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Exhibit 99.11
MEMC ELECTRONIC MATERIALS, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (City of ▇'▇▇▇▇▇▇)
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SUBSCRIPTION AGENT AGREEMENT
("Agreement")
December __, 1998
▇▇▇▇▇▇ Trust and Savings Bank
c/▇ ▇▇▇▇▇▇ Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: REORGANIZATION DEPARTMENT
Re: MEMC Electronic Materials, Inc. - Rights Offering
Ladies and Gentlemen:
MEMC Electronic Materials, Inc. a Delaware corporation (the "Company")
is distributing to the holders of record (except VEBA Corporation ("VEBA")) of
its common stock, par value $.01 per share, (the "Common Stock") at the close of
business on _____ (the "Record Date"), rights to subscribe for and purchase
(each, a "Right," and collectively, the "Rights") shares of Common Stock (the
"Additional Common Stock") at a purchase price of _____ per share of Additional
Common Stock (the "Subscription Price") upon the terms and conditions set forth
in the Prospectus (a copy of which is attached hereto as Exhibit 1) (the "Rights
Offering"). The term "Subscribed" shall mean submitted for purchase from the
Company by a stockholder in accordance with the terms of the Rights Offering,
and the term "Subscription" shall mean any such submission. The Rights Offering
will expire at 5:00 p.m. New York City time, on _____, 1999 (the "Expiration
Time"), unless the Company shall have extended the period of time for which the
Rights Offering is open, in which event the term "Expiration Time" shall mean
the latest time and date at which the Rights Offering, as so extended by the
Company from time to time, shall expire.
The Company filed a Registration Statement relating to the Rights and
the Additional Common Stock with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, on October 22, 1998, as amended on
December __, 1998 (the "Registration Statement"). The Registration Statement was
declared effective on December __, 1998. The terms of the Additional Common
Stock are more fully described in the Prospectus forming part
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of the Registration Statement as it was declared effective. Copies of the
Prospectus, the Instructions For Use of MEMC Electronic Materials, Inc. Rights
Certificate (the "Instructions") and the Notice of Guaranteed Delivery are
attached hereto and incorporated herein by reference as Exhibit 1, Exhibit 2 and
Exhibit 3, respectively. Promptly after the Record Date, the transfer agent for
the Company will provide you with a list of holders of Common Stock as of the
Record Date (the "Record Stockholders List").
The Rights are evidenced by transferable Rights Certificates
(individually, a "Rights Certificate," and collectively, the "Rights
Certificates"), a copy of the form of which is attached hereto as Exhibit 4. The
Rights Certificates entitle the holders thereof to Subscribe, upon payment of
the Subscription Price, for one Additional Share for each Right evidenced by a
Rights Certificate (the "Basic Subscription Privilege"). Fractional Rights will
not be issued to holders of Common Stock. If a holder of Common Stock is
entitled to receive a fractional Right, such holder's Rights shall be rounded up
to the nearest whole Right. No fractional Rights will be issued. Brokers or
custodian banks holding MEMC common stock on the Record Date for more than one
beneficial owner may (after making a proper showing to the Subscription Agent)
exercise the number of Rights to which all such beneficial owners in the
aggregate otherwise would have been entitled if they had been direct record
holders of such common stock on the Record Date. The Rights Offering includes an
over-subscription privilege entitling the holder of a Rights Certificate, if
said holder fully exercises its Basic Subscription Privilege, to Subscribe and
pay the Subscription Price for additional shares of Additional Common Stock (the
"Over-Subscription Privilege"). Reference is made to the Prospectus under "The
Rights Offering-Subscription Privileges" for a complete description of the Basic
Subscription Privilege and the Over-Subscription Privilege.
The Company hereby appoints you as Subscription Agent (the
"Subscription Agent") for the Rights Offering and agrees with you as follows:
1. As Subscription Agent, you are authorized and directed to:
A. Prepare and issue the Rights Certificates in accordance
with this Agreement in the names of the holders of the
Common Stock of record on the Record Date (except VEBA),
keep such records as are necessary for the purpose of
recording such issuance, and furnish a copy of such records
to the Company. You shall affix such identifying
information as you deem necessary to identify each
particular Rights holder upon return of the executed
Rights Certificates. The Rights Certificates may be signed
on your behalf by the manual or facsimile signature of a
Vice President or Assistant Vice President of the
Subscription Agent, or by the manual signature of any of
your other authorized officers.
