AXT, INC.

 

                             A DELAWARE CORPORATION

 

                       SECOND AMENDED AND RESTATED BYLAWS

 

                                    ARTICLE I

 

                                  STOCKHOLDERS

 

      Section 1.1 Annual Meeting. An annual meeting of the stockholders, for the

election of directors to succeed those whose terms expire and for the

transaction of such other business as may properly come before the meeting,

shall be held at such place, on such date, and at such time as the Board of

Directors shall each year fix, which date shall be within thirteen months

subsequent to the later of the date of incorporation or the last annual meeting

of stockholders.

 

      Section 1.2 Special Meetings. Special meetings of the stockholders, for

any purpose or purposes prescribed in the notice of the meeting, may be called

only (i) by the Board of Directors pursuant to a resolution adopted by a

majority of the total number of authorized directors (whether or not there

exists any vacancies in previously authorized directorships at the time any such

resolution is presented to the Board of Directors for adoption) or (ii) by the

holders of not less than 10% of all shares entitled to cast votes at the

meeting, voting together as a single class. Business transacted at special

meetings shall be confined to the purpose or purposes stated in the notice.

 

Upon request in writing sent by registered mail to the president or chief

executive officer by any stockholder or stockholders entitled to call a special

meeting of stockholders pursuant to this Section 1.2, the board of directors

shall determine a place and time for such meeting, which time shall be not less

than one hundred twenty (120) nor more than one hundred thirty (130) days after

the receipt of such request, and a record date for the determination of

stockholders entitled to vote at such meeting shall be fixed by the board of

directors, in advance, which shall not be more than sixty (60) days nor less

than ten (10) days before the date of such meeting, nor more than sixty (60)

days prior to any other action. Following such receipt of a request and

determination by the Secretary of the validity thereof, it shall be the duty of

the secretary to cause notice to be given to the stockholders entitled to vote

at such meeting, in the manner set forth in Section 1.3, hereof, that a meeting

will be held at the place and time so determined.

 

      Section 1.3 Notice of Meetings. Written notice of the place, date, and

time of all meetings of the stockholders shall be given, not less than ten (10)

nor more than sixty (60) days before the date on which the meeting is to be

held, to each stockholder entitled to vote at such meeting, except as otherwise

provided herein or required by law (meaning, here and hereinafter, as required

from time to time by the Delaware General Corporation Law or the Certificate of

Incorporation of the Corporation).

 

 

 

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      When a meeting is adjourned to another place, date or time, written notice

need not be given of the adjourned meeting if the place, date and time thereof

are announced at the meeting at which the adjournment is taken; provided,

however, that if the date of any adjourned meeting is more than thirty (30) days

after the date for which the meeting was originally noticed, or if a new record

date is fixed for the adjourned meeting, written notice of the place, date, and

time of the adjourned meeting shall be given in conformity herewith. At any

adjourned meeting, any business may be transacted which might have been

transacted at the original meeting.

 

      Section 1.4 Quorum. At any meeting of the stockholders, the holders of a

majority of all of the shares of the stock entitled to vote at the meeting,

present in person or by proxy, shall constitute a quorum for all purposes,

unless or except to the extent that the presence of a larger number may be

required by law.

 

      If a quorum shall fail to attend any meeting, the chairman of the meeting

or the holders of a majority of the shares of stock entitled to vote who are

present, in person or by proxy, may adjourn the meeting to another place, date,

or time.

 

      If a notice of any adjourned special meeting of stockholders is sent to

all stockholders entitled to vote thereat, stating that it will be held with

those present constituting a quorum, then except as otherwise required by law,

those present at such adjourned meeting shall constitute a quorum, and all

matters shall be determined by a majority of the votes cast at such meeting.

 

      Section 1.5 Conduct of the Stockholders' Meeting. At every meeting of the

stockholders, the Chairman, if there is such an officer, or if not, the

President of the Corporation, or in his absence the Vice President designated by

the President, or in the absence of such designation any Vice President, or in

the absence of the President or any Vice President, a chairman chosen by the

majority of the voting shares represented in person or by proxy, shall act as

Chairman. The Secretary of the Corporation or a person designated by the

Chairman shall act as Secretary of the meeting. Unless otherwise approved by the

Chairman, attendance at the stockholders' meeting is restricted to stockholders

of record, persons authorized in accordance with Section 8 of these Bylaws to

act by proxy, and officers of the Corporation.

