EXHIBIT 10.4
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of the 31st day of January,
2003 by and among Viasystems Group, Inc. ("Corporation"), Viasystems, Inc.
("Viasystems") and Viasystems Technologies Corp. LLC ("Technologies" and,
together with Corporation and Viasystems, "Employer"), and Xxxxxxx X. Xxxxxx
("Employee").
W I T N E S S E T H :
WHEREAS, Employer and Employee entered into an Employment Agreement as
of October 16, 1998 which was amended and restated on February 16, 2000, and
desire to further amend and restate the terms of such Agreement as set forth
herein;
NOW, THEREFORE, Employee and Employer, in consideration of the
agreements, covenants and conditions herein contained, hereby agree as follows:
1. BASIC EMPLOYMENT PROVISIONS.
(a) Employment and Term. Employer hereby agrees to employ Employee
(hereinafter referred to as the "Employment") as the President and Chief
Operating Officer of the Corporation (the "Position"), and Employee agrees to be
employed by Employer in such Position for a period ending on January 31, 2005,
unless terminated earlier pursuant to Section 3 (the "Employment Period"). In
the event that termination pursuant to Section 3 has not occurred on or prior to
January 31, 2005 (or any anniversary thereof), the Employment Period shall
automatically extend for an additional one year period until terminated pursuant
to Section 3.
(b) Duties. Employee in the Position shall be subject to the direction
and supervision of the Chief Executive Officer of the Corporation or his
designee (the "CEO") and shall have those duties and responsibilities which are
assigned to Employee during the Employment Period by the CEO consistent with the
Position, provided that the CEO shall not assign any greater duties or
responsibilities to the Employee than are necessary to the Employee's faithful
and adequate supervision of the operations of the Corporation and its
subsidiaries, both direct and indirect. Employee agrees to perform faithfully
the duties assigned to Employee to the best of Employee's ability.
2. COMPENSATION.
(a) Salary. Employer shall pay to Employee during the Employment Period
a salary as basic compensation for the services to be rendered by Employee
hereunder. The initial amount of such salary shall be Five Hundred and Fifty
Thousand Dollars ($550,000) per annum. Such salary shall be reviewed by the CEO
and may be increased in the CEO's sole discretion but may not be reduced. Such
salary shall accrue and be payable in accordance with the payroll practices of
Employer in effect from time to time. All such payments shall be subject to
deduction and withholding authorized by Employee or required by applicable law.
(b) Bonus. During the Employment Period, Employee shall be eligible to
receive an annual bonus (payable by the Employer) in an amount in accordance
with the Senior Executive
Incentive Compensation Plan or any new plan adopted by Employer applicable to
other senior executives.
(c) Benefits. During the Employment Period, Employee shall be entitled
to such other benefits as are customarily accorded the executives of Employer,
including without limitation, group life, hospitalization and other insurance,
vacation pay, and reimbursement for the cost of state and federal income tax
preparation by the Employer's consulting tax accountant. In addition, Employer
shall provide an annual executive physical to Employee at Employer's expense.
(d) Medical Benefits. During the lifetime of Employee and/or Employee's
surviving spouse, in the event the Employment Period has terminated for any
reason, Employer shall provide health coverage at least equal to and on the same
terms as the health coverage granted to other executives of Employer at no cost
to Employee or to Employee's surviving spouse. Employee shall be enrolled in the
Executive Medical Supplement Plan, so long as other executives are enrolled in
such plan. Provided, however, that no medical benefits shall be provided
pursuant to this Section 2(d) during any period in which Employee is eligible to
receive medical benefits from any person or entity (other than Employer or its
affiliates) engaged in the EMS or printed circuit board business and situated
within the United States of America. Provided further, however, that no medical
benefits shall be provided pursuant to this Section 2(d) if Employee is employed
for a period of 10 or more years after termination of this Agreement as an
Executive Vice President or in a more senior position with any person or entity
(other than Employer or its affiliates) engaged in the EMS or printed circuit
board business and situated within the United States of America.
(e) Club Dues. During the Employment Period, Employer will reimburse
Employee for the cost of joining and remaining a member of a country club
reasonably acceptable to Employer, excluding personal charges at such country
club, and for the dues and fees for the Saint Louis Club.
