EXHIBIT 4.1
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) share, 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. 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 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.
5.05. 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 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 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.
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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: ___________________________ By: ______________________________
Name: ____________________ Name:________________________
Title: Secretary Title: President
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF __________________ )
This instrument was acknowledged before me on December ___, 2000, by
___________________________ as President of FiberCore, Inc.
______________________________
NOTARY PUBLIC
My commission expires: ___________________.
