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Exhibit 4.1
CERTIFICATE OF DETERMINATION
OF
SERIES A PREFERRED STOCK
OF
PHOTON DYNAMICS, INC.
(Pursuant to Section 401 of the
California General Corporation Law)
The undersigned, VINCENT F. SOLLITTO and RICHARD L. DISSLY hereby certify that:
1. They are the duly elected and acting Chief Executive Officer and
President and Secretary, respectively, of Photon Dynamics, Inc. (the
"Corporation"). Pursuant to authority given by the Corporation's Articles of
Incorporation, the Board of Directors of the Corporation has duly adopted the
following resolutions at a meeting duly called and held on October 23, 2000:
RESOLVED, that pursuant to the authority granted to and vested in the
Board in accordance with the provisions of the Amended and Restated
Articles of Incorporation of the Company, as amended (the "Articles of
Incorporation"), the Board hereby creates from its authorized class of
Preferred Stock a series designated as Series A1 Preferred Stock, no
par value, of the Company;
RESOLVED FURTHER, that the Board does hereby establish the Series A1
Preferred Stock as follows:
SECTION 1. DESIGNATION AND AMOUNT. One (1) share of Preferred Stock of
the Company shall be designated as Series A1 Preferred Stock (the
"Special Series A1 Voting Share").
SECTION 2. DIVIDENDS AND DISTRIBUTIONS. Except as required by
applicable law, neither the holder nor the owner, if different, of the
Special Series A1 Voting Share shall be entitled to receive any
dividends or distributions of the Company, whether payable in cash,
property or in shares of capital stock.
SECTION 3. LIQUIDATION. In the event of any liquidation, dissolution
or winding up of the Company, the holder of the Special Series A1
Voting Share shall not be entitled to receive any assets of the
Company available for distribution to its shareholders.
SECTION 4. VOTING RIGHTS. The Special Series A1 Voting Share shall
have the following voting rights:
(A) with respect to all meetings of shareholders of the Company at
which holders of the Company's common stock are entitled to vote (each
a "Company Meeting") and with respect to any written consents, to the
extent permitted by the Articles of Incorporation and the Company's
By-laws, sought by the Company from its shareholders, including the
holders of Company common stock (each a "Company Consent"), the
Special Series A1 Voting Share shall vote together with the common
stock of the Company as a single class and the Special Series A1
Voting Share shall have the identical voting rights to those of the
Company's common stock;
(B) the holder of the Special Series A1 Voting Share shall be
entitled to a number of votes equal to the number of exchangeable
shares of Image Processing Systems Inc. (the "Exchangeable Shares")
outstanding on the record date for determining shareholders entitled
to vote at the applicable Company Meeting or in connection with the
applicable Company Consent, other than those held by the Company or
its Affiliates (as defined in that certain Voting and Exchange Trust
Agreement by and among the Company, Photon Dynamics Nova Scotia
Company and Montreal Trust Company of Canada, to be dated and entered
into on or before the date of issue of the Special Series A1 Voting
Share, as such agreement may amended, modified or supplemented from
time to time (the "Trust Agreement"));
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(C) except as set forth herein, or as otherwise provided by law, the
registered holders from time to time of Exchangeable Shares shall have
no special voting rights and their consent shall not be required for
taking any corporate action; and
(D) the voting rights attached to the Special Series A1 Voting Share
shall terminate pursuant to and in accordance with the Trust
Agreement.
SECTION 5. NO REDEMPTION. The Special Series A1 Voting Share shall not
be redeemable, except that at such time as no Exchangeable Shares
(other than the Exchangeable Shares owned by the Company and its
Affiliates) shall be outstanding, the Special Series A1 Voting Share
shall automatically be redeemed and canceled.
SECTION 6. OTHER PROVISIONS. Pursuant to the terms of the Trust
Agreement:
(A) during the term of the Trust Agreement, the Company will not
issue any additional shares of the same series of such Series A1
Preferred Stock without the consent of the holders at the relevant
time of Exchangeable Shares;
(B) the votes attached to the Special Series A1 Voting Share shall
be exercised by the Trustee (as defined in the Trust Agreement)
pursuant to and in accordance with the Trust Agreement; and
(C) the powers, designations, preferences and relative,
participating, optional and other special rights, and the
qualifications, limitations and restrictions of the Special Series A1
Voting Share shall be as otherwise provided in the Trust Agreement."
2. The authorized number of shares of Preferred Stock of this corporation
is 5,000,000, and the number of shares of Preferred Stock constituting Series A1
Voting Preferred Stock, none of which has been issued, is 1.
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IN WITNESS WHEREOF, the undersigned have executed this certificate on December
12, 2000.
/s/ Vincent F. Sollitto
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VINCENT F. SOLLITTO
Chief Executive Officer and President
/s/ Richard L. Dissly
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RICHARD L. DISSLY
Chief Financial Officer and Secretary
The undersigned Vincent F. Sollitto, Chief Executive Officer
and President of Photon Dynamics, Inc., and Richard L. Dissly, Chief Financial
Officer and Secretary of said corporation, each certifies under penalty of
perjury that the matters set forth in the foregoing Certificate of Determination
are true of their own knowledge.
Executed in San Jose, California on December 12, 2000.
/s/ Vincent F. Sollitto
-----------------------
VINCENT F. SOLLITTO
Chief Executive Officer and President
Executed in San Jose, California on December 12, 2000.
/s/ Richard L. Dissly
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RICHARD L. DISSLY
Chief Financial Officer and Secretary
