EXHIBIT 57
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PURCHASE AGREEMENT
among
E.ON AG,
E.ON NORTH AMERICA, INC.,
E.ON INTERNATIONAL FINANCE B.V.,
▇▇▇▇▇▇▇ CORPORATION,
VEBA ZWEITE VERWALTUNGSGESELLSCHAFT MBH,
TPG PARTNERS III, L.P.,
T3 PARTNERS, L.P.,
T3 PARTNERS II, L.P.,
and
TPG WAFER HOLDINGS LLC
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Dated as of September 30, 2001
TABLE OF CONTENTS
ARTICLE I Definitions......................................................2
1.01. Definitions......................................................2
ARTICLE II Purchase and Sale of Shares and Notes............................9
2.01. Purchase and Sale of Notes.......................................9
2.02. Purchase and Sale of Shares......................................9
2.03. The Closing.....................................................10
2.04. Closing Deliveries of Sellers...................................10
2.05. Closing Deliveries of Buyer.....................................10
2.06. Performance Payment.............................................10
ARTICLE III Representations, Warranties and Covenants of Sellers............12
3.01. Organization and Good Standing..................................12
3.02. Due Authorization; Enforceability...............................12
3.03. Non-Contravention...............................................13
3.04. Regulatory Approvals............................................13
3.05. Transactions with Affiliates....................................13
3.06. Existing Loan Agreements........................................13
3.07. Broker Fees.....................................................14
3.08. Litigation; Decrees.............................................14
3.09. Absence of Payments.............................................14
ARTICLE IV Representations, Warranties and Covenants of the Shareholders...15
4.01. Title to Shares.................................................15
ARTICLE V Representations, Warranties and Covenants of TPG and Buyer......15
5.01. Organization and Good Standing..................................15
5.02. Due Authorization; Enforceability...............................15
5.03. Non-Contravention...............................................16
5.04. Investment Intent...............................................16
5.05. Accredited Investor; Investment Representations.................16
5.06. Regulatory Approvals............................................17
5.07. Loan Characterization...........................................17
5.08. Broker Fees.....................................................17
5.09. Sufficiency of Capital..........................................17
5.10. Litigation; Decrees.............................................18
ARTICLE VI Further Agreements and Assurances...............................18
6.01. Government Filings and Approvals................................18
6.02. Corporate Investigation by Buyer................................18
6.03. Confidentiality.................................................18
6.04. Recovery of Avoided Claims, Etc.................................19
6.05. Maintenance of Directors' and Officers' Insurance...............19
6.06. Revolving Credit Facility.......................................20
TABLE OF CONTENTS
(continued)
Page
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6.07. Acknowledgment of Taisil Lender Rights..........................20
6.08. No Solicitation.................................................20
6.09. Actions Prior to Closing........................................21
6.10. Available E.ON Credit Facilities................................21
6.11. Funding.........................................................22
6.12. Closing Payments................................................23
6.13. Termination of Funding..........................................23
6.14. Bankruptcy Filing, Etc..........................................24
6.15. Section 203 Acknowledgement.....................................25
6.16. Adequacy and Sufficiency of Collateral..........................25
6.17. Post-Closing Revolving Credit Facility Loans....................25
6.18. Bankruptcy Filings Not Permitted................................26
6.19. PBGC............................................................26
ARTICLE VII Conditions to Buyer's Obligations...............................26
7.01. Accuracy of Representations and Warranties......................26
7.02. Performance of Covenants........................................27
7.03. Governmental Approvals..........................................27
7.04. No Injunctions or Restraints....................................27
7.05. Notes, Etc......................................................27
7.06. Share Certificates..............................................28
7.07. Registration Rights.............................................28
7.08. Resignations As Agents..........................................28
7.09. Opinions of Counsel.............................................28
7.10. Resignations....................................................28
7.11. Company Restructuring...........................................28
7.12. Taisil..........................................................29
7.13. Company Pension Plan............................................29
7.14. Loan Agreement Release..........................................29
7.15. General Release.................................................29
7.16. Termination Agreement...........................................29
7.17. Financial Tests.................................................29
7.18. Bankruptcy Authorization........................................29
7.19. Japanese Loans..................................................29
7.20. Minimum Funding.................................................30
ARTICLE VIII Conditions to Sellers' Obligations..............................30
8.01. Accuracy of Representations and Warranties......................30
8.02. Performance of Covenants........................................30
8.03. Governmental Approvals..........................................30
8.04. No Injunctions or Restraints....................................30
ii
TABLE OF CONTENTS
(continued)
Page
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8.05. Payment of Purchase Price.......................................31
8.06. Receipt of Assignment and Acceptances...........................31
8.07. Loan Agreement Release..........................................31
8.08. General Release.................................................31
8.09. Termination Agreement...........................................31
8.10. Opinion of Counsel..............................................31
8.11. Revolving Credit Facility.......................................31
8.12. Company Pension Plan............................................31
8.13. Bankruptcy Authorization........................................32
ARTICLE IX Additional Covenants............................................32
9.01. Notice..........................................................32
9.02. Further Assurances..............................................32
ARTICLE X Termination of Agreement........................................32
10.01. Termination.....................................................32
ARTICLE XI Indemnification.................................................35
11.01. Indemnification by Sellers......................................35
11.02. Indemnification by TPG and Buyer................................35
11.03. Third-Party Claims..............................................35
ARTICLE XII Miscellaneous...................................................37
12.01. Survival........................................................37
12.02. Entire Agreement; Amendment.....................................37
12.03. Successors and Assigns..........................................37
12.04. Counterparts....................................................37
12.05. Headings........................................................37
12.06. Certain Tax Matters.............................................38
12.07. Waiver; Requirement of Writing..................................38
12.08. Expenses........................................................38
12.09. Sellers' Representative.........................................38
12.10. TPG Representative..............................................39
12.11. Notices.........................................................40
12.12. Governing Law...................................................43
12.13. Public Announcements............................................43
12.14. No Third-Party Beneficiaries....................................44
12.15. Construction; Interpretation....................................44
12.16. No Effect on the Company........................................44
iii
Annex I Revolving Credit Facility Term Sheet
Annex II Description of Lien and Mortgage Referred to in Section 6.19
Exhibit A Share Ownership
Exhibit B Loan Agreements
Exhibit C Form of Resignation
Exhibit D-1 Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit D-2 Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit D-3 Form of Opinion of A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Exhibit D-4 Form of Opinion of ▇▇▇▇ ▇▇▇▇▇
Exhibit E Form of Opinion of ▇▇▇ & Li
Exhibit F Form of Opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
Exhibit G Form of Loan Agreement Release
Exhibit H Form of General Release
Exhibit I Form of Termination Agreement
Exhibit J Form of Opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇
Exhibit K Form of Opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
iv
PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of September 30, 2001, is by and
among TPG Partners III, L.P., T3 Partners, L.P. and T3 Partners II, L.P.,
each a Delaware limited partnership (collectively, "TPG") and TPG Wafer Holdings
LLC, a Delaware limited liability company ("Buyer"), on the one hand, and E.ON
AG, a German corporation, E.ON International Finance B.V., a Dutch corporation,
▇▇▇▇▇▇▇ Corporation, a Delaware corporation, VEBA Zweite Verwaltungsgesellschaft
mbH, a German corporation and E.ON North America, Inc., a Delaware corporation,
on the other hand (collectively, the "Sellers").
W I T N E S S E T H :
WHEREAS, the Shareholders own in the aggregate 49,959,970 shares of
common stock, $.01 par value (the "Shares"), of MEMC Electronic Materials, Inc.,
a Delaware corporation (the "Company") as set forth on Exhibit A hereto;
WHEREAS, the Noteholders hold Notes in respect of the indebtedness of
the Company and/or its Subsidiaries in the aggregate principal amount on the
date hereof as set forth on Exhibit B hereto;
WHEREAS, Buyer has been established by TPG for purposes of engaging in
the transactions contemplated hereby;
WHEREAS, the Noteholders desire to sell to Buyer and Buyer desires to
purchase from the Noteholders, all of the Notes and all of the Noteholders'
rights under the related Loan Agreements and the Shareholders desire to sell to
Buyer, and Buyer desires to purchase from the Shareholders, all of the Shares,
all of the foregoing upon the terms and conditions hereinafter set forth; and
WHEREAS, the transactions contemplated hereby have been approved for
purposes of Section 203 of the Delaware General Corporation Law by a special
committee of the Board of Directors of the Company, pursuant to delegated
authority;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter contained, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1
ARTICLE I
Definitions
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1.01. Definitions. The following terms shall have the respective
meanings set forth below throughout this Agreement:
"Action" means any legal, administrative, arbitral, mediation or other
alternative dispute resolution procedure or other action, proceeding, claim,
inquiry or investigation before any court, arbitrator or other Governmental
Entity.
"Acquisition Proposal" has the meaning set forth in Section 6.08(a).
"Added Insurance Expense" has the meaning set forth in Section 6.05.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified; (ii) any Person that holds a Material
Interest (as defined below in this definition) in such specified Person; (iii)
each Person that serves as a director, officer, partner, executor, or trustee of
such specified Person (or in a similar capacity); (iv) any Person in which such
specified Person holds a Material Interest; (v) any Person with respect to which
such specified Person serves as a general partner or a trustee (or in a similar
capacity); and (vi) any Affiliate of any individual described in clause (ii) or
(iii).
For purposes of this definition, (a) "control" of a Person will mean
the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise; and (b) "Material Interest" means direct
or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of voting securities or other voting interests
representing at least 10% of the outstanding voting power of a Person or equity
securities or other equity interests representing at least 10% of the
outstanding equity securities or equity interests in a Person.
Notwithstanding the foregoing, for purposes of this Agreement, the
MEMC Affiliate Group shall not be deemed Affiliates of either TPG, Buyer or any
of the Sellers, and none of TPG, Buyer or any of the Sellers shall be deemed
Affiliates of the MEMC Affiliate Group.
"Agreed Upon Firm" has the meaning set forth in Section 2.06(c).
"Agreement" means this Purchase Agreement, as the same may be amended,
modified or supplemented from time to time in accordance with its terms.
2
"Assignment and Acceptance" has the meaning set forth in Section 7.05.
"Available E.ON Credit Facilities" shall mean the Second Amended and
Restated Revolving Credit Agreement dated as of September 4, 2001 referred to on
item 11 of Schedule 3.05, as amended from time to time (the "Secured Loan
Agreement"), the Amended and Restated Overnight Loan Agreement dated as of
December 31, 2000 referred to in item 15 of Schedule 3.05 and any new Loan
Agreement entered into after the date hereof with the consent of the Buyer and
TPG (such consent not to be unreasonably withheld) between the Company or a
subsidiary of the Company and a Noteholder.
"Average Backlog" for any Backlog Measurement Period shall be (a) the
sum of the Backlog for each of the five business days during the Backlog
Measurement Period, divided by (b) five (5).
"Backlog" means the sum total of wafers (as measured in millions of
square inches) which has been shipped in respect of bona fide sales to third
party customers from the first calendar day of the month and remaining shipments
which are expected to be made in respect of bona fide sales to third party
customers from the date backlog is computed to the last calendar day of the
month by the Company and its consolidated subsidiaries. Amounts expected to be
shipped shall be evidenced by third party customer orders including purchase
orders, purchase order releases pursuant to blanket purchase orders and / or
customer buy plans communicated by electronic data interchange communications,
e-mail messages or via telephone to an MEMC customer service representative or
salesperson. In all cases, Backlog will be computed without duplication and on a
basis consistent with the computation thereof as agreed by the parties.
"Backlog Measurement Period" shall mean each of the following: (a)
October 5, 2001 and the four business days immediately preceding October 5,
2001; (b) October 19, 2001 and the four business days immediately preceding
October 19, 2001 and (c) November 7, 2001 and the four business days immediately
preceding November 7, 2001.
"Bankruptcy Code" has the meaning set forth in Section 6.04.
"Buyer" has the meaning set forth in the preamble to this Agreement.
"Buyer's Affiliates" has the meaning set forth in Section 11.01.
"Buyer Pre-Closing Collateral" has the meaning set forth in Section
6.11(b).
3
"Buyer Pre-Closing Funded Amount" has the meaning set forth in Section
6.11(b).
"Closing" has the meaning set forth in Section 2.03.
"Closing Date" has the meaning set forth in Section 2.03.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the first recital to this
Agreement.
