-----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, BaSwlMmEuSbDIES1KGg+Al1dFlelZAg2aS4C3l5k1NNgztMIjNUl9+btStj5y1N6 7GN2weXpnBAHm3JuYoUaBg== 0001016570-98-000010.txt : 19980220 0001016570-98-000010.hdr.sgml : 19980220 ACCESSION NUMBER: 0001016570-98-000010 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980219 SROS: AMEX 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: 98545771 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: HERRICK FEINSTEIN LLP /FA CENTRAL INDEX KEY: 0001016570 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2 PARK AVENUE 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10016 BUSINESS PHONE: 2125921491 MAIL ADDRESS: STREET 1: 2 PARK AVENUE 21ST FLOOR CITY: NEWYORK STATE: NY ZIP: 10016 SC 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule 13D Under the Securities Exchange Act of 1934 (Amendment No. )* AN-CON GENETICS, INC. (Name of Issuer) Common Stock (Title of Class of Securities) 032347205 (CUSIP Number) Mr. Norman P. Fuchs Irwin A. Kishner, Esq. 5 Flagpole Lane Herrick, Feinstein LLP East Setauket, New York 10598 2 Park Avenue Tel.: (516) 751-7026 New York, New York 10016 (212) 592-1400 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 9, 1998 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box . Check the following box if a fee is being paid with the statement . (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filed out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (Continued on following page(s)) Page 1 of 5 Pages CUSIP NO. 032347205 13D Page 2 of 5 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Norman P. Fuchs 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) (b) 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER 1,125,000 shares of Common Stock 8 SHARED VOTING POWER None 9 SOLE DISPOSITIVE POWER 1,125,000 shares of Common Stock 10 SHARED DISPOSITIVE POWER None 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,125,000 shares of Common Stock 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.4% 14 TYPE OF REPORTING PERSON* IN * SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION PART II TO SCHEDULE 13D Item 1. Security and Issuer Shares of Common Stock An-Con Genetics, Inc. One Huntington Quadrangle Suite 1N11 Melville, New York 11747 (hereinafter, the "Issuer") Item 2. Identity and Background (1) (a) Name: Norman P. Fuchs (b) Residence: 5 Flagpole Lane, East Setauket, New York 10598 (c) Mr. Fuchs is a senior investment banker and senior research analyst with M.H. Meyerson & Co., 525 Washington Boulevard, Jersey City, New Jersey 07303-0260. (d) Information required by Item 2(d): None. (e) Information required by Item 2(e): None. (f) United States of America Item 3. Source and Amount of Funds or Other Consideration Mr. Fuchs acquired the securities in accordance with the terms and provisions of the Securities Exchange Agreement described in Item 5(a), pursuant to which Mr. Fuchs through his individual retirement account ("IRA") acquired the shares of common stock (the "Common Stock") the Issuer in exchange for 112.5 shares of common stock of BSD Development Beta Corporation ("BSD"). Item 4. Purpose of Transaction (a) The shares of Common Stock of the Issuer were acquired for equity participation in the Issuer for short-term or long-term investment and with a view to the short-term resale of a portion of such shares of Common Stock. Immediately following the consummation of the securities exchange agreement described in Item 5 (a), BSD became a wholly owned subsidiary of the Issuer. At such time the assets of BSD included certain equipment, licensing arrangements and other intangible rights, cash in the amount of $250,000, and a $750,000 aggregate principal amount promissory note due May 10, 1998. In addition, in connection with the acquisition of the Issuer's securities, the IRA entered into a Profit Sharing Agreement with Advanced Refractory Technologies, Inc. ("ART") and the Eric Rainer Bashford Charitable Remainder Unitrust (the "Trust") pursuant to which ART has agreed to share with the IRA and the Trust certain gains realized by ART on the sale or other disposition (other than a pledge or grant of a lien or security interest) of all or a portion of certain securities of the Issuer owned by ART to a third person (other than an affiliate of ART) up to an aggregate maximum amount of $1,000,000. Any such profit is to be shared equally between the IRA and the Trust. Page 3 of 5 Pages In addition, ART has granted to the IRA and the Trust a right of first refusal with respect to any proposed sale or other disposition (other than a pledge or a grant of a lien or security interest) of any of those certain securities of the Issuer owned by ART to a third person (other than and affiliate of ART) at a price below the then current fair market value of such shares. Notwithstanding the foregoing, other than the right to participate in the realized gains described above, neither the IRA nor the Trust has any voting or investment power or any other rights with respect to the securities of the Issuer owned by ART. (b)-(j) The undersigned has no plans or proposals which would result in any of the actions enumerated in Item 4(b) through (j) of Schedule 