AGREEMENT AND PLAN OF REORGANIZATION
Among
FiberCore, Inc.,
a Nevada corporation
ALT Merger Co.,
a Delaware corporation
And
Automated Light Technologies, Inc.,
a Delaware corporation
DATED AS OF SEPTEMBER 15, 1995
TABLE OF CONTENTS
RECITALS .........................................................................................................1
ARTICLE 1. DEFINITIONS............................................................................................1
1.1 Certain Definitions.............................................................................1
1.2 Other Definitions...............................................................................2
ARTICLE 2. THE MERGER.............................................................................................2
2.1 Effective Time of the Merger....................................................................2
2.2 Effects of the Merger...........................................................................2
2.3 Effect on Capital Stock.........................................................................3
2.4 Exchange of Certificates........................................................................5
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF FIBERCORE AND SUB....................................................6
3.1 Organization and Standing.......................................................................6
3.2 Capital Structure...............................................................................6
3.3 Authority.......................................................................................7
3.4 Brokers or Finders..............................................................................7
3.5 Financial Statements............................................................................7
3.6 Subsidiaries....................................................................................8
3.7 No Violation or Conflict........................................................................8
3.8 Consent of Governmental Authorities.............................................................9
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF ALT..................................................................9
4.1 Organization and Standing.......................................................................9
4.2 Capital Structure...............................................................................9
4.3 Authority......................................................................................10
4.4 Brokers or Finders.............................................................................10
4.5 Financial Statements...........................................................................10
4.6 Subsidiaries...................................................................................11
4.7 No Violation or Conflict.......................................................................11
4.8 Consent of Governmental Authorities............................................................11
ARTICLE 5. COVENANTS RELATING TO CONDUCT OF BUSINESS.............................................................12
5.1 Covenants of FiberCore and Sub.................................................................12
5.2 Covenants of ALT...............................................................................13
ARTICLE 6. OMITTED ..............................................................................................13
ARTICLE 7. ADDITIONAL AGREEMENTS.................................................................................13
7.1 Legal Conditions to the Merger.................................................................13
7.2 Delivery of Stock Certificates.................................................................14
7.3 Tax Treatment..................................................................................14
7.4 Board of Directors.............................................................................14
ARTICLE 8. CONDITIONS PRECEDENT..................................................................................14
8.1 Conditions to Each Party's Obligations to Effect the
Merger.........................................................................................14
8.2 Conditions to Obligations of ALT...............................................................16
8.3 Conditions to Obligations of FiberCore and Sub.................................................16
ARTICLE 9. OMITTED ..............................................................................................17
ARTICLE 10. CLOSING..............................................................................................17
10.1 Closing Date...................................................................................17
10.2 Filing Date....................................................................................17
ARTICLE 11. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS...............................................................................................17
ARTICLE 12. PAYMENT OF EXPENSES..................................................................................18
ARTICLE 13. TERMINATION, AMENDMENT AND WAIVER....................................................................18
13.1 Termination....................................................................................18
13.2 Effect of Termination..........................................................................19
13.3 Amendment......................................................................................19
13.4 Extension; Waiver..............................................................................20
ARTICLE 14. LIMITATION ON LIABILITY..............................................................................20
ARTICLE 15. GENERAL..............................................................................................20
15.1 Notices........................................................................................20
15.2 Headings.......................................................................................21
15.3 Counterparts...................................................................................21
15.4 Binding Nature.................................................................................21
15.5 Other Agreements...............................................................................21
15.6 Good Faith.....................................................................................21
15.7 Applicable Law.................................................................................21
15.8 No Third Party Beneficiaries...................................................................21
15.9 Severability...................................................................................21
SCHEDULES
Schedule 2.3 Exchange Ratio
Schedule 3.2 Outstanding Equity Securities of FiberCore
Schedule 3.7 FiberCore Violations or Conflicting
Agreements
Schedule 3.5(a) FiberCore 1993 and 1994 Financial Statements
Schedule 3.5(b) FiberCore June 1995 Financial Statements
Schedule 4.2 Outstanding Equity Securities of ALT
Schedule 4.7 ALT Violations or Conflicting Agreements
Schedule 4.5(a) ALT 1993 and 1994 Financial Statements
Schedule 4.5(b) ALT June 1995 Financial Statements
Schedule 5.1 FiberCore Covenants Relating to Conduct of
Business
Schedule 5.2 ALT Covenants Relating to Conduct of
Business
EXHIBITS
Exhibit A Plan of Merger
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made and entered into as
of the 15th day of September, 1995, by and among FiberCore, Inc. ("FiberCore"),
a Nevada corporation, ALT Merger Co. ("Sub"), a Delaware corporation and a
wholly owned subsidiary of FiberCore, and Automated Light Technologies, Inc.
("ALT"), a Delaware Corporation.
RECITALS
A. The respective Boards of Directors of FiberCore, Sub and ALT have
approved the merger of Sub with and into ALT (the "Merger"), upon the terms and
subject to the conditions set forth herein and in the Plan of Merger annexed as
Exhibit A (the "Plan of Merger"), as a result of which Sub will be merged into
ALT and the shareholders of ALT (other than shareholders who perfect appraisal
rights) will be entitled to receive the consideration provided in this
Agreement.
B. The parties hereto desire to set forth certain representations,
warranties and covenants made by FiberCore and Sub to ALT, and by ALT to
FiberCore and Sub and the conditions precedent to the consummation of the
Merger.
C. The Boards of Directors of FiberCore, Sub and ALT respectively, have
approved and adopted this Agreement and the Merger as a plan of reorganization
under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
NOW, THEREFORE, in consideration of the premises and of the mutual
provisions, agreements and covenants herein contained, FiberCore, Sub and ALT
hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Certain Definitions. The terms defined in this Section 1.1 shall, for all
purposes of this Agreement, have the meanings herein specified, unless the
context expressly or by necessary implication otherwise requires:
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(a) "ALT Capital Stock" means the common stock of ALT, par value $0.01
per share.
(b) "Dissenting Shares" shall mean shares of ALT Capital Stock which
shall be owned by shareholders who shall duly perfect and pursue their appraisal
rights with respect to such shares in accordance with the Delaware General
Corporation Law.
(c) "Dissenting Shareholders" shall mean those shareholders of ALT who
are holders of and are entitled to Dissenting Shares.
(d) "SEC" shall mean the Securities and Exchange Commission.
(e) "Sub Common" means the common stock of Sub, par value $0.01 per
share.
(f) "FiberCore Capital Stock" means the common stock of FiberCore, par
value $0.001 per share.
(g) "ALT Shareholders" shall mean all holders of ALT Capital Stock
immediately prior to the Effective Time of the Merger.
(h) "Subsidiary" means a corporation whose voting secu rities are owned
directly or indirectly by a "parent" corporation in such amounts as are
sufficient to elect at least a majority of the Board of Directors of the
Subsidiary.
