Tyneside shall immediately terminate
production of the Products and all use of Mommers' Specifications and the
Intellectual Property Rights.
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10.2. Confidential Information. Upon the termination of this
Agreement for any reason, North Tyneside shall, at the request of Mommers,
promptly return to Mommers or its designated representatives or otherwise
dispose of as Mommers may instruct all materials that contain Confidential
Information in written, recorded or other tangible form (other than
correspondence between Mommers and North Tyneside) which North Tyneside may have
in its possession, custody or under its direct or indirect control.
10.3. Outstanding Payments. The termination of this Agreement
shall not release Mommers from its obligation to pay any sums then owing to
North Tyneside or from the obligation to perform any other duty or to discharge
any other liability that has been incurred prior thereto. Subject to the
foregoing, however neither party shall by reason of the expiration or
termination of this Agreement be liable to the other for compensation or damages
on account of the loss of present or prospective profits on sales or anticipated
sales, or expenditures, investments or commitments made in connection therewith.
North Tyneside hereby waives all right to compensation which North Tyneside
might otherwise be entitled to receive under applicable law upon expiration or
termination of this Agreement.
10.4. Employment Contracts. In the event that compensation,
damages, or other award is granted under applicable law to the employees or
other personnel of North Tyneside upon expiration or termination of this
Agreement, North Tyneside shall be fully liable for all such compensation
required to be paid. North Tyneside shall give immediate notice to Mommers of
any proceedings in connection with such claims and shall comply with all
reasonable instructions issued by Mommers in connection therewith.
Notwithstanding the foregoing, Mommers shall not be liable to make contribution
to the payment of any compensation required to be paid as a result of any
termination of this Agreement which is attributable to North Tyneside.
10.5. General Effects. Notwithstanding the termination of this
Agreement, North Tyneside shall continue to abide by the terms of its
obligations under Articles 6, 7, 8, 9 and 10 herein.
XI. GENERAL PROVISIONS
11.1. General Compliance. Each party will at all times and at
its own expense (a) strictly comply with all applicable laws, rules, regulations
and governmental orders, now or hereafter in effect, relating to its performance
of this Agreement; (b) pay all fees and other charges required by such laws,
rules, regulations and orders; and (c) maintain in full force and effect all
licenses, permits, authorizations,
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<PAGE> 9
registrations and qualifications from all applicable governmental departments
and agencies to the extent necessary to perform its obligations hereunder.
11.2. Publicity Release. North Tyneside will not use the name
of Mommers or any subsidiary or division thereof, in advertising or promotion
material or publicity releases relating to the Manufacturing Services to be
performed by North Tyneside or the results thereof without the prior written
consent of Mommers.
11.3. Title. All documents, drawings, specifications and other
such pertinent papers prepared by North Tyneside in pursuance of this Agreement
shall become the sole property of Mommers and may be used by Mommers without
accounting therefore to North Tyneside. If requested, North Tyneside will
provide one copy of design calculations for the Manufacturing Services.
11.4. Governing Law. This Agreement and the legal relations
among the parties hereto will be governed by and construed in accordance with
the laws of the Netherlands.
11.5. Force Majeure. Neither party shall be liable to the
other for its failure to perform any of its obligations hereunder during any
period in which such performance is delayed by circumstances beyond its
reasonable control including, but not limited to, fire, flood, war, embargo,
strike, riot, inability to secure materials and transportation facilities, or
the intervention of any governmental authority. If such delaying cause shall
continue for more than 60 calendar days, the party injured by the inability of
the other to perform shall have the right upon written notice to terminate this
Agreement pursuant to Section 9.2.
11.6. Assignment. Neither party may assign or delegate this
Agreement or any of its licenses, rights or duties under this Agreement without
the prior written consent of the other except either party may assign this
Agreement to a person or entity into which it has merged or which has otherwise
succeeded to all or substantially all of its business and assets, and which has
assumed in writing or by operation of law its obligations under this Agreement.
North Tyneside shall be entitled to subcontract Manufacturing Services to
parties approved by Mommers.
11.7. Approvals and Authority. Each party represents that all
corporate action necessary for the authorization, execution and delivery of this
Agreement by such party and their performance of its obligations hereunder has
been taken. North Tyneside represents and warrants that no consent or approval
of any governmental authority in the Netherlands is required in connection with
the valid execution and performance of this Agreement. North Tyneside will be
responsible for timely filing of this Agreement with any Netherlands government
commissions or agencies.
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11.8. Notices. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand, messenger or by
telecommunication to the address specified below:
(a) if to Mommers to:
c/o Viasystems Group, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attn: Joseph S. Catanzaro
(b) if to North Tyneside to:
c/o European PCB Group (Cayman Islands) Ltd.
101 South Hanley Road
St. Louis, Missouri 63105
Attn: David J. Webster
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
11.9. Partial Invalidity. If any paragraph, provision, or
clause thereof in this Agreement shall be found or be held to be invalid or
unenforceable in any jurisdiction in which this Agreement is being performed,
the remainder of this Agreement shall be valid and enforceable and the parties
shall negotiate, in good faith, a substitute, valid and enforceable provision
which most nearly effects the parties' intent in entering into this Agreement.
11.10. Counterparts. The Agreement may be executed in two or
more counterparts, all of which, taken together, shall be regarded as one and
the same instrument.
11.11. Modification. No alteration, amendment, waiver,
cancellation or any other change in any term or condition of this Agreement
shall be valid or binding on either party unless the same shall have been agreed
to in writing by both parties.
11.12. Waiver. The failure of either party to enforce at any
time the provisions of this Agreement, or the failure to require at any time
performance by the other party of any of the provisions of this Agreement, shall
in no way be constituted to be a present or future waiver of such provisions,
nor in any way affect the validity of either party to enforce each and every
such provision.
10
<PAGE> 11
11.13. Severability of Covenants. Any covenant, term,
agreement, provision or condition of this Agreement, which in any way contravene
the applicable laws, rules or regulations of any jurisdiction in which the
parties to this Agreement are located, shall be deemed severable and of no force
or effect and shall not affect the validity of any other covenant, term,
agreement, proviso or condition of this Agreement.
11.14. Headings. Titles and headings to Sections herein are
inserted for convenience of reference only, and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
11.15. Entirety of Agreement. The preceding Articles contain
the entire understanding of the parties hereto. All previous proposals and
communications relative to the Manufacturing Services, whether oral or written,
are hereby superseded, except to the extent they have been expressly
incorporated into this Agreement. No contrary or additional terms or conditions
shall apply notwithstanding any oral or written statement by North Tyneside,
including any invoice, statement, sales order or other document describing the
delivery of Manufacturing Services, unless agreed to by Mommers in writing.
11.16. Further Assurances. From time to time, as and when
requested by either party hereto, the other party will execute and deliver, or
cause to be executed and delivered all such documents and instruments as may be
reasonably necessary to consummate the transactions contemplated by this
Agreement.
[The remainder of this page is intentionally left blank.]
11
<PAGE> 12
IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement on the date first hereinbefore written.
MOMMERS PRINT SERVICE BV
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
VIASYSTEMS TYNESIDE LIMITED
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
12
<PAGE> 1
EXHIBIT 2.12
SUPPLY CONTRACT
This Supply Contract (this "Supply Contract") is made as of March ___,
2000 between Wire Harness Industries, Inc., a Delaware corporation with an
office and place of business at 101 South Hanley Road, Suite 400, St. Louis,
Missouri 63105 (hereinafter, together with its subsidiaries, "Harness" or
"Buyer") and International Wire Group, Inc., a Delaware corporation with an
office and place of business at 101 South Hanley Road, Suite 1050, St. Louis,
Missouri 63105 (hereinafter, "IWG" or "Seller").
WITNESSETH:
WHEREAS, the seller is engaged in the business of manufacturing,
distributing and selling wire for use in the appliance and other industries
(hereinafter, the "Business");
WHEREAS, the seller and Viasystems International Inc. ("Viasystems")
have entered into a Stock Purchase Agreement (the "Stock Purchase Agreement")
dated as of today's date pursuant to which Viasystems has agreed to purchase
Wirekraft Industries, Inc. ("Wirekraft"), the parent company of Buyer and
Seller has agreed to sell Wirekraft.
WHEREAS, in connection with such Stock Purchase Agreement, Buyer and
Seller desire to formalize the terms upon which Seller sells and Buyer
purchases insulated wire products for use in the present business conducted by
Buyer and any affiliate of Buyer (the "Present Business");
WHEREAS, the Seller desires to sell and the Buyer desires to purchase
one hundred percent (100%) of the Buyer's requirements for Products, as defined
below, for the Present Business, all in accordance with the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, the representations
and agreements hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Seller and
the Buyer hereby mutually agree as follows:
ARTICLE I - TERM
1.1 The initial term of this Agreement (the "Initial Term") shall be from the
date hereof (the "Effective Date") and shall continue in effect until the
third anniversary of the Effective Date (the "Initial Termination Date").
1.2 This Supply Contract shall be automatically renewed for additional one year
periods (each an "Option Term" and, the end of each such Option Term, an
"Optional Termination Date"), unless Harness gives notice to IWG or IWG
gives notice of its intention not to renew the Supply Contract at least six
(6) months
<PAGE> 2
prior to the Initial Termination Date or any Option Termination Date.
The terms and conditions of this Supply Contract in any Option Term
shall be the same as in the Initial Term.
ARTICLE II - PRODUCT/SPECIFICATIONS
2.1 The terms and conditions of this Supply Contract shall govern the
purchase by Buyer from Seller of Wire, including the part numbers and
specifications of which are listed on Exhibit A hereto which is, by
this reference, incorporated herein, as amended from time to time
(hereinafter "Existing Products(s)"), together with all Wire that is
not an Existing Product, including Wire which results from a redesign,
modification or enhancement of an Existing Product (the "Developed
Product(s)" and, together with the Existing Products, the
"Products(s)"). In the event that there are Developed Products which
Buyer desires to purchase for the Present Business, Buyer shall give
reasonably sufficient advance notice of its requirements for such
Developed Products to Seller so that Seller can produce in a
commercially reasonable time period a written production plan to
demonstrate Seller's ability to supply such Developed Products for the
Present Business. In the event that Seller can reasonably demonstrate
to Buyer its ability to supply such Developed Products for the Present
Business, the Developed Products will be included in this Agreement as
Products and an initial price shall be established for such Developed
Product, in writing, by the parties hereto. The parties shall establish
such price based on a comparative analysis for such Developed Products,
including without limitation, reference to the current prices charged
hereunder for an Existing Product similar in design or application to
the Developed Product with due consideration to any change in cost
associated with the materials used in the Developed Product in relation
to the Existing Product and any development cost associated with such
Developed Product; provided however such prices shall not exceed prices
based on competitive quotes.
ARTICLE III - QUANTITY
3.1 Except as otherwise provided herein, during the Initial Term and any
Option Term of this Supply Contract, Buyer agrees to purchase from
Seller, and Seller agrees to supply to Buyer, one hundred percent
(100%) of Buyer's requirements of Products for the Present Business.
Buyer's requirements of Products shall include Viasystems Group Inc.,
and it's subsidiaries, ("Viasystems") to the extent such products are
used in applications for the Present Business.
3.2 Buyer (on behalf of itself or Viasystems) reserves the right, but shall
not be obligated, to purchase Products under this Agreement to supply
all or part of the Product requirements outside the Present Business.
3.3 Buyer reserves the right to purchase Products from an alternate
manufacturer for any of its locations for development and testing
purposes only, provided that such Products are not used in Buyer's
business for commercial resale.
<PAGE> 3
ARTICLE IV - PRICE
4.1 Unless otherwise agreed to by parties in writing all amounts invoiced and
payable under this Supply Contract shall be paid in U.S. dollars and all
amounts shall be due and payable by wire transfer of immediately available
funds in 45 days from the date of shipment.
4.2 Within twenty (20) days of execution of this Supply Contract, Seller shall
submit to Buyer a completed copy of all Existing Products by part number
with copper weight per thousand feet, copper premiums per pound, compounds,
(PVC, Silicones, XLPE) and packaging cost per shipping unit. Exhibit A
shall assist Buyer in determining the validity of price for raw materials
from Seller in accordance with Section 4.3 herein below during the Initial
Term of this Supply Contract, as well as any Option Term. The Price for
each Existing Product should be set forth as Exhibit B, attached hereto.
The list of Developed Products that are hereinafter sold by Seller to Buyer
in accordance with this Supply Contract shall be added to Exhibit A and the
price for such Developed Products shall be added to Exhibit B.
4.3 During the initial Term and any Option Term of this Supply Contract, the
price of Products shall be as set forth on Exhibit B (subject to the
adjustments described in Sections 4.3.1, 4.3.2, and 4.3.3, 4.4 and 4.5
hereof).
4.3.1 Raw Material Price Adjustment. During the term of the Supply
Contract, the price of Products shall be increased or decreased, as
the case may be and from time to time, to reflect changes in the
cost to Seller of each raw material (as hereinafter defined) to the
extent, but not only to the extent, that such change exceeds 5%
of the cost of such raw material as of January 1, 2000.
For the purposes of this Supply Contract, the cost or price of "raw
materials" shall include (i) the cost of any materials (other than
copper) that are used to manufacture Wire, (ii) freight charges
related to the transportation of such raw material, and (iii) any
premium paid in connection with the acquisition of any raw material,
including copper.
4.3.2 Tax or Tariff Changes. In the event of any changes in the tax,
tariff, surcharge or other similar charges (collectively, "Taxes")
that are added by any governmental entity as of the date hereof in
connection with the importation of raw material that increase or
decrease the cost of such raw materials, then the price of Products
shall be automatically increased or decreased, as the case may be,
to reflect any such increase or decrease in Taxes incurred by
Seller in connection with the importation of raw materials.
