As filed with the Securities and Exchange Commission on September 1, 1995
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUPERTEX, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-2328535
(State of incorporation)(IRS Employer Identification No.)
1225 Bordeaux Drive
Sunnyvale, California 94088-3607
(Address of principal executive offices)
1991 Stock Option Plan
(Full Title of the Plan)
HENRY C. PAO
President
SUPERTEX, INC.
1225 Bordeaux Drive
Sunnyvale, California 94088-3607
(Name and address of agent for service)
(408) 744-0100
(Telephone number, including area code, of agent for service)
Copies to:
THOMAS C. DEFILIPPS, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Proposed Maximum Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
_________________________ ____________ ________________ ______________
____________
<S> <C> <C> <C> <C>
Common Stock
- - 1991 Stock Option Plan
Shares Subject to
Outstanding Options 8,285 $ 8.94<F1> $ 74,067.90 $ 25.54
Shares Available for
Future Option Grant 991,715 $11.375<F2> $ 11,280,758.12 $ 3,889.94
TOTAL 1,000,000 $ 3,915.48
========= ===========
<FN>
<F1>
Actual weighted average exercise price.
<F2>
Estimated solely for the purpose of calculating the amount of registration fee
on the basis of the average of the high and low price reported in the Nasdaq
National Market System on August 29, 1995.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
There are hereby incorporated by reference in this registration statement
the following documents and information heretofore filed with the Securities
and Exchange Commission:
1. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1995, filed pursuant to Section 13 of the Securities
Exchange Act of 1934 (the "Exchange Act").
2. The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1995, filed pursuant to Section 13 of the Exchange Act.
3. The Registration Statement on Form S-8, filed on November 1,
1991, pursuant to Section 5 of the Securities Act of 1933, as amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, after the date of this registration statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this regis-
tration statement and to be part hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act. The Company's Articles of
Incorporation, as amended, limit the liability of the Company's directors for
monetary damages arising from breach of their fiduciary duty, except to the
extent otherwise required by the California Corporations Code. Article VI of
the Company's Bylaws provides for indemnification of the Company's directors,
officers, employees, and other agents to the maximum extent permitted by the
California Corporations Code.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
3.4 Bylaws, as restated
4.1 1991 Stock Option Plan, as amended and Form of
Stock Option Agreement
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C.
23.1 Consent of Coopers & Lybrand, L.L.P.,
Independent Auditors
23.2 Consent of Wilson, Sonsini, Goodrich & Rosati,
P.C. (contained in Exhibit 5.1)
24.1 Power of Attorney (See Page 6)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Company
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sunnyvale, State of California,
on August 30, 1995.
SUPERTEX, INC.
By: Henry C. Pao
Henry C. Pao, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Henry C. Pao his
attorney-in-fact, with the power of substitution, for him in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his substitute, may do or cause
to be done by virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
Henry C. Pao President, Chief Executive Officer
(Henry C. Pao) (Principal)Executive Officer), Chief August 30, 1995
Financial Officer(Principal Financial
Officer) and Director
Jerry Chan Controller (Principal Accounting Officer) August 30, 1995
(Jerry Chan)
Benedict C. K. Choy Senior Vice President, Secretary
(Benedict C. K. Choy) and Director August 30, 1995
Richard Siegel Executive Vice President, and Director August 30, 1995
(Richard Siegel)
Frank Pao Director August 30, 1995
(Frank Pao)
Yunni Pao Director August 30, 1995
(Yunni Pao)
<PAGE>
CONSENT OF COUNSEL
The consent of Wilson, Sonsini, Goodrich & Rosati, Professional
Corporation, is contained in its opinion filed as Exhibit 5.1 to the
Registration
Statement.
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description Sequentially
Numbered Page
3.4 Bylaws, as restated
4.1 1991 Stock Option Plan and Form of Stock
Option Agreement
5.1 Opinion of Wilson, Sonsini, Goodrich &
Rosati, P.C.
