EXHIBIT 3
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT (the "Agreement"), dated as of November 13, 2001,
among TPG Partners III, L.P., T3 Partners, L.P. and T3 Partners II, L.P., each a
Delaware limited partnership (collectively, "TPG"), TPG Wafer Holdings LLC, a
Delaware limited liability company ("Buyer"), Green Equity Investors III, L.P.
("GEI"), Green Equity Investors Side III, L.P. ("GEI Side") and TCW/Crescent
Mezzanine Partners III, L.P. ("TCW"), each a Delaware limited partnership,
TCW/Crescent Mezzanine Trust III, a Delaware trust ("TCW Trust"), TPG Wafer
Partners LLC, a Delaware limited liability company ("Wafer Partners"), and MEMC
Holdings Corporation, a Delaware corporation ("Holdings"). GEI, GEI Side, TCW,
TCW Trust, Wafer Partners and Holdings are referred to herein collectively as
the "New Investors" and each as a "New Investor".
W I T N E S S E T H :
WHEREAS, pursuant to that certain Purchase Agreement, dated as
of September 30, 2001 (the "Purchase Agreement"), by and among TPG and Buyer, on
the one hand, and E.ON AG, a German corporation, E.ON International Finance
B.V., a Dutch corporation, XXXXXXX 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,
"Sellers"), Buyer has the right to purchase the Shares and the Notes in
accordance with the terms of the Purchase Agreement;
WHEREAS, in accordance with Section 12.03 of the Purchase Agreement, Buyer
wishes to assign its right to purchase the Notes to the New Investors, and the
New Investors wish to accept such assignment; and
WHEREAS, in accordance with Section 12.03 of the Purchase Agreement, Buyer
has notified the Sellers in writing of this proposed assignment and the Sellers
have given their written consent to such assignment.
NOW, THEREFORE, in consideration of the obligations contained herein, and
for other good and valuable consideration, the adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein shall
have the meanings set forth in the Purchase Agreement.
Section 2. Assignment. (a) Buyer hereby assigns to Holdings its right to
purchase pursuant to the Purchase Agreement, and Holdings hereby agrees to
purchase from the Sellers pursuant to and in accordance with the terms of the
Purchase Agreement, the Notes set forth on Schedule 2(a) of this Agreement.
Buyer hereby assigns to Holdings all of its rights under the Purchase Agreement
with respect to the purchase of such Notes under the Purchase Agreement, and
Holdings accepts such Notes, subject to the terms of, and satisfaction of the
conditions to Closing set forth in, the Purchase Agreement, and hereby agrees to
assume the obligations of Buyer under the Purchase Agreement to the extent of
such assignment; provided, however, the amount of Buyer's obligation under
Section 2.06 of the Purchase Agreement assumed by Holdings hereunder shall not
exceed Holdings's Pro Rata Share of the aggregate payment obligation, if any, of
Buyer under Section 2.06 of the Purchase Agreement.
(b) Buyer hereby assigns to GEI and GEI Side its right to purchase pursuant
to the Purchase Agreement, and GEI and GEI Side hereby agree to purchase from
the Sellers pursuant to and in accordance with the terms of the Purchase
Agreement, the Notes set forth on Schedule 2(b) of this Agreement. Buyer hereby
assigns to GEI and GEI Side all of its rights under the Purchase Agreement with
respect to the purchase of such Notes under the Purchase Agreement, and GEI and
GEI Side accept such Notes, subject to the terms of, and satisfaction of the
conditions to Closing set forth in, the Purchase Agreement, and hereby agree to
assume the obligations of Buyer under the Purchase Agreement to the extent of
such assignment; provided, however, the amount of Buyer's obligation under
Section 2.06 of the Purchase Agreement assumed by GEI and GEI Side hereunder
shall not exceed GEI and GEI Side's respective Pro Rata Shares of the aggregate
payment obligation, if any, of Buyer under section 2.06 of the Purchase
Agreement.
