WARRANT
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED
OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION WHICH IS EXEMPT FROM, OR
NOT SUBJECT TO, SUCH REGISTRATION.
April 14, 2000
Warrant to Purchase up to 300,000 Shares of Common Stock of
FiberCore, Inc. (hereinafter, the "Warrant").
FiberCore, Inc., an entity organized and existing under the
laws of the State of Nevada (the "Company"), hereby agrees that Gruntal & Co,
LLC ("Gruntal") or any other Warrant Holder is entitled, on the terms and
conditions set forth below, to purchase from the Company at any time during the
Exercise Period (hereinafter defined) up to 300,000 fully paid and nonassessable
shares of Common Stock, par value $0.001 per share, of the Company (the "Common
Stock"), as the same may be adjusted from time to time pursuant to Section 5
hereof, at the Exercise Price (hereinafter defined), as the same may be adjusted
pursuant to Section 5 hereof.
Section 1. Definitions.
"Aggregate Exercise Price" shall mean, with respect to any
exercise (in whole or in part) of this Warrant the Exercise Price multiplied by
the total number of shares of Common Stock for which this Warrant is being
exercised.
"Capital Shares" shall mean the Common Stock, and any shares
of any other class of common stock whether now or hereafter authorized, having
the right to participate in the distribution of dividends (as and when declared)
and assets (upon liquidation of the Company).
"Exercise Date" shall mean, with respect to any exercise (in
whole or in part) of this Warrant either (i) the date this Warrant, the Exercise
Notice and the Aggregate Exercise Price are received by the Company or (ii) the
date a copy of the Exercise Notice is sent by facsimile to the Company, provided
that this Warrant, the original Exercise Notice, and the Aggregate Exercise
Price are received by the Company within five Trading Days thereafter and
provided further that if this Warrant, the original Exercise Notice and the
Aggregate Exercise Price are not received within five Trading Days in accordance
with clause (ii) above, the Exercise Date for this clause (ii) shall be the date
this Warrant, the original Exercise Notice and the Aggregate Exercise Price are
received by the Company.
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"Exercise Notice" shall mean, with respect to any exercise (in
whole or in part) of this Warrant the exercise form attached hereto as Exhibit
A, duly executed by the Warrant Holder.
"Exercise Period" shall mean the period beginning on the April
14, 2000 and continuing until April 13, 2005, inclusive.
"Exercise Price" as of the date hereof shall mean $3.9062 per
share of Common Stock, subject to the adjustments provided for in Section 5 of
this Warrant.
"Outstanding" when used with reference to Common Stock or
Capital Shares (collectively, the "Shares"), shall mean, at any date as of which
the number of such Shares is to be determined, all issued and outstanding
Shares, and shall include all such Shares issuable in respect of outstanding
scrip or any certificates representing fractional interests in such Shares;
provided, however, that "Outstanding" shall not refer to any such Shares then
directly or indirectly owned or held by or for the account of the Company.
"Per Share Warrant Value" shall mean, with respect to any
exercise (in whole or in part) of this Warrant the difference resulting from
subtracting the Exercise Price from the Trade Price of one share of Common Stock
on the Trading Day immediately preceding the Exercise Date.
"Principal Market" shall mean the Nasdaq National Market, the
Nasdaq SmallCap Market, the American Stock Exchange, the Electronic Bulletin
Board or the New York Stock Exchange, whichever is at the time the principal
trading exchange or market for the Common Stock.
"Trading Day" shall mean any day during which the Principal
Market shall be open for business.
"Trade Price" shall mean the volume-weighted average price as
reported by Bloomberg L.P. using the Average Quote Recap function.
"Warrant Holder" shall mean Gruntal or any transferee or
assignee of all or any portion of this Warrant pursuant to a transfer or
assignment permitted by Section 9(d).
"Warrant Shares" means shares of Common Stock issuable upon
exercise of this Warrant.
Section 2. Exercise; Cashless Exercise.
