Option to Buy Agreement

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Compton and Del J. Petraitis, the individual members of SiTech option to buy business agreement individuals, the "Members". Option to buy business agreement capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in that certain Exclusive Supply Agreement, of even date herewith, by and between SiTech and Mentor the "Supply Agreement".

NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties agree as follows:.

SiTech hereby grants Mentor an irrevocable option the "Option" to purchase, as a going concern, all of the right, title and interest in and to all of the tangible and intangible assets owned by SiTech or to which it is entitled and belonging to or used or intended to be used in the Business, of every kind and description and wherever located collectively, the "Assets"as of and with effect from the Closing Date as defined in Section 1.

The term of the Option shall commence on the Effective Date and shall expire upon the earlier of: The Option to buy business agreement shall be conveyed free and clear of all liabilities, obligations, liens, claims and encumbrances, except only those liabilities and obligations that are to be assumed by Mentor as expressly provided in Section 1. From and after the Closing Date, SiTech will have no further right to use, market or otherwise transfer the Assets.

All of SiTech's claims and rights under all existing agreements to be assigned to Mentor shall be assigned to Mentor as of the Closing Date, and where necessary to permit such assignment, SiTech shall use its best efforts to obtain the written consent of the other parties to such agreements to the assignments thereof to Mentor. The Assets to be sold and purchased hereunder, include, but shall not be limited to:.

Notwithstanding the option to buy business agreement of Section 1. Subject to Section 1. Except as provided in the Assignment and Assumption Agreement, Mentor shall not assume, pay, perform, defend or discharge any, and SiTech shall solely retain, pay, perform, defend and discharge, all of SiTech's liabilities and obligations of any and every kind whatsoever, whether disclosed, undisclosed, direct, indirect, absolute, contingent, secured, unsecured, accrued or otherwise, whether known or unknown, including but not limited to: Due Diligence and Closing Date.

Such Option Notice shall specify the tentative time and date of the Closing which shall be not be less than ninety 90 days and not more than days from the date of delivery of the. Option Noticeand option to buy business agreement specify the due diligence materials and information the "Due Diligence Information" to be furnished to Mentor to complete its due diligence investigation in connection with its purchase of the Assets from SiTech at the Closing. SiTech shall promptly prepare and provide to Mentor all Due Option to buy business agreement Information so requested and the.

Disclosure Schedule as defined in Section 3. Mentor shall approve or disapprove all of the Due Diligence Information and the updated Disclosure Schedule option to buy business agreement sixty 60 days after receipt thereof the "Due Diligence Period" and, provided Mentor shall have approved the same, the Closing shall occur on the first business date following the expiration of the Due Diligence Period the "Closing Date".

The CPA may not alter the members tax returns as submitted, but may, in calculating the net tax effect of the SiTech items, make only those changes necessary to correct numerical errors or to comply with federal and state law. The aggregate difference in each members' net tax liability due to the inclusion of the effect of such member's interest in Option to buy business agreement, as determined by the CPA, shall be distributed to each member by SiTech on either an annual or quarterly basis, to coincide with each member's filing obligations, within 30 days of the CPA completing his or her review of each member's tax returns.

Notwithstanding the foregoing, such aggregate purchase price shall be subject to adjustment in the event SiTech shall have failed to meet, to Mentor's satisfaction, as of the Closing Date, one or more of the mutually agreed upon milestones set forth on Exhibit B attached hereto required thereby to have been achieved by such time the "Milestones".

In such event the Purchase Price shall be adjusted by subtracting the amount s set forth opposite such failed Milestone s on Exhibit B attached hereto as so adjusted, the "Purchase Price". The Purchase Price shall be allocated among the Assets for all purposes in the manner set forth on Exhibit Cwhich shall be prepared by Mentor and attached hereto on the Closing Date, and each of the parties shall file all applicable federal, state and local income tax returns and other forms with ail applicable tax authorities option to buy business agreement a basis consistent therewith.