<PAGE> 4
4.3.3 Copper Price Adjustments. During the term of this Agreement, the
price of Wire will be adjusted on the 1st of each month to reflect
the prior month's spot COMEX average cost per pound of High Grade
Copper Cathode. The monthly adjustment will be based on the copper
weight per pound for each number. The weight for each copper
construction shall be as set forth in accordance with Exhibit A.
4.4 If at any time during the Initial Term or any Option Term of this Supply
Contract, Seller provides more favorable terms for the Products to a
customer other than Buyer, than those terms, including prices, which Buyer
is receiving for the same Product pursuant to this Supply Contract, then
(a) Seller will promptly notify Buyer and (b) so long as Buyer is in
compliance with its obligations under this Supply Contract. Seller shall
grant equally favorable terms, including prices, to Buyer as those granted
to such other customer.
4.5 In the event that Buyer receives an offer from a viable source to supply
similar Products of all types provided hereunder in similar quantities and
at a lower total cost than that offered by Seller and under substantially
similar terms as those offered by Seller in this Agreement, Buyer shall
have the obligation to give Seller the option of meeting such lower total
cost. In the event Seller does not meet such lower total cost, Buyer shall
be allowed to terminate this Agreement or terminate its obligation to buy
particular Products hereunder, with sixty (60) days written notification,
without further obligation to Seller.
4.6 Freight Terms. The Freight terms under this Agreement unless otherwise
changed by the parties hereto in writing, shall be as follows: FOB Buyers
Dock, Henry Brennen Drive, El Paso, Texas.
ARTICLE V - DELIVERY
5.1 As of the Effective Date, Buyer Shall provide Seller with its good faith
written 4-week rolling forecast by Plant of requirements for Products (the
"Forecast"). Such Forecast shall be updated no less frequently than every
week so that as of each update, the Forecast shall cover a 4-week period.
5.2 Buyer shall issue a purchase order (the "Purchase Order") to Seller
covering all purchases of Products by Buyer pursuant to this Supply
Contract and specifying a scheduled delivery date for the Products (the
"Scheduled Delivery Date"), which such Scheduled Delivery Date shall be
between two (2) and four (4) weeks after the date the Purchase Order is
delivered, or as otherwise agreed by the parties to this Agreement in
writing. Seller shall maintain a maximum lead time ("Lead Time") of four
(4) weeks on all Products identified in Exhibit A hereto. Seller agrees to
supply Products to Buyer within the Lead Time.
<PAGE> 5
5.3 Seller shall also use its reasonable best efforts to supply Products by
the Scheduled Delivery Date. Seller must immediately advise Buyer
details of its inability to supply Products by the Scheduled Delivery
Date.
5.4 if, at any time, Seller is unable to meet Buyer's Scheduled Delivery
Date and delivery requirements reflected in the Purchase Order, Buyer
can elect to purchase the Products affected thereby from an alternate
source. Seller should not reject a Scheduled Delivery Date which is
requested by Buyer at in or after the Lead Time. If Seller is unable to
meet Buyer's Scheduled Delivery Date which is requested by Buyer at or
greater than the Lead Time, Buyer shall recover from the Seller any
excess costs, expenses, or penalties incurred by Buyer, due to the
failure by Seller to supply the Product by the Scheduled Delivery Date.
5.5 If Seller's acts or omissions result in Seller's failure to meet Buyer's
Scheduled Delivery Date or delivery requirements for Products reflected
in the Purchase Order and Buyer requires a more expeditious method of
transportation for the Products than the transportation method
originally specified, then Seller shall ship the Products as
expeditiously as possible at Seller's sole expense.
5.6 Shipments shall be made both in quantities, rounded up to the nearest
multiple of Seller's standard packaging quantity.
5.7 If Buyer's acts or omissions result in Seller's failure to meet Buyer's
delivery requirements for Products reflected in the Purchase Order and
Buyer requires a more expeditious method of transportation for the
Products, other than the transportation method originally specified,
then Seller shall ship the Products as expeditiously as possible at
Buyer's sole expense.
5.8 Subject to Article XI hereof, if the material forecasted in accordance
with Article 5.1 is not purchased in 60 days, the Seller will notify the
Buyer and the Buyer will issue a purchase order to the Seller for this
material within five (5) days from notification for immediate delivery.
ARTICLE VI - TECHNICAL ASSISTANCE
6.1 Upon request of Buyer, Seller agrees to provide reasonable technical
assistance in reviewing the cause of any performance problems
experienced by Buyer in any component, sub-assembly and final assembly
that contains components produced using Seller's Products supplied
pursuant to this Supply Contract; provided, however, that such
performance problem is reasonably believed by Buyer to be caused by
Seller's Products.
6.2 Seller agrees to use best efforts to provide resources to engineer,
manufacture and provide to Buyer the most technically advanced, highest
quality, and commercially competitive Product available in the wire
industry.
<PAGE> 6
6.3 Seller shall assist Buyer's product engineering department with technical
issues regarding Seller's current Products and shall provide any
reasonable resources necessary to Buyer to resolve these issues.
ARTICLE VII - NOTICES
7.1 All notices required or permitted hereunder shall be in writing and
shall be deemed to be properly given when personally delivered to an
officer or designated representative of the party entitled to receive
the notice or when sent by certified or registered first class mail,
postage prepaid, or by telecopy, hand delivery, or overnight courier,
properly addressed to the party entitled to receive such notice at the
address stated below:
If to Seller:
International Wire Group, Inc.
101 South Hanley Road, Suite 1050
St. Louis, Missouri 63105
Attn: President and Chief Operating Officer
International Wire Group, Inc.
If to Buyer:
Wire Harness Industries, Inc.
101 South Hanley Road, Suite 1050
St. Louis, Missouri 63105
Attn: President, Wire Harness Industries, Inc.
ARTICLE VIII - QUALITY
8.1 Seller expressly warrants to Buyer and to purchasers of Buyer's Products
that at the time of delivery the Products called for by this Supply
Contract (including tooling, if any), or any Purchase Order pursuant
hereto, will conform to the applicable specifications, and the drawings,
samples and/or descriptions relating thereto, furnished to Seller from
Buyer.
8.2 At all times, Seller expressly warrants that the Products called for by
this Supply Contract, or any Purchase Order issued pursuant hereto, will
be free from material defects in materials and workmanship.
8.3 Seller warrants that it will use its best efforts to ensure that all
Products and/or services provided herein shall conform in all material
respects to the Buyer's furnished specifications. Upon written request,
Seller shall provide to Buyer copies of such documents and records
reasonably requested by Buyer in order to verify compliance with this
Supply Contract including this Section 9.3, provided, however, that
Seller shall not be required to provide Buyer with any
<PAGE> 7
documents or records that it determines in good faith to confidential and
competitively sensitive or which would violate applicable Law.
8.4 If Seller provides Products to Buyer that do not conform to the Buyer's
furnished specifications or are otherwise defective or do not conform to a
Purchase Order issued pursuant to this Agreement, Buyer shall handle and
be responsible for every claim of damage or injury that is based upon a
breach of the foregoing warranty.
8.5 Seller agrees to use its best efforts to track claims of nonconforming
Products, and to work with Buyer to reduce the numbers of such claims by
improving the Products to eliminate defects and/or nonconformities.
ARTICLE IX - CONFIDENTIALITY
9.1 "Propriety Information" shall for the purpose of this Supply Contract,
mean information disclosed by Buyer or Seller (the "Disclosing Party") to
the other party (the "Receiving Party") and identified in writing or other
tangible form at the time of disclosure or, within thirty (30) days of oral
disclosure, as "Proprietary."
9.2 Except as required by law, judicial or governmental order, discovery
request, other legal process or pronouncement or the rules of any national
stock exchange or the Nasdaq Stock Market (collectively, "Law"), the
Receiving Party shall protect as proprietary and keep confidential all
Proprietary Information in accordance with the terms of this Article 9
including, but not limited to, designs, processes, drawings,
specifications, reports, data, terms and conditions and other technical or
business information and the features of all parts, equipment, tools,
gauges, patterns, and other items furnished or disclosed to the Receiving
Party by the Disclosing Party (hereinafter referred to as "Proprietary
Goods"). Unless otherwise provided herein or authorized by the Disclosing
Party in writing, the Receiving Party shall use such Proprietary
Information or Proprietary Goods, and the features thereof, only in the
performance of its obligations under this Supply Contract. Upon completion
or termination of this Supply Contract, or any Purchase Order pursuant
hereto, the Receiving Party shall, at the Disclosing Party's expense, make
such disposition of all such Proprietary Information or Proprietary Goods
as herein required or as may be subsequently requested by the Receiving
Party, including, but not limited to, any studies, analyses, compilations,
or other materials prepared in whole or in party based on said Proprietary
Information or Proprietary Goods.
9.3 In protecting the Disclosing Party's Proprietary Information in accordance
with Article 9.2 above, the Receiving Party agrees to exercise reasonable
steps at the Disclosing Party's expense to safeguard the confidentiality of
the Proprietary Information consistent with the steps the Receiving Party
uses to safeguard its own information consistent with the steps the
Receiving Party uses to safeguard its own information of like kind and,
except as required by Law, not to disclose any part of it to any third
person except to such of the Receiving Party's employees, advisors, counsel
and other representatives as need to know such information for
<PAGE> 8
the purpose of performing obligations under this Supply Contract and whom
such party has directed to preserve the confidentiality of the Proprietary
Information.
9.4 No right or license, either express or implied, under any patent,
copyright, trade secret, for Proprietary Information, Proprietary Goods or
other information is granted hereunder.
9.5 The obligations of this Article 9 shall survive the termination of this
Supply Contract for a period of two (2) years following such termination.
9.6 The Article 9 shall not affect the Receiving Party's rights to use or
disclose information:
(a) which is or may hereafter be in the public domain; or
(b) which the Receiving Party can show was known to it prior to the
disclosure by the Disclosing Party pursuant to the terms of this
Supply Contract; or
(c) which is disclosed to the Receiving Party by a third party and, to the
knowledge of the Receiving party, was not disclosed by such third
party in violation of any agreement between the Disclosing Party and
such third party; or
(d) which is or may hereafter be disclosed by the Disclosing Party to a
third party without similar restrictions on disclosure or use; or
(e) which is independently developed by the Receiving Party without the
use of the Proprietary Information or Proprietary Goods; or
(f) which is required to be disclosed by Law, provided that notice of such
disclosure is promptly provided to the Disclosing Party in order that
it may have every reasonable opportunity to intercede in such process
to contest such disclosure.
ARTICLE X - TERMINATION
10.1 In the event of a material breach of the terms of this Supply Contract by
either party hereto, the non-defaulting party may notify the defaulting
party of such default, specifying in reasonable detail the nature of such
default. Upon receipt of such notice, the parties shall promptly meet and
jointly develop, in good faith, a plan setting forth the steps to be
implemented to enable the defaulting party to cure the default and
prospectively comply with the terms and conditions of this Supply Contract,
which plan shall include the time period for implementing such plan which
shall in no even exceed 30 days (the "Action Plan"). If the defaulting
party does not comply with the terms of the Action Plan within the time
period(s) specified therein, the non-defaulting party may, in addition to
any other rights and
<PAGE> 9
remedies it may have at law or in equity, unless such default is cured
within thirty (30) days of such party's failure to comply with the
Action Plan, either (a) terminate the Supply Contract, or (b) if the
material breach of this Supply Contract is due to Seller's failure to
deliver certain Products in accordance herewith, cancel any Purchase
Order or portion thereof relating to those Products and/or eliminate
such Products from Buyer's purchase requirements pursuant to this
Supply Contract.
10.2 Either party shall also have the right to immediately terminate this
Agreement or any Purchase Order issued pursuant hereto without further
cost or liability to such party in the event of (i) the appointment of
a receiver or trustee for the other party, or (ii) the execution by the
other party of any assignment for the benefit of creditors; provided,
that the petition, appointment or assignment referenced in
sub-paragraphs (i) through (ii) above is not vacated or nullified
within fifteen (15) days of such event.
ARTICLE XI - CANCELLATION OF PURCHASE ORDER
11.1 Without limiting the generality of the foregoing, the Buyer may, by
giving written notice to Seller, terminate any Purchase Order issued
pursuant hereto, in whole or in part, if at any time Buyer's customers
terminate a related agreement, Purchase Order with Buyer for any
reason.
11.2 After Seller's receipt of such notice of termination, Seller shall
immediately terminate all work under Buyer's Purchase Order. Buyer's
liability to Seller with respect to such termination shall be limited
to (x)(i). The purchase price set forth in this Supply Contract for
Products not salable to Seller's other customers or useable in Seller's
other operations in the ordinary course of business over a reasonable
period of time, (ii) Seller's verifiable incurred manufacturing costs
for work in process at the date of notice of termination (not to
exceed the number of Products ordered and reflected in the Forecast
through the manufacturing interval) and (iii) Seller's purchase price
of raw material and components necessary through forecasted lead time,
including finished goods inventory not returnable or useable in
Seller's other operations in the ordinary course of business over a
reasonable period of time, minus (y) any salvage value thereof.
11.3 Buyer shall have no obligation to Seller if Buyer terminates its
purchase se of Seller's default in accordance with the provisions of
Article 11 hereof.