"Company Pension Plan" means the MEMC Pension Plan.
"Company Restructuring" has the meaning set forth in Section 7.11.
"Designated Directors" means ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇'▇▇▇▇▇.
"Disagreement Notice" has the meaning set forth in Section 2.06(c).
"EBITDA" means for any period, the Company's consolidated net
income/(loss) for such period, plus or minus, as applicable, to the extent
deducted or added in computing consolidated net income/(loss), without
duplication, minority interest, equity in income/(loss) of joint ventures,
provision/(benefit) for income taxes, interest expense, interest income,
depreciation, amortization of goodwill and other intangibles, gains or losses
resulting from the transactions contemplated by this Agreement or the Company
Restructuring, gains or losses from foreign currency translation or
transactions, extraordinary gains and losses, gains or losses upon sale or
disposition of assets or capital stock, and other non-recurring items,
determined in accordance with generally accepted accounting principles on a
basis consistent with the Company's audited financial statements for the
calendar year ended December 31, 2000. For the avoidance of doubt, in computing
EBITDA (a) royalty income and non-operating income not otherwise described in
this definition which has been included in computing consolidated income/loss
shall not be deducted and (b) non-operating expenses not otherwise described in
this definition which have been included in computing consolidated income/loss
shall not be added.
"Entity" has the meaning set forth in Section 6.08(a).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
4
"Fiscal 2000" means the period beginning on January 1, 2000 and ending
December 31, 2000.
"Fiscal 2002" means the period beginning on January 1, 2002 and ending
December 31, 2002.
"Funding Needs" shall mean those funds that (i) the Company requires
imminently during the period on or prior to December 31, 2001 for the Company's
operating costs and expenses (including without limitation interest owing under
the Loan Agreements) and other cash needs during the period on or prior to
December 31, 2001 and which the Company demonstrates are so required to the
reasonable satisfaction of E.ON AG (with respect to the Available E.ON Credit
Facilities) and the Shareholders (with respect to capital contributions) by
reasonable back-up detail furnished to E.ON AG or the Shareholders, as the case
may be and (ii) are not available from cash of the Company and/or its
Subsidiaries (excluding cash held by its non-U.S. Subsidiaries, which shall be
deemed not to be available for this purpose) are not permitted to be borrowed
under the Available E.ON Credit Facilities (in the case of capital
contributions) and are not available from other financing sources. Funding Needs
shall specifically exclude any funds which may be needed or utilized in respect
of or related in any way to (a) any payments by the Company and/or any of its
Affiliates to the Taisil Lenders, (b) any payments to be made, amounts to be set
aside or similar arrangements in connection with the Company's defined benefit
pension plan (other than normal contributions that are made in the ordinary
course of business and that are in amounts and are otherwise consistent with
legal requirements or past practices) or pursuant to arrangements with the PBGC,
(c) any obligations for fees, expenses or other amounts which may be owed to
TPG, Buyer or any of their Affiliates or in connection with the Company
Restructuring and (d) any payments by the Company and/or any of its Affiliates
to any lenders other than payments of interest and regularly scheduled principal
amounts (but specifically excluding from Funding Needs any other payments of
principal amounts, such as principal amounts owing by reason of defaults,
acceleration of amounts due or acceleration of required payment or maturity
dates).
"Funding Termination Event" shall mean any of the following: (i) the
filing of a bankruptcy petition by or against the Company; or (ii) the
termination of this Agreement; or (iii) the consummation of the Closing under
the Purchase Agreement.
"Governmental Entity" means any: (i) federal, state, local, foreign or
international government; (ii) court, arbitral or other tribunal or governmental
or quasi-governmental authority of any nature (including any governmental
agency, political subdivisions, instrumentalities, branch, department, official,
or entity); or (iii) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature pertaining to government.
5
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Indemnified Party" has the meaning set forth in Section 11.03.
"Indemnifying Party" has the meaning set forth in Section 11.03.
"Loan" means any arrangement pursuant to a Loan Agreement in which a
Noteholder has loaned money to the Company and/or one or more of its
Subsidiaries, and the Company and/or one or more of its Subsidiaries, as the
case may be, has agreed to repay such money, along with interest.
"Loan Agreement" means each of the agreements identified as such on
Exhibit B, and any loan agreement entered into between (a) the Company or a
Subsidiary of the Company and (b) any Noteholder during the Pre-Closing Period.
"Losses" has the meaning set forth in Section 11.01.
"MEMC Affiliate Group" means the Company, the Company's subsidiaries
and the Company's Affiliates controlled by the Company.
"Noteholder" means each of E.ON AG, E.ON International Finance B.V.,
E.ON North America, Inc. and ▇▇▇▇▇▇▇ Corporation.
"Note Closing Payment" has the meaning set forth in Section 2.01.
"Note Purchase" has the meaning set forth in Section 2.01.
"Note Purchase Price" has the meaning set forth in Section 2.01.
"Notes" means the promissory notes evidencing the Loans under the Loan
Agreements.
"Notification Date" has the meaning set forth in Section 6.13(b).
"Order" means any award, decision, stipulation, injunction, judgment,
order, ruling, subpoena, writ, decree or verdict entered, issued, made, or
rendered by any Governmental Entity.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performance Payment Amount" has the meaning set forth in Section
2.06(a).
6
"Performance Payment Date" means the date 10 days after the
Performance Payment Amount is determined to be final and binding in accordance
with Section 2.06(c).
"Performance Statement" has the meaning set forth in Section 2.06(c).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, business association or other entity,
including any Governmental Entity.
"Post-Closing Funding Needs" means those funds that the Company
requires for the Company's operating costs and expenses and other cash needs
following the Closing Date.
"Pre-Closing Period" means the period commencing as of the date of
this Agreement and ending on the Closing Date.
"Required Period" has the meaning set forth in Section 6.05.
"Required Policies" has the meaning set forth in Section 6.05.
"Revenues" shall mean monthly consolidated net sales of the Company
and its consolidated subsidiaries, calculated on a calendar basis, determined in
accordance with U.S. GAAP consistently applied, plus net sales of 300 millimeter
product (also referred to as 300 millimeter sales contra) for that same period
to the extent not otherwise included, determined in accordance with U.S. GAAP
consistently applied. Net sales shall be computed net of any discounts, returns
or allowances or other items as may be required by U.S. GAAP, consistently
applied.
"Revolving Credit Facility" has the meaning set forth in Section 6.06.
"Revolving Credit Lender" shall mean TPG Partners III, L.P. or one or
more other lenders which shall be reasonably acceptable (with respect to such
lender's financial condition and its ability to perform its obligations under
the Revolving Credit Facility) to the Sellers' Representative, such acceptance
to be confirmed in writing.
"Secured Loan Agreement" has the meaning set forth in this Section
1.01 under the definition of Available E.ON Credit Facilities.
"Securities Act" has the meaning set forth in Section 5.04.
"Sellers" has the meaning set forth in the preamble to this Agreement.
7
"Sellers' Affiliates" means the Affiliates of any Seller and any of
Sellers' or any of Sellers' Affiliates' respective directors, officers,
employees or agents, but the MEMC Affiliate Group shall not be deemed Sellers'
Affiliates.
"Sellers' Representative" has the meaning set forth in Section
12.09(a).
"Share Purchase" has the meaning set forth in Section 2.02.
"Share Purchase Price" has the meaning set forth in Section 2.02.
"Shareholder" means each of VEBA Zweite Verwaltungsgesellschaft mbH
and E.ON North America, Inc.
"Shares" has the meaning set forth in the first recital to this
Agreement.
"Subsidiary" means (i) any partnership of which the Company is a
general partner and (ii) any corporation or other form of entity with respect to
which the Company (or a Subsidiary thereof) owns a majority of the shares of
common stock or other voting interests, or has the power to vote or direct the
voting of sufficient securities to elect a majority of the board of directors or
similar governing body of such corporation or entity or otherwise controls (as
such term is defined in the definitions of Affiliate) such corporation or
entity.
"Taisil" means Taisil Electronic Materials Corporation, a corporation
organized under the laws of the Republic of China.
"Taisil Lenders" means ABN AMRO Bank N.V., Taipei Branch, Taiwan
Cooperative Bank and a sufficient number of other lenders of Taisil required to
waive or otherwise consent to the sale of the Shares for purposes of the Taisil
Lender Rights.
"Taisil Lender Rights" has the meaning set forth in Section 6.07.
"Taxes" means all federal, state, foreign or other governmental taxes,
including all income, profit, franchise, excise, property, use, intangibles,
sales, payroll, employment, withholding and other taxes, and including all
additions to taxes, fines and penalties imposed with respect to such amounts.
"Tax Return" means any federal, state, local or foreign return,
report, form, declaration, statement, document or other information required to
be filed for any period with any taxing authority with respect to Taxes.
"Third-Party Claim" has the meaning set forth in Section 11.03.
8
"TPG" means, collectively, the Delaware limited partnerships
identified as such in the preamble to this Agreement and, where appropriate,
each of them individually. Any obligation of TPG hereunder shall constitute the
joint and several obligation of the limited partnerships comprising TPG. Each
representation, warranty, covenant and agreement hereunder shall constitute a
representation, warranty, covenant and agreement of each of the limited
partnerships comprising TPG with respect to itself and the other limited
partnerships.
"TPG Representative" has the meaning set forth in Section 12.10.
"Transaction" has the meaning set forth in Section 2.03.
"Transaction Documents" means any certificate, schedule, agreement,
instrument of transfer or other document required to be delivered pursuant to
this Agreement or the transactions contemplated hereby.
"U.S. GAAP" means generally accepted accounting principles in the
United States.
ARTICLE II
Purchase and Sale of Shares and Notes
-------------------------------------
2.01. Purchase and Sale of Notes. Subject to all of the terms and
conditions of this Agreement, at the Closing each Noteholder shall sell the
Notes owned by it, together with all of such Noteholder's rights and interests
under the related Loan Agreements, to Buyer and Buyer shall purchase such Notes,
rights and interest from such Noteholder (the "Note Purchase") for an amount
equal to the sum of (x) one dollar ($1.00) and (y) the Performance Payment
Amount (as defined in Section 2.06(a)), if any, such that the aggregate purchase
price payable to the Noteholders is equal to the sum of (x) four dollars ($4.00)
(the "Note Closing Payment") and (y) the Performance Payment Amount (the "Note
Purchase Price").
2.02. Purchase and Sale of Shares. Subject to all of the terms and
conditions of this Agreement, at the Closing each Shareholder shall sell the
Shares owned by it to Buyer and Buyer shall purchase such Shares from such
Shareholder (the "Share Purchase") for an amount equal to one dollar ($1.00),
such that the aggregate purchase price payable to the Shareholders for their
Shares is equal to two dollars ($2.00) (the "Share Purchase Price").
9
2.03. The Closing. Subject to fulfillment of each of the terms and
conditions hereof, the closing (the "Closing") of the transactions contemplated
by this Agreement and the Transaction Documents (the "Transaction") will take
place at the offices of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ at 10:00 a.m. local time on October 29, 2001, or, if the conditions to
the Closing have not been satisfied by such date, as soon as practicable after
such conditions shall have been satisfied (such time and date of the Closing
being herein called the "Closing Date"). If requested by Buyer, the Closing may
be structured as comprising two separate steps, with the Note Purchase closing
first and the Share Purchase closing sometime thereafter, either on the same day
or on successive days.
2.04. Closing Deliveries of Sellers. At the Closing, (i) each
Noteholder will deliver or cause to be delivered to Buyer the Notes to be sold
by it duly endorsed in blank or with duly executed bond powers attached in
proper form for transfer, an Assignment and Acceptance (as defined in Section
7.05) relating to such Notes and the applicable Loan Agreements, and all other
documents required to be delivered by it at the Closing pursuant to this
Agreement; and (ii) each Shareholder will deliver or cause to be delivered to
Buyer certificates for the Shares to be sold by it duly endorsed in blank or
with duly executed stock powers attached in proper form for transfer, along with
all documents required to be delivered by it at the Closing pursuant to this
Agreement.
2.05. Closing Deliveries of Buyer. At the Closing, Buyer will deliver
or cause to be delivered (i) to the Noteholders, the Note Closing Payment, (ii)
to the Shareholders, the Share Purchase Price and (iii) to the Sellers, all
documents required to be delivered by Buyer at the Closing pursuant to this
Agreement.