 

      Section 1.6 Conduct of Business. The Chairman shall call the meeting to

order, establish the agenda, and conduct the business of the meeting in

accordance therewith or, at the Chairman's discretion, it may be conducted

otherwise in accordance with the wishes of the stockholders in attendance. The

date and time of the opening and closing of the polls for each matter upon which

the stockholders will vote at the meeting shall be announced at the meeting.

 

      The Chairman shall also conduct the meeting in an orderly manner, rule on

the precedence of and procedure on, motions and other procedural matters, and

exercise discretion with respect to such procedural matters with fairness and

good faith toward all those entitled to take part. The Chairman may impose

reasonable limits on the amount of time taken up at the meeting on discussion in

general or on remarks by any one stockholder. Should any person in attendance

become unruly or obstruct the meeting proceedings, the Chairman shall have the

power to have such person removed from participation. Notwithstanding anything

in the Bylaws

 

 

 

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to the contrary, no business shall be conducted at a meeting except in

accordance with the procedures set forth in this Section 1.6 and Section 1.7,

below. The Chairman of a meeting shall, if the facts warrant, determine and

declare to the meeting that business was not properly brought before the meeting

and in accordance with the provisions of this Section 1.6 and Section 1.7, and

if he should so determine, he shall so declare to the meeting and any such

business not properly brought before the meeting shall not be transacted.

 

      Section 1.7 Notice of Stockholder Business. At an annual or special

meeting of the stockholders, only such business shall be conducted as shall have

been properly brought before the meeting. To be properly brought before a

meeting, business must be (a) specified in the notice of meeting (or any

supplement thereto) given by or at the direction of the Board of Directors, (b)

properly brought before the meeting by or at the direction of the Board of

Directors, (c) properly brought before an annual meeting by a stockholder, or

(d) properly brought before a special meeting by a stockholder, but if, and only

if, the notice of a special meeting provides for business to be brought before

the meeting by stockholders. For business to be properly brought before a

meeting by a stockholder, the stockholder must have given timely notice thereof

in writing to the Secretary of the Corporation. To be timely, a stockholder

proposal to be presented at an annual meeting shall be received at the

Corporation's principal executive offices not less than 120 calendar days in

advance of the date that the Corporation's (or the Corporation's predecessor's)

proxy statement was released to stockholders in connection with the previous

year's annual meeting of stockholders, except that if no annual meeting was held

in the previous year or the date of the annual meeting has been changed by more

than 30 calendar days from the date contemplated at the time of the previous

year's proxy statement, or in the event of a special meeting, notice by the

stockholder to be timely must be received not later than the close of business

on the tenth day following the day on which such notice of the date of the

meeting was mailed or such public disclosure was made. A stockholder's notice to

the Secretary shall set forth as to each matter the stockholder proposes to

bring before the annual or special meeting (a) a brief description of the

business desired to be brought before the annual or special meeting and the

reasons for conducting such business at the special meeting, (b) the name and

address, as they appear on the Corporation's books, of the stockholder proposing

such business, (c) the class and number of shares of the Corporation which are

beneficially owned by the stockholder, and (d) any material interest of the

stockholder in such business.

 

      Section 1.8 Proxies and Voting. All elections shall be determined by a

plurality of the votes cast, and except as otherwise required by law or the

Certificate of Incorporation or the Bylaws of this Corporation, all other

matters shall be determined by a majority of the votes cast affirmatively or

negatively.

 

Each stockholder shall at every meeting of the stockholders be entitled to one

vote for each share of capital stock having voting power held by such

stockholder. Such vote may be evidenced (i) in person; (ii) by proxy authorized

by an instrument in writing; or (iii) by a transmission permitted by law filed

in accordance with the procedure established for the meeting. No stockholder may

authorize more than one proxy for his shares. No proxy shall be voted on after

three years from its date, unless the proxy provides for a longer period, and,

except where the transfer books of the Corporation have been closed or a date

has been fixed as a record date for

 

 

 

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the determination of its stockholders entitled to vote, no share of stock shall

be voted on at any election of directors which has been transferred on the books

of the Corporation within twenty days preceding such election of directors.

 

Action shall be taken by stockholders only at an annual or special meeting of

stockholders, and stockholders may not act by written consent.

 

      Section 1.9 Stock List. A complete list of stockholders entitled to vote

at any meeting of stockholders, arranged in alphabetical order for each class of

stock and showing the address of each such stockholder and the number of shares

registered in his or her name, shall be open to the examination of any such

stockholder, for any purpose germane to the meeting, during ordinary business

hours for a period of at least ten (10) days prior to the meeting, either at a

place within the city where the meeting is to be held, which place shall be

specified in the notice of the meeting, or if not so specified, at the place

where the meeting is to be held.