23.1 Consent of Coopers & Lybrand, L.L.P.,
Independent Auditors
23.2 Consent of Wilson, Sonsini, Goodrich & Contained in
Rosati, P.C. Exhibit 5.1
24.1 Power of Attorney Page 6 of
Registration
Statement
[FN]
____________________
* Incorporated by reference from exhibits to the Company's Annual Report
on Form 10-K filed on May 22, 1995.
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.
<PAGE>
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
SUPERTEX, INC.
1991 STOCK OPTION PLAN
(as amended August 4, 1995)
1. Purposes of the Plan. The purposes of this Stock Option Plan are:
to attract and retain the best available personnel for positions
of substantial responsibility,
to provide additional incentive to Employees and Consultants, and
to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time
of grant.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its
Committees as shall be administering the Plan, in accordance with Section 4
of the Plan.
(b) "Applicable Laws" means the legal requirements relating
to the administration of stock option plans under state corporate and securities
laws and the Code.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a Committee appointed by the Board in
accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means Supertex, Inc., a California corporation.
(h) "Consultant" means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services and who
is compensated for such services, and any Director, whether compensated for
such services or not, provided that the term "Consultant" shall not include
Directors who are not compensated for their services as such or are paid only
a director's fee by the Company.
(i) "Continuous Status as an Employee or Consultant"
means the employment or consulting relationship is not interrupted or
terminated by the Company, any Parent or Subsidiary. Continuous Status as
an Employee or Consultant shall not be considered interrupted in the case of:
(i) any leave of absence approved by the Board, including sick leave, military
leave, or any other personal leave; provided, however, that for purposes of
Incentive Stock Options, any such leave may not exceed ninety (90) days,
unless reemployment upon the expiration of such leave is guaranteed by
contract (including certain Company policies) or statute; or (ii) transfers
between locations of the Company or between the Company, its Parent, its
Subsidiaries or its successor.
(j) "Director" means a member of the Board.
(k) "Disability" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(l) "Employee" means any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the
Company. Neither service as a Director nor payment of a director's fee by the
Company shall be sufficient to constitute "employment" by the Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(n) "Fair Market Value" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") System, the Fair Market Value of a Share
of Common Stock shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such system or exchange (or the
exchange with the greatest volume of trading in Common Stock) on the last
market trading day prior to the day of determination, as reported in the Wall
Street Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the
NASDAQ System (but not on the National Market System thereof) or
regularly quoted by a recognized securities dealer but selling prices are not
reported, the Fair Market Value of a Share of Common Stock shall be the
mean between the high bid and high asked prices for the Common Stock or on
the last market trading day prior to the day of determination, as reported in
the Wall Street Journal or such other source as the Administrator deems
reliable;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good
faith by the Administrator.
(o) "Incentive Stock Option" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code and the regulations promulgated thereunder.
(p) "Nonstatutory Stock Option" means an Option not
intended to qualify as an Incentive Stock Option.
(q) "Notice of Grant" means a written notice evidencing
certain terms and conditions of an individual Option grant. The Notice of
Grant is part of the Option Agreement and is attached to it as Exhibit A.
(r) "Officer" means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
(s) "Option" means a stock option granted pursuant to the
Plan.
(t) "Option Agreement" means a written agreement
between the Company and an Optionee evidencing the terms and conditions
of an individual Option grant. The Option Agreement is subject to the terms
and conditions of the Plan.
(u) "Optioned Stock" means the Common Stock subject to
an Option.
(v) "Optionee" means an Employee or Consultant who
holds an outstanding Option.
(w) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(x) "Plan" means this 1991 Stock Option Plan.
(y) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or
any successor to Rule 16b-3, as in effect when discretion is being exercised
with respect to the Plan.
(z) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.
(aa) "Subsidiary" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section
12 of the Plan, the maximum aggregate number of Shares which may be
optioned and sold under the Plan is 1,925,715 Shares of Common Stock. The
Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having
been exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant under the Plan (unless the Plan has
terminated).
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. If permitted by
Rule 16b-3, the Plan may be administered by different bodies with respect to
Directors, Officers who are not directors, and Employees who are neither
Directors nor Officers.
