Exhibit 5

 

[Bryan Cave LLP Letterhead]

 

 

January 21, 2004

 

Board of Directors

MEMC Electronic Materials Inc.

501 Pearl Drive (City of O’Fallon)

St. Peters, Missouri 63376

 

Ladies and Gentlemen:

 

We have acted as special counsel to MEMC Electronic Materials, Inc., a Delaware corporation (the “Company”), in connection with the Company’s filing of a Registration Statement on Form S-3 (Registration No. 333-109120) (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to (i) 40,000,000 shares of the Company’s common stock, par value $.01 per share (the “Stockholder Shares”), (ii) warrants to purchase 10,000,000 shares of the Company’s common stock, each warrant entitles its holder to purchase one share of common stock from the Company at an exercise price of $3.00, subject to certain anti-dilution adjustments (the “Stockholder Warrants”) and (iii) 10,000,000 shares of the Company’s common stock underlying the Stockholder Warrants (the “Warrant Shares”), to be offered by the selling stockholders named in the Registration Statement from time to time pursuant to Rule 415 of the rules and regulations promulgated under the Securities Act. All capitalized terms which are defined in the Registration Statement shall have the same meanings when used herein, unless otherwise specified.

 

In connection herewith, we have examined:

 

 

 

 

 

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements and instruments of the Company, statements and certificates of public officials, officers of the Company and of the selling stockholders named in the Registration Statement, and such other documents, records and instruments, and we have made such legal and factual inquiries as we have deemed necessary or appropriate as a basis for us to render the opinions

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Board of Directors

January 21, 2004

Page 2

 

hereinafter expressed. In our examination of the foregoing, we have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals and the conformity with authentic original documents of all documents submitted to us as copies. When relevant facts were not independently established, we have relied without independent investigation as to matters of fact upon statements of governmental officials and upon representations made in or pursuant to the certificates and statements of appropriate representatives of the Company.

 

In connection herewith, we have assumed that, other than with respect to the Company, all of the documents referred to in this opinion have been duly authorized by, have been duly executed and delivered by, and constitute the valid, binding and enforceable obligations of, all of the parties to such documents, all of the signatories to such documents have been duly authorized and all such parties are duly organized and validly existing and have the power and authority (corporate or other) to execute, deliver and perform such documents.

 

Based upon the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, we are of the opinion that:

 

1. The Company is a validly existing corporation, in good standing under the laws of the State of Delaware.

 

2. The Stockholder Shares are duly authorized, validly issued, fully paid and non-assessable.

 

3. The Stockholder Warrants are binding obligations of the Company, duly authorized, validly issued, fully paid and non-assessable.

 

4. The Warrant Shares are duly authorized and, when issued upon exercise in the manner contemplated by the Stockholder Warrants, will be validly issued, fully paid and non-assessable.

 

This opinion is not rendered with respect to any laws other than the laws of the States of Delaware and New York.

 

We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus filed as a part thereof. We also consent to your filing copies of this opinion as an exhibit to the Registration Statement with agencies of such states as you deem necessary in the course of complying with the laws of such states regarding the offering and sale of the securities addressed herein. In giving such consent, we do not thereby concede that we are within the category of persons

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Board of Directors

January 21, 2004

Page 3

 

whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.

 

Very truly yours,

 

/s/    Bryan Cave LLP

 

BRYAN CAVE LLP