ARTICLE XII - INSPECTION
12.1 Buyer and, if the face of any order issued pursuant hereto bears United
States federal government prime contract number or the Buyer otherwise
advises Seller of the existence of such contract, representatives of
the United States federal government, shall have the right to inspect
and test Seller's Manufacturing Facility, goods, materials and
workmanship at reasonable times and places, and upon reasonable prior
notice, including, when practicable, during manufacture;
<PAGE> 10
and if any such inspection or test is made on the premises of Seller,
Seller shall furnish without cost to Seller all reasonable existing
facilities and assistance for a safe and convenient inspection or test.
Buyer's inspection of the Products, whether during manufacture, prior to
delivery or within a reasonable time after delivery, shall not
constitute acceptance of any work-in-process or finished Products.
12.2 Notwithstanding prior inspection, payment for, or use of the Products,
Buyer shall have the right to reject any of such Products which do not
conform to the requirements of this Supply Contract within thirty (30)
days from the date of delivery of the Products. All such rejected items
shall be returned to seller. In the event that Buyer shall improperly
return Products that conform in all material respects with the terms of
this Supply contract, then Buyer shall pay all reasonable costs and
expenses incurred by Seller in connection with such improper return by
Buyer. Should Buyer in such case repair the Products, all terms and
conditions set forth herein shall remain in full force and effect as to
the Products furnished by Seller.
ARTICLE XIII - PACKAGING; SHIPPING
13.1 Seller agrees to (a) pack, label and ship Products in accordance with
Buyer's standards, (b) make no charge for handling, packaging, storage,
transportation or drayage of Products except as otherwise provided
herein; and (c) provide with each shipment packing slips with Buyer's
Purchase Order number marked thereon. Seller shall reimburse Buyer for
all reasonable and foreseeable out-of-pocket expenses incurred by Buyer
as a result of Seller's improper packing, labeling, routing or shipping.
13.2 The labels on each package and identification of the Products on packing
slips, bills of lading and invoices shall be sufficient to enable Buyer
to easily identify the Products purchased. Seller further agrees to
promptly render, after delivery of Products or performance of services,
correct and complete invoices to Buyer.
ARTICLE XIV - INFRINGEMENT INDEMNITY
14.1 As to any of the Products manufactured or supplied to a design or
specification furnished by Buyer. Buyer shall indemnify and save
harmless Seller, its subsidiaries, affiliates, controlling persons and
successors from any claim, suit, demand, loss, damage, liability and
expense (including reasonable attorneys fees) alleging that the same in
and of itself infringes any United States or foreign patent, copyright,
trademark, semiconductor ship product mask work right or any other
proprietary right, except that the design or specification shall be
deemed to be not furnished by Buyer if the subject matter giving rise to
the claim of infringement either (a) was derived from, or selected by,
the Seller, or (b) relates to materials, compositions, alloys or
processes relating thereto. As to any of the Products manufactured or
supplied other than to a design or specification furnished by Buyer,
Seller shall indemnify and save harmless Buyer and its
<PAGE> 11
successors from any claim, suit, cause of action, demand, loss, damage,
liability and expense (including reasonable attorneys fees) alleging
that any use or resale of the same in and of itself infringes, or
constitutes inducement to infringe, any United States or foreign
patent, copyright, trademark, semiconductor chip product mask work
right or any other proprietary right, except that the design or
specification shall be deemed to be not furnished by Buyer if the
subject matter giving rise to the claim of infringement either (a) was
derived from, or selected by, the Seller, or (b) relates to materials,
compositions, alloys or processes relating thereto.
14.2 Upon the making of any claim indemnified hereunder, the commencement of
any suit or action having basis in such claim, or a belief that such a
claim is likely or imminent, the party against whom such claim is made,
or suit or action commenced, shall promptly notify the other in writing,
and the party required to assume liability therefor under the foregoing
provisions shall promptly assume and diligently conduct the entire
defense thereof, at its own cost and expense; provided, that the party
not required to assume liability shall have the right, insofar as its
interests are affected, at its sole election and at its own cost and
expense, to request the court to permit it to intervene in any such suit
or action or to cooperate in the defense thereof with the party required
to assume liability, without releasing any obligation, liability or
undertaking of the latter party.
ARTICLE XV - AMENDMENT
15.1 Except as otherwise provided herein, no modification of this Supply
Contract or any Purchase Order issued pursuant hereto shall be binding
on Seller or Buyer unless made by a formal written document (either a
Change Notice, Supplement, or Purchase Order Amendment) signed by
Buyer and Seller. The only representatives of Buyer empowered to direct
changes or to agree to modifications of this Agreement are the
respective President's of the Buyer and Seller. No recommendations or
suggestions by Buyer or others to Seller shall be binding on Buyer
unless made in accordance with this Article 15.
ARTICLE XVI - ASSIGNMENT
16.1 Except as otherwise provided herein, performance of this Supply
Contract, or any Purchase Order issued pursuant hereto, and all
obligations relating thereto, shall not be assigned or delegated by
either party without the prior written consent of the other party, such
consent not to be unreasonably withheld.
16.2 Claims for money due or to become due to Seller from Buyer arising out
of this Supply Contract, or any Purchase Order issued pursuant hereto,
may be assigned, But Buyer shall be under no obligation to pay the
assignee unless and until Buyer shall have received, written notice of
the assignment, a true copy of the instrument of assignment, suitable
documentary evidence of Seller's authority so to assign, and a release
from the Seller.
<PAGE> 12
16.3 Except as required by applicable Law, in no event shall copies of this
Supply Contract, any Purchase Order issued pursuant hereto, or of any
plans, specifications, or other similar documents relating to work under
this Supply Contract be disclosed or furnished to any assignee or to any
other person without the prior written consent of the Buyer.
Notwithstanding any such assignment, Seller shall continue to be bound by
the obligations of Article 9 hereof.
ARTICLE XVII - FORCE MAJEURE
17.1 Any delay or failure of either party to perform its obligations hereunder
or under any Purchase Order issued pursuant hereto shall be excused if,
and to the extent that it is caused by an event or occurrence beyond the
reasonable control of the party and without its fault or negligence, such
as, by way of example and not by way of limitation, acts of God, action by
any governmental authority (whether valid or invalid), fires, floods,
windstorms, explosions, urban disturbance and riots, natural disasters,
wars, sabotage, or court injunction or order (a "Force Majeure
Condition"); provided that written notice of such delay (including the
anticipated duration of the delay) shall be given by the affected party to
the other party within twenty-four (24) hours or as early as practicable
taking into account the Force Majeure Condition. During the period of such
delay or failure to perform by Seller, Buyer, at its option, may suspend
this Supply Contract, purchase Products from other sources during such
period, without any liability to Seller, or have Seller provide the
Products from other sources in quantities and at times requested by Buyer
and at the price set forth in this Supply Contract, plus any additional
costs and expenses incurred by Seller in connection therewith as a result
of the Force Majeure Condition. If requested by the Buyer, Seller shall,
within twenty-four (24) hours of such request, provide reasonable
assurance that the delay will cease within six (6) months. If Buyer cannot
provide the Seller a reasonable assurance then the Buyer may immediately
cancel the Agreement or any Purchase Order issued pursuant hereto without
any further liability to Seller. In the event of any period that Seller is
not supplying Buyer with Products due to a Force Majeure Condition, the
Initial Term or any Option Term then in effect shall automatically be
extended by such period.
ARTICLE XVIII - COMPLIANCE WITH LAWS;
COUNTRY OF ORIGIN INFORMATION; CERTIFICATION
18.1 In the performance of this Supply Contract, Seller shall comply in all
material respects with all federal, state and local laws, ordinances,
rules and regulations which may be applicable to Seller's performance of
its obligations hereunder in the country to which Seller's Products are
delivered to Buyer hereunder. Seller hereby certifies that the goods
called for by this Supply Contract, or any Purchase Order issued pursuant
hereto have been or will be produced in compliance in all material
respects with such applicable laws or ordinances.
<PAGE> 13
18.2 Seller, upon written request, shall furnish any and all documents
necessary for Buyer to obtain export credits and customs drawbacks and
in Seller's possession and control. Seller also shall provide
information and, if necessary, certify such information, as to the
country of origin of the goods provided hereunder and the value added
thereto in each country. Seller will provide such information with
respect to the origin of the raw materials, place of processing, and
assembly of any goods delivered hereunder so as to enable Buyer to
certify such information under the law of the United Sates.
ARTICLE XIX - GOVERNMENT CONTRACT REQUIREMENTS
19.1 If this Supply Contract or any Purchase Order issued pursuant hereto is
a subcontract, or a supply contract comprised solely of commercial items
under a United States federal government prime contract as may, in some
cases, be evidenced by the inclusion of a United States federal
government prime contract, to be included in subcontracts or in supply
contracts of this nature, are hereby incorporated in and made a part of
this Supply Contract. The classification of a contract arising out of
these terms and conditions, or the related Purchase Order, as one
comprising commercial item(s) and the decision as to whether Seller is a
subcontractor or supplier, for purposes of determining which U.S.
Government Regulations apply, shall be that of the Buyer. Seller agrees
to accept the inclusion of all applicable U.S. Government FAR and FAR's
Supplemental Clauses.
19.2 Since the phraseology of the clauses incorporated above has been
primarily designed for government prime contracts, words and phrases in
the foregoing regulations importing the United States federal government
or the prime contractor or their representatives shall, when a fair and
reasonable interpretation of the context of this Supply Contract so
requires in order to express properly the subcontract relationship, be
deemed to refer to Buyer or Seller or their respective representatives;
provided, however, that all references to "Government" in the patent
clauses incorporated herein above shall refer only to the United States
Government and all references to "Contacting Officer" in the clauses
incorporated herein above shall refer to the Government Contacting
Officer for the prime contact; provided, further that all references to
the clause entitled "Disputes" shall be deemed deleted. Copies of such
FAR clauses and information as to the Cognizant Contracting Officer
shall be furnished by Buyer to Seller upon request.
ARTICLE XX - INSURANCE
20.1 Seller shall maintain insurance coverage in amounts not less than the
following:
20.1.1 Worker's Compensation - Statutory Limits for the state or states
in which the work ordered under these terms and conditions is
performed (or evidenced of authority and financial ability to
self-insure);
<PAGE> 14
20.1.2 Comprehensive General Liability Insurance (including
Products/Completed Operations and Blanket Contractual Liability)
in which the limit of liability for personal injury or for
property damage shall be $1,000,000 per occurrence, or a combined
single limit of $1,000,000 per occurrence for Personal Injury and
Property Damage; and
20.1.3 Automobile Liability Insurance (including owned, non-owned and
hired vehicles) in which the limit of liability for personal
injury or for property damage shall be $1,000,000 per occurrence,
or combined single limits of $1,000,000 per occurrence for
Personal Injury and Property Damage.
20.2 At Buyer's request in writing, Seller shall furnish to Buyer certificates
of insurance setting forth the amount(s) of coverage, policy number(s) and
details(s) of expiration for insurance maintained by Seller and, if further
requested in writing by Buyer, such certificates will provide that Buyer
shall receive thirty (30) days prior written notification from the insurer
of any termination or reduction in the amount or scope of coverages.
Seller's purchase of appropriate insurance coverage or the furnishing of
certificates of insurance shall not release Seller of its obligations or
liabilities under any Purchaser Order issued hereunder.
ARTICLE XXI - MISCELLANEOUS
21.1 Seller shall not, without first obtaining the written consent of Buyer, in
any manner use any trademarks or trade name of Buyer in Seller's
advertising or promotional materials.
21.2 In the event of any conflict between this Supply Contract and the
provisions of any Purchase Order issued pursuant hereto, the terms of
this Supply Contract shall govern.
21.3 Captions, as used herein, are for convenience or reference only and shall
not be construed to limit or extend the language of the provisions to which
such captions may refer.
21.4 The provisions of this Supply Contract, together with all exhibits,
schedules and appendices hereto, constitute the complete and exclusive
agreement between the parties hereto and supersede any and all previous
communications, representations or agreements, whether oral or written,
between the parties with respect to the subject matter hereof.
21.5 These terms and conditions hereof shall be governed by and construed in
accordance with the laws of the State of Missouri. Buyer may, but is not
obligated to, bring any action or claim relating to or arising out of this
Supply Contract or any Purchase Order issued pursuant hereto in the
appropriate state or federal court in Missouri, and the Seller hereby
irrevocably consents to personal jurisdiction in any such court, hereby
appointing the Secretary of State of the State of Missouri as its agent for
receiving service of process.
<PAGE> 15
21.6 The failure of either party at any time to require performance by the
other party of any provision of this Supply Contract or any Purchase
Order placed by Buyer from time to time shall in no way affect the
right of such party to require such performance at any time
thereafter. Similarly, the wavier by either party of a breach of any
provision of these terms and conditions or of any order placed by
Buyer from time to time pursuant hereto shall not constitute a wavier
of any succeeding breach of the same or any other provision.
21.7 Seller and Buyer are independent contracting parties and nothing in
this Agreement or any Purchase Order issued pursuant hereto shall make
either party the agent or legal representative of the other party for
any purpose whatsoever, not does it grant either party any authority
to assume or to create any obligation on behalf of or in the name of
the party.
21.8 If any term of this Supply Contract or any Purchase Order issued
pursuant hereto is invalid or unenforceable under any statue,
regulation, ordinance, executive order, or other rule of law, such
term shall be deemed reformed or deleted, but only to the extent
necessary to comply with such statue, regulation, ordinance, executive
order or other rule of law, and the remaining provisions of this
Supply Contract, or any Purchase Order issued pursuant hereto, shall
remain in full force and effect.