13D. Item 5. Interest in Securities of the Issuer (a) Norman P. Fuchs is the sole creator and owner of the Norman P. Fuchs Individual Retirement Account , (the "IRA"), which on February 9, 1998 acquired 1,125,000 shares of Common Stock of the Issuer, representing approximately 8.4% of such class of securities of the Issuer. The acquisition of such Common Stock by the IRA was pursuant to the terms and conditions of the Securities Exchange Agreement, executed and delivered on February 9, 1998 among the Issuer and the IRA and other securities holders of BSD. The IRA exchanged 112.5 shares of common stock of BSD for the shares of Common Stock of the Issuer. The exchange was consummated in New York, New York. (b) As the sole creator and owner of the IRA, the undersigned has the sole power to vote or to direct the vote and the sole power to dispose or to direct the disposition of the shares of Common Stock. (c) None. (d) None. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer The shares of Common Stock of the Issuer are subject to a Registration Rights Agreement dated February 9, 1998 among the Issuer, the IRA and certain other stockholders of the Issuer. Fuchs has agreed, until February 8, 1999, to vote his shares of common stock the Issuer which are registered in his name (or in the name of the IRA) in accordance with the written instructions of a majority of the Board of Directors of the Issuer or pursuant to its order. The shares of common stock of the Issuer are not registered under the Securities Act of 1933, as amended, and are subject to certain transfer restrictions by the Issuer and applicable law. Item 7. Materials to be Filed as Exhibits A. Profit-Sharing Agreement by and among the Norman P. Fuchs Individual Retirement Account, the Eric Rainer Bashford Charitable Remainder Unitrust, and Advanced Refractory Technologies, Inc., dated February 9, 1998. Page 4 of 5 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. NORMAN P. FUCHS February 19, 1998 By: /s/ Norman P. Fuchs Date Signature Name: Norman P. Fuchs Page 5 of 5 Pages EX-99 2 PROFIT-SHARING AGREEMENT THIS PROFIT-SHARING AGREEMENT ("Agreement") is made this 9th day of February, 1998 by and among ADVANCED REFRACTORY TECHNOLOGIES, INC., a corporation duly organized. and existing under the laws of the State of New York, having its principal office at 699 Hertel Avenue, Buffalo, New York ("ART") the ERIC RAINER BASHFORD CHARITABLE REMAINDER UNITRUST, a trust duly organized and existing under the laws of the State of New York, having its principal office at 2689 Strang Boulevard, Yorktown Heights, New York ("Bashford") and the NORMAN P. FUCHS INDIVIDUAL RETIREMENT ACCOUNT, an individual retirement account, having its principal office at 5 Flagpole Lane, East Setauket, New York ("Fuchs"). (Bashford and Fuchs are collectively referred to herein as the "Principals".) WHEREAS, pursuant to that certain Stock Exchange Agreement by and among ART, An-Con Genetics, Inc. ("An-Con") and BSD Development Beta Corporation ("BSD"), dated February 9, 1998 ("Stock Exchange Agreement"), in exchange for One Thousand (1,000) shares of Class A preferred stock of BSD, par value $.01 per share, An-Con issued and delivered to ART Two Million (2,000,000) shares of common stock of An-Con, par value $.001 per share (collectively, the "An-Con Shares"); WHEREAS, pursuant to Section 6.7 of the Stock Exchange Agreement, An-Con has agreed to issue and deliver to ART on or before September 6, 1998, Two Million (2,000,000) shares of An-Con Class A preferred stock, par value $.001 per share (collectively, the "An-Con Preferred Stock"); WHEREAS, the An-Con Preferred Stock is to be convertible into Two Million (2,000,000) shares of common stock of An-Con, par value $.001 per share (collectively, the "An-Con Conversion Shares"); and WHEREAS, subject to the terms hereof, and in consideration for, inter alia, certain substantial financial risks assumed by the Principals, ART desires to grant to the Principals a right to share in the potential profits, if any, realized by ART upon the sale or other disposition (other than a pledge or a grant of a lien or security interest), of the An-Con Shares, the An-Con Preferred Stock or the An-Con Conversion Shares, as the case may be, to a third Person other than an Affiliate of ART. (The An-Con Shares, the An- Con Preferred Stock and the An-Con Conversion Shares are sometimes hereinafter referred to individually as a "Share" and collectively as the "Shares"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto (each individually, a "Party"; collectively, the "Parties" hereby agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. For purposes of this Agreement, the following terms shall have the respective meanings set forth below: a. "Affiliate" of a Party means any Person (as hereinafter defined) which Controls (as hereinafter defined), is Controlled by, or is under common Control with, such Party. b. "Applicable Law" means any and all applicable laws, rules, regulations, statutes, orders and ordinances of any Government Authority (as hereinafter defined). c. "Consent" means any consent, certificate, approval, authorization, waiver, permit, grant, franchise, concession, agreement, license, exemption or order of, registration, declaration or filing with, or report, filing, registration or notice to, any Person, including, without limitation, any Government Authority. d. