EXHIBIT 28
SETTLEMENT AGREEMENT
Settlement Agreement dated as of the 19th day of August, 2003 (this
"Agreement"), by and among E.ON AG, a German corporation, E.ON International
Finance B.V., a Dutch corporation, XXXXXXX Corporation, a Delaware corporation,
and E.ON North America, Inc., a Delaware corporation, on the one hand
(collectively, the "Noteholders") and TPG Partners III, L.P., T3 Partners, L.P.
and T3 Partners II, L.P., each a Delaware limited partnership and TPG Wafer
Holdings LLC, a Delaware limited liability company, on the other hand
(collectively, "TPG").
Reference is made to the Purchase Agreement dated as of September 30,
2001 (the "Purchase Agreement") by and among the Noteholders, Veba Zweite
Verwaltungsgesellschaft MBH, and TPG. Capitalized terms used but not defined
herein shall have the meanings set forth in the Purchase Agreement.
WHEREAS, the parties have had a disagreement with respect to the amount
of the Performance Payment Amount payable pursuant to Section 2.06 of the
Purchase Agreement and have now compromised and resolved their disagreement and
wish to set forth herein their agreement with respect to the amount and payment
of the Performance Payment Amount.
The parties hereto, intending to be legally bound hereby, agree as
follows:
Section 1. Notwithstanding the provisions of Section 2.06 of the
Purchase Agreement and in full and complete settlement of the Noteholders'
claims under Section 2.06 of the Purchase Agreement, the parties agree that (a)
the Performance Payment Amount shall be U.S. 25.2 million dollars (U.S.
$25,200,000) (the "Settlement Sum") and (b) the Settlement Sum shall be paid on
or before August 22, 2003 by the Buyer to the Sellers' Representative (on behalf
of the Noteholders) by wire transfer of immediately available funds to the
following account of E.ON AG, Deutsche Bank Frankfurt via Deutsche Bank Trust
Company Americas, New York, favour Deutsche Bank Dusseldorf for the account of
E.ON AG account number 0000000 00 USD.
Section 2. This Agreement shall be consummated and the Settlement Sum
shall be paid only if each Noteholder and TPG shall have executed and exchanged
delivery of mutual releases in the form annexed hereto as Exhibits A-1 through
A-8, as applicable.
Section 3. Neither the Noteholders nor TPG admits to any liability or
wrongdoing whatsoever and neither this Agreement nor the payment or acceptance
of the Settlement Sum is, nor shall they be construed, described or
characterized by any party hereto or by its agents or representatives, as an
admission by the Noteholders or TPG of any liability or wrongdoing. This
Agreement and the payment and acceptance of the Settlement Sum are compromises
of disputed claims between the Noteholders and TPG.
Section 4. 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.
Section 5. This Agreement is binding upon and inures to the benefit of
all successors in interest and assigns of the Noteholders and TPG.
Section 6. This Agreement cannot be changed, amended or modified 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, amendment,
modification or waiver is sought.
Section 7. 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.
Section 8. This Agreement contains the entire understanding between the
Noteholders and TPG with respect to the Performance Payment Amount payable
pursuant to Section 2.06 of the Purchase Agreement. All prior discussions and
agreements between the parties are merged herein. There are no representations,
warranties, covenants, promises, or undertakings relating to the subject matter
of this Agreement, except those expressly set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, or caused this Agreement to be duly executed by their representative
officers thereunto duly authorized, as of the date first above written.
E.ON AG
By: /s/ Xxxx-Xxxxx Xxxxxxxx
------------------------------
Name: Xxxx-Xxxxx Xxxxxxxx
Title: Corporate Counsel
By: /s/ Xx. Xxxx Xxxxxx
------------------------------
Name: Xx. Xxxx Xxxxxx
Title: Executive Vice
President
E.ON International Finance B.V.
By: /s/ Xxxxxx
------------------------------
Name: Xxxxxx
Title: Director
By: /s/ X. Xxxxxxx
------------------------------
Name: X. Xxxxxxx
Title: Director
XXXXXXX Corporation
By: /s/ Xxx Xxxx
------------------------------
Name: Xxx Xxxx
Title: President
E.ON North America, Inc.
