MERGER AGREEMENT
This Merger Agreement is executed as of this 18th day of July, 1995.
WITNESSETH:
WHEREAS, the Board of Directors of each of the undersigned corporations
has adopted the Plan of Merger of FiberCore Incorporated, a Nevada corporation,
into Venturecap, Inc., a Nevada corporation, attached as Annex 1 (the "Plan");
and
NOW, THEREFORE, the undersigned corporations hereby agree that the Plan
and the merger contemplated thereby, shall be consummated as provided by the
Plan, unless terminated pursuant to the Plan prior to the filing of Articles of
Merger, and further agree that following consummation of the merger, this
instrument and Annex 1 hereto shall constitute the complete executed Plan of
Merger referred to in Nevada Revised Statutes 78.451 et seq.
IN WITNESS WHEREOF, Venturecap and FiberCore have caused this Agreement
to be duly executed as of the date first written above.
VENTURECAP, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
-------------------------
Title:
------------------------
FIBERCORE INCORPORATED
By: /s/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
------------------------
Title: President
ANNEX 1
PLAN OF MERGER
Pursuant to the provisions of Nevada Revised Statutes ("NRS") 78.451,
et seq., the following sets forth a plan of merger of FiberCore Incorporated, a
Nevada corporation (the "Constituent Corporation"), into Venturecap, Inc., a
Nevada corporation (the "Surviving Corporation," or "Venturecap"):
a. If this plan of merger is adopted by the stockholders of the parties
in accordance with the laws of the State of Nevada and not terminated or
abandoned as hereinafter provided, the merger of the Constituent Corporation
into the Surviving Corporation shall become effective upon the filing of
Articles of Merger in the office of the Secretary of State of Nevada pursuant to
the provisions of NRS 78.458, or at such later time as may be set forth in the
Articles of Merger (the "Effective Time of the Merger").
b. At the Effective Time of the Merger, the separate existence of the
Constituent Corporation shall cease, and the Surviving Corporation shall possess
all rights, privileges and powers, and be subject to all restrictions,
disabilities and duties of the Constituent Corporation.
c. At the Effective Time of the Merger, the title to all real estate
and other property, real and personal, owned by the Constituent Corporation and
all debts due to the Constituent Corporation shall be vested in the Surviving
Corporation without reversion or impairment.
d. At the Effective Time of the Merger, the Surviving Corporation shall
have all of the debts, liabilities and duties of the Constituent Corporation,
but all rights of creditors and all liens upon any property of the Constituent
Corporation shall be preserved unimpaired.
e. Any proceeding pending against the Constituent Corporation may be
continued as if the merger had not occurred or the Surviving Corporation may be
substituted in the proceeding for the Constituent Corporation.
f. The Articles of Incorporation of the Surviving Corporation shall
remain in full force and effect as the Articles of Incorporation of the
Surviving Corporation, and will be amended at the Effective Time of the Merger,
as follows:
Article I of the Articles of Incorporation is deleted in its entirety
and replaced by the following:
The Name of the Corporation is FiberCore, Inc.
g. The Bylaws of the Surviving Corporation shall remain in full force
and effect as the Bylaws of the Surviving Corporation following the Effective
Time of the Merger, without amendment, until altered, amended or repealed as
provided therein.
h. The officers and directors of FiberCore Incorporated on the
Effective Time of the Merger, to wit:
Name Position
Xxxx X. Xxxxxx Director and Chief Executive Officer
Xxxxxxx X. Xxxxx Director and Vice President of Sales
and Marketing
Xxxxxxx XxXxxx Director and Secretary
Xxxx Xxxxxxx Director
Xxxx Xxxxxx Director
Xxxx Xxxxxx Director
Xxxxxx Xxxxxxxx Director
shall be the officers and directors of the Surviving Corporation following the
Effective Time of the Merger until respective successors are appointed or
elected and qualified.
i. Each outstanding share of common stock of the Constituent
Corporation shall be converted into 3.6713070 shares of the Surviving
Corporation.
j. The manner of converting the outstanding shares of the capital stock
of the Constituent Corporation into the shares or other securities of the shall
be as follows:
(1) Each share of common stock of Venturecap, Inc., which
shall be issued and outstanding at the Effective Time of the Merger shall remain
issued and outstanding.