21.9 The Seller agrees that all chemical substances, as more fully defined
in the Toxic Substances Control Act (TSCA), comprising or used in the
manufacture of the Products ordered by Buyer are, to the best of
Seller's knowledge, listed in the inventory complied under Section
8(b) of TSCA and are not banned from commercial use under TSCA.
Buyer shall have the right to visit and inspect Seller's Facility
employed in the manufacture of Products to be delivered to Buyer's
facility(s) during normal business hours and upon reasonable prior
written notice to Seller.
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<PAGE> 16
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement as of the day and year first above written.
WIRE HARNESS INDUSTRIES, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
INTERNATIONAL WIRE GROUP, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIASYSTEMS GROUP, INC.
- --------------------------------------------------------------------------------
The undersigned, being the Assistant Secretary of Viasystems Group, Inc., a
Delaware corporation, hereby certifies the following:
1. (a) The name of the corporation is Viasystems Group, Inc. (the
"Corporation").
(b) The name under which the Corporation originally was incorporated was
Circo Craft Holding Company, and the date of filing of the original Certificate
of Incorporation of the Corporation (the "Certificate of Incorporation") with
the Secretary of State of the State of Delaware was August 28, 1996.
2. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation, as amended, by,
among other things, (i) eliminating the references to Series A Preferred Stock,
Class A Common Stock and Class A Series II Common Stock, (ii) dividing the Board
of Directors into three classes and (iii) prohibiting stockholder action by
written consent.
3. This Amended and Restated Certificate of Incorporation has been duly
adopted by the Board of Directors of the Corporation (the "Board of Directors")
by a unanimous written consent dated March ____, 2000 and by the written consent
of the stockholders of the Corporation entitled to vote thereon in accordance
with the provisions of Sections 228, 242 and 245 of the General Corporation Law
of the State of Delaware (the "DGCL"), as applicable.
4. The Certificate of Incorporation, as amended and restated hereby, shall
upon its filing with the Secretary of State of the State of Delaware, read in
its entirety as follows:
FIRST: The name of the Corporation is Viasystems Group, Inc.
SECOND: The registered office of the Corporation in the State of Delaware
is located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage in
any and all lawful acts and activity for which corporations may be organized
under the DGCL. The Corporation will have perpetual existence.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 560,000,000 shares consisting of
<PAGE> 2
(a) 60,000,000 shares of a class designated as Preferred Stock, par value $.01
per share ("Preferred Stock"), of which 6,000,000 shares have been designated as
Series B Preferred Stock (the "Series B Preferred Stock"), and (b) 500,000,000
shares of a class designated Common Stock, par value $.01 per share ("Common
Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and the Common Stock are as
follows:
A. Reclassification of Existing Capital Stock.
1. Subject to paragraph 2 below, upon the filing of this Amended and
Restated Certificate of Incorporation, each six shares of Common Stock, par
value $.01 per share, of the Corporation outstanding shall be reclassified into
one share of the Common Stock, each six and two-thirds shares of Class A Common
Stock, par value $.01 per share, of the Corporation outstanding shall be
reclassified into one share of Common Stock and each six and two-thirds shares
of Class A Series II Common Stock, par value $.01 per share, of the Corporation
outstanding shall be reclassified into one share of Common Stock (such
reclassifications collectively being the "Reclassification"), and thereupon the
authorized capital stock of the Corporation shall be as provided in the first
paragraph of Article Fourth above.
(a) No fractional shares of Common Stock shall be issued upon the
Reclassification. If any fraction of a share of Common Stock would, except for
the provisions of this paragraph, be issuable upon the Reclassification, the
Corporation shall, in lieu of issuing any fractional shares of Common Stock, pay
to each stockholder who would otherwise be entitled to a fractional share an
amount in cash equal to $17.50 per share multiplied by such fraction computed to
the nearest whole cent.
(b) After the Reclassification, each holder of the shares of capital
stock of the Corporation being reclassified as provided herein shall be entitled
to receive, upon surrender at the office of the Corporation or the transfer
agent for the Common Stock of such holder's certificate or certificates
representing the shares being reclassified, duly endorsed in blank or
accompanied by duly executed proper instruments of transfer, as promptly as
practicable after such surrender one or more certificates evidencing the Common
Stock issuable to such holder in respect of the Reclassification. After the
Reclassification, pending the issuance and delivery of such certificates in
accordance herewith, the certificate or certificates evidencing the shares of
capital stock being reclassified shall be deemed to evidence the shares of
Common Stock issuable upon the Reclassification.
B. Provisions Relating to the Preferred Stock.
1. The Preferred Stock may be issued from time to time in one or more
classes or series, the shares of each class or series to have such designations
and powers, preferences, rights, qualifications, limitations, and restrictions
thereof, as are stated and expressed herein and in the resolution or resolutions
providing for the issue of
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such class or series adopted by the Board of Directors of the Corporation as
hereafter prescribed.
2. Authority is hereby expressly granted to and vested in the Board of
Directors of the Corporation to authorize the issuance of the Preferred Stock
from time to time in one or more classes or series, and with respect to each
class or series of the Preferred Stock, to fix and state by the resolution or
resolutions from time to time adopted providing for the issuance thereof the
following:
(a) whether or not the class or series is to have voting rights,
full, special, or limited, or is to be without voting rights, and whether or not
such class or series is to be entitled to vote as a separate class either alone
or together with the holders of one or more other classes or series of stock;
(b) the number of shares to constitute the class or series and the
designations thereof;
(c) the preferences, and relative, participating, optional, or
other special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, with respect to any class or series;
(d) whether or not the shares of any class or series shall be
redeemable at the option of the Corporation or the holders thereof or upon the
happening of any specified event, and, if redeemable, the redemption price or
prices (which may be payable in the form of cash, notes, securities, or other
property), and the time or times at which, and the terms and conditions upon
which, such shares shall be redeemable and the manner of redemption;
(e) whether or not the shares of a class or series shall be
subject to the operation of retirement or sinking funds to be applied to the
purchase or redemption of such shares for retirement, and, if such retirement or
sinking fund or funds are to be established, the annual amount thereof, and the
terms and provisions relative to the operation thereof;
(f) the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, the conditions upon which and the
times when such dividends are payable, the preference to or the relation to the
payment of dividends payable on any other class or classes or series of stock,
whether or not such dividends shall be cumulative or noncumulative, and if
cumulative, the date or dates from which such dividends shall accumulate;
(g) the preferences, if any, and the amounts thereof which the
holders of any class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
(h) whether or not the shares of any class or series, at the
option of the Corporation or the holder thereof or upon the happening of any
specified event, shall be convertible into or exchangeable for, the shares of
any other class or
3
<PAGE> 4
classes or of any other series of the same or any other class or classes of
stock, securities, or other property of the Corporation and the conversion price
or prices or ratio or ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and expressed or
provided for in such resolution or resolutions; and
(i) such other special rights and protective provisions with
respect to any class or series as may to the Board of Directors of the
Corporation seem advisable.
3. The shares of each class or series of the Preferred Stock may vary
from the shares of any other class or series thereof in any or all of the
foregoing respects. The Board of Directors of the Corporation may increase the
number of shares of the Preferred Stock designated for any existing class or
series by a resolution adding to such class or series authorized and unissued
shares of the Preferred Stock not designated for any other class or series. The
Board of Directors of the Corporation may decrease the number of shares of the
Preferred Stock designated for any existing class or series by a resolution
subtracting from such class or series authorized and unissued shares of the
Preferred Stock designated for such existing class or series, and the shares so
subtracted shall become authorized, unissued, and undesignated shares of the
Preferred Stock.
C. Provisions Relating to the Series B Preferred Stock.
1. Dividends. The holders of Series B Preferred Stock shall be entitled
to be paid cumulative dividends, as and when declared by the Board of Directors
out of funds legally available therefor, at a rate per annum equal to (i) $2.00
per whole share prior to November 30, 2004, (ii) $2.50 per whole share on and
after November 30, 2004 and prior to November 30, 2005, (iii) $3.00 per whole
share on and after November 30, 2005 and prior to November 30, 2006, and (iv)
$3.50 per whole share on and after November 30, 2006 (computed on the basis of a
360 day year comprised of 12 months of 30 days each), payable quarterly on
February 28, May 31, August 31, and November 30 in each year, commencing on
February 28, 1997 (each of such dates being a "Series B Dividend Payment Date"),
to holders of record as they appear on the register of the Series B Preferred
Stock on the February 15, May 15, August 15, and November 15, as appropriate,
immediately preceding such Series B Dividend Payment Date. On the first twenty
Series B Dividend Payment Dates after the initial date of issuance of the Series
B Preferred Stock, any dividend on the Series B Preferred Stock accrued and
payable as provided in this paragraph 1 shall be payable either, as elected by
the Board of Directors, (i) in cash, (ii) by issuing a number of additional
shares (or fractional shares) of Series B Preferred Stock (the "Additional
Series B Shares") in respect of each such share (or fractional share) of Series
B Preferred Stock then outstanding at the rate of 1/25th of a whole share of
Series B Preferred Stock for each $1.00 of dividend declared or (iii) in any
combination thereof; provided, however, that commencing on the earlier to occur
of (i) the twenty-first Series B Dividend Payment Date after the initial date of
issuance of the Series B Preferred Stock or (ii) the consummation by the
Corporation of an underwritten initial public offering of the common stock, par
value $.01 per share, of the Corporation ("Common Stock") pursuant to which the
Corporation receives gross proceeds of at least $50.0 million, all dividends on
the Series B Preferred Stock payable
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<PAGE> 5
as provided in this paragraph 1 (including, without limitation, Cumulative
Dividends (as hereinafter defined)) shall be payable in cash; provided, however,
that if cash dividends on the Series B Preferred Stock are directly or
indirectly prohibited from being paid or declared pursuant to the terms of the
Credit Agreement (or any extension, refinancing, renewal or replacement
thereof), the Corporation may pay dividends, in lieu of cash, in Additional
Series B Shares, provided further, however, that if such prohibitions are
removed, dividends shall be payable in cash at the time such prohibitions are
removed.
If at any time dividends with respect to the shares of Series B
Preferred Stock are not declared and paid in full on any Series B Dividend
Payment Date, whether in cash or Additional Series B Shares or any combination
thereof (the "Omitted Dividends"), the Series B Preferred Stock shall accrue
additional dividends as if such Omitted Dividends had been paid in Additional
Series B Shares and such Additional Series B Shares were outstanding on each
succeeding Series B Dividend Payment Date until such accumulated quarterly
dividends shall have been declared and paid in cash or in Additional Series B
Shares by the Board of Directors (the "Cumulative Dividends"). Such Cumulative
Dividends shall be fully cumulative (whether or not earned or declared) and
shall be deemed to constitute accrued and unpaid dividends for all purposes
hereof even if such additional dividends are not specifically mentioned in any
particular context.
So long as any Series B Preferred Stock shall remain outstanding, no
dividend whatsoever (other than a dividend or dividends payable solely in Common
Stock, other capital stock ranking junior to the Series B Preferred Stock as to
payment of dividends and as to distribution of assets on liquidation, and/or
warrants or other rights to acquire such common stock or other capital stock)
shall be declared or paid or set apart for payment with respect to any class of
capital stock or series thereof ranking junior to the Series B Preferred Stock
as to payment of dividends or as to distribution of assets on liquidation, nor
shall any shares of any class of capital stock or series thereof ranking junior
to or on a parity with the Series B Preferred Stock as to payment of dividends
or as to distribution of assets on liquidation be redeemed or purchased by the
Corporation or any subsidiary thereof (except in exchange for Common Stock,
other capital stock ranking junior to the Series B Preferred Stock as to payment
of dividends and as to distribution of assets on liquidation, and/or warrants or
other rights to acquire such common stock or other capital stock), nor shall any
monies be paid to or made available for a sinking fund for redemption or
purchase of any shares of any class of capital stock or series thereof ranking
junior to or on a parity with the Series B Preferred Stock in payment of
dividends or distribution of assets on liquidation unless, in each such
instance, full dividends (including Cumulative Dividends) on all outstanding
shares of Series B Preferred Stock for all past Dividend Periods (as herein
defined) shall have been paid at the rate fixed therefor, and the dividends on
all outstanding shares of Series B Preferred Stock for the then current
quarterly dividend period shall have been paid or set aside for payment. So long
as any Series B Preferred Stock shall remain outstanding, no cash dividends
shall be declared or paid or set apart for payment with respect to any class of
capital stock or series thereof ranking junior to or on a parity with the Series
B Preferred Stock as to payment of dividends or as to distribution of assets on
liquidation (except for cash dividends required to be paid on fractional
shares), nor shall any shares of any class of capital stock or series thereof
ranking junior to or on a parity with the
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<PAGE> 6
Series B Preferred Stock as to payment of dividends or as to distribution of
assets on liquidation be redeemed or purchased by the Corporation or any
subsidiary thereof (except in exchange for Common Stock, other capital stock
ranking junior to the Series B Preferred Stock as to payment of dividends and as
to distribution of assets on liquidation, and/or warrants or other rights to
acquire such common stock or other capital stock) nor shall any monies be paid
to or made available for a sinking fund for redemption or purchase of any shares
of any class of capital stock or series thereof ranking junior to or on a parity
with the Series B Preferred Stock in payment of dividends or distribution of
assets on liquidation unless, in each such instance, cash dividends on all
outstanding shares of Series B Preferred Stock for the then current quarterly
dividend period shall have been paid or set aside for payment. "Dividend Period"
shall mean the period from the initial date of issuance of the Series B
Preferred Stock to the first Series B Dividend Payment Date and each quarterly
period between consecutive Series B Dividend Payment Dates.