1.2 Other Definitions. In addition to the terms defined in Section 1.1, certain
other terms are defined elsewhere in this Agreement; whenever such terms are
used in this Agreement they shall have their respective defined meanings, unless
the context expressly or by necessary implication otherwise requires.
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ARTICLE 2.
THE MERGER
2.1 Effective Time of the Merger. Subject to the provisions of this Agreement,
the Articles of Merger, together with all other required certificates, shall be
filed in accordance with the Delaware General Corporation Law as soon as
practicable on or after the Closing Date (as defined in Section 10.1 of this
Agreement). The Merger shall become effective upon the filing of such
certificates with the Delaware Secretary of State (the "Effective Time of the
Merger").
2.2 Effects of the Merger. At the Effective Time of the Merger:
(a) the separate existence of Sub shall cease and Sub shall be merged
with and into ALT as the surviving corporation (the "Surviving Corporation").
(b) the Certificate of Incorporation and By-laws of ALT shall be the
Certificate of Incorporation and By-laws of the Surviving Corporation; and
(c) the directors of ALT shall be the directors of the Surviving
Corporation, and shall continue to act as such, until their respective
successors are duly elected and qualified, and the officers of ALT shall hold
the same offices in the Surviving Corporation until their respective successors
are duly elected and qualified.
2.3 Effect on Capital Stock. As of the Effective Time of the Merger, by virtue
of the Merger and without any action on the part of the holder of any shares of
the issued and outstanding shares of ALT Capital Stock:
(a) Cancellation of ALT and FiberCore Stock Owned by ALT and FiberCore.
All shares of ALT Capital Stock and FiberCore Capital Stock, if any, that are
owned directly by ALT or FiberCore, shall be canceled, and no stock of FiberCore
or other consideration shall be delivered in exchange therefor, except as
provided herein.
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(b) Conversion of ALT Capital Stock and Options. Other than shares to
be canceled pursuant to Section 2.3(a), Dissenting Shares and fractional shares
as provided in Section 2.3(e), each share of ALT Capital Stock issued and
outstanding immediately prior to the Effective Time of the Merger shall be
converted, without any action on the part of the holders thereof, into a number
of shares of issued and outstanding FiberCore Capital Stock equal to the ratio
of (x) 8,811,137 over (y) the total number of shares of ALT Capital Stock
outstanding on a fully diluted basis (other than shares underlying warrants
issued to the Connecticut Development Authority ("CDA") and Connecticut
Innovations, Inc. ("CII") and other than 85,250 shares underlying certain
warrants and 275,000 shares underlying certain incentive stock options, but
including approximately 4.53 million shares underlying warrants and debt to be
issued at the Effective Time of the Merger) (the "ALT Outstanding") at the
Effective Time of the Merger (hereinafter, the "Exchange Ratio" or the "Per
Share Merger Consideration"). The exact Exchange Ratio is set forth on Schedule
2.3. An aggregate of 8,811,137 shares of FiberCore Capital Stock will be issued
in the Merger if all shares of ALT Outstanding are converted into shares of
FiberCore Capital Stock. With respect to unexpired options ("Options") or
warrants ("Warrants") or convertible securities ("Convertible Securities"),
whether or not exercisable or convertible, as the case may be, at the Effective
Time of the Merger, outstanding on the Effective Time of the Merger which have
been issued by ALT, each such Option or Warrant or Convertible Security shall,
by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive, for the number of shares of ALT
Capital Stock to which the warrantholder, optionholder, or convertible security
holder is entitled (the "Underlying Share Count"), the number of shares of
FiberCore Capital Stock determined by multiplying the aforesaid number by the
Per Share Merger Consideration, upon payment of an amount equal to the exercise
price specified in such Option or Warrant or conversion price specified in such
Convertible Security multiplied by the Underlying Share Count, subject to the
expiration date and other terms of such Option or Warrant or Convertible
Securities. At the request of the holder of Options, Warrants, or Convertible
Securities, FiberCore shall upon surrender of such instruments exchange such
instruments for similar instruments in FiberCore Capital Stock, adjusting the
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exercise price and the Underlying Share Count for the Exchange Ratio, all as set
forth in this paragraph.
(c) Adjustments of Exchange Ratio. If, between the date of this
Agreement and the Effective Time of the Merger, the outstanding shares of ALT
Capital Stock or FiberCore Capital Stock shall have been changed into a
different number of shares or a different class by reason of any
reclassification, recapitalization, split-up, combination, exchange of shares or
readjustment, not contemplated under this Agreement, the Exchange Ratio shall be
correspondingly adjusted.
(d) Dissenters' Rights of ALT Shareholders. Any Dissenting Shares shall
not be converted into FiberCore Capital Stock but shall be converted into the
right to receive such consideration as may be determined to be due with respect
to such Dissenting Shares pursuant to the Delaware General Corporation Law. In
the event of the legal obligation, after the Effective Time of the Merger, to
deliver shares of FiberCore Capital Stock to any Dissenting Shareholder who
shall have failed to make an effective demand for appraisal or shall have lost
his status as a Dissenting Shareholder, FiberCore shall issue and deliver, upon
surrender by such Dissenting Shareholder of his certificate or certificates
representing shares of ALT Capital Stock, the shares of FiberCore Capital Stock
to which such Dissenting Shareholder is then entitled under this Section 2.3,
and the Delaware General Corporation Law.
(e) Fractional Shares. No fractional shares of FiberCore Capital Stock
shall be issued, but in lieu thereof each holder of shares of ALT Capital Stock
who would otherwise be entitled to receive a fraction of a share of FiberCore
Capital Stock shall receive a whole share of FiberCore Capital Stock.
2.4 Exchange of Certificates.
(a) Exchange Procedures. On and after the Effective Time of the Merger,
each holder of a certificate representing out standing shares of ALT (the
"Certificates") shall be entitled to receive upon the surrender of such
Certificates to an office of the Surviving Corporation designated for the
purpose the number of shares of FiberCore Capital Stock to which the holder of
ALT Capital Stock is entitled pursuant to Section 2.3 of this
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Agreement and is represented by the Certificates so surrendered. The
Certificates so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of ALT Capital Stock which is not registered in the
transfer records of ALT, the appropriate number of shares of FiberCore Capital
Stock may be delivered to a transferee if the Certificate representing the right
to receive such ALT Capital Stock is presented to FiberCore and accompanied by
all documents required to evidence and effect such transfer and to evidence that
any applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 2.4, each Certificate shall be deemed at any time
after the Effective Time of the Merger to represent the right to receive upon
such surrender the number of shares of FiberCore Capital Stock as provided by
Section 2.3 and the provisions of the Delaware General Corporation Law.
