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EXHIBIT 10.14
THIRD AMENDED AND RESTATED MONITORING
AND OVERSIGHT AGREEMENT
THIS THIRD AMENDED AND RESTATED MONITORING AND OVERSIGHT
AGREEMENT (this "Agreement") is made and entered into effective as of June 6,
1997, among Viasystems Group, Inc., a Delaware corporation ("Holdings"),
Viasystems, Inc., a Delaware corporation ("VI"), Viasystems Technologies Corp.,
a Delaware corporation ("VTC"), Circo Craft Co. Inc., a Quebec corporation
("CCI"), PCB Investments plc, a United Kingdom public limited company ("PCB"),
Viasystems International, Inc., a Delaware corporation ("VI International"),
PCB Acquisition Limited, a United Kingdom limited company ("PCB Acquisition"),
Chips Acquisition Limited, a United Kingdom limited company ("Chips" and,
together with Holdings, VI, VTC, CCI, PCB, VI International and PCB
Acquisition, the "Clients") and Xxxxx, Muse & Co. Partners, L.P., a Texas
limited partnership (together with its successors "HMCo").
WHEREAS, Holdings, CCI, VTC, CCI, PCB, VI International, PCB
Acquisition and HMCo are parties to a Second Amended and Restated Monitoring and
Oversight Agreement dated as of April 11, 1997 (the "April 1997 Oversight
Agreement") pursuant to which HMCo renders certain financial oversight and
monitoring services to Holdings, CCI, VTC, CCI, PCB, VI International and PCB
Acquisition; and
WHEREAS, Holdings, CCI, VTC, CCI, PCB, VI International, PCB
Acquisition and HMCo desire to further amend and restate the terms of the April
1997 Oversight Agreement and to add Chips as a party to this Agreement; and
WHEREAS, Chips desires to become a party to this Agreement.
NOW, THEREFORE, in consideration of the services to be
rendered by HMCo to the Clients, and to evidence the obligations of the Clients
to HMCo and the mutual covenants herein contained, the Clients hereby jointly
and severally agree as follows:
1. Retention. The Clients hereby acknowledge that they
have retained HMCo, and HMCo acknowledges that, subject to reasonable advance
notice in order to accommodate scheduling, HMCo will provide financial
oversight and monitoring services to
NOTICE IS HEREBY GIVEN THAT THIS AGREEMENT CONTAINS INDEMNIFICATION PROVISIONS
IN PARAGRAPH 5 THAT APPLY TO CLAIMS, LIABILITIES, LOSSES, DAMAGES OR EXPENSES
THAT HAVE RESULTED FROM OR ARE ALLEGED TO HAVE RESULTED FROM THE ACTIVE OR
PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF HMCO OR ANY
OTHER INDEMNIFIED PERSON IDENTIFIED THEREIN.
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the Clients as requested by the board of directors of each of the Clients
during the term of this Agreement.
2. Term. The term of this Agreement shall continue
until the earlier to occur of (i) the tenth anniversary of the date hereof, or
(ii) the date on which Hicks, Muse, Xxxx & Xxxxx Equity Fund III, L.P. and its
affiliates cease to own beneficially, directly or indirectly, any securities of
any of the Clients or their successors.
3. Compensation.
(a) As compensation for HMCo's services under this
Agreement, the Clients shall be jointly and severally obligated to pay to HMCo
an annual fee (the "Monitoring Fee") of $1,750,000 (the "Base Fee"), subject to
adjustment pursuant to paragraphs (b) and (c) below and prorated on a daily
basis for any partial calendar year during the term of this Agreement. The
Monitoring Fee shall be payable in equal quarterly installments on each January
1, April 1, July 1, and October 1 during the term of this Agreement (each a
"Payment Date"), beginning with the first Payment Date following the date
hereof. All payments shall be made by wire transfer of immediately available
funds to the account described on Exhibit A hereto (or such other account as
HMCo may hereafter designate in writing).