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise. e. "Government Authority" means any foreign, federal, state, local or other government, government agency or authority or quasi-governmental body, or any entity exercising any executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including, without limitation, any arbitrator and any government department, board, commission, court or tribunal. f. "Fair Market Value" for shares of common stock of An-Con, par value $.001 per share ("An-Con Common Stock") as of a particular date means the closing sale price for One (1) share of An-Con Common Stock as reported on the primary securities exchange on which such shares are listed or, in the event shares of An-Con Common Stock are not listed on any securities exchange, the last reported sale price on the NASDAQ National Market System ("NASDAQ/NMS") or, in the event no such reported sale takes place on the day subject to determination of the Fair Market Value, the average of the reported closing bid and asked prices on such securities exchange or NASDAQ/NMS, or, in the event shares of An-Con Common Stock are not listed on any securities exchange or quoted on the NASDAQ/NMS, the average of the bid and asked prices for the immediately preceding Forty-Five (45) days as quoted on the NASDAQ Small Cap Market, or in the event shares of An-Con Common Stock are not quoted on the NASDAQ Small Cap Market, the average of the bona fide independent bid prices for the immediately preceding Forty- Five (45) days as reported in the NASDAQ Bulletin Board, or in the event shares of An-Con Common Stock are not reported in the NASDAQ Bulletin Board, the average of the bona fide independent bid prices for the immediately preceding Forty- Five (45) days reported in the "over-the-counter" market in the "pink sheets" published by the National Quotation Bureau, Inc., or in the event shares of An-Con Common Stock are not so listed, quoted or included, the fair market value as established by the good faith determination of any nationally recognized firm of certified public accountants selected by ART and reasonably acceptable to the Principals. The Fair Market Value of the An-Con Preferred Stock shall equal the Fair Market Value of the applicable number of shares of An-Con Common Stock into which the An- Con Preferred Stock is convertible. g. "Person" means any individual, proprietorship, joint venture, corporation, partnership, limited liability company, limited liability partnership, trust, unincorporated organization or Government Authority. ARTICLE 2 PROFIT-SHARING ARRANGEMENT 2.1 Calculation. During the Term (as hereinafter defined), in the event ART receives cash in good funds (collectively, the "Proceeds"') as a result of: (a) the sale or other disposition (other than a pledge or a grant of a lien or security interest) of all or any portion of the An-Con Shares, the An-Con Preferred Stock or the An-Con Conversion Shares to a third Person other than an Affiliate of ART; (b) the sale or other disposition (other than a pledge or a grant of a lien or security interest) of any securities or other property received upon or as a result of, any sale, exchange or other disposition (other than a pledge or a grant of a lien or security interest) of the An-Con Shares, the An-Con Preferred Shares or the An-Con Conversion Shares to a third Person other than an Affiliate of ART; or (c) the distribution to ART of cash in excess of the liquidation preference attributable to the An-Con Preferred Stock, as a result of the dissolution or liquidation of An-Con; then, in any such event, ART shall promptly pay to the Principals as provided in Section 2.2, an amount equal to Fifty-Percent (50%) of any Proceeds received by ART in excess of One Dollar ($1.00) per Share ("Share Cost"); provided, however, that in the event An-Con shall: (i) declare and pay to the holders of the An-Con Shares, the An-Con Preferred Shares or the An-Con Conversion Shares, as the case may be, a dividend or other distribution payable in shares of An-Con equity securities; (ii) subdivide the outstanding An-Con Shares, An-Con Preferred Shares or An-Con Conversion Shares, as the case may be, into a greater number of such shares; (iii) combine the outstanding An-Con Shares, An-Con Preferred Shares or An-Con Conversion Shares, as the case may be, into a lesser number of such shares; or (iv) effect by a recapitalization, reorganization, reclassification or the like, a transaction having an equivalent effect; then, in any such event, the Share Cost shall be correspondingly adjusted; and provided further, however, notwithstanding anything to the contrary contained herein, the maximum aggregate payment to be made by ART to the Principals pursuant to this Agreement shall be One Million Dollars ($1,000,000.00). 2.2 Payments to Principals. Any payments required to be made by ART to the Principals pursuant to Section 2. 1, shall be paid as follows: (a) One-Half to Bashford; and (b) One-Half to Fuchs. 