3. TERMINATION.
(a) Death or Disability. This Agreement shall terminate automatically
upon the death or total disability of Employee. For the purpose of this
Agreement "total disability" shall be deemed to have occurred if Employee shall
have been unable to perform the Employee's duties of the Position due to mental
or physical incapacity for a period of six (6) consecutive months or for any one
hundred (100) working days out of a twelve (12) consecutive month period.
(b) Cause. Employer may terminate the employment of Employee under this
Agreement for Cause. For the purpose of this Agreement, "Cause" shall be deemed
to be fraud, dishonesty, competition with Employer, unauthorized use of any of
Employer's trade secrets or confidential information or failure to properly
perform the duties assigned to Employee, in the reasonable judgment of Employer.
(c) Without Cause. Employer may terminate the employment of Employee
under this Agreement without Cause, subject to the continuing rights of Employee
pursuant to Section 4(b) below.
2
4. COMPENSATION UPON TERMINATION.
(a) Termination for Cause or Voluntary Termination by Employee. If the
employment of Employee under this Agreement is terminated for Cause or if
Employee voluntarily terminates his employment, no further compensation shall be
paid to Employee after the date of termination but Employee and Employee's
surviving spouse shall be entitled to medical benefits provided in Section 2(d)
above.
(b) Termination Without Cause/Death or Disability. If the employment of
Employee under this Agreement is terminated pursuant to Sections 3(a) or 3(c)
above, Employee shall be entitled to continue to receive from Employer
Employee's then current salary hereunder (which shall not be less than the
amount specified in the second sentence of Section 2(a) above) for the greater
of the period ending on January 31, 2005 or 18 months (either, the "Severance
Period"), such amount to continue to be paid in accordance with the payroll
practices of Employer, and shall further be entitled to continue to receive
during such Severance Period the benefits to which Employee would otherwise be
entitled pursuant to Section 2(c) and reimbursement for expenses incurred by
Employee to own and maintain an automobile as contemplated by Section 5 below.
5. EXPENSE REIMBURSEMENT. Upon submission of properly documented expense account
reports, Employer shall reimburse Employee for all reasonable travel and
entertainment expenses incurred by Employee in the course of his employment with
Employer. Employer shall pay Employee an auto allowance in an amount sufficient
so that, after the effect of federal and state income taxes, Employee shall net
One Thousand Dollars ($1,000.00) per month.
6. ASSIGNMENT. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto except that this Agreement and all of the provisions hereof may
be assigned by Employer to any successor to all or substantially all of their
assets (by merger or otherwise) and may otherwise be assigned upon the prior
written consent of Employee.
7. CONFIDENTIAL INFORMATION.
(a) Non-Disclosure. During the Employment Period or at any time
thereafter, irrespective of the time, manner or cause of the termination of this
Agreement, Employee will not directly or indirectly reveal, divulge, disclose or
communicate to any person or entity, other than authorized officers, directors
and employees of the Employer, in any manner whatsoever, any Confidential
Information (as hereinafter defined) of Employer without the prior written
consent of the CEO.
(b) Definition. As used herein, "Confidential Information" means
information disclosed to or known by Employee as a direct or indirect
consequence of or through the Employment about Employer, or its respective
businesses, products and practices which information is not generally known in
the business in which Employer is or may be engaged. However, Confidential
Information shall not include under any circumstances any information with
respect to the foregoing matters which is (i) available to the public from a
source other than
3
Employee, (ii) released in writing by Employer to the public or to persons who
are not under a similar obligation of confidentiality to Employer and who are
not parties to this Agreement, (iii) obtained by Employee from a third party not
under a similar obligation of confidentiality to Employer, (iv) required to be
disclosed by any court process or any government or agency or department of any
government, or (v) the subject of a written waiver executed by either Employer
for the benefit of Employee.
(c) Return of Property. Upon termination of the Employment, Employee
will surrender to Employer all recorded Confidential Information whether in hard
copy or electronically stored, including without limitation, all lists, charts,
schedules, reports, financial statements, books and records of the Employer, and
all copies thereof, and all other property belonging to the Employer but
Employee shall be accorded reasonable access to such Confidential Information
subsequent to the Employment Period for any proper purpose as determined in the
reasonable judgment of Employer.