(ii) Administration With Respect to Directors and
Officers Subject to Section 16(b). With respect to Option grants made to
Employees who are also Officers or Directors subject to Section 16(b) of the
Exchange Act, the Plan shall be administered by (A) the Board, if the Board
may administer the Plan in compliance with the rules governing a plan intended
to qualify as a discretionary plan under Rule 16b-3, or (B) a Committee
designated by the Board to administer the Plan, which Committee shall be
constituted to comply with the rules governing a plan intended to qualify as a
discretionary plan under Rule 16b-3. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board. From time to time the Board may increase the size of the Committee
and appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all
members of the Committee and thereafter directly administer the Plan, all to
the extent permitted by the rules governing a plan intended to qualify as a
discretionary plan under Rule 16b-3.
(iii) Administration With Respect to Other Persons.
With respect to Option grants made to Employees or Consultants who are
neither Directors nor Officers of the Company, the Plan shall be administered
by (A) the Board, (B) the President of the Company or (C) a Committee
designated by the Board, which Committee shall be constituted to satisfy
Applicable Laws. Once appointed, such Committee shall serve in its
designated capacity until otherwise directed by the Board. The Board may
increase the size of the Committee and appoint additional members, remove
members (with or without cause) and substitute new members, fill vacancies
(however caused), and remove all members of the Committee and thereafter
directly administer the Plan, all to the extent permitted by Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions
of the Plan, and in the case of a Committee, subject to the specific duties
delegated by the Board to such Committee, the Administrator shall have the
authority, in its discretion:
(i) to determine the Fair Market Value of the
Common Stock, in accordance with Section 2(m) of the Plan;
(ii) to select the Consultants and Employees to
whom Options may be granted hereunder;
(iii) to determine whether and to what extent
Options are granted hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each Option granted hereunder;
(v) to approve forms of agreement for use under the
Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted hereunder. Such
terms and conditions include, but are not limited to, the exercise price, the
time or times when Options may be exercised (which may be based on
performance
criteria), and any restriction or limitation, or any vesting acceleration or
waiver of forfeiture restrictions regarding any Option or the shares of Common
Stock relating thereto, based in each case on such factors as the Administrator,
in its sole discretion, shall determine;
(vii) to determine whether, to what extent and under
what circumstances Common Stock and other amounts payable with respect
to an award under this Plan shall be deferred either automatically or at the
election of the participant (including providing for and determining the amount
(if any) of any deemed earnings on any deferred amount during any deferral
period);
(viii) to reduce the exercise price of any Option to the
then current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option shall have declined since the date the Option was
granted;
(ix) to construe and interpret the terms of the Plan;
(x) to prescribe, amend and rescind rules and
regulations relating to the Plan;
(xi) to modify or amend each Option (with the
consent of the Optionee);
(xii) to authorize any person to execute on behalf of
the Company any instrument required to effect the grant of an Option
previously granted by the Administrator; and
(xiii) to determine the terms and restrictions
applicable to Options.
(xiv) to make all other determinations deemed
necessary or advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's
decisions, determinations and interpretations shall be final and binding on all
Optionees and any other holders of Options.
5. Eligibility. Nonstatutory Stock Options may be granted only
to Employees and Consultants. Incentive Stock Options may be granted only
to Employees. If otherwise eligible, an Employee or Consultant who has been
granted an Option may be granted additional Options.
6. Limitations.
(a) Each Option shall be designated in the Notice of Grant
as either an Incentive Stock Option or a Nonstatutory Stock Option.
However, notwithstanding such designations, to the extent that the aggregate
Fair Market Value:
(i) of Shares subject to an Optionee's incentive stock
options granted by the Company, any Parent or Subsidiary,
which (ii) become exercisable for the first time during any
calendar year (under all plans of the Company or any Parent or
Subsidiary)
exceeds $100,000, such excess Options shall be treated as Nonstatutory Stock
Options. For purposes of this Section 6(a), incentive stock options shall be
taken into account in the order in which they were granted, and the Fair
Market Value of the Shares shall be determined as of the time of grant.