B. Keep or cause to be kept books for registration of Rights
and transfer of Rights. Such books will show the names and
addresses of the respective Rights holders and assignees
or transferees and the number of Rights that have been
granted or held.
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C. Promptly after you receive the Record Stockholders
List:
(i) mail or cause to be mailed, by first class
mail, to each holder of Common Stock of
record on the Record Date whose address of
record is within the United States (except
VEBA) each of the following, (i) a Rights
Certificate evidencing the Rights to which
such stockholder is entitled under the
Rights Offering, (ii) a copy of the
Prospectus, (iii) a Letter of Instruction,
(iv) a Notice of Guaranteed Delivery and (v)
a return envelope addressed to you, as the
Subscription Agent; and
(ii) you shall refrain from mailing Rights
Certificates issuable to any holder of
common stock of record on the Record Date
whose address of record is outside the
United States, or is an A.P.O. or F.P.O.
address, and hold such Rights Certificates
for the account of such stockholder subject
to such stockholder making satisfactory
arrangements with you for the exercise or
other disposition of the Rights evidenced
thereby, and follow the instructions of
such stockholder for the exercise, sale or
other disposition of such Rights if such
instructions are received at or before
11:00 a.m., New York City Time,
on _______________.
D. Accept Subscriptions upon the due exercise (including
payment of the Subscription Price) on or prior to the
Expiration Time in accordance with the terms of the
Prospectus, the Letter of Instruction, and the Rights
Certificate.
E. Subject to the next sentence, accept Subscriptions
from Rights holders whose Rights Certificates are
alleged to have been lost, stolen or destroyed upon
receipt by you of an affidavit of theft, loss or
destruction and a bond of indemnity in form and
substance satisfactory to us, accompanied by payment
of the Subscription Price for the total number of
shares of Additional Common Stock subscribed for by
such Rights holder. Upon receipt of such affidavit
and bond of indemnity and compliance with any other
applicable requirements, stop orders shall be placed
on said Rights Certificates and you shall withhold
delivery of the shares of Additional Common
Stock Subscribed for until after the Rights
Certificates have expired and it has been determined
that the Rights evidenced by the Rights Certificates
have not otherwise been purported to have been
exercised or otherwise surrendered.
F. Accept Subscriptions, unless you have further
authorization or direction from the Company, only if
you have procured supporting legal papers or other
proof of authority to sign (including without
limitation proof of
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appointment of a fiduciary or other person acting in
a representative capacity), and only if you have
procured the signatures of co-fiduciaries,
co-representatives or any other appropriate person:
(i) if the Rights Certificate is registered in
the name of a fiduciary and is executed by
and the Additional Common Stock is to be
issued in the name of such fiduciary;
(ii) if the Rights Certificate is registered in
the name of joint tenants and is executed by
one of the joint tenants, provided the
certificate representing the Additional
Common Stock is issued in the names of, and
is to be delivered to, such joint tenants;
(iii) if the Rights Certificate is registered in
the name of a corporation and is executed by
a person in a manner which appears or
purports to be done in the capacity of an
officer, or agent thereof, provided the
Additional Common Stock is to be issued in
the name of such corporation; or
(iv) if the Rights Certificate is registered in
the name of an individual and is executed by
a person purporting to act as such
individual's executor, administrator or
personal representative, provided, the
Additional Common Stock is to be registered
in the name of the subscriber as executor or
administrator of the estate of the deceased
registered holder and there is no evidence
indicating the subscriber is not the duly
authorized representative that he purports
to be.
G. Accept Subscriptions not accompanied by Rights
Certificates if submitted by a firm having
membership in the New York Stock Exchange or another
national securities exchange or by a commercial bank
or trust company having an office in the United
States together with the Notice of Guaranteed
Delivery and accompanied by proper payment for the
total number of shares of Additional Common Stock
Subscribed for by such holder; provided that such
firm complies with the Guaranteed Delivery Procedures
set forth in the Prospectus under the heading "Rights
Offering - Guaranteed Delivery Procedures."
H. Accept Subscriptions even though unaccompanied by
Rights Certificates, under the circumstances and in
compliance with the terms and conditions set forth in
the Prospectus under the heading "Rights Offering -
Exercise of Rights" and "Guaranteed Delivery
Procedures."
I. Refer to the Company for specific instructions as to
acceptance or rejection, of Subscriptions received
after the Expiration Time,
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Subscriptions not authorized to be accepted pursuant
to this paragraph 1, and Subscriptions otherwise
failing to comply with the requirements of the
Prospectus and the terms and conditions of the
Rights Certificate.
