EXHIBIT 3.4
Corporate Bylaws
of
Applied Surface Technology, Inc.
Incorporated Pursuant to the
Laws of the State of California
on July 29, 1994
Article I
Offices
1.1 Principal Executive or Business Offices
The board of directors shall fix the location of the principal
executive office of the corporation at any place within or outside the State of
California. If the principal executive office is located outside California and
the corporation has one or more business offices in California, the board shall
fix and designate a principal business office in California.
1.2 Other Offices
Branch or subordinate offices may be established at any time
and at any place by the board of directors.
Article II
Meetings of Shareholders
2.1 Place of Meetings
Meetings of shareholders shall be held at any place within or
outside the State of California designated by the board of directors. In the
absence of any such designation by the board, shareholders' meetings shall be
held at the corporation's principal executive office.
2.2 Annual Meeting
The annual meeting of the shareholders shall be held on the
first Tuesday of the month of August in each year at 10:00 o'clock a.m. If,
however, this day falls on a legal holiday, then the meeting shall be held at
the same time and place on the next succeeding full business day. At this
meeting, directors shall be elected and any other proper business within the
power of the shareholders may be transacted.
2.3 Special Meeting
A special meeting of the shareholders may be called at any
time by the board of directors, by the chairman of the board, by the president
or vice president, or by one or more shareholders holding shares that in the
aggregate are entitled to cast not less than ten percent (10%) or more of the
votes at that meeting. If a special meeting is called by anyone other than the
board of directors, the person or persons calling the meeting shall make a
request in writing, delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission, to the chairman of the board, the
president, vice president, or secretary, specifying the time and date of the
meeting (which is not less than thirty-five (35) nor more than sixty (60) days
after receipt of the request) and the general nature of the business proposed to
be transacted. Within twenty (20) days after receipt, the officer receiving the
request shall cause notice to be given to the shareholders entitled to vote, in
accordance with paragraphs 2.4 and 2.5 of these bylaws stating that a meeting
will be held at the time requested by the person(s) calling the meeting, and
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stating the general nature of the business proposed to be transacted. If notice
is not given within twenty (20) days after receipt of the request, the person or
persons requesting the meeting may give the notice. Nothing contained in this
paragraph shall be construed as limiting, fixing, or affecting the time when a
meeting of shareholders called by action of the board may be held.
2.4 Notice of Shareholders' Meetings
(1) All notices of meetings of shareholders shall be sent
or otherwise given in accordance with paragraph 2.5 of these bylaws not fewer
than ten (10) nor more than sixty (60) days before the date of the meeting.
Shareholders entitled to notice shall be determined in accordance with paragraph
2.11 of these bylaws. The notice shall specify the place, date and hour of the
meeting and (a) in the case of a special meeting, the general nature of the
business to be transacted, or (b) in the case of the annual meeting, those
matters which the board of directors, at the time of giving notice, intends to
present for action by the shareholders. If directors are to be elected the
notice shall include the name of all nominees whom the board intends, at the
time of the notice, to present for election.
(2) The notice shall also state the general nature of any
proposed action to be taken at the meeting to approve any of the following
matters: (a) A transaction in which a director has a financial interest, within
the meaning of section 310 of the California Corporations Code; (b) An amendment
of the articles of incorporation under section 902 of that code; (c) A
reorganization under section 1201 of that code; (d) A voluntary dissolution
under section 1900 of that code; or (e) A distribution in dissolution that
requires approval of the outstanding shares, under section 2007 of that code.
2.5 Manner of Giving Notice: Affidavit of Notice
(1) Notice of any shareholder's meeting shall be given
either personally or by first-class mail or telegraphic or other written
communication, charges prepaid, addressed to the shareholder at the address of
that shareholder appearing on the corporation's books or given by the
shareholder to the corporation for the purposes of notice. If no address appears
on the corporation's books or has been given as specified above, notice shall
(a) sent by first-class mail addressed to the shareholder at the corporation's
principal executive office, or (b) published at least once in a newspaper of
general circulation in the county where the corporation's principal executive
office is located. Notice is deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of written
communication.
(2) If any notice or report mailed to a shareholder at
the address appearing on the corporation's books is returned marked to indicate
that the United States Postal Service is unable to deliver the document to the
shareholder at that address, all future notices or reports shall be deemed to
have been duly given without further mailing if the corporation holds the
document available for the shareholder on written demand at the corporation's
principal executive office for a period of one year from the date the notice or
report was given to all other shareholders.
(3) An affidavit of the mailing, or other means of giving
notice or delivering a document, of any notice of shareholders' meeting, report,
or other document sent to shareholders,
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may be executed by the corporation's secretary, assistant secretary, or transfer
agent, and shall be filed and maintained in the minute book of the corporation.
2.6 Quorum
The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. The shareholders present at
a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
2.7 Adjourned Meeting: Notice
(1) Any shareholders' meeting, annual or special, whether
or not a quorum is present, may be adjourned from time to time by the vote of
the majority of the shares represented at that meeting, either in person or by
proxy, but in the absence of a quorum, no other business may be transacted at
that meeting, except as provided in paragraph 2.6 of these bylaws.
