EXHIBIT 10.58
EXHIBIT "F"
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DATED THIS 17TH DAY OF NOVEMBER 1997
BETWEEN
FIBERCORE INC.
AND
PNB EQUITY RESOURCE CORPORATION SDN. BHD.
(Company No. 197031-X)
AND
FEDERAL POWER SDN. BHD.
(Company No. 17892-V)
***************************************
PUT OPTION AGREEMENT
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ABDULLAH, ABD. RAHMAN & CO.
(Advocates & Solicitors)
17th Floor, Wisma Xxx Rubber
Xxxxx Xxxxxx
00000 Xxxxx Xxxxxx
(REF: AM/DL/SM/MISC/1703/97)
91
THE PUT OPTION AGREEMENT is made the 17TH day of NOVEMBER 1997 BETWEEN
FIBERCORE INC., a Nevada corporation under the laws of the United States of
America with offices at 000 Xxxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxx,
Xxxxxxxxxxxxx 00000 Xxxxxx Xxxxxx of America (hereinafter referred to as "FCI")
and PNB EQUITY RESOURCE CORPORATION SDN. BERHAD (COMPANY NO. 197031-X) a company
incorporated under the laws of Malaysia with its registered office at 4th Floor,
Balai PNB, 000-X, Xxxxx Xxx Xxxxx, 00000 Xxxxx Xxxxxx (hereinafter called
"PERC") of the first part, FEDERAL POWER SDN. BHD. (COMPANY NO. 17892-V) a
company incorporated in Malaysia with its registered office at Xxx 0, Xxxxx
Xxxxx 00/00, X.X. Xxx 0000, 00000 Xxxx Xxxx, Xxxxxxxx Darul Ehsan (hereinafter
referred to as "FP").
WHEREAS
A. FIBERCORE (M) SDN. BHD. (hereinafter "called the joint-venture
Company"), incorporated in Malaysia, has an authorized share capital of
Ringgit Malaysia One Hundred Million (RM100,000,000) divided into
30,700,000 ordinary shares of RM1.00 each and 69,300,000 convertible
preference shares of per value RM0.05 each. The initial paid up capital
of the Company is Ringgit Malaysia Fifty Two Million Thirty Seven
Thousand Four Hundred and Eighty Six (RM52,037,486) divided into
15,975,508 ordinary shares of par value at RM1.00 each and 36,061,978
preference shares of par value at RM1.00 each.
B. The shareholders of a Joint Venture Company have entered into the Joint
Venture Agreement of even date (hereinafter referred to as the
Joint-Venture Agreement") under which the parties thereto have agreed
that the issued and paid up capital of the Joint Venture Company shall
be Ringgit Malaysia Fifty Two Million Thirty Seven Thousand Four
Hundred and Eighty Six (RM52,037,486) as follows:
NO. OF SHARES PERCENTAGE
------------- ----------
ORDINARY % PREFERENCE %
-------- - ---------- -
FCI 8,147,509 51.00 18,391,609 51.00
FP 5,964,190 37.00 13,463,138 37.00
PERC 1,863,809 12.00 4,207,231 12.00
----------- ------- ----------- -------
15,975,508 100.00 36,061,978 100.00
C. In accordance with the terms of the Joint-Venture Agreement FCI has
agreed to grant to PERC and/or FP a Put Option requiring FCI to
purchase all or any of PERC's and/or FP shares in the joint venture
Company on the terms contained herein. This Put Option is conditional
upon the joint-venture Company being unable to produce market
acceptable product as defined in Exhibit "C" of the Joint-Venture
Agreement after commissioning of the facility.
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D. This Put Option Agreement shall be null and void upon the conversion of
the preference shares in accordance with Section 3.7 and Exhibit "C" of
the Joint Venture Agreement
SECTION 1 INTERPRETATION
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1.1 This Agreement is divided into Section and the Sections are divided
into Clauses.
1.2 In this Agreement, except where the context otherwise requires:
"THE JOINT VENTURE shall mean FIBERCORE (M) SDN. BHD.