By: /s/ A. Xxxx Xxxxxxxxxxx, Xx.
------------------------------
Name: A. Xxxx Xxxxxxxxxxx, Xx.
Title: Vice President
TPG Partners III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
T3 Partners, L.P.
By: T3 GenPar, L.P.
By: T3 Advisors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
T3 Partners II, L.P.
By: T3 GenPar II, L.P.
By: T3 Advisors II, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG Wafer Holdings LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Exhibit A-1
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT E.ON
AG, a German corporation ("Releasor"), in consideration of the Settlement
Agreement entered into as of August 19th, 2003 by and among the Releasor, E.ON
International Finance B.V., a Dutch corporation, XXXXXXX Corporation, a Delaware
corporation, and E.ON North America, Inc., a Delaware corporation, on the one
hand (collectively, the "Noteholders") and TPG Partners III, L.P., T3
Partners, L.P. and T3 Partners II, L.P., each a Delaware limited partnership
and TPG Wafer Holdings LLC, a Delaware limited liability company, on the other
hand (collectively, "TPG"), releases and discharges TPG ("Releasee"), their
parents, subsidiaries and affiliates and their present and former directors,
managing directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns from all actions, causes of
action, accounts, agreements, bonds, bills, covenants, contracts, controversies,
claims, damages, demands, debts, dues, extents, executions, judgments,
liabilities, obligations, promises, predicate acts, reckonings, specialties,
suits, sums of money, trespasses and variances whatsoever, whether known or
unknown, in law, admiralty or equity (collectively, "Claims"), which against any
of them the Releasor, its corporate parents, subsidiaries and affiliates and
their present and former directors, managing directors, officers, control
persons, stockholders, employees, agents, attorneys, administrators, successors
and assigns ever had or now has or may have, for, upon, or by reason of any
matter, cause or thing related to Section 2.06 of the Purchase Agreement, dated
as of September 30, 2001, by and among the Noteholders, Veba Zweite
Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an
instrument in writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
E.ON AG
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
Exhibit A-2
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT E.ON
International Finance B.V., a Dutch corporation ("Releasor"), in consideration
of the Settlement Agreement entered into as of August 19th, 2003 by and among
E.ON AG, a German corporation, the Releasor, XXXXXXX Corporation, a Delaware
corporation, and E.ON North America, Inc., a Delaware corporation, on the one
hand (collectively, the "Noteholders") and TPG Partners III, L.P., T3
Partners, L.P. and T3 Partners II, L.P., each a Delaware limited partnership
and TPG Wafer Holdings LLC, a Delaware limited liability company, on the other
hand (collectively, "TPG"), releases and discharges TPG ("Releasee"), their
parents, subsidiaries and affiliates and their present and former directors,
managing directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns from all actions, causes of
action, accounts, agreements, bonds, bills, covenants, contracts, controversies,
claims, damages, demands, debts, dues, extents, executions, judgments,
liabilities, obligations, promises, predicate acts, reckonings, specialties,
suits, sums of money, trespasses and variances whatsoever, whether known or
unknown, in law, admiralty or equity (collectively, "Claims"), which against any
of them the Releasor, its corporate parents, subsidiaries and affiliates and
their present and former directors, managing directors, officers, control
persons, stockholders, employees, agents, attorneys, administrators, successors
and assigns ever had or now has or may have, for, upon, or by reason of any
matter, cause or thing related to Section 2.06 of the Purchase Agreement, dated
as of September 30, 2001, by and among the Noteholders, Veba Zweite
Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an instrument in
writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
E.ON International Finance B.V.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
Exhibit A-3
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT
XXXXXXX Corporation, a Delaware corporation ("Releasor"), in consideration of
the Settlement Agreement entered into as of August 19th, 2003 by and among E.ON
