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EXHIBIT 4
DESIGNATION OF RIGHTS, PRIVILEGES AND PREFERENCES
OF SERIES A PREFERRED STOCK
Pursuant to the provisions of Nevada Revised Statutes, Section 78.195,
of the corporation laws of the State of Nevada, the undersigned corporation,
FiberCore, Inc. (the "CORPORATION"), hereby adopts the following Designation of
Rights, Privileges, and Preferences of Series A Preferred Stock (the
"DESIGNATION"):
FIRST: The name of the Corporation is FiberCore, Inc.
SECOND: The following resolution establishing a series of preferred
stock designated as the "SERIES A PREFERRED STOCK" consisting of one (1) shares,
par value $0.001, was duly adopted by the board of directors of the Corporation
on December 18, 2000, in accordance with the articles of incorporation of the
Corporation and the corporation laws of the State of Nevada:
RESOLVED, there is hereby created a series of preferred stock of the
Corporation to be designated as the "SERIES A PREFERRED STOCK"
consisting of one (1) share, par value $0.001 (referred to herein as
the "PREFERRED STOCK"), with the following powers, preferences, rights,
qualifications, limitations, and restrictions:
1. DIVIDENDS. No dividends shall be payable with respect to the
Preferred Stock.
2. LIQUIDATION. No distribution shall be made with respect to the
Preferred Stock in the event of any voluntary or involuntary
liquidation (whether complete or partial), dissolution, or winding up
of the Corporation.
3. CONVERSION. The Preferred Stock shall not be convertible into shares
of common stock of the Corporation.
4. VOTING RIGHTS. The Preferred Stock shall be entitled to vote as a
separate class (i) to elect the Series A Directors (defined in Section
5.01 below); and (ii) on any resolution proposed for adoption by the
stockholders of the Corporation that seeks to amend, alter or repeal
the provisions of the Corporation's articles of incorporation or this
Designation so as to adversely affect any right, preference, privilege
or voting power of the Preferred Stock or the holder thereof. In
addition, without the approval of the holder of the Preferred Stock
("Series A Holder"), the Corporation shall not become subject to any
restriction on the Preferred Stock other than restrictions arising
under the general corporation laws of the State of Nevada or existing
under the articles of incorporation of the Corporation as in effect on
November 27, 2000. The Preferred Stock shall have no other voting
rights.
5. SERIES A DIRECTORS.
5.01. APPOINTMENT. The Series A Holder shall be entitled to
appoint one or more members of the Corporation's Board of Directors as
provided in this Section 5.01.
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Members of the Corporation's Board of Directors appointed by the Series
A Holder are referred to as "Series A Directors."
(i) So long as the Preferred Stock remains outstanding, the
holder of the Series A Stock ("SERIES A HOLDER") shall be entitled to
appoint one Series A Director unless a Tyco Director (defined below) is
already a member of the Corporation's Board of Directors, in which
event, the Series A Holder may designate one such Tyco Director as a
Series A Director.
(ii) Upon the occurrence and during the continuation of an
Event of Default under the terms of that certain Guarantor
Indemnification Agreement dated as of December 20, 2000 (the
"INDEMNIFICATION AGREEMENT") by and among the Corporation, Tyco
International Group S.A. (the "GUARANTOR"), and the Managing
Shareholders identified therein, the Series A Holder shall have the
right, but not the obligation, to: (a) cause an increase in the size of
the Corporation's Board of Directors sufficient to allow the
appointment of directors described in this Section 5.01; and (b)
appoint a sufficient number of additional Series A Directors such that,
following such appointments, the Series A Directors, together with
other members of the Corporation's Board of Directors (if any) employed
by Tyco International Ltd. or any of its subsidiaries (each, a "TYCO
DIRECTOR"), constitute a majority of the Corporation's whole Board of
Directors. If the Series A Holder elects to exercise its rights under
this subsection 5.01(ii), it shall do so by delivering written notice
(a "DESIGNATION NOTICE") to the Corporation specifying the names of the
individuals to be appointed as additional Series A Directors. The
appointments of the additional Series A Directors shall become
effective immediately upon delivery of the Designation Notice in
accordance with the terms of Section 7.03 of these Designations.
5.02. CLASSIFICATION. The classification of the Series A
Directors shall be determined in accordance with Article II, Section 1
of the Corporation's bylaws, with the Series A Directors to be divided,
upon their initial appointment or election, among the classes of
Directors as follows:
i) If the number of Series A Directors is one, two, or
three, they shall be placed in separate classes from each other;
ii) If the number of Series A Directors is more than three,
they shall be divided as evenly as possible among the three classes of
directors.