8. AGREEMENT NOT TO COMPETE.
(a) Termination for Cause or Voluntary Termination. In the event that
the Employee is terminated for Cause or voluntarily terminates his employment
with Employer prior to the expiration of the term of this Agreement, Employee
hereby agrees that for a period of one (1) year following such termination,
neither he nor any affiliate shall, either in his own behalf or as a partner,
officer, director, employee, agent or shareholder (other than as the holder of
less than 5% of the outstanding capital stock of any corporation with a class of
equity security registered under Section 12(b) or Section 12(g) of the
Securities Exchange Act of 1934, as amended) engage in, invest in or render
services to any person or entity engaged in the businesses in which Employer is
then engaged and situated within the United States of America. Nothing contained
in this Section 8(a) shall be construed as restricting the Employee's right to
sell or otherwise dispose of any business or investments owned or operated by
Employee as of the date hereof.
(b) Termination Without Cause or For Disability. In the event that the
employment of Employee is terminated by Employer without Cause or as a result of
the total disability of Employee, Employee hereby agrees that during the period
that Employee accepts payment from the Employer pursuant to Section 4(b),
neither Employee nor any affiliate shall, either in Employee's own behalf or as
a partner, officer, director, employee, agent or shareholder (other than as the
holder of less that 5% of the outstanding capital stock of any corporation with
a class of equity security registered under Section 12(b) or Section 12(g) of
the Securities Exchange Act of 1934, as amended) engage in, invest in or render
services to any person or entity engaged in the businesses in which Employer or
any subsidiary of Employers is then engaged and situated within the United
States of America. Nothing contained in this Section 8(b) shall be construed as
restricting the Employee's right to sell or otherwise dispose of any business or
investments owned or operated by Employee as of the date hereof. In the event of
Employee's violation of the provisions of Section 8(b), the right of Employee to
receive any further payment pursuant to Section 4(b) shall immediately terminate
and the Employer shall be entitled to secure reimbursement from Employee for all
payments made to Employee under Section 4(b) subsequent to the date of any such
violation. The parties hereto hereby acknowledge and agree that the provisions
of the immediately preceding sentence are in addition to any other remedy
available to Employer in respect of any violation of this Section 8(b).
4
9. AGREEMENT NOT TO SOLICIT EMPLOYEES. Employee agrees that, for a period of
three (3) years following the termination of the Employment Period, neither
Employee nor any affiliate shall, on behalf of any business engaged in a
business competitive with Employer, solicit or induce, or in any manner attempt
to solicit or induce, any person employed by, or any agent of, Employer to
terminate Employee's employment or agency, as the case may be, with Employer.
10. NO VIOLATION. Employee hereby represents and warrants to Employer that
neither the execution, delivery and performance of this Agreement nor the
passage of time, nor both, will conflict with, result in a default, right to
accelerate or loss of rights under any provision of any agreement or
understanding to which the Employee or, to the best knowledge of Employee, any
of Employee's affiliates are a party or by which Employee or, to the best
knowledge of Employee, Employee's affiliates may be bound or affected.
11. CAPTIONS. The captions, headings and arrangements used in this Agreement are
for convenience only and do not in any way affect, limit or amplify the
provisions hereof.
12. NOTICES. All notices required or permitted to be given hereunder shall be in
writing and shall be deemed delivered, whether or not actually received, two
days after deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to the party to whom notice
is being given at the specified address or at such other address as such party
may designate by notice:
Employer: Viasystems Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Employee: Xxxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
13. INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement; the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. In lieu of each
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
14. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire agreement
of the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings, if any, relating to the subject matter
hereof. This Agreement may be amended in whole or in part only by an instrument
in writing setting forth the particulars of such amendment and duly executed by
an officer of Employer expressly authorized by the CEO to do so and by Employee.
5
15. WAIVER. No delay or omission by any party hereto to exercise any right or
power hereunder shall impair such right or power or be construed as a waiver
thereof. A waiver by any of the parties hereto of any of the covenants to be
performed by any other party or any breach thereof shall not be construed to be
a waiver of any succeeding breach thereof or of any other covenant herein
contained. Except as otherwise expressly set forth herein, all remedies provided
for in this Agreement shall be cumulative and in addition to and not in lieu of
any other remedies available to any party at law, in equity or otherwise.
16. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original, and all of which together shall
constitute one and the same agreement.
17. GOVERNING LAW. This Agreement shall be construed and enforced according to
the laws of the State of Missouri.
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
VIASYSTEMS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxx
---------------------------------- --------------------------------
Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx
Chief Executive Officer
VIASYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx,
Chief Executive Officer
VIASYSTEMS TECHNOLOGIES CORP. LLC
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx,
Chief Executive Officer