AG, a German corporation, E.ON International Finance B.V., a Dutch corporation,
the Releasor, and E.ON North America, Inc., a Delaware corporation, on the one
hand (collectively, the "Noteholders") and TPG Partners III, L.P., T3
Partners, L.P. and T3 Partners II, L.P., each a Delaware limited partnership
and TPG Wafer Holdings LLC, a Delaware limited liability company, on the other
hand (collectively, "TPG"), releases and discharges TPG ("Releasee"), their
parents, subsidiaries and affiliates and their present and former directors,
managing directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns from all actions, causes of
action, accounts, agreements, bonds, bills, covenants, contracts, controversies,
claims, damages, demands, debts, dues, extents, executions, judgments,
liabilities, obligations, promises, predicate acts, reckonings, specialties,
suits, sums of money, trespasses and variances whatsoever, whether known or
unknown, in law, admiralty or equity (collectively, "Claims"), which against any
of them the Releasor, its corporate parents, subsidiaries and affiliates and
their present and former directors, managing directors, officers, control
persons, stockholders, employees, agents, attorneys, administrators, successors
and assigns ever had or now has or may have, for, upon, or by reason of any
matter, cause or thing related to Section 2.06 of the Purchase Agreement, dated
as of September 30, 2001, by and among the Noteholders, Veba Zweite
Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an instrument in
writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
XXXXXXX Corporation
By:
------------------------------
Name:
Title:
STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
On ___ day of August, 2003 before me personally
came______________________, to me known, who, being by me duly sworn, did depose
and say that he resides at
_________________________________________________________, that he is the
________________ of XXXXXXX Corporation, the entity described in and which
executed the foregoing Release and that he is duly authorized to execute said
Release on behalf of XXXXXXX Corporation.
-------------------
Notary Public
Exhibit A-4
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT E.ON
North America, Inc., a Delaware corporation ("Releasor"), in consideration of
the Settlement Agreement entered into as of August 19th, 2003 by and among E.ON
AG, a German corporation, E.ON International Finance B.V., a Dutch corporation,
XXXXXXX Corporation, a Delaware corporation, and the Releasor, on the one hand
(collectively, the "Noteholders") and TPG Partners III, L.P., T3 Partners,
L.P. and T3 Partners II, L.P., each a Delaware limited partnership and TPG
Wafer Holdings LLC, a Delaware limited liability company, on the other hand
(collectively, "TPG"), releases and discharges TPG ("Releasee"), their parents,
subsidiaries and affiliates and their present and former directors, managing
directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns from all actions, causes of
action, accounts, agreements, bonds, bills, covenants, contracts, controversies,
claims, damages, demands, debts, dues, extents, executions, judgments,
liabilities, obligations, promises, predicate acts, reckonings, specialties,
suits, sums of money, trespasses and variances whatsoever, whether known or
unknown, in law, admiralty or equity (collectively, "Claims"), which against any
of them the Releasor, its corporate parents, subsidiaries and affiliates and
their present and former directors, managing directors, officers, control
persons, stockholders, employees, agents, attorneys, administrators, successors
and assigns ever had or now has or may have, for, upon, or by reason of any
matter, cause or thing related to Section 2.06 of the Purchase Agreement, dated
as of September 30, 2001, by and among the Noteholders, Veba Zweite
Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an instrument in
writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
E.ON North America, Inc.
By:
------------------------------
Name:
Title:
STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
On ___ day of August, 2003 before me personally came
__________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at
_________________________________________________________, that he is the
________________ of E.ON North America, Inc., the entity described in and which
executed the foregoing Release and that he is duly authorized to execute said
Release on behalf of E.ON North America, Inc.