5.03 VACANCIES. If the office of any Series A Director becomes
vacant by reason of death, resignation, disqualification, removal,
expansion of the Board or other causes, a majority of the Series A
Directors remaining in office, even if they constitute less than a
quorum, may elect a successor for the unexpired term and until his or
her successor is elected and qualified. Notwithstanding the foregoing,
in the event no Series A Director remains a member of the Board, the
Series A Holder will fill vacant offices of
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Series A Directors by delivering written notice to the Board specifying
the names of the individuals to fill such offices.
5.04. NOMINATION AND ELECTION. Upon the expiration of the term
of any Series A Director, the Series A Holder shall have the exclusive
right to nominate and, voting as a separate class, to reelect or elect
a successor to such Series A Director.
RIGHTS, POWERS, AND DUTIES. Except as specified herein, the Series A
Directors shall have the same rights, powers and duties as the other
members of the Corporation's Board of Directors.
5.06. REMOVAL OF SERIES A DIRECTORS. Upon termination of the
Indemnification Agreement pursuant to Section 9.3 thereof: (i) the
position and terms of office of Series A Directors shall be immediately
terminated thereby, and (b) the Series A Holder shall be deemed to have
voted such share to remove any Series A Directors from the
Corporation's Board of Directors.
6. CANCELLATION OF PREFERRED STOCK. Upon termination of the
Indemnification Agreement pursuant to Section 9.3 thereof and removal
of the Series A directors as set forth above, the Preferred Stock shall
be canceled and cease to be outstanding.
7. ADDITIONAL PROVISIONS.
7.01. No change in the provisions of the Preferred Stock set
forth in this Designation affecting any interest of the holder of the
share of Preferred Stock shall be binding or effective unless such
change shall have been approved or consented to by the Series A Holder
in the manner provided in the corporation laws of the State of Nevada,
as the same may be amended from time to time.
7.02. The share of Preferred Stock may be transferred to Tyco
International Ltd. or any of its direct or indirect subsidiaries,
provided that Tyco International Ltd. controls at least 51% of the
voting securities of such direct or indirect subsidiary, but otherwise
shall not be transferable without the approval of the Corporation's
Board of Directors. The share of Preferred Stock shall be transferable
only on the books of the Corporation maintained at its principal
office, on delivery thereof duly endorsed by the holder or his duly
authorized attorney or representative or accompanied by proper evidence
of succession, assignment, or authority to transfer. In all cases of
transfer by an attorney, the original letter of attorney, duly
approved, or an official copy thereof, duly certified, shall be
deposited and remain with the Corporation. On any registration or
transfer, the Corporation shall deliver a new certificate representing
the share of Preferred Stock to the person entitled thereto.
7.03. All notices, communications and distributions hereunder
shall be given or made to the intended recipient at the address
specified in the Indemnification Agreement, or at such other address as
the addressee may hereafter specify for the purpose by written notice
in accordance with this section. Such Notices and other communications
shall be given or made in writing and may be delivered by hand, by
overnight courier, by facsimile, or by first-class mail (return receipt
requested). All such notices and other
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communications shall be deemed to have been duly given (a) if delivered
by hand, overnight courier or first-class mail (return receipt
requested), on the date of the delivery; and (b) if transmitted by
facsimile (with receipt confirmed by machine), on the date of
transmission if the same is a Business Day or, if not a Business Day,
on the first Business Day after the date of transmission.
IN WITNESS WHEREOF, the foregoing Designation of Rights,
Privileges and Preferences of Series A Preferred Stock has been
executed this 19th day of December, 2000.
ATTEST: FIBERCORE, INC.
By: /s/ CHARLES DE LUCA By: /s/ MOHD ASLAMI
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Name: Charles De Luca Name: Mohd Aslami
Title: Secretary Title: President
COMMONWEALTH OF MASSACHUSETTS )
) ss
COUNTY OF _______________________ )
This instrument was acknowledged before me on December 19, 2000, by
Charles De Luca as Secretary of FiberCore, Inc.
Cassandra De Luca
NOTARY PUBLIC
My commission expires: 12/17/04
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Seen for legalization of the signature of Aslami, Mohd Apal residing in USA by
me Dr. H.M. Rodriguez-Tackema, acting as locum tenens of the public office of
Dr. J.W. Bodeker, a notary in Aruba, on this 19th day of December, 2000.
