MERIX CORPORATION, VIASYSTEMS GROUP, INC. and First Supplemental Indenture Dated as of February 16, 2010 to the Indenture Dated as of May 16, 2006
EXHIBIT
4.1
____________________________________________
MERIX
CORPORATION,
VIASYSTEMS
GROUP, INC.
and
U.S. BANK
NATIONAL ASSOCIATION
____________________________________________
Dated as
of February 16, 2010
to
the
Indenture
Dated as
of May 16, 2006
____________________________________________
This
FIRST SUPPLEMENTAL INDENTURE (this “First
Supplemental Indenture”), dated as of February 16, 2010, is by and among
Merix Corporation, an Oregon corporation (the “Company”),
Viasystems Group, Inc., a Delaware corporation (“Viasystems”),
and U.S. Bank National Association, a national banking association (the “Trustee”).
RECITALS:
WHEREAS,
the Company and the Trustee have heretofore entered into that certain Indenture,
dated as of May 16, 2006 (the “Indenture”),
to provide for the issuance of up to $70,000,000 aggregate principal amount of
the Company’s 4% Convertible Senior Subordinated Notes due 2013 (the “Securities”);
WHEREAS,
the Company, Viasystems and Maple Acquisition Corp., a direct and wholly owned
subsidiary of Viasystems (“Merger
Sub”), entered into an Agreement and Plan of Merger, dated as of October
6, 2009 (the “Merger
Agreement”);
WHEREAS,
pursuant to the Merger Agreement, Merger Sub will merge with and into
the Company and the Company will become a subsidiary of Viasystems (the “Merger”);
WHEREAS,
concurrently with the closing of the Merger, Viasystems will
contribute the shares of Merix to Viasystems, Inc., a direct and wholly owned
subsidiary of Viasystems;
WHEREAS,
Sections 7.1 and 7.2 of the Indenture permit the Company to merge with and into
another person so long as certain conditions have been met;
WHEREAS,
as a result of the Merger, the Company will be a subsidiary of Viasystems and,
at the effective time of the Merger, each issued and outstanding share of the
Company’s common stock, no par value (the “Company Common
Stock”) (other than shares to be canceled in accordance with Section
2.1(b) of the Merger Agreement), shall be converted into the right to receive
0.1119086 validly issued, fully paid and nonassessable shares of common stock,
par value $0.01 per share, of Viasystems (the “Viasystems Common
Stock” and together with cash in lieu of fractional shares provided for
pursuant to the Merger Agreement, the “Merger
Consideration”) and, therefore, as a result, pursuant to Section 12.11 of
the Indenture, the Securities will be convertible into the equivalent of the
Merger Consideration in place of Company Common Stock into which the Securities
are currently convertible;
WHEREAS,
the Merger constitutes a Fundamental Change within the meaning of Section
14.3(4) of the Indenture;
WHEREAS,
Section 12.11 of the Indenture provides, among other things, that in the case of
any merger of the Company with or into any other person or any merger of another
person with or into the Company (other than a merger that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Company Common Stock) as a result of which holders of Company Common Stock shall
be entitled to receive stock, other securities, other property, assets or cash
for such holders’ Company Common Stock, the Person resulting from such merger
shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then Outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in Section
12.1 of the Indenture, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such merger by a holder of
the number of shares of Company Common Stock into which such Security might have
been converted immediately prior to such merger, and providing for adjustments
that, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practical to the adjustments
provided for in Article XII of the Indenture;
WHEREAS,
Section 8.1(4) of the Indenture provides that, without the consent of any
Holders of Securities, the Company and the Trustee may enter into one or more
supplemental indentures to make provision with respect to the conversion rights
of Holders of Securities pursuant to Section 12.11 of the Indenture or to make
provision with respect to the repurchase rights of Holders of Securities
pursuant to Section 14.4 of the Indenture; and
WHEREAS,
Section 8.1(9) of the Indenture provides that, without the consent of any
Holders of Securities, the Company and the Trustee may enter into one or more
supplemental indentures to cure any ambiguity, to correct or supplement any
provision therein that may be inconsistent with any other provision therein or
that is otherwise defective, or to make any other provisions with respect to
matters or questions arising under the Indenture as the Company and the Trustee
may deem necessary or desirable; provided such action pursuant to such clause
shall not adversely affect the interests of the Holders of Securities in any
material respect; and
WHEREAS,
all things necessary to authorize the guarantee by Viasystems of the Company’s
obligations under the Indenture and to make this First Supplemental Indenture
when executed by the parties hereto a valid and binding supplement to the
Indenture have been done and performed.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
mutually covenant and agree for the equal and ratable benefit of the Holders as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions.
