EXHIBIT 12
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
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OPERATING AGREEMENT
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OF
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TPG WAFER HOLDINGS LLC
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This Amended and Restated Limited Liability Company Operating Agreement
made, entered into and effective as of November 13, 2001 (the "Agreement"), by
the parties whose names and addresses are set forth on Schedule A hereto as
members, and in the event any other parties are admitted to membership, such
other parties who shall execute this Agreement by subscribing their names as
members to the signature page hereof (each a "Member," and collectively, the
"Members").
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as an authorized person within the meaning
of the Act, has executed and caused to be filed with the Secretary of State of
the State of Delaware the Certificate of Formation (the "Certificate") of TPG
Wafer Holdings LLC (the "Company") on September 19, 2001 (the "Formation Date")
in order to form a limited liability company pursuant to the Delaware Limited
Liability Company Act, as amended (the "Act"); and
WHEREAS, the Members desire to amend and restate in their entirety the
terms of the Limited Liability Company Operating Agreement of the Company dated
as of September 19, 2001 (the "Existing Agreement"), in order, among other
things, to admit new Members;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises of the parties hereto, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree that the Existing Agreement is hereby
amended and restated to read in its entirety as follows:
ARTICLE I
ORGANIZATION
1.01. Formation of the Company. The Members hereby:
(a) approve and ratify the filing of the Certificate with the Secretary of
State of the State of Delaware on the Formation Date and all actions taken by or
on behalf of the Company on or prior to the execution of this Agreement; and
(b) confirm and agree to their status as Members of the Company as set
forth herein.
1.02. Office of the Company. The Company shall have its principal office at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and may establish such
other offices or places of business for the Company as the Managing Member may
deem appropriate.
1.03. Registered Office and Registered Agent. The Company shall have its
registered office in the State of Delaware at Corporation Trust Center, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of its
registered agent at such address is The Corporation Trust Company.
1.04. Purposes of the Company. The purposes of the Company shall be to (i)
invest in the debt and equity securities of MEMC Electronic Materials, Inc.
("MEMC") and its affiliates and (ii) take any action that is necessary or
appropriate in connection therewith. TPG Wafer Partners, LLC and TPG Wafer
Management, LLC (collectively, the "TPG Members") hereby represent and warrant
to the other parties to this Agreement that, prior to the date of this
Agreement, the Company has conducted no business, and has incurred no
liabilities or obligations, that would be inconsistent with the purposes of the
Company set forth in this Section 1.04.
1.05. Term of the Company. The existence of the Company shall commence as
of the date that the Certificate was filed with the Secretary of State of the
State of Delaware and shall continue until dissolution thereof in accordance
with the provisions of the Certificate or this Agreement.
ARTICLE II
MANAGEMENT OF COMPANY
2.01. Management Generally. Subject to the terms of this Agreement and of
the Members' Agreement (as defined below) and except as may be required by
nonwaivable provisions of applicable law, the business and affairs of the
Company shall be carried on and managed by the Managing Member (as defined
below), and the powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under
the direction of, such Managing Member. The Members (including the managing
member) shall not be personally liable for the debts, liabilities, contracts or
other obligations of the Company.
2.02. Managing Member. (a) TPG Wafer Partners, LLC ("TPG Wafer Partners")
shall be the managing member of the Company (the "Managing Member"). In the
event that the Managing Member is unable to serve as the Managing Member or,
having commenced to serve, withdraws (the Managing Member being hereinafter
referred to as a "Withdrawing Manager"), such Withdrawing Manager's replacement
(a "Substitute Manager") shall be selected by the Withdrawing Manager; provided
that, in the event that senior principals of Texas Pacific Group no longer
control (directly or indirectly) a majority of the Membership Interests, all of
the Members (including the TPG Members) shall select a Substitute Manager; and
provided, further, that so long as TPG Wafer Partners is the Managing Member of
the Company, TPG Wafer Partners will be controlled (directly or indirectly) by
senior principals of Texas Pacific Group.
(b) Any decision or action by or on behalf of the Company shall require the
consent of the Managing Member. The Managing Member may, pursuant to this
Section 2.02, appoint one or several persons (each, an "Authorized
Representative") to carry out, or act on behalf of the Company as to, any
specified actions or decisions to be taken by the Company pursuant to this
Agreement or otherwise. The authority of each such Authorized Representative
shall be limited to those specific actions or decisions as specified at the time
of the appointment of such Authorized Representative, as evidenced in writing by
the Managing Member.