J. Upon acceptance of a Subscription:
(i) Hold all funds received from Rights holders
in a special interest bearing account for
the benefit of the Company. Promptly
following the Expiration Time you shall
distribute to the Company the funds in such
account (including interest thereon) and
issue certificates for shares of Additional
Common Stock issuable to those Rights
holders whose Subscriptions have been
accepted;
(ii) Advise the Company daily by telecopy and
confirm by letter to the attention of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Company
Representative"), with copies to the
Company's counsel, VEBA, NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc., and counsel for the Dealer
Managers as to the total number of shares of
Additional Common Stock Subscribed for,
total number of Rights sold, total number
of Rights partially Subscribed for and the
amount of funds received, with cumulative
totals for each; and in addition advise the
Company Representative, by telephone
confirmed by telecopy, of the amount of
funds received identified in accordance
with (a) above, deposited, available or
transferred in accordance with (a) above,
with cumulative totals, in each case at the
address and numbers set forth in paragraph
19 hereof; and
(iii) as promptly as possible but in any event on
or before 8:00 a.m., New York City time, on
the day following the Expiration Time,
advise the Company Representative in
accordance with (ii) above of the number of
shares Subscribed for, the number of
Subscription guarantees received and the
number of shares of unsubscribed Additional
Common Stock.
K. Upon completion of the Rights Offering, you shall
issue certificates for shares of Additional Common
Stock for which Rights holders have Subscribed.
L. Sell Rights for Rights holders as follows:
(i) Upon receipt of appropriate instructions
from a Rights holder and a properly executed
Rights Certificate before 11:00 a.m., New
York City time, on the fifth business day
before the Expiration Time, you may sell the
Rights on the New York Stock Exchange or any
other investment channel.
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(ii) If you fill less than all sales orders you
timely receive, you shall prorate the sales
proceeds among the Rights holders based upon
the total number of Rights you were timely
instructed to sell, irrespective of the time
each such instruction was received by you.
(iii) Promptly upon completion of the Rights
Offering, you shall send each Rights holder
who timely instructed you to sell Rights on
its behalf, a check in an amount equal to
the number of Rights sold times the weighted
average price of all Rights you sold in
accordance with the terms of such sale under
"The Rights Offering--Method of Transferring
and Selling Rights--Sales of Rights Through
▇▇▇▇▇▇ Trust Savings Bank" in the
Prospectus.
(iv) In the event you do not fill all or any of
the requests by Rights holders to sell
Rights by the third business day prior to
the expiration time, you shall mail to each
such Rights holder a new Rights Certificate
representing the number of Rights not sold
by you for such Rights holder.
M. Transfer Rights for Rights holders as follows:
(i) You shall register the transfer, from time
to time, of any outstanding Rights upon the
Register, upon surrender of the Rights
Certificate evidencing such rights for
transfer, properly endorsed with signatures
properly guaranteed and accompanied by
appropriate instructions for transfer.
Upon any such transfer, you shall issue a
new Rights Certificate representing an
equal aggregate number of Rights to the
transferee and you shall cancel the
surrendered Rights Certificate. You shall
deliver the canceled Rights Certificates to
the Company upon its request.
(ii) You shall not be required to register a
transfer if such transfer will result in the
issuance of a Rights Certificate for a
fraction of a Right.
(iii) You are authorized to countersign and to
deliver, in accordance with the terms of
this Agreement, the new Rights Certificates
required to be issued pursuant to the
provisions hereof, and the Company will
supply you with Rights Certificates duly
executed on behalf of the Company for such
purpose.
2. (a) A Rights Certificate shall be issued to each holder of
Common Stock as of the Record Date (except VEBA). You are the Transfer Agent and
Registrar for the Rights Certificates and you shall keep books and records of
the registration and transfers and exchanges
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of rights Certificates (such books and records are hereinafter called the
"Rights Certificate Register").
(b) You shall promptly mail or deliver a copy of the
Prospectus (i) to each assignee or transferee of Rights Certificates upon your
receipt of appropriate documents to register the assignment or transfer thereof,
and (ii) to persons other than the registered holder of the Rights Certificates
if certificates for shares of Additional Common Stock are issued to such
persons.
(c) All Rights Certificates issued upon any registration of
transfer or exchange of Rights Certificates shall be the valid obligations of
the Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Rights Certificates surrendered for such
registration of transfer or exchange.
