EXHIBIT 10.23
AMENDED AND RESTATED PROMISSORY NOTE
$3,197,609.00 February 28, 2002
PURSUANT TO THE TERMS OF THIS AMENDED AND RESTATED PROMISSORY NOTE, FOR
VALUE RECEIVED, Thomas T. Stallkamp, (the "Debtor") hereby promises to pay on
February 28, 2011 (subject to the acceleration of such maturity date as provided
herein) (the "Maturity Date") to MSX International, Inc., a Delaware corporation
(the "Lender"), or to its order, the principal sum of THREE MILLION ONE HUNDRED
NINETY-SEVEN THOUSAND SIX HUNDRED AND NINE DOLLARS ($3,197,609.00), (the
"Principal Amount"), together with interest on the unpaid principal balance
hereof from time to time from the date hereof until final payment in full
hereof. Interest shall be payable at a rate equal to (i) 2.48%, being the lowest
of the SHORT TERM APPLICABLE FEDERAL RATE published by the Internal Revenue
Service as set forth for the months of December 2001, January 2002 and February
2002, compounded annually each February 27, from February 28, 2002 to February
27, 2005, (ii) the lowest of the SHORT TERM APPLICABLE FEDERAL RATES published
by the Internal Revenue Service for the months of December 2004, January 2005
and February 2005, compounded annually each February 27, from February 28, 2005
to February 27, 2008, and (iii) the lowest of the SHORT TERM APPLICABLE FEDERAL
RATES published by the Internal Revenue Service for the months of December 2007,
January 2008 and February 2008, compounded annually each February 27, from
February 28, 2008 to February 27, 2011. Interest shall be calculated on the
basis of a 365-day year for the actual number of days elapsed and shall
be payable on February 28 of each year, beginning with February 28, 2003. In the
event and so long as a default shall exist hereunder, however, interest shall be
payable at the rate of EIGHT (8%) PERCENT PER ANNUM or 3 percentage points over
the interest rate otherwise provided for in this Note, whichever is greater;
provided further that if the rate of interest payable hereunder during a period
of default is limited by law, the rate payable hereunder shall be the lesser of
(a) the rate set forth in this Note and (b) the maximum rate permitted by law
during a period of default. If, however, interest is paid hereunder in excess of
the maximum rate of interest permitted by law, any interest so paid that exceeds
such maximum rate shall automatically be considered a payment of principal and
shall automatically be applied in reduction of principal due on this Note to the
extent of such excess. Both principal and interest are payable to the holder
hereof in lawful money of the United States at the Executive Offices of the
Lender, 275 Rex Blvd., Auburn Hills, Michigan 48326, or such other place as the
holder shall specify in writing to Debtor.
This Note may be prepaid in whole or in part at any time or times
without premium or penalty.
This Note is secured by, and the holder hereof shall have all of the
benefits of, that certain Pledge Agreement dated as of the date hereof between
Lender and Debtor pursuant to which the Debtor has pledged as collateral
security for the repayment of this Note shares of the capital stock of Lender
(the "Pledged Shares").
If the interest and principal hereof are not fully paid as of the
Maturity Date (whether by acceleration or otherwise), Debtor shall pay to the
Lender all of its reasonable costs of collection of said principal and interest,
including, but not limited to, reasonable attorney's fees.
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The occurrence of any of the following shall constitute a default
hereunder:
(i) If the Debtor shall fail to make payment when due of principal or
interest hereon and such failure shall continue for a period of thirty (30) days
after written notice hereof has been delivered to the Debtor; or
(ii) If the Debtor shall become insolvent or shall voluntarily file a
petition in bankruptcy or the appointment of a receiver, trustee or liquidator
for a substantial portion of his assets or to effect a plan or other arrangement
with creditors, or shall file any answer admitting the jurisdiction of the court
and the material allegations of an involuntary petition in any bankruptcy,
insolvency or similar proceedings, or shall be adjudicated bankrupt, or shall
make a voluntary assignment for the benefit of creditors; or
(iii) If the Debtor materially breaches any covenant, obligation,
agreement, representation or warranty contained in the Stockholders' Agreement
(as hereinafter defined) or in any agreement entered into pursuant to the
Stockholders' Agreement or in connection with the issuance of the Pledged Shares
(including, but not limited to, the Pledge Agreement) between Debtor and Lender
and if subject to cure, Debtor fails to cure such breach within 30 days after
written notice thereof has been delivered to Debtor.
If any such default shall occur and be continuing, this Note, with
accrued interest thereon, shall upon declaration to such effect delivered by the
holder of this Note to the Debtor, become and be immediately due and payable.
In addition, this Note, with accrued interest thereon, shall become
immediately due and payable as set forth below upon the happening of any of the
following events: (a) the sale or exchange of any or all the Pledged Shares to
any person or entity (except for an Involuntary
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Transfer (as such term is defined in the Stockholders' Agreement) to the
Debtor's estate due to the death of the debtor, in which event, this Note shall
not become immediately due and payable); provided, that if the sale or exchange
is to a Permitted Transferee as defined in the Amended and Restated
Stockholders' Agreement dated as of November 28, 2000 among Lender and others,
as amended from time to time (the "Stockholders' Agreement"), the amount
immediately due and payable hereunder shall be equal to the amount of the
proceeds from such sale or exchange; or (b) if, under the Stockholders'
Agreement, a Sale Event (as defined therein) occurs with respect to Debtor
(except for a Sale Event due to the death of the Debtor, in which event, this
Note shall not become immediately due and payable), and if the periods during
which any person or entity has the right to purchase the Pledged Shares on
account of such Sale Event expire and there has not been a sale or exchange
within the meaning of preceding clause (a) hereof, the expiration of such period
for purchase; or (c) after the transfer of the Pledged Shares to the Debtor's
estate as referenced by clauses (a) and (b) above, a subsequent sale or exchange
of the Pledged Shares by the Debtor's estate to any person or entity; provided,
that if the sale or exchange is to a Permitted Transferee, as defined in the
Stockholders' Agreement, the amount immediately due and payable hereunder shall
be equal to the amount of the proceeds from such sale or exchange; or (d) if the
Stockholders' Agreement has been terminated, the termination of Debtor's
employment with Lender, whether such termination of employment is with or
without cause, voluntary or involuntary, and whether at the instance of Debtor
or Lender (except if such termination is due to the Debtor's death or
disability, in which event, this Note shall not become immediately due and
payable), or (e) the closing with a securities underwriter in connection with a
public offering of shares of the Lender's capital stock in which the Pledged
Shares have been
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registered; provided that the amount immediately due and payable under this
clause (e) shall be limited to the lesser of (1) the amount of proceeds from the
sale of such registered Pledged Shares, and (2) the amount due and owing
hereunder.
Debtor hereby waives presentment, demand, protest or notice of any
kind.
Recourse by the Lender (or other holder of this Note) is limited to the
lesser of (1) the amount due and owing under this Note, or (2) the amount
realized upon foreclosure of the Pledged Shares and an additional amount equal
to SEVEN HUNDRED NINETY-NINE THOUSAND FOUR HUNDRED AND TWO ($799,402.00);
provided, however, that Lender (or other holder of this Note) must first proceed
against the Pledged Shares and, if amounts hereunder remain due and owing,
against Debtor for such sum.
The Lender may not assign this Note without the prior written consent
of Debtor other than to an affiliate of Lender.
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This Note shall be deemed to be a contract under, and shall be
constituted in accordance with and governed by, the laws of the State of
Michigan.
Witness:
/s/ Thomas T. Stallkamp
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Thomas T. Stallkamp
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