EXHIBIT 10.11(a)
FIRST AMENDMENT AND CONSENT
FIRST AMENDMENT AND CONSENT, dated as of October ____, 2003 (the
"Amendment"), with respect to the Stockholders Agreement, dated as of January
31, 2003 (the "Stockholders Agreement"), among VIASYSTEMS GROUP, INC., and other
persons from time to time parties thereto (the "Stockholders").
WITNESSETH:
WHEREAS, the parties hereto have agreed to (i) amend certain terms of
the Stockholders Agreement and (ii) consent to the increase in the number of
directors on the Board from nine to ten, all upon the terms and conditions set
forth below;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Stockholders Agreement
and used herein shall have the meanings given to them in the Stockholders
Agreement. Unless otherwise indicated, all Section and subsection references are
to the Stockholders Agreement.
SECTION 2. Amendment. Subsections 4.1.1, 4.1.2, 4.1.3 and 4.1.5 are
hereby amended and restated as follows:
4.1.1 Board Representation. Subject to the provisions of
Section 4.1.6 below, the Board shall consist of individuals who may be
designated for election from time to time in the following manner:
(a) the Chief Executive Officer of the Company shall
be designated for election by the Board or any nominating committee
thereof;
(b) five individuals shall be designated for election
by Xxxxx Muse;
(c) three individuals shall be designated for
election by NHM Subordinated Noteholders who receive shares of Common
Stock or 9% Preference Shares under the Plan; and
(d) any additional individuals jointly designated in
writing for election by Xxxxx Muse and by NHM Subordinated Noteholders
who receive shares of Common Stock or 9% Preference Shares under the
plan.
Members of the Board designated by Xxxxx Muse pursuant to this
Section 4.1.1 or elected to fill a vacancy by members designated by
Xxxxx Muse as provided in Section 4.1.5 hereof shall be referred to as
the "HM Designees." Members of the Board designated by NHM Subordinated
Noteholders pursuant to this Section 4.1.1 or elected to fill a vacancy
by members designated by NHM Subordinated Noteholders as provided in
Section 4.1.5 hereof shall be referred to
as "SN Designees." The SN Designees together with the HM Designees and
the designee designated pursuant to clause (a) of this Section 4.l.1
herein shall be referred to as the "Agreed Designees." Members of the
Board designated jointly by Xxxxx Muse and by the NHM Subordinated
Noteholders pursuant to this Section 4.1.1 or elected to fill a vacancy
by the Agreed Designees as provided in Section 4.1.5 hereof shall be
referred to as "Joint Designees". Subject to Section 4.1.6 hereof, the
Company and the Board shall take such actions as necessary to cause
Agreed Designees and/or Joint Designees to be nominated and submitted
to the stockholders for election to the Board as provided in Sections
4.1.2 and 4.1.3 hereof, and each Holder agrees to vote all shares of
Common Stock and all 9% Preference Shares over which such Holder has
voting power or control and which are entitled to vote on any matter
presented to stockholders pursuant to this Article 4 (or to execute
written consents with respect to such shares) in accordance with and to
give effect to the provisions of this Article 4.
4.1.2 Initial Board Designees. Simultaneously with the
execution and delivery of this Agreement, the Company and the Board
shall take such actions as necessary to cause the Board to consist of
nine members in accordance with Section 4.1.1 hereof. Thereafter, the
Company and the Board shall take such actions as necessary to cause the
Board to consist of the number of Members designated in accordance with
Section 4.1.1 hereof.