(d) Any Rights Certificate when duly endorsed in blank shall
be deemed negotiable, and when a Rights Certificate shall have been so endorsed
the holder thereof may be treated by the Company, you and all other persons
dealing therewith as the absolute owner, thereof for any purpose and as the
person entitled to exercise the rights represented thereby, any notices to the
contrary notwithstanding, but until such transfer is registered in the Rights
Certificate Register, the Company and you may treat the registered holder
thereof as the owner for all purposes.
3. You will follow your regular procedures to attempt to reconcile any
discrepancies between the number of shares of Additional Common Stock that any
Rights Certificate may indicate are to be issued to a stockholder and the number
that the Record Stockholders List indicates may be issued to such stockholder.
In any instance where you cannot reconcile such discrepancies by following such
procedures, you will consult with the Company for instructions as to the number
of shares of Additional Common Stock, if any, you are authorized to issue. In
the absence of such instructions, you are authorized not to issue any shares of
Additional Common Stock to such stockholder.
4. You will examine the Rights Certificates received by you as
Subscription Agent to ascertain whether they appear to you to have been
completed and executed in accordance with the procedures set forth in the
Prospectus and the Letter of Instructions. In the event you determine that any
Rights Certificate does not appear to you to have been properly completed or
executed, or where the Rights Certificates do not appear to you to be in proper
form for Subscription, or any other irregularity in connection with the
Subscription appears to you to exist, you will follow, where possible, your
regular procedures to attempt to cause such irregularity to be corrected. You
are not authorized to waive any irregularity in connection with the
Subscription, unless you shall have received notification, duly dated and signed
by an authorized officer of the Company, indicating that any irregularity in
such Rights Certificate has been cured or waived and that such Rights
Certificate has been accepted by the Company. If any such irregularity is
neither corrected nor waived, you will return to the subscribing stockholder (at
your option by either first class mail under a blanket surety bond or insurance
protecting you and the Company from losses or liabilities arising out of the
non-receipt or non-delivery of
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Rights Certificates or by registered mail insured separately for the value of
such Rights Certificates) to such Rights holder's address as set forth in the
Subscription, any Rights Certificates surrendered in connection therewith and
any other documents received with such Rights Certificates, and a letter of
notice to be furnished by the Company explaining the reasons for the return of
the Rights Certificate and other documents.
5. Each document received by you relating to your duties under this
Agreement shall be date and time stamped by you immediately upon your receipt
thereof.
6. (a) For so long as this Agreement shall be in effect, the
Company will reserve for issuance and keep available free from preemptive rights
a sufficient number of shares of Additional Common Stock to permit the exercise
in full of all Rights issued pursuant to the Rights Offering. Subject to the
terms and conditions of this Agreement, you in your capacity as transfer agent
for the Common Stock, shall issue certificates evidencing the appropriate number
of shares of Additional Common Stock as required from time to time in order to
effectuate the Subscriptions.
(b) The Company shall endeavor to take action, including
without limitation, obtaining the authorization, consent, lack of objection,
registration or approval of any governmental authority, or the taking of any
other action under the laws of the United States of America or any political
subdivision thereof, to insure that all shares of Additional Common Stock
issuable upon the exercise of the Rights at the time of delivery of the
certificates therefor (subject to payment of the Subscription Price) will be
duly and validly issued and fully paid and non-assessable shares of Common
Stock, free from all preemptive rights and taxes, liens, charges and security
interests created by or imposed upon the Company with respect thereto.
(c) The Company shall endeavor to take action necessary or
appropriate to obtain and keep effective all registrations, permits, consents
and approvals of the Securities and Exchange Commission and any other
governmental agency or authority and make such filings under Federal and state
laws which may be necessary to appropriate in connection with the issuance,
sale, transfer and delivery of Rights Certificates or Additional Common Stock
issued upon exercise of Rights.
7. If certificates representing shares of Additional Common Stock are
to be delivered by you to a person other than the person in whose name a
surrendered Rights Certificate is registered, you will issue no certificate for
Additional Common Stock until the Rights Certificate so surrendered has been
properly endorsed (or otherwise put in proper form for transfer) and the person
requesting such exchange has paid any transfer or other taxes or governmental
charges required by reason of the issuance of a certificate for Additional
Common Stock in a name other than that of the registered holder of the Rights
Certificate surrendered, or has established to your satisfaction that any such
tax or charge either has been paid or is not payable.
8. Should any issue arise regarding federal income tax reporting or
withholding, you will take such action as the Company instructs you in writing.
