BY-LAWS
OF
SUPERTEX, INC.
ARTICLE I
CORPORATE OFFICES
1.1 PRINCIPAL OFFICE.
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 such state, and the
corporation has one or more business offices in such state, the
board of directors shall fix and designate a principal business
office in the State of California.
1.2 OTHER OFFICES.
The board of directors may at any time
establish branch or subordinate offices at any place or places
where the corporation is qualified to do business.
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,
shareholders' meetings shall be held at the principal executive
office of the corporation.
2.2 ANNUAL MEETING.
The annual meeting of shareholders shall be
held each year on a date and at a time designated by the board
of directors. In the absence of such designation, the annual
meeting of shareholders shall be held on the first Saturday of
July in each year at 10:00 a.m. However, if such 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 the
meeting, directors shall be elected, and any other proper
business may be transacted.
2.3 SPECIAL MEETING.
A special meeting of the shareholders may be
called at any time by the board of directors, or by the chairman
of the board, or by the president, or by one or more
shareholders holding shares in the aggregate entitled to cast not
less than ten percent (10%) of the votes at that meeting.
If a special meeting is called by any person
or persons other than the board of directors, the request shall be
in writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic
or other facsimile transmission to the chairman of the board, the
president, any vice president or the secretary of the corporation.
The officer receiving the request shall cause notice to be
promptly given to the shareholders entitled to vote, in
accordance with the provisions of Sections 2.4 and 2.5 of these
by-laws, that a meeting will be held at the time requested by the
person or persons calling the meeting, not less than thirty-five
(35) nor more than sixty (60) days after the receipt of the
request. If the 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 of this Section 2.3 shall be construed as limiting,
fixing or affecting the time when a meeting of shareholders
called by action of the board of directors may be held.
2.4 NOTICE OF SHAREHOLDERS' MEETINGS.
All notices of meetings of shareholders shall
be sent or otherwise given in accordance with Section 2.5 of
these by-laws not less than ten (10) nor more than sixty (60)
days before the date of the meeting. The notice shall specify the
place, date and hour of the meeting and (i) in the case of a
special meeting, the general nature of the business to be
transacted (no business other than that specified in the notice
may be transacted) or (ii) in the case of the annual meeting,
those matters which the board of directors, at the time of giving
the notice, intends to present for action by the shareholders.
The notice of any meeting at which directors are to be elected
shall include the name of any nominee or nominees whom, at
the time of the notice, management intends to present for
election.
If action is proposed to be taken at any
meeting for approval of (i) a contract or transaction in which a
director has a direct or indirect financial interest, pursuant to
Section 310 of the Corporations Code of California (the
"Code"), (ii) an amendment of the articles of incorporation,
pursuant to Section 902 of the Code, (iii) a reorganization of the
corporation, pursuant to Section 201 of the Code, (iv) a
voluntary dissolution of the corporation, pursuant to
Section 1900 of the Code, or (v) a distribution in dissolution
other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of the Code, the notice shall
also state the general nature of that proposal.
2.5 MANNER OF GIVING NOTICE;AFFIDAVIT OF NOTICE.
Notice of any meeting of shareholders 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 books of the corporation or given by the shareholder to the
corporation for the purpose of notice. If no such address
appears on the corporation books or is given, notice shall be
deemed to have been given if sent to that shareholder by
first-class mail or telegraphic or other written communication to
the corporation's principal executive office, or if published at
least once in a newspaper of general circulation in the county
where that office is located. Notice shall be deemed to have
been given at the time when delivered personally or deposited
in the mail or sent by telegram or other means of written
communication.
If any notice addressed to a shareholder at the
address of that shareholder appearing on the books of the
corporation is returned to the corporation by the United States
Postal Service marked to indicate that the United States postal
Service is unable to deliver the notice to the shareholder at that
address, all future notices or reports shall be deemed to have
been duly given without further mailing if the same shall be
available to the shareholder on written demand of the
shareholder at the principal executive office of the corporation
for a period of one (1) year from the date of the giving of the
notice.
An affidavit of the mailing or other means of
giving any notice of any shareholders' meeting, executed by the
secretary, assistant secretary or any transfer agent of the
corporation giving the notice, shall be prima facie evidence of
the giving of such notice.