(a) Method of Exercise. This Warrant may be exercised in whole
or in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period, by the Warrant Holder by (i) the
surrender of this Warrant, the Exercise Notice and the Aggregate Exercise Price
to the Company at the address set forth in Section 14 hereof or (ii) the
delivery by facsimile of an executed and completed Exercise Notice to the
Company and delivery to the Company within five Trading Days thereafter of this
Warrant, the original Exercise Notice and the Aggregate Exercise Price.
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(b) Payment of Aggregate Exercise Price. Subject to paragraph
(c) below, payment of the Aggregate Exercise Price shall be made by check or
bank draft payable to the order of the Company or by wire transfer to an account
designated by the Company. If the amount of the payment received by the Company
is less than the Aggregate Exercise Price, the Warrant Holder will be notified
of the deficiency and shall make payment in that amount within five Trading Days
of such notice. In the event the payment exceeds the Aggregate Exercise Price,
the Company will refund the excess to the Warrant Holder within three Trading
Days of both the receipt of such payment and the knowledge of such excess.
(c) Cashless Exercise. As an alternative to payment of the
Aggregate Exercise Price in accordance with Section 2(b), the Warrant Holder may
elect to effect a cashless exercise by so indicating on the Exercise Notice and
including a calculation of the number of shares of Common Stock to be issued
upon such exercise in accordance with the terms hereof (a "Cashless Exercise").
In the event of a Cashless Exercise, the Warrant Holder shall surrender this
Warrant for that number of shares of Common Stock determined by (i) multiplying
the number of Warrant Shares for which this Warrant is being exercised by the
Per Share Warrant Value and (ii) dividing the product by the Trade Price of one
share of the Common Stock on the Trading Day immediately preceding the Exercise
Date.
(d) Replacement Warrant. In the event that the Warrant is not
exercised in full, the number of Warrant Shares shall be reduced by the number
of such Warrant Shares for which this Warrant is exercised, and the Company, at
its expense, shall forthwith issue and deliver to the Warrant Holder a new
Warrant of like tenor in the name of the Warrant Holder or as the Warrant Holder
may request, reflecting such adjusted number of Warrant Shares.
Section 3. Delivery of Stock Certificates
(a) Subject to the terms and conditions of this Warrant, as
soon as practicable after the exercise of this Warrant in full or in part, and
in any event within five Trading Days thereafter, the Company at its expense
(including, without limitation, the payment by it of any applicable issue taxes)
will cause to be issued in the name of and delivered to the Warrant Holder, or
as the Warrant Holder may lawfully direct, a certificate or certificates for the
number of validly issued, fully paid and non-assessable Warrant Shares to which
the Warrant Holder shall be entitled on such exercise, together with any other
stock or other securities or property (including cash, where applicable) to
which the Warrant Holder is entitled upon such exercise in accordance with the
provisions hereof; provided, however, that any such delivery to a location
outside of the United States shall also be made within five Trading Days after
the exercise of this Warrant in full or in part.
(b) This Warrant may not be exercised as to fractional shares
of Common Stock. In the event that the exercise of this Warrant, in full or in
part, would result in the right to acquire any fractional share of Common Stock,
then in such event such fractional share shall be considered a whole share of
Common Stock and shall be added to the number of Warrant Shares issuable to
Gruntal upon exercise of this Warrant.
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Section 4. Representations, Warranties and Covenants of the
Company.
(a) The Company shall take all necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation for the legal and valid issuance of this Warrant and the Warrant
Shares to the Warrant Holder.
(b) At all times during the Exercise Period, the Company shall
take all steps reasonably necessary and within its control to insure that the
Common Stock remains listed or quoted on the Principal Exchange.
(c) The Warrant Shares, when issued in accordance with the
terms hereof, will be duly authorized and, when paid for or issued in accordance
with the terms hereof, shall be validly issued, fully paid and non-assessable.
(d) The Company has authorized and reserved for issuance to
the Warrant Holder the requisite number of shares of Common Stock to be issued
pursuant to this Warrant. The Company shall at all times reserve and keep
available, solely for issuance and delivery as Warrant Shares hereunder, such
shares of Common Stock as shall from time to time be issuable as Warrant Shares,
and shall accordingly adjust the number of such shares of Common Stock promptly
upon the occurrence of any of the events specified in Section 4 hereof.