 

      The stock list shall also be kept at the place of the meeting during the

whole time thereof and shall be open to the examination of any such stockholder

who is present. This list shall presumptively determine the identity of the

stockholders entitled to vote at the meeting and the number of shares held by

each of them.

 

                                   ARTICLE II

 

                               BOARD OF DIRECTORS

 

      Section 2.1 Number and Term of Office. The number of directors shall be

Five (5) and, the number of directors shall be fixed from time to time

exclusively by the Board of Directors pursuant to a resolution adopted by a

majority of the total number of authorized directors (whether or not there exist

any vacancies in previously authorized directorships at the time any such

resolution is presented to the Board for adoption). Upon the closing of the

first sale of the Corporation's common stock pursuant to a firmly underwritten

registered public offering (the "IPO"), the directors shall be divided into

three classes, with the term of office of the first class to expire at the first

annual meeting of stockholders held after the IPO, the term of office of the

second class to expire at the second annual meeting of stockholders held after

the IPO, the term of office of the third class to expire at the third annual

meeting of stockholders held after the IPO and thereafter for each such term to

expire at each third succeeding annual meeting of stockholders after such

election. A vacancy resulting from the removal of a director by the stockholders

as provided in Article II, Section 2.3 below may be filled at special meeting of

the stockholders held for that purpose. All directors shall hold office until

the expiration of the term for which elected and until their respective

successors are elected, except in the case of the death, resignation or removal

of any director.

 

      Section 2.2 Vacancies and Newly Created Directorships. Subject to the

rights of the holders of any series of Preferred Stock then outstanding, newly

created directorships resulting from any increase in the authorized number of

directors or any vacancies in the Board of Directors resulting from death,

resignation, retirement, disqualification or other cause (other than

 

 

 

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removal from office by a vote of the stockholders) may be filled only by a

majority vote of the directors then in office, though less than a quorum, and

directors so chosen shall hold office for a term expiring at the next annual

meeting of stockholders. No decrease in the number of directors constituting the

Board of Directors shall shorten the term of any incumbent director.

 

      Section 2.3 Removal. Subject to the rights of holders of any series of

Preferred Stock then outstanding, any directors, or the entire Board of

Directors, may be removed from office at any time, with or without cause, but

only by the affirmative vote of the holders of at least a majority of the voting

power of all of the then outstanding shares of capital stock of the Corporation

entitled to vote generally in the election of directors, voting together as a

single class. Vacancies in the Board of Directors resulting from such removal

may be filled by a majority of the directors then in office, though less than a

quorum, or by the stockholders as provided in Article II, Section 2.1 above.

Directors so chosen shall hold office until the new annual meeting of

stockholders.

 

      Section 2.4 Regular Meetings. Regular meetings of the Board of Directors

shall be held at such place or places, on such date or dates, and at such time

or times as shall have been established by the Board of Directors and publicized

among all directors. A notice of each regular meeting shall not be required.

 

      Section 2.5 Special Meetings. Special meetings of the Board of Directors

may be called by one-third of the directors then in office (rounded up to the

nearest whole number) or by the chief executive officer and shall be held at

such place, on such date, and at such time as they or he or she shall fix.

Notice of the place, date, and time of each such special meeting shall be given

each director by whom it is not waived by mailing written notice not fewer than

five (5) days before the meeting or by telegraphing or personally delivering the

same not fewer than twenty-four (24) hours before the meeting. Unless otherwise

indicated in the notice thereof, any and all business may be transacted at a

special meeting.

 

      Section 2.6 Quorum. At any meeting of the Board of Directors, a majority

of the total number of authorized directors shall constitute a quorum for all

purposes. If a quorum shall fail to attend any meeting, a majority of those

present may adjourn the meeting to another place, date, or time, without further

notice or waiver thereof.

 

      Section 2.7 Participation in Meetings by Conference Telephone. Members of

the Board of Directors, or of any committee thereof, may participate in a

meeting of such Board or committee by means of conference telephone or similar

communications equipment by means of which all persons participating in the

meeting can hear each other and such participation shall constitute presence in

person at such meeting.

 

      Section 2.8 Conduct of Business. At any meeting of the Board of Directors,

business shall be transacted in such order and manner as the Board may from time

to time determine, and all matters shall be determined by the vote of a majority

of the directors present, except as otherwise provided herein or requited by

law. Action may be taken by the Board of Directors without a meeting if all

members thereof consent thereto in writing, and the writing or writings are

filed with the minutes of proceedings of the Board of Directors.