2.03 Actions Without a Meeting. Any action required or permitted to be
taken by the Managing Member may be evidenced by a consent in writing, setting
forth the action so taken, signed by an authorized representative of the
Managing Member. Such consent shall have the same force and effect, as of the
date stated therein, as a vote of such Managing Member and may be stated as such
in any document or instrument filed with the Secretary of State of the State of
Delaware or in any certificate or other document delivered to any person or
entity.
ARTICLE III
OFFICERS
3.01 Officers. (a) The Managing Member may, from time to time, designate
one or more persons to be officers of the Company. No officer need be a resident
of the State of Delaware. Any officers so designated shall have such authority
and perform such duties as the Managing Member may, from time to time, delegate
to them. The Managing Member may assign titles to particular officers. Unless
the Managing Member decides otherwise, if the title is one commonly used for
officers of a business corporation formed under the General Corporation Law of
the State of Delaware, the assignment of such title shall constitute the
delegation to such officer of the authority and duties that are normally
associated with that office, subject to any restrictions on such authority
imposed by the Managing Member. Any number of offices may be held by the same
person.
(b) Each officer shall hold office until his or her successor shall be duly
designated and qualified or until his or her death or until he or she shall
resign or shall have been removed in the manner hereinafter provided.
(c) Any officer may resign as such at any time. Such resignation shall be
made in writing and shall take effect at the time specified therein, or if no
time be specified, at the time of its receipt by the Managing Member. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
(d) Any officer may be removed as such, either with or without cause, by
the Managing Member at any time. Any vacancy occurring in any office of the
Company may be filled by the Managing Member.
(e) The following persons are hereby appointed officers of the Company:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ -- President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -- Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III -- Vice President
▇▇▇▇▇ ▇. ▇' ▇▇▇▇▇ -- Vice President and Treasurer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ -- Vice President and Secretary
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ -- Vice President
▇▇▇▇ ▇. ▇▇▇▇▇▇ -- Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -- Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ -- Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ -- Assistant Secretary
S. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ -- Assistant Secretary
3.02. Certain Transactions. The fact that a Member or any affiliate of a
Member is directly or indirectly interested in or connected with any person,
firm or corporation employed by the Company to render or perform a service, or
from which or to whom the Company may buy or sell any property, shall not
prohibit the Company from employing or dealing with such person, firm or
corporation.
ARTICLE IV
CAPITAL CONTRIBUTION; MEMBERSHIP INTERESTS; DISTRIBUTIONS
4.01. Initial Capital Contribution; Membership Interests. The Members shall
make contributions of capital to the Company (each, a "Capital Contribution")
upon ten (10) days' notice provided by the Managing Member, in the amounts shown
on Schedule B to this Agreement and the Members shall hold interests in the
Company (each, a "Membership Interest") in the amounts shown on such Schedule B.
4.02 Additional Capital Contributions. Except as provided in the following
sentence, no Member shall be obligated or permitted to make any additional
contribution to the capital of the Company. The Members agree to make additional
Capital Contributions from time to time as appropriate in respect of reasonable
administrative expenses of the Company (as determined by the Managing Member),
including without limitation, outside legal counsel of the Company. Except as a
result of the transfer of all or a portion of a Membership Interest that is
expressly permitted by this Agreement, no person other than the entities set
forth on Schedule B as of the date hereof shall become a Member of the Company.
4.03 Capital Accounts. The Company shall maintain a separate capital
account (the "Capital Account") for each Member that shall consist of (a) the
sum of (i) such Member's Capital Contributions paid to the Company as of any
given time, (ii) the portion of the Company's net income allocated to the Member
pursuant to Section 5.02, and (iii) the amount of any Company liabilities
assumed by such Member, less (b) the sum of (A) the portion of the Company's net
loss allocated to the Member pursuant to Section 5.02, (B) all distributions
made by the Company to the Member pursuant to Sections 4.06 and 7.03 and (C) the
amount of any Member liabilities assumed or paid by the Company by action of the
Members.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Treasury Regulations under Section 704(b) of the Code, and to the extent not
inconsistent with the provisions of this Agreement, shall be interpreted and
applied in a manner consistent with such Treasury Regulations.