Mentor and SiTech shall share equally the expenses associated with such escrow account. The applicable parties hereto shall negotiate in good faith for a reasonable period of time prior to seeking judicial resolution regarding the amount of Damages that are indemmfiable. Upon a final settlement between the applicable parties or judgment by a court of competent jurisdiction as to the mutually agreed or judicially determined amount of the Damages that are indemnifiable, that portion of the Holdback equaling the amount of the Damages to which Mentor is entitled to recover shall be released by the Escrow Agent to Mentor to satisfy such Damages.

In the event distributions are made to members of SiTech for ongoing income tax liability, as provided for in Section 1. In the event not all distributions provided for in Section 1. As soon as practicable after all distributions to be made pursuant to Section 1. Good Standing and Authority. SiTech is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California, and is qualified to conduct business as a foreign limited liability company in all jurisdictions in option to buy business agreement such qualification is required.

SiTech has all necessary power and authority and has taken all actions necessary to enter into this Agreement, the Supply Agreement, the License and Option to buy business agreement Transfer Agreement, and to consummate the transactions option to buy business agreement hereby and thereby and to perform its obligations hereunder and thereunder, and no other actions or proceedings on the part of SiTech are necessary to authorize this Agreement, the Supply Agreement or the License and Technology Transfer Agreement, or to consummate the transactions contemplated hereby and thereby.

This Agreement and each of the Supply Agreement and the License and Technology Transfer Agreement has been duly and validly executed and delivered by SiTech, and constitutes a legal, valid and binding obligation of SiTech, enforceable against SiTech option to buy business agreement accordance with its terms, except as enforcement may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or similar laws relating to creditors' rights generally.

Neither the execution or delivery of this Agreement, the Supply Agreement or the License and Technology Option to buy business agreement Agreement, nor the consummation of the transactions contemplated hereby or thereby or performance hereunder or thereunder, will violate the terms of the Articles of Organization or Operating Agreement of SiTech. Except as set forth in Section 3. Except for SiTech's contractual arrangement s with Mentor, SiTech does not have, and on the Closing Date will not have, any material interest, direct or indirect, in any supplier to or customer of any party to any contract or other arrangement which is material to SiTech.

SiTech shall prepare and deliver to Mentor i annually, the balance sheet and related statements of income and cash flows of SiTech at and for each fiscal year beginning with the year in which the Effective Date option to buy business agreement and ending with the year immediately prior to the year in which the Option Notice is delivered the "Financial Statements" ; ii quarterly, the unaudited balance sheet and related statements of income and cash flows of SiTech for each quarter of each fiscal year beginning with the year in which the Effective Date occurs and ending with the quarterly period next preceding the date of the Option Notice the "Interim Financial Statements" ; and iii at Mentor's written request, audited Financial Statements for any fiscal year beginning with the year in which the Effective Date occurs and for the period beginning with the beginning of the fiscal year in which the Option Notice is given and ending on the date of the Option Notice the "Audited Financial Statements".

As of the Closing, the internal books and records of SiTech from which the Financial Statements, the Interim Financial Statements and the Audited Financial Statements are prepared will not contain any information which is false or misleading.

All Financial Statements, Interim Financial Statements and Audited Financial Statements i will be prepared in accordance with such books and records; ii will be prepared in accordance with SiTech's accounting policies and principles, and will be in accordance with generally accepted accounting principles consistently applied "GAAP" ; and iii will present fairly SiTech's financial position and results of operations at the dates and for the periods reflected therein.

Notwithstanding anything to the contrary in this Agreement, from the Effective Date until the Closing Date, SiTech shall not, and solely with respect to Sections 3. SiTech to, do or permit any of the items listed below.

