-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hsd0hPRSjUsg39Sr5gx14/ftctNbjAG9EApGQDjuQrXafmG6B+JJ6z0j02lYR3IZ hAu2vhF1MTdO9BIlutKkPw== 0000858660-98-000012.txt : 19981007 0000858660-98-000012.hdr.sgml : 19981007 ACCESSION NUMBER: 0000858660-98-000012 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981006 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AN CON GENETICS INC CENTRAL INDEX KEY: 0000719135 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860] IRS NUMBER: 112644611 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-35626 FILM NUMBER: 98721161 BUSINESS ADDRESS: STREET 1: ONE HUNTINGTON QUADRANGLE STREET 2: STE 1N11 CITY: MELVILLE STATE: NY ZIP: 11747 BUSINESS PHONE: 5166948470 MAIL ADDRESS: STREET 1: ONE HUNTINGTON QUADDRANGLE CITY: MELVILLE STATE: NY ZIP: 11747 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MAXXIM MEDICAL INC CENTRAL INDEX KEY: 0000858660 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 760291634 STATE OF INCORPORATION: TX FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 10300 49TH ST N CITY: CLEARWATER STATE: FL ZIP: 33762 BUSINESS PHONE: 7132405588 MAIL ADDRESS: STREET 1: 10300 49TH STREET NORTH CITY: CLEARWATER STATE: FL ZIP: 33762 SC 13D 1 ASSET PURCHASE 37 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 An-Con Genetics, Inc. (Name of Issuer) Common Stock (Title of Class of Securities) 032347 20 5 (CUSIP Number) Kenneth W. Davidson, President Maxxim Medical, Inc. 10300 49th Street North Clearwater, Florida 33762 (813) 561-2100 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 8, 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 [ ]. The information required in 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.) 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. Maxxim Medical, Inc. 76-0291634 - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS Not applicable. See Introduction to the Statement and Item 3 of the Statementbelow.. - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Texas - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 3,000,000 ----------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER 0 OWNED BY EACH ----------------------------------------------------- 9 SOLE DISPOSITIVE POWER REPORTING 3,000,000 ----------------------------------------------------- PERSON WITH 10 SHARED DISPOSITIVE POWER 0 ----------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,000,000 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (10) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 18.0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- INTRODUCTION This statement on Schedule 13D is filed on behalf of Maxxim Medical, Inc., a Texas corporation ("Maxxim"). On May 8, 1998, Maxxim and An-Con Genetics, Inc. ("An-Con") entered into an agreement whereby An-Con purchased certain assets (and assumed certain liabilities) associated with the Bovie brand electrosurgical products manufactured and sold by Maxxim (the "Bovie Assets"), for a purchase price of 3 million shares of An-Con common stock ("Common Stock"). As An-Con did not have a sufficient number of authorized but unissued shares of its Common Stock available at the time of the closing of the transaction, the purchase price was paid by the issuance by An-Con to Maxxim of a secured convertible subordinated promissory note in the principal amount of $3 million (the "Note"). The Note provided that it would automatically convert into 3 million shares of Common Stock upon the filing with the Delaware Secretary of State of an amendment to the Certificate of Incorporation of An-Con (the "Amendment") increasing the number of shares of its authorized Common Stock. The filing of the Amendment was subject to the approval of the increase in the number of authorized shares of Common Stock by the stockholders of An-Con at the 1998 annual meeting of the stockholders of An-Con. The An-Con annual meeting was held on September 8, 1998, the increase in the number of authorized shares of Common Stock was approved by the stockholders at the meeting, and the Amendment was filed with the Delaware Secretary of State on September 8, 1998. In connection with the above described transaction, Maxxim and An-Con entered into a Registration Rights Agreement, pursuant to which An-Con agreed to register the 3 million shares of Common Stock for resale by Maxxim under the federal and state securities laws as soon as reasonably practicable after demand by Maxxim; provided however, that Maxxim may not make such a demand until immediately after the earlier to occur of: (a) six months following the date of first inclusion of An-Con's Common Stock on the NASDAQ Small Cap Market, the NASDAQ National Market System or other national securities exchange; and (b) August 8, 1999. Also, An-Con created a vacancy in its Board of Directors and elected a nominee of Maxxim, Mr. Kenneth W. Davidson, to fill the vacancy, and An-Con agreed to appoint additional nominees of Maxxim to its board in the event that its board was expanded during the term of the Agreement, so that Maxxim's designees would hold an approximate percentage of the total number of seats on the board of An-Con equal to the percentage of the outstanding shares of Common Stock of An-Con owned by Maxxim. Item 1. Security and Issuer: This statement relates to shares of Common Stock of An-Con Genetics, Inc., a Delaware corporation, the principal executive offices of which are located at 734 Walt Whitman Road, Melville, New York 11747. Item 2. Identity and Background. The person filing this statement is Maxxim Medical, Inc., a Texas corporation. The principal business of Maxxim is the manufacture and development of a diversified range of specialty medical products. The principal office and principal business of Maxxim are located at 10300 49th Street North, Clearwater, Florida 33762. The attached Schedule I sets forth a list of the executive officers and directors of Maxxim as well as their business addresses, present principal occupations or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted, and citizenship. Maxxim has no controlling person or corporation. During the last five years, neither Maxxim nor, to the best of Maxxim's knowledge, any person named on Schedule I, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) nor been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction in which as a result of such proceeding Maxxim or any such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. On May 8, 1998, Maxxim and An-Con Genetics, Inc. ("An-Con") entered into an agreement whereby An-Con purchased certain assets (and assumed certain liabilities) associated with the Bovie brand electrosurgical products manufactured and sold by Maxxim (the "Bovie Assets"), for a purchase price of 3 million shares of An-Con Common Stock. Item 4. Purpose of Transaction The purpose of Maxxim's acquisition of the Note and the Common Stock was to assist An-Con in financing the purchase of the Bovie Assets from Maxxim. In connection with the transaction between Maxxim and An-Con, Maxxim and An-Con entered into a Registration Rights Agreement, pursuant to which An-Con agreed to register the 3 million shares of Common Stock for resale by Maxxim under the federal and state securities laws as soon as reasonably practicable after demand by Maxxim; provided however, that Maxxim may not make such a demand until immediately after the earlier to occur of: (a) six months following the date of first inclusion of An-Con's Common Stock on the NASDAQ Small Cap Market, the NASDAQ National Market System or other national securities exchange; and (b) August 8, 1999. Maxxim intends to sell shares of the Common Stock and reduce its percentage of share ownership as opportunities arise, consistent with maintaining the value of its investment in its remaining shares. Also, An-Con created a vacancy in its Board of Directors and elected a nominee of Maxxim, Mr. Kenneth W. Davidson, to fill the vacancy, and An-Con agreed to appoint additional nominees of Maxxim to its board in the event that its board was expanded during the term of the Agreement, so that Maxxim's designees would hold an approximate percentage of the total number of seats on the board of An-Con equal to the percentage of the outstanding shares of Common Stock of An-Con owned by Maxxim. Item 5. Interest in Securities of the Issuer. (a) According to An-Con's most recently available filing with the Commission, there were 13,629,693 shares of Common Stock outstanding on July 31, 1998. Giving effect to the issuance of 3 million shares of Common Stock to Maxxim on September 8, 1998, An-Con would have 16,629,693 shares outstanding, with Maxxim owning approximately 18.0% of the total number of outstanding shares. To the best of Maxxim's knowledge, none of the persons listed on Schedule I beneficially own any shares of Common Stock of An-Con. (b) Maxxim has the sole right to vote and dispose of all of the Common Stock beneficially owned by it. (c) To the best of Maxxim's knowledge, there have been no other transactions in the An-Con Common Stock effected during the past 60 days by Maxxim or any of the persons listed in Schedule I. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. In connection with the transaction between Maxxim and An-Con, Maxxim and An-Con entered into a Registration Rights Agreement, pursuant to which An-Con agreed to register the 3 million shares of Common Stock for resale by Maxxim under the federal and state securities laws as soon as reasonably practicable after demand by Maxxim; provided however, that Maxxim may not make such a demand until immediately after the earlier to occur of: (a) six months following the date of first inclusion of An-Con's Common Stock on the NASDAQ Small Cap Market, the NASDAQ National Market System or other national securities exchange; and (b) August 8, 1999. In connection with the transaction between Maxxim and An-Con, An-Con created a vacancy in its Board of Directors and elected a nominee of Maxxim, Mr. Kenneth W. Davidson, to fill the vacancy, and An-Con agreed to appoint additional nominees of Maxxim to its board in the event that its board was expanded during the term of the Agreement, so that Maxxim's designees would hold an approximate percentage of the total number of seats on the board of An-Con equal to the percentage of the outstanding shares of Common Stock of An-Con owned by Maxxim. Item. 7. Material to be Filed as Exhibits. 1.1 Asset Purchase Agreement dated May 8, 1998, by and between An-Con and Maxxim. 1.2 Registration Rights Agreement dated May 8, 1998, by and between An-Con and Maxxim. Schedule I Each of the individuals below, except for Messrs. Davidson, Graham, Lamont, Wafelman and Beek, is a citizen of the United States of America. Messrs. Davidson, Graham and Lamont are citizens of Canada. Messrs. Wafelman and Beek are citizens of The Netherlands. For each person whose employment is with Maxxim, the principal business of their employer and their business address is described under Item 2 above. Principal Occupation or Employment; Principal Business of Name Employer; Business Address. Kenneth W. Davidson............... Chairman of the Board, President and Chief Executive Officer Maxxim Medical, Inc. Peter M. Graham................... Executive Vice President, Chief Operating Officer and Secretary Maxxim Medical, Inc. David L. Lamont................... Vice President and Group Vice President Maxxim Medical, Inc. Henry T. DeHart................... Vice President, Executive Vice President Operations, Case Management Maxxim Medical, Inc. Jack F. Cahill.................... Vice President, Executive Vice President Sales and Marketing, Case Management Maxxim Medical, Inc. Alan S. Blazei.................... Vice President, Controller and Treasurer Maxxim Medical, Inc. Joseph D. Dailey.................. Vice President, Information Services Maxxim Medical, Inc. Suzanne R. Garon.................. Vice President, Human Resources Maxxim Medical, Inc. Rob W. Beek....................... Vice President, Managing Director, Maxxim Medical Europe Maxxim Medical, Inc. Donald R. DePriest................ President of MedCom Development Corporation, the General Partner of MCT Investors, L.P., a limited partnership engaged in the business of venture capital investing. MCT Investors, L.P. 625 Slaters Lane, G100 Alexandria, VA 22314 Peter G. Dorflinger............... President and Chief Operating Officer of Physicians Resource Group, Inc., a physicians practice management company. Physicians Resource Group, Inc. 3 Lincoln Center, Suite 1540 5430 LBJ Freeway Dallas, TX 75240 Martin Grabois, M.D............... Professor and Chairman of the Department of Physical Medicine and Rehabilitation at Baylor College of Medicine in Houston, Texas. Baylor College of Medicine Dept. of PM&R 1333 Moursund Ave. Clinic Bldg. A221 Houston, TX 77030 Ernest J. Henley, Ph.D............ Professor of Chemical Engineering at the University of Houston 49 Briar Hollow Lane #1902 Houston, TX 77027 Richard O. Martin, Ph.D........... Chairman and Chief Executive Officer, of Physio-Control International Corp., a manufacturer of cardiac defibrillators and monitoring equipment. Physio-Control International Corp. 11811 Willows Road N.E. Redmond, WA 98073-9706 Henk R. Wafelman, Ing............. Executive Chairman of the Dutch Society of Enterprises in Medical Technology, a Netherlands based technology society. Taksteeg 3 1012 PB Amsterdam, The Netherlands
