As filed with the Securities and Exchange Commission on August 10, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
MEMC Electronic Materials, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 56-1505767
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(State or Other Jurisdiction (IRS Employer
of Incorporation) Identification No.)
501 Pearl Drive (City of O'Fallon)
St. Peters, Missouri 63376
(636) 474-5500
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(Address of Principal Executive Offices,
Including Zip Code)
MEMC Electronic Materials, Inc.
1995 Equity Incentive Plan,
as Amended and Restated on August 3, 2000
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(Full Title of the Plan)
Helene F. Hennelly
Corporate Vice President, General Counsel and Secretary
MEMC Electronic Materials, Inc.
501 Pearl Drive (City of O'Fallon)
St. Peters, Missouri 63376
(636) 474-5500
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(Name, Address, and Telephone Number,
Including Area Code, of Agent For Service)
Copies of all correspondence to:
LaDawn Naegle, Esq.
Bryan Cave LLP
700 13th Street NW, Suite 700
Washington, DC 20005-3960
(202) 508-6000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of Securities Proposed Proposed Amount
To Be Amount Maximum Maximum of
Registered To Be Offering Price Aggregate Registration
Registered(1) Per Share(2) Offering Price(2) Fee
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Common Stock,
par value $.01 3,600,000 $15.75 $56,700,000 $14,969
per share
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<FN>
(1) Pursuant to Rule 416, includes such additional indeterminate number of
shares as may be issuable pursuant to the anti-dilution provisions of the
Plan.
(2) Estimated solely for the purposes of determining the registration fee
pursuant to Rule 457(c), based upon the average of the high and low prices
of the Common Stock on August 7, 2000, as reported by the New York Stock
Exchange.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended ("Securities Act"), and
the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by MEMC
Electronic Materials, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated herein by reference and made a
part hereof:
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1999.
(2) Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2000 and June 30, 2000.
(3) The description of the Company's Common Stock contained in
Registration Statement on Form 8-A, filed with the Commission on June
21, 1995.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Securities Exchange Act"), subsequent to the date hereof, 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
hereby be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 incorporated or
deemed to be incorporated herein by reference modifies or supersedes such
statement. Any statement contained herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document incorporated or deemed to
be incorporated herein by reference modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. The Company's Restated Certificate of Incorporation contains such a
provision.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation -- a "derivative action"),
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 corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The Company's Restated Certificate of Incorporation contains
such a provision.
The Company has in effect a directors and officers liability insurance
policy indemnifying the directors and officers of the Company for certain
liabilities incurred by them, including liabilities under the Securities Act and
the Securities Exchange Act. The Company pays the entire premium of this policy.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
No. Description
--- -------------------------------------------------------------
5 Opinion of Bryan Cave LLP
23.1 Consent of KPMG LLP
23.2 Consent of KPMG San Tong Corp.
23.3 Consent of KPMG Certified Public Accountants
23.4 Consent of Bryan Cave LLP (included in Exhibit 5 hereto)
24 Power of Attorney (included on signature page)
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 to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to such information 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 the 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 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 offered therein, and that the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) 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 of 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.
<PAGE>
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, on August 3, 2000.
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ Klaus R. von Horde
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Klaus R. von Horde
President, Chief Executive Officer and
Director
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James M. Stolze and Helene F. Hennelly,
and each of them (with full power to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in any
and all capacities to sign any and all amendments (including post-effective
amendments) to this Form S-8 and any other documents and instruments incidental
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Form S-8 has
been signed by the following persons in the capacities and on the dates
indicated.
Signature Title Date
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/s/ Klaus R. von Horde
------------------------ President, Chief Executive Officer August 3, 2000
Klaus R. von Horde and Director
(Principal executive officer)
/s/ James M. Stolze
------------------------ Executive Vice President and Chief
James M. Stolze Financial Officer August 3, 2000
(Principal financial and accounting
officer)
/s/ Hans Michael Gaul
------------------------
Dr. Hans Michael Gaul Director August 3, 2000
/s/ Helmut Mamsch
------------------------
Helmut Mamsch Director August 3, 2000
/s/ Willem D. Maris
------------------------
Willem D. Maris Director August 3, 2000
/s/ Alfred Oberholz
------------------------
Dr. Alfred Oberholz Director August 3, 2000
/s/ Paul T. O'Brien
------------------------
Paul T. O'Brien Director August 3, 2000
/s/ Michael B. Smith
------------------------
Michael B. Smith Director August 3, 2000
Exhibit Index
Exhibit No. Description
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5 Opinion of Bryan Cave LLP
23.1 Consent of KPMG LLP
23.2 Consent of KPMG San Tong Corp.
23.3 Consent of KPMG Certified Public Accountants
23.4 Consent of Bryan Cave LLP (included in Exhibit 5 hereto)
24 Power of Attorney (included on signature page)