(2) When any meeting of shareholders, either annual or
special, is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place are announced at a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than forty-five (45) days from the
date set for the original meeting, in which case the board of directors shall
set a new record date. Notice of any such adjourned meeting, if required, shall
be given to each shareholder of record entitled to vote at the adjourned meeting
in accordance with the provisions of paragraphs 2.4 and 2.5 of these bylaws. At
any adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
2.8 Voting
(1) The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of paragraph
2.11 of these bylaws, subject to the provisions of sections 702 to 704,
inclusive, of the Corporations Code of California (relating to voting shares
held by fiduciary, in the name of a corporation, or in joint ownership). The
shareholders' vote may be by voice vote or by ballot, provided, however, that
any election for directors must be by ballot if demanded by any shareholder
before the voting has begun. On any matter other than election of directors, any
shareholder may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal but, if the
shareholder fails to specify the number of shares that the shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares that the shareholder is entitled to vote. If
a quorum is present (or if a quorum has been present earlier at the meeting but
some shareholders have withdrawn), the affirmative vote of a majority of the
shares represented and voting, provided such shares voting affirmatively also
constitute a majority of the number of shares required for a quorum, shall be
the act of the shareholders unless the vote of a greater number or voting by
classes is required by law or by the articles of incorporation.
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(2) At a shareholders' meeting at which directors are to be
elected, no shareholder shall be entitled to cumulate votes (i.e., cast for any
candidate a number of votes greater than the number of votes which such
shareholder normally is entitled to cast), unless the candidates' names have
been placed in nomination before commencement of the voting and a shareholder
has given notice at the meeting, before the voting has begun, of the
shareholder's intention to cumulate votes. If any shareholder has given such a
notice, then all shareholders entitled to vote may cumulate votes for candidates
in nomination and give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to which that
shareholder's shares are normally entitled, or distribute the shareholder's
votes on the same principle among any or all of the candidates, as the
shareholder thinks fit. The candidates receiving the highest number of votes, up
to the number of directors to be elected, shall be elected.
2.9 Waiver of Notice or Consent by Absent Shareholders
(1) The transactions of any meeting of shareholders,
either annual or special, however called and noticed and wherever held, shall be
as valid as though they were had at a meeting duly held after regular call and
notice, if a quorum be present either in person or by proxy, and if each person
entitled to vote, who was not present in person or by proxy, either before or
after the meeting, signs a written waiver of notice or a consent to a holding of
the meeting or an approval of the minutes. The waiver of notice or consent need
not specify either the business to be transacted or the purpose of any annual or
special meeting of shareholders, except that if action is taken or proposed to
be taken for approval of any of those matters specified in section 601(f) of the
California Corporations Code, the waiver of notice or consent is required to
state the general nature of the action or proposed action. All waivers, consents
and approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
(2) A shareholder's attendance at a meeting also
constitutes a waiver of notice of that meeting, unless the shareholder at the
beginning of the meeting objects to the transaction of any business on the
ground that the meeting was not lawfully called or convened. In addition,
attendance at a meeting does not constitute a waiver of any right to object to
consideration of matters required by law to be included in the notice of the
meeting which were not so included, if that objection is expressly made at the
meeting.
2.10 Shareholder Action by Written Consent Without A Meeting
(1) Any action that could be taken at an annual or
special meeting of shareholders may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding shares having not less that the minimum number of
votes that would be necessary to authorize or take that action at a meeting at
which all shares entitled to vote on that action were present and voted.
(2) Directors may be elected by written consent of the
shareholders without a meeting only if the written consents of all outstanding
shares entitled to vote are obtained, except that vacancies on the board (other
than vacancies created by removal) not filled by the board may be filled by the
written consent of the holders of a majority of the outstanding shares entitled
to vote.
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(3) All consents shall be filed with the secretary of the
corporation and shall be maintained in the corporate records. Any shareholder or
other authorized person who has given a written consent may revoke it by a
writing received by the secretary of the corporation before written consents of
the number of shares required to authorize the proposed action have been filed
with the secretary.
(4) Unless the consents of all shareholders entitled to
vote have been solicited in writing, prompt notice shall be given of any
corporate action approved by the shareholders without a meeting less than
unanimous consent, to those shareholders entitled to vote who have not consented
in writing. As to approvals required by California Corporations Code section 310
(transactions in which a director has a financial interest), section 317
(indemnification of corporate agents), section 1201 (corporate reorganization),
or section 2007 (certain distributions on dissolution), notice of the approval
shall be given in the at least ten days before the consummation of any action
authorized by the approval. Notice shall be given in the manner specified in
paragraph 2.5.
2.11 Record Date for Shareholder Notice of Meeting, Voting, and
Giving Consent
(1) For purposes of determining the shareholders entitled
to receive notice of and vote at a shareholders' meeting or give written consent
to corporate action without a meeting, the board of directors may fix in advance
a record date that is not be more than sixty (60) days nor less than ten (10)
days before the date of any such meeting nor more than sixty (60) days before
any other action.
(2) If no record date is fixed: (a) The record date for
determining shareholders entitled to notice of or to vote at a shareholders'
meeting shall be the business day next preceding the day on which notice is
given, or if notice is waived as provided in paragraph 2.9 of these bylaws, the
business day next preceding the day on which the meeting is held. (b) The record
date for determining shareholders entitled to give consent to corporate action
in writing without a meeting, if no prior action has been taken by the board,
shall be the day on which the first consent is given. (c) The record date for
determining shareholders for any other purpose shall be as set forth in
paragraph 8.1 of these bylaws.
(3) A determination of shareholders of record entitled to
receive notice of and vote at a shareholders' meeting shall apply to any
adjournment of the meeting unless the board fixes a new record date for the
adjourned meeting. However, the board shall fix a new record date if the
adjournment is to a date more than forty-five (45) days after the date set for
the original meeting.