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. Dated: September 21, 1998 _/s/ Alan S. Blazei_________________ (Signature) _Alan S. Blazei_____________________ _Vice President, Corporate Controller & Treasurer (Name and Title) EX-99 2 ASSET PURCHASE AGREEMENT Exhibit 1.1 ASSET PURCHASE AGREEMENT ASSET PURCHASE AGREEMENT, dated the 8th day of May 1998, by and between MAXXIM MEDICAL, INC., a Delaware corporation ("Seller"), and AN-CON GENETICS INC., a Delaware corporation ("Buyer"). W I T N E S S E T H: WHEREAS, Seller desires to sell, transfer and assign to Buyer, and Buyer desires to purchase and assume from Seller, certain of Seller's assets and liabilities of Seller's electrosurgical generator product line, all upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the respective covenants, representations, warranties and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows: ARTICLE I - PURCHASE AND SALE 1.1. Sale of Assets. Seller hereby grants, sells, conveys, assigns, transfers and delivers to Buyer all right, title and interest of Seller in and to the following assets of Seller's electrosurgical product line, including models X10, 400, CSV and Specialist, and associated with the name "Bovie" (collectively, the "Assets"): a. the machinery, equipment, tools, furniture, furnishings, goods and other tangible personal property set forth on Exhibit A annexed hereto; b. the inventory set forth on Exhibit B annexed hereto; c. the rights and ownership to the name "Bovie" under any trade names and the trademarks and patents set forth on Exhibit C annexed hereto (the "Intellectual Property"); and d. the goodwill associated with the name "Bovie". 1.2. Assumption of Liabilities. From and after the date hereof, Buyer agrees to assume responsibility for all liabilities and obligations associated with the Assets, including but not limited to all liabilities and obligations therefor under warranties, express or implied (but not including any product liability obligations for products sold by Seller prior to the date hereof), and all liabilities and obligations for purchase orders outstanding on the date hereof for parts therefor as set forth on Exhibit D hereto (collectively, the "Assumed Liabilities"). Seller agrees to reimburse Buyer for repairs performed by or on behalf of Buyer after the date hereof under any outstanding product warranties for "Bovie" branded generators sold by Seller prior to the date hereof as follows: (i) parts shall be reimbursed to the extent of Buyer's direct out of pocket expenses therefor and (ii) labor shall be reimbursed at the rate of $42.50 per hour. Buyer shall submit detailed invoices for such parts and labor to Seller on a quarterly basis. 1.3. The Purchase Price. The total purchase price to be paid by Buyer to Seller for the sale of the Assets and the assumption of the Assumed Liabilities (the "Purchase Price") is three million (3,000,000) shares of the common stock of Buyer, $.001 par value per share (the "Shares"). Buyer and Seller acknowledge that the Shares can not be delivered to Seller until an amendment to Buyer's Certificate of Incorporation increasing the authorized Common Stock of Buyer (the "Amendment") is approved by its shareholders and filed with the Secretary of State of Delaware. Accordingly, Buyer hereby delivers to Seller a Secured Convertible Promissory Note, in the form annexed hereto as Exhibit E (the "Note"), which Note shall (a) be in the principal amount of Three Million Dollars ($3,000,000), (b) be secured in accordance with the terms of the Security Agreement delivered herewith by Buyer and its wholly owned subsidiary, Aaron Medical Industries, Inc., to Seller in the form annexed hereto as Exhibit F (the "Security Agreement"), and (c) automatically convert into the Shares upon the filing of the Amendment with the Secretary of State of Delaware. With respect to the Shares, Seller shall have all the rights and benefits of the Registration Rights Agreement to be entered into simultaneously herewith between Buyer and Seller in the form annexed hereto as Exhibit G (the "Registration Rights Agreement"). 1.4. Allocation of Purchase Price. The Purchase Price shall be allocated among the Assets as set forth on Exhibit H annexed hereto. Buyer and Seller each hereby covenant and agree that it will not take a position that is in any way inconsistent with the terms of this Section 1.4 on any income tax return, before any governmental agency charged with the collection of any income tax or in any judicial proceeding. ARTICLE II - CLOSING, ITEMS TO BE DELIVERED, FURTHER ASSURANCES 2.1. Closing. The closing (the "Closing") of the sale and purchase of the Assets shall take place simultaneously with the execution of this Agreement on the date hereof but shall be effective at 12:01 a.m. on May 11, 1998. The date of the Closing is sometimes herein referred to as the "Closing Date." 2.2. Items to be Delivered at Closing. At the Closing: a. Seller shall deliver to Buyer the following: (i) a duly executed bill of sale in the form annexed hereto as Exhibit I transferring and assigning to and vesting in Buyer all of Seller's right, title and interest in and to the Assets; (ii) a duly executed Registration Rights Agreement; and (iii) a duly executed Supply and License Agreement between Buyer and Seller in the form annexed hereto as Exhibit J (the "Supply and License Agreement"). b. Buyer shall deliver to Seller the following: (i) a duly executed Note; (ii) a duly executed Registration Rights Agreement; (iii) a duly executed Supply and License Agreement; (iv) a duly executed Security Agreement; (v) written confirmation from each member of its Board of Directors that Kenneth W. Davidson is appointed to Buyer's Board of Directors effective on the date hereof; (vi) a copy of its Articles of Incorporation and By-laws, certified by an officer of Buyer as being true, correct and complete; and (vii) a certificate, dated as of a recent date, of the Secretary of State of Delaware and each additional state in which Buyer is qualified to do business to the effect that Buyer is in good standing in such state. 2.3. Further Assurances. From and after the Closing, Seller and Buyer will cooperate with each other and execute and deliver to each other such other instruments and documents and take such other actions as may be reasonably requested from time to time by the other party hereto as necessary to carry out, evidence and confirm the intended purposes of this Agreement. ARTICLE III - REPRESENTATIONS AND WARRANTIES 3.1. Representations and Warranties of Seller. Seller represents and warrants to Buyer as follows: a. Legal Authority and Enforceable Obligations. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller has the power and authority to execute, deliver and perform this Agreement and all the other documents and agreements delivered in connection herewith. This Agreement and all the other documents and agreements required to be delivered by Seller in accordance with the provisions hereof have been duly executed and delivered on behalf of Seller and constitute the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally or the availability of equitable remedies. b. Validity of Contemplated Transactions. The execution, delivery and performance of this Agreement by Seller does not and will not violate, conflict with or result in the breach of any term, condition or provision of, or require the consent of any other party under (i) any existing law, ordinance or governmental rule or regulation to which Seller is subject, (ii) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which is applicable to Seller, (iii) the Articles of Incorporation or By-laws of Seller or (iv) any mortgage, indenture, agreement, contract, commitment, lease, plan or other instrument, document or understanding, oral or written, to which Seller is a party or by which any of the Assets are bound. No authorization, approval or consent of, and no registration or filing with, any governmental or regulatory official, body or authority is required in connection with the execution, delivery or performance of this Agreement by Seller or the sale to Buyer of the Assets. c. Title to Tangible Assets. Seller has and shall transfer to Buyer at the Closing good and marketable title to all of the tangible Assets being sold and transferred hereunder, free and clear of all mortgages, liens, pledges, security interests, charges, claims, restrictions and other encumbrances and defects of title of any nature whatsoever. d. Intellectual Property. Seller owns or has the legal right to use and transfer to Buyer the Intellectual Property. To Seller's knowledge, such ownership or use does not conflict, infringe or violate the rights of any other person. e. Compliance. To Seller's knowledge, the tangible Assets are in compliance in all material respects with all applicable rules and regulations, including but not limited to applicable rules and regulations of the Food and Drug Administration. f. Finder's Fee. Seller has not incurred any obligation for any finder's, broker's or agent's fee in connection with the transactions contemplated hereby. 3.2. Representations and Warranties of Buyer. Buyer represents and warrants to Seller as follows: a. Legal Authority and Enforceable Obligations. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer has the power and authority to execute, deliver and perform this Agreement and all the other documents and agreements delivered in connection herewith and issue and deliver the Note to Seller. Upon the filing of the Amendment with the Secretary of State of Delaware, Buyer will have all necessary power and authority to issue the Shares to Seller. This Agreement and all the other documents and agreements required to be delivered by Buyer in accordance with the provisions hereof have been duly executed and delivered on behalf of Buyer and constitute the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally or the availability of equitable remedies. b. Validity of Contemplated Transactions. Except as set forth on Schedule 3.2(b), the execution, delivery and performance of this Agreement and the other documents and agreements delivered in connection herewith to Seller by Buyer does not and will not violate, conflict with or result in the breach of any term, condition or provision of, or require the consent of any other party under (i) any existing law, ordinance or governmental rule or regulation to which Buyer is subject, (ii) any judgment, order, writ, injunction, decree or award of any court, arbitrator or governmental or regulatory official, body or authority which is applicable to Buyer, (iii) the Articles of Incorporation or By-laws of Buyer or (v) any mortgage, indenture, agreement, contract, commitment, lease, plan or other instrument, document or understanding, oral or written, to which Buyer is a party or by which Buyer is otherwise bound. Except as set forth on Schedule 3.2(b) no authorization, approval or consent of, and no registration or filing with, any governmental or regulatory official, body or authority is required in connection with the execution, delivery and performance of this Agreement by Buyer or the issuance and delivery of the Shares to Seller. c. Capitalization; Stock Ownership. The authorized capital stock of Buyer consists of 15,000,000 shares of Common Stock, $.001 par value per share, of which 15,000,000 shares are reserved for issuance or issued and outstanding. No shares of the Buyer's capital stock are held by it as treasury stock. All of such issued and outstanding shares have been duly authorized and validly issued and are fully paid and non-assessable and none of them have been issued in violation of any preemptive or other right. Except as set forth on Schedule 3.2(c), Buyer is not a party to or bound by any contract, agreement or arrangement to issue, sell or otherwise dispose of or redeem, purchase or otherwise acquire any capital stock or any other security of Buyer or any other security exercisable or exchangeable for or convertible into any capital stock or any other security of Buyer and, except for this Agreement, there is no outstanding option, warrant or other right to subscribe for or purchase, or contract, agreement or arrangement with respect to, any capital stock or any other security of Buyer or any other security exercisable or convertible into any capital stock or any other security of Buyer. Except as set forth on Schedule 3.2(c), Buyer is not a party to or bound by any contract, agreement or arrangement to register under the Securities Act of 1933, as amended, or otherwise dispose of any of its capital stock. Except as set forth on Schedule 3.2(c), Buyer does not own, directly or indirectly, any shares of capital stock of any corporation or any equity investment in any partnership, association or other business organization. The Shares have been duly and validly issued and are fully paid and nonassessable. Upon the filing of the Amendment with the Secretary of State of Delaware, the authorized capital stock of Buyer will consist of 50,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock. d. Financial Statements. Buyer has delivered to Seller the audited consolidated balance sheet of Buyer as of December 31, 1995, 1996 and 1997 and the related consolidated statements of operations, shareholders' equity and cash flows for the fiscal years then ended, including the notes thereto (collectively the "Financial Statements"). The Financial Statements, including the notes thereto, have been prepared in accordance with generally accepted accounting principles consistently applied by Buyer according to past practice throughout the periods indicated. The Financial Statements are complete and correct and fairly and accurately present the financial condition and the results of operations of Buyer as at the dates and for the periods indicated. As at December 31, 1997 (the "Balance Sheet Date") there was no liability of any nature or in any amount that should be properly reflected or reserved against in the balance sheet as of such date (the "Balance Sheet") which is not fully reflected or reserved against in the Balance Sheet. e. No Undisclosed Liabilities. Except as set forth in Schedule 3.2(e), Buyer has no known material liabilities or obligations of any nature (whether absolute, accrued, contingent or otherwise) except for liabilities or obligations adequately reflected or reserved against in the Balance Sheet (and the notes thereto) and current liabilities incurred since the Balance Sheet Date in the ordinary course of business. Buyer is not in default under the terms or conditions of any indebtedness for which it is obligated directly, indirectly or as an endorser thereof. f. Absence of Changes. Since the Balance Sheet Date, Buyer has conducted its business in the ordinary and usual course and has used its best efforts to preserve intact its business organization, keep available the services of its officers and employees, and maintain satisfactory relationships with vendors, suppliers, distributors, clients and others having business relationships with it. Since the Balance Sheet Date, Buyer has not had any material adverse change in its business, operations (present or prospective), assets, properties, liabilities or condition (financial or otherwise) and, to Buyer's best knowledge, no event has occurred or circumstance exists that could reasonably be expected to result in such a material adverse change. g. Title to and Condition of Properties and Assets. Except as set forth on Schedule 3.2(g), Buyer has good and marketable title to all of its properties and assets, including, without limitation (i) all properties and assets used in its business and (ii) all properties and assets reflected on the Balance Sheet, in each instance free and clear of all encumbrances, liens, charges, claims or other restrictions of any kind or character, except liens for current taxes, assessments or governmental charges not yet due as to which sufficient reserves have been created. The facilities and fixed assets of Buyer are in good operating condition and repair, subject to normal wear and tear, and none of the properties or assets owned or leased by Buyer is in violation of any applicable law, ordinance, rule or regulation. h. Contracts. Schedule 3.2(h) contains an accurate and complete list of all contracts which (i) are material to the condition (financial or otherwise), operations, assets or business of Buyer; (ii) involve total annual sales, payments or commitments by Buyer in excess of $100,000; (iii) include distribution, supply and licensing arrangements; (iv) are contracts with security holders, directors, officers, employees, agents or consultants, or any affiliates of the foregoing; (v) provide for a discount other than in the ordinary course of business and consistent with past practices; (vi) provide for the future purcghase by Buyer of any materials, equipment, services or supplies continuing for a period of more than twelve months from the date of such contract (including periods covered by any option to renew by either party), or provide for a price materially in excess of current market prices or for purchase obligations in excess of normal operating requirements over its remaining term; (vii) obligate Buyer to borrow money or guarantee, endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations or any other person or entity; or (viii) limit the freedom of Buyer to compete in any line of business in any geographic area. Complete and correct copies of all such contracts have been delivered to Seller. All of such contracts are valid and binding, in full force and effect and enforceable in accordance with their respective terms. Neither Buyer nor any other party thereto is in violation of any of the terms of or in default under any such contract, nor has there occurred any event or condition which, with the passage of time or giving of notice (or both), would constitute a violation or a default by any party thereunder. i. Litigation. Except as set forth in Schedule 3.2(i), there is no action, suit, proceeding or investigation, either at law or in equity, by or before any governmental or other instrumentality or agency, or any other entity or person pending or, to Buyer's best knowledge, threatened or proposed or any circumstances that could reasonably form the basis of any action, suit, proceeding or investigation, against or affecting Buyer or any of its properties or assets which, if determined adversely to Buyer, could (i) materially and adversely affect the condition (financial or otherwise), operations (present or prospective), properties or assets of Buyer; (ii) question the validity of this Agreement or any of the transactions contemplated hereby; or (iii) seek to delay, prohibit or restrict any actions taken or to be taken by Buyer hereunder. j. Intellectual Properties. Schedule 3.2(j) contains a true and complete list of all patents, copyrights, inventions, software, customer lists, trademarks, trade names, service marks and all registrations and applications therefor and licenses thereto, owned or used by Buyer in the operation of its business. All such intellectual property is owned by Buyer free and clear of all liens, claims, restrictions and encumbrances of any nature whatsoever, and Buyer has the exclusive right to use such intellectual property in the operation of its business without payment to a third party. None of Buyer's intellectual property infringes or, to Buyer's best knowledge, is infringed upon by any rights of third parties or is involved in any opposition, invalidation or cancellation action. Buyer's intellectual property is sufficient for the operation of Buyer's business as currently conducted. k. Compliance with Laws. Buyer and all of its assets and properties are in compliance in all material respects with all applicable laws, rules, regulations, ordinances, orders, judgments and decrees of each and every jurisdiction applicable to Buyer, its assets and properties. Buyer has not received any notice or other communication from any governmental authority or agency regarding any actual, alleged or potential violation of, or failure to comply with, any law, rule, regulation, ordinance, order, judgment or decree and, to Buyer's best knowledge, there does not exist any reasonable basis for any claim of material default under or material violation of any such law, rule, regulation, ordinance, order, judgment or decree. l. Employees. Schedule 3.2(l) sets forth an accurate and complete list of all officers and key employees of Buyer showing as to each the nature of the officer's or employee's job, years of service, the amount or rate of compensation, all entitlements to vacation, personal days and sick leave and eligibility to participate in any of Buyer's pension, retirement, profit sharing, deferred compensation, stock bonus, stock option, stock ownership, insurance, medical or any other employee benefit plan. No employee of Buyer is a party to, or is otherwise bound by, any agreement or arrangement with any third party, including any confidentiality, non-competition or proprietary rights agreement, that in any way adversely affects (i) the performance of his or her duties as an employee of Buyer, (ii) the ability of Buyer to conduct its business as presently conducted and contemplated to be conducted or (iii) the consummation of the transactions contemplated by this Agreement. m. Employee Benefit Plans. Set forth on Schedule 3.2(m) is an accurate and complete list of all employee benefit plans ("Employee Benefit Plans"), within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not any such Employee Benefit Plans are otherwise exempt from the provisions of ERISA, currently maintained or contributed to by Buyer. Buyer does not maintain or contribute to any Employee Benefit Plan subject to ERISA which is not in compliance with ERISA, or which has incurred any accumulated funding deficiency within the meaning of Section 412 or 418B of the