Capitalized
terms used herein without definition shall have the meanings assigned to them in
the Indenture. For all purposes of this First Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same meanings
as corresponding terms and expressions used in the Indenture and (ii) the words
“herein,” “hereof” and “hereby” and other words of similar import used in this
First Supplemental Indenture refer to this First Supplemental Indenture as a
whole and not to any particular section hereof.
ARTICLE
II
AMENDMENT
OF INDENTURE AND
GUARANTEE
OF OBLIGATIONS
Section
2.1 Guarantee of Company
Obligations.
As a
result of the Merger, Viasystems irrevocably and fully and unconditionally
guarantees all of the Company’s obligations under the Securities and the
Indenture, including without limitation the due and punctual payments of
principal of, premium, if any, and interest (including Additional Interest, if
any) on all of the Securities as applicable and the performance or observance of
every covenant of the Indenture on the part of the Company to be performed or
observed.
Section
2.2 Notices.
Section
1.5(2) of the Indenture shall be amended to read as follows:
“the
Company by the Trustee or by any Holder of Securities shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing, mailed, first-class postage prepaid, or facsimile (receipt confirmed),
or delivered by hand or overnight courier, addressed to the Company (c/o
Viasystems Group, Inc.) at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx
00000, Attention: Chief Executive Officer, Facsimile: (000) 000-0000, or at any
other address previously furnished in writing to the Trustee by the
Company.”
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Section
2.3
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Conversion of
Securities into Merger Consideration; Issuance of Viasystems Common
Stock.
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As of the
date hereof:
(a) in
accordance with and subject to Section 12.11 of the Indenture, the Holder of an
Outstanding Security shall have the right, during the period such Security shall
be convertible as specified in Section 12.1 of the Indenture, to convert such
Security only into the amount of Merger Consideration receivable upon the Merger
by a holder of the number of shares of Common Stock of the Company into which
such Security might have been converted immediately prior to the
Merger;
(b) Viasystems
hereby agrees that, pursuant to Section 12.7 of the Indenture, it shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of Viasystems Common Stock, for purposes of
effecting the conversion of Securities, the full number of shares of Viasystems
Common Stock then issuable upon conversion of all Outstanding Securities;
and
(c) pursuant
to Section 12.11 of the Indenture, upon conversion of the Securities by a
Holder, Viasystems will issue to such Holder shares of Viasystems Common Stock
and cash in lieu of fractional shares in an amount equal to the number of shares
of Viasystems Common Stock and cash in lieu of fractional shares that such
Holder would have received as Merger Consideration had such Holder converted its
Securities immediately prior to the Merger, in accordance with the terms and
conditions of the Indenture and the Securities. The adjustments
provided for in Article XII of the Indenture shall apply as nearly equivalent as
may be practical to Viasystems and Viasystems Common Stock as those that apply
immediately prior to the Merger to the Company and Company Common Stock,
respectively;
(d) Section
12.11 of the Indenture is hereby amended to replace all references to “the
Company” appearing therein with “Parent”;
(e) Section
1.1 of the Indenture is hereby supplemented to amend the following definition to
read in its entirety as follows:
“Common
Stock” means the common stock, par value $.01 per share, of the Parent. Subject
to the provisions of Section 12.11, shares issuable on conversion or repurchase
of Securities shall include only shares of Common Stock or shares of any class
or classes of common stock resulting from any reclassification or
reclassifications thereof; provided, however, that if at any time there shall be
more than one such resulting class, the shares so issuable on conversion of
Securities shall include shares of all such classes, and the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
(f) Section
1.1 of the Indenture is hereby supplemented to add the following definition to
read in its entirety as follows:
“Parent”
means Viasystems Group, Inc.
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Section
2.4
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Repurchase of
Securities at the Option of the
Holder.
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As of the
date hereof:
(a) All
references in Sections 14.3 and 14.4 to “the Company” shall be changed to
references to “Parent”; provided that the references to “the Company” shall not
be changed to references to “Parent” with respect to the right of a Holder, as a
result of the Merger, to require the Company to repurchase, at such Holder’s
option, all of such Holder’s Securities not theretofore converted or called for
redemption as set forth in and subject to the provisions of Sections 14.1 and
14.2 of the Indenture.
(b) All
references in Sections 14.3 to “the Company’s” shall be changed to references to
“Parent’s”; provided that the references to “the Company’s” shall not be changed
to references to “Parent’s” with respect to the right of a Holder, as a result
of the Merger, to require the Company to repurchase, at such Holder’s option,
all of such Holder’s Securities not theretofore converted or called for
redemption as set forth in and subject to the provisions of Sections 14.1 and
14.2 of the Indenture.