4.04 Return of Capital. Except upon the dissolution of the Company as
provided in Section 7.01 herein, no Member shall have the right to withdraw from
the Company or to demand or to receive the return of all or any part of its
Capital Account or its Capital Contributions to the Company.
4.05 No Interest on Capital Contribution. No Member shall be paid interest
on any of its Capital Contributions or on its Capital Account.
4.06 Distributions. Any distributions to the Members shall be made pro rata
in accordance with their respective Membership Interests. Distributions may be
made in cash or in-kind. Distributions of cash received by the Company from the
disposition of any securities shall be made by the Company within thirty (30)
days of the date such cash is received by the Company. The Managing Member may
reserve reasonable amounts for anticipated expenses or contingent liabilities of
the Company.
ARTICLE V
Allocations
5.01 Calculation of Profits and Losses. The profits and losses of the
Company shall be determined for each fiscal year in accordance with U.S.
generally accepted accounting principles.
5.02 Allocation of Profits and Losses. (a) Except as otherwise set forth in
this Section 5.02 for Capital Account purposes, all items of income, gain, loss
and deduction shall be allocated among the Members pro rata in accordance with
their respective Membership Interests.
(b) For federal, state and local income tax purposes, items of
income, gain, loss, deduction and credit shall be allocated to the Members in
accordance with the allocations of the corresponding items for Capital Account
purposes under this Section 5.02, except that items with respect to which there
is a difference between tax and book basis will be allocated in accordance with
Section 704(c) of the Code, the Treasury Regulations thereunder, and Treasury
Regulations Section 1.704-1(b)(4)(i).
(c) Notwithstanding any provision set forth in this Section, no item of
deduction or loss shall be allocated to a Member to the extent the allocation
would cause a negative balance in such Member's Capital Account (after taking
into account the adjustments, allocations and distributions described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) that exceeds
the amount that such Member would be required to reimburse the Company pursuant
to this Agreement or under applicable law.
(d) In the event any Member unexpectedly receives any adjustments,
allocations, or distributions described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6), items of the Company's income and gain
shall be specially allocated to such Member in an amount and manner sufficient
to eliminate as quickly as possible any deficit balance in its Capital Account
in excess of that permitted under Section 5.02(c) created by such adjustments,
allocations or distributions. Any special allocations of items of income or gain
pursuant to this Section 5.02(d) shall be taken into account in computing
subsequent allocations pursuant to this Section 5.02 so that the net amount of
any items so allocated and all other items allocated to each Member pursuant to
this Section 5.02 shall, to the extent possible, be equal to the net amount that
would have been allocated to each such Member pursuant to the provisions of this
Section 5.02 if such special allocations had not occurred.
(e) Nonrecourse deductions as defined in Treasury Regulations Section
1.704-2(b) shall be allocated among the Members in accordance with their
respective Membership Interests.
ARTICLE VI
SUPERMAJORITY APPROVALS
6.01 Matters Requiring Member Approval. Without the prior written consent
of each of (i) TCW/Crescent Mezzanine Trust III and TCW/Crescent Mezzanine
Partners III, L.P. (collectively, "TCW") (so long as TCW and those of its
Permitted Transferees (as defined in the Members' Agreement) that are controlled
by TCW) hold at least fifteen percent (15%) of the Membership Interests and (ii)
Green Equity Investors III, L.P. and Green Equity Investors Side III, L.P.
(collectively, "LGP") (so long as LGP and those of its Permitted Transferees
that are controlled by LGP) hold at least fifteen percent (15%) of the
Membership Interests, the Managing Member agrees not to cause the Company to,
and the Company shall not:
(i) authorize or issue any additional Membership Interests, provided that
the Company may authorize and issue additional Membership Interests to the TPG
Members without any such consent solely to incentivize the management and
directors of MEMC or other persons providing consulting or other services to
MEMC (excluding in each case any TPG deal professionals or any TPG affiliate (as
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), so long as such additional Membership Interests constitute
less than 10% of the aggregate Membership Interests on the date hereof;
(ii) engage in a merger (other than any merger with MEMC or any of its
subsidiaries), consolidation, statutory share exchange or other business
combination or sale of all or substantially all of the assets of the Company or
any similar transaction in any one transaction or series of related
transactions; provided that TCW and LGP hereby agree to consent to any merger or
other transaction in which TPG exercises its "drag-along rights" in accordance
with Section 2.04(a) of the Members' Agreement (as defined below);
(iii) engage in a liquidation, bankruptcy, dissolution, recapitalization,
reorganization, assignment to creditors or any similar transaction; provided
that the Company may convert any shares of preferred stock of MEMC to shares of
common stock of MEMC without any such consent;
(iv) make any amendment to this Agreement that adversely affects the
Members' economic interest in the Company;
(v) incur any amount of indebtedness for money borrowed in excess of an
aggregate amount of $5 million (other than any indebtedness incurred in
connection with any restructuring or similar transaction involving the Senior
Notes, the Italian Notes or the Revolving Credit Facility (in each case as
defined under the Intercreditor Agreement, dated as of the date hereof, by and
among TPG Wafer Credit Partners, L.L.C. and certain other parties named
therein)); or
(vi) enter into an agreement or contract to do any of the foregoing.
