-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M9QRRKqv241Wy5iIajkKymYJb235CYi5RtCozML/mDe8Nw6snUK4A9nUH9Cjrygo vmtdDwFZRfbbvFaCWmIYWQ== 0000898430-01-503853.txt : 20020413 0000898430-01-503853.hdr.sgml : 20020413 ACCESSION NUMBER: 0000898430-01-503853 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20010128 FILED AS OF DATE: 20011213 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SEMTECH CORP CENTRAL INDEX KEY: 0000088941 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 952119684 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-06395 FILM NUMBER: 1812515 BUSINESS ADDRESS: STREET 1: 652 MITCHELL RD CITY: NEWBURY PARK STATE: CA ZIP: 91320 BUSINESS PHONE: 8054982111 MAIL ADDRESS: STREET 1: 652 MITCHELL ROAD STREET 2: 652 MITCHELL ROAD CITY: NEWBURY PARK STATE: CA ZIP: 91320 10-K/A 1 d10ka.txt FORM 10-K/A ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A (Mark One) [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended January 28, 2001 OR [_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ____________________ to ____________________ Commission file number 1-6395 SEMTECH CORPORATION (Exact name of registrant as specified in its charter) Delaware 95-2119684 (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) No.) 652 Mitchell Road, Newbury Park, California 91320 (Address of principal executive offices, Zip Code) Registrant's telephone number, including area code: (805) 498-2111 Securities registered pursuant to Section 12(b) of the Act: Name of each exchange Title of each Class on which registered - ------------------------------------ ---------------------------- None None Securities registered pursuant to Section 12(g) of the Act: Common Stock par value $.01 per share (Title of Class) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ___ ----- Indicate by check mark if disclosure of delinquent filers pursuant to item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [___] Aggregate market value of voting stock held by non-affiliates of the registrant as of April 13, 2001 was $2,077,320,117 and the market price of the Registrant's stock was $30.02 per share. The number of shares outstanding of the Registrant's common stock was 69,197,872 at April 13, 2001. DOCUMENTS INCORPORATED BY REFERENCE None. ================================================================================ PART IV Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K The Registrant hereby amends Item 14 of Registrant's Form 10-K for the fiscal year ended January 28, 2001, filed with the Commission on April 27, 2001 ("Original 10-K"), to read in its entirety as set forth herein. (a)(1) The financial statements and the Report of Arthur Andersen LLP are included in Part II of the Company's Form 10-K on the pages indicated.
Page* ----- Index of Financial Statements: Report of Independent Public Accountants 39 Consolidated statements of income, three years ended January 28, 2001 24 Consolidated balance sheets, January 28, 2001 and January 30, 2000 25 Consolidated statements of stockholders' equity and comprehensive income, three years ended January 28, 2001 26 Consolidated statements of cash flows, three years ended January 28, 2001 27 Notice to consolidated financial statements 28
(2) The following financial statement schedule of the Company for the years ended January 28, 2001, January 30, 2000 and January 31, 1999, is filed as part of this Report and should be read in conjunction with the financial statements:
Page* ----- Schedule II - Valuation and Qualifying Accounts 40
Schedules other than those listed above are omitted since they are not applicable, not required, or the information required to be set forth herein is included in the consolidated financial statements or notes thereto. _________________ *References to page numbers under this Item 14 are to the pages contained in the Original 10-K. 2 (3) Exhibits Exhibit No. Description ----------- ----------- 3.1 - Restated Certificate of Incorporation of Semtech Corporation 3.2 - Bylaws of Semtech Corporation 4.1/1/ - Indenture between Semtech Corporation and State Street Bank and Trust Company of California, N.A. 4.2/1/ - Form of Debenture 4.3/1/ - Registration Rights Agreement by and among Semtech Corporation as issuer, and Morgan Stanley & Co. Incorporated and Banc of America Securities LLC, as initial purchasers dated as of February 14, 2001. 10.2/2/ - Agreement of sublease executed on December 23, 1991, effective January 1, 1991, by the Company and the Corpus Christi Airport Development Corporation for a portion of the Company's plant and facilities 10.4/3/ - Lease executed on May 1, 1988 and amended on November 1, 1991 by the Company for a portion of its plant and facilities 10.5/4/ - Lease executed on September 12, 1988 by the Company for a portion of its plant and facilities as amended by that certain amendment thereto dated September 9, 1997 10.6/5/ - The Company's 1987 Stock Option Plan and the related Form of Option Agreement __________________ /1/ Incorporated by reference to the Registrant's Annual Report on Form 10K for fiscal year ended January 30, 2000. /2/ Incorporated by reference to the Registrant's Annual Report on Form 10K for fiscal year ended February 2, 1992. /3/ Incorporated by reference to the Registrant's Annual Report on Form 10K for fiscal year ended January 29, 1989. /4/ Incorporated by reference to the Registrant's Annual Report on Form 10K for fiscal year ended January 29, 1989; copy of the amendment attached hereto. /5/ Incorporated by reference to the Registrant's registration statement on Form S-8 effective September 4, 1987. 3 Exhibit No. Description ----------- ----------- 10.7/6/ - The Company's 1994 Long-term Stock Incentive Plan and the related Form of Option Agreement, as amended 10.8/7/ - The Company's 1994 Non-Employee Directors Stock Option Plan and the related Form of Option Agreement, as amended 10.9/8/ - The Company's Long-term Stock Incentive Plan 10.10/1/ - The Company's Non-Director, Non-Executive Officer Long-term Stock Incentive Plan 10.11 - Development Agreement, dated April 11, 2000, by and between Semtech Corporation and Voit Development Co., Inc. 22.1 - Subsidiaries of the Company 23.1 - Consent of Arthur Andersen LLP __________________ /6/ Incorporated by reference to the Registrant's registration statement on Form S-8 effective October 14, 1994. /7/ Incorporated by reference to the Registrant's registration statement on Form S-8 effective January 31, 1996. /8/ Incorporated by reference to the Registrant's registration statement on Form S-8 effective June 9, 1999. 4 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to its annual report on Form 10-K to be signed on its behalf by the undersigned, hereunto duly authorized. SEMTECH CORPORATION December 12, 2001 By: /s/ David G. Franz, Jr. -------------------------------- David G. Franz, Jr. Chief Financial Officer 5 EX-3.1 3 dex31.txt RESTATED CERTIFICATE OF INCORPORATION Exhibit 3.1 ----------- RESTATED CERTIFICATE OF INCORPORATION OF SEMTECH CORPORATION Semtech Corporation, a corporation organized and existing under the laws of the State of Delaware (the "Corporation", or this "Corporation"), hereby ----------- ----------- certifies as follows: 1. The Corporation's present name is Semtech Corporation, originally incorporated as American Semiconductor Corp. 2. The date of the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware was December 19, 1960. 3. This Restated Certificate of Incorporation has been duly adopted pursuant to and in accordance with Section 245 of the General Corporation Law of the State of Delaware and restates and integrates and does not further amend the provisions of the Certificate of Incorporation of the Corporation as theretofore amended or supplemented, and there is no discrepancy between the provisions of the Certificate of Incorporation of the Corporation and the provisions of this Restated Certificate of Incorporation. 4. The Certificate of Incorporation of the Corporation is hereby restated so as to read in its entirety as follows: FIRST: The name of the Corporation is SEMTECH CORPORATION. ----- SECOND: The address of the Corporation's registered office in the State of ------ Delaware is 2711 Centerville Road, Suite #400, in the City of Wilmington, County of New Castle, 19808 and the name of the Corporation's registered agent at that address is United States Corporation Company. THIRD: The nature of the business of the Corporation and the objects or ----- purposes proposed to be transacted, promoted or carried on by it are: To engage in and promote research, experimentation and development of any kind whatsoever in the field or science of solid state physics, electronics, semi-conductors, electricity, metallurgy, chemistry and any of the other arts or sciences; to furnish technical and advisory services and to engage in and carry on a general consultative and development business, including designing, planning, construction, repairing or engaging in any work upon any and all inventions, devices, improvements, machines, electrical or mechanical contrivances, tools, articles and things, or in the parts or accessories thereof or therefor; to develop or assist in the development of patents, inventions and improvements, either itself or for others, and to turn the same to account; to own, lease or otherwise acquire, use, or dispose of laboratories, plants, factories, or workshops, for experimental, manufacturing and development purposes; and to devise and improve upon inventions and mechanical or other devices of any and all kinds. -6- To design, develop, experiment with, manufacture or have manufactured, produce, assemble, buy, lease or otherwise acquire, own use, store, import, export, sell, lease or otherwise dispose of and generally to deal in and with (as contractor, subcontractor, principal, agent, commission merchant, broker, factor or any combination of the foregoing and at wholesale or retail or both) semi-conductors and transducers, and electronic devices and machines of all kinds. To adopt, apply for, obtain, register, purchase, lease, take assignments and licenses in respect of or otherwise acquire, and to maintain, protect, hold, own, use, enjoy, control, exercise, develop, operate, introduce, turn to account, grant licenses or other rights in respect of, sell, assign, lease, mortgage, pledge or otherwise dispose of: (a) any and all inventions, devices, formulae, processes and all improvements and modifications thereof; (b) any and all letters patent, and/or applications therefor, of the United States or of any other country or government, and all rights connected therewith or appertaining thereto; (c) any and all copyrights granted by the United States or by any other country or government: (d) any and all trademarks, trade names, trade symbols, goodwill and other indications of origin or ownership granted by or recognized under the laws or decisions of the United States or of any other country or government. To manufacture, buy, sell, deal in, and to engage in, conduct and carry on the business of manufacturing, buying, selling and dealing in goods, wares, and merchandise of every class and description necessary or useful for the operations of this Corporation. To improve, manage, develop, sell, assign, transfer, lease, mortgage, pledge, or otherwise dispose of or turn to account or deal with all or any part of the property of the Corporation and from time to time to vary any investment or employment of capital of the Corporation. To borrow money, and to make and issue notes, bonds, debentures, obligations and evidences of indebtedness of all kinds, whether secured by mortgage, pledge or otherwise, without limit as to amount, and to secure the same by mortgage, pledge or otherwise; and generally to make and perform agreements and contracts of every kind and description. To the same extent as natural persons might or could do, to purchase or otherwise acquire and to hold, own, maintain, work, develop, sell, lease, exchange, hire, convey, mortgage or otherwise dispose of and deal in, lands and leaseholds, and any interest, estate and rights in real property, and any personal or mixed property, and any franchises, rights, licenses or privileges necessary, convenient or appropriate for any of the purposes herein expressed. -7- To do all and everything necessary, suitable and proper