EXH10-28
CONVERTIBLE DEBENTURE PURCHASE AGREEMENT
THIS CONVERTIBLE DEBENTURE PURCHASE AGREEMENT (this "Agreement") is entered into
effective as of this 17th day of April, 1995, by and between FiberCore
Incorporated, a Nevada corporation (hereinafter the "Corporation") and AMP
INCORPORATED, a Pennsylvania corporation (hereinafter the "Purchaser").
RECITALS
A. The Corporation desires to raise money by the sale of a debenture
convertible into shares of Common Stock of the Corporation (the
"Debenture") to the Purchaser.
B. The Purchaser desires to purchase the Debenture from the Corporation and
the Corporation desires to issue and sell the Debenture to the Purchaser on
the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, In consideration of the mutual agreements, covenants,
representations and warranties contained in this Agreement, the parties hereto
hereby agree as follows:
1. Authorization and Sale of Debenture.
a. Authorization. The Corporation will authorize on or before
the Closing (as defined below) the issuance of a convertible debenture in the
principal amount of $5,000,000 convertible into the Corporation's Common Stock
in the form attached hereto as Exhibit A (the "Debenture") and the sale of the
Debenture to the Purchaser.
b. Sale of Convertible Debenture. Subject to the terms and
conditions hereof, the Corporation will issue and sell to the Purchaser, and the
Purchaser will purchase from the Corporation at the "Closing" (as defined below)
the Debenture.
2. Issuance and Payment.
a. Closing.
i) Subject to the terms and conditions hereof, the
closing of the purchase and sale of the Debenture (the "Closing") shall be held
(via facsimile transmittal and wire transfer) on April 17, 1995 at the offices
of Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York, at 10:00
a.m., local time, or at such other time and place upon which the Corporation and
the Purchaser shall agree (the date of the Closing is hereinafter referred to as
the "Closing Date").
b. Purchaser's Closing Conditions. The obligation to the
Purchaser to purchase the Debenture is subject to the satisfaction on or prior
to the Closing of the following conditions:
i) The Corporation shall have duly performed and
complied with each of the terms, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing, and
the Corporation shall have delivered a certificate, executed by the President or
Vice President of the Corporation, to such effect;
ii) Each of the representations and warranties of the
Corporation contained herein or in any other documents delivered at or prior to
the Closing shall be true and accurate on and as of the Closing with the same
effect as though made on and as of such date and the Corporation shall have
delivered a certificate of the Corporation executed by its President or any Vice
President to such effect;
iii) All instruments and documents required to carry
out this Agreement or incidental thereto, shall be reasonable satisfactory to
the Purchaser, and the Purchaser shall have been furnished with certified copies
of all corporate actions and proceeding taken by the Corporation to authorize
the execution, delivery and performance of all relevant documents to be executed
and delivered by the Corporation;
iv) No action, suit, proceeding or investigation by
or before any court, administrative agency or other governmental authority shall
have been instituted or threatened to restrain, prohibit or invalidate the
transactions contemplated by this Agreement;
c. Corporation's Closing Conditions. The obligation of the
Corporation to participate in the Closing is subject to the satisfaction on or
prior to the Closing of the following conditions:
i) The Purchaser shall have duly performed and
complied with in all material respects each of the terms, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing and the Purchaser shall have delivered a certificate
of the Purchaser executed by a duly authorized officer of the Purchaser to such
effect;
ii) Each of the representations and warranties of the
Purchaser contained herein and in any other documents delivered at or prior to
each Closing shall be true and accurate on and as of the Closing with the same
effect as though made on and as of such date and the Purchaser shall have
delivered a certificate, executed by the Purchaser or a duly authorized officer
of the Purchaser to such effect;
iii) All instruments and documents required to carry
out this Agreement or incidental thereto, shall be reasonably satisfactory to
the Corporation and the Corporation shall have been furnished with certified
copies of all corporate actions and
proceedings taken by the Purchaser to authorize the execution, delivery and
performance of all relevant documents to be executed and delivered by the
Purchaser; and
iv) No action, suit, proceeding or investigation by
or before any court, administrative agency or other governmental authority shall
have been instituted or threatened to restrain, prohibit or invalidate the
transactions contemplated by this Agreement.
d. Closing Sale. At the Closing, the Purchaser shall deliver
to the Corporation the purchase price for its Convertible Debenture in cash, by
certified check , or bank wire transfer and upon receipt thereof the Corporation
will deliver to the Purchase a duly executed Convertible Debenture.
3. Corporation's Representations and Warranties. Except as set forth in
Exhibit C attached hereto, the Corporation hereby represents and warrants
effective as of the Closing as follows:
a. Corporate Organization and Standing. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. The Corporation has the requisite corporate power to
carry on its business as presently conducted and as proposed or contemplated to
be conducted in the future and to enter into and carry out the provisions of
this Agreement and the transactions contemplated hereby. The Corporation is
presently qualified to do business as a foreign corporation in any jurisdiction
where the failure to be so qualified would have a material adverse affect on the
Company's business.
b. Subsidiaries. The Corporation has no subsidiaries, other
than FiberCore Glassfibre Jena GmbH, and does not otherwise own or control,
directly or indirectly, any equity interest in any corporation, association or
business, other than FiberCore Glassfibre Jena GmbH.
c. Corporate Capitalization.
