EXHIBIT 10
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as
of November 13, 2001, is made by and between TPG Wafer Holdings LLC, a Delaware
limited liability company ("Holdings") and MEMC Electronic Materials, Inc., a
Delaware corporation (the "Company").
WHEREAS, Holdings is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware;
WHEREAS, the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
WHEREAS, it has been proposed that Holdings be merged with and
into the Company (the "Merger") on the terms and subject to the conditions of
this Agreement; and
WHEREAS, the Board of Directors of the Company and the members
of Holdings have determined that it is advisable and in the best interests of
each of such companies that Holdings merge into the Company under and pursuant
to the laws of Delaware and upon the terms and subject to the conditions
provided in this Agreement and have by resolutions duly adopted, approved this
Agreement and directed that this Agreement and the transactions contemplated
hereby be submitted to a vote of their respective stockholders or members and
executed by their respective officers.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereto hereby agree as follows:
I. THE MERGER
1.1. The Merger.
(a) Upon the terms and subject to the conditions of this
Agreement, Holdings shall be merged with and into the Company in accordance with
the laws of the State of Delaware, with the Company continuing in existence as
the surviving corporation (the "Surviving Corporation"), and the separate
existence of Holdings shall cease.
(b) The Merger shall become effective (the "Effective Time")
when the following actions shall have been completed:
(i) this Agreement and the Merger shall have been adopted
and approved by the stockholders of the Company and the members of
Holdings in accordance with the relevant provisions of the Delaware
General Corporation Law (the "DGCL") and the Delaware Limited Liability
Company Act (the "DLLCA"), as applicable;
(ii) all of the conditions precedent to the consummation
of the Merger specified in this Agreement shall have been satisfied;
(iii) the parties hereto shall have filed (the "Filing")
with the Secretary of State of Delaware a certificate of merger (the
"Certificate of Merger"), in such form as is required by, and executed
in accordance with the relevant provisions of, the DGCL and the DLLCA.
The parties hereto agree that such Filing shall occur as soon
as practicable after all of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied.
1.2. Effect of the Merger. At the Effective Time, the effect
of the Merger shall be as provided in the applicable provisions of the DGCL and
the DLLCA. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of the Company and Holdings shall vest in the Surviving Corporation,
and all debts, liabilities, obligations, restrictions, disabilities and duties
of the Company and Holdings shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving Corporation.
1.3. Certificate of Incorporation; Bylaws.
(a) At the Effective Time, the Certificate of Incorporation of
the Company, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law and such Certificate of Incorporation.
(b) At the Effective Time, the Bylaws of the Company as in
effect immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation until thereafter amended as provided by law, the
Certificate of Incorporation of the Company and such Bylaws.
1.4. Directors and Officers. The directors of the Company
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation in each case until their respective successors are
duly elected or appointed and qualified.
1.5. Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of either the Company,
Holdings or the holders of any of the following securities:
(a) Each share of common stock, par value $0.01 per share, of
the Company ("Company Shares") owned by Holdings immediately prior to the
Effective Time ("Held Shares"), shall be cancelled without any conversion
thereof and no payment or distribution shall be made with respect thereto.
(b) Each share of Series A Cumulative Convertible Preferred
Stock, par value $0.01 per share, of the Company ("Company Preferred Stock")
owned by Holdings immediately prior to the Effective Time ("Held Preferred
Shares"), shall be cancelled without any conversion thereof and no payment or
distribution shall be made with respect thereto.
(c) Each warrant certificate owned by Holdings immediately
prior to the Effective Time evidencing warrants to purchase Company Shares
("Held Warrants") shall be cancelled without any conversion thereof and no
payment or distribution shall be made with respect thereto.
(d) Any debt or other obligations of the Company or any of its
subsidiaries held by Holdings immediately prior to the Effective Time shall be
cancelled without any conversion thereof and no payment or distribution shall be
made with respect thereto.
(e) The limited liability company membership interests of
Holdings ("LLC Interests") outstanding immediately prior to the Effective Time
shall be converted into and exchanged for, in the aggregate, the following:
(i) a number of validly issued, fully paid and
nonassessable shares of common stock, par value $0.01 per share, of the
Surviving Corporation ("Surviving Corporation Shares") equal to the
number of Held Shares then held by Holdings; plus
(ii) a number of validly issued, fully paid and
nonassessable shares of Series A Cumulative Convertible Preferred
Stock, par value $0.01 per share, of the Surviving Corporation, having
the same terms and conditions as those set forth in the Certificate of
Designations for the Company Preferred Stock immediately prior to the
Effective Time, equal to the number of Held Preferred Shares then held
by Holdings; plus
(iii) a number of validly issued, fully paid and
nonassessable warrants to purchase Surviving Corporation Shares of the
Surviving Corporation, having the same terms and conditions as those
set forth in the warrant certificates evidencing the Held Warrants
immediately prior to the Effective Time, equal to the number of Held
Warrants then held by Holdings; plus
(iv) a number of validly issued, fully paid and
nonassessable Surviving Corporation Shares having a Fair Market Value
equal to the aggregate principal of and accrued but unpaid interest on
any debt or other obligations of the Company or any of its subsidiaries
held by Holdings immediately prior to the Effective Time (each of
clauses (i)-(iv), the "Merger Consideration").
For purposes of this Agreement, the "Fair Market Value" of
a Surviving Corporation Share shall mean the average of the per share
Closing Prices for Company Shares (rounded to the nearest ten
thousandth and rounded up in the case of five one-hundred thousandths)
for the ten Trading Days ending on the Trading Day which is five days
prior to the Effective Time.