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9. The Company may terminate this Agreement at any time by so notifying
you in writing. You may terminate this Agreement upon 30 days' prior notice to
the Company. Upon any such termination, you shall be relieved and discharged of
any further responsibilities with respect to your duties hereunder. Upon payment
of all your outstanding fees and expenses, you will forward to the Company or
its designee promptly any Rights Certificate or other document relating to your
duties hereunder that you may receive after your appointment has so terminated.
Paragraphs 9, 10 and 14 of this Agreement shall survive any termination of this
Agreement.
10. As Subscription Agent for the Company hereunder you:
(a) shall have and shall perform no duties or obligations
other than those specifically set forth in this
Agreement or as may subsequently be agreed in writing
by you and the Company;
(b) shall have no obligation to issue any shares of
Additional Common Stock unless the Company shall have
provided a sufficient number of certificates for such
Additional Common Stock;
(c) shall be regarded as making no representations and
having no responsibilities as to the validity,
sufficiency, value or genuineness of any Rights
Certificates surrendered to you hereunder or shares
of Additional Common Stock issued in exchange
therefor, and will not be required to or be
responsible for and will make no representations as
to, the validity, sufficiency, value or genuineness
of the Rights Offering;
(d) shall not take any legal action hereunder, without
the prior written approval of the Company, and where
the taking of such action might, in your judgment,
subject or expose you to any expense or liability you
shall not be required to act unless you shall have
been furnished with an indemnity reasonably
satisfactory to you;
(e) may rely on and shall be authorized and protected in
acting in good faith or failing in good faith to act
upon any certificate, instrument, opinion, notice,
letter, telex, facsimile transmission or other
document or security delivered to you and reasonably
believed by you to be genuine and to have been signed
by the proper party or parties;
(f) shall not be liable or responsible for any recital or
statement contained in the Prospectus or any other
documents relating thereto;
(g) shall not be liable or responsible for any failure on
the part of the Company to comply with any of its
covenants and obligations relating to the Rights
Offering, including without limitation obligations
under applicable securities laws;
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(h) may rely on and shall be authorized and protected in
acting in good faith or in good faith failing to act
based upon and in accordance with the written,
telephonic or oral instructions with respect to any
matter relating to you acting as Subscription Agent
covered by this Agreement (or supplementing or
qualifying any such actions) of officers of the
Company authorized hereunder to act for the Company;
(i) may consult with counsel satisfactory to you, and the
advice of such counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered, or omitted by you hereunder in good
faith and in accordance with the advice of such
counsel;
(j) may perform any of your duties hereunder either
directly or by or through agents or attorneys
selected by you in good faith and with reasonable
care;
(k) are not authorized, and shall have no obligation, to
pay any brokers, dealers or soliciting fees to any
person;
(l) shall not at any time advise any person exercising or
selling, considering exercising or selling, pursuant
to the Rights Offering as to the wisdom of making
such an exercise or sale or as to the market value of
any security exercised or sold; and
(m) acknowledge that the closing of the Rights Offering
will occur on the day immediately following the
Expiration Time, even if such date falls on a
Saturday or Sunday, and you shall do all acts
necessary under this Agreement to facilitate such
closing.
11. In the event any question or dispute arises with respect to the
proper interpretation of the Rights Offering or your duties hereunder or the
rights of the Company or of any stockholders surrendering Rights Certificates
pursuant to the Rights Offering, you shall not be required to act and shall not
be held liable or responsible for your refusal to act until the question or
dispute has been judicially settled (and, if appropriate, you may file a suit in
interpleader or for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction, binding on all parties interested
in the matter which is not longer subject to review or appeal, or settled by a
written document in form and substance satisfactory to you and executed by the
Company and each such stockholder and party. In addition, you may require for
such purpose, but shall not be obligated to require, the execution of such
written settlement by all the Rights holders and all other parties that may have
a interest in the settlement.
12. Any instructions given to you orally, as permitted by any provision
of this Agreement, shall be confirmed in writing by the Company as soon as
practicable. You shall not be liable or responsible and shall be fully
authorized and protected for acting in good faith, or failing in good faith to
act, in accordance with any oral instructions which do not conform with the
written confirmation received in accordance with this paragraph 12.
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13. Whether or not any Rights Certificates are surrendered to you, for
your services as Subscription Agent hereunder, the Company shall pay to you
compensation of [$15,000.00] together with reimbursement for your reasonable
out-of-pocket expenses, including reasonable fees and disbursements of counsel,
subject to receipt of reasonably satisfactory documentation thereof.
