UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
AN-CON GENETICS, INC.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
032347205
(CUSIP Number)
Mr. Norman P. Fuchs Irwin A. Kishner, Esq.
5 Flagpole Lane Herrick, Feinstein LLP
East Setauket, New York 10598 2 Park Avenue
Tel.: (516) 751-7026 New York, New York 10016
(212) 592-1400
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 9, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box .
Check the following box if a fee is being paid with the statement . (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filed out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
Page 1 of 5 Pages<PAGE>
CUSIP NO. 032347205 13D Page 2 of 5 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Norman P. Fuchs
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
1,125,000 shares of Common Stock
8 SHARED VOTING POWER
None
9 SOLE DISPOSITIVE POWER
1,125,000 shares of Common Stock
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,125,000 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.4%
14 TYPE OF REPORTING PERSON*
IN
* SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION<PAGE>
PART II TO SCHEDULE 13D
Item
1. Security and Issuer
Shares of Common Stock
An-Con Genetics, Inc.
One Huntington Quadrangle
Suite 1N11
Melville, New York 11747
(hereinafter, the "Issuer")
Item 2. Identity and Background
(1) (a) Name: Norman P. Fuchs
(b) Residence: 5 Flagpole Lane, East Setauket, New York 10598
(c) Mr. Fuchs is a senior investment banker and senior research analyst
with M.H. Meyerson & Co., 525 Washington Boulevard, Jersey City,
New Jersey 07303-0260.
(d) Information required by Item 2(d): None.
(e) Information required by Item 2(e): None.
(f) United States of America
Item 3. Source and Amount of Funds or Other Consideration
Mr. Fuchs acquired the securities in accordance with the terms and
provisions of the Securities Exchange Agreement described in Item
5(a), pursuant to which Mr. Fuchs through his individual retirement
account ("IRA") acquired the shares of common stock (the "Common
Stock") the Issuer in exchange for 112.5 shares of common stock of
BSD Development Beta Corporation ("BSD").
Item 4. Purpose of Transaction
(a) The shares of Common Stock of the Issuer were acquired for equity
participation in the Issuer for short-term or long-term investment
and with a view to the short-term resale of a portion of such shares
of Common Stock.
Immediately following the consummation of the securities exchange
agreement described in Item 5 (a), BSD became a wholly owned
subsidiary of the Issuer. At such time the assets of BSD included
certain equipment, licensing arrangements and other intangible
rights, cash in the amount of $250,000, and a $750,000 aggregate
principal amount promissory note due May 10, 1998.
In addition, in connection with the acquisition of the Issuer's
securities, the IRA entered into a Profit Sharing Agreement with
Advanced Refractory Technologies, Inc. ("ART") and the Eric Rainer
Bashford Charitable Remainder Unitrust (the "Trust") pursuant to
which ART has agreed to share with the IRA and the Trust certain
gains realized by ART on the sale or other disposition (other than
a pledge or grant of a lien or security interest) of all or a
portion of certain securities of the Issuer owned by ART to a third
person (other than an affiliate of ART) up to an aggregate maximum
amount of $1,000,000. Any such profit is to be shared equally
between the IRA and the Trust.
Page 3 of 5 Pages
In addition, ART has granted to the IRA and the Trust a right of
first refusal with respect to any proposed sale or other
disposition (other than a pledge or a grant of a lien or security
interest) of any of those certain securities of the Issuer owned by
ART to a third person (other than and affiliate of ART) at a price
below the then current fair market value of such shares.
Notwithstanding the foregoing, other than the right to participate
in the realized gains described above, neither the IRA nor the
Trust has any voting or investment power or any other rights with
respect to the securities of the Issuer owned by ART.
(b)-(j) The undersigned has no plans or proposals which would result in
any of the actions enumerated in Item 4(b) through (j) of
Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a) Norman P. Fuchs is the sole creator and owner of the Norman P.
Fuchs Individual Retirement Account , (the "IRA"), which on February
9, 1998 acquired 1,125,000 shares of Common Stock of the Issuer,
representing approximately 8.4% of such class of securities of the
Issuer. The acquisition of such Common Stock by the IRA was
pursuant to the terms and conditions of the Securities Exchange
Agreement, executed and delivered on February 9, 1998 among the
Issuer and the IRA and other securities holders of BSD. The IRA
exchanged 112.5 shares of common stock of BSD for the shares of
Common Stock of the Issuer. The exchange was consummated in
New York, New York.
(b) As the sole creator and owner of the IRA, the undersigned has the
sole power to vote or to direct the vote and the sole power to
dispose or to direct the disposition of the shares of Common
Stock.
(c) None.