for the accomplishment of any of the purposes or the attainment of any of the objects or the furtherance of any of the powers hereinbefore set forth, either alone or in association with other corporations, firms or individuals, and to do every other act or acts, thing or things incidental or appurtenant to or growing out of or connected with the aforesaid business or powers or any part or parts thereof, provided the same be not inconsistent with the laws under which this Corporation is organized. To acquire by purchase, subscription or otherwise, and to hold for investment or otherwise and to use, sell, assign, transfer, mortgage, pledge or otherwise deal with or dispose of stocks, bonds or any other obligations or securities of any corporation or corporations; to merge or consolidate with any corporation in such manner as may be permitted by law; to aid in any manner any corporation whose stocks, bonds or other obligations are held or in any manner guaranteed by this Corporation, or in which this Corporation is in any way interested; and to do any other acts or things for the preservation, protection, improvement or enhancement of the value of any such stock, bonds or other obligations; and while owner of any such stock, bonds or other obligations to exercise all the rights, powers and privileges of ownership thereof, and to exercise any and all voting powers thereon; to guarantee the payment of dividends upon any stock, or the principal or interest or both, of any bonds or other obligations, and the performance of any contracts. The business or purpose of the Corporation is from time to time to do any one or more of the acts and things hereinabove set forth, and it shall have power to conduct and carry on its said business, or any part thereof, and to have one or more offices, and to exercise any or all of its corporate powers and rights, in the State of Delaware, and in the various other states, territories, colonies and dependencies of the United States, in the District of Columbia, and in all or any foreign countries. The enumeration herein of the objects and purposes of this Corporation shall be construed as powers as well as objects and purposes and shall not be deemed to exclude by inference any powers, objects or purposes which this Corporation is empowered to exercise, whether expressly by force of the laws of the State of Delaware now or hereafter in effect or impliedly by the reasonable construction of the said laws. FOURTH: Number of Shares ------ (1) The Corporation is authorized to issue two classes of stock designated "Preferred Stock" and "Common Stock," respectively. The total number of shares of Preferred Stock authorized to be issued is Ten Million (10,000,000) and each such share shall have a par value of one cent ($.01). The total number of shares of Common Stock authorized to be issued is Two Hundred Fifty Million (250,000,000) and each such share shall have a par value of one cent ($.01). (2) The Shares of preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation is hereby authorized, by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time -8- to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof, including, but not limited to the fixing or alteration of the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price or prices, and the liquidation preferences of any wholly unissued series of shares of Preferred Stock, or any of them; and to increase or decrease the number of shares of any series subsequent to the issue of the shares of that series, but not below the number of shares of any series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series. (3) The Designation, Preferences and Rights of Series X Junior Participating Preferred Stock is attached hereto as Exhibit A. FIFTH: The minimum amount of capital with which the Corporation will ----- commence business is one thousand dollars ($1,000.00). SIXTH: The Corporation is to have perpetual existence. ----- SEVENTH: The private property of the stockholders shall not be subject to ------- the payment of corporate debts to any extent whatever. EIGHTH: No contract or other transaction between the Corporation and any ------ other corporation shall be affected or invalidated by the fact that any one or more of the directors of this Corporation is or are interested in, or is a director or officer, or are directors or officers of such other corporation, and any director or directors, individually or jointly may be a party or parties to or may be interested in any contract or transaction of this Corporation or in which this Corporation is interested; and no contract, act or transaction of this Corporation with any person or persons, firm or association, shall be affected or invalidated by the fact that any director or directors of this Corporation is a party, or are parties to, or interested in, such contract, act or transaction, or in any way connected with such person or persons, firm or association, and each and every person who may become a director of this Corporation is hereby relieved from any liability that might otherwise exist from contracting with the Corporation for the benefit of himself or any firm or corporation in which he may be in any wise interested. NINTH: ----- (1) to the fullest extent permitted by the Delaware General Corporation Law as it presently exists or may hereafter be amended, no director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Neither the amendment nor repeal of this Section (1), nor the adoption of any provision of the Certificate of Incorporation of the Corporation inconsistent with this Section (1), shall eliminate or reduce the effect of this Section (1) in respect of any act or omission of any director of the Corporation or any matter -9- occurring, or any cause of action, suit or claim that, but for this Section (1), would accrue or arise prior to such amendment, repeal or adoption of an inconsistent provision. (2)(a) Each person who was or is made a party or is threatened to be made a party to or is involved in any claim, action, suit or proceeding, whether civil, criminal, administrative, investigative or other (hereinafter a "proceeding"), by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving in the course of such employment, or at the request of the Corporation, as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said Law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, excise taxes pursuant to the Employee Retirement Income Security Act of 1974, as amended, or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith. The right to indemnification conferred by this Section (2) shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person's heirs, executors, administrators and other legal representatives; provided, however, that, except as provided in paragraph (b) of this Section (2), the Corporation shall indemnify any such person seeking indemnification in connection with such a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof), or the initiation thereof, was authorized or approved by the Corporation. The right to indemnification conferred by this Section (2) shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition in accordance with and to the fullest extent permitted by the Delaware General Corporation Law, as it presently exists or may hereafter be amended; provided, however, that, if the Delaware General Corporation Law requires the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, payment shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. (2)(b) If a claim under paragraph (a) of this Section (2) is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the -10- Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the requirements of the Delaware General Corporation Law have been complied with by the claimant) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because the claimant has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. (2)(c) The rights conferred by this Section (2) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation of the Corporation, By- law, agreement, vote of stockholders or disinterested directors or otherwise. (2)(d) The Corporation may maintain insurance, at its expense, to protect itself, its subsidiary and affiliated corporations, and any such director, officer, employee, representative, or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. TENTH: No holder of stock of the Corporation shall be entitled as of right ----- to purchase or subscribe for any part of any unissued stock of the Corporation or any additional stock to be issued by reason of any increase of the authorized capital stock of the Corporation of any class, or any bonds, certificates of indebtedness, debentures or other securities convertible into stock of the Corporation, but any such unissued stock or such additional authorized issue of new stock, or such securities convertible into stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of their discretion. ELEVENTH: The Corporation reserves the right to amend, alter, change or -------- repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power. -11- IN WITNESS WHEREOF, we have executed and subscribed this Restated Certificate of Incorporation and do affirm the foregoing as true under the penalties of perjury this ___ day of April, 2001. _________________________ John D. Poe, President and Chief Executive Officer Attest: _______________________________ David G. Franz, Jr., Secretary -12- EXHIBIT A --------- Section 1. Designation and Amount. The shares of such series shall ---------------------- be designated as "Series X Junior Participating Preferred Stock" (the "Series X Preferred Stock") and the number of shares constituting such series shall be Two Million (2,000,000). Such number of shares of Series X Preferred Stock may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series X Preferred Stock to a number less than the number of shares of Series X Preferred Stock then outstanding plus the number of shares of Series X Preferred Stock reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible or exercisable into Series X Preferred Stock. Section 2. Dividends and Distributions. --------------------------- (A) Subject to the prior and superior rights of the holders of any shares of any series of preferred stock ranking prior and superior to the shares of Series X Preferred Stock with respect to dividends, the holders of shares of Series X Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, dividends payable in cash in an amount per share (rounded to the nearest cent), subject to the provision for adjustment hereinafter set forth, equal to 100 (the "Dividend Factor") times the aggregate per share amount of all cash dividends, and the Dividend Factor times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions (other than a dividend payable in shares of the Common Stock, par value $.01 per share, of the Corporation (the "Common Stock") or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise)), declared on the Common Stock since the first issuance of any share or fraction of a share of Series X Preferred Stock. In the event the Corporation shall at any time after July 31, 1998 (the "Rights Declaration Date") (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Dividend Factor in the immediately preceding sentence shall be adjusted by multiplying the Dividend Factor by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series X Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock). (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series X Preferred Stock from the date of declaration of dividends on the Common Stock (other than a dividend payable in shares of Common Stock). Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series X Preferred Stock in an amount less than the total amount of such accrued dividends shall -13- be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series X Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 30 days prior to the date fixed for the payment thereof. Section 3. Voting Rights. The holders of shares of Series X ------------- Preferred Stock shall have the following voting rights: (A) Subject to the provision for adjustment hereinafter set forth, each share of Series X Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each case the number of votes per share to which holders of shares of Series X Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) Except as otherwise provided herein or by law, the holders of shares of Series X Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. (C) Except as otherwise provided herein or provided by law, the holders of shares of Series X Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. Section 4. Certain Restrictions. -------------------- (A) Whenever dividends or distributions payable on the Series X Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series X Preferred Stock outstanding shall have been paid in full, the Corporation shall not (i) declare or pay dividends on, make any other distribution on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series X Preferred Stock; (ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series X Preferred Stock, except dividends paid or distributions made ratably on the Series X Preferred Stock and all such stock ranking on -14- a parity with respect to the particular dividend or distribution in proportion to the total amounts to which the holders of all such shares are then entitled; (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series X Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking junior (both as to dividends and upon dissolution, liquidation or winding up) to the Series X Preferred Stock; or (iv) purchase or otherwise acquire for consideration any shares of Series X Preferred Stock, or any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series X Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. Section 5. Reacquired Shares. Any shares of Series X Preferred Stock ----------------- purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein. Section 6. Liquidation, Dissolution or Winding Up. -------------------------------------- (A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series X Preferred Stock unless, prior thereto, the holders of shares of Series X Preferred Stock shall have received $100 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the "Series X Liquidation Preference"). Following the payment of the full amount of the Series X Liquidation Preference, no additional distributions shall be made to the holders of shares of Series X Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the "Common Stock Liquidation Amount") equal to the quotient obtained by dividing (i) the -15- Series X Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii), the "Adjustment Number"). Following the payment of the full amount of the Series X Liquidation Preference and the Common Stock Liquidation Amount in respect of all outstanding shares of Series X Preferred Stock and Common Stock, respectively, holders of Series X Preferred Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of remaining assets to be distributed in the ratio of the Adjustment Number to one (1) with respect to such Preferred Stock and Common Stock, on a per share basis, respectively. (B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series X Liquidation Preference and the liquidation preferences of all other series of preferred stock, if any, which rank on a parity with the Series X Preferred Stock, then such remaining assets shall be distributed ratably to the holders of the Series X Preferred Stock and the holders of such parity shares in proportion to their respective liquidation preferences. (C) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, (iv) reclassify the Common Stock or (v) effect a recapitalization of the Common Stock, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. Section 7. Consolidation, Merger, etc. In case the Corporation shall --------------------------- enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series X Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series X Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. -16- Section 8. No Redemption. The shares of Series X Preferred Stock ------------- shall not be redeemable. Section 9. Ranking. The Series X Preferred Stock shall rank junior ------- to all other series of the Corporation's preferred stock, if any, as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise. Nothing in this Certificate shall limit the power of the Board of Directors to create a new series of preferred stock ranking senior to the Series X Preferred Stock in any respect. Section 10. Amendment. The Certificate of Incorporation of the --------- Corporation shall not be further amended in any manner which would materially alter or change the powers, preferences or special rights of the Series X Preferred Stock so as to affect them adversely without the affirmative vote of the holders of two-thirds or more of the outstanding shares of Series X Preferred Stock, voting separately as a class. Section 11. Fractional Shares. Series X Preferred Stock may be issued ----------------- in fractions of a share, which shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series X Preferred Stock. -17- EX-3.2 4 dex32.txt BYLAWS OF SEMTECH CORPORATION Exhibit 3.2 ----------- BYLAWS of SEMTECH CORPORATION a Delaware Corporation ARTICLE I OFFICES ------- Section 1.01 REGISTERED OFFICE. The registered office of Semtech Corporation (hereinafter called the "Corporation") shall be at such place in the State of Delaware as shall be designated by the Board of Directors (hereinafter called the "Board"). Section 1.02 PRINCIPAL OFFICE. The principal office for the transaction of the business of the Corporation shall be at such location, within or without the State of Delaware, as shall be designated by the Board. Section 1.03 OTHER OFFICES. The Corporation may also have an office or offices at such other place or places, either within or without the State of Delaware, as the Board may from time to time determine or as the business of the Corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS ------------------------ Section 2.01 ANNUAL MEETINGS. Annual meetings of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings may be held at such time, date and place as the Board shall determine by resolution. Section 2.02 SPECIAL MEETINGS. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Board, or by a committee of the Board which has been duly designated by the Board and whose powers and authority, as provided in a resolution of the Board or in the Bylaws, include the power to call such meetings, but such special meetings may not be called by any other person or persons; provided, however, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provisions of the Certificate of Incorporation or any amendment thereto or any certificate filed under Section 151(g) of the General Corporation Law of the State of Delaware (or its successor statute as in effect from time to time hereafter), then such special meeting may also be called by the person or persons, in the manner, at the time and for the purposes so specified. Section 2.03 PLACE OF MEETINGS. All meetings of the stockholders shall be held at such places, within or without the State of Delaware, as may from time to time be -18- designated by the person or persons calling the respective meetings and specified in the respective notices or waivers of notice thereof. Section 2.04 NOTICE OF MEETINGS. Except as otherwise required by law, notice of each meeting of the stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting by delivering a typewritten or printed notice thereof to him personally, or by depositing such notice in the United States mail, in a postage prepaid envelope, directed to him at his address furnished by him to the Secretary of the Corporation for such purpose or, if he shall not have furnished to the Secretary his address for such purpose, then at his address last known to the Secretary, or by transmitting a notice thereof to him at such address by telegraph, cable or wireless. Except as otherwise expressly required by law, no publication of any notice of a meeting of the stockholders shall be required. Every notice of a meeting of the stockholders shall state the place, date and hour of the meeting, and, in the case of a special meeting shall also state the purpose or purposes for which the meeting is called. Except as otherwise expressly required by law, notice of any adjourned meeting of the stockholders need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken. Whenever notice is required to be given to any stockholder to whom (i) notice of two consecutive annual meetings, and all notices of meetings or of the taking of action by written consent without a meeting to such person during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by first class mail) of dividends or interest on securities during a twelve month period, have been mailed addressed to such person at his address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall have been taken or held without notice to such person shall the same force and effect as if such notice had been duly given. If any such person shall deliver to the Corporation a written notice setting forth his then current address, the requirement that notice be given to such person shall be reinstated. No notice need be given to any person with whom communication is unlawful, nor shall there be any duty to apply for any permanent or license to give notice to any such person. Section 2.05 QUORUM. Except as provided by law, the holders of record of a majority in voting interest of the shares of stock of the Corporation entitled to be voted, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Corporation or any adjournment thereof. The stockholders 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 stockholders to leave less than a quorum. In the absence of a quorum at any meeting or any adjournment thereof, a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat or, in the absence therefrom of all the stockholders, any officer entitled to preside at or to act as secretary of such meeting may adjourn such meeting from time to time. At any such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called. Section 2.06 VOTING. (a) At each meeting of the stockholders, each stockholder shall be entitled to vote in person or by proxy each share or fractional share of the stock of the Corporation which -19- has voting rights on the matter in question and which shall have been held by him and registered in his name on the books of the Corporation: (i) on the date fixed pursuant to Section 2.10 of these Bylaws as the record date for the determination of stockholders entitled to notice of and to vote at such meeting, or (ii) if no such record date shall have been so fixed, then (A) at the close of business on the day next preceding the day on which notice of the meeting shall be given or (B) if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held. (b) Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors in such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Persons holding stock of the Corporation in a fiduciary capacity shall be entitled to vote such stock. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the Corporation he shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock and vote thereon. Stock having voting power standing of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or with respect to which two or more persons have the same fiduciary relationship, shall be voted in accordance with the provisions of the General Corporation Law of Delaware. (c) Any such voting rights may be exercised by the stockholder entitled thereto in person or by his proxy appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized and delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date unless said proxy shall provide for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At any meeting of the stockholders all matters, except as otherwise provided in the Certificate of Incorporation, in these Bylaws or by law, shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat and thereon. The stockholders 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 stockholders to leave less than a quorum. The vote at any meeting of the stockholders on any question need not be by ballot, unless so directed by the chairman of the meeting. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and it shall state the number of shares voted. Section 2.07 LIST OF STOCKHOLDERS. The Secretary of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the entire duration thereof, and may be inspected by any stockholder who is present. -20- Section 2.08 INSPECTOR OF ELECTION. If at any meeting of the stockholders a vote by written ballot shall be taken on any question, the chairman of such meeting may appoint an inspector or inspectors of election to act with respect to such vote. Each inspector so appointed shall first subscribe an oath faithfully to execute the duties of an inspector at such meeting with strict impartiality and according to the best of his ability. Such inspectors shall decide upon the qualification of the voters and shall report the number of shares represented at the meeting and entitled to vote on such question, shall conduct and accept the votes, and, when the voting is completed, shall ascertain and report the number of shares voted respectively for and against the question. Reports of the inspectors shall be in writing and subscribed and delivered by them to the Secretary of the Corporation. Inspectors need not be stockholders of the Corporation, and any officer of the Corporation may be an inspector on any question other than a vote for or against a proposal in which he shall have a material interest. 2.09 STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the General Corporation Law of the State of Delaware to be taken at any annual or special meeting of the stockholders, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 2.10 RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or 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 change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board and which record date: (i) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; (ii) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten days from the date upon which the resolution fixing the record date is adopted by the Board; and (iii) in the case of any other action, shall not be more than sixty days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the Board is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board is required by law, shall be at the close of business on the day on which the Board adopts the resolution taking such prior action; and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting. -21- ARTICLE III BOARD OF DIRECTORS ------------------ Section 3.01 GENERAL POWERS. The property, business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all of the powers of the Corporation, except such as are by the Certificate of Incorporation, by these Bylaws or by law conferred upon or reserved to the stockholders. Section 3.02 NUMBER AND TERM. The Board shall consist of five members, until changed from time to time by resolution of the Board. Directors need not be stockholders of the Corporation. Each director shall hold office until a successor is elected and qualified or until the director resigns or is removed. Section 3.03 ELECTION OF DIRECTORS. The directors shall be elected by the stockholders of the Corporation, and at each election the persons receiving the greatest number of votes, up to the number of directors then to be elected, shall be the persons then elected. The election of directors is subject to any provisions contained in the Certificate of Incorporation relating thereto, including any provisions for a classified board. Section 3.04 RESIGNATION AND REMOVAL. Any director of the Corporation may resign at any time by giving written notice to the Board or to the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time is not specified, it shall take effect immediately upon its receipt; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Except as otherwise provided by the Certificate of Incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares then entitled to vote at an election of directors. Section 3.05 VACANCIES. Except as otherwise provided in the Certificate of Incorporation, any vacancy in the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause, may be filled by vote of the majority of the remaining directors, although less than a quorum, or by a sole remaining director. Each director so chosen to fill a vacancy shall hold office until his successor shall have been elected and shall qualify or until he shall resign or shall have been removed. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of his term of office. Upon the resignation of one or more directors from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided hereinabove in the filling of other vacancies. Section 3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The Board may hold any of its meetings at such place or places within or without the State of Delaware as the Board may from time to time by resolution designate or as shall be designated by the person or persons calling the meeting or in the notice or waiver of notice of any such meeting. Directors may participate in any regular or special meeting of the Board by means of conference telephone or similar communications equipment pursuant to which all -22- persons participating in the meeting of the Board can hear each other, and such participation shall constitute presence in person at such meeting. Section 3.07 FIRST MEETING. The Board shall meet as soon as practicable after each annual election of directors and notice of such first meeting shall not be required. Section 3.08 REGULAR MEETINGS. Regular meetings of the Board may be held at such times as the Board shall from time to time by resolution determine. If any day fixed for a meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting shall be held at the same hour and place on the next succeeding business day which is not a legal holiday. Except as provided by law, notice of regular meetings need not be given. Section 3.09 SPECIAL MEETINGS. Special meetings of the Board may be called at any time by the Chairman of the Board or the President or by any two (2) directors, to be held at the principal office of the Corporation, or at such other place or places, within or without the State of Delaware, as the person or persons calling the meeting may designate. Notice of the time and place of special meetings shall be given to each director either (i) by mailing or otherwise sending to him a written notice of such meeting, charges prepaid, addressed to him at his address as it is shown upon the records of the Corporation, or if it is not so shown on such records or is not readily ascertainable, at the place in which the meetings of the directors are regularly held, at least seventy-two (72) hours prior to the time of the holding of such meeting; or (ii) by orally communicating the time and place of the special meeting to him at least forty-eight (48) hours prior to the time of the holding of such meeting. Either of the notices as above provided shall be due, legal and personal notice to such director. Section 3.10 QUORUM AND ACTION. Except as otherwise provided in these Bylaws or by law, the presence of a majority of the authorized number of directors shall be required to constitute a quorum for the transaction of business at any meeting of the Board, and all matters shall be decided at any such meeting, a quorum being present, by the affirmative votes of a majority of the directors present. In the absence of a quorum, a majority of directors present at any meeting may adjourn the same from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. The directors shall act only as a Board, and the individual directors shall have no power as such. Section 3.11 ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or such committee. Such action by written consent shall have the same force and effect as the unanimous vote of such directors. Section 3.12 COMPENSATION. No stated salary need be paid to directors, as such, for their services but, as fixed from time to time by resolution of the Board, the directors may receive directors' fees, compensation and reimbursement for expenses for attendance at directors' meetings, for serving on committees and for discharging their duties; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 3.13 COMMITTEES. The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at -23- any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to these Bylaws. Any such committee shall keep written minutes of its meetings and report the same to the Board when required. ARTICLE IV OFFICERS -------- Section 4.01 OFFICERS. The officers of the Corporation shall be a President (who shall be the Chief Executive Officer of the Corporation), a Secretary and a Treasurer. The Corporation may also have, at the discretion of the Board, a Chairman of the Board, a Vice Chairman of the Board, one or more Vice Presidents, one or more Assistant 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 4.03 of these Bylaws. One person may hold two or more offices. Section 4.02 ELECTION AND TERM. The officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 4.03 or Section 4.05 of these Bylaws, shall be chosen annually by the Board, and each shall hold his office until he shall resign or shall be removed or otherwise disqualified to serve, or until his successor shall be elected and qualified. Section 4.03 SUBORDINATE OFFICERS. The Board may appoint, or may authorize the Chief Executive Officer to appoint, such other officers as the business of the Corporation may require, each of whom shall have such authority and perform such duties as are provided in these Bylaws or as the Board or the President from time to time may specify, and shall hold office until he shall resign or shall be removed or otherwise disqualified to serve. Section 4.04 REMOVAL AND RESIGNATION. Any officer may be removed, with or without cause, by a majority of the directors at the time in office, at any regular or special meeting of the Board, or, except in case of an officer chosen by the Board, by the Chief Executive Officer upon whom such power of removal may be conferred by the Board. Any officer may resign at any time by giving written notice to the Board, the Chairman of the Board, the President or the Secretary of the Corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. -24- Section 4.05 VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in the Bylaws for the regular appointments to such office. Section 4.06 CHAIRMAN OF THE BOARD. The Chairman of the Board, if any, shall preside at all meetings of the stockholders and the Board and exercise and perform such other powers and duties with respect to the administration of the business and affairs of the Corporation as may from time to time be assigned to him by the Board or as is prescribed by the Bylaws. Section 4.07 PRESIDENT. The President of the Corporation shall, subject to the control of the Board, have general supervision, direction and control of the business and affairs of the Corporation. In the absence of a Chairman or Vice Chairman of the Board, he shall preside at all meetings of stockholders and the Board. He shall be the Chief Executive Officer of the Corporation and shall have the general powers and duties of management usually vested in the chief executive officer of a corporation, and shall have such other powers and duties with respect to the administration of the business and affairs of the Corporation as may from time to time be assigned to him by the Board or as prescribed by the Bylaws. Section 4.08 VICE PRESIDENT. The Vice President(s), if any, shall exercise and perform such powers and duties with respect to the administration of the business and affairs of the Corporation as from time to time may be assigned to each of them by the President, by the Chairman of the Board, if any, by the Board or as is prescribed by the Bylaws. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board, or if not ranked, the Vice President designated by the Board, shall perform all of the duties of the President and when so acting shall have all of the powers of and be subject to all the restrictions upon the President. Section 4.09 SECRETARY. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office for the transaction of the business of the Corporation, or such other place as the Board may order, of all meetings of directors and stockholders, with the time and place of holding, whether regular or special, and if special, how authorized and the notice thereof given, the names of those present at directors' meetings, the number of shares present or represented at stockholders' meetings and the proceedings thereof. The Secretary shall keep, or cause to be kept, at the principal office for the transaction of the business of the Corporation or at the office of the Corporation's transfer agent, a share register, or a duplicate share register, showing the names of the stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, 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 the meetings of the stockholders and of the Board required by these Bylaws or by law to be given, and he shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board or these Bylaws. If for any reason the Secretary shall fail to give notice of any special meeting of the Board called by one or more of the persons identified in Section 3.09 of these Bylaws, or if he shall fail to give notice of any special meeting of the stockholders called by one or more of the persons identified in Section 2.02 of these Bylaws, then any such person or persons may give notice of any such special meeting. Section 4.10 TREASURER. The Treasurer shall keep and maintain or cause to be kept and maintained, adequate and correct accounts of the properties and business -25- transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares. Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of capital, shall be classified according to source and shown in a separate account. The books of account at all reasonable times shall be open to inspection by any director. The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board. He shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the President, to the Chief Executive Officer and to the directors, whenever they request it, an account of all of his transactions as Treasurer 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 or these Bylaws. Section 4.11 COMPENSATION. The compensation of the officers of the Corporation, if any, shall be fixed from time to time by the Board. ARTICLE V CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC. ---------------------------------------------- Section 5.01 EXECUTION OF CONTRACTS. The Board, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board or by these Bylaws, 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 in any amount. Section 5.02 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidence 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. Each such person shall give such bond, if any, as the Board may require. Section 5.03 DEPOSIT. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select, or as may be selected by any officer or officers, assistant or assistants, agent or agents, attorney or attorneys, of the Corporation to whom such power shall have been delegated by the Board. For the purpose of deposit and for the purpose of collection for the account of the Corporation, the President, the Chief Executive Officer, any Vice President or the Treasurer (or any other officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation who shall be determined by the Board from time to time) may endorse, assign and deliver checks, drafts and other orders for the payment of money which are payable to the order of the Corporation. Section 5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board from time to time may authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositories as the Board may select or as may be selected by an officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. The Board -26- may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these Bylaws, as it may deem expedient. ARTICLE VI SHARES AND THEIR TRANSFER ------------------------- Section 6.01 CERTIFICATES FOR STOCK. Every owner of stock of the Corporation shall be entitled to have a certificate or certificates, in such form as the Board shall prescribe, certifying the number and class of shares of the stock of the Corporation owned by him. The certificates representing shares of such stock shall be numbered in the order in which they shall be issued and shall be signed in the name of the Corporation by the Chairman of the Board, the President or a Vice President and by the Secretary or an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any such certificate shall thereafter have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be cancelled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 6.04 of these Bylaws. Section 6.02 TRANSFER OF STOCK. Transfer of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary, or with a transfer clerk or a transfer agent appointed as provided in Section 6.03 of these Bylaws, and upon surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact shall be stated expressly in the entry of transfer if, when the certificate or certificates shall be presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so. Section 6.03 REGULATIONS. The Board may make such rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. The Board may appoint, or authorize any officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them. Section 6.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any case of loss, theft, destruction, or mutilation of any certificate of stock, another may be issued in its place upon proof of such loss, theft, destruction, or mutilation and upon the giving of a bond of indemnity to the Corporation in such form and in such sums as the Board may direct; provided, however, that a new certificate may be issued without requiring any bond when, in the judgment of the Board, it is proper to do so. -27- Section 6.05 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or any Vice President and the Secretary or any Assistant Secretary of this Corporation are authorized to vote, represent and exercise on behalf of this Corporation all rights incident to all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers. ARTICLE VII INDEMNIFICATION --------------- Section 7.01 ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or 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 as a member of any committee or similar body, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. Section 7.02 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or 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 as a member of any committee or similar body, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 7.03 DETERMINATION OF RIGHT OF INDEMNIFICATION. Any indemnification under Section 7.01 or 7.02 of these Bylaws (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances -28- because he has met the applicable standard of conduct set forth in Sections 7.01 and 7.02 of these Bylaws. Such determination shall be made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. Section 7.04 INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the other provisions of this Article VII, to the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 7.01 or 7.02 of these Bylaws, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Section 7.05 ADVANCE OF EXPENSES. Expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the director or officer, to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VII. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate. Section 7.06 OTHER RIGHTS AND REMEDIES. The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article VII shall not be deemed exclusive and are declared expressly to be nonexclusive of any other rights to which those seeking indemnification or advancements of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. Section 7.07 INSURANCE. Upon resolution passed by the Board, the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or 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 as a member of any committee or similar body against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VII. Section 7.08 CONSTITUENT CORPORATIONS. For the purposes of this Article VII, references to "the Corporation" include in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. Section 7.09 EMPLOYEE BENEFIT PLANS. For the purposes of this Article VII, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; -29- and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article VII. Section 7.10. BROADEST LAWFUL INDEMNIFICATION. In addition to the foregoing, the Corporation shall, to the broadest and maximum extent permitted by Delaware law, as the same exists from time to time (but, in case of any amendment to or change in Delaware law, only to the extent that such amendment or change permits the Corporation to provide broader rights of indemnification than is permitted to the Corporation prior to such amendment or change), indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is or was a director or officer 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, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding. In addition, the Corporation shall, to the broadest and maximum extent permitted by Delaware law, as the same may exist from time to time (but, in case of any amendment to or change in Delaware law, only to the extent that such amendment or change permits the Corporation to provide broader rights of payment of expenses incurred in advance of the final disposition of an action, suit or proceeding than is permitted to the Corporation prior to such amendment or change), pay to such person any and all expenses (including attorneys' fees) incurred in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer, to repay such amount if it shall ultimately be determined by a final judgment or other final adjudication that he is not entitled to be indemnified by the Corporation as authorized in this Section 7.10. The first sentence of this Section 7.10 to the contrary notwithstanding, the Corporation shall not indemnify any such person with respect to any of the following matters: (i) remuneration paid to such person if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or (ii) any accounting of profits made from the purchase or sale by such person of the Corporation's securities within the meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; or (iii) actions brought about or contributed to by the dishonesty of such person, if a final judgment or other final adjudication adverse to such person establishes that acts of active and deliberate dishonesty were committed or attempted by such person with actual dishonest purpose and intent and were material to the adjudication; or (iv) actions based on or attributable to such person having gained any personal profit or advantage to which he was not entitled, in the event that a final judgment or other final adjudication adverse to such person establishes that such person in fact gained such personal profit or other advantage to which he was not entitled; or (v) any matter in respect of which a final decision by a court with competent jurisdiction shall determine that indemnification is unlawful; provided, however, that the Corporation shall perform its obligations under the second sentence of this Section 7.10 on behalf of such person until such time as it shall be ultimately determined by a final judgment or other final adjudication that he is not entitled to be indemnified by the Corporation as authorized by the first sentence of this Section 7.10 by virtue of any of the preceding clauses (i), (ii), (iii), (iv) or (v). Section 7.11. TERM. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall, unless otherwise provided when -30- authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 7.12 SEVERABILITY. If any part of this Article VII shall be found, in any action, suit or proceeding or appeal therefrom or in any other circumstances or as to any particular officer, director, employee or agent to be unenforceable, ineffective or invalid for any reason, the enforceability, effect and validity of the remaining parts or of such parts in other circumstances shall not be affected, except as otherwise required by applicable law. Section 7.13 AMENDMENTS. The foregoing provisions of this Article VII shall be deemed to constitute an agreement between the Corporation and each of the persons entitled to indemnification hereunder, for as long as such provisions remain in effect. Any amendment to the foregoing provisions of this Article VII which limits or otherwise adversely affects the scope of indemnification or rights of any such persons hereunder shall, as to such persons, apply only to claims arising, or causes of action based on actions or events occurring, after such amendment and delivery of notice of such amendment is given to the person or persons so affected. Until notice of such amendment is given to the person or persons whose rights hereunder are adversely affected, such amendment shall have no effect on such rights of such persons hereunder. Any person entitled to indemnification under the foregoing provisions of this Article VII shall, as to any act or omission occurring prior to the date of receipt of such notice, be entitled to indemnification to the same extent as had such provisions continued as Bylaws of the Corporation without such amendment. ARTICLE VIII MISCELLANEOUS ------------- Section 8.01 SEAL. The Board shall provide a corporate seal, which shall be in the form of a circle and shall bear the name of the Corporation and words and figures showing that the Corporation was incorporated in the State of Delaware and showing the year of incorporation. Section 8.02 WAIVER OF NOTICES. Whenever notice is required to be given under any provision of these bylaws, the Certificate of Incorporation or by law, a written waiver, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when a person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless required by the Certificate of Incorporation. Section 8.03 LOANS AND GUARANTIES. The Corporation may lend money to, or guarantee any obligation of, and otherwise assist any officer or other employee of the Corporation or of its subsidiaries, including any officer who is a director, whenever, in the judgment of the Board, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty, or other assistance may be with or without interest, and may be unsecured or secured in such manner as the Board shall approve, including, without limitation, a pledge of shares of stock of the Corporation. -31- Section 8.04 GENDER. All personal pronouns used in these Bylaws shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural, and vice versa, whenever and as often as may be appropriate. Section 8.05 AMENDMENTS. These Bylaws, or any of them, may be rescinded, altered, amended or repealed, and new Bylaws may be made (i) by the Board, by vote of a majority of the number of directors then in office as directors, acting at any meeting of the Board or (ii) by the stockholders, by the vote of a majority of the outstanding shares of voting stock of the Corporation, at an annual meeting of stockholders, without previous notice, or at any special meeting of stockholders, provided that notice of such proposed amendment, modification, repeal or adoption is given in the notice of special meeting; provided, however, that Section 2.02 of these Bylaws can only be amended if that Section as amended would not conflict with the Corporation's Certificate of Incorporation. Any Bylaw made or altered by the stockholders may be altered or repealed by the Board or may be altered or repealed by the stockholders. -32- EX-10.5 5 dex105.txt LEASE EXECUTED ON SEPTEMBER 12, 1988 Exhibit 10.5 ------------ Reference is made to that certain lease dated September 12, 1988 made by and between LYNN SHADOWS, a California General Partnership, as Landlord, and SEMTECH CORPORATION, a Delaware Corporation, as Tenant, covering property situated in Newbury Park, County of Ventura, State of California described in Exhibit A of above referenced lease. Effective January 1, 1996, all right, title and interest in and to said Lease was assigned by LYNN SHADOWS, a California General Partnership, unto LYNN SHADOWS, L.L.C., a California Limited Liability Company in accordance with an Assignment of Lease, dated as of January 1, 1996. All references to Landlord in this Extension of Lease shall mean LYNN SHADOWS, L.L.C. NOW, THEREFORE, it is agreed between the parties hereto that the above referenced lease and additions thereto be extended in accordance with the following terms and conditions: 1. The lease term is to be extended for a period of five (5) years from September 1, 1998 and to terminate on August 31, 2003. 2. The minimum monthly rental commencing September 1, 1998 and for the balance of the extended lease term, shall be Eighteen Thousand Seven Hundred and Fifty Six Dollars and no/100ths ($18,756.00). 3. Tenant shall have the right to cancel this lease at any time during the extension period after August 31, 2001 as long as written notice is provided to Landlord at least twelve (12) months prior to the termination date selected by Tenant. 4. Paragraph 44 of the Lease dated September 13, 1988 is herewith deleted. 5. Other than as herein specifically amended, all other terms and conditions of that certain lease dated September 12, 1988 shall remain in full force and effect during the term of this extension herein provided. IN WITNESS WHEREOF, the parties hereto set their hands this September 9th day of September 1997. LANDLORD LYNN SHADOWS, a California Limited Liability Company By: __________________________________________ By: __________________________________________ By: __________________________________________ By: __________________________________________ TENANT SEMTECH CORPORATION By: __________________________________________ By: __________________________________________ -33- EX-10.11 6 dex1011.txt DEVELOPMENT AGREEMENT DATED APRIL 11, 2000 Exhibit 10.11 ------------- DEVELOPMENT AGREEMENT --------------------- (SEMTECH) THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of April 11, 2000 ("Execution Date"), by and between SEMTECH CORPORATION, a Delaware corporation ("Owner"), and VOIT DEVELOPMENT CO., INC., a California corporation ("Developer"), with respect to the following matters. W I T N E S S E T H: ------------------- A. Owner is the owner of approximately 13.34 acres of unimproved real property located at the northeast corner of Mission Oaks Boulevard and Flynn Road, in the City of Camarillo ("City"), California ("State"), which is more particularly described on Exhibit "A" attached hereto (the "Land"). ----------- B. As more fully set forth below in this Agreement, Owner desires to engage Developer to undertake the process of obtaining the entitlements and preparing preliminary development documents for approximately 219,360 square feet of office/research and development space within three (3), two-story, concrete tilt-up buildings, generally as depicted on the site plan attached hereto as Exhibit "B" ("Site Plan"), which will be divided into three (3) ----------- phases: (i) the first phase will consist of a single, two-story concrete tilt-up building of approximately 85,360 square feet, approximately 516 surface parking spaces, and the ancillary improvements and landscaping depicted on the Site Plan as "Phase 1", (ii) the second phase will consist of a single, two-story, concrete tilt-up building of approximately 67,000 square feet, approximately 157 surface parking spaces, and the ancillary improvements and landscaping depicted on the Site Plan as "Phase 2", and the third phase will consist of a single, two-story, concrete tilt-up building of approximately 67,000 square feet, approximately 226 surface parking spaces, and the ancillary improvements and landscaping depicted on the Site Plan as "Phase 3". C. As more fully set forth below in this Agreement, Owner desires to engage Developer to obtain the entitlements for Phases 1, 2 and 3 and to develop, and construct only Phase 1, i.e., Developer will not be responsible for ---- developing or constructing Phase 2 or 3. For the purposes of this Agreement, the "Project" shall refer to (i) the entitlements for Phases 1, 2 and 3, and (ii) the development and construction of Phase 1. AGREEMENT --------- NOW, THEREFORE, incorporating the foregoing recitals, and in consideration of the mutual covenants herein contained and of other good and valuable consideration, the parties hereto agree as follows. ARTICLE 1 --------- DEFINED TERMS ------------- The following capitalized terms shall have the meanings set forth below: "Completion Date" shall mean the date on which the Architect certifies to Owner and Developer that the work on the Project has been substantially completed, including all tenant improvements, landscaping, driveways, except for any punchlist items which, in the aggregate (and together with a contingency of twenty-five percent (25%) thereof), do not exceed One -34- Hundred Thousand and no/100 Dollars ($100,000.00), and a certificate of occupancy (or its equivalent) has been issued by the City for the Phase 1 improvements which allows Owner to occupy the improvements for their intended purpose. "Fixed Price" shall mean the sum of Ten Million Two Hundred One Thousand Six Hundred Sixty-Two and No/100 Dollars ($10,201,662.00), as increased or decreased by (a) changes in the scope of work caused by Owner or City, (b) delays in the prosecution of the work caused by Owner or City, (c) the actual cost of the items for which an "allowance" is indicated on Exhibit "C" attached ----------- hereto, including, without limitation, the various fees, charges, exactions and requirements imposed by the City in connection with obtaining the entitlements. ARTICLE 2 --------- APPOINTMENT AND TERM -------------------- 2.1 Appointment. Owner hereby engages Developer to oversee, arrange, ----------- supervise and coordinate on behalf of Owner all planning, development and construction services for the planning, design, permitting and construction of the Project in accordance with the terms of this Agreement, and Developer hereby accepts such engagement on the terms and conditions herein contained. Developer accepts the relationship of trust and confidence established by this Agreement and covenants with Owner to perform its obligations under this Agreement in accordance with the customary standard of care in the industry for such work and in furthering the interests of the Owner in the performance of the services to be provided by Developer hereunder. 2.2 Term. The term of this Agreement ("Term") shall commence on the ---- Execution Date and shall terminate upon the Completion Date unless terminated earlier pursuant to the provisions of Article 8 of this Agreement. ARTICLE 3 --------- RELATIONSHIP ------------ Developer shall at all times be an independent contractor and not an agent or employee of Owner. Nothing herein shall be deemed to create a partnership or joint venture between Developer and Owner or otherwise provide Developer with any ownership interest in all or any portion of the Project or the Land. ARTICLE 4 --------- DEVELOPMENT PROCESS ------------------- 4.1 Development Documents and Schedule. ---------------------------------- 1. Preliminary Development Documents. Developer has provided Owner with a --------------------------------- complete set, and Owner hereby approves the form and content, of the Summary of Phase 1 Drawings, Specifications and Reports (including the Clarifications, Alternates and Allowances attached thereto) described on Exhibit "D" attached hereto ("Concept Plans"). ----------- 2. Preliminary Project Development/Construction Schedule. Owner hereby ----------------------------------------------------- approves the estimated schedule for the development and construction of the Project in the form attached hereto as Exhibit "E" ("Preliminary Schedule"). ----------- Developer shall endeavor to conform to -35- the Schedule; however, Owner acknowledges and agrees that forces beyond Developer's reasonable control, such as the actions or inactions of governmental agencies, third parties, inclement weather, unavailability of labor or materials and actions or inactions of Owner could cause delays in the Schedule. 4.2 Development of the Project. During the Term, the Developer shall -------------------------- perform the following services. 