(4) Only shareholders of record on the corporation's
books at the close of business on the record date shall be entitled to any of
the notice and voting rights listed in paragraph 2.11(1), notwithstanding any
transfer of shares on the corporation's books after the record date, except as
otherwise required by law.
2.12 Proxies
Every person entitled to vote for directors or on any other
matter shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by
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the person and filed with the secretary of the corporation. A proxy shall be
deemed signed if the shareholder's name is placed on the proxy (whether by
manual signature, typewriting, telegraphic transmission, or otherwise) by the
shareholder or the shareholder's attorney in fact. A validly executed proxy that
does not state that it is irrevocable shall continue in full force and effect
unless (1) revoked by the person executing it, before the vote pursuant to that
proxy, by a writing delivered to the corporation stating that the proxy is
revoked, or by attendance at the meeting and voting in person by the person
executing the proxy or by a subsequent proxy executed by the same person and
presented at the meeting or (2) written notice of the death or incapacity of the
maker of the proxy is received by the corporation before the vote pursuant to
that proxy is counted; provided, however, that no proxy shall be valid after the
expiration of eleven (11) months from the date of the proxy, unless otherwise
provided in the proxy. The revocability of a proxy that states on its face that
it is irrevocable shall be governed by the provisions of the sections 705(e) and
705(f) of the Corporations Code of California.
2.13 Inspectors of Election
(1) Before any meeting of shareholders, the board of
directors may appoint any person other than nominees for the office to act as
inspectors of election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and on the request
of any shareholder or a shareholder's proxy shall, appoint inspectors of
election at the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder or a shareholder's proxy shall, appoint a person to
fill that vacancy.
(2) These inspectors shall: (a) Determine the number of
shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity, and effect
of proxies; (b) Receive votes, ballots, or consents; (c) Hear and determine all
challenges and questions in any way arising in connection with the right to
vote; (d) Count and tabulate all votes of consents; (e) Determine when the polls
shall close; (f) Determine the result; and (g) Do any other acts that may be
proper to conduct the election or vote with fairness to all shareholders.
Article III
Directors
3.1 Powers
Subject to the provisions of the California General
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors. Without prejudice to these general powers, and subject to
the same limitations, the directors shall have the power to:
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(1) Select and remove all officers, agents, and employees
of the corporation; prescribe any powers and duties for them that are consistent
with law, with the articles of incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service.
(2) Change the principal executive office or the
principal business office in the State of California from one location to
another; cause the corporation to be qualified to do business in any other
state, territory, dependency, or country and conduct business within or outside
the State of California; and designate any place within or outside the State of
California for holding of any shareholders' meeting or meetings, including
annual meetings.
(3) Adopt, make, and use a corporate seal; prescribe the
forms of certificates of stock; and alter the form of the seal and certificates.
(4) Authorize the issuance of shares of stock of the
corporation on any lawful terms, in consideration of money paid, labor done,
services actually rendered, debts or securities canceled, or tangible or
intangible property actually received.
(5) Borrow money and incur indebtedness on behalf of the
corporation, and cause to be executed and delivered for the corporation's
purposes, in the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations and other evidences of debt and
securities.
3.2 Number of Directors
The authorized number of directors shall be one (1), until
changed by a duly adopted amendment to the articles of incorporation or by an
amendment to this bylaw duly adopted by the vote or written consent of a
majority of the outstanding shares entitled to vote. However, an amendment that
would reduce the authorized number of directors to a number less than five (5)
cannot be adopted if the votes cast against its adoption at a shareholders'
meeting or the shares not consenting to an action by written consent, are equal
to more than one sixth (16-2/3) of the outstanding shares entitled to vote.
3.3 Election and Term of Office of Directors
Directors shall be elected at each annual meeting of the
shareholders to hold office until the next annual meeting. Each director,
including a director elected to fill a vacancy, shall hold office until the
expiration of the term for which elected and until a successor has been elected
and qualified. No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
3.4 Vacancies
(1) A vacancy in the board of directors shall be deemed
to exist (a) if a director dies, resigns, or is removed by the shareholders or
an appropriate court, as provided in sections 303 and 304 of the California
Corporations Code; (b) if the board of directors declares vacant the office of a
director who has been convicted of a felony or declared of unsound mind by an
order of court; (c) if the authorized number of directors is increased; or (d)
if at any
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shareholders' meeting at which one or more directors are elected the
shareholders fail to elect the full authorized number of directors to be voted
for at that meeting.
(2) Any director may resign effective on giving written
notice to the chairman of the board, the president, the secretary or the board
of directors, unless the notice specifies a later effective date. If the
resignation is effective at a future time, the board may elect a successor to
take office when the resignation becomes effective.
(3) Except for a vacancy caused by the removal of a
director, vacancies on the board may be filled by a majority of the directors
then in office, whether or not they constitute a quorum, or by a sole remaining
director. A vacancy on the board caused by the removal of a director may be
filled only by the shareholders, except that a vacancy created when the board
declares the office of a director vacant as provided in subparagraph (1) above
may be filled by the board of directors.
(4) The shareholders may elect a director at any time to
fill a vacancy not filled by the board of directors.
(5) The term of office of a director elected to fill a
vacancy shall run until the next annual meeting of the shareholders, and such a
director shall hold office until a successor is elected and qualified.
3.5 Place of Meetings; Telephone Meetings
Regular meetings of the board of directors may be held at any
place within or outside the State of California that has been designated from
time to time by resolution of the Board. In the absence of such a designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the board shall be held at any place within or
outside the State of California that has been designated in the notice of the
meeting or, if the notice does not state a place, or if there is no notice, at
the principal executive office of the corporation. Any meeting, regular or
special, may be held by conference telephone or similar communication equipment,
provided that all directors participating can hear one another, and all such
directors shall be deemed to be present in person at the meeting.