2.06. Performance Payment. (a) As additional consideration to the
Noteholders, on the Performance Payment Date, Buyer will pay to the Noteholders
an aggregate amount equal to the following (such amounts to be in the
alternative and not cumulative) (the "Performance Payment Amount")
(i) $0, if the Company's EBITDA for Fiscal 2002 is less than $100
million; or
(ii) $30 million, if the Company's EBITDA for Fiscal 2002 equals or
exceeds $100 million, but is less than $150 million; or
(iii) $75 million, if the Company's EBITDA for Fiscal 2002 equals or
exceeds $150 million, but is less than $300 million; or
(iv) $150 million, if the Company's EBITDA for Fiscal 2002 equals or
exceeds $300 million.
10
(b) The Performance Payment Amount will be paid by Buyer on the
Performance Payment Date and allocated among the Notes as follows:
(i) an amount equal to the lesser of (A) the Performance Payment
Amount and (B) the aggregate outstanding principal amount and accrued but
unpaid interest as of the Closing Date under the Secured Loan Agreement
shall be allocated to E.ON AG and payable to an account designated by E.ON
AG (by wire transfer of immediately available funds); and
(ii) the remaining balance of the Performance Payment Amount, if any,
shall be allocated among the Noteholders pro-rata based on the aggregate
principal amounts and accrued and unpaid interest as of the Closing Date
owing to such Noteholder under the Loan Agreements (other than the Secured
Loan Agreement) to such accounts as are designated by such Noteholders (by
wire transfer of immediately available funds).
(c) On or before March 31, 2003, Buyer will deliver to the Noteholders
(i) a copy of the Company's financial statements for Fiscal 2002 as certified by
the Company's independent certified public accountants, and (ii) a statement
prepared by Buyer setting forth the amount of EBITDA of the Company for Fiscal
2002 and the amount, if any, of the Performance Payment Amount payable pursuant
to Section 2.06(a) with appropriate supporting calculations and supporting
documentation, including without limitation the amount of each item added to or
deducted from consolidated net income (loss) in calculating EBITDA (the
"Performance Statement"). Within 30 days after receipt by the Noteholders of
such Performance Statement from Buyer, the Noteholders may object to the
Performance Statement by so notifying Buyer in a written statement, setting
forth in reasonable detail the nature and basis for the dispute (a "Disagreement
Notice"). The Noteholders agree that absent manifest error, they will not be
entitled to challenge any item as being improperly accounted for under GAAP if
such item is derived from the audited Fiscal 2002 Financial Statements and the
accounting for such item is consistent with the Company's audited financial
statements for Fiscal 2000. If the Noteholders do not send a Disagreement Notice
within such 30-day period or if the Noteholders send a written notice that they
accept the calculation of the Performance Payment Amount, the Noteholders shall
be deemed to have accepted the determination of the EBITDA amounts and the
Performance Payment Amount set forth in the Performance Statement as final and
binding. If the Noteholders issue a Disagreement Notice, then during the 30-day
period following Buyer's receipt of the Disagreement Notice, Buyer and the
Noteholders shall attempt in good faith to resolve the disagreement with respect
to the Performance Statement, and during such 30-day period an independent
auditing firm selected by the Noteholders shall be given full access to the
books, records, employees and officers of the Company and its Affiliates
relevant, or which such independent auditing firm believes in good faith may be
relevant, to the disagreement or
11
such other aspects of the determination of EBITDA as the independent auditing
firm reasonably believes necessary to determine the accuracy of the Performance
Statement. If the Noteholders and Buyer are unable to resolve any such
disagreement within such 30-day period, the subject matter of the disagreement
including any other areas of disagreement which arise during such 30-day period
shall be submitted to an independent accounting firm of international reputation
reasonably acceptable to the Noteholders and Buyer (the "Agreed Upon Firm"). The
Noteholders and Buyer shall use reasonable best efforts to cause the Agreed Upon
Firm to render its determination on the resolution of the disagreement within 90
days of its submission by the Noteholders and Buyer. Such determination shall be
final, conclusive and binding upon Buyer and the Noteholders. Buyer shall pay
the Performance Payment Amount reflecting the determination of the Agreed Upon
Firm in accordance with Sections 2.06(a) and 2.06(b). The fees and expenses for
the Agreed Upon Firm and the Noteholders' independent auditing firm shall be
paid by the Noteholders, except that such fees and expenses shall be paid by
Buyer, if the Agreed Upon Firm determines that the Performance Payment Amount
payable to the Noteholders exceeds the amount so determined by Buyer.
ARTICLE III
Representations, Warranties and Covenants of Sellers
----------------------------------------------------
Each Seller hereby represents, warrants and covenants to Buyer, as to
itself only, as follows:
3.01. Organization and Good Standing. It is a corporation or, in the
case of VEBA Zweite Verwaltungsgesellschaft mbH, a limited liability company,
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has full power and authority, corporate
or otherwise, to own the Shares or Notes owned by it.
3.02. Due Authorization; Enforceability. It has all requisite
corporate or limited liability company, as the case may be, power and authority
to execute, deliver and perform this Agreement and the Transaction Documents to
which it is a party and to consummate the Transaction. The execution, delivery
and performance of this Agreement and the Transaction Documents to which it is a
party and the consummation of the Transaction by it have been duly authorized by
all necessary or appropriate corporate or other action and no other proceedings
are necessary to authorize this Agreement or the Transaction Documents to which
it is a party or to consummate the Transaction. This Agreement and those
Transaction Documents executed or delivered by it on or prior to the date of
this Agreement constitute, and prior to the Closing the remaining Transaction
Documents required to be executed by it after the date of this
12
Agreement will constitute when so executed, the valid and legally binding
obligations of such Seller (assuming that this Agreement and the Transaction
Documents constitute the valid and binding obligations of Buyer), enforceable
against such Seller, in accordance with their terms except as enforceability may
be limited by applicable (i) bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors'
rights and (ii) laws relating to the availability of specific performance,
injunctive relief or other equitable remedies (regardless of whether such
enforceability is sought in equity or at law).
3.03. Non-Contravention. The execution, delivery and performance of
this Agreement by it and the consummation of the Transaction do not and will
not, with or without the giving of notice or the lapse of time, or both,
violate, conflict with, result in the breach of, require a consent under, or
accelerate the performance required by any of the terms, conditions or
provisions of (i) the charter documents or by-laws or other governing documents
of such Seller or (ii) any covenant, agreement or understanding to which such
Seller is a party or any Order, ruling, decree, judgment, arbitration award,
law, rule, regulation or stipulation to which such Seller is subject or
constitute a default thereunder, except to the extent, in the case of the
foregoing clause (ii), any of the foregoing would not, individually or in the
aggregate, prevent any Seller from materially performing its obligation under
this Agreement or the Transaction Documents to which it is a party or
consummating the Transaction.
3.04. Regulatory Approvals. Except as set forth in Schedule 3.04
attached hereto, it is not required to file, seek or obtain any governmental
notice, filing, authorization, approval, Order or consent, or any bond in
satisfaction of any governmental regulation, in connection with the execution,
delivery and performance by it of this Agreement or the consummation by it of
the Transaction.
3.05. Transactions with Affiliates. Except as set forth in Schedule
3.05 or Schedule 3.06 none of the Sellers or any of their Affiliates is, or at
the Closing will be, party to any agreements, contracts or other arrangements
with the Company or its Subsidiaries which are not cancelable without liability
to the Company or such Subsidiary on less than 30 days' notice by the Company or
such Subsidiary, as the case may be, or which involve payments by the Company
and such Subsidiary, as the case may be, in excess of two hundred fifty thousand
dollars ($250,000) per annum.
3.06. Existing Loan Agreements. Except as represented by the Notes or
the related Loan Agreements, or under the arrangements set forth in Schedule
3.05 or as set forth in Schedule 3.06, there is, and at the Closing Date there
will be, no material indebtedness of the Company or its Subsidiaries in excess
of an aggregate of two hundred fifty thousand dollars ($250,000) owing to any
Seller or its Affiliates (other than the Company and its controlled Affiliates).
Schedule 3.06 sets forth, as of the close of
13
business on September 28, 2001, the outstanding principal amounts of each Loan
made by such Seller, and a description of the scheduled payments of principal
and interest (and other amounts) in respect of each Loan through December 31,
2001. Sellers have provided to TPG true and correct copies of each Loan
Agreement that has not been filed by the Company with the Securities and
Exchange Commission. As of the close of business on September 28, 2001, there
was an aggregate maximum amount of approximately $7,800,000 of borrowings
available to the Company and its Subsidiaries pursuant to the Available E.ON
Credit Facilities. Except as set forth in this Section 3.06, Sellers make no
further representations or warranties with respect to the Loan Agreements.
3.07. Broker Fees. There are no claims (or any basis for any claims)
for brokerage commissions, finder's fees or like payments in connection with
this Agreement or the Transaction resulting from any action taken by it or on
its behalf, except ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. has been retained by Sellers. Sellers
shall be responsible for any fees and expenses that may be due to ▇▇▇▇▇▇▇ ▇▇▇▇▇
& Co., and shall jointly and severally indemnify and hold Buyer harmless with
respect to the representations and warranties and agreements set forth in this
Section 3.07.
3.08. Litigation; Decrees. To such Seller's knowledge, as of the date
hereof (i) there is no Order in effect to which it is a party that is related to
the Transaction and (ii) except as set forth on Schedule 3.08, it is not a party
to, or engaged in, and has not been threatened with, any Action that is related
to the Transaction.
3.09. Absence of Payments. From July 1, 2001 until the date of this
Agreement, (i) none of the Sellers or any of their respective Affiliates has
received payment of any amounts from the Company in respect of the Loan
Agreements, other than (x) regularly scheduled interest payments in respect of
the Loans, which interest payments received from July 1, 2001 to and including
September 12, 2001 did not exceed eleven million dollars ($11,000,000) in the
aggregate and (y) amounts paid and reborrowed or available for reborrowing under
the Available E.ON Credit Facilities and (z) commitment fees described in
Schedule 3.06, and (ii) none of the Sellers or their respective Affiliates has
received any other payment of any amounts from the Company in excess of two
hundred fifty thousand dollars ($250,000) in the aggregate, except in connection
with any currency forward contracts or the other agreements listed on Schedule
3.05.
14
ARTICLE IV
Representations, Warranties and Covenants of the Shareholders
-------------------------------------------------------------
Each Shareholder hereby represents, warrants and covenants to Buyer,
as to itself only, as follows:
4.01. Title to Shares. It is the owner of the number of Shares set
forth opposite the name of such Shareholder on Exhibit A hereto, and will sell,
transfer, assign and deliver to the Buyer good and valid title to such Shares at
the Closing as provided in this Agreement and Buyer will acquire good and valid
title to the Shares, free and clear of any liens, pledges, encumbrances,
options, restrictions, charges, agreements or claims, except for such
encumbrances as may be imposed by applicable securities laws or the Delaware
General Corporation Law. The number of Shares set forth opposite the name of
such Shareholder on Exhibit A hereto constitute all of the Shares held by such
Shareholder and its Affiliates, and neither it nor any of its Affiliates holds
any "phantom" stock rights, options, warrants or rights of first refusal, or
other rights to purchase, obtain or acquire, or any outstanding securities or
obligations convertible into or exchangeable for, or any voting or other
agreements with respect to, any securities of the Company.
ARTICLE V
Representations, Warranties and Covenants of TPG and Buyer
----------------------------------------------------------
Each of TPG and Buyer hereby jointly and severally represent, warrant
and covenant to Sellers as follows:
5.01. Organization and Good Standing. Each entity comprising TPG is a
limited partnership and Buyer is a limited liability company, each duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full power and authority to consummate the Transaction.
5.02. Due Authorization; Enforceability. Each of TPG and Buyer has all
requisite power and authority to execute, deliver and perform this Agreement and
the Transaction Documents to which it is a party and to consummate the
Transaction. The execution, delivery and performance of this Agreement and the
Transaction Documents to which each of TPG and/or Buyer, as the case may be, is
a party and the consummation of the Transaction by each of TPG and Buyer have
been duly authorized by all necessary or appropriate action and no other
proceedings are necessary to authorize this Agreement or the Transaction
Documents to which either of TPG and Buyer is a party or to consummate the
Transaction. This Agreement and those Transaction Documents
15
executed or delivered by each of TPG and/or Buyer on or prior to the date of
this Agreement constitute, and prior to the Closing the remaining Transaction
Documents required to be executed by each of TPG and/or Buyer after the date of
this Agreement will constitute when so executed, the valid and legally binding
obligations of each of TPG and/or Buyer (assuming that this Agreement and the
Transaction Documents constitute the valid and binding obligations of Sellers),
as the case may be, enforceable against each of TPG and/or Buyer, in accordance
with their terms except as enforceability may be limited by applicable (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and (ii) laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies (regardless of whether such enforceability is sought in
equity or at law).
