FIBERCORE INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into this
27th day of November, 1996, by and among FIBERCORE, INC., a Nevada corporation
(the "Company"), AMP INCORPORATED, a Pennsylvania corporation ("AMP"), and Xxxx
Xxxxxx, Xxxxxxx XxXxxx and Xx. X. Xxxxxx Xxxx (the "Key Shareholders").
RECITAL
WHEREAS, AMP and each of the Key Shareholders hold shares of the
capital stock of the Company; and
WHEREAS, AMP and the Key Shareholders desire to provide for the future
voting of their shares of the Company's capital stock as set forth below;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 AMP and the Key Shareholders each agree to hold all shares
of voting capital stock of the Company (including but not limited to all shares
of Common Stock issued upon exercise of Warrants) registered in their respective
names or beneficially owned by them as of the date hereof, and any and all other
securities of the Company legally or beneficially, directly or indirectly,
acquired by AMP and each of the Key Shareholders after the date hereof
(hereinafter collectively referred to as the "Shares") subject to, and to vote
the Shares in accordance with, the provisions of this Agreement.
1.2 The Company, AMP and the Key Shareholders shall consult
each other and shall vote their respective shares of the Company's voting stock
to elect the Board of Directors of the Company (the "Board") which shall consist
of: (i) one (1) nominee of AMP, (ii) three (3) nominees of the Key Shareholders,
initially to be Xxxx Xxxxxx, Xxxxxxx XxXxxx, and Xxxx Xxxxxxx, and (iii) three
(3) nominees mutually acceptable to AMP and the Key Shareholders, one of whom
shall be Xx. X. Xxxxxx Awan. If AMP opts not to nominate a director, the seventh
nominee shall be mutually acceptable to AMP and the Key Shareholders and shall
qualify as an "Outside Director" as defined below.
1.3 Directors who are not employees of or consultants to the
Company, except for Xx. X. Xxxxxx Xxxx, shall be defined as "Outside Directors."
The nominee of AMP shall
1.
be deemed to be an Outside Director. At all times, the majority of the Board
shall consist of Outside Directors. If the number of directors on the Board
shall be increased or decreased from seven (7) directors, each of the Company,
AMP and the Key Shareholders agree to increase or decrease the number of Outside
Directors so that the majority of the Board continues to consist of Outside
Directors, provided however, that any change in the number of directors shall
not interfere with AMP's right to nominate a director.
1.4 Should an Outside Director resign, die, decide not to
stand for election or be removed, each of the Company, AMP and the Key
Shareholders agree to vote their shares for the election of a new Outside
Director.
1.5 Except as provided by this Agreement, AMP and each Key
Shareholder shall exercise the full rights of a shareholder with respect to the
Shares.
ARTICLE II
COVENANTS
2.1 At its option, AMP may elect not to nominate a
representative to the Board pursuant to Section 1.2. If AMP elects not to
appoint a nominee to the Board, the Company agrees to grant AMP the right to
have an observer at all meetings of the Board and such observer shall be
entitled to receive all notices of meetings and all information provided to the
Board including notices of actions by written consent.
2.2 Except for the AMP nominee, if any, or in the alternative
Xx. X. Xxxxxx Xxxx, each of the Outside Directors shall have been elected to the
Board for a three year term within three months of the date hereof. The AMP
nominee, if any, or in the alternative Xx. X. Xxxxxx Awan, shall be elected to
an initial one year term and shall be elected to a three (3) year term
thereafter.
2.3 The number of seats on the Board shall not be increased
above seven (7) without the written consent of AMP.
2.4 The Company shall maintain a classified and staggered
Board, with each director serving for a term of three years, except for the
first election after the date hereof. At such election Xxxx Xxxxxxx and the
nominee of AMP, if any, or if AMP chooses not to nominate a director, then Xx.
X. Xxxxxx Awan, shall be elected to an initial one year term ("Class I"); Xxxx
Xxxxxx and Xxxxxxx XxXxxx shall be elected to an initial two year term ("Class
II") and the three mutually acceptable Outside Directors sahll be elected to an
initial three year term ("Class III"). Following their initial terms, directors
shall thereafter be elected to three year terms.
2.