Section 5. Adjustment of the Exercise Price. The Exercise
Price and, accordingly, the number of Warrant Shares issuable upon exercise of
the Warrant, shall be subject to adjustment from time to time upon the happening
of certain events as follows:
(a) Reclassification, Consolidation, Merger; Mandatory Share
Exchange; Sale Transfer or Lease of Assets. If the Company, at any time while
this Warrant is unexpired and not exercised in full, (i) reclassifies or changes
its Outstanding Capital Shares (other than a change in par value, or from par
value to no par value per share, or from no par value per share to par value or
as a result of a subdivision or combination of outstanding securities issuable
upon exercise of the Warrant) or (ii) consolidates, merges or effects a
mandatory share exchange with another corporation (other than a merger or
mandatory share exchange with another corporation in which the Company is a
continuing corporation and that does not result in any reclassification or
change, other than a change in par value, or from par value to no par value per
share, or from no par value per share to par value, or (iii) sells, transfers or
leases all or substantially all of its assets, then in any such event the
Company, or such successor or purchasing corporation, as the case may be, shall,
without payment by the Warrant Holder of any additional consideration therefor,
amend this Warrant or issue a new Warrant providing that the Warrant Holder
shall have rights not less favorable to the Warrant Holder than those then
applicable to this Warrant and to receive upon exercise under such amendment of
this Warrant or new Warrant, in lieu of each share of Common Stock theretofore
issuable upon exercise of the Warrant hereunder, the kind and amount of shares
of stock, other securities, money or property receivable upon such
reclassification, change, consolidation, merger, mandatory share exchange,
lease, sale or transfer by the holder of one share of Common Stock issuable upon
exercise of the Warrant had the Warrant been exercised immediately prior to such
reclassification, change, consolidation, merger, mandatory share exchange or
sale or transfer, and an appropriate provision for the foregoing shall be made
by the Company as part of any such event. Such amended Warrant or
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new Warrant shall provide for adjustments that shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5(a) shall similarly apply to successive
reclassifications, changes, consolidations, mergers, mandatory share exchanges,
sales, transfers and leases.
(b) Subdivision or Combination of Shares; Stock Dividends. If
the Company, at any time while this Warrant is unexpired and not exercised in
full, shall (x) subdivide its Common Stock, (y) combine its Common Stock or (z)
pay a dividend or other distribution in its Capital Shares, then the Exercise
Price shall be adjusted, as of the date the Company shall take a record of the
holders of its Capital Shares for the purpose of effecting such subdivision,
combination or dividend or other distribution (or if no such record is taken, as
of the effective date of such subdivision, combination, dividend or other
distribution), to that price determined by multiplying the Exercise Price in
effect immediately prior to such subdivision, combination, dividend or other
distribution by a fraction:
(i) the numerator of which shall be the total number of
Outstanding Capital Shares immediately prior to such subdivision,
combination, dividend or other distribution, and
(ii) the denominator of which shall be the total number of
Outstanding Capital Shares immediately after such subdivision,
combination, dividend or other distribution. The provisions of this
Section 5(b) shall not apply under any of the circumstances for which a
adjustment is made pursuant to Section 5(a).
(c) Liquidating Dividends, Etc. If the Company, at any time
while this Warrant is unexpired and not exercised in full, makes a distribution
of its assets or evidences of indebtedness to the holders of its Capital Shares
as a dividend in liquidation or by way of return of capital or other than as a
dividend payable out of earnings or surplus legally available for dividends
under applicable law or any distribution to such holders made in respect of the
sale of all or substantially all of the Company's assets (other than under the
circumstances provided for in the foregoing subsections (a) and (b) while an
exercise is pending, then the Warrant Holder shall be entitled to receive upon
such exercise of the Warrant in addition to the Warrant Shares receivable in
connection therewith, and without payment of any consideration other than the
Exercise Price, an amount in cash equal to the value of such distribution per
Capital Share multiplied by the number of Warrant Shares that, on the record
date for such distribution, are issuable upon such exercise of the Warrant, and
an appropriate provision therefor shall be made by the Company as part of any
such distribution. No further adjustment shall be made following any event that
causes a subsequent adjustment in the number of Warrant Shares issuable. The
value of a distribution that is paid in other than cash shall be determined in
good faith by the Board of Directors of the Company.