(b) No Further Ownership Rights in ALT Capital Stock. All FiberCore
Capital Stock delivered upon the surrender in exchange of shares of ALT Capital
Stock in accordance with the terms hereof shall be deemed to have been delivered
in full satis faction of all rights pertaining to such shares of ALT. There
shall be no further registration of transfers on the stock transfer books of the
Surviving Corporation of the shares of ALT Capital Stock which were outstanding
immediately prior to the Effective Time of the Merger. If, after the Effective
Time of the Merger, Certificates are presented to the Surviving Corporation for
any reason, they shall be canceled and exchanged as provided in this Article 2.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF FIBERCORE AND SUB
FiberCore and Sub represent and warrant to ALT as of the date hereof
and as of the Closing as follows:
3.1 Organization and Standing. Each of FiberCore and Sub is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation, and has the full power and authority
(corporate and otherwise) to carry on its business in the places and as it is
now being conducted and to own and lease the properties and assets which it
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now owns or leases. FiberCore is or shortly after the Effective Time of the
Merger will be qualified in Massachussets.
3.2 Capital Structure. The authorized capital stock of FiberCore consists of
100,000,000 shares of common stock, par value $.001 per share, of which
25,367,130 shares of FiberCore Capital Stock are issued and outstanding
(including 367,130 shares to be issued to Middle Eastern Specialized Cable
Company, which may or may not have been issued at the time of this Agreement),
and 10,000,000 shares of preferred stock, par value $.001 per share, of which no
shares are outstanding. The authorized capital stock of Sub consists of 1,000
shares of Sub Common of which 1,000 are outstanding and held by FiberCore. All
of the outstanding shares of FiberCore Capital Stock and Sub Common were issued
in compliance with applicable federal and state securities laws, and no further
registration, qualification or other compliance under such securities laws is
required. All of the outstanding shares of FiberCore Capital Stock and Sub
Common are validly issued, fully paid and nonassessable and not subject to
preemptive rights created by statute, FiberCore's or Sub's Articles of
Incorporation or Bylaws or any agreement to which FiberCore or Sub is a party or
is bound. Except for the foregoing, and as set forth on Schedule 3.2, there are
no equity securities of any class of FiberCore or Sub or any security
exchangeable or convertible into or exercisable for such equity securities,
issued, reserved for issuance or outstanding. Except as set forth on Schedule
3.2, there are no options, warrants, calls, rights, commitments or agreements of
any character to which either of FiberCore or Sub is a party or by which it is
bound obligating FiberCore or Sub to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock of FiberCore or
Sub or obligating FiberCore or Sub to grant, extend or enter into any such
option, warrant, call, right, commitment or agreement.
3.3 Authority. Each of FiberCore and Sub has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of FiberCore and Sub, and by FiberCore as the sole
shareholder of Sub. This Agreement has been duly executed and delivered by
FiberCore and Sub and constitutes a valid and
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binding obligation of FiberCore and Sub, enforceable against FiberCore and Sub
in accordance with its terms, except to the extent that their enforcement is
limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights generally and by general
principles of equity.
3.4 Brokers or Finders. Neither FiberCore nor Sub has incurred, or will incur,
directly or indirectly, any liability for any brokerage or finders' fees or
agents commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
3.5 Financial Statements. (a) The consolidated balance sheets of FiberCore
Incorporated ("Old FiberCore") and its Subsidiaries as at December 31, 1993
(audited) and December 31, 1994 (unaudited) and the related consolidated
statements of income, stockholders' equity and cash flows for the respective
years then ended, including the notes thereto, and the reports thereon of Mottle
▇▇▇▇▇▇▇ & Company, independent certified public accountants (in the case of the
1993 financial statements) (the "Company Financial Statements"), are attached
hereto as Schedule 3.5(a). The Company Financial Statements present fairly the
consolidated financial position and the results of operations of FiberCore and
its Subsidiaries as of the dates and for the periods indicated on the Company
Financial Statements, in each case in conformity with generally accepted
accounting principles ("GAAP"), consistently applied during such periods.
FiberCore and its Subsidiaries do not have any material liabilities or
obligations of any nature, which would be reflected in a current unaudited
financial statement, if available, except (1) as disclosed, reflected or
reserved against in the balance sheet dated December 31, 1994 included in the
Company Financial Statements and the notes thereto; (2) for items explicitly
disclosed in the Interim Financial Statements (as defined below); (3) for
liabilities incurred after June 30, 1995 in the ordinary course of business,
consistent with past practice; (4) for items disclosed in the Information and
Disclosure Statement previously delivered to ALT; and (5) for items listed in
Schedule 3.5(a) or any other schedule attached hereto.
(b) Attached hereto as Schedule 3.5(b) is the consolidated balance
sheet (the "June Balance Sheet") of
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FiberCore and subsidiaries as of June 30, 1995 (the "Balance Sheet Date") and
the related consolidated statements of income, stockholders' equity and cash
flows for the three-month period then ended (the "Interim Financial
Statements"). The Interim Financial Statements present fairly, in all material
respects, the financial position and results of operations of FiberCore and its
Subsidiaries as of the date and for the period indicated on the Interim
Financial Statements, in accordance with GAAP, consistently applied with prior
periods, except that the Interim Financial Statements do not contain footnotes
and will be subject to normal year-end adjustments. Since June 30, 1995,
FiberCore has not disposed of any assets other than at fair value, consistent
with past practice.
(c) The parties hereto acknowledge that the financial
statements attached hereto are estimates prepared in good faith by management.
The parties agree that no liabilities shall attach hereto for any errors
therein.
3.6 Subsidiaries. Except for FiberCore Jena Gmbh, a wholly owned subsidiary of
FiberCore, Inc., and Sub, a wholly owned subsidiary of FiberCore, Inc., and
FiberCore Mid East Ltd., neither FiberCore nor Sub has any Subsidiaries or
equity investments of any kind.
3.7 No Violation or Conflict. Except as set forth in Schedule 3.7, the
execution, delivery and performance by FiberCore and Sub of this Agreement and
the Plan of Merger and the consummation by FiberCore and Sub of the transactions
contemplated hereby and thereby: (A) do not and will not violate or conflict
with any provision of law or regulation, or any writ, order, judgment or decree
of any court or governmental or regulatory authority, or any provision the
Articles of Incorporation or Bylaws of FiberCore and Sub; and (B) do not and
will not, with or without the passage of time or the giving of notice, result in
the breach of, or constitute a default, cause the acceleration of performance,
or require any consent under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of FiberCore or Sub or their
Subsidiaries pursuant to any material instrument or agreement to which FiberCore
or Sub or their Subsidiaries are a party or by which FiberCore or Sub or their
Subsidiaries or their respective properties may be bound or affected.
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3.8 Consent of Governmental Authorities. Other than in connection with the
Delaware General Statutes, no consent, approval or authorization of, or
registration, qualification or filing with any federal, state, local or foreign
governmental or regulatory authority is required to be made by FiberCore or Sub
or any of their Subsidiaries in connection with the execution, delivery or
performance by FiberCore or Sub of this Agreement and the Plan of Merger or the
consummation by FiberCore and Sub of the transactions contemplated hereby or
thereby.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF ALT
ALT represents and warrants to FiberCore and Sub as of the date hereof
and as of the Closing as follows:
4.1 Organization and Standing. ALT is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation, and has the full power and authority (corporate and otherwise) to
carry on its business in the places and as it is now being conducted and to own
and lease the properties and assets which it now owns or leases except ALT is or
shortly after the Effective Time of the Merger will be qualified in
Massachussets.
