-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KNp+NJ6hxIXIT+TVBAts4uF7dSh6XnnhJS/TDgdd2Z5Vd5EbnVx8w8eohU/CjnwP KftS8E8uiifYzbuDWTe3ew== 0000893838-98-000155.txt : 19981102 0000893838-98-000155.hdr.sgml : 19981102 ACCESSION NUMBER: 0000893838-98-000155 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981030 SROS: NYSE GROUP MEMBERS: VEBA AKTIENGESELLSCHAFT GROUP MEMBERS: VEBA CORP /NY/ SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MEMC ELECTRONIC MATERIALS INC CENTRAL INDEX KEY: 0000945436 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 561505767 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-52339 FILM NUMBER: 98734491 BUSINESS ADDRESS: STREET 1: 501 PEARL DR CITY: ST PETERS STATE: MO ZIP: 63376 BUSINESS PHONE: 3142795500 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: VEBA CORP /NY/ CENTRAL INDEX KEY: 0001072601 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742183834 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 605 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10158 BUSINESS PHONE: 2129222714 MAIL ADDRESS: STREET 1: 605 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10158 SC 13D 1 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934* MEMC Electronic Materials, Inc. - ------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $.01 per share - ------------------------------------------------------------------------------- (Title of Class of Securities) 552715 10 4 - ------------------------------------------------------------------------------- (CUSIP Number) - ------------------------------------------------------------------------------- Morton E. Grosz, Esq. Chadbourne & Parke LLP 30 Rockefeller Plaza New York, NY 10112 (212) 408-5100 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 22, 1998 - ------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. |_| Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 2 of 37 Pages - ------------------------------------------------------------------------------- - -------- ---------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) VEBA Aktiengesellschaft - -------- ---------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |_| - -------- ---------------------------------------------------------------------- 3 SEC USE ONLY - -------- ---------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------- ---------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - -------- ---------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Germany - -------- ---------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 21,490,942 shares of Common Stock, par value $.01 per share, of the Issuer ("Common Stock"), see Item 5, Interest in Securities of the Issuer; does not include shares of Common Stock which may be acquired pursuant to the transactions described in Item 4, Purpose of Transaction ------- ---------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY - 0 - ------- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 21,490,942 shares of Common Stock, see Item 5, Interest in Securities of the Issuer; does not include shares of Common Stock which may be acquired pursuant to the transactions described in Item 4, Purpose of Transaction ------- ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON - 0 - WITH - -------- ---------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 21,490,942 shares of Common Stock, see Item 5, Interest in Securities of the Issuer; does not include shares of Common Stock which may be acquired pursuant to the transactions described in Item 4, Purpose of Transaction - -------- ---------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------- ---------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 53.1% See Item 5, Interest in Securities of the Issuer - -------- ---------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* HC, CO - -------- ---------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 3 of 37 Pages - ------------------------------------------------------------------------------- - -------- ---------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) VEBA Corporation 74-2183834 - -------- ---------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |_| - -------- ---------------------------------------------------------------------- 3 SEC USE ONLY - -------- ---------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC, AF - -------- ---------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - -------- ---------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------- ---------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 21,490,942 shares of Common Stock, par value $.01 per share, of the Issuer ("Common Stock"), see Item 5, Interest in Securities of the Issuer; does not include shares of Common Stock which may be acquired pursuant to the transactions described in Item 4, Purpose of Transaction ------- ---------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY - 0 - ------- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 21,490,942 shares of Common Stock, see Item 5, Interest in Securities of the Issuer; does not include shares of Common Stock which may be acquired pursuant to the transactions described in Item 4, Purpose of Transaction ------- ---------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH - 0 - - -------- ---------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 21,490,942 shares of Common Stock, see Item 5, Interest in Securities of the Issuer; does not include shares of Common Stock which may be acquired pursuant to the transactions described in Item 4, Purpose of Transaction - -------- ---------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------- ---------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 53.1% See Item 5, Interest in Securities of the Issuer - -------- ---------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* HC, CO - -------- ---------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 4 of 37 Pages - ------------------------------------------------------------------------------- Item 1. Security and Issuer. This statement relates to shares of common stock, par value $0.01 per share (the "Common Stock") of MEMC Electronic Materials, Inc., a Delaware corporation (the "Company"). The principal executive offices of the Company are located at 501 Pearl Drive, St. Peters, Missouri 63376. Item 2. Identity and Background (a) This statement is filed jointly by VEBA Aktiengesellschaft, a German corporation ("VEBA AG"), and VEBA Corporation, a Delaware corporation and a direct and indirect, wholly-owned subsidiary of VEBA AG ("VEBA Corporation", and together with VEBA AG, the "Reporting Persons"). The Reporting Persons are filing this statement jointly pursuant to a Joint Filing Agreement attached hereto as Exhibit 1. (b) The address of VEBA AG's principal office is Bennigsenplatz 1, 40474 Dusseldorf, Germany. The address of VEBA Corporation's principal office is 605 Third Avenue, New York, New York 10158. The name, business address and principal occupation of each of the directors and executive officers of each of VEBA AG and VEBA Corporation are set forth on Schedule I hereto and incorporated by reference herein. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 5 of 37 Pages - ------------------------------------------------------------------------------- (c) The principal business of VEBA AG is to be a management holding company for one of the largest industrial groups in Germany on the basis of market capitalization at year-end 1997. VEBA AG is organized into six separate business divisions: electricity, chemicals, oil, real estate management, distribution/logistics, and telecommunications. The principal business of VEBA Corporation is to be a holding company for VEBA AG's interests in the United States. (d) During the last five years, none of the Reporting Persons nor, to the best of their knowledge, any of the executive officers or directors of any of the Reporting Persons, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, none of the Reporting Persons nor, to the best of their knowledge, any of the executive officers or directors of any of the Reporting Persons, has been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 6 of 37 Pages - ------------------------------------------------------------------------------- (f) Each of the executive officers and directors of each of VEBA AG and VEBA Corporation is a citizen of the country specified in Schedule I hereto and incorporated by reference herein. Item 3. Source and Amount of Funds or Other Consideration. The source and, as more fully described in Item 4 below, the amount of funds used by VEBA Corporation in connection with the transactions described herein will be provided from the working capital of VEBA Corporation and/or from intercompany loan arrangements between VEBA AG and VEBA Corporation. It is expected that VEBA AG and VEBA Corporation will enter into a long-term credit agreement (the "Credit Agreement") prior to the actual purchase by VEBA Corporation of the shares of Common Stock pursuant to the Purchase Agreement and the Standby Agreement described in Item 4 below. The Credit Agreement is expected to be on such terms and subject to such conditions as are customary for intercompany loan arrangements between VEBA AG and its operating subsidiaries. The source and, as more fully described in Item 4 below, the amount of funds used by VEBA AG in connection with the transactions described herein will be provided from the working capital of VEBA AG. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 7 of 37 Pages - ------------------------------------------------------------------------------- Item 4. Purpose of Transaction. Pursuant to the Purchase Agreement, dated as of October 22, 1998 (the "Purchase Agreement"), between VEBA Corporation and the Company, VEBA Corporation agreed, subject to the satisfaction or waiver of various conditions set forth in the Purchase Agreement, to purchase for a per share purchase price equal to the volume weighted average trading price of the Common Stock for a specified five day consecutive trading day period (the "Per Share Purchase Price") a number of shares of Common Stock approximately equal to 106,100,000 divided by the Per Share Purchase Price. The purpose of entering into the Purchase Agreement is to assist the Company in meeting certain financial needs arising before completion of the Rights Offering (described below). On October 22, 1998, the Company filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (the "Form S-3") relating to a distribution on a pro rata basis to all stockholders of the Company (other than VEBA Corporation) of rights which entitle the holders thereof to purchase one share of Common Stock for each right as well as additional shares of Common Stock to the extent that other rights holders do not exercise their rights (the "Rights Offering"). In the Rights Offering, the Company will issue for the same Per Share Purchase Price to be paid SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 8 of 37 Pages - ------------------------------------------------------------------------------- by VEBA Corporation under the Purchase Agreement a number of shares of Common Stock approximately equal to 93,900,000 divided by the Per Share Purchase Price. The purpose of the Rights Offering is to allow all stockholders of the Company (other than VEBA Corporation) to restore their proportionate interest in the Company at the same price per share previously offered to VEBA Corporation under the Purchase Agreement. In connection with the Rights Offering, VEBA Corporation and the Company entered into the Standby Agreement, dated as of October 22, 1998 (the "Standby Agreement"), pursuant to which VEBA Corporation has agreed, subject to the satisfaction or waiver of various conditions set forth in the Standby Agreement, to purchase all shares of Common Stock not otherwise subscribed for by other stockholders in the Rights Offering. The purpose of entering into the Standby Agreement is to assist the Company in raising an aggregate amount of approximately $93,900,000, to the extent that rights are not exercised in the Rights Offering. In connection with the execution of the Purchase Agreement and the Standby Agreement, VEBA Corporation and the Company intend to enter into an amendment (the "Amendment") to the Registration Rights Agreement dated as of July 12, 1995 between Huls Corporation and the Company SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 9 of 37 Pages - ------------------------------------------------------------------------------- (the "Registration Rights Agreement"). The purpose of entering into the Amendment is to reflect the change of record ownership of the shares of common stock of the Company reported herein (the "MEMC Shares") as a result of the merger described in Item 5(a) below and to include in the definition of "Registrable Stock" in the Registration Rights Agreement, and extend the benefits of the Registration Rights Agreement to, (i) all shares of Common Stock to be acquired by VEBA Corporation as a result of the transactions contemplated by the Purchase Agreement and the Standby Agreement and (ii) any shares of Common Stock acquired by VEBA Corporation or VEBA AG and any of its direct or indirect subsidiaries after the date of the Purchase Agreement and the Standby Agreement. Pursuant to the Registration Rights Agreement, VEBA Corporation has the right to demand registration under the Securities Act of 1933 (as amended, the "Securities Act") of any or all of the Registrable Stock (as defined in the Registration Rights Agreement). The demand rights must be exercised for at least 25% of the Registrable Stock. The Company may be required to effect up to three such demand registrations. VEBA Corporation will bear the expenses of any such demand registration. The Company is not obligated to take any action to register the Registrable Stock: (i) during the period starting 30 days prior to the estimated date of filing of, and ending 90 days after the SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 10 of 37 Pages - ------------------------------------------------------------------------------- effective date of, any other registration statement filed by the Company under the Securities Act; (ii) more than once during any six-month period; and (iii) for up to 90 days after a request from VEBA Corporation if one of the Company's officers certifies that the Company's Board of Directors has determined that such registration would interfere with a material transaction then being pursued by the Company. In addition, except in certain circumstances and subject to certain limitations, if the Company proposes to register any shares of Common Stock under the Securities Act, VEBA Corporation will be entitled to require the Company to include all or a portion of the Registrable Stock in such registration. The expenses of any such "piggyback" registration, other than underwriting discounts and commissions relating to the Registrable Stock to be sold by VEBA Corporation, shall be borne by the Company. In connection with any registration statement filed pursuant to the Registration Rights Agreement, the Company has agreed to indemnify VEBA Corporation and its transferees and assignees and any underwriter against certain liabilities, including liabilities under the Securities Act. The preceding summary of certain provisions of the Purchase Agreement, the Standby Agreement and the Registration Rights Agreement is not intended to be complete and is qualified in its entirety by reference to the full SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 11 of 37 Pages - ------------------------------------------------------------------------------- text of such agreements, copies of which are filed as Exhibits 2-4 hereto, respectively, and which are incorporated herein by reference. VEBA AG has indirectly owned the MEMC Shares continuously for more than nine years and has not decreased its equity investment in the Company. VEBA Corporation currently owns the MEMC Shares and will own additional shares of Common Stock as a result of the transactions contemplated by the Purchase Agreement and the Standby Agreement and upon exercise of any rights purchased by VEBA Corporation on the New York Stock Exchange during the Rights Offering. VEBA Corporation is owned by VEBA AG (approximately 50.1%), Huls AG (approximately 39.5%), and Stinnes AG (approximately 10.4%). Each of Huls AG and Stinnes AG are wholly-owned by VEBA AG. Depending upon the business affairs of the Company, market and general economic conditions, the availability of Common Stock at favorable prices, alternative investment opportunities available to the Reporting Persons, the strategic value to the Reporting Persons of the Common Stock or control of the Company and other factors deemed relevant by the Reporting Persons, in addition to the Common Stock acquired as a result of the transactions described above, the Reporting Persons may acquire, or acquire rights to acquire, additional shares of Common Stock or other SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 12 of 37 Pages - ------------------------------------------------------------------------------- securities of the Company by means of open market purchases, brokerage transactions, privately negotiated transactions, tender offer, or otherwise. The Reporting Persons may also propose a business combination, merger, tender offer or other form of transaction involving the Company. Alternatively, the Reporting Persons may retain their existing shares of Common Stock or dispose of some or all of their shares of Common Stock in the open market, in privately negotiated transactions or otherwise, depending upon market conditions and other factors. In addition, VEBA Corporation may transfer all or a portion of the Common Stock that it owns to VEBA AG and/or its subsidiaries. The foregoing represents a range of possible activities the Reporting Persons currently may take with respect to the Common Stock. It should be noted, however, that the possible activities of the Reporting Persons are subject to