AMENDMENT NO. 1
TO CONVERTIBLE DEBENTURE PURCHASE AGREEMENT
This Amendment No. 1 to Convertible Debenture Purchase Agreement
("Amendment") is entered into as of November 27, 1996, by and between FiberCore,
Inc., a Nevada corporation (the "Borrower") having its chief executive office at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and AMP INCORPORATED, a Pennsylvania
corporation (the "Lender"), having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, M/S
176-034, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS OF FACT.
A. Borrower and FiberCore Incorporated, a Nevada corporation ("Old
FiberCore"), previously entered into that certain Convertible Debenture Purchase
Agreement, dated as of April 17, 1995 (the "Purchase Agreement"), pursuant which
Borrower issued to Lender that certain Convertible Debenture dated as of April
17, 1995, in the original principal amount of $5,000,000, secured by that
certain Collateral Assignment, Patent Mortgage and Security Agreement, dated as
of April 17, 1995, made by Old FiberCore in favor of Lender (collectively, the
"Existing Loan Documents").
B. On July 18, 1995, Old FiberCore merged into Venturecap, Inc., a
Nevada corporation ("Vencap"), with Vencap (i.e. Borrower) as the surviving
corporation (the "Merger"). Simultaneously with the consummation of the Merger,
Vencap changed its name to "FiberCore, Inc."
C. Borrower assumed the obligations of Old FiberCore, including without
limitation, the obligations under the Existing Loan Documents, by operation of
law in the Merger.
D. The aggregate principal amount outstanding under the Existing Loan
Documents is $5,000,000 (the "Existing Loan") and the aggregate accrued interest
on the Existing Loan as of the date hereof is $541,883.55 with interest
currently accruing at a rate of $898.97 per day ("Accrued Interest").
E. This Amendment sets forth the manner in which a portion of the
indebtedness owed by Borrower to Lender shall be converted into equity of
Lender.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. PARTIAL CONVERSION OF THE EXISTING LOAN. Lender agrees to convert
$3,000,000 of the Existing Loan and $540,984.58 of Accrued Interest into
3,058,833 shares of Common Stock of Borrower (the "Shares").
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2. ISSUANCE OF STOCK CERTIFICATES. Upon execution of this Agreement,
Borrower shall issue to Lender (i) a stock certificate representing the Shares
and (ii) a new convertible debenture in the form of Exhibit A hereto (the "New
Debenture").
3. REAFFIRMATION OF CONVERTIBLE DEBENTURE PURCHASE AGREEMENT. Borrower
hereby affirms that there will remain outstanding, after partial conversion of
the Existing Loan pursuant to Section 1 above, $2,000,000 of principal and
$898.97 of accrued interest as of the date hereof (with interest currently
accruing at the rate of $898.97 per day), which indebtedness shall be evidenced
by the New Debenture and shall be subject to the terms and conditions of the
Existing Loan Documents, as amended hereby.
4. BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce the
Lender to enter into this Amendment in the manner provided herein, Borrower
represents and warrants to the Lender that the following statements are true,
and correct and complete:
a. Authorization of Agreements. The execution and delivery of
this Amendment and the performance of the Purchase Agreement, as amended, have
been duly authorized by all necessary corporate action on the part of Borrower.
b. Incorporation of Representations and Warranties From
Purchase Agreement. The representations and warranties contained in Section 3 of
the Purchase Agreement are and will be true and correct in all material respects
on and as of the date hereof to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true and correct in all
material respects on and as of such earlier date.
c. Absence of Default. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that would constitute a default under the Purchase Agreement.
5. REAFFIRMATION OF SECURITY INTEREST. That certain Collateral
Assignment, Patent Mortgage and Security Agreement, made as of April 17, 1995,
by Old FiberCore in favor of Lender (the "Security Agreement") shall remain in
full force and effect and is hereby ratified and confirmed by Borrower. Exhibit
B hereto contains a true and complete list of all patents and patent
applications of Borrower as of the date hereof, domestic and foreign. With
limitation of the terms and conditions of the Security Agreement, Borrower
hereby agrees from time to time to file any and all necessary or desirable (i)
Uniform Commercial Code filings and
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(ii) filings or recordations with the United States Patent and Trademark Office
or any other government agency, in order to perfect or maintain the perfection
and first priority of Lender's security interest in the "Collateral" as defined
in the Security Agreement.
6. MISCELLANEOUS.
a. Reference To And Effect On The Purchase Agreement.
i. On and after the date hereof, each reference in
the Purchase Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import in the Existing Loan Documents referring to the Purchase
Agreement, shall mean and be a reference to the Purchase Agreement, as amended
by this Amendment.
ii. Except as specifically amended by this Amendment,
the Purchase Agreement and the other Existing Loan Agreements shall remain in
full force and effect and are hereby ratified and confirmed.
iii. The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of the
Lender under the Purchase Agreement or any of the other Existing Loan
Agreements.
b. Headings. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
c. Applicable Law. The Amendment shall be governed by, and
shall be construed and enforced in accordance with, the internal laws of the
commonwealth of Massachusetts, without regard to conflicts of laws principles.
d. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date set forth above.
Borrower: FIBERCORE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman and CEO
Lender: AMP INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
Exhibit A - Convertible Debenture
Exhibit B - List of Patents and Patent Applications
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