EXHIBIT 10.23
THIS AGREEMENT (this "Agreement") is made and entered into as
of this 4th day of February, 2002 and shall completely AMEND AND RESTATE the
Agreement (the "Prior Agreement") dated July 16, 2000 by and between Viasystems
Group, Inc. ("Group"), Viasystems, Inc. ("Inc."), Viasystems Technologies Corp.
LLC ("Technologies"), Viasystems Milwaukee, Inc. ("Milwaukee"), Viasystems
International, Inc. ("International"), Wire Harness LLC ("Harness"), Viasystems
Milford LLC ("Milford"), Viasystems San Jose, Inc. ("San Jose"), and Viasystems
Portland, Inc. ("Portland") (collectively Group, Inc., Technologies, Milwaukee,
International, Harness, Milford, San Jose, and Portland are referred to herein
as the "Company"), and James N. Mills ("Mills").
WITNESSETH:
WHEREAS, Group, Inc, and Technologies and Mills entered into
the Prior Agreement and wish to amend and restate such agreement as set forth
herein.
NOW, THEREFORE, Mills and the Company, in consideration of the
agreements, covenants and conditions herein contained, hereby agree as follows:
SECTION 1. CHAIRMANSHIP PROVISIONS.
Mills (i) agreed to voluntarily retire from his position of
Chief Executive Officer of Group, Inc. and Technologies and any other officer
and employee positions held with the Company and its subsidiaries effective as
of July 16, 2001 and (ii) agrees to retire and resign his position of
non-executive Chairman of the Board of Directors (the "Board") and as a director
of Group and Inc. on the date hereof.
SECTION 2. RETIREMENT BENEFITS.
(a) Retirement Pay. The Company shall pay to Mills an amount
of Two Million One Hundred Sixty Nine Thousand One Hundred and Sixty Seven
Dollars ($2,169,167). Such benefits shall be payable in equal installments (on
the 15th and 30th of each month) though March 31, 2005 in accordance with the
payroll practices of the Company in effect from time to time. All such payments
shall be subject to deduction and withholding authorized or required by
applicable law.
(b) Benefits. Through March 31, 2005, Mills shall be entitled
to such other benefits as are customarily accorded the executives of the
Company, including without limitation, group life, hospitalization and other
insurance and vacations.
(c) Medical Benefits. During the lifetime of Mills and/or
Mills' spouse, the Company shall provide health coverage to Mills and/or Mills'
spouse at least equal to the health coverage granted to the Mills prior to the
date hereof at no cost to Mills and/or Mills' spouse.
(d) Directors and Officers Insurance. The Company will obtain
and maintain a policy of insurance on directors and officers of the Company and
any parent company in amounts
to be determined by the Company, in its reasonable judgement based upon
companies similarly situated. The Company will provide directors and officers
insurance coverage and indemnification rights to Mills on the same basis as it
covers or provides the other current (as of the date hereof) directors and
officers of the Company from time to time or the then serving officers or
directors of the Company if greater.
SECTION 3. BENEFITS UPON DEATH. In the event of the death of the Mills
prior to March 31, 2005, Mills' estate, heirs or beneficiaries, as applicable,
shall be entitled, in addition to any other benefits specifically provided to
them or Mills under any benefit plan, to receive the retirement compensation set
forth in Section 2 hereof until March 31, 2005.
SECTION 4. EXPENSE REIMBURSEMENT. Through March 31, 2005, Mills will be
reimbursed by the Company for expenses incurred by Mills to own and maintain an
automobile.
SECTION 5. ASSIGNMENT. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto except that this Agreement and all of the provisions hereof
may be assigned by the Company to any successor to all or substantially all of
its assets, by merger or otherwise, and may otherwise be assigned upon the prior
written consent of Mills.
SECTION 6. NO VIOLATION. Mills hereby represents and warrants to the
Company that the execution, delivery and performance of this Agreement or the
passage of time, or both, will not conflict with, result in a default, right to
accelerate or loss of rights under any provision of any agreement or
understanding to which the Mills or, to the best knowledge of Mills, any of
Mills' affiliates are a party or by which Mills, or to the best knowledge of
Mills, Mills' affiliates may be bound or affected.
SECTION 7. CAPTIONS. The captions, headings and arrangements used in
this Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
SECTION 8. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed delivered, whether or not
actually received, two days after deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the party to whom notice is being given at the specified address or at such
other address as such party may designate by notice:
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Company: Viasystems Group, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attn: Board of Directors
Mills: James N. Mills
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SECTION 9. INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; provided however to the extent the scope or
the duration of the prohibited activities in Section 14 are held to be illegal,
invalid, or uninforceable as a result of an action initiated by Mills (other
than in the case of nonpayment of the retirement compensation), the retirement
benefits in Section 2(a) shall be reduced to reflect the reduction in scope or
duration of the prohibited activities In such event, the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. In lieu of each such illegal, invalid or unenforceable provision,
there shall be added automatically as part of this Agreement a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
SECTION 10. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof. Notwithstanding the foregoing, this Agreement does not
supersede the Agreement (other than the first bullet point thereof) dated July
5, 2001 between Mills and Thomas O. Hicks. This Agreement may be amended in
whole or in part only by an instrument in writing setting forth the particulars
of such amendment and duly executed by an officer of the Company expressly
authorized by the Board to do so and by Mills.