change at any time. Except as described herein, none of the Reporting Persons has any present plan or proposal which relates to, or could result in, any of the events referred to in paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D. However, the Reporting Persons will continue to review the business of the Company and, depending upon one or more of the factors referred to above, may in the SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 13 of 37 Pages - ------------------------------------------------------------------------------- future propose that the Company take one or more of such actions. Item 5. Interest in the Securities of the Issuer. (a) VEBA Corporation is the record owner of 21,490,942 shares of the Common Stock as a result of the merger of Huls Corporation, the former owner and wholly-owned subsidiary of VEBA Corporation, with and into VEBA Corporation on September 30, 1998. Such shares constitute approximately 53.1% of the total number of outstanding shares of the Common Stock (based on the number of shares of Common Stock reported as outstanding in the Form S-3) and do not include the shares of Common Stock to be acquired pursuant to the Purchase Agreement and possibly the Standby Agreement described in Item 4 above. Except as set forth below, no executive officer or director of any of the Reporting Persons is the beneficial owner of any shares of the Common Stock: Dr. Erhard Meyer-Galow, Member of the Board of Management of VEBA AG, Chairman of the Board of Stinnes AG and a director of the Company, is the owner of 12,000 shares of Common Stock and has the right to acquire 700 shares of Common Stock pursuant to vested options. Mr. Joern Stuehmeier, Vice President-Finance of VEBA Corporation and President of Fidelia Corporation, is the owner, jointly with SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 14 of 37 Pages - ------------------------------------------------------------------------------- his wife, of 2,500 shares of Common Stock. Neither Dr. Meyer-Galow nor Mr. Stuehmeier beneficially owns one percent or more of the total number of outstanding shares of the Common Stock (based on the number of shares Common Stock reported outstanding in the Form S-3). (b) VEBA AG, acting through its wholly-owned subsidiaries, VEBA Corporation, Stinnes AG, and Huls AG, indirectly has sole power to vote or direct the vote, and to dispose or to direct the disposition of the shares of the Common Stock beneficially owned by VEBA AG. As a result, VEBA AG may be deemed to beneficially own the shares of the Common Stock owned of record by VEBA Corporation. Dr. Meyer-Galow has sole power to vote or direct the vote, and to dispose or direct the disposition of 12,700 shares of Common Stock of the Company. Mr. Stuehmeier has shared power to vote or direct the vote, and to dispose or direct the disposition of 2,500 shares of Common Stock of the Company which he owns jointly with his wife. (c) Except as described in Item 4 above and the merger described in Item 5(a) above, there have not been any transactions in the Common Stock effected by or for the account of any of the Reporting Persons or any executive SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 15 of 37 Pages - ------------------------------------------------------------------------------- officer or director of any of the Reporting Persons during the past 60 days. (d) Except as stated in this Item 5, to the best knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock owned by the Reporting Persons. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. See Item 4 above for a description of the Purchase Agreement, the Standby Agreement and the Registration Rights Agreement, copies of which are filed as Exhibits 2-4 hereto, respectively, and which are incorporated herein by reference. The Company and VEBA AG and its affiliates have amended, effective as of September 1, 1998, their existing credit agreements (the "Amended Credit Agreements") to, among other things, extend the maturity dates of outstanding loans to the Company that mature prior to January 1, 2001 until their respective maturity date anniversaries in 2001, and increase the interest rates payable by the Company on all of the Company's existing debt to VEBA AG and its affiliates. The increased interest rates reflect the longer SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 16 of 37 Pages - ------------------------------------------------------------------------------- maturities and are priced at interest rate spreads applicable to an average industrial borrower at a specified credit rating. The interest rates payable on the loans that are extended until 2001 will be adjusted at the time of extension to reflect the then-current interest rate spreads applicable to an average industrial borrower at a specified credit rating. The Amended Credit Agreements provide that if VEBA AG and its affiliates own less than a majority of the outstanding Common Stock on and after January 1, 2001, then the interest rates payable by the Company will be the higher of (a) the interest rate currently set forth in each such loan agreement or (b) an interest rate determined as of the change of control date for an average industrial borrower at a specified credit rating based on the remaining term of each such loan agreement. In addition, in such event the Company will become subject to certain affirmative covenants set forth in the Amended Credit Agreements. The annual commitment fee payable by the Company on the undrawn portion of loans pursuant to the Amended Credit Agreements is 1/4 of one percent. Additionally, the Amended Credit Agreements require the Company, subject to certain exceptions in the ordinary course of the Company's business, to not allow any encumbrances, such as mortgages and security interests, to be placed on its assets. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 17 of 37 Pages - ------------------------------------------------------------------------------- Pursuant to the Revolving Credit Agreement, dated as of September 23, 1998 (the "Revolving Credit Agreement"), by and between the Company and VEBA AG, VEBA AG has agreed to provide $100 million of additional debt financing to the Company on a revolving basis at interest rate spreads applicable to an average industrial borrower at a specified credit rating. The other terms of the Revolving Credit Agreement are similar to those of the Amended Credit Agreements. The preceding summary of certain provisions of the Amended Credit Agreements and the Revolving Credit Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of such agreements, copies of which are filed as Exhibits 5-25 hereto, respectively, and which are incorporated herein by reference. Item 7. Material to be Filed as Exhibits. Exhibit 1. Joint Filing Agreement, dated as of October 30, 1998 between VEBA AG and VEBA Corporation. Exhibit 2. Purchase Agreement dated as of October 22, 1998 by and among the Company and VEBA Corporation. Exhibit 3. Standby Agreement dated as of October 22, 1998 by and among the Company and VEBA Corporation. Exhibit 4. Registration Rights Agreement, dated July 12, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-l to the SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 18 of 37 Pages - ------------------------------------------------------------------------------- Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 5. Second Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-gg(2) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 6. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-qq(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 7. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-rr(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 8. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ss(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 9. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-tt(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 10. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ccc(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 11. First Amendment to Credit Agreement effective as of September 1, 1998, SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 19 of 37 Pages - ------------------------------------------------------------------------------- between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ddd(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 12. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-eee(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 13. Second Amendment to Revolving Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ii(2) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 14. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-cc(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 15. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-dd(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 16. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-ee(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 17. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-ff(1) to the Company's Current Report on Form 8-K dated October 22, 1998. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 20 of 37 Pages - ------------------------------------------------------------------------------- Exhibit 18. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-hh(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 19. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-xxx(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 20. First Amendment to Overnight Loan Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-fff(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 21. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-jjj(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 22. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-kkk(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 23. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-lll(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 24. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-mmm(1) to the Company's SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 21 of 37 Pages - ------------------------------------------------------------------------------- Current Report on Form 8-K dated October 22, 1998. Exhibit 25. Revolving Credit Agreement dated as of September 23, 1998 between the Company Electronic Materials, Inc. and VEBA AG, in the amount of US$100,000,000 incorporated herein by reference to Exhibit 10-zzz to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 26. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-jj to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 27. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-kk to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 28. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-ll to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 29. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-mm to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 30. Credit Agreement dated as of July 10, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-oo to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 31. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit qqq to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 22 of 37 Pages - ------------------------------------------------------------------------------- Exhibit 32. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit rrr to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. Exhibit 33. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit sss to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. Exhibit 34. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit ttt to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. Exhibit 35. Overnight Loan Agreement dated as of October 31, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-fff to the Company's Report on Form 10-K/A for the Year ended December 31, 1997. Exhibit 36. Loan Agreement dated as of June 30, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-xxx to the Company's Report on Form 10-Q for the Quarter ended June 30, 1998. Exhibit 37. Credit Agreement dated as of July 10, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-nn to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 38. First Amendment to Credit Agreement dated as of July 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-gg(1) to the Company's Report on Form 10-Q for the Quarter ended June 30, 1998. Exhibit 39. Credit Agreement dated as of April 1, 1996, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-eee to the Company's Report SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 23 of 37 Pages - ------------------------------------------------------------------------------- on Form 10-K/A for the Year ended December 31, 1997. Exhibit 40. Credit Agreement dated as of December 1, 1996, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ccc to the Company's Report on Form 10-K/A for the Year ended December 31, 1997. Exhibit 41. Credit Agreement dated as of December 1, 1996, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ddd to the Company's Report on Form 10-K/A for the Year ended December 31, 1997. Exhibit 42. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-aaa to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 43. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-bbb to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 44. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ccc to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 45. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ddd to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 46. Revolving Credit Agreement dated as of July 10, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-pp to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 24 of 37 Pages - ------------------------------------------------------------------------------- Exhibit 47. First Amendment to Loan Agreement dated as of March 4, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ii(1) to the Company's Report on Form 10-Q for the Quarter ended June 30, 1998. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 25 of 37 Pages - ------------------------------------------------------------------------------- SIGNATURE --------- After reasonable inquiry and the best of my knowledge and belief, the undersigned certify that the information set forth in the statement is true, complete and correct. Date: October 30, 1998 VEBA Aktiengesellschaft By: /s/ Hans Michael Gaul ------------------------------ Name: Dr. Hans Michael Gaul Title: Chief Financial Officer By: /s/ Rolf Pohlig ------------------------------ Name: Dr. Rolf Pohlig Title: Executive Vice President Date: October 30, 1998 VEBA Corporation By: /s/ Heinz H. Puetthoff ------------------------------ Name: H. H. Puetthoff Title: President SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 26 of 37 Pages - ------------------------------------------------------------------------------- SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF VEBA AG The name, business address, present principal occupation or employment and citizenship, and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each of the directors and executive officers of VEBA AG is set forth below. Principal Occupation, if other than as Name and Business Position with Executive Officer of Citizen- Address VEBA AG VEBA AG ship - --------------------- ---------------- -------------------- -------- Hermann Josef Strenger Member of the Chairman of the German Vorsitzender des Supervisory Board, Supervisory Board, Aufsichtsrates VEBA AG Chairman Bayer AG, Leverkusen Kaiser-Wilhelm-Alee, Gebaude Q 26 51368 Leverkusen Hubertus Schmoldt Member of the Chairman of the Board German Vorsitzender der Supervisory Board, of Management, IG BERGBAU, CHEMIE, Deputy Chairman Industriegewerkschaft ENERGIE Bergbau, Chemie, Konigsworther Platz 6 Energie 30167 Hannover Ralf Blauth Member of the Industrial Clerk German HULS AG Supervisory Board (Industriekaufmann) Paul-Baumann-StraBe 1 45764 Marl Dr. Rolf-E. Breuer Member of the Spokesperson of the German Sprecher des Vorstandes Supervisory Board Board of Management, DEUTSCHE BANK AG Deutsche Bank AG Taunusanlage 12 60325 Frankfurt Dr. Gerhard Cromme Member of the Chairman of the Board German Vorsitzender des Supervisory Board of Management, Fried. Vorstandes Krupp AG Hoesch-Krupp FRIED, KRUPP AG HOESCH-KRUPP Altendorfer StraBe 103 45143 Essen Rainer Ducker Member of the Power plant worker German PREUSSENELEKTRA AG Supervisory Board TresckowstraBe 5 30457 Hannover und: PREUSSENELEKTRA AG Betriebsstelle Lubeck Bargerbruck 4 23617 Stockelsdorf Henner Hecht-Wieber Member of the Electrician German Raab Karcher Supervisory Board Tankstellentechnik Niederlassung Dusseldorf Ronsdorfer StraBe 96 40233 Dusseldorf SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 27 of 37 Pages - ------------------------------------------------------------------------------- Principal Occupation, if other than as Name and Business Position with Executive Officer of Citizen- Address VEBA AG VEBA AG ship - --------------------- ---------------- -------------------- -------- Wolf-Rudiger Hinrichsen Member of the M.A. Economics German VEBA AG Supervisory Board (Diplom-Volkswirt) Volks-und Energiewirtschaft Bennigsenplatz 1 40474 Dusseldorf Ulrich Hocker Member of the Managing Director, German Hauptgeschaftsfuhrer Supervisory Board Deutsche Deutsche Schutzvereinigung Schutzvereinigung fur fur Wertpapierbesitz e.V. Wertpapierbesitz e. V. HumboldtstraBe 9 40237 Dusseldorf Postfach 14 02 43 40072 Dusseldorf Dr. h.c. Andre Leysen Member of the Chairman of the Belgian Vorsitzender des Supervisory Board Administrative Board, Verwaltungsrates Gevaert N.V. der GEVAERT N.V. Septestraat 27 B-2640 Mortsel Dr. Klaus Liesen Member of the Chairman of the German Vorsitzender des Supervisory Board Supervisory Board, Aufsichtsrates Ruhrgas AG der RUHRGAS AG HuttropstraBe 60 45138 Essen Herbert Mai Member of the Chairman, German Vorsitzender der Supervisory Board Gewerkschaft Gewerkschaft