(d) Adjustment of Number of Shares. Upon each adjustment of
the Exercise Price pursuant to any provisions of this Section 5, the number of
Warrant Shares issuable hereunder at the option of the Warrant Holder shall be
calculated, to the nearest one hundredth of a whole share, multiplying the
number of Warrant Shares issuable prior to an adjustment by a fraction:
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(i) the numerator of which shall be the Exercise Price before
any adjustment pursuant to this Section 5; and
(ii) the denominator of which shall be the Exercise Price
after such adjustment.
(e) Notice of Certain Actions; Notice of Adjustments.
(i) In the event the Company shall, at a time while the
Warrant is unexpired and outstanding, take any action pursuant to
subsections (a) through (d) of this Section 5 that may result in an
adjustment of the Exercise Price, the Company shall notify the Warrant
Holder of such action 10 days in advance of its effective date in order
to afford to the Warrant Holder an opportunity to exercise the Warrant
prior to such action becoming effective.
(ii) Notice of Adjustments. Whenever the Exercise Price or
number of Warrant Shares shall be adjusted pursuant to Section 5
hereof, the Company shall promptly deliver by facsimile, with the
original delivered by express courier service in accordance with
Section 14 hereof, a certificate, which shall be signed by the
Company's President or a Vice President and by its Treasurer or
Assistant Treasurer or its Secretary or Assistant Secretary, setting
forth in reasonable detail the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was
calculated (including a description of the basis on which the Company's
Board of Directors made any determination hereunder), and the Exercise
Price and number of Warrant Shares purchasable at that Exercise Price
after giving effect to such adjustment.
Section 6. No Impairment. The Company will not, by amendment
of its Articles of Incorporation or By-Laws or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the Warrant Holder hereunder. Without limiting the generality of the foregoing,
the Company (a) will not increase the par value of any Warrant Shares above the
amount payable therefor on such exercise, and (b) will take all such action as
may be reasonably necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant.
Section 7. Rights As Stockholder. Prior to exercise of this
Warrant and except as provided in Section 5 hereof, the Warrant Holder shall not
be entitled to any rights as a stockholder of the Company with respect to the
Warrant Shares, including (without limitation) the right to vote such shares,
receive dividends or other distributions thereon or be notified of stockholder
meetings. However, in the event of any taking by the Company of a record of the
holders of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend (other than a cash dividend) or
other distribution, any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Company shall mail to each Warrant Holder, at least
ten days prior to the date specified therein, a notice specifying the date on
which
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any such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
Section 8. Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant and, in the case of any such loss, theft or
destruction of the Warrant, upon delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company or, in the case of any
such mutilation, on surrender and cancellation of such Warrant, the Company at
its expense will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
Section 9. Restricted Securities.
(a) Registration or Exemption Required. This Warrant has been
issued in a transaction exempt from the registration requirements of the
Securities Act in reliance upon the provisions of Section 4(2) promulgated by
the SEC under the Securities Act. This Warrant and the Warrant Shares issuable
upon exercise of this Warrant may not be resold except pursuant to an effective
registration statement or an exemption to the registration requirements of the
Securities Act and applicable state laws.
(b) Legend. Any replacement Warrants issued pursuant to
Section 2 hereof and any Warrant Shares issued upon exercise hereof, shall bear
the legend set forth at the head of this Warrant:
Such legend shall only be removed in the event that the security which would
otherwise bear such legend is registered pursuant to the Securities Act and the
party seeking to remove such legend provides the Company with an opinion of
counsel, which opinion shall be satisfactory to the Company, stating the removal
of such legend is appropriate.
(c) No Other Legend or Stock Transfer Restrictions. No legend
other than the one specified in Section 9(b) has been or shall be placed on the
share certificates representing the Warrant Shares and no instructions or "stop
transfer orders," so called, "stock transfer restrictions" or other restrictions
have been or shall be given to the Company's transfer agent with respect thereto
other than as expressly set forth in this Section 9.