5.03. Non-Contravention. The execution, delivery and performance of
this Agreement and the other Transaction Documents by each of TPG and Buyer and
the consummation of the Transaction do not and will not, with or without the
giving of notice or the lapse of time, or both, violate, conflict with, result
in the breach of, require a consent under, or accelerate the performance
required by any of the terms, conditions or provisions of (i) the charter
documents or other governing documents of TPG or of Buyer or (ii) any covenant,
agreement or understanding to which TPG and/or Buyer, as the case may be, is a
party or any Order, ruling, decree, judgment, arbitration award, law, rule,
regulation or stipulation to which TPG and/or Buyer is subject or constitute a
default thereunder, except to the extent, in the case of the foregoing clause
(ii), any of the foregoing would not, individually or the aggregate, prevent
either of TPG or Buyer from materially performing its obligation under this
Agreement or the Transaction Documents to which either is a party or
consummating the Transaction.
5.04. Investment Intent. Buyer is acquiring, and TPG confirms that
Buyer is acquiring, the Shares and the Notes for its own account for investment
purposes only and not with a view to, or for sale or resale in connection with,
any public distribution thereof or with any present intention of selling,
distributing or otherwise disposing of the Shares or the Notes in violation of
the Securities Act of 1933, as amended (the "Securities Act"). Each of Buyer and
TPG understands that neither the Shares nor the Notes have been registered under
the Securities Act or any state securities or "blue-sky" laws by reasons that
depend upon, among other things, the bona fide nature of Buyer's investment
intent as expressed herein and as explicitly acknowledged hereby and that under
such laws and applicable regulations such securities may not be resold without
registration under the Securities Act unless an applicable exemption from
registration is available.
5.05. Accredited Investor; Investment Representations. Each of Buyer
and TPG is an "accredited investor" within the meaning of Rule 501 of Regulation
D under the Securities Act. By reason of TPG's and/or Buyer's business and
financial
16
experience in business, each of TPG and Buyer has such knowledge, sophistication
and experience in business and financial matters as to be capable of evaluating
the merits and risks of the purchase of the Shares and the Notes, is able to
bear the economic risk of such investment in the Company, and is able to afford
a complete loss of such investment.
5.06. Regulatory Approvals. Except as set forth in Schedule 5.06,
neither TPG nor Buyer is required to file, seek or obtain any governmental
notice, filing, authorization, approval, order or consent in connection with the
execution, delivery and performance by it of this Agreement or the consummation
by it of the Transaction.
5.07. Loan Characterization. Each of TPG and Buyer acknowledges that,
notwithstanding anything herein to the contrary, none of the Sellers or any of
their Affiliates or representatives is making any representations or warranties
relating to whether or not any of the Loans might, under any circumstances or
for any purpose, be treated or characterized as equity, as subordinated
indebtedness junior to any other indebtedness of the Company or as anything
other than indebtedness. Neither TPG nor Buyer shall assert or make any claim
against any of the Sellers that any of the Loans should be treated as equity, as
subordinated indebtedness or as anything other than indebtedness. In addition,
neither TPG nor Buyer shall assert any claim against any Seller or any of their
respective Affiliates arising from, or in connection with, (i) the Company
Restructuring, (ii) the Revolving Credit Facility or any other arrangement
between or among TPG, the Buyer and/or their respective Affiliates, and the
Company and/or the Company's Affiliates (other than any claim asserting that
E.ON AG has breached its obligations under the guaranty described in Section
6.11(c)) or (iii) the failure of either the Company or any of the Company's
Affiliates to perform any obligations in connection with any of the foregoing.
5.08. Broker Fees. There are no claims (or any basis for any claims)
for brokerage commissions, finder's fees or like payments in connection with
this Agreement or the Transaction resulting from any action taken by either of
TPG or Buyer or on either's behalf, except ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, Inc. has been
retained by TPG. Each of TPG and Buyer shall be responsible for any fees and
expenses that may be due to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc., and shall indemnify and
hold Sellers harmless with respect to the representations and warranties and
agreements set forth in this Section 5.08.
5.09. Sufficiency of Capital. Buyer has sufficient available capital
to pay the Note Closing Payment, the Share Purchase Price, and any expenses,
fees or other amounts it may be reasonably expected to pay in connection with
the consummation of the Transaction and the Revolving Credit Lender will on the
Closing Date have sufficient available capital to provide funds under the
revolving credit facility described in
17
Section 6.06 hereof and neither TPG nor Buyer requires any limited partner,
shareholder, board or other such approval in connection with the consummation of
the Transaction.
5.10. Litigation; Decrees. To the knowledge of Buyer or TPG, on the
date hereof, there is no Order in effect to which either TPG or Buyer is a party
that is related to the Transaction and, except as set forth on Schedule 3.08,
neither TPG nor Buyer is a party to, or engaged in or has been threatened with,
any Action that is related to the Transaction.
ARTICLE VI
Further Agreements and Assurances
---------------------------------
6.01. Government Filings and Approvals. Sellers, TPG and Buyer agree
promptly to file or cause to be filed, respectively, an acquired person's and
acquiring person's notification and report form required by the HSR Act and any
other applicable regulatory filing with respect to the Transaction. Sellers, TPG
and Buyer further agree to use their commercially reasonable efforts to comply
promptly with all requests or requirements which applicable federal, state or
foreign law or governmental officials may impose on them with respect to the
Transaction. The commercially reasonable efforts of Sellers, TPG and Buyer shall
include but shall not be limited to good faith response, in cooperation with
each other, to all requests for information, documentary or otherwise, by any
governmental agency; provided, however, that TPG shall not be required to divest
any assets, businesses or properties in connection therewith.
6.02. Corporate Investigation by Buyer. Each of TPG and Buyer hereby
acknowledges that each of TPG and Buyer and their advisors and representatives
(i) has had full access to make or cause to be made such investigation of the
assets, properties and business of the Company and of its financial and legal
condition as it deemed necessary or advisable to familiarize itself with such
assets, properties, business and other matters and (ii) has had sufficient
opportunity to discuss such assets, properties, business and other matters with
the Company's officers, attorneys, accountants and other relevant
representatives. Each of TPG and Buyer hereby acknowledges that none of Sellers,
their representatives or any other person has made any oral representation or
warranty, expressed or implied, with respect to the Company, its assets,
properties or business or the accuracy or completeness of any information
regarding the Company or its properties, assets or business furnished or made
available to TPG, Buyer or their representatives.
6.03. Confidentiality. Each of TPG and Buyer on the one hand, and the
Sellers on the other hand, shall, and shall cause each of their Affiliates,
associates and representatives to (i) maintain in confidence any and all
information concerning the other
18
party and (ii) refrain from using any such information for their own benefit or
in competition with or otherwise to the detriment of Sellers on the one hand,
and TPG and Buyer on the other hand. It is understood that no party to this
Agreement shall have any liability hereunder for disclosure or use of any such
information which (i) is in or, through no fault of such party, comes into the
public domain, (ii) was acquired from other sources after the Closing, provided
such sources are not, to the knowledge of such party, bound by any
confidentiality agreement with such other party or (iii) such party, in good
faith upon advice of legal counsel, believes that it is legally required to
disclose.
6.04. Recovery of Avoided Claims, Etc. Each of TPG and Buyer confirms
and agrees with Sellers, notwithstanding anything contained herein to the
contrary, if and to the extent that either TPG, Buyer, any of their respective
Affiliates and/or any lender under the Revolving Credit Facility receives
directly any amounts as a result of avoidance recoveries, recharacterization,
equitable subordination or similar claims against Sellers arising out of
transfers made to Sellers prior to the Closing Date (including, for the
avoidance of doubt, any amounts received by TPG, Buyer, any of their respective
Affiliates and/or any lender under the Revolving Credit Facility as a result of
amounts paid to the Company, the estate of the Company or any bankruptcy
receiver or trustee by any such transferee, or any Affiliate of such transferee
as a result of such recovery, recharacterization, equitable subordination or
claim) any such recoveries shall be held by TPG and/or Buyer, any of their
respective Affiliates, and/or any lender under the Revolving Credit Facility, as
the case may be, in trust, and TPG and Buyer shall promptly pay or cause to be
paid such amounts to Sellers. In the event that any amounts previously paid by
the Company or any of its Subsidiaries to a Seller are subsequently avoided or
otherwise caused to be disgorged by Sellers to the bankruptcy estate of the
Company by a trustee in a proceeding under title 11 of the United States Code
(the "Bankruptcy Code"), such Seller shall have the right to assert any
resulting claim (net of any amount repaid pursuant to the immediately preceding
sentence) against the Company or any of its Subsidiaries, as applicable, and
shall be the sole beneficiary of any amounts recovered in respect thereof.
6.05. Maintenance of Directors' and Officers' Insurance. Following the
Closing, Buyer will use its reasonable best efforts to cause the Company to
maintain its directors' and officers' insurance policies in existence on the
date hereof, or generally comparable insurance policies (collectively, the
"Required Policies") for a period of not less than three (3) years following the
Closing Date (the "Required Period") so as to protect all the Designated
Directors. To the extent the Company does not maintain the Required Policies for
the Required Period, Buyer agrees to purchase and maintain in effect for the
Required Period, at its sole cost and expense, directors' and officers'
insurance policies that are no less favorable to the Designated Directors than
the Company's directors' and officers' insurance policies in existence on the
date hereof, protecting the Designated Directors with respect to claims made, or
that may be made,
19
relating to the period on or prior to the Closing Date; provided, however, that
in the event that the aggregate cost of insurance called for by this Section
6.05 (i.e., for the Required Period) is more than $440,000 (such excess herein
referred to as "Added Insurance Expense"), then Buyer shall notify Sellers of
the aggregate amount of the Added Insurance Expense, and Sellers shall have the
option of either (i) requiring Buyer to maintain or procure such directors and
officers insurance coverage and paying to Buyer the amount of the Added
Insurance Expense or (ii) waiving any rights to have Buyer maintain or procure
such coverage. Nothing herein shall limit the right of the Company to obtain
such insurance on its own, whether prior to or after the Closing.
6.06. Revolving Credit Facility. TPG and Buyer agree that TPG or
another lender reasonably acceptable (with respect to such lender's financial
condition and its ability to perform its obligations under the Revolving Credit
Facility) to Sellers shall offer to the Company a revolving credit facility on
terms that are consistent with those set forth on Annex I (the "Revolving Credit
Facility"). TPG shall cause the Revolving Credit Lender to comply with the
provisions of this Agreement and the Revolving Credit Agreement.
6.07. Acknowledgment of Taisil Lender Rights. Each of TPG and Buyer
hereby acknowledges that certain lenders of Taisil may have rights under certain
loan agreements and/or guarantees relating to Taisil that may arise as a result
of the sale of the Shares hereunder (the "Taisil Lender Rights") and that any
funding or other responsibilities that arise out of the exercise of any such
Taisil Lender Rights shall remain the sole responsibility of Taisil, the Company
and/or its Subsidiaries, as applicable.
6.08. No Solicitation. (a) Until this Agreement is terminated or until
the occurrence of the Closing, whichever occurs first, Sellers shall not, and
shall use their reasonable best efforts to cause their representatives not to,
(i) solicit, initiate or encourage the submission of inquiries, proposals or
offers from any individual, corporation, partnership, limited liability company
or other entity, other than TPG or any of its Affiliates (an "Entity") relating
to the purchase of the Notes, the Shares or any portion thereof or the
acquisition of all or a significant portion of the assets or equity or debt
interest of the Company, whether by merger, tender offer or otherwise (an
"Acquisition Proposal"), (ii) enter into or participate in any discussions
regarding an Acquisition Proposal with any Entity or (iii) otherwise cooperate
with, or assist or participate in, facilitate or encourage, any effort or
attempt by any Entity to make an Acquisition Proposal. For the avoidance of
doubt, Acquisition Proposal does not include the entering into or modification
of any Loan Agreements, security agreements or pledge agreements by E.ON AG and
its Affiliates, on the one hand, and the Company and its Subsidiaries, on the
other hand.