OTV Offentliche Dienste, Theodor-Heuss-StraBe 2 Transport und Verkehr 70174 Stuttgart Dagobert Millinghaus Member of the Accounting German BRENNTAG AG Supervisory Board and Administration Humboldtring 15 45472 Mulheim/Ruhr Margret Monig-Raane Member of the 1st Chairman, German Vorsitzender der Supervisory Board Gewerkschaft Handel Gewerkschaft Banken Versicherungen Handel, Banken und Versicherungen KanzlerstraBe 8 40472 Dusseldorf SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 28 of 37 Pages - ------------------------------------------------------------------------------- Principal Occupation, if other than as Name and Business Position with Executive Officer of Citizen- Address VEBA AG VEBA AG ship - --------------------- ---------------- -------------------- -------- Dr. Henning Schulte- Member of the Chairman of the Board German Noelle Supervisory Board of Management, Vorsitzender des Allianz AG Vorstandes der ALLIANZ AG KoniginstraBe 28 80802 Munchen Morris Tabaksblat Member of the Chairman, Unilever Dutch Chairman & CEO Supervisory Board N.V. Unilever NV Weena 455 NL-3013 AL Rotterdam P.O. Box 760 NL-3000 Rotterdam Kurt F. Viermetz Member of the Non-Executive German Non-Executive Director Supervisory Board Director, J.P. Morgan J.P. MORGAN & CO. & Co., Inc. INCORPORATED 23 Wall Street (30/15 B) New York, N.Y. 10260-0023 U.S.A. uber J.P. MORGAN GmbH, Frankfurt: BorsenstraBe 2-4 60313 Frankfurt/Main Dr. Bernd Voss Member of the Member of the Board German Mitglied des Vorstandes Supervisory Board of Management, DRESDNER BANK AG Dresdner Bank AG Jurgen-Ponto-Platz 1 60329 Frankfurt/Main Dr. Peter Weber Member of the [Director of the German HULS AG Supervisory Board Legal Department, Bau 1047 Huls AG] Paul-Baumann-StraBe 1 45764 Marl Kurt Weslowski Member of the Chemical Worker German VEBA OEL AG Supervisory Board Werk Scholven Pawiker StraBe 30 45896 Gelsenkirchen SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 29 of 37 Pages - ------------------------------------------------------------------------------- Principal Occupation, if other than as Name and Business Position with Executive Officer of Citizen- Address VEBA AG VEBA AG ship - --------------------- ---------------- -------------------- -------- Ulrich Hartmann* Member of the Board German of Management, Chairman and Chief Executive Officer Alain D. Bandle* Member of the Board Swiss of Management, Telecommunications Gunther Beuth* Member of the Chairman of the Board German Board of Management of Management of Raab Karcher AG-VEBA Immobilien Management Wilhelm Bonse-Geuking* Member of the Chairman of the Board German Board of Management of Management of VEBA Oel AG Dr. Hans Michael Gaul* Member of the Board German of Management; Chief Financial Officer Dr. Hans-Dieter Harig* Member of the Chairman of the Board German Board of Management of Management of PreussenElektra AG Dr. Manfred Kruper* Member of the Board German of Management; Group Resource Management Helmut Mamsch* Member of the Board German of Management, Group Strategic Development Dr. Erhard Meyer-Galow* Member of the Chairman of the Board German Board of Management of Management of Stinnes AG * The business address of each of these persons is: VEBA Aktiengesellschaft, Bennigsenplatz 1, 40474 Dusseldorf, Germany. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 30 of 37 Pages - ------------------------------------------------------------------------------- DIRECTORS AND EXECUTIVE OFFICERS OF VEBA CORPORATION The name, business address, present principal occupation or employment and citizenship, and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each of the directors and executive officers of VEBA Corporation is set forth below. Principal Occupation, if other than as Name and Business Position with Executive Officer of Citizen- Address VEBA Corporation VEBA Corporation ship - --------------------- ---------------- -------------------- -------- Helmut Mamsch** Director Member of Board of German Management of VEBA AG Ulrich Hartmann** Director Chairman of Board of German Management of VEBA AG Dr. Hans Michael Gaul** Director Member of Board of German Management of VEBA AG; Chief Financial Officer, VEBA AG Dr. Erhard Meyer-Galow** Director Member of Board of German Management of VEBA AG; Chairman of Board of Management of Stinnes AG Dr. Heinz-Helmer Director, President German Puetthoff** A. Paul Brandimarte, Director, Vice USA Jr.** President, General Counsel and Secretary Joseph J. Supp** Vice President-Tax USA Joern Stuehmeier** Vice President- President, Fidelia German Finance Corporation, Wilmington, Delaware SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 31 of 37 Pages - ------------------------------------------------------------------------------- Principal Occupation, if other than as Name and Business Position with Executive Officer of Citizen- Address VEBA Corporation VEBA Corporation ship - --------------------- ---------------- -------------------- -------- James N. Balch** Controller USA ** The business address of each of these persons is: VEBA Corporation, 605 Third Avenue, New York, NY 10158. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 32 of 37 Pages - ------------------------------------------------------------------------------- EXHIBIT INDEX Exhibit 1. Joint Filing Agreement, dated as of October 30, 1998 between VEBA AG and VEBA Corporation. Exhibit 2. Purchase Agreement dated as of October 22, 1998 by and among the Company and VEBA Corporation. Exhibit 3. Standby Agreement dated as of October 22, 1998 by and among the Company and VEBA Corporation. Exhibit 4. Registration Rights Agreement, dated July 12, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-l to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 5. Second Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-gg(2) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 6. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-qq(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 7. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-rr(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 8. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ss(1) to the Company's Current Report on Form 8-K dated October 22, 1998. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 33 of 37 Pages - ------------------------------------------------------------------------------- Exhibit 9. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-tt(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 10. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ccc(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 11. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ddd(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 12. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-eee(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 13. Second Amendment to Revolving Credit Agreement effective as of September 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ii(2) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 14. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-cc(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 15. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-dd(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 16. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-ee(1) to the SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 34 of 37 Pages - ------------------------------------------------------------------------------- Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 17. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-ff(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 18. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-hh(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 19. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-xxx(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 20. First Amendment to Overnight Loan Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-fff(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 21. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-jjj(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 22. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-kkk(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 23. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-lll(1) to the Company's Current Report on Form 8-K dated October 22, 1998. SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 35 of 37 Pages - ------------------------------------------------------------------------------- Exhibit 24. First Amendment to Credit Agreement effective as of September 1, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-mmm(1) to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 25. Revolving Credit Agreement dated as of September 23, 1998 between the Company Electronic Materials, Inc. and VEBA AG, in the amount of US$100,000,000 incorporated herein by reference to Exhibit 10-zzz to the Company's Current Report on Form 8-K dated October 22, 1998. Exhibit 26. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-jj to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 27. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-kk to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 28. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-ll to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 29. Credit Agreement dated as of July 10, 1995, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-mm to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 30. Credit Agreement dated as of July 10, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-oo to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 31. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit qqq to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. Exhibit 32. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 36 of 37 Pages - ------------------------------------------------------------------------------- incorporated herein by reference to Exhibit rrr to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. Exhibit 33. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit sss to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. Exhibit 34. Credit Agreement dated as of June 26, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit ttt to the Company's Report on Form 10-Q for the Quarter ended June 30, 1997. Exhibit 35. Overnight Loan Agreement dated as of October 31, 1997, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-fff to the Company's Report on Form 10-K/A for the Year ended December 31, 1997. Exhibit 36. Loan Agreement dated as of June 30, 1998, between the Company and Huls Corporation is incorporated herein by reference to Exhibit 10-xxx to the Company's Report on Form 10-Q for the Quarter ended June 30, 1998. Exhibit 37. Credit Agreement dated as of July 10, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-nn to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 38. First Amendment to Credit Agreement dated as of July 1, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-gg(1) to the Company's Report on Form 10-Q for the Quarter ended June 30, 1998. Exhibit 39. Credit Agreement dated as of April 1, 1996, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-eee to the Company's Report on Form 10-K/A for the Year ended December 31, 1997. Exhibit 40. Credit Agreement dated as of December 1, 1996, between the Company and Huls AG is incorporated herein by reference to Exhibit SCHEDULE 13D - ------------------------------------------------------------------------------- CUSIP No. 552715 10 4 Page 37 of 37 Pages - ------------------------------------------------------------------------------- 10-ccc to the Company's Report on Form 10-K/A for the Year ended December 31, 1997. Exhibit 41. Credit Agreement dated as of December 1, 1996, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ddd to the Company's Report on Form 10-K/A for the Year ended December 31, 1997. Exhibit 42. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-aaa to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 43. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-bbb to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 44. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ccc to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 45. Credit Agreement dated as of December 22, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ddd to the Company's Report on Form 10-K for the Year ended December 31, 1995. Exhibit 46. Revolving Credit Agreement dated as of July 10, 1995, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-pp to the Company's Report on Form 10-Q for the Quarter ended June 30, 1995. Exhibit 47. First Amendment to Loan Agreement dated as of March 4, 1998, between the Company and Huls AG is incorporated herein by reference to Exhibit 10-ii(1) to the Company's Report on Form 10-Q for the Quarter ended June 30, 1998. EX-1 2 JOINT FILING AGREEMENT EXHIBIT 1 JOINT FILING AGREEMENT The undersigned hereby agree to jointly file a statement on Schedule 13D, together with any amendments thereto, with the Securities and Exchange Commission pursuant to the requirements of Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended. This Joint Filing Agreement may be signed in counterpart copies. Date: October 30, 1998 VEBA Aktiengesellschaft By: /s/ Hans Michael Gaul ------------------------------ Name: Dr. Hans Michael Gaul Title: Chief Financial Officer By: /s/ Rolf Pohlig ------------------------------ Name: Dr. Rolf Pohlig Title: Executive Vice President Date: October 30, 1998 VEBA Corporation By: /s/ Heinz H. Puetthof ------------------------------ Name: H. H. Puetthof Title: President EX-2 3 PURCHASE AGREEMENT EXHIBIT 2 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (the "Agreement") is entered into as of October 22, 1998, by and among VEBA Corporation, a Delaware corporation ("VEBA"), and MEMC Electronic Materials, Inc., a Delaware corporation (the "Company"). RECITALS A. The Company proposes to issue (the "Rights Offering") to holders of its Common stock, par value $0.01 per share (the "Common Stock"), other than VEBA, upon the terms and subject to the conditions set forth in the prospectus (the "Prospectus") contained in the Registration Statement (as herein defined), rights (the "Rights") to purchase shares of its Common Stock, exercisable at a price per share equal to the Purchase Price (as hereinafter defined). The Rights and the Common Stock issuable upon exercise thereof are hereinafter sometimes collectively referred to as the "Rights Securities;" and B. The Company proposes to issue and sell to VEBA, and VEBA proposes to buy from the Company, upon the terms and subject to the conditions set forth herein, the Common Shares (as herein defined) at a price per share equal to the Purchase Price, which will be identical to the subscription price in the Rights Offering. NOW, THEREFORE, in consideration of the recitals and the mutual covenants, representations, warranties, conditions and agreements hereinafter expressed, the parties agree as follows: Section 1 Sale and Purchase of the Common Shares Subject to the terms and conditions of this Agreement, the Company will issue and sell to VEBA and VEBA will purchase from the Company, at the Closing provided for in Section 2, the Common Shares, at a price per share equal to the Purchase Price. Section 2 Closing The sale of the Common Shares to be purchased by VEBA shall take place at the offices of Bryan Cave LLP, 211 N. Broadway, Suite 3600, St. Louis, Missouri 63102-2750 at 10:00 A.M., Central Standard Time, at a closing (the "Closing") to be held on the date that is the Business Day immediately following the Calculation Date; provided that in no event shall the date of Closing be later than December 30, 1998. At the Closing, the Company will deliver to the Escrow Agent certificates for the Common Shares registered in VEBA's name (or in the name of VEBA's nominee or assignee in accordance with Section 7.4), against delivery by VEBA to the Escrow Agent of immediately available funds by federal wire transfer in the amount of the aggregate Purchase Price therefor. After the Closing the certificates for the Common Shares and such funds shall be held by the Escrow Agent pursuant to and in accordance with the terms of the Escrow Agreement. If at the Closing the Company shall fail to tender certificates for the Common Shares as provided above in this Section 2, or any of the conditions specified in Section 3(a) shall not have been fulfilled, VEBA shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any other rights VEBA may have by reason of such failure or such nonfulfillment. Section 3 Conditions to Closing (a) VEBA's obligations to purchase and pay for the Common Shares are subject to the fulfillment, prior to or at the Closing, of the following conditions: 3.1 Representations and Warranties. The representations and warranties of the Company contained in this Agreement shall be true and correct when made and at the time of the Closing. 3.2 Performance. The Company shall have performed and complied in all material respects with all agreements and conditions contained herein required to be performed or complied with prior to or at the Closing. 3.3 Compliance Certificate. VEBA shall have received an Officer's Certificate of the Company, dated the date of the Closing and satisfactory in form and substance to VEBA, in the name and on behalf of the Company, certifying that the conditions specified in Section 3.1 and 3.2 have been fulfilled. 