(2) Other than shares of common stock of the Constituent
Corporation owned by the Constituent Corporation or shares of common stock of
the Constituent Corporation owned directly or indirectly by Venturecap, which
shall be cancelled, the shares of common stock of the Constituent Corporation
which shall be outstanding at the Effective Time of the Merger and all rights in
respect thereof, shall forthwith be changed and converted into 3.6713070 shares
of common stock of the Surviving Corporation.
(3) After the Effective Time of the Merger, each holder of an
outstanding certificate representing shares of common stock of the Constituent
Corporation shall surrender the same to the Surviving Corporation and each such
holder shall be entitled upon such surrender to receive the number of shares of
common stock of the basis provided herein. Until so surrendered, the outstanding
shares of the stock of the Constituent Corporation to be converted into the
stock of as provided herein, may be treated by the Surviving Corporation for all
corporate purposes as evidencing the ownership of shares of the Surviving
Corporation as though said surrender and exchange had taken place. After the
Effective Time of the Merger, each registered owner of any uncertified shares of
common stock of the Constituent Corporation shall have said shares canceled and
said registered owner shall be entitled to such number of common shares of the
Surviving Corporation as are provided for herein.
k. Anything herein or elsewhere to the contrary notwithstanding, the
merger may be abandoned by the Board of Directors of either corporation, in the
sole discretion of any such Board and without further action by stockholders, at
any time prior to the Effective Time of the Merger, subject to the provisions of
the Agreement and Plan of Reorganization between Venturecap and FiberCore.
l. Any officer of the Surviving Corporation is authorized to execute
and deliver such other and further instruments and documents as may be necessary
to effectuate this plan of merger in accordance with its terms.
m. The shares to be issued in the merger will not be registered under
the Securities Act of 1933, as amended, or under any state securities laws.
n. The Surviving Corporation shall in no event be required to
consummate the merger unless the Surviving Corporation in its sole discretion
shall have determined that issuance of shares in the merger is exempt from the
registration requirements of the Securities Act of 1933, as amended, and that
such shares may be lawfully issued without registration under the provisions of
any state securities law.
ARTICLES OF MERGER
OF
FiberCore Incorporated,
a Nevada Corporation
Into
Venturecap, Inc.,
a Nevada Corporation
THE UNDERSIGNED, as the President and the Secretary of Venturecap,
Inc., a Nevada corporation (the "Surviving Corporation"), as and for the purpose
of complying with the provisions of Nevada Revised Statutes ("NRS") Sections
78.451 et seq., and in order to effectuate the merger of FiberCore Incorporated,
a Nevada Corporation into Venturecap, Inc., a Nevada Corporation, hereby
certifies as follows:
1. The name of the Constituent Corporation is FiberCore Incorporated
and its place of incorporation was the State of Nevada. The name of the
Surviving Corporation is Venturecap, Inc. and its place of incorporation was
also the State of Nevada.
2. A plan of merger has been adopted by the Board of Directors of each
corporation that is a party to this merger.
3. The plan of merger was submitted by the Board of Directors of the
Surviving Corporation to its stockholders pursuant to the Nevada Revised
Statutes. Of the 955,451 outstanding shares of Venturecap common stock, par
value, $.001 per share at the time of the vote, all were entitled to vote on the
plan of merger, 765,550 were represented at the shareholders meeting, 765,550
shares were voted in favor of the plan of merger and 0 shares were voted against
the plan and the number of votes cast in favor of the plan was sufficient for
approval of the plan of merger.
4. The plan of merger was submitted by the Board of Directors of the
Constituent Corporation to its stockholders pursuant to the
Nevada Revised Statutes. Of the 6,605,277 outstanding shares of FiberCore common
stock, par value, $.01 per share, holders representing 5,333,334 shares agreed
to the plan of merger by written consent, and the consent of such stockholders
was sufficient for approval.
4. The Articles of Incorporation of the Surviving Corporation are
hereby amended as follows:
Article I of the Articles of Incorporation is deleted in its
entirety and replaced by the following:
The Name of the Corporation is FiberCore, Inc.