20
(b) Until this Agreement is terminated or until the occurrence of the
Closing, whichever occurs first, at any meeting of stockholders of the Company
or at any adjournment thereof or in any other circumstances upon which a
Shareholder's vote, consent or other approval is sought, such Shareholder shall
be present (in person or by proxy) and shall vote (or cause to be voted) its
Shares against (and shall not execute any written consent in favor of) (i) any
merger agreement or merger, consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by the Company or any other Acquisition Proposal or (ii) any amendment of
the Company's certificate of incorporation or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries, which amendment or
other proposal or transaction would in any manner impede, frustrate, delay,
prevent or nullify the transactions contemplated by this Agreement or the
Company Restructuring. The Shareholders further agree not to commit or agree to
take any action inconsistent with the foregoing.
6.09. Actions Prior to Closing. Until this Agreement is terminated or
until the occurrence of the Closing, whichever occurs first, Sellers shall (i)
not take any action which would reasonably be expected to cause any of their
representations or warranties to become untrue in a material respect, (ii) not
enter into any new loan agreement or other lending instrument with the Company
unless consented to by TPG and Buyer (such consent not to be unreasonably
withheld), (iii) not materially modify any of the Loan Agreements, except (A) in
connection with the amount or type of collateral (provided that in no event
shall such collateral include the Buyer Pre-Closing Collateral), (B) increases
in amounts permitted to be borrowed, or (C) with the consent of Buyer not to be
unreasonably withheld, any other modification of the Loan Agreements and (iv)
use its reasonable best efforts to cause the Company not to (A) pay any amount
in respect of any Loan, other than regularly scheduled interest substantially as
described in Schedule 3.06, regularly scheduled commitment fees described in
Schedule 3.06 or amounts which the Company may reborrow or (B) pay any amount in
respect of Shares, whether by way of dividend, distribution, repurchase or
otherwise. In addition, until this Agreement is terminated or until the
occurrence of the Closing, whichever occurs first, the Sellers shall not file a
petition against the Company or any of its Subsidiaries under the Bankruptcy
Code, and shall not request or otherwise take any action to cause or encourage
the Company or any of its Subsidiaries to file a petition under the Bankruptcy
Code except in accordance with the by-law described in Section 7.18. Until this
Agreement is terminated or until the occurrence of the Closing, whichever occurs
first, neither TPG nor Buyer shall take any action which would reasonably be
expected to cause any of their representations or warranties to become untrue in
a material respect.
6.10. Available E.ON Credit Facilities. On or prior to October 15,
2001, E.ON AG may, but shall have no obligation to amend the Secured Loan
Agreement so that the amount permitted to be borrowed under the Available E.ON
Credit Facilities
21
shall be increased by an amount to be determined in the sole discretion of E.ON
AG. Unless and until a Funding Termination Event shall have occurred, and
subject to the terms of this Section 6.10 and the terms of Section 6.13, the
Company shall be permitted to borrow pursuant to the Available E.ON Credit
Facilities an amount equal to the maximum amount which may be borrowed pursuant
to the Available E.ON Credit Facilities.
6.11. Funding. (a) Unless and until a Funding Termination Event shall
have occurred and subject to the terms of this Section 6.11 and Section 6.13,
and following the date on which the Company shall have borrowed all amounts
permitted to be borrowed under the Available E.ON Credit Facilities, the
Shareholders shall provide funding in an aggregate amount not to exceed fifty
million dollars ($50,000,000) less the amount of the increase in the permitted
borrowing amount under the Available E.ON Credit Facilities pursuant to Section
6.10 in the form of capital contributions to the Company (without the issuance
of any securities) at such times as determined by the Shareholders in their
reasonable judgment for the Funding Needs. The Company shall have no obligation
to repay to the Shareholders any such contribution to the capital of the
Company.
(b) In the event that the amount of Funding Needs prior to the Closing
(as reasonably agreed by the Revolving Credit Lender and the Sellers'
Representative) exceeds fifty million dollars ($50,000,000), the Revolving
Credit Lender shall, subject to the grant by the Company of the security
interest described in the immediately following sentence, lend to the Company
pursuant to the Revolving Credit Facility an amount (the "Buyer Pre-Closing
Funded Amount") equal to the lesser of (i) the amount of such excess and (ii)
thirty million dollars ($30,000,000). Subject to agreement with the Company, the
loan made by the Revolving Credit Lender shall be collateralized by a first
priority, perfected security interest in: the Company's plant, property and
equipment (to the extent not currently subject to any security interests); the
issued and outstanding shares of capital stock of MEMC Pasadena, Inc.; any debt
issued by MEMC Pasadena, Inc. held by the Company (and rights in any collateral
securing such debt); and the proceeds thereof (collectively, the "Buyer
Pre-Closing Collateral").
(c) Prior to the Closing, the Company's obligations under the
Revolving Credit Facility to make payments of the principal amount of the loans
made pursuant to Section 6.11(b), together with interest at the rate set forth
in the Revolving Credit Facility Agreement shall be unconditionally guaranteed
by the Shareholders, which guaranty shall be supported by a letter of credit
issued by a bank reasonably acceptable to TPG and Buyer with E.ON AG as the
account party and, in accordance with the terms of the Revolving Credit
Facility, the Buyer Pre-Closing Funded Amount, together with interest thereon,
shall become due and payable immediately upon any termination of this Agreement.
The loans to be made by the Revolving Credit Lender
22
hereunder shall be solely for Funding Needs. The Revolving Credit Lender shall
not make any advance under Section 6.11(b) unless the Shareholders shall have
agreed in writing, such agreement not to be unreasonably withheld, that such
loan is for Funding Needs. The guaranty by the Shareholders shall be terminated
and have no force or effect whatsoever from and after the date on which the
Closing occurs, notwithstanding any failure of the Company to pay amounts due
under such loan or any requirement that the Revolving Credit Lender pay back any
amounts received from the Company.
(d) If the Revolving Credit Lender does not make any of the loans
required by Section 6.11(b) in breach thereof, the Shareholders shall in
addition to any other rights, have the right to terminate this Agreement in
accordance with Section 10.01(a)(vi).
6.12. Closing Payments. At the Closing, the Shareholders shall make a
capital contribution to the Company in an aggregate amount equal to (w) five
million dollars ($5,000,000) to enable the Company to make the contribution to
its defined benefit plan referred to in Sections 7.13 and 8.12 plus (x) the
excess, if any, of (A) fifty million dollars ($50,000,000) over (B) the sum of
(y) the aggregate capital contributions made by the Shareholders pursuant to
Section 6.11(a) following the date of this Agreement, and (z) the aggregate
amount borrowed by the Company under the Secured Loan Agreement in excess of
fifty million dollars ($50,000,000). For the avoidance of doubt, none of the
Shareholders shall have any obligation to make any payments under this Section
6.12 if the Closing does not occur.
6.13. Termination of Funding. (a) Notwithstanding the provisions of
Sections 6.10 and 6.11:
(i) if on or prior to October 22, 2001 (w) the consent or waiver of
the Taisil Lenders set forth in Section 7.12 has not been obtained and (x)
Buyer and TPG shall not have irrevocably and unconditionally waived in a
writing delivered to the Sellers the condition set forth in Section 7.12,
or (ii) if on or prior to October 29, 2001, (y) the agreement described in
Section 7.19 has not been obtained and (z) Buyer and TPG shall not have
irrevocably and unconditionally waived in a writing delivered to the
Sellers the condition set forth in Section 7.19; then the Sellers'
Representative may upon written notice after the applicable date to TPG and
the Buyer, terminate any further obligation under this Agreement to lend
any money or make any capital contributions to the Company.
(b) Notwithstanding the provisions of Sections 6.10 and 6.11, if
(i)(x) the Company shall have had Revenue for the month of September, 2001 or
October, 2001 in an amount less than that specified in Section 7.17, or (y) for
any Backlog Measurement Period, the Company shall have Average Backlog in an
amount less than the amount set
23
forth in Section 7.17, (ii) the Sellers or the Company shall have provided Buyer
and TPG with information, in the form agreed upon by Buyer and TPG, on the one
hand, and the Sellers, on the other hand, showing that such Revenue or Average
Backlog, as the case may be, failed to meet the levels prescribed by Section
7.17, and (iii) within three (3) business days after the receipt by Buyer and
TPG of Backlog information in respect of the relevant Backlog Measurement Period
and Revenue information in respect of the preceding calendar month (the last day
of each such three (3) business day period being a "Notification Date"), Buyer
and TPG shall not have irrevocably and unconditionally waived in a writing
delivered to the Sellers the entire condition set forth in Section 7.17 (for the
avoidance of doubt, the waiver will be for the entire condition, not only the
portion of the condition relating to a particular date or time period) and all
other financial conditions precedent to the consummation of the Company
Restructuring. The Sellers' Representative may, upon written notice thereafter
to TPG and the Buyer terminate any further obligation under this Agreement to
lend any money or make any capital contributions to the Company.
(c) Notwithstanding the provisions of Sections 6.10 and 6.11 if on any
Notification Date Buyer and TPG shall not have either (i) delivered to Sellers
an officer's certificate stating that as of such Notification Date nothing has
come to their attention which renders the information known to them as of the
date of this Agreement untrue, incorrect or incomplete in a material adverse
respect or (ii) irrevocably and unconditionally waived in a writing delivered to
the Sellers the condition contained in the last sentence of Section 7.11, then
the Sellers may, upon written notice to TPG and the Buyer, terminate any further
obligation under this Agreement to lend any money or make any capital
contributions to the Company.
(d) For the avoidance of doubt, the Sellers may deliver a written
notice to TPG and Buyer under this Section 6.13 notwithstanding that the Sellers
had no further obligation to lend any money or make any capital contributions to
the Company, and such notice shall also be a funding termination notice for
purposes of Section 10.01(a)(vii) and Section 6.14.
6.14. Bankruptcy Filing, Etc. (a) Subject to Section 6.14(c), if the
Company shall be the subject of a petition under the Bankruptcy Code prior to
the termination of this Agreement (which in the case of an involuntary
proceeding shall not be dismissed within sixty (60) days after the petition is
filed), the Sellers shall pay Buyer the sum of five million dollars
($5,000,000). Notwithstanding anything herein to the contrary, the foregoing
obligation shall not apply if either (a) the Revolving Credit Lender has not
made any of the loans required by Section 6.11(b) in breach thereof or (b) the
Sellers or the Sellers' Representative have delivered a funding termination
notice in accordance with any of the provisions of Section 6.13. For the
avoidance of doubt, if this Agreement is terminated (x) pursuant to the
provisions of Section 10.01(a)(iv) or
24
(y) pursuant to the provisions of Section 10.01(a)(viii) or (z) pursuant to the
provisions of Section 10.01(a)(ix), the payment obligation set forth in the
first sentence of this Section 6.14 shall not apply.
(b) Subject to Section 6.14(c), if this Agreement is terminated by
either Buyer or Sellers solely pursuant to clause (i) (and for the avoidance of
doubt, not clause (ii)) of Section 10.01(a)(x), then Sellers shall pay Buyer the
sum of five million dollars ($5,000,000).
(c) Notwithstanding anything contained in this Section 6.14 to the
contrary, in no event shall Sellers be required to pay to Buyer an amount in
excess of five million dollars ($5,000,000) in the aggregate pursuant to this
Section 6.14.
6.15. Section 203 Acknowledgement. The parties hereby acknowledge that
until the Transaction, including, without limitation, the sale of the Shares,
had been approved by the special committee of the Board of Directors of the
Company, the parties had no "agreement, arrangement or understanding" within the
meaning of Section 203 of the Delaware General Corporation Law with respect to
such Transaction.
6.16. Adequacy and Sufficiency of Collateral. The parties hereby
acknowledge and agree that the adequacy or sufficiency of the collateral
securing the Revolving Credit Facility shall not be a condition precedent to the
Closing, to the Company Restructuring or to the funding pursuant to the
Revolving Credit Facility of the first thirty million dollars ($30 million) to
be borrowed thereunder.
