CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MEMC ELECTRONIC MATERIALS, INC.
* * * * *
MEMC Electronic Materials, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Restated Certificate of Incorporation of MEMC Electronic
Materials, Inc. is hereby amended by deleting Section 3(c) of Article Fifth
in its entirety and substituting in lieu thereof a new Section 3(c) as
follows:
"(c) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of
the Corporation, except as may be otherwise provided in this Restated
Certificate of Incorporation (as it may be amended from time to time)
or the resolution or resolutions adopted by the Board of Directors
with respect to the rights of holders of Preferred Stock of the
Corporation to nominate and elect a specified number of directors in
certain circumstances. Nomination of persons for election to the Board
of Directors may be made at any annual meeting of stockholders, or at
any special meeting of stockholders called for the purpose of electing
directors, (a) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (b) 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 3(c) of Article
Fifth 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 3(c) of Article Fifth. In
addition to any other applicable requirements, for a nomination to be
made 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 (a) in the case of an annual meeting, 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, or (b) in the case of a special meeting
of stockholders called for the purpose of electing directors, not
later than the close of business on the tenth day following the day on
which notice of the date of the special meeting is mailed to
stockholders or public disclosure of the date of the special meeting
is made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director, (i) the name, age,
business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class or
series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the person and (iv) any other
information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the
notice, (i) the name and record address of such stockholder, (ii) 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, (iii) a description of all
arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section
14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set
forth in this Section 3(c) of Article Fifth. If the chairman of the
meeting determines that a nomination was not made in accordance with
the foregoing procedures, the chairman of the meeting shall declare to
the meeting that the nomination was defective and such defective
nomination shall be disregarded."
SECOND: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said MEMC Electronic Materials, Inc. has caused this
certificate to be signed by Helene F. Hennelly, its Corporate Vice President of
Corporate Projects and Secretary, an authorized officer of the Corporation, this
30th day of May, 2000.
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ Helene F. Hennelly
----------------------------------------
Name: Helene F. Hennelly
Title: Corporate Vice President of
Corporate Projects and Secretary