3.4 Opinions of Counsel. VEBA shall have received at the time of Closing the opinion of Bryan Cave LLP, counsel for the Company, addressed to VEBA, dated the date of the Closing and substantially to the following effect: (i) The Company is a corporation validly existing and is in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as described in the Registration Statement; (ii) The Common Shares have been duly authorized and, when issued and delivered to VEBA against payment therefor in accordance with the terms of this Agreement, will be (A) validly issued, fully paid and nonassessable and (B) free of any preemptive or similar rights under the certificate of incorporation or bylaws of the Company, or to the knowledge of such counsel, pursuant to any other agreement; (iii) None of the issuance and sale of the Common Shares, the execution, delivery or performance of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby constitutes or will constitute a violation or breach of, or a default under, the certificate of incorporation or bylaws of the Company or any Material Agreement or will result in the creation or imposition of any lien, charge or encumbrance pursuant to any Material Agreement, upon any property or assets of the Company or any of its subsidiaries, nor will any such action result in any violation of the Delaware General Corporation Law (the "DGCL") or any existing Federal or Missouri law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), recognized by such counsel to be applicable to, or any judgment, injunction, order of decree known to such counsel, of any Federal or Missouri court to be applicable to, the Company, its subsidiaries or any of their respective properties (provided, the term "Material Agreement" shall mean any agreement, indenture, lease or other instrument or agreement that is both (i) an exhibit to the Registration Statement and (ii) an agreement, indenture, lease or other instrument or agreement to which the Company or any of its subsidiaries is a party or by which any of their properties or assets are bound); (iv) (A) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver the Common Shares pursuant to this Agreement, and (B) this Agreement has been duly authorized, executed and delivered by the Company and is a legally valid and binding agreement of the Company; (v) No consent, approval, authorization or other order of, or registration or filing with, any Federal or Missouri court, regulatory body, administrative agency or other governmental body, agency or official is required to be obtained by the Company (except as may be required under state securities or Blue Sky laws governing the sale and distribution of the Shares) for the valid issuance and sale of the Common Shares; and (vi) Each of the Incorporated Documents, as amended or supplemented by the Registration Statement or otherwise, as of the date hereof (and except for the financial statements and the notes thereto and the schedules and other financial and statistical data or schedules included therein or omitted therefrom, as to which such counsel need not express any opinion), comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In addition to the matters set forth above, such opinion shall also contain a statement to the effect that, although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review and discussion of the contents thereof (including a review and discussion of the contents of all Incorporated Documents), and nothing has come to the attention of such counsel that has caused it to believe (i) that the Registration Statement (including the Incorporated Documents but excluding any VEBA Information (as defined below)) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) that the Prospectus (including the Incorporated Documents but excluding any VEBA Information (as defined below)) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or the Prospectus or omitted therefrom). With respect to specific matters with respect to which Bryan Cave does not represent the Company, the foregoing statement may be delivered by other counsel that represents the Company with respect to such matters, such counsel to be reasonably acceptable to VEBA. In rendering the foregoing opinion, such counsel may rely, as to matters involving laws of any jurisdiction other than Missouri or the United States or the DGCL, upon opinions addressed to VEBA of other counsel reasonably acceptable to VEBA; provided that insofar as any such opinion relates to the DGCL, such opinion may be delivered by Richards Layton & Finger, P.A. In rendering the opinion specified in clause (iv) above such counsel shall assume that, insofar is it relates to enforceability, that the laws of the State of New York are the same as the laws of the State of Missouri. In addition, the foregoing opinion may contain customary assumptions and qualifications. 3.5 Secretary's Certificate. VEBA shall have received a Certificate, dated the date of the Closing, of the Secretary or an Assistant Secretary of the Company, certifying as to the resolutions adopted by the Board of Directors of the Company or its Special Committee approving the documents and/or transactions contemplated hereby, copies of which resolutions shall be attached to such Certificate. 3.6 Absence of Certain Changes. (i) There shall not have been any material adverse change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company and its subsidiaries on a consolidated basis (other than in the ordinary course of business or pursuant to agreements with VEBA AG or its affiliates) from the date of this Agreement; (ii) there shall not have been, since the date of this Agreement any material adverse change in the condition (financial or other), business, prospects, properties, net worth or result of operations of the Company and its subsidiaries taken as a whole and (iii) the Company and its subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and its subsidiaries, taken as a whole, other than those in existence on the date hereof or those pursuant to any agreement with VEBA AG or its affiliates. 3.7 Registration Rights Agreement. The Registration Rights Agreement shall have been amended to include all Common Shares and any other shares of Common Stock acquired by VEBA or VEBA AG and any of its direct or indirect subsidiaries after the date hereof as Registrable Stock thereunder. 3.8 Fairness Opinion. The Company shall have received a fairness opinion from a financial advisor substantially to the effect that (i) the Purchase Price to be paid by VEBA to the Company pursuant to this Agreement is fair to the Company and its stockholders (excepting VEBA) from a financial point of view as of the date thereof, (ii) the financial terms and conditions of the Rights Offering are consistent with those of rights offerings by public companies reviewed and deemed comparable to the Rights Offering by such financial advisor and (iii) the subscription price in the Rights Offering is fair to the Company and its stockholders (excepting VEBA) from a financial point of view as of the date thereof. 3.9 Comfort Letter. VEBA shall have received, to the extent not precluded by KPMG Peat Marwick LLP's accounting policy, a letter addressed to it and dated the date of the Closing from KPMG Peat Marwick LLP independent certified public accountants to the Company, in form and substance reasonably acceptable to VEBA and set forth in SAS 72 and customary for a firm commitment underwriting. (b) The Company's obligations to issue and sell the Common Shares are subject to the fulfillment, prior to or at the Closing, of the condition that the Company shall have received a fairness opinion from a financial advisor substantially to the effect that (i) the Purchase Price is fair to the Company and its stockholders (excepting VEBA) from a financial point of view as of the date thereof, (ii) the financial terms and conditions of the Rights Offering are consistent with those of rights offerings by public companies reviewed and deemed comparable to the Rights Offering by such financial advisor and (iii) the subscription price in the Rights Offering is fair to the Company and its stockholders (excepting VEBA) from a financial point of view as of the date thereof. Section 4 Representations and Warranties of the Company The Company represents and warrants on and as of the date hereof, and as of the date of the Closing, as follows: 4.1 Organization, Standing, Qualification, Etc. The Company and each of its subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of organization, has all the requisite corporate power and authority to carry on its business as described in the Registration Statement and Prospectus and is qualified to do business in every jurisdiction where such qualification or registration is required, except where the failure to qualify or register would not have, individually or in the aggregate, a material adverse effect on the condition (financial or other), business, properties, prospects, net worth or results of operations of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). 4.2 Authorization. (a) The Company has taken all actions necessary to authorize it (i) to execute, deliver and perform all of its obligations under this Agreement and (ii) to consummate the transactions contemplated hereby. This Agreement is a legally valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforceability is sought in equity or at law). (b) The Common Shares have been duly authorized and, when issued and delivered to VEBA against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive or other similar rights. 4.3 Capital Stock. All of the outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, and are free of any preemptive or similar rights. 4.4 No Violation or Conflict; No Default. (a) Provided that the aggregate number of shares of Common Stock to be issued in connection with the Rights Offering and issued and sold to VEBA pursuant hereto and the Standby Agreement (as defined below) does not exceed 150,000,000 and the aggregate proceeds therefrom does not exceed $200 million, none of the issuance and sale of the Common Shares, the execution, delivery or performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby nor the compliance with the terms of this Agreement (A) requires any consent, approval, authorization or other order of or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official or conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws, or other organizational documents, of the Company or any of its subsidiaries or (B) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of its subsidiaries or any of their respective properties, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject except for, in the case of the foregoing clause (B), such violations which would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (b) Neither the Company nor any of its subsidiaries is in violation (A) of its certificate or articles of incorporation or by-laws, or other organizational documents, or (B) of any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of its subsidiaries, including, without limitation, (i) any foreign, Federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) any Federal or state law relating to discrimination in the hiring, promotion or pay of employees or any applicable federal or state wages and hours laws, or (iii) any provisions of the Employee Retirement Income Security Act or the rules and regulations promulgated thereunder (collectively, "ERISA"), or of any decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries except for, in the case of the foregoing clause (B), such violations which would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (c) Neither the Company nor any of its subsidiaries is in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties may be bound, except for such defaults which would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 4.5 Registration Statement and Prospectus. (a) The Registration Statement does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus does not contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances in which they are made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Prospectus relating to the VEBA Information. (b) The historical financial statements, together with related schedules and notes, included in the Registration Statement and the Prospectus, comply as to form in all material respects with the requirements of the Securities Act of 1933, as amended (the "Securities Act"); such historical financial statements, together with related schedules and notes, present fairly the consolidated financial position, results of operations, cash flows and changes in the financial position of the entities to which they relate on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied through the periods involved, except as disclosed therein; and the other financial and statistical information and data included in the Registration Statement and the Prospectus, are accurately presented in all material respects and, to the extent applicable, prepared on a basis consistent in all material respects with such financial statements and the books and records of the entities to which they relate. 4.6 Permits. The Company and each of its subsidiaries has such permits, licenses, franchises and authorizations including, without limitation, under any applicable Environmental Laws, of governmental or regulatory authorities ("permits") as are necessary to own its respective properties and to conduct its business subject to such qualifications and exceptions as may be set forth in the Registration Statement and Prospectus and as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company and each of its subsidiaries has fulfilled and performed all its material obligations with respect to such permits subject in each case to such qualifications as may be set forth in the Registration Statement and Prospectus and no event has occurred which allows, or after notice or lapse of time or both would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such permit subject in each case to such qualifications as may be set forth in the Registration Statement and Prospectus. 4.7 Incorporated Documents. The Incorporated Documents heretofore filed with the Commission, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further Incorporated Documents so filed will, when they are filed, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that this representation and warranty will not apply to any VEBA Information. 4.8 No Material Adverse Change. (a) No Material Adverse Change. Since December 31, 1997 except as set forth in the Registration Statement, there has not been a material adverse change in the condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and its subsidiaries on a consolidated basis (a "Material Adverse Change"). 4.9 Litigation. Except to the extent set forth in the Registration Statement, there are no actions, claims, suits, citations or proceedings (including, without limitation, an investigation or partial proceeding, such as a deposition) pending, or to the knowledge of the Company, threatened ("Proceedings") against or affecting the Company or any of its subsidiaries or any of their respective properties or assets, that either individually or in the aggregate are reasonably likely to have a Material Adverse Effect. There is no Proceeding seeking to restrain, enjoin, prevent the consummation of or otherwise challenge this Agreement, the Rights Offering, the issuance of the Common Shares or the transactions contemplated hereby. Neither the Company nor any of its subsidiaries is subject to any judgment, order, decree, rule or regulation of any court, governmental authority or arbitration board or tribunal that has had a Material Adverse Effect or, except to the extent set forth in the Registration Statement, that could reasonably be expected to have a Material Adverse Effect. 4.10 Private Offering. Assuming the truth and correctness of the representations and warranties set forth in Section 6 hereof, the sale of the Common Shares hereunder is exempt from the registration and prospectus delivery requirements of the Securities Act. 4.11 No Stabilization or Manipulation. The Company has not taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company. Section 5 Expenses; Indemnification 5.1 Expenses. If the transactions contemplated by this Agreement are not consummated (other than because of VEBA's breach of its obligations hereunder), the Company agrees to reimburse VEBA and its affiliates (as defined in the Securities Act), other than the Company and its subsidiaries, for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by VEBA and such affiliates in connection with this Agreement and the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the provisions of this Section 5.1 shall survive the termination of this Agreement. 