ARTICLE III
TERMINATION
3.1 This Agreement shall continue in full force and effect
from the date hereof through the earliest of the following dates, on which it
shall terminate in its entirety:
(a) the date of the closing of an underwritten public
offering of the Company's Common Stock pursuant to a registration statement
filed with, and declared effective under the Securities Act of 1933, as amended,
covering the offer and sale of the Common Stock and raising net proceeds to the
Company of at least $5,000,000; or
(b) the date as of which AMP and the Key Shareholders
hereto terminate this Agreement by mutual written consent; or
(c) the date on which all Obligations of the Company
under that certain Term Loan Agreement, dated as of November 27, 1996, by and
between AMP and the Company, have been paid in full.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Each Key Shareholder represents and warrants to AMP that
it (a) owns the Shares free and clear of liens or encumbrances, and has not,
prior to or on the date of this Agreement, executed or delivered any proxy or
entered into any other voting agreement or similar arrangement other than one
which has expired or terminated prior to the date hereof, and (b) it has full
power and capacity to execute, deliver and perform this Agreement, which has
been duly executed and delivered by, and evidences the valid and binding
obligation of such Key Shareholder, enforceable in accordance with its terms.
ARTICLE V
MISCELLANEOUS
5.1 The parties hereto hereby declare that it is impossible to
measure in money the damages that will accrue to a party hereto or to their
heirs, personal representatives or assigns by reason of a failure to perform any
of the obligations under this Agreement and agree that the terms of this
Agreement shall be specifically enforceable. If any party hereto or his heirs,
personal representatives or assigns institutes any action or proceeding to
specifically enforce the provisions hereof, any person against whom such action
or proceeding is brought hereby waives the claim or defense therein that such
party or such personal representative has an adequate remedy at law, and such
person shall not offer in any such action or proceeding the claim or defense
that such remedy at law exists.
3.
5.2 This Agreement, and the rights of the parties hereto,
shall be governed by and construed in accordance with the laws of the State of
New York as such laws apply to agreements among New York residents made and to
be performed entirely within the State of New York.
5.3 This Agreement may be amended only by an instrument in
writing signed by the Company, AMP and a majority in interest of the Key
Shareholders.
5.4 If any provision of this Agreement is held to be invalid
or unenforceable, the validity and enforceability of the remaining provisions of
this Agreement shall not be affected thereby.
5.5 This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
5.6 In the event that subsequent to the date of this Agreement
any shares or other securities (other than any shares or securities of another
corporation issued to the Company's shareholders pursuant to a plan of merger)
are issued on, or in exchange for, any of the Shares by reason of any stock
dividend, stock split, consolidation of shares, reclassification or
consolidation involving the Company, such shares or securities shall be deemed
to be Shares, as the case may be, for purposes of this Agreement.
5.7 This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same agreement.
5.8 No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
5.9 In the event that any suit or action is instituted to
enforce any provision in this Agreement, the prevailing party shall be entitled
to all reasonable out-of-pocket costs and expenses of maintaining such suit or
action, including reasonable attorneys' fees.
5.10 In the event that, at any time after the date of this
Agreement, any further action is necessary or desirable in order to carry out
the purposes of this Agreement, the parties hereto agree to take all such lawful
and necessary action.
5.11 The Company and AMP each agree to use their best efforts
to ensure that the rights given to the parties hereunder are effective and that
the parties enjoy the benefits thereof. Such actions include, without
limitation, the use of the Company's and AMP's best efforts to cause the
nomination and election of the Directors as provided in Article I. The Company
and AMP will not, by any voluntary action, avoid or seek to avoid the observance
or
4.
performance of any of the terms to be performed hereunder by the Company or AMP,
but will at all times in good faith assist in the carrying out of all of the
provisions of this Agreement.
5.12 Should the provisions of this Voting Agreement be
construed to constitute the granting of proxies, such proxies shall be deemed
coupled with an interest and, to the extent permitted by law, are irrevocable
for the term of this Voting Agreement.
5.13 The voting of shares pursuant to this Voting Agreement
may be effected in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
5.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
FIBERCORE, INC., AMP INCORPORATED,
a Nevada corporation a Pennsylvania corporation
By:/s/ Xxxx Xxxxxx By:/s/ Xxxxx X. Xxxxxx
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Xxxx Xxxxxx Xxxxx X. Xxxxxx
Chief Executive Officer Its: Chairman of the Board
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KEY SHAREHOLDERS:
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
/s/ Xxxxxxx XxXxxx
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XXXXXXX XXXXXX
/s/ M. Xxxxxx Xxxx
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XX. X. XXXXXX AWAN
VOTING AGREEMENT
6.