2.3 Term. The term of this Agreement ("Term") shall commence on the date hereof and shall expire on the earlier of: (a) the date on which ART has paid the Principals hereunder an aggregate of One Million Dollars ($1,000,000.00); (b) such date as ART shall have sold or otherwise disposed of (other than a pledge or a grant of a lien or security interest) to a third Person other than an Affiliate of ART, all of the Shares and any securities or other property received upon or as a result of, any sale, exchange or other disposition (other than a pledge or a grant of a lien or security interest) of any Shares to a third Person other than an Affiliate of ART, and ART has received the Proceeds related thereto and has paid to the Principals all amounts to which they are entitled pursuant to Section 2. 1; or (c) the date of distribution to ART of cash in excess of the liquidation preference attributable to the An-Con Preferred Stock, as a result of the dissolution or liquidation of An-Con and ART has received the Proceeds related thereto and has paid to the Principals all amounts to which they are entitled pursuant to Section 2. 1. 2.4 Right of First Refusal. In the event that during the Term, ART shall desire to sell or otherwise dispose (other than a pledge or a grant of a lien or security interest) of any Shares to a third Person other than an Affiliate of ART at below Fair Market Value ("Prospective Sale"), then ART shall, unless prohibited by Applicable Law, promptly give written notice of the Prospective Sale ("Notice of Prospective Sale") to the Principals. The Notice of Prospective Sale shall set forth all material terms and conditions of the Prospective Sale (including, without limitation, the identity of the third Person, if any), and shall constitute an offer by ART to sell such Shares to the Principals upon the same terms and conditions set forth in the Notice of the Prospective Sale. Upon receipt of the Notice of Prospective Sale from ART and at any time within Thirty (30) days thereafter ("Election Period"), the Principals shall have the right to elect in writing (upon notice to ART) ("Election") to purchase such Shares upon the same terms and conditions contained in the Notice of Prospective Sale ("Right of First Refusal"), and if the Principals make an Election, the Principals shall have a period of Ninety (90) days after the Election to purchase such Shares from ART. The purchase and sale of such Shares shall be consummated by the Principals' payment to ART of the aggregate amount of the cash portion of the purchase price of such Shares (adjusted to account for any amounts ART is required to pay the Principals pursuant to Section 2.1) by wire transfer of immediately available funds to an account designated by ART and by delivery to ART to the non-cash portion of such purchase price, if any, free and clear of all liens and encumbrances of any kind, upon ART's delivery to the Principals of certificates representing the Shares to be purchased, duly endorsed in blank and in proper form for transfer to the Principals, free and clear of any liens and encumbrances of any kind created by ART. In the event: (a) the Principals decline to purchase such Shares by notice in writing to ART during the Election Period; (b) the Principals fail to notify ART within the Election Period of its election to purchase such Shares; or (c) the Principals give ART notice of its Election to purchase such Shares during the Election Period but the Principals and ART fail to consummate such purchase and sale as provided above; then, in any one of such events, ART shall have the right to consummate the Prospective Sale to a third Person (which, in the event the identity of a third Person is set forth in the Notice of Prospective Sale, shall be to such third Person), upon the terms and conditions set forth in the Notice of Prospective Sale, but at a price per Share equal to or greater than the price per Share set forth in the Notice of Prospective Sale, but only if the Prospective Sale is consummated within a further One Hundred Eighty (180) day period following the latest to occur of the events referred to in clauses (a) through (c) above. If such Prospective Sale is not consummated within said further One Hundred Eighty (180) day period, the Right Of First Refusal set forth in this Section 2.4 shall again apply. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF ART ART hereby represents and warrants to the Principals, as of the date hereof, as follows: 3.1 Standing. ART is a corporation duly organized and validly existing under the laws of the State of New York. ART has all requisite corporate power and authority to conduct its business as it is now being conducted and as presently contemplated to be conducted and to carry out the transactions contemplated in this Agreement. 3.2 Authority. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action of ART, and ART has all requisite corporate power and authority to execute, deliver and perform this Agreement. This Agreement has been duly executed and delivered by ART and constitutes a legal, valid and binding agreement of ART enforceable in accordance with its terms (except as its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights or the application of equitable principles in any action, legal or equitable). ART has full power and authority to perform its obligations under this Agreement and the transactions contemplated herein. 