2.6 QUORUM.
The presence in person or by proxy of the
holders of a majority of the shares entitled to vote thereat
constitutes a quorum for the transaction of business at all
meetings of shareholders. 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.
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 Section 2.6 of these
by-laws.
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 the 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 notice
of the adjourned meeting shall be given. Notice of any such
adjourned meeting shall be given to each shareholder of record
entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 2.4 and 2.5 of these by-laws. At any
adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting.
2.8 VOTING.
The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance with
the provisions of Section 2.11 of these by-laws. subject to the
provisions of Sections 702 to 704, inclusive, of the Code
(relating to voting shares held by a 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 the election of
directors, any share- holder 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 which the shareholder is voting
affirmatively, it will be conclusively presumed that the
shareholder's approving vote is with respect to all shares which
the shareholder is entitled to vote.
If a quorum is present, the affirmative vote of
the majority of the shares represented and voting at a duly-held
meeting (which shares voting affirmatively also constitute at
least a majority of the required quorum) shall be the act of the
shareholders, unless the vote of a greater number, or voting by
classes, is required by the Code or by the articles of
incorporation.
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 prior to commencement of the voting and a
shareholder has given notice prior to commencement of the
voting of the shareholder's intention to cumulate votes. If any
shareholder has given such a notice, then every shareholder
entitled to vote may cumulate votes for candidates placed 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 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 VALIDATION OF MEETINGS: WAIVER OF NOTICE; CONSENT.
The transactions of any meeting of
shareholders, either annual or special, however called and
noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be
present either in person or by proxy, and if, either before or
after the meeting, each person entitled to vote, who was not
present in person or by proxy, signs a written waiver of notice
or a consent to the holding of the meeting or an approval of the
minutes thereof. 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 the second paragraph of Section 2.4
of these by-laws, the waiver of notice or consent shall state the
general nature of the proposal. All such waivers, consents and
approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
Attendance by a person at a meeting shall
also constitute a waiver of notice of that meeting, except when
the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is
not a waiver of any right to object to the consideration of a
matter not included in the notice of the meeting, if that objection
is expressly made at the meeting.
2.10 SHAREHOLDER ACTION BY WRITTEN
CONSENT WITHOUT A MEETING.
Any action which may be taken at any 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 than 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.
In the case of election of directors, such a
consent shall be effective only if signed by the holders of all
outstanding shares entitled to vote for the election of directors.
All such consents shall be maintained in the
corporate records. Any shareholder giving a written consent, or
the shareholder's proxy holders, or a transferee of the shares, or
a personal representative of the shareholder, or their respective
proxy holders, may revoke the consent 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.
If the consents of all shareholders entitled to
vote have not been solicited in writing, and if the unanimous
written consent of all such shareholders shall not have been
received, the secretary shall give prompt notice of the corporate
action approved by the shareholders without a meeting. Such
notice shall be given in the manner specified in Section 2.5 of
these by-laws. In the case of approval of (i) a contract or
transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the Code,
(ii) indemnification of a corporate "agent", pursuant to
Section 317 of the Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of the Code, and (iv) a
distribution in dissolution other than in accordance with the
rights of outstanding preferred shares, pursuant to Section 2007
of the Code, the notice shall be given at least ten (10) days
before the consummation of any action authorized by that
approval.
2.11 RECORD DATE FOR SHAREHOLDER
NOTICE, VOTING AND GIVING
CONSENTS.
For purposes of determining the shareholders
entitled to notice of any meeting or to vote thereat or entitled to
give consent to corporate action without a meeting, the board of
directors may fix, in advance, a record date, which shall 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 such action without a meeting, and in such event only
shareholders of record on the date so fixed are entitled to notice
and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided
in the Code.
If the board of directors does not so fix a
record date:
(a) the record date for determining
shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business
day next preceding the day on which notice is given or, if notice
is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(b) the record date for determining
shareholders entitled to give consent to corporate action in
writing without a meeting, (i) when no prior action by the board
has been taken, shall be the day on which the first written
consent is given or (ii) when prior action by the board has been
taken, shall be the day on which the board adopts the resolution
relating to that action, or the sixtieth (60th) day before the date
of such other action, whichever is later.