----------------------
Notary Public
Exhibit A-5
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT TPG
Partners III, L.P., a Delaware limited partnership ("Releasor"), in
consideration of the Settlement Agreement entered into as of August 19th, 2003
by and among E.ON AG, a German corporation, E.ON International Finance B.V., a
Dutch corporation, XXXXXXX Corporation, a Delaware corporation, and E.ON North
America, Inc., a Delaware corporation, on the one hand (collectively, the
"Noteholders") and the Releasor, T3 Partners, L.P. and T3 Partners II, L.P.,
each a Delaware limited partnership and TPG Wafer Holdings LLC, a Delaware
limited liability company, on the other hand (collectively, "TPG"), releases and
discharges the Noteholders ("Releasee"), their parents, subsidiaries and
affiliates and their present and former directors, managing directors, officers,
control persons, stockholders, employees, agents, attorneys, administrators,
successors and assigns from all actions, causes of action, accounts, agreements,
bonds, bills, covenants, contracts, controversies, claims, damages, demands,
debts, dues, extents, executions, judgments, liabilities, obligations, promises,
predicate acts, reckonings, specialties, suits, sums of money, trespasses and
variances whatsoever, whether known or unknown, in law, admiralty or equity
(collectively, "Claims"), which against any of them the Releasor, its corporate
parents, subsidiaries and affiliates and their present and former directors,
managing directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns ever had or now has or may
have, for, upon, or by reason of any matter, cause or thing related to Section
2.06 of the Purchase Agreement, dated as of September 30, 2001, by and among the
Noteholders, Veba Zweite Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an
instrument in writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
TPG Partners III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By:
------------------------------
Name:
Title:
STATE OF TEXAS )
:
COUNTY OF [_______] )
On ___ day of August, 2003 before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he resides at
__________________________________________________________, that he is the
_______________ of TPG Advisors III, Inc., which is the general partner of TPG
GenPar III, L.P., which is the general partner of TPG Partners III, L.P., the
entity described in and which executed the foregoing Release and that he is duly
authorized by TPG Advisors III, Inc. to execute said Release on behalf of TPG
Partners III, L.P.
------------------
Notary Public
Exhibit A-6
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT T3
Partners, L.P., a Delaware limited partnership ("Releasor"), in consideration of
the Settlement Agreement entered into as of August 19th, 2003 by and among E.ON
AG, a German corporation, E.ON International Finance B.V., a Dutch corporation,
XXXXXXX Corporation, a Delaware corporation, and E.ON North America, Inc., a
Delaware corporation, on the one hand (collectively, the "Noteholders") and the
Releasor, TPG Partners III, L.P., and T3 Partners II, L.P., each a Delaware
limited partnership and TPG Wafer Holdings LLC, a Delaware limited liability
company, on the other hand (collectively, "TPG"), releases and discharges the
Noteholders ("Releasee"), their parents, subsidiaries and affiliates and their
present and former directors, managing directors, officers, control persons,
stockholders, employees, agents, attorneys, administrators, successors and
assigns from all actions, causes of action, accounts, agreements, bonds, bills,
covenants, contracts, controversies, claims, damages, demands, debts, dues,
extents, executions, judgments, liabilities, obligations, promises, predicate
acts, reckonings, specialties, suits, sums of money, trespasses and variances
whatsoever, whether known or unknown, in law, admiralty or equity (collectively,
"Claims"), which against any of them the Releasor, its corporate parents,
subsidiaries and affiliates and their present and former directors, managing
directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns ever had or now has or may
have, for, upon, or by reason of any matter, cause or thing related to Section
2.06 of the Purchase Agreement, dated as of September 30, 2001, by and among the
Noteholders, Veba Zweite Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an instrument in
writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
T3 Partners, L.P.
By: T3 GenPar, L.P.
By: T3 Advisors, Inc.
By:
------------------------------
Name:
Title:
STATE OF TEXAS )
:
COUNTY OF [_______] )
On ___ day of August, 2003 before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at
________________________________________________________, that he is the
________________ of T3 Advisors, Inc., which is the general partner of T3
GenPar, L.P., which is the general partner of T3 Partners, L.P., the entity
described in and which executed the foregoing Release and that he is duly
authorized by T3 Advisors, Inc. to execute said Release on behalf of T3
Partners, L.P.