Internal Revenue Code of 1986 as amended (the "Code"), or which has applied for or obtained a waiver from the Internal Revenue Service of any minimum funding requirement under Section 412 of the Code. Buyer has not incurred any liability to the Pension Benefit Guaranty Corporation ("PBGC") in connection with any Employee Benefit Plan covering any employees of Buyer or of any entity treated as a single employer with Buyer under Section 414 of the Code (an "ERISA Affiliate") or ceased operations at any facility or withdrawn from any such Plan in a manner which could subject it to liability under Sections 4062(f), 4063 of 4064 of ERISA, and Buyer does not know of any facts or circumstances which could reasonably be expected to give rise to any liability of Buyer to the PBGC under Title IV of ERISA which could reasonably be expected to result in any claims being made against the Purchaser by the PBGC. Buyer is not a party to any pension plan that is a "multi-employer plan" (within the meaning of Section 4001(a)(3) of ERISA) and has not incurred any withdrawal liability (including any contingent or secondary withdrawal liability), within the meaning of Sections 4201 and 4202 of ERISA, to any Employee Benefit Plan which is a multi-employer plan and no event has occurred, and, to Buyer's best knowledge, there exists no condition or set of circumstances which presents a material risk of the occurrence of any withdrawal from or the partition, termination, reorganization or insolvency of any multi-employer plan which could result in any liability to a multi-employer plan. Buyer has made all payments and contributions which Buyer is required to make and which are currently due with respect to all Employee Benefit Plans in accordance with applicable law, the terms of the Employee Benefit Plans or any agreement relating to any Employee Benefit Plan to which Buyer is a party. Buyer has made adequate provisions for reserves required to be reflected in accordance with generally accepted accounting principles consistently applied in the Balance Sheet to meet contributions that have not been made because they are not yet due under the terms of any Employee Benefit Plan or related agreements. Benefits under all Employee Benefit Plans are as set forth in the documents evidencing such Plans and have not been materially increased subsequent to the date as of which documents have been provided. Buyer has no material monetary obligation, contingent or otherwise, under any Employee Benefit Plan providing hospitalization, major medical or other medical coverage, other than the payment of premiums to insurance carriers, health maintenance organizations or preferred provider organizations, which is not fully insured or substantially covered by adequate stop loss policies currently in force. Except as set forth on Schedule 3.2(m), Buyer has no obligations under any Employee Benefit Plan, or under any oral or written agreement with any present or former employees, to provide (i) ongoing medical or life insurance coverage or similar post-termination benefits to any former employee (other than COBRA continuation coverage required by law), or (ii) severance payments (other than accrued salary and vacation pay) to any employee upon retirement or other termination of employment. n. Governmental Authorizations and Regulations. Schedule 3.2(n) lists all licenses, franchises, permits and other governmental authorizations held by Buyer material to the conduct of its business. Such licenses, franchises, permits and other governmental authorizations are valid, and Buyer has not received any notice that any governmental authority intends to cancel, terminate or not renew any such license, franchise, permit or other governmental authorization. Buyer holds all licenses, franchises, permits and other governmental authorizations the absence of any of which could have a material adverse effect on its business. Except as set forth on Schedule 3.2(n), Buyer's business is not being conducted, and no properties or assets of Buyer relating thereto are owned or are being used by Buyer, in violation of any statute, law, ordinance, regulation, rule or permit of any governmental entity or any judgment, order or decree. All products manufactured or sold by Buyer comply in all material respects with all statutes, laws, ordinances, regulations and rules and criteria governing the design, manufacture and intended use thereof. o. Taxes. (i) Buyer has filed within the times and within the manner prescribed by law, all federal, state, local and foreign tax returns, information returns, forms, reports, declarations and all other tax reports and returns (collectively, "Returns") which are required to be filed by it through the date hereof. Each Return is true, correct and complete and accurately reflects all required and appropriate liability for taxes of Buyer for the periods covered thereby and no Return has been amended. All federal, state, local and foreign income, profits, franchise, sales, use, occupancy, excise and other taxes and assessments, including estimated taxes and interest and penalties (collectively, "Taxes"), payable by or due from Buyer have been fully and timely paid or fully provided for in the books and records of Buyer except for such Taxes which are being contested in good faith, by appropriate proceedings, and as to which adequate reserves (determined in accordance with generally accepted accounting principles consistently applied) have been provided in the Balance Sheet. Buyer has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to the filing of any Return or the payment of any Tax assessment or deficiency. (ii) All deficiencies proposed as a result of any audits conducted of the Returns of Buyer by the Internal Revenue Service or relevant state or local tax authorities have been paid, reserved against, settled or are being contested in good faith by appropriate proceedings and are disclosed on Schedule 3.2(o). No examination, audit or inquiry of any Return, federal, state or otherwise, of Buyer is currently in progress and Buyer has not received notice of intent to commence any examination, audit or inquiry of any such Return from any taxing authority. Buyer has not settled, issued or entered into a closing agreement with respect to any tax year for which an audit or examination has been concluded that may reasonably be expected to result in a material deficiency for any other taxable year not so examined that has not been accrued on the Balance Sheet in accordance with generally accepted accounting principles consistently applied. (iii) The charges, accruals and reserves with respect to Taxes on the Balance Sheet and the books and records of Buyer are adequate (determined in accordance with generally accepted accounting principles consistently applied) and are at least equal to Buyer's liability for Taxes. There exists no proposed tax assessment against Buyer except as disclosed in the Balance Sheet. All Taxes that Buyer is or was required to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the proper governmental authority. p. Insurance. Schedule 3.2(p) contains a true and complete list of all insurance policies which Buyer maintains with respect to its business, its products and its officers, directors and employees together with the name of the insurer, each insured party, the type and amount of coverage, premium and deductible amounts and the expiration dates therefor. All such policies are in full force and effect and accurate and complete copies thereof have been delivered to Seller. Buyer has paid all premiums due and has otherwise performed all of its obligations under such policies and there currently exists no right of termination or refusal of coverage on the part of the insurance carriers as a result of any prior default on the part of Buyer. Buyer will maintain such policies in full force and effect following the consummation of the transactions contemplated hereby, with total coverage of no less than $5 million for product liability insurance, and will provide Seller with prompt notice of any cancellation of or material modifications to any such insurance policies. q. Related Transactions. Except as set forth on Schedule 3.2(q), neither Buyer nor any officer, director, employee or affiliate of Buyer currently has any interest in any property (whether real, personal or mixed and whether tangible or intangible), used in or pertaining to Buyer's business or owns (of record or as a beneficial owner) an equity interest or any other financial or profit interest in, a person or entity that (i) has business dealings or a material financial interest in any transaction with Buyer (other than business dealings or transactions conducted in the ordinary course of business with Buyer at substantially prevailing market prices and on substantially prevailing market terms), or (ii) is engaged in competition with Buyer with respect to any line of the products or services of Buyer. Except as set forth on Schedule 3.2(q), none of Buyer's officers, directors, employees or affiliates is a party to any contract with, or has any claim or right against, Buyer, other than employment contracts between Buyer and its officers and employees. r. Disclosure. To the best of its knowledge, no representation or warranty of Buyer in this Agreement or in any schedule, agreement, document or certificate delivered in accordance with the terms hereof by Buyer contains any untrue statement of a material fact or omits to state any material fact necessary, in light of the circumstances under which made, in order to make the statements contained herein or therein not misleading. There is no fact that affects, or in the future might reasonably be expected to affect, adversely the condition (financial or otherwise), operations (present or prospective), properties, assets or liabilities of Buyer in any material respect that is not set forth in this Agreement or the schedules hereto. s. Public Documents. Buyer has furnished Seller with a true and complete copy of each report and registration statement filed by it with the Securities and Exchange Commission ("SEC") since January 1, 1995, which are all the documents that it was required to file with the SEC since such date (the "Public Documents"). As of their respective dates, the Public Documents did not contain any untrue statements of material facts or omit to state material facts required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective dates, the Public Documents complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated under such statutes. The Public Documents do not contain any untrue statements of material facts or omit to state any material facts required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading as of the date hereof except for such facts as are disclosed herein and except for the transactions contemplated hereby. t. Finder's Fee. Buyer has not incurred any obligation for any finder's, broker's or agent's fee in connection with the transactions contemplated hereby. ARTICLE IV - INDEMNIFICATION 4.1. Indemnification Obligation of Seller. From and after the Closing, Seller will reimburse, indemnify and hold harmless Buyer and its successors and assigns (an "Indemnified Buyer Party") against and in respect of any and all damages, losses, deficiencies, liabilities, costs and expenses, including reasonable attorneys' fees (collectively, "Damages"), incurred or suffered by any Indemnified Buyer Party that result from, relate to or arise out of (i) any and all liabilities and obligations of Seller that arose prior to the Closing which are not included in the Assumed Liabilities; (ii) any misrepresentation, breach of warranty or non-fulfillment of any agreement or covenant on the part of Seller under this Agreement or any other document or agreement furnished to Buyer pursuant to the terms hereof; or (iii) any liability under any federal or state securities laws arising from or relating to any misstatements or omissions of material facts concerning this Agreement or the transactions contemplated hereby in any documents filed by Seller with the SEC except to the extent such liability relates to written information provided by Buyer included in such documents. 