(d) None.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
The shares of Common Stock of the Issuer are subject to a Registration
Rights Agreement dated February 9, 1998 among the Issuer, the IRA and certain
other stockholders of the Issuer.
Fuchs has agreed, until February 8, 1999, to vote his shares of common
stock the Issuer which are registered in his name (or in the name of the IRA) in
accordance with the written instructions of a majority of the Board of Directors
of the Issuer or pursuant to its order.
The shares of common stock of the Issuer are not registered under the
Securities Act of 1933, as amended, and are subject to certain transfer
restrictions by the Issuer and applicable law.
Item 7. Materials to be Filed as Exhibits
A. Profit-Sharing Agreement by and among the Norman P. Fuchs Individual
Retirement Account, the Eric Rainer Bashford Charitable Remainder Unitrust, and
Advanced Refractory Technologies, Inc., dated February 9, 1998.
Page 4 of 5 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
NORMAN P. FUCHS
February 19, 1998 By: /s/ Norman P. Fuchs
Date Signature
Name: Norman P. Fuchs
Page 5 of 5 Pages
PROFIT-SHARING AGREEMENT
THIS PROFIT-SHARING AGREEMENT ("Agreement")
is made this 9th day of February, 1998 by and
among ADVANCED REFRACTORY TECHNOLOGIES, INC., a
corporation duly organized. and existing under the
laws of the State of New York, having its
principal office at 699 Hertel Avenue, Buffalo,
New York ("ART") the ERIC RAINER BASHFORD
CHARITABLE REMAINDER UNITRUST, a trust duly
organized and existing under the laws of the State
of New York, having its principal office at 2689
Strang Boulevard, Yorktown Heights, New York
("Bashford") and the NORMAN P. FUCHS INDIVIDUAL
RETIREMENT ACCOUNT, an individual retirement
account, having its principal office at 5 Flagpole
Lane, East Setauket, New York ("Fuchs"). (Bashford
and Fuchs are collectively referred to herein as
the "Principals".)
WHEREAS, pursuant to that certain Stock
Exchange Agreement by and among ART, An-Con
Genetics, Inc. ("An-Con") and BSD Development Beta
Corporation ("BSD"), dated February 9, 1998 ("Stock
Exchange Agreement"), in exchange for One Thousand
(1,000) shares of Class A preferred stock of BSD,
par value $.01 per share, An-Con issued and
delivered to ART Two Million (2,000,000) shares of
common stock of An-Con, par value $.001 per share
(collectively, the "An-Con Shares");
WHEREAS, pursuant to Section 6.7 of the Stock
Exchange Agreement, An-Con has agreed to issue and
deliver to ART on or before September 6, 1998, Two
Million (2,000,000) shares of An-Con Class A
preferred stock, par value $.001 per share
(collectively, the "An-Con Preferred Stock");
WHEREAS, the An-Con Preferred Stock is to be
convertible into Two Million (2,000,000) shares of
common stock of An-Con, par value $.001 per share
(collectively, the "An-Con Conversion Shares");
and
WHEREAS, subject to the terms hereof, and in
consideration for, inter alia, certain substantial
financial risks assumed by the Principals, ART
desires to grant to the Principals a right to
share in the potential profits, if any, realized
by ART upon the sale or other disposition (other
than a pledge or a grant of a lien or security
interest), of the An-Con Shares, the An-Con
Preferred Stock or the An-Con Conversion Shares,
as the case may be, to a third Person other than
an Affiliate of ART. (The An-Con Shares, the An-
Con Preferred Stock and the An-Con Conversion
Shares are sometimes hereinafter referred to
individually as a "Share" and collectively as the
"Shares").
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto
(each individually, a "Party"; collectively, the
"Parties" hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. For purposes of this
Agreement, the following terms shall have the
respective meanings set forth below:
a. "Affiliate" of a Party means any
Person (as hereinafter defined) which Controls (as
hereinafter defined), is Controlled by, or is
under common Control with, such Party.
b. "Applicable Law" means any and all
applicable laws, rules, regulations, statutes,
orders and ordinances of any Government Authority
(as hereinafter defined).
c. "Consent" means any consent,
certificate, approval, authorization, waiver,
permit, grant, franchise, concession, agreement,
license, exemption or order of, registration,
declaration or filing with, or report, filing,
registration or notice to, any Person, including,
without limitation, any Government Authority.
d. "Control" means the possession,
directly or indirectly, of the power to direct or
cause the direction of management or policies of a
Person, whether through the ownership of voting
securities, by contract or otherwise.