The record date for any other purpose shall
be as provided in Article VIII of these by-laws.
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 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 which does not state that it is irrevocable
shall continue in full force and effect unless (i) 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 a subsequent proxy executed by the person
executing the prior proxy and presented to the meeting, or as to
any meeting by attendance at such meeting and voting in person
by the person executing the proxy or (ii) written notice of the
death or incapacity of the maker of that 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 Sections 705 (e) and 705(f) of
the Code.
2.13 INSPECTORS OF ELECTION.
Before any meeting of shareholders, the
board of directors may appoint an inspector or inspectors of
election to act at the meeting or its adjournment. If no inspector
of election is so appointed, the chairman of the meeting may,
and on the request of any shareholder or a shareholder's proxy
shall, appoint an inspector or inspectors of election to act at the
meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting pursuant to
the request of one (1) 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.
Such inspectors shall:
(a) Determine the number of shares
outstanding and the voting power of each, the number of 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 or 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 Code and any
limitations in the articles of incorporation and these by-laws
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.
3.2 NUMBER AND QUALIFICATION OF DIRECTORS.
The number of directors of the corporation
shall not be less than five (5) nor more than seven (7). The
exact number of directors shall be five (5) until changed, within
the limits specified above, by a by-law amending this
Section 3.2, duly adopted by the board of directors or by the
shareholders. The indefinite number of directors may be
changed, or a definite number fixed without provision for an
indefinite number, by a duly adopted amendment to the articles
of incorporation or by an amendment to this by-law duly
adopted by the vote or written consent of holders of a majority
of the outstanding shares entitled to vote; provided, however,
that an amendment reducing the number or the minimum
number of directors to a number less than five (5) cannot be
adopted if the votes cast against its adoption at a meeting of the
shareholders, or the shares not consenting in the case of action
by written consent, are equal to more than sixteen and two-thirds
percent (16-2/3%) of the outstanding shares entitled to
vote thereon. No amendment may change the stated maximum
number of authorized directors to a number greater than two (2)
times the stated minimum number of directors minus one (1).
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual
meeting of shareholders to hold office until the next such 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.
3.4 VACANCIES.
Vacancies in the board of directors may be
filled by a majority of the remaining directors, though less than
a quorum, or by a sole remaining director, except that a vacancy
created by the removal of a director by the vote or written
consent of the share- holders or by court order may be filled
only by the vote of a majority of the outstanding shares entitled
to vote thereon represented at a duly held meeting at which a
quorum is present, or by the written consent of holders of a
majority of the outstanding shares entitled to vote thereon.
Each director so elected shall hold office until the next annual
meeting of the shareholders and until a successor has been
elected and qualified.
A vacancy or vacancies in the board of
directors shall be deemed to exist in the event of the death,
resignation or removal of any director, or if the board of
directors by resolution declares vacant the office of a director
who has been declared of unsound mind by an order of court or
convicted of a felony, or if the authorized number of directors is
increased, or if the shareholders fail, at any meeting of
shareholders at which any director or directors are elected, to
elect the number of directors to be elected at that meeting.
The shareholders may elect a director or
directors at any time to fill any vacancy or vacancies not filled
by the directors, but any such election ether than to fill a
vacancy created by removal, if by written consent, shall require
the consent of the holders of a majority of the outstanding
shares entitled to vote thereon.
Any director may design 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 time for that resignation to become effective. If the
resignation of a director is effective at a future time, the board
of directors may elect a successor to take office when the
resignation becomes effective.
No reduction of the authorized number of
directors shall have the effect of removing any director before
that director's term of office expires.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
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 may be held
at any place within or outside the State of California that has
been designated in the notice of the meeting or, if not stated in
the notice 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,
so long as all directors participating in the meeting can hear one
another; and all such directors shall be deemed to be present in
person at the meeting.
3.6 REGULAR MEETINGS.
Regular meetings of the board of directors
may be held without notice if the times of such meetings are
fixed by the board of directors.
3.7 SPECIAL MEETINGS.
Special meetings of the board of directors for
any purpose or purposes may be called at any time by the
chairman of the board, the president, any vice president, the
secretary or any two directors.