No dividend shall be paid or declared or set apart for payment with
respect to any share of Series B Preferred Stock for any Dividend Period unless
at the same time (i) a like proportionate dividend for the same Dividend Period
shall be paid or set aside for payment on all shares of the Series B Preferred
Stock then outstanding and entitled to receive such dividend and (ii) there
shall have been paid or set aside for payment on all shares of any other class
of capital stock or series thereof, if any, then outstanding and ranking on a
parity with the Series B Preferred Stock as to payment of dividends, for the
same dividend period of the Series B Preferred Stock, dividends ratably in
proportion to the respective dividend rates fixed for the Series B Preferred
Stock and said parity capital stock. No dividend shall be paid or declared or
set apart for payment with respect to any shares of any other class of capital
stock or series thereof, if any, then outstanding and ranking on a parity with
the Series B Preferred Stock as to payment of dividends for any Dividend Period,
unless there shall have been paid or set apart for payment on all shares then
outstanding of the Series B Preferred Stock, for the same Dividend Period,
dividends (payable in the same type of property including cash) ratably in
proportion to the respective dividend rates fixed for the Series B Preferred
Stock and said parity capital stock.
2. Liquidation. Subject to the rights of the holders of any class of
capital stock or series thereof ranking senior ("Senior Preferred Stock") to the
Series B Preferred Stock as to distribution of assets on liquidation, in the
event of any liquidation, dissolution or winding up, whether voluntary or
involuntary, the holder of each share of Series B Preferred Stock shall be
entitled to receive, out of the assets of the Corporation legally available
therefor, a cash liquidation payment equal to $25.00 per share plus a cash
amount equal to all dividends accumulated and unpaid thereon to the date of
payment (including Cumulative Dividends and whether or not earned and declared)
before any distribution or payment shall be made to the holders of shares of
Common Stock or any other class of capital stock or series thereof ranking
junior to the Series B Preferred Stock as to distribution of assets on
liquidation. If legally available funds are not sufficient to pay the full
amount owed to the holders of the Series B Preferred Stock pursuant to the
preceding sentence and the full amount owed to the holders of any other class or
series of capital stock ranking on a parity with the Series B Preferred Stock as
to
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<PAGE> 7
distribution of assets on liquidation, such funds shall be distributed to the
holders of the Series B Preferred Stock and such parity stock on a pro rata
basis in proportion to their respective claims.
Written notice of any voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the Corporation, stating the
payment date and the place where the distributable amounts shall be payable
shall be given by mail, postage prepaid, not less than 30 days prior to the
payment date stated therein, to the holders of record of the Series B Preferred
Stock at their respective addresses as the same shall appear on the books of the
Corporation.
Neither the merger or consolidation of the Corporation into or with any
other Person (as hereinafter defined), nor the merger or consolidation of any
other Person into or with the Corporation, nor a sale, transfer, or lease or
other disposition of all or any part of the assets of the Corporation, shall,
without further corporate action, be deemed to be a liquidation, dissolution, or
winding up of the affairs of the Corporation within the meaning of this
paragraph 2. "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
3. Redemption.
(a) Optional Redemption. The Corporation may, at its option, at any
time and from time to time, redeem all or any portion of the outstanding shares
of the Series B Preferred Stock, for cash at a redemption price of $25.00 per
share plus an amount equal to all accumulated and unpaid dividends thereon
(including Cumulative Dividends and whether or not earned and declared but
subject to the legal availability of funds therefor) to the Series B Redemption
Date (as hereinafter defined), in accordance with subparagraph (c) of this
paragraph 3.
(b) Change of Control. Upon the occurrence of a Change of Control (as
hereinafter defined), the Corporation shall redeem (subject to the legal
availability of funds therefor and subject to the next sentence hereof), within
sixty calendar days of such Change of Control, all outstanding shares of the
Series B Preferred Stock at a redemption price, payable in cash, equal to the
per share liquidation preference thereof, plus an amount equal to accumulated
and unpaid dividends thereon (including Cumulative Dividends and whether or not
earned or declared but subject to the legal availability of funds therefor) to
the date such shares are redeemed. Notwithstanding the foregoing, the obligation
of the Corporation to redeem shares of the Series B Preferred Stock upon the
occurrence of a Change of Control shall be subject to any limitations that may
be contained in the Credit Agreement. A "Change of Control" shall be deemed to
occur if Hicks, Muse, Tate & Furst Incorporated, Mills & Partners, Inc. and/or
their respective affiliates ("HMTF") shall cease to have the power, directly or
indirectly, to vote or direct the voting of securities having a majority of the
ordinary voting power for the election of directors of the Corporation,
provided, that the occurrence of the foregoing event shall not be deemed a
Change of Control if (a) at any time prior to the
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consummation of an initial public offering, and for any reason whatsoever, (i)
HMTF otherwise has the right to designate (and does so designate) a majority of
the Board of Directors of the Corporation or (ii) HMTF and its employees,
directors and officers (the "HMTF Group") own of record and beneficially an
amount of Common Stock of the Corporation equal to at least 50% of the amount of
Common Stock of the Corporation owned by the HMTF Group of record and
beneficially as of November 26, 1996 and such ownership by the HMTF Group
represents the largest single block of voting securities of the Corporation held
by any Person or related group for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or (b) at any time after
the consummation of an initial public offering, and for any reason whatsoever,
(i) HMTF shall own greater than 20% of the outstanding Common Stock of the
Corporation and (ii) (A) any "Person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding HMTF, is not or shall
not become the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of a greater percentage of voting
stock of the Corporation than is owned by HMTF, or (B) the Board of Directors of
the Corporation shall consist of a majority of Continuing Directors. "Continuing
Directors" means the directors of the Corporation on November 26, 1996 and each
other director, if in each case, such other director's nomination for election
to the Board of Directors of the Corporation is recommended by a majority of the
then Continuing Directors or such other director receives the vote of HMTF in
his or her election by the shareholders. In the event of a merger or
consolidation of the Corporation in which the Corporation is not the surviving
entity and in connection with such transaction the Corporation is not required
to redeem the Series B Preferred Stock, the holders shall be entitled to
exchange their Series B Preferred Stock for securities of the surviving entity
having economic terms substantially similar to the Series B Preferred Stock.
(c) Redemption Procedure. If the Corporation shall determine to redeem
less than all shares of the Series B Preferred Stock then outstanding pursuant
to subparagraph (a) of this paragraph 3, (i) the shares to be redeemed shall be
selected pro rata (as nearly as may be) so that the number of shares redeemed
from each holder shall bear the same proportion to all the shares to be redeemed
that the total number of shares then held by such holder bears to the total
number of shares then outstanding or (ii) if the number of holders of the Series
B Preferred Stock exceeds 250, and the board of directors so determines, the
shares shall be selected by lot.
Notice of every redemption shall be mailed, first class, postage prepaid,
not less than 10 nor more than 60 days prior to the date fixed for redemption
(the "Series B Redemption Date"), to each holder of record of shares to be
redeemed, at such holder's address as it appears on the books of the
Corporation. Each such notice shall state the Series B Redemption Date; the
number of shares of Series B Preferred Stock to be redeemed, and, if less than
all shares of Series B Preferred Stock held by such holder are to be redeemed,
the number of such shares to be redeemed from such holder; the redemption price
applicable to the shares to be redeemed; the place or places where such shares
are to be surrendered; and that dividends on shares to be redeemed will cease to
accrue on the Series B Redemption Date.
8
<PAGE> 9
Notice having been mailed as aforesaid, from and after the time of
redemption (unless the Corporation defaults in providing money for the payment
of the redemption price) dividends on shares called for redemption shall cease
to accrue, said shares shall no longer be deemed to be outstanding, all rights
of holders thereof as shareholders of the Corporation (except the right to
receive the redemption price thereof, but without interest) shall terminate,
and, upon surrender, in accordance with said notice, of the certificates for any
such shares (properly endorsed or assigned for transfer, if the board of
directors of the Corporation shall so require), such shares shall be redeemed by
the Corporation at the applicable redemption price; provided, however, that the
Corporation may include in such notice a statement that the money required for
the payment of the redemption price will be deposited on a specified date, prior
to the Series B Redemption Date, with a specified bank or trust company (which
shall have an office in the City of New York and which shall have a combined
capital and surplus of not less than $50,000,000) in trust for the benefit of
holders of shares called for redemption, and, notice having been given, from and
after such deposit shares called for redemption shall no longer be deemed to be
outstanding and all rights with respect to such shares shall forthwith upon such
deposit cease and terminate except for the right to receive the amount payable
upon surrender of the certificates representing such shares from such bank or
trust company (but not from the Corporation). If less than all the shares
represented by any surrendered certificate are redeemed, a new certificate
representing the unredeemed shares shall be issued to the holder who surrendered
such certificate. Holders of shares of Series B Preferred Stock called for
redemption shall not be entitled to any interest allowed by such depositary on
money deposited to effect the redemption but any such interest shall be paid to
the Corporation. Any money deposited as aforesaid for redemption of any shares
and remaining unclaimed for one year after the date of such deposit shall then
be repaid to the Corporation upon its request, and the holders of such shares
shall thereafter look only to the Corporation for payment of the redemption
price thereof, but without interest.
Any share of Series B Preferred Stock redeemed or otherwise purchased or
acquired by the Corporation shall be retired, shall no longer be deemed
outstanding, and shall not be reissued.
4. Voting Rights.
(a) Generally. The holders of shares of Series B Preferred Stock shall
not be entitled to vote except as set forth in the Certificate of Incorporation
of the Corporation, as herein set forth in this paragraph 4 and as otherwise
provided by law. In any vote by the holders of the Series B Preferred Stock
pursuant to the preceding sentence, each holder of the Series B Preferred Stock
shall be entitled to one vote for each full share and a fraction of a vote equal
to the fraction of a share for each fractional share.
(b) Special Voting Rights to Elect Directors. If at any time or times
dividends payable on the Series B Preferred Stock shall be in arrears and shall
not be paid in either cash or Additional Series B Shares for four consecutive
Dividend Periods, then the number of directors constituting the Board of
Directors, without further
9
<PAGE> 10
action, shall be increased by two and the holders of the Series B Preferred
Stock shall have the exclusive right, voting separately as a class, at any
annual meeting of stockholders or special meeting called for such purpose or
pursuant to written consent to elect, by majority vote, the directors of the
Corporation to fill such newly created directorships. Such voting rights shall
terminate at such time that all accrued and unpaid dividends (including
Cumulative Dividends and whether or not earned or declared) on all shares of the
Series B Preferred Stock then outstanding shall have been paid in full in either
cash or Additional Series B Shares, and dividends thereon for the then current
Dividend Period shall have been paid in either cash or Additional Series B
Shares or declared or set apart for payment, subject, however, to revesting of
such voting rights in the event of each and every subsequent failure of the
Corporation to pay dividends for the requisite number of periods as described
above.
(c) Certain Actions. So long as any shares of the Series B Preferred
Stock are outstanding, the Corporation shall not, without the written consent or
the affirmative vote at a meeting called for that purpose of the holders of at
least a majority of the votes of the shares of the Series B Preferred Stock then
outstanding, voting separately as a class, (i) create, authorize or issue any
class or series of capital stock ranking senior to the Series B Preferred Stock
as to payment of dividends or as to distribution of assets on liquidation;
provided, however, the Corporation may create, authorize or issue 10,000,000
shares of Senior Preferred Stock plus all additional shares of Senior Preferred
Stock issued as dividends thereon; (ii) declare or pay or set apart for payment,
directly or indirectly, any dividend (other than a dividend or dividends payable
solely in Common Stock, other capital stock ranking junior to the Series B
Preferred Stock as to payment of dividends and as to distribution of assets on
liquidation ("Series B Junior Securities") and/or warrants or other rights to
acquire Series B Junior Securities) with respect to any Series B Junior
Securities or repurchase or redeem for cash any such Series B Junior Securities;
or (iii) amend, alter, repeal or waive any of the powers, preferences, or
special rights of the Series B Preferred Stock (as expressed in the Certificate
of Incorporation of the Corporation) so as to affect adversely such powers,
preferences, or special rights.
(d) The foregoing provisions will not prohibit (i) the payment of any
dividend within sixty days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions hereof,
(ii) the retirement of any shares of the Corporation's capital stock (other than
shares issued to HMTF on November 26, 1996) in exchange for, or out of the net
proceeds of the substantially concurrent sale of, other shares of the
Corporation's capital stock, (iii) the acquisition or cancellation of capital
stock in connection with any merger, consolidation or transfer, (iv) any
repurchase or redemption of capital stock or other equity interest of the
Corporation or any of its subsidiaries held by an employee of the Corporation or
any of its subsidiaries in connection with the termination of such employees, to
the extent that the aggregate amount of all such payments, redemptions, and
repurchases does not exceed $5,000,000; and (v) cash payments to holders of
Series B Junior Securities in lieu of the issuance of fractional shares.
10
<PAGE> 11
5. Ranking.
(a) Rights to Dividends. The Series B Preferred Stock shall rank as to
dividends (i) senior to the Common Stock and any other class or series of
capital stock which by its express terms provides that it ranks junior to the
Series B Preferred Stock as to payment of dividends or which does not expressly
provide for any ranking as to payment of dividends, (ii) on a parity with any
class or series of capital stock which by its express terms provides that it
ranks on a parity with the Series B Preferred Stock as to payment of dividends,
and (iii) junior to any class or series of capital stock which by its express
terms provides that it ranks senior to the Series B Preferred Stock as to
payment of dividends.