(b) Neither the Plan nor any Option agreement shall confer
upon an Optionee any right with respect to continuing the Optionee's
employment or consulting relationship with the Company, nor shall they
interfere in any way with the Optionee's right or the Company's right to
terminate such employment or consulting relationship at any time, with or
without cause.
7. Term of Plan. Subject to Section 19 of the Plan, the Plan shall
become effective upon the earlier to occur of its adoption by the Board or its
approval by the shareholders of the Company as described in Section 19 of the
Plan. It shall continue in effect for a term of ten (10) years unless
terminated earlier under Section 14 of the Plan.
8. Term of Option. The term of each Option shall be stated in the
Notice of Grant; provided, however, that in the case of an Incentive Stock
Option, the term shall be ten (10) years from the date of grant or such shorter
term as may be provided in the Notice of Grant. However, in the case of an
Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Option shall be five (5) years from the date of grant or such shorter term as
may be provided in the Notice of Grant.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be determined by
the Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time
of the grant of such Incentive Stock Option, owns stock representing more
than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no
less than 110% of the Fair Market Value per Share on the date of grant.
(B) granted to any Employee, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
granted to any person, the per Share exercise price shall be no less than 50%
of the Fair Market Value per Share on the date of grant.
(b) Waiting Period and Exercise Dates. At the time an
Option is granted, the Administrator will determine the terms and conditions
to be satisfied before Shares may be purchased, including the dates on which
Shares subject to the Option may first be purchased. The Administrator may
specify that an Option may not be exercised until the completion of the service
period specified at the time of grant. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be exercised.
(c) Form of Consideration. The Administrator shall
determine the acceptable form of consideration for exercising an Option,
including the method of payment. In the case of an Incentive Stock Option,
the Administrator shall determine the acceptable form of consideration at the
time of grant. Such consideration may consist entirely of:
(i) cash,
(ii) check, or
(iii) other Shares which (a) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for
more than six months on the date of surrender, or were not acquired directly
or indirectly from the Company and (b) have a Fair Market Value on the date
of surrender equal to the aggregate exercise price of the Shares as to which
said Option shall be exercised.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable according to the terms of the
Plan and at such times and under such conditions as determined by the
Administrator.
An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the
Company receives: (i) written notice of exercise (in accordance with the
Option Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized
by the Administrator and permitted by the Option Agreement and the Plan.
Shares issued upon exercise of an Option shall be issued in the name of the
Optionee or, if requested by the Optionee, in the name of the Optionee and his
or her spouse. Until the stock certificate evidencing such Shares is issued (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. The Company
shall issue (or cause to be issued) such stock certificate promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock certificate is issued,
except as provided in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the
number of Shares thereafter available, both for purposes of the Plan and for
sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Employment or Consulting Relationship.
In the event an Optionee's Continuous Status as an Employee or Consultant
terminates (other than upon the Optionee's death or Disability), the Optionee
may exercise his or her Option, but only within such period of time as is
determined by the Administrator, and only to the extent that the Optionee was
entitled to exercise it at the date of termination (but in no event later than
the expiration of the term of such Option as set forth in the Notice of Grant).
In the case of an Incentive Stock Option, the Administrator shall determine
such
period of time (in no event to exceed ninety (90) days from the date of
termination) when the Option is granted. If, at the date of termination, the
Optionee is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
(c) Disability of Optionee. In the event an Optionee's
Continuous Status as an Employee or Consultant terminates as a result of the
Optionee's Disability, the Optionee may exercise his or her Option, but only
within twelve (12) months from the date of such termination, and only to the
extent that the Optionee was entitled to exercise it at the date of such
termination (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant). If, at the date of termination,
the Optionee is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified herein, the Option shall terminate, and the Shares covered
by such Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an
Optionee, the Option may be exercised, at any time within twelve (12) months
following the date of death (but in no event later than the expiration of the
term of such Option as set forth in the Notice of Grant), by the Optionee's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, but only to the extent the Optionee was entitled to exercise the
Option at the date of death. If, at the time of death, the Optionee was not
entitled to exercise his or her entire Option, the Shares covered by the
unexercisable portion of the Option shall revert to the Plan. If, after death,
the Optionee's estate or a person who acquired the right to exercise the Option
by bequest or inheritance does not exercise the Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Rule 16b-3. Options granted to persons subject to
Section 16(b) of the Exchange Act must comply with the applicable provisions
of Rule 16b-3 and shall contain such additional conditions or restrictions as
may be required thereunder to qualify for the maximum exemption from
Section 16 of the Exchange Act with respect to Plan transactions.