4.2 Capital Structure. The authorized capital stock of ALT consists of
10,000,000 shares of ALT Capital Stock, of which approximately 3,850,000 shares
are issued and outstanding. All of the outstanding shares of ALT Capital Stock
were issued in compliance with applicable federal and state securities laws, and
no further registration, qualification or other compliance under such securities
laws is required. All of the outstanding shares of ALT Capital Stock are validly
issued, fully paid and nonassessable and not subject to preemptive rights
created by statute, ALT's Articles of Incorporation or By-laws or any agreement
to which ALT is a party or is bound. At or immediately before the Effective Time
of the Merger warrants and debt convertible into approximately 4.53 million
shares of ALT Capital Stock will convert such warrants and debt into ALT Capital
Stock (the "Warrant and Debt Conversion"). Except for the foregoing, for
warrants convertible into 85,250 shares, and for warrants for purchase of
100,0000 shares issued to the Connecticut Development
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Authority and warrants for the purchase of 66,667 shares issued to Connecticut
Innovations, Inc. (copies of which were previously delivered to FiberCore), and
for 275,000 incentive stock options, and except as set forth on Schedule 4.2,
there are no equity securities of any class of ALT or any security exchangeable
or convertible into or exercisable for such equity securities, issued, reserved
for issuance or outstanding. Except for the foregoing or as set forth on
Schedule 4.2, there are no options, warrants, calls, rights, commitments or
agreements of any character to which ALT is a party or by which it is bound
obligating ALT to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock of ALT or obligating ALT to grant,
extend or enter into any such option, warrant, call, right, commitment or
agreement.
4.3 Authority. ALT has all requisite corporate power and authority to enter into
this Agreement and, subject to approval of this Agreement by the shareholders of
ALT, to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by the Board of Directors of ALT, and have been
approved by the shareholders of ALT. This Agreement has been duly executed and
delivered by ALT and, subject to such approval by shareholders of ALT,
constitutes a valid and binding obligation of ALT, enforceable against ALT in
accordance with its terms, except to the extent that their enforcement is
limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights generally and by general
principles of equity.
4.4 Brokers or Finders. ALT has not incurred, and will not incur, directly or
indirectly, any liability for any brokerage or finders' fees or agents
commissions or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
4.5 Financial Statements. (a) The unaudited balance sheets of ALT as at December
31, 1993 and December 31, 1994 and the related unaudited statements of income,
stockholders' equity and cash flows for the respective years then ended,
including the notes thereto (in the case of the 1994 financial statements), (the
"ALT Financial Statements"), are attached hereto as Schedule 4.5(a). The ALT
Financial Statements present fairly the financial
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position and the results of operations of ALT as of the dates and for the
periods indicated on the ALT Financial Statements, in each case in conformity
with generally accepted accounting principles ("GAAP"), consistently applied
during such periods. ALT and its Subsidiaries do not have any material
liabilities or obligations of any nature, which would be reflected in a current
unaudited financial statement, if available, except (1) as disclosed, reflected
or reserved against in the balance sheet dated December 31, 1994 included in the
ALT Financial Statements and the notes thereto; (2) for items explicitly
disclosed in the ALT Interim Financial Statements (as defined below); (3) for
liabilities incurred after June 30, 1995 in the ordinary course of business,
consistent with past practice; and (4) for items listed in schedule 4.5(a) or
any other schedule attached hereto.
(b) Attached hereto as Schedule 4.5(b) is the balance sheet (the "June
Balance Sheet") of ALT as of June 30, 1995 (the "Balance Sheet Date") and the
related statements of income, stockholders' equity and cash flows for the
six-month period then ended (the "ALT Interim Financial Statements"). The ALT
Interim Financial Statements present fairly, in all material respects, the
financial position and results of operations of ALT as of the date and for the
period indicated on the ALT Interim Financial Statements, in accordance with
GAAP, consistently applied with prior periods, except that the Interim Financial
Statements will be subject to normal year-end adjustments. Since June 30, 1995,
ALT has not disposed of any assets other than at fair value, consistent with
past practice and other than its stock in Allied Controls Inc. and its interest
in Allied Controls Holding LLC ("LLC").
(c) The parties hereto acknowledge that the financial statements
attached hereto are estimates prepared in good faith by management. The parties
agree that no liabilities shall attach hereto for any errors therein.
4.6 Subsidiaries. ALT has no Subsidiaries or equity investments of any kind.
4.7 No Violation or Conflict. Except as set forth on Schedule 4.7, the
execution, delivery and performance by ALT of this Agreement and the Plan of
Merger and the consummation by ALT of the transactions contemplated hereby and
thereby: (A) do not and
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will not violate or conflict with any provision of law or regulation, or any
writ, order, judgment or decree of any court or governmental or regulatory
authority, or any provision of ALT's Articles of Incorporation or Bylaws; and
(B) do not and will not, with or without the passage of time or the giving of
notice, result in the breach of, or constitute a default, cause the acceleration
of performance, or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of ALT or its
Subsidiaries pursuant to any material instrument or agreement to which ALT or
its Subsidiaries are a party or by which ALT or its Subsidiaries or their
respective properties may be bound or affected.
4.8 Consent of Governmental Authorities. Other than in connection with the
Delaware General Corporate Law, no consent, approval or authorization of, or
registration, qualification or filing with any federal, state, local or foreign
governmental or regulatory authority is required to be made by ALT or any of its
Subsidiaries in connection with the execution, delivery or performance by ALT of
this Agreement and the Plan of Merger or the consummation by ALT of the
transactions contemplated hereby or thereby.
ARTICLE 5.
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Covenants of FiberCore and Sub. During the period from the date of this
Agreement and continuing until the Effective Time of the Merger, and except as
specified in Schedules 5.1 or 3.2, FiberCore and Sub agree (except as expressly
contemplated by this Agreement or to the extent that ALT shall otherwise consent
in writing) that:
(a) Dividends; Changes in Stock. Each of FiberCore and Sub and their
Subsidiaries shall not: (i) declare, pay or promise to pay any dividends on or
make other distributions in respect of any of its capital stock, (ii) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of capital stock of FiberCore or (iii) repurchase or otherwise
acquire any shares of its capital stock.
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(b) Issuance of Securities. Each of FiberCore and Sub and their
Subsidiaries shall not issue, deliver or sell or authorize, promise or propose
the issuance, delivery or sale of, or purchase or promise or propose the
purchase of, any shares of its capital stock or any class or securities
exercisable or convertible into or exchangeable for, or rights, warrants or
options to acquire, any such shares or other convertible securities, other than
at fair value.
(c) Governing Documents. Each of FiberCore and Sub shall not amend its
Articles of Incorporation or By-laws, except as contemplated in this Agreement
or the Plan of Merger.
