UNIPHASE CORPORATION
CERTIFICATE OF DESIGNATION
OF THE VOTING POWERS, DESIGNATION,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS OF THE
SERIES B PREFERRED STOCK
_____________________________________
Pursuant to Section 151 of the General Corporation Law of the
State of Delaware
_____________________________________
The undersigned officers of Uniphase Corporation, a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of
Directors of the Corporation by its Restated Certificate of
Incorporation (the "Certificate"), the said Board of Directors, at a
duly called meeting held on June 11, 1998, at which a quorum was present
and acted throughout, adopted the following resolution, which resolution
remains in full force and effect on the date hereof creating a Series of
100,000 shares of Preferred Stock having a par value of $.001 per share,
designated as Series B Preferred Stock (the "Series B Preferred
Stock") out of the class of 1,000,000 shares of preferred stock of the
par value of $.001 per share (the "Preferred Stock"):
RESOLVED, that pursuant to the authority vested in the Board of
Directors in accordance with the provisions of its Certificate, the
Board of Directors does hereby create, authorize and provide for 100,000
shares of its authorized Preferred Stock to be designated and issued as
the Series B Preferred Stock, having the voting powers, designation,
relative, participating, optional and other special rights, preferences
and qualifications, limitations and restrictions that are set forth as
follows:
1. Dividends and Distributions. (A) Subject to the prior and
superior rights of the holders of any shares of any other Series of
Preferred Stock or any other shares of stock of the Corporation ranking
prior and superior to the shares of Series B Preferred Stock with
respect to dividends, each holder of one one-thousandth (1/1000) of a
share (a "Unit") of Series B Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available for that purpose, (i) quarterly dividends payable in
cash on the last day of February, May, August and November in each year
(each such date being a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first issuance of
such Unit of Series B Preferred Stock, in an amount per Unit (rounded to
the nearest cent) equal to the greater of (a) $.01 or (b) subject to the
provision for adjustment hereinafter set forth, the aggregate per share
amount of all cash dividends declared on shares of the Common Stock
since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the
first issuance of a Unit of Series B Preferred Stock, and (ii) subject
to the provision for adjustment hereinafter set forth, quarterly
distributions (payable in kind) on each Quarterly Dividend Payment Date
in an amount per Unit equal to the aggregate per share amount of all
non-cash dividends or other distributions (other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock, by reclassification or otherwise) declared on shares of
Common Stock since the immediately preceding Quarterly Dividend Payment
Date, or with respect to the first Quarterly Dividend Payment Date,
since the first issuance of a Unit of Series B Preferred Stock. In the
event that the Corporation shall at any time after June 22, 1998 (the
"Rights Declaration Date") (i) declare any dividend on outstanding
shares of Common Stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock or (iii) combine outstanding shares
of Common Stock into a smaller number of shares, then in each such case
the amount to which the holder of a Unit of Series B Preferred Stock was
entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common
Stock that are outstanding immediately after such event and the
denominator of which shall be 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
Units of Series B Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the shares
of Common Stock (other than a dividend payable in shares of Common
Stock); provided, however, that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $.01 per Unit
on the Series B Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on
each outstanding Unit of Series B Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issuance of such Unit
of Series B Preferred Stock, unless the date of issuance of such Unit is
prior to the record date for the first Quarterly Dividend Payment Date,
in which case, dividends on such Unit shall begin to accrue from the
date of issuance of such Unit, or unless the date of issuance is a
Quarterly Dividend Payment Date or is a date after the record date for
the determination of holders of Units of Series B Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on Units of Series B Preferred Stock in an amount less than the
aggregate amount of all such dividends at the time accrued and payable
on such Units shall be allocated pro rata on a unit-by-unit basis among
all Units of Series B Preferred Stock at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of
Units of Series B 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.
2. Voting Rights. The holders of Units of Series B Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each Unit of Series B Preferred Stock shall entitle the holder thereof
to one vote 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 outstanding
shares of Common Stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock or (iii) combine the outstanding
shares of Common Stock into a smaller number of shares, then in each
such case the number of votes per Unit to which holders of Units of
Series B Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the numerator
of which shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which shall be the
number of shares of Common Stock that were outstanding immediately prior
to such event; and
(B) Except as otherwise provided herein, in the Certificate or the
Bylaws of the Corporation or as required by law, the holders of Units of
Series B 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, and such holders shall have no special
voting rights and their consents shall not be required for taking any
corporate action.