4.2. Indemnification Obligation Of Buyer. From and after the Closing, Buyer will reimburse, indemnify and hold harmless Seller and its successors or assigns (an "Indemnified Seller Party") against and in respect of any and all Damages incurred or suffered by any Indemnified Seller Party that result from, relate to or arise out of any (i) any Assumed Liability; (ii) any liability or obligation with respect to any Asset that arises on or after the Closing Date; (iii) any misrepresentation, breach of warranty or non-fulfillment of any agreement or covenant on the part of Buyer under this Agreement or other document or agreement furnished to Seller pursuant to the terms hereof; or (iv) any liability under any federal or state securities laws arising from or relating to the sale or offer to sell the Shares to Seller or any misstatements or omissions of material facts concerning this Agreement or the transactions contemplated hereby in any documents filed by Buyer with the SEC, except to the extent such liability relates to written information provided by Seller included in such documents . 4.3. Procedure for Indemnification Claims. If at any time a claim shall be made or threatened, or an action or proceeding shall be commenced or threatened, against a party hereto (the "Aggrieved Party") which could result in liability of the other party (the "Indemnifying Party") under its indemnification obligations hereunder, the Aggrieved Party shall give to the Indemnifying Party prompt notice of such claim, action or proceeding. Such notice shall state the basis for the claim, action or proceeding and the amount thereof (to the extent such amount is determinable at the time when such notice is given) and shall permit the Indemnifying Party to assume the defense of any such claim, action or proceeding (including any action or proceeding resulting from any such claim). Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such claim, action or proceeding within a reasonable time shall be deemed a waiver by the Indemnifying Party of its right to defend such claim, action or proceeding; provided, however, that the Indemnifying Party shall not be deemed to have waived its right to contest and defend against any claim of the Aggrieved Party for indemnification hereunder based upon or arising out of such claim, action or proceeding. If the Indemnifying Party assumes the defense of any such claim, action or proceeding, the obligation of the Indemnifying Party as to such claim, action or proceeding shall be limited to taking all steps necessary in the defense or settlement thereof and, to the extent the Indemnifying Party is liable for indemnification hereunder, to holding the Aggrieved Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any settlement approved by the Indemnifying Party or any judgment or award rendered in connection with such claim, action or proceeding. The Aggrieved Party agrees to cooperate and make available to the Indemnifying Party all books and records and such officers, employees and agents as are reasonably necessary and useful in connection with the defense. The Aggrieved Party may participate, at its expense, in the defense of such claim, action or proceeding provided that the Indemnifying Party shall direct and control the defense of such claim, action or proceeding; provided, however, if in the reasonable opinion of the Aggrieved Party any such claim, action or proceeding involves an issue or matter which, if adversely determined, would have a materially adverse effect on the Aggrieved Party, then the Aggrieved Party shall have the right to control the defense or settlement of any such claim, action or proceeding and its reasonable costs and expenses shall be included as a part of the indemnification obligation of the Indemnifying Party. The Indemnifying Party shall not, with respect to any such claim, action or proceeding, consent to the entry of any judgment or award, or enter into any settlement, except with the prior written consent of the Aggrieved Party, which consent shall not be unreasonably withheld; provided, however, in the case of any such judgment, award or settlement for money, it shall be a condition thereto that the Indemnifying Party shall acknowledge its obligation to indemnify the Aggrieved Party pursuant to this Article IV; and provided, further, that any such judgment, award or settlement include, as an unconditional term thereof, the release of the Aggrieved Party from all liability by the third party claimant or plaintiff. 4.4. Payment. Upon the determination of the liability under Section 4.3 hereof, the appropriate party shall pay to the other, as the case may be, within ten (10) days after such determination, the amount of any claim for indemnification made hereunder. The indemnification obligations hereunder shall survive the consummation of the transactions described herein and shall not be limited by any amount payable by Buyer to Seller hereunder. 4.5. Other Rights and Remedies Not Affected. The indemnification rights of the parties under this Article IV are independent of and in addition to such rights and remedies as the parties may have at law or in equity or otherwise for any misrepresentation, breach of warranty or failure to fulfill any agreement or covenant hereunder on the part of any party hereto, including, without limitation the right to seek specific performance, recision or restitution, none of which rights or remedies shall be affected or diminished hereby. ARTICLE V - POST CLOSING MATTERS 5.1. Survival of Representations and Warranties. All representations, warranties, agreements and obligations made by the parties in this Agreement or in any exhibit, document or instrument furnished hereunder shall survive the Closing for a period of three years; provided, however, the representations and warranties contained in Sections 3.1(c) and 3.2(c) shall survive indefinitely. Notwithstanding any investigation or audit conducted before or after the Closing Date or the decision of any party to complete the Closing, each party shall be entitled to rely upon the representations and warranties set forth herein and therein and each such representation and warranty shall be deemed to be material. 5.2. Amendment of An-Con Certificate of Incorporation. As promptly as practicable after the execution hereof, Buyer agrees to take all action necessary to obtain shareholder approval for and to file with the Secretary of State of Delaware the Amendment so that the Note can be converted into the Shares. As soon as the Amendment is so filed, Buyer shall deliver written confirmation thereof and the Shares to Seller and Seller shall deliver the Note to Buyer. Buyer agrees to provide Seller with copies of all proxy statements and other communication between it and its shareholders concerning the Amendment simultaneously with any distribution of such communication to its shareholders. Buyer agrees to use its best efforts to conclude all such actions within six months of the date hereof. 5.3. Maintenance of Records. Each of Seller and Buyer shall preserve until the fifth anniversary of the Closing Date all records possessed or to be possessed by such party relating to any of the Assets or the Assumed Liabilities which records are either required by law to be maintained or reasonably necessary in order for Buyer to conduct its business. After the Closing Date, Seller shall provide Buyer with access, upon prior reasonable written request specifying the need therefor, during regular business hours, to such records of Seller but only to the extent relating to the Assets or the Assumed Liabilities prior to the Closing, and Buyer and its representatives shall have the right to make copies of such books and records. 5.4. Payments Received. Seller and Buyer each agree that after the Closing they will hold and will promptly transfer and deliver to the other, from time to time as and when received by them, any cash, checks with appropriate endorsements (using their best efforts not to convert such checks into cash) or other property that they may receive on or after the Closing which properly belongs to the other party, and will account to the other for all such receipts. 5.5. Transition Period. For a period of sixty (60) days after the Closing Date (the "Transition Period"), Seller agrees to use reasonable efforts to make available to Buyer certain of its employees and sublease to Buyer a portion of its Sugar Land facilities currently used by Seller, in order to assist Buyer in the operation, use and transfer of the Assets. Seller agrees to provide the foregoing to Buyer free of charge to Buyer for the Transition Period. In the event Buyer utilizes such facilities and any such employees beyond the Transition Period, Buyer shall reimburse Seller for the same at the rate of $7,500 per week, payable in the form of a credit against any purchases of Buyer's products by Seller pursuant to the Supply and License Agreement. Buyer agrees to be bound by and comply with all of the terms and conditions of the lease between Seller and Henley Healthcare for such facilities for so long as Buyer uses such premises. 5.6. Additional Actions and Documents. From and after the Closing Date, Seller will take or cause to be taken such further actions, and execute, deliver and file such further documents and instruments as Buyer may request from time to time to evidence the transfer of the Assets to Buyer and to fully effectuate the purposes and terms of this Agreement 5.7. Press Releases. Neither of the parties hereto nor any of their respective employees, agents or representatives shall issue any press release concerning the transactions described herein without prior notice to and reasonable consent and approval of the other party hereto. Each of the parties hereto agrees to pay to the other party liquidated damages of One Hundred Thousand Dollars ($100,000) in the event of a breach by such party of the provisions of this Section 5.7 which the parties agree is a reasonable amount to pay for such breach because of the irreparable damage that such a breach will create. In the event Buyer breaches the provisions of this Section 5.7, at its election it may issue Seller such additional number of shares of its duly authorized Common Stock which are valued at $100,000 based on the average of the closing bid and asked prices for the Common Stock, as quoted on the Over the Counter Bulletin Board (or such other market or exchange on which it is then listed), for the thirty (30) days preceding such breach. 5.8. Reversion of Intellectual Property. In the event that Buyer applies for or consents to the appointment of a receiver, trustee or liquidator of it or any of its property, admits in writing its inability to pay its debts as they mature, makes a general assignment for the benefit of creditors, files a petition seeking relief under Title 11 of the United States Code or under any other federal or state bankruptcy, reorganization or insolvency law or has a petition filed against it which is not dismissed within 60 days, then all right, title and interest in and to the Intellectual Property shall automatically revert to Seller. Notwithstanding the foregoing, Buyer shall retain its right, title and interest in and to the Intellectual Property in the event any of the foregoing actions involve a petition for reorganization and Buyer is reorganized as a solvent entity within one year of the date of such petition. Buyer agrees to take any action and execute any document which Seller deems necessary or desirable to effectuate the foregoing transfer. 