4.1.3 Annual Meeting.
(a) At each annual meeting of the Company's
stockholders or any special meeting in lieu thereof at which the term
of any Agreed Designee is to expire or prior to which there shall be
less than the maximum number of Agreed Designees serving on the Board,
the Board, Xxxxx Muse and/or the NHM Subordinated Noteholders, as
applicable, shall be entitled to designate for nomination as a director
the number of individuals as necessary so that, if such designees are
elected to the Board at such annual meeting or any special meeting in
lieu thereof, the maximum number of Agreed Designees, designated in
accordance with Section 4.1.1 hereof, shall be serving on the Board. At
each meeting of the Company's stockholders or any special meeting in
lieu thereof at which the term of any Joint Designee is to expire,
Xxxxx Muse and the NHM Subordinated Noteholder shall be entitled but
not required to jointly designate for nomination one or more Joint
Designees, designated in accordance with Section 4.1.1 hereof. The
Company agrees to cause each Agreed Designee and/or Joint Designee so
designated pursuant to Section 4.1.1 hereof to be submitted for
election to the Board at each annual meeting of the Company's
stockholders or any special meeting in lieu thereof. To the extent the
Company's proxy statement for any annual meeting of stockholders, or
any special meeting in lieu thereof, includes a recommendation
regarding the election of any other nominees to the Board, the Company
agrees to include a recommendation of its Board that the stockholders
also vote in favor of each Agreed Designee and/or Joint Designee
standing for election at such meeting. The Company shall take all
actions
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necessary to ensure that the Certificate of Incorporation of the
Company as in effect immediately following the date hereof does not, at
any time thereafter, conflict in any respect with the provisions of
this Section 4.1.
(b) If, at any time Xxxxx Muse and/or the NHM
Subordinated Noteholders, as applicable, fail to advise (on or before
the later of (i) 60 days prior to the next annual meeting or (ii) 10
Business Days after HMTF and the NHM Subordinated Noteholders'
representative receive notice of the date of such annual meeting as
provided in the last sentence of this Section 4.1.3(b)) the Board in
writing of its intention to designate the number of directors which
Xxxxx Muse and/or the NHM Subordinated Noteholders, as applicable, is
then entitled to designate for nomination at the next annual meeting of
the Company's stockholders or special meeting in lieu thereof (other
than any such meeting that occurs within 60 days after the resignation
of a director designated by Xxxxx Muse and/or the NHM Subordinated
Noteholders, as applicable, in which case such writing shall be
delivered within a reasonable amount of time prior to the mailing of
proxy materials for such meeting), then the rights granted under this
Section 4.1 with respect to the designation of Agreed Designees and/or
Joint Designees shall be applicable for such meeting only with respect
to the number of nominees as indicated in such writing, if any, that
Xxxxx Muse and/or the NHM Subordinated Noteholders, as applicable,
intend to designate, but shall continue to be fully effective with
respect to subsequent meetings and interim vacancies. At each annual
meeting or special meeting in lieu thereof for which Xxxxx Muse and/or
the NHM Subordinated Noteholders, as applicable, fail to advise the
Board of their intention to nominate the maximum number of directors
which it is entitled to nominate for such meeting, the nominees for
election to the Board, other than those nominated by Xxxxx Muse and/or
the NHM Subordinated Noteholders, as applicable, and other than those
that could be nominated as Joint Designees, shall be determined by the
Board and the Company. The Company shall deliver to HMTF and to GSC
Partners, as the representative of the NHM Subordinated Noteholders for
purposes of this Section 4.1.3 (which representative may be changed by
written notice to the Company by NHM Subordinated Noteholders
constituting a Majority Interest), written notice of any annual or
special meeting of the stockholders of the Company at which Board
members are to be elected promptly after the date for any such meeting
has been set by the Board, which notice shall request designations for
Board nominees for purposes of Section 4.1.
4.1.5 Vacancies.
(a) If, prior to his or her election to the Board
pursuant to Section 4.1.1 hereof, any Agreed Designee shall be unable
or unwilling to serve as a director of the Company, then the Board,
Xxxxx Muse and/or the NHM Subordinated Noteholders, as applicable,
shall be entitled to nominate a replacement who shall then be an Agreed
Designee for purposes of this Article 4. If, following an election or
appointment to the Board pursuant to Section 4.1.1
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hereof, any HM Designee or SN Designee shall resign or be removed or be
unable to serve for any reason prior to the expiration of his or her
term as a director of the Company, then Xxxxx Muse and/or the NHM
Subordinated Noteholders, as applicable, shall, within 30 days of such
event, notify the Board in writing of a replacement Agreed Designee,
and the Company and the Board shall take such action as necessary to
cause such replacement Agreed Designee to be appointed to the Board and
each applicable committee thereof to fill the unexpired term of the
Agreed Designee who such new Agreed Designee is replacing.