11. Non-Transferability of Options. Options may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder. The
designation of a beneficiary by an Optionee does not constitute a transfer. An
Option may be exercised, during the lifetime of the Optionee, only by the
Optionee or a transferee permitted by this Section 11.
12. Adjustments Upon Changes in Capitalization, Dissolution,
Merger, Asset Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of shares of Common
Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as
to which no Options have yet been granted or which have been returned to the
Plan upon cancellation or expiration of an Option, as well as the price per
share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration." Such adjustment
shall be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares of Common Stock
subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, it will terminate immediately prior to the
consummation of such proposed action. The Board may, in the exercise of its
sole discretion in such instances, declare that any Option shall terminate as of
a date fixed by the Board and give each Optionee the right to exercise his
Option as to all or any part of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable.
(c) Merger or Asset Sale. Subject to the provisions of
paragraph (d) hereof, in the event of a merger of the Company with or into
another corporation, or the sale of substantially all of the assets of the
Company, each outstanding Option shall be assumed or an equivalent option
or right shall be substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In the event that the successor
corporation does not agree to assume the Option or to substitute an equivalent
option, the Administrator shall, in lieu of such assumption or substitution,
provide for the Optionee to have the right to exercise the Option to the extent
the Option would have been exercisable 180 days after the effective date of the
merger or sale of assets. If the Administrator makes an Option exercisable in
lieu of assumption or substitution in the event of a merger or sale of assets as
provided in the previous sentence, the Administrator shall notify the Optionee
that the Option shall be exercisable for a period of fifteen (15) days from the
date of such notice, and the Option will terminate upon the expiration of such
period. For the purposes of this paragraph, the Option shall be considered
assumed if, following the merger or sale of assets, the option confers the right
to purchase, for each Share of Optioned Stock subject to the Option
immediately prior to the merger or sale of assets, the consideration (whether
stock, cash, or other securities or property) received in the merger or sale of
assets by holders of Common Stock for each Share held on the effective date
of the transaction (and if holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the merger
or sale of assets was not solely common stock of the successor corporation or
its Parent, the Administrator may, with the consent of the successor
corporation and the participant, provide for the consideration to be received
upon the exercise of the Option, for each Share of Optioned Stock subject to
the Option, to be solely common stock of the successor corporation or its
Parent equal in Fair Market Value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
13. Date of Grant. The date of grant of an Option shall be, for all
purposes, the date on which the Administrator makes the determination
granting such Option, or such other later date as is determined by the
Administrator. Notice of the determination shall be provided to each Optionee
within a reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any
time amend, alter, suspend or terminate the Plan.
(b) Shareholder Approval. The Company shall obtain
shareholder approval of any Plan amendment to the extent necessary and
desirable to comply with Rule 16b-3 or with Section 422 of the Code (or any
successor rule or statute or other applicable law, rule or regulation, including
the requirements of any exchange or quotation system on which the Common
Stock is listed or quoted). Such shareholder approval, if required, shall be
obtained in such a manner and to such a degree as is required by the applicable
law, rule or regulation.
(c) Effect of Amendment or Termination. No amendment,
alteration, suspension or termination of the Plan shall impair the rights of any
Optionee, unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the Optionee
and the Company.
15. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant
to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares shall comply with all relevant provisions
of law, including, without limitation, the Securities Act of 1933, as amended,
the Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange or quotation system upon which the
Shares may then be listed or quoted, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the
exercise of an Option, the Company may require the person exercising such
Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
16. Liability of Company.
(a) Inability to Obtain Authority. The inability of the
Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
(b) Grants Exceeding Allotted Shares. If the Optioned
Stock covered by an Option exceeds, as of the date of grant, the number of
Shares which may be issued under the Plan without additional shareholder
approval, such Option shall be void with respect to such excess Optioned
Stock, unless shareholder approval of an amendment sufficiently increasing the
number of Shares subject to the Plan is timely obtained in accordance with
Section 14(b) of the Plan.
17. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
18. Shareholder Approval. Continuance of the Plan shall be subject
to approval by the shareholders of the Company within twelve (12) months
before or after the date the Plan is adopted. Such shareholder approval shall
be obtained in the manner and to the degree required under applicable federal
and state law.
19. Information to Optionees. The Company shall provide each
Optionee, while such Optionee has one or more Options outstanding, with
copies of all annual reports and other information which are provided to all
shareholders of the Company. The Company shall not be required to provide
such information if the issuance of Options under the Plan is limited to key
employees whose duties in connection with the Company assure their access
to equivalent information.
<PAGE>
SUPERTEX, INC.
STOCK OPTION AGREEMENT
1. Grant of Option. The Plan Administrator of Supertex, Inc., a
California corporation (the "Company"), hereby grants to the Optionee (the
"Optionee") named in the Notice of Grant (part of, and attached as Exhibit A
to, this Option Agreement), an option (the "Option") to purchase a number of
Shares, as set forth in the Notice of Grant, at the exercise price per share set
forth in the Notice of Grant (the "Exercise Price"), subject to the terms and
conditions of the 1991 Stock Option Plan (the "Plan") adopted by the
Company, which is incorporated herein by reference. Subject to Section 15(c)
of the Plan, in the event of a conflict between the terms and conditions of the
Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail. Unless otherwise defined herein, the
terms defined in the Plan shall have the same defined meanings in this Option
Agreement.
If designated in the Notice of Grant as an Incentive Stock
Option, this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of Grant
and the applicable provisions of the Plan and this Option Agreement. In the
event of Optionee's death, Disability or other termination of Optionee's
employment or consulting relationship, the exercisability of the Option is
governed by the applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by
delivery of an exercise notice, in the form attached as Exhibit B (the "Exercise
Notice"), which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised (the "Exercised
Shares"), and such other representations and agreements as to the holder's
investment intent with respect to the Exercised Shares as may be required by
the Company pursuant to the provisions of the Plan. The Exercise Notice shall
be signed by the Optionee and, if the Optionee is married, by the Optionee's
spouse, and shall be delivered in person or by certified mail to the Secretary
of the Company. The Exercise Notice shall be accompanied by payment of the
aggregate Exercise Price as to all Exercised Shares. This Option shall be
deemed to be exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions
of law and the requirements of any stock exchange upon which the Shares are
then listed. Assuming such compliance, for income tax purposes the Exercised
Shares shall be considered transferred to the Optionee on the date the Option
is exercised with respect to such Exercised Shares.
3. Method of Payment. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the election of
the Optionee:
(a) cash;
(b) check; or
(c) other Shares which (a) in the case of Shares acquired
upon exercise of an option, have been owned by the Optionee for more than
six months on the date of surrender, or were not acquired directly or indirectly
from the Company and (b) have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the Shares as to which said Option
shall be exercised.
4. Non-Transferability of Option. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution or pursuant to a qualified domestic relations order and may be
exercised during the lifetime of Optionee only by the Optionee. The terms of
the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the
term set out in the Notice of Grant, and may be exercised during such term
only in accordance with the Plan and the terms of this Option Agreement.
6. Tax Consequences. Some of the federal and California tax
consequences relating to this Option, as of the date of this Option, are set
forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND
THE
TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE
OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE
EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercising the Option.