i) The Corporation's authorized capital stock
consists only of 20,000,000 shares of Common Stock. The Corporation has not more
than 6,594,264 shares of Common Stock outstanding. The Corporation has issued
warrants, rights or options to purchase or acquire not more than 400,000 shares
of Common Stock and will reserve not more than 400,000 shares of Common Stock
for issuance under a stock option plan. There are no other shares of Common
Stock that are subject to purchase or acquisition from the Corporation pursuant
to any rights, options, warrants, convertible securities (other than the
Debentures) or agreements. All issued and outstanding shares of capital stock
are duly authorized, validly issued, fully paid and nonassessable. No person or
entity has any preemptive right to acquire any unissued shares of the
corporation.
ii) As of the date hereof, the Corporation does not
have any declared and unpaid dividends (whether payable in cash, securities or
other consideration).
d. Authorization. All corporate action on the part of the
Corporation, its directors and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Corporation, the
authorization, sale, issuance, and delivery of the Debenture, the capital stock
issuable upon conversion of the Debenture (the "Conversion Shares") and the
performance of all of the Corporation's obligations hereunder has been taken or
will be taken prior to the Closing. This Agreement, and when executed and
delivered by the Corporation, the Debenture, shall continue valid and binding
obligations of the Corporation, enforceable in accordance with their respective
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Conversion Shares have been
duly and validly reserved and, when issued in compliance with the provisions of
the Debenture, will be validly issued, fully paid and nonassessable; and the
Debenture and the Conversion Shares will be free of any liens or encumbrance;
provided, however, that the Debenture and the Conversion Shares may be subject
to restrictions on transfer under state and/or federal securities laws.
e. Litigation. There are no actions, proceedings or
investigations pending or, to the Corporation's best knowledge, threatened
against or affecting the Corporation which, either individually or in the
aggregate, might result in any material adverse change in the business,
prospects, condition, affairs or operations of the Corporation or in any of its
properties or assets, or in any material impairment of the right or ability of
the Corporation to carry on its business as proposed to be conducted, or which
questions the validity of this Agreement or any action taken or to be taken in
connection herewith.
f. Governmental Consents. No consent, approval, order,
authorization or registration, qualification, designation, license, declaration
or filing with any Federal or State governmental authority is required on the
part of the Corporation in connection with the consummation of the transactions
contemplated herein, except those that have been obtained or made.
g. Title to Properties and Assets; Liens, etc. The Corporation
has good and marketable title to is properties and assets and good title so its
leasehold estates, in each case subject to no mortgage, pledge, lien, lease,
encumbrance, or charge, other than (I) those resulting from taxes which have not
yet become delinquent, (ii) minor liens and encumbrances which do not materially
detract from the value of the property subject thereto or materially impair the
operation of the corporation, and (iii) those that have otherwise arisen in the
ordinary course of business.
h. Patents and Trademarks. To the best of its knowledge, the
Corporation has sufficient trade names, copyrights, trade secrets, information,
proprietary title and ownership of all patents, trademarks, service marks,
rights and processes necessary for its business as now conducted, without any
conflict with or infringement of the rights of others. There are no outstanding
options, licenses, or agreements of any kind relating to the foregoing, nor is
the Corporation bound by or a party to any options, licenses or agreements of
any kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses,
proprietary rights and processes of any other person or entity other than such
licenses or agreements arising from the purchase of "off the shelf" or standard
products. The Corporation is not aware that any of its employees is obligated
under any contract (including licenses, covenants or commitments of any nature)
or other agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with their duties to the Corporation
or that would conflict with the Corporation's business as proposed to be
conducted.
i. Compliance with Other Instruments. The Corporation is not
in violation of any term of its Articles or Bylaws, any mortgage, indenture,
contract, agreement, instrument, judgment, decree, order or, to its knowledge,
any statute, rule or regulation applicable to the Corporation which violation
would materially and adversely affect the business, assets, liabilities,
financial condition, operations or prospects of the Corporation. The execution,
delivery, and performance of, and compliance with, this Agreement and the
issuance and sale of the Debenture pursuant hereto and of the Conversion Shares
pursuant to the Debenture, will not result in any such material violation, or be
in conflict with or constitute a default under any such term, or result in the
creation of any mortgage, pledge, lien, encumbrance, or charge upon any of the
properties or assets of the Corporation. To the Corporation's knowledge, all
material instruments, licenses, contracts, leases or other agreements
(collectively "Contracts") to which the Corporation is a party are valid and
binding and in full force and effect in all material respects and the
Corporation has not been notified by any party thereto of any such party's
intention or desire to terminate or modify in any material respect any of such
Contracts, or of any claim or threat that the Corporation has breached any of
such Contracts.
j. Compliance with Laws. The Corporation is not in violation
of any applicable statute, rule, regulation, order or restriction of any
domestic or foreign government or any instrumentality or agency thereof in
respect of the conduct of its business of the ownership of its properties which
violation would materially and adversely affect the business, assets,
liabilities, financial condition, operations or prospects of the Corporation. To
the best of its knowledge, no governmental orders, permissions, consents,
approvals or authorizations are required to be obtained and no registrations or
declarations are require to be filed in connection with the execution and
delivery of this Agreement, and the issuance of the Debenture or the Conversion
Shares, except as such has been duly and validly obtained or filed, or with
respect to any filings that must be made after the Closing, as will be filed in
a timely manner.