(b) If, prior to or following an election or
appointment to the Board pursuant to Section 4.1.1 hereof, any
individual designated by the Board or any nominating committee thereof
pursuant to Section 4.1.1(a) hereof shall be unable or unwilling to
serve or shall resign or be removed or be unable to serve for any
reason prior to the expiration of his or her term as a director of the
Company, then such position shall be filled by any successor Chief
Executive Officer of the Company and, during any interim period prior
to such successor's election, such position shall remain vacant or be
filled on an interim basis, at the discretion of the Board.
(c) If, prior to or following an election or
appointment to the Board pursuant to Section 4.1.1 hereof, any Joint
Designee shall be unable or unwilling to serve or shall resign or be
removed or be unable to serve for any reason prior to the expiration of
his or her term as a director of the Company, or shall have his or her
term expire, then such position shall remain vacant until both Xxxxx
Muse and the NHM Subordinated Noteholders who receive shares of Common
Stock or 9% Preference Shares under the Plan notify the Board in
writing of a replacement or reappointment of such Joint Designee agreed
pursuant to 4.1.1(d), and the Company and the Board shall take such
action as necessary to cause such replacement Joint Designee to be
appointed to the Board and each applicable committee thereof to fill
the unexpired term of the Joint Designee who such new Joint Designee is
replacing.
SECTION 3. Xxxxx Muse Consent. Xxxxx Muse hereby consents to the
increase in the number of directors on the Board from nine to ten. Such
additional vacancy shall be filled by a Joint Designee. Xxxxx Muse hereby
consents to Xxxxxxxxxxx X. Xxxxxxx being the initial Joint Designee.
SECTION 4. NHM Subordinated Noteholders Consent. The NHM Subordinated
Noteholders who have signed below hereby consent to the increase in the number
of directors on the Board from nine to ten. Such additional vacancy shall be
filled by a Joint Designee. The NHM Subordinated Noteholders who have signed
below hereby consent to Xxxxxxxxxxx X. Xxxxxxx being the initial Joint Designee.
SECTION 5. Continuing Effect of Stockholder Agreement. Except as
expressly amended herein, the Stockholder Agreement shall continue to be, and
shall remain, in fill force and effect in accordance with its terms.
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SECTION 6. Governing Law; Counterparts. THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE. This
Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
VIASYSTEMS GROUP, INC.
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxx X. Xxxxxxxx
Chief Executive Officer
*HICKS, MUSE, XXXX & XXXXX EQUITY FUND III, L.P.
By: HM3/GP Partners, L.P.,
its general partner
By: Xxxxx, Muse GP Partners Ill, L.P.,
its general partner
By: Xxxxx, Muse Fund III Incorporated,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*HM3 COINVESTORS, L.P.
By: Xxxxx, Muse GP Partners Ill, L.P.,
its general partner
By: Xxxxx, Muse Fund III Incorporated,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*HMTF EQUITY FUND IV (1999), L.P.
By: HM4/GP (1999) Partners, LP.,
its general partner
By: Xxxxx, Muse GP (1999) Partners IV, L.P.,
its general partner
By: Xxxxx, Muse (1999) Partners IV, LLC,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*HMTF PRIVATE EQUITY FUND IV (1999), L.P.
By: HM4/GP (1999) Partners, LP.,
its general partner
By: Xxxxx, Muse GP (1999) Partners IV, L.P.,
its general partner
By: Xxxxx, Muse (1999) Partners IV, LLC,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*XXXXX, MUSE PG-IV (1999), C.V.