(i) Nonqualified Stock Option ("NSO"). If this
Option does not qualify as an ISO, the Optionee may incur regular federal
income tax and California income tax liability upon exercise. The Optionee
will be treated as having received compensation income (taxable at ordinary
income tax rates) equal to the excess, if any, of the fair market value of the
Exercised Shares on the date of exercise over their aggregate Exercise Price.
If the Optionee is an employee, the Company will be required to withhold from
his or her compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation
income at the time of exercise.
(ii) Incentive Stock Option ("ISO"). If this Option
qualifies as an ISO, the Optionee will have no regular federal income tax or
California income tax liability upon its exercise, although the excess, if any,
of the fair market value of the Exercised Shares on the date of exercise over
their aggregate Exercise Price will be treated as an adjustment to the
alternative minimum tax for federal tax purposes and may subject the Optionee
to
alternative minimum tax in the year of exercise.
(b) Disposition of Shares.
(i) NSO. If the Optionee holds NSO Shares for at
least one year, any gain realized on disposition of the Shares will be treated
as long-term capital gain for federal income tax purposes.
(ii) ISO. If the Optionee holds ISO Shares for at
least one year after exercise and two years after the grant date, any gain
realized on disposition of the Shares will be treated as long-term capital gain
for federal income tax purposes. If the Optionee disposes of ISO Shares
within one year after exercise or two years after the grant date, any gain
realized on such disposition will be treated as compensation income (taxable
at ordinary income rates) to the extent of the excess, if any, of the lesser of
(A) the difference between the fair market value of the Shares acquired on the
date of exercise and the aggregate Exercise Price, or (B) the difference
between the sale price of such Shares and the aggregate Exercise Price.
(c) Notice of Disqualifying Disposition of ISO Shares. If
the Optionee sells or otherwise disposes of any of the Shares acquired pursuant
to an ISO on or before the later of (i) two years after the grant date, or
(ii) one year after the exercise date, the Optionee shall immediately notify the
Company in writing of such disposition. The Optionee agrees that he or she
may
be subject to income tax withholding by the Company on the compensation
income recognized from such early disposition of ISO Shares by payment in
cash or out of the current earnings paid to the Optionee.
<PAGE>
FORM
EXHIBIT A
NOTICE OF STOCK OPTION GRANT
[Optionee's Name and Address]
You have been granted an option to purchase Common Stock of
Supertex, Inc. (the "Company") under the 1991 Stock Option Plan (the "Plan")
as follows:
Grant Number
Date of Grant
Vesting Commencement Date
Exercise Price per Share $
Total Number of Shares Granted
Total Exercise Price $
Type of Option: [Incentive Stock Option]
[Nonstatutory Stock Option]
Expiration Date: _______________________
Vesting Schedule:
This Option may be exercised, in whole or in part, in accordance with
the following schedule:
Shares on
Shares on
Shares on
Shares on
Shares on
Termination Period:
This Option may be exercised for thirty (30) days after termination of
employment or consulting relationship, or such longer period as may be
applicable upon death or Disability of Optionee as provided in the Plan, but in
no event later than the Term/Expiration Date as provided above.
Disqualifying Disposition:
If the Optionee sells or otherwise disposes of any of the Shares
acquired pursuant to an ISO on or before the later of (i) two years after the
grant date, or (ii) one year after the exercise date, the Optionee shall
immediately notify the Company in writing of such disposition. The Optionee
agrees that he or she may be subject to income tax withholding by the
Company on the compensation income recognized from such early disposition
of ISO Shares by payment in cash or out of the current earnings paid to the
Optionee.
By your signature and the signature of the Company's representative
below, you and the Company agree that this Option is granted under and
governed by the terms and conditions of the Plan and this Option Agreement.
Optionee has reviewed the Plan and this Option Agreement in their entirety,
has had an opportunity to obtain the advice of counsel prior to executing this
Option Agreement and fully understands all provisions of the Plan and Option
Agreement. Optionee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Administrator upon any questions
relating to the Plan and Option Agreement.