3. Certain Restrictions. (A) Whenever quarterly dividends or
other dividends or distributions payable on Units of Series B Preferred
Stock as provided herein are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared,
on outstanding Units of Series B Preferred Stock shall have been paid in
full, the Corporation shall not (i) declare or pay dividends on, make
any other distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of junior stock; (ii) declare or pay
dividends on or make any other distributions on any shares of parity
stock, except dividends paid ratably on Units of Series B Preferred
Stock and shares of all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which the holders of
such Units and all such shares are then entitled; (iii) redeem or
purchase or otherwise acquire for consideration shares of any parity
stock, provided, however, that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any junior stock; (iv) purchase or otherwise
acquire for consideration any Units of Series B 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 Units.
(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 3, purchase or otherwise acquire such
shares at such time and in such manner.
4. Reacquired Shares. Any Units of Series B Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such Units shall, upon their cancellation, become
authorized but unissued shares (or fractions of 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.
5. Liquidation, Dissolution or Winding Up. (A) Upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares
of junior stock unless the holders of Units of Series B Preferred Stock
shall have received, subject to adjustment as hereinafter provided in
paragraph (B), the greater of either (a) $.01 per Unit plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether
or not earned or declared, to the date of such payment, or (b) the
amount equal to the aggregate per share amount to be distributed to
holders of shares of Common Stock, or (ii) to the holders of shares of
parity stock, unless simultaneously therewith distributions are made
ratably on Units of Series B Preferred Stock and all other shares of
such parity stock in proportion to the total amounts to which the
holders of Units of Series B Preferred Stock are entitled under clause
(i)(a) of this sentence and to which the holders of shares of such
parity stock are entitled, in each case upon such liquidation,
dissolution or winding up.
(B) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on outstanding shares
of Common Stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock, or (iii) combine outstanding shares
of Common Stock into a smaller number of shares, then in each such case
the aggregate amount to which holders of Units of Series B Preferred
Stock were entitled immediately prior to such event pursuant to clause
(i)(b) of paragraph (A) of this Section 5 shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be
the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such
event.
6. 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 converted into
other stock or securities, cash and/or any other property, then in any
such case Units of Series B Preferred Stock shall at the same time be
similarly exchanged for or converted into an amount per Unit (subject to
the provision for adjustment hereinafter set forth) equal to 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 converted or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on outstanding shares of Common Stock payable
in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding Common Stock into a smaller number
of shares, then in each such case the amount set forth in the
immediately preceding sentence with respect to the exchange or
conversion of Units of Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be
the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such
event.
7. Redemption. The Units of Series B Preferred Stock and shares
of Series B Preferred Stock shall not be redeemable.
8. Ranking. The Units of Series B Preferred Stock and shares of
Series B Preferred Stock shall rank junior to all other Series of the
Preferred Stock and to any other class of Preferred Stock that hereafter
may be issued by the Corporation as to the payment of dividends and the
distribution of assets, unless the terms of any such Series or class
shall provide otherwise.
9. Fractional Shares. The Series B Preferred Stock may be
issued in Units or other fractions of a share, which Units or fractions
shall entitle the holder, in proportion to such holder's units or
fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights
of holders of Series B Preferred Stock.
10. Certain Definitions. As used in this resolution with respect
to the Series B Preferred Stock, the following terms shall have the
following meanings:
(A) The term "Common Stock" shall mean the class of stock
designated as the common stock, par value $.001 per share, of the
Corporation at the date hereof or any other class of stock resulting
from successive changes or reclassification of the common stock.
(B) The term "junior stock" (i) as used in Section 3 shall mean
the Common Stock, any Series A Preferred Stock, $.001 par value, of the
Corporation and any other class or Series of capital stock of the
Corporation hereafter authorized or issued over which the Series B
Preferred Stock has preference or priority as to the payment of
dividends and (ii) as used in Section 5, shall mean the Common Stock and
any other class or Series of capital stock of the Corporation over which
the Series B Preferred Stock has preference or priority in the
distribution of assets on any liquidation, dissolution or winding up of
the Corporation.
(C) The term "parity stock" (i) as used in Section 3 shall mean
any class or Series of stock of the Corporation hereafter authorized or
issued ranking pari passu with the Series B Preferred Stock as to
dividends and (ii) as used in Section 5, shall mean any class or
Series of capital stock ranking pari passu with the Series B Preferred
Stock in the distribution of assets on any liquidation, dissolution or
winding up.
IN WITNESS WHEREOF, Uniphase Corporation has caused this
Certificate to be signed by its Chairman and Chief Executive Officer and
its Secretary this ____ day of June 1998.
UNIPHASE CORPORATION
By: /s/ Kevin N. Kalkhoven
________________________________
Kevin N. Kalkhoven
President
By: /s/ Michael C. Phillips
________________________________
Michael C. Phillips
Assistant Secretary