Notice of the time and place of special
meetings shall be delivered personally or by telephone to each
director or sent by first-class mail or telegram, charges prepaid,
addressed to each director at that director's address as it is
shown on the records of the corporation. If the notice is mailed,
it shall be deposited in the United States mail at least four (4)
days before the time of the holding of the meeting. If the notice
is delivered personally, or by telephone or telegram, it shall be
delivered personally or by telephone or to the telegraph
company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the director or to a
person at the office of the director who the person giving the
notice has reason to believe will promptly communicate it to the
director. The notice need not specify the purpose or the place
of the meeting, if the meeting is to be held at the principal
executive office of the corporation.
3.8 QUORUM.
A majority of the authorized number of
directors shall constitute a quorum for the transaction of
business, except to adjourn as provided in Section 3.10 of these
by-laws. Every act or decision done or made by a majority of
the directors present at a duly held meeting 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 Code (as to
approval of contracts or transactions in which a director has a
direct or indirect material financial interest), Section 311 of the
Code (as to appointment of committees) and Section 317(e) of
the 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.
3.9 WAIVER OF NOTICE.
The transactions of any meeting of the board
of directors, however called and noticed or wherever held, shall
be as valid as though had at a meeting duly held after regular
call and notice if a quorum is present and if, either before or
after the meeting, each of the directors not present signs a
written waiver of notice, a consent to holding the meeting or an
approval of the minutes thereof. The waiver of notice or
consent need not specify the purpose of the meeting. All such
waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Notice of a meeting shall also be deemed given to any director
who attends the meeting without protesting, before or at its
commencement, the lack of notice to that director.
3.10 ADJOURNMENT.
A majority of the directors present, whether
or not constituting a quorum, may adjourn any meeting to
another time and place.
3.11 NOTICE OF ADJOURNMENT.
Notice of the time and place of holding an
adjourned meeting need not by given, unless the meeting is
adjourned for more than twenty-four (24) hours, in which case
notice of the time and place shall be given before the time of the
adjourned meeting, in the manner specified in Section 3.7 of
these by-laws, to the directors who were not present at the time
of the adjournment.
3.12 ACTION WITHOUT 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 shall individually or collectively consent
in writing to that action. Such action by written consent shall
have the same force and effect as a unanimous vote of the board
of directors. Such written consent and any counterparts thereof
shall be filed with the minutes of the proceedings of the board.
3.13 FEES AND COMPENSATION OF DIRECTORS.
Directors and members of committees may
receive such compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by
resolution of the board of directors. This Section 3.13 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 those services.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS.
The board of directors may, by resolution
adopted by a majority of the authorized number of directors,
designate one (1) or more committees, each consisting of two or
more directors, to serve at the pleasure of the board. The board
may designate one (1) or more directors as alternate members
of any committee, who may replace any absent member at any
meeting of the committee. The appointment of members or
alternate members of a committee requires the vote of a
majority of the authorized number of directors. Any committee,
to the extent provided in the resolution of the board, shall have
all the authority of the board, except with respect to:
(a) the approval of any action which,
under the Code, also requires shareholders' approval or
approval of the outstanding shares;
(b) the filling of vacancies in the board
of directors or in any committee;
(c) the fixing of compensation of the
directors for serving on the board or any committee;
(d) the amendment or repeal of these
by-laws or the adoption of new by-laws;
(e) the amendment or repeal of any
resolution of the board of directors which by its express terms is
not so amendable or repealable;
(f) a distribution to the shareholders of
the corporation, except at a rate or in a periodic amount or
within a price range determined by the board of directors; or
(g) the appointment of any other
committees of the board of directors or the members of such
committees.
4.2 MEETINGS AND ACTION OF COMMITTEES.
Meetings and actions of committees shall be
governed by, and held and taken in accordance with, the
provisions of Article III of these by-laws, Section 3.5 (place of
meetings), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9
(waiver of notice), Section 3.10 (adjournment), Section 3.11
(notice of adjournment) and Section 3.12 (action without
meeting), with such changes in the context of those by-laws as
are necessary to substitute the committee and its members for
the board of directors and its members, except that the time of
regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the
committee; special meetings of committees may also be called
by resolution of the board of directors; and notice of special
meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the
committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the
provisions of these by-laws.
