FORM OF CERTIFICATE OF
DESIGNATION OF
(Par Value $0.001)
OF
TRIDENT MICROSYSTEMS,
INC.
Pursuant to Section 151 of
the
General Corporation Law of the State of Delaware
Trident
Microsystems, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the “
Company ”), in accordance with the provisions of
Section 151 thereof, DOES HEREBY CERTIFY:
That pursuant to
the authority conferred upon the Board of Directors of the Company
(the “ Board ”) in accordance with the Restated
Certificate of Incorporation of the Company, as amended to date
(the “ Certificate of Incorporation ”), and the
Amended and Restated Bylaws of the Company, as amended to date (the
“ Bylaws ”), the Board on October [___], 2009
adopted the following resolution creating a series of Preferred
Stock, par value $0.001 per share, of the Company consisting of
four (4) shares and designated as Series B Preferred
Stock:
RESOLVED, that
pursuant to the authority vested in the Board by Article IV of
the Certificate of Incorporation and out of the Preferred Stock,
par value $0.001 per share (the “ Preferred Stock
”), authorized therein, the Board hereby authorizes,
designates and creates a series of Preferred Stock, and states that
the designation and amount thereon and the voting powers,
preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications,
limitations or restrictions thereof be, and hereby are, as
follows:
Section 1. Number of Shares and
Designation.
The designation of
the series of Preferred Stock created by this resolution shall be
“Series B Preferred Stock” (the “
Series ”), and the number of shares constituting this
Series shall be four (4) (the “ Series B Shares
”). Each Series B Share shall have a liquidation
preference of $1.00 (the “ Liquidation Preference
”), as described herein. The number of authorized shares of
this Series shall not be increased or reduced without (in addition
to any other vote required by law) (1) the approval of both a
majority of the Series B Directors and a majority of the
At-Large Directors (as defined in Section 4 ) and
(2) the approval of the Persons who Own the Series B
Shares (the “ Series B Holders ”), voting
as a separate class to the exclusion of all other series or classes
of the Equity Securities.
No dividends
(whether payable in cash, in property or in Equity Securities)
shall be payable in respect of the Series B Shares.
(a) The
Series B Shares shall not be redeemable by the Company except
that all of the Series B Shares may be redeemed, at the option
of the Company at a redemption price of $1.00 per share, if at any
time following the filing of this Certificate of Designation with
the Secretary of State of the State of Delaware the Series B
Holders no longer Beneficially Own, in the aggregate, eleven
percent (11%) or more of the outstanding shares of Common
Stock.
(b) Notice of
redemption of the Series B Shares shall be sent by or on
behalf of the Company, by first class mail, postage prepaid, to
each Series B Holder who Owns Series B Shares to be
redeemed) at its address as it shall appear on the records of the
Company, (i) notifying each Series B Holder of the
redemption of the Series B Shares (or, in the case of a
redemption of less than all of the Series B Shares, notifying
the Series B Holder who Owns the Series B Shares to be
redeemed) and (ii) stating the place at which the certificates
evidencing the Series B Shares shall be surrendered. The
Company shall act as the transfer agent for the Series.
(c) From and
after the notice of redemption having been duly given, and the
redemption price having been paid or irrevocably set aside for
payment, the Series B Shares with respect to which such notice
has been given and such redemption price paid or set aside shall no
longer be, or be deemed to be, outstanding for any purpose, and all
rights preferences and powers (including voting rights and powers)
of such Series B Shares shall automatically cease and
terminate, except the right of the Persons who Own such
Series B Shares, upon surrender of the certificate
representing such Series B Shares, to receive the redemption
price without interest.
Section 4. Voting Rights of the
Series B
Shares.
(a) Board
Representation.
(i) For
so long as the Series B Holders shall be entitled to nominate
and elect at least one (1) Director pursuant to this
Section 4(a) , the Board shall consist of nine
(9) Directors. The Board shall at all times consist of at
least a majority of Directors who are Independent
Directors.
(ii) Subject
to Section 4(a)(vi) , so long as the Series B
Holders Beneficially Own, in the aggregate, at least forty percent
(40%) of the outstanding Common Stock, the Series B Holders
(by majority vote of the Series B Shares) shall have the right
to nominate and elect a total of four (4) directors (each, a
“ Series B Director ”).
(iii) Subject
to Section 4(a)(vi) , so long as the Series B
Holders Beneficially Own, in the aggregate, less than forty percent
(40%) but at least thirty percent (30%) of the outstanding Common
Stock, the Series B Holders (by majority vote of the
Series B Shares) shall have the right to nominate and elect a
total of three (3) Series B Directors.
(iv) Subject
to Section 4(a)(vi) , so long as the Series B
Holders Beneficially Own, in the aggregate, less than thirty
percent (30%) but at least twenty percent (20%) of the outstanding
Common Stock, the Series B Holders (by majority vote of the
Series B Shares) shall have the right to nominate and elect a
total of two (2) Series B Directors.
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(v) Subject
to Section 4(a)(vi) , so long as the Series B
Holders Beneficially Own, in the aggregate, less than twenty
percent (20%) but at least eleven percent (11%) of the outstanding
Common Stock, the Series B Holders (by majority vote of the
Series B Shares) shall have the right to nominate and elect
one (1) Series B Director.
(vi) The
number of Series B Directors which the Series B Holders
shall be entitled to nominate and elect shall not be reduced unless
and until the number of Series B Shares Beneficially Owned by
the Series B Holders shall be less than the applicable
threshold set forth in Section 4(a)(ii) through (v)
above for a period of thirty (30) consecutive days. After any
such reduction, the number of Series B Directors which the
Series B Holders shall be entitled to nominate and elect shall
not be increased regardless of any subsequent increase in the
percentage of outstanding Common Stock Beneficially Owned by the
Series B Holders.
(vii) No
person other than the Series B Holders shall be entitled to
nominate a Series B Director.
(viii) One
(1) Director (who shall be the Company’s Chief Executive
Officer unless all other Directors otherwise agree, in which case
such Directors shall be a Person independent of each of the
Company, each Series B Holder, each Pers
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