(d) Assignment. This Warrant may not be sold, transferred,
assigned, or hypothecated in whole or in part, provided, however, that the
Warrant Holder may transfer or assign this Warrant if the conditions of Section
9(a) above regarding registration or exemption have been satisfied, and such
transfer or assignment is made (i) to one or more officers, members, or
employees of Gruntal (or the officers, members or employees of any such member);
(ii) to a successor to a Warrant Holder or the officers, members or employees of
such successor; (iii) to a purchaser of substantially all of the assets of a
Warrant Holder; or (iv) by operation of law, and provided further that no
transfer or assignment of this Warrant shall be valid unless the transferring or
assigning Warrant Holder delivers a written notice to the Company substantially
in the form of the assignment form attached hereto as Exhibit B (the "Assignment
Notice") indicating the person or persons to whom this Warrant shall be
transferred or assigned and the respective number of warrants to be assigned to
each assignee.
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(e) Warrant Holder's Compliance. Nothing in this Section 9
shall affect in any way The Warrant Holder's obligations under any agreement to
comply with all applicable securities laws upon resale of the Common Stock.
Section 10. Demand Registration.
(a) Demand Registration. Subject to the conditions in this
Warrant, if the Company shall receive a written request from the Warrant Holder
that the Company file a registration statement under the Securities Act covering
the registration of all or part of the Warrant Shares now or hereafter held by
the Warrant Holder, then the Company shall, subject to the limitations in this
Warrant, use commercially reasonable efforts to effect, as soon as practicable,
the registration under the Securities Act of all Warrant Shares that the Holder
requests to be registered.
(b) Underwriting. If the Warrant Holder intends to distribute
the Warrant Shares covered by its request by means of an underwriting, the
Warrant Holder shall so advise the Company as a part of its request made
pursuant to this Section 10 and the Company shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Warrant Holder (which underwriter or underwriters shall
be reasonably acceptable to the Company).
(c) Limitations. The Company shall not be required to effect a
registration pursuant to this Section 10:
(i) after the Company has effected one registration pursuant
to this Section 10, and such registration has been declared or ordered
effective;
(ii) if the Company shall furnish to the Warrant Holder
requesting a registration pursuant to this Section 10, a certificate
signed by the Chairman of the Board stating that in the good faith
judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such
registration to be effected at such time, in which event the Company
shall have the right to defer such filing for a period of not more than
90 days after receipt of the request of the Holder; or
(iii) unless such registration is for the resale of all of the
Warrant Shares.
(d) Agreement to Indemnify. By delivering any notice to the
Company requesting that the Company register shares pursuant to this Section 10,
the Warrant Holder delivering such notice shall be deemed to consent to the
indemnification provisions set forth in Section 12(d).
Section 11. Piggyback Registration.
(a) Piggyback Registration. The Company shall notify the
Warrant Holder in writing at least 30 days prior to the filing of any
registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or with respect to corporate
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reorganizations or other transactions under Rule 145 of the Securities Act) and
will afford the Warrant Holder an opportunity to include in such registration
statement all or part of the Warrant Shares. If the Warrant Holder desires to
include in any such registration statement all or any part of the Warrant
Shares, it shall notify the Company in writing within 15 days after the
above-described notice from the Company. Such notice shall state the intended
method of disposition of the Warrant Shares by such Warrant Holder. If the
Warrant Holder decides not to include all of the Warrant Shares in any
registration statement thereafter filed by the Company, such Warrant Holder
shall nevertheless continue to have the right to include Warrant Shares that
were excluded from prior registration statements in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of it securities, all upon the terms and conditions set forth
herein.
(b) Underwriting. If the registration statement under which
the Company gives notice under this Section 11 is for an underwritten offering,
the Company shall so advise the Holder. In such event, the right of the Warrant
Holder to be included in a registration pursuant to this Section 11 shall be
conditioned upon such Holder's participation in such underwriting, the inclusion
of such Warrant Holder's Warrant Shares in the underwriting to the extent
provided herein and the Warrant Holder entering into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
11, if the underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, the number of shares that
may be included in the underwriting shall be allocated, subject to Section 12,
first, to the Company; second, to the Warrant Holder and to any shareholder of
the Company (other than the Warrant Holder) on a pro rata basis. No such
reduction shall reduce the securities being offered by the Company for its own
account to be included in the registration and underwriting.
