As filed with the Securities and Exchange Commission on January 2, 1997
Registration No.
---------
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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MEMC Electronic Materials, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 56-1505767
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
501 Pearl Drive
St. Peters, Missouri 63376
(Address of Principal Executive Offices)
MEMC Retirement Savings Plan
(Full title of the plan)
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HELENE F. HENNELLY
MEMC Electronic Materials, Inc.
501 Pearl Drive
St. Peters, Missouri 63376
(Name and address of agent for service)
(314) 279-5500
(Telephone number, including area code, of agent for service)
------------------
<TABLE>
===============================================================================
CALCULATION OF REGISTRATION FEE
===============================================================================
<CAPTION>
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- ------------ ---------- ------------- ---------------- -----------
<S> <C> <C> <C> <C>
Common Stock 3,000,000<F1> $23.0625<F2> $69,187,500<F2> $20,965.91<F2>
par value $.01
per share
===============================================================================
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of participation interests to be offered or sold pursuant
to the MEMC Retirement Savings Plan
<FN>
<F1> Plus such additional shares as may be issued by reason of
stock splits, stock dividends or similar transactions.
<F2> The proposed maximum offering price per share and the maximum
aggregate offering price are estimated for the sole purpose
of calculating the amount of the registration fee. The
maximum offering price per share is based on the average of
the high and low sale prices of the Common Stock as reported
in the Wall Street Journal for the "New York Stock Exchange --
Composite Transactions for December 27, 1996, pursuant to
Rule 457(h).
</FN>
</TABLE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) The Annual Report of MEMC Electronic Materials,
Inc. (the "Company") on Form 10-K for the year ended December
31, 1995, dated March 22, 1996, filed pursuant to Section 13(a)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) (1) the Registrant's Current Report on Form 8-K
dated March 18, 1996.
(2) the Registrant's Quarterly Report on Form 10-Q
for the three months ended March 31, 1996, dated May 1,
1996.
(3) the Registrant's Quarterly Report on Form 10-Q
for the three months ended June 30, 1996, dated August
12, 1996.
(4) the Registrant's Current Report on Form 8-K
dated September 10, 1996.
(5) the Registrant's Quarterly Report on Form 10-Q
for the three months ended September 30, 1996, dated
November 13, 1996.
(c) the description of the Registrant's common stock,
par value $.01 per share, contained in the Registrant's
Registration Statement on Form 8-A (File No. 1-13828) for
registration of such common stock under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, including annual reports on Form 11-K which may be deemed to
be filed by the MEMC Retirement Savings Plan, prior to the filing
of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part thereof from the date of filing of such
reports and documents. Any statement incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
As of the date of this Registration Statement, certain
members and employees of the law firm of Thompson Coburn own in
excess of $50,000 in market value of MEMC common stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law
provides, in summary, that directors and officers of Delaware
corporations are entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including
attorney's fees) incurred by them as a result of suits brought
against them in their capacity as a director or officer, if they
acted in good faith and in a manner they reasonably believed to be
in or not opposed to the best interests of the company, and, with
respect to any criminal action or proceeding, if they had no
reasonable cause to believe their conduct was unlawful; provided
that no indemnification may be made against expenses in respect of
any claim, issue or matter as to which they shall have been
adjudged to be liable to the company, unless and only to the
extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to indemnification for each of
expenses which the court shall deem proper. The Restated
Certificate of Incorporation of the Registrant permits
indemnification of its directors and officers to the maximum
extent permitted by Delaware law, as the same may be amended from
time to time.
The Registrant has in effect a directors and officers
liability insurance policy indemnifying the directors and officers
of the Registrant for certain liability incurred by them,
including liabilities under the Securities Act of 1933, as amended
(the "Securities Act"). The Registrant pays the entire premium of
this policy.
The Registrant's Restated Certificate of Incorporation
contains a provision that eliminates the personal liability of
directors of the Registrant for monetary damages for certain
breaches of fiduciary duty, as permitted by Section 102(b)(7) of
the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities being offered therein, and
the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Peters, State of Missouri on
January 2, 1997.
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ Ludger H. Viefhues
---------------------------
Name: Ludger H. Viefhues
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below by
the following persons in the indicated capacities on January 2,
1997.
Signature Title Date
- --------- ----- ----
/s/ Dr. Erhard Meyer-Galow Chairman of the )
- -------------------------- Board of Directors )
Dr. Erhard Meyer-Galow )
)
/s/ H. Jurgen Biangardi Director )
- -------------------------- )
H. Jurgen Biangardi )
) January 2, 1997
/s/ Armin-Peter Bode Director )
- -------------------------- )
Armin-Peter Bode )
)
Signature Title Date
- --------- ----- ----
/s/ Willem D. Maris Director )
- -------------------------- )
Willem D. Maris )
)
/s/ Roger D. McDaniel Director )
- -------------------------- )
Roger D. McDaniel )
)
/s/ Paul T. O'Brien Director )
- -------------------------- )
Paul T. O'Brien )
)
/s/ Dr. Robert M. Sandfort President, Chief )
- -------------------------- Operating Officer )
Dr. Robert M. Sandfort and Director )
)
/s/ Michael B. Smith Director )
- -------------------------- )
Michael B. Smith )
) January 2, 1997
/s/ James M. Stolze Executive Vice )
- -------------------------- President and Chief)
James M. Stolze Financial Officer )
(Principal Financial )
Officer) )
(Principal Accounting)
Officer) )
)
/s/ Ludger H. Viefhues Chief Executive )
- -------------------------- Officer and )
Ludger H. Viefhues Director )
(Principal Executive )
Officer) )
Pursuant to the requirements of the Securities Act of 1933, the
MEMC Retirement Savings Plan has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of St. Peters, State of Missouri on
January 2, 1997.