5.2 Indemnification. (a) In addition to all other sums due hereunder or provided for in this Agreement, the Company hereby agrees, without limitation as to time, to indemnify VEBA and its affiliates, directors, officers, employees, counsel, agents or representatives (collectively, the "VEBA Indemnified Parties") against, and hold each of them harmless from, to the fullest extent lawful, all losses, claims, damages, liabilities, costs (including, without limitation, costs of preparation and reasonable attorneys' fees and disbursements) and expenses, including expenses of investigation (collectively, "Losses"), incurred by each of them and arising out of or in connection with (i) this Agreement, (ii) a breach of any representation, warranty, covenant or agreement of the Company hereunder or (iii) the transactions contemplated hereby (or any other document or instrument executed herewith or pursuant hereto or thereto) whether or not the transactions contemplated by this Agreement are consummated and whether or not any VEBA Indemnified Party is a formal party to any proceeding. The Company agrees to reimburse any VEBA Indemnified Party promptly for all such Losses as they are incurred by such VEBA Indemnified Party (regardless of whether it is or may be ultimately determined that a VEBA Indemnified Party is not entitled to indemnification hereunder). The obligations of the Company to each VEBA Indemnified Party hereunder shall be separate obligations, and the Company's liability to any such VEBA Indemnified Party hereunder shall not be extinguished solely because any other VEBA Indemnified Party is not entitled to indemnity hereunder. The obligations of the Company under this Section 5.2 shall survive any transfer of the Common Shares by VEBA and the termination of this Agreement. Notwithstanding the foregoing, (x) to the extent (A) the compliance certificate delivered pursuant to Section 3.3 contains any exceptions and (B) VEBA nevertheless elects to consummate the transactions contemplated under this Agreement, the Company shall not be obligated to indemnify, hold harmless or contribute to the Losses of any VEBA Indemnified Party (or reimburse its related expenses) with respect to such exceptions under this Section 5.2 and VEBA shall not have any claim or remedy under this Agreement with respect to such excepted matters (except, in both such instances, to the extent such Losses result from an inaccuracy contained in such compliance certificate), and (y) the Company shall not be obligated to indemnify, hold harmless or contribute to the Losses of any VEBA Indemnified Party (or reimburse its related expenses) to the extent any Loss arises out of or is in connection with a claim made pursuant to clause (i) and/or (iii) of this Section 5.2(a) and results from the wrongful act or omission of such VEBA Indemnified Party or results from an act or omission with respect to which a court of competent jurisdiction would find such VEBA Indemnified Party liable or culpable. In addition, the Company shall not be obligated to indemnify, hold harmless or contribute to the Losses of any VEBA Indemnified Party (or reimburse its related expenses) to the extent any Loss arises out of or is in connection with a claim (x) made pursuant to clause (i) and/or (iii) of this Section 5.2(a) and (y) originally brought, commenced or asserted by a VEBA Indemnified Party. (b) In addition to all other consideration provided for in this Agreement, VEBA hereby agrees, without limitation as to time, to indemnify the Company and its subsidiaries, directors, officers, employees, counsel, agents or representatives (collectively, the "Company Indemnified Parties") against, and hold each of them harmless from, to the fullest extent lawful, all Losses incurred by each of them and arising out of or in connection with a breach of any representation, warranty, covenant or agreement of VEBA hereunder whether or not the transactions contemplated by this Agreement are consummated and whether or not any Company Indemnified Party is a formal party to any proceeding. VEBA agrees to reimburse any Company Indemnified Party promptly for all such Losses as they are incurred by such Company Indemnified Party (regardless of whether it is or may be ultimately determined that a Company Indemnified Party is not entitled to indemnification hereunder). The obligations of VEBA to each Company Indemnified Party hereunder shall be separate obligations, and VEBA's liability to any such Company Indemnified Party hereunder shall not be extinguished solely because any other Company Indemnified Party is not entitled to indemnity hereunder. The obligations of VEBA under this Section 5.2 shall survive any transfer of the Common Shares by VEBA and the termination of this Agreement. (c) The procedures set forth in Section 8(c) of the Registration Rights Agreement dated July 12, 1995 between the Company and Huls Corporation (a predecessor to VEBA) shall govern any indemnification pursuant to this Section 5.2. (d) If the indemnification provided for in this Section 5.2 is unavailable to, or insufficient to hold harmless, any indemnified party in respect of any Losses referred to herein, then an indemnifying party shall have an obligation to contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect its relative fault, on the one hand, and such indemnified party, on the other hand, in connection with the actions which resulted in such Losses as well as any other relevant equitable considerations. The amount paid or payable by any such person as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 5.2, any legal or other fees or expenses reasonably incurred by such Person in connection with any investigation, lawsuit or legal or administrative action or proceeding. (e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5.2 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in subsection (c) of this Section 5.2. 5.2 Arbitration. (a) Resolution of any and all disputes arising from or in connection with the determination of to what extent, if any, a claim is made pursuant to clause (i) and/or (iii) of Section 5.2(a) as compared to clause (ii) of Section 5.2(a) or to what extent, if any, a VEBA Indemnified Party is entitled to indemnification pursuant to clause (y) in the penultimate sentence of Section 5.2(a) ("Disputes"), shall be exclusively governed by and settled in accordance with the provisions of this Section; provided, that the foregoing shall not preclude equitable or other judicial relief to enforce the provisions hereof or to preserve the status quo pending resolution of Disputes hereunder. Each party to this Agreement (each a "Party" and together the "Parties") may commence proceedings hereunder by delivery of written notice providing a reasonable description of the Dispute to the other Party, including a reference to this Section (the "Dispute Notice"). (b) The Parties shall first attempt in good faith to resolve promptly any Dispute by negotiations between executives who have authority to settle it (as to each Party, an "Executive"). Not later than 35 days after delivery of the Dispute Notice, each Party shall designate an Executive and meet with the other Party's Executive at a reasonably acceptable time and place, and thereafter as such Executives deem reasonably necessary. The Executives shall exchange relevant information and endeavor to resolve the Dispute. Prior to any such meeting, each Party's Executive shall advise the other as to any other individuals who will attend such meeting. All negotiations pursuant to this Section shall be confidential and shall be treated as compromise negotiations for purposes of Rule 408 of the Federal Rules of Evidence and similarly under other federal and state rules of evidence. (c) Except to the extent the Parties agree to continue proceedings pursuant to paragraph (b) hereof, the Parties shall, commencing not later than 35 days after the date of delivery of the Dispute Notice, endeavor to settle the Dispute by Mediation pursuant to the Center for Public Resources ("CPR") Model Procedure for Mediation of Business Disputes, as amended from time to time, and/or according to such other or additional rules or procedures as the Parties may agree. The neutral third party in such Mediation shall be as agreed by the Parties or, failing such agreement, selected with the assistance of the CPR. (d) (1) The Parties hereby agree to submit all Disputes to arbitration under the following provisions, which arbitration shall be final and binding upon the Parties, their successors and assigns, and that the following provisions constitute a binding arbitration clause under applicable law. (2) Either Party may initiate arbitration of a Dispute by delivery of a demand therefor (the "Arbitration Demand") to the other Party not sooner than 60 days after the date of delivery of the Dispute Notice but at any time thereafter; provided, that if a Party (the "Non-Cooperative Party") does not cooperate in the procedures provided under paragraph (b) or paragraph (c), the other Party may initiate arbitration at such earlier time as such non-cooperation shall become reasonably apparent, and the arbitrators may assess against the Non-Cooperative Party damages and expenses arising from such non-cooperation, including attorney's fees and expenses and Arbitration Costs (as defined below) in connection with arbitration hereunder. (3) The arbitration shall be conducted in New York by one arbitrator selected by agreement of the Parties not later than 10 days after delivery of the Arbitration Demand or, failing such agreement, appointed pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as amended from time to time (the "AAA Rules"). If an arbitrator becomes unable to serve, his or her successor(s) shall be similarly selected or appointed. (4) The arbitration shall be conducted pursuant to the Federal Arbitration Act and the Missouri Uniform Arbitration Act and such procedures as the Parties may agree or, in the absence of or failing such agreement, pursuant to the AAA Rules. Notwithstanding the foregoing: (A) each party shall be allowed to conduct discovery through written requests for information, document requests, requests for stipulations of fact, and depositions; (B) the nature and extent of such discovery shall be determined by the Panel, taking into account the needs of the Parties and the desirability of making discovery expeditious and cost-effective; (C) the Panel may issue orders to protect the confidentiality of information to be disclosed in discovery; and (D) the Panel's discovery rulings may be enforced in any court of competent jurisdiction. (5) All hearings shall be conducted on an expedited schedule, and all proceedings shall be confidential. Either Party may at its expense make a stenographic record thereof. (6) The Panel shall complete all hearings not later than 90 days after selection or appointment. The Panel's decision shall be in writing and shall specify the factual and legal bases for the decision. The Panel shall apportion all costs and expenses of the arbitration, including the Panel's fees and expenses and fees and expenses of experts ("Arbitration Costs") between the prevailing and non-prevailing Party as the Panel deems fair and reasonable and consistent with the principles and provisions of Section 5.2. In circumstances where (A) a Dispute has been asserted or defended against on grounds that the Panel deems manifestly unreasonable, or (B) the non-prevailing Party has rejected participation in procedures under paragraph (b) or (c), the Panel may assess all Arbitration Costs against the non-prevailing Party and may include in the award the prevailing Party's attorney's fees and expenses in connection with any and all proceedings under this Section. Any assessment or apportionment of Arbitration Costs in accordance with the foregoing sentences shall not affect the amount, if any, an indemnified party is entitled to receive on account of any Losses pursuant to the provisions of Section 5.2. Notwithstanding the foregoing, in no event may the Panel award multiple, punitive or exemplary damages. (7) Either Party may assert appropriate statutes of limitation as a defense in arbitration; provided, that upon delivery of a Dispute Notice any such statute shall be tolled pending resolution hereunder. (e) Confidentiality - Notice. Each Party shall notify the other promptly, and in any event prior to disclosure to any third person, if it receives any request for access to confidential information or proceedings hereunder. Section 6 Purchase for Investment; Other Representations and Warranties VEBA represents and warrants on and as of the date hereof and as of the date of issuance of the Common Shares and, to the extent specified below, VEBA agrees, as follows: 6.1 Purchase for Investment. Subject to VEBA's right of assignment set forth in Section 7.4, VEBA is purchasing the Common Shares for its own account or for one or more separate accounts maintained by VEBA, in each case for investment and not with a view to the distribution or sale thereof in violation of the securities laws. 6.2 Authorization. The execution, delivery and performance by VEBA of this Agreement are within VEBA's powers (corporate or otherwise), have been duly authorized by all necessary action (corporate or otherwise) on the part of VEBA, and do not contravene or constitute a default under (a) any provision of applicable law, rule or regulation applicable to VEBA, (b) VEBA's certificate of incorporation, bylaws, partnership agreement or other governing instruments or (c) any agreement, judgment, injunction, order, decree or other instrument binding upon VEBA, except for any such contravention or default as would not, individually or in the aggregate, be reasonably likely to prevent VEBA from performing its obligations hereunder. 6.3 Enforceability. This Agreement constitutes VEBA's legally valid and binding obligation, enforceable against VEBA in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforceability is sought in equity or at law). 6.4 No Public Market. VEBA 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. VEBA is an accredited investor within the meaning of Regulation D under the Securities Act. 6.5 Organization. VEBA is a corporation duly organized and validly existing, is in good standing under the laws of the State of Delaware. 6.6 Brokers. Neither VEBA nor its affiliates (other than the Company or its subsidiaries) has employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement. 6.7 Financial Status. VEBA has as of the date of this Agreement, the financial wherewithal to honor its commitments hereunder. 6.8 Reliance. VEBA acknowledges that the Company is relying upon the representations and warranties contained herein in determining to make the sale of the Common Shares, and VEBA consents to such reliance. 6.9 Representations and Warranties; Registration Statement. Except to the extent set forth in any officer's certificate delivered pursuant to Section 3.3, neither VEBA AG nor VEBA has any reason to believe that a breach of any representation or warranty contained herein has occurred or that the Registration Statement or Prospectus (if amended or supplemented, as amended or supplemented) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading. Section 7 Miscellaneous 7.1 Amendments, Etc. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and VEBA. 7.2 Definitions. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York are authorized or required by law to close. "Calculation Date" means (x) the date on which the Company has substantially complied with and responded to all of the Commission's comments regarding the Registration Statement and Rights Offering and the Commission has indicated its willingness, other than insofar as the disclosure therein relates to the fairness opinion to be delivered to the Special Committee of the Board of Directors of the Company, to accelerate the effectiveness of the Registration Statement, or (y) such other date mutually agreed to by the parties. "Commission" means the Securities and Exchange Commission. "Common Shares" means a number of shares of Common Stock equal to 106,100,000 divided by the Purchase Price rounded up to the nearest whole number. "Escrow Agent" means an escrow agent mutually agreed to between the Company and VEBA. "Escrow Agreement" means an escrow agreement among the Escrow Agent, VEBA and the Company in form and substance reasonably acceptable to the Company and VEBA, it being understood that the parties intend that the only condition necessary to release the escrowed funds to the Company and the certificates representing the Common Shares to VEBA or its permitted assignee shall be that the Commission declares the Registration Statement effective. "Purchase Price" per Common Share shall mean the volume weighted average trading price of the Common Stock for the five consecutive trading days ending on the day prior to the Calculation Date. "Registration Statement" means the Registration Statement relating to the Rights Securities on Form S-3 or another appropriate form under the Securities Act. "VEBA Information" means the following information: (i) the identity, business, management and activities of VEBA AG and its affiliates (other than the Company and its subsidiaries); (ii) the plans of VEBA AG or its affiliates (other than the Company and its subsidiaries) relating to the Company or shares of Common Stock; (iii) the number of shares of Common Stock beneficially owned by VEBA or which VEBA has the right to acquire; (iv) information regarding the ownership or control of VEBA common stock by VEBA AG and its affiliates; (v) statements regarding the commitment or intentions of VEBA AG and affiliates (other than the Company and its subsidiaries) with respect to the Company; and (vi) the plans of VEBA AG or its affiliates with respect to the inclusion of the Company in the VEBA consolidated federal income tax return filed by VEBA and related matters in the event that VEBA's ownership of Common Stock entitles VEBA to include the Company in VEBA's consolidated federal income tax return. 7.3 Survival of Agreements, Representations and Warranties. The rights and remedies in respect of the representations, warranties, covenants and agreements herein or in any certificate or other instrument delivered in connection with this Agreement shall survive the sale and purchase of the Common Shares herein contemplated regardless of any investigation made by any party hereto. No representation or warranty made or deemed made as of any date pursuant to any Section of this Agreement shall be deemed by reason of this Section 7.3 to have been made or deemed made as of any other date. All statements in any such certificate or other instrument shall constitute representations and warranties as of the date of such certificates. 7.4 Assignment; Binding Agreement. This Agreement and the various rights and obligations arising hereunder shall inure to the benefit of and be binding upon VEBA, its successors, and permitted assigns and the Company, its successors, and permitted assigns. Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be transferred, delegated, or assigned (by operation of law or otherwise) by either of the parties hereto without the prior written consent of the other party, except that VEBA shall have the right to transfer and assign its rights hereunder to purchase the Common Shares and any other rights or benefits afforded to it by this Agreement to (x) VEBA AG or VEBA Zweite Verwaltungsgesellschaft mbH and (y) any other direct or indirect wholly owned subsidiary of VEBA AG, provided that, only in the case of the foregoing subclause (y), to the extent required by law, such right to transfer and assign shall be subject to the prior approval of the Company's Board of Directors, which approval shall not be unreasonably withheld and, in the case of both of the foregoing sub-clauses (x) and (y), any such transferee makes the representations and warranties contained in Sections 6.1 and 6.4 and acknowledges and agrees to the provisions of Section 7.19. Any such transfer shall not discharge VEBA from its obligations hereunder. 