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Exhibit 10.3
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT DATED FEBRUARY ___, 1999
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT is made
and entered into the ___ day of February, 1999 ("Amendment"), between MEMC
Electronic Materials, Inc., a Delaware corporation (the "Company"), and VEBA
Corporation, a Delaware corporation ("VEBA").
WHEREAS, the Company and Xxxx Corporation ("Xxxx") entered
into a Registration Rights Agreement dated as of July 12, 1995 (the
"Agreement");
WHEREAS, on September 30, 1998, Xxxx merged with and into VEBA
and thus VEBA became the successor in interest to Xxxx under the Agreement;
WHEREAS, on the date hereof VEBA (as successor to Xxxx) is the
owner of 21,490,942 shares of the Company's Common Stock, par value $.01 per
share (the "Common Stock");
WHEREAS, the Company and VEBA entered into (i) a Purchase
Agreement dated as of October 22, 1998 (the "Purchase Agreement") pursuant to
which VEBA agreed to purchase and the Company agreed to issue to VEBA a number
of shares of Common Stock equal to 106,100,000 divided by the Purchase Price (as
defined in the Purchase Agreement) rounded up to the nearest whole number and
(ii) a Standby Agreement dated as of October 22, 1998 (the "Standby Agreement")
pursuant to which VEBA agreed to purchase and the Company agreed to issue to
VEBA the shares of Common Stock offered in a registered rights offering (the
"Rights Offering") to all of the Company's existing stockholders (other than
VEBA) and not otherwise subscribed for by the other stockholders of the Company
prior to the expiration time of such rights;
WHEREAS, it is a condition to the closing under each of the
Purchase Agreement and the Standby Agreement that the Agreement shall have been
amended to include all shares of Common Stock acquired or to be acquired or
purchased or to be purchased by VEBA, VEBA Aktiengesellschaft, a German stock
corporation ("VEBA AG"), or any Subsidiaries of VEBA AG after October 22, 1998.
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NOW, THEREFORE, in consideration of the mutual covenants,
promises, representations, warranties and conditions set forth in this
Amendment, the parties hereto, intending to be legally bound, hereby agree as of
November , 1998, as follows:
1. All references in the Agreement to "Xxxx Corporation" and
"Xxxx" are hereby amended by deleting each such reference and substituting in
lieu thereof "VEBA Corporation" or "VEBA," respectively.
2. The definitions of "Holder" and "Registrable Stock" in
Section 1 of the Agreement are hereby deleted in their entirety and the
following definitions are substituted in lieu thereof:
""Holder" shall mean (i) VEBA, VEBA AG and any Subsidiary of
VEBA AG that beneficially owns on the date hereof, or hereinafter
acquires or purchases, shares of Common Stock and (ii) any transferee
or assignee to whom the rights under this Agreement are assigned in
accordance with the provisions of Section 9 hereof;
"Purchase Agreement" shall mean that certain Purchase
Agreement dated as of October 22, 1998, as amended from time to time,
by and among the Company and VEBA;
"Registrable Stock" shall mean the Common Stock beneficially
owned on the date hereof, or hereafter acquired or purchased, by VEBA,
VEBA AG or any Subsidiary of VEBA AG, including, without limitation,
any Common Stock (i) acquired by VEBA, VEBA AG or any Subsidiary of
VEBA AG as a result of the transactions contemplated by the Purchase
Agreement or the Standby Agreement or upon exercise of any rights to
purchase Common Stock, (ii) purchased on the open market by VEBA, VEBA
AG or any Subsidiary of VEBA AG or (iii) issued to VEBA, VEBA AG or any
Subsidiary of VEBA AG as a dividend or other distribution or by way of
a stock split. For purposes of this Agreement, any Registrable Stock
shall cease to be Registrable Stock when (x) a registration statement
covering such Registrable Stock has been declared effective and such
Registrable Stock has been disposed of pursuant to such effective
registration statement or (y) such Registrable Stock is
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sold or distributed pursuant to Rule 144 (or any similar or successor
provision (but not Rule 144A)) under the Securities Act.
"Standby Agreement" shall mean that certain Standby Agreement
dated as of October 22, 1998, as amended from time to time, by and
among the Company and VEBA.
"Subsidiary" shall mean, with respect to any person or entity,
any other person or entity of which more than 50% of the capital stock
or other ownership interest is owned, or is controlled, either directly
or indirectly, by such person or entity.
"VEBA AG" shall mean VEBA Aktiengesellschaft, a German
corporation and the direct and indirect owner of 100% of the common
stock of VEBA."
3. Section 2, paragraph (a) of the Agreement is hereby amended
by inserting at the end thereof the following:
"Within 10 days following the receipt of each notice under
this Section 2, the Company shall give all Holders (other than the
Requesting Holders) written notice of the receipt thereof, which
written notice shall include a copy of the notice by the Requesting
Holders. Upon the written request of any Holder received by the Company
no later than 15 days after the Company's notice, the Company shall use
its best efforts to cause to be included in the Demand Registration all
of the Registrable Stock that each such Holder has so requested to be
included."
4. The following new Section 18 is hereby inserted
after Section 17 of the Agreement:
"Section 18. Third Party Beneficiaries." Each Holder shall be
deemed to be a third party beneficiary of this Agreement and shall have
the right to enforce directly against the Company all of the provisions
contained in this Agreement, as amended from time to time,
notwithstanding that it is not a signatory to this Agreement."
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5. Unless otherwise provided herein, any term in initial
capital letters used as a defined term but not defined in this Amendment shall
have the meaning set forth in the Agreement.
6. Except as modified herein, all terms and conditions of the
Agreement shall remain in full force and effect.
7. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed as of the date first above written.
VEBA CORPORATION
By: ____________________________________
Name:
Title:
MEMC ELECTRONIC MATERIALS, INC.
By: ____________________________________
Name:
Title:
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