(c) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 11 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The expenses of
such withdrawn registration shall be borne by the Company.
(d) Agreement to Indemnify. By delivering any notice to the
Company requesting that the Company register shares pursuant to this Section 11,
the Warrant Holder delivering such notice shall be deemed to consent to the
indemnification provisions set forth in Section 12(d).
Section 12. General Limitation on Registration Rights.
Notwithstanding any other provision herein, this Warrant shall not:
(a) obligate the Company to maintain the effectiveness of any
registration statement registering Warrant Shares for a period longer than 90
days after the date on which the Warrant Holder is able to freely trade the
Warrant Shares being registered pursuant to such registration statement;
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(b) obligate the Company to effect, or include Warrant Shares
in, a registration after April 13, 2005;
(c) obligate the Company to effect a registration statement
with respect to Warrant Shares previously registered pursuant to an effective
registration statement but which were not sold by the Warrant Holder; or
(d) confer any registration rights to the Warrant Holder where
such rights would conflict with any rights held by (i) Crescent International
Ltd. ("Crescent") pursuant to agreements between the Company and Crescent
entered into on or after June 9, 2000 or (ii) Tyco Electronics Corporation.
Section 13. Indemnification.
(a) Indemnification by the Company. In the event that,
pursuant to this Warrant, any Warrant Shares are included in a registration
statement, to the extent permitted by law, the Company will indemnify and hold
harmless the Warrant Holder, its directors and officers, and any underwriter (as
defined in the Securities Act) for the Warrant Holder and each person, if any,
who controls the Warrant Holder or such underwriter within the meaning of the
Securities Act, from and against, and will reimburse (from time to time upon
request) the Warrant Holder and its directors and officers and each such
underwriter and controlling person with respect to, any and all loss, damage,
liability, cost and expense to which the Warrant Holder or any such underwriter
or controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by such indemnified person in
writing specifically for use in the preparation thereof.
(b) Indemnification by Warrant Holder. To the extent permitted
by law, the Warrant Holder will indemnify and hold harmless the Company, each of
its directors and each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter, any other selling security holder in such
registration statement and any controlling person of any such underwriter or
other selling security holder, with respect to, any and all loss, damage,
liability, cost and expense to which the Company or any such underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses arise out of or
are related to written information furnished by such Warrant Holder expressly
for use in connection with such registration.
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(c) Limit on Indemnification. provided, that in no event shall
any indemnity by the Company or the Warrant Holder under this Section 12(d)
exceed the net proceeds received by the Company upon exercise of this Warrant.
(d) Indemnification Procedure. Promptly after receipt by a
party entitled to indemnification under this Section 12(d) of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of this Section
12(d), promptly notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party and it notifies the
indemnifying party promptly of the commencement thereof, the indemnifying party
shall have the right to participate in and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any action include both the
indemnified party and the indemnifying party, and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, or if there is a conflict of interest which
would prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties shall have the right to
select separate counsel to participate in the defense of such action on behalf
of such indemnified party or parties. After notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of this Section 12(d) for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation, unless (i) the indemnified party shall
have employed counsel in accordance with the proviso of the preceding sentence,
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
Section 14. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and shall be deemed duly given (i) upon delivery if hand delivered at
the address designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received), (ii) on the fifth business
day after deposit into the mail, if deposited in the mail, registered or
certified, return receipt requested, postage prepaid, addressed to the address
designated below, (iii) upon delivery if delivered by reputable express courier
service to the address designated below, or (iv) upon confirmation of
transmission if transmitted by facsimile to the facsimile number designated
below (if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours where such
notice is to be received). The addresses and facsimile numbers for such
communications shall be:
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if to the Company:
FiberCore, Inc.