Notwithstanding the foregoing sentence, -Mentor may waive any and all objections it may have with respect to such action, and such. SiTech does not own or hold tide to any real properly. With respect to all real and personal property leased by it, SiTech is in compliance in all material respects with such leases and holds a valid leasehold interest free of any liabilities, obligations, liens, claims or encumbrances of any kind whatsoever. Set forth in the Disclosure Schedule is: SiTech has beneficial ownership of, and good and marketable title to, all personal property used in its operations or necessary for the conduct of the Business, and such property is subject to no mortgages, pledges, loans, liabilities, obligations, liens, claims or encumbrances of any kind whatsoever.

All real and tangible personal property, including machinery, equipment and fixtures, currently used by SiTech in the operation of the Business is in good operating condition and repair, ordinary wear and tear excepted, and is adequate and suitable for the purposes for which it is presently being used.

To the best knowledge of SiTech, all improvements on owned or leased property used by SiTech option to buy business agreement the operation of the Business and the present use thereof are in accordance with all applicable laws. The value of any fixed asset used by SiTech in the operation of the Business has not been written up or down, other than pursuant to depreciation or amortization expenses in accordance with GAAP and past practice.

SiTech's inventory consists, and at the time of Closing will consist, solely of inventory of the kind and quality regularly and currently used in the Business.

Prior to the Effective Date SiTech shall furnish Mentor with true and correct copies of each such agreement and instrument, including all amendments with respect thereto and, with respect to such agreements and instruments entered into after the Effective Date, SiTech shall furnish Mentor with true and correct copies of each such agreement and instrument, including all amendments with respect thereto, prior to the Closing.

SiTech is not in default in any material respect under any such agreement or instrument and, to the best knowledge of SiTech, no party to any such agreement or instrument is in default in any material respect thereunder. Except as set forth on the Disclosure Schedule, there are no actions, causes of action, claims, suits, proceedings, orders, writs, investigations, injunctions or decrees pending or, to the option to buy business agreement knowledge of SiTech threatened, against SiTech or affecting the operations of SiTech or its properties, assets or the businesses or the consummation of the transactions contemplated herein, at law or in equity, or before or by any court or any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign.

SiTech is in compliance with all applicable laws and regulations. SiTech has i duly and timely filed or caused to be filed all federal, state and local tax returns required to be filed, if any, prior to the Closing Option to buy business agreement which relate to SiTech or with respect to which SiTech is liable or otherwise is in any way subject, and.

No tax liabilities, disallowances or assessments relating to the Business, the Assets or the employees or independent contractors of SiTech are outstanding, and to the best knowledge of SiTech there is no basis for any such liabilities, disallowances or assessments. SiTech had not been and is not currently involved in any labor discussion with any group seeking to become the bargaining unit for any of SiTech's employees.

The Disclosure Schedule contains a listing of option to buy business agreement each employment, consulting, severance, deferred compensation, bonus, ownership interest option, purchase or appreciation and any other employee benefit plan whether or not in writing providing for compensation or other benefits to employees including officersor independent contractors, individually or as a group, to which SiTech is a party or by which it is bound; ii each "employee pension benefit plan" as defined in Section 3 2 of the Employee Retirement Income Security Act of "ERISA" and not exempted under Section 4 b or Section of ERISA maintained by SiTech or to which SiTech is required to contribute including any multi-employer pension plan; and iii each "employee welfare benefit plan" as defined in Section 3 1, of ERISA maintained by SiTech or to which SiTech contributes or is required to contribute.

SiTech has complied in all material respects with all applicable laws, rules option to buy business agreement regulations relating to employment. All of SiTech's employee benefits plans, as defined in Section 3 3 of ERISA, including all benefit plans subject to Title IV of ERISA, in effect at any time since inception of SiTech are now, and have always been, established, maintained and operated in accordance, in all material respects, with all applicable laws including, without limitation, ERISA and the Internal Revenue Code and all regulations and interpretations thereunder and in accordance with their plan documents.

The following insurance policies are in full force and effect and have been in full force and effect, without gaps, continuously since the Effective Date:. Copies of the above policies have been made or will be made available to Mentor for inspection. SiTech is not aware of any facts concerning SiTech, the Business or its operations, assets and liabilities, contingent or otherwise, upon which an insurer might be justified in reducing coverage or increasing premiums on existing policies and all such insurance polices can be maintained in full force and effect without substantial increase in premium or reducing the coverage thereof following the Closing Date.