3. Engagement and Supervision of Professionals. Developer shall, for the ------------------------------------------- benefit of Owner, engage Poliquin Kellogg Design Group ("Architect"), South Bay Engineering Company ("Engineer"), Coco Traffic Engineers ("Traffic Engineer"), Earth Systems Consultants ("Soils Engineer"), Valley Commercial Contractors, L.P. ("Contractor"), and such other engineers, designers, experts and consultants, including, without limitation, testing and inspection consultants and roof inspectors, as reasonably necessary or appropriate, to provide design services for the entitlement, planning, development and construction of the Project. Owner hereby approves the selection of the foregoing parties, and Developer shall have the right to replace any of such parties with similarly qualified and experienced parties, and shall provide written notice thereof to Owner. Upon engaging any additional consultants, Developer shall provide prior written thereof to Owner. Owner acknowledges that Contractor is an affiliate of Developer. Developer shall negotiate the form and execute all agreements with consultants or other professionals providing goods or services for the Project, and all such agreements shall provide that any insurance coverage, representations or warranties made thereunder are made for the benefit of Owner and Developer. Developer shall cause the parties engaged pursuant to this Section 4.2.1 to prepare complete plans, specifications and working drawings for the construction of the Project which are consistent with the Concept Plans (the "Submitted Plans"), copies of which shall be delivered to Owner. Developer shall supervise all of such architectural/engineering and design services to assure that the Submitted Plans will be prepared and be substantially consistent with the Concept Plans. Owner shall have ten (10) days to provide Developer with written notice of any proposed changes to the Submitted Plans or the corresponding specifications, and the failure to do so shall be deemed to constitute Owner's approval thereof. To the extent that any such changes are not consistent with, or exceed the scope of, the Concept Plans, all additional costs thereof (including, without limitation, entitlement, design, development, construction, professional services, delay, overhead and the like) shall be borne by Owner and increase the Fixed Price. Upon actual or deemed approval by Owner, the Submitted Plans shall be referred to herein as the "Approved Plans and Specifications." The Approved Plans and Specifications shall not be revised by Developer in any material respect without the prior written consent of Owner. 4. Procuring Entitlements, Permits and Approvals. Immediately following the --------------------------------------------- engagement of the Architect provided above, Developer shall process, procure and maintain in the name of Owner all necessary entitlements and governmental approvals for the design, development, construction, and occupancy of the Project, including, without limitation, any special permits, rezoning, subdivisions, variances or authorizations required by applicable law. The parties anticipate that the entitlements for the Project will consist of a lot line adjustment (to cause each Phase to exist on a separate legal parcel), a mitigated negative declaration (to comply with the California Environmental Quality Act of 1970 (CEQA)), and planned development permit by the City. In addition, Developer shall process any other entitlements, applications or approvals necessary for the development, construction or occupancy of Phase 1, including, without limitation, building permits. Developer shall maintain true and complete copies of all such permits and authorizations and, at the request of Owner, promptly provide copies of -36- same to Owner. In addition, Developer shall make all requisite arrangements with public and/or private utilities to ensure that water, sewer, electric, gas and other utilities will be available to serve the Project. 5. Engagement of Contractor. Developer shall negotiate and execute all ------------------------ necessary construction and other contracts for the construction of the Project, all of which shall be consistent with the Approved Plans and Specifications. Owner shall be a beneficiary of any insurance coverage, representations or warranties under the contract with the General Contractor, including, without limitation, any equipment and material warranties; however, Owner shall not have any liability under such agreement. Owner shall have the right to approve any change order which results in a material modification of the Approved Plans and Specifications. 6. Project Schedule. Following completion of the Approved Plans and ---------------- Specifications and the issuance of the permits required for the construction of Phase 1, if the Preliminary Schedule has changed, Developer shall prepare and deliver to Owner a "Project Schedule" for the Project which shall set forth the dates for starting and completing the various stages of construction of the Project and which shall substantially conform to the timing set forth in the Preliminary Schedule, except to the extent that delays were caused by events beyond Developer's reasonable control. Developer shall not voluntarily delay items on the Project Schedule that would result in a material delay of the Completion Date without the Owner's prior written consent. Developer shall keep Owner advised, on a monthly basis, as to the progress of the various stages of construction under the Project Schedule that affect the Completion Date by providing a written report. 7. Monitoring Construction. Developer shall monitor and coordinate all ----------------------- construction work by Contractor and others engaged for the construction of the Project. Developer shall cause the inspection of, as necessary, the progress of the construction of the Project and verify that all materials and labor furnished in connection therewith have been supplied or completed in a good and workmanlike manner and that all work is performed in substantial accordance with the Approved Plans and Specifications, free and clear of all liens (to the extent that Developer has received funds therefor from Owner) and in compliance with all laws and permits affecting the Project. Developer shall confirm that such construction is being carried out in within the time allocated under the Project Schedule. During the course of construction of the Project, Developer shall on a monthly basis, submit to Owner a written report on the status of the construction of the Project, including verification that the Project Schedule is being met or an explanation of any delays that would materially delay the Completion Date. Upon request, Developer shall certify the foregoing in writing to Owner and, if requested by Owner, any construction lender designated by Owner. 8. Completion of Construction. When the construction of the Project has been -------------------------- substantially completed in substantial accordance with the Approved Plans and Specifications and a Certificate of Occupancy (or its equivalent) has been issued for the habitable improvements included in the Project, Developer shall obtain, on behalf of Owner, a certification to that effect from the Architect (which shall include any outstanding issues or items which require correction ("Punchlist"), whereupon the Project shall be deemed substantially completed. Promptly following the Completion Date, Developer shall complete the items on the Punchlist, and upon the completion thereof, as certified by Architect, the Project shall be deemed complete. Following the Completion Date, Developer shall cooperate with Owner's efforts to enforce all warranties, representations and guarantees of the Architect, Contractor and subcontractors, suppliers and materialmen, and all other persons furnishing supplies, -37- materials, equipment, or services in connection with the construction or equipping of the Project, with respect to any defects in the construction of the Project or the installation or operation of any fixture or equipment therein. 9. Legal Actions. Developer shall not have any obligation to institute, ------------- commence and prosecute on behalf of Owner any legal actions, proceedings or arbitrations in connection with the construction of the Project or to defend or cause the defense of Owner in connection with any legal action, proceedings or arbitrations commenced against Owner, except at Owner's sole, additional expense. All such legal actions, and any and all decisions with respect to the prosecution and defense of such actions, shall be made by Owner with counsel approved by Owner. 10. Construction Financing. Developer shall assist Owner, if requested by ---------------------- Owner, in complying with the reasonable terms of any construction and development financing for the Project obtained by Owner. 4.3 Employees. Developer shall employ such employees as shall be --------- necessary or appropriate to enable Developer at all times to oversee, arrange, supervise, coordinate and provide the required services to the Project pursuant to this Agreement. Such employees shall be deemed to be the employees of Developer, and Developer shall indemnify, defend and save Owner harmless from and against all claims made by such employees based on job related illness or injury. The foregoing indemnity shall survive the termination of this Agreement. All matters pertaining to the employment, training, conduct, supervision, compensation, promotion and discharge of such employees shall be the responsibility of Developer and Developer shall comply with all applicable laws and regulations having to do with worker's compensation, social security, unemployment insurance, hours of labor, wages, working conditions and safety and similar matters with respect to such employees. Developer hereby designates Timothy F. Regan as project manager and Developer's representative (the "Developer Representative") for the Project. The Developer Representative shall not be replaced without the Owner's prior written consent, which shall not be unreasonably withheld or delayed. Owner shall have the right to require Developer to replace the Developer Representative, or any other employee of Developer providing services hereunder, if Owner has reasonable objections to any such individual. Owner hereby designates Gary Stanulis as the "Owner Representative". Owner shall have the right to replace the Owner Representative by providing written notice thereof to Developer. The Developer Representative shall have the authority to bind Developer; and the Owner Representative shall have the right to bind Owner. 4.4 Lender and Legal Compliance. Developer shall be responsible for --------------------------- the planning and development of the Project in compliance with all terms and conditions in any private covenants, conditions and restrictions (CC&Rs), ground leases, initial space leases, mortgages, other security instruments or similar encumbrances affecting the Project which are disclosed to Developer by Owner in writing before the commencement of work. 4.5 Owner Information. Developer shall make the Developer ----------------- Representative and its other personnel available at reasonable times for communications with Owner and will keep Owner advised of matters affecting the Project and will provide regular updates regarding the status of the Project on a basis reasonably acceptable to Owner. -38- ARTICLE 5 --------- DEVELOPER'S AUTHORITY --------------------- Developer shall have only the power and authority expressly delegated to it hereunder. Developer shall not be permitted to execute any agreement or change orders on behalf of, or in the name of, Owner unless Owner specifically authorizes such action by Developer. ARTICLE 6 --------- INSURANCE --------- During the Term, Owner and Developer shall each procure and maintain, or caused to be maintained, on behalf of the Owner, insurance coverage in the form, amount and manners specified on Exhibit "F" attached hereto. ----------- ARTICLE 7 --------- OWNER'S RIGHT TO INSPECT ------------------------ Owner shall have the right, at its sole cost and expense, during normal business hours, to examine the books and records maintained by Developer pertaining to the performance of Developer's services under this Agreement. ARTICLE 8 --------- TERMINATION ----------- 8.1 Termination. Either Owner or Developer shall have the right to ----------- terminate this Agreement at any time for any default by the other party in the performance of its duties hereunder (including all exhibits hereto) or under any of the documents executed and delivered from time to time by Owner or Developer, if: 11. in the event such default is a monetary default, such default continues for a period of ten (10) days after notice is given to the defaulting party, 12. in the event such default is a nonmonetary default, such default continues for a period of thirty (30) days after notice is given to the defaulting party if such default can reasonably be cured within such period, otherwise, it shall be sufficient if such party commences the cure thereof within such 30-day period and diligently prosecutes it to completion, or 13. any party hereto makes an assignment for the benefit of creditors, or if a receiver, trustee, custodian, guardian, liquidator or similar agent is appointed with respect to such party, or if a petition is filed by or with the consent of any party hereto under any Federal or state law concerning bankruptcy, insolvency, reorganization, arrangement, or relief from creditors, or if such a petition is filed against such party and such petition is not dismissed within 90 days thereafter. 