253 Worcester Rd.
P.O. Box 180
Charlton, MA 01507
Attention: Chief Financial Officer
Telephone: (508) 248-3900
Facsimile: (508) 248-5588
if to Gruntal:
Gruntal & Co. LLC
1 Liberty Plaza
New York, NY 10006
Attention: William J. McClusky
Telephone: (212) 820-8350
Facsimile: (212) 820-8240
Either party hereto may from time to time change its address
or facsimile number for notices under this Section 14 by giving at least 10
days' prior written notice of such changed address or facsimile number to the
other party hereto.
Section 15. Miscellaneous. This Warrant and any term hereof
may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such change, waiver,
discharge or termination is sought. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof. The invalidity or unenforceability of any provision hereof shall
in no way affect the validity or enforceability of any other provision.
Section 16. Survival. The obligations of the Company and the
Warrant Holder under Section 10, Section 11 Section 12 and Section 12(d) shall
survive the last exercise of this Warrant (or a replacement warrant issued
pursuant to this Warrant) for two years.
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IN WITNESS WHEREOF, this Warrant was duly executed by the
undersigned, thereunto duly authorized, as of the date first set forth above.
FiberCore, Inc.
By: ____________________________________
Name:
Title:
Attested:
By: _________________________________
Name:
Title:
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EXHIBIT A TO THE WARRANT
EXERCISE FORM
FIBERCORE, INC.
The undersigned (the "Registered Holder") hereby irrevocably
exercises the right to purchase __________________ shares of Common Stock of
FiberCore, Inc., an entity organized and existing under the laws of the State of
Nevada (the "Company"), evidenced by the attached Warrant, and herewith makes
payment of the Exercise Price with respect to such shares in full in the form of
(check the appropriate box) (i) by cash or certified check in the amount of
$________; (ii) by wire transfer to the Company's account at __________________,
_________, _________ (Account No.: _________); or (iii) by ______ Warrant
Shares, which represent the amount of Warrant Shares as provided in the attached
Warrant to be canceled in connection with such exercise, all in accordance with
the conditions and provisions of said Warrant.
By delivering this notice, the undersigned agrees to be
subject to the terms and conditions of the attached Warrant.
The undersigned requests that stock certificates for such
Warrant Shares be issued, and any Warrant representing any unexercised portion
hereof be issued, pursuant to this Warrant in the name of the Registered Holder
and delivered to the undersigned at the address set forth below.
Dated:_____________________________
___________________________________
Signature of Registered Holder
___________________________________
Name of Registered Holder (Print)
___________________________________
Address
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NOTICE
The signature to the foregoing Exercise Form must correspond
to the name as written upon the face of the attached Warrant in every
particular, without alteration or enlargement or any change whatsoever.
15
<PAGE>
EXHIBIT B TO THE WARRANT
ASSIGNMENT
(To be executed by the registered Warrant Holder (the
"Registered Holder") desiring to transfer the Warrant, in whole or in part.)
FOR VALUED RECEIVED, the undersigned Warrant Holder of the
attached Warrant hereby sells, assigns or transfers unto the person(s) named
below (the "Assignee") the right to purchase ______________ shares of the Common
Stock of FiberCore, Inc. evidenced by the attached Warrant and does hereby
irrevocably constitute and appoint ______________________ (attorney) to transfer
the number of shares specified of the said Warrant on the books of the Company,
with full power of substitution in the premises.
The undersigned requests that such Warrant be issued, and any
Warrant representing any unsold, unassigned or non-transferred portion hereof be
issued, pursuant to this Warrant in the name of the Registered Holder and
delivered to the undersigned at the address set forth below.
Dated:_____________________________
___________________________________
Signature of Registered Holder
___________________________________
Name of Registered Holder (Print)
___________________________________
Address of Registered Holder
___________________________________
Name of Assignee (Print)
___________________________________
Address of Assignee (including zip code number)
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Fill in for new Registration of Warrant:
___________________________________
Name
___________________________________
Address
___________________________________
Please print name and address of assignee
(including zip code number)
17
<PAGE>
NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the face of the attached Warrant in every particular,
without alteration or enlargement or any change whatsoever.