MEMC RETIREMENT SAVINGS PLAN
By: BENEFITS COMMITTEE (as Plan
Administrator)
By: /s/ Margaret B. Stonum
-----------------------------
Name: Margaret B. Stonum
Title: Director, Benefits
Exhibit Index
Exhibit
Number* Description
- ------------ -----------
4 Omitted -- Inapplicable.
5(i) Omitted as inapplicable pursuant to Item 8 of Form S-8 which
provides that a legal opinion as to the
legality of the securities being registered is
required only with respect to original issuance
securities. The common stock being registered hereby
will be purchased in the open market only.
5(ii)(B).1 Reproduction of Determination Letter from the
Internal Revenue Service dated September 26, 1995 to
the Registrant with respect to the MEMC Electronic
Materials Inc. Pension Plan for Hourly Paid
Employees.
5(ii)(B).2 Reproduction of Determination Letter from the
Internal Revenue Service dated September 26, 1995 to
the Registrant with respect to the MEMC Electronic
Materials Inc. Retirement Savings Plan.
5(ii)(B).3 Reproduction of legal opinion of Thompson Coburn
dated December 10, 1996 that there have been no
material changes in the plans affecting qualification
requirements under Section 401(a) of the Internal
Revenue Code since September 26, 1995.
15 Omitted -- Inapplicable
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of KPMG San Tong & Co.
23.3 Consent of Thompson Coburn (Included in Exhibit 5(ii)(B).3 above).
24 Powers of Attorney (See Signature Page).
28 Omitted -- Inapplicable
* Numbers correspond to document numbers in Exhibit Table of Item
601 of Regulation S-K.
Exhibit 5(ii)(B).1
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INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN20-6
CHICAGO, IL 60690
Employer Identification Number:
Date: SEP 26 1995 56-1505767
File Folder Number:
MEMC ELECTRONIC MATERIALS, 360092868
INCORPORATED Person to Contact:
C/O PAUL G. GRIESEMER TECHNICAL SCREENER
720 OLIVE STREET, 24TH FLOOR Contact Telephone Number:
ST. LOUIS, MO 63101 (312) 435-1040
Plan Name:
PNSN PLAN FOR HRLY-PAID EES
Plan Number: 005
Dear Applicant:
We have made a favorable determination on your plan,
identified above, based on the information supplied. Please keep
this letter in your permanent records.
Continued qualification of the plan under its present form
will depend on its effect in operation. (See section 1.401-1(b)(3)
of the Income Tax Regulations.) We will review the status of the
plan in operation periodically.
The enclosed document explains the significance of this
favorable determination letter, points out some features that may
affect the qualified status of your employee retirement plan, and
provides information on the reporting requirements for your plan.
It also describes some events that automatically nullify it. It is
very important that you read the publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the
effect of other federal or local statutes.
This determination letter is applicable for the plan adopted
on December 21, 1994.
This plan has been mandatorily disaggregated, permissively
aggregated, or restructured to satisfy the nondiscrimination
requirements.
This plan satisfies the minimum coverage requirements on the
basis of the average benefit test in section 410(b)(2) of the Code.
This plan satisfies the nondiscrimination in amount
requirement of section 1.401(a)(4)-1(b)(2) of the regulations on
the basis of a general test described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as
otherwise specified in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with
respect to those benefits, rights and features that are currently
available to all employees in the plan's coverage group. For this
purpose, the plan's coverage group consists of those employees
treated as currently benefiting for purposes of demonstrating that
the plan satisfies the minimum coverage requirements of section
410(b) of the Code.
This letter may not be relied upon with respect to whether the
plan satisfies the qualification requirements as amended by the
Uruguay Round Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact
the person whose name and telephone number are shown above.
Sincerely yours,
/s/ Robert W. Brock
--------------------------
Robert W. Brock
District Director
Enclosures::
Publication 794
Exhibit 5(ii)(B).2
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INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN20-6
CHICAGO, IL 60690
Employer Identification Number:
Date: SEP 26 1995 56-1505767
File Folder Number:
MEMC ELECTRONIC MATERIALS, 360092868
INCORPORATED Person to Contact:
C/O PAUL G. GRIESEMER TECHNICAL SCREENER
720 OLIVE STREET 24TH FLOOR Contact Telephone Number:
ST. LOUIS, MO 63101 (312) 435-1040
Plan Name:
RET SAVINGS PLAN
Plan Number: 003
Dear Applicant:
We have made a favorable determination on your plan,
identified above, based on the information supplied. Please keep
this letter in your permanent records.