3.6 Annual Directors' Meeting
Immediately after each annual shareholders' meeting, the board
of directors shall hold a regular meeting at the same place, or at any other
place that has been designated by the board of directors, to consider matters of
organization, election of officers, and other business as desired. Notice of
this meeting shall not be required unless some place other than the place of the
annual shareholders' meeting has been designated.
3.7 Other Regular Meetings
Other regular meetings of the board of directors shall be held
without call at times to be fixed by the board of directors from time to time.
Such regular meetings may be held without notice.
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3.8 Special Meetings
(1) Special meetings of the board of directors may be
called for any purpose or purposes at any time by the chairman of the board or
the president, any vice president, the secretary or any two directors.
(2) Special meetings shall be held on four days' notice
by mail or forty-eight hours' notice delivered personally or by telephone or
telegraph. Oral notice given personally or by telephone may be transmitted
either to the director or to a person at the director's office who can
reasonably be expected to communicate it promptly to the director. Written
notice, if used, shall be addressed to each director at the address shown on the
corporation's records. The notice need not specify the purpose of the meeting,
nor need it specify the place if the meeting is to be held at the principal
executive office of the corporation.
3.9 Quorum
(1) A majority of the authorized number of directors
shall constitute a quorum for the transaction of business, except to adjourn as
provided in paragraph 3.11 of these bylaws. Every act or decision done or made
by a majority of the directors present at a meeting duly held at which a quorum
is present shall be regarded as the act of the board of directors, subject to
the provisions of section 310 of the Corporations Code of California (as to
approval of contracts of transactions in which a director has a direct or
indirect material financial interest), section 311 of that code (as to the
appointment of committees), and section 317(e) of that code (as to
indemnification of directors). A meeting at which a quorum is initially present
may continue to transact business notwithstanding the withdrawal of directors,
if any action taken is approved by at least a majority of the required quorum
for that meeting.
(2) Even though a quorum is initially present, if the
number of directors present at a meeting is reduced to less than a quorum by
withdrawal of directors, no further business except adjournment from time to
time may be transacted at the meeting until a quorum is present.
3.10 Waiver of Notice
Notice of a meeting, although otherwise required, need not be
given to any director who (a) either before or after the meeting signs a waiver
of notice or a consent to holding the meeting without being given notice, (b)
signs an approval of the minutes of the meeting, or (c) attends the meeting
without protesting the lack of notice before or at the beginning of the meeting.
Waivers of notice or consents need not specify the purpose of the meeting. All
waivers, consents, and approvals of the minutes shall be filed with the
corporate records or made a part of the minutes of the meeting.
3.11 Adjournment to Another Time or Place
Whether or not a quorum is present, a majority of the
directors present may adjourn any meeting to another time and place.
3.12 Notice of Adjourned Meeting
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Notice of the time and place of resuming a meeting that has
been adjourned need not be given unless the adjournment is for more than
twenty-four (24) hours, in which case notice shall be given, before the time set
for resuming the adjourned meeting, to the directors who were not present at the
time of the adjournment. Notice need not be given in any case to directors who
were present at the time of adjournment.
3.13 Action Without a Meeting
Any action required or permitted to be taken by the board of
directors may be taken without a meeting, if all members of the board of
directors shall individually or collectively consent in writing to that action.
Any action by written consent shall have the same force and effect as a
unanimous vote of the board of directors. All written consents shall be filed
with the minutes of the proceedings of the board of directors.
3.14 Fees and Compensations of Directors
Directors and members of committees of the board may be
compensated for their services, and shall be reimbursed for expenses, as fixed
or determined by resolution of the board of directors. This paragraph shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee, or otherwise, and receiving
compensation for these services.
Article IV
Committees
4.1 Executive and Other Committees of the Board
The board of directors may, by resolution adopted by a
majority of the authorized number of directors, designate an executive committee
or one or more committees, each consisting of two or more directors. The board
may designate one or more directors as alternate members of any committee, to
replace any absent member at a committee meeting. The appointment of committee
members or alternate members requires the vote of a majority of the authorized
number of directors. A committee may be granted any or all of the powers and
authority of the board, to the extent provided in the resolution of the board of
directors establishing the committee, except with respect to: (a) Approving any
action for which the California Corporations Code also requires the approval of
the shareholders or of the outstanding shares; (b) Filling vacancies on the
board of directors or any committee of the board; (c) Fixing directors'
compensation for serving on the board or a committee of the board; (d) Adopting,
amending, or repealing bylaws; (e) Amending or repealing any resolution of the
board of directors which by its express terms is not so amendable or repealable;
(f) Making distributions to shareholders, except at a rate or in a periodic
amount or within a price range determined by the board of directors; or (g)
Appointing other committees of the board or their members.
4.2 Meetings and Action of Committees
Meetings and action of committees shall be governed by, and
held and taken in accordance with, bylaw provisions applicable to meetings and
actions of the board of directors,
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as provided in paragraphs 3.5 (Place of Meetings; Telephone Meetings), 3.7
(Other Regular Meetings), 3.8 (Special Meetings), 3.9 (Quorum), 3.10 (Waiver of
Notice), 3.11 (Adjournment to Another Time or Place), 3.12 (Notice of Adjourned
Meeting) and 3.13 (Action Without a Meeting) of these bylaws, with such changes
in the context of those paragraphs as are necessary to substitute the committee
and its members for the board of directors and its members, except that, (a) the
time of regular meetings of committees may be determined either by resolution of
the board of directors or by resolution of the committee; (b) special meetings
of committees may also be called by resolution of the board of directors; and
(c) notice of special meetings of committees shall also be given to alternative
members who shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the governance of any committee not
inconsistent with the provisions of these bylaws.