(b) On January 1 of each calendar year during the term of
this Agreement, the Monitoring Fee shall be adjusted to an annual amount equal
to (i) the budgeted consolidated annual net sales of Holdings and its
subsidiaries for the then-current fiscal year, multiplied by (ii) .2% (the
"Percentage"); provided, however, that in no event shall the annual Monitoring
Fee be less than the Base Fee.
(c) On each occasion that Holdings or any of its
subsidiaries shall acquire another entity or business during the term of this
Agreement, the annual Monitoring Fee for the calendar year in which such
acquisition occurs shall be adjusted prospectively (i.e., for periods
subsequent to such acquisition until the next adjustment pursuant to clause (b)
above), as of the closing of such acquisition, to an annual amount equal to (i)
the pro forma combined budgeted consolidated annual net sales of Holdings and
its subsidiaries for the entire then-current fiscal year of Holdings (including
the sales of the acquired entity or business for such entire fiscal year, on a
pro forma basis), multiplied by (ii) the Percentage; provided, however, that in
no event shall the annual Monitoring Fee be less than the Base Fee.
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(d) All past due payments in respect of the Monitoring
Fee shall bear interest at the lesser of the highest rate of interest which may
be charged under applicable law or the prime commercial lending rate per annum
of The Chase Manhattan Bank or its successors (which rate is a reference rate
and is not necessarily its lowest or best rate of interest actually charged to
any customer) (the "Prime Rate") as in effect from time to time, plus five
percent (5%), from the due date of such payment to and including the date on
which payment is made to HMCo in full, including such interest accrued thereon.
4. Reimbursement of Expenses. In addition to the
compensation to be paid pursuant to Section 3 hereof, the Clients jointly and
severally agree to pay or reimburse HMCo for all "Reimbursable Expenses," which
shall consist of (i) all reasonable disbursements and out-of-pocket expenses
(including without limitation costs of travel, postage, deliveries,
communications, etc.) incurred by HMCo or its affiliates for the account of any
of the Clients, or in connection with the performance by HMCo of the services
contemplated by Section 1 hereof and (ii) the applicable Client's or Clients'
Pro Rata Share of Allocable Expenditures as defined in Exhibit B hereto.
Promptly (but not more than 10 days) after request by or notice from HMCo, the
applicable Client shall pay HMCo, by wire transfer of immediately available
funds to the account described on Exhibit A hereto (or such other account as
HMCo may hereafter designate in writing), the Reimbursable Expenses for which
HMCo has provided such Client invoices or reasonably detailed descriptions.
All past due payments in respect of the Reimbursable Expenses shall bear
interest at the lesser of the highest rate of interest which may be charged
under applicable law or the Prime Rate plus 5% from the Payment Date to and
including the date on which such Reimbursable Expenses plus accrued interest
thereon are fully paid to HMCo.
5. Indemnification. The Clients jointly and severally
shall indemnify and hold harmless each of HMCo, its affiliates, and the
respective directors, officers, controlling persons (within the meaning of
Section 15 of the Securities Act of 1933, as amended, or Section 20(a) of the
Securities Exchange Act of 1934, as amended), if any, agents and employees of
HMCo and/or any of its affiliates (HMCo, its affiliates, and such other
specified persons being collectively referred to as "Indemnified Persons" and
individually as an "Indemnified Person") from and against any and all claims,
liabilities, losses, damages and expenses incurred by any Indemnified Person
(including those arising out of an Indemnified Person's negligence and fees and
disbursements of the respective Indemnified Person's counsel) which (A) are
related to or arise out of (i) actions taken or omitted to be taken (including
any untrue statements made or any statements omitted to be made) by any of the
Clients or (ii) actions taken or omitted to be taken by an Indemnified Person
with any Client's consent or in conformity with any Client's instructions or
any Client's actions or omissions or (B) are otherwise related to or arise out
of HMCo's engagement, and will
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reimburse each Indemnified Person for all costs and expenses, including fees
and disbursements of any Indemnified Person's counsel, as they are incurred, in
connection with investigating, preparing for, defending, or appealing any
action, formal or informal claim, investigation, inquiry or other proceeding,
whether or not in connection with pending or threatened litigation, caused by