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 Section 5.3 of these by-laws.
Any number of offices may be held by the same person.
5.2 ELECTION OF OFFICERS.
The officers of the corporation, except such
officers as may be appointed in accordance with the provisions
of Section 5.3 or Section 5.5 of these by-laws, shall be chosen
by the board, subject to the rights, if any, of an officer under any
contract of employment.
5.3 SUBORDINATE OFFICERS.
The board of directors may appoint, or may
empower the president to appoint, such other officers as the
business of the corporation may require, each of whom shall
hold office for such period, have such authority and perform
such duties as are provided in these by-laws or as the board of
directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer
under any contract of employment, any officer may be removed,
either with or without cause, by the board of directors at any
regular or special meeting of the board or, except in case of an
officer chosen by the board of directors, by any officer upon
whom such power of removal may be conferred by the board of
directors.
Any officer may resign at any time by giving
written notice to the corporation. Any resignation shall take
effect at the date of the receipt of that notice or at any later time
specified in that notice; and, unless otherwise specified in that
notice, the acceptance of the resignation shall not be necessary
to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the
officer is a party.
5.5 VACANCIES IN OFFICES.
A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall
be filled in the manner prescribed in these by-laws for regular
appointments to that office.
5.6 CHAIRMAN OF THE BOARD.
The chairman of the board, if such an officer
be elected, shall, if present, preside at 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 by-laws. If there is no
president, the chairman of the board shall also be the chief
executive officer of the corporation and shall have the powers
and duties prescribed in Section 5.7 of these by-laws.
5.7 PRESIDENT.
Subject to such supervisory powers, if any,
as may be given by the board of directors to the chairman of the
board, if there be such an officer, the president shall be the chief
executive officer of the corporation and shall, subject to the
control of the board of directors, have general supervision,
direction and control of the business and the officers of the
corporation. He shall preside at all meetings of the
shareholders and, in the absence of the chairman of the board,
or if there be none, at all meetings of the board of directors. He
shall have the general powers and duties of management usually
vested in the office of president of a corporation, and shall have
such other powers and duties as may be prescribed by the board
of directors or these by-laws.
5.8 VICE PRESIDENTS.
In the absence or disability of the president,
the vice presidents, if any, in order of their rank as fixed by the
board of directors or, if not ranked, a vice president designated
by the board of directors, shall perform all the duties of the
president and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the president. The vice
presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them
respectively by the board of directors, these by-laws, the
president or the chairman of the board.
5.9 SECRETARY.
The secretary shall keep or cause to be kept,
at the principal executive office of the corporation, or such
other place as the board of directors may direct, a book of
minutes of all meetings and actions of directors, committees of
directors, and shareholders, with the time and place of holding,
whether regular or special (and, if special, how authorized and
the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present
or represented at shareholders' meetings, and the proceedings
thereof.
The secretary shall keep, or cause to be kept,
at the principal executive office of the corporation or at the
office of the corporation's transfer agent or registrar, as
determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of all
shareholders and their addresses, the number and classes of
shares held by each, the number and date of certificates
evidencing such shares, and the number and date of cancellation
of every certificate surrendered for cancellation.
The secretary shall give, or cause to be
given, notice of all meetings of the shareholders and of the
board of directors required by these by-laws or by law to be
given, and he shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and
perform such other duties as may be prescribed by the board of
directors or by these by-laws.
5.10 CHIEF FINANCIAL OFFICER.
The chief financial officer shall keep and
maintain, or cause to be kept and maintained, 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.
The chief financial officer shall deposit all
money and other valuables in the name and to the credit of the
corporation with such depositaries as may be designated by the
board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall
render to the president and directors, whenever they request it,
an account of all of his transactions as chief financial officer and
of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be
prescribed by the board of directors or these by-laws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, AND OFFICERS, EMPLOYEES
AND OTHER AGENTS
The corporation shall, to the maximum extent and in
the manner permitted by the Code, indemnify each of its agents
against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with
any proceeding arising by reason of the fact any such person is
or was an agent of the corporation. For purposes of this
Article VI, an "agent" of the corporation includes any person
who is or was a director, officer, employee or other agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
or was a director, officer, employee or agent of a corporation
which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor
corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER.