(d) Accounting Practices. Each of FiberCore and Sub and their
Subsidiaries shall not alter the manner of keeping its books, accounts or
records, or change in any manner the accounting practices therein reflected.
(e) Other Agreements. Each of FiberCore and Sub shall not agree, in
writing or otherwise, to do any of the foregoing.
5.2 Covenants of ALT. During the period from the date of this Agreement and
continuing until the Effective Time of the Merger, and except as specified in
Schedule 5.2 or 4.2, ALT agrees (except as expressly contemplated by this
Agreement or to the extent that FiberCore and Sub shall otherwise consent in
writing) that:
(a) Dividends; Changes in Stock. ALT and its Subsidiaries shall not:
(i) declare, pay or promise to pay any dividends on or make other distributions
in respect of any of its capital stock, other than a distribution of its
interest in Allied Controls Holding LLC, (ii) split, combine or reclassify any
of its capital stock or issue or authorize the issuance of any other securities
in respect of, in lieu of or in substitution for shares of capital stock of ALT
or (iii) repurchase or otherwise acquire any shares of its capital stock.
(b) Issuance of Securities. ALT and its Subsidiaries shall not issue,
deliver or sell or authorize, promise or propose the issuance, delivery or sale
of, or purchase or promise or propose the purchase of, any shares of its capital
stock or any class or securities exercisable or convertible into or exchangeable
for,
14
or rights, warrants or options to acquire, any such shares or other convertible
securities, other than at fair value.
(c) Governing Documents. ALT shall not amend its Articles of
Incorporation or By-laws, except as contemplated in this Agreement or the Plan
of Merger.
(d) Accounting Practices. ALT and its Subsidiaries shall not alter the
manner of keeping its books, accounts or records, or change in any manner the
accounting practices therein reflected.
(e) Other Agreements. ALT shall not agree, in writing or otherwise, to
do any of the foregoing.
ARTICLE 6.
OMITTED
ARTICLE 7.
ADDITIONAL AGREEMENTS
7.1 Legal Conditions to the Merger. Each party will take all reasonable actions
necessary to comply promptly with all legal requirements which may be imposed on
such party with respect to the Merger and will promptly cooperate with and
furnish information to the other party in connection with any such requirements
imposed upon such other party in connection with the Merger. Each party will
take all reasonable actions to obtain (and to cooperate with the other party)
any consent, authorization, order or approval of, or any exemption by, any
governmental entity, or other third party, required to be obtained or made by
such party or its Subsidiaries in connection with the Merger or the taking of
any action contemplated thereby or by this Agreement.
7.2 Delivery of Stock Certificates. FiberCore will issue and deliver as and when
required by the provisions of this Agreement, certificates representing the
shares of FiberCore Capital Stock into which the shares of ALT outstanding
immediately prior to the Effective Time of the Merger shall have been converted
as provided herein and deliver substitute option and warrants into
15
which the options and warrants outstanding immediately prior to the Effective
Time of the Merger shall have been converted as provided herein.
7.3 Tax Treatment. FiberCore, Sub, and ALT shall use best efforts to qualify the
Merger, and shall use best efforts not to take any action to cause the Merger
not to qualify, as a reorganization under Section 368(a) of the Code. From and
after the Effective Time of the Merger, (i) ALT shall continue ALT's historic
business or use a significant portion of ALT's historic business assets in a
business within the meaning of Treasury Regulation Section 1.368-1(d), and (ii)
FiberCore, Sub and ALT shall treat the Merger as a "reorganization" within the
meaning of Section 368(a) of the Code and shall file such information with their
income tax returns as may be required by Treasury Regulation Section 1.368-3 or
other applicable law.
7.4 Board of Directors. ALT will cause ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to be the only members of its Board of
Directors immediately following the Closing.
ARTICLE 8.
CONDITIONS PRECEDENT
8.1 Conditions to Each Party's Obligations to Effect the Merger. The respective
obligations of each party to effect the Merger shall be subject to the
satisfaction on or prior to the Closing Date of the following conditions:
(a) Shareholder Approval. This Agreement shall have been approved and
adopted by the required affirmative vote or consent of the holders of the
outstanding shares of ALT Capital Stock and the sole shareholder of Sub Common.
(b) Government Approvals. All authorizations, consents, orders or
approvals of, or declarations or filings with, or expiration of waiting periods
imposed by, any governmental entity necessary for the consummation of the
transactions contemplated by this Agreement including, but not limited to, such
requirements under applicable state securities laws, shall have been filed,
occurred or been obtained, other than filings with
16
and approvals by foreign governments relating to the Merger if failure to make
such filings or obtain such approvals would not be materially adverse to ALT or
its Subsidiaries taken as a whole, or FiberCore or its Subsidiaries taken as a
whole.
(c) Third-Party Approvals. Any and all consents or approvals required
from third parties shall have been obtained.
(d) Legal Action. No temporary restraining order, pre liminary
injunction or permanent injunction or other order preventing the consummation of
the Merger shall have been issued by any federal or state court and remain in
effect, and no litigation seeking the issuance of such an order or injunction,
or seeking the imposition against ALT, FiberCore or Sub of substantial damages
if the Merger is consummated, shall be pending which, in the good faith judgment
of ALT's, FiberCore's or Sub's Board of Directors has a reasonable probability
of resulting in such order, injunction or damages. In the event any such order
or injunction shall have been issued, each party agrees to use its reasonable
efforts to have any such injunction lifted.
(e) Statutes. No statute, rule or regulation shall have been enacted by
the government of the United States or any state or agency thereof which would
make the consummation of the Merger illegal.
(f) Appraisal Rights. Holders of no more than 2% of the outstanding
shares of ALT shall have commenced pursuit of their rights for demand for
payment or appraisal under the Delaware General Corporation Law.
(g) Registration Rights and Conversion. Other than CII, CDA, and
holders of employee stock options and holders of warrants underlying 85,250
shares, substantially all persons with registration rights with respect to ALT
common stock shall have waived such rights and substantially all persons holding
warrants and debt of ALT shall have converted such instruments into common stock
of ALT.
8.2 Conditions to Obligations of ALT. The obligations of ALT to effect the
Merger are subject to the satisfaction on or prior to
17
the Closing Date of the following conditions, unless waived by ALT:
(a) Representations and Warranties. The representations and warranties
of FiberCore and Sub set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of the Closing
Date, and ALT shall have received a certificate or certificates to such effect
signed by the Chief Executive Officer of each of FiberCore and Sub.
(b) Performance of Obligations of FiberCore. FiberCore and Sub shall
have performed in all material respects all obligations required to be performed
by them under this Agreement prior to the Closing Date, and ALT shall have
received a certificate signed by the Chief Executive Officers or Chief Financial
Officers of each of FiberCore and Sub to such effect.
