Exhibit 3-b
MEMC Electronic Materials, Inc.
Restated By-Laws (as of August 30, 1996)
ARTICLE I
Offices
Section 1. Offices. The registered office of MEMC Electronic
Materials, Inc. (hereinafter called the Corporation) shall be in the State
of Delaware. The Corporation may have offices and places of business at
such places within and without the State of Delaware as shall be determined
by the Board of Directors. The books of the Corporation may be kept
outside of the State of Delaware at such place or places as the Board of
Directors may from time to time determine.
ARTICLE II
Stockholders
Section 1. Place of Meetings. All meetings of the stockholders shall
be held at such place within or without the State of Delaware as is
designated by the Board of Directors.
Section 2. Annual Meeting. The Board of Directors shall fix the time
and place of the annual meeting of the stockholders for the purpose of
electing the directors and for the transaction of such other business as
may properly be brought before the meeting.
Section 3. Special Meeting. Special meetings of the stockholders may
be called by a majority of the holders of the common stock of the
Corporation or by a majority of the Board of Directors or by the Chairman
of the Board.
Section 4. Notice of Meetings. Except as is otherwise provided by
law, notice of each meeting of stockholders, whether annual or special,
shall be given to each stockholder not less than 10 nor more than 60 days
prior to the meeting. The notice shall state the date, time and place and,
in the case of special meetings, the purpose or purposes of such meeting,
and at whose direction the notice is given.
Section 5. Quorum. At all meetings of stockholders, except as
otherwise required by statute, the holders of a majority of the shares
entitled to vote thereat, present in person or by proxy, shall constitute a
quorum for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat may adjourn such meeting from time to
time in accordance with Section 7 of this Article II of these By-Laws until
the number of votes requisite to constitute a quorum shall be present.
Section 6. Voting. When a quorum is present or represented by proxy
at any meeting of stockholders, the vote of the holders of a majority of
the outstanding shares of stock entitled to vote thereat present in person
or by proxy shall decide any question brought before such meeting, unless
the question is one upon which an express provision of the General
Corporation Law of the State of Delaware or of the Restated Certificate of
Incorporation requires a greater vote, in which case such provision shall
control.
Each stockholder entitled to vote at any meeting may vote in person or
by proxy and shall, unless the Restated Certificate of Incorporation
provides otherwise, have one vote for each share of stock registered in his
name, but no proxy shall be valid after three years from its date, unless
the proxy provides for a longer period.
Section 7. Adjourned Meetings. Any meeting of stockholders may be
adjourned to a designated time and place by a vote of a majority in
interest of the stockholders present in person or by proxy, even though
less than a quorum is so present. No notice of such an adjourned meeting
needs to be given, other than by announcement at the meeting, and any
business may be transacted which might have been transacted at the meeting
as originally called; provided, however, that if the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the adjourned meeting.
Section 8. Action Without Meeting. Any action required or permitted
to be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by
the holders of all the outstanding stock entitled to vote thereon. The
effective date of the authorization of such action shall be deemed to be
the date of the filing of the last such written consent in the minute books
of the Corporation, which date shall be noted therein by the Secretary.
Section 9. Advance Notice of Business to Be Transacted at Annual
Meetings. To be properly brought before the annual meeting of
stockholders, business must be either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the
Board of Directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (c)
otherwise properly brought before the meeting by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 9 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 9. In
addition to any other applicable requirements, including but not limited to
the requirements of Rule 14a-8 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for business to be properly brought before an annual
meeting by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting
is called for a date that is not within 30 days before or after such
anniversary date, in order to be timely, notice by the stockholder must be
so received not later than the close of business on the tenth day following
the day on which notice of the date of the annual meeting is mailed to
stockholders or public disclosure of the date of the annual meeting is
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before
the annual meeting (a) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at
the meeting, (b) the name and record address of such stockholder, (c) the
class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by such stockholder, together
with evidence reasonably satisfactory to the Secretary of such beneficial
ownership, (d) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (e) a
representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at the annual meeting of stockholders except business
brought before such meeting in accordance with the procedures set forth in
this Section 9; provided, however, that, once business has been properly
brought before such meeting in accordance with such procedures, nothing in
this Section 9 shall be deemed to preclude discussion by any stockholder of
any such business. If the chairman of such meeting determines that
business was not properly brought before the meeting in accordance with the
foregoing procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
ARTICLE III
Directors
Section 1. Management of the Corporation. The business and affairs
of the Corporation shall be managed by or under the direction of the Board
of Directors. The officers of the Corporation shall keep the Board of
Directors fully informed about the affairs of the Corporation, and the
officers and employees of the Corporation shall provide the Board of
Directors with such written or oral reports and information as the Board of
Directors may deem advisable.