 

 

 

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      Section 2.9 Powers. The Board of Directors may, except as otherwise

required by law, exercise all such powers and do all such acts and things as may

be exercised or done by the Corporation, including, without limiting the

generality of the foregoing, the unqualified power:

 

      (a)   To declare dividends from time to time in accordance with law;

 

      (b)   To purchase or otherwise acquire any property, rights or privileges

on such terms as it shall determine;

 

      (c)   To authorize the creation, making and issuance, in such form as it

may determine, of written obligations of every kind, negotiable or

non-negotiable, secured or unsecured, and to do all things necessary in

connection therewith;

 

      (d)   To remove any officer of the Corporation with or without cause, and

from time to time to devolve the powers and duties of any officer upon any other

person for the time being;

 

      (e)   To confer upon any officer of the Corporation the power to appoint,

remove and suspend subordinate officers, employees and agents;

 

      (f)   To adopt from time to time such stock, option, stock purchase, bonus

or other compensation plans for directors, officers, employees and agents of the

Corporation and its subsidiaries as it may determine;

 

      (g)   To adopt from time to time such insurance, retirement, and other

benefit plans for directors, officers, employees and agents of the Corporation

and its subsidiaries as it may determine; and

 

      (h)   To adopt from time to time regulations, not inconsistent with these

bylaws, for the management of the Corporation's business and affairs.

 

      Section 2.10 Compensation of Directors. Directors, as such, may receive,

pursuant to resolution of the Board of Directors, fixed fees and other

compensation for their services as directors, including, without limitation,

their services as members of committees of the Board of Directors.

 

      Section 2.11 Nomination of Director Candidates. Subject to the rights of

holders of any class or series of Preferred Stock then outstanding, nominations

for the election of Directors may be made by the Board of Directors or a proxy

committee appointed by the Board of Directors or by any stockholder entitled to

vote in the election of Directors generally. However, any stockholder entitled

to vote in the election of Directors generally may nominate one or more persons

for election as Directors at a meeting only if timely notice of such

stockholder's intent to make such nomination or nominations has been given in

writing to the Secretary of the Corporation. To be timely, a stockholder

nomination for a director to be elected at an annual meeting shall be received

at the Corporation's principal executive offices not less than 120 calendar days

in advance of the date that the Corporation's (or the Corporation's

Predecessor's)

 

 

 

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Proxy statement was released to stockholders in connection with the previous

year's annual meeting of stockholders, except that if no annual meeting was held

in the previous year or the date of the annual meeting has been changed by more

than 30 calendar days from the date contemplated at the time of the previous

year's proxy statement, or in the event of a nomination for director to be

elected at a special meeting, notice by the stockholders to be timely must be

received not later than the close of business on the tenth day following the day

on which such notice of the date of the special meeting was mailed or such

public disclosure was made. Each such notice shall set forth: (a) the name and

address of the stockholder who intends to make the nomination and of the person

or persons to be nominated; (b) a representation that the stockholder is a

holder of record of stock of the Corporation entitled to vote for the election

of Directors on the date of such notice and intends to appear in person or by

proxy at the meeting to nominate the person or persons specified in the notice;

(c) a description of all arrangements or understandings between the stockholder

and each nominee and any other person or persons (naming such person or persons)

pursuant to which the nomination or nominations are to be made by the

stockholder; (d) such other information regarding each nominee proposed by such

stockholder as would be required to be included in a proxy statement filed

pursuant to the proxy rules of the Securities and Exchange Commission, had the

nominee been nominated, or intended to be nominated, by the Board of Directors;

and (e) the consent of each nominee to serve as a director of the Corporation if

so elected.

 

      In the event that a person is validly designated as a nominee in

accordance with this Section 2.11 and shall thereafter become unable or

unwilling to stand for election to the Board of Directors, the Board of

Directors or the stockholder who proposed such nominee, as the case may be, may

designate a substitute nominee upon delivery, not fewer than five days prior to

the date of the meeting for the election of such nominee, of a written notice to

the Secretary setting forth such information regarding such substitute nominee

as would have been required to be delivered to the Secretary pursuant to this

Section 2.11 had such substitute nominee been initially proposed as a nominee.

Such notice shall include a signed consent to serve as a director of the

Corporation, if elected, of each such substitute nominee.

 

      If the chairman of the meeting for the election of Directors determines

that a nomination of any candidate for election as a Director at such meeting

was not made in accordance with the applicable provisions of this Section 2.11,

such nomination shall be void; provided, however, that nothing in this Section

2.11 shall be deemed to limit any voting rights upon the occurrence of dividend

arrearages provided to holders of Preferred Stock pursuant to the Preferred

Stock designation for any series of Preferred Stock.

