1
EXHIBIT 4.9
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
THE ESTABLISHMENT, TO THE REASONABLE SATISFACTION OF THE ISSUER, OF AN EXEMPTION
FROM SUCH REGISTRATION.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A SUBSCRIPTION AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE
TRANSFERABILITY OF THE SECURITIES REPRESENTED HEREBY. A COPY OF SUCH
SUBSCRIPTION AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS INSTRUMENT
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE ISSUER AT ITS PRINCIPAL PLACE OF
BUSINESS.
VIASYSTEMS, INC.
14% Senior Note due 2007
No. Initial Accreted Value
---- $
-----------
VIASYSTEMS, INC., a Delaware corporation (the "Company"), which term
includes any successor Persons under the Indenture (hereinafter referred to),
for value received, promises to pay to __________, or its registered assigns,
the Accreted Value (as defined below) of this Note, on May 1, 2007.
"ACCRETED VALUE" means with respect to this Note, as of any date of
determination, the sum of: (a) the Accreted Value of such Note on the
immediately preceding Interest Accrual Date (in the event such date of
determination falls before the first Interest Accrual Date, the "Initial
Accreted Value" specified on the face hereof) plus (b) in the case of any
determination date other than an Interest Accrual Date, an amount determined by
multiplying (i) the amount referred to in clause (a) by (ii) 14% by (iii) the
number of days in the period from and including the preceding Interest Payment
Date to such date of determination divided by 360.
Interest will accrue, in the case of the first Interest Accrual Date,
on the Initial Accreted Value specified on the face hereof, and on each
subsequent Interest Accrual Date, on the Accreted Value of this Note as of the
immediately preceding Interest Accrual Date, at a rate of 14% per annum. On each
Interest Accrual Date, such accrued interest shall accrete and be added to the
then Accreted Value of the Notes and shall thereafter bear interest in
accordance with the terms hereof. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The "INTEREST ACCRUAL DATES" shall be May 1 and November 1 of each
year, commencing November 1, 2001.
2
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
2
3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: July 19, 2001
VIASYSTEMS, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
3
4
VIASYSTEMS, INC.
14% Senior Note due 2007
This Note is one of a duly authorized issue of Notes of the Company
consisting of other 14% Senior Notes due 2007 of the Company issued on July 19,
2001 and any replacement Notes issued in exchange for, or in lieu of, the
foregoing in accordance with the Indenture. The Notes are limited in aggregate
amount to an Initial Accreted Value of $100,000,000. All of such Notes shall be
treated as a single issue and vote together as one class for all purposes of
this Note and the Indenture.
1. Incorporation by Reference of Provisions of the Indenture.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Indenture (as amended in accordance herewith, the "Indenture")
attached hereto as Exhibit A. At all times during which an indenture is not
required to be qualified under the TIA with respect to the Notes or the
Indenture has not otherwise been executed and delivered, to the extent not
inconsistent with any other terms of the Notes set forth herein, all of the
terms and conditions of the Indenture shall be and are hereby incorporated by
this reference in the Notes as if fully set forth herein, and shall be binding
upon the Company and, by accepting a Note, each Holder agrees to be bound by the
terms of the Indenture, and the Indenture shall inure to the benefit of the
Holders of the Notes, except that, to the extent that the Indenture requires (i)
any notices, certificates or other items to be delivered by the Company to the
Trustee or any Paying Agent, such notices, certificates or other items shall be
delivered instead to each Holder, (ii) any notices, certificates or other items
to be delivered to the Trustee, such notices, certificates or other items shall
be delivered instead to the Company (and shall be delivered by the Company to
each Holder), (iii) any notices, certificates or other items to be delivered by
the Trustee to the Holders, such notices, certificates or other items shall be
delivered instead by the Company to the Holders, (iv) any payments to be made by
the Company to the Trustee or Paying Agent for payment to Holders, such payments
shall instead be paid directly by the Company to the applicable Holder in the
same manner as set forth in Section 3 below, (v) approval of the form of Notes
or notations, legends or endorsements thereon by the Trustee, the Holders of a
majority in outstanding principal amount of the Notes shall instead approve such