OPTIONEE: SUPERTEX, INC.
_____________________________ By:_______________________________
Signature
_____________________________ Title:_____________________________
Print Name
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the
terms and conditions of the Plan and this Option Agreement. In consideration
of the Company's granting his or her spouse the right to purchase Shares as set
forth in the Plan and this Option Agreement, the undersigned hereby agrees to
be irrevocably bound by the terms and conditions of the Plan and this Option
Agreement and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Option Agreement.
__________________
Spouse of Optionee
<PAGE>
EXHIBIT B
EXERCISE NOTICE
SUPERTEX, INC.
1225 Bordeaux Drive
Sunnyvale, CA 94089
Attention: Secretary
1. Exercise of Option. Effective as of today, ___________, 199_,
the undersigned ("Purchaser") hereby elects to purchase _________ shares
(the "Shares") of the Common Stock of Supertex, Inc. (the "Company") under
and pursuant to the 1991 Stock Option Plan (the "Plan") and the Stock Option
Agreement dated ___________ (the "Option Agreement"). The purchase
price for the Shares shall be $______________, as required by the Option
Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company
the full purchase price for the Shares.
3. Representations of Optionee. Optionee acknowledges that
Optionee has received, read and understood the Plan and the Option
Agreement and agrees to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Subject to the terms and conditions of
this Agreement, Optionee shall have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Optionee
delivers full payment of the Exercise Price until such time as Optionee disposes
of the Shares.
5. Tax Consultation. Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's purchase or
disposition of the Shares. Optionee represents that Optionee has consulted
with any tax consultants Optionee deems advisable in connection with the
purchase or disposition of the Shares and that Optionee is not relying on the
Company for any tax advice.
6. Disqualifying Disposition. If the Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to an ISO on or before the
later of (i) two years after the grant date, or (ii) one year after the exercise
date, the Optionee shall immediately notify the Company in writing of such
disposition. The Optionee agrees that he or she may be subject to income tax
withholding by the Company on the compensation income recognized from
such early disposition of ISO Shares by payment in cash or out of the current
earnings paid to the Optionee.
7. Entire Agreement; Governing Law. The Plan and Option
Agreement are incorporated herein by reference. This Agreement, the Plan
and the Option Agreement constitute the entire agreement of the parties and
supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and such
agreement is governed by California law except for that body of law pertaining
to conflict of laws.
Submitted by: Accepted by:
OPTIONEE: SUPERTEX, INC.
___________________________ By:__________________________
Signature
___________________________ Its:__________________________
Print Name
Address: Address:
___________________________ 1225 Bordeaux Drive
Sunnyvale, CA 94089
___________________________
EXHIBIT 5.1
September 1, 1995
SUPERTEX, INC.
1225 Bordeaux Drive
Sunnyvale, CA 94088-3607
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about September 1,
1995 (the "Registration Statement"), in connection with the registration under
the Securities Act of 1933, as amended, of 1,000,000 shares of your Common
Stock (the "Shares") reserved for issuance under the 1991 Stock Option Plan,
(the "Plan"). As your legal counsel, we have examined the proceedings taken
and proposed to be taken in connection with the issuance, sale and payment of
consideration for the Shares to be issued under the Plan.
It is our opinion that, when issued and sold in the manner referred to in
the Plan and pursuant to the agreements which accompany the Plan, the Shares
will be legally and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON,SONSINI, GOODRICH & ROSATI
ProfessionalCorporation
By: Thomas C. DeFilipps
Thomas C.DeFilipps
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement
of Supertex, Inc. on Form S-8 (File No. 33-43691) of our report dated
April 28, 1995, on our audits of the consolidated financial statements and
financial statement schedule of Supertex, Inc. at March 31, 1995 and 1994, and
for the years ended March 31, 1995, 1994, and 1993, which report is included
in the Annual Report on Form 10-K.
COOPERS & LYBRAND, L.L.P.
COOPERS & LYBRAND, L.L.P.
San Jose, California
August 31, 1995