5. A complete executed plan of merger is on file at the office of the
registered agent of the Surviving Corporation which is hereby changed to be:
Corporation Trust Company
Xxx Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxx, Xxxxxx 00000
Formerly the registered agent was:
Broadmoor Associates, Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
6. A copy of the plan of merger will be furnished by the Surviving
Corporation on request and without any cost to any stockholder of any
corporation which is a party to this merger.
7. The effective date of this merger is the date upon which these
Articles of Merger are filed in the Office of the Secretary of State of the
State of Nevada.
IN WITNESS WHEREOF, we have set forth our hands as of the day of
1995.
VENTURECAP, INC.
By
----------------------------
Name:
Title: President
By
----------------------------
Name:
Title: Secretary
FIBERCORE INCORPORATED
By
----------------------------
Name:
Title: President
By
----------------------------
Name:
Title: Secretary
EXHIBIT D
DIRECTORS OF SURVIVING CORPORATION
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx XxXxxx
Xxxx Xxxxxxx
Xxxx Xxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxxxx
Exhibit E
OFFICERS OF SURVIVING CORPORATION
Xxxx X. Xxxxxx Chief Executive Officer
Xxxxxxx X. Xxxxx Vice President of Sales and Marketing
Xxxxxxx XxXxxx Secretary
EXHIBIT F
July __, 1995
FiberCore Incorporated
X.X. Xxx 000
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Gentlemen:
We have acted as counsel to Venturecap, Inc., a Nevada corporation
("Venturecap"), in connection with their execution and delivery of the (i)
Agreement and Plan of Reorganization (the "Agreement and Plan") among Venturecap
and FiberCore Incorporated, a Nevada corporation ("FiberCore") and (ii) the
Merger Agreement among FiberCore and Venturecap (the "Merger Agreement"), each
dated as of July __, 1995 (the Agreement and Plan and the Merger Agreement are
sometimes hereinafter referred to collectively as the "Merger Agreements"). This
opinion is given pursuant to Section 8.3(c) of the Agreement and Plan.
Capitalized terms used but not defined herein have the meanings ascribed to such
terms respectively in the Agreement and Plan.
In connection with this opinion, we have examined: the Merger
Agreements and certain originals or copies of corporate records of Venturecap.
For purposes of this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and that the information in the certificates,
representations, and
statements referred to above remains true and complete as of the date hereof.
Based upon and subject to the foregoing, and subject to the
qualifications and exceptions hereinafter set forth, we are of the opinion as of
this date that:
a. Venturecap is duly organized and validly existing corporations in
good standing under the laws of the State Nevada has the corporate power and
authority to own its properties and conduct its businesses as presently
conducted. Venturecap has full corporate power and authority to enter into the
Merger Agreements and to consummate the transactions contemplated thereby.
b. The execution, delivery, and performance of the Merger Agreements by
Venturecap have been duly authorized by all requisite corporate and shareholder
action on the part of Venturecap. The Merger Agreements have been duly executed
and delivered by Venturecap and constitute legal, valid, and binding obligations
on the part of Venturecap.
c. The execution and delivery of the Merger Agreements and the
consummation of the Merger do not violate or conflict with the Certificate of
Incorporation or Bylaws of Venturecap.
d. Upon and following the Effective Time of the Merger, the shares of
Venturecap to be issued in the Merger will be duly authorized, validly issued,
fully paid and non-assessable outstanding shares of Venturecap Common.
e. The Articles of Merger, when filed with the Nevada Secretary of
State will be effective to consummate the merger between Venturecap and
FiberCore.
In addition, I declare that as of the date hereof, neither myself nor
my firm is owed any funds (including disbursements) by Venturecap, including but
not limited to funds owed for work related to this merger.
Very truly yours,
EXHIBIT G
Principal's Letter
------------------
July , 1995
FiberCore Incorporated
X.X. Xxx 000
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
In consideration of the merger of FiberCore Incorporated ("FiberCore"),
into Venturecap, Inc. ("Venturecap"), of which I am a shareholder, in my
individual capacity, and not in my capacity as a director or officer of
Venturecap, I agree represent, warrant and covenant as follows:
(i) I will indemnify, pay the defense costs of and hold FiberCore and
if the merger is consummated, the corporation surviving the merger (the
"Surviving Corporation") and its affiliates (the "Indemnitees") harmless from
and against all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs and expenses, including, without limitation,
interest, penalties and reasonable attorneys, fees and expenses (collectively
"Damages"), imposed upon or incurred by FiberCore or the Surviving Corporation
by reason of or resulting from:
(a) any inaccuracy or breach of any representation, warranty or
covenant or failure of any condition or lack of compliance with
any term of the Agreement by Venturecap contained in or made
pursuant to the Agreement and Plan of Reorganization (the
"Agreement") and the Merger Agreement (the "Merger Agreement"),
or
(b) any inaccuracy or misrepresentation in any certificate or any
Venturecap Schedule delivered by Venturecap pursuant to the
Agreement, or
(c) any breach by me of this letter.