form and notations, legends or endorsements (the form of Notes delivered to the
initial Holders on the date of original issuance of the Notes and notations,
legends and endorsements thereon being deemed to have been so approved), (vi)
any Note to be authenticated by the Trustee or an Authenticating Agent, the
Notes shall instead be authenticated by the Company (the execution and delivery
of any Note by manual signature of the Company to be deemed to constitute such
authentication for all purposes), (vii) that a Person other than the Company and
any Affiliate thereof act as Paying Agent for presentation or surrender of Notes
for payment, the Company or any Affiliate thereof may nonetheless so act, (viii)
the Company to initially appoint the Trustee as Registrar or Paying Agent (to
the extent of acting as agent for receiving surrender or presentations of, but
not deposits of payments on, Notes) and agents for service of demands and
notices in connection with the Notes, the Company instead hereby appoints its
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for such purpose
(with Section 4.02 of the Indenture not to apply thereto), (ix) Notes to be
canceled by the Trustee, such Notes shall instead be canceled by the Company,
(x) Opinions of Counsel to be delivered to the Trustee pursuant to the
Indenture, such opinions shall instead be delivered to the Holders, (xi) any
Notes to be surrendered or
4
5
forwarded to the Trustee or any Paying Agent or Registrar, such Notes shall be
surrendered or forwarded instead to the Company, (xii) any notices, certificates
or other items to be delivered by the Holders to the Registrar or Paying Agent,
such notices, certificates or other items shall be delivered instead to the
Company and (xiii) Notes to be redeemed upon a partial redemption to be selected
by the Trustee, such Notes shall be selected instead by the Company.
2. Accreted Value and Interest. The Company agrees to pay the Accreted
Value of this Note on May 1, 2007.
The Company agrees interest will accrue and be payable on this Note at
the rate and in the manner specified on the face of this Note.
3. Method of Payment. With respect to the payment of Accreted Value at
maturity, the Company will make payment to the Holder that surrenders this Note
to any Paying Agent (which is initially the Company) on or after the applicable
maturity date.
The Company will make all payments hereunder in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company will make all payments hereunder by wire transfer of
immediately available funds to the accounts specified by the Holder hereof or,
if no such account is specified, by mailing a check to the Holder's registered
address. If a payment date is a date other than a Business Day, payment may be
made at that place on the next succeeding day that is a Business Day and no
interest shall accrue for the intervening period.
4. Paying Agent and Registrar. Initially, the Company will act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
upon written notice to the Holders. The Company, any Subsidiary or any Affiliate
of any of them may act as Paying Agent, Registrar or co-registrar.
5. Indenture; Limitations. In the event an indenture is required to be
qualified under the Trust Indenture Act of 1939 (U.S. Code Section
77aaa-77bbbb), as amended from time to time (the "TIA"), with respect to the
Notes, or at any time upon the request of Holders of in excess of 30% in
aggregate principal amount of the outstanding Notes, the Company shall, and at
any other time the Company, in its sole discretion, may, appoint a trustee (the
"Trustee") who satisfies the eligibility requirements set forth in Section 7.09
of the Indenture and, in any such event, the Company shall take whatever actions
are necessary to cause an Indenture substantially in the form of Exhibit A
attached hereto to be executed and delivered by the Company and the Trustee and
to be qualified under the TIA. In such event, (i) this Note shall be deemed to
be one of an issue of Notes of the Company issued under the Indenture; (ii) the
terms of the Notes shall be deemed to include those stated in the Indenture and
those made part of the Indenture by reference to the TIA, as amended from time
to time; and (iii) the Notes shall be subject to all such terms. Holders of
Notes are referred to the Indenture and the TIA for a statement of all such
terms. In such event, the Company may require holders of the Notes, and each
Holder by his or her acceptance hereof agrees upon the Company's request, to
surrender to the Trustee all Notes in the form hereof in exchange for
replacement Notes substantially in the form of Exhibit A to the Indenture.
5
6
The Notes are unsecured senior obligations of the Company.