COMPANY" (COMPANY NO. 435423-P) a company incor-
porated incorporated in Malaysia and
having its registered office at c/o
Ontime Management Services, Suite 4.02,
4th Floor, Wisma Xxx Xx, Xx. 000, 0xx
Xxxx, Xxxxx Xxxx, 00000 Xxxxx Xxxxxx;
"FCI" shall mean FIBERCORE INC., a Nevada
corporation incorporated under the laws
of the United States of America with
offices at 000 Xxxxxxxxx Xxxx, X.X. Xxx
000, Xxxxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx
Xxxxxx of America:
"EXERCISE PERIODS" shall mean the period beginning on the
1st day of January 2002 and ending on the
31 st day of January 2004;
"EXERCISE PRICE" shall mean the amount by which the
Adjusted Cost exceeds the Dividends on
the relevant Settlement Date;
"ADJUSTED COST" shall mean the amount of any Malaysian
Ringgit paid as subscription money for
Optioned Shares, compounded annually at
the rate of nine per cent per annum (9%
p.a.) from the date of payment to the
relevant Settlement Date (calculated in
the case of any period of less than a
year on the basis that each complete
calendar month comprised in such period
shall be regarded as one-twelfth of a
year, and each day in such period which
is not part of a complete calendar month
comprised therein shall be regarded as
one 360th of a year);
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"DIVIDENDS" shall mean the amount of Malaysian Ringgit
equal to cash dividends (if any) paid by
the joint venture Company on or in
respect of the Optioned Shares;
"NOTICE OF EXERCISE" shall mean a notice given by PERC and/or
FP to FCI pursuant to Clause 2.1.2, which
shall set forth as a minimum:
(a) the number of Optioned Shares to be
purchased by FCI and to be sold by PERC
and/or FP;
(b) the estimated amount of the relevant
Exercise Price;
(c) the relevant Settlement Date;
(d) the Settlement Place;
"OPTION" shall mean PERC's and/or FP right to sell
to FCI the optioned Shares as provided in
Clause 2.11;
"OPTIONED SHARES" shall mean:
(a) all Ordinary Shares and/or Preference
Shares subscribed by PERC and/or FP;
(b) all Ordinary Shares and/or Preference
Shares subscribed or equipped by PERC
and/or FP pursuant in relation to any
such ordinary Shares as are referred to
in paragraph (a) above;
(c) all Ordinary Shares and/or Preference
Shares received by PERC and/or FP as a
result of the subdivision for
consolidation of, or any capitalization
issued made in respect of, any such
Ordinary Shares as are referred to in
paragraph (a) or (b) above;
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(d) all Ordinary Share and/or Preference
Shares received by PERC and/or FP in
exchange, replacement or substitution for
any such Ordinary Shares are referred to
in paragraph (a), (b) or (c) above;
"ORDINARY SHARES" shall mean Ordinary Shares at par value
RM1.00 each in the capital of the joint
venture Company (and shall include shares
in the capital of the joint venture
Company resulting from the subdivision or
consolidation of Ordinary Shares);
"PREFERENCE SHARES" shall mean the shares by whatever name
called, which does not entitle the holder
thereof to the right to vote at a general
meeting or to any right to participate
beyond a specified amount in any
distribution whether by way of dividend,
or on redemption, in a winding-up, or
otherwise;
"PERC" shall mean PNB EQUITY RESOURCE
CORPORATION SDN. BHD. (COMPANY NO.
197031-X) a company incorporated under
the laws of Malaysia with its registered
office at 4th Floor, Balai PNB, 201-A,
Xxxxx Xxx Xxxxx, 00000 Xxxxx Xxxxxx;
"FP" shall mean FEDERAL POWER SDN. BHD.
(COMPANY NO. 17892-V) a company
incorporated in Malaysia with its
registered office at Xxx 0, Xxxxx Xxxxx,
00/00, XX Xxx 0000, 00000 Shah Alam,
Selangor Darul Ehsan.
"SETTLEMENT DATE" shall mean the date specified in the
relevant Notice of Exercise for making
payment of the relevant Exercise Prioe
and transferring title to the relevant
Optioned Shares which shall be neither
less than 180 days nor more than 365 days
after the relevant Notice of Exercise
shall have been given.
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THE WORD "RINGGIT MALAYSIA" shall respectively denote Ringgit in the
AND THE SYMBOL "RM" currency of Malaysia;
1.3 "person" and words denoting persons include bodies corporate and vice
versa the masculine gender includes the feminine and the singular
includes the plural and vice versa
1.4 reference of Recitals, Sections and Clauses are to Recitals, Sections
and Clauses of this Agreement.
1.5 The heading and Index are inserted in this Agreement for convenience of
reference only and shall nor affect the construction of this Agreement.
SECTION 2 PUT OPTION
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2.1.1 PERC and/or FP shall have the right, at its option, at any time and
from time to time during the Exercise Period, to sell to FCI all or any
of the Optioned Shares.
2.1.2 PERC and/or FP shall exercise such right by serving a Notice of
Exercise or Notices of Exercise upon FCI at any time during the
Exercise Period
2.1.3 Upon such exercise by PERC and/or FP, FCI shall purchase the Optioned
Shares specified in the relevant Notice of Exercise, such Optioned
Shares to be purchased at the relevant Exercise Price provided that in
the event of any dispute or disagreement between the parties hereto
concerning the Exercise Price, such Exercise Price shall be fixed by
the auditors for the time being of the joint venture Company acting as
experts and not as arbitrators, whose decision shall be final and
binding on the parties hereto.
2.1.4 Each such purchase shall be completed as follows
2.1.4.1 FCI shall pay the relevant Exercise Price multiplied
by the number of Optioned Shares referred to in the
Notice of Exercise to PERC and/or FP on the
Settlement Date; and
2.1.4.2 upon compliance by FCI with paragraph 2 1041 above
PERC and/or FP shall deliver the respective share
certificate or certificates and executed transfer
form in respect of the Optioned Shares to or to the
order of FCI, such Optioned Shares to be free and
clear of all liens, charge and encumbrances.