or arising out of or in connection with HMCo's acting pursuant to the
engagement, whether or not any Indemnified Person is named as a party thereto
and whether or not any liability results therefrom. None of the Clients will,
however, be responsible for any claims, liabilities, losses, damages or
expenses pursuant to clause (B) of the preceding sentence that have resulted
primarily from HMCo's bad faith, gross negligence or willful misconduct. Each
of the Clients also agrees that neither HMCo nor any other Indemnified Person
shall have any liability to any Client for or in connection with such
engagement except for any such liability for claims, liabilities, losses,
damages or expenses incurred by any Client that have resulted primarily from
HMCo's bad faith, gross negligence or willful misconduct. The Clients further
agree that none of them will, without the prior written consent of HMCo, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnifications may be sought hereunder (whether or not any Indemnified Person
is an actual or potential party to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of HMCo and each other Indemnified Person hereunder from all liability arising
out of such claim, action, suit or proceeding. EACH CLIENT HEREBY ACKNOWLEDGES
THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO ALL CLAIMS, LIABILITIES,
LOSSES, DAMAGES OR EXPENSES THAT HAVE RESULTED FROM OR ARE ALLEGED TO HAVE
RESULTED FROM THE ACTIVE OR PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY
NEGLIGENCE OF HMCO OR ANY OTHER INDEMNIFIED PERSON.
The foregoing right to indemnity shall be in addition to any
rights that HMCo and/or any other Indemnified Person may have at common law or
otherwise and shall remain in full force and effect following the completion or
any termination of the engagement. Each of the Clients hereby consents to
personal jurisdiction and to service and venue in any court in which any claim
which is subject to this Agreement is brought against HMCo or any other
Indemnified Person.
It is understood that, in connection with HMCo's engagement,
HMCo may also be engaged to act for any Client in one or more additional
capacities, and that the terms of this engagement or any such additional
engagement may be embodied in one or more separate written agreements. This
indemnification shall apply to the engagement specified in the first paragraph
hereof as well as to any such additional engagement(s) (whether written or
oral) and any modification of said engagement or such additional engagement(s)
and shall
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remain in full force and effect following the completion or termination of said
engagement or such additional engagement(s).
Each of the Clients further understands that if HMCo is asked
to furnish any Client a financial opinion letter or act for any Client in any
other formal capacity, such further action may be subject to a separate
agreement containing provisions and terms to be mutually agreed upon.
6. Confidential Information. In connection with the
performance of the services hereunder, HMCo agrees not to divulge any
confidential information, secret processes or trade secrets disclosed by any
Client to it solely in its capacity as a financial advisor, unless such Client
consents to the divulging thereof or such information, secret processes, or
trade secrets are publicly available or otherwise available to HMCo without
restriction or breach of any confidentiality agreement or unless required by
any governmental authority or in response to any valid legal process.
7. Governing Law. This Agreement shall be construed,
interpreted, and enforced in accordance with the laws of the State of Texas,
excluding any choice-of-law provisions thereof.
8. Assignment. This Agreement and all provisions
contained herein shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, neither
this Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned (other than with respect to the rights and obligations of HMCo,
which may be assigned to any one or more of its principals or affiliates) by
any of the parties without the prior written consent of the other parties.
9. 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 instrument, and the signature
of any party to any counterpart shall be deemed a signature to, and may be
appended to, any other counterpart.
10. Other Understandings. All discussions,
understandings, and agreements theretofore made between any of the parties
hereto with respect to the subject matter hereof are merged in this Agreement,
which alone fully and completely expresses the agreement of the parties hereto.
All calculations of the Monitoring Fee and Reimbursable Expenses shall be made
by HMCo and, in the absence of mathematical error, shall be final and
conclusive.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXX, MUSE & CO. PARTNERS, L.P.