5.9. Enlargement of Board of Directors. Buyer represents to and warrants to Seller that its By-laws fix the maximum number of members of its Board of Directors at seven (7). Buyer agrees that in the event the size of its Board of Directors is enlarged it will cause its directors to appoint as director such additional designees as Seller selects in the approximate proportion that Seller's shares of Common Stock bears to the total outstanding shares of Common Stock. Consistent with the foregoing, if the Board is increased to nine (9) members, Seller may appoint one (1) additional designee to the Board. ARTICLE VI - MISCELLANEOUS 6.1. Taxes. Buyer shall pay all federal, state and local sales, documentary and other transfer taxes, if any, due as a result of the purchase, sale or transfer of the Assets in accordance therewith whether imposed by law on Seller or Buyer and Buyer shall indemnify, reimburse and hold harmless Seller in respect of the liability for payment of or failure to pay any such taxes or the filing of or failure to file any reports required in connection therewith. 6.2. Expenses. Except as otherwise provided in this Agreement, each party hereto shall pay its own expenses incidental to the preparation of this Agreement, the carrying out of the provisions hereof and the consummation of the transactions contemplated hereby. 6.3. Contents of Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. It shall not be amended or modified, and no provision hereof shall be waived, except by written instrument duly executed by each of the parties hereto. Any and all previous agreements and understandings between the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement. 6.4. Assignment and Binding Effect. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties. Subject to the foregoing, all of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the permitted successors and assigns of the parties. 6.5. Waiver. No delay or failure on the part of either party in exercising any right hereunder, and no partial or single exercise hereof, will constitute a waiver of such right or of any other right hereunder. 6.6. Notices. Any notice, request, demand, waiver, consent, approval or other communication which is required or permitted hereunder shall be in writing and shall be deemed given only if delivered personally or sent by overnight, registered or certified mail, postage prepaid, to the parties' respective principal places of business. Such notice, request, demand, waiver, consent, approval or other communication will be deemed to have been given as of the date so personally delivered, one business day after being sent by overnight mail or five business days after being deposited in the U.S. mail. 6.7. Governing Law. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of Florida. 6.8. No Benefit to Others. The representations, warranties, covenants and agreements contained in this Agreement are for the sole benefit of the parties hereto and, in the case of Article IV hereof, the other Indemnified Parties, and their heirs, executors, administrators, legal representatives, successors and assigns, and they shall not be construed as conferring any rights on any other persons. 6.9. Exhibits and Schedules. All Exhibits and Schedules referred to herein are intended to be and hereby are specifically made a part of this Agreement. 6.10. Severability. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 6.11. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which counterparts when taken together shall constitute but one and the same instrument. 6.12. Rules of Construction. The rules of construction which require the terms of an agreement to be construed most strictly against the drafter of such an agreement are hereby waived and relinquished by each party. 6.13. Arbitration. Any dispute arising under or in connection with this Agreement shall be submitted to arbitration in Pinellas County, Florida to a member of the American Arbitration Association mutually appointed by the parties hereto (or, in the event the parties cannot agree on a single such member, to a panel of three members selected in accordance with the rules of such Association), who shall promptly arbitrate such dispute in accordance with the rules of such Association and report their findings to the parties. Such report shall be final, binding and conclusive on the parties. Judgment upon the award by the arbitrator(s) may be entered in any court having jurisdiction. The prevailing party in any such arbitration shall be entitled to recover from, and have paid by, the other party hereto to all fees and disbursements of such arbitrator or arbitrators and reasonable attorney's fees, costs and expenses incurred by the prevailing party in such arbitration. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. MAXXIM MEDICAL, INC. By: /s/ Kenneth W. Davidson Name: Kenneth W. Davidson, Chief Executive Officer AN-CON GENETICS INC. By: /s/ J. Robert Saron Name: J. Robert Saron, Chief Executive Officer EX-99 3 REGISTRATION RIGHTS AGREEMENTS Exhibit 1.2 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT dated May 8, 1998, by and between AN-CON GENETICS, INC., a Delaware corporation having its principal office at 7100 30th Avenue North, St. Petersburg, Florida ("An-Con"), and MAXXIM MEDICAL, INC., a Delaware corporation having its principal office at 10300 49th Street North, Clearwater, Florida 33762 ("Maxxim"). W I T N E S S E T H: WHEREAS, An-Con and Maxxim have entered into that certain Asset Purchase Agreement dated the date hereof (the "Purchase Agreement") pursuant to which An-Con has issued and delivered to Maxxim a Convertible Promissory Note (the "Note") which Note is convertible into shares of Common Stock of An-Con, par value $.001 per share (the "An-Con Shares"), all as more fully set forth in the Note; WHEREAS, it is a condition precedent to Maxxim entering into the Purchase Agreement that it receive registration rights for the An-Con Shares; and WHEREAS, it is the intent of the parties hereto that the registration rights granted to Maxxim herein shall be entitled to at least equal rights and priorities with respect to the registration of the registrable shares granted to (i) Advanced Refractory Technologies, Inc ("ART") pursuant to that certain Registration Rights Agreement dated as of February 9, 1998 between An-Con and ART (the "ART Registration Rights Agreement") and (ii) the stockholders of An-Con (the "Stockholders") pursuant to that certain Registration Rights Agreement dated February 9, 1998 between An-Con and the Stockholders (the "Stockholders' Registration Rights Agreement"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto (each individually, a "Party" and 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. "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. d. "Fair Market Value" for An-Con Shares as of a particular date means the closing sale price for one (1) share of An-Con Shares as reported on the primary securities exchange on which such shares are listed or, in the event such shares 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 such shares 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 such shares 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 such shares 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 such shares 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 Maxxim. 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. "Person" means any individual, proprietorship, joint venture, corporation, partnership, limited liability company, limited liability partnership, trust, unincorporated organization or Government Authority. g. "Prospectus" means any prospectus which is a part of a Registration Statement, together with any and all amendments and supplements thereto. h. "Registrable Stock" means: (i) the An-Con Shares, (ii) any other securities issued as a dividend or other distribution with respect to, or in exchange for or in replacement of, any An-Con Shares including, without limitation, any security received in consideration of any such shares in a merger, combination or transaction with a similar economic effect. i. "Registration Statement" means a registration statement filed with and declared effective by the Securities and Exchange Commission ("SEC"), pursuant to the Securities Act of 1933, as amended ("Securities Act"). ARTICLE 2 REGISTRATION RIGHTS 2.1 Demand Registration Rights. Subject to the terms and conditions hereof, if at any time Maxxim shall decide, in Maxxim's sole discretion, to cause the sale or other disposition of shares of Registrable Stock, then Maxxim shall give written notice to An-Con of the desired sale or other disposition, which notice shall specify the number of shares of Registrable Stock to be sold or disposed of and shall request that An-Con prepare and file a Registration Statement under the Securities Act covering such shares of Registrable Stock (each individually, a "Demand Registration", and collectively, the "Demand Registrations"). An-Con shall cause an appropriate Registration Statement covering such shares of such Registrable Stock to be filed with the SEC and to become effective as soon as reasonably practicable and to remain effective until the completion of the sale or other disposition of the shares of Registrable Stock included in such Registration Statement. (The holders whose shares of Registrable Stock are included in a Registration Statement are hereinafter occasionally referred to as the "Selling Stockholders"). An-Con shall not be obligated to file more than two (2) Registration Statements pursuant to this Section 2. 1. 2.2 "Piggy-back" Registration. Subject to the terms and conditions hereof, if An-Con at any time proposes or is required to register any of its securities under the Securities Act on a form which permits inclusion of the shares of Registrable Stock, An-Con shall, at such time, give written notice to Maxxim of its intention (or such demand or requirement) to do so. Upon the written request of Maxxim, given within twenty (20) business days after their receipt of such notice, An-Con shall use its best efforts to cause all shares of Registrable Stock which Maxxim shall have requested be included in such registration, to be registered under the Securities Act to the extent required to permit the sale or other disposition of the shares of Registrable Stock so registered. 