2.2 Without prejudice to any remedies available to PERC and/or FP under
this Agreement or otherwise and notwithstanding the provisions of the
Joint Venture Agreement, in the event that FCI shall fail to purchase
and pay for all or any of the Optioned Shares as herein provided PERC
and/or FP shall be free to sell, transfer or otherwise dispose of such
unpurchased and unpaid Optioned Shares to any third party without
affecting any
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rights PERC and/or FP may have against FCI.
2.3 Except as provided in the Joint Venture Agreement, nothing in this
Agreement shall limit the right of PERC and/or FP, at any time, to
sell, transfer or otherwise alienate all or any the Optioned Shares of
which PERC and/or FP may for the time being, be the holder, as are not
then subject to a Notice of Exercise.
SECTION 3 SPECIFIC PERFORMANCE
3.1 If FCI shall refuse to comply with the terms of this Agreement PERC and/or
FP shall be entitled to seek the remedy of specific performance in law or
to damages.
SECTION 4 MISCELLANEOUS
4.1 Any notice to be given under this Agreement may be given by sending the
same by post by the quickest mail available or by telefax or fax (if
the addressee has telex or fax facilities) addressed to the party
concerned at its address as given in Section 4.3 or at such other
address and any notice so given shall be deemed to have been served ten
(10) days after it was posted or as the case may be, on the day on
which it was delivered by hand or sent by telex or fax as aforesaid.
4.2 Any legal process may be served by sending the same by registered post
by the quickest mail available addressed to the party concerned at its
address as given in Section 4.3 or at such other address and any notice
so given shall be deemed to have been served ten (10) days after it was
posted.
4.3 The addresses referred to in the preceding Sections are as follows:
FCI: 000 Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Fax: (000) 000-0000
FP: Xxx 0, Xxxxx Xxxxx 00/00,
X.X. Xxx 0000
00000 Xxxx Xxxx,
Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxx
Fax: (00) 000-0000
PERC: 4th Floor, Balai PNB
000-X, Xxxxx Xxx Xxxxx
00000 Xxxxx Xxxxxx
Fax: (00) 0000000
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4.4 Any provision in this Agreement which is or may become prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, or unenforceability
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
4.5 Save with the previous written consent of PERC and/or FP, FCI shall not
be entitled to assign or transfer in whole or in part any of its rights
or obligations hereunder.
4.6 Save as PERC and/or FP may otherwise agree, all notices certificates,
reports, information and documents given to PERC and/or FP pursuant to
this Agreement shall be in the English language.
4.7 This Agreement may be executed in several counter parts, each of which
shall be an original but all of which shall together constitute one and
the same instrument
4.8 This Agreement and its performance shall be governed and construed in
all respects in accordance with the laws of Malaysia.
4.9 FCI agrees that any legal action or proceeding arising out of or in
connection with this Agreement may be brought in the courts in Malaysia
and irrevocably submits to the non-exclusive jurisdiction of such
Court.
4.10 The submission to such jurisdiction shall not (and shall not be
construed so as to) limit the right of PERC and/or FP to take
proceedings against FCI in the United States of America or whatever
other jurisdiction it shall consider appropriate nor shall the taking
or proceedings in any one or more jurisdiction preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
[Remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands and seal
the day and year first above written
The Common Seal of )
PNB EQUITY RESOURCE )
CORPORATION SDN. BHD. )
(COMPANY NO 197031-X) was )
hereunto duly affixed in the )
presence of: )
/s/ Dato Xxxx Xxxxxx bin Xxxx Xxxx /s/ Xxxxxx Binte Haji Jaacob
---------------------------------- -----------------------------------
Director Director/Secretary
Name: Dato Xxxx Xxxxxx bin Xxxx Xxxx Name: Xxxxxx Binte Haji Jaacob
Nric No: 4460859 Nric No.: 2439153
The Common Seal of )
FEDERAL POWER SDN. BHD. )
(COMPANY NO. 17892-V) was )
hereunto duly affixed in the )
presence of: )
/s/ Tan Sai Abu Zarim bin Omar /s/ Misron bin Yusof
----------------------------------- --------------------------
Chairman Director
Name: Tan Sai Abu Zarim bin Omar Name: Misron bin Yusof
Nric No: 240726-05-5035 Nric No.: 430618-01-5037
Signed by MOHD. XXXXX XXXXXX )
PASSPORT NO: 000000000 (USA) for )
and on behalf of FIBERCORE INC. )
in the presence of: ) /s/ Xxxx Xxxxxx.
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MOHD. XXXXX XXXXXX
PASSPORT NO: 000000000 (USA)
/s/ Xxxxxx X. Xxxx
-----------------------------------
TREVOR XXXX XXXX
PASSPORT NO: 000000000 (GREAT BRITAIN)
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