4. Purchaser's Representations and Warranties. The Purchaser represents
and warrants to the Corporation that:
a. Investment. The Purchaser is acquiring the Debenture and
any Conversion Shares (hereinafter collectively the "Securities") for investment
for its own account, and not with a view to, or for resale in connection with,
any distribution thereof, and it has no present intention of selling or
distributing any such Securities. The Purchaser understands that the Securities
have not been registered under the Securities Act by reason of a specific
exception from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of the investment as expressed
herein.
b. Rule 144. the Purchaser acknowledges that because the
Securities have not been registered under the Securities Act, the Securities
must be held indefinitely unless subsequently registered under the Securities
Act or an exemption from such registration is available. The Purchaser is aware
of the provisions of Rule 144 promulgated under the Securities Act which permits
limited resale of shares purchased in a private placement under certain
circumstances.
c. No Public Market. The Purchaser understands that no public
market now exists for any securities issued by the Corporation and that it is
uncertain whether a public market will ever exist for any such securities.
d. Access to Data. The Purchaser has had an opportunity to
discuss the Corporation's business, management and financial affairs with its
management and to obtain any additional information necessary or appropriate for
deciding whether or not to purchase the Securities. The Purchaser acknowledges
that no representations or warranties have been made by the Corporation or any
agent thereof except as set forth in this Agreement.
e. Investment Experience. The Purchaser is an "accredited
Purchaser" as that term is defined in Regulation D promulgated by the Securities
and Exchange commission.
f. Previous Investments. The Purchaser is a purchaser in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment and has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the investment contemplated
herein.
g. Risks. The Purchaser understands that an investment in the
Corporation involves a high degree of risk and is suitable only for investors
who can afford a loss of their entire investment and who have no need for
liquidity from their investment.
h. Governmental Consents. To the Purchaser's knowledge, no
consent, approval, order, authorization or registration, qualification,
designation, license, declaration or filing with any governmental authority is
required on the part of the Purchaser in connection with the consummation of the
transactions contemplated herein.
5. Restrictive Legends. Each certificate or other written documentation
representing any of the Securities which the Purchaser is purchasing or may
purchase hereunder any other securities issued upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event (unless no
longer required in the opinion of the counsel for the Corporation) shall be
stamped or otherwise imprinted with legends substantially in the following form
where applicable:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
QUALIFIED UNDER ANY STATE SECURITIES LAW, AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, OR THE HOLDER TO THE CORPORATION AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION, STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT
AND THE QUALIFICATION REQUIREMENTS UNDER STATE LAW."
The Corporation shall be entitled to enter stop transfer notices on its
stock books with respect to the Securities.
6. Registration Rights. Purchaser is hereby granted the same rights to
registration of the Conversion shares under the Securities Act of 1933 and any
applicable state securities laws as has heretofore been granted to any
shareholder of the Corporation.
7. Collateral. Payment of unpaid principal sum and accrued interest
under the Debenture shall be secured by a first perfected security interest as
provided in the Collateral Assignment, Patent Mortgage and Security Agreement
attached hereto as Exhibit B (the "Interim Collateral") until such time as
Purchaser is granted a first perfected security interest in and to all of the
Intended Collateral as described in Exhibit D hereto. Promptly upon the pledge
by the Corporation of the Intended Collateral in the manner set forth in Exhibit
D hereto, the Purchaser shall release all of its right, title and interest in
the Interim Collateral and shall execute and deliver to the Corporation any and
all instruments as may be requested by the Corporation for the purpose of
effecting a release of all of the Purchaser's right, title and interest in and
to the Interim Collateral.
8. Miscellaneous.
a. Survival. The representations, warranties, covenants and
agreements made herein shall survive the Closing.
b. Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, and assigns the parties hereto.
c. Entire Agreement. This Agreement and the Exhibits attached
hereto and the other documents delivered pursuant hereto constitute the full and
entire understanding and agreement between and among the parties with regard to
the subject matter hereof and thereof.
d. Notice. Any notice, payment, report or other communication
required or permitted to be given by one part to any other party by this
Agreement shall be in writing and shall be deemed received (i) at the time
served personally on the other party; (ii) two business days after being sent by
express, registered or certified first class mail, postage prepaid, addressed to
the other party or parties at its or their address or addresses as indicated
next to their
signatures below, or to such other address as any addressee shall have
theretofore furnished to the other parties by like notice; (iii) one day after
being delivered to a recognized commercial courier for next day delivery to the
other party at the address described in clause (ii); or (iv) one day after being
sent by facsimile with the original sent by first class mail to the address
described in clause (ii).
e. Finder's and Broker's Fees. Each party hereto represents
and warrants that it has retained no finder or broker in connection with the
transactions contemplated by this Agreement, and hereby agrees to indemnify and
to hold the other harmless from any liability for any finder's or broker's fee
to any broker or other person or firm (and the costs and expenses of defending
against such liability or asserted liability) for which such indemnifying
person, or any of its employees or representatives, are responsible.
f. Titles and Subtitles. The titles of the Sections and
subsections of this Agreement are for the convenience of reference only and are
not to be considered in construing this Agreement.
g. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
h. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to principals of conflicts of laws.
i. Use of Proceeds. The Corporation may use the proceeds of
this financing for general working capital purposes and for the purchase of
equipment.
j. Financial Statements. The Corporation shall deliver from
time to time to the Purchaser, as promptly as practicable after the date of
preparation thereof, copies of its monthly and quarterly unaudited financial
statements prepared in accordance with generally accepted accounting principles,
and within 4 months following the end of each fiscal year, copies of its annual
audited balance sheet, income statement and statement of cash flows and the
report thereon rendered by the Corporation's independent accountants.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year herinabove first written.