 

                                   ARTICLE III

 

                                   COMMITTEES

 

      Section 3.1 Committees of the Board of Directors. The Board of Directors,

by a vote of a majority of the whole Board, may from time to time designate

committees of the Board, with

 

 

 

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such lawfully delegable powers and duties as it thereby confers, to serve at the

pleasure of the Board and shall, for those committees and any others provided

for herein, elect a director or directors to serve as the member or members,

designating, if it desires, other directors as alternate members who may replace

any absent or disqualified member at any meeting of the committee. Any committee

so designated may exercise the power and authority of the Board of Directors to

declare a dividend, to authorize the issuance of stock or to adopt a certificate

of ownership and merger pursuant to Section 253 of the Delaware General

Corporation Law if the resolution which designates the committee or a

supplemental resolution of the Board of Directors shall so provide. In the

absence or disqualification of any member of any committee and any alternate

member in his place, the member or members of the committee present at the

meeting and not disqualified from voting, whether or not he or she or they

constitute a quorum, may by unanimous vote appoint another member of the Board

of Directors to act at the meeting in the place of the absent or disqualified

member.

 

      Section 3.2 Conduct of Business. Each committee may determine the

procedural rules for meeting and conducting its business and shall act in

accordance therewith, except as otherwise provided herein or required by law.

Adequate provision shall be made for notice to members of all meetings;

one-third of the authorized members shall constitute a quorum unless the

committee shall consist of one or two members, in which event one member shall

constitute a quorum; and all matters shall be determined by a majority vote of

the members present. Action may be taken by any committee without a meeting if

all members thereof consent thereto in writing, and the writing or writings are

filed with the minutes of the proceedings of such committee.

 

                                   ARTICLE IV

 

                                    OFFICERS

 

      Section 4.1 Generally. The officers of the Corporation shall consist of a

President, one or more Vice Presidents, a Secretary and a Treasurer. The

Corporation may also have, at the discretion of the Board of Directors, a

Chairman of the Board and such other officers as may from time to time be

appointed by the Board of Directors. Officers shall be elected by the Board of

Directors, which shall consider that subject at its first meeting after every

annual meeting of stockholders. Each officer shall hold office until his or her

successor is elected and qualified or until his or her earlier resignation or

removal. The Chairman of the Board, if there shall be such an officer, and the

President shall each be members of the Board of Directors. Any number of offices

may he held by the same person.

 

      Section 4.2 Chairman of the Board. The Chairman of the Board, if there

shall be such an officer, shall, if present, preside at all meetings of the

Board of Directors, and exercise and perform such other powers and duties as may

be from time to time assigned to him by the Board of Directors or prescribed by

these bylaws.

 

 

 

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      Section 4.3 President. The President shall be the chief executive officer

of the Corporation. Subject to the provisions of these bylaws and to the

direction of the Board of Directors, he or she shall have the responsibility for

the general management and control of the business and affairs of the

Corporation and shall perform all duties and have all powers which are commonly

incident to the office of chief executive or which are delegated to him or her

by the Board of Directors. He or she shall have power to sign all stock

certificates, contracts and other instruments of the Corporation which are

authorized and shall have general supervision and direction of all of the other

officers, employees and agents of the Corporation.

 

      Section 4.4 Vice President. Each Vice President shall have such powers and

duties as may be delegated to him or her by the Board of Directors. One Vice

President shall be designated by the Board to perform the duties and exercise

the powers of the President in the event of the President's absence or

disability.

 

      Section 4.5 Treasurer. Unless otherwise designated by the Board of

Directors, the Chief Financial Officer of the Corporation shall be the

Treasurer. The Treasurer shall have the responsibility for maintaining the

financial records of the Corporation and shall have custody of all monies and

securities of the Corporation. He or she shall make such disbursements of the

funds of the Corporation as are authorized and shall render from time to time an

account of all such transactions and of the financial condition of the

Corporation. The Treasurer shall also perform such other duties as the Board of

Directors may from time to time prescribe.

 

      Section 4.6 Secretary. The Secretary shall issue all authorized notices

for, and shall keep, or cause to be kept, minutes of all meetings of the

stockholders, the Board of Directors, and all committees of the Board of

Directors. He or she shall have charge of the corporate books and shall perform

such other duties as the Board of Directors may from time to time prescribe.

 

      Section 4.7 Delegation of Authority. The Board of Directors may from time

to time delegate the powers or duties of any officer to any other officers or

agents, notwithstanding any provision hereof.

