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EXHIBIT 10.15
THIRD AMENDED AND RESTATED FINANCIAL ADVISORY AGREEMENT
THIS THIRD AMENDED AND RESTATED FINANCIAL ADVISORY 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"),
Viasystems International, Inc., a Delaware corporation ("VI International"),
PCB Acquisition Limited, a United Kingdom limited company ("PCB Acquisition"),
PCB Investments plc, a United Kingdom public limited company ("PCB"), Chips
Acquisition Limited, a United Kingdom limited company ("Chips" and, together
with Holdings, VI, VTC, CCI, VI International, PCB Acquisition and PCB the
"Clients") and ▇▇▇▇▇, Muse & Co. Partners, L.P., a Texas limited partnership
(together with its successors, "HMCo").
WHEREAS, Holdings, VTC, CCI, VI International, PCB Acquisition,
PCB and HMCo are parties to an Amended and Restated Financial Advisory
Agreement dated as of April 11, 1997 (the "April 1997 Advisory Agreement")
pursuant to which HMCo renders certain financial advisory, investment banking,
and other similar services to Holdings, VTC, CCI, VI International, PCB
Acquisition and PCB; and
WHEREAS, Holdings, VTC, CCI, VI International, PCB Acquisition,
PCB and HMCo desire to amend and restate the terms of the April 1997 Advisory
Agreement and to add Chips as a party to this Agreement; and
WHEREAS, Chips desires to become a party to this Agreement; and
WHEREAS, the Clients have requested that HMCo render financial
advisory, investment banking, and other similar services to them with respect
to any future proposals for a tender offer, acquisition, sale, merger, exchange
offer, recapitalization, restructuring, or other similar transaction directly
or indirectly involving the Clients or any of their respective subsidiaries,
and any other person or entity (collectively, "Add-on Transactions").
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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NOW, THEREFORE, in consideration of the services rendered and 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. Each of the Clients acknowledges that it has
retained HMCo as its exclusive financial advisor in connection with any Add-on
Transactions that may be consummated during the term of this Agreement, and
that the Clients will not retain any other person or entity to provide such
services in connection with any such Add-on Transaction without the prior
written consent of HMCo. HMCo agrees that it shall provide such financial
advisory, investment banking, and other similar services in connection with any
such Add-on Transaction as may be requested from time to time by the board of
directors of Holdings.
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 HMTF and its affiliates cease to own beneficially, directly or
indirectly, any securities of any of the Clients or their successors.
3. Compensation. As compensation for HMCo's financial
advisory, investment banking, and other similar services rendered in connection
with any Add-on Transaction pursuant to Section 1 hereof, the applicable Client
shall pay to HMCo, at the closing of any such Add-on Transaction, a cash fee in
the amount of 1.5% of the Transaction Value of such Add-on Transaction. As
used herein, the term "Transaction Value" means the total value of the Add-on
Transaction, including, without limitation, the aggregate amount of the funds
required to complete the Add-on Transaction (excluding any fees payable
pursuant to this Section 3(b)) including the amount of any indebtedness,
preferred stock or similar items assumed (or remaining outstanding).
4. Reimbursement of Expenses. In addition to the
compensation to be paid pursuant to Section 3 hereof, the applicable Client or
Clients agree to reimburse HMCo, promptly following demand therefor, together
with invoices or reasonably detailed descriptions thereof, for all reasonable
disbursements and out-of-pocket expenses (including fees and disbursements of
counsel) incurred by HMCo in connection with the performance by it of the
services contemplated by Section 1 hereof.
5. Indemnification. The Clients jointly and severally shall
indemnify and hold harmless each of HMCo, its affiliates, and their respective
directors, officers, controlling persons (within the meaning of Section 15 of
the Securities Act of 1933, as
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amended, or Section 20(a) of the Securities Exchange Act of 1934, as amended),
if any, agents and employees (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 resulting from the negligence of the Indemnified Person 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 Client 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 reimburse each Indemnified
Person for all costs and expenses, including fees 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. The Clients also agree 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. Each of the Clients
further agrees 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
indemnification 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
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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
remain in full force and effect following the completion or termination of said
engagement or such additional engagement(s).
The Clients further understand 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 the
applicable 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
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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.
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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.
▇▇▇▇▇, MUSE & CO. PARTNERS, L.P.
By: HM PARTNERS INC., its General
Partner
By: /s/
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▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice
President
VIASYSTEMS GROUP, INC.
By:
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Name:
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Title:
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VIASYSTEMS, INC.
By:
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Name:
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Title:
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VIASYSTEMS TECHNOLOGIES CORP.
By:
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Name:
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Title:
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CIRCO CRAFT CO. INC.
By:
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Name:
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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:
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Title:
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CHIPS ACQUISITION LIMITED
By:
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Name:
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Title:
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