AMP INCORPORATED
470 Friendship Road, Mail Stop 176-034
Harrisburg, PA 17111
Attention: Corporate Development
By: _____________________________
(signature)
Print Name:_______________________
Title:____________________________
FiberCore Incorporated
174 Charlton Road
Sturbridge, MA 01566
By: ___/S/_______________________
(signature)
Print Name: Mohd Aslami
Title: President
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year herinabove first written.
AMP INCORPORATED
470 Friendship Road, Mail Stop 176-034
Harrisburg, PA 17111
Attention: Corporate Development
By: ____/s/_______________________
(signature)
Print Name: James E. Marley
Title: Chairman of the Board
FiberCore Incorporated
174 Charlton Road
Sturbridge, MA 01566
By: _____________________________
(signature)
Print Name: Mohd Aslami
Title: President
INDEX OF EXHIBITS
Exhibit A Debenture
Exhibit B Collateral Assignment, Patent Mortgage and Security Agreement
Exhibit C Exceptions to Corporation's Warranties
Exhibit D Intended Collateral
EXHIBIT A
THIS DEBENTURE AND THE SECURITIES ISSUABLE UPON CONVERSION OF
THIS DEBENTURE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE
SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING THIS DEBENTURE
AND/OR SUCH SECURITIES, OR THE HOLDER FURNISHES AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT
AND THE QUALIFICATION REQUIREMENTS UNDER STATE LAW.
FIBERCORE INCORPORATED
Convertible Debenture
$5,000,000.00 April 17, 1995
1. Obligation. FOR VALUE RECEIVED, FiberCore Incorporated, a Nevada
corporation (the "Corporation"), hereby promises to pay to AMP INCORPORATED (the
"Holder"), on April 17, 2005 the principal sum of Five Million Dollars
($5,000,000.00), together with interest on such principal sum from the date
hereof until payment in full of the principal computed as set forth below.
Interest shall be due at maturity and shall be computed by adding simple
interest at the Applicable Rate for each Interest Period. The first Interest
Period shall commence on the date hereof and end on June 30, 1995. Each
successive Interest Period shall commence on the first day of the calendar
quarter (i.e., January 1, April 1, July 1, and October 1) and end on the last
day of such calendar quarter; provided however, the final Interest Period shall
end on the date of payment in full of the principal sum hereof. The Applicable
Rate for each Interest Period shall be determined by adding 1% to the London
Interbank Offered Rate (LIBOR) for three month deposits as quoted in The Wall
Street Journal dated the business day immediately preceding the commencement of
such Interest Period.
2. Prepayment. Upon not less than 30 days prior written notice to the
Holder, the Corporation may prepay this Debenture at any time and from time to
time, in whole or in part without penalty by payment of the principal sum to be
prepaid together with interest on such sum to the date of such prepayment. The
Corporation shall be required to prepay the entire principal sum and accrued
interest of this Debenture upon not less than thirty day's notice from the
Holder demanding such prepayment, which notice may be given only after the right
of conversion of this Debenture terminates pursuant to the fifth sentence of
Section 3 hereof.
3. Conversion. All outstanding principal and accrued interest on this
Debenture is convertible, at the option of the Holder, at any time into fully
paid and nonassessable shares of the Corporation's Common Stock at the
conversion rate (the "Conversion Rate") of $4.25 per share for the five year
period from the date hereof, thereafter at the price per share paid by a third
party investor in the private sale of shares of Common Stock by the Corporation
immediately preceding any such conversion. Any such conversion shall be in the
minimum amount of $1,000,000 and integral multiples of $250,000; provided,
however, the final conversion may be for all of the remaining principal and
accrued interest. Any partial conversion of this Debenture shall be deemed a
conversion of the principal sum hereof until the entire principal amount is
converted. Thereafter, any conversion shall be of accrued interest. If the
Corporation is the issuer of securities to be sold by it under an effective
registration statement pursuant to the Securities Act of 1933, as amended, the
Corporation will provide no less than ten days prior notice thereof to the
Holder and all conversion rights hereunder will terminate upon the closing of
the sale by the Corporation of the securities covered by said registration
statement unless the Holder shall have converted this Debenture before said
date. In the event the Common Stock is split, subdivided or combined, the
Conversion Rate thereafter in effect shall be appropriately adjusted by the
Corporation to provide the Holder with the number of shares of Common Stock upon
conversion such Holder would have received on such split, subdivision or
combination if it had converted this Debenture immediately prior thereto. In the
event the Common Stock is reclassified or the Corporation merges or combines
with another entity in a transaction in which the holders of Common Stock
receive securities or other consideration in respect of such Common Stock, the
Holder shall be entitled after such event to convert this Debenture into the
kind and type of securities it would have received had the Holder converted this
Debenture immediately prior to such event.
4. Surrender and Cancellation of Debenture. Upon written notice of a
conversion by the Holder together with delivery of this Debenture to the
Corporation or its transfer agent, the applicable amount of outstanding
principal and accrued interest on this Debenture shall be converted. The
Corporation shall not be obligated to issue certificates evidencing the shares
of the securities issuable upon such conversion unless this Debenture is either
delivered to the Corporation or its transfer agent, or the Holder notifies the
Corporation or its transfer agent that this Debenture has been lost, stolen or
destroyed and executes an agreement satisfactory to the Corporation to indemnify
the Corporation from any loss incurred by it in connection with this Debenture.