 

      Section 4.8 Removal. Any officer of the Corporation may be removed at any

time, with or without cause, by the Board of Directors.

 

      Section 4.9 Action With Respect to Securities of Other Corporations.

Unless otherwise directed by the Board of Directors, the President or any

officer of the Corporation authorized by the President shall have power to vote

and otherwise act on behalf of the Corporation, in person or by proxy, at any

meeting of stockholders of or with respect to any action of stockholders of any

other corporation in which this Corporation may hold securities and otherwise to

exercise any and all rights and powers which this Corporation may possess by

reason of its ownership of securities in such other corporation.

 

                                    ARTICLE V

 

                                      STOCK

 

 

 

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      Section 5.1 Certificates of Stock. Each stockholder shall be entitled to a

certificate signed by, or in the name of the Corporation by, the President or a

Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer

or an Assistant Treasurer, certifying the number of shares owned by him or her.

Any of or all the signatures on the certificate may be facsimile.

 

      Section 5.2 Transfers of Stock. Transfers of stock shall be made only upon

the transfer books of the Corporation kept at an office of the Corporation or by

transfer agents designated to transfer shares of the stock of the Corporation.

Except where a certificate is issued in accordance with Section 4 of Article V

of these bylaws, an outstanding certificate for the number of shares involved

shall be surrendered for cancellation before a new certificate is issued

therefor.

 

      Section 5.3 Record Date. The Board of Directors may fix a record date,

which shall not be more than sixty (60) nor fewer than ten (10) days before the

date of any meeting of stockholders, nor more than sixty (60) days prior to the

time for the other action hereinafter described, as of which there shall be

determined the stockholders who are entitled: to notice of or to vote at any

meeting of stockholders or any adjournment thereof; to receive payment of any

dividend or other distribution or allotment of any rights; or to exercise any

rights with respect to any change, conversion or exchange of stock or with

respect to any other lawful action.

 

      Section 5.4 Lost, Stolen or Destroyed Certificates. In the event of the

loss, theft or destruction of any certificate of stock, another may be issued in

its place pursuant to such regulations as the Board of Directors may establish

concerning proof of such loss, theft or destruction and concerning the giving of

a satisfactory bond or bonds of indemnity.

 

      Section 5.5 Regulations. The issue, transfer, conversion and registration

of certificates of stock shall be governed by such other regulations as the

Board of Directors may establish.

 

                                   ARTICLE VI

 

                                     NOTICES

 

      Section 6.1 Notices. Except as otherwise specifically provided herein or

required by law, all notices required to be given to any stockholder, director,

officer, employee or agent shall be in writing and may in every instance be

effectively given by hand delivery to the recipient thereof, by depositing such

notice in the mails, postage paid, or by sending such notice by prepaid

telegram, mailgram, telecopy or commercial courier service. Any such notice

shall be addressed to such stockholder, director, officer, employee or agent at

his or her last known address as the same appears on the books of the

Corporation. The time when such notice shall be deemed to be given shall be the

time such notice is received by such stockholder, director, officer, employee or

agent, or by any person accepting such notice on behalf of such person, if

 

 

 

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hand delivered, or the time such notice is dispatched, if delivered through the

mails or be telegram or mailgram.

 

      Section 6.2 Waivers. A written waiver of any notice, signed by a

stockholder, director, officer, employee or agent, whether before or after the

time of the event for which notice is to be given, shall be deemed equivalent to

the notice required to be given to such stockholder, director, officer, employee

or agent. Neither the business nor the purpose of any meeting need be specified

in such a waiver.

 

                                   ARTICLE VII

 

                                  MISCELLANEOUS

 

      Section 7.1 Facsimile Signatures. In addition to the provisions for use of

facsimile signatures elsewhere specifically authorized in these bylaws,

facsimile signatures of any officer or officers of the Corporation may be used

whenever and as authorized by the Board of Directors or a committee thereof.

 

      Section 7.2 Corporate Seal. The Board of Directors may provide a suitable

seal, containing the name of the Corporation, which seal shall be in the charge

of the Secretary. If and when so directed by the Board of Directors or a

committee thereof, duplicates of the seal may be kept and used by the Treasurer

or by an Assistant Secretary or Assistant Treasurer.

 

      Section 7.3 Reliance Upon Books, Reports and Records. Each director, each

member of any committee designated by the Board of Directors, and each officer

of the Corporation shall, in the performance of his duties, be fully protected

in relying in good faith upon the books of account or other records of the

Corporation, including reports made to the Corporation by any of its officers,

by an independent certified public accountant, or by an appraiser selected with

reasonable care.

