BY-LAWS
OF
MEMC ELECTRONIC MATERIALS, INC.
(Restated as of May 6, 1999)
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 90 days nor more than 120 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. The provisions of this Section 9
shall also govern what constitutes timely notice for purposes of Rule 14a-4(c)
under the Exchange Act.
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 mean
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.
(c) Powers of Committees. The Board of Directors, by resolution passed by a
majority of a duly constituted quorum of the Board of Directors, may designate
committees of the Board of Directors pursuant to, and which will have the powers
as are consistent with, the provisions of Section 141(c)(2) of the Delaware
General Corporation Law.
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.