(c) Corporate Action. ALT shall have received from FiberCore and Sub
certified copies of resolutions of Sub's shareholder and FiberCore's and Sub's
Board of Directors approving and adopting this Agreement and the transactions
contemplated hereby, and ALT shall have received certificates signed on behalf
of each of FiberCore and Sub by the corporate secretary of each such entity to
such effect.
8.3 Conditions to Obligations of FiberCore and Sub. The obligations of FiberCore
and Sub to effect the Merger are subject to the satisfaction on or prior to the
Closing Date of the following conditions, unless waived by FiberCore and Sub:
(a) Representations and Warranties. The representations and warranties
of ALT set forth in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date, and
FiberCore and Sub shall have received a certificate or certificates to such
effect signed by an executive officer of ALT.
(b) Performance of Obligations of ALT. ALT shall have performed in all
material respects all obligations required to be performed by it under this
Agreement prior to the Closing Date, and FiberCore and Sub shall have received a
certificate signed by an executive officer of ALT.
18
(c) Corporate Action. FiberCore and Sub shall have received from ALT
certified copies of resolutions of ALT's shareholders and Board of Directors
approving and adopting this Agreement and the transactions contemplated hereby,
and FiberCore and Sub shall have received a certificate signed on behalf of ALT
by the corporate secretary of such entity to such effect.
ARTICLE 9.
OMITTED
ARTICLE 10.
CLOSING
10.1 Closing Date. The Closing under this Agreement (the "Closing") shall be
held not more than two (2) business days following the later of (a) the approval
of the Merger by the shareholders of ALT and (b) satisfaction of all other
conditions precedent to the Merger specified in this Agreement, unless duly
waived by the party entitled to satisfaction thereof. The parties hereto
anticipate that the Closing will occur on or before September 15, 1995. In any
event, if the Closing has not occurred on or before September 30, 1995, this
Agreement may be terminated as provided in Article 13. Such date on which the
Closing is to be held is herein referred to as the "Closing Date." The Closing
shall be held at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇, 1120 Avenue of the Americas,
New York, New York, at 10:00 a.m. on such date, or at such other time and place
as the parties may agree upon in writing.
10.2 Filing Date. Subject to the provisions of this Agreement, on the Closing
Date a fully-executed and acknowledged copy of this Agreement, if required,
along with required related certificates of ALT, FiberCore and Sub meeting the
requirements of the Delaware General Corporation Law, shall be filed with the
Delaware Secretary of State, all in accordance with the provisions of this
Agreement.
19
ARTICLE 11.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
The representations, warranties and covenants contained in this
Agreement shall survive only up to the closing of the Merger. All
representations, warranties and covenants in or pursuant to this Agreement shall
be deemed to be conditions to the Merger, and in the event this Agreement shall
be terminated in accordance with the terms thereof, the provisions of Section 12
of this Agreement shall survive any termination of this Agreement.
ARTICLE 12.
PAYMENT OF EXPENSES
If for any reason the Merger as contemplated herein is not consummated
ALT, FiberCore, and Sub shall each pay their own out-of-pocket expenses incurred
incident to the preparation and carrying out of the transactions herein
contemplated; provided that, unless the Merger is not consummated because of a
failure of FiberCore or Sub to satisfy any of the conditions of Section 8.2,
FiberCore will reimburse ALT the actual documented costs incurred, up to a
maximum of Five Thousand Dollars $5,000, in consideration of the expenses
incurred by ALT and the termination of this Agreement and the Merger; provided
further, that if the Merger is not consummated because of a failure of ALT to
satisfy any of the conditions of Section 8.3, ALT will reimburse FiberCore
actual documented costs incurred, up to a maximum of Five Thousand Dollars
($5,000), in consideration of the expenses incurred by FiberCore and Sub and the
termination of this Agreement and the Merger.
ARTICLE 13.
TERMINATION, AMENDMENT AND WAIVER
13.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time of the Merger, whether before or after the approval by the ALT's
or Sub's shareholders of matters presented in connection with the Merger :
20
(a) by mutual written consent of ALT, Sub, and FiberCore;
(b) by ALT, on the one hand or FiberCore and Sub, on the other hand, as
the non-defaulting party or parties, if there has been a material breach of any
material representation, warranty, covenant or agreement contained in this
Agreement on the part of the other party or parties set forth in this Agreement
and, if such breach is curable, such breach has not been cured within a ten (10)
day period after written notice of such breach;
(c) by either ALT, on the one hand, or FiberCore and Sub, on the other
hand, if the Merger shall not have been consummated on or before September 30,
1995; provided, however, that if the Merger shall not be consummated on or
before September 30, 1995 because of a party's failure to satisfy any of the
conditions set forth in Sections 8.2 or 8.3, neither ALT, on the one hand, or
FiberCore and Sub, on the other hand, may rely upon such party or parties own
actions or lack thereof to terminate the Agreement;
(d) ALT, on the one hand, or FiberCore and Sub, on the other hand, if
(i) there shall be a final nonappealable order of a federal or state court in
effect preventing consummation of the Merger or (ii) there shall be any action
taken, or any statute, rule, regulation or order enacted, promulgated or issued
or deemed applicable to the Merger by any governmental entity which would make
consummation of the Merger illegal; and
(e) ALT, on the one hand, or FiberCore and Sub, on the other hand, if
there shall be any action taken, or any statute, rule, regulation or order
enacted, promulgated or issued or deemed applicable to the Merger by any
governmental entity, which would (A) prohibit FiberCore's or Sub's ownership or
operation of all or a material portion of the business or assets of ALT or Sub
and its Subsidiaries taken as a whole, or compel FiberCore to dispose of or hold
separate all or a material portion of the business or assets of ALT and its
Subsidiaries taken as a whole or FiberCore and its Subsidiaries taken as a
whole, as a result of the Merger or (B) render ALT or FiberCore unable to
consummate the Merger, except for any waiting period provisions; or
21
(f) by any party, provided however that the terminating party shall be
liable for the expenses of the non-terminating parties, in an amount not to
exceed a maximum of $5,000.
Where action is taken to terminate this Agreement pursuant to this
Section 13.1, it shall be sufficient for such action to be authorized by the
Board of Directors of the party taking such action.
13.2 Effect of Termination. In the event of termination of this Agreement by
either FiberCore, Sub or ALT as provided in Section 13.1, this Agreement and the
Plan of Merger shall forthwith become void and there shall be no liability or
obligation on the part of ALT, FiberCore or Sub or their respective officers or
directors except as set forth in Article 12 and Article 14.
13.3 Amendment. This Agreement may be amended by the parties hereto, by action
taken by their respective Board of Directors, at any time before or after
approval of matters presented in connection with the Merger by the shareholders
of ALT and Sub but, after any such shareholder approval, no amendment shall be
made which by law requires the further approval of shareholders without
obtaining such further approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
13.4 Extension; Waiver. At any time prior to the Effective Time of the Merger,
any party hereto, by such corporate action as shall be appropriate, may, to the
extent legally allowed, (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid if set forth in an instrument in writing signed on behalf
of such party.