14. Notwithstanding the foregoing, neither party shall have any cure period with respect to a breach caused by such party's fraud or intentional misconduct. -39- 8.2 Remedies. In addition to terminating this Agreement based on the -------- default of a party hereunder, the non-defaulting party shall have the right to recover the actual damages caused thereby, but not any special, speculative, consequential or punitive damages; provided, however, that in no event shall Developer's liability exceed Four Hundred and Ten Thousand and no/100 Dollars ($410,000.00) except to the extent of Developer's gross negligence or willful misconduct. For the purposes of this Article VIII, the parties hereto hereby agree that Developer's failure to require any party performing services under this Agreement to maintain commercially reasonable levels and types of insurance shall be deemed to constitute gross negligence by Developer. The termination of this Agreement shall not relieve any party of any of its obligations theretofore accrued under this Agreement prior to the effective date of such termination. ARTICLE 9 --------- COOPERATION ----------- Should any claims, demands, suits or other legal proceedings be made or instituted by any person against Owner which arise out of any of the matters relating to any part of the Project or this Agreement, Developer shall give Owner all pertinent information in its possession and reasonable assistance in the defense or other disposition thereof. ARTICLE 10 ---------- DELAYS ------ Neither party shall be liable for its failure to perform its obligations hereunder due to accident, unusual difficulty or inability in obtaining services or supplies from sources usually used, inclement weather (or resulting unfavorable site conditions), labor difficulties, the other party's failure to perform its obligations hereunder, the actions or inactions of the City or any subdivision thereof, the actual or potential existence on the Property of any hazardous substances or any other causes beyond such party's reasonable control. Either party claiming any such delay shall provide notice of such claim promptly after the occurrence of the event causing such delay. In the case of a continuing delay, only one claim shall be required. Each such claim shall provide an estimate of the probable impact of such delay on the Project. ARTICLE 11 ---------- CONSENT; APPROVAL ----------------- Whenever in this Agreement the consent or approval of any party is required, such consent or approval shall be in writing only, shall not be unduly delayed and shall only be effective if given by a duly authorized officer or agent for the party granting such consent or approval. ARTICLE 12 ---------- NOTICES ------- All notices and other communications provided for herein shall be in writing and shall be sent to the address set forth below (or such other address as a party may hereafter designate for itself by notice to the other parties as required hereby) of the party for whom such notice or communication is intended: -40- If to Owner: Semtech Corporation 652 Mitchell Road Newbury Park, CA 91320 Attn: Mr. John D. Poe and Mr. David G. Franz, Jr. If to Developer: Voit Development Co., Inc. 21700 Oxnard Street Suite 1010 Woodland Hills, CA 91367 Attn: Mr. Robert G. Lumley Any such notice or communication shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid; by hand delivery; by overnight courier service; or by telecopy, with an original by regular mail. Any such notice or communication shall be effective upon receipt at the appropriate address. ARTICLE 13 ---------- COMPENSATION ------------ 13.1 Fixed Fee. Owner shall pay the Fixed Fee for the Project, plus --------- any additional costs resulting from changes to the Submitted Plans that exceed the scope of the Preliminary Plans or any delays of the Project Schedule caused by Owner and/or the actions or inactions of the City. The Fixed Fee shall be paid as follows: (a) prior to commencement of construction, Owner shall promptly pay Developer the sum of Ten Thousand and no/100 Dollars ($10,000.00) per month (for not more than five (5) months), plus the actual costs incurred by Developer in connection with the Project, and (b) during construction, Owner shall promptly reimburse Developer for the actual costs incurred by Developer in connection with the Project, plus four and one-quarter percent (4.25%) of the construction cost thereof (as more particularly indicated on Exhibit "C" ----------- attached hereto). The balance of the Fixed Fee, if any, shall be paid within three (3) business days after the Completion Date, except for the amount of the Punchlist, if applicable, which (together with the twenty-five percent (25%) contingency therefor) shall be paid promptly upon the completion of each item (as certified by the Architect), provided, however, that Developer shall not request disbursement on account of the Punchlist more often than once per month. 13.2 Late Fee. Subject to excused delays pursuant to Article 10, -------- Developer shall be liable to Owner for the following amounts (and for no other costs associated therewith) as the result of the failure to achieve the Completion Date: (a) One Thousand Five Hundred and no/100 Dollars ($1,500.00) per day for each day from the thirty-first (31st) day through the sixtieth (60th) day of delay, plus (b) Two Thousand no/100 Dollars ($2,000.00) per day for each day from the sixty-first (61st) day through the ninetieth (90th) day of delay. Any such late fee shall be offset against the Fixed Fee; provided, however, that in no event shall the total late fee exceed One Hundred Five Thousand and no/100 Dollars ($105,000.00). ARTICLE 14 ---------- INDEMNIFICATION --------------- The Developer shall indemnify, defend and hold harmless the Owner against all claims, costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by the -41- Owner and arising out of any failure of the Developer to perform any of its obligations under this Agreement, any acts of the Developer which constitute willful misconduct of the Developer or are beyond the scope of the Developer's authority hereunder, or the gross negligence of the Developer. ARTICLE 15 ---------- ASSIGNABILITY ------------- The services to be performed by Developer under this Agreement are personal to Developer and Developer shall not assign its rights or obligations under this Agreement without the prior consent of Owner given or withheld in Owner's sole discretion. Owner shall be permitted to assign its rights under this Agreement. ARTICLE 16 ---------- MISCELLANEOUS ------------- 16.1 Entire Agreement. This Agreement contains the entire agreement ---------------- between the parties respecting the matters herein set forth and supersedes all prior agreements between the parties hereto respecting such matters. 16.2 Bind and Inure. Subject to Article 15 hereof, the rights, duties -------------- and obligations of the parties to this Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of such parties. 16.3 Amendment. This Agreement may not be amended or modified except --------- by an instrument in writing and signed by all parties hereto. 16.4 Governing Law; Waiver of Jury Trial. This Agreement shall be ----------------------------------- governed and construed in accordance with the laws of the State. Each party hereto waives the right of trial by jury in any action brought in connection with this Agreement. 16.5 Headings. The headings used in this Agreement are for -------- convenience only and are not to be considered in connection with the interpretation or construction of this Agreement. 16.6 No Waiver. The failure of any party to seek redress for --------- violation of, or to insist upon the strict performance of, any covenant, agreement, provision or condition of this Agreement shall not constitute a waiver thereof nor prevent any subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. 16.7 Counterparts. This Agreement may be executed in several ------------ counterparts, each of which shall be an original of this Agreement, but all of which, taken together, shall constitute one and the same agreement. 16.8 Other Interests. Any party may, individually or with others, be --------------- engaged with respect to, or possess an interest in, any other projects and ventures of any kind or nature, whether or not competitive with the Project, and the other parties shall not, by virtue of this Agreement, have any rights to any such project or any income, profits or compensation derived therefrom. -42- 16.9 Authority. Each party hereto has the authority to enter into --------- this Agreement and be bound by its terms. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written. OWNER DEVELOPER SEMTECH CORPORATION VOIT DEVELOPMENT CO., INC. a Delaware corporation a California corporation By:________________________________ By:_________________________________ Its:_______________________________ Its:________________________________ -43- EX-22.1 7 dex221.txt SUBSIDIARIES OF THE COMPANY Exhibit 22.1 ------------ Subsidiaries of Semtech Corporation Semtech San Diego Corporation (a California corporation), doing business as Edge Semiconductor Corporation, Edge Semiconductor, Semtech High Performance Products, Semtech ATE Division, Semtech San Diego, Semtech Semtech Corpus Christi Corporation (a Texas corporation) Semtech Corpus Christi, S.A. de C.V. (una Sociedad Mercantil de Nacionalidad Mexicana) Semtech (International) AG (a Swiss company limited by shares) Acapella Limited (a private limited company under the Companies Act 1985 of the United Kingdom, registered in England and Wales) Semtech France SARL Semtech Germany GmbH Semtech Limited (a private limited company under the Companies Act 1948 to 1967 of the United Kingdom, registered in Scotland) Semtech St. Thomas Ltd. (a St. Thomas, U.S. Virgin Islands corporation) Semtech New York Corporation (a Delaware corporation), doing business as Semtech, Semtech HID, Semtech HID and System Management, Semtech Human Input Device and System Management, USAR Systems, USAR -44- EX-23.1 8 dex231.txt CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference of our report dated April 6, 2001 included in the Form 10-K/A of Semtech Corporation for the year ended January 28, 2001 into: (i) the Registration Statement on Form S-8 of Semtech Corporation (File No. 033-17024); (ii) the Registration Statement on Form S-8 of Semtech Corporation (File No. 033-85156); (iii) the Registration Statement on Form S-8 of Semtech Corporation (File No. 033-85158); (iv) the Registration Statement on Form S-8 of Semtech Corporation (File No. 333-00597); (v) the Registration Statement on Form S-8 of Semtech Corporation (File No. 333-00599); (vi) the Registration Statement on Form S-8 of Semtech Corporation (File No. 333-27777); (vii) the Registration Statement on Form S-8 of Semtech Corporation (File No. 333-44033); (viii) the Registration Statement on Form S-8 of Semtech Corporation (File No. 333-80319); (ix) the Registration Statement on Form S-3 of Semtech Corporation (File No. 333-9518); (x) the Registration Statement on Form S-3 of Semtech Corporation (File No. 333-36632); (xi) the Registration Statement on Form S-3/A of Semtech Corporation (File No. 333-36632); (xii) the Registration Statement on Form S-8 of Semtech Corporation (File No. 333-50448); and (xiii) the Registration Statement on Form S-8 of Semtech Corporation (File No. 333-60396).
/s/ Arthur Andersen LLP Arthur Andersen LLP Los Angeles, California December 10, 2001 -----END PRIVACY-ENHANCED MESSAGE-----