(b) Rights on Dissolution, Liquidation or Winding Up. The Series B
Preferred Stock shall rank as to distribution of assets on liquidation (i)
senior to the Common Stock and any other class or series of capital stock which
by its express terms provides that it ranks junior to the Series B Preferred
Stock as to distribution of assets on liquidation or which does not expressly
provide for any ranking as to distribution of assets on dissolution, liquidation
or winding up of the Corporation, (ii) on a parity with any class or series of
capital stock which by its express terms provides that it ranks on a parity with
the Series B Preferred Stock as to distribution of assets on dissolution,
liquidation or winding up of the Corporation, and (iii) junior to any class or
series of capital stock which by its express terms provides that it ranks senior
to the Series B Preferred Stock as to distribution of assets on dissolution,
liquidation or winding up of the Corporation.
6. Fractional Shares. Any fractional shares of Series B Preferred Stock,
whether issued as Additional Series B Shares pursuant to paragraph 1 or
otherwise, shall be entitled to appropriately proportionate dividends,
liquidation payments, voting rights, and all other rights of the Series B
Preferred Stock.
D. Provisions Relating to the Common Stock.
1. Voting. Each share of Common Stock of the Corporation shall have
identical rights and privileges in every respect. The holders of shares of
Common Stock shall be entitled to vote upon all matters submitted to a vote of
the stockholders of the Corporation and shall be entitled to one vote for each
share of Common Stock held.
2. Dividends. Subject to the prior rights and preferences, if any,
applicable to shares of the Preferred Stock or any series thereof, the holders
of shares of the Common Stock shall be entitled to receive such dividends
(payable in cash, stock, or otherwise) as may be declared thereon by the board
of directors at any time and from time to time out of any funds of the
Corporation legally available therefor.
3. Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of shares of the
Preferred Stock or any series thereof, the holders of shares of the Common Stock
shall be entitled
11
<PAGE> 12
to receive all of the remaining assets of the Corporation available for
distribution to its stockholders, ratably in proportion to the number of shares
of the Common Stock held by them. A liquidation, dissolution, or winding-up of
the Corporation, as such terms are used in this Paragraph (3), shall not be
deemed to be occasioned by or to include any consolidation or merger of the
Corporation with or into any other corporation or corporations or other entity
or a sale, lease, exchange, or conveyance of all or a part of the assets of the
Corporation.
E. General.
1. Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (not less than the par
value thereof) as may be fixed by the Board of Directors of the Corporation,
which is expressly authorized to fix the same in its absolute and uncontrolled
discretion subject to the foregoing conditions. Shares so issued for which the
consideration shall have been paid or delivered to the Corporation shall be
deemed fully paid stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable for any
further payments in respect of such shares.
2. The Corporation shall have authority to create and issue rights and
options entitling their holders to purchase shares of the Corporation's capital
stock of any class or series or other securities of the Corporation, and such
rights and options shall be evidenced by instrument(s) approved by the Board of
Directors of the Corporation. The Board of Directors of the Corporation shall be
empowered to set the exercise price, duration, times for exercise, and other
terms of such options or rights; provided, however, that the consideration to be
received for any shares of capital stock subject thereto shall not be less than
the par value thereof.
FIFTH: The number of directors constituting the entire Board of Directors
of the Corporation shall be fixed by, or in the manner provided in, the Bylaws
of the Corporation; provided, that such number shall be no less than six and no
more than nine members (plus such number of directors as may be elected from
time to time pursuant to the terms of any Preferred Stock that may be issued and
outstanding from time to time); provided further, that the minimum or maximum
number of directors constituting the entire Board of Directors of the
Corporation may be changed only by an amendment to this Certificate of
Incorporation. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director. The directors of the
Corporation shall be divided into three classes (with the first class ("Class
I"), the second class ("Class II") and the third class ("Class III") each to
consist of two or three directors). The term of office of the Class I directors
shall expire at the 2001 annual meeting of stockholders, the term of office of
the Class II directors shall expire at the 2002 annual meeting of stockholders
and the term of office of the Class III directors shall expire at the 2003
annual meeting of stockholders, with each director to hold office until his or
her successor shall have been duly elected and qualified. At each annual meeting
of stockholders, commencing with the 2001 annual meeting, directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at
12
<PAGE> 13
the third succeeding annual meeting of stockholders after their election, with
each director to hold office until his or her successor shall have been duly
elected and qualified. The Board of Directors, acting by a majority vote of the
directors then in office, may fill any newly created directorships or vacancies
on the Board of Directors. Subject to the rights of any one or more classes or
series of Preferred Stock to elect directors under specified circumstances, any
director may be removed from office only for cause by the affirmative vote of
the holders of at least a majority of the voting power of all shares of the
Corporation entitled generally to elect directors, voting together as a single
class.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to this section and applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article Fifth unless expressly provided by such terms.
Notwithstanding anything in this Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least eighty percent (80%)
of the voting power of all shares of the Corporation entitled to vote generally
in the election of directors then outstanding, voting together as a single
class, shall be required to alter, amend or adopt any provision inconsistent
with or repeal this Article Fifth.
SIXTH: Directors of the Corporation need not be elected by written ballot
unless the bylaws of the Corporation otherwise provide.
SEVENTH: The directors of the Corporation shall have the power to adopt,
amend, and repeal the bylaws of the Corporation.
EIGHTH: No contract or transaction between the Corporation and one or more
of its directors, officers, or stockholders or between the Corporation and any
person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his, her, or their votes are counted for such purpose, if: (i) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the
13
<PAGE> 14
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved, or ratified by the Board of
Directors, a committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
NINTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exists or may hereafter be
amended. Such right shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article Ninth is in effect.
Any repeal or amendment of this Article Ninth shall be prospective only and
shall not limit the rights of any such director or officer or the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director or officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article Ninth. Such right shall include the
right to be paid by the Corporation expenses incurred in investigating or
defending any such proceeding in advance of its final disposition to the maximum
extent permitted under the DGCL, as the same exists or may hereafter be amended.
If a claim for indemnification or advancement of expenses hereunder is not paid
in full by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, the claimant shall also be entitled to be paid
the expenses of prosecuting such claim. It shall be a defense to any such action
that such indemnification or advancement of costs of defense are not permitted
under the DGCL, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders)
to have made its determination prior to the commencement of such action that
indemnification of, or advancement of costs of defense to, the claimant is
permissible in the circumstances nor an actual determination by the Corporation
(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his or her heirs, executors,
administrators, and personal representatives. The rights conferred above shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, by-law, resolution of stockholders or directors,
agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
14
<PAGE> 15
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
TENTH: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or amendment of this Article Tenth by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation arising from an act or
omission occurring prior to the time of such repeal or amendment. In addition to
the circumstances in which a director of the Corporation is not personally
liable as set forth in the foregoing provisions of this Article Tenth, a
director shall not be liable to the Corporation or its stockholders to such
further extent as permitted by any law hereafter enacted, including without
limitation any subsequent amendment to the DGCL.
ELEVENTH: Any action required or permitted to be taken by the stockholders
of the Corporation shall be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders. Special meetings of stockholders of the
Corporation may be called by the Board of Directors pursuant to a resolution
adopted by a majority of the members of the board, by the Chairman of the Board
of Directors, or by any holder or holders of at least fifty percent (50%) of the
outstanding shares of the capital stock of the Corporation. Notwithstanding
anything in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least eighty percent (80%) of the voting power of all
shares of the Corporation entitled to vote generally in the election of
directors then outstanding, voting together as a single class, shall be required
to alter, amend or adopt any provision inconsistent with or repeal this Article
Eleventh.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
<PAGE> 16
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be signed pursuant to Section
103(a)(2) of the DGCL by the undersigned duly authorized officer of the
Corporation as of the ___ day of March, 2000.
------------------------------------
Kelly E. Wetzler
Assistant Secretary
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
VIASYSTEMS GROUP, INC.
A Delaware Corporation
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Article I OFFICES...........................................................................1
1.1 Registered Office and Agent...........................................................1
1.2 Other Offices.........................................................................1
Article II MEETINGS OF STOCKHOLDERS..........................................................1
2.1 Annual Meeting........................................................................1
2.2 Special Meeting.......................................................................1
2.3 Place of Meetings.....................................................................2
2.4 Notice................................................................................2
2.5 Voting List...........................................................................3
2.6 Quorum................................................................................3
2.7 Required Vote; Withdrawal of Quorum...................................................4
2.8 Method of Voting; Proxies.............................................................4
2.9 Record Date...........................................................................4
2.10 Conduct of Meeting....................................................................5
2.11 Inspectors............................................................................6
Article III DIRECTORS.........................................................................6
3.1 Management............................................................................6
3.2 Number; Qualification; Election; Term.................................................6
3.3 Change in Number......................................................................7
3.4 Removal...............................................................................7
3.5 Vacancies.............................................................................7
3.6 Stockholder Nomination of Director Candidates.........................................8
3.7 Meetings of Directors.................................................................9
3.8 First Meeting.........................................................................9
3.9 Election of Officers..................................................................9
3.10 Regular Meetings......................................................................9
3.11 Special Meetings......................................................................9
3.12 Notice................................................................................9
3.13 Quorum; Majority Vote.................................................................9
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
3.14 Procedure............................................................................10
3.15 Presumption of Assent................................................................10
3.16 Compensation.........................................................................10
Article IV COMMITTEES.......................................................................10
4.1 Designation..........................................................................10
4.2 Number; Qualification; Term..........................................................10
4.3 Authority............................................................................11
4.4 Committee Changes....................................................................11
4.5 Alternate Members of Committees......................................................11
4.6 Regular Meetings.....................................................................11
4.7 Special Meetings.....................................................................11
4.8 Quorum; Majority Vote................................................................11
4.9 Minutes..............................................................................11
4.10 Compensation.........................................................................12
4.11 Responsibility.......................................................................12
Article V NOTICE...........................................................................12
5.1 Method...............................................................................12
5.2 Waiver...............................................................................12
Article VI OFFICERS.........................................................................12
6.1 Number; Titles; Term of Office.......................................................13
6.2 Removal..............................................................................13
6.3 Vacancies............................................................................13
6.4 Authority............................................................................13
6.5 Compensation.........................................................................13
6.6 Chairman of the Board................................................................13
6.7 President............................................................................13
6.8 Vice Presidents......................................................................14
6.9 Treasurer............................................................................14
6.10 Assistant Treasurers.................................................................14
6.11 Secretary............................................................................14
6.12 Assistant Secretaries................................................................14
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
Article VII CERTIFICATES AND STOCKHOLDERS....................................................15
7.1 Certificates for Shares..............................................................15
7.2 Replacement of Lost or Destroyed Certificates........................................15
7.3 Transfer of Shares...................................................................15
7.4 Registered Stockholders..............................................................15
7.5 Regulations..........................................................................16
7.6 Legends..............................................................................16
Article VIII MISCELLANEOUS PROVISIONS.........................................................16
8.1 Dividends............................................................................16
8.2 Reserves.............................................................................16
8.3 Books and Records....................................................................16
8.4 Fiscal Year..........................................................................16
8.5 Seal.................................................................................16
8.6 Resignations.........................................................................17
8.7 Securities of Other Corporations.....................................................17
8.8 Telephone Meetings...................................................................17
8.9 Action Without a Meeting.............................................................17
8.10 Invalid Provisions...................................................................17
8.11 Mortgages, etc.......................................................................18
8.12 Headings.............................................................................18
8.13 References...........................................................................18
8.14 Amendments...........................................................................18
</TABLE>
iii
<PAGE> 5
AMENDED AND RESTATED BYLAWS
OF
VIASYSTEMS GROUP, INC.
A Delaware Corporation
PREAMBLE
These bylaws have been amended and restated as of March ___,
2000. These bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of Viasystems Group, Inc., a Delaware corporation
(the "Corporation"). In the event of a direct conflict between the provisions of
these bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the certificate of incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the certificate of
incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE I
OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called by the board of directors pursuant to a resolution adopted by a majority
of the members of the board of directors, by the Chairman of the Board, or by
any holder or holders of at
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<PAGE> 6
least fifty (50%) of the outstanding shares of capital stock of the Corporation.
A special meeting shall be held on such date and at such time as shall be
designated by the person(s) calling the meeting and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting. Only such
business shall be transacted at a special meeting as may be stated or indicated
in the notice of such meeting or in a duly executed waiver of notice of such
meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. (a) At an annual or any special meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) pursuant to the Corporation's notice of meeting, (ii) by
or at the direction of the board of directors, or (iii) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of the
notice provided for in these bylaws, who shall be entitled to vote at such
meeting, and who complies with the notice procedures set forth in these bylaws.
(b) For business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of paragraph (a) of this
bylaw, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the meeting is changed by more than 30 days from such
anniversary date, notice by the stockholder to be timely must be received no
later than the close of business on the tenth day following the earlier of the
day on which notice of the date of the meeting was mailed or public disclosure
of the meeting date was made. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the meeting (i)
a brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made, (iii) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder of
record and by the beneficial owner, if any, on whose behalf the proposal is
made, and the date on which such shares were initially acquired, and (iv) any
material interest of such stockholder of record and the beneficial owner, if
any, on whose behalf the proposal is made in such business.
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(c) Notwithstanding anything in these bylaws to the contrary,
no business shall be conducted at any annual meeting except in accordance with
the procedures set forth in this bylaw. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the procedures
prescribed by this bylaw, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing provisions of this bylaw, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this bylaw.