2.3 Registration Procedures. Whenever An-Con is required by the provisions of this Agreement, or otherwise proposes, to effect the registration of any shares of Registrable Stock under the Securities Act, An-Con shall, as expeditiously as reasonably practicable: a. prepare and file with the SEC a Registration Statement with respect to such shares of Registrable Stock and use its best efforts to cause such Registration Statement to become and remain effective for a period of not less than one (1) year or for such longer period as any shares of Registrable Stock continue to be held by Maxxim or any of its Affiliates; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, An-Con shall furnish to Maxxim or such Affiliates copies of all such documents proposed to be filed, which documents shall be subject to the review and approval of such Persons and their respective counsel; b. prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than one (1) year or for such longer period as any shares of Registrable Stock continue to be held by Maxxim or any of its Affiliates as may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all shares of Registrable Stock owned by such Person and covered by such Registration Statement during such period in accordance with the intended method or methods of disposition set forth in such Registration Statement; c. furnish to Maxxim or any of its Affiliates such number of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in the Registration Statement and such other documents as such Persons may reasonably request in order to facilitate the sale or other disposition of the shares of Registrable Stock owned by such Persons and covered by such Registration Statement; d. use its best efforts to register or qualify all shares of Registrable Stock owned by Maxxim or any of its Affiliates and covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions as such Persons shall reasonably request, and use its best efforts to do any and all other acts and things which may be necessary under such securities or blue sky laws to enable such Persons to consummate the sale or other disposition of shares of Registrable Stock covered by such Registration Statement in such jurisdictions; e. notify Maxxim or its Affiliates at any time when a Prospectus relating to the shares of Registrable Stock owned by such Persons and covered by such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, and prepare a supplement or amendment to such Prospectus so that as thereafter delivered to the purchasers of the shares of Registrable Stock covered by such Registration Statement, such Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; f. cause all such shares of Registrable Stock owned by Maxxim or any of its Affiliates and covered by such Registration Statement to be approved for inclusion in The NASDAQ Stock Market or to be listed on each securities exchange or other national securities market on which securities of the same class are then listed; g. provide a transfer agent and registrar (which may be the same entity as the transfer agent) for the shares of Registrable Stock owned by Maxxim or any of its Affiliates not later than the effective date of such Registration Statement covering such shares of Registrable Stock; h. upon execution of reasonably requested confidentiality agreements, make available for inspection by Maxxim or any of its Affiliates, any underwriter participating in any sale or other disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such Persons or such underwriter, all financial and other records and pertinent corporate documents of An-Con, and cause An-Con's officers, directors, agents, Affiliates and employees to supply all information reasonably requested by any such Person or any underwriter, attorney, accountant or other agent of any such Person in connection with such Registration Statement; i. obtain a "cold comfort letter" from An-Con's independent public accountants and a legal opinion letter from An-Con's counsel in customary form and covering matters of the type customarily covered by "cold comfort letters" or legal opinion letters, as the case may be, as the underwriters or Maxxim or its Affiliates shall reasonably request; and j. in the event a Registration Statement including any shares of Registrable Stock relates to an underwritten public offering, An-Con shall enter into and perform its obligations under an underwriting agreement, in customary form, with the managing underwriter of such offering. 2.4 Costs and Expenses. To the fullest extent allowable under Applicable Law, the following reasonable and customary costs and expenses ("Costs and Expenses") incurred in effecting the Demand Registrations provided for in Section 2.1 shall be paid by the Selling Stockholders: (a) registration and filing fees; (b) printing expenses; (c) expenses of complying with the securities or blue sky laws of any jurisdictions described in Section 2.3d; (d) the reasonable fees and expenses of An-Con's certified public accountants and the reasonable fees and expenses of An-Con's counsel, which counsel shall be reasonably satisfactory to Maxxim (collectively, the "Professional Fees and Expenses"), which Professional Fees and Expenses are directly related to the Demand Registrations and to the extent, and only to the extent, such Professional Fees and Expenses are in excess of the normally recurring Professional Fees and Expenses attributable to An-Con's periodic reporting obligations under the Securities Exchange Act of 1934 ("Exchange Act"); and (e) any underwriting discounts or commissions with respect to shares of Registrable Stock of the Selling Stockholders being offered; provided, however, that all such Costs and Expenses shall be shared and borne by the Selling Stockholders, and the other stockholders of An-Con entitled to include securities in such Demand Registrations, pro rata in accordance with the number of shares which such Persons shall have included therein. ARTICLE 3 LIMITATIONS ON REGISTRATION RIGHTS 3.1 [Reserved] 3.2 Demand Registration Underwriter. Demand Registrations must be managed by a qualified underwriter; provided, however, that the proposed underwriter and the terms and conditions of the proposed underwriting arrangements, which shall be permitted, but shall not be required, to be on a "best efforts" basis, shall be reasonably satisfactory to both An-Con and Maxxim. Each Party shall reasonably cooperate with the other Party with respect to the selection and engagement of such underwriter; provided, however, that An-Con shall have no obligation to locate any such qualified underwriter. 3.3 Timing of Demand Registrations. Maxxim or its Affiliates shall not be entitled to include their shares of Registrable Stock in a Demand Registration until immediately after the earlier to occur of: (a) six (6) months following the date of first inclusion of An-Con's Common Stock on the NASDAQ Small Cap Market, the NASDAQ National Market System or other national securities exchange; or (b) Fifteen (15) months following the date of this Agreement. 3.4 Demand Registration Priority. With respect to the Demand Registrations, Maxxim and its Affiliates shall have the first priority right to include all of their shares of Registrable Stock in each Demand Registration; provided, however, that in the event that ART or the Stockholders are entitled and desire to include all or a portion of the shares of An-Con Common Stock in such Demand Registration in accordance with the rights provided to ART pursuant to the ART Registration Rights Agreement or the Stockholders pursuant to the Stockholders' Registration Rights Agreement, Maxxim, ART and the Stockholders shall be subject to the proration provisions set forth in Section 3.6 of this Agreement, and the corresponding provision of the ART Registration Rights Agreement and the Stockholders' Registration Rights Agreement, mutatis mutandis. 3.5 "Piggy-back" Registration Underwriter. An-Con shall have the right, upon the prior written consent of Maxxim, which consent shall not be unreasonably withheld or delayed, to select the underwriter, if any, who shall serve as the manager for all offerings of securities under Section 2.2. 3.6 "Piggy-back" Proration. If: a. Maxxim, ART and the Stockholders or their respective Affiliates are entitled and desire to register any Registrable Stock in a "piggyback" registration made pursuant to Section 2.2; b. the offering proposed to be made is to be an underwritten offering; c. Maxxim, ART and the Stockholders or their respective Affiliates and one or more other holders of An-Con securities desire to register securities in such registration; and d. the managing underwriter of such offering furnishes a written opinion to Maxxim, ART and the Stockholders or their respective Affiliates that the total amount of securities to be included in such underwritten offering would exceed the maximum amount of securities (as specified in such opinion) which can be marketed at a price reasonably related to the then current Fair Market Value of such securities and without otherwise materially and adversely affecting such offering; then, Maxxim, ART and the Stockholders or their respective Affiliates and all other holders of An-Con securities entitled to include such securities in such registration shall be entitled to participate pro rata in accordance with the number of shares which Maxxim, ART and the Stockholders or their respective Affiliates and each such holder proposes to include in such registration. ARTICLE 4 INDEMNIFICATION 4.1 By An-Con. An-Con shall indemnify, defend and hold harmless, Maxxim and its Affiliates, and their respective directors, officers, employees, shareholders and agents, each underwriter (as defined in the Securities Act), each other Person who participates in the offering of such shares of Registrable Stock, and each other Person, if any, who controls (as defined in Section 15 of the Securities Act) any such Person or any such underwriters or participating Persons (collectively, the "Stockholder Indemnitees"), with respect to the aggregate of any and all claims, losses, costs, judgments, deficiencies, penalties, obligations, liabilities, damages, fines and expenses, including, without limitation, reasonable attorneys' fees and disbursements (collectively, the "Claims"), whether or not any of the Claims result from third party claims or result from the assertion of any of the rights of Maxxim hereunder, incurred or suffered by any Stockholder Indemnitees or which any Stockholder Indemnitees may become subject to under the Securities Act or any other Applicable Law (at common law or otherwise), directly or indirectly, arising out of or relating to: a. in the event of any registration of any shares of Registrable Stock under the Securities Act pursuant to this Agreement, any untrue or alleged untrue statement of any material fact contained in any Registration Statement or Prospectus under which any shares of Registrable Stock were registered, any omission or alleged omission to state in any such document a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, or any amendment or supplement thereto, provided, however, that An-Con shall not be required to indemnify, defend or hold harmless any Stockholders Indemnitees in any such case to the extent that any such Claim arises out of or relates to any such untrue or alleged untrue statement or any such omission or alleged omission made in such Registration Statement or Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to An-Con by such Stockholder Indemnitees specifically for use therein; b. any breach of or default in the observance or performance of any agreement made by An-Con in this Agreement or the failure of An-Con to fulfill any other obligation which An-Con is required to perform or observe in this Agreement; c. any inaccuracy in any, breach of any, or false or fraudulent, representation or warranty made by An-Con in this Agreement; or d. the investigation or defense of any Claim which is made or brought against any Stockholder Indemnitees relating to any of the foregoing. 