6. Optional Redemption. The Notes may be redeemed at the option of the
Company, in whole, at any time and from time to time, on and prior to maturity
at the following Redemption Prices:
(a) if redeemed prior to April 30, 2004 at a redemption
price equal to the sum of the present value of the
Accreted Value at stated maturity discounted to the
redemption date, on a semi-annual basis, at the
Treasury Yield plus 150 basis points; and
(b) if redeemed during the 12-month period commencing May
1 of each of the years set forth below, (expressed in
percentages of the Accreted Value thereof as of May 1
of the applicable year):
YEAR REDEMPTION PRICE
---- ----------------
2004 107.0000%
2005 104.6667%
2006 102.3333%
plus, accrued but unpaid interest thereon to the date
of redemption.
Notice of a redemption will be mailed, first-class postage prepaid, at
least 30 days but not more than 60 days before the Redemption Date to each
Holder's registered address. On and after the Redemption Date, interest ceases
to accrue on, and the Accreted Value shall cease to increase with respect to,
Notes or portions of Notes called for redemption, unless the Company defaults in
the payment of the Redemption Price.
7. Repurchase upon a Change in Control. Upon the occurrence of a Change
in Control, each Holder shall have the right to require that the Company
repurchase such Holder's Notes at a purchase price in cash equal to 101% of the
Accreted Value thereof on the date of purchase.
8. Denominations; Transfer; Exchange. The Notes are in fully registered
form without coupons, in denominations of $1,000 and any integral multiples of
$1,000. A Holder may register the transfer or exchange of Notes in accordance
with the Indenture. The Company may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
9. Persons Deemed Owners. A Holder may be treated as the owner of a
Note for all purposes.
10. Discharge Prior to Redemption or Maturity. If the Company
irrevocably deposits, or causes to be deposited, with a trustee who could
qualify to serve as Trustee under the Indenture money or U.S. Government
Obligations sufficient to pay the then outstanding Accreted Value of and accrued
but unpaid interest, if any, on the Notes to redemption or maturity, the
Company, as applicable, (a) will be discharged from the Indenture and the Notes,
6
7
except in certain circumstances for certain sections thereof, or (b) will be
discharged from certain covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate Accreted Value of the Notes then
Outstanding. Without notice to or the consent of any Holder, the Company may
amend the Indenture or the extent set forth in the Indenture.
12. Successor Persons. When a successor person or other entity (other
than a Subsidiary of the Company) assumes all the obligations of its predecessor
under the Notes and the Indenture, the predecessor person will be released from
those obligations.
13. Provisions of Indenture. Each Holder, by accepting a Note, agrees,
subject to Section 1 above, to be bound by all of the terms and provisions of
the Indenture, as the same may be amended from time to time.
14. Notices. Any notices or other communications to the Company
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by commercial courier service, by telex, by
telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
Viasystems, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Any notice required to be given to a Holder shall be deemed to have
been given upon the mailing by first class mail, postage prepaid, of such
notices to Holders at their registered address as recorded in the Register and
shall be sufficiently given to a Holder if so mailed within the time prescribed.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
7
8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Taxpayer Identification No.:
----------------------------------
---------------------------------------------------------------------
(Please print or typewrite name and address including zip code of
assignee)
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing _________________________________________
attorney to transfer such Note on the books of the Company with full
power of substitution in the premises.
9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.14 of the Indenture, check the box: [ ]
If you wish to have a portion of this Note purchased by the Company
pursuant to 4.14 of the Indenture, state the amount (in Accreted Value) below:
$
--------------
Date:
----------------------
Your Signature:
---------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
----------------------------------------------
Signatures must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "SIGNATURE GUARANTEE PROGRAM" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
10
Annex A
to
Form of Note
INVESTOR NOTES
----------------------------------------------- -----------------------------------
▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, L.P. $ 82,044,517 Initial Accreted Value
HM3 Coinvestors, L.P. $ 2,225,217 Initial Accreted Value
HMTF Equity Fund IV (1999), L.P. $ 14,283,914 Initial Accreted Value
HMTF Private Equity Fund IV (1999), L.P. $ 101,194 Initial Accreted Value
▇▇▇▇▇, Muse PG-IV (1999), C.V. $ 760,454 Initial Accreted Value
HM 4-SBS (1999) Coinvestors, L.P. $ 351,232 Initial Accreted Value
HM 4-EQ (1999) Coinvestors, L.P. $ 233,472 Initial Accreted Value
TOTAL $100,000,000 Initial Accreted Value