By: HM PARTNERS INC., its General
Partner
By: /s/
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Xxxx X. Xxxxx
Executive Vice President
VIASYSTEMS GROUP, INC.
By:
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Name:
---------------------------------
Title:
--------------------------------
VIASYSTEMS, INC.
By:
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Name:
---------------------------------
Title:
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VIASYSTEMS TECHNOLOGIES CORP.
By:
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Name:
---------------------------------
Title:
--------------------------------
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CIRCO CRAFT CO. INC.
By:
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Name:
---------------------------------
Title:
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VIASYSTEMS INTERNATIONAL, INC.
By:
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Name:
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Title:
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PCB ACQUISITION LIMITED
By:
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Name:
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Title:
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PCB INVESTMENTS PLC
By:
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Name:
---------------------------------
Title:
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CHIPS ACQUISITION LIMITED
By:
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Name:
---------------------------------
Title:
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EXHIBIT A
Wire Transfer Instructions
Texas Commerce Bank
ABA #: 000000000
Account #: 08805113824
Credit: Xxxxx, Muse & Co. Partners
Reference: Payment of Monitoring Fees or Expenses
by Viasystems Group, Inc., Viasystems, Inc.,
Viasystems Technologies Corp.,Circo Craft Co.
Inc., Viasystems International, Inc., PCB
Acquisition Limited PCB Investments plc, or
Chips Acquisition Limited
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EXHIBIT B
PRO RATA SHARE OF ALLOCABLE EXPENDITURES AND RELATED DEFINITIONS
Pro Rata Share of Allocable Expenditures shall equal the
product obtained by multiplying (i) the sum of all Allocable Expenditures that
have not previously been paid or reimbursed to HMCo by the Clients and other
Participating Acquired Companies, by (ii) a fraction, the numerator of which
shall equal the total amount of Invested Capital (as from time to time
outstanding) that any Fund has invested in the Clients' securities or
instruments, as applicable, and the denominator of which shall equal the total
amount of Invested Capital (as from time to time outstanding) that any Fund has
invested in the securities or instruments of any and all Participating Acquired
Companies.
The capitalized terms used in the foregoing definition have
the meanings set forth below:
Allocable Expenditures shall mean all variable, fixed, and
other costs, expenses, expenditures, charges, or obligations (including without
limitation letters of credit, deposits, etc.) that are related to assets
utilized, services provided, or programs administered by HMCo or its affiliates
in connection with the performance by HMCo of financial oversight and
monitoring services on behalf of any of the Clients and other Participating
Acquired Companies, including without limitation corporate airplanes,
charitable contributions, retainers for lobbyists and other professionals, and
premiums and finance charges for director and officer insurance maintained for
representatives of HMCo or its affiliates.
Fund shall mean any one or more of the equity funds now or
hereafter sponsored by Hicks, Muse, Xxxx & Xxxxx Incorporated or its
successors, including any LP Investment Entity (as defined in the limited
partnership agreement for any such equity fund) formed under or with respect to
any such equity fund.
Invested Capital shall mean the total amount of partner
capital that a Fund from time to time invests in the purchase of securities or
instruments of a Participating Acquired Company, less the total cash
distributions that constitute a return of such partner capital with proceeds
from the disposition of all or any part of such securities or instruments. For
each period for which the Pro Rata Share of Allocable Expenditures is being
made, the applicable Invested Capital shall equal the amount outstanding as of
the end of the respective period.
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Participating Acquired Company shall mean any partnership,
corporation, trust, limited liability company, or other entity that is, for the
period for which the Pro Rata Share of Allocable Expenditures is being
determined, a party to a monitoring agreement or similar contract with HMCo or
its affiliates and is, as of the end of such period, designated by HMCo to bear
a portion of such allocable expenditures. HMCo may, in its sole and absolute
discretion, determine not to designate an entity as a Participating Acquired
Company with respect to such period. HMCo may make such determination of
non-designation for no reason or for any reason, including without limitation
the respective entity's bankruptcy or other temporary or permanent inability to
pay fees or expenses to HMCo or its affiliates.
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