Article V
Officers
5.1 Officers
The officers of the corporation shall be a president, a
secretary and a chief financial officer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice
presidents, one or more assistant secretaries, one or more assistant treasurers,
and such other officers as may be appointed in accordance with the provisions of
paragraph 5.3 of these bylaws. Any number of offices may be held by the same
person.
5.2 Election of Officers
The officers of the corporation, except for subordinate
officers appointed in accordance with the provisions of paragraph 5.3, shall be
chosen by the board of directors, and shall serve at the pleasure of the board
of directors.
5.3 Subordinate Officers
The board of directors may appoint, and may empower the
president to appoint other officers as required by the business of the
corporation, whose duties shall be as provided in the bylaws, or as determined
from time to time by the board of directors or the president.
5.4 Removal and Resignation of Officers
(1) Any officer chosen by the board of directors may be
removed at any time, with or without cause or notice, by the board of directors.
Subordinate officers appointed by persons other than the board under paragraph
5.3 may be removed at any time, with or without cause or notice, by the board of
directors or by the officer by whom appointed. Officers may be employed for a
specified term under a contract of employment if authorized by the board of
directors; such officers may be removed from office at any time under this
section, and shall have no claim against the corporation or individual officers
or board members because of the removal except any right to monetary
compensation to which the officer may be entitled under the contract of
employment.
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(2) Any officer may resign at any time by giving written
notice to the corporation. Resignations shall take effect on the date of receipt
of the notice, unless a later time is specified in the notice. Unless otherwise
specified in the notice, acceptance of the resignation is not necessary to make
it effective. Any resignation is without prejudice to the rights, if any, of the
corporation to monetary damages under any contract to which the officer is a
party.
5.5 Vacancies in Office
A vacancy in any office resulting from an officer's death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these bylaws for regular election or appointment to that
office.
5.6 Chairman of the Board
The board of directors shall elect a chairman who shall
preside, if present, at board meetings and shall exercise and perform such other
powers and duties as may be assigned from time to time by the board of
directors. If there is no president, the chairman of the board shall in addition
be the chief executive officer of the corporation and shall have the powers and
duties as set forth in paragraph 5.7 of these bylaws.
5.7 President
Except to the extent that the bylaws or the board of directors
assign specific powers and duties to the chairman of the board (if any), the
president shall be the corporation's general manager and chief executive officer
and, subject to the control of the board of directors, shall have general
supervision, direction, and control over the corporation's business and its
officers. The managerial powers and duties of the president shall include, but
are not limited to, all the general powers and duties of management usually
vested in the office of president of a corporation, and the president shall have
other powers and duties as prescribed by the board of directors or the bylaws.
The president shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board or if there is no chairman of the board,
shall also preside at meetings of the board of directors.
5.8 Vice Presidents
If desired, one or more vice presidents may be chosen by the
board of directors in accordance with the provisions for electing officers set
forth in paragraph 5.2. In the absence or disability of the president, the
president's duties and responsibilities shall be carried out by the highest
ranking available vice president if vice presidents are ranked, or if not by a
vice president designated by the board of directors. When so acting, a vice
president shall have all the powers of and be subject to all the restrictions on
the president. Vice presidents of the corporation shall have such other powers
and perform such other duties as prescribed from time to time by the board of
directors, the bylaws, or the president (or chairman of the board if there is no
president).
5.9 Secretary
(1) The secretary shall be present at all shareholders'
meetings and all board meetings and shall take the minutes of the meeting. If
the secretary is unable to be present, the
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secretary or the presiding officer of the meeting shall designate another person
to take the minutes of the meeting.
(2) The secretary shall keep, or cause to be kept, at the
principal executive office or such other place as designated by the board of
directors, a book of minutes of all meetings and actions of shareholders, of the
board of directors and committees of the board. The minutes of each meeting
shall state the time and place the meeting was held; whether it was regular or
special; if special how it was called or authorized; the names of directors
present at board or committee meetings; the number of shares present or
represented at shareholders' meetings; and an accurate account of the
proceedings.
(3) The secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's transfer agent
or registrar, a record or duplicate record of shareholders. This record shall
show the names of all shareholders and their addresses, the number and classes
of shares held by each, the number and date of share certificates issued to each
shareholder, and the number and date of cancellation of any certificates
surrendered for cancellation.
(4) The secretary shall give notice, or cause notice to
be given, of all shareholders' meetings, board meetings, and meetings of
committees of the board for which notice is required by statute or by the
bylaws. If the secretary or other person authorized by the secretary to give
notice fails to act, notice of any meeting may be given by any other officer of
the corporation.
(5) The secretary shall keep the seal of the corporation,
if any, in safe custody. The secretary shall have such other powers and perform
other duties as prescribed by the board of directors or by the bylaws.
5.10 Chief Financial Officer
(1) The chief financial officer shall keep or cause to be
kept adequate and correct books and records of accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings,
and shares. The books of account shall at all reasonable times be open to
inspection by any director.