ARTICLE VII
DISSOLUTION AND TERMINATION OF THE COMPANY
7.01 Events Causing Termination. The Company shall be dissolved and its
affairs shall be wound up upon the first occurrence of either of the following:
(i) termination hereof by the Members holding a majority of the Membership
Interests;
(ii) the occurrence of any of the events set forth in Section 18-801(a)(4)
of the Act that affects the Members and thereby results in the dissolution of
the Company (unless the Company is continued as provided in 18-801(a)(4)).
7.02. Winding Up. Upon dissolution of the Company, the Members shall
proceed diligently to wind up the affairs of the Company and distribute its
assets.
7.03 Liquidation and Termination. Upon dissolution of the Company, as
expeditiously as is reasonable, the Company shall pay its liabilities and make
distributions in the following manner and order:
(i) to creditors, including Members who are creditors, to the extent
otherwise permitted by law, in satisfaction of liabilities of the Company
(whether by payment or by establishment of reserves); and
(ii) to the Members in accordance with their Membership Interests.
At such time as the distributions provided for in (i) and (ii) above have
been made, the Company shall terminate.
7.04 Accounting on Liquidation. Upon liquidation, a proper accounting shall
be made by the Company's accountants of the Company's assets, liabilities and
results of operations through the last day of the month in which the Company is
terminated.
7.05 Merger with MEMC. In the event of a merger, statutory share exchange
or other business combination of the Company with MEMC or any of its
subsidiaries, (i) each of the Members shall execute a shareholders' agreement
among the Members with terms substantially identical to those included in the
Members' Agreement, provided that such shareholders' agreement shall terminate
at such time as TPG has sold substantially all of its shares in MEMC (or, if
different, the surviving entity of the merger), (ii) the Company shall
distribute any securities issued to the Company pursuant to such merger to the
Members pro rata in accordance with their respective Membership Interests, and
(iii) the Company shall use its best efforts to cause any registration rights
held by the Company in respect of any securities of MEMC (or, if different, the
surviving entity of the merger) distributed by the Company to be assigned to the
Members pro rata in accordance with their respective Membership Interests.
ARTICLE VIII
COMPANY EXPENSES, BOOKS AND RECORDS
8.01 Operating Expenses. The Company shall pay all current expenses,
including administrative expenses and fees, before any distributions may be made
to the Members. Appropriate reserves may be determined and charged to the
Members (in accordance with U.S. generally accepted accounting principles) for
contingent liabilities, if any, as of the date any such contingent liability
becomes known to the Members.
8.02 Fiscal Year and Method of Accounting. The fiscal year of the Company
shall begin on January 1 of each year (except for the first fiscal year of the
Company which shall begin on the date of this Agreement) and end on the
following December 31 (except for the last fiscal year of the Company which
shall end on the date on which the Company is terminated). The Company shall
select the appropriate method of accounting.
8.03 Records. The books and records of the Company shall be maintained at
the principal office and place of business of the Company.
8.04 Financial Statements and Reports. The Managing Member shall oversee
the accounting, tax and record keeping matters of the Company.
8.05 Tax Matters Member; Tax Election. The Managing Member shall appoint
the Tax Matters Member. The Tax Matters Member shall promptly advise the other
members of all audits or other actions by the Internal Revenue Service with
respect to the Company and shall furnish to the Members a copy of every notice
or other communication received by the Tax Matters Member from the Internal
Revenue Service with respect to the Company. The Tax Matters Member shall not
take any action in connection with a tax audit, or make any tax election,
without the consent of the Managing Member. Any direct or indirect cost incurred
by the Tax Matters Member, acting in its capacity as such, shall be deemed costs
and expenses of the Company, and the Company shall reimburse the Tax Matters
Member for such amounts. The Company may elect to be treated as a corporation
for U.S. federal income tax purposes (or state or local tax purposes), effective
as of any date, and may take any other action as may be necessary or incidental
to such election.