7.5 Entire Agreement. This Agreement embodies the entire agreement and understanding between the Company and VEBA and supersedes all prior agreements and understandings, written or oral, relating to the subject matter hereof. 7.6 Notices, Etc. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and made upon being delivered either by courier or fax delivery to the party for whom it is intended, provided that a copy thereof is deposited, postage prepaid, certified or registered mail, return receipt requested, in the United States mail, bearing the address shown in this Section 7.5 for, or such other address as may be designated in writing hereafter by, such party: If to VEBA: VEBA Corporation 605 Third Avenue New York, NY 10158 Attention: Dr. Heinz Helmer Putthoff President Fax: (212) 922-2798 If to the Company: MEMC Electronic Materials Inc. 501 Pearl Drive (City of O'Fallon) St. Peters, Missouri 63376 Attention: Helene F. Hennelly Corporate Vice President, General Counsel and Secretary Fax: (314) 279-5158 7.7 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. There shall be substituted for any such provision so rendered ineffective a provision which, as far as legally possible, most nearly reflects the intent of the parties hereto. 7.8 Use of Proceeds. The Company hereby agrees to use the proceeds from the sale of the Common Shares in the manner and for the purposes specified in the Registration Statement. 7.9 Termination. Either party may terminate this Agreement if more than an aggregate of 150 million shares of Common Stock would be required to be issued, or more than $200 million would be received by the Company, in connection with the consummation of the purchase and sale of Common Shares contemplated hereby and the consummation of the Rights Offering and the transactions contemplated by the Standby Agreement dated the date hereof between VEBA and the Company (the "Standby Agreement"). The Company shall have the right to terminate this Agreement if the Special Committee of the Board of Directors of the Company determines in good faith, after receiving the advice of outside counsel, that proceeding with the Rights Offering would result in a breach of its fiduciary duties to the Company's stockholders under applicable law. 7.10 Taxes. In the event that VEBA and its affiliates' ownership of Common Stock, entitles VEBA to include the Company in the VEBA consolidated federal income tax return, VEBA and the applicable VEBA affiliates shall enter into a tax sharing or affiliation agreement with the Company. Such agreement shall provide that the inclusion of the Company in the VEBA consolidated federal income tax return will not be detrimental to the Company for federal income tax purposes as compared with the federal income tax treatment of the Company had it not been includible in the VEBA consolidated federal income tax return and such agreement shall be in form and substance reasonably acceptable to the Company and VEBA. 7.11 Comfort Letter. The Company agrees to endeavor in good faith to obtain the receipt of the Comfort Letter described in Section 3.9. 7.12 Counterparts. This Agreement may be executed in any number of counterparts, and by each party hereto in separate counterparts, each of which counterpart shall be an original, but all of which together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page of this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement. 7.13 Headings. The section headings in this Agreement are for purposes of reference only and shall not limit or define the meaning hereof. 7.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE ACTION, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SECURTIES OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY, THE SUBJECT MATTER OF ANY OF THE FOREGOING OR THE ACTIONS OF ANY PARTY HERETO OR THERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF. 7.15 GOVERNING LAW. THIS AGREEMENT AND (UNLESS OTHERWISE EXPRESSLY PROVIDED) ALL AMENDMENTS AND SUPPLEMENTS TO, AND ALL CONSENTS AND WAIVERS PURSUANT TO, THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 7.16 Registration Statement. Any reference in this Agreement to the Registration Statement shall be to the most recent Registration Statement, as filed with the Commission (notwithstanding that such Registration Statement is subject to completion and has not yet been declared effective by the Commission) or to the extent no Registration Statement has been filed with the Commission, the Company's draft Registration Statement attached hereto as Schedule A. In addition, any reference in this Agreement to the Registration Statement shall be deemed to include any documents filed under the Exchange Act which have been (or would have been had such Registration Statement then been filed with and declared effective by the Commission) incorporated by reference therein. As used herein, the term "Incorporated Documents" means the documents which at the time are (or would have been had such Registration Statement then been filed with and declared effective by the Commission) incorporated by reference in the Registration Statement. 7.17 Covenants of VEBA. In further consideration of the agreements of the Company herein contained, VEBA covenants as follows: VEBA has not taken and during the period of the calculation of the Purchase Price, will not take, directly or indirectly, any action designed to or which might be reasonably expected to cause or result in stabilization or manipulation of the price of the Company's Common Stock, and VEBA has no reason to believe that any such action has been taken by its controlled affiliates other than the Company and its subsidiaries, and during the period of the calculation of the Purchase Price, will not permit any such controlled affiliate to take such action. 7.18 Waiver of Rights. Assuming consummation of the issuance and purchase of the Common Shares in accordance with this Agreement, VEBA acknowledges and agrees that neither VEBA nor any assignee of its Shares or assignee of its rights under this Agreement will be entitled to any distribution of Rights from the Company in the Rights Offering. If VEBA transfers any shares of Common Stock prior to the Record Date of the Rights Offering, VEBA will cause any such transferee to agree that it will not be entitled to any distribution of Rights from the Company in the Rights Offering with respect to such shares. 7.19 Restricted Nature of Shares. VEBA 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 the Company that such registration is not required. VEBA 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 the Company, an opinion of counsel reasonably satisfactory to the Company that the transfer of such Common Shares may be effected without registration under the Securities Act and any applicable state securities laws. VEBA acknowledges that the certificates evidencing the Common Shares will contain a legend to such effect. IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written. VEBA CORPORATION By /s/ A. Paul Brandimarte, Jr. -------------------------------- Name: A. Paul Brandimarte, Jr. Title: Vice President MEMC ELECTRONIC MATERIALS INC. By /s/ James M. Stolze -------------------------------- Name: James M. Stolze Title: Executive Vice President/ Chief Financial Officer EX-3 4 STANDBY AGREEMENT EXHIBIT 3 STANDBY AGREEMENT THIS STANDBY AGREEMENT (the "Agreement") is entered into as of October 22, 1998, by and among VEBA Corporation, a Delaware corporation ("VEBA"), and MEMC Electronic Materials, Inc., a Delaware corporation (the "Company"). RECITALS A. Pursuant to a stock purchase agreement, dated the date hereof (the "Stock Purchase Agreement"), the Company proposes to issue to VEBA approximately $106 million of its Common Stock, par value $0.01 per share (the "Common Stock"), at a purchase price per share determined in accordance with the Stock Purchase Agreement (the "VEBA Purchase Price") (the transactions contemplated by the Stock Purchase Agreement being hereinafter referred to as the "Private Placement"); and B. The Company also proposes to issue (the "Rights Offering"), upon the terms and subject to the conditions set forth in the Prospectus (as hereinafter defined), rights (the "Rights") to purchase shares of its Common Stock. Each Right will be exercisable at a price per share to be set forth in the Prospectus (the "Subscription Price") and evidenced by transferable certificates (the "Rights Certificates"). The Subscription Price and the VEBA Purchase Price will be identical. The date on which the Rights Offering expires is referred to as the "Expiration Date" and the time which the Rights Offering expires on the Expiration Date is referred to as the "Expiration Time." The Rights and the Common Stock issuable and issued upon exercise thereof are hereinafter sometimes collectively referred to as the "Securities." NOW, THEREFORE, in consideration of the recitals and the mutual covenants, representations, warranties, conditions and agreements hereinafter expressed, the parties agree as follows: ARTICLE I STANDBY COMMITMENT FOR PURCHASE AND SALE OF SHARES 1.1. Registration Statement and Prospectus; Public Offering. The Company will file with the Securities and Exchange Commission (the "Commission"), pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and the published rules and regulations adopted by the Commission under it (the "Rules"), a registration statement on Form S-3 or another appropriate form under the Securities Act, including a preliminary prospectus, relating to the Securities, and will use its reasonable efforts to permit such registration statement to become effective. The registration statement as amended at the time it becomes effective (the "Effective Date"), including all financial statements and all exhibits set forth therein, is called the "Registration Statement," and the prospectus relating to the Rights Offering included in the Registration Statement (including information deemed a part of such Registration Statement pursuant to Rule 430A under the Securities Act), is called the "Prospectus." Any reference in this Agreement to the Registration Statement or Prospectus shall be deemed to refer to and include the documents incorporated by reference therein as of the date of any such Registration Statement or Prospectus, as the case may be, and any reference to any amendment or supplement to the Registration Statement or Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended (the "Exchange Act") which, upon filing, are incorporated by reference therein. As used herein, the term "Incorporated Documents" means the documents which at the time are incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto. 1.2. Purchase and Sale of Shares. On the basis of the representations, warranties and other agreements herein contained, VEBA agrees to purchase and the Company agrees to sell at the Subscription Price any shares of Common Stock offered in the Rights Offering and not otherwise subscribed for by the other stockholders of the Company prior to the Expiration Time ("Shares"), but only after satisfaction in full of the Oversubscription Privileges of all other stockholders of the Company. Notwithstanding the foregoing, but subject to the provisions of Section 3.1, VEBA agrees that, to the extent the rounding up of Rights distributed to stockholders or any other reason causes the aggregate proceeds from the Stock Purchase Agreement, the Rights Offering and pursuant to this Agreement to exceed $200 million (or the aggregate number of shares of Common Stock issued pursuant to both transactions to exceed 150 million shares), the number of shares of Common Stock sold by the Company and purchased by VEBA pursuant to this Agreement shall be reduced, in order that the aggregate proceeds from the Private Placement, the Rights Offering and pursuant to this Agreement shall not exceed $200 million and the aggregate number of shares of Common Stock issued in such transactions shall not exceed 150 million. If VEBA or its affiliates purchase any Rights, on the New York Stock Exchange or otherwise, during the Rights Offering, VEBA agrees that neither it nor its affiliates (other than the Company and its subsidiaries) will exercise its Oversubscription Privilege with respect to such Rights. 1.3. Payment and Delivery. VEBA shall pay for the Shares by wire transfer of immediately available funds to a bank account designated by the Company and the Company shall deliver the Shares at the office of Chadbourne & Parke LLP, 30 Rockefeller Plaza, New York, New York 10112, at 10:00 A.M., New York City time, on the same business day as the shares of Common Stock are issued to the holders of Rights in the Rights Offering, which date shall be the first business day following the Expiration Date, or at such other date or place as shall be determined by agreement between VEBA and the Company. This date and time are sometimes referred to as the "Closing Date." On the Closing Date, the Company shall deliver or cause to be delivered certificates representing the Shares to VEBA against payment as aforesaid. Upon delivery, the certificates for the Shares shall be registered in the name of VEBA (or its permitted assignee in accordance with Section 6.4) and in such denominations as VEBA shall request in writing not less than two full business days prior to the Closing Date. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1. Representations and Warranties of the Company. The Company represents and warrants to and agrees with VEBA that: (a) The Company is a corporation duly organized and validly existing, is in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to carry on its business as described in the Registration Statement and the Prospectus. The Company is duly qualified as a foreign corporation and is in good standing in all other jurisdictions in which such qualification is required, provided however, that the Company need not be qualified in a jurisdiction in which its failure to qualify would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), business, properties, prospects, net worth or results of operations of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). (b) No person is entitled to any preemptive or similar rights to subscribe for the Shares. (c) All the outstanding shares of Common Stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights. The Rights, the Common Stock issuable upon exercise of the Rights and the Shares to be issued and sold to VEBA pursuant to this Agreement have been duly authorized and such Common Stock and Shares, when issued and paid for, will be validly issued, fully paid and non-assessable; such securities are not subject to any preemptive or similar rights. The capital stock of the Company conforms in all material respects to the description thereof in the Registration Statement and the Prospectus. (d) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby by the Company (including the issuance and sale of the Shares to VEBA) nor the compliance with the terms of the Rights and this Agreement (A) requires any consent, approval, authorization or other order of or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required for the registration of the Securities under the Securities Act, compliance with the rules of the National Association of Securities Dealers, Inc., compliance with the securities or Blue Sky laws of various jurisdictions and compliance with the rules of the New York Stock Exchange, all of which have been or will be effected in accordance with this Agreement) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws, or other organizational documents, of the Company or any of its subsidiaries or (B) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of its subsidiaries or any of their respective properties, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject except for, in the case of the foregoing clause (B), such violations which would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (e) The Registration Statement in the form in which it becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective, will comply in all material respects with the provisions of the Securities Act and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) under the Securities Act will comply in all material respects with the provisions of the Securities Act and will not at any such time contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances in which they are made, not misleading, except that this representation and warranty does not apply to the VEBA Information (as defined below). (f) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries, or to which the Company or any of its subsidiaries, or to which any of their respective properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not so described as required. (g) Neither the Company nor any of its subsidiaries is in violation (A) of its certificate or articles of incorporation or by-laws, or other organizational documents, or (B) of any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of its subsidiaries, including, without limitation, (i) any foreign, Federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) any Federal or state law relating to discrimination in the hiring, promotion or pay of employees or any applicable federal or state wages and hours laws, or (iii) any provisions of the Employee Retirement Income Security Act or the rules and regulations promulgated thereunder (collectively, "ERISA"), or of any decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries except for, in the case of the foregoing clause (B), such violations which would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (h) Neither the Company nor any of its subsidiaries is in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or by which any of them or any of their respective properties may be bound, except for such defaults which would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (i) The historical