The corporation shall keep at its principal
executive office, or at the office of its transfer agent or registrar,
if either be appointed and as determined by resolution of the
board of directors, a record of its shareholders, giving the
names and addresses of all shareholders and the number and
class of shares held by each shareholder.
A shareholder or shareholders of the
corporation holding at least five percent (5%) in the aggregate
of the outstanding voting shares of the corporation or who holds
at least one percent (1%) of such voting shares and has filed a
Schedule 14B with the Securities and Exchange Commission
relating to the election of directors, may (i) inspect and copy the
records of shareholders' names and addresses and shareholdings
during usual business hours on five (5) days' prior written
demand on the corporation, (ii) obtain from the transfer agent of
the corporation, on written demand and on the tender of such
transfer agent's usual charges for such list, a list of the names
and addresses of the shareholders who are entitled to vote for
the election of directors, and their shareholdings, as of the most
recent record date for which that list has been compiled or as of
a date specified by the shareholder after the date of demand.
Such list shall be made available to any such shareholder by the
transfer agent on or before the later of five (5) days after the
demand is received or five (5) days after the date specified in
the demand as the 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 as the holder of a voting trust
certificate.
Any inspection and copying under this
Section 7.1 may be made in person or by an agent or attorney of
the shareholder or holder of a voting trust certificate making the
demand.
7.2 MAINTENANCE AND INSPECTION OF BY-LAWS.
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 such state,
the original or a copy of these by-laws as amended to date,
which by-laws shall be open to inspection by the shareholders
at all reasonable times during office hours. If the principal
executive office of the corporation is outside the State of
California and the corporation has no principal business office
in such state, the secretary shall, upon the written request of any
shareholder, furnish to that shareholder a copy of these by-laws
as amended to date.
7.3 MAINTENANCE AND INSPECTION OF
OTHER CORPORATE RECORDS.
The accounting books and records, and the
minutes of proceedings of the shareholders and the board of
directors and any committee or committees of the board of
directors, shall be kept at such place or places designated by the
board of directors or, in absence of such designation, at the
principal executive office of the corporation. The minutes shall
be kept in written form and the accounting books and records
shall be kept either in written form or in any other form capable
of being converted into written form.
The minutes and accounting books and
records shall be open to inspection upon 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 as
the 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. Such rights of inspection shall
extend to the records of each subsidiary corporation 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. Such
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; WAIVER.
The board of directors shall cause an annual
report to be sent to the shareholders not later than one hundred
twenty (120) days after the close of the fiscal year adopted by
the corporation. Such report shall be sent at least fifteen (15)
days before the annual meeting of shareholders to be held
during the next fiscal year and in the manner specified in
Section 2.5 of these by-laws for giving notice to shareholders of
the corporation.
The annual report shall contain a balance
sheet as of the end of the fiscal year and an income statement
and statement of changes in financial position for the fiscal year,
accompanied by any report of independent accountants or, if
there is no such report, the certificate of an authorized officer of
the corporation that the statements were prepared without audit
from the books and records of the corporation.
The foregoing requirement of an annual
report shall be waived so long as the shares of the corporation
are held by less than one hundred (100) holders of record.
7.6 FINANCIAL STATEMENTS.
A copy of any annual financial statement and
any income statement of the corporation for each quarterly
period of each fiscal year, and any accompanying balance sheet
of the corporation as of the end of each such period, that has
been prepared by the corporation shall be kept on file in the
principal executive office of the corporation for twelve (12)
months; and each such statement shall be exhibited at all
reasonable times to any shareholder Demanding an examination
of any such statement or a copy shall be mailed to any such
shareholder.
If a shareholder or shareholders holding at
least five percent (5%) of the outstanding shares of any class of
stock of the corporation makes a written request to the
corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the then
current fiscal year ended more than thirty (30) days before the
date of the request, and for a balance sheet of the corporation as
of the end of that period, the chief financial officer shall cause
that statement to be prepared, if not already prepared, and shall
deliver personally or mail that statement or statements to the
person making the request within thirty (30) days after the
receipt of the request. If the corporation has not sent to the
shareholders its annual report for the last fiscal year, such report
shall likewise be delivered or mailed to the shareholder or
shareholders within thirty (30) days after the request.