e. "Government Authority" means any
foreign, federal, state, local or other
government, government agency or authority or
quasi-governmental body, or any entity exercising
any executive, legislative, judicial, regulatory
or administrative functions of or pertaining to
government, including, without limitation, any
arbitrator and any government department, board,
commission, court or tribunal.
f. "Fair Market Value" for shares of
common stock of An-Con, par value $.001 per share
("An-Con Common Stock") as of a particular date
means the closing sale price for One (1) share of
An-Con Common Stock as reported on the primary
securities exchange on which such shares are
listed or, in the event shares of An-Con Common
Stock are not listed on any securities exchange,
the last reported sale price on the NASDAQ
National Market System ("NASDAQ/NMS") or, in the
event no such reported sale takes place on the day
subject to determination of the Fair Market Value,
the average of the reported closing bid and asked
prices on such securities exchange or NASDAQ/NMS,
or, in the event shares of An-Con Common Stock are
not listed on any securities exchange or quoted on
the NASDAQ/NMS, the average of the bid and asked
prices for the immediately preceding Forty-Five
(45) days as quoted on the NASDAQ Small Cap
Market, or in the event shares of An-Con Common
Stock are not quoted on the NASDAQ Small Cap
Market, the average of the bona fide independent
bid prices for the immediately preceding Forty-
Five (45) days as reported in the NASDAQ Bulletin
Board, or in the event shares of An-Con Common
Stock are not reported in the NASDAQ Bulletin
Board, the average of the bona fide independent
bid prices for the immediately preceding Forty-
Five (45) days reported in the "over-the-counter"
market in the "pink sheets" published by the
National Quotation Bureau, Inc., or in the event
shares of An-Con Common Stock are not so listed,
quoted or included, the fair market value as
established by the good faith determination of any
nationally recognized firm of certified public
accountants selected by ART and reasonably
acceptable to the Principals. The Fair Market
Value of the An-Con Preferred Stock shall equal
the Fair Market Value of the applicable number of
shares of An-Con Common Stock into which the An-
Con Preferred Stock is convertible.
g. "Person" means any individual,
proprietorship, joint venture, corporation,
partnership, limited liability company, limited
liability partnership, trust, unincorporated
organization or Government Authority.
ARTICLE 2
PROFIT-SHARING ARRANGEMENT
2.1 Calculation. During the Term (as
hereinafter defined), in the event ART receives
cash in good funds (collectively, the "Proceeds"')
as a result of: (a) the sale or other disposition
(other than a pledge or a grant of a lien or
security interest) of all or any portion of the
An-Con Shares, the An-Con Preferred Stock or the
An-Con Conversion Shares to a third Person other
than an Affiliate of ART; (b) the sale or other
disposition (other than a pledge or a grant of a
lien or security interest) of any securities or
other property received upon or as a result of,
any sale, exchange or other disposition (other
than a pledge or a grant of a lien or security
interest) of the An-Con Shares, the An-Con
Preferred Shares or the An-Con Conversion Shares
to a third Person other than an Affiliate of ART;
or (c) the distribution to ART of cash in excess
of the liquidation preference attributable to the
An-Con Preferred Stock, as a result of the
dissolution or liquidation of An-Con; then, in any
such event, ART shall promptly pay to the
Principals as provided in Section 2.2, an amount
equal to Fifty-Percent (50%) of any Proceeds
received by ART in excess of One Dollar ($1.00)
per Share ("Share Cost"); provided, however, that
in the event An-Con shall: (i) declare and pay to
the holders of the An-Con Shares, the An-Con
Preferred Shares or the An-Con Conversion Shares,
as the case may be, a dividend or other
distribution payable in shares of An-Con equity
securities; (ii) subdivide the outstanding An-Con
Shares, An-Con Preferred Shares or An-Con
Conversion Shares, as the case may be, into a
greater number of such shares; (iii) combine the
outstanding An-Con Shares, An-Con Preferred Shares
or An-Con Conversion Shares, as the case may be,
into a lesser number of such shares; or (iv)
effect by a recapitalization, reorganization,
reclassification or the like, a transaction having
an equivalent effect; then, in any such event, the
Share Cost shall be correspondingly adjusted; and
provided further, however, notwithstanding
anything to the contrary contained herein, the
maximum aggregate payment to be made by ART to the
Principals pursuant to this Agreement shall be One
Million Dollars ($1,000,000.00).
2.2 Payments to Principals. Any payments
required to be made by ART to the Principals
pursuant to Section 2. 1, shall be paid as
follows: (a) One-Half to Bashford; and (b)
One-Half to Fuchs.