ARTICLE IX
LIABILITY AND INDEMNIFICATION
9.01 Liability.
(a) Liability to Company. No Member or officer of the Company, or any
employee, agent, limited partner or general partner of a Member, shall in such
capacity be liable, responsible or accountable in damages or otherwise to the
Company or the other Members by reason of acts, omissions or errors in judgment,
except for acts, omissions or errors in judgment that are found by a court of
competent jurisdiction to be the result of such person's gross negligence,
willful misconduct or bad faith. Notwithstanding any of the foregoing to the
contrary, the provisions of this Section 9.01 shall not be construed so as to
relieve (or attempt to relieve) a person of any liability, to the extent (but
only to the extent) that such liability may not be waived, modified or limited
under applicable law, but shall be construed so as to effectuate the provisions
of this Section 9.01 to the fullest extent permitted by law.
(b) No Personal Liability of Members, Manager, Etc. Members shall have the
same limitation of personal liability as is extended to stockholders of a
private corporation for profit incorporated under the Delaware General
Corporation Law (the "DGCL"). The rights accruing to a Member under this Section
9.01 shall not exclude any other right to which such Member may be lawfully
entitled nor shall anything herein contained restrict the right of the Company
to indemnify or reimburse a Member in any appropriate situation even though not
specifically provided herein.
(c) Liability to Third Parties. No Member or officer of the Company, or any
employee, agent, limited partner or general partner of the Managing Member in
his or her capacity as such shall be liable under a judgment, decree, or order
of a court, or in any other manner, for any debt, obligation, or liability of
the Company.
9.02 Indemnification. To the fullest extent permitted by law, the Company
shall indemnify, defend and hold harmless the Managing Member and officers of
the Company, and any employee, director, limited partner, general partner member
or agent of such Managing Member (each, an "Indemnified Person") from and
against any loss, liability, damages, cost or expense (including legal fees and
expenses and any amounts paid in settlement) resulting from a claim, demand,
lawsuit, action or proceeding relating to such Indemnified Person's actions or
omissions or such Indemnified Person's status or capacity as Managing Member or
otherwise concerning business or activities undertaken by or on behalf of the
Company; provided, that the acts or omissions of such Indemnified Person are not
found by a court of competent jurisdiction upon entry of final judgment to
constitute gross negligence, willful misconduct or bad faith. Expenses,
including legal fees, incurred by an Indemnified Person and relating to any
claim, demand, lawsuit, action or proceeding for which indemnification is sought
under this indemnification provision may be paid in advance by the Company;
provided, however, that the Indemnified Person shall reimburse the Company for
such expenses, with interest, if it is ultimately determined that such
Indemnified Person is not entitled to indemnification hereunder. All rights to
indemnification provided herein shall survive the dissolution of the Company and
the death, withdrawal, retirement, removal, incompetence or insolvency of any
Indemnified Person; provided that a claim for indemnification hereunder is made
by or on behalf of the Indemnified Person prior to the time distribution in
liquidation of the assets of the Company is made pursuant to Section 7.03
hereof.
ARTICLE X
MEMBER REPRESENTATIONS
10.01 Member Representations. Each Member hereby represents and warrants to
the Company that:
(i) If the Member is a corporation, partnership, limited liability company,
trust, estate or other entity, it is empowered, authorized and qualified to
become a Member subject to the terms and conditions of this Agreement, and the
person signing this Agreement on behalf of the Member has been duly authorized
by the Member to do so. If the Member is an individual, the Member is of legal
age to execute this Agreement and is legally competent to do so.
(ii) The Member is acquiring Membership Interests for the Member's own
account as principal for investment and not with a view to the distribution or
sale thereof.
(iii) The Member has such knowledge and experience in financial and
business matters that the Member is and will be capable of evaluating the merits
and risks of the investment in the Company. The Member has been given the
opportunity to ask questions of, and receive answers from, the Managing Member
and the Company concerning the terms and conditions of, and other matters
pertaining to, this investment, and has had access to such financial and other
information concerning the Company as it has considered necessary to make a
decision to invest in the Company and has availed itself of this opportunity to
the full extent desired.