The Corporation shall, as soon as practicable after such delivery, or such
agreement and indemnification, issue and deliver at such office to the Holder of
this Debenture, a certificate for the securities to which the Holder shall be
entitled. Such conversion shall be deemed to have been made immediately prior to
the close of business on the date of closing of the transaction causing
conversion or the date of receipt of written notice by the Corporation from the
Holder causing conversion. The person entitled to receive the securities
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such securities on such date.
5. Collateral. This Debenture is issued to the Holder pursuant to a
Convertible Debenture Purchase Agreement dated the date hereof (the "Purchase
Agreement"). Pursuant to the Purchase Agreement, this Debenture is secured by
certain collateral.
6. Debenture Confers No Rights As Shareholder. The Holder shall not
have any rights as a shareholder of the Corporation with regard to the shares
issuable hereunder prior to actual conversion hereunder.
7. Waivers. The Corporation hereby waives presentment, demand for
performance, notice of non-performance, protest, notice of protest and notice of
dishonor. No delay on the part of Holder in exercising any right hereunder shall
operate as a waiver of such right or any other right.
8. Assignment. The Holder shall not assign this Debenture without the
prior written consent of the Corporation which consent shall not be withheld
except for valid business reasons.
9. Applicable Law. This Debenture shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts between Massachusetts residents entered into and to be performed
entirely within the State of Massachusetts.
FiberCore Incorporated
By:_______________________
President
EXHIBIT B
COLLATERAL ASSIGNMENT, PATENT MORTGAGE
AND SECURITY AGREEMENT
THIS COLLATERAL ASSIGNMENT, PATENT MORTGAGE AND SECURITY AGREEMENT is
made as of the 17th day of April 1995, by and between FiberCore Incorporated, a
Nevada corporation ("Assignor"), and AMP Incorporated a Pennsylvania corporation
("Assignee").
A. Assignee is willing to purchase a convertible debenture (the
"Convertible Debenture"), from the Assignor pursuant to a Convertible Debenture
Purchase Agreement dated the date hereof (the "Purchase Agreement") and Assignor
desires to sell the Convertible Debenture to the Assignee. The Convertible
Debenture is or will be secured in part pursuant to the terms of the Purchase
Agreement.
B. In order to induce Assignee to purchase the Convertible Debenture,
Assignor has agreed to assign certain intangible property to Assignee for
purposes of securing the obligations of Assignor to Assignee under the
Convertible Debenture.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Assignment, Patent Mortgage and Grant of Security Interest. As
collateral security for the prompt and complete payment and performance of all
of Assignor's indebtedness, obligations and liabilities to Assignee under the
convertible Debenture, Assignor hereby assigns, transfers, conveys and grants a
security interest and mortgage to Assignee, as security, but not as an ownership
interest in and to Assignor's entire right, title and interest in, to and under
the following (all of which shall collectively be called the "Collateral"):
(a) All patents, patent application and like protections
including, without limitation, improvements, divisions, continuations,
renewals, reissues, extensions and continuous-in-part of the same,
including without limitation the patents and patent applications set
forth on Exhibit A attached hereto (collectively, the "Patents");
(b) Any and all claims for damages by way of past, present and
future infringements of any of the rights included above, with the
right, but not the obligation, to sue for and collect such damages for
said use or infringement of the intellectual property rights
identified above;
(c) All licenses or other rights to use any of the Patents and
all license fees and royalties arising from such use to the extent
permitted by such license or rights; and
(d) All amendments, extensions, renewals and extensions of any of
the Patents: and
(e) All proceeds and products of the foregoing, including without
limitation all payments under insurance or any indemnity or warranty
payable in respect of any of the foregoing.
THE INTEREST IN THE COLLATERAL, BEING ASSIGNED HEREUNDER SHALL NOT BE CONSTRUED
AS A CURRENT ASSIGNMENT, BUT AS A CONTINGENT ASSIGNMENT TO SECURE ASSIGNOR'S
OBLIGATIONS TO ASSIGNEE UNDER THE PURCHASE AGREEMENT.
2. Authorization and Request. Assignor authorizes and requests that the
Commissioner of Patents and Trademarks record this conditional assignment.
3. Covenants and Warranties. Assignor represents, warrants, covenants
and agrees as follows:
(a) Assignor is now the sole owner of the Collateral, except
for non-exclusive licenses granted by Assignor to its customers in the ordinary
course of business.
(b) Performance of this Assignment does not conflict with or
result in a breach of any agreement to which Assignor is bound and this
Assignment constitutes an assignment.
(c) During the term of this Agreement, Assignor will not
transfer or otherwise encumber any interest in the Collateral, except for
non-exclusive licenses granted by Assignor in the ordinary course of business
set forth in this Assignment.
(d) To its knowledge, each of the Patents is valid and
enforceable, and no part of the Patents has been judged invalid or
unenforceable, in whole or in part, and no claim has been made that any part of
the Patents violates the rights of any third part.
(e) Assignor shall promptly advise Assignee of any material
adverse change in the composition of the Collateral, including but not limited
to any subsequent ownership right of the Assignor in or to any Patent not
specified in this Assignment.