3.3 No Conflicts. Neither the execution, delivery or performance of this Agreement nor the consummation of the transactions contemplated herein, will conflict with or constitute a breach of or a default under, or an event which, with or without notice or lapse of time, or both, would be a breach of, default under or violation of: (a) ART's Certificate of Incorporation or By-Laws; or (b) any agreement, document, indenture, mortgage or other instrument or undertaking to which ART is a party or to which any of its properties is subject, which breach, default or violation would have a material adverse effect, financial or otherwise, on ART or would be a material violation of any Applicable Law relating to ART. 3.4 Litigation. There is not now pending and, to the best of ART's knowledge, there is not threatened nor is there any basis for, any claim, demand, litigation, arbitration, action, suit, inquiry, investigation or proceeding by or before any Government Authority to which ART is or may be a party, and which: (a) may result in a material adverse effect, financial or otherwise, on the condition or prospects of ART; (b) may threaten the validity of this Agreement; or (c) seeks to prevent, or if successful would prevent, ART from consummating the transactions contemplated in this Agreement. ART is not subject to any judgment, decree, injunction, rule, decision or order of any Government Authority having, or which, insofar as can be foreseen in the future, may have, any material adverse effect, financial or otherwise, on the condition or prospects of ART. 3.5 Consents. There is no Consent necessary or required in connection with the valid execution, delivery and performance by ART of this Agreement and the consummation of the transactions contemplated herein. 3.6 Compliance with Law. ART has complied in all material respects with all Applicable Law relating to ART, and no claims have been made to or against ART by any Person to the contrary. ART has received no notice of any violation of or noncompliance with any Applicable Law which has not been cured, which violation or noncompliance would have a material adverse effect, financial or otherwise, on the condition or prospects of ART. 3.7 Brokers. No agent, finder, broker, investment banker or other Person acting under the authority of ART is or will be entitled to any broker's fee or finder's fee or any other commission or similar fee, directly or indirectly, from ART or any Affiliate of ART as a result of the transaction contemplated in this Agreement. 3.8 General Warranty. No representation or warranty by ART in this Agreement and no statement contained in any document, statement or certificate furnished to the Principals by ART in connection with the transactions contemplated in this Agreement, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained or incorporated herein not misleading. All documents, instruments and certificates delivered by or on behalf of ART in connection with this Agreement and the transactions contemplated herein are true, correct and complete in an material respects. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BASHFORD Bashford hereby represents and warrants to ART, as of the date hereof, as follows: 4.1 Standing. Bashford is a trust duly organized and validly existing under the laws of the State of New York. Bashford has all requisite power and authority to carry out the transactions contemplated in this Agreement. 4.2 Authority. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary action of Bashford, and Bashford has all requisite power and authority to execute, deliver and perform this Agreement. This Agreement has been duly executed and delivered by Bashford and constitutes a legal, valid and binding agreement of Bashford, enforceable in accordance with its terms (except as its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights or the application of equitable principles in any action, legal or equitable). Bashford has full power and authority to perform its obligations under this Agreement and the transactions contemplated herein. 4.3 No Conflicts. Neither the execution, delivery or performance of this Agreement nor the consummation of the transactions contemplated herein, will conflict with or constitute a breach of or a default under, or an event which, with or without notice or lapse of time, or both, would be a breach of, default under or violation of: (a) Bashford's governing trust agreement; or (b) any agreement, document, indenture, mortgage or other instrument or undertaking to which Bashford is a party or to which any of its properties is subject, which breach, default or violation would be a material violation of any Applicable Law relating to Bashford. 