(2) The chief financial officer shall (a) deposit
corporate funds and other valuables in the corporation's name and to its credit
with depositories designated by the board of directors; (b) make disbursements
of corporate funds as authorized by the board; (c) render a statement of the
corporation's financial condition and an account of all transactions conducted
as chief financial condition and an account of all transactions conducted as
chief financial officer whenever requested by the president or the board of
directors; (d) have other powers and perform other duties as prescribed by the
board of directors or the bylaws.
(3) Unless the board of directors has elected a separate
treasurer, the chief financial officer shall be deemed to be the treasurer for
the purposes of giving any reports or executing any certificates or other
documents.
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Article VI
Indemnification of Directors, Officers, Employees and Other Agents
6.1 Agents, Proceedings, and Expenses
For the purposes of this Article, "agent" means any person who
is or was a director, officer, employee, or other agent of this corporation, or
is or was serving at the request of this corporation as a director, officer,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or was a director, officer, employee,
or agent of a foreign or domestic corporation which was a predecessor
corporation of this corporation or of another enterprise at the request of such
predecessor corporation; "proceeding" means any threatened, pending, or
completed action or proceeding, whether civil, criminal, administrative, or
investigative; and "expenses" includes, without limitation, attorneys' fees and
any expenses of establishing a right to indemnification under paragraphs 6.4 or
6.5(c).
6.2 Actions Other Than by the Corporation
This corporation shall have the power to indemnify any person
who was or is a party, or is threatened to be made a party, to any proceeding
(other than an action by or in the right of this corporation to procure a
judgment in its favor) by reason of the fact that such person is or was an agent
of this corporation, against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with such proceeding if
that person acted in good faith and in a manner that the person reasonably
believed to be in the best interests of this corporation and, in the case of a
criminal proceeding, had no reasonable cause to believe the conduct of that
person was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner that the person reasonably believed to be in the best
interests of this corporation or that the person had reasonable cause to believe
that the person's conduct was not unlawful.
6.3 Actions by the Corporation
This corporation shall have the power to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending, or completed action by or in the right of this corporation to procure a
judgment in its favor by reason of the fact that such person is or was an agent
of this corporation, against expenses actually and reasonably incurred by such
person in connection with the defense or settlement of that action, if such
person acted in good faith, in a manner such person believed to be in the best
interests of this corporation and its shareholders. No indemnification shall be
made under this paragraph 6.3 for the following: (a) With respect to any claim,
issue or matter as to which such person has been adjudged to be liable to this
corporation in the performance of such person's duty to the corporation and its
shareholders, unless and only to the extent that the court in which such
proceeding is or was pending shall determine upon application that in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for expenses and then only to the extent that the court shall
determine; (b) Of amounts paid in settling or otherwise disposing of a pending
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action without court approval; (c) Of expenses incurred in defending a pending
action that is settled or otherwise disposed of without court approval.
6.4 Successful Defense by Agent
To the extent that an agent of this corporation has been
successful on the merits in defense of any proceeding referred to in paragraph
6.2 or 6.3, or in defense of any claim, issue, or matter therein, the agent
shall be indemnified against expenses actually and reasonably incurred by the
agent in connection therewith.
6.5 Required Approval
Except as provided in paragraph 6.4, any indemnification under
this section shall be made by the corporation only if authorized in the specific
case, upon a determination that indemnification of the agent is proper in the
circumstances because the agent has met the applicable standard of conduct set
forth in paragraph 6.2 or 6.3 by one of the following: (a) A majority vote of a
quorum consisting of directors who are not parties to such proceeding; (b) (i)
The affirmative vote of a majority of shares of this corporation entitled to
vote represented at a duly held meeting at which a quorum is present; or (ii)
the written consent of holders of a majority of the outstanding shares entitled
to vote (for purposes of this subparagraph 6.5(b), the shares owned by the
person to be indemnified shall not be considered outstanding or entitled to vote
thereon); or (c) The court in which the proceeding is or was pending, on
application made by this corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by this
corporation.
6.6 Advance of Expenses
Expenses incurred in defending any proceeding may be advanced
by the corporation before the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of the agent to repay such amounts if it shall
be determined ultimately that the agent is not entitled to be indemnified as
authorized in this Article.
6.7 Other Contractual Rights
Nothing contained in this Article shall affect any right to
indemnification to which persons other than directors and officers of this
corporation or any subsidiary hereof may be entitled by contract or otherwise.
6.8 Limitations
No indemnification or advance shall be made under this
Article, except as provided in paragraph 6.4 or 6.5(c), in any circumstance if
it appears:
(1) That it would be inconsistent with a provision of the
articles, bylaws, a resolution of the shareholders, or an agreement in effect at
the time of the accrual of the alleged cause of action asserted in the
proceeding in which expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification; or
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(2) That it would be inconsistent with any condition
expressly imposed by a court in approving settlement.
6.9 Insurance
If so decided by the board of directors, this corporation may
purchase and maintain insurance on behalf of any agent of the corporation
insuring against any liability asserted against or incurred by the agent in that
capacity or arising out of agent's status as such, whether or not this
corporation would have the power to indemnify the agent against that liability
under the provisions of this Article.
6.10 Fiduciaries of Corporate Employee Benefit Plan
This Article does not apply to any proceeding against any
trustee, investment manager, or other fiduciary of an employee benefit plan in
that person's capacity as such, even though that person may also be an agent of
the corporation. The corporation shall have the power to indemnify, and to
purchase and maintain insurance on behalf of any such trustee, investment
manager, or other fiduciary of any benefit plan for any or all of the directors,
officers, and employees of the corporation or any of its subsidiary or
affiliated corporations.
