Exhibit 54
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of December 30, 1998 (the
"Agreement") by and between VEBA Corporation, a Delaware corporation
("Assignor"), and VEBA Zweite Verwaltungsgesellschaft mbH, a German limited
liability company ("Assignee").
WHEREAS, Assignor entered into that certain Purchase Agreement dated as
of October 22, 1998 (the "Purchase Agreement"), by and among Assignor and MEMC
Electronic Materials, Inc. ("MEMC") and that certain Standby Agreement dated as
of October 22, 1998 (the "Standby Agreement", and together with the Purchase
Agreement, the "MEMC Agreements"), by and among Assignor and MEMC;
WHEREAS, pursuant to Section 7.4 of the Purchase Agreement and Section
6.4 of the Standby Agreement, Assignor may assign its rights under each of the
MEMC Agreements to Assignee without the consent of MEMC; and
WHEREAS, Assignor desires to assign its rights under the MEMC
Agreements to Assignee, and Assignee desires to accept such assignment.
NOW, THEREFORE, it is agreed as follows:
1. For good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, Assignor assigns and transfers to Assignee, as of
the date hereof, all of Assignor's rights under the Purchase Agreement to
purchase the Common Shares (as defined in the Purchase Agreement), all of
Assignor's rights under the Standby Agreement to purchase the Common Stock (as
defined in the Standby Agreement and referred to hereinafter as the "Common
Shares") and any other rights and benefits afforded to it under the MEMC
Agreements. Such assignment shall not discharge Assignor from its obligations
under the MEMC Agreements.
2. Assignee accepts such assignment as of the date hereof. As between
Assignor and Assignee, Assignee assumes all of Assignor's obligations arising
after the date hereof under the MEMC Agreements.
3. Assignee is acquiring the Common Shares solely by and for its own
account as principal, for investment purposes only, and not for the account of
any other person and not with a view to, or for, distribution, assignment,
fractionalization or resale or distribution to others in whole or in part in
violation of the Securities Act.
4. Assignee understands that the offering and the sale of the Common
Shares are intended to be exempt from registration under the Securities Act
pursuant to Section 4(2) of the Securities Act. Assignee is not acquiring the
Common Shares as a result of (i) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media or
broadcast over television or radio or (ii) any seminar meeting whose attendees
had been invited as a result of, subsequent to, or pursuant to any of the
foregoing.
5. Assignee is an accredited investor within the meaning of Regulation
D under the Securities Act.
6. Assignee acknowledges that the Common Shares, in its hands, will be
restricted securities under the Securities Act which may not be sold or offered
for sale in the absence of an effective registration statement as to such Common
Shares under the Securities Act or an opinion of counsel satisfactory to MEMC
that such registration is not required. Assignee agrees it will not transfer, by
way of gift or otherwise, or sell the Common Shares or any part thereof, unless
such Common Shares have been registered under the Securities Act and any
applicable state securities laws or it first obtains, at its own expense, if
requested by MEMC, an opinion of counsel reasonably satisfactory to MEMC that
the transfer of such Common Shares may be effected without registration under
the Securities Act and any applicable state securities laws. Assignee
acknowledges that the certificates evidencing the Common Shares will contain a
legend to such effect.
7. This Agreement is made subject to and in accordance with the
provisions of each of the MEMC Agreements. MEMC shall be a third party
beneficiary of Assignee's agreements and acknowledgments under paragraphs 3, 4,
5 and 6 above.
8. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard to conflict of
law principles thereof.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
as of the day and year first above written.
VEBA Corporation, as Assignor
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: X.X. Xxxxxxxxx
Title: President
VEBA Zweite Verwaltungsgesellschaft mbH,
as Assignee
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xx. Xxxxxxxxx Xxxxxxxx
Title: Attorney-in-fact