(f) Assignor shall (I) protect, defend and maintain the
validity and enforceability of the patents (ii) use its best efforts to detect
infringements of the Patents and promptly advise Assignee in writing of material
infringements detected and (iii) not allow any Patents to be abandoned,
forfeited or dedicated to the public without the written consent of Assignee,
which shall not be unreasonable withheld unless Assignor determines that
reasonable business practices suggest that abandonment is appropriate.
(g) This assignment creates, and in the case of after acquired
Collateral, this Assignment will create at the time Assignor first has rights in
such after acquired Collateral, in favor of Assignee a valid and perfected first
priority security interest in the collateral in the
United States securing the payment and performance of the obligations evidenced
by the Debenture upon making the filings referred to in Section 3(h) below.
(h) To its knowledge, except for, and upon, the filing with
the United States Patent and Trademark Office necessary to perfect the security
interests and assignment created hereunder and except as has been already made
or obtained, no authorization, approval or other action by, and no notice to or
filing with, any U.S. governmental authority of U.S. regulatory body is required
either (I) for the grant by Assignor of the security interest granted hereby or
for the execution, delivery or performance of this Assignment by Assignor in the
United States, or (ii) for the perfection in the United States or the exercise
by Assignee of its right and remedies thereunder.
(i) All information heretofore, herein or hereafter supplied
to Assignee by or on behalf of Assignor with respect to the Collateral is
accurate and complete in all material respects.
(j) Assignor shall not enter into any agreement that would
materially impair or conflict with Assignor's obligations hereunder without
Assignee's prior written consent, which consent shall not be unreasonable
withheld. Assignor shall not permit the inclusion in any material contract to
which its become a party of any provisions that could or might in any way
prevent the creation of a security interest in Assignor's rights and interest in
any property included within the definition of the collateral acquired under
such contracts, except that certain contracts may contain anti-assignment
provisions that could in effect prohibit the creation of a security interest in
such contracts.
(k) Upon the Assignor obtaining actual knowledge thereof,
Assignor will promptly notify Assignee in writing of any event that materially
adversely affects the value of any material Collateral, the ability of Assignor
to dispose of any material Collateral of the rights and remedies of Assignee in
relation thereto, including the levy of any legal process against any of the
Collateral.
4. Assignee's Rights. Assignee shall have the right, but not the
obligation, to take, at Assignor's sole expense, any actions that Assignor is
required under this Assignment to take but which Assignor fails to take, after
fifteen (15) days' notice to Assignor. Assignor shall reimburse and indemnify
Assignee for all reasonable costs and reasonable expenses incurred in the
reasonable exercise of its rights under this Section 4.
5. Inspection Rights. Assignor hereby grants to Assignee and its
employees, representatives and agents the right to visit, during reasonable
hours upon prior reasonable written notice to Assignor, and any of Assignor's
plants and facilities that manufacture, install or store products (or that have
done so during the prior six-month period) that are sold utilizing any of the
collateral, and to inspect the products and quality control records relating
thereto upon reasonable written notice to Assignor and as often as may be
reasonably requested, but not more than one (1) in every twelve (12) months;
provided, however, nothing herein shall entitle Assignee success to Assignor's
trade secrets and other proprietary information.
6. Further Assurances; Attorney in Fact.
(a) On a continuing basis, Assignor will, subject to any prior
licenses, encumbrances and restrictions and prospective licenses, make, execute,
acknowledge and deliver, and file and record in the proper filing and recording
places in the United States, all such instruments, including appropriate
financing and continuation statements and collateral agreements and filings with
the United States patent and Trademarks Office and take all such action as may
be reasonable be deemed necessary or advisable, or as requested by Assignee, to
perfect Assignee's security interest in the Patents and otherwise to entry out
this intent and purposes of this Collateral Assignment, or for assuring and
confirming to Assignee the grant or perfection of a security interest in all
Collateral.
(b) Assignor hereby irrevocably appoints Assignee as
Assignor's attorney-in-fact, with full authority in the place and stead of
Assignor and in the name of Assignor, Assignee or otherwise, from time to time
in Assignee's discretion, upon Assignor's failure or inability to do so, so to
take any action and to execute any instrument which Assignee may deem necessary
or advisable to accomplish the purpose of this Collateral Assignment, including:
(i) To modify, in its sole discretion, this Collateral
Assignment without first obtaining Assignor's approval of or signature
to such modification by amending Exhibit A hereof, as appropriate, to
include reference to any right, title or interest in any Patents
acquired by Assignor after the execution hereof or to delete any
reference to any right, title or interest in any Patents in which
Assignor no longer has or claims any right, title or interest; and
(ii) To file, in its sole discretion, one or more financing or
continuation statements and amendments thereto, relative to any of the
Collateral without the signature of Assignor where permitted by law.
7. Events of Default. The occurrence of any of the following shall
constitute an Event or Default under the Assignment.
(a) The Assignor fails to pay, within ten (10) days after
notice thereof from the Assignee, any amounts due under the Convertible
Debenture at maturity or upon mandatory prepayment;
(b) Assignor commits any material breach of any warranty or
agreement made by Assignor in this Assignment and fails to cure such
breach within 30 days after notice thereof from the Assignee; or
(c) The Assignor shall (i) commence any proceeding seeking
relief under any bankruptcy, insolvency, reorganization or similar law
or seeking the appointment of a receiver, trustee, custodial or other
similar official for it or a substantial portion of its assets, (ii)
make a general assignment for the benefit of creditors, (iii) become
the subject
of any proceeding referred to in clauses (i) or (ii) above which results
in the entry of an order for relief or any such appointment or which
proceeding remains undismissed for 60 days.