Section 2. Number and Term of Office. Subject to the rights, if any,
of holders of preferred stock of the Corporation, the number of directors
shall be determined from time to time by resolution passed by a majority of
the Board of Directors of the Corporation, but in no event shall the Board
of Directors consist of less than five or more than 15 directors. The
number of directors so determined is referred to in these By-Laws as the
"total number of directors". The Board of Directors shall, by resolution
passed by a majority of the Board of Directors, designate the directors to
serve as initial Class I, Class II and Class III directors upon filing of
the Restated Certificate of Incorporation of the Corporation with the
Secretary of State of the State of Delaware. Except as provided in Section
5 of this Article III, directors shall be elected by a plurality of the
votes cast at annual meetings of stockholders, and each director so elected
shall hold office as provided by Article Fifth of the Restated Certificate
of Incorporation of the Corporation. Directors need not be stockholders of
the Corporation.
Section 3. Nomination of Directors and Advance Notice Thereof. Only
persons who are nominated in accordance with the Restated Certificate of
Incorporation of the Corporation shall be eligible for election as
directors of the Corporation.
Section 4. Resignation. Any director may resign at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein or, if no time be specified, at the time of its receipt
by the Chief Executive Officer (the "CEO"), the President or the Secretary
of the Corporation. The acceptance of a resignation shall not be necessary
to make it effective.
Section 5. Vacancies. Subject to the rights, if any, of the holders
of any series of preferred stock then outstanding, any vacancy on the Board
of Directors arising from death, resignation, removal, an increase in the
number of directors or any other cause, may be filled either by a majority
vote of the remaining directors, although less than a quorum, or by the
sole remaining director; provided, however, that if any director then in
office determines that any such vacancy on the Board of Directors shall be
filled by the stockholders, such vacancy shall be filled by the
stockholders in accordance with the Restated Certificate of Incorporation.
Any director elected to fill a vacancy shall hold office for a term that
shall coincide with the term of the class to which such director shall have
been elected.
Section 6. Regular Meetings. The Board of Directors shall hold at
least two regular meetings during each calendar year on such dates as may
be determined by the Board of Directors. Such regular meetings may be held
at such places, either within or without the State of Delaware, as shall
from time to time be determined by the Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the CEO or the
President, and shall be called by the CEO, the President or the Secretary,
upon the written request of at least two members of the Board of Directors.
Each director shall be given 10 days' notice of each such meeting.
Section 8. Fees. Each member of the Board of Directors who is not an
officer of the Corporation shall receive from the Corporation an annual fee
for serving on the Board of Directors and an annual fee for serving on each
committee of the Board of Directors on which such director serves, plus a
fee for each meeting of the Board of Directors he attends, plus a fee for
each meeting of a committee of the Board of Directors he attends. The
amount of such fees shall be determined from time to time by a majority of
the total number of directors. Each director, including those who are also
officers, shall receive from the Corporation reimbursement of travel
expenses for each meeting of the Board of Directors or any committee
thereof he attends.
Section 9. Quorum. A quorum of directors for the transaction of
business shall consist of at least a majority of the total number of
directors.
Section 10. Waiver of Notice. Notice of a meeting need not be given
to any director who submits a written waiver of such notice, signed by him,
whether before or after such meeting. Neither the business to be
transacted at, nor the purpose of, any meeting of the directors need be
specified in any written waiver of notice with respect to such meeting.