SECTION 11. WAIVER. No delay or omission by any party hereto to
exercise any right or power hereunder shall impair such right or power to be
construed as a waiver thereof. A waiver by any of the parties hereto of any of
the covenants to be performed by any other party or any breach thereof shall not
be construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. Except as otherwise expressly set forth herein, all
remedies provided for in this Agreement shall be cumulative and in addition to
and not in lieu of any other remedies available to any party at law, in equity
or otherwise.
SECTION 12. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement.
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SECTION 13. GOVERNING LAW. This Agreement shall be construed and
enforced according to the laws of the State of Missouri.
SECTION 14. NON-COMPETITION. For a period from the date hereof through
March 31, 2005, Mills shall not, without the express prior written consent of
Viasystems, directly or indirectly, engage, participate, make any financial
investment in, or become employed by or render advisory or other services to or
for any person or other business enterprise engaged in the design, manufacture
and sale of printed circuit boards, back planes, wire harnesses or electronic
manufacturing services (any of the foregoing activities being referred to herein
as "Competitive Activities"). The foregoing covenant respecting Competitive
Activities shall not be construed to preclude Mills from making (a) any
investments in the securities of any company, whether or not engaged in
competition with Viasystems, to the extent that such securities are actively
traded on a national securities exchange or in the over-the-counter market in
the United States or any foreign securities exchange and such investment does
not exceed five percent (5%) of the issued and outstanding shares of such
company or give Mills the right or power to control or participate directly in
making the policy decisions of such company or (b) the loan in the amount not
greater than $30,000 made prior to the date hereof to Robert J. Mills in respect
of Electronics Components Marketing Group.
SECTION 15. GENERAL RELEASE OF MILLS. For and in consideration of the
commitments made herein by Mills and the representation by Mills that other than
the loan to Robert J. Mills described in Section 14, conversations with Robert
J. Mills and KC Arns and three business introductions which Mills has previously
disclosed, prior to the date hereof Mills has not engaged in any activities that
would have resulted in a material breach in Section 14, the Company and each
constituent entity thereof and all of their subsidiaries, affiliates,
successors, and assigns (collectively the "Viasystems Entities") do hereby
release and completely and forever discharge Mills and his heirs, personal
representatives, agents, successors, and assigns, to the fullest extent
permitted by applicable law, from any and all claims, rights, demands, actions,
liabilities, obligations, causes of action of any and all kinds, nature, and
character whatsoever, known or unknown, whether based on a tort (including but
not limited to a negligent or intentional tort), contract (implied, oral, or
written) or any other theory of recovery under federal or state law and whether
for compensatory or punitive damages, other monetary amounts or for equitable
relief, and from any and all claims which the Viasystems Entities or any of them
may now have that have arisen from or are in any way whatsoever connected with
Mills' positions as an officer, director, employee, or agent of any of the
Viasystems Entities. Notwithstanding the foregoing, none of the Viasystems
Entities release Mills from claims arising out of any breach of this Agreement.
SECTION 16. GENERAL RELEASE OF VIASYSTEMS ENTITIES. For and in
consideration of the commitments made herein by the Viasystems Entities, Mills,
for himself and for his heirs, personal representatives, successors, and assigns
does hereby release and completely and forever discharge all of the Viasystems
Entities and their officers, directors, employees, and agents, to the fullest
extent permitted by applicable law, from any and all claims, rights, demands,
actions, liabilities, obligations, causes of action of any and all kinds, nature
and character whatsoever, known or unknown, whether based on a tort (including
but not limited to a negligent or intentional tort),
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contract (implied, oral, or written) or any other theory of recovery under
federal or state law and whether for compensatory or punitive damages, other
monetary amounts, or for equitable relief, and any and all claims which Mills
may now have that have arisen from or are in any way whatsoever connected with
Mills' positions as an officer, director, employee, or agent of any of the
Viasystems Entities. Notwithstanding the foregoing, Mills does not release any
of the Viasystems Entities from any claims arising out of any breach of this
Agreement or from any right to contribution or indemnity under the Delaware
General Corporation law (or similar law related to entities not incorporated in
Delaware), the articles or certificate of incorporation or the by-laws or
similar instrument of any of the Viasystems Entities.
SECTION 17. ANNOUNCEMENT. Any announcement of the resignation of Mills
as Chairman of the Board and as a Director of any of the Viasystems Entities
shall be to the effect that Mills has retired from the Company (and any other of
the Viasystems Entities, as applicable).
SECTION 18. NONDISPARAGEMENT. Following the date hereof, each party
agrees not to disparage the other in public or private statements, and in
general each shall conduct himself or itself in a manner consistent with the
other's interest in maintaining its general and business reputation. The
Viasystems Entities shall instruct their directors, officers and attorneys to
comply with the provisions of this Section as though they were parties thereto.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
MILLS:
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James N. Mills
COMPANY:
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. LLC
By:
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Name:
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Title:
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VIASYSTEMS MILWAUKEE, 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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WIRE HARNESS LLC
By:
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Name:
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Title:
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VIASYSTEMS MILFORD LLC
By:
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Name:
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Title:
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VIASYSTEMS SAN JOSE, INC.
By:
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Name:
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Title:
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VIASYSTEMS PORTLAND, INC.
By:
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Name:
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Title:
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