EXH10-23
SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of this 11th day of January, 1996 between TECHMAN
INTERNATIONAL CORPORATION, INC. ("the Purchaser") and FIBERCORE, INC. ("the
Company") a Nevada Corporation.
WHEREAS the Purchaser and the Company executed a Term Sheet dated
January 3, 1996 for purchase and sale of 200,000 shares of the Company's common
stock; and
WHEREAS pursuant to the Term Sheet the Purchaser and the Company are
required to document such purchase and sale;
NOW THEREFOR in consideration of the premises and the mutual covenants
and agreements herein contained the parties agree as follows:
1. Offer
1.1 The Purchaser hereby agrees to purchase 200,000 shares of the Company's
common stock at the purchase price of $5.00 per share subject to the conditions
hereinafter set forth;
1.2 Upon execution and delivery of this Agreement by both parties the Purchaser
will pay to the Company the sum of $100,000 (which amount has been previously
paid) and execute and deliver to the Company a secured promissory note in the
amount of $900,000 in the form of Exhibit A attached hereto.
1.3 Upon acceptance of the offer and in addition to the delivery of the 200,000
shares of the Company to the Purchaser, the Company shall deliver to Purchaser
150,000 warrants, granting the Purchaser the right to purchase 150,000 common
shares of the Company for a purchase price of $6.00 per share exercisable in
whole or in part at any time within a 2 year period.
1.4 Upon the execution by all of the partners of Fiber Optic Industries Limited
("FOI") of all of the documents required to complete the formation of FOI, the
Company will issue 42,500 shares of its common stock to the Purchaser.
1.5 Upon the execution of an exclusive supply agreement between the Company and
FOI for the supply of preforms, the Company will issue to the Purchaser 42,500
shares of its common stock.
2. Acceptance
2.1 The Company agrees to sell to the Purchaser 200,000 Shares at the
subscription price of $5.00 per Share subject to the terms and conditions of
this Agreement, to deliver the 150,000 warrants referred to in clause 1.3, and
to deliver the shares referred to in clauses 1.4 and 1.5 upon the occurrence of
the events described therein.
3 Delivery of Shares and Warrants
3.1 Upon payment of the purchase price for the 200,000 shares, the Company shall
deliver to the Purchaser one or more stock certificates registered in the name
of the Purchaser, and shall deliver the warrants registered in Purchaser's name.
4. Representations and Warranties of the Company
4.l The Company hereby represents and warrants to, and covenants with the
Purchaser as follows:
(a) Organization and Standing of the Company. The Company is a
corporation duly organized and validly existing under the laws of the state of
Nevada and is in good standing under such laws. The Company is not in violation
of its Certificate of Incorporation or Bylaws. The Company has all requisite
corporate power and authority for the ownership and operation of its properties
and assets, and to carry on its business as presently conducted or now proposed
to be conducted.
(b) Corporate Action. The Company has all the necessary corporate power
and has taken the corporate action required to enter into this Agreement and to
consummate the transactions contemplated hereby. All corporate action on the
part of the Company for the authorization, execution, delivery, and performance
of this Agreement by the Company, the authorization, sale, issuance, and
delivery of the Shares and the performance of the Company's obligations
hereunder has been taken. This Agreement has been duly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the Company
enforceable in accordance with its terms. The issuance of the shares does not
require any further corporate action, will not be subject to preemptive rights
or other preferential rights in any present stockholders of the Company and will
not conflict with any provisions of any agreement to which the Company is a
party or by which it is bound.
(c) Capitalization, Status of Capital Stock. The Company has a total
authorized capitalization consisting of 20,000,000 shares of Common Stock, $.01
par value. Schedule A attached hereto lists outstanding shares, options and
warrants as of January 3, 1996.
(d) Government Approvals. No authorization, consent, approval, license,
exemption, from or filing of registration with any court of governmental
department, commission, board, bureau, agency or instrumentality, domestic, or
foreign, is or will be necessary for the execution and delivery by the Company
of this Agreement, except for certain filing under state securities laws the
offer and sale of the shares will be exempt from the registration requirements
of applicable federal and state securities laws.
(e) Compliance with Other Instruments. Neither the execution, issuance
and delivery of this Agreement or the shares, nor the consummation by the
Company of any transaction contemplated hereby or thereby, constitutes or
results in or will constitute or result in a default or violation of any term or
provision of the charter and By-laws of the Company, as amended and in
effect, and the terms and provisions of the mortgages, indentures, leases,
agreements, and other instruments and of all judgments, decrease, governmental
orders, statutes rules, or regulation by which the Company or its properties are
bound.