2.3 Term. The term of this Agreement
("Term") shall commence on the date hereof and
shall expire on the earlier of: (a) the date on
which ART has paid the Principals hereunder an
aggregate of One Million Dollars ($1,000,000.00);
(b) such date as ART shall have sold or otherwise
disposed of (other than a pledge or a grant of a
lien or security interest) to a third Person other
than an Affiliate of ART, all of the Shares and
any securities or other property received upon or
as a result of, any sale, exchange or other
disposition (other than a pledge or a grant of a
lien or security interest) of any Shares to a
third Person other than an Affiliate of ART, and
ART has received the Proceeds related thereto and
has paid to the Principals all amounts to which
they are entitled pursuant to Section 2. 1; or (c)
the date of distribution to ART of cash in excess
of the liquidation preference attributable to the
An-Con Preferred Stock, as a result of the
dissolution or liquidation of An-Con and ART has
received the Proceeds related thereto and has paid
to the Principals all amounts to which they are
entitled pursuant to Section 2. 1.
2.4 Right of First Refusal. In the event
that during the Term, ART shall desire to sell or
otherwise dispose (other than a pledge or a grant
of a lien or security interest) of any Shares to a
third Person other than an Affiliate of ART at
below Fair Market Value ("Prospective Sale"), then
ART shall, unless prohibited by Applicable Law,
promptly give written notice of the Prospective
Sale ("Notice of Prospective Sale") to the
Principals. The Notice of Prospective Sale shall
set forth all material terms and conditions of the
Prospective Sale (including, without limitation,
the identity of the third Person, if any), and
shall constitute an offer by ART to sell such
Shares to the Principals upon the same terms and
conditions set forth in the Notice of the
Prospective Sale. Upon receipt of the Notice of
Prospective Sale from ART and at any time within
Thirty (30) days thereafter ("Election Period"),
the Principals shall have the right to elect in
writing (upon notice to ART) ("Election") to
purchase such Shares upon the same terms and
conditions contained in the Notice of Prospective
Sale ("Right of First Refusal"), and if the
Principals make an Election, the Principals shall
have a period of Ninety (90) days after the
Election to purchase such Shares from ART. The
purchase and sale of such Shares shall be
consummated by the Principals' payment to ART of
the aggregate amount of the cash portion of the
purchase price of such Shares (adjusted to account
for any amounts ART is required to pay the
Principals pursuant to Section 2.1) by wire
transfer of immediately available funds to an
account designated by ART and by delivery to ART
to the non-cash portion of such purchase price, if
any, free and clear of all liens and encumbrances
of any kind, upon ART's delivery to the Principals
of certificates representing the Shares to be
purchased, duly endorsed in blank and in proper
form for transfer to the Principals, free and
clear of any liens and encumbrances of any kind
created by ART. In the event: (a) the Principals
decline to purchase such Shares by notice in
writing to ART during the Election Period; (b) the
Principals fail to notify ART within the Election
Period of its election to purchase such Shares; or
(c) the Principals give ART notice of its Election
to purchase such Shares during the Election Period
but the Principals and ART fail to consummate such
purchase and sale as provided above; then, in any
one of such events, ART shall have the right to
consummate the Prospective Sale to a third Person
(which, in the event the identity of a third
Person is set forth in the Notice of Prospective
Sale, shall be to such third Person), upon the
terms and conditions set forth in the Notice of
Prospective Sale, but at a price per Share equal
to or greater than the price per Share set forth
in the Notice of Prospective Sale, but only if the
Prospective Sale is consummated within a further
One Hundred Eighty (180) day period following the
latest to occur of the events referred to in
clauses (a) through (c) above. If such Prospective
Sale is not consummated within said further One
Hundred Eighty (180) day period, the Right Of
First Refusal set forth in this Section 2.4 shall
again apply.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ART
ART hereby represents and warrants to the
Principals, as of the date hereof, as follows:
3.1 Standing. ART is a corporation duly
organized and validly existing under the laws of
the State of New York. ART has all requisite
corporate power and authority to conduct its
business as it is now being conducted and as
presently contemplated to be conducted and to
carry out the transactions contemplated in this
Agreement.
3.2 Authority. The execution and delivery
of this Agreement and the consummation of the
transactions contemplated herein have been duly
authorized by all necessary corporate action of
ART, and ART has all requisite corporate power and
authority to execute, deliver and perform this
Agreement. This Agreement has been duly executed
and delivered by ART and constitutes a legal,
valid and binding agreement of ART enforceable in
accordance with its terms (except as its
enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to
or affecting enforcement of creditors' rights or
the application of equitable principles in any
action, legal or equitable). ART has full power
and authority to perform its obligations under
this Agreement and the transactions contemplated
herein.