The corporation shall also, on the written
request of any shareholder, mail to the shareholder a copy of the
last annual, semi-annual or quarterly income statement which it
has prepared, and a balance sheet as of the end of that period.
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 officer of the
corporation that the financial statements were prepared without
audit from the books and records of the corporation.
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING.
For purposes of determining the shareholders
entitled to receive payment of any dividend or other distribution
or allotment of any rights or entitled to exercise any rights in
respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the board
of directors may fix, in advance, a record date, which shall not
be more than sixty (60) days before any such action, and in that
case only shareholders of record at the close of business on the
date so fixed are entitled to receive the dividend, distribution or
allotment of rights, or to exercise such rights, as the case may
be, notwithstanding any transfer of any shares on the books of
the corporation after the record date so fixed, except as
otherwise provided in the Code.
If the board of directors does not so fix a record date,
the record date for determining shareholders for any such
purpose shall be at the close of business on the day on which
the board adopts the applicable resolution or the sixtieth (60th)
day before the date of that action, whichever is later.
8.2 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS.
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 as, from time to time, shall be determined by resolution
of the board of directors.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED.
The board of directors, except as otherwise
provided in these by-laws, may authorize any officer or officers,
or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances;
and, unless so authorized or ratified by the board of directors or
within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
8.4 CERTIFICATES FOR SHARES.
A certificate or certificates for shares of the
corporation shall be issued to each shareholder when any of
such shares are fully paid, and the board of directors may
authorize the issuance of certificates or shares as partly paid
provided that these certificates shall state the amount of the
consideration to be paid for them and the amount paid. All
certificates shall be signed in the name of the corporation by the
chairman of the board or vice chairman of the board or the
president or a vice president and by the chief financial officer or
an assistant treasurer or the secretary or an assistant secretary,
certifying the number of shares and the class or series of shares
owned by the shareholders. Any or all of the signatures on the
certificate may be facsimile.
In case 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, it may be issued by the
corporation with the same effect as if that person were an
officer, transfer agent or registrar at the date of issue.
8.5 LOST CERTIFICATES.
Except as provided in this Section 8.5, no
new certificates for shares shall be issued to replace a
previously issued certificate unless the latter is surrendered to
the corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for any
other security is lost, stolen or destroyed, authorize the issuance
of replacement certificates on such terms and conditions as the
board may require, including provision for indemnification of
the corporation secured by a bond or other adequate security
sufficient to protect 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 certificate
or the issuance of the replacement certificate.
8.6 CONSTRUCTION AND DEFINITIONS.
Unless the context requires otherwise, the
general provision, rules of construction and definitions in the
Code shall govern the construction of these by-laws. Without
limiting the generality of this provisions 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
9.1 AMENDMENT BY SHAREHOLDERS.
New by-laws may be adopted or these
by-laws may be amended or repealed by the vote or written
consent of holders of a majority of the outstanding shares
entitled to vote; provided, however, that if the articles of
incorporation of the corporation set forth the number of
authorized directors of the corporation, the authorized number
of directors may be changed only by an amendment as required
by applicable law.
9.2 AMENDMENT OF DIRECTORS.
Subject to the rights of the shareholders as
provided in Section 9.1 of these by-laws, by-laws, other than a
by-law or an amendment of a by-law changing the authorized
number of directors (except to fix the authorized number of
directors pursuant to a by-law providing for a variable number
of directors), may be adopted, amended, or repealed by the
board of directors.
CERTIFICATE BY SECRETARY
The undersigned hereby certifies that he is the duly
elected, qualified, and acting Secretary of Supertex, Inc. and
that the foregoing Bylaws, comprising twenty pages, constitute
the Bylaws of this corporation as originally adopted and
subsequently amended through this date.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and affixed the corporate seal this 9th day of June, 1995.
Benedict C.K. Choy
Benedict C.K. Choy, Secretary