Article VII
Records and Reports
7.1 Maintenance of Shareholder Record and Inspection by
Shareholders
(1) The corporation shall keep at its principal executive
office, or at the office of its transfer agent or registrar, as determined by
resolution of the board of directors, a record of the names and addresses of all
shareholders and the number and class of shares held by each shareholder.
(2) A shareholder or shareholders of the corporation
holding at least five percent (5%) in the aggregate of the outstanding voting
shares of the corporation have the right to do either or both of the following:
(a) inspect and copy the records of the shareholders' names and addresses and
share holdings during usual business hours on five (5) days prior written demand
on the corporation, or (b) obtain from the corporation's transfer agent, on
written demand and on the tender of the agent's usual charges for this service,
a list of the names and addresses of shareholders who are entitled to vote for
the election of directors, and their share holdings, as of the most recent
record date for which a list has been compiled or as of a specific date later
than the date of demand. This list shall be made available within five (5) days
after (i) the date of demand, or (ii) the specified later date as of which the
list is to be compiled. The record of shareholders shall also be open to
inspection on the written demand of any shareholder or holder of a voting trust
certificate, at any time during usual business hours, for a purpose reasonably
related to the holder's interests as a shareholder or holder of a voting trust
certificate. Any inspection and copying under this section may be made in person
or by an agent or attorney of the shareholder or holder of a voting trust
certificate making the demand.
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7.2 Maintenance and Inspection of Bylaws
The corporation shall keep at its principal executive office,
or if its principal executive office is not in the State of California, at its
principal business office in this state, the original or a copy of the bylaws as
amended to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours. If the principal executive office of the
corporation has no principal business office in this state, the secretary shall,
upon the written request of any shareholder, furnish to that shareholder a copy
of the bylaws as amended to date.
7.3 Maintenance and Inspection of Minutes and Accounting Records
The minutes of proceedings of the shareholders, board of
directors, and committees of the board, and the accounting books and records
shall be kept at the principal executive office of the corporation, or at such
other place or places as designated by the board of directors. The minutes shall
be kept in written form and the accounting books and records shall be kept
either in written form or in a form capable of being converted into written
form. The minutes and accounting books and records shall be open to inspection
on the written demand of any shareholder or holder of a voting trust certificate
at any reasonable time during usual business hours, for a purpose reasonably
related to the holder's interests as a shareholder or holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney,
and shall include the right to copy and make extracts. These rights of
inspection shall include the right to copy and make extracts. These rights of
inspection shall extend to the records of each subsidiary of the corporation.
7.4 Inspection by Directors
Every director shall have the absolute right at any reasonable
time to inspect all books, records and documents of every kind and the physical
properties of the corporation and each of its subsidiary corporations. This
inspection by a director may be made in person or by an agent or attorney and
the right of inspection includes the right to copy and make extracts of
documents.
7.5 Annual Report to Shareholders
Inasmuch as, and for as long as, there are fewer than 100
shareholders, the requirement of an annual report to shareholders referred to in
section 1501 of the California Corporations Code is expressly waived. However,
nothing in this provision shall be interpreted as prohibiting the board of
directors from issuing annual or other periodic reports to the shareholders, as
the board considers appropriate.
7.6 Financial Statements
(1) The corporation shall keep a copy of each annual
financial statement, quarterly or other periodic income statement, and
accompanying balance sheets prepared by the corporation on file in the
corporation's principal executive office for thirty-six (36) months; these
documents shall be exhibited at all reasonable times, or copies provided, to any
shareholder on demand.
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(2) If no annual report for the last fiscal year has been
sent to shareholders, on written request of any shareholder made more than 120
days after the close of the fiscal year the corporation shall deliver or mail to
the shareholder, within thirty (30) days after receipt of the request, a balance
sheet as of the end of that fiscal year and an income statement and statement of
changes in financial position for that fiscal year.
(3) A shareholder or shareholders holding five percent
(5%) or more of the outstanding shares of any class of stock of the corporation
may request in writing an income statement of the corporation for the most
recent three-month, six-month, or nine-month period (ending more than thirty
(30) days before the date of the request) of the current fiscal year, and a
balance sheet of the corporation as of the end of that period. If such documents
are not already prepared, the chief financial officer shall cause them to be
prepared and shall deliver the documents personally or mail them to the
requesting shareholders within thirty (30) days after receipt of the request. A
balance sheet, income statement, and statement of changes in financial position
for the last fiscal year shall also be included, unless the corporation has sent
the shareholders an annual report for the last fiscal year.
(4) The quarterly income statements and balance sheets
referred to in this section shall be accompanied by the report, if any, of any
independent accountants engaged by the corporation or the certificate of an
authorized corporate officer stating that the financial statements were prepared
without audit from the corporation's books and records.
7.7 Annual Statement of General Information
(1) Every year, during the calendar month in which the
original articles of incorporation were filed with the California Secretary of
State, or during the preceding five calendar months, the corporation shall file
a statement with the Secretary of State on the prescribed form, setting forth
the authorized number of directors; the names and complete business or residence
addresses of all incumbent directors; the names and complete business or
residence addresses of the chief executive officer, the secretary, and the chief
financial officer; the street address of the corporation's principal executive
office or principal business office in this state; a statement of the general
type of business constituting the principal business activity of the
corporation; and a designation of the agent of the corporation for the purpose
of service of process, all in compliance with section 1502 of the Corporations
Code of California.
(2) Notwithstanding the provisions of subparagraph (1)
above, if there has been no change in the information contained in the
corporation's last annual statement on file in the Secretary of State's office,
the corporation may, in lieu of filing the annual statement described in
subparagraph (1) above, advise the Secretary of State on the appropriate form,
that no changes in the required information have occurred during the applicable
period.