3.3 No Conflicts. Neither the execution,
delivery or performance of this Agreement nor the
consummation of the transactions contemplated
herein, will conflict with or constitute a breach
of or a default under, or an event which, with or
without notice or lapse of time, or both, would be
a breach of, default under or violation of: (a)
ART's Certificate of Incorporation or By-Laws; or
(b) any agreement, document, indenture, mortgage
or other instrument or undertaking to which ART is
a party or to which any of its properties is
subject, which breach, default or violation would
have a material adverse effect, financial or
otherwise, on ART or would be a material violation
of any Applicable Law relating to ART.
3.4 Litigation. There is not now pending
and, to the best of ART's knowledge, there is not
threatened nor is there any basis for, any claim,
demand, litigation, arbitration, action, suit,
inquiry, investigation or proceeding by or before
any Government Authority to which ART is or may be
a party, and which: (a) may result in a material
adverse effect, financial or otherwise, on the
condition or prospects of ART; (b) may threaten
the validity of this Agreement; or (c) seeks to
prevent, or if successful would prevent, ART from
consummating the transactions contemplated in this
Agreement. ART is not subject to any judgment,
decree, injunction, rule, decision or order of any
Government Authority having, or which, insofar as
can be foreseen in the future, may have, any
material adverse effect, financial or otherwise,
on the condition or prospects of ART.
3.5 Consents. There is no Consent necessary
or required in connection with the valid
execution, delivery and performance by ART of this
Agreement and the consummation of the transactions
contemplated herein.
3.6 Compliance with Law. ART has complied
in all material respects with all Applicable Law
relating to ART, and no claims have been made to
or against ART by any Person to the contrary. ART
has received no notice of any violation of or
noncompliance with any Applicable Law which has
not been cured, which violation or noncompliance
would have a material adverse effect, financial or
otherwise, on the condition or prospects of ART.
3.7 Brokers. No agent, finder, broker,
investment banker or other Person acting under the
authority of ART is or will be entitled to any
broker's fee or finder's fee or any other
commission or similar fee, directly or indirectly,
from ART or any Affiliate of ART as a result of
the transaction contemplated in this Agreement.
3.8 General Warranty. No representation or
warranty by ART in this Agreement and no statement
contained in any document, statement or
certificate furnished to the Principals by ART in
connection with the transactions contemplated in
this Agreement, contains any untrue statement of a
material fact or omits to state a material fact
necessary to make the statements contained or
incorporated herein not misleading. All documents,
instruments and certificates delivered by or on
behalf of ART in connection with this Agreement
and the transactions contemplated herein are true,
correct and complete in an material respects.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BASHFORD
Bashford hereby represents and warrants to
ART, as of the date hereof, as follows:
4.1 Standing. Bashford is a trust duly
organized and validly existing under the laws of
the State of New York. Bashford has all requisite
power and authority to carry out the transactions
contemplated in this Agreement.
4.2 Authority. The execution and delivery
of this Agreement and the consummation of the
transactions contemplated herein have been duly
authorized by all necessary action of Bashford,
and Bashford has all requisite power and authority
to execute, deliver and perform this Agreement.
This Agreement has been duly executed and
delivered by Bashford and constitutes a legal,
valid and binding agreement of Bashford,
enforceable in accordance with its terms (except
as its enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to
or affecting enforcement of creditors' rights or
the application of equitable principles in any
action, legal or equitable). Bashford has full
power and authority to perform its obligations
under this Agreement and the transactions
contemplated herein.
4.3 No Conflicts. Neither the execution,
delivery or performance of this Agreement nor the
consummation of the transactions contemplated
herein, will conflict with or constitute a breach
of or a default under, or an event which, with or
without notice or lapse of time, or both, would be
a breach of, default under or violation of: (a)
Bashford's governing trust agreement; or (b) any
agreement, document, indenture, mortgage or other
instrument or undertaking to which Bashford is a
party or to which any of its properties is
subject, which breach, default or violation would
be a material violation of any Applicable Law
relating to Bashford.
4.4 Litigation. There is not now pending
and, to the best of Bashford's knowledge, there is
not threatened nor is there any basis for, any
claim, demand, litigation, arbitration, action,
suit, inquiry, investigation or proceeding by or
before any Government Authority to which Bashford
is or may be a party, and which: (a) may threaten
the validity of this Agreement; or (b) seeks to
prevent, or if successful would prevent, Bashford
from consummating the transactions contemplated in
this Agreement. Bashford is not subject to any
judgment, decree, injunction, rule, decision or
order of any Government Authority having, or
which, insofar as can be foreseen in the future,
may have, any material adverse effect on
Bashford's ability to perform its obligations
under this Agreement and the transactions
contemplated herein.