(c) Section
14.1 of the Indenture is hereby amended by deleting the following clause in the
first sentence thereof:
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“that
is 30 Business Days after the date of the Company Notice (as defined in
Section 14.2)”
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and
replacing it with the following:
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“chosen
by the Company in its sole discretion that falls within the time frame
required by Section 14.2(5) hereof
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(d) (i) Section
14.2(1) of the Indenture is hereby amended by revising the first sentence
thereof to read as follows:
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“Unless
the Company shall have theretofore called for redemption all of the
Outstanding Securities, at least 20 Business Days prior to the anticipated
date on which a Fundamental Change will become effective or, if the
Company does not have actual notice of a Fundamental Change on or before
the 20th Business Day prior to the effective date of the Fundamental
Change, as soon as the Company has actual notice of a Fundamental Change,
the Company or, at the request in a Company Order and expense of the
Company, the Trustee, shall give to all Holders of Securities, in the
manner provided in Section 1.6, notice (the “Fundamental Change Company
Notice”) of the occurrence of the Fundamental Change and of the repurchase
right set forth herein arising as a result
thereof.”
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(ii) Section 14.2(1) of the
Indenture is hereby amended by revising the third sentence thereof to read as
follows:
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“If
such notice is to be given by the Trustee, the Company shall deliver, on
or before the twenty-fifth Business Day (or such shorter period as is
acceptable to the Trustee) prior to the anticipated effective date of the
Fundamental Change, a Company Order requesting the Trustee to give such
notice and setting forth all the information to be included in such notice
including the information set forth
below.”
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(e) Section
14.2(3) of the Indenture is hereby amended by deleting the following
sentence:
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“Such
written notice shall be irrevocable, except that the right of the Holder
to convert the Securities with respect to which the repurchase right is
being exercised shall continue until the close of business on the Business
Day immediately preceding the Repurchase
Date.”
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(f) Section
14.2(5) of the Indenture is hereby amended to replace all references to
“Fundamental Change Company Notice” appearing therein with “Company
Notice.”
ARTICLE
THREE
MISCELLANEOUS
Section
3.1 Separability
Clause.
In case
any provision in this First Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
3.2 Modification, Amendment and
Waiver.
The
provisions of this First Supplemental Indenture may not be amended,
supplemented, modified or waived, unless otherwise provided in the Indenture,
except by the execution of a supplemental indenture in compliance with Article
VIII of the Indenture.
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Section
3.3
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Ratification of
Indenture; First Supplemental Indenture Part of the
Indenture.
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Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. In the event of a conflict between the terms
and conditions of the Indenture and the terms and conditions of this First
Supplemental Indenture, then the terms and conditions of this First Supplemental
Indenture shall prevail. This First Supplemental Indenture shall form
a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound
hereby.
Section
3.4 Trust Indenture Act
Controls.
If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be part of and govern any provision of this First Supplemental
Indenture, the provision of the Trust Indenture Act shall control. If
any provision of this First Supplemental Indenture modifies or excludes any
provisions of the Trust Indenture Act that may be so modified or excluded, the
provisions of the Trust Indenture Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this First Supplemental Indenture, as the
case may be.
Section
3.5 Governing
Law.
THIS
FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES
OF CONFLICTS OF LAW.
Section
3.6 Trustee Makes No
Representation.
The
Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture. The recitals and statements contained in this
First Supplemental Indenture are deemed to be those of the Company and
Viasystems and not of the Trustee.
Section
3.7 Counterparts.
The
parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section
3.8 Effect of
Headings.
The
Section headings herein are for convenience only and shall not effect the
construction thereof.
Section
3.9 Successors.
All
agreements of the parties hereto in respect of this First Supplemental Indenture
shall bind their respective successors.
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[THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first written
above.
MERIX
CORPORATION
By: /s/ Xxxxxx X.
Xxx
Name:
Xxxxxx X. Xxx
Title: Treasurer
and Chief Financial Officer
VIASYSTEMS
GROUP, INC.
By: /s/ Xxxxxx X.
Xxx
Name: Xxxxxx
X. Xxx
Title: Senior
Vice President and
Chief Financial Officer
Signature
Page to First Supplemental Indenture
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U.S.
BANK NATIONAL ASSOCIATION
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By: /s/ Xxxxx X.
XxXxxxxx
Name: Xxxxx
X. XxXxxxxx
Title: Vice
President
Signature
Page to First Supplemental Indenture