Attendance of a director at a meeting shall constitute a waiver of notice
of such meeting, except when the director attends such meeting for the
express purpose of objecting, at the beginning of such meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 11. Voting. The act of a majority of the total number of
directors shall be the act of the Board of Directors.
Section 12. Meetings via Conference Call. Any one or more members of
the Board of Directors or any committee thereof may participate in a
meeting of the Board of Directors or such committee by means of a
conference telephone call or similar communications equipment hook-up
allowing all persons participating in the meeting to hear each other at the
same time. Participation by such means shall constitute presence in person
at a meeting.
Section 13. Action Without Meeting. Notwithstanding any other
provisions of these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting, if a written consent or consents to the adoption
of a resolution authorizing the action is signed by the whole Board of the
Corporation or all the members of such committee, as the case may be. The
resolution and the written consents thereto shall be filed with the minutes
of the proceedings of the Board of Directors.
Section 14. Committees. (a) Audit Committee; Compensation
Committee; Other Committees. The Board of Directors shall designate an
Audit Committee and a Compensation Committee, each consisting of at least
two directors and to have such duties and functions as shall be specified
in the resolution or resolutions appointing such committees. The Board of
Directors, by resolution passed by a majority of the total number of
directors, may designate other committees of the Board of Directors, each
such committee to consist of two or more directors and to have such duties
and functions as shall be provided in such resolution.
(b) Rules of Committees. A majority of all of the members of any
committee of the Board of Directors may determine its rules of procedure,
determine its action and fix the time and place, whether within or without
the State of Delaware, of its meetings and specify what notice thereof, if
any, shall be given, unless the Board of Directors shall otherwise by
resolution provide. Each committee shall record minutes of its proceedings
and shall submit the same to the Board of Directors. The Board of
Directors shall have power to change the members of any such committee and
fill vacancies therein and to discharge any such committee, either with or
without cause, at any time.
Section 15. The Chairman of the Board and Vice Chairman of the Board.
The Chairman of the Board and, if the Board of Directors determines that
the Board should have a Vice Chairman, the Vice Chairman of the Board shall
be elected annually by the Board of Directors. The Chairman of the Board
shall preside at all meetings of the Board of Directors, act as chairman at
all meetings of stockholders and shall sign the minutes of the proceedings
recorded at such meetings by the Secretary. He shall make reports to the
Board of Directors as well as to the stockholders and shall perform all
duties incident to his office or properly required of him by the Board of
Directors. The Chairman of the Board and the Vice Chairman of the Board
shall each perform such further duties and exercise such further powers as
may be assigned to him from time to time by the Board of Directors. In the
absence of the Chairman of the Board, the Vice Chairman of the Board shall
carry out his duties and authorities.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall include
the Chief Executive Officer, the President, a Treasurer and a Secretary.
Each officer of the Corporation shall hold office until his successor shall
have been duly chosen and qualified, or until his death, disqualification,
resignation or removal. Except for the offices of President and Secretary,
any two or more offices may be held by one person. Any vacancy occurring
in any office shall be filled by the Board of Directors.
Section 2. Other Officers. The Board of Directors may appoint one or
more Vice Presidents, Assistant Treasurers, Assistant Secretaries and such
other officers and agents with such powers and duties as it shall deem
necessary.
Section 3. The Chief Executive Officer (the "CEO"). The Chief
Executive Officer, subject to the direction of the Board of Directors,
shall have general management and control of the business and affairs of
the Corporation.
Section 4. The President. The President shall be the Chief Operating
Officer of the Corporation and, subject to the direction of the CEO and the
Board of Directors, shall be responsible for the day-to-day management of
the Corporation.