4.5 Consents. There is no Consent necessary
or required in connection with the valid
execution, delivery and performance by Bashford of
this Agreement and the consummation of the
transactions contemplated herein.
4.6 Compliance with Law. Bashford has
complied in all material respects with all
Applicable Law relating to Bashford, and no claims
have been made to or against Bashford by any
Person to the contrary. Bashford has received no
notice of any violation of or noncompliance with
any applicable Law which has not been cured, which
violation or noncompliance would have a material
adverse effect on Bashford's ability to perform
its obligations under this Agreement and the
transactions contemplated herein.
4.7 Brokers. No agent, finder, broker,
investment banker or other Person acting under the
authority of Bashford is or will be entitled to
any broker's fee or finder's fee or any other
commission or similar fee, directly or indirectly,
from Bashford or any Affiliate of Bashford as a
result of the transaction contemplated in this
Agreement.
4.8 General Warranty. No representation or
warranty by Bashford in this Agreement, and no
statement contained in any document, statement or
certificate furnished to ART by Bashford in
connection with the transactions contemplated in
this Agreement contains any untrue statement of a
material fact or omits to state a material fact
necessary to make the statements contained or
incorporated herein not misleading. There is no
fact known to Bashford which Bashford has not
disclosed to ART which might reasonably be
expected to have or result in a material adverse
effect, financial or otherwise, on the ability of
Bashford to perform its obligations under this
Agreement. All documents, instruments and
certificates delivered by or on behalf of Bashford
in connection with this Agreement and the
transactions contemplated herein are true,
correct. and complete in all material respects.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF FUCHS
Fuchs hereby represents or warrants to ART,
as of the date hereof, as follows:
5.1 Standing. Fuchs is an individual
retirement account duly organized, validly
existing and in good standing. Fuchs has all
requisite power and authority to carry out the
transactions contemplated in this Agreement.
5.2 Authority. The execution and delivery of
this Agreement and the consummation of the
transactions contemplated herein have been duly
authorized by all necessary corporate action of
Fuchs, and Fuchs has all requisite power and
authority to execute, deliver and perform this
Agreement. This Agreement has been duly executed
and delivered by Fuchs and constitutes a legal,
valid and binding agreement of Fuchs enforceable
in accordance with its terms (except as its
enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to
or affecting enforcement of creditors' rights or
the application of equitable principles in any
action, legal or equitable). Fuchs has full power
and authority to perform its obligations under
this Agreement and the transactions contemplated
herein.
5.3 No Conflicts. Neither the execution,
delivery or performance of this Agreement, nor the
consummation of the transactions contemplated
herein, will conflict with or constitute a breach
of or a default under, or an event which, with or
without notice or lapse of time, or both, would be
a breach of, default under or violation of: (a)
Fuch's Constituent Documents; or (b) any
agreement, document, indenture, mortgage or other
instrument or undertaking to which Fuchs is a
party or to which any of its properties is
subject, which breach, default or violation would
be a material violation of any Applicable Law
relating to Fuchs.
5.4 Litigation. There is not now pending
and, to the best of Fuch's knowledge, there is not
threatened nor is there any basis for, any claim,
demand, litigation, arbitration, action, suit,
inquiry, investigation or proceeding by or before
any Government Authority to which Fuchs is or may
be a party, and which: (a) may threaten the
validity of this Agreement; or (b) seeks to
prevent, or if successful would prevent, Fuchs
from consummating the transactions contemplated in
this Agreement. Fuchs is not subject to any
judgment, decree, injunction, rule, decision or
order of any Government Authority having, or
which, insofar as can be foreseen in the future,
may have, any material adverse effect on Fuch's
ability to perform its obligations under this
Agreement and the transactions contemplated
herein.
5.5 Consents. There is no Consent necessary
or required in connection with the valid
execution, delivery and performance by Fuchs of
this Agreement, and the consummation of the
transactions contemplated herein.
5.6 Compliance with Law. Fuchs has complied
in all material respects with all Applicable Law
relating to Fuchs, and no claims have been made to
or against Fuchs by any Person to the contrary.
Fuchs has received no notice of any violation of
or noncompliance with any Applicable Law which has
not been cured, which violation or noncompliance
would have a material adverse effect on Fuch's
ability to perform its obligations under this
Agreement and the transactions contemplated
herein.
5.7 Brokers. No agent, finder, broker,
investment banker or other Person acting under the
authority of Fuchs is or will be entitled to any
broker's fee or finder's fee or any other
commission or similar fee, directly or indirectly,
from Fuchs or any Affiliate of Fuchs as a result
of the transactions contemplated in this
Agreement.