Continued qualification of the plan under its present form
will depend on its effect in operation. (See section 1.401-1(b)(3)
of the Income Tax Regulations.) We will review the status of the
plan in operation periodically.
The enclosed document explains the significance of this
favorable determination letter, points out some features that may
affect the qualified status of your employee retirement plan, and
provides information on the reporting requirements for your plan.
It also describes some events that automatically nullify it. It is
very important that you read the publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the
effect of other federal or local statutes.
This determination letter is applicable for the amendment(s)
adopted on December 21, 1994.
This plan has been mandatorily disaggregated, permissively
aggregated, or restructured to satisfy the nondiscrimination
requirements.
This plan satisfies the minimum coverage requirements on the
basis of the average benefit test in section 410(b)(2) of the Code.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as
otherwise specified in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with
respect to those benefits, rights and features that are currently
available to all employees in the plan's coverage group. For this
purpose, the plan's coverage group consists of those employees
treated as currently benefiting for purposes of demonstrating that
the plan satisfies the minimum coverage requirements of section
410(b) of the Code.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with
respect to those benefits, rights and features that are currently
available to all employees in the plan's coverage group. For this
purpose, the plan's coverage group consists of those employees
treated as currently benefiting for purposes of demonstrating that
the plan satisfies the minimum coverage requirements of section
410(b) of the Code.
This plan also satisfies the requirements of section
1.401(a)(4)-4(b) of the regulations with respect to the specific
benefits, rights, or features for which you have provided
information.
This letter may not be relied upon with respect to whether the
plan satisfies the qualification requirements as amended by the
Uruguay Round Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact
the person whose name and telephone number are shown above.
Sincerely yours,
/s/ Robert W. Brock
------------------------
Robert W. Brock
District Director
Enclosures::
Publication 794
Exhibit 5(ii)(B).3
------------------
Thompson Coburn Attorneys at Law
One Mercantile Center
St. Louis, Missouri 63101-1693
314-552-6000
FAX 314-552-7000
December 10, 1996
MEMC Electronic Materials, Inc.
501 Pearl Drive
Saint Peters, MO 63376
Re: Registration Statement on Form S-8
3,000,000 Shares of MEMC Electronic Materials, Inc.
Common Stock, $.01 Par Value and
Participation Interests in MEMC Retirement Savings Plan
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by MEMC Electronic Materials,
Inc., a Delaware corporation (the "Company"), on January 2, 1997
with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, pertaining to the proposed registration by
the Company of up to 3,000,000 shares of the Company's common
stock, $.01 par value (the "Shares") and the issuance by the MEMC
Retirement Savings Plan (the "Plan") of participation interests in
the Plan, we have examined the Internal Revenue Service letter to
the Company dated September 26, 1995, in which the Internal Revenue
Service advised the Company of a favorable determination on the
MEMC Electronic Materials, Inc. Retirement Savings Plan, and
amendments to the Plan subsequent to the date of filing of the
determination letter request. We have not reviewed operational
matters concerning the Plan and disclaim any knowledge concerning
operational matters. We do not express an opinion concerning the
qualification of the plan in operation.
Based solely on the foregoing, we are of the opinion that
there have been no material changes in the provisions in the Plan
documents that are necessary to comply with the formal
qualification requirements of Section 401(a) of the Internal
Revenue Code and that were the subject of the September 26, 1995,
favorable determination letter issued by the IRS.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. We further consent to the filing of copies
of this opinion with agencies of such states and other
jurisdictions as you deem necessary in the course of complying with
the laws of the states and jurisdictions regarding the sale and
issuance of the Shares in accordance with the Registration
Statement.
Very truly yours,
THOMPSON COBURN
Exhibit 23.1
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Independent Auditors' Consent
-----------------------------
The Board of Directors
MEMC Electronic Materials, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 of MEMC Electronic Materials, Inc. of our
report dated January 25, 1996, relating to the consolidated
balance sheets of MEMC Electronic Materials, Inc. and
subsidiaries as of December 31, 1995 and 1994, and the related
consolidated statement of earnings, stockholders' equity, and
cash flows for each of the years in the three-year period ended
December 31, 1995, and the related schedule, which report appears
in the December 31, 1995, annual report on Form 10-K of MEMC
Electronic Materials, Inc.
Our report refers to changes in accounting for postemployment
benefits, postretirement benefits, and income taxes.
KPMG PEAT MARWICK LLP
St. Louis, Missouri
January 2, 1997
Exhibit 23.2
------------
Independent Auditors' Consent
-----------------------------
The Board of Directors
POSCO HULS Co., Ltd.:
We consent to incorporation by reference in the registration
statement on Form S-8 of MEMC Electronic Materials, Inc. of our
report dated January 13, 1994, relating to the balance sheet of
POSCO HULS Co., Ltd. as of December 31, 1993 and the related
statements of operations, proposed disposition of deficit, and
changes in financial position for the year then ended, which
report appears in the December 31, 1995, annual report on Form
10-K of MEMC Electronic Materials, Inc.
KPMG SAN TONG & CO.
Seoul, Korea
January 2, 1997