By: HM Equity Fund IV/GP Partners (1999), C.V.,
its general partner
By: HM GP Partners IV Cayman, L.P.,
its general partner
By: HM Fund IV Cayman, LLC,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*HM4-SBS (1999) COINVESTORS, L.P.
By: Xxxxx, Xxxx XX (1999) Partners IV, L.P.,
its general partner
By: Xxxxx, Muse (1999) Partners IV, LLC,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*HM4-EQ (1999) COINVESTORS, L.P.
By: Xxxxx, Xxxx XX (1999) Partners IV, L.P.,
its general partner
By: Xxxxx, Muse (1999) Fund IV, LLC,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*PEARL STREET, L.P.
By: Pearl Street Limited,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*PEARL STREET II, L.P.
By: Pearl Street II GP, LLC,
its general partner
By: Hicks, Muse, Xxxx & Xxxxx Equity Fund III, L.P.,
a member
By: HM3/GP Partners, L.P.,
its general partner
By: Xxxxx, Muse GP Partners III, L.P.,
its general partner
By: Xxxxx, Muse Fund III Incorporated,
its general partner
By: /s/ XXX XXXXXXXXXX
-----------------------------------------------
Xxx Xxxxxxxxxx
Principal
*Notice Address:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
*GSC PARTNERS CDO FUND, LIMITED
By: /s/ XXXXXX XXXXXXX
-----------------------------------------------
Xxxxxx Xxxxxxx
Managing Director
*GSC RECOVERY II, L.P.
By: GSC Recovery II GP, L.P.,
its general partner
By: GSC RII, LLC,
its general partner
By: GSCP (NJ) Holdings, L.P.,
its sole member
By: GSCP (NJ), Inc.,
its general partner
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
*GSC RECOVERY IIA, L.P. (SECOND CLOSE)
By: GSC Recovery IIA GP, L.P.,
its general partner
By: GSC RIIA, LLC,
its general partner
By: GSCP (NJ) Holdings, L.P.,
its sole member
By: GSCP (NJ), Inc.,
its general partner
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
*GSC PARTNERS CDO FUND II, LIMITED
By: /s/ XXXXXX XXXXXXX
-----------------------------------------------
Xxxxxx Xxxxxxx
Managing Director
*GSC RECOVERY IIA, L.P.
By: GSC Recovery IIA GP, L.P.,
its general partner
By: GSC RIIA, LLC,
its general partner
By: GSCP (NJ) Holdings, L.P.,
its sole member
By: GSCP (NJ). Inc.,
its general partner
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
Notice Address:
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx / Xxxxxx Xxxxxxxxxxxxx
Telecopy: (000) 000-0000
*POST TOTAL RETURN FUND, LP
By: MW Post Advisory Group, LLC,
as General Partner
By:
-----------------------------------------------
Xxxx Xxxxxxxxx
Managing Member
*THE OPPORTUNITY FUND, LLC
By: MW Post Advisory Group, LLC,
as Investment Manager
By:
-----------------------------------------------
Xxxx Xxxxxxxxx
Managing Member
*POST OPPORTUNITY FUND, LP
By: MW Post Advisory Group, LLC,
as General Partner
By:
-----------------------------------------------
Xxxx Xxxxxxxxx
Managing Member
*MW POST PORTFOLIO FUND, LP
By: MW Post Advisory Group, LLC,
as General Partner
By:
-----------------------------------------------
Xxxx Xxxxxxxxx
Managing Member
*STATE OF SOUTH DAKOTA RETIREMENT SYSTEM FUND
By: MW Post Advisory Group, LLC,
as Investment Manager
By:
-----------------------------------------------
Xxxx Xxxxxxxxx
Managing Member
*SPRUGOS INVESTMENTS IV, LLC
By: MW Post Advisory Group, LLC,
as Investment Manager
By:
-----------------------------------------------
Xxxx Xxxxxxxxx
Managing Member
*Notice Address
MW Post Advisory Group
00000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxx
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