(f) Financial Statements. The audited financial statements for the
period ending December 31, 1994 previously supplied to an officer of the
Purchaser and the related statements of shareholders equity and cash flows and
notes thereto, all of which are accompanied by the related audit opinion of the
Company's independent certified public accountants, Mottle, XxXxxxx & Company
have been prepared in accordance with generally accepted accounting principals
applied on a consistent basis throughout the period covered by such statements
and present fairly the Company's financial condition and results of operations
and statements of cash flows as of the dates indicated.
5. Purchaser Representations
5.1 In connection with this subscription, the Purchaser hereby makes the
following acknowledgment and representations:
(a) The execution of this Agreement has been duly authorized by all
necessary action on the part of the Purchaser, has been duly executed and
delivered, and constitutes a valid, legal, binding, and enforceable agreement of
the Purchaser;
(b) The Purchaser is acquiring the Shares for it own account, for
investment, and not with a view to any "distribution" thereof within the meaning
of the Securities Act of 1933, as amended (the "Act");
(c) The Purchaser understands that because the Shares have not been
registered under the Act, it cannot dispose of any of the Shares unless such
Shares are subsequently registered under the Act or exemptions from such
registration are available. The Purchaser acknowledges, and understand that, it
has no right to require the Company to register the Shares. The Purchaser
further understands that the Company may, as a condition to the transfer of any
of the Shares, require that the request for transfer be accompanied by an
opinion of counsel, in form and substance satisfactory to the Company, to the
effect that the proposed transfer does not result in a violation of the Act,
unless such transfer is covered by an effective registration statement under the
Act. The Purchaser understands that each certificate representing the shares
will bear the following legend or one substantially similar thereto:
The securities represented by this certificate have not been
registered under the Securities Act of 1933. These securities
have been acquired for investment and not with a view to
distribution or resale, and may not be sold, mortgaged,
pledged, hypothecated or otherwise transferred without an
effective registration statement for such shares under the
Securities Act of 1933, or an opinion of counsel satisfactory
to the corporation that registration is not required under
such Act.
(d) The Purchaser understands the offering is being made pursuant to
the exemption from registration with the Securities and Exchange Commission (the
"Commission") afforded by
Section 4 (2) of the Act and/or Regulation D adopted by the Commission relating
to transactions by an issuer not involving any public offering, and similar
federal, state, and foreign laws or policies. Consequently, the memorandum and
related offering materials have not been subject to review and comment by the
staff of the commission or by any state or foreign securities commission.
(e) The Purchaser acknowledges that during the course of this
transaction and prior to sale, it has had the opportunity to ask questions of
and receive answers from the Company concerning the terms and conditions of its
investment, and to obtain any additional information of the same kind that is
specified in Part I of a Registration Statement on Form SB-2 under the Act, or
that obtained. The Purchaser or its purchaser representative has examined the
information furnished by the Company and, through discussions and examination of
such materials as the Purchaser has requested, has obtained sufficient
information upon which to make an investment decision. The Purchaser is familiar
with the type of investment which the shares constitute, and has reviewed the
merit and risks of this investment to the extent deemed advisable by the
Purchaser. The Purchaser has such knowledge and experience in financial and
business affairs that it is capable of evaluation the merits and risks of
investing in the shares, and acknowledges that it is able to bear the economic
risks of this investment. Further, the Purchaser understands all matters in this
Agreements.
(f) The investment in the Company by the Purchaser does not constitute
a principal portion of the Purchaser's total assets and the Purchaser is able to
afford a complete loss of the investment contemplated herein.
6. Covenants of the Company
6.1 Annual Reports. The Company agrees to use its best efforts to deliver to the
Purchaser, as soon as practicable after the end of each fiscal year and in any
event within 120 days thereafter, a consolidated balance sheet of the Company as
at the end of such fiscal year, a consolidated Statement of Cash Flow of the
Company for such year, prepared in accordance with generally accepted accounting
principles consistently applied and setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and
certified by independent public accountants selected by the Company.
6.2 Quarterly Reports. The Company agrees to use its best efforts to deliver to
the Purchaser as soon as practicable after the end of each of the first three
quarterly fiscal periods in each fiscal year and in any event within 60 days
thereafter, a consolidated balance sheet of the Company as at the end of such
period, a consolidated statement of operations and a consolidated statement of
Cash Flow of the Company for such period, in each case prepared in accordance
with generally accepted accounting principles consistently applied and setting
forth in comparative form the figures for the corresponding periods of the
previous fiscal year, all in reasonable detail and certified; subject to changes
resulting from audit adjustments, by the principal financial or accounting
officer of the Company.
6.3 Inspection. The Company agrees to permit any authorized representative of
the Purchaser to visit the Company to discuss its affairs and finances with its
officers, all upon reasonable notice to the Company, at such reasonable times
and as often as may be reasonably requested.