SiTech has performed all of its required obligations under, and is not, in any option to buy business agreement respect, in violation or breach of or default under, any contract except as set forth in the Disclosure Schedule. Except as set forth on the Disclosure Schedule, the Permits are, and as of the Closing will be, in full force and effect and the continuing validity and effectiveness of such Permits will not be affected in any manner by the sale and transfer of the Assets to Mentor as herein contemplated.

The Business has been and is being conducted by SiTech in compliance with all laws, rules, regulations and licensing requirements applicable thereto, except where failure to be so in compliance would not have a Material Adverse Effect as defined in Section 5.

SiTech is not aware of any facts which might form the basis for a claim that any material violation of such laws exists. There are no unresolved notices of deficiency or charges of violation brought or, to the best knowledge of SiTech, threatened against SiTech, under any federal, state or local laws or regulations.

No consent, waiver or approval of any non-governmental third party is necessary for the consummation by SiTech and the Members of the transactions contemplated by this Agreement, the Supply Agreement or the License and Technology Transfer Agreement. SiTech owns all right, title and interest in and to or has the unrestricted right to grant licenses to, fully exploit and exercise all of the Intellectual Property necessary in any material respect for the ownership, maintenance and operation of the Business, all as more specifically described in the Disclosure Schedule.

The Intellectual Property does not infringed or otherwise violate the rights of any third party. There are no claims or allegations asserted by any person challenging such ownership or licenses, or the validity or enforceability of the Intellectual Property and all such Intellectual Property is freely transferable.

To the best knowledge of SiTech, the Intellectual Property is option to buy business agreement being infringed or option to buy business agreement violated by any party. SiTech has no liabilities other than as disclosed herein absolute, accrued, fixed, contingent, liquidated, unliquidated or otherwise which may have a Material Adverse Effect as defined in Section 5.

SiTech and the Members have not disposed of or transferred any of SiTech's assets in a manner that would constitute, and the consummation by SiTech and the Members of the transactions contemplated hereby will not constitute, a fraudulent conveyance or fraud on creditors of SiTech under applicable law.

Neither the representations and warranties made by SiTech and, as applicable, the Members herein nor any statement made in any Exhibit, Schedule or certificate furnished pursuant to this Agreement, contains as of the Effective Date or as of the Closing Date, as applicable, any untrue statement of a material fact, or option to buy business agreement to state any material fact required to be stated therein, or necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.

Notwithstanding the foregoing sentence, Mentor may waive option to buy business agreement and all objections it may have with respect to such action under this Section 4. SiTech shall give Mentor and its accountants, legal counsel and other representatives full access, during normal business hours throughout the period commencing on the date hereof and through the Closing Date, to all of the properties, books, contracts, commitments and nonprivileged records relating to the Business, the Assets and the liabilities of SiTech, and will furnish Mentor, its accountants, legal counsel and other representatives during such period all such information concerning its affairs as Mentor may reasonably request, including but not limited to the annual delivery of the Financial Statements or the Audited Financial Statements, as applicable, and the quarterly delivery of the Interim Financial Statements pursuant to Section 3.

Mentor shall also have the right to audit SiTech to ensure conformance by SiTech with ISO and conformance with applicable option to buy business agreement requirements, including the Option to buy business agreement, provided that such audits will be scheduled during normal business hours upon at least thirty 30 days prior written notice to SiTech.

Any furnishing of information pursuant hereto by Mentor shall not affect Mentor's right to rely on the representations, warranties and covenants made by SiTech and, to the extent applicable, the Members in this Agreement.