(iv) The Member has no need for liquidity in this investment, has the
ability to bear the economic risk of this investment, and at the present time
and in the foreseeable future can afford a complete loss of this investment.
(v) The Member is an "accredited investor" within the meaning of Regulation
D promulgated under the Securities Act.
(vi) If the Member is a corporation, partnership, limited liability
company, trust or other entity, it was not formed or recapitalized for the
specific purpose of acquiring the Membership Interests (or, if it was so formed
or recapitalized, such Member has informed the Company of, and the Company has
agreed to, such fact).
(vii) This Agreement has been duly authorized, executed and delivered by
the Member and, upon due authorization, execution and delivery by the Managing
Member, will constitute the valid and legally binding agreement of the Member
enforceable in accordance with its terms against the Member, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other laws of general application relating
to or affecting the enforcement of creditors' rights and remedies, as from time
to time in effect, (ii) application of equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and (iii) considerations of public policy or the effect of applicable law
relating to fiduciary duties.
(viii) The Member acknowledges that neither the Company, the Managing
Member nor any Affiliate thereof has rendered or will render any investment
advice or securities valuation advice to the Member, and that the Member is
neither subscribing for nor acquiring any interest in the Company in reliance
upon, or with the expectation of, any such advice.
(ix) No representations or warranties have been made to the Member with
respect to the investment in the Membership Interests or the Company other than
the representations set forth herein, and the Member has not relied upon any
representation or warranty not provided herein or therein in making this
subscription.
(x) Either (i) none of the funds that the Member is using or will use to
fund its purchase are assets of an employee benefit plan as defined in Section
3(3) of ERISA, subject to Title I of ERISA, or a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code"), or an
entity whose underlying assets include plan assets for purposes of ERISA by
reason of a plan's investment in the entity (any such plan under ERISA or the
Code or any such entity collectively referred to as a "Plan") or (ii)(x) some or
all of the funds that the Member is using or will use to fund its purchase are
assets of one or more Plans and (y) assuming that the Company is not a "party in
interest" (within the meaning of Section 3(14) of ERISA) or a "disqualified
person" (within the meaning of Section 4975 of the Code) with respect to any
Plan other than those Plans previously identified by the Company to the Member
in writing, the purchase and holding of the Membership Interests by the Member
does not and will not constitute or result in a non-exempt "prohibited
transaction" within the meaning of Section 406 of ERISA or Section 4975(c) of
the Code.
(xi) If the Member is not a United States person, the Member has heretofore
notified the Company in writing of its status as such a person. "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, an estate the income of
which is subject to United States federal income taxation regardless of its
source, or any trust if (i) a U.S. court is able to exercise primary supervision
over the trust's administration and (ii) one or more United States persons have
the authority to control all of the trust's substantial decisions.
(xii) The execution, delivery and performance of this Agreement by the
Member does not and will not result in a breach of any of the terms, conditions
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, credit agreement, note or other evidence of indebtedness, or any lease
or other agreement, or any license, permit, franchise or certificate, to which
the Member is a party or by which it is bound or to which any of its properties
are subject, or require any authorization or approval under or pursuant to any
of the foregoing, violate the organizational documents of the Member, or violate
in any material respect any statute, regulation, law, order, writ, injunction or
decree to which the Member is subject.
(xiii) The Member acknowledges that the Company has relied and will rely
upon the representations and warranties of the Member set forth in this
Agreement and that all such representations and warranties shall survive the
date of signing of this Agreement.
10.02 Investor Awareness. The Member acknowledges that it is aware that:
(i) No federal or state agency has passed upon the Membership Interests or
made any finding or determination as to the fairness of this investment. Neither
this Agreement nor any other document relating to the Membership Interests has
been filed with the Securities and Exchange Commission or with any securities
administrator under state securities laws.
(ii) There are substantial risks incident to the purchase of Membership
Interests.
(iii) There are substantial restrictions on the transferability of the
Membership Interests under this Agreement and under applicable law; there is no
established market for the Membership Interests and no public market for the
Membership Interests is likely to develop; the Membership Interests will not be,
and investors in the Company have no rights to require that the Membership
Interests be, registered under the 1933 Act or the securities laws of the
various states and therefore cannot be resold, pledged, assigned or otherwise
disposed of unless subsequently registered or unless an exemption from such
registration is available; the Member may have to hold the Membership Interests
and bear the economic risk of this investment indefinitely and it may not be
possible for the Member to liquidate its investment in the Company.