8. Remedies. Upon the occurrence and continuance of an Event of
Default, Assignee shall have the right to exercise all the remedies of a secured
party under the Massachusetts Uniform Commercial Code, including without
limitation the right to require Assignor to assemble the Collateral and any
tangible property in which Assignee has a security interest and to make it
available to Assignees at a place designated by Assignee. Assignee shall have a
nonexclusive, royalty free license to use the Patents to the extent reasonably
necessary to permit Assignee to exercise its rights and remedies upon the
occurrence of an Event of Default. Assignor will pay any expenses (including
reasonable attorney's fees) incurred by Assignee in connection with the exercise
of any of Assignee's rights hereunder, including without limitation any expense
incurred in disposing of the Collateral. All of Assignee's rights and remedies
with respect to the Collateral shall be cumulative.
9. Indemnity. Assignor agrees to defend, indemnify and hold harmless
Assignee and its officers, employees, and agents against; (a) all obligations,
demands, claims, and liabilities claimed or asserted by any other party in
connection with the transactions contemplated by this Agreement, and (b) all
losses or expenses in any way suffered, incurred, or paid by Assignee during the
continuance of an Event of Default as a result of or in any-way arising out of
the exercise by the Assignor of its rights and remedies whether under this
Assignment or otherwise (including without limitation, reasonable attorneys fees
and reasonable expenses), except for losses arising form or out of Assignee's
gross negligence or willful misconduct.
10. Reassignment. At the earlier to occur of (i) such time as Assignor
shall completely satisfy all of the obligations secured hereunder, or (ii) the
Convertible Debenture is secured by the Intended Collateral as provided for in
the Purchase Agreement, Assignee shall execute and deliver to Assignor all
deeds, assignments, and other instruments as may be necessary or proper to
reinvest in Assignor full title to the property assigned hereunder, subject to
my disposition thereof which may have been made by Assignee pursuant hereto.
11. Course of Dealing. No course of dealing, nor any failure to
exercise, nor any delay in exercising any right, power or privilege hereunder
shall operate as a waiver thereof.
12. Attorneys' Fees. If any action relating to this Assignment is
brought by either party hereto against the other party, the prevailing party
shall be entitled to recover reasonable attorneys fees, costs and disbursements.
13. Amendments. This Assignment may be amended only by a written
instrument signed by both parties hereto.
14. Counterparts. This Assignment may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute the same instrument.
15. Law and Jurisdiction. This Assignment shall be governed by the laws
of the Commonwealth of Massachusetts, without regard for choice of law
provisions. Assignor and Assignee commit to the nonexclusive jurisdiction of any
state or federal court located in Massachusetts.
16. Confidentiality. In handling any confidential information, Assignee
shall exercise the same degree of care that it exercises with respect to its own
proprietary information of the same types to maintain the confidentiality of any
non-public information thereby received or received pursuant to this Assignment
except that the disclosure of this information may be made (I) to the affiliates
of the Assignee, (ii) to prospective transferee or purchasers of an interest in
the obligations secured hereby, provided that they have entered into comparable
confidentiality agreement in favor of Assignor and have deliver a copy to
Assignor, (iii) as required by law, regulation, rule or order, subpoena judicial
order or similar order and (iv) as may be required in connection with the
examination, audit or similar investigation of Assignee.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment on
the day and year first above written.
Address of Assignees: Assignor:
FiberCore Incorporated
P.O. Box 206
174 Charlton Road
Sturbridge, MA 01566
By:____________________________
Name: Mohd Aslami
Title: President
Address of Assignee: Assignee:
AMP Incorporated
470 Friendship Road, Mail Stop 176-034
Harrisburg, Pennsylvania 17111
Attention: Corporate Development
By:____________________________
Name: James E. Marley
Title: Chairman of the Board
EXHIBIT A
United States Patent (19) (11) Patent Number: 4,596,589
Perry (45) Date of Patent: June 24, 1986
- ---------------------------------------------------------------------------------
[54] METHOD FOR PRODUCING A SINGLE Attorney, Agent, or Firm - Howard A. Kenyon
MODE FIBER PREFORM
[76] Inventor: Gregory A. Perry, 2693 Wood [57] ABSTRACT
Hollow Dr., Dorsville, GA 30360
A method for fabricating a single mode fiber
[21] Appl. No.: 378,484 preform is described. The method consists of
placing a core rod in a glass lathe, sliding a
[22] Filed: February 9, 1984 barrier tube over the core rod, partially attaching
the barrier tube to the core rod, rotating and heating
[51] 1st Cl4.....................C03B 37/018: C03B 37/012 the barrier tube, and traversing the heat sources until
[52] U.S. Cl.............................68/3.12; 65/3.11 the barrier tube collapses onto the core rod. A second
[58] Field of Search...............65/3.11, 13. 3.12, 3.2 tube of high purity quartz called a primary jacket tube
is then slipped over the combination fabricated from
[56] Reference Cited the core rod and barrier tube, rotating and heating the
primary jacket tube, and traversing the heat source
U.S. PATENT DOCUMENTS until the primary jacket tube collapses onto the barrier
tube. A third tube of high purity quartz called a
3,711,262 1/1973 Keck et al...................65/3.11 secondary jacket tube is then slipped over the comb-
3,826,560 7/1974 Schultz.....................65/212 % ination fabricated from the core, barrier tube and
3,901,474 8/1975 Strsck et al.................65/3.11 primary jacket tube, partially attaching the secondary
3,933,454 1/1976 DeLuca.......................65/3.12 jacket tube to the primary jacket tube, rotating and
4,062,665 12/1977 Isawa et al..................65/13 % heating the secondary jacket tube, and traversing the
4,089,586 5/1978 French et al...............350/94.30 heat source until the secondary jacket tube collapses
4,154,891 5/1979 French et al...............65/3.11 % over the primary jacket tube to form a single mode
fiber preform.