6.17. Post-Closing Revolving Credit Facility Loans. On and/or after
the Closing, the Revolving Credit Lender shall unconditionally lend and advance
to the Company pursuant to the terms of the Revolving Credit Facility, as and
when requested by the Company, an aggregate amount equal to the excess, if any,
of (A) thirty million dollars ($30,000,000) over (B) the Buyer Pre-Closing
Funded Amount; provided however that so long as the security interest described
in Section 6.19 hereof shall have been granted on or before the Closing Date,
such unconditional obligation to lend shall terminate if on or after the Closing
Date, the PBGC shall have instituted proceedings or threatened in writing to
institute proceedings to terminate the Company Pension Plan or has taken other
action that could reasonably result in a material liability to the Company under
Sections 4062 through 4064 or 4067 through 4070 of ERISA. Such loan shall be
advanced subject to no conditions whatsoever other than a written request by the
Chief Executive Officer and the Chief Financial Officer of the Company stating
that the borrowing is for the Company's Post-Closing Funding Needs. For the
avoidance of doubt, except under the conditions described in the proviso of the
first sentence of this Section 6.17, such loan shall be advanced notwithstanding
(a) there being a breach of any covenant or occurrence of any event of default
under the Revolving Credit Agreement or
25
(b) the Company or any subsidiary of the Company having commenced voluntary
bankruptcy proceedings or (c) any conditions applicable to other borrowings
under the Revolving Credit Facility not being satisfied. TPG and Buyer shall use
reasonable efforts to cause the Company to have at least two members of the
Board of Directors of the Company who is not affiliated or associated with TPG
or Buyer or any of their Affiliates until the aforementioned thirty million
dollars ($30 million) is fully borrowed by the Company. Buyer and TPG
acknowledge that money damages would not be adequate for a breach of Section
6.17 or Section 6.18. Accordingly, in addition to any other rights and remedies
available to Sellers, Sellers shall be entitled to specific performance of the
obligations of TPG, Buyer and/or the Revolving Credit Lender under the
provisions of this Section 6.17 and Section 6.18.
6.18. Bankruptcy Filings Not Permitted. Unless and until the Revolving
Credit Lender has advanced to the Company at least thirty million dollars
($30,000,000) pursuant to the terms of the Revolving Credit Facility, TPG and
Buyer shall not, and shall cause each Revolving Credit Lender to not, (i) permit
the Company to file a petition under the Bankruptcy Code, (ii) file a petition
against the Company or any of its Subsidiaries under the Bankruptcy Code or
(iii) permit the Company to amend, modify, revoke or render ineffective the
by-law amendment described in Section 8.13.
6.19. PBGC. Promptly following the date of this Agreement, TPG shall
propose to enter into an agreement with the PBGC whereby, among other things, in
consideration for certain agreements on the part of the PBGC, including its
agreement to forebear from taking actions with respect to the Company Pension
Plan in connection with the transactions contemplated hereby, the Company will
agree to secure the Company's obligations to the Company Pension Plan by a
second lien and/or mortgage on the U.S. plant, property and equipment of the
Company as of the date hereof in an initial amount of at least thirty million
dollars ($30,000,000), on terms substantially as set forth in Annex II. Prior to
the Closing, Buyer and TPG will negotiate in good faith with the PBGC with a
view to executing such agreement in a form and in substance satisfactory to
Buyer and the Company.
ARTICLE VII
Conditions to Buyer's Obligations
---------------------------------
The obligations of Buyer hereunder are subject to the satisfaction, or
waiver in writing by Buyer, on or prior to the Closing Date, of the following
conditions:
7.01. Accuracy of Representations and Warranties. The representations
and warranties of each Seller set forth in Article III hereof and the
representations and
26
warranties of each Shareholder set forth in Article IV hereof shall be true and
correct in all material respects on the date hereof and on the Closing Date with
the same effect as though such representations and warranties had been made on
and as of such date (except that for purposes of this Section 7.01 the $250,000
amount contained in Sections 3.05, 3.06, and 3.09 shall be deemed to be
$1,000,000) and each Seller shall have delivered to TPG and Buyer a certificate
to that effect, dated the Closing Date and signed by such Seller.
7.02. Performance of Covenants. Each and all of the covenants and
agreements of each Seller to be performed or complied with prior to or on the
Closing Date shall have been duly performed or complied with by such Seller, and
each Seller shall have delivered to TPG and Buyer a certificate to that effect,
dated the Closing Date, and signed by such Seller.
7.03. Governmental Approvals. All provisions under the HSR Act and any
other required governmental approvals shall have been complied with, and the
respective waiting periods thereunder shall have expired or have been
terminated.
7.04. No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other legal restraint or prohibition
preventing the Transaction shall be in effect; provided, however, that each of
TPG and Buyer shall have used its commercially reasonable efforts to prevent the
entry of any such order, injunction or other restraint or prohibition against it
and to appeal as promptly as possible any such order, injunction or other
restraint or prohibition that may be entered against it.
7.05. Notes, Etc. Each of the Noteholders shall have delivered to
Buyer (a) the Notes held by such Noteholder evidencing the Loans set forth on
Exhibit B hereto, opposite the name of such Noteholder and duly endorsed in
blank, or accompanied by appropriate bond powers, in proper form for transfer,
(b) an Assignment and Acceptance, executed by such Noteholder, for each Loan
Agreement to which such Noteholder is a party, which Assignment and Acceptance
shall be substantially in the form attached as Exhibit C to such Loan Agreement
(an "Assignment and Acceptance"), (c) an assignment of any security agreement
relating to the Notes to which such Noteholder is a party and (d) a copy of each
Loan Agreement to which such Noteholder is a party. The Company shall have taken
all such action as shall be necessary to effect the transfer of the Notes, the
Loan Agreements and the related agreements, including without limitation,
recording such transfer on its books if and to the extent Buyer shall
specifically identify and request such action by the Company by written request
to the Company and the Sellers at least ten (10) days prior to the Closing Date.
27
7.06. Share Certificates. The Shareholders shall have delivered to
Buyer certificates representing the Shares, duly endorsed in blank, or
accompanied by appropriate stock powers, in proper form for transfer.
7.07. Registration Rights. Each of the Shareholders shall have
assigned to Buyer any and all contractual rights that it may have to require the
Company to register all or a portion of its Shares with the Securities and
Exchange Commission.
7.08. Resignations As Agents. Each of the Noteholders shall have
delivered to Buyer a resignation, dated the Closing Date, of such Noteholder
under each of the Loan Agreements for which such Noteholder is acting as Agent
which resignation shall be substantially in the form of Exhibit C hereto.
7.09. Opinions of Counsel. Buyer shall have received (i) the opinions
of ▇▇▇▇▇▇ ▇▇▇▇▇ with respect to certain matters relating to E.ON AG and VEBA
Zweite Verwaltungsgesellschaft mbH to the effect set forth in Exhibit D-1 and
Exhibit D-2 attached hereto, (ii) the opinion of A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ with
respect to certain matters relating to E.ON North America, Inc. to the effect
set forth in Exhibit D-3 attached hereto, (iii) the opinion of ▇▇▇▇ ▇▇▇▇▇ LLP
with respect to certain matters relating to ▇▇▇▇▇▇▇ Corporation to the effect
set forth in Exhibit D-4 attached hereto, (iv) the opinion of ▇▇▇ & Li with
respect to certain matters relating to Taisil to the effect set forth in Exhibit
E attached hereto, and (v) the opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, with respect
to certain other matters, to the effect set forth in Exhibit F attached hereto.
7.10. Resignations. Buyer shall have received the resignations of the
Designated Directors from the Board of Directors of the Company.
7.11. Company Restructuring. Buyer and the Company shall have reached
agreement upon the terms and provisions of, and executed and delivered a
definitive agreement, in form and substance satisfactory to Buyer, with respect
to an exchange by Buyer of the Loans for newly issued debt and equity securities
of the Company with customary or otherwise reasonably appropriate
representations and warranties, pre-closing conditions and financial covenants
(which, in the case of representations and warranties, pre-closing conditions
and financial covenants described in Annex I, shall be not stricter than as so
described) (the "Company Restructuring"), and all conditions to the Company
Restructuring shall have been materially satisfied or waived. The Revolving
Credit Lender and the Company shall have entered into the Revolving Credit
Facility and shall have executed and delivered all agreements and instruments
related thereto, with terms consistent with those set forth in Annex I and
Section 6.17 and those set forth in Section 7.17. Nothing shall have come to the
attention of TPG or Buyer which renders the information known to TPG and Buyer
as of the date of this Agreement untrue, incorrect or incomplete in a material
adverse respect.
28
7.12. Taisil. The Taisil Lenders shall have furnished their consent or
waiver, as applicable, in form and substance reasonably satisfactory to Buyer,
with respect to the sale of the Shares pursuant to this Agreement.
7.13. Company Pension Plan. The Company shall have contributed to the
Company Pension Plan an amount equal to five million dollars ($5,000,000).
7.14. Loan Agreement Release. The Company and each subsidiary of the
Company which is a party to a Loan Agreement shall have executed a release of
all unperformed obligations of the lender under each of the Loan Agreements
substantially in the form of Exhibit G hereto. Prior to the Closing, the Company
and its Subsidiaries shall have borrowed in full all amounts available to them
under the Loan Agreements.
7.15. General Release. The Company, the Sellers and the other parties
set forth on Exhibit H hereto shall have entered into a General Release
substantially in the form of Exhibit H hereto.
7.16. Termination Agreement. The Company and the other parties set
forth on Exhibit I hereto shall have entered into a Termination Agreement
substantially in the form of Exhibit I hereto.
7.17. Financial Tests. The Company shall have (A) for the month of
September, 2001 and October, 2001, Revenue of no less than $36,000,000 for each
such month and (B) Average Backlog for each Backlog Measurement Period of no
less than 28,000,000 square inches.
7.18. Bankruptcy Authorization. On or prior to October 8, 2001, the
Board of Directors of the Company shall have adopted an amendment to the
Company's by-laws providing that any authorization for the filing of a petition
under the Bankruptcy Code must be authorized by a vote of at least all but one
of the members of the Company's Board of Directors then in office, including at
least two such directors not affiliated or associated with E.ON AG or its
Affiliates, and such amendment shall not have been modified, revoked or
otherwise rendered ineffective.
7.19. Japanese Loans. The lenders in respect of the indebtedness owing
by the Company's Japanese subsidiary shall have agreed, on terms and otherwise
in form and substance reasonably satisfactory to TPG and Buyer, to the deferral
of at least $15,000,000 of debt amortization payments scheduled to be made in
the period October 2001 through and including December 2002 to a time or times
occurring after December 31, 2002.
29
7.20. Minimum Funding. The Company shall have fulfilled all
obligations existing at any time during the Pre-Closing Period under the minimum
funding standards of Section 412 of the Code determined without regard to any
waiver granted on or after the date of this Agreement, and the Company shall
have delivered to TPG and the Buyer an officer's certificate to such effect.
ARTICLE VIII
Conditions to Sellers' Obligations
----------------------------------
The obligations of Sellers hereunder are subject to the satisfaction,
or waiver in writing by Sellers, on or prior to the Closing Date of the
following conditions:
8.01. Accuracy of Representations and Warranties. The representations
and warranties of TPG and Buyer set forth in Article V hereof shall be true and
correct in all material respects on the date hereof and on the Closing Date with
the same effect as though such representations and warranties had been made on
and as of such date and each of TPG and Buyer shall have delivered to each
Seller a certificate to that effect, dated the Closing Date, and signed by a
duly authorized officer of each of TPG and Buyer.
8.02. Performance of Covenants. Each and all of the covenants and
agreements of TPG and Buyer to be performed or complied with prior to or on the
Closing Date shall have been duly performed or complied with by each of TPG and
Buyer, and each of TPG and Buyer shall have delivered to each Seller a
certificate to that effect, dated the Closing Date, and signed by a duly
authorized officer of each of TPG and Buyer.
8.03. Governmental Approvals. All provisions under the HSR Act and any
other required governmental approvals shall have beencomplied with, and the
respective waiting periods thereunder shall have expired or have been
terminated.
8.04. No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other legal restraint or prohibition
preventing the Transaction shall be in effect; provided, however, that each
Seller shall have used its commercially reasonable efforts to prevent the entry
of any such order, injunction or other restraint or prohibition against it and
to appeal as promptly as possible any such order, injunction or other restraint
or prohibition that may be entered against it.
30
8.05. Payment of Purchase Price. (a) Buyer shall have delivered to
each Noteholder at the Closing pursuant to Section 2.01, and each Noteholder
shall have received that portion of the Note Closing Payment payable to such
Noteholder.