4.2 By the Stockholders. Maxxim shall indemnify, defend and hold harmless, An-Con, and its Affiliates and their respective directors, officers, employees, stockholders and agents, each underwriter (as defined in the Securities Act), each other Person who participates in the offering of such shares of Registrable Stock, and each other Person, if any, who controls (as defined in Section 15 of the Securities Act) An-Con or any such underwriters or participating Persons (collectively, the "An-Con Indemnitees"), with respect to any and all Claims, whether or not any of the Claims result from third party claims or result from the assertion of any of An-Con's rights hereunder, incurred or suffered by any An-Con Indemnitee or which any An-Con Indemnitee may become subject to under the Securities Act or any other Applicable Law (at common law or otherwise), directly or indirectly, arising out of or relating to: a. in the event of any registration of any shares of Registrable Stock under the Securities Act pursuant to this Agreement, any untrue or alleged untrue statement of any material fact contained in any Registration Statement or Prospectus under which any shares of Registrable Stock were registered, any omission or alleged omission to state in any such document a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, or any amendment or supplement thereto, in any such case, to the extent and only to the extent that any such Claim arises out of or relates to any such untrue or alleged untrue statement or any such omission or alleged omission made in such Registration Statement or Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to An-Con by Maxxim or any of its Affiliates specifically for use therein. In no event shall the liability of Maxxim under this Section 4.2a exceed the net proceeds (that is, after deduction of underwriting discounts or commissions) attributable to Maxxim with respect to the sale of Maxxim shares of Registrable Stock; b. any breach of or default in the observance or performance of any agreement made by Maxxim in this Agreement or the failure of Maxxim to fulfill any other obligation which Maxxim is required to perform or observe in this Agreement; c. any inaccuracy in any, breach of any, or false or fraudulent, representation or warranty made by Maxxim in this Agreement; or d. the investigation or defense of any Claim which is made or brought against any An-Con Indemnitees relating to any of the foregoing. 4.3 Rules Regarding Indemnification. The obligations and liabilities of each Party which may be subject to indemnification liability under Section 4.1 or Section 4.2 ("Indemnifying Party") to the Stockholder Indemnitees and/or the An-Con Indemnitees, as the case may be ("Indemnified Party") shall be subject to the following terms and conditions: a. Claims by Non-Parties. After receipt by an Indemnified Party of notice of the commencement of any proceeding against it by a third party which is likely to give rise to Claims of An-Con Indemnitees or Claims of Stockholder Indemnitees, as the case may be, the Indemnified Party shall give prompt written notice ("Notice of Third Party Claim") to the Indemnifying Party stating the nature of such Claim, the amount thereof and a brief description of the facts and circumstances relating thereto, to the extent known. The Notice of Third Party Claim shall contain or be accompanied by all reasonably appropriate documentation relating to the circumstances giving rise to the Claim, including, without limitation, a copy of all pleadings and other papers served, if any. The failure of an Indemnified Party to give such Notice of Third Party Claim to the Indemnifying Party or delay in giving such Notice of Third Party Claim, will not affect the validity or amount of the Claim and the indemnification obligations of the Indemnifying Party will remain in effect as to such Claim, unless such failure or delay prejudices the Indemnifying Party's defense of such Claim, in which case the Indemnifying Party will be relieved of its indemnification obligations to the extent that it has been so prejudiced. If within thirty (30) days after receiving such Notice of Third Party Claim, the Indemnifying Party advises the Indemnified Party that it will provide indemnification and assume the defense at its expense, then so long as such defense is being conducted, the Indemnified Party shall not settle or admit liability with respect to the Claim and shall provide the Indemnifying Party and defending counsel reasonable assistance in defending against the Claim. If the Indemnifying Party assumes a defense, counsel shall be selected by such Indemnifying Party, which counsel shall be reasonably acceptable to the Indemnified Party, and if the Indemnified Party then retains its own counsel, it shall do so at its own expense, and the Indemnifying Party shall have the right to settle the Claim with the consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. If the Indemnified Party does not receive a written notice of assumption of the defense as hereinabove provided from the Indemnifying Party within thirty (30) days after the Indemnifying Party's receipt of such Notice of Third Party Claim, the Indemnifying Party will be bound by any determination made in such proceeding or any compromise or settlement affected by the Indemnified Party, and the Indemnified Party thereafter may control the defense of such proceeding and, in its sole discretion, settle or admit liability. b. Claims by a Party. The determination of a Claim asserted by one or more of the Stockholder Indemnitees or the An-Con Indemnitees, as the case may be, hereunder (other than as set forth in Section 4.3a) shall be made as follows: the Indemnified Party shall give prompt written notice to the Indemnifying Party of any Claim by the Indemnified Party which has not been made pursuant to Section 4.3a, stating the nature of such Claim, the amount thereof and a brief description of the facts and circumstances relating thereto, to the extent known. If the Indemnified Party does not receive a written objection to the notice from the Indemnifying Party within thirty (30) days after the Indemnifying Party's receipt of such notice, the Claim shall be conclusively presumed to be a liability of the Indemnifying Party in an amount equal to such Claim. If within the aforesaid thirty (30) day period the Indemnified Party shall have received written objection to the notice (which written objection shall briefly describe, the basis of the objection to the notice or the amount thereof, all in good faith), then for a period of sixty (60) days after the receipt of such objection, the Parties shall attempt to settle the disputed Claim as between the Indemnified Party and Indemnifying Party. If the Parties are unable to settle the disputed Claim, either Party may submit the dispute to arbitration as provided in Section 5.4. 4.4 Contribution. If the indemnification provided for in this Article 4 is held by a court of competent jurisdiction or arbitrator to be unavailable to an Indemnified Person with respect to any Claim herein, or, if the Indemnified Person or Indemnifying Person seeks contribution under the Securities Act, the Exchange Act or otherwise, then the Indemnifying Person, in lieu of indemnifying such Indemnified Person hereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such Claim in such proportion as is appropriate to reflect the relative fault of the Indemnifying Person, on the one hand, and of the Indemnified Person, on the other hand, in connection with the statements or omissions or alleged statements or omissions that resulted in such Claims as well as any other relevant equitable consideration. The relative fault of the Indemnifying Person and of the Indemnified Person shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of the material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Person or by the Indemnified Person, the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. ARTICLE 5 MISCELLANEOUS 5.1 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 either 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. 5.2 Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to principles of conflicts of laws. 5.3 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 5.3(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 An-Con: An-Con Genetics, Inc. 734 Wait Whitman Road Suite 207 Melville, New York 11747 Attn.: Andrew Makrides, President Facsimile: (516) 421-5821 with a copy to: Alfred V. Greco P.C. 666 Fifth Avenue 14th Floor New York, New York 10103 Attn.: Alfred V. Greco, Esq. Facsimile: (212) 582-0176 To Maxxim: Maxxim Medical, Inc. 10300 49th Street North Clearwater, Florida 33762 Attn: Kenneth W. Davidson, President and CEO Facsimile: (813) 561-2180 with a copy to: Shumaker, Loop & Kendrick, LLP 101 East Kennedy Boulevard Suite 2800 Tampa, Florida 33602 Attn: W. Thompson Thorn, Esq. Facsimile: (813) 229-1660 Notice of change of address shall be given in accordance with the provisions of this Section 5.3 and shall be effective only upon receipt. 5.4 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 Tampa, Florida. Judgment upon any award rendered in such arbitration may be entered in any court of competent jurisdiction. This Section shall not limit either 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. 5.5 Expenses. The nonprevailing Party in any arbitration or litigation hereunder shall be required to reimburse the prevailing Party for all of its reasonable costs and expenses in such arbitration or litigation, including, without limitation, attorneys' fees and costs. 5.6 Parties Bound. This Agreement shall be binding upon and shall inure to the benefit of each Party and its respective successors and permitted assigns, subject to the restrictions against assignment provided in Section 5.9. 5.7 Waiver. Failure by either Party to insist upon strict performance of any provision herein by the 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 the 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. No representation or warranty by either Party herein shall be affected or deemed waived by reason of any investigation made by or on behalf of the other Party, including, without limitation, ally investigation made by any of the other Party's representatives or its advisors, attorneys and accountants (collectively, the "Representatives") or by reason of the fact that such other Party or any of its Representatives knew or should have known that any such representation or warranty is or may be inaccurate. 5.8 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. 5.9 Assignability. Neither Party shall have the right to assign any of its rights, duties or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, Maxxim, upon written notice to An-Con, shall have the right to assign its rights and obligations under this Agreement to any subsequent holder of shares of Registrable Stock 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 between 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. 5.10 Entire Agreement. This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein and supersedes all prior and contemporaneous undertakings and agreements by and between the Parties, whether written or oral, with respect to such subject matter. 5.11 Amendment. This Agreement may not be amended except by a writing executed by both Parties. An-Con agrees not to amend, modify or supplement the ART Registration Rights Agreement or the Stockholders' Registration Rights Agreement without the prior written consent of Maxxim, which consent shall not be unreasonably withheld or delayed. If Maxxim elects, this Agreement shall be amended to include any amendments to such other agreements. 5.12 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 the other Party in order to effectuate the purpose of this Agreement. 5.13 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 both Parties are not a signatory to the original or the same counterpart. 5.14 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. 5.15 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 5.4 is exclusive to the extent provided therein. The rights and remedies of either Party based upon, arising out of or otherwise in respect of, any inaccuracy in or breach of, any representation, warranty or agreement of the 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. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the Parties have caused this Registration Rights Agreement to be signed by their duly authorized officers as of the day and year first above written. AN-CON GENETICS, INC. By: /s/ J. Robert Saron J. Robert Saron Chief Executive Officer MAXXIM MEDICAL, INC. By: /s/ Kenneth W. Davidson Kenneth W. Davidson Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----