FOREIGN PATENT DOCUMENTS
16 Claims, 5 Drawing Figures
54.131043 10/1979 Japan.........................65/3.11
57.92334 6/1982 Japan.......................65/3.11
Primary Examiner - Kenneth M. Schor
DIAGRAM
EXHIBIT C
EXCEPTIONS TO CORPORATION'S WARRANTIES AND REPRESENTATIONS
Section
3c(i) The Corporation has executed a terms sheet with
Middle East Specialized Cables Company for a
prospective joint venture which includes among its
terms the purchase by the joint venture partner of
286,000 shares of Common Stock. The Corporation is
presently negotiating to reduce this number of
shares.
Subject to approval of the boards of directors of the
Corporation and Automated Light Technologies, the
Corporation anticipates acquiring Automated Light
Technologies Inc.
for approximately 1,400,000 shares of Common Stock.
EXHIBIT D
INTENDED COLLATERAL
The Intended Collateral shall consist of one or more, and any
combination of (such number and combination to be determined by the Corporation
in its sole discretion), items of Eligible Equipment (as defined below) that
together shall have, as of the date on which such items are pledged as
contemplated under the agreement of which this Exhibit D forms a part (such
agreement, the "Purchase Agreement") an aggregate Collateral Value (as defined
below) of not less than $5,000,000.
"Eligible Equipment" shall include any of the following types of
equipment: (a) preform lathe with delivery systems, (b) draw tower; (c) strength
tester; (d) tube cleaning system; (e) over jacketing lathe; (f) etching
facility; (g) scrubber; (h) glass shaft lathe; (i) profile analyzer; (j) optical
time delay refractometer; (k) fiber physical geometry measuring device; (l)
optical tester; and (m) any equipment that is substantially similar to any of
the foregoing items or is an attachment or other item that may be attached or
related thereto; provided, however, that in each case, such item shall be
related to the creation, manufacturing or production of preforms or fiberoptic
fibers or cables from such preforms.
With respect to one or more items of Intended Collateral that are
acquired by the Corporation on or after the date of the Purchase Agreement, the
"Collateral Value" shall be an amount equal to the sum of (I) the purchase price
of such item(s), (ii) the costs of any engineering study or other evaluations
commissioned or obtained by the Corporation in connection with the purchase,
transportation or installation of such item(s), (iii) to the extent paid by the
Company, the costs of the transportation and/or installation of such item(s),
(iv) the costs of preparing such item(s) for continuous and regular operation,
(v) all other costs associated with the start-up of such item(s) and (vi) any
other costs associated with the acquisition and installation of such item(s) as
have been paid by or on behalf of the Corporation and are permitted to be
capitalized and amortized as acquisition costs under the customary accounting
and financial practices of the Corporation in valuing similar items of equipment
and are so capitalized and amortized in a manner consistent with generally
accepted accounting principles.
With respect to one or more items of Eligible Equipment that were owned
by the Corporation prior to the date of the Purchase Agreement, or are acquired
by the Corporation from an affiliate and were owned by such affiliate prior to
the date of the Purchase Agreement, the "Collateral Value" shall mean the net
book value on the books of the Corporation or such affiliate at the time of
transfer determined in accordance with generally accepted accounting principles.
Simultaneously with its pledge of the items of Intended Collateral, the
Corporation shall deliver to the Purchaser a written schedule setting for the
Collateral Value of each such item.
After the date on which the items of Intended Collateral are pledged as
contemplated by the Agreement, the Corporation shall be entitled from time to
time to substitute in place of one or
more items then subject to such pledge (such item(s), "Replaced Collateral") one
or more other items of Eligible Equipment (whether now owned or hereafter
acquired by the Corporation) (such items, "Substitute Collateral"), provided in
each case that (a) the Collateral Value of the Substitute Collateral (as of the
date on which such substitution is made) shall be not less than the Collateral
Value of the Replaced Collateral (such Collateral Value being calculated as of
the date on which such Replaced Collateral was earlier pledged) and (b) the
Corporation shall deliver to the Purchaser a schedule identifying the item(s) of
Replaced Collateral and the Collateral Value(s) thereof . In addition, in each
case of substitution, simultaneously with such substitution, the Corporation
shall execute and deliver to the Purchaser an instrument confirming that the
Substitute Collateral is subject to the lien of the Purchase Agreement, and
shall file or caused to be filed on or before the date of such substitution
appropriate financing statements under applicable law relating to the Substitute
Collateral, and the Purchaser shall execute any instrument reasonable requested
by the Corporation for the purpose of releasing such item of Replaced Collateral
from all liens thereon in favor of the Purchaser.
All determinations of Collateral Value as reported by the Corporation
to the Purchaser shall be binding upon the Purchaser absent manifest error.