 

      Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be as

fixed by the Board of Directors.

 

      Section 7.5 Time Periods. In applying any provision of these bylaws which

require that an act be done or not done a specified number of days prior to an

event or that an act be done during a period of a specified number of days prior

to an event, calendar days shall be used, the day of the doing of the act shall

be excluded, and the day of the event shall be included.

 

 

 

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                                  ARTICLE VIII

 

                    INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

Section 8.1 Right to Indemnification. Each person who was or is made a party or

is threatened to be made a party to or is involved in any action, suit or

proceeding, whether civil, criminal, administrative or investigative

("proceeding"), by reason of the fact that he or she or a person of whom he or

she is the legal representative, is or was a director, officer or employee of

the Corporation or is or was serving at the request of the Corporation as a

director, officer or employee of another corporation, or of a Partnership, joint

venture, trust or other enterprise, including service with respect to employee

benefit plans, whether the basis of such proceeding is alleged action in an

official capacity as a director, officer or employee or in any other capacity

while serving as a director, officer or employee, shall be indemnified and held

harmless by the Corporation to the fullest extent authorized by Delaware Law, as

the same exists or may hereafter be amended (but, in the case of any such

amendment, only to the extent that such amendment permits the Corporation to

provide broader indemnification rights than said Law permitted the Corporation

to provide prior to such amendment) against all expenses, liability and loss

(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,

amounts paid or to be paid in settlement and amounts expended in seeking

indemnification granted to such person under applicable law, this bylaw or any

agreement with the Corporation) reasonably incurred or suffered by such person

in connection therewith and such indemnification shall continue as to a person

who has ceased to be a director, officer or employee and shall inure to the

benefit of his or her heirs, executors and administrators; provided, however,

that, except as provided in Section 8.2 of this Article VIII, the Corporation

shall indemnify any such person seeking indemnity in connection with an action,

suit or proceeding (or part thereof) initiated by such person only if (a) such

indemnification is expressly required to be made by law, (b) the action, suit or

proceeding (or part thereof) was authorized by the Board of Directors of the

Corporation, (c) such indemnification is provided by the Corporation, in its

sole discretion, pursuant to the powers vested in the Corporation under the

Delaware General Corporation Law, or (d) the action, suit or proceeding (or part

thereof) is brought to establish or enforce a right to indemnification under an

indemnity agreement or any other statute or law or otherwise as required under

Section 145 of the Delaware General Corporation Law. Such right shall be a

contract right and shall include the right to be paid by the Corporation

expenses incurred in defending any such proceeding in advance of its final

disposition; provided, however, that, unless the Delaware General Corporation

Law then so prohibits, the payment of such expenses incurred by a director or

officer of the Corporation in his or her capacity as a director or officer (and

not in any other capacity in which service was or is tendered by such person

while a director or officer, including, without limitation, service to an

employee benefit plan) in advance of the final disposition of such proceeding,

shall be made only upon delivery to the Corporation of an undertaking, by or on

behalf of such director or officer, to repay all amounts so advanced if it

should be determined ultimately that such director or officer is not entitled to

be indemnified under this Section or otherwise.

 

      Section 8.2 Right of Claimant to Bring Suit. If a claim under Section 8.1

of this Article VIII is not paid in full by the Corporation within ninety (90)

days after a written claim

 

 

 

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<PAGE>   16

 

has been received by the Corporation, the claimant may at any time thereafter

bring suit against the Corporation to recover the unpaid amount of the claim

and, if such suit is not frivolous or brought in bad faith, the claimant shall

be entitled to be paid also the expense of prosecuting such claim. The burden of

proving such claim shall be on the claimant. It shall be a defense to any such

action (other then an action brought to enforce a claim for expenses incurred in

defending any proceeding in advance of its final disposition where the required

undertaking, if any, has been tendered to this Corporation) that the claimant

has not met the standards of conduct which make it permissible under the

Delaware General Corporation Law for the Corporation to indemnify the claimant

for the amount claimed. Neither the failure of the Corporation (including its

Board of Directors, independent legal counsel, or its stockholders) to have made

a determination prior to the commencement of such action that indemnification of

the claimant is proper in the circumstances because he or she has met the

applicable standard of conduct set forth in the Delaware General Corporation

Law, nor an actual determination by the Corporation (including its Board of

Directors, independent legal counsel, or its stockholders) that the claimant has

not met such applicable standard of conduct, shall be a defense to the action or

create a presumption that claimant has not met the applicable standard of

conduct.