SiTech will give prompt notice to Mentor of:. Prior to the Closing, option to buy business agreement such earlier date on which this Agreement is terminated in accordance with its terms, SiTech and the Members will not, and SiTech and the Members will cause SiTech's officers, directors, employees, agents and representatives not to, directly or indirectly, initiate discussions or negotiate, or authorize any person or entity to discuss or negotiate with any other, or entertain or consider any inquiries or proposals received from any other person or entity, concerning the possible disposition of the Business or the Assets, in whole or in part.

SiTech and the Option to buy business agreement will give prompt notice to Mentor of any inquiries or proposals received by SiTech or the Members from any third party concerning the disposition of the Business and the Option to buy business agreement. Any party receiving Proprietary Information of another party hereunder shall keep strictly secret and confidential and shall not, either during or after the term of this Agreement, without such other party's prior written consent, disclose to any third party or use such Proprietary Information; provided, however, that such party may disclose such Proprietary Information to those of its employees who reasonably need to know such Proprietary Option to buy business agreement in order to perform their duties under this Agreement or under the Supply Agreement.

Each party shall use his or its best efforts to compel any person or entity to whom or which such party discloses Proprietary Information hereunder to keep such Proprietary Information strictly secret and confidential in accordance with the provisions of this Section 4.

SiTech shall provide Mentor with a Certificate of Insurance, within sixty 60 days of the Effective Date and annually thereafter during the Option Term, verifying the insurance policies described in Section 3.

SiTech covenants that anyinsurance proceeds attributable to a option to buy business agreement, which may be repaired, replaced or cured, will be used solely for the purposes of repairing, replacing or curing such loss.

In the event any grantor or licensor of Intellectual Property a "Licensor" to SiTech becomes the subject of a voluntary or involuntary bankruptcy proceeding, SiTech will not consent to termination of any license, technology transfer or other agreement of similar nature SiTech may have with such Licensor. The obligation of Mentor to consummate the transactions contemplated by this Agreement is subject to the satisfaction, at or before the Closing, of all the following conditions, unless waived in writing by Mentor:.

All representations and warranties of SiTech and the Members in this Agreement and the Schedules and Exhibits hereto, or in any written statement or certificate that shall be delivered to Mentor by SiTech and the Members, respectively, under this Agreement, shall be true and correct on and as of the Closing Date as if made on the date thereof.

SiTech and the Members shall have performed, satisfied and compiled with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by SiTech and the Members on or before the Closing Date. Mentor shall have received from SiTech a certificate, dated the Closing Option to buy business agreement, certifying, in such detail as Mentor and its counsel may reasonably request, that the conditions specified in this Article V have been satisfied.

Mentor shall have received an opinion from counsel for SiTech dated the Closing Date in a form reasonably acceptable to Mentor. Consummation of the transactions contemplated by this Agreement shall not violate any order, decree or judgment of any court or governmental body having competent jurisdiction and no action or proceeding shall have been instituted or threatened by any person, entity or governmental agency which, in any such case, in the sole judgment of Mentor, has a reasonable probability of resulting in i the obtaining of material damages from Mentor; ii an order, judgment or decree restraining, prohibiting or rendering unlawful the consummation of the transactions contemplated by this Agreement; or iii other relief in connection therewith.

During the period from the date of this Agreement to the Closing, there shall not have occurred an event or condition which has resultedor which reasonably may be expected to result in a material adverse change in the business condition financial or otherwiseoperations, properties, assets, liabilities or prospects of the Business a "Material Adverse Effect"and Mentor shall have received a certificate from SiTech dated the Closing Date to the foregoing effect.

The managers, if any, and, to the extent required by law, the members of SiTech shall have approved this Agreement and the transactions contemplated hereby. Unless otherwise specified hereunder, all documents and instruments incident option to buy business agreement the transactions contemplated by this Agreement shall be in form and substance reasonably satisfactory to Mentor and its counsel, and Mentor shall have received all such counterpart originals or certified or other copies of such documents as it reasonably may request.

Mentor shall have received all of the following documents and other items to be delivered by SiTech and, to the extent applicable, the Members before or at the Closing:.

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