(ii) I will pay each Indemnitee the amount which would be required to
put such Indemnitee in the position that it would have been in had any breach
(including any inaccuracy of any representation or warranty, failure of any term
or condition, or lack of compliance with any term of the agreement) not
occurred.
(iii) I will not seek contribution or indemnification or any other
recourse for my obligations hereunder from Venturecap or the Surviving
Corporation, or any of their officers or directors, or any other entity, if such
contribution or indemnification would or could cause any payments to be made by
Venturecap or the Surviving Corporation, either directly or indirectly.
(iv) Any notice may be sent to me at the address listed above.
(v) I represent that I own 80,000 shares of Venturecap common stock and
that I acquired my shares in Venturecap in a transaction exempt from
registration under the Securities Act of 1933, as amended.
(vi) This letter will be governed by the laws of the State of New York
and any dispute relating thereto shall be adjudicated in the courts of the state
of New York or in the federal courts located in such jurisdiction, and I hereby
submit to the jurisdiction of such courts.
(vii) I acknowledge that any Indemnitee may seek recourse against me,
independent of any other recourse he may have, provided that no Indemnitee shall
be entitled to more than a single recovery.
(viii) In executing this letter agreement, I am not relying on any
other shareholder executing a similar agreement.
(ix) This indemnification shall remain in full force and effect
notwithstanding any waivers by any entity.
(x) In executing this letter, I am not relying on any statement by
FiberCore with respect to its financial condition or otherwise contained in the
Agreement.
Very truly yours,
By
--------------------------
Xxxxx X. Xxxxxx
EXHIBIT H
CERTIFICATE OF XXXXX XXXXXXX
I hereby certify that as of the date hereof, there are no amounts owing
from Venturecap, Inc. to me or my firm, and all such amounts have been paid in
full.
---------------------------
Xxxxx Xxxxxxx
Schedule 3.2
Warrants, Options and Other
Outstanding Convertible Equity Securities
-----------------------------------------
$5,000,000 convertible debt plus interest accumulatuing at a rate of
LIBOR plus one percent may be converted into common stock of FiberCore through
April 17, 2005. For the first five years the conversion price is $4.25 per
share; thereafter the conversion price is equal to the price per share paid by a
third party investor in the private sale of common stock by FiberCore
immediately prior to such conversion.
95,000 employee stock options are outstanding and 305,000 additional
options are available for issuance.
425,000 options may be issued to a new chief operating officer.
Pursuant to a Letter of Intent dated May 15, 1995 between FiberCore and
Automated Light Technologies, Inc. ("ALT"), ALT will merge into FiberCore or a
subsidiary thereof and FiberCore will issue a 2.4 million shares of common stock
of FiberCore to ALT shareholders.
Additional warrants exercisable into 150,000 shares of FiberCore
Capital Stock are due to be issued to Middle Eastern Specialized Cable Company
("MESC"), upon signing of certain agreements.
65,000 shares of FiberCore Capital Stock are due to be issued to MESC
upon the exercise of the warrants listed in the above paragraph.
An additional 185,000 shares of FiberCore Capital Stock are to be
issued to MESC upon the signing of certain agreements.
100,000 shares of FiberCore Capital Stock are currently being held in
escrow for MESC pending certain approvals and the signing of certain documents.
An additional 223,625 warrants are outstanding (subject to adjustment)
Additional warrants may be due the Xxxxxx Group in an amount dependent
on the number of the Company's securities placed by them, in a contemplated
private placement.
All warrants and options reflect pre-dilution numbers. Such dilution
may have occurred from issuance of other warrants, options or sales of stock. In
addition, the terms of this agreement may further dilute options and warrants.