"Closing Price" with respect to a Company Share on any day
means the last reported sale price on that day or, in case no such
reported sale takes place on such day, the average of the last reported
bid and asked prices, regular way, on that day, in either case, as
reported in the consolidated transaction reporting system with respect
to securities listed on the NYSE or, if the Company Shares are not
listed on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Company Shares are
listed or admitted to trading or, if the Company Shares are not listed
on the NYSE and not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices on such other nationally
recognized quotation system then in use, or, if on any such day the
Company Shares are not quoted on any such quotation system, the average
of the closing bid and asked prices as furnished by a professional
market maker selected by the Board of Directors of the Company in good
faith making a market in the Company Shares. If the Company Shares are
not publicly held, or so listed, quoted or publicly traded, the
"Closing Price" means the fair market value of a Company Share, as
determined in good faith by the Board of Directors of the Company.
"Trading Day" means any day on which the NYSE is open for
trading, or if the Company Shares are not listed on the NYSE any day on
which the principal national securities exchange or national quotation
system on which the Company Shares are listed, admitted to trading or
quoted is open for trading, or if the Company Shares are not so listed,
admitted to trading or quoted, any Business Day.
"Business Day" means any day, other than a Saturday,
Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(f) The Merger Consideration shall be apportioned to each
holder of an LLC Interest in accordance with their respective Membership
Interests as set forth in the limited liability company operating agreement of
Holdings as in effect immediately prior to the Effective Time.
1.6. Fractional Shares. No certificates or scrip of Surviving
Corporation Shares representing fractional Surviving Corporation Shares or
book-entry credit of the same shall be issued upon the surrender for exchange of
LLC Interests in the Merger and such fractional Surviving Corporation Share
interests will not entitle the owner thereof to vote or to have any rights of a
holder of Surviving Corporation Shares. Notwithstanding any other provision of
this Agreement, each holder of an LLC Interest exchanged pursuant to the Merger
who would otherwise have been entitled to receive a fraction of a Surviving
Corporation Share (after taking into account all Surviving Corporation Shares of
such holder converted in the Merger) shall receive, in lieu thereof, cash (in
U.S. dollars), without interest, in an amount equal to the product of (x) such
fractional part of a Surviving Corporation Share multiplied by (y) the Fair
Market Value.
II. REPRESENTATIONS AND WARRANTIES
OF HOLDINGS LLC
Holdings represents and warrants to the Company that:
2.1. Due Organization. Holdings is a limited liability company
duly formed, validly existing and in good standing under the laws of the State
of Delaware and has all requisite limited liability company power and authority
to own, operate and lease its properties and to carry on its businesses as they
are being conducted on the date of this Agreement.
2.2. Execution and Delivery of Agreement; Enforceability.
(a) Holdings has all requisite limited liability company power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by Holdings of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary limited liability company action.
(b) This Agreement has been duly executed and delivered by
Holdings and, assuming this Agreement constitutes a legal, valid and binding
obligation of the Company, constitutes the legal, valid and binding obligation
of Holdings, enforceable against Holdings in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights generally and, as to
enforceability, to general principles of equity.
2.3. No Conflict. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby do not contravene
(a) the certificate of formation or the limited liability company operating
agreement of Holdings, (b) any contractual restriction binding on or affecting
Holdings or (c) any judgment, order, decree, law, rule or regulation applicable
to Holdings.
III. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to Holdings that:
3.1. Due Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, operate and
lease its properties and to carry on its businesses as they are being conducted
on the date of this Agreement.
3.2. Execution and Delivery of Agreement; Enforceability.
(a) The Company has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the Company of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action.
(b) This Agreement has been duly executed and delivered by the
Company and, assuming this Agreement constitutes a legal, valid and binding
obligation of Holdings, constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
generally and, as to enforceability, to general principles of equity.
3.3. No Conflict. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby do not contravene
(a) the charter or Bylaws of the Company, (b) any contractual restriction
binding on or affecting the Company or (c) any judgment, order, decree, law,
rule or regulation applicable to the Company.
3.4. State Takeover Statutes. The Board of Directors of the
Company has taken action under the provisions of Section 203 of the DGCL such
that Section 203 of the DGCL does not apply to the Merger. No other state
takeover statute is applicable to the Merger.
IV. CONDITIONS
The obligations of the Company and Holdings to consummate the
Merger are subject to the satisfaction of the following conditions:
4.1. Authorization.
(a) The Merger shall have been approved by the stockholders of
the Company in accordance with the provisions of the DGCL.
(b) The Merger shall have been approved by the members of
Holdings in accordance with the provisions of the DLLCA, and for the avoidance
of doubt, the members of Holdings shall have full discretion as to the timing of
such approval.
4.2. Consents and Approvals. All authorizations, consents and
approvals (contractual or otherwise) of any federal, state, local or foreign
government agency, regulatory body or official or any person (other than the
Company or Holdings and their respective stockholders or members) necessary for
the valid consummation of the Merger in accordance with the terms and conditions
of this Agreement shall have been obtained and shall be in full force and
effect.
V. MISCELLANEOUS
5.1. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts entered into and to be performed wholly within the State of Delaware.
5.2. Amendment. At any time prior to the Effective Time, the
members of Holdings and the Board of Directors of the Company may amend, modify
or supplement this Agreement in such manner as they jointly may determine to the
fullest extent permitted by applicable law.
5.3. Further Assurances. Prior to the Effective Time, Holdings
and the Company shall take all such action (including, without limitation,
obtaining the approval of this Agreement and the Merger by the members of
Holdings and the stockholders of the Company) as shall be necessary or
appropriate in order to effectuate the Merger. However, nothing in this Section
shall limit the discretion of the members of Holdings as to the timing of their
approval pursuant to Section 4.1(b) above.
5.4. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized, all as of
the date first written above.
TPG WAFER HOLDINGS LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
MEMC ELECTRONIC MATERIALS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
Chief Financial Officer