(c) Buyer hereby assigns to TCW and TCW Trust its right to purchase
pursuant to the Purchase Agreement, and TCW and TCW Trust hereby agree to
purchase from the Sellers pursuant to and in accordance with the terms of the
Purchase Agreement, the Notes set forth on Schedule 2(c) of this Agreement.
Buyer hereby assigns to TCW and TCW Trust all of its rights under the Purchase
Agreement with respect to the purchase of such Notes under the Purchase
Agreement, and TCW and TCW Trust accept such Notes, subject to the terms of, and
satisfaction of the conditions to Closing set forth in, the Purchase Agreement,
and hereby agree to assume the obligations of Buyer under the Purchase Agreement
to the extent of such assignment; provided, however, the amount of Buyer's
obligation under Section 2.06 of the Purchase Agreement assumed by TCW and TCW
Trust hereunder shall not exceed TCW and TCW Trust's respective Pro Rata Share
of the aggregate payment obligation, if any, of Buyer under Section 2.06 of the
Purchase Agreement.
(d) Buyer hereby assigns to Wafer Partners its right to purchase pursuant
to the Purchase Agreement, and Wafer Partners hereby agrees to purchase from the
Sellers pursuant to and in accordance with the terms of the Purchase Agreement,
the Notes set forth on Schedule 2(d) of this Agreement. Buyer hereby assigns to
Wafer Partners all of its rights under the Purchase Agreement with respect to
the purchase of such Notes under the Purchase Agreement, and Wafer Partners
accepts such Notes, subject to the terms of, and satisfaction of the conditions
to Closing set forth in, the Purchase Agreement, and hereby agrees to assume the
obligations of Buyer under the Purchase Agreement to the extent of such
assignment; provided, however, the amount of Buyer's obligation under Section
2.06 of the Purchase Agreement assumed by Wafer Partners hereunder shall not
exceed Wafer Partners' Pro Rata Share of the aggregate payment obligation, if
any, of Buyer under Section 2.06 of the Purchase Agreement.
(e) Notwithstanding the foregoing provisions of Section 2 of this
Agreement, nothing in this Agreement shall increase the obligations or
liabilities of the Sellers under the Purchase Agreement in any way, or reduce or
diminish the obligations or liabilities of Buyer or TPG under the Purchase
Agreement in any way. By way of example and without limiting the preceding
sentence, any defense available to the Sellers with respect to any action or
claim by TPG or Buyer shall also be available to the Sellers with respect to any
action or claim by a New Investor, and each New Investor accepts the Notes and
the Purchase Agreement subject to any extensions, waivers, confirmations or
other actions taken or not taken by TPG and/or the Buyer and/or the TPG
Representative. Buyer and TPG acknowledge that they shall continue to be bound
by the Purchase Agreement and be liable for all obligations thereunder,
including without limitation the obligations under Section 2.06 and Article XI
thereof.
(f) Each New Investor hereby (i) consents to all the provisions of the
Purchase Agreement and agrees to be bound by provisions thereof which limit or
have the effect of limiting rights or claims it might otherwise have under the
Purchase Agreement or otherwise to the same extent as if such New Investor was
the Buyer or TPG, including without limitation the provisions of Sections 5.07
and 6.04 of the Purchase Agreement; and (ii) irrevocably makes, constitutes and
appoints the TPG Representative its representative, agent and true and lawful
attorney in fact for all matters relating to the Purchase Agreement, and agrees
that it shall not take any action with respect to the Purchase Agreement except
through the TPG Representative on its behalf.
(g) "Pro Rata Share" shall mean the percentage interest as set forth for
each New Investor on Schedule 2(e).