4.4 Litigation. There is not now pending and, to the best of Bashford's knowledge, there is not threatened nor is there any basis for, any claim, demand, litigation, arbitration, action, suit, inquiry, investigation or proceeding by or before any Government Authority to which Bashford is or may be a party, and which: (a) may threaten the validity of this Agreement; or (b) seeks to prevent, or if successful would prevent, Bashford from consummating the transactions contemplated in this Agreement. Bashford is not subject to any judgment, decree, injunction, rule, decision or order of any Government Authority having, or which, insofar as can be foreseen in the future, may have, any material adverse effect on Bashford's ability to perform its obligations under this Agreement and the transactions contemplated herein. 4.5 Consents. There is no Consent necessary or required in connection with the valid execution, delivery and performance by Bashford of this Agreement and the consummation of the transactions contemplated herein. 4.6 Compliance with Law. Bashford has complied in all material respects with all Applicable Law relating to Bashford, and no claims have been made to or against Bashford by any Person to the contrary. Bashford has received no notice of any violation of or noncompliance with any applicable Law which has not been cured, which violation or noncompliance would have a material adverse effect on Bashford's ability to perform its obligations under this Agreement and the transactions contemplated herein. 4.7 Brokers. No agent, finder, broker, investment banker or other Person acting under the authority of Bashford is or will be entitled to any broker's fee or finder's fee or any other commission or similar fee, directly or indirectly, from Bashford or any Affiliate of Bashford as a result of the transaction contemplated in this Agreement. 4.8 General Warranty. No representation or warranty by Bashford in this Agreement, and no statement contained in any document, statement or certificate furnished to ART by Bashford in connection with the transactions contemplated in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained or incorporated herein not misleading. There is no fact known to Bashford which Bashford has not disclosed to ART which might reasonably be expected to have or result in a material adverse effect, financial or otherwise, on the ability of Bashford to perform its obligations under this Agreement. All documents, instruments and certificates delivered by or on behalf of Bashford in connection with this Agreement and the transactions contemplated herein are true, correct. and complete in all material respects. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF FUCHS Fuchs hereby represents or warrants to ART, as of the date hereof, as follows: 5.1 Standing. Fuchs is an individual retirement account duly organized, validly existing and in good standing. Fuchs has all requisite power and authority to carry out the transactions contemplated in this Agreement. 5.2 Authority. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action of Fuchs, and Fuchs has all requisite power and authority to execute, deliver and perform this Agreement. This Agreement has been duly executed and delivered by Fuchs and constitutes a legal, valid and binding agreement of Fuchs enforceable in accordance with its terms (except as its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights or the application of equitable principles in any action, legal or equitable). Fuchs has full power and authority to perform its obligations under this Agreement and the transactions contemplated herein. 5.3 No Conflicts. Neither the execution, delivery or performance of this Agreement, nor the consummation of the transactions contemplated herein, will conflict with or constitute a breach of or a default under, or an event which, with or without notice or lapse of time, or both, would be a breach of, default under or violation of: (a) Fuch's Constituent Documents; or (b) any agreement, document, indenture, mortgage or other instrument or undertaking to which Fuchs is a party or to which any of its properties is subject, which breach, default or violation would be a material violation of any Applicable Law relating to Fuchs. 5.4 Litigation. There is not now pending and, to the best of Fuch's knowledge, there is not threatened nor is there any basis for, any claim, demand, litigation, arbitration, action, suit, inquiry, investigation or proceeding by or before any Government Authority to which Fuchs is or may be a party, and which: (a) may threaten the validity of this Agreement; or (b) seeks to prevent, or if successful would prevent, Fuchs from consummating the transactions contemplated in this Agreement. Fuchs is not subject to any judgment, decree, injunction, rule, decision or order of any Government Authority having, or which, insofar as can be foreseen in the future, may have, any material adverse effect on Fuch's ability to perform its obligations under this Agreement and the transactions contemplated herein. 5.5 Consents. There is no Consent necessary or required in connection with the valid execution, delivery and performance by Fuchs of this Agreement, and the consummation of the transactions contemplated herein. 5.6 Compliance with Law. Fuchs has complied in all material respects with all Applicable Law relating to Fuchs, and no claims have been made to or against Fuchs by any Person to the contrary. Fuchs has received no notice of any violation of or noncompliance with any Applicable Law which has not been cured, which violation or noncompliance would have a material adverse effect on Fuch's ability to perform its obligations under this Agreement and the transactions contemplated herein. 