(iv) The Company will not be registered as an investment company under the
1940 Act and none of the Managing Member nor the Company will be registered as
an investment advisor under the Investment Advisors Act of 1940, as amended.
(v) With respect to the tax and other legal consequences of an investment
in the Company, the Member is relying solely upon the advice of its own tax and
legal advisors.
ARTICLE XI
GENERAL PROVISIONS
11.01 Amendments to this Agreement. The terms and provisions of this
Agreement may be modified or amended at any time and from time to time by the
written consent of Members holding at least 85% of the Membership Interests.
11.02 Entire Agreement. This Agreement supersedes all prior agreements with
respect to the subject matter hereof. This instrument, together with the
Members' Agreement, dated as of the date hereof by and among the Company, the
Managing Member and the Members (the "Members' Agreement"), contain the entire
agreement with respect to such subject matter. This instrument may not be
amended, supplemented or discharged, and no provision hereof may be modified or
waived, except expressly by an instrument in writing signed by the Members. No
waiver of any provision hereof shall be deemed a waiver of any other provision
nor shall any such waiver by any party be deemed a continuing waiver of any
matter. No amendment, modification, supplement, discharge, or waiver hereof or
hereunder shall require the consent of any person not a party to this Agreement.
11.03 Notices. Unless otherwise specified herein, all notices, consents,
approvals, reports, designations, requests, waivers, elections and other
communications (collectively, "Notices") authorized or required to be given
pursuant to this Agreement shall be given in writing, shall be either personally
delivered to the Member to whom it is given or delivered by an established
delivery service by which receipts are given or mailed by first-class mail,
postage prepaid, or sent by facsimile, addressed to the Member at the following
addresses (or at such other address for a Member as shall be specified by like
notice):
if to any TPG Entity or TPG Wafer Management, to such Person:
c/o Texas Pacific Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with a copy (which shall not constitute notice) to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
if to TCW, to:
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Partners III, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
if to LGP, to:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
All notices, other communications or documents shall be deemed to have been
duly given: (i) at the time delivered by hand, if personally delivered; (ii)
when receipt is acknowledged in writing by addressee, if by facsimile
transmission; (iii) five (5) business days after having been deposited in the
mail, postage prepaid, if mailed by first class mail; and (iv) on the first
business day with respect to which a reputable air courier guarantees delivery;
provided, however, that notices of a change of address shall be effective only
upon receipt.
11.04 GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
11.05. Future Actions. The Company and the Members shall execute and
deliver all such future instruments and take such other and further action as
may be reasonably necessary or appropriate to carry out the provisions of this
Agreement.
11.06 Authorization of Officers. Each of the officers of the Company has
been authorized to execute, deliver, and thereafter amend, as they deem
necessary, on behalf of the Company that certain Purchase Agreement dated as of
September 30, 2001 among, inter alia, E.ON AG, E.ON North America, Inc., E.ON
International Finance B.V., ▇▇▇▇▇▇▇ Corporation, VEBA Zweite
Verwaltungsgesellschaft mbH, T3 Partners II, L.P. and TPG Wafer Holdings, LLC,
that certain Restructuring Agreement dated as of the date hereof between TPG
Wafer Holdings, LLC and MEMC (the "Restructuring Agreement"), that certain
Registration Rights Agreement (included as Exhibit E to the Restructuring
Agreement and with terms and conditions substantially in the form of Exhibit E)
among TPG Wafer Holdings, LLC, MEMC and the Guarantors specified therein, and
that certain Agreement and Plan of Merger among TPG Wafer Holdings, LLC and MEMC
(included as Exhibit G to the Restructuring Agreement and with terms and
conditions substantially in the form of Exhibit G), each in such form and with
such changes as such officer shall determine and any and all other agreements
and documents contemplated thereby or necessary or desirable in connection
therewith in each case as such officer shall determine.
11.07 Limitation on Rights of Others. None of the provisions of this
Agreement, including Section 4.02, shall be for the benefit of or enforceable by
any creditor of the Company. Furthermore, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement. Nothing in
this Agreement shall be deemed to create any legal or equitable right, remedy or
claim in any person not a party hereto (other than an Indemnified Person).