Article VIII
General Corporate Matters
8.1 Record Date for Purposes Other Than Notice and Voting
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(1) For purposes of determining the shareholders entitled
to receive payment of any dividends or other distributions or allotment of
rights, or entitled to exercise any rights in respect of any other lawful action
(other than voting at and receiving notice of shareholders' meetings and giving
written consent of the shareholders without a meeting), the board of directors
may fix, in advance, a record date, which shall be not more than sixty (60) nor
less than ten (10) days before the date of the dividend payment, distribution,
allotment, or other action. If a record date is so fixed, only shareholders of
record at the close of business on that date shall be entitled to receive the
dividend, distribution, or allotment of rights, or to exercise the other rights,
as the case may be notwithstanding any transfer of shares on the corporation's
books after the record date, except as otherwise provided by statute.
(2) If the board of directors does not so fix a record
date in advance, the record date shall be at the close of business on the later
of (a) the day on which the board of directors adopts the applicable resolution
or (b) the sixtieth day before the date of the dividend payment, distribution,
allotment of rights or other action.
8.2 Authorized Signatories for Checks
All checks, drafts, or other orders for payment of money,
notes, or other evidences of indebtedness, issued in the name of or payable to
the corporation shall be signed or endorsed by such person or persons and in
such manner authorized from time to time by resolution of the board of
directors.
8.3 Executing Corporate Contracts and Instruments
Except as otherwise provided in the articles or in these
bylaws, the board of directors by resolution may authorize any officer,
officers, agent or agents, to enter into any contract or to execute any
instrument in the name of and on behalf of the corporation. This authority may
be general or it may be confined to one or more specific matters. No officer,
agent, employee, or other person purporting to act on behalf of the corporation
shall have any power or authority to bind the corporation in any way, to pledge
the corporation's credit, or to render the corporation liable for any purpose or
for any amount, unless that person was acting with authority duly granted by the
board of directors as provided in these bylaws, or unless an unauthorized act
was later ratified by the corporation.
8.4 Certificates for Shares
A certificate or certificates for shares of the capital stock
of the corporation shall be issued to each shareholder when any of these shares
are fully paid. In addition to certificates for fully paid shares, the board of
directors may authorize the issuance of certificates or shares as partly paid
and subject to call for the remainder of the purchase price, provided that the
certificates representing partly paid shares shall state the amount of the
consideration to be paid for the shares and the amount actually paid. All
certificates shall certify the number of shares and the class or series of
shares represented by the certificate. All certificates shall be signed in the
name of the corporation by (1) either the chairman of the board of directors,
the vice chairman of the board of director, the president or vice president and
(2) either the chief financial officer, any assistant treasurer, the secretary,
or any assistant secretary. Any or all of the
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signatures on the certificate may be facsimile. If any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed on a
certificate shall have ceased to be that officer, transfer agent, or registrar
before that certificate is issued, the certificate may be issued by the
corporation with the same effect as if that person where an officer, transfer
agent, or registrar at the date of issue.
8.5 Lost Certificates
Except as provided in this paragraph, no new certificates for
shares shall be issued to replace old certificates unless the old certificate is
surrendered to the corporation for cancellation at the same time. If the share
certificates or certificates for any other security have been lost, stolen, or
destroyed, the board of directors may authorize the issuance of replacement
certificates on terms and conditions as required by the board, which may include
a requirement that the owner give the corporation a bond (or other adequate
security) sufficient to indemnify the corporation against any claim that may be
made against it (including any expense or liability) on account of the alleged
loss, theft, or destruction of the old certificate or the issuance of the
replacement certificate.
8.6 Shares of Other Corporations: How Voted
Shares of other corporations standing in the name of this
corporation shall be voted by one of the following persons, listed in order of
preference: (1) chairman of the board, or person designated by the chairman of
the board (2) president, or person designated by the president, (3) first vice
president, or person designated by the first vice president, (4) other person
designated by the board of directors. The authority to vote shares granted by
this section includes the authority to execute a proxy in the name of the
corporation for purposes of voting the shares.
8.7 Reimbursement of Corporation if Payment Not Tax Deductible
If all or part of the compensation, including expenses .paid
by the corporation to a director, officer, employee, or agent is finally
determined not to be allowable to the corporation as a federal or state income
tax deduction, the director, officer, employee, or agent to whom the payment was
made shall repay to the corporation the amount disallowed. The board of
directors shall enforce repayment of each such amount disallowed by the taxing
authorities.
8.8 Construction and Definitions
Unless the context requires otherwise, the general provisions,
rules of construction, and definitions in sections 100 through 195 of the
California Corporations Code shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
Article IX
Amendments
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9.1 Amendment by Board of Directors or Shareholders
Except as otherwise required by law or by the articles of
incorporation, these bylaws may be amended or repealed, and new bylaws may be
adopted, by the board of directors or by the holders of a majority of the
outstanding shares entitled to vote.
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Certificate of Adoption of Bylaws
I, Shariar Moghaddam, the duly appointed, qualified and acting
secretary of Applied Surface Technology, Inc. (the corporation), a California
corporation, declare that the foregoing document is a certified copy of the
bylaws of the corporation. These bylaws were duly adopted by the directors of
the corporation on December 21, 1994, at a meeting of the directors duly held
and constituted and are now in full force and effect without change.
Executed on December 21, 1994, at San Mateo, California.
/s/ Shariar Moghaddam
----------------------------
Secretary of the Corporation