5.7 Brokers. No agent, finder, broker, investment banker or other Person acting under the authority of Fuchs is or will be entitled to any broker's fee or finder's fee or any other commission or similar fee, directly or indirectly, from Fuchs or any Affiliate of Fuchs as a result of the transactions contemplated in this Agreement. 5.8 General Warranty. No representation or warranty by Fuchs in this Agreement and no statement contained in any document, instrument or certificate furnished to ART by Fuchs in connection with the transactions contemplated in this Agreement, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained or incorporated herein not misleading. There is no fact known to Fuchs which Fuchs has not disclosed to ART which might reasonably be expected to have or result in a material adverse effect, financial or otherwise, on the condition or prospects of Fuchs or on the ability of Fuchs to perform its obligations under this Agreement. All documents, instruments and certificates delivered by or on behalf of Fuchs in connection with this Agreement and the transactions contemplated herein, are true, correct and complete in all material respects. ARTICLE 6 MISCELLANEOUS 6.1 Survivability. Notwithstanding anything contained herein to the contrary, all representations, warranties and agreements set forth in this Agreement shall survive and continue to bind the Parties after the execution and delivery of this Agreement, the termination or expiration of this Agreement, and any investigation conducted by any Party, to the extent and for as long as may be necessary to give effect to the rights, duties and obligations of the Parties pursuant to this Agreement, subject to any applicable statutes of limitations. 6.2 Law. This Agreement shall be governed by and construed in accordance with the laws of the state of New York, without reference to principles of conflicts of laws. 6.3 Notices. All notices required or permitted hereunder shall be in writing and shall be: (a) sent by telex or facsimile transmission (to be effective when receipt is acknowledged unless sent after 5:00 p.m. on any business day, in which event notice shall be deemed received on the next business day); (b) personally delivered; (c) sent by certified mail, return receipt requested; or (d) sent by a nationally recognized, commercial overnight delivery service with provisions for a receipt, postage or delivery charges prepaid and, except as otherwise provided in Section 6.3(a), shall be deemed given when personally delivered or when placed in the possession of such mail or delivery service, and addressed to the Parties, as follows: To ART: Advanced Refractory Technologies, Inc. 699 Hertel Avenue Buffalo, New York 14207 Attn.: Keith A. Blakely, President Facsimile: 716-875-3746 with a copy to: Damon & Morey LLP 1000 Cathedral Place 298 Main Street Buffalo, New York 14202-4096 Attn.: Gust P. Pullman, Esq. Facsimile: 716-856-5521 To Bashford: Eric Rainer Bashford Charitable Remainder Trust 2689 Strang Boulevard Yorktown Heights, New York 10598 Attn: Mr. Eric Rainer Bashford, Trustee Facsimile: (914) 962-1486 with a copy to: Herrick, Feinstein LLP Two Park Avenue New York, New York 10016 Attn.: Irwin A. Kishner, Esq. Facsimile: (212) 889-7577 To Fuchs: Norman P. Fuchs Individual Retirement Account 5 Flagpole Lane East Setauket, New York 11753 Attn: Mr. Norman P. Fuchs, Custodian Facsimile: (516) 689-5752 with a copy to: Herrick, Feinstein LLP Two Park Avenue New York, New York 10016 Attn.: Irwin A. Kishner, Esq. Facsimile: (212) 889-7577 Notice of change of address shall be given in accordance with the provisions of this Section 6.3 and shall be effective only upon receipt. 6.4 Arbitration. Any controversy or claim arising out of or pursuant to this Agreement shall be submitted to final and binding arbitration conducted in accordance with the expedited Commercial Arbitration Rules of the American Arbitration Association ("Rules") by One (1) arbitrator appointed in accordance with this Agreement and the Rules. The seat of the arbitration shall be in Albany, New York. Judgment upon any award rendered in such arbitration may be entered in any court of competent jurisdiction. This Section shall not limit any Party's right to obtain any provisional or equitable remedy, including, without limitation, injunctive relief from any court of competent jurisdiction, as may be necessary in the sole judgment of such Party to protect its rights hereunder. 6.5 Expenses. The nonprevailing Party or Parties in any arbitration or litigation hereunder shall be required to reimburse the prevailing Party or Parties for all of its reasonable costs and expenses in such arbitration or litigation, including, without limitation, attorneys' fees and costs. 6.6 Parties Bound. This Agreement shall be binding upon and shall inure to the benefit of each Party and its respective legal representatives, successors and permitted assigns, subject to the restrictions against assignment provided in Section 6.9. 