financial statements, together with related schedules and notes, included in the Registration Statement and the Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements of the Securities Act; such historical financial statements, together with related schedules and notes, present fairly the consolidated financial position, results of operations, cash flows and changes in financial position of the entities to which they relate on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included in the Registration Statement and the Prospectus (and any amendment or supplement thereto), are accurately presented in all material respects and, to the extent applicable, prepared on a basis consistent in all material respects with such financial statements and the books and records of the entities to which they relate. (j) The execution and delivery of, and the performance by the Company of its obligations under, this Agreement have been duly and validly authorized by the Company, and this Agreement has been duly executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to limitations on enforcement under applicable bankruptcy, insolvency, liquidation, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general equitable principles (whether considered in a proceeding in equity or at law). (k) Except as disclosed in the Registration Statement and the Prospectus, subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus: neither the Company nor any of its subsidiaries has incurred any material liability or obligation, direct or contingent, or entered into any transaction, not in the ordinary course of business, that is material to the Company and its subsidiaries taken as a whole, and there has not been any material change in the capital stock, or material increase in the short-term debt or long-term debt, of the Company or any of its subsidiaries (except pursuant to agreements with VEBA and its affiliates), or any material adverse change, or any development involving, or which may reasonably be expected to involve, a prospective material adverse change in the condition (financial or other), business, properties, prospects, net worth or results of operations of the Company and its subsidiaries, taken as a whole. (l) The Company and each of its subsidiaries has such permits, licenses, franchises and authorizations including, without limitation, under any applicable Environmental Laws, of governmental or regulatory authorities ("permits") as are necessary to own its respective properties and to conduct its business in the manner described in the Registration Statement and Prospectus, subject to such qualifications as may be set forth in the Registration Statement and Prospectus and with such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company and each of its subsidiaries has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time or both would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may be set forth in the Registration Statement and Prospectus. (m) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to VEBA Information. (n) The Company has not taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the issuance of the Rights or the sale or resale of the Common Stock issuable upon exercise of the Rights or Shares. 2.2. Representations and Warranties of VEBA. VEBA represents and warrants to the Company that, as of the date of this Agreement, and covenants and agrees that as of the Closing Date, it will be deemed to have represented and warranted as of such date, that: (a) VEBA is a corporation duly organized and validly existing, is in good standing under the laws of the State of Delaware. (b) The execution and delivery of, and the performance by VEBA of its obligations under, this Agreement have been duly and validly authorized by VEBA, and this Agreement has been duly executed and delivered by VEBA and constitutes the valid and legally binding agreement of VEBA, enforceable against VEBA in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to limitations on enforcement under applicable bankruptcy, insolvency, liquidation, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general equitable principles (whether considered in a proceeding in equity or at law). (c) The execution, delivery and performance of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms this Agreement will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or give rise to rights of termination under, any deed of trust, lease, sublease, the certificate or articles of incorporation or by-laws of VEBA, or any indenture, mortgage, or other agreement or instrument to which VEBA is a party or by which VEBA or its property is bound, or any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over VEBA or any of its subsidiaries, or the properties or operations of any of them, except for any such conflict, breach, default, or right of termination, as would not, individually or in the aggregate, be reasonably likely to prevent VEBA from performing its obligations hereunder. (d) The VEBA Information as reflected in or omitted from the Registration Statement and the Prospectus does not and will not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. "VEBA Information" means the following information: (i) the identity, business, management and activities of VEBA AG and its affiliates (other than the Company and its subsidiaries), (ii) the plans of VEBA AG or its affiliates (other than the Company and its subsidiaries) relating to the Company or shares of Common Stock, (iii) the number of shares of Common Stock beneficially owned by VEBA or which VEBA has a right to acquire, (iv) information regarding the ownership or control of VEBA common stock by VEBA AG and its affiliates (other than the Company and its subsidiaries), (v) statements regarding the commitment or intentions of VEBA AG and affiliates (other than the Company and its subsidiaries) with respect to the Company, and (vi) the plans of VEBA AG or its affiliates with respect to the inclusion of the Company in the consolidated federal income tax return filed by VEBA ("VEBA Consolidated Federal Income Tax Return") and related matters in the event that the ownership of Common Stock by VEBA AG or its affiliates entitles any such entity to include the Company in the VEBA Consolidated Federal Income Tax Return. (e) Neither VEBA AG nor VEBA has any reason to believe that a breach of any representation or warranty contained herein has occurred or that the Registration Statement or Prospectus (if amended or supplemented, as amended or supplemented) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading. (f) Neither VEBA nor its affiliates (other than the Company or its subsidiaries) has employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement. (g) VEBA has as of the date of this Agreement, and will have upon exercise of its Rights, the financial wherewithal to honor its commitments hereunder. (h) VEBA understands that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Section 4(2) of the Securities Act. VEBA is not acquiring the 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. (i) VEBA (or any permitted assignee under Section 6.4) is acquiring the 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. (j) VEBA is an accredited investor under the Securities Act. (k) VEBA hereby waives its right under the Registration Rights Agreement between VEBA (as successor to Huls Corporation) and the Company, dated July 12, 1995, (the "Registration Rights Agreement") to have its existing shares of Common Stock included in the Registration Statement and thereby registered under the Securities Act in connection therewith. (l) VEBA acknowledges that the Company is relying upon the representations and warranties contained herein in determining to make the sale of the Shares, and VEBA consents to such reliance. ARTICLE III RIGHTS OFFERING 3.1. Subscription Offer. The Company will use its reasonable efforts to distribute at no charge to holders of its Common Stock of record as of the close of business on a date (the "Record Date") established by the special committee of the Board of Directors designated to take all board action in connection with, and to consider and/or approve, the Rights Offering (the "Special Committee"), a specified number or fraction of transferable subscription rights (each, a "Right") for every share of Common Stock held on the Record Date, with each such Right entitling the holder thereof to subscribe for (the "Basic Subscription Privilege") and to purchase one share of Common Stock, for the Subscription Price. The number of Rights distributed to each holder of Common Stock will be rounded up to the nearest whole number. Notwithstanding the foregoing, VEBA agrees that the Company will not distribute any Rights to VEBA or to any permitted transferee of its shares of Common Stock. If VEBA transfers any shares of Common Stock prior to the Record Date, VEBA will cause any such transferee to agree that it will not be entitled to any distribution of Rights from the Company in the Rights Offering with respect to such shares. The Rights will expire as provided in the Prospectus, unless extended as described therein. Each Right also carries with it the right to subscribe (the "Oversubscription Privilege") at the Subscription Price for an unlimited number of shares of Common Stock that are not otherwise purchased through the exercise of the Basic Subscription Privilege, subject to reduction by the Company in certain circumstances. If an insufficient number of shares of Common Stock are available to satisfy fully all subscriptions pursuant to the Oversubscription Privilege, then the available shares of Common Stock will be prorated among those persons who subscribe pursuant to the Oversubscription Privilege (other than VEBA or its permitted transferee), based on the respective numbers of Rights exercised by such persons pursuant to the Basic Subscription Privilege. The Company shall allocate Shares to VEBA as provided in Section 1.2. The Rights will be evidenced by the Rights Certificates. Notwithstanding anything contained in this Agreement, in no event shall the Rights Offering result in VEBA and its affiliates (within the meaning of the Securities Act) in the aggregate owning less than 52% of the issued and outstanding shares of Common Stock of the Company (excluding shares issuable pursuant to the Company's employee benefit plans), immediately after consummation of the Rights Offering. 3.2. Restricted Nature of Shares. VEBA acknowledges that the 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 Shares under the Securities Act or an opinion of counsel satisfactory to the Company that such registration is not required. VEBA agrees it will not transfer, by way of gift or otherwise, or sell the Shares or any part thereof, unless such 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 the Company, an opinion of counsel reasonably satisfactory to the Company that the transfer of such Shares may be effected without registration under the Securities Act and any applicable state securities laws. VEBA acknowledges that the certificates evidencing the Shares will contain a legend to such effect. ARTICLE IV COVENANTS OF THE PARTIES 4.1 Covenants of the Company. In further consideration of the agreements of VEBA herein contained, the Company covenants as follows: (a) Effectiveness of Registration Statement. The Company will use its reasonable efforts to cause the Registration Statement to become effective and will advise VEBA promptly and, if requested by VEBA, will confirm such advice in writing (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the necessity of amending or supplementing the Prospectus or any amended Prospectus in order to then meet the requirements of the Securities Act and the reasons why such amendment or supplement is necessary, (iii) of any request of the Commission for amendment or supplementing of the Registration Statement or Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary or amended preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution of any proceedings for any of such purposes. The Company will use its reasonable efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use and to obtain as soon as possible the lifting thereof, if issued. (b) Amendment of Registration Statement and Prospectus. The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus (including the filing of any document which, upon filing, becomes an Incorporated Document) of which VEBA shall not previously have been advised or to which VEBA shall reasonably object after being so advised. (c) Copies. The Company will deliver to VEBA, without charge, as soon as the Registration Statement shall have become effective, 10 copies of the Prospectus (as supplemented or amended, if the Company shall have made any supplements or amendments to the Prospectus). (d) Authorized Shares. The Company will maintain at all times sufficient reserved, authorized but unissued shares of Common Stock for issuance upon exercise of the Rights. (e) Amendment or Termination of Rights Offering. The Company reserves the right to amend the terms and conditions of the Rights Offering; provided, however, the Company may not change the Subscription Price or the number of shares of Common Stock issuable in the Rights Offering or take any other action which would materially adversely affect VEBA's rights hereunder without the written consent of VEBA. The Company may terminate the Rights Offering at any time only if (i) it does not receive the Fairness Opinion (as defined in Section 5.1(f)) or (ii) the special committee of the board of directors of the Company delegated authority to take action in connection with the Rights Offering determines in good faith, after receiving the advice of outside counsel, that proceeding with the Rights Offering would result in a breach of its fiduciary duties to the Company's stockholders under applicable law. (f) Rule 158. The Company will make generally available to its security holders an earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement (as defined in Rule 158 under the Securities Act) and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act. (g) Expenses. In the event of a termination of this Agreement or if the Rights Offering is not otherwise consummated (other than solely (i) because of a breach by VEBA of its representations, warranties, covenants or agreements hereunder or (ii) pursuant to Section 6.8(c) of this Agreement), the Company agrees to reimburse VEBA and its affiliates (as defined in the Securities Act), other than the Company and its subsidiaries, for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by VEBA and such affiliates in connection with the Rights Offering (but excluding expenses attributable to the Private Placement), provided the Company receives reasonable supporting documentation of such expenses. (h) No Price Stabilization or Manipulation. The Company (a) will not, except as disclosed in the Registration Statement, sell, bid for or purchase, or pay anyone any compensation for soliciting purchases of, the Company's Common Stock or the Rights and (b) will not, until the later of the Expiration Date or the completion of the distribution (within the meaning of Regulation M under the Exchange Act) of the shares of Common Stock, sell, bid for or purchase, apply or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the solicitation of the exercises of Rights pursuant to this Agreement). The foregoing shall not apply to the offer, sale, agreement to sell or delivery with respect to (1) shares of Common Stock offered and sold upon exercise of the Rights, as described in the Prospectus, or (2) any shares of Common Stock sold pursuant to any employee benefit plan. 4.2 Covenants of VEBA. In further consideration of the agreements of the Company herein contained, VEBA covenants as follows: (a) VEBA has not taken and will not take, directly or indirectly, any action designed to or which might be reasonably expected to cause or result in stabilization or manipulation of the price of the Company's Common Stock, and VEBA has no reason to believe that any such action has been taken by its affiliates other than the Company and its subsidiaries, and will not permit any such affiliate to take such action. (b) When the Registration Statement becomes effective, the VEBA Information (as defined in Section 2.2(d)) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made not misleading. (c) VEBA will not take any action to prevent the Registration Statement or any post-effective amendment thereto from becoming effective. (d) VEBA will use its reasonable efforts to do or perform all things required to be done or performed by VEBA or its affiliates (other than the Company and its subsidiaries) prior to the Closing Date to satisfy all conditions precedent to the consummation of the transactions contemplated hereby. (e) Until the Expiration Date, VEBA will advise the Company promptly, and if requested by the Company, will promptly confirm such advice in writing, of (A) any change in (i) the VEBA Information, or (ii) VEBA's intentions with respect to transactions and relationships among VEBA AG or its affiliates (other than the Company and its subsidiaries), on the one hand, and the Company or its affiliates, on the other hand, or (B) any new information relating to (i) VEBA Information or (ii) VEBA's intentions with respect to transactions and relationships among VEBA AG or its affiliates, on the one hand, and the Company or its affiliates, on the other hand, that causes the Registration Statement or the Prospectus (as then amended or supplemented, if amended or supplemented) to contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading. ARTICLE V CONDITIONS TO OBLIGATIONS OF VEBA 5.1. Conditions to VEBA's Obligations. The obligation of VEBA to purchase the Shares hereunder is subject to the satisfaction of the following conditions on or prior to the Expiration Date: (a) VEBA shall have received on the Expiration Date, the opinion of Bryan Cave LLP, counsel for the Company, addressed to VEBA, dated the Expiration Date and substantially to the effect