11.08 Successors and Assigns. No Member may assign or transfer any of its
rights or obligations hereunder without the prior written consent of the
Managing Member (which may be granted or withheld in the Managing Member' sole
discretion), unless (i) such Member is a party to the Members' Agreement and
such assignment or transfer complies with the provisions of Article II of the
Members' Agreement or (ii) if such Member is not a party to the Members'
Agreement, the Managing Member has consented in writing thereto. Any purported
assignment or transfer in violation of the foregoing sentence shall be void ab
initio. This Agreement shall be binding upon and inure to the benefit of the
Members and their respective successors and permitted assigns.
11.09 Confidentiality. Except as required by applicable law or any legal or
regulatory process, each Member shall maintain the confidentiality of (i)
Non-Public Information and (ii) any information subject to a confidentiality
agreement binding upon the Managing Member and made known to the Members;
provided that each Member (including the Managing Member) may disclose
Non-Public Information to (i) its affiliates, officers, employees, agents and
professional consultants upon notification to such affiliate, officer, employee,
agent or consultant that such disclosure is made in confidence and shall be kept
in confidence, (ii) persons having or purporting to have regulatory authority
over such Members or its affiliates, provided that such persons are advised that
the Non-Public Information is confidential, or (iii) to a potential transferee
of all or part of such Member's Membership Interest, if such potential
transferee agrees to be bound by a confidentiality agreement substantially
identical to the provisions of this section 11.09; and provided, further, that
each Member may disclose Non-Public Information it is required to disclose
pursuant to legal process, in which event each Member agrees to provide the
Company with prompt notice of such process so that it may seek an appropriate
protective order or other appropriate remedy. As used in this section 11.09,
"Non-Public Information" means information regarding the Company (including
information regarding any person in which the Company holds, or contemplates
acquiring, any investment) and the Managing Member received by such Member
pursuant to this Agreement, but does not include information that (i) was
publicly known at the time such Member receives such information pursuant to
this Agreement, (ii) subsequently becomes publicly known through no act or
omission by such Member, or (iii) is communicated to such Member by a third
party free of any obligation of confidence known to such Member.
11.10 Arbitration. Any controversy, claim or dispute of whatever nature
arising between any Managing Member and any non-Managing Member arising out of
or relating to this Agreement or the construction, interpretation, performance,
breach, termination, enforceability or validity of this Agreement or the
arbitration provisions contained in this Agreement, whether such claim existed
prior to or arises on or after the date of this Agreement, including the
determination of the scope of this Agreement to arbitrate, shall be determined
by arbitration in New York City by a panel of three arbitrators in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
(the "AAA"). In the event the parties cannot agree on the selection of the
arbitrators from the one or more lists submitted by the AAA within thirty (30)
days after the AAA transmits to the parties its list of potential arbitrators,
selection of the arbitrator shall be made by the AAA from the remaining nominees
in accordance with the parties' mutual order of preference, or by random
selection in the absence of a mutual order of preference. The arbitrators shall
base their award on applicable law and judicial precedent, shall include in such
award the findings of fact and conclusions of law upon which the award is based
and shall not grant any remedy or relief that a court could not grant under
applicable law. Judgment on the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
If either party (i) fails to proceed with arbitration as provided herein,
(ii) unsuccessfully seeks to stay such arbitration, (iii) fails to comply with
any arbitration award, or (iv) is unsuccessful in vacating or modifying the
award pursuant to a petition or application for judicial review, each opposing
party shall be entitled to be awarded costs, including reasonable attorneys'
fees, paid or incurred by each other party in successfully compelling such
arbitration or defending against the attempt to stay, vacate or modify such
arbitration award and/or successfully defending or enforcing the award.
IN WITNESS WHEREOF, the undersigned Members have executed this Limited
Liability Company Operating Agreement as of the day and year first above
written.
TPG WAFER PARTNERS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
TCW/CRESCENT MEZZANINE PARTNERS III, L.P. AND
TCW/CRESCENT MEZZANINE TRUST III
By: TCW/Crescent Mezzanine Management III, L.L.C.
Its Investment Manager
By: TCW Asset Management Company
Its Sub-Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
GREEN EQUITY INVESTORS SIDE III, L.P.
by: GEI Capital III, LLC
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
TPG WAFER MANAGEMENT, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President