22
ARTICLE 14.
LIMITATION ON LIABILITY
14.1 Liabilities of ALT, FiberCore, and Sub. The aggregate liability of all
entities for breaches by FiberCore and Sub and their officers and directors
under this Agreement and the Plan of Merger and the transactions contemplated
hereby and thereby shall be limited to $5,000 (including the amounts set forth
in sections 12 and 13).
ARTICLE 15.
GENERAL
15.1 Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other shall be in writing and delivered personally
or sent by certified mail, postage prepaid, as follows:
If to FiberCore or Sub:
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, President
FiberCore, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to ALT:
Automated Light Technologies, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
15.2 Headings. The headings of the several sections of this Agreement are
inserted for convenience of reference only and are not intended to affect the
meaning or interpretation of this Agreement.
15.3 Counterparts. This Agreement may be executed in counter parts, and when so
executed each counterpart shall be deemed to be an original, and said
counterparts together shall constitute one and the same instrument.
23
15.4 Binding Nature. This Agreement shall be binding upon and inure to the
benefit of the parties hereto. Neither ALT, Sub or FiberCore may assign or
transfer any rights under this Agreement.
15.5 Other Agreements. All written agreements heretofore made between the
parties hereto in contemplation of this Agreement are superseded by this
Agreement and are hereby terminated in their entirety.
15.6 Good Faith. Each of the parties hereto agrees that it shall act in good
faith in an attempt to cause all the conditions precedent to their respective
obligations to be satisfied.
15.7 Applicable Law. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of New York and
each party agrees to submit to the jurisdiction of the courts of the State of
New York.
15.8 No Third Party Beneficiaries. The terms and provisions of this Agreement
are intended for the benefit of each party hereto and their respective
successors and permitted assigns, and it is not the intention of the parties to
confer third party beneficiary rights upon any other person or entity.
15.9 Severability. A determination that any portion of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any
of the remaining portions hereof or of this Agreement as a whole. In the event
that any part of any of the covenants, sections or provisions herein may be
determined by a court of law to be overly broad or against applicable precedent
or public policy, thereby making such covenants, sections or provisions invalid
or unenforceable, the parties hereto agree, and it is their desire that, such
court shall substitute a reasonable and judicially enforceable limitation in
place of the invalid and unenforceable part of such covenants, sections or
provisions, and that, as so modified, the covenants, sections or provisions
shall be as fully enforceable as if set forth herein by the parties themselves
in the modified form. If, however, any court of law shall refuse to substitute
any reasonable and judicially enforceable provisions in their place, the parties
shall attempt to reach agreement with respect to a valid and enforceable
substitute for the deleted provisions which shall be as close in its intent and
effect as possible to the deleted portions.
24
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first written above.
FIBERCORE, INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
---------------------
Title: President
---------------------
ALT MERGER CO.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
---------------------
Title: President
---------------------
AUTOMATED LIGHT TECHNOLOGIES, INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
---------------------
Title: President
---------------------
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the 12th day of September, 1995, before me personally came
▇▇▇▇ ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
he has a business address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ; that he is the
President of FiberCore, Inc. and ALT Merger Co., the corporations described in
and which executed the foregoing instrument; and that he signed his name thereto
by order of the board of directors of said corporations.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
26
STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On the 14th day of September, 1995, before me personally came
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he has a business address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇; that he is
the Secretary of Automated Light Technologies, Inc., the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
A:\ALTAGREE.DOC
27
EXHIBIT A
PLAN OF MERGER
THIS PLAN OF MERGER (the "Plan of Merger") is dated as of
September 18th, 1995 and is entered into by and between ALT Merger Co., a
Delaware corporation ("Acquisition Sub"), and Automated Light Technologies,
Inc., a Delaware corporation (the
"Company").
W I T N E S S E T H
WHEREAS, the Company and Acquisition Sub and the respective
Boards of Directors thereof have approved as desirable and in the best interests
of each corporation that Acquisition Sub be merged with and into the Company by
a statutory merger upon the terms and conditions contained in this Plan of
Merger and in a certain Agreement and Plan of Reorganization, dated as of
September 18th, 1995 by and among FiberCore, Inc. ("Parent"), the Company and
Acquisition Sub (the "Merger Agreement") (which Merger Agreement shall be deemed
part of this Plan of Merger and is hereby incorporated by reference to the same
extent as if fully set forth herein), and in accordance with the applicable laws
of the State of Delaware.
NOW, THEREFORE, in consideration of the premises and the
mutual promises contained herein, IT IS AGREED AS FOLLOWS:
FIRST: At the Effective Date of the Merger (as hereinafter
defined), Acquisition Sub shall be merged with and into the Company by a
statutory merger (the "Merger") in accordance with the General Corporation Law
of the State of Delaware (the "GCL") and upon the terms and conditions
hereinafter expressed. At the Effective Date of the Merger, Acquisition Sub
shall be merged with and into the Company, the separate existence of Acquisition
Sub shall cease, and the Company shall be the surviving corporation (Acquisition
Sub and the Company are hereinafter sometimes referred to as the "Constituent
Corporations," and the Company, as the party surviving the Merger, is
hereinafter sometimes referred to as the "Surviving Corporation") all in the
manner intended by Section 251 of the GCL.
28
SECOND: The Merger shall become effective at the time of
filing of the certificate of merger with the Secretary of State of the State of
Delaware (the "Certificate of Merger") in accordance with the provision of the
GCL. The date and time when the Merger shall become effective is herein referred
to as the "Effective Date."
THIRD: The manner and basis for converting the shares of the
capital stock of the Company and Acquisition Sub upon the Merger shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be as follows:
a. Each share of the Company's common stock, par value
$.01 per share, actually issued and outstanding at
the Effective Date ("Company Common Stock"), except
for Dissenting Shares (as defined below) shall, by
virtue of the Merger and without any action on the
part of the holder thereof, at the Effective Date,
be converted into the right to receive a number of
shares equal to the ratio of (x) 8,811,137 over (y)
the number of shares of Company Common Stock
outstanding on a fully diluted basis (other than
shares underlying warrants issued to the Connecticut
Development Authority and Connecticut Innovations,
Inc. and other than 85,250 shares underlying certain
warrants and 275,000 shares underlying certain
incentive stock options, but including approximately
4.53 million shares underlying warrants and debt to
be issued at the Effective Time) (the "ALT
Outstanding") immediately prior to the Merger
(hereinafter, the "Exchange Ratio" or the "Per Share
Merger Consideration") of issued and outstanding
shares of the Common Stock, par value $.001 per
share, of Parent (the "Parent Common Stock") (the
"Per Share Merger Consideration"). The exact
exchange ratio is set forth on Attachment 1. An
aggregate of 8,811,137 shares of Parent Common Stock
will be issued in the Merger if all shares of ALT
Outstanding are converted into shares of Parent
Common Stock.