6.4 Purchaser's Right to Receive Reports. The Company shall deliver the reports
or give the rights specified in Paragraph 6.1, 6.2, and 6.3 to the Purchaser
until the earlier of: (i) the closing date of the Company's first underwritten
public offering pursuant to an effective registration statement filed under the
Act; or (ii) until the Purchaser no longer holds any shares.
7. No Waiver
7.1 Notwithstanding any of the representations, warranties, acknowledgments or
agreements made herein by the Purchaser, the Purchaser does not thereby or in
any other manner waive any rights granted to it under federal and state
securities laws.
8. Survival of Representation Warranties and Agreements
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations, and warranties made by the Company
and the Purchaser herein shall survive the execution of this Agreement, the
delivery to the Purchaser of the shares being purchased and the payment
therefor.
9. Transferability
9.1 The Purchaser agrees not to transfer or assign this Agreement, or any of its
interest herein and further agrees that any assignment or transfer of the shares
shall be made only in accordance with applicable securities laws and that an
appropriate legend with respect there to may be placed by the Company on any
certificate evidencing such Shares.
10. Miscellaneous
10.1 Notices. All notices or other communications given or made hereunder shall
be in writing and shall be delivered to the Purchaser at:
Techman International Corporation, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
and to the Company at:
000 Xxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
10.2 Governing Law. This Agreement shall be construed in accordance with the
governed by the laws of the Commonwealth of Massachusetts without giving effect
to the conflict of laws.
10.3 Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by all parties.
10.4 Changes. This Agreement may not be modified or amended except pursuant to
an instrument in writing signed by the Company and by the Purchaser.
10.5 Headings. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
10.6 Severability. In case any provision contained in this Agreement should be
invalid, illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
10.7 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which when taken
together, shall constitute but one instrument, and shall become effective when
one or more counterparts, have been signed by each party hereto and delivered to
the other party.
10.8 Pronouns. All pronouns shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the person or persons, firm or
other entity may require in the context thereof.
IN WITNESS WHEREOF that parties hereto have caused this Agreement to be
executed by their duly authorized representatives the day and year first above
written.
TECHMAN INTERNATIONAL CORPORATION, INC.
By:___/s/___________________________
Title: Chairman/CEO
FIBERCORE, INC.
By:___/s/___________________________
Xxxx X. Xxxxxx
Title: Chairman/CEO
EXHIBIT A
PROMISSORY NOTE
$900,000 Sturbridge, MA
January 11, 1996
FOR VALUE RECEIVED, Techman International Corporation, Inc., a
Massachusetts corporation ("Payor") hereby unconditionally promises to pay to
the order of FiberCore, Inc., a Nevada corporation ("Payee") at its address at
000 Xxxxxxxx Xx, Xxxxxxxxxx, XX, 00000, the principal sum of Nine Hundred
Thousand Dollars ($900,000) as follows:
Payment Due Date Principal Amount
---------------- ----------------
March 31, 1996 $100,000
April 30, 1996 $100,000
May 31,1996 $100,000
June 30, 1996 $100,000
July 31, 1996 $100,000
August 31, 1996 $100,000
September 30, 1996 $100,000
October 31, 1996 $100,000
November 30, 1996 $100,000
Interest shall accrue and be paid on the unpaid principal amount of this
promissory note at the London Interbank Offered Rate (LIBOR) for six month
deposits as quoted in The Wall Street Journal on the business day immediately
preceding each Payment Due Date. Accrued interest shall be paid on each Payment
Due Date.
This Promissory Note is secured by a collateral assignment of all of
Payor's right, title and interest in 285,000 shares of Payee's common stock and
150,000 warrants to purchase 150,000 shares of Payee's common stock, as further
described in a Share Purchase Agreement, of even date) between Payor and Payee.
Payor will execute such documents and take all action necessary or advisable, as
requested by Payee, to perfect Payee's security interest in the shares of common
stock and warrants and otherwise to carry out the interest and purposes of this
collateral assignment.
This Promissory Note may be prepaid in whole or in part at any time or
from time to time without penalty or premium, together with interest accrued on
the amount so prepaid.
The principal amount of this Promissory Note and interest accrued
thereon shall become immediately due and payable, without presentation, protest,
notice or further demand, all of which are expressly waived, in the event of the
default in any payment of interest or principal when due or in the event of the
filing by or against the Payor of a petition in bankruptcy or reorganization or
insolvency.
IN WITNESS WHEREOF, the undersigned has caused this Promissory Note to
be duly executed and delivered as of the date set forth above.
Techman International Corporation, Inc.
By:___/s/_________________________
Title: Chairman/CEO