(d) Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 60 days before the date of the meeting, either personally
or by mail, by or at the direction of the President, the Secretary, or the
officer or person(s) calling the meeting, to each stockholder of record entitled
to vote at such meeting. If such notice is to be sent by mail, it shall be
directed to such stockholder at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares registered in the name of each stockholder. For a period of ten days
prior to such meeting, such list shall be kept on file at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of meeting or a duly executed waiver of notice of such meeting or, if not
so specified, at the place where the meeting is to be held and shall be open to
examination by any stockholder during ordinary business hours. Such list shall
be produced at such meeting and kept at the meeting at all times during such
meeting and may be inspected by any stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these bylaws. If a quorum
shall not be present, in person or by proxy,
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at any meeting of stockholders, the stockholders entitled to vote thereat who
are present, in person or by proxy, or, if no stockholder entitled to vote is
present, any officer of the Corporation may adjourn the meeting from time to
time, without notice other than announcement at the meeting (unless the board of
directors, after such adjournment, fixes a new record date for the adjourned
meeting), until a quorum shall be present, in person or by proxy. At any
adjourned meeting at which a quorum shall be present, in person or by proxy, any
business may be transacted which may have been transacted at the original
meeting had a quorum been present; provided that, if the adjournment is for more
than 30 days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation, or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each such
proxy shall be filed with the Secretary of the Corporation before or at the time
of the meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion, or exchange of stock or for the purpose of
any other lawful action, the board of directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors, for any such determination of
stockholders, such date in any case to be not more than 60 days and not less
than ten days
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prior to such meeting nor more than 60 days prior to any other action. If no
record date is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(ii) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the board of directors, and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the
board of directors. If no record date has been fixed by the board of directors,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is required by law or these bylaws, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
in the State of Delaware, principal place of business, or such officer or agent
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the board of directors and prior action by
the board of directors is required by law or these bylaws, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
board of directors adopts the resolution taking such prior action.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these bylaws or by some person appointed by the
meeting.
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2.11 Inspectors. The board of directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the validity and effect of proxies
and shall receive votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request, or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
ARTICLE III
DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. Except as otherwise set
forth in the certificate of incorporation of the Corporation, the number of
directors constituting the entire board of directors shall be fixed from time to
time exclusively by resolution adopted by the board of directors and shall
consist of no less than six and no more than nine members (plus such number of
directors as may be elected from time to time pursuant to the terms of any
Preferred Stock that may be issued and outstanding from time to time). The
directors of the Corporation shall be divided into three classes (with the first
class ("Class I"), the second class ("Class II") and the third class ("Class
III") each to consist of two or three directors). The term of office of the
Class I directors shall initially expire at the 2001 annual meeting of
stockholders, the term of office of the Class II directors shall initially
expire at the 2002 annual meeting of stockholders and the term of office of the
Class III directors shall initially expire at the 2003 annual meeting of
stockholders, with each director to hold office until his or her successor shall
have been duly elected and qualified. At each annual meeting of stockholders,
commencing with the 2001 annual meeting, directors elected to succeed those
directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual
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meeting of stockholders after their election, with each director to hold office
until his or her successor shall have been duly elected and qualified.
Except as otherwise required by law, the certificate of
incorporation of the Corporation, or these bylaws, the directors shall be
elected at an annual meeting of the stockholders at which a quorum is present.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy and entitled to vote on the election of
directors. None of the directors need be a stockholder of the Corporation or a
resident of Delaware. Each director must have attained the age of majority.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of the certificate of incorporation of the Corporation or the resolution
or resolutions adopted by the board of directors pursuant to the certificate of
incorporation of the Corporation and applicable thereto, and such directors so
elected shall not be divided into classes pursuant to this bylaw unless
expressly provided by such terms.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of stockholders
called expressly for that purpose, any director or the entire board of directors
may be removed with cause by a vote of the holders of a majority of the shares
then entitled to vote on the election of directors; provided, however, that so
long as stockholders have the right to cumulate votes in the election of
directors pursuant to the certificate of incorporation of the Corporation, if
less than the entire board of directors is to be removed, no one of the
directors may be removed if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire
board of directors.
3.5 Vacancies. Any director may be removed for cause, at any special
meeting of stockholders by the affirmative vote of a majority in number of the
shares then entitled to vote in person or by proxy at an election of directors,
provided notice of the intention to act upon such matter shall have been given
in the notice calling such meeting. Newly created directorships resulting from
any increase in the authorized number of directors and any vacancies occurring
in the board of directors caused by death, resignation, retirement,
disqualification or removal from office of any directors or otherwise, may be
filled by the vote of a majority of the directors then in office, though less
than a quorum, or by the sole remaining director, or a successor or successors
may be chosen at a special meeting of the stockholders called for that purpose,
and each successor director so chosen shall hold office until the next election
of the class for which
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such directors shall have been chosen and until their successors shall be
elected and qualified.
3.6 Stockholder Nomination of Director Candidates. (a) Only persons who
are nominated in accordance with the procedures set forth in these bylaws shall
be eligible to serve as directors. Nominations of persons for election to the
board of directors of the Corporation may be made at a meeting of stockholders
(i) by or at the direction of the board of directors or (ii) by any stockholder
of the Corporation who is a stockholder of record at the time of giving of
notice provided for in this bylaw, who shall be entitled to vote for the
election of directors at the meeting, and who complies with the notice
procedures set forth in this bylaw.
(b) Nominations by stockholders shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation (i) in the case of an annual
meeting, not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is changed by more than 30 days
from such anniversary date, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth day following the
earlier of the day on which notice of the date of the meeting was mailed or
public disclosure of the meeting date was made, and (ii) in the case of a
special meeting at which directors are to be elected, not later than the close
of business on the tenth day following the earlier of the day on which notice of
the date of the meeting was mailed or public disclosure of the meeting date was
made. Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (ii) as to the
stockholder giving the notice (A) the name and address, as they appear on the
Corporation's books, of such stockholder and (B) the class and number of shares
of the Corporation which are beneficially owned by such stockholder and also
which are owned of record by such stockholder; and (iii) as to the beneficial
owner, if any, on whose behalf the nomination is made, (A) the name and address
of such person and (B) the class and number of shares of the Corporation which
are beneficially owned by such person. At the request of the board of directors,
any person nominated by the board of directors for election as a director shall
furnish to the Secretary of the Corporation that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
(c) Notwithstanding anything in these bylaws to the contrary,
no person shall be eligible to serve as a director of the Corporation unless
nominated in accordance with the procedures set forth in this bylaw. The
chairman of the meeting
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shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by this
bylaw, and if he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this bylaw, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder with respect to the matters set forth in this bylaw.
3.7 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.8 First Meeting. Each newly elected board of directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
3.9 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.10 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.11 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the Chairman of the Board, the President, or any
director.
3.12 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of such meeting.
3.13 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these bylaws, the act of
a majority of the directors present at a meeting at which a quorum
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is in attendance shall be the act of the board of directors. At any time that
the certificate of incorporation of the Corporation provides that directors
elected by the holders of a class or series of stock shall have more or less
than one vote per director on any matter, every reference in these bylaws to a
majority or other proportion of directors shall refer to a majority or other
proportion of the votes of such directors.
3.14 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.15 Presumption of Assent. A director of the Corporation who is
present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
3.16 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE IV
COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as
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director, (ii) his resignation as a committee member or as a director, or (iii)
his removal as a committee member or as a director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the request
of the board
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of directors. The minutes of the proceedings of each committee shall be
delivered to the Secretary of the Corporation for placement in the minute books
of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE V
NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex, or telefax shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
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ARTICLE VI
OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the board of
directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, until his death, or until he shall resign
or shall have been removed in the manner hereinafter provided. Any two or more
offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President may be the chief executive officer of the
Corporation, if so designated by the board of directors, and, subject to the
board of directors, he shall have general charge, management, and control of the
properties and operations of the Corporation in the ordinary course of its
business, with all such powers with respect to such properties and operations as
may be reasonably incident to such responsibilities. If the board of directors
has not elected a Chairman of the Board or in the absence or inability to act of
the Chairman of the Board, the President shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board. As between the
Corporation and third parties, any action taken by the President in the
performance of the duties of the Chairman of the Board shall be conclusive
evidence that
13
<PAGE> 18
there is no Chairman of the Board or that the Chairman of the Board is absent or
unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
board of directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation and third parties, any action taken by a Vice
President in the performance of the duties of the President shall be conclusive
evidence of the absence or inability to act of the President at the time such
action was taken.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which shall
at all reasonable times be open to inspection by any director upon application
at the office of the Corporation during business hours. He shall in general
perform all duties incident to the office of the Secretary, subject to the
control of the board of directors, the Chairman of the Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as
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<PAGE> 19
determined by the length of time they have held the office of Assistant
Secretary) shall exercise the powers of the Secretary during that officer's
absence or inability to act.
ARTICLE VII
CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer, transfer agent, or registrar before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if he were such officer, transfer agent, or registrar at the
date of issue. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit the
holder's name and the number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in
15
<PAGE> 20
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
7.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
16
<PAGE> 21
8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the board of directors or by giving written
notice to the board of directors, the Chairman of the Board, the President, or
the Secretary. Such resignation shall take effect at the time specified therein
or, if no time is specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy, or
consent with respect to any such securities.
8.8 Telephone Meetings. Stockholders (acting for themselves or through
a proxy), members of the board of directors, and members of a committee of the
board of directors may participate in and hold a meeting of such stockholders,
board of directors, or committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this section
shall constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting. (a) Any action required or permitted to
be taken by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of such holders and may not be effected by any
consent in writing by such holders.
(b) Unless otherwise restricted by the certificate of
incorporation of the Corporation or by these bylaws, any action required or
permitted to be taken at a meeting of the board of directors, or of any
committee of the board of directors, may be taken without a meeting if a consent
or consents in writing, setting forth the action so taken, shall be signed by
all the directors or all the committee members, as the case may be, entitled to
vote with respect to the subject matter thereof, and such consent shall have the
same force and effect as a vote of such directors or committee members, as the
case may be, and may be stated as such in any certificate or document filed with
the Secretary of State of the State of Delaware or in any certificate delivered
to any person. Such consent or consents shall be filed with the minutes of
proceedings of the board or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
17
<PAGE> 22
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or
new bylaws may be adopted by the stockholders or by the board of directors at
any regular meeting of the stockholders or the board of directors or at any
special meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new bylaws be contained in the
notice of such special meeting.
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The undersigned, being the Assistant Secretary of the
Corporation, hereby certifies that the foregoing bylaws were amended and
restated by the unanimous written consent of the Board of Directors of the
Corporation as of March ___, 2000.
-------------------------------------
Kelly E. Wetzler, Assistant Secretary
19
<PAGE> 1
EXHIBIT 10.3
[VIASYSTEMS GROUP, INC. LETTERHEAD]
March ___, 2000
Mr. James N. Mills
c/o Mills & Partners, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Re: Consolidation, Amendment and Restatement of "IRR" Stock
Options Granted November 26, 1996, June 2, 1997, March 9,
1998, August 5, 1999 and the date hereof
Mr. Mills:
This letter consolidates, amends and restates the terms and conditions
set forth in (i) the grants made by Viasystems Group, Inc., a Delaware
corporation (the "Company") to you (the "Grantee") on November 26, 1996 of
options to purchase shares of Common Stock, $0.01 par value per share (the
"Stock"), of the Company, (ii) the grants made by the Company to the Grantee on
June 2, 1997 of options to purchase shares of Stock of the Company, (iii) the
grants made by the Company to the Grantee on March 9, 1998 of options to
purchase shares of Stock of the Company, (iv) the grants made by the Company to
the Grantee on August 5, 1999 of options to purchase shares of Stock of the
Company and (v) the additional grants made by the Company to the Grantee on the
date hereof of options to purchase 100,000 shares of Stock of the Company.
The 5 stock option grants made by the Company to the Grantee on November
26, 1996, June 2, 1997, March 9, 1998, August 5, 1999 and the date hereof are
for an aggregate 1,099,018 underlying shares of Stock. These 5 option grants are
hereby consolidated and amended and restated as follows:
1. Grant of Performance Options
The Company hereby grants to the Grantee, as a matter of separate
inducement and not in lieu of any salary or other compensation for services, the
right and option to purchase (the "Option"), in accordance with the terms and
conditions set forth in this agreement, an aggregate of 1,099,018 shares of
Stock (the "Option Shares") at a price (the "Exercise Price") of $9.00 per share
in cash, all subject to the adjustment provisions and limitations set forth
herein.
The Option is not intended to be an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"). The Company shall at all times have reserved for issuance a sufficient
number of shares of
<PAGE> 2
Stock to permit the Grantee to acquire the Option Shares on the terms and
conditions provided herein.
2. Exercise
(a) The Option Shares are immediately exercisable.
(b) Subject to the relevant provisions and limitations contained
herein, the Grantee may exercise the Option to purchase all or a portion of the
applicable number of Option Shares at any time on or after the date hereof and
prior to the termination of the Option pursuant to this agreement. Each Option
will automatically terminate and become null and void upon the expiration of a
period of ten years commencing on the date of this agreement.
(c) Any exercise by the Grantee of the Option shall be in writing
addressed to the corporate secretary of the Company at its principal place of
business and shall (i) state the number of shares of Stock being purchased
pursuant to such exercise and (ii) be accompanied by payment of the full amount
of the aggregate Exercise Price of the shares so purchased.
3. Transferability
The Option is freely transferable by the Grantee.