(b) Buyer shall have delivered to each Shareholder at the Closing
pursuant to Section 2.02, and each Shareholder shall have received, that portion
of the Share Purchase Price payable to such Shareholder.
8.06. Receipt of Assignment and Acceptances. Buyer shall have
delivered to each Noteholder a counterpart original, executed by Buyer, of each
Assignment and Acceptance delivered by such Noteholder pursuant to Section 7.05
hereof.
8.07. Loan Agreement Release. The Company and each subsidiary of the
Company which is a party to a Loan Agreement shall have executed a release, of
all unperformed obligations of the lender under each of the Loan Agreements
substantially in the form of Exhibit G hereto.
8.08. General Release. The Company, the Sellers and the other parties
set forth on Exhibit H hereto shall have entered into a General Release
substantially in the form of Exhibit H hereto.
8.09. Termination Agreement. The Company and the other parties set
forth on Exhibit I hereto shall have entered into a Termination Agreement
substantially in the form of Exhibit I hereto.
8.10. Opinion of Counsel. Sellers shall have received (i) the opinion
of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, with respect to certain matters relating to
TPG and Buyer to the effect set forth in Exhibit J, and (ii) the opinion of
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for TPG and Buyer, to the effect set
forth in Exhibit K attached hereto.
8.11. Revolving Credit Facility. The Revolving Credit Lender and the
Company shall have entered into the Revolving Credit Facility, with terms
consistent with those set forth in Annex I and Section 6.17 and those set forth
in Section 7.17.
8.12. Company Pension Plan. (a) Any agreement entered into between
Buyer and/or the Company, on the one hand, and the PBGC on the other hand, shall
not require any obligation of any Seller beyond the obligation to provide a
capital contribution equal to five million dollars ($5,000,000).
(b) The Company shall have contributed to the Company Pension Plan an
amount equal to five million dollars ($5,000,000).
31
8.13. Bankruptcy Authorization. On or prior to the Closing Date, the
Board of Directors of the Company shall have adopted an amendment to the
Company's by-laws providing that any authorization for the filing of a petition
under the Bankruptcy Code during the period commencing on the Closing Date
through and including the date on which at least thirty million dollars
($30,000,000) has been loaned to the Company pursuant to the terms of the
Revolving Credit Facility must be authorized by a vote of at least all but one
of the members of the Company's Board of Directors then in office, including at
least two such directors not affiliated or associated with Buyer, TPG, any
Revolving Credit Lender, or any of their respective Affiliates, and such
amendment shall not have been modified, revoked or otherwise rendered
ineffective.
ARTICLE IX
Additional Covenants
--------------------
9.01. Notice. Each party hereto shall promptly give notice to the
other upon becoming aware of the occurrence or impending occurrence of any event
which would cause or constitute a breach of any of the representations and
warranties of such party contained in this Agreement (and such party shall take
all reasonable action necessary to prevent or promptly remedy the same) or a
failure to satisfy any of the conditions to such party's obligations to close
hereunder.
9.02. Further Assurances. From time to time, as and when requested by
either party hereto, the other party shall execute and deliver, or cause to be
executed and delivered, all such documents and instruments and shall take, or
cause to be taken, all such further or other actions, as such other party may
reasonably deem necessary or desirable to consummate the Transaction. In
addition, TPG and Buyer agree to provide Sellers with reasonable access to the
books and records of the Company and other relevant information, and to make
employees available, in each case as may be reasonably necessary or helpful in
order to assist any Seller in defending or asserting any claims or rights with
respect to the period prior to the Closing.
ARTICLE X
Termination of Agreement
------------------------
10.01. Termination. (a) Anything contained herein to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing Date:
32
(i) by mutual written consent of Sellers and Buyer;
(ii) by Sellers if any of the conditions set forth in Article VIII
shall have become incapable of fulfillment and shall not have been waived
by Sellers;
(iii) by Buyer if any of the conditions set forth in Article VII shall
have become incapable of fulfillment and shall not have been waived by
Buyer;
(iv) by Buyer or Sellers, if the Closing does not occur on or prior to
November 15, 2001 provided that such date shall be extended to November 30,
2001 if (a) the condition set forth in Section 7.03 shall not yet have been
satisfied and (b) Buyer and TPG shall have delivered to Sellers on November
15, 2001 an officers' certificate of Buyer and TPG (i) stating in
reasonable detail in which respects the condition contained in Section 7.03
has not been satisfied and (ii) confirming that all conditions precedent
contained in Article VII (other than the condition contained in Section
7.03) either (x) have been satisfied as of such date (and those conditions
shall be set forth in the certificate), (y) have been irrevocably and
unconditionally waived (and those conditions shall be set forth in the
certificate) or (z) are reasonably capable of being satisfied by November
30, 2001 (and those conditions shall be set forth in the certificate) and
(iii) stating that to TPG's and Buyer's knowledge, the condition contained
in Section 7.03 is reasonably capable of being satisfied by November 30,
2001;
(v) by Buyer or Sellers within thirty (30) days of the date on which a
voluntary or involuntary bankruptcy petition under the Bankruptcy Code is
filed by or against the Company; or
(vi) by Buyer or Sellers if the other party hereto breaches any of its
covenants or agreements contained herein and such breach is not cured
within 5 days of receipt of written notice of such breach (such notice to
be given in accordance with Section 12.10);
(vii) by Buyer or Sellers if Sellers or the Sellers' Representative
delivers a funding termination notice pursuant to Section 6.13;
(viii) by Buyer or Sellers on or prior to the fifth business day after
October 29, 2001 if Buyer shall not have delivered to Sellers on or prior
to October 29, 2001, an officers' certificate of TPG and Buyer confirming
that (i) Buyer and the Company have reached agreement upon the terms and
provisions of, and have executed and delivered, a definitive agreement, in
form and substance satisfactory to Buyer, with respect to the Company
Restructuring, and (ii) to TPG's and Buyer's knowledge, there are no
conditions to the Company
33
Restructuring contained in such definitive agreement that are not
reasonably capable of being satisfied;
(ix) by Buyer or Sellers at any time after October 29, 2001 if
Development Bank of Japan or any of the other lenders in respect of the
indebtedness owing by the Company's Japanese subsidiary shall at any time
(whether before, on or after October 29, 2001) accelerate amounts due or
accelerate required payments or maturity dates or take any other action
whereby payments of principal are owing on a date prior to the regularly
scheduled dates for payment of principal, and such acceleration shall be in
effect and not have been withdrawn at the time notice of termination has
been sent; or
(x) by Buyer or Sellers (i) within five (5) business days of the date
of receipt by Buyer or Sellers, as the case may be, of written notification
that the PBGC has instituted proceedings to terminate the Company Pension
Plan or (ii) within five business days of the date of receipt by Buyer or
Sellers, as the case may be, of written notification that PBGC has
threatened in writing to institute proceedings to terminate the Company
Pension Plan or taken other action that could result in a material
liability to the Company under Sections 4062 through 4064 or 4067 through
4070 of ERISA;
provided, however, that the party seeking termination (other than in a
termination pursuant to clause (i)) is not in breach in any material respect of
any of its representations, warranties, covenants or agreements contained in
this Agreement.
(b) In the event of termination by Sellers or Buyer pursuant to this
Section 10.01, written notice thereof shall forthwith be given to the other
party and the transactions contemplated by this Agreement shall be terminated,
without further action by either party.
(c) If this Agreement is terminated and the transactions contemplated
hereby are abandoned as described in this Section 10.01, this Agreement shall
become void and of no further force or effect, except for the provisions of (i)
Sections 3.07 and 5.08, (ii) Section 12.08, (iii) Section 6.03, (iv) Section
6.05, (v) Section 6.14 and (vi) this Section 10.01. Nothing in this Section
10.01 shall be deemed to release any party from any liability for any breach by
such party of the terms and provisions of this Agreement or to impair the right
of any party to compel specific performance by the other party of its
obligations under this Agreement.
34
ARTICLE XI
Indemnification
---------------
11.01. Indemnification by Sellers. The Sellers, jointly and severally,
will indemnify, defend, save and hold TPG, Buyer and their Affiliates (other
than the MEMC Affiliate Group) and any of their directors, officers, employees
or agents ("Buyer's Affiliates") harmless from and against any and all damages,
liabilities, losses, penalties, expenses, assessments, judgments or deficiencies
of any nature whatsoever (including, without limitation, reasonable attorneys'
fees and expenses, consultants' and investigators' fees and expenses, and other
costs and expenses incident to any suit, action or proceeding) (together,
"Losses") incurred or sustained by TPG, Buyer or any of Buyer's Affiliates which
arise out of or result from (a) any breach of any representation and warranty
given or made by a Seller herein or in any certificate delivered with respect
thereto, or (b) the noncompliance with or nonperformance of any agreement,
obligation or covenant of a Seller under this Agreement. Any claim for
indemnification hereunder for any breach or inaccuracy of a representation or
warranty must be made by notice to the Sellers within the applicable time period
specified in Section 12.01.
11.02. Indemnification by TPG and Buyer. TPG and Buyer, jointly and
severally, will indemnify, defend, save and hold Sellers and Sellers' Affiliates
(including any director, officer, employee or agent of any of the foregoing)
harmless from and against any and all Losses incurred or sustained by Sellers or
any of Sellers' Affiliates (including any director, officer, employee or agent
or other Affiliate of any of the foregoing) which arise out of or result from
(a) any breach of any representation and warranty given or made by TPG or Buyer
herein or in any certificate delivered with respect thereto or (b) the
noncompliance with or nonperformance of any agreement, obligation or covenant of
TPG or Buyer under this Agreement. Any claim for indemnification hereunder for
any breach of a representation or warranty must be made by notice to Buyer
within the applicable time period specified in Section 12.01.
11.03. Third-Party Claims. (a) Within 15 business days after service
of notice of any claim or of process by any third person in any matter in
respect of which indemnity may be sought from the other party pursuant to this
Agreement (a "Third-Party Claim"), the party in receipt of the claim (the
"Indemnified Party") shall notify the other party (the "Indemnifying Party") of
the receipt thereof. Unless the Indemnifying Party shall notify the Indemnified
Party that it elects to assume the defense of any such Third-Party Claim or
settlement thereof (such notice to be given as promptly as reasonably possible
in view of the necessity to arrange for such defense and in no event later than
10 days following the aforesaid notice), the Indemnified Party shall assume the
defense of any such Third-Party Claim or settlement thereof.
35
(b) If the Indemnifying Party elects to assume the defense of any
Third-Party Claim, the Indemnified Party shall cooperate with the Indemnifying
Party in the defense or prosecution thereof. Such cooperation shall include the
retention and (upon the Indemnifying Party's reasonable request) the provision
to the Indemnifying Party of records and information which are reasonably
relevant to such Third-Party Claim, and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder.
(c) Such defense shall be conducted expeditiously (but with due regard
for obtaining the most favorable outcome reasonably likely under the
circumstances, taking into account costs and expenditures) and the Indemnifying
Party or Indemnified Party, as the case may be, shall be advised promptly of all
developments. If the Indemnifying Party assumes the defense of any Third-Party
Claim, the Indemnified Party will have the right to participate fully in any
such action or proceeding and to retain its own counsel, but the fees and
expenses of such counsel will be at its own expense unless (i) the Indemnifying
Party shall have agreed to the retention of such counsel for both the
indemnifying and indemnified parties or (ii) the named parties to any such suit,
action or proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. If the Indemnifying Party shall have assumed the defense
of a Third-Party Claim, the Indemnified Party shall agree to any settlement,
compromise or discharge of a Third-Party Claim which the Indemnifying Party may
recommend and which by its terms obligates the Indemnifying Party to pay the
full amount of the liability in connection with such Third-Party Claim, which
releases the Indemnified Party completely in connection with such Third-Party
Claim and which would not otherwise adversely affect the Indemnified Party. The
Indemnified Party shall have the right to settle any Third-Party Claim the
defense of which shall not have been assumed by the Indemnifying Party provided
such settlement is reasonably acceptable to the Indemnifying Party. Buyer and
each Seller acknowledge and agree that its sole and exclusive remedy with
respect to any and all claims relating to the subject matter of this Agreement
shall be pursuant to the indemnification provisions set forth in this Article
XI. In furtherance of the foregoing Buyer and each Seller hereby waives to the
fullest extent permitted under applicable law, any and all rights, claims and
causes of action it may have against the other parties hereto, their Affiliates
and their respective officers, directors, employees, stockholders, agents and
representatives arising under or based upon any Federal, state, local or foreign
statute, law, ordinance, rule or regulation, except pursuant to the
indemnification provisions set forth in this Article XI.