 

      Section 8.3 Non-Exclusivity of Rights. The rights conferred on any person

in Sections 8.1 and 8.2 shall not be exclusive of any other right which such

persons may have or hereafter acquire under any statute, provision of the

Certificate of Incorporation, bylaw, agreement, vote of stockholders or

disinterested directors or otherwise.

 

      Section 8.4 Indemnification Contracts. The Board of Directors is

authorized to enter into a contract with any director, officer, employee or

agent of the Corporation, or any person serving at the request of the

Corporation as a director, officer, employee or agent of another corporation,

partnership, joint venture, trust or other enterprise, including employee

benefit plans, providing for indemnification rights equivalent to or, if the

Board of Directors so determines, greater than, those provided for in this

Article VIII.

 

      Section 8.5 Insurance. The Corporation shall maintain insurance to the

extent reasonably available, at its expense, to protect itself and any such

director, officer, employee or agent of the Corporation or another corporation,

partnership, joint venture, trust or other enterprise against any such expense,

liability or loss, whether or not the Corporation would have the power to

indemnify such person against such expense, liability or loss under the Delaware

General Corporation Law.

 

      Section 8.6 Effect of Amendment. Any amendment, repeal or modification of

any provision of this Article VIII by the stockholders and the directors of the

Corporation shall not adversely affect any right or protection of a director or

officer of the Corporation existing at the time of such amendment, repeal or

modification.

 

                                   ARTICLE IX

 

                                   AMENDMENTS

 

 

 

                                       13

<PAGE>   17

 

      Section 9.1 Amendment of Bylaws. The Board of Directors is expressly

empowered to adopt, amend or repeal Bylaws of the Corporation. Any adoption,

amendment or repeal of Bylaws of the Corporation by the Board of Directors shall

require the approval of a majority of the total number of authorized directors

(whether or not there exist any vacancies in previously authorized directorships

at the time any resolution providing for adoption, amendment or repeal is

presented to the Board). The stockholders shall also have power to adopt, amend

or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of

Bylaws of the Corporation by the stockholders shall require, in addition to any

vote of the holders of any class or series of stock of the Corporation required

by law or by the Certificate of Incorporation, the affirmative vote of the

holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting

power of all of the then outstanding shares of the capital stock of the

Corporation entitled to vote generally in the election of directors, voting

together as a single class.

 

 

 

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<PAGE>   18

 

                            CERTIFICATE OF SECRETARY

 

      I hereby certify that I am the duly elected and acting Secretary of AXT,

Inc., a Delaware corporation (the "Corporation"), and that the foregoing Bylaws,

comprising fifteen (15) pages, constitute the Bylaws of the Corporation as duly

adopted by the unanimous written consent at of the Board of Directors of the

Corporation on April 24, 2001.

 

      IN WITNESS WHEREOF, I have hereunto subscribed my name on April 24, 2001.

 

 

 

                                          -------------------------------------

                                          Don Tatzin, Secretary

 

 

AMENDED AND RESTATED SECTION 5.1

OF ARTICLE V OF

THE SECOND AMENDED AND RESTATED BYLAWS OF

AXT, INC.

Section 5.1                      Certificates of Stock.  The shares of stock of the Corporation may be represented by certificates in such form as may be approved by the Board of Directors, which certificates shall be signed or signed by facsimile by the Chairman or President and Secretary or Treasurer, certifying the number of shares owned by the shareholder in the Corporation.  Notwithstanding the foregoing provisions regarding share certificates, the Board of Directors or officers of the Corporation may provide that some or all of any or of all classes or series of the Corporation’s common or preferred shares may be uncertificated shares.  Any such resolution shall not apply to shares represented by a certificate until the certificate is surrendered to the Corporation.

 

 

 

Certificate of Amendment

of Bylaws of

AXT, Inc.

 

The undersigned, being the Secretary of AXT, Inc. (the “Company”), hereby certifies that Section 2.2 of the Second Amended and Restated Bylaws of the Company was amended effective October 25, 2010 by the Company’s Board of Directors to change such paragraph to read in full as follows:

 

“2.2        Vacancies and Newly Created Directorships.  Unless otherwise provided in the certificate of incorporation or these bylaws, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification or other cause (other than removal from office by a vote of the stockholders) may be filled only by a majority vote of the directors then in office, though less than a quorum.  If the directors are divided into classes, a person so elected by the directors then in office to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her successor shall have been duly elected and qualified.  No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.”

 

 

Dated: October 26, 2010

 

AXT, INC.

 

By:

/s/Raymond A. Low

 

Name: Raymond A. Low

 

Title: Chief Financial Officer and Corporate Secretary, AXT, Inc.

 

 

[End]