14. The Company covenants to indemnify and hold you and your officers,
directors, employees, agents, contractors, subsidiaries and affiliates harmless
form and against any loss, liability, damage or expense incurred (a) without
negligence, misconduct or bad faith and (b) as a result of your acting or
failing to act in accordance with the terms of this Agreement upon the Company's
instructions, arising out of or in connection with the Rights Offering and
including without limitation the costs and expenses of defending and appealing
against any action, proceeding, suit or claim in the premises. In no case shall
the Company be liable under this indemnity with respect to any action,
proceeding, suit or claim against you unless the Company shall be notified by
you, by letter or by telex or facsimile transmission confirmed by letter, of the
written assertion of any action, proceeding, suit or claim made or commenced
against you promptly after you shall have been served with the summons or other
first legal process or have received the first written assertion giving
information as to the nature and basis of the action, proceeding, suit or claim,
but failure so to notify the Company shall not release the Company of any
liability which it may otherwise have on account of this Agreement. The Company
shall be entitled to participate at its own expense in the defense of any such
action, proceeding, suit or claim. In the event that the Company assumes such
defense, the Company shall not thereafter be liable for the fees and expenses of
any additional counsel that you retain, so long as the Company shall retain
counsel satisfactory to you, in the exercise of your reasonable judgment to
defend such suit. You agree not to settle any claim or litigation in connection
with any claim or liability with respect to which you may seek indemnification
from the Company without the prior written consent of the Company.
15. If any provision of this Agreement shall be held illegal, invalid,
or unenforceable by any court, this Agreement shall be construed and enforced as
if such provision had not been contained herein and shall be deemed an Agreement
among us to the full extent permitted by applicable law.
16. The Company represents and warrants that (a) it is a duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the making and consummation of the Rights
Offering and the execution, delivery and performance of all transactions
contemplated thereby (including, without limitation this Agreement) have been
duly authorized by all necessary corporate action and will not result in a
breach of or constitute a default under the certificate or incorporation or
bylaws of the Company or any indenture agreement or instrument to which it is a
party or is bound, (c) this Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid, binding and enforceable obligation
of the Company, (d) the Rights Offering will comply in all material respects
with all applicable requirements of law and (e) to the best of its knowledge,
there is no litigation pending or threatened as of the date hereof in connection
with the Rights Offering.
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17. In the event that any claim of inconsistency between this Agreement
and the terms of the Rights Offering arise as they may form time to time be
amended, the terms of the Rights Offering shall control, except with respect to
the duties, liabilities and rights, including compensation and indemnification
of you as Subscription Agent, which shall be controlled by the terms of this
Agreement.
18. Set forth in Exhibit 5 hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time, certify to you
the names and signatures of any other persons authorized to act for the Company
under this Agreement.
19. Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt, and shall be addressed:
A. If to the Company:
Chief Financial Officer
MEMC Electronic Materials, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (City of ▇'▇▇▇▇▇▇)
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
B. If to the Company's Counsel:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
C. If to the Subscription Agent:
▇▇▇▇▇▇ Trust and Savings Bank
c/▇ ▇▇▇▇▇▇ Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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D. If to VEBA Corporation:
VEBA Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Heinz- ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E. If to NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, LLC:
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
F. If to ▇.▇. ▇▇▇▇▇▇:
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
G. If to Counsel to the Dealer Managers:
Cooley Godward LLP
Five Palo Alto Square
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other addresses and/or facsimile numbers as may be specified from
time to time in a written notice given by such party.
20. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to conflict of laws
rules or principles, and shall
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inure to the benefit of and be binding upon the successors and assigns of the
parties hereto; provided that this Agreement may not be assigned by either party
without the prior written consent of the other party.
21. No provision of this Agreement may be amended, modified or waived,
except in a written document signed by both parties.
22. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Please acknowledge receipt of this Agreement, the Prospectus, the
Instructions, Notice of Guaranteed Delivery and Rights Certificate with respect
to the Rights Offering, and confirm the arrangements herein provided, by signing
and returning the enclosed copy hereof, whereupon this Agreement and your
acceptance of the terms and conditions herein provided shall constitute a
binding Agreement between us.
Very truly yours,
MEMC ELECTRONIC MATERIALS, INC.
By: ____________________________________
Name:
Title:
Accepted as of the date above first written:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
AS SUBSCRIPTION AGENT
By: ________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇ TRUST AND SAVINGS BANK
Exhibit 1 Prospectus
Exhibit 2 Letter of Instruction
Exhibit 3 Notice of Guaranteed Delivery
Exhibit 4 Form of Rights Certificate
Exhibit 5 Incumbency Certificate
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