Section 5. The Treasurer. The Treasurer shall have custody of all
funds, securities and evidences of indebtedness of the Corporation, shall
receive and give receipts and acquittances for monies paid in on account of
the Corporation, shall pay out of the funds on hand all bills, payrolls,
and other just debts of the Corporation, of whatever nature upon maturity,
shall enter regularly in books to be kept by him for that purpose, full and
accurate accounts of all monies received and paid out by him on account of
the Corporation, and shall perform all other duties incident to the Office
of Treasurer and as may be prescribed by the Board of Directors.
Section 6. The Secretary. The Secretary, if he shall be present,
shall keep the minutes of all proceedings of directors and stockholders,
and shall attend to the giving and serving of all notices to stockholders
and directors or other notices required by law or by these By-Laws, shall
affix the seal of the Corporation to deeds, contracts and other instruments
in writing requiring a seal when duly signed or when so ordered by the
Board of Directors, shall have charge of the minute books, certificate
books and stock books and such other books and papers as the Board of
Directors may direct, and shall perform all other duties incident to the
office of Secretary.
Section 7. Removal of Officers. Any officer of the Corporation may
be removed from office at any time, with or without cause, by a vote of the
majority of the total number of directors.
ARTICLE V
Capital Stock
Section 1. Form and Execution of Certificates. The shares of the
Corporation shall be represented by certificates in such form as is
required by the General Corporation Law of the State of Delaware and as
shall be adopted by the Board of Directors. Certificates shall be numbered
and registered in the order issued, shall be signed by the President or a
Vice President and by the Secretary or the Treasurer and sealed with the
corporate seal or a facsimile thereof.
Section 2. Transfer. Transfer of shares shall be made only upon the
books of the Corporation by the registered holder thereof or by attorney,
duly authorized, and upon
surrender of the certificate or certificates for such shares properly
assigned for transfer.
Section 3. Lost or Destroyed Certificates. The holder of any
certificate representing shares of stock of the Corporation may notify the
Corporation of any loss, theft, or destruction thereof, and the Board of
Directors may thereupon, in its discretion (subject to applicable law),
cause a new certificate for the same number of shares to be issued to such
holder upon satisfactory proof of such loss, theft or destruction, and, if
required by the Board of Directors, the deposit of indemnity by way of bond
or otherwise, in such form and amount and with such surety or sureties as
the Board of Directors may require, to indemnify the Corporation against
loss or liability by reason of the issuance of such new certificates.
Section 4. Record Date. The Board of Directors may fix, in advance,
a date, not exceeding 60 days nor less than 10 days, as the record date for
the determination of stockholders entitled to receive notice of, or to vote
at, any meeting of stockholders, or to consent to any proposal without a
meeting, or for the purpose of determining stockholders entitled to receive
payment of any dividends, or allotment of any rights, or for the purpose of
any other action.
ARTICLE VI
Miscellaneous
Section 1. Dividends and Reserves. The Board of Directors may
declare dividends and may set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for any proper
purpose and may reduce or eliminate any such reserve. Dividends may be
paid in cash, in property, or in shares of stock.
Section 2. Regulations. The Board of Directors may make such rules
and regulations as it may deem expedient concerning the transfer and
registration of certificates for shares of the Corporation.
Section 3. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation and the words "CORPORATE SEAL", and the
state of its incorporation.
Section 4. Notice and Waiver of Notice. Whenever under the
provisions of these By-Laws any notice is required to be given, such
notice, unless otherwise required by law or by these By-Laws, shall be
communicated to the person entitled thereto be courier mail or first-class
mail, postage prepaid, or by telegraph, telex, cable, facsimile or other
recorded form of transmission, and such notice shall be deemed to have been
given on the third day after the time of dispatch by courier mail or
mailing thereof or at the time of dispatch in the case of notice by any
other form of transmission. Any notice required to be given under these
By-Laws may be waived in writing by the person entitled thereto, whether
before or after the time stated therein.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
ARTICLE VII
Amendments
Section 1. Amendments. The Board of Directors shall have the power,
without assent or vote of the stockholders, to make, alter, amend, change,
add to or repeal these By-Laws, or any of them, upon a vote of a majority
of the total number of directors.