5.8 General Warranty. No representation or
warranty by Fuchs in this Agreement and no
statement contained in any document, instrument or
certificate furnished to ART by Fuchs in
connection with the transactions contemplated in
this Agreement, contains any untrue statement of a
material fact or omits to state a material fact
necessary to make the statements contained or
incorporated herein not misleading. There is no
fact known to Fuchs which Fuchs has not disclosed
to ART which might reasonably be expected to have
or result in a material adverse effect, financial
or otherwise, on the condition or prospects of
Fuchs or on the ability of Fuchs to perform its
obligations under this Agreement. All documents,
instruments and certificates delivered by or on
behalf of Fuchs in connection with this Agreement
and the transactions contemplated herein, are
true, correct and complete in all material
respects.
ARTICLE 6
MISCELLANEOUS
6.1 Survivability. Notwithstanding anything
contained herein to the contrary, all
representations, warranties and agreements set
forth in this Agreement shall survive and continue
to bind the Parties after the execution and
delivery of this Agreement, the termination or
expiration of this Agreement, and any
investigation conducted by any Party, to the
extent and for as long as may be necessary to give
effect to the rights, duties and obligations of
the Parties pursuant to this Agreement, subject to
any applicable statutes of limitations.
6.2 Law. This Agreement shall be governed
by and construed in accordance with the laws of
the state of New York, without reference to
principles of conflicts of laws.
6.3 Notices. All notices required or
permitted hereunder shall be in writing and shall
be: (a) sent by telex or facsimile transmission
(to be effective when receipt is acknowledged
unless sent after 5:00 p.m. on any business day,
in which event notice shall be deemed received on
the next business day); (b) personally delivered;
(c) sent by certified mail, return receipt
requested; or (d) sent by a nationally recognized,
commercial overnight delivery service with
provisions for a receipt, postage or delivery
charges prepaid and, except as otherwise provided
in Section 6.3(a), shall be deemed given when
personally delivered or when placed in the
possession of such mail or delivery service, and
addressed to the Parties, as follows:
To ART: Advanced Refractory
Technologies, Inc.
699 Hertel Avenue
Buffalo, New York 14207
Attn.: Keith A. Blakely, President
Facsimile: 716-875-3746
with a copy to: Damon & Morey LLP
1000 Cathedral Place
298 Main Street
Buffalo, New York 14202-4096
Attn.: Gust P. Pullman, Esq.
Facsimile: 716-856-5521
To Bashford: Eric Rainer Bashford
Charitable Remainder Trust
2689 Strang Boulevard
Yorktown Heights, New York 10598
Attn: Mr. Eric Rainer Bashford, Trustee
Facsimile: (914) 962-1486
with a copy to: Herrick, Feinstein LLP
Two Park Avenue
New York, New York 10016
Attn.: Irwin A. Kishner, Esq.
Facsimile: (212) 889-7577
To Fuchs: Norman P. Fuchs
Individual Retirement Account
5 Flagpole Lane
East Setauket, New York 11753
Attn: Mr. Norman P. Fuchs, Custodian
Facsimile: (516) 689-5752
with a copy to: Herrick, Feinstein LLP
Two Park Avenue
New York, New York 10016
Attn.: Irwin A. Kishner, Esq.
Facsimile: (212) 889-7577
Notice of change of address shall be given in
accordance with the provisions of this Section 6.3
and shall be effective only upon receipt.
6.4 Arbitration. Any controversy or claim
arising out of or pursuant to this Agreement shall
be submitted to final and binding arbitration
conducted in accordance with the expedited
Commercial Arbitration Rules of the American
Arbitration Association ("Rules") by One (1)
arbitrator appointed in accordance with this
Agreement and the Rules. The seat of the
arbitration shall be in Albany, New York. Judgment
upon any award rendered in such arbitration may be
entered in any court of competent jurisdiction.
This Section shall not limit any Party's right to
obtain any provisional or equitable remedy,
including, without limitation, injunctive relief
from any court of competent jurisdiction, as may
be necessary in the sole judgment of such Party to
protect its rights hereunder.
6.5 Expenses. The nonprevailing Party or
Parties in any arbitration or litigation hereunder
shall be required to reimburse the prevailing
Party or Parties for all of its reasonable costs
and expenses in such arbitration or litigation,
including, without limitation, attorneys' fees and
costs.
6.6 Parties Bound. This Agreement shall be
binding upon and shall inure to the benefit of
each Party and its respective legal
representatives, successors and permitted assigns,
subject to the restrictions against assignment
provided in Section 6.9.