29
b. All payments shall be made in Parent Common Stock
pursuant to the terms and conditions of the Merger
Agreement.
c. Each share of the Company Common Stock held in the
Company's treasury at the Effective Date shall, by
virtue of the Merger, be canceled without payment of
any consideration therefor and without any
conversion thereof.
d. All shares of Company Common Stock held of record by
shareholders who shall not have voted such shares in
favor of the Merger and who shall properly exercise
rights to demand payment of the fair value of such
shares in accordance with Section 262 of the GCL
(the "Dissenting Shares"), if any, shall be canceled
upon such exercise and shall be entitled to payment
of the fair value of such shares in accordance with
the provisions of Section 262 inclusive of the GCL
(the "Dissenting Consideration").
e. After the Effective Date, each holder of an
outstanding certificate which at the Effective Date
represented outstanding shares of Company Common
Stock (the "Certificates"), upon surrender of such
Certificates, together with a transmittal letter
(which shall specify that delivery shall be
effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery
of the Certificates) shall be entitled to receive in
exchange for each share of Company Common Stock
represented thereby, the Per Share Merger
Consideration or Dissenting Consideration, as the
case may be. No interest will be paid or accrued on
the Per Share Merger Consideration or the Dissenting
Consideration, as the case may be, payable upon the
surrender of such Certificates, except to the extent
required by law.
f. After the Effective Date, there shall be no further
transfers on the stock transfer books of the
Surviving Corporation of the shares of Company
Common Stock or Options (as defined below) which
30
are outstanding at the Effective Date. If, after the
Effective Date, Certificates are presented to the
Surviving Corporation for transfer, they shall be
canceled and there shall be issued to the transferee
in exchange therefor the consideration as provided
above.
g. Each share of Acquisition Sub common stock, par
value $.01 per share (the "Acquisition Sub Common
Stock"), issued and outstanding at the Effective
Date shall, by virtue of the Merger and without any
action on the part of the holder thereof, at the
Effective Date, be converted into and exchangeable
for one fully paid and nonassessable share of
Surviving Corporation Common Stock, par value $0.01
per share (the "Surviving Corporation Common
Stock"). From and after the Effective Date, each
outstanding certificate theretofore representing
Acquisition Sub Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent
the number of shares, of Surviving Corporation
Common Stock into which such shares of Acquisition
Sub Common Stock shall be converted.
h. With respect to unexpired, unexercised options,
warrants or other convertible securities
("Convertible Securities"), whether or not
exercisable or convertible at the Effective Date,
outstanding on the Effective Date, each such option,
warrant or convertible security, by virtue of the
Merger and without any action on the part of the
holder thereof other than proper execution of a
notice of exercise or conversion of such convertible
security, shall be converted into the right to
receive, for the number of shares of ALT Capital
Stock to which the warrantholder, optionholder, or
convertible security holder is entitled (the
"Underlying Share Count"), the number of shares of
Parent Capital Stock determined by multiplying the
aforesaid number by the Per Share Merger
Consideration, upon payment of an amount equal to
the exercise price specified in such Option or
Warrant or conversion price
31
specified in such Convertible Security multiplied by
the Underlying Share Count, subject to the
expiration date and other terms of such Option or
Warrant or Convertible Securities.
FOURTH: Until otherwise amended in accordance with law or such
Certificate of Incorporation, the Certificate of Incorporation of the Company,
and the By-laws of the Company in effect at the Effective Date of the Merger,
shall be the Certificate of Incorporation and By-laws of the Surviving
Corporation following the Merger.
FIFTH: All officers and directors of the Company at the
Effective Date shall, from and after the Effective Date, be the officers and
directors, respectively, of the Surviving Corporation, and shall hold office
until their successors are elected or appointed and qualify as provided in the
Certificate of Incorporation and By-laws of the Surviving Corporation, or as
otherwise provided by law. At the Effective Date, all directors of the
Acquisition Sub shall cease to be directors thereof and shall be considered
removed from office. If, at the Effective Date, a vacancy shall exist on the
Board of Directors of the Surviving Corporation, such vacancy may thereafter be
filled in the manner provided in the Certificate of Incorporation and Bylaws of
the Surviving Corporation, or as otherwise provided by law.
SIXTH: At the Effective Date of the Merger, all respective
property, assets, rights, privileges, powers, franchises and immunities of each
of the Constituent Corporations shall vest in the Surviving Corporation and all
of the respective debts, liabilities and obligations of each of the Constituent
Corporations shall become the debts, liabilities and obligations of the
Surviving Corporation.
32
SEVENTH: Prior to the filing of the Certificate of Merger,
this Plan of Merger may be terminated as provided in the Merger Agreement.
33
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first written above.
AUTOMATED LIGHT TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title: Vice President
------------------------
ALT MERGER CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title: President
------------------------
Agreed To:
FIBERCORE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title: President
------------------------
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the 12th day of September, 1995, before me personally came
▇▇▇▇ ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
he has a business address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ; that he is the
President of FiberCore, Inc. and ALT Merger Co., the corporations described in
and which executed the foregoing instrument; and that he signed his name thereto
by order of the board of directors of said corporations.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
35
STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On the 14th day of September, 1995, before me personally came
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he has a business address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇; that he is
the Secretary of Automated Light Technologies, Inc., the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
36
Schedule 2.3
Exchange Ratio
1.051615
37
Schedule 3.2
Warrants, Options and Other
Outstanding Convertible Equity Securities of FiberCore
$5,000,000 convertible debt held by AMP, Inc. plus interest
accumulating 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 $1.1576258 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.
348,774 employee stock options are outstanding and 305,000 additional
options are available for issuance.
1,560,305 options may be issued to a new chief operating
officer.
Additional warrants exercisable into 550,696 shares of FiberCore
Capital Stock are due to be issued to Middle Eastern Specialized Cable Company
("MESC"), upon signing of certain agreements.
238,635 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 679,192 shares of FiberCore Capital Stock are to be
issued to MESC upon the signing of certain agreements.
An additional 367,131 shares are in the process of being issued to
MESC, upon the closing of a certain agreement.
An additional 820,996 warrants are outstanding (subject to adjustment).
Additional warrants may be due the ▇▇▇▇▇▇ 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.
38
Schedule 3.5(a)
Financial Statements
39
Schedule 3.5(b)
Financial Statements
40
Schedule 3.7
FiberCore Violations and Conflicts Arising from Merger
None.
Schedule 4.2
Warrants, Options and Other
Outstanding Equity Securities of ALT
None.
41
Schedule 4.5(a)
Financial Statements
42
Schedule 4.5(b)
Financial Statements
43
Schedule 4.7
ALT Violations or Conflicting Agreements
ALT is required to register shares underlying certain warrants
immediately upon consummation of a merger. Such registration is supposed to be a
condition to a merger.
Schedule 5.1
FiberCore's Covenants Relating to Conduct of Business
See attached Amendment.
44
Schedule 5.2
ALT's Covenants Relating to Conduct of Business
None.
45
Attachment 1
Exchange Ratio
1.051615
46