6.7 Waiver. Failure by any Party to insist upon strict performance of any provision herein by any other Party shall not be deemed a waiver by such Party of its rights or remedies or a waiver by it of any subsequent default by such other Party, and no waiver shall be effective unless it is in writing and duly executed by the Party entitled to enforce the provision being waived. 6.8 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction or an arbitrator to be illegal or unenforceable, the Parties shall use reasonable efforts to negotiate a legal and enforceable provision reflecting the legal and economic substance of such illegal or unenforceable provision as closely as possible. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement. 6.9 Assignability. No Party shall have the right to assign any of its rights, duties or obligations hereunder without the prior written consent of the other Parties, which consent shall not be unreasonably withheld or delayed; provided, however, that ART, upon prior written notice to the Principals, shall have the right to assign its rights, duties and obligations under this Agreement to any Affiliate of ART which consents in writing to be bound by the terms and conditions of this Agreement. No assignment of any rights, duties or obligations under this Agreement relieves the assigning Party of primary liability for its duties or obligations under this Agreement, and as among the Parties, the assigning Party shall continue to be liable for all of its duties or obligations under this Agreement as though no assignment has been made. 6.10 Entire Agreement. This Agreement constitutes the entire agreement by and among the Parties regarding the subject matter contained herein and supersedes all prior and contemporaneous undertakings and agreements by and among the Parties, whether written or oral, with respect to such subject matter. 6.11 Amendment. This Agreement may not be amended except by a writing executed by all Parties. 6.12 Cooperation. Each Party agrees to take all such steps, execute and deliver such further documents and perform such acts as may be reasonably requested by any other Party in order to effectuate the purposes of this Agreement. 6.13 Counterparts. This Agreement may be executed simultaneously in Two (2) or more counterparts, any of which shall be deemed an original, and all of which together shall constitute one and the same instrument, notwithstanding that all Parties are not a signatory to the original or the same counterpart. 6.14 Headings. The headings used herein are inserted for convenience only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement. 6.15 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give any Person other than the Parties and their respective legal representatives, successors and permitted assigns, any right or remedy under or by reason of this Agreement. 6.16 Transaction Expenses. Each Party shall pay its own fees, costs and expenses and those of its Representatives with respect to the transaction contemplated in this Agreement. 6.17 No Public Statements. Without the prior consent of the other Parties, which consent shall not be unreasonably withheld or delayed, no Party shall disclose to the press or news media the existence of or terms of this Agreement, except as otherwise required by Applicable Law; provided, however, the Principals and their respective Affiliates and agents shall have the right to disclose the general nature of the transactions contemplated in this Agreement but only in connection with the sale or other disposition of any An-Con equity securities owned by either Principal or any Affiliate of either Principal; provided, however, under no circumstances pursuant to such disclosure shall any such party have the right to disclose any confidential or proprietary information of ART. 6.18 Cumulative Rights and Remedies. The rights and remedies of the Parties under this Agreement shall be in addition to and cumulative of, and not in lieu or exclusive of, any other rights or remedies of the Parties pursuant to this Agreement, at law or in equity, except that the arbitration remedy set forth in Section 6.4 is exclusive to the extent provided therein. The rights and remedies of any Party based upon, arising out of or otherwise in respect of, any inaccuracy in or breach of, any representation, warranty or agreement of any other Party or failure to fulfill any condition shall in no way be limited by the fact that the act, omission, occurrence or other statement of facts upon which any claim for such inaccuracy or breach is based may also be the subject matter of any other representation, warranty or agreement as to which there is no inaccuracy or breach. IN WITNESS WHEREOF, the Parties have caused this Profit-Sharing Agreement to be signed by their duly authorized officers or signatories on the day and year first above written. ADVANCED REFRACTORY TECHNOLOGIES, INC. By: /s/ Keith A. Blakely Authorized Officer ERIC RAINER BASHFORD CHARITABLE REMAINDER UNITRUST By: /s/ Eric Rainer Bashford Authorized Signatory NORMAN P. FUCHS INDIVIDUAL RETIREMENT ACCOUNT By: /s/ Norman R. Sherman Authorized Signatory -----END PRIVACY-ENHANCED MESSAGE-----