6.7 Waiver. Failure by any Party to insist
upon strict performance of any provision herein by
any other Party shall not be deemed a waiver by
such Party of its rights or remedies or a waiver
by it of any subsequent default by such other
Party, and no waiver shall be effective unless it
is in writing and duly executed by the Party
entitled to enforce the provision being waived.
6.8 Severability. If any provision of this
Agreement is determined by a court of competent
jurisdiction or an arbitrator to be illegal or
unenforceable, the Parties shall use reasonable
efforts to negotiate a legal and enforceable
provision reflecting the legal and economic
substance of such illegal or unenforceable
provision as closely as possible. The invalidity
of any part of this Agreement shall not render
invalid the remainder of this Agreement.
6.9 Assignability. No Party shall have the
right to assign any of its rights, duties or
obligations hereunder without the prior written
consent of the other Parties, which consent shall
not be unreasonably withheld or delayed; provided,
however, that ART, upon prior written notice to
the Principals, shall have the right to assign its
rights, duties and obligations under this
Agreement to any Affiliate of ART which consents
in writing to be bound by the terms and conditions
of this Agreement. No assignment of any rights,
duties or obligations under this Agreement
relieves the assigning Party of primary liability
for its duties or obligations under this
Agreement, and as among the Parties, the assigning
Party shall continue to be liable for all of its
duties or obligations under this Agreement as
though no assignment has been made.
6.10 Entire Agreement. This Agreement
constitutes the entire agreement by and among the
Parties regarding the subject matter contained
herein and supersedes all prior and
contemporaneous undertakings and agreements by and
among the Parties, whether written or oral, with
respect to such subject matter.
6.11 Amendment. This Agreement may not be
amended except by a writing executed by all
Parties.
6.12 Cooperation. Each Party agrees to take
all such steps, execute and deliver such further
documents and perform such acts as may be
reasonably requested by any other Party in order
to effectuate the purposes of this Agreement.
6.13 Counterparts. This Agreement may be
executed simultaneously in Two (2) or more
counterparts, any of which shall be deemed an
original, and all of which together shall
constitute one and the same instrument,
notwithstanding that all Parties are not a
signatory to the original or the same counterpart.
6.14 Headings. The headings used herein are
inserted for convenience only and are in no way
intended to describe, interpret, define or limit
the scope, extent or intent of this Agreement.
6.15 Third Parties. Nothing herein expressed
or implied is intended or shall be construed to
confer upon or give any Person other than the
Parties and their respective legal
representatives, successors and permitted assigns,
any right or remedy under or by reason of this
Agreement.
6.16 Transaction Expenses. Each Party shall
pay its own fees, costs and expenses and those of
its Representatives with respect to the
transaction contemplated in this Agreement.
6.17 No Public Statements. Without the prior
consent of the other Parties, which consent shall
not be unreasonably withheld or delayed, no Party
shall disclose to the press or news media the
existence of or terms of this Agreement, except as
otherwise required by Applicable Law; provided,
however, the Principals and their respective
Affiliates and agents shall have the right to
disclose the general nature of the transactions
contemplated in this Agreement but only in
connection with the sale or other disposition of
any An-Con equity securities owned by either
Principal or any Affiliate of either Principal;
provided, however, under no circumstances pursuant
to such disclosure shall any such party have the
right to disclose any confidential or proprietary
information of ART.
6.18 Cumulative Rights and Remedies. The
rights and remedies of the Parties under this
Agreement shall be in addition to and cumulative
of, and not in lieu or exclusive of, any other
rights or remedies of the Parties pursuant to this
Agreement, at law or in equity, except that the
arbitration remedy set forth in Section 6.4 is
exclusive to the extent provided therein. The
rights and remedies of any Party based upon,
arising out of or otherwise in respect of, any
inaccuracy in or breach of, any representation,
warranty or agreement of any other Party or
failure to fulfill any condition shall in no way
be limited by the fact that the act, omission,
occurrence or other statement of facts upon which
any claim for such inaccuracy or breach is based
may also be the subject matter of any other
representation, warranty or agreement as to which
there is no inaccuracy or breach.
IN WITNESS WHEREOF, the Parties have caused
this Profit-Sharing Agreement to be signed by
their duly authorized officers or signatories on
the day and year first above written.
ADVANCED REFRACTORY
TECHNOLOGIES, INC.
By: /s/ Keith A. Blakely
Authorized Officer
ERIC RAINER BASHFORD CHARITABLE
REMAINDER UNITRUST
By: /s/ Eric Rainer Bashford
Authorized Signatory
NORMAN P. FUCHS
INDIVIDUAL RETIREMENT ACCOUNT
By: /s/ Norman R. Sherman
Authorized Signatory