that: (i) The Company is a corporation validly existing and is in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as described in the Registration Statement and the Prospectus; (ii) The shares of Common Stock issuable upon exercise of the Rights and issuable to VEBA pursuant to this Agreement have been duly authorized and, when issued and delivered against payment therefor in accordance with the terms of the Rights Offering or this Agreement as the case may be, will be (A) validly issued, fully paid and nonassessable and (B) free of any preemptive or similar rights that entitle or will entitle any person to acquire any shares of Common Stock upon the issuance thereof by the Company by operation of the certificate of incorporation or bylaws of the Company, or to the knowledge of such counsel, pursuant to any agreement; (iii) None of the issuance and sale of the shares of Common Stock upon exercise of the Rights, the execution, delivery or performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby (including the issuance and sale to VEBA of the Shares) nor the compliance by the Company with the terms of the Rights and this Agreement constitutes or will constitute a violation or breach of, or a default under, the certificate of incorporation or bylaws of the Company or any Material Agreement, or will result in the creation or imposition of any lien, charge or encumbrance pursuant to any Material Agreement upon any property or assets of the Company or any of its subsidiaries, nor will any such action result in any violation of the Delaware General Corporation Law (the "DGCL"), any existing Federal or Missouri law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws) recognized by such counsel to be applicable to, or any judgment, injunction, order or decree known to such counsel of any Federal or Missouri court to be applicable to the Company, its subsidiaries or any of their respective properties (provided, the term "Material Agreement" shall mean any agreement, indenture, lease or other instrument that is both (i) an exhibit to the Registration Statement and (ii) an agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or by which any of their properties or assets are bound); (iv) Such counsel has been advised by the Staff of the Commission that the Registration Statement has become effective under the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424(b) has been made in accordance with Rule 424(b); (v) (A) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver the shares of Common Stock issuable upon exercise of the Rights and to VEBA pursuant to this Agreement, (B) the Rights Offering has been duly authorized by corporate action, and (C) this Agreement has been duly authorized, executed and delivered by the Company; (vi) No consent, approval, authorization or other order of, or registration or filing with, any Federal or Missouri court, regulatory body, administrative agency or other governmental body, agency, or official is required to be obtained by the Company (except as have been obtained under the Securities Act and the Exchange Act or such as may be required under state securities or Blue Sky laws governing the sale and distribution of the shares of Common Stock) for the valid issuance and sale of the shares of Common Stock issuable upon exercise of the Rights or to VEBA in accordance with this Agreement; and (vii) Each of the Registration Statement, as of its effective date, and the Prospectus, as of its date (including Incorporated Documents and except for the financial statements and the notes thereto and the schedules and other financial and statistical data or schedules included therein or omitted therefrom, as to which such counsel need not express any opinion), comply as to form in all material respects with the requirements of the Securities Act. In addition to the matters set forth above, such opinion shall also contain a statement to the effect that, although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review and discussion of the contents thereof (including a review and discussion of the contents of all Incorporated Documents), and nothing has come to the attention of such counsel that has caused it to believe (i) that the Registration Statement (including the Incorporated Documents), and any amendment thereto, at the time it became effective (excluding any VEBA Information), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) that the Prospectus (including the Incorporated Documents), or any amendment or supplement to the Prospectus, as of its respective date, and as of the Closing Date (excluding any VEBA Information) contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data or schedules included or incorporated by reference in the Registration Statement or the Prospectus or omitted therefrom). With respect to specific matters with respect to which Bryan Cave LLP does not represent the Company, the foregoing statement may be delivered by other counsel that represents the Company with respect to such matters, such counsel to be reasonably acceptable to VEBA. In rendering the foregoing opinion, such counsel may rely, as to matters involving laws of any jurisdiction other than Missouri or the United States or the DGCL, upon opinions addressed to VEBA of other counsel reasonably acceptable to VEBA, provided that insofar as any such opinion relates to the DGCL, such opinion may be delivered by Richards, Layton & Finger, P.A. In addition, the foregoing opinion may contain customary assumptions and qualifications. (b) VEBA shall have received a letter addressed to it and dated the Expiration Date from KPMG Peat Marwick LLP independent certified public accountants to the Company, in form and substance reasonably acceptable to VEBA and set forth in SAS 72 and customary for a firm commitment underwriting. (c) (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken; (ii) there shall not have been any material change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company and its subsidiaries on a consolidated basis (other than in the ordinary course of business or pursuant to existing agreements with VEBA AG or its affiliates) from the date of this Agreement; (iii) there shall not have been, since the date of this Agreement any material adverse change in the condition (financial or other), business, prospects, properties, net worth or results of operations of the Company and its subsidiaries taken as a whole; (iv) the Company and its subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business, except for any liabilities or obligations, direct or contingent, with VEBA and its affiliates), that are material to the Company and its subsidiaries, taken as a whole, other than those in existence on the date hereof; and (v) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the Expiration Date as if made on and as of the Expiration Date; and (vi) VEBA shall have received a certificate, dated the Expiration Date and signed by the chief executive officer and the chief financial officer (or other reasonably acceptable officers) in the name and on behalf of the Company to the effect set forth in this Section 5.1(c). (d) The Shares and Rights shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance, prior to the Expiration Date. (e) The Registration Rights Agreement shall have been amended to include all Shares purchased by VEBA, VEBA AG or any subsidiaries of VEBA AG and any other shares of Common Stock acquired or purchased by VEBA, VEBA AG or any subsidiaries of VEBA AG after the date hereof as Registrable Stock thereunder, such amendment to be effective as of the Closing Date. (f) VEBA shall have received confirmation that the Company received prior to commencement of the Rights Offering a fairness opinion from a financial advisor substantially to the effect that (i) the VEBA Purchase Price to be paid to the Company by VEBA is fair to the Company and its stockholders (other than VEBA) from a financial point of view as of the date thereof, (ii) the financial terms and conditions of the Rights Offering are consistent with those of rights offerings by public companies reviewed and deemed comparable to the Rights Offering by such financial advisor and (iii) the Subscription Price is fair to the Company and its stockholders (other than VEBA) from a financial point of view as of the date thereof (the "Fairness Opinion"). ARTICLE VI MISCELLANEOUS PROVISIONS 6.1. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless VEBA, its officers, directors, employees and agents and each person, if any, who controls VEBA (collectively, the "VEBA Indemnified Persons") within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act from and against any and all losses, claims, damages, liabilities and reasonable expenses (including reasonable legal fees and costs of investigation) (collectively "Losses") arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with respect to information other than VEBA Information, except that the Company shall have no obligations under this Section 6.1 for any untrue statement or omission to state a material fact contained in a preliminary prospectus that was corrected in the Prospectus (as amended or supplemented). The foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have. Notwithstanding the foregoing, to the extent (A) the compliance certificate delivered pursuant to Section 5.1(c)(vi) contains any exceptions and (B) VEBA nevertheless elects to consummate the transaction contemplated under this Agreement, the Company shall not be obligated to indemnify, hold harmless or contribute to the Losses of any VEBA Indemnified Party (or reimburse its related expenses) with respect to such exceptions under this Section 6.1 and VEBA shall not have any claim or remedy under this Agreement with respect to such excepted matters, except (x) to the extent such Losses result from an inaccuracy contained in such compliance certificate and (y) to the extent such Losses result from an action, suit or proceeding commenced by a person other than a VEBA Indemnified Person arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with respect to information other than VEBA Information; except that the Company shall have no obligations under this Section 6.1 for any untrue statement or omission to state a material fact contained in a preliminary prospectus that was corrected in the Prospectus (as amended or supplemented). (b) VEBA agrees to indemnify and hold harmless the Company, its officers, directors, employees and agents, and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, to the same extent as the foregoing indemnity from the Company to VEBA, but only with respect to the VEBA Information except that VEBA shall have no obligations under this Section 6.2 for any untrue statement or omission to state a material fact with regard to the VEBA Information contained in a preliminary prospectus that was corrected in the Prospectus (as amended or supplemented). The foregoing indemnity agreement shall be in addition to any liability which VEBA may otherwise have. (c) If the indemnification provided for in this Section 6.1 is unavailable to an indemnified party under paragraphs (a) or (b) hereof in respect of any Losses referred to therein, then an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and VEBA on the other hand from the Rights Offering and the Private Placement taken as a whole, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and VEBA on the other hand in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. (d) The procedures set forth in Section 8(c) of the Registration Rights Agreement dated July 12, 1995 between the Company and Huls Corporation (a predecessor to VEBA) shall govern any indemnification pursuant to this Section 6.1. 6.2. Notice. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and made upon being delivered either by courier or fax delivery to the party for whom it is intended, provided that a copy thereof is deposited, postage prepaid, certified or registered mail, return receipt requested, in the United States mail, bearing the address shown in this Section 6.1 for, or such other address as may be designated in writing hereafter by, such party: If to VEBA: VEBA Corporation 605 Third Avenue New York, NY 10158 Attention: Dr. Heinz Helmer Putthoff President Fax: (212) 922-2798 If to the Company: MEMC Electronic Materials Inc. 501 Pearl Drive (City of O'Fallon) St. Peters, Missouri 63376 Attention: Helene F. Hennelly Corporate Vice President, General Counsel and Secretary Fax: (314) 279-5158 6.3. Entire Agreement. This Agreement, together with the Stock Purchase Agreement, embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings relative to such subject matter. 6.4. Assignment; Binding Agreement. This Agreement and the various rights and obligations arising hereunder shall inure to the benefit of and be binding upon VEBA, its successors, and permitted assigns and the Company, its successors, and permitted assigns. Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be transferred, delegated, or assigned (by operation of law or otherwise) by either of the parties hereto without the prior written consent of the other party, except that VEBA shall have the right to transfer and assign its rights hereunder to purchase Common Stock and any other rights or benefits afforded to it by this Agreement to (x) VEBA AG or VEBA Zweite Verwaltungsgesellschaft mbH and (y) any other direct or indirect wholly owned subsidiary of VEBA AG, provided that, only in the case of the foregoing subclause (y), to the extent required by law, such right to transfer and assign shall be subject to the prior approval of the Company's Board of Directors, which approval shall not be unreasonably withheld and, in the case of both of the foregoing sub clauses (x) and (y), any such transferee makes the representations and warranties contained in Sections 2.2(h), 2.2(i) and 2.2(j) and acknowledges and agrees to the provisions of Section 3.2. Any such transfer shall not discharge VEBA from its obligations hereunder. 6.5. Counterparts; Expenses. This Agreement may be executed simultaneously in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Except to the extent set forth in Section 4.1(g), each party shall bear the fees and expenses incurred by such party incidental to the preparation of, and the consummation of the transactions contemplated by, this Agreement. 6.6. Headings; Interpretation. The article and section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of the Agreement. Each reference in this Agreement to an Article or Section, unless otherwise indicated, shall mean an Article or a Section of this Agreement. References herein to "days," unless otherwise indicated, are to consecutive calendar days. Both parties have participated substantially in the negotiation and drafting of this Agreement and agree that no ambiguity herein should be construed against the draftsman. 6.7 Taxes. In the event that VEBA and its affiliates' ownership of Common Stock entitles VEBA to include the Company in the VEBA Consolidated Federal Income Tax Return, VEBA and the applicable VEBA affiliates shall enter into a tax sharing or affiliation agreement with the Company. Such tax sharing or affiliation agreement shall provide that the inclusion of the Company in the VEBA Consolidated Federal Income Tax Return will not be detrimental to the Company for federal income tax purposes as compared with the federal income tax treatment of the Company had it not been includible in the VEBA Consolidated Federal Income Tax Return and such tax sharing or affiliation agreement shall be in form and substance reasonably acceptable to the Company and VEBA. 6.8. Termination of the Agreement. (a) Prior to consummation of the transactions contemplated hereby, this Agreement may be terminated: (i) at any time prior to the Closing Date, upon termination of the Rights Offering by the Company, in accordance with Section 4.1(e), without further liability or obligation, or (ii) after March 31, 1999, by either party hereto, without further liability or obligation, if (x) such party is not in breach or violation hereof and (y) the conditions to such party's obligations have not then been satisfied. (b) Either party may terminate this Agreement if more than an aggregate of 150 million shares of Common Stock would be required to be issued in connection with, or the Company would receive more than $200 million from, the consummation of the purchase and sale of Common Stock pursuant to this Agreement, the Stock Purchase Agreement and the Rights Offering. (c) This Agreement shall be subject to termination in VEBA's discretion after consultation with the Company, without liability on the part of VEBA to the Company, by notice to the Company, if on or 20 days prior to the Expiration Date, (i) trading in securities generally on the New York Stock Exchange, American Stock Exchange or the Nasdaq National Market is suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either federal or New York State authorities, or (iii) there shall have occurred any outbreak or escalation of hostilities or other international or domestic calamity, crisis or material adverse change in political, financial or economic conditions, which has a materially adverse impact on the ability of the Company to distribute the shares of Common Stock in the Rights Offering. (d) The provisions of Section 4.1(g) and Article VI shall survive any termination of this Agreement. 6.9. Governing Law. This Agreement shall in all respects be construed in accordance with and governed by the substantive laws of the State of New York, without reference to its choice of law rules, except that matters subject to the General Corporation Law of Delaware shall be governed by such laws. IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written. VEBA CORPORATION By /s/ A. Paul Brandimarte, Jr. -------------------------------- Name: A. Paul Brandimarte, Jr. Title: Vice President MEMC ELECTRONIC MATERIALS INC. By /s/ James M. Stolze -------------------------------- Name: James M. Stolze Title: Executive Vice President/ Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----