-------------------
Notary Public
Exhibit A-7
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT T3
Partners II, L.P., a Delaware limited partnership ("Releasor"), in consideration
of the Settlement Agreement entered into as of August 19th, 2003 by and among
E.ON AG, a German corporation, E.ON International Finance B.V., a Dutch
corporation, XXXXXXX Corporation, a Delaware corporation, and E.ON North
America, Inc., a Delaware corporation, on the one hand (collectively, the
"Noteholders") and the Releasor, TPG Partners III L.P. and T3 Partners, L.P.,
each a Delaware limited partnership and TPG Wafer Holdings LLC, a Delaware
limited liability company, on the other hand (collectively, "TPG"), releases and
discharges the Noteholders ("Releasee"), their parents, subsidiaries and
affiliates and their present and former directors, managing directors, officers,
control persons, stockholders, employees, agents, attorneys, administrators,
successors and assigns from all actions, causes of action, accounts, agreements,
bonds, bills, covenants, contracts, controversies, claims, damages, demands,
debts, dues, extents, executions, judgments, liabilities, obligations, promises,
predicate acts, reckonings, specialties, suits, sums of money, trespasses and
variances whatsoever, whether known or unknown, in law, admiralty or equity
(collectively, "Claims"), which against any of them the Releasor, its corporate
parents, subsidiaries and affiliates and their present and former directors,
managing directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns ever had or now has or may
have, for, upon, or by reason of any matter, cause or thing related to Section
2.06 of the Purchase Agreement, dated as of September 30, 2001, by and among the
Noteholders, Veba Zweite Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an
instrument in writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
T3 Partners II, L.P.
By: T3 GenPar II, L.P.
By: T3 Advisors II, Inc.
By:
------------------------------
Name:
Title:
STATE OF TEXAS )
:
COUNTY OF [_______] )
On ___ day of August, 2003 before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he resides at ________________________________________________________,
that he is the ________________ of T3 Advisors II, Inc., which is the general
partner of T3 GenPar II, L.P., which is the general partner of T3 Partners
II, L.P., the entity described in and which executed the foregoing Release and
that he is duly authorized by T3 Advisors II, Inc. to execute said Release on
behalf of T3 Partners II, L.P.
------------------
Notary Public
Exhibit A-8
LIMITED RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT TPG
Wafer Holdings LLC, a Delaware limited liability company ("Releasor"), in
consideration of the Settlement Agreement entered into as of August 19th, 2003
by and among E.ON AG, a German corporation, E.ON International Finance B.V., a
Dutch corporation, XXXXXXX Corporation, a Delaware corporation, and E.ON North
America, Inc., a Delaware corporation, on the one hand (collectively, the
"Noteholders") and TPG Partners III, L.P., T3 Partners, L.P. and T3 Partners
II, L.P., each a Delaware limited partnership and the Releasor, on the other
hand (collectively, "TPG"), releases and discharges the Noteholders
("Releasee"), their parents, subsidiaries and affiliates and their present and
former directors, managing directors, officers, control persons, stockholders,
employees, agents, attorneys, administrators, successors and assigns from all
actions, causes of action, accounts, agreements, bonds, bills, covenants,
contracts, controversies, claims, damages, demands, debts, dues, extents,
executions, judgments, liabilities, obligations, promises, predicate acts,
reckonings, specialties, suits, sums of money, trespasses and variances
whatsoever, whether known or unknown, in law, admiralty or equity (collectively,
"Claims"), which against any of them the Releasor, its corporate parents,
subsidiaries and affiliates and their present and former directors, managing
directors, officers, control persons, stockholders, employees, agents,
attorneys, administrators, successors and assigns ever had or now has or may
have, for, upon, or by reason of any matter, cause or thing related to Section
2.06 of the Purchase Agreement, dated as of September 30, 2001, by and among the
Noteholders, Veba Zweite Verwaltungsgesellschaft MBH, and TPG.
This Release may not be modified or amended except by an instrument in
writing signed by the Releasor and each Releasee.
IN WITNESS WHEREOF, the Releasor has executed this Release on the ____
day of August, 2003.
TPG Wafer Holdings LLC
By:
------------------------------
Name:
Title:
STATE OF TEXAS )
:
COUNTY OF [_______] )
On ___ day of August, 2003 before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he resides at _______________________________________________________,
that he is the ________________ of TPG Wafer Holdings LLC, the entity described
in and which executed the foregoing Release and that he is duly authorized by
TPG Wafer Holdings LLC to execute said Release on behalf of TPG Wafer Holdings
LLC.
--------------------
Notary Public