Section 3. Investment. (a) Each New Investor has independently, and without
reliance on Buyer or any of Buyer's Affiliates or any of their respective
partners, officers, directors, members, employees, agents or representatives
(collectively, the "TPG Parties"), made its own analysis and decision regarding
whether to enter this Agreement and purchase the Notes. Each New Investor
acknowledges receipt of the Purchase Agreement. Each New Investor acknowledges
that no TPG Party has provided any information to any New Investor, nor made any
statement, representation or warranty to any New Investor, with respect to the
Notes. Each New Investor agrees that it will, independently and without reliance
on any TPG Party, continue to make its own decisions regarding the Notes, and
each New Investor acknowledges that its exclusive rights and remedies with
respect to the Notes shall be those rights and remedies accorded to the Buyer
under the Investment Agreement.
(b) Each New Investor is acquiring the Notes for its own account solely for
the purpose of investment and not with a view to, or for sale in connection
with, any distribution thereof in violation of the Securities Act. Each New
Investor acknowledges that the Notes have not been registered under the
Securities Act and may be sold or disposed of in the absence of such
registration only pursuant to an exemption from the registration requirements of
the Securities Act.
Section 4. Entire Agreement. This Agreement sets forth the entire agreement
between the parties hereto with respect to the transactions contemplated by this
Agreement. Any provision of this Agreement may be amended, modified or
supplemented in whole or in part at any time by an agreement in writing among
the parties hereto executed in the same manner as this Agreement.
Section 5. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
SECTION 6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS RULES.
Section 7. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given, if delivered personally,
by telecopier or sent by first class mail, postage prepaid, as follows:
(a) If to Buyer, TPG, Wafer Partners or Holdings:
Texas Pacific Group
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xx. Xxxxx X. X'Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
(b) If to GEI or GEI Side:
Xxxxxxx Xxxxx & Partners, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
(c) If to TCW or TCW Trust:
TCW/Crescent Mezzanine Partners III, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx-Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Section 8. Termination. This Agreement shall be terminated and shall be of
no further force or effect if the Purchase Agreement is validly terminated in
accordance with Section 10.01 thereof, except for Section 6 hereof, which shall
survive any termination of this Agreement.
Section 9. No Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and the Sellers and, with respect to Section 11.02
of the Purchase Agreement, the Sellers' Affiliates (including any director,
officer, employee or agent or other Affiliate of any of the foregoing) and their
respective successors and permitted assigns and nothing herein, express or
implied, is intended or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Sellers and Sellers' Affiliates are third party beneficiaries
of this Agreement.
Section 10. Successors and Assigns. This Agreement is not transferable or
assignable by the New Investors, except with the prior written consent of the
Buyer. Any purported transfer or assignment of this Agreement without such
written consent shall be null and void.
IN WITNESS WHEREOF, this Assignment Agreement executed on behalf of the
parties hereto by their respective duly authorized officers, all as of the date
first above written.
TPG PARTNERS III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: /s/ Xxxxx X. X' Xxxxx
---------------------
Name: Xxxxx X. X'Xxxxx
Title: Vice President
T3 PARTNERS, L.P.
By: T3 GenPar, L.P., its general partner
By: T3 Advisors, Inc., its general partner
By: /s/ Xxxxx X. X' Xxxxx
---------------------
Name: Xxxxx X. X'Xxxxx
Title: Vice President
T3 PARTNERS II, L.P.
By: T3 GenPar II, L.P., its general partner
By: T3 Advisors II, Inc., its general partner
By: /s/ Xxxxx X. X' Xxxxx
---------------------
Name: Xxxxx X. X'Xxxxx
Title: Vice President
TPG WAFER HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG WAFER PARTNERS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
MEMC HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TCW/CRESCENT MEZZANINE PARTNERS III, L.P. and
TCW/CRESCENT MEZZANINE TRUST III
By: TCW/Crescent Mezzanine Management III,
L.L.C.
its Investment Manager.
By: TCW Asset Management Company,
its Sub-Advisor
By: /s/ Xxxx-Xxxx Xxxxxx
--------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC, its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Manager
GREEN EQUITY INVESTORS SIDE III, L.P.
By: GEI Capital III, LLC, its General Partner
By: /s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Manager