(d) Notwithstanding the foregoing, the Indemnifying Party shall not be
entitled to assume the defense of any Third-Party Claim (and shall be liable for
the fees and expenses of counsel incurred by the Indemnified Party in defending
such Third Party
36
Claim) if the Third-Party Claim seeks an order, injunction or other equitable
relief or relief for other than money damages against the Indemnified Party, and
the Indemnified Party shall have the sole and exclusive right to settle any such
Third-Party Claim.
ARTICLE XII
Miscellaneous
-------------
12.01. Survival. The representations, warranties and covenants set
forth in this Agreement shall survive the Closing Date and shall remain in full
force and effect until expiration of the applicable statute of limitations. All
covenants, representations, warranties and agreements made by Sellers, on the
one hand, and TPG and/or Buyer, on the other hand, shall be unaffected by any
investigation made by TPG or Buyer or Sellers, respectively or by any knowledge
obtained as a result thereof or otherwise.
12.02. Entire Agreement; Amendment. This Agreement (including the
Schedules and Exhibits attached hereto) and the Assignment and Acceptances
constitute the entire agreement and understanding of the parties relating to the
subject matter hereof and supersede all prior agreements and understandings,
whether oral or written, relating to the subject matter hereof. The terms of
this Agreement cannot be changed, modified, released or discharged orally.
12.03. Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned by TPG or Buyer
without the prior written consent of each Seller or by any Seller without the
prior written consent of TPG and Buyer; provided, however, that this Agreement
may be assigned by Buyer to one or more Affiliates of Buyer, provided that (i)
Buyer shall notify in writing each Seller in advance of any proposed assignment,
(ii) after such assignment, TPG and Buyer shall continue to be bound by this
Agreement, and Buyer shall continue to be bound by each Assignment and
Acceptance executed by Buyer, and (iii) on or prior to the date of such
assignment TPG and Buyer and the assignee shall execute all such documents as
Sellers shall reasonably request.
12.04. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
12.05. Headings. The headings in this Agreement are included for
convenience of reference only and shall not in any way affect the meaning or
interpretation of this Agreement.
37
12.06. Certain Tax Matters. (a) Sellers, TPG and Buyer shall cooperate
with each other in connection with any Tax matter, including the preparation and
filing of any Tax Return or the handling of any audit, contest or court
proceeding, relating to Sellers' ownership or sale of the Shares or the Notes or
any of the transactions contemplated hereby. Such cooperation shall include (but
not be limited to) providing reasonable access to the books, records and
employees of the Company in each case as may be reasonably necessary or helpful
in order to reduce or minimize any Tax or to support a reporting position.
Sellers, TPG and Buyer further agree for all Tax purposes to abide by and report
all transactions contemplated hereunder consistent with this Agreement,
including in connection with the filing of any Tax Return, any refund claim or
in any litigation.
(b) Transfer Taxes. Buyer shall pay all sales, use, transfer, stamp,
conveyance, value added or similar taxes, duties, excises or governmental
charges imposed by any taxing jurisdiction, including any and all recording
fees, notarial fees and other similar costs of closing incurred in connection
with the sale, transfer or assignment of the Shares and/or the Notes or
otherwise on account of this Agreement or the transactions contemplated hereby.
12.07. Waiver; Requirement of Writing. This Agreement cannot be
changed or any performance, term or condition waived in whole or in part except
by a writing signed by the party against whom enforcement of the change or
waiver is sought. Any term or condition of this Agreement may be waived at any
time by the party hereto entitled to the benefit thereof. No delay or failure on
the part of any party in exercising any rights hereunder, and no partial or
single exercise thereof, will constitute a waiver of such rights or of any other
rights hereunder.
12.08. Expenses. Each of the parties hereto shall pay, without right
of reimbursement from the other party or, except as provided in other
agreements, from the Company, all the costs incurred by it incident to the
preparation, execution and delivery of this Agreement and the performance of its
obligations hereunder, whether or not the transactions contemplated by this
Agreement shall be consummated.
12.09. Sellers' Representative. (a) Each of the Sellers hereby
irrevocably makes, constitutes, and appoints E.ON AG its representative, agent
and true and lawful attorney in fact of and for each of the Sellers in
connection with the Transaction Documents and the Transaction (the "Sellers'
Representative"). Each of the Sellers hereby authorizes and empowers the
Sellers' Representative to make or give any approval, waiver, request, consent,
instruction or other communication on behalf of each of the Sellers as each such
Seller could do for himself, herself or itself, including with respect to the
amendment of any provision of any Transaction Document (or any schedule
thereto). Each of the Sellers authorizes and empowers the Sellers'
38
Representative to receive all demands, notices or other communications directed
to such Seller under any Transaction Document. Each of the Sellers authorizes
and empowers the Sellers' Representative to (A) take any action (or to determine
to refrain from taking any action) with respect thereto as the Sellers'
Representative may deem appropriate as effectively as if such Seller could act
for itself (including, without limitation, the settlement or compromise of any
dispute or controversy), which action will be binding on all the Sellers and (B)
execute and deliver all instruments and documents of every kind incident to the
foregoing with the same effect as if such Seller had executed and delivered such
instruments and documents personally. Accordingly, any demands, notices or other
communications directed to any Seller hereunder shall be deemed effective if
given to Sellers' Representative.
(b) Upon the resignation of the Sellers' Representative, or at any
other time or from time to time, a successor may be appointed by the Sellers'
Representative or the Sellers but such appointment will not be effective until
such successor shall agree in writing to accept such appointment and notice of
the selection of such successor Sellers' Representative is provided to Buyer.
(c) To the extent requested by the Sellers' Representative, the
Sellers shall indemnify the Sellers' Representative against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with
acting as the Sellers' Representative under this Agreement and the other
Transaction Documents, including the costs and expenses of enforcing this
Agreement and defending the Sellers against any claim whether asserted by TPG
and/or Buyer or any other person or liability in connection with the exercise or
performance of any of its powers hereunder, except to the extent any such loss,
liability or expense may be attributable to its gross negligence, bad faith or
willful misconduct.
12.10. TPG Representative. (a) Each entity comprising TPG hereby
irrevocably makes, constitutes, and appoints Buyer its representative, agent and
true and lawful attorney in fact of and for each of the entities comprising TPG
in connection with the Transaction Documents and the Transaction (the "TPG
Representative"). Each of the entities comprising TPG hereby authorizes and
empowers the TPG Representative to make or give any approval, waiver, request,
consent, instruction or other communication on behalf of each of the entities
comprising TPG as each such entity could do for himself, herself or itself,
including with respect to the amendment of any provision of any Transaction
Document (or any schedule thereto). Each of the entities comprising TPG
authorizes and empowers the TPG Representative to receive all demands, notices
or other communications directed to such entity under any Transaction Document.
Each of the entities comprising TPG authorizes and empowers the TPG
Representative to (A) take any action (or to determine to refrain from taking
any action) with respect thereto as the TPG Representative may deem appropriate
as effectively as if such entity could act for
39
itself (including, without limitation, the settlement or compromise of any
dispute or controversy), which action will be binding on all the entities
comprising TPG and (B) execute and deliver all instruments and documents of
every kind incident to the foregoing with the same effect as if such entity had
executed and delivered such instruments and documents personally. Accordingly,
any demands, notices or other communications directed to any entity comprising
TPG hereunder shall be deemed effective if given to the TPG Representative.
(b) Upon the resignation of the TPG Representative, or at any other
time or from time to time, a successor may be appointed by the TPG
Representative or the entities comprising TPG but such appointment will not be
effective until such successor shall agree in writing to accept such appointment
and notice of the selection of such successor TPG Representative is provided to
the Sellers' Representative.
(c) To the extent requested by the TPG Representative, the entities
comprising TPG shall indemnify the TPG Representative against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with acting as the TPG Representative under this Agreement and the other
Transaction Documents, including the costs and expenses of enforcing this
Agreement and defending the entities comprising TPG against any claim whether
asserted by any of the Sellers or any other person or liability in connection
with the exercise or performance of any of its powers hereunder, except to the
extent any such loss, liability or expense may be attributable to its gross
negligence, bad faith or willful misconduct.
12.11. Notices. Any notice, request, consent, waiver or other
communication required or permitted hereunder shall be effective only if it is
in writing and personally delivered or sent by certified or registered mail,
postage prepaid, addressed as set forth below, or sent by facsimile to the
number set forth below with confirmation received and followed by a writing
personally delivered or sent by certified or registered mail:
(a) If to TPG, the TPG Representative or Buyer:
Texas Pacific Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
40
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
(b) If to the Shareholders:
E.ON North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
VEBA Zweite Verwaltungsgesellschaft mbH
E.ON - ▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
---------
Telecopy: 011-49-211-45-79-963
--------
with copies to:
E.ON ▇▇
▇.▇▇ - ▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Legal Department
---------
Telecopy: 011-49-211-45-79-963
--------
41
and
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
(c) If to the Noteholders:
▇.▇▇ ▇▇
▇.▇▇ - ▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Legal Department
---------
Telecopy: 011-49-211-45-79-963
--------
▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
E.ON North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
E.ON International Finance ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇
---------
Telecopy: 011-31-20-4420-319
--------
42
with a copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
(d) If to the Sellers' Representative:
E.ON AG
E.ON - ▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Legal Department
---------
Telecopy: 011-49-211-45-79-963
--------
with a copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
---------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------
or such other person or address or to such other facsimile number as the
addressee may have specified in a notice duly given to the sender as provided
herein. Such notice or communication shall be deemed to have been given as of
the date so personally delivered, sent by facsimile or mailed.
12.12. Governing Law. This Agreement will be construed and interpreted
in accordance with and governed by the internal laws of the State of New York
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
12.13. Public Announcements. None of the parties shall make any press
release or public announcement with respect to the transactions contemplated
hereby without (i) in the case of TPG and/or Buyer, obtaining the prior approval
of Sellers and (ii) in the case of any Seller, obtaining the prior approval of
TPG and Buyer, except as
43
may be required by law or regulations of securities exchanges. Approvals under
this Section 12.12 shall not be unreasonably withheld.
12.14. No Third-Party Beneficiaries. Except to the extent specifically
set forth in Section 11.01 and Section 11.02, nothing in this Agreement is
intended or will be construed as creating or giving the Company or any person,
firm, corporation or other entity, other than the parties hereto and their
successors and permitted assigns, any right, remedy or claim under or in respect
of this Agreement or any provision hereof.
12.15. Construction; Interpretation. The parties have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. For the purposes of this
Agreement, (i) words in the singular shall be held to include the plural and
vice versa and words of one gender shall be held to include the other gender as
the context requires, (ii) the terms "hereof", "herein", and "herewith" and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this Agreement,
(iii) the word "including" and words of similar import when used in this
Agreement shall mean "including, without limitation", unless otherwise
specified, and (iv) the word "or," when used in expressions of condition or
exclusion, shall not be exclusive.
12.16. No Effect on the Company. Nothing contained in this Agreement
shall be deemed to affect or restrict in any way any actions of the Company or
its directors, and it is understood and agreed that no obligation is created by
this Agreement to agree upon or consummate the Company Restructuring.
44
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
or caused this Agreement to be duly executed by their respective officers
thereunto duly authorized, as of the date first above written.
E.ON AG
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Attorney in Fact
By: /s/ ▇▇▇▇▇▇ Supp
-----------------------------
Name: ▇▇▇▇▇▇ Supp
Title: Attorney in Fact
VEBA ZWEITE VERWALTUNGS-
GESELLSCHAFT MBH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Attorney in Fact
E.ON INTERNATIONAL FINANCE B.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Attorney in Fact
By: /s/ ▇▇▇▇▇▇ Supp
-----------------------------
Name: ▇▇▇▇▇▇ Supp
Title: Attorney in Fact
▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
E.ON NORTH AMERICA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
TPG PARTNERS III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
T3 PARTNERS, L.P.
By: T3 GenPar, L.P.
By: T3 Advisors, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
T3 PARTNERS II, L.P.
By: T3 GenPar II, L.P.
By: T3 Advisors II, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TPG WAFER HOLDINGS LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
2
[Annexes, Exhibits and Schedules to the Purchase Agreement intentionally
omitted]