4. Registration
Unless there is in effect a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the issuance of
the Option Shares (and, if required, there is available for delivery a
prospectus meeting the requirements of Section 10(a)(3) of the Securities Act),
the Grantee will, upon the exercise of the Option in accordance with the terms
and conditions hereof, deliver to the Company a certificate pursuant to which
the Grantee (a) represents and warrants to the Company that the Optionee is an
"accredited investor" within the meaning of the rules and regulations under the
Securities Act and that the Option Shares then being purchased by the Grantee
pursuant to the Option are not being acquired with a view to the distribution
thereof in violation of the Securities Act; (b) acknowledges and confirms that
the Option Shares purchased may not be sold unless registered for sale under the
Securities Act or pursuant to an exemption from such registration (in which case
an opinion of counsel satisfactory to the Company shall be supplied to the
Company by the Grantee prior to the consummation of such sale to the effect that
such sale is exempt from registration under the Securities Act); and (c) agrees
that the certificates evidencing such Option Shares shall bear a legend to the
effect of the foregoing.
5. Withholding Taxes
By acceptance hereof, the Grantee hereby (a) agrees to reimburse the
Company or any subsidiary corporation by which any Grantee is employed for any
federal, state, or local taxes required by any government to be withheld or
otherwise deducted by such
2
<PAGE> 3
corporation in respect of the Grantee's exercise of all or a portion of the
Option; (b) authorizes the Company or any subsidiary corporation by which the
Grantee is employed to withhold from any cash compensation paid to the Grantee
or on the Grantee's behalf, an amount sufficient to discharge any federal,
state, and local taxes imposed on the Company, or any subsidiary corporation by
which the Grantee is employed, and which otherwise has not been reimbursed by
the Grantee, in respect of the Grantee's exercise of all or a portion of the
Option; and (c) agrees that the Company or any subsidiary corporation by which
the Grantee is employed, may, in its discretion, hold the stock certificate to
which Grantee is entitled upon exercise of the Option as security for the
payment of the aforementioned withholding tax liability, until cash sufficient
to pay that liability has been accumulated, and may, in its discretion, effect
such withholding by retaining shares issuable upon the exercise of the Option
having a Fair Market Value on the date of exercise which is equal (in the
judgment of such corporation) to the amount to be withheld.
6. Adjustments
In the event of any change in the outstanding shares of Stock through
merger, consolidation, reorganization, recapitalization, stock dividend, stock
split, split-up, split off, spin-off, combination of shares, exchange of shares,
or other like change in capital structure of the Company, the Board of Directors
of the Company shall cause an appropriate adjustment to be made to each
outstanding Option Share, and if appropriate, the Exercise Price, such that the
Option shall thereafter be exercisable for such securities, cash, and/or other
property as would have been received in respect of the Option Shares subject to
the Option had the Option been exercised in full immediately prior to such
change, and such an adjustment shall be made successively each time any such
change shall occur. The term "Option Shares" after any such change shall refer
to the securities, cash, and/or property then receivable upon exercise of the
Option.
7. Distribution of Assets or Securities
In case the Company shall fix a record date for the making of a
distribution to all holders of shares of Stock of any asset or security other
than those referred to in Section 6 and other than in connection with the total
liquidation, dissolution or winding-up of the Company, then and in each such
case, the Company shall deposit in trust, the amount of such assets or
securities to which the Grantee would have been entitled to receive as a holder
of Stock if the Grantee had exercised his Option immediately prior to the record
date for such distribution. Upon the exercise of the Option, the Grantee shall
be entitled to receive in addition to the Option Shares (a) the amount of assets
or securities to which the Grantee would have been entitled to receive as a
holder of Stock if such holder had exercised his Option immediately prior to the
record date for such distribution, and (b) any income earned on such assets or
securities from the distribution date to the date of exercise. In the event that
the Option is terminated or expires unexercised, the assets and securities held
in trust, and all income earned thereon, shall be returned to the Company or its
successor in interest.
3
<PAGE> 4
8. Entire Agreement
This agreement supersedes any other agreement, whether written or oral,
that may have been made or entered into by any party relating to the matters
contemplated hereby. This agreement constitutes the entire agreement by and
between the parties hereto and there are no agreements or commitments by or
between such parties except as expressly set forth herein.
9. Miscellaneous
This agreement shall be governed by the laws of the State of Delaware
(without giving effect to principles of conflicts of laws).
10. Definitions
In addition to the terms specifically defined elsewhere in this
agreement, as used in this agreement, the term, "Fair Market Value" shall, as it
relates to the Stock, mean the average of the high and low prices of the Stock
as reported on the principal national securities exchange on which shares of
Stock are then listed on the date specified herein, or if there were no sales on
such date, on the next preceding day on which there were sales, or if the Stock
is not listed on a national securities exchange, the last reported bid price in
the over-the-counter market, or if the Stock is not traded in the
over-the-counter market, the per share cash price for which all of the
outstanding Stock could be sold to a willing purchaser in an arms length
transaction (without regard to minority discount, absence of liquidity, or
transfer restrictions imposed by any applicable law or agreement) at the date of
the event giving rise to a need for a determination. Except as may be otherwise
expressly provided in a particular Option, Fair Market Value shall be determined
in good faith by the Board of Directors of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
<PAGE> 5
Please indicate your acceptance of all the terms and conditions of this
agreement by signing and returning a copy of this letter. This agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement. This agreement shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
parties.
Very truly yours,
VIASYSTEMS GROUP, INC.
By:
-------------------------------------
Name: David M. Sindelar
Title: Senior Vice President and Chief
Financial Officer
ACCEPTED AND AGREED TO as of
the date first above written.
- -----------------------------
JAMES N. MILLS
5
<PAGE> 1
EXHIBIT 10.4
[VIASYSTEMS GROUP, INC. LETTERHEAD]
March ___, 2000
Mr. David M. Sindelar
c/o Mills & Partners, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Re: Consolidation, Amendment and Restatement of "IRR"
Stock Options Granted November 26, 1996, June 2,
1997, March 9, 1998, August 5, 1999 and the date
hereof
Mr. Sindelar:
This letter consolidates, amends and restates the terms and conditions
set forth in (i) the grants made by Viasystems Group, Inc., a Delaware
corporation (the "Company") to you (the "Grantee") on November 26, 1996 of
options to purchase shares of Common Stock, $0.01 par value per share (the
"Stock"), of the Company, (ii) the grants made by the Company to the Grantee on
June 2, 1997 of options to purchase shares of Stock of the Company, (iii) the
grants made by the Company to the Grantee on March 9, 1998 of options to
purchase shares of Stock of the Company, (iv) the grants made by the Company to
the Grantee on August 5, 1999 of options to purchase shares of Stock of the
Company and (v) the additional grants made by the Company to the Grantee on the
date hereof of options to purchase 92,359 shares of Stock of the Company.
The 5 stock option grants made by the Company to the Grantee on November
26, 1996, June 2, 1997, March 9, 1998, August 5, 1999 and the date hereof are
for an aggregate 737,257 underlying shares of Stock. These 5 option grants are
hereby consolidated and amended and restated as follows:
1. Grant of Performance Options
The Company hereby grants to the Grantee, as a matter of separate
inducement and not in lieu of any salary or other compensation for services, the
right and option to purchase (the "Option"), in accordance with the terms and
conditions set forth in this agreement, an aggregate of 737,257 shares of Stock
(the "Option Shares") at a price (the "Exercise Price") of $9.00 per share in
cash, all subject to the adjustment provisions and limitations set forth herein.
The Option is not intended to be an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"). The Company shall at all times have reserved for issuance a sufficient
number of shares of
<PAGE> 2
Stock to permit the Grantee to acquire the Option Shares on the terms and
conditions provided herein.
2. Exercise
(a) The Option Shares are immediately exercisable.
(b) Subject to the relevant provisions and limitations contained
herein, the Grantee may exercise the Option to purchase all or a portion of the
applicable number of Option Shares at any time on or after the date hereof and
prior to the termination of the Option pursuant to this agreement. Each Option
will automatically terminate and become null and void upon the expiration of a
period of ten years commencing on the date of this agreement.
(c) Any exercise by the Grantee of the Option shall be in writing
addressed to the corporate secretary of the Company at its principal place of
business and shall (i) state the number of shares of Stock being purchased
pursuant to such exercise and (ii) be accompanied by payment of the full amount
of the aggregate Exercise Price of the shares so purchased.
3. Transferability
The Option is freely transferable by the Grantee.
4. Registration
Unless there is in effect a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the issuance of
the Option Shares (and, if required, there is available for delivery a
prospectus meeting the requirements of Section 10(a)(3) of the Securities Act),
the Grantee will, upon the exercise of the Option in accordance with the terms
and conditions hereof, deliver to the Company a certificate pursuant to which
the Grantee (a) represents and warrants to the Company that the Optionee is an
"accredited investor" within the meaning of the rules and regulations under the
Securities Act and that the Option Shares then being purchased by the Grantee
pursuant to the Option are not being acquired with a view to the distribution
thereof in violation of the Securities Act; (b) acknowledges and confirms that
the Option Shares purchased may not be sold unless registered for sale under the
Securities Act or pursuant to an exemption from such registration (in which case
an opinion of counsel satisfactory to the Company shall be supplied to the
Company by the Grantee prior to the consummation of such sale to the effect that
such sale is exempt from registration under the Securities Act); and (c) agrees
that the certificates evidencing such Option Shares shall bear a legend to the
effect of the foregoing.
5. Withholding Taxes
By acceptance hereof, the Grantee hereby (a) agrees to reimburse the
Company or any subsidiary corporation by which any Grantee is employed for any
federal, state, or local taxes required by any government to be withheld or
otherwise deducted by such
2
<PAGE> 3
corporation in respect of the Grantee's exercise of all or a portion of the
Option; (b) authorizes the Company or any subsidiary corporation by which the
Grantee is employed to withhold from any cash compensation paid to the Grantee
or on the Grantee's behalf, an amount sufficient to discharge any federal,
state, and local taxes imposed on the Company, or any subsidiary corporation by
which the Grantee is employed, and which otherwise has not been reimbursed by
the Grantee, in respect of the Grantee's exercise of all or a portion of the
Option; and (c) agrees that the Company or any subsidiary corporation by which
the Grantee is employed, may, in its discretion, hold the stock certificate to
which Grantee is entitled upon exercise of the Option as security for the
payment of the aforementioned withholding tax liability, until cash sufficient
to pay that liability has been accumulated, and may, in its discretion, effect
such withholding by retaining shares issuable upon the exercise of the Option
having a Fair Market Value on the date of exercise which is equal (in the
judgment of such corporation) to the amount to be withheld.
6. Adjustments
In the event of any change in the outstanding shares of Stock through
merger, consolidation, reorganization, recapitalization, stock dividend, stock
split, split-up, split off, spin-off, combination of shares, exchange of shares,
or other like change in capital structure of the Company, the Board of Directors
of the Company shall cause an appropriate adjustment to be made to each
outstanding Option Share, and if appropriate, the Exercise Price, such that the
Option shall thereafter be exercisable for such securities, cash, and/or other
property as would have been received in respect of the Option Shares subject to
the Option had the Option been exercised in full immediately prior to such
change, and such an adjustment shall be made successively each time any such
change shall occur. The term "Option Shares" after any such change shall refer
to the securities, cash, and/or property then receivable upon exercise of the
Option.
7. Distribution of Assets or Securities
In case the Company shall fix a record date for the making of a
distribution to all holders of shares of Stock of any asset or security other
than those referred to in Section 6 and other than in connection with the total
liquidation, dissolution or winding-up of the Company, then and in each such
case, the Company shall deposit in trust, the amount of such assets or
securities to which the Grantee would have been entitled to receive as a holder
of Stock if the Grantee had exercised his Option immediately prior to the record
date for such distribution. Upon the exercise of the Option, the Grantee shall
be entitled to receive in addition to the Option Shares (a) the amount of assets
or securities to which the Grantee would have been entitled to receive as a
holder of Stock if such holder had exercised his Option immediately prior to the
record date for such distribution, and (b) any income earned on such assets or
securities from the distribution date to the date of exercise. In the event that
the Option is terminated or expires unexercised, the assets and securities held
in trust, and all income earned thereon, shall be returned to the Company or its
successor in interest.
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8. Entire Agreement
This agreement supersedes any other agreement, whether written or oral,
that may have been made or entered into by any party relating to the matters
contemplated hereby. This agreement constitutes the entire agreement by and
between the parties hereto and there are no agreements or commitments by or
between such parties except as expressly set forth herein.
9. Miscellaneous
This agreement shall be governed by the laws of the State of Delaware
(without giving effect to principles of conflicts of laws).
10. Definitions
In addition to the terms specifically defined elsewhere in this
agreement, as used in this agreement, the term, "Fair Market Value" shall, as it
relates to the Stock, mean the average of the high and low prices of the Stock
as reported on the principal national securities exchange on which shares of
Stock are then listed on the date specified herein, or if there were no sales on
such date, on the next preceding day on which there were sales, or if the Stock
is not listed on a national securities exchange, the last reported bid price in
the over-the-counter market, or if the Stock is not traded in the
over-the-counter market, the per share cash price for which all of the
outstanding Stock could be sold to a willing purchaser in an arms length
transaction (without regard to minority discount, absence of liquidity, or
transfer restrictions imposed by any applicable law or agreement) at the date of
the event giving rise to a need for a determination. Except as may be otherwise
expressly provided in a particular Option, Fair Market Value shall be determined
in good faith by the Board of Directors of the Company.
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Please indicate your acceptance of all the terms and conditions of this
agreement by signing and returning a copy of this letter. This agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement. This agreement shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
parties.
Very truly yours,
VIASYSTEMS GROUP, INC.
By:
-------------------------------------
Name: James N. Mills
Title: Chairman of the Board and Chief
Executive Officer
ACCEPTED AND AGREED TO as of
the date first above written.
- -----------------------------
DAVID M. SINDELAR
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