EXHIBIT 3.1
AMENDMENTS TO BYLAWS OF FIBERCORE, INC.
Article II, Sections 1, 2 and 4 of the Bylaws of FiberCore, Inc. shall be
amended and restated in their entirety as follows:
SECTION 1. NUMBER AND TERM OF OFFICE
The number of members of the Corporation's Board of Directors
("Directors") who shall constitute the whole board shall be such number as
the Board of Directors ("Board") shall at the time have designated, except
that (i) such number shall be not less than three (3) and not more than
fifteen (15), and (ii) no more than six (6) Directors who are not Series A
Directors (defined below) may serve on the Board at any given time, unless
an additional independent Director is required to be a member of the Board
for purposes of compliance with NASDAQ listing standards, in which case
the number of Directors who are not Series A Directors shall not exceed
seven (7).
The number, manner of appointment, classification, replacement,
nomination and election, and certain other matters pertaining to Series A
Directors (as defined in the Designation of Rights, Privileges and
Preferences of Series A Preferred Stock adopted by resolution of the Board
on _____________, 2000, as amended in accordance with the terms thereof
("Series A Stock Terms")) shall be governed by the Series A Stock Terms.
To the extent the Series A Stock Terms conflict with these Bylaws, the
Series A Stock Terms shall control.
So long as that certain Guarantor Indemnification Agreement dated as
of December __, 2000 by and among the Corporation and Tyco International
Group, S.A., a company incorporated under the laws of Luxembourg, and the
Managing Shareholders named therein ("Indemnification Agreement") is in
effect: (a) the Board shall include at least one Series A Director; and
(b) Board nominations for non-Series A Directors shall be made by existing
non-Series A Directors.
Notwithstanding the provisions of the first paragraph of this
Section 1, upon the occurrence of an Event of Default under the
Indemnification Agreement and delivery to the Corporation by the holder of
the Corporation's Series A Preferred Stock ("Series A Holder") of notice
of exercise of the right of the Series A Holder under the Series A Stock
Terms to cause an increase in the size of the Board and the number of
Series A Directors, the size of the Board shall be automatically increased
and additional Series A Directors shall be elected such that, following
such increase and elections, the Series A Directors constitute a majority
of the Board.
The Corporation shall maintain a classified and staggered Board,
with each Director serving for a term of three years, except for the first
election after the creation of a classified and staggered Board. At such
first election, there shall be three classes of Directors (Class I, Class
II and Class III). Class I Directors shall be elected to an initial one
year term. Class II Directors shall be elected to an initial two year term
and Class III Directors shall be elected to an initial three year term.
Following their initial terms, each class of Directors shall thereafter be
elected to three year terms. Each class of Directors shall be divided as
evenly as possible. To the extent the number of Directors is not evenly
divided among the three classes, the extra Director shall first be placed
in Class III, and the next extra Director, if applicable, shall be placed
in Class II.
Any decrease in the number of Directors shall not become effective
until the expiration of the term of the Directors then in office unless,
at the time of such decrease, there shall be vacancies on the board which
are being eliminated by the decrease.
The Board shall have a Chairman of the Board, who shall preside at
all meetings of the Board and the Stockholders at which such person is
present. The Chairman of the Board shall make all final rulings on
procedure at meetings of the Board or Stockholders. The Chairman of the
Board shall have and perform such other duties as from time to time may be
assigned to him by the Board.
SECTION 2. VACANCIES
If the office of any Director becomes vacant by reason of death,
resignation, disqualification, removal, expansion of the Board or other
causes, a successor may be elected for the unexpired term and until his or
her successor is elected and qualified: (i) if such vacancy is of a seat
held or to be held by a Series A Director, by a majority of the Series A
Directors remaining in office, even if they constitute less than a quorum;
and (ii) if such vacancy is of a seat held or to be held by a Director
other than a Series A Director, by a majority of the Directors other than
Series A Directors remaining in office, even if they constitute less than
a quorum. Notwithstanding the foregoing, in the event all positions of a
given class of Directors are vacant, the Series A Holder will fill
vacancies of Series A Directors and holders of all other classes of the
Corporation's capital stock entitled to vote for Directors will fill
vacancies occurring among Directors other than Series A Directors.
SECTION 4. SPECIAL MEETINGS
Special meetings of the Board may be called by one-third of the
Directors then in office (rounded up to the nearest whole number) or by
the chief executive officer and shall be held at such place, on such date
and at such time as they or he or she shall fix. Series A Directors shall
be considered to be in office from the time a Designation Notice (as
defined in the Series A Stock Terms) is delivered to the Corporation.
Written notice of the place, date, and time of each such special meeting
shall be given to each Director by hand delivery, overnight courier, or
facsimile (with receipt confirmed by the receiving machine) at least 24
hours before the meeting, unless such notice is waived by a Director who
would otherwise receive it. Unless otherwise indicated in the notice
thereof, any and all business may be transacted at a special meeting.
Article IX of the Bylaws of FiberCore, Inc. shall be amended and
restated in its entirety as follows:
ARTICLE IX - AMENDMENTS
Amendments to these Bylaws may be made, to the extent permitted by
applicable law, by a majority of the Directors holding office and present
at a meeting at which a quorum is present or by a majority vote of the
stockholders entitled to vote at any annual stockholders' meeting or at
any special stockholders' meeting when the proposed amendment has been set
out in the notice of such meeting.
Notwithstanding the foregoing: (i) no amendment adopted by the
Directors that would adversely affect the rights, preferences, privileges
or voting power of the Series A Holder shall become effective unless one
Series A Director is a member of the Board and such amendment is approved
unanimously by each and every member of the Board then in office or, such
amendment is approved by the Corporation's shareholders, including the
Series A Holder, voting as a separate class; (ii) no amendment adopted by
the shareholders that would adversely affect the rights, preferences,
privileges or voting power of the Series A Holder shall become effective
unless the same shall have been approved by the Series A Holder, voting as
a separate class; and (iii) no amendment to subsection (b) of the third
paragraph of Article II, Section 1 of these bylaws shall become effective
unless approved unanimously